UNBIASED - July 22, 2024: President Biden Dropped Out of the 2024 Presidential Race. What Happens Now? Answering Your Questions Plus Explaining the CrowdStrike Outage.

Episode Date: July 22, 2024

1. CrowdStrike Update Causes Global Outage on Windows Systems (1:11)2. President Biden Drops Out of the Presidential Race. What Happens Now? (4:29)3. Answering Your Questions About the Implications of Biden Dropping Out (10:00)Support ‘UNBIASED’ on Patreon.Watch this episode on YouTube.Follow Jordan on Instagram and TikTok.All sources for this episode can be found here.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

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call the Conax Ontario helpline at 1-866-531-2600. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Welcome back to Unbiased, your favorite source of unbiased news and legal analysis. Welcome back to Unbiased. Today is Monday, July 22nd, and this is your daily news rundown. As a reminder, today and tomorrow will be the last episodes until Monday the 5th. I'll be taking a much-needed vacation, so I won't be putting out podcast episodes, but I will still be posting to social media, specifically Instagram and TikTok. So if you don't follow me on either of those platforms, now is the time to do that. My username on both is at JordanIsMyLawyer, which you can also find links to in each podcast episode

description. As far as what you can expect in today's episode, I am briefly going to cover the outage on Friday, the CrowdStrike outage. Just want to talk about it and what caused it since I didn't have a chance to talk about it. And then we'll get into the biggest story of the weekend, which is, of course, President Biden dropping out of the race. And I will finish with a little Q&A. I was going to cover the Secret Service Director's testimony before the House today, but I'm actually going to throw that into tomorrow's episode instead, just because today's episode is already longer than usual, and I don't want to make it even longer. And now, without further ado, we can get into today's

stories. On Friday, a lot of us woke up to the news that some of the biggest industries across the globe, not just here in the United States, had been affected by an outage. We're talking banks, airlines, hospitals, pharmacies, emergency services, many, many more. Here's what happened. CrowdStrike is a cybersecurity company. The company's whole mission and purpose is to protect data by preventing hacks and cyber attacks. In other words, their product is a software platform that detects malware and cyber attacks and counteracts those threats with automatic protection and remediation. As with all software apps, whatever it may be, CrowdStrike's platform issues updates. And in the very early morning hours of Friday, CrowdStrike issued what was called a

sensor configuration update to Windows systems specifically. And unfortunately for a lot of people, the update was problematic. In total, about eight and a half million Windows devices were affected, which is actually less than 1% of all Windows machines, but it had a huge impact across the globe. So to put this simply, the issue with the update caused a disconnect between the back-end storage of Windows systems and compute. The disconnect affected the downstream systems. So the best analogy that I've heard thus far is to think of the back-end as the kitchen of a restaurant. And the front end is you looking at the menu in the dining area. And the compute is the waiter.

So if you order the chicken parmesan with extra parmesan, and the waiter then takes that back to the back end, the kitchen, transmits your request, and the kitchen carries out the request by making the food, and sends it back through the waiter, and the waiter then delivers it to you. You can also think of this in internet terms. So I saw a creator online explain it like this. You want to buy a plane ticket, so you log onto the internet and you search plane tickets to Bora Bora. You are essentially throwing out this request through a gateway, which you can think of as a door to the back end and requesting plane

tickets to Bora Bora. The system then takes that request through the door to the back end. The back end does all the work behind the scenes and sends the search results back through that gateway door back to you. So to bring it home, the fault in CrowdStrike's update created a disconnect between the kitchen and the waiter, or the back end and the gateway door, which then affected how the users of Windows systems were able to interact on the front end. And when I say users, I'm not just talking about you and I wanting to buy plane tickets. I'm talking about the airline workers, the pharmacists, the 911 operators, all of those people that were affected. Ultimately, CrowdStrike did identify the exact issue and issued a fix,

but that fix had to be implemented on each individual computer that was affected. So the bounce back has taken quite a bit. I know as an example, Delta is still working through it. As of yesterday, they were still canceling flights, trying to get caught up to speed. But that is what the outage was all about. And now that that is out of the way, we can move on to the story that everyone wants to talk about, which is that President Biden has ended his re-election bid. This announcement came by way of a letter that was posted to social media, which read in part, quote,

It has been the greatest honor of my life to serve as your president. And while it has been my intention to seek re-election, I believe it is in the best interest of my party and the country for me to stand down and focus solely on fulfilling my duties as president for the remainder of my term, end quote. Let's first talk about what happens next, and then I'll answer some of your questions. We'll do a little Q&A. At this point, while we know that Vice President Harris is a candidate, anyone can run for the Democratic nomination. However, a person needs at least 300 delegate signatures to actually become a candidate for the nomination. So let's say Vice President Harris and one other person gets 300 delegate signatures. For purposes of this hypothetical, let's just say it's

Gavin Newsom, even though he's already endorsed Harris and could potentially be her VP pick, but let's just use the two of them for potential presidential nominees. Newsom and Harris each having the required 300 at least signatures and becoming presidential candidates, again, just a hypothetical, would then campaign amongst the delegates for their votes. And Harris is currently doing this. Then the delegates get together, all 3,900 of them, 3,949 to be exact, and they submit their votes for the nominee. A candidate just needs a simple majority to win the nomination, so 1,975 votes. In our hypothetical, if Harris gets at least 1,975 votes, she becomes the nominee. If Newsom gets at least 1,975 votes, he becomes the

nominee. If neither candidate gets a simple majority of the votes, that's when the 750 superdelegates would come into play. The superdelegates can take part in the first round of voting, but they may not. So let's assume that they don't take part in that first round of voting and neither candidate gets a simple majority of the votes. The 750 superdelegates would then come in and try to push one candidate above that simple majority threshold. Voting would continue on for as many rounds as needed until one candidate gets the majority and becomes the Democratic nominee. Now, as I have said, that was just a hypothetical. If Harris is the only potential presidential candidate, then she would presumably become the

Democratic nominee, and that's kind of what it's looking like it's going to be as of this moment. Just to quickly touch on the difference between delegates and superdelegates, superdelegates are those delegates that are uncommitted or unpledged. They can vote for whichever candidate they want, regardless of the outcome of the primaries, whereas regular delegates are committed to the winners of the primaries and caucuses. Now, given that this situation is a little tricky and the winner of the primaries and caucuses, President Biden, is no longer running, that is why Vice President Harris at this point is campaigning for delegates votes. The campaigning for delegates votes is what is replacing the traditional primary caucus system at this point. And then as a final note, before we

get into the Q&A, Democrats don't have to wait until the convention to nominate the Democratic nominee. They can do so beforehand at a virtual roll call, and they very well may. In that case, the convention would more so serve as a place of formal nomination and acceptance, kind of like how it did for the Republicans. But the reason that Democrats have been talking about this virtual roll call is because of Ohio's ballot access deadline. Ohio's deadline for parties to submit the names of the nominees for the ballot is August 7th. Obviously, if the Democratic convention where the nominee is selected isn't until the end of August, as it's currently scheduled for, the Democratic party would technically miss the deadline and

wouldn't have a nominee on the ballot. To avoid this, Democrats scheduled a virtual roll call for next week where they were planning on virtually selecting their nominee ahead of the convention. Now that Biden is out, though, the roll call is a bit up in the air. If a roll call doesn't happen, it's unclear right now what would happen with Ohio because Ohio lawmakers did pass an amendment to their ballot access law that would move the deadline back. However, that amendment doesn't take effect until September 1st. So technically, if August 7th comes around and the Democrats have not submitted their nominee, the Democratic Party would still be in violation of Ohio's current law as it currently stands, at least until September

1st when the new amendment kicks in. And who knows what would happen in that case. As we know, we live in an incredibly litigious society. I wouldn't be surprised if lawsuits were filed arguing that because Democrats missed the deadline, they can't appear on the ballot even after September 1st. So Democrats just may want to avoid that situation altogether and proceed with that virtual roll call as they had planned when Biden was the presumptive nominee. In that case, we will know who the Democratic presidential nominee is by the end of next week, by August 7th. Now I can answer some of your questions. I ask those of you that follow me on Instagram to submit any questions you might have.

And per usual, I received hundreds and hundreds and hundreds of questions, but I managed to narrow them down to 14. I was going to do 10, but I threw a few extra in there. And I do want to say at the outset, this situation is obviously unprecedented in the sense that no candidate has ever dropped out this close to the DNC. No candidate has ever dropped this late in the game, at least since modern day DNC rules were implemented. So I'm going to answer these questions to the best of my ability, but just keep in mind that no one really knows what we're going to see happen over the next few months. Starting generally, why wasn't Biden's announcement made on his presidential letterhead?

Well, this is one of those questions that I don't know for certain, but what we do know is that there is a difference actions did he take as a president and which actions did he take as a presidential candidate? So the most likely reason that Biden made his announcement on his personal letterhead rather than his presidential letterhead is because his campaign for reelection is separate from his official business as the president. I will say, though, nothing prohibits Biden from using the presidential seal. He could have if he wanted to, but he didn't. And again, we don't know exactly why, but that would be my best guess. Can you fact check the president's claim in his letter that America has the strongest economy in the world? Sure. America does have the strongest economy in the world. When you look at the economy in terms of GDP, gross domestic product, GDP is what we use to estimate the size of a country's economy and its impact on the global economy. America is number

one. In terms of PPP adjusted GDP, which is a way to compare countries' GDP by accounting for differences in purchasing power, China does have us beat. But some argue that PPP doesn't reflect reality because of differences in things like local costs, taxes, tariffs, things like that. It's true that China may soon overtake us in terms of unadjusted GDP just because their growth levels are much higher than ours. But as of now, the United States is considered to have the strongest economy in the world, followed by China, Germany, and Japan. How likely is it that another Democrat will challenge Harris for the nomination? Why or why not? Anything can happen. It's very possible someone tries to challenge her, but I will say that it's not likely anyone else gets

the actual nomination. The reality is she is the one who has served as VP for the last four years. She was presumably going to be the Democratic VP nominee, second in line to the president anyway, and that's what the delegates were prepared to vote for. That's not to say that she won't or can't have a challenger, but just that she is the most likely path forward for the presidential nomination, given that all of this is happening so late in the game. Is Harris eligible to run for president? Yes. Remember, the only criteria set forth in the Constitution for candidacy include 35 years or older at the time of inauguration, a resident of the United States for at least 14 years on the day of inauguration, and a natural born citizen of the United States. Harris is 59 years old. She's been a resident of the United States her entire life, 59 years,

and she was born in Oakland, California. I think some people are saying that because her mom was born in India and her dad was born in Jamaica, that she is ineligible and not a natural born citizen. That's just not true. A natural born citizen is either someone born in the United States, which she was, or a child of United States citizens, but born overseas, as was Senator John McCain. Either way, Kamala Harris, she is eligible to be president. What are the legal issues behind someone being nominated for president despite no vote by the people? Are primaries legally required? Something that many may not know is that primaries and caucuses as we know them today did not start until the 1970s. Forms of them have been around since the early 1900s, but voters didn't really have a direct

role in choosing the nominees until relatively recently. It wasn't until 1976 that voters started to play more of a role. But here's the other thing. Primaries and caucuses are not mandated, nor are they run by the federal government or in the Constitution. Primaries are run by the states. Caucuses are run by the political parties. Each state usually has either a primary or a caucus, but nothing says that either has to happen. In fact, the Constitution expressly gives the states the power to make their own election rules, which includes the rules surrounding primaries and caucuses.

So could someone bring a lawsuit and say that their due process rights have been violated because they didn't get the right to vote in a fair and free election. Sure. But the reality is they still do have the right to vote in the general election, which is the only election that the constitution references a right to vote in. Because of this, if someone wanted to challenge this issue, it would be a state constitutional violation, not a federal constitutional violation. Nothing, as I've said, in the Constitution gives a citizen the right to vote in primaries or caucuses, given that they didn't even exist when the Constitution was ratified. With that in mind, how such a challenge would proceed would depend on the state. But it all goes back to the same question, do we even have a right to vote in primaries and caucuses? Or is our only right to be able to participate in fair and free elections and choose the candidate of our choosing?

Because also keep in mind, not everyone even has the right to vote in primaries and caucuses. If you're a registered independent, you cannot vote in caucuses and you cannot vote in states that have closed primaries. You can only vote if you're a registered Republican or Democrat. So there's a lot of potential obstacles to a due process challenge when it comes to primaries and caucuses. My gut is telling me that Democrats would not be successful in asserting a violation of rights, given that one, nothing in the constitution gives us a right to vote in primaries or caucuses. Two, the states have all the power when making election rules. Three, the people still retain a right to vote in the general election. And four, if a right to vote

existed for primaries and caucuses, there would be no such thing as closed primaries because by definition, closed primaries shut out certain voters. So yes, a lawsuit could be brought. I don't know how successful it would be. I see lots of talk of lawsuits by who for what, specifically Speaker Johnson. What Speaker Johnson has been talking about is the legal obstacles to replacing a nominee's name on a ticket, but it's not really an issue yet. So the Heritage Foundation, which is a conservative think tank, and the foundation behind Project 2025, has said that in many states, including swing states like Georgia, Nevada, and Wisconsin, these states may not allow a replacement

on the ballot. But here's the thing. Wisconsin's deadline for major party political candidates is September 3rd. There's still time. Georgia's deadline is August 23rd. Nevada's deadline is August 9th. So definitely sooner, but none of these deadlines have passed at this point. But what I also want you to think about from a legal and procedural standpoint is how could a nominee's name need to be replaced if there hasn't yet been an official nominee? The Democratic Party has not yet voted on a nominee. Sure, Biden was the presumptive nominee, but anything could have happened until he was nominated. So why would a state put a presumptive nominee's name on a ballot and then say it can't be replaced? It really doesn't make a whole lot of sense. And even after a candidate is nominated, you still have to have procedures

in place to replace that person's name. God forbid something unforeseen happens or what one party just doesn't get a candidate. That certainly wouldn't be a fair and free election. So a lot of this talk about states not being able to replace a nominee, just take it with a grain of salt. There's no sound reasoning behind such an assertion, given the fact that there is no Democratic nominee yet. How are the campaign funds affected by Biden dropping out? Who can they go to? Well, we know the funds are going to Vice President Harris. When Biden's campaign, which is called Biden for President, filed its registration statement with the FEC, it registered itself as the principal campaign committee for both Biden and Harris. We also know that since Biden has dropped out,

Biden for President, the organization, has filed paperwork changing the name to Harris for President. And this entire time, since Biden announced his run for reelection and started the Biden for president organization, Harris's name has been on all of the filings. So legally, while this is unprecedented, certainly one would think that she is entitled to the funds. That's what would make the most legal sense. I was also asked about refunds. As far as FEC rules go, there are no requirements for campaign committees to refund donors. It would be entirely up to the organization to refund donors if refunds were requested. But here's the other thing. Everyone

who's donated to Biden's campaign was also legally donating to Harris. Harris was the VP candidate on the campaign. And if something were to happen to Biden, which given his age isn't out of the realm of possibility, Harris would have taken over as president anyway, and that's what those donors were donating to. So the donors wouldn't really have much ground to stand on in that regard. As far as the funds going to a nominee other than Harris, if the DNC were to nominate someone other than Harris, that nominee would not were to nominate someone other than Harris, that nominee would not have access to the Biden-Harris funds. Under FEC rules, the organization

in charge of the funds would be limited to giving no more than a $2,000 contribution to the new nominee's campaign. And at the current moment, the Harris for President organization, previously the Biden for President organization, had about $92 million. Okay, so what would happen to the money if Harris weren't the nominee and funds couldn't go to any other nominee? Well, the funds could be transferred to the Democratic Party. There's no limit as to how much a candidate committee can transfer to party committees. So that is certainly an option. Another option is for the organization to convert itself to a regular PAC or finance a new super PAC, although we know that's not happening because the organization has sought to be renamed. However, one thing that could not happen is Biden or Harris using the

money for personal reasons. This is prohibited under federal law. A workaround there, though, could be transferring the money to the Penn Biden Center for Diplomacy and Global Engagement. That would be permissible under federal law. However, it would have to be done after paying off any remaining campaign expenses. So there are certainly options. But as I said, the Biden for president organization has already begun the process of changing its name to Harris for president. And it has been confirmed that the funds will now go to Vice President Harris's presidential campaign. If Harris wins the Democratic nomination, how does she pick her VP?

She can actually pick her VP before she's nominated, and she should if she wants a say. Because remember, it's up to the delegates at the convention to nominate both the Democratic presidential nominee and the vice presidential nominee. If she doesn't pick a vice president to run with, it'll be an open convention for the VP, and it'll be up to the delegates completely. If she does choose a VP, she has free reign. She can choose whoever she wants so long as they're eligible to serve as VP. Doesn't the Democratic Party need to hold another primary to select a candidate? As the law currently stands, no. As I said before, primaries and caucuses are not set forth as mandatory in any foundational

document federal law nothing like that furthermore primaries aren't even put on by the political parties they're put on by the states parties host caucuses so no the short answer is that where things stand today nothing forces another primary or caucus. Could that change in the future? Sure, maybe this will prompt that change, but as of now, the answer seems like no. Who has the delegates that were not committed to Biden? What happens to the delegates that were committed to Biden? The delegates that were committed to Biden, Harris will have to campaign for. As I said, she's already doing that. Biden released them when he dropped, which granted them the freedom to vote for whoever they wish.

And once they were freed, that's when Harris started trying to get their votes. As for the delegates that were not committed to Biden, they will remain uncommitted. Those are the superdelegates we talked about. And in some situations, regular delegates also are not committed. How can Biden still serve as president despite dropping out of the race? Well, the reality is we don't know why he chose to drop out, right? We can guess. Sure, we can sit here and say, oh, it's because of his age. It's because of his mental decline. It's because of his sickness. It's because he was down in the polls, whatever. But the truth is we don't know why. If it's simply because he doesn't think he had a shot at winning and he was down in the polls, he has no reason to step down. If it's because he knows he's getting older, he doesn't know where he's going to be in the next two to four years,

that doesn't necessarily mean that he is unable to serve as president in this current moment, despite whatever personal opinions you may have. However, in the situation where he isn't able to do his job, whether it be because of mental reasons or something else, but he doesn't want to step down, the only way that he could be removed is by the vice president and a majority of either the president's cabinet or Congress. Per section four of the 25th amendment, if the vice president and either the majority of the president's cabinet or the majority of Congress have an opinion of yes, that the president is unable to perform his duties, then the president's powers are transferred to the

vice president. But that is the only way that he would be removed. Impeachment isn't even at play here because impeachment deals with high crimes, bribery, and misdemeanors, which obviously isn't the issue presenting us in this scenario. So to answer the question, there are many reasons that Biden can still serve despite dropping out of the race. Is there a legal basis to challenge a ticket that doesn't have Biden on it? No, Biden won't be on any ticket because he isn't running. He's not the nominee. He's not even a candidate at this point. So there's no justification to his name being on a ticket and therefore no legal basis to challenge a ticket that doesn't have his name on it.

People can obviously write his name in if they want to, despite his name not being on it. But that wouldn't do anything either because he's not in the race. If you're not a candidate, you can't be elected. Can Obama be a vice presidential candidate? Yes. Nothing prevents a former president from serving as vice president. The 22nd Amendment limits an individual to two presidential terms, but the position of vice president could still be on the table. And finally, question 14, can you please clarify any

12th amendment issues if it is a Harris-Newsom ticket? So what the 12th amendment says is that electors cannot vote for a president and vice president that are from their same state. So technically, if Harris were the presidential candidate and Newsom were her running mate, both of them being from California, the electors from their home state of California could not vote for both of them. The electors would have to choose one. The text of the 12th amendment actually says that if state electors, quote, vote by ballot for president and vice president, one of whom at least shall not be an inhabitant of the same state with themselves, end quote. What that means is that a ticket with both Harris and

Newsom both being residents of California, the 54 electoral votes from California would be void. Now, the amendment has no impact on all of the other states' electors' votes. So the electors in all 49 states plus D.C. can vote however they want. They can vote for both Newsom and Harris. They'll have no issues, which means that Harris and Newsom could still win the presidency since they only need 270 of the 538 total electoral votes. But obviously, California is a huge state for the Democratic Party, so they may not want to risk losing those 54 electoral votes, especially in such a contentious election. And because of that, Harris and Newsom may not run together.

Harris may choose a running mate that is from a state other than California. That is what I have for you today. Thank you so much for being here. I hope you learned a ton. I will be back tomorrow for my final episode until August 5th. So I will see you then.