Advisory Opinions - Alabama Against IVF

Episode Date: February 20, 2024

Sarah and David dive into an Alabama Supreme Court case designating embryos as minors and explain how this might affect abortion policy at large. The Agenda: —Has Alabama banned in vitro fertilization (IVF)? —Sarah’s experience with IVF —The post-Roe world —Climate scientist wins $1 million defamation case —Fani Willis and Nathan Wade take the stand —Donald Trump’s corporate death penalty —AO advice column: marrying a lawyer Show Notes: —David Lat's Original Jurisdiction Today's episode is supported by Burford Capital. Follow the link to learn more: http://burfordcapital.com/ao Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm Sarah Isger and I've got special guest David French joining me today. You may know him from his New York Times column and all the people who hate him on twitter david uh you know what i can't do it today i'm not starting with fanny willis i'm not starting with the trump civil verdict we'll get them because we have to that's what this podcast does but i actually wanted to start with two other cases that I just found more interesting.

One coming out of the Alabama Supreme Court and one defamation case that we haven't gotten to cover yet and we got some requests for. Please. First, though, if you remember last week, I mentioned that the Supreme Court is hearing oral arguments this week, but we weren't going to probably cover any of them because I thought they were kind of boring. And then I welcomed any of the councils of record to reach out and tell me why I was wrong. Indeed, I did get an email from one such council from husband of the pod's law firm. Oops. I'm sorry. I will listen to all the oral arguments and who knows? Maybe. You might find it interesting at long last. I might.

But first, David, the Alabama Supreme Court held that the 1872 Wrongful Death Act, which allows parents to recover for the death of a, quote, minor child allows the parents of a, quote, extra uterine child to recover as well. And if you're curious what an extra uterine child is, that would be an IVF embryo in this case. So these embryos were being stored at a facility. Someone got past security at the hospital, took a tray out of the freezer, dropped it, killed all the embryos, the three families then sued. And David, can you walk us through the legal reasoning on this one? Yeah, it's actually really simple. So the legal reasoning here is very, very straightforward, that there's an 1872 statute that says when the death of a minor

child is caused by the wrongful act, omission, or negligence of any person, the parents have a right to bring a lawsuit seeking punitive damages. There's a statute of limitations, etc. But then in 2011, the Alabama Supreme Court held that an unborn child qualifies as a minor child under the act regardless of the child's viability or stage of development. That was reaffirmed a year later. The parties didn't contest those holdings. It did not contest that the 1872 law applies to unborn children. the question was whether it applied to extra uterine children in other words this would be a frozen embryo outside the womb as you talked about sarah and they basically said uh no i mean of course it applies there's if if you said it

didn't apply and um you had some sort of advances in science, for example, that could lead to extra uterine development of the child that the wrongful death of a minor act would not apply then, even if it could gestate even outside the womb. So essentially he said, look, this applies to minor children. Minor children include unborn children. An IVF embryo is a minor child because it's a fertilized embryo. It's not the egg and sperm separate. Boom, done.

IVF law or IVF is covered by the statute. So many, it raises so many questions, Sarah. But the legal reasoning was very, very, very straightforward. There was one dissent, Justice Greg Cook. Interestingly, David, I was wondering if you knew Justice Greg Cook because he graduated from Harvard Law School in 1991 and he was an editor on the JLPP, the Harvard Journal of Law and Public Policy,

which is the Federalist Society Journal of the country, but it's at Harvard. And I will say his dissent read very JLPPE. It was very originalism, textualism, original public meaning, all of that fun stuff. Did you know Justice Cook? I did not. If he graduated in 91, that would have been May, June, and I would have arrived in September. Wow, you're young. I so young sarah thank you for finally acknowledging finally okay so justice cook had many reasons that he thought uh this specific alabama law did not but he was very clear it's not about should not just did not happen to cover these frozen embryos, including that, for instance, for the 100 years

or so after the 1872 Act, it didn't cover unborn children. And so he was sort of pointing out the judicial activism of the law evolving, if you will, to cover unborn children in the first place. The majority, you know, he sort of ticks through their four pushbacks to him it's why i love dissents and majorities that have clearly gone back many times because they're in conversation and this is definitely one of those conversation dissents but david what i think the real question that a lot of people will have is okay what now did alabama just ban iv IVF as a way to have children in that state? How do they, what do they do now? So remember when we talked about that Hawaii case, state Supreme Courts are the final rule for the meaning of a state law.

So the questions are, could the Alabama Supreme Court reconsider? Yes. There can be a motion for rehearing, et cetera, et cetera. So like this isn't done yet uh the mandate hasn't issued now that we're all into mandates issuing on this podcast so that could happen i think that's very unlikely given there was only one dissent two is there a vehicle to go to the u.s supreme court and claim that alabama supreme court's reading of their statute violates the U.S. Constitution or a federal right somehow. David, I've thought really hard about this. I don't think so. I mean, look,

yes, there are some options you could argue. Certainly the hospital in question here has actually pretty good options to me. They can argue they simply weren't on fair notice. There's a due process violation. There was no way for them to know that extra uterine children were going to be covered by this act. Therefore, they can't be held liable. But that doesn't fix the IVF problem because certainly moving forward, it would cover extra uterine children. People who want to do IVF in the state could then sort of collaterally challenge this, you know, sue the state as they try to enforce this and claim that their substantive due process rights are being violated. But you're kind of at the wrong Supreme Court for

that. Yeah. To find a substantive due process right to IVF. No. Basically, at the end of the day, the real question is, do you believe that a state could ban IVF treatment constitutionally? And the answer is, yes, they probably could. And the answer to what will happen in this case is, I think there will be enough political pressure on the legislature in Alabama to make an exception so that IVF can still happen in the state of Alabama. But that'll be a legislative thing. And as much as I think this opinion is dumb, I guess is the right word, it's actually what I want, right?

Like, they're giving their best read of the law, we hope, and now the legislature, it's their job to fix it if you don't like the outcome of that. This isn't set in stone. IVF isn't over because these justices said so. If IVF is over in Alabama, it will be because the legislature now doesn't fix their law. So don't blame the justices, blame the Alabama legislature. Yeah, I mean, this is, they're interpreting an Alabama statute that has been also interpreted, additionally interpreted in 2011-2012 to include unborn children. So this is a statute that they're interpreting. They are reinforcing

pre-existing precedent. The way you overturn this, if Alabama wants to overturn this, is via statute. And the interesting thing is, Sarah, I've seen some people say, no, it doesn't actually ban IVF. It's true. It doesn't. It doesn't. It says that if somebody disposes of an IVF embryo, then there's a lawsuit that is available. And which means that, what position does that put an IVF clinic in? Right. It's not that the law says IVF is banned in the state of Alabama. It basically says if you want to engage in IVF treatment as the provider, you are taking on

huge amounts of risk. No one's going to insure it. And so as a factual matter, there will be no more IVF in the state because David, it's not just, you know, that embryo gets destroyed through the normal course. And remember, most embryos get destroyed after a whole bunch of consent forms are signed. Right. But you know, anytime an embryo is accidentally destroyed, I mean, that's what happens in IVF sometimes. Accidents happen. Bad things happen. Power goes out. You know, did the backup generator go out? You just, again, you couldn't get insured. You'd be taking on too much risk. I don't see how it moves forward in the state without legislative intervention. Now, maybe the legislation could say something like extra uterine children are covered by this act if there is no attempt to get consent. There is negligence in allowing someone into a facility that then results in the destruction of embryos. There is no backup generator at all. But if that backup generator fails, then you're not held liable. They could create a whole framework that would still allow you to sue for sort of the negligent destruction of embryos, but under very specific circumstances versus right now where I think you have, by and large, ended the ability

of providers to do in vitro fertilization. Also, David, I should just have the little disclaimer because I forgot at the front. Both of my children are IVF children. You and I talked to do intro vitro fertilization. Also, David, I should just have the little disclaimer because I forgot at the front. Both of my children are IVF children. You and I talked just to let people into that. Like I actually called you quite a few times about sort of my moral and ethical qualms about all of this.

But I felt very lucky, which is a weird thing when you hear what I'm talking about, which is we had to go through many, many rounds. And each time we only ended up with one embryo. One of them resulted in Nate. One of them resulted in Case. We never had any extras, which is a blessing, but it also meant we had to do this a lot. Yeah, yeah. You know, Sarah, this is something that is going to expose some differences in the pro-life movement because there are a lot of folks who say, and I'll just sort of set it up,

some folks who say, okay, wait a minute, there's just no distinction here between an IVF embryo and any other kind of embryo created. And so, therefore, it's going to have the exact same right to life as any other embryo. And yet, while philosophically, sort of, if you're going to say, okay, if you say from the moment of conception, you have an independent human life, then whether it's created as part of an IVF process or a one night stand or whatever, it's still a person, right? And so, um, that would be, that's the argument that you protect all of those embryos just from, you know, from the moment they're created. And then the question becomes, well, what, what about this sort of indefinite freezing what is this what kind of status is that um and there are a lot of people

have thought this through philosophically within the pro-life movement and you began to see some of those arguments unfolding online i can guarantee you sarah in the rank and file world people have not thought this through this is this is not something that has been thought through because i think there's all sorts of very real life problems with all of it it's why i called you i wanted to talk through someone who would think through the philosophical side with me but also be open to talking through the real life side of it as well and how this actually will work um you know i'd had a miscarriage before. I have a friend who's had many, many, many miscarriages. Is this the type of law that if she keeps trying embryos,

hypothetically, let's say we're doing IVF, if she keeps trying embryos, but she knows that her uterine lining cannot support an embryo, at some point, can she get charged because she sort of is knowingly putting life in an inhospitable environment? You know, what about I had an embryo that didn't stick and there's like the emotional reaction to that. Like it does. Yeah.

You know, I, I do think about that. Yeah. But there's lots of, you know, in your body. We're going to do a little sex ed here for those children listening in the car.

You may want to. It's going to be pretty technical, though. Don't worry. But basically, when you have sex, there will be many times that a sperm fertilizes an egg and that egg never sticks. Many times. Many more times than you've ever had children. That's very common. Oftentimes, the embryo has genetic abnormalities, so it just sort of knows not to stick. Most miscarriages are caused by genetic abnormalities as well. Sometimes your uterine

lining isn't the right time. So the sperm may meet the egg, but your lining isn't fluffy enough. And so it'll just go right through. Again, like these are the real world things that happen. And so to say that each time that's a life that is dead, I understand there's a difference between the sort of overt act of smashing a Petri dish, but you got to think through to make sure you're not accidentally covering the realities of how a human comes into existence in this world which is a whole lot of magic and it really is magic has to happen in order for that sperm to meet the egg at the right time for it to be in the uterus for the uterus lining to be right for all the genetic things to line up so that embryo and blastocyst grows, yada, yada, yada, the placenta. I mean, there's a reason we can't make babies in washing machines.

Right. And this is also getting to this point, Sarah, that I was talking about earlier, that you do have a philosophical consistency in the pro-life movement amongst sort of like what you might call the pro-life elite that says, okay, yeah, IVF has got to go because IVF is, it's a human life. I see that as a principled through line. I can like philosophically, no question, but then you can't make any like, yep, okay, then you got to live with where you're sitting. But then you land on a larger pro-life community where this has been the case for decades or i don't know how long ivf's been around where you have extremely pro-life people they have pro-life sunday and then praying for

the success of ivf you know so you have it's always been seen in a totally different category that sort of the quest for IVF is seen as a very life affirming thing because you're trying to have kids and people have not thought through sort of all of the consequences of the remaining embryos. And this is going to be, this is going to be a fault line, Sarah, because I'm telling, you know, gosh, and I'm sure a lot of listeners know this as well, that they've been in congregations and situations where people are very, very, very firmly pro-life and also very, very firmly praying for the success of IVF. And then nobody kind of really asks about all of the other embryos that are often still out there.

And it's not that different from what some birth controls do. Some birth controls simply control the lining of the uterus so that nothing can implant. And again, that's what your own body does a lot of the time. So this idea that these embryos are somehow unique because they're frozen, not really. It's kind of what your body does all the time. And so the only truly sort of consistent pro-life philosophical position that you're describing, David, also has to ban all hormonal birth control, has to ban IVF. And then you've got to sort of mourn

the loss of all of these lives that you don't even know ever happened because they're not miscarriages, right? You were never pregnant, technically, which is interesting to say that something is a child before you would ever say that a woman is pregnant because you're not pregnant until there's an implantation. But you're saying there's a child, but there's no pregnancy. I mean, this gets pretty weird because, again, how our bodies work, there are billions of extra uterine children that die every day all the time because that's again how pregnancy works or yeah and i would say you know that the answer to that would be well wait a minute there's a difference between the work of

the natural process of the body which you know there's going to be a lot of pregnancies that are lost without even somebody even knowing about it, etc. And an intentional act of creating embryos and leaving embryos. But isn't that what sex is? An intentional act of trying to create life and then hoping it sticks, but sometimes it doesn't. So... Yeah, no, you're right. You're right. And again, it's all pre-pregnancy, not miscarriages. So like if you have sex at a time where you know your lining isn't fluffy, how is that particularly different than destroying an embryo? That's kind of what you did.

You are raising an issue that is 100% legitimate to raise, which is a lot of people have not thought this through. I spend a lot of time thinking about this. Yes, yes, of course. So many people have not thought this through and this is sort of another one of those elements where so much of the emphasis in the pro-life movement was on row and getting rid of row for a host of understandable reasons which i was on the front of the line cheering getting rid of row the problem is post-Roe, what can you do? You're landing into a culture that has had years and years and years of inculcation with this idea that there's a high degree of autonomy in this process, in this decision-making process. And then all of a sudden you're saying, okay,

And this decision-making process. And then all of a sudden you're saying, okay, no abortion and now Alabama, no IVF. That's going to land as a shock to an awful lot of people in the state who, by the way, are many of them, you know, this is sort of like an absolute core sense and source of both anguish and hope in their lives. And this is going to be hard, Sarah. This is going to be very hard and interesting to see how this all works out. The system may work exactly like it's supposed to. The political pressure on the legislature will result in legislation that is a compromise across all sorts of different paths. And that's how it's supposed to work. It's not supposed to end with the state Supreme Court. They're supposed to just give their best read and say, if we got it wrong, legislature, fix it. And they're the politically accountable branch. So we'll be watching, Alabama. Good luck.

And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day Good luck. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night.

I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, David. Next up, we get a lot of requests to talk about different cases. And most of the time, we can't do it or we take it into consideration. We're really grateful for your suggestions. But there is now one person when he makes a suggestion that we automatically have to do anything he says. And that is Kay, our reporter from The New Yorker.

David? Ah, yes. He sent in a special request as you know he's listened to every episode of the pod and wrote a whole profile about the pod so he was uh pretty angsty that we haven't talked about the stein verdict so david can you set this up because frankly it's sort of like in your wheelhouse for a few reasons here. Yeah. So this is a case involving a climate scientist named Michael Mann. And what Michael Mann, Michael Mann has long been, this is reaching back to well into the before times, the pre-Trump times. Michael Mann has long been one of the more prominent climate scientists in the United States.

He's also been a target of climate skeptics and um several years ago and when i say several years ago um i mean many years more than 10 um stein mark stein who at the time was writing for national review uh and then a a person named ran a person named ran sandberg who was at the competitive enterprise institute they were both critiquing man and and stein wrote in a national review i believe it was a corner post michael quote michael man was the man behind the fraudulent climate change hockey stick graph, the very ringmaster of the tree ring circus. Note the clever words.

So clever. So clever. So Mann sues Stein, sues Sandberg, sues Competitive Enterprise Institute, sues National Review, all for defamation for calling this fraudulent. And the case goes on forever. I mean, I've shared that old joke, the great thing about America is that everyone gets their decade in court.

Well, this was pretty literally the decade in court. So he sues National Review and CEI, Competitive Enterprise Institute, are punted from the case, basically on the grounds that you couldn't show actual malice. Man is a public figure. This is talking about his area of public expertise. So the actual malice standard applied in our CEI or out of the case goes to a jury. Jury, interestingly, finds defamation, only awards a dollar of damages, but imposes a thousand dollars in punitive damages against Simberg and a million in punitive damages against Stein.

And this is a case, Sarah, where, interestingly enough, I think the delay actually helped the plaintiff a lot. As thoughts over climate change have changed? Yes. Yes. I think the delay helped the plaintiff a lot because one of the objectives of the defense originally seemed to be, well, I want to put climate change on trial. This whole argument about anthropomorphic climate change, we're going to put that on trial. The longer this went by and the year as year after year went by, the argument that the climate change hockey stick graph was, quote, fraudulent, fraudulent, as opposed to wrong, that's a different, those would be a different assertions. Fraudulent, I think that argument only diminished in force and effectiveness. And so this is one of those rare cases where I'm thinking the delay worked out for the plaintiff's favor, but at the

same time, Sarah, a million dollar punitive award on a $1 compensatory award, that ain't happening. Right. I mean, the Supreme Court has said that it's a 10X due process check. And now that's not hard and fast and whatever, but 10x would be $10 if my math is correct. $10, right. Right. But I think that actually Mann just wanted the defamation verdict. That's what he wanted. So how does this change journalism, if at all?

What happens from here? And what did we learn, if anything? Yeah, you know, this changes journalism a lot less than the Dominion settlement does, than the Rudy defamation verdict, than the Alex Jones. I mean, we have some colossal verdicts right now out there with others coming. I think that this would have been a far more consequential verdict two years ago. As of right now, you have abundant evidence that plaintiffs can file effective defamation lawsuits against grossly irresponsible reporting. Prior to the Dominion

settlement and some of the settlements we've seen around the Trump entertainment media complex, is there just hadn't been a lot of successful defamation cases, Sarah. There just hadn't. But it's a different world now. So you know this case in a lot more detail than I do. My understanding is Mann was also at Penn State where Jerry Sandusky was, for those who remember this. And there was some other line about he's like the Jerry Sandusky of climate change, but instead of molesting children, he molests data. Was that a finding? Because that seemed pretty like fictional, hyperbole, etc. I don't see how that's defamatory.

Yeah, I don't know if that specific statement was held to be defamatory. defamatory yeah i don't know if that specific statement was held to be defamatory um i'm mostly interested in the fraud the assertion that the hockey stick was quote fraudulent i remember this was of course got i mean it was more than a decade ago right but it was the idea that he had um you know manipulated the data and one side said yes but all you always have to move the data in order to get any sort of narrative out of the noise. Otherwise, it's just all noise. And then the other side was like, aha, see, you were trying to get a narrative. And this is how basically all social science works, which is why we have a replication crisis. It's why there's a publication bias that if you can get the narrative by,

some people say, manipulating the data, some people say picking the data that best fits the situation, however you want to think about it. So to me, I take your point about how climate change opinions have changed over a decade, but it also seems like we've learned a lot more about the problems with scientific publications that like if you find something cool you get published if you find the thing isn't cool then you never get published and we never hear about how like rain is wet so i guess to me like the word fraudulent in this case where it's about whether it's manipulating data or whether it's simply doing science that that does seem like more opinion to me.

That's what always to me was the key question in the case was that word fraudulent. Because on the one hand, it is true that it can be defamation. Sarah, if I say you're a thief, then that can be defamation. Oh my God, I do have a confession. When I was a freshman in college, I was out of Wildcat box and everyone thought it was like cool to take muffins from the dining hall,

even when you were out of Wildcat box and like hide it in your pocket. And so I did it. And my sophomore boyfriend at the time gave me the most morally, like he was by the way, the like communist socialist. And I was the, you know capitalist republican and he gave me this lecture about how i was now a thief yeah and i've

never never ever done anything like it again it was so convicting wow okay so i have to choose a different way of defaming you than thief oh my goodness that's triggering to me but there there is a a phenomenon where there's something that could in certain circumstances be a factual assertion and other circumstances could be an assertion of opinion so for example if i say someone has been convicted someone is a convicted rapist let say, that is an assertion of fact. And if they're not a convicted rapist, well, I'm in a world of hurt, especially if I've been negligent, if they're not a public figure, or if I've demonstrated actual malice, if they are a public figure. But then there's this other thing where someone says, well, I think the conduct that you engaged in amounts to fraud. the conduct that you engaged in amounts to fraud. That's my assessment is that your conduct amounts to fraud. That's a different deal, Sarah. I mean, yeah, I'm not necessarily convinced.

I think the language, the question is, do you just want to hurl around that word in sort of a moral sense is a really good question, but feels a lot like opinion to me in context. I don't know. What do you think? Yeah. I mean, you also mentioned that Stein represented himself in the trial. this big controversy. There was a controversy during the case involving, you know, because he published what he published in National Review, and how much were the two, was Stein and National Review's interests aligned, was a big question in this. And so part of the question was, how much was, you know, how much did a Mark Stein want to put climate change on trial versus just narrowly defend the defamation case, which are those are different things. All right, we're moving on. And I'm sorry, but we finally got into this portion of the podcast. So, David, there was the hearing in the.

Well, side hearing. OK, whatever. Let's just start from the beginning here. so in the side hearing about a side piece yeah yeah side hearing about a side piece so okay there's the georgia case against donald trump and his co-defendants related to their efforts to fraudulently change the outcome of the 2020 election mike roman is one of those co-defendants he uh files a motion saying that fonny willis the elected district attorney for fulton county should be removed from the case because she has been conducting a personal sexual however you want to call it relationship yeah with one of the outside special counsels that she hired to work on

the case now the theory of why this would affect his case at all versus this is just like an internal ethics problem for her goes something like this, that she's broke, there's a lien on her house, she makes this, you know, government salary, not much, you know, compared to her lifestyle. And, you know, her boyfriend and her concoct this plan. If they can come up with a big enough case that's complicated enough that she has to hire outside counsel, she can pay him an exorbitant amount of money, circa $630,000, and then he can funnel that money back to her. But in order to do that, they need a huge case. Like for instance, a case against a

former president and more than a dozen co-defendants that's RICO that requires a whole bunch of extra hands to help. So if they can prove that, then yeah, she would get removed from the case. So there's been these filings back and forth, right? That when the relationship started, how much he got paid compared to the other special counsels, whether he was qualified to be one of the special counsels, and these luxurious trips that he kept taking her on. Is this the proof of the kickback? So her responses are, our relationship didn't start until after he was already a special counsel. I reimbursed him for all of the fancy vacations and he's wholly qualified. Then the Mike Roman team was like,

we have proof that she just lied to the court. So there was a hearing about all of this and Nathan Wade, the special counsel and Fonny Willis, the elected district attorney took the stand in their defense. And I, I mean, I want to use that loosely because this, of course, they're not on trial and this is a motion that we're talking about.

And the reactions, David, have been a lot. So I would like to state up front one of my political rules because we don't talk about politics a lot on this podcast anymore. But here I am with, you know, 20 years of campaign experience. Yeah. If you hate someone who's running for office or at a debate performance or really anything in politics, the first question you must ask yourself is, am I the audience for this? Now, maybe you are. And if you hated it, then that's not good for that person.

But oftentimes what I find is that, you know, a Fox News viewer will tell me how much they hated Pete Buttigieg's press conference. And I'm like, you weren't the audience. You weren't persuadable on this. No. So on the Fonny Willis thing, I got a whole lot of texts and emails from people who weren't the audience, who really hated it. And to be clear, David, you and I weren't the audience either. No, not the audience.

But it is worth noting to everyone who came here to watch us dunk on Fonny Willis, she is an elected district attorney in Fulton County who has her eye on bigger and better offices in Fulton County and in Georgia. So unless you're the audience of people who may or may not vote for Fonny Willis in any of those elections, then it doesn't really matter what you thought of her performance, actually. Doesn't matter one bit.

She had two audiences there. She had the judge and she had the elected public. And I think it's interesting her strategy. So with the elected public, she's, remember, she's in a very blue district that has zero love for Donald Trump and all of his allies. And so absolutely being completely defiant to the attorney on the other side, yeah, it might've made you mad but i guarantee you a lot of people really really liked that in her core constituency there is just zero question at times and charming at times um again for that audience i think but that's not what this podcast

is david this podcast is about the law and that was the other audience. Yes. Yes. The judge and other lawyers. That was catastrophic as a lawyer watching it. So let me just set the stage for what you would have seen if you had watched this hearing. There was a lot of it. It was over two days. But the part that I think stuck out to most people was the cash part, David, right? So like, Yeah, yeah. Did she actually reimburse her boyfriend for all these fancy vacations? Because this goes to whether she was profiting from hiring this outside counsel who she was then sleeping with, yada, yada. And she says, yes, I reimbursed him. They're like, great, where are the receipts? And she's like, I don't have receipts because I paid him in cash. And they're like, we're talking thousands of dollars. And she's like, uh-huh. And they're like, you keep thousands of dollars in cash in your home just randomly at all times?

Yes. Great. Where's the ATM receipts where you went to the ATM and get this cash on a yearly basis or a monthly basis? You go and just take out another $10,000 in cash. And she's like, nope. It's just there. Okay. What job did it come from? Money is fungible. That was literally her answer to that question. I was like, I don't think that word means what you think it means. To anyone, any lawyer watching that and presumably the judge, it was a not credible answer to this question. Yeah. And his answer is like, okay, what'd you do with the cash did you deposit it no you just now have all this thousand tens of thousands i've got he's got valets to tip sarah

right and then the questions that i had about this were like okay so she's clearly depleted her cash resources enormously in paying him back in theory so does she still have cash in her house or no that's all gone now and like there was a tax lien on her home so you're telling me you had fifty thousand dollars in cash at your house but also you couldn't pay the taxes on your house what none of this makes any sense yeah and then like she'd get asked questions about you know basically did he ever spend the night at any place that you resided from 2019 to 2022? And she kept saying, he never came to my house on whatever street. Well, that's not what I asked. I asked, did he ever spend the night at any house

that you spent the night at from 2019? He never came to my house. Finally, I mean, this went back four or five times. The question got asked and she refused to answer it with the question that was asked. And the judge had to step in and be like, let me try to explain the question to you. But this is a smart woman. Fonny Willis is not stupid. She went to Howard University for undergrad. She went to Emory Law School. This woman's IQ is just fine. So if you thought that she was obfuscating, it's because she was obfuscating. Yeah. Now, here's what's interesting to me, Sarah, because I was thinking about this dynamic.

On the one hand, elected official, absolutely defiant towards a shared enemy in the opposing council. And then you have the audience of the judge. And then you have the audience of the judge. And the way she reacted, extremely defiant. I can imagine working in some of the small town places that I've practiced and sort of dipped my toe into over the course of the years where the judge and the DA are friends. They're tight. Like, how dare you? The judge would literally share the indignant response of the DA. Like, this is all, we're all in the same club here, and you're coming from outside and attacking me. Don't, and especially on a personal matter, I could imagine in some of the communities where DAs and judges and everybody's very tight, very close.

I don't see that in this circumstance. This is a big jurisdiction. Lots of judges just don't see that same kind of dynamic. And so I'm really curious as to how the judge is going to react to this. And honestly, Sarah, when you articulate the theory of why she should be disqualified, it's a major stretch. That is a theory. It's a major stretch. into a bigger scandal than they needed to have because they were trying to minimize the relationship when maybe the actual answer is, yeah, we were in a relationship, but the idea that this prejudices the defendant is absurd. what are you talking about this has been a huge win for her huge she is now with universal name id in the state of georgia and certainly fulton county and as someone who's being uh unfairly maligned for having a consensual relationship with a really good looking dude

uh by the way they broke up i guess like this summer i mean there was so much drama on the stand in this whole so much trauma uh as far as what the judge will do i don't think they met their burden um i think that there's a chance that she has sort of accidentally maybe admitted to breaking other laws while she was testifying to some of this i i'd have to think through some of like all of this cash moving around you can end end up with some tax problems pretty easily. And certainly like if there's a lien on your house and you claim not to have the funds to pay it in order to get like longer to pay that off, you know, who, I don't

know is the answer, but there was a whole lot of stuff she said that could have a whole lot of implications for her, her law license, her, you know, sort of ethical stuff in the office. I don't know. But the point of this hearing was whether she'll be removed from this case, whether there was anything that prejudiced the defendant in her prosecution and Nathan Wade's prosecution of this case. I don't think they got there. No, I don't think they did either, Sarah. I don't think they did. I mean, it was a big stretch. either sarah i don't think they did i mean it was a big stretch and for which you know as i look at the evidence that it feels like there's a preponderance of the evidence that maybe this thing was going on for a bit and so i was just gonna say it's not by the way that i like there was one witness who said the relationship started in 2019 she says it didn't start till 2022 and

remember she files in court that it doesn't start till 2022 so but again even if it did start in 2019 they didn't meet their burden for prejudice against the defendant that would just be like being held in contempt of court maybe being brought up on ethics charges to the state bar but like one witness yeah that i saw a lot of people in sort of the right-wing world online saying, oh, they caught her in perjury. That's not how it works. They have a witness who offered testimony that contradicts her testimony. That is not proof of perjury. Contradicting testimony is not proof of perjury.

proof of perjury. And so, yeah, my best guess on this, Sarah, is that she will not be disqualified because of a failure to find prejudice to the defendant. And then this is just going to kind of peter out that maybe somebody files a bar complaint, but the bar is not going to sit there and sanction somebody based on a former friend's testimony about when a relationship began. You know, I talked about how she benefited, but of course the right benefited as well. This is sort of the Donald Trump world, right? Everyone is actually getting exactly what they want out of this hearing. The right now wholly believes that she is corrupt, a clown, just out to get these people, like all the things, right? And the left believes that she's being unfairly maligned and attacked because of her race. And basically everyone won except, I don't know, to some extent, the criminal justice system,

which looks a little clownish. Yeah. Yeah. No, it's definitely both of the polarized extremes won here. The left got a hero, the right got a villain, and a bunch of the rest of us are just sort of wondering, why can't we have a normal prosecution for once? But yeah, I'm with you. All right, moving on to the civil verdict against Donald Trump. This is the forever case, man. Like, if you feel like it's deja vu all over again, it is, but we're back. So in this case, Judge Ergoron issued a $355 million penalty against Donald Trump, banned him from participating in New York businesses for three years, I believe it was two years for his sons, and ordered the so-called corporate death penalty, the revocation of the operating certificates for certain Trump businesses in New York,

and canceled the LLCs. A little bit to talk about here. David Latt, I thought, did an amazing write-up in original jurisdiction of sort of each piece of this. But I wanted to read David's grounds for appeal, which he also, he got from an outline in Reuters. It's just, it's really well done. So we're all going to use the same outline. Yeah. Love it. One ground for appeal. There was no fraud or illegality because there were no victims. The banks that lent to him actually made money on their loans. Now, I've heard this a lot on sort of the Trump voter side of things. Yes. But the argument against that is that they would have made more money if it had been sort of accurately assessed because of the interest rates would have been higher.

They gave him a particularly low interest rate because of the quote unquote fraud. So that one, I don't think is the best grounds for appeal two because they were victims in that sense because there's a delta between how much they did make versus how much they could have made that's the victim status two yeah the lenders did not rely on his supposedly fraudulent statements since they were sophisticated parties who did their own due diligence and came up with their own much lower estimates so this i find incredibly persuasive for a trier of fact. I'm not quite sure why that's appellate grounds, but I totally agree that there was no real evidence that I saw that the banks ever relied on his fraudulent statements. That's a huge problem when you're

finding causality. But again, for the trier of fact, which in this case is the judge and you know the grounds for appeal on that are basically going to be that it's it's not like it's so unreasonable for him to have found that that it's you know miscarriage of justice basically three the dollar amount of the penalty is excessive in relation to the alleged fraud yeah maybe four in light of the foregoing tish james the attorney general overstepped her authority they're not great grounds for appeal david no and you know there's this i think let's back up a little bit because this was brought under a new york law that is just goes by the name section 6312 and this new york law is unusual. It's unusual. And in here, let me read,

this is from the actual summary, the actual ruling issued by the judge. And this is really key. Okay. So this is just a little paragraph here. In a 35 page decision and order dated September 26, 2023, this court granted plaintiffs summary judgment only on liability and only on the first cause of action, which was 6312. Simply put, the court found that plaintiff had capacity and standing to sue, that non-party disclaimers and party worthless clauses do not insulate defendant's material misrepresentations. And here's the key part here, Sarah, that intent, scienter, and reliance are not elements of a standalone 6312 claim. The disgorgement of profits is an available remedy and that the subject financial statements materially

misrepresented the value and needless of properties. Let's go back to that. Intent, scienter, and reliance are not elements of a 6312 claim. So he ruled as a matter of law that they didn't have to prove intent to recover, scienter, which is sort of like a criminalized version of intent, and reliance. In other words, these are the lenders. That was a legal ruling that reliance was not an element of this claim. So I do think that is very interesting. But what we have here is a really broad law, Sarah. Very broad. Sort of like the Jack Smith January 6th criminal laws, I would argue. may apply for an order in joining the continuance of such business activity, etc., etc. So, you know, normally when you're dealing with commercial fraud, if I've been defrauded, I'm the one who's going to charge into civil court and recover for the

fraud. This essentially says, no, if somebody's engaged in fraudulent activity, here comes the attorney general, and that's not always that unusual, but here comes the attorney general able to enjoin the fraudulent activity, but under this incredibly broad definition of fraud that is wildly broader, apparently, if it doesn't even include reliance, for example, or intent, than many other ways of defining fraud. And so... And it appears to be only used against Donald Trump. Well, I think it was brought against, you know, there are 6312 cases that have been brought against other major corporations, but not obviously under the same fact patterns. Last thing, David, we got an interesting sort of reverse advice column question that I wanted to read to you from Preston. A bit of backstory regarding our particular relationship. I started dating my wife in undergrad after college. She decided to go to law school. She got into a good law school,

top 25 at the time, and ended up doing very well and securing a job in big law. She summered at her firm and accepted the post-graduation offer with some reservations, knowing the demands of the job, but also knowing that she wanted to challenge herself. She is someone that has always excelled in school, and through her combination of intelligence and work ethic, has afforded herself many professional opportunities that her dear husband squandered at frat parties. We got married after she took the bar last year, and she started as an associate with her firm in October. Somewhat unsurprisingly, she has found it at times moderately stressful and other times highly anxiety-inducing. She is

not highly money-motivated, and I believe her nascent professional interests lie more in judicial or academic work rather than the corporate litigation she is currently working in. The ask here is how I should go about consoling her on those particularly rough days in the life of a junior associate in big law. While I'm not necessarily asking for marital advice, though you both speak dotingly about your own high-achieving spouses, I really feel as though I'm out of tools in my husband utility belt. This is far from the first time I've supported her in stressful seasons of life,

but when she was a student, I could relate to writing papers, cramming for an exam, or having professors with high expectations. Now, though, I truly have no context for what professional expectations are appropriate and which aren't. The primary stressor isn't even the brutal hours, but more so the perceived inability to make even the smallest mistake doing work she's attempting for the first time in her young career and the assumption that everyone else works quickly and error-free in their practice of law. The professional expectations levied on her early in her career are vastly different from my own, albeit in different fields. I'm wondering if you have any advice, resources I could pass along

or use in my never-ending pursuit of being a supportive husband. How just lovely is that? I just, I really enjoyed it. That's fantastic. Yeah, I love it. So thank you for the email. I think that is such a wonderful way to see this thing that's clearly causing tension in your marriage, right?

That A, she's in this highly stressful job, and B, you don't, you can't relate. You don't know what she's going through. And instead of making that a source of resentment, tension, friction, you're turning it around of your own failure of you don't know how to comfort her and be there as a supportive husband.

Your utility belt is empty. I think that alone is a sign that you're doing some really good things in your marriage. That your first question is, what can I be doing better? So first of all, good for you. Well done. But David- Now what can he be doing better? What should we put in his utility belt? Being married to a lawyer.

Okay. Can I go meta for a minute? And then before we get super practical, there is one of the biggest sources that I have seen of attorney dissatisfaction, One of the biggest sources that I have seen of attorney dissatisfaction, especially early in your career, is the giant delta between expectation and reality. And I think law schools way to describe what the experience of being a young associate in big law is, imagine a medical residency except you're paid better. In other words, you're going to work a lot of hours. It's going to be really frustrating. Not everybody's going to treat you well. The expectations on you versus your ability are going to sometimes feel sky high. And all of this, if you say medical residency, people say

that checks out. You talk to med students and they're like, oh, I'm bracing for residency. You know, everything is sort of my expectation is these next several years are going to be really, really hard. And I think we don't do that with young lawyers. You know, when you summer, don't do that with young lawyers. When you summer, the experience is pretty darn nice overall. And yeah, you do work hard sometimes, but there's a spirit of camaraderie and you've got your summer class and there's always fun to be had at some point during the summer. And then you start and you've just come out of law school or maybe you've come out of law school followed by clerkships where you're going to actually see lawyers at the top of their profession,

some of them, not all of them, but you'll see some of them at the top of their profession arguing really fascinating cases. And the next thing you know, six months later, you're doing 14 hours a day of document review in a basement that never can quite seem warm enough. And because of men, David,

because of people like me. Yes. And then the delta between expectation and reality is just giant. And I felt it like in my bones that, wait a minute, is this what I'm supposed to be doing? And why do I feel inadequate at doing something that doesn't even really ignite my sense of justice? And when I began to have that residency kind of mindset, it helped me reconcile my situation. Oh, this is paying dues. And this is what paying dues looks like. This is what getting experience looks like. And why did no one really tell me this was going to be the case? And I feel like, you know, when you readjust that delta between expectations and reality, it really can help.

And then the other thing is, this too shall pass. It is very hard to feel inadequate and inexperienced and then there's an almost imperceptible shift that occurs when suddenly you one day you'll wake up and you'll say they're asking me questions now and i have answers for them and it's a very satisfying transition but before that transition it's deeply frustrating. So I'm a less generous spouse than you are, Preston. You sound like such a kind, thoughtful, empathetic person. So I'm giving you advice as someone who is married to a lawyer who can be in a stressful job, but from a less kind place. Let's go.

Yeah, so take that for what it's worth. But I have often seen that there can be this sense, this unstated sense of burden of the primary breadwinner, of the golden handcuffs. And for those who don't know the term golden handcuffs, that's this idea that you're getting paid this amount of money. So then your lifestyle kind of catches up with the amount of money you're being paid so that you can't leave the job that pays that amount of money and no other jobs pay that amount of money. And so the golden handcuffs are the nice house,

the nice car, the kids all in private school. So yep, you've got to stay a partner at the law firm. So something that I like to remind my family from time to time is that you have no idea how cheaply I can live. You have no idea how much I don't need the car, the schools, the fancy dinners. I'll move out into the country in a heartbeat and it'll be me and my raccoons and the boys are going to be just fine. And it level sets a little because I think it makes them feel like they actually have tons of options. So if they stay in this job, that's the choice. You're getting to make that choice. You're not trapped there. We're not keeping you in this horrible place. And so it does sound like she's probably making more money right now. And just a reminder

that if she wants to go pursue that academic job, that your lives do not depend on her making this salary. Now, there's good reasons to stay an associate at a big law firm, even if you want to go into academia, or especially if you want to go be a judge or anything else, because you're actually learning really valuable experience as miserable as this is. But it can be helpful to remember that this isn't forever. And if tomorrow I want to quit and go be a lifeguard at the pool, my spouse will support me in that too. It's not about the money.

Well, and I'm so glad you raised that concept of golden handcuffs. Because if I had one piece of advice to discontent young associates, it is that. It is don't be bound to your income, especially at this early point in your life. And it's very easy to get bound into it because you're spending so much time at work that when you're not at work, you want to enjoy the spoils of the work. And so the cooler apartment, the better vacations, all of these things are compensation for what you've been through. And so you sort of feel- I've only got two hours. Let's see if we can do two Michelin stars in two hours. Right, exactly. So it feels like if you don't spend the money in some ways, it's just a bad raw deal all around because I'm working all these hours. But then when you

look at it and you say, I really want a change in my life. I'm 29 years old and I want to work less. I want to have more time, maybe start a family. And by the way, I need $350,000 a year. Right. Then your options kind of narrow, Sarah. There's just not a lot out there for you. But if you've lived modestly and you don't have to have that massive compensation

and you can say for substantially less, I can do what matters more to me, then that's when you begin to see sort of that value of the law degree. But if you get those golden handcuffs, you're gonna find yourself behind the eight ball for a long time. And I really, I do think it's mental as well. I think you will be happier in your job at Big Law making all that money if it's not about the money. If you realize that actually

you're doing this, like you have a choice, you could go do this other job that'll make a lot less money, but you're going to stay in this one because you're getting all this experience. The partner who's mentoring you is horrible, but also really, really good. And so you want to do this for two years. Then you want to go on the job market for academic jobs. Then you want to go look at US attorney positions or whatever. And so it becomes a different... Why you're in that job and why you're taking on this stress is different. Just money. I mean, there's endless books about this. I read one early on in my campaign life where I had staff where I could not use money to motivate them of how to motivate employees when you don't have the option to give them a raise, basically,

or certainly not one that would be substantial enough to make any difference. Fascinating literature out there on this, which is basically money doesn't motivate a lot of people. It can trap them. It can make them feel like they don't have choices. But if you have a miserable job, paying someone a little bit more money or even sometimes a lot more money won't make the job less miserable for them. And the same is going to be true for yourself. You need to find a reason you're in this job aside from the money and time out footnote unless you need to support a parent or you know like there are reasons that you absolutely take the job for the money and i don't want to minimize the possibility

in in very specific circumstances you know you're paying for the nursing home um you know your mother is disabled all of these things that are are life events that are outside your control in which case you absolutely need the money. And that is just really tough. But it does not sound like it's the situation in this marriage. Yeah, yeah. And that's such good advice. It's such good advice. And the one thing that I would also say, if you are feeling discontent in big law because

you're saying, wait a minute, Sarah and David, I'm hearing you, but it's worse for me because I'm working all these hours. Yeah, I'm getting a great salary, but what experience am I getting? I'm doing document review. And that's a question I actually asked myself, especially very early in my career, because what I was doing was at one point, I remember being up until one in the morning supervising paralegals who were sending out FedEx packages. That was literally what I was doing at 1 a.m. And it just felt so dumb and silly. But then over time, what I began to realize is, with each passing month that I was spending in big law, I was spending another month exposed to different aspects of the practice of law at the highest levels. And so when I was reading a brief

that was drafted by a senior associate and a partner, I was reading one of the better briefs you're going to read. When I was reading opposing counsel's briefs, I was reading one of the better briefs you're going to read. When I was reading opposing counsel's briefs, I was reading one of the better briefs you're going to read. I was marinating in the practice of law at a very high level. And I was amazed at over two years, three years, four years, five years, how much it imprinted on me, just the certain habits. This is how you do discovery. This is what a good brief looks like. All of these things just begin to imprint upon you over time. So even this frustrating early start, it's just paying dues. That's what it is. Now, some places will artificially suppress you, and it really isn't great experience, but it's a functioning workplace. Once the dues are paid, you start to see the reason for them in the first place.

And look, I actually think, you know, there's campaign equivalents of this, right? Being the guy who oversees the FedEx paralegals at 1am, well, then when you're the partner, you're going to sort of know the reasons why you want an associate overseeing the FedEx. going to sort of know the reasons why you want an associate overseeing the FedEx stuff. There's so many campaign equivalents to that of like, yep, I remember the dues paying part and when it felt so pointless. And then when I was in charge, now I know how all the different cogs in the wheel have to work and where I need to put my people. And if someone's really good at this, I actually need them to do some of the stuff that's not very fun. That'll seem really pointless. And, you know, one of my big things, for instance, night before election day, remember I did election day operations, making sure everyone goes to sleep. Because you realize that everyone's going to want to make that last push and like stay up and, you know, there's adrenaline going.

It's like, no, because if this thing goes to a recount, you've got four days that you're not sleeping afterwards. So I really need you to sleep tonight. So like having been there on the front end, you then know when you're the boss to send everyone home at 10 p.m. that night, even if everything's not done. Because sleeping then is more important. If there's a recount, you're not sleeping the next night.

So, you know, there's little stuff like that. You just, you don't know until you sat in the warehouse at 1 a.m. Yeah, no, exactly. And when I became a more senior attorney, one of the things I tried to do with the associates I supervised or the younger attorneys is always explain why I was asking them to do something. So true. That helps always. Hey, this looks like I'm just wasting your time and it's busy work. But actually, you know, I did it and here's what I learned and here's what I think you'll get out of this or, but sometimes you don't have time for that and I get it.

Yeah. That's how it works. One last thing on it, Sarah, I would say part of what's happening in some of these dynamics is the partner, the spouse who is working these hours feels sometimes crushingly guilty for working the hours. And if you as a couple are united in the position that for this period in this time of life, this is the right thing to do to work these kinds of hours, you can actually go a long way towards sort of soothing the feelings of the spouse by saying, I get it. This is fine. This is okay for this time of life to do this. Don't worry about me. Everything's fine. I think that that can be a really valuable thing because I know what it's like to feel that sort of sense of this is too much. I should not be doing this and you know and then nancy coming in and saying no i think this is what we're supposed to be doing right now at this point in time not forever necessarily but right now this is okay and that you can just have this

okay nobody's mad at me i'm just doing what i got to do i'm not failing at everything i'm not failing at work when i mess something up and then I go home and I'm failing because I wasn't home earlier. And, you know. Right. That's called being a mom. That's when you actually get to fail at everything. That's when you're failing at momming, you're failing at work, you're failing at your spouse.

Just constant different levels of failure and trying to manage what's an acceptable level of failure in each of those areas of your life. What's an acceptable level of failure in each of those areas of your life? And just assuring your spouse that they're not a failure. It can be very, very good for a marriage and for mental health. Yes. I got the nicest email from a new listener who said that she was a little concerned about everything I was taking on in my life and hoped that I was doing okay. And I just want to say, thank you for your concern.

It's not misplaced. I'm concerned sometimes. Yep, I'm failing in every category. It's just a question of how much failing. And that's what we do as moms, I guess. I now, I understand a whole area of literature that I didn't get before. What a treat. Imposter syndrome, failing. Yeah, all of it. Dads have it too, Sarah. No, they don't. Shut up.

The mental load is over here. I think it lands on us differently, you know, of course, but yeah. I think there's primary breadwinner mental load that we don't talk about a lot because we just think that like, I don't know it's like white male privilege problem or something when in fact i can't imagine having that mental load all the time on me i have a whole bunch of other mental loads on me all the time i mean i know exactly how many you know laundry pods diapers we have left we're running out of diaper cream right now is that on the way was it delayed by amazon what are we going to do if we don't have that? You know, like all of that is on me.

You know, when the pediatrician appointments are, is he constipated or does he have diarrhea? Is that mucus in the stool? Should I be looking for blood? Do you think he has that out? I mean, I cannot tell you what my internal monologue is every second of the day, but I actually do think there's an equivalent

for the other spouse. It's just different yeah yeah now there are some marriages where things are truly unbalanced in super unhealthy ways yes um for sure but in functioning marriages that are um where there are divisions of labor that are different depending on the marriage there isn isn't any one cookie cutter. Then you really, that Chesterton quote comes to mind, be kind, everyone is facing a battle. It just lands differently.

And with that, for the next episode, we will be doing Inns of Court. And if you don't know what an Inns of Court is, frankly, I don't really either. And it's been 20 years. So we're going to try again to explain to sarah what an inn of court is and what she's been missing out on this whole time with special guests drum roll judges jennifer elrod and charles eskridge we'll see if they'll sing for us i don't know

until next time bye Bye. Accessibility is making your education work for you, regardless of circumstance. At Athabasca University, we have no entrance requirements for undergrad programs and automatic acceptance. If you have the desire to learn, AU is a great option. Open your options with a more accessible online degree and choose an education that works for you, not the other way around. Find out how at athabascau.ca options.