OA412: Examining Kamala Harris's Record

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 412. I'm Thomas Smith, that's Andrew Torrez, and we have our ticket, folks!

0:01:25 Andrew: We do. I am excited. How are you doing Thomas?

0:01:26 Thomas: Yeah, I just can't believe he chose Marianne Williamson. It's the weirdest thing.

0:01:34 Andrew: Well, we're going to make America crystal again.

0:01:37 Thomas: Yeah, we're having to record this in advance, but we just assume we know who it is, so we'll just... So Andrew's Got your breakdown of Marianne Williamson, everything you need to know. Okay, we are done knowing everything we need to about Marianne Williamson, now we can move on to Kyle Harris, that was it, that was all, all the things. How's it going, Andrew?

0:01:41 Andrew: Yeah, bold prediction.

0:01:55 Andrew: Know, it's, it's going better now than uh, than it was 30 seconds ago, that was a fantastic introduction, I love it. How are you doing, man?

0:02:00 Thomas: Oh. You Know, Arlo had a fever, which in today's era, uh, very justifiably means both kids are home for a long time, so, so that sucks, but uh, you know, we're making do, so if you hear any screaming, slash, it's at any, any moment, raging, uh, screaming, naked Phoebe could run through here and do you just, it's mess. You never know with kids, with, with, uh.

0:02:13 Andrew: Yeah. Well, In solidarity, I am going to be raging, screaming and naked throughout this entire record.

0:02:26 Thomas: Oh, okay. I, you know, I, I don't see how that helps, but okay. It's fine. Just, it's fine. You can do it.

0:02:33 Clip: He who questions training, only trains himself at asking questions. What?

0:02:33 Thomas: Um, Mason Stark writes, hey Andrew and Thomas, there are a few things I want to add to your discussion on the the census. I am working as an enumerator with the census. I like that. I was just trying to figure out in my mind, like, can I be a denominator? Never mind. I don't want to go. Enumerator with.

0:02:57 Andrew: I was thinking of, like, the, the titles from, like, the Handmaid's Tale, right? Like, cause, cause he writes it like I'm a capital E enumerator. It's a, it's pretty great.

0:03:02 Thomas: Oh, yeah. Yeah. Yeah, from the census, knocking on doors to complete questionnaires in person. And one thing I've heard from multiple places, including on your show, is that the door knocking is not started yet. That's not true, at least in my area of Washington State. We started door knocking over two weeks ago. One more thing I'd like to add is that the census needs more enumerators. Ooh, hear that everybody? You too can be an enumerator. So a shout out to anyone who is looking for a fairly high pay, flexible hours, and a morally good job. Please apply.

0:03:40 Andrew: Yeah, I thought that was great. So that's, that's why we gave Mason a, you know, a couple of minutes at the start of our show. Thank you.

0:03:45 Thomas: Yeah. Thanks for writing in Mason. That's awesome. You do that enumeration. Keep

0:03:50 Clip: If in any U.S. Attorney's office around the country, the head of that office, when being asked to make a critical decision about, in this case, the person who holds the highest office in the land, and whether or not that person committed a crime, would you accept them recommending a charging decision to you if they had not reviewed the evidence? Well, that's question for Bob Mueller. He's the U.S. Attorney. He's one who presents the report. But it was you who made the charging decision, sir.

0:04:21 Thomas: Okay. Andrew, finally, we're going to talk about Kamala Harris. Why don't you tell us what your kind of overall goals here are before we get to the vast research that you've done? Well,

0:04:30 Andrew: So, I want this to be as as even-handed a resource as as we can give about Kamala Harris's record. Neither you nor I, uh, were Kamala Harass supporters in the primary. Uh, we've made that very, very clear. Um, the the the

0:04:52 Thomas: Not as our top choice, but it's not as though we were like anti or anything.

0:04:52 Andrew: Right. Yeah. Yeah. We're We're Democrats, so, um, I, I think there's a lot of information right now that's that's being filtered out. And it really is falling into two categories, right? Like if you watch mainstream news, like this is just what what happens, right, when a presidential challenger picks a vice presidential running mate. You get bio and, you know, puff pieces, and basically, like, introducing this person on the national stage, right? And so there's a lot of superficial coverage about Kamala Harris right now. And, look, like, that's great. Like, you know, for that you Now, 30 percent of America that has no idea who she is. Good, right.

I get you know, if you're an Opening Arguments listener, you probably know who Kamala Harris is, uh, and and that leads really into the second yo, yeah, um, to the second category, which is motivated pieces from all sides are sort of coming in. Some are politically motivated pro Harris, some are politically motivated attack pieces. Um, we're gonna, we're going to try and parse through that to figure out, like, who Kamala Harris really is. We're to take a look at at uh her voting record, at her prosecutorial record, at some of the criticisms, uh, uh, and try and analyze it as fairly as possible. Um, something I had to move to next Tuesday, uh, that broke late, uh, last night, late Wednesday night, as as we're recording the show, is, um, Newsweek decided to give editorial space to a, uh, dishonest, racist, uh, clown horn, um, a a fellow named John

0:04:55 Thomas: Yeah. Yeah, yeah. If you're Brett Kavanaugh, you definitely know who Kamala Harris's case

0:06:40 Andrew: C. Eastman, and and allow me to set the stage. I'm gonna do just just 30 seconds on this, which is probably like five minutes. Um, I'm going to rip his arguments to shreds on Tuesday's show because they're terrible. That's all you need to know right now. Kind of the factual background. Kamala Harris was born in Oakland, California. Her parents were Shyamala Gopalan from India, and I apologize if I've mispronounced that. She's passed away. She was legally here on a student visa. And Donald J. Harris, who is now a naturalized American citizen of Jamaican heritage, right? And she was born, as I said, in Oakland, California. That's person A.

0:07:21 Thomas: Closed, yeah.

0:07:22 Andrew: Person B is Ted Cruz, who, As we know, was born in Calgary, Alberta, Canada. His dad was at the time a citizen of Canada. His mom was, in fact, a U.S. citizen, but had left the country and we had no idea if she was ever to return. Sure. So in 2016, a person for the National Review wrote a piece that said, hey, some people are saying Ted Cruz is not a natural born citizen. But, you know, and here let me quote from this person directly, let's move on from this particular silliness and get back to the business of choosing a president from among the broad slate of well-qualified and fully eligible

0:07:25 Thomas: Yeah. Uh-huh. And

0:08:04 Andrew: Candidates before us. Right.

0:08:05 Thomas: They didn't do that.

0:08:07 Andrew: They did not.

0:08:07 Thomas: Uh, but, uh, so flash forward to now, and I'm sure the same, similar response, I'm guessing, right?

0:08:12 Andrew: That person was John C. Eastman, who said the requirement in Article Two that one be a natural born citizen in order to be eligible for the presidency simply means that one be a citizen from birth rather than subsequently becoming a citizen by later naturalization. So, case closed, until yesterday, when writing for Newsweek, John C. Eastman wrote a lengthy editorial about how Kamala Harris is not eligible to be president because she is not a natural born citizen. Yeah. And it's as bad as you would think. Newsweek failed to disclose that John C. Eastman ran in the Republican primary to run for California attorney general against Kamala Harris.

0:09:00 Andrew: Harris, you know, they might have mentioned that, but they didn't. They might have mentioned the fact that he is a professor who has written one published law review article, which is a real low number. You know, it's probably, yeah, you absolutely could get to that. There is no requirement that you go to law school to write a law review article. So, yeah. We can get you to have the level of credentials of John So this is racist garbage. And I will will disembowel it on Tuesday's episode. But that's what we're that's where we're looking at now. And we can look forward to, you know, three months of this coming from the other side.

0:09:14 Thomas: I think I could get to that. Now he tells me, okay. Yeah yeah It's a tough position because, on one hand, like you say, there are a handful of positive articles that come from the left, and then you've got negative articles which come from the left. So it's kind of tough. Oh, and and the right sometimes, I guess, also. The left and the

0:09:54 Andrew: Yep. Do that. And I think the curious, if you will agree with me on this, like, I think I, the best way to evaluate a presidential vice presidential candidate is is to work backwards from now, right? Like, so, and look, that can be both good and bad, right? Like, so, for example, one of the primary reasons, no pun intended, that I didn't support Joe Biden in the primaries is not because of his historical record, right.

He was a reasonably, you know, he, he was a fine vice president. He has a mainstream Democratic voting record. I have to continue to tell this to people. But was that in the primaries, he really ran to the right, right? And it was about the way in which he characterized his campaign that I think had more salience than his voting record in the 2000s, which in turn, I think, had more salience than his voting records in the 90s, 80s, 70s. So that's what I'd kind of like to do with Kamala Harris, is sort of work backwards from now.

You don't have to agree with me that that that now carries more weight, But but I'm explaining, like, my approach, because I think now does carry more weight. The first is, and I was a little surprised by this, so Kamala Harris's campaign website now redirects to Biden 2020. Not surprising, that's a that's a smart thing to do when you've been added to the ticket. So I went back and got the, like, cached pages, right, from Google. It surprised me because, you know, Harris suspended her campaigning in December of 2019, you know, before any of the primaries. Um, she never really took off. Um,

0:11:42 Thomas: Mean, well, it did for a sec, heck, it did after that debate, she, you jumped out, maybe didn't overtake Biden per se, but I thought, you and I both thought she had a real chance at winning. But one of the things that kind of turned me off about her a little bit was what she did with that lead. And, you know, that was one ofthe reasons I was very confused by her, because she's so good in in questioning sexist white men or maybe younger sexist white men as well. But she really didn't seem to take that opportunity and run with it very well. And I thought she was trying to triangulate a little bit too much, you know, because she, there's also the thing where she criticized Biden on the busing and then was later asked, like, would you have supported that? And she said, no. And so it like, it didn't even, and also schools are more segregated now than they were then.

0:11:44 Andrew: Yeah.

0:12:33 Thomas: And she didn't, doesn't support busing now, so it, like, the whole thing seemed really weird, like that attack was just maybe mainly rhetorical, it seems. So that's why I was like kind of not, like not really in love with Kamala after that, but also, you know, I didn't hate her or anything. Yeah.

0:12:47 Andrew: Yeah, I think all of that is right. And I think that it it meant that it was difficult for her to define where she was in the primary. Right. Right. So it surprised me when I went and pulled up her page. Right. Which is policies for the people. These are the seven policies that she lists. Right, this is this is the short reason for why I'm running for office. This. The first one was Medicare for all. And I'm going to link there's still an article up on medium.com that goes into pretty good detail about the explicit details of the plant, which begin with allowing exactly like Bernie Sanders, allowing citizens to buy into Medicare. And then there's a phase in process whereby it transitions over to become the entire health care system.

0:12:57 Thomas: Well,

0:13:42 Andrew: It, you know, you can agree, disagree on the policy, but it was interesting to me that in a debate, you know, in a debate season that was largely defined by sort of the question of are you Medicare for All or not, she was strongly on the Medicare-for-All side.

0:13:59 Thomas: One thing that was frustrating about this primary, a little bit, and I don't know, this seems to be a theme of our politics, and I'm not sure what you think about it, but what people have on their campaign site, or what their platform is, or even indeed, even sometimes their voting record, seems to not matter to a lot of people. And what does matter is, were they a prosecutor, in you know, 20 years ago.

Um, it's really, I don't know, I, but I guess I understand that people are a little cynical and pessimistic about politics. Um, sorry, I'll avoid going on a longer rant, I think people see that, I'll try to do a shortest version, I think people see that nothing happens, and then they maybe ascribe that to, like, well, these Democrats are actually not really true to their word, you know, and so therefore they're always looking for reasons why they aren't saying what they mean, or they actually, or secretly believe something else, whereas I believe that nothing happens because we don't ever have power, and Republicans, Republicans stop us from doing anything, for the most part. So that's my mini version of what I think is going on, but don't, didn't you find that to be true in the primary, like, it, platforms

0:13:59 Andrew: Yeah

0:15:05 Thomas: Didn't really matter, no matter how many times I linked to Elizabeth Warren's website, where it said she supports the Medicare for All, Bernie's Medicare for All bill, it, like, didn't matter somehow. Hmm.

0:15:15 Andrew: I I I think that's right, and I, I agree with your diagnosis, and I guess I would add to that, that this is the first post-Trump election. Right, like, I mean, Donald Trump never campaigned on anything. Right. Like, I mean it literally like we, we had the, the, yeah, I me, you know, Mexico's going to build a wall, but like, right, right. I mean. And, and I suppose I should back up and say the handful of nonsensical evil things that he campaigned on, he did actually do.

0:15:25 Thomas: Yeah. Nothing real

0:15:44 Andrew: Right? He tried to build wall. That's now fallen over.

0:15:43 Thomas: Yeah true he tried to ban Muslims well

0:15:48 Andrew: Uh uh successfully, uh, placed draconian immigration restrictions in this country, and nothing else, right? Um, even the other things that were sort of a part of the platform

0:15:58 Thomas: Judges would be the biggest thing

0:15:59 Andrew: Um yeah Well, but that was never really an explicit promise. You

0:16:00 Thomas: No He did he said he would choose judges from a uh you know from the what's the face Federal Society list or whatever that was a big that was actually one of the biggest campaign promise that he did, probably, yeah.

0:16:04 Andrew: Know yeah well that's yeah it uh That I guess we're defining it because I saw him do that in Republican circles, but not sort of as part of the overall campaign. But it's splitting hairs. He obviously did do that. So but yeah, like it was I mean, it would be ludicrous to to to say, OK, my opposition to Donald Trump is based on like this part of The Republican Party platform. Right. Like, you know, that's who thinks Donald Trump has even bothered to read what's in it. Right, So so I think that there's, I think all of that sort of helps to explain.

But yeah, Kamala's platform, point one was Medicare care for all. Point two was rent relief, right? And this is really an issue that nobody else has picked up and run with, but the idea was that there would be a refundable tax credit for renters who pay more than 30% of their gross income on their rent, including utilities. And again, again, that's not only a real issue, not only a poverty issue, but explicitly a millennial and later and, you know, a younger issue. Right. Like this is, this generation has the, I think the largest dip in homeownership in a century. Right. Like, it's anyway, I thought

0:16:22 Thomas: Yeah oh

0:17:30 Andrew: That was interesting.

0:17:30 Thomas: We are going through our second massive uh catastrophic economic collapse in just our brief time on this planet as adults, so could be had something to do with it, also real wages haven't risen at all, that's anyway, yeah, go, because

0:17:36 Andrew: Yeah. Yeah. Yeah. The. Yep. Oh, yeah. No, I believe me. So so that was point two. And, you know, there's climate change, gun violence, teacher pay, reproductive rights are the ones I'm not going to touch. But the third one was criminal justice reform. And I want you to put a pin in that because obviously we have the, you Know, because Kamala is a cop. This is what she campaigned on. As president, Kamala will continue to fight for end to end criminal justice reform to ensure accountable and constitutional policing. She will double the civil rights division, renew and expand pattern and practice investigations, enforce consent decrees and support legislation to end racial profiling help end the era of mass incarceration, Kamala will take action to legalize marijuana, further reform federal sentencing laws, end private prisons and the profiting off people in prison, and push states to prioritize treatment and rehabilitation for drug offenses. She will also seek a federal moratorium on the death penalty. There's more More that I can read. That's a that's a very progressive policy.

0:17:58 Thomas: Kamal is a cop, just yeah I think, mathematically, just a quick note, assuming, um, I'm just assuming that whatever the civil rights division is, Trump has reduced it to zero, so doubling that, I just think she had to put in like an absolute part of that too, not just doubling it, minor note minor note, oh

0:19:03 Andrew: Yeah, it it the Civil Rights Division is is 100 percent. And I wish I were joking about this, but I'm not involved in investigating discrimination against conservative Christians who have to like, you know, bake cakes for gay people and stuff like that. So, yeah, now

0:19:18 Thomas: Yeah, yeah if the civil arts division is like a negative, a net negative now, she's going to to make it worse, yeah. She's doubling that, yeah.

0:19:27 Andrew: We should have it. Yeah. Um, so I I I think you're right, we want to put a pin in that discussion because that's really the authenticity question, but here is somebody that in 2019, right, and and again, you know, you can't say, um, but before we realized that, you know, cops are shooting black people, um, but but certainly again, before, I think, a national transformation, right? Like, if if one, one of the charges is inauthenticity, failure to lead. And you will see that I'm going to quote directly from from allegations of that. But this is certainly a much more progressive stance on criminal justice than I think a lot of mainstream Democrats in 2019. It seems pretty prescient right now.

0:20:16 Andrew: So you then have to ask, is that inconsistent with things she did 10 or 15 years ago? We will get to that, I promise. Let's kind of continue working backwards, right? Right. So that was the 2019 campaign. Let's now take a look at her voting record you, you've, you probably seen the organization progressivepunch.org. Um. We cannot look up Joe Biden's record because they were formed in 2013. So, uh, so he's not on there. Um but you can I will include the link in the show notes. You will We'll include the link of the show notes, Thomas, that ranks everybody who's currently in Congress and gives them a letter grade from A to F on how progressive they are.

And and look, they pull no punches. Right. Chris Coons from Delaware gets an F, even though he's got a 77% liberal rating. Right? Right. So this is not, you know, progressive punch are not grading on a curve. They are aggressive graders in terms of how they score folks. Kamala Harris lifetime is the fifth most liberal member of the Senate. She has a ninety seven point one eight vote. If you want to switch that to crucial votes, she moves up to fourth. Um, she's one of 15 members

0:20:42 Thomas: How dare you, yeah, I will boy

0:21:40 Andrew: Of Congress to get a strong A from progressive punch, so look, the scoring, it's it's you know it

0:21:47 Thomas: You almost think that should maybe count for something, wow.

0:21:49 Andrew: I would think it would, I mean, she's half a percent better than Bernie Sanders, uh, she's a tenth better than Mazie Hirono, uh, she is almost a point and a half worse than Liz Warren, so, you know, but again, these are stupid quibble, right? Like we're talking about, but the difference between a 97.1 and a 97.2, right? Like we're talking 97% of the time as reliable of vote, uh, for progressive causes as you could possibly get. Um, progressive, that's, that's our own internal, uh, watchdog organization, progressive punch, the neutral.

0:21:53 Thomas: Yeah yeah Because the the right-wing version of that just has every Democrat at a hundred point zero zero there we've already seen that, like, Kamala's a socialist is gonna blah blah, blah, blah.

0:22:28 Andrew: Yeah. Well, what'd you do? Yeah. Yeah. Well, and look, the the attack that is being made right now, I'm going to give this link to you. You can decide whether you want to put this in the show notes or not. It's a Fox News national article that says Kamala Harris was scored the most liberal senator in the U.S. That is from govtrack.us. It is from 2019 because 2020 isn't over yet, uh, and um, it yeah right that's true, uh, it and and that attack ad is correct, right, like it, it, according to gov track, in 2019 Kamala Harris, most liberal member of the United States Senate, um, now you might say, oh, well, you know, her presidential run, okay, if you look at her term in Congress, uh, the 115th Congress, right, from uh 2017 and 2018, she was the fourth most liberal, right, and again gov track, unlike progressive punch, does go back and include Joe Biden's voting record, and it's exactly what you would expect, it is smack dab in the middle

0:22:58 Thomas: Don't remind us. It'll never be over. Yeah. Yeah.

0:23:39 Andrew: Of the Democratic Party, right not

0:23:40 Thomas: Yeah. Not on the right of the Democratic Party, by the way.

0:23:43 Andrew: On the right uh, but but mainstream Democrat, which, by the way, is usually the kind of people that get nominated to represent your party, um, and uh and Joe Biden went and picked somebody to his left and handed the White House, did, despite their relative incompetence in rolling out attacks, uh, handed the White House, the attack, the true attack of Joe Biden, just picked the most liberal member of the Senate. Yeah. Are like five libertarians listeners. We are potentially pushing them away from Joe Biden right now. If if you are not comfortable with the fact that Joe Biden leaned hard to the left on his vice presidential selection, then then this this is going to make it a tougher vote for you. And and I think, again, that that means something, right?

0:23:50 Thomas: Yeah.

0:24:34 Thomas: You know, At the risk of really stepping in it here, it just occurred to me. Part of the Democratic primary process, we made this argument, a lot of the candidates made this argument, was no matter who we put up there, the right is going to turn them into, you know, uh, Fidel Castro, you know, like we know, like that's, we know that that's not gonna happen, so stop worrying about it. I just now realize, as we're describing Kamala's progressive record, indeed a half a point ahead of uh Bernie, you said, right, that perhaps, perhaps, sorry folks, folks, I'm a progressive, but perhaps there's a contingent of the left that is rendering themselves as irrelevant as the right by turning everybody in the Democratic Party who is not Bernie Sanders into Fidel Castro. No, it would be, I guess, some right-wing version of Hitler. I don't know.

0:25:04 Andrew: Yep. Yeah, pull pot.

0:25:28 Thomas: Yeah, Like, maybe that could also be, like... It struck me as, you're, you know, know, reading this that like, I don't know who's going to respond in what way to what, now, because, as you say, in real terms the fox is able to say this is, you know, the most progressive senator or whatever, one of the most aggressive senators, whatever, they they say for a given year, and yet the the the far left can still say, no, this person is is just Bill Barr, like they just want to lock up every, you know, and it's, I wonder maybe if if that's goingto perhaps reduce the effectiveness, effectiveness of their contributions, people who are painting Harris this way. Like, if no matter who Joe Biden would have picked, if all of a sudden that person turns into, you Bill Clinton's crime bill in walking form or whatever, you know, then I don't know, you know, then

0:25:28 Andrew: There we go.

0:26:18 Andrew: Yeah.

0:26:19 Thomas: What does one do? And how does one continue to take that particular contingent seriously? Well,

0:26:25 Andrew: Tried sort of to steel man what arguments you might raise against this, right, because, look, you can't impeach the... And so I sort of went back to the authenticity question. Right. And said, OK, maybe somebody may look like we've said this. Right, that like, you know, Rand Paul cultivates this kind of, you know, libertarian independent issue. But, you know, when it comes down to the key votes he's their lockstep with Trump, right, and the stuff he's doing is really much more window dressing than, uh, whatever, so I I wanted to look, uh, at the kinds of legislation that Kamala Harris has tried to introduce to to see if it was, you know, somebody giving lip service to progressive causes or really somebody who was invested in in in progressive causes.

0:27:21 Andrew: And here's what I found. I found somebody whose legislation, and this is only going back a year. I'll give you the link where you can look at all 131 bills that she's introduced. I should also add in terms of effectiveness, she has been right smack dab in the middle of the Senate. She's tied for 59th with getting eight bills out of committee in 2017 to 2018. That's pretty good for a Democrat in a Republican Senate. Right.

0:27:52 Thomas: Also, you'd expect if she has the more progressive record that that would make it more difficult to be somebody who would get bills, uh, successfully out. Yeah.

0:27:57 Andrew: Yep. Yeah. But but but again, you want to look at right because it doesn't do you any good to be, you know, the lone voice in the wilderness if, you Know, you're you're just giving speeches and you never actually get anything done. So yeah.

0:28:09 Thomas: Well, Isn't It a catch-22, though, because if you're, if you always stick to your progressive guns, then you've never compromised, if you do compromise, try to get something done while, then you're not pure anymore and you voted for something that's compromised, it's, there's no winning, I think, sometimes. Sad.

0:28:26 Andrew: The only winning move is not to play. I agree. So. So here when you when When you look at her most recent it ranges from high profile issues, right? Components of the Green New Deal, S-4513, S-4401. It includes important issues to today that she has led on. And in coronavirus, I want to highlight two of those. She was the first person to introduce legislation requiring reporting on the Paycheck Protection Program. That's S-4455. Now, again, yeah, and also on mortgage relief, right?

Again, where you see this, you know, kind of consistent focus on the rental section of the economy, which, you know, I think highlights the, again kind of the generational difference. Difference. Don't know that Joe Biden knows that much about people who are renting and can't afford to buy. But and then, you know, there's constituent service stuff, right? There are multiple bills about the California wildfires, as you might imagine. She's a senator from California. It's part of her job. And then there's stuff that's really low profile, but obviously important to hurt, right? There's uterine fibroids, right, which are a real women's health issue that doesn't get a lot of attention. That's S-4397.

0:29:02 Thomas: That We even have to do that, but yeah, yeah.

0:29:51 Andrew: And also other issues issues that have to do with black women's health. That's S-3424. So I go through, and again, you know, right in, I can't impeach her legislative record in any way whatsoever. It is consistently progressive. It leads on key issues. It does not appear to be grandstanding. And, And, you know, and I mentioned that that I think that's consistent with what we've seen in her performance on the Judiciary Committee. Right. And we mentioned this long before Brett Kavanaugh, when we were talking about the confirmation hearings on Jeff Sessions, that she spent her five minutes asking insightful legal questions that laid the groundwork rather than grandstanding. I was really, really impressed.

0:30:09 Thomas: Yeah.

0:30:39 Thomas: If You want to, if You want to get pumped, you know, if you're somebody who really feels like you need to get pumped to go out and vote for this ticket, which I don't, it's, it's no brainer. I'm voting for this ticket. It's, it'll be great. I can't wait. Um, but if you want, I get pumped and feel positive, just watch some highlights of her dunking on it. And, but like you say, it's not just, it' not grandstanding though. It's also really probative, you now, like in insightful stuff that that's not necessarily just to make some big slam dunk point. It, it ''s also, she, she a lot of times would try to pave the way subtly, you know, making a greater point later on.

0:31:16 Andrew: Yeah, yeah, good. So that then works us back to her tenure as attorney general and her tenure as elected district attorney for the city of San Francisco, the times that you might loop together as prosecutor. And here's the first thing I want want to say with respect to that, which is the job of attorney general is not the job of the state's top prosecutor or top cop. Kamala Harris referred to herself that way. And that was a super choice of messaging that probably seemed like a great idea in 2010 and seems like a terrible idea now, and I have no defense on that. All I can say is that, you know, you don't get to be president. You don't gets to be vice president. You don' get to a senator without being politically ambitious, right? And this is one of the sort of shades of, you can legitimately attack Kamala Harris. Not every attack on Kamala is sexist. Not every attacks on Kamal Harris is racist. If you say, boy, she strikes me as ambitious, that seems awfully close to uppity to me, right. Right.

0:32:00 Thomas: Yeah.

0:32:28 Andrew: It's the stupidest thing you could possibly say. Right. Like, again, just put her up next to Ted Cruz. Right. Like it or anyone.

0:32:27 Thomas: Yeah, that's the stupidest attack. Yeah or anyone or Trump, by the way, like he that guy really just got into it for the right reasons. By the way the ambition of Joe Biden, a 900 Year old man who already like really doesn't need to be doing this, like I don't know, know why he had. I wish he hadn't run, by the way. Like, well, that takes some ambition to be like, no, I still need to go be president even though I'm pushing 80 and have already done a lot. And and there's a lot of far, you know, better candidates that are younger and more diverse and all that. What kind of ambition is that? Never

0:32:43 Andrew: So. So, OK, look like labeling herself as the top cop. That was not great messaging. Yeah.

0:33:17 Andrew: Yep. Yep. Absolutely right. So let's talk about her record as a prosecutor. And to frame that, the last major study of prosecutors elected nationwide was done in 2015. It was by an outfit called Who Leads Us? And it is the Reflective Democracy Campaign. I know you're going to probably get this right, but of of of prosecutors, what percent of prosecutors would you say you think are white? Yep.

0:33:49 Thomas: Say that never. Oh.

0:34:01 Thomas: Wow, uh, you mean right now? Like, hold on, what levels of prosecutor are we talking about? When just every single district or whatever it would be, what are the How do they even

0:34:04 Andrew: As of 2015. So, you know, it did.

0:34:12 Andrew: So. Yep. There are that great question. Virtually every city and state elects their equivalent of district attorney or state's attorney. So there were over two thousand four hundred offices throughout America that are elected prosecutors. And and and exactly.

0:34:13 Thomas: Okay.

0:34:30 Thomas: So That's Our enumerator. No. That's our dinner. Yep.

0:34:35 Andrew: And most of them. Right. Are I don't want to say most of the people who are residents. So yeah, yeah.

0:34:48 Thomas: Right. And that said, what percentage of those 2400 Are white, right Now, uh, I'm gonna say 90, how high do we go here? Nine, you know, this guy, obviously it can't be 100. Hundred, ninety six percent. Did

0:35:12 Andrew: Well, If by Price Is Right rules, you would be disqualified. It's It's 95. Yeah. It is, that is, it. Yeah.

0:35:19 Thomas: Oh My gosh, wow, that's Why Price Is Right rules are stupid and I don't Know why anyone ever does that in anything not named Price Is Right. Yeah.

0:35:26 Andrew: Um. Let's do the breakdown. 79% overall, right? So eight in ten of every elected prosecutor everywhere in this country is a white man. Subtracting, that means 16% are white women, 4% are black men, and that leaves less than 1% are women of color. So keep that kind of in the background that when Kamala Harris won election as district attorney for San Francisco in 2004, 2004, exactly what she was up against. Right. She was up against a system of white men.

0:36:16 Thomas: I believe she was the First black woman in all of California, I think, to be elected to Yeah. I

0:36:17 Andrew: Yeah, she she she was the first elected black woman prosecutor in the state of California and one of a handful nationwide.

0:36:29 Thomas: Was gonna say, just mathematically, she's Probably like third in the country. You know. Who knows. Well.

0:36:30 Andrew: Yeah. Yeah, right. Need to talk a little bit about the the job of being a prosecutor, because I have seen, and I have to tell you, if you've said this and you're one of our listeners, this is a dumb thing that you've set. Um, I have seen people say, well, you know, all prosecutors are bad, and right, and and I can understand, uh, in a, in a post George Floyd society, why you would be tempted to say that. Um,

0:36:56 Thomas: I mean, they said this before George Floyd, by the way, about her, but yeah, well.

0:36:57 Andrew: Yeah. Um. Yeah. Uh, but, but you cannot, right, and and just from a practical perspective, prosecutors have immense discretion in terms of what cases to bring, what charges to file, right, when to cut a deal, when to go to trial, what sentences to recommend. Like, if you, if you cede the job of prosecutor to the furthest right, the most tough on crime that you can think of, that will make the system materially worse, right? You have to have people who are progressive minded, who go into the job of prosecutor. And lots of them do, right.

Our buddy, Randall Eliason was on the show, you know, this past episode, former prosecutor, right, plenty of criminal defendants, both, uh, street crime, white collar crime, I know tons of criminal defense lawyers, lifelong rock ribbed Democrats, as progressive as they come, who spent time as prosecutors. If you say being a prosecutor makes you the bad guy, makes you a cop, that, that, that is, it's, it's not just wrong, it's not just misinformed. That kind of system basically says, let's cede the boots on the ground implementation of justice to the Joe Arpaio's among us. Right. It's, it's the worst thing you could possibly do.

0:38:33 Andrew: And and and that's, you know, let alone. Right, I like the fact that Roger Stone got prosecuted. I would like to see Donald Trump get prosecuted, right? Like we I'd like to see rapists get prosecuted. Right. Like, I mean, you know. Yeah.

0:38:43 Thomas: Yeah, so Granting all that, though, I think it's still fair to look at her record as a prosecutor and, you know, maybe examine that somewhat and see how progressive she really was. Side note, when that article came out like a week ago, that was like, Kamala Harris was a progressive prosecutor. I I should have posted. I was like, oh, she's the VP pick. There's no other reason that a random article comes out saying like, hey, this person who lost the primary earlier, you know, like, so, yeah, that I think they got to try to get ahead of this one slightly.

0:38:46 Andrew: Yeah. Yep. So let's so let's do that.

0:39:12 Andrew: Yeah, I think I think that's right. Look, there is no question that they've, they've been vetted on this. As I look at the case against Kamala Harris as a prosecutor, I'm, I'm shocked it had as much traction as as it did in the primaries. Um, and, and again, but before we get there, I want to paint another bit of a picture, right? Which is running as an African American woman for a position that to which African American women never get elected. Uh, she ran and pledged not only, uh, that she would never seek the death penalty in any of the cases that she prosecuted. But also, California had a draconian, this is going to come up again throughout this, a draconian three strikes and you're outlaw of the sort that were broadly popular across the United States in the 90s and early 2000s, that said you get convicted of three felonies and you get life imprisonment without parole.

0:40:13 Andrew: And Kamala Harris said, I will not prosecute under the third three strikes law anybody whose third strike is not a violent crime. Because we're going to hear about plenty of people for whom, you know, the third strike was things like, you now, writing a bad check or and that's a real case. And like so. So that's a pretty progressive position to stake out. It got put to the test within three weeks of her election. So this is 2004. And she had a major political decision. So a a police officer was gunned down, related while on duty. Right. So the kind of thing, particularly in 2004, that gets broad based. Hey, man, like this is a cop killer. You've got to have the death penalty for cop killers. And that was her first decision three weeks in on the job.

0:40:34 Thomas: Yeah.

0:41:22 Andrew: And she kept her promise and was crucified by the Democratic political establishment in California for doing so. I'm going to read a little bit from CNN clips. So police officer's widow went on CNN and said, I felt like she had just taken something from us. She had just taking justice from us, from Isaac. That was the name of the police officer. She was only thinking of herself. She She was denounced by the police union the officer's funeral. This officer's name was Isaac Espinosa. Kamala Harris attended the funeral and Senator Dianne Feinstein got up before the congregation and said, direct quote, this is not only the definition of tragedy, it's the special circumstance called for by the death penalty law. With that, and here I'm going to read from CNN reporting, rows of police officers erupted in standing ovation while some turned and stared pointedly at Kamala Harris.

0:41:48 Thomas: Wow.

0:42:23 Andrew: You live in California. You understand what crossing Dianne Feinstein in 2004 meant as a as a Democratic politician. Um, so again, keep that in mind, that was her first decision as a prosecutor in San Francisco. Politically, would have been super easy to say, well, you know, I didn't mean that for cop killers. Uh, she, she didn't. Kamala Harris has been consistently opposed to the death penalty since serving in public office, even to her manifest political detriment.

0:42:54 Thomas: Yeah.

0:42:55 Andrew: The case against Kamala Harris has been articulated forcefully by a journalist named Lara Bazelon in a, and she's written multiple pieces for multiple outlets, but the one that has the widest reach is an article she wrote on January 17th of 2019, right, so a year and a half ago, for the New York Times Times. Incidentally, Lara was asked what she thinks about her piece once Kamala Harris was announced as the vice presidential pick. And she said, I'm going to link the tweet in the show notes. One, I stand by what I wrote. Two, she got a good hard shove to the left. Three, she may have lost the presidency in part because of her California record. And three, again, her record in the Senate is way better. Four, let's focus on getting real Donald Trump the F out.

0:43:46 Thomas: Yeah.

0:43:47 Andrew: So that's the person who wrote the hit piece. Hit piece is not fair, right? We went into this on the O.A. group. This is article that I disagree with, I think is factually and legally wrong, as we're about to show. But this is a perfectly fine attack piece, right. But it nevertheless, right, is an attack piece. I said, Lara Bazelon has written multiple of these pieces for multiple outlets. It makes six arguments, and I want to hit super briefly on those six. Two of them are from Harris's tenure as a district attorney in San Francisco. The first involved Deborah who was a lab technician in a crime lab run by the police.

0:43:47 Thomas: Oh,

0:44:37 Andrew: This person, Deborah Madden, was skimming cocaine from the lab. So that's a bad thing. And what happened was one of the prosecutors who reported to Kamala Harris emailed Kamala Harris's assistant to say, hey, this Deborah Madden person is totally unreliable. She doesn't show up at trial again, probably because she's doing coke, right? Right. That email was never sent to Kamala Harris. And at trial of one of the defendants on whom Deborah Madden worked the case, it was not disclosed to defense counsel. Right. Which is a potential Brady violation.

0:45:23 Andrew: We know under Brady versus Maryland, if you're the prosecutor, you have to turn over exculpatory evidence to the other side. The fact that you've got this internal memorandum from person A to person B saying, man, this lab tech is totally unreliable is is the kind of thing you should probably turn over under Brady. Kamala Harris was not that prosecutor. Uh, and, uh, in that case, the judge held that there was a Brady violation. Uh. Not only threw out that case, but it resulted in 600 cases being dismissed of cases in which people were prosecuted in Kamala Harris's office during this time and earlier, some before her tenure, that this lab tech had worked on.

0:46:11 Andrew: So that's the first argument. You want to say Kamala Harris should have been, should have had oversight, or when, when ultimately apprised of this, should have maybe thrown out all the, I suppose you could say that. But but this first argument is does not involve any case that Kamala Harris prosecuted. And Kamala Harris was not personally made aware of the lab tech. It was sent to her assistant. There's zero evidence, right, that it was ever sent to the attorney general. The reason we know that there's zero evidenced for that is that if it had ever been transmitted, right? Like that would certainly have been introduced at trial, right. They would have said, and this made it all the way up to the Attorney General, right, like, that didn't they know, they didn't do a political favor by not saying.

0:46:57 Andrew: That's argument number one. Weigh that however you want. That's argument number one, second argument about Harris's tenure as a San Francisco district attorney has to do with the fact that she implemented and defended a program in San Francisco involving truancy. And I do not understand this attack. Yeah, let me describe the situation. One in four kids in San Francisco during her time there missed 80 or more days of a 180 school year, you know, 180 day school year and dropping out of school is really, really bad socially. Right. So Kamala Harris developed a program to prevent kids from being truant, from missing a ton of school. Here's how that program got implemented. And here I'm going to quote from Katy Miller, who was quoted in Vox. When a student is regularly truant, the school district first gets involved by sending out letters to parents telling them that the child is missing class. Then the school can call parents into a meeting with staff and sometimes support service providers to figure out what's going on.

0:47:18 Thomas: Yeah.

0:48:05 Andrew: The next step is a meeting with a review board where various governmental agencies and social service can be present to figure out what might be contributing to the truancy. That then includes a contract that dictates who's going to do what to make sure that the kid can get to school. If all of that failed, those first two steps, if all of that fails, the school can refer the case to the prosecutor's office, which can then threaten prosecution of the parents if there's no progress on attendance. The thinking, Miller said, is that by then a parent has already been offered help, but clearly needs an extra push to take it and improves a child's attendance. And if a parent agrees to take steps to improve a child's attendance, then the charges get dropped. Finally, yeah,

0:48:45 Thomas: I remember that being that the the whole point of the attack during the primary was, you know, she's threatening to arrest the parents of truant kids as though that would really help, you know, like, if there's really a truancy problem, you, a parent being under arrest or something is not going to fix that. Plus,

0:48:47 Andrew: Yeah, yeah, Yeah. And that backstop made, quote, a parent, quote, who has failed to reasonably supervise and encourage school attendance, end of quote, a criminal misdemeanor punishable by a fine or up to a year in jail. Nobody was ever jailed in San Francisco. As a result of the success of the San Francisco policy, it went nationwide, statewide, statewide, and Kamala Harris campaigned for that, said, yeah, that worked in San Francisco, it should work statewide. It became California Penal Code 270.1, and apparently in in some jurisdictions some parents were ultimately jailed, I don't know, but this is an attack, man, like, like, when you have laws, at the end of the day, you have penalties for violating the law, and and it seems like a a multi-step process that is just designed that only begins to threaten criminal sanctions when you've been offered help time and time again and you refuse to take it. That seems like a tough argument to make for me, but but there's the truancy argument.

0:50:07 Thomas: The fact that, you know, if you're saying nobody was ever arrested under this plan in San Francisco at least, then yeah, statewide.

0:50:07 Andrew: Yeah. But, people were arrested statewide. And it was modeled on a law. Yeah.

0:50:15 Thomas: Yeah. But that's not under her. Yeah.

0:50:18 Andrew: Not under her watch, but modeled on a law that was based off of the law that she, right, it's chain. Kamala Harris has publicly said that she regrets backing that law because she never intended for, you know, parents to be jailed. And again, you got to weigh that however you weigh that. That's point two. Arguments three through six all come from her tenure as California attorney general, and they all arise out of the same kind of thing, which is the attorney general isn't prosecuting cases. The attorney general isn't even directly overseeing most prosecutors. The attorney general's primary decision here is to defend the state in legal proceedings, right? And so these are questions about whether and how to appeal cases that you lose.

0:51:10 Andrew: And again, I want to start off with something I didn't know about Kamala Harris that, again, in my view, is a real sincere profile in courage. And that was in 2013, the California Supreme Court held that Proposition 8 was constitutional, that prohibited same-sex marriage in the state of California. And Kamala Harrison said, I'm not appealing that to the Supreme Court. Don't defend that. And I don't think there's any legitimate reason for us to defend this policy. And so it was left to the right-wing activists to appeal that case. Um, is, 2013, this was at a time in which, you know, Barack Obama as president was saying, I, I support civil unions but not gay marriage, uh, and Kamala Harris said, yeah, I'm not going to defend that policy in court.

You don't hear about that, but that is, uh, in my view, um, putting your money where your mouth is. So, uh, but then there are questions about other cases that that she did defend. Want to do a tiny bit on, Wikipedia has a page that lists, and I have no idea why they picked this as a cutoff, but it is female state attorneys general in the United States. And the records only go back to 1959. So that's 61 years. So in the past 61 years, I will not ask you to guess. There have been a grand total of

0:52:07 Thomas: Seven.

0:52:41 Thomas: Oh.

0:52:41 Andrew: 50 women.

0:52:43 Thomas: Oh, 50? Okay. Because it's just women, yeah. Yeah, oh, sorry, I was thinking black women. Three.

0:52:47 Andrew: Yeah. But as far as I can tell for women of color, it's three.

0:52:53 Thomas: Wow, yeah, I was optimistic on that one, so.

0:52:55 Andrew: Sixteen states have never had a woman as attorney general. Sixteen entire states, right? Under 7% of attorneys general in the past 60 years have been women. And women of color, obviously, that rounds down.

0:53:08 Thomas: I guess what you're saying is it's super cool and fair to pin all of our anger and hatred toward police on this one black woman who's one of like four who've ever held this position. Super

0:53:17 Andrew: Yeah, yeah. You one might draw that that conclusion. Yeah. But now. But let's look at, Lara Bazelon has four criticisms of Kamala Harris during her tenure as attorney general. First is the weirdest to me, that is that unlike Prop 8, California did in fact appeal an intermediate appellate court decision that held that the death penalty in the state was unconstitutional. Again, remember, Kamala Harris personally never implemented the death penalty on her watch.

But as attorney general representing the Department of Corrections, this 2014 federal district court ruling said that the system was dysfunctional, and Harris felt that, uh, she had to appeal, uh, given the characterization of the system, which, you know, you could take either way, I, I certainly get it, but then Lara Bazelon makes this statement and and and I want to highlight it because she's not a lawyer and and this is a hundred percent wrong. Lara says in a public statement, she, Kamala Harris, made the bizarre, bizarre argument that the decision undermines important protections that our courts provide to defendants. And, you know, you can almost hear like the scoffing tone. And I get that, right? You're not a lawyer. Like, how on earth could a decision holding the death penalty unconstitutional undermine constitutional protections? Here's how.

0:53:21 Thomas: Cool. Yeah yeah

0:54:53 Andrew: This was not a bizarre argument. This is a bizarre argument in which Kamala Harris was 100 percent correct And Lara Bazelon is 100 percent wrong because the decision criticized part of the reason for holding it unconstitutional and dysfunctional was the length, the amount of time that people were spending on death row. Yeah.

0:55:14 Thomas: Yeah. Like 30 years.

0:55:17 Andrew: And Harris said, look, if I let that stand, right, that could be the basis for conservatives, for people who seek the death penalty to say, yeah, we got to speed this up. A judge just said you got to speed it up. Right. Like it 100 percent, she was correct that you do not want to have on the record, uncontested, conceded by the state of California, that its justice system is dysfunctional and that people spend too much time on death row. You absolutely have to litigate that as a matter of law. So could she have litigated in a different way? I don't know. All I can tell you is that on that side of the argument, she's correct.

0:55:17 Thomas: Yeah.

0:56:05 Andrew: And if you are opposed to the death penalty, I do not think you will find a more principled advocate of that in this country than Kamala Harris. Harris. Don't think this is a good criticism. Second, Lara says Kamala Harris refused to support Proposition 47 and didn't endorse legal marijuana until 2018, quote, long after public opinion had shifted. And this this is part of kind of an overall criticism of, you know, yes, she prosecuted for possession of marijuana. That's flat out false. And I'm going to link a BuzzFeed article interviewing that that she did not endorse legal marijuana until 2018.

0:56:42 Thomas: Which part is flat out false, hmm. Yeah.

0:56:49 Andrew: BuzzFeed news article from 2014, an interview with Kamala Harris, in which she says, I think legal, the title is California's Attorney General thinks legal weed is inevitable. I'll let you read it for yourself. Just, it is not true to say that she was some kind of anti-drug crusader in the 2000s, in the 20-teens and didn't shift until 2018 long after public opinion. That's just not true. The third criticism is that she did not specifically endorse a 2015 legislative Black Caucus body cameras bill. That's true. She didn't oppose it. Right. But she came under criticism for not championing it.

It's true way it however you want. Then finally, the fourth argument are cases involving wrongful convictions. Want to hit these two cases because there are four people who are mentioned, but two of them are people where she ultimately did reverse, right? And she's being criticized for, you know, changing her mind, which I think is a dumb criticism. And we've talked about that before. The primary case upon which Lara Bazelon's article hinges, the one that I think sticks with people, is the case of George Gage. And again, I put this out here. George Gase was convicted of sexually abusing his stepdaughter.

That conviction was based largely on the testimony of the stepdaughter. He then filed a habeas petition that was denied and then much later filed a second habeas petition alleging ineffective assistance of counsel and alleging various Brady violations that certain evidence was not turned over to him.

0:58:36 Andrew: He worked with the Innocence Project. He was somebody that they suspected might be innocent. Emily's piece says this, Afterwards, and the judge discovered that the prosecutor had unlawfully held back potentially exculpatory evidence. OK, that's the Brady violation, including medical reports indicating that the stepdaughter had been repeatedly untruthful with law enforcement. Her mother even described her, this is the rape victim, as a pathological liar who, quote, lives her lies, end of quote. So what happened? This case went to the U.S. Court of Appeals for the Ninth Circuit, Kamala Harris argued before the NinTH Circuit Gage lacked standing to raise a Brady violation for this evidence in his second habeas petition, and she won at the NinTh Circuit.

0:59:29 Andrew: Circuit. So the Ninth Circuit said, yeah, you already filed your habeas, you get one, you didn't raise this the first time around, you should have raised it then, you can't raise it now. Emily's piece then says this, which is just, OA listeners will recognize as as not true. Appellate judges acknowledged this impediment and sent the case to mediation, a clear signal for Ms. Harris to dismiss the case. When she refused to budge, the corp upheld the conviction on that technicality. Mr. Gauge is still in prison, serving a 70-year sentence. OA listeners know appellate courts don't send cases to mediation. I will link this decision in the show notes. You can read it for yourself. Mediation is not in there. That's not a thing. The Ninth Circuit just ruled on the law that the issue was waived.

1:00:16 Andrew: And I have no idea what you would want an attorney general to do here, right? Could you imagine the opposite, right? The other side, that if Kamala Harris had intervened to introduce testimony, attacking the credibility of a rape victim for somebody who'd been, I know. All I know is that Kamala Harrison was right on the law. And this does not strike me as a clear case of injustice. In this instance, it, it, that's the case. The, the other case, um, I, I think is is another one, and this is Daniel Larson, is is another case that in my mind ought to be a pro Harris argument, right? Right. Daniel Larson was convicted in 1999, nothing to do with Kamala Harris, of a concealed weapons charge under California's stupid third strikes law.

1:01:07 Andrew: Right. So he wouldn't have been prosecuted if Kamala Harrison had been the prosecutor. Right. She never prosecuted anybody for nonviolent crimes under the third strikes long. But he was, because he got somebody way worse, and he was sentenced to life in prison. The Innocence Project then got statements that suggested that he didn't really have, he was wrongfully convicted of that concealed weapons charge. Right. There was a, there was an exculpatory statement. And the judge said, yeah. Oh, so they introduced that, and a judge said, at a subsequent hearing, said, yep, you're right, he's innocent, uh, I'm ordering a new trial. And, um, as attorney general, Kamala Harris appealed to the Ninth Circuit, and then the Ninth Circuit upheld the ruling. That's what she's being accused of, appealing that case to the Ninth Circle.

1:02:00 Andrew: Maybe should she, and, I, you know, I, you figure it out however you want to figure it out. However zealous you think an attorney general, uh, should be in defending, uh, convictions in court and appealing cases, um, but, but appealing a case to the Ninth Circuit is way different than the picture that you're getting in certain outlets of, you know, this is common, like out on the street, you know, personally slapping the cuffs on, you know, young black men with with joints, right? Like that, that, that, it's just, that's not, it's not an accurate picture. And, so that, so what happened was, um, Larson was convicted, right. Of the concealed weapons charge. It was his third strike. So he went away for life, uh, again, under a stupid law that Harris opposed, the innocence project in California introduced additional evidence and they successfully petitioned for an evidentiary hearing to reopen the case. Right, the district court granted that, reopened, looked at the evidence and said, "Yep, he's innocent, uh, we're vacating the prior sentence, he's free to go." Harris appealed that decision to the Ninth Circuit.

1:02:33 Thomas: I don't know how this is good. Maybe I'm not, maybe I'm not understanding. Don't. Yeah. Right. Right. Yeah.

1:03:16 Thomas: So I don't know how you're defending that then. Are you saying it's not as bad as something else?

1:03:20 Andrew: I'm I'm No. No. I'm saying, I'm saying that that's, that, that was the decision that was made. Right. Like I'm describing it. I'm not, that it was not a decision to prosecute, but that she did defend in terms of when, that when the judge made a decision, the California Attorney General's office appealed that to the Ninth Circuit where they lost. So it again, we want to correctly describe her career so that correctly describes a decision she made.

1:03:41 Thomas: Right. So, I guess the attack is like, this was an innocent guy, there was new evidence, and a judge agreed, but then Kamala Harris's office appealed that. And are you saying that that's not as bad, as people make it out to be?

1:03:54 Andrew: Right. Right. To I'm I'm saying that that's me, that is not Daniel Larson is in prison because of Kamala Harris. Right, which is the way in which it is being spun. To me, that is somebody who was already in prison. There was a district court ruling. You have as attorney general, you have a right, an appeal as of right to the Ninth Circuit. And she chose to to appeal that. Right? Right. Could you say maybe she should have looked at him and like, yeah, all right, we're not going to appeal that. We're going to let that go. I agree. I think she should've let that Go.

1:04:27 Thomas: Yeah. Okay. I guess I just confused. I wasn't sure if you're turning that into like a right

1:04:33 Andrew: So, Yeah. Well, this is not. Yeah, no, the pro Kamala part that I alluded to at the beginning was if the first prosecutor had been Kamala Harris, he would not have been prosecuted at all. Right. Because her policy was, I will not prosecute you because our state has this bizarre, draconian and awful.

1:04:44 Thomas: Yeah that's true and she's stuck to that policy yeah

1:04:53 Andrew: Yeah. She stuck to that policy her entire prosecutorial career. So, yeah. Did appeal the case. Valid criticism. I think that gets sort of into your realm of, you know, how does that how does that change your view of Kamala Harris? Uh, but, but that's how we understand it.

1:05:06 Thomas: Well yeah I think once she's vice president, we'll all be in prison. That's that's what I think, for sure. So that'll, that'll happen.

1:05:15 Andrew: You know, if you want to ask the political expediency question, it's worth noting that in becoming California's first woman of color as attorney general. She won that race 46 to 45.3 over the Republican Steve Cooley a race that took three weeks to count. Right. So it took three weeks after Election Day for all the ballots to came in. That was it was a nail biter. And so, you know, if you want to say as attorney general, Did she do things with an eye towards, hey, like I almost lost to, you know, a Republican in 2010 in California? Yeah, you could say that. But I

1:05:15 Thomas: Um yeah yeah there

1:05:58 Andrew: Think

1:05:58 Thomas: Are a lot of people who have no patience for you Democrats doing things that will keep them in power. I, I am not one of of those people. Um, I think obviously there's arguments on the margins, but, um, for example, I don't know, Doug Jones or somebody, like, I much rather would have somebody who's gonna be a good vote on some key issues but is probably pretty moderate because they live in a red state or whatever it is. That that's far better than having, you know, a Mitch McConnell or somebody who would likely be the Republican version who would take that that seat. So I, for one, you think that's a decision that has to be made. Um, other people seem to have zero tolerance for any of that and think that Democrats will magically stay in power no matter what happens or how left they go. I

1:05:58 Andrew: That's fair.

1:06:43 Thomas: Don't really think that's the case? Yeah.

1:06:43 Andrew: I you know what's super weird about that? And I and I know we're way over it. But but I want to endorse that 100 percent and say the the the anger never seems to be directed at the right people. Right. Like you should be angry at Kyrsten Sinema. Right. Right. Like you should be preparing to primary Kyrsten Sinema because she's way more conservative than she needs to be in Arizona.

1:07:06 Andrew: Right. Like Joe Manchin, Doug Jones, like I did beg

1:07:05 Thomas: Then she needs to be yeah, yeah yeah really if you go on that 538 site, which I do from time to time, and check, like, who is giving you the best value in terms of, yeah Yeah. Well, no. Yeah. Who's who's more like, because what they do is they take the prediction of how, you know, Trumpy or not Trumpy where someone should be based on their district. And then they take, you know, I know obviously you can't perfectly quantify these things, but they take the voting record and kind of evaluate like what is their Trump score. And what you want is like, yes, there's an absolute terms, you can see who is the most or least Trump. That's great, but also in relative terms to their district, like who is giving you the most, you know, like anti-Trump points relative to how uh Trumpy their district is. That's like an or state by the way, that's that's a really valuable score in my opinion. Yeah.

1:07:17 Andrew: For your buck. Yeah.

1:07:58 Andrew: Yeah, no, I totally agree. And that's how you discover people like Sherrod Brown in Ohio. Right. Who, you know, never shows up on the list of like most progressive senators. But like has has really, really carved out, you know, a a a quality voting record in a state that's gone red the last couple of presidential, you Know, a Trump state. So, yeah, I endorse that method 100 percent. Yeah,

1:08:04 Thomas: All right, well, we are way out of time. Um, in the end, I mean, closing thoughts on Kamala Harris as VP? Yeah.

1:08:33 Andrew: I'll let people make up their mind. I will say the position of where she is now is unimpeachable on criminal justice issues. She has introduced legislation to end cash bail nationwide, to end for-profit prisons. I mean, it is everything you would want. If you want to say that deep down secretly, you know, she's a cop who hates black people and wants to put them in jail. I don't think the record supports that. And, you Know, we tried to be as honest and as complete in going through that as as we could in this, you know, 80 plus minute episode. So so there you go.

1:08:36 Thomas: All right well, there you have have it. Uh, thanks for the breakdown, Andrew. I think we'd better quickly thank our patrons, but we don't have time for T3B this week. Um, but, you know, sometimes things are more important than that. Uh, I mean, I don't know what is, but apparently vetting our VP is, uh and I'm going to start us off, and I am going to thank Wacky_Woo, returning patron because I bought too much vape juice and and my Patreon payment declined, Katie H., Fred Beshara Jr., Yolanda Fay, N.C. Infidel, FBI profiling is nonsense!, and Joseph Catrambone, I'm not sure. Your turn.

1:09:30 Clip: And thank you, Let's go!

1:09:56 Andrew: We really have a patron named Catrombone.

1:10:00 Thomas: Yeah, not really. I'm sure if it's, there's only, there is one T, so it's not Catrambone.

1:10:03 Andrew: Oh Oh I'm just wondering what a cat, what a cat trombone would be like. Oh.

1:10:08 Thomas: And it's Trambone, how Do you spell trombone? Is it an A?

1:10:09 Andrew: Oh. M.

1:10:11 Thomas: Or, I don't know, I'm Yeah, see.

1:10:12 Andrew: T-R-O-M-B-O. Any.

1:10:14 Thomas: So, it's not at all that we'll

1:10:14 Andrew: Oh. Okay, I was just picturing a cat playing a teeny tiny trombon and

1:10:19 Thomas: Say Joseph Cat Trombone, all right, your turn.

1:10:22 Andrew: Thank you to Stephen Jones, Philip De Ford, Mike Schnauzer, Allison Tamber, Tambour Nini me, Susan Hofstadter, Bobby J. All Day, Aaron Cunningham, and what I think is Melanie with a mark. It translates with some unpronounceable characters, but I'm pretty sure that's Melanie. So thank you all so much for supporting the show. You can get your own shout out. Yeah.

1:10:22 Thomas: Right and by the way lot awful movies coming at you very soon, we're already due, those come out, reminder, Lot Awful Moves, around the middle of the month, and the q and a's are the end of the, uh, so we're coming up to a lot of movies time. So get on

1:10:56 Andrew: We have an amazing one for you coming up.

1:10:57 Thomas: Oh yes we do, patreon.com/law, thanks so much for supporting the show. You know, we have kind of a sad announcement here, though, uh, really to unfortunate, um, Ed Brayton has passed away. You've mentioned him on the show before, we've kind of referenced his work, um, it's really sad to see, he, he wrote a little something about what he was doing, his health, and his decision, and all that people should, uh, check it out. Um, but I know you wanted to say a word or two about Ed.

1:11:21 Andrew: Ed, Ed was a, was a friend of the show, he was, he was an internet friend of ours, um, I've met him a couple of times, uh, in person, uh, well, I knew his work, which he wrote over at, uh, Dispatches from the Culture Wars. And I will tell you, gets sort of the Thomas Smith Award for being the non-lawyer.

1:11:41 Thomas: On, let's not insult the man. What? No, I'm just kidding.

1:11:44 Andrew: Think it's a good way to honor his memory, right? It, right, when writing about the law and and in particular, um, uh, but he did comprehensive research into the religious, religious beliefs of the Founding Fathers. Um, yes, Christian dominionists will say all of our Founding Fathers were, you know, fundamentalist Christians who attended Liberty University, and, you know, and, right, and that's nonsense. But, like, one of the things that secular people will say in response is, no, it's not true, like, all the Founding Fathers were deists, none of them believed in a Right. Like you hear that. And the reality was was way more nuanced than that. Right.

1:12:30 Andrew: And, um, so Ed, Ed was, was, was great on that, and, um, and a couple days ago he announced that he was checking himself into hospice, uh, care, and know, had sort of made peace with, um, with the end of his life. So, so I'm sad to see him go, uh, and, uh, and he will be missed, uh, his contributions live on, and you should check that out. Yep.

1:12:23 Thomas: Yeah right rest in peace, Ed, we'll really miss you. And, uh, Andrew, thanks for the breakdown, I know you did a ton of research, I almost want to just put your notes up on the website for people to read. I'll see if I, yeah I might do that, uh, because it's 13 pages, there's a lot of research here, thanks for doing that breakdown, and I know there's more coming, but thanks for listening, everybody, we'll see you next time.

1:12:49 Andrew: Indeed Indeed. You can do that. Yeah, absolutely.

1:13:11 Andrew: Until then.

1:13:12 Clip: He's not even a lawyer and he's kicking your ass.

1:13:45 Clip: This podcast is a production of Opening Arguments Media, LLC. All rights reserved. It is produced with the assistance of transcriptionist Heather Loveridge, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Deborah Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki. Follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Argiments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.