An out-of-court statement by a party that, when uttered, is against the party’s pecuniary, proprietary, or penal interest and that is admissible under both an exclusion (admission by a party-opponent) and an exception (statement against interest) to the rule against hearsay. Such a statement is admissible even if the declarant is available, because an admission by a party-opponent is non-hearsay and, thus, does not require unavailability.
This story all starts with a rather dense politician, Missouri [mc_name name=’Sen. Claire McCaskill (D-MO)’ chamber=’senate’ mcid=’M001170′ ], crowing in POLITICO about how she manipulated the 2012 GOP primary so she could face Todd Akin, who she now assures us she was sure to beat. I am skeptical of this claim. I am skeptical of any claim by any politician that they are this competent when nothing in their history indicates they were capable of organizing a two-car funeral.
It was August 7, 2012, and I was standing in my hotel room in Kansas City about to shotgun a beer for the first time in my life. I had just made the biggest gamble of my political career—a $1.7 million gamble—and it had paid off. Running for reelection to the U.S. Senate as a Democrat from Missouri, I had successfully manipulated the Republican primary so that in the general election I would face the candidate I was most likely to beat. And this is how I had promised my daughters we would celebrate.
But first let me go back to the beginning.
After a lengthy lecture about how
Machiavelli McCaskill fooled all those wascawy Wepubwicans we get to the meat of the story:
A Post-Dispatch poll conducted July 23–25 showed Brunner leading the race at 33 percent, followed by Steelman at 27, and Akin at 17. But our polling showed the race was tightening, with Brunner still up by a point or two and Steelman solidly in third. Then, unexpectedly, the Akin camp took down one of his own ads that had been so effective. In it Mike Huckabee, the former governor of Arkansas and a leading voice in the conservative movement, endorsed Akin and explained his reasoning looking straight into the camera. It was powerful, but Akin’s camp replaced it with Akin talking about “flames of freedom.” What were they thinking? Akin didn’t have money for polling, but we had been tracking the numbers carefully and concluded that he’d be in trouble if he didn’t get the Huckabee ad back up.
On the Thursday before the election, I called Ron Gladney, the husband of Rep. Jo Ann Emerson, a Republican from Missouri. I asked him if he could get a message to the Akin camp to put the Huckabee ad back up. Of course Gladney started laughing and asked, “Are you kidding?” “No,” I replied. “If he gets the Huckabee ad back up by Friday, he’s going to win.” I also placed a call to Michael Kelley, a Democratic Party and labor operative who was friends with a former Akin staffer, and asked him to convey the same message to the Akin camp. A short time later my campaign manager, Adrianne Marsh, got a call from the Akin campaign. The person on the line wanted to talk to our pollster. Adrianne called me, and I gave clearance, allowing Kiley to speak in broad generalities. Three hours later the Huckabee ad was back up.
[mc_name name=’Rep. Justin Amash (R-MI)’ chamber=’house’ mcid=’A000367′ ] cried foul:
— Justin Amash (@justinamash) August 12, 2015
At issue is whether McCaskill’s campaign illegally coordinated with Akin’s campaign by giving him a significant contribution-in-kind, to wit, polling data. Kind of trivial sounding but one that comes with criminal liabilities if true. I am not a lawyer. I don’t even play one on the internet. Rick Hasen at Election Law Blog is a lawyer and an authority on campaign finance law. He took a look at it:
On reflection, I think the stronger issue is whether McCaskill made an unreported and excessive in kind contribution to the Akin campaign by sharing the results of her polling data. If she gave the campaign something worth more than the limit (which was probably $2600 in that election) she’d be giving an in-kind contribution, and a contribution worth that much would have to be reported. Well did the Senator give Akin something of value? It looks like it. After all, we know it is valuable to him because the Senator writes “Akin did not have money for polling,” and she provided the information he needed to clinch the primary (at least in the Senator’s telling). Elias’s response to this point is: “There’s no suggestion she shared ‘polling data’. She only ‘gave clearance, allowing [pollster] to speak in broad generalities.” Perhaps that distinction will work, but I still think the issue is a serious one and merits a fuller analysis (and certainly fuller than I can give it now). I’m not suggesting the Senator broke the law, but there is enough here to justify a closer look. I should add that there’s the potential to look not only at McCaskill’s campaign but also Akin’s campaign. P.S. Motive does not matter. Here’s a case I worked on as a clerk in which one contributor made an excessive in kind donation in a California Senate race to a fringe candidate and claimed it was not illegal because he was doing it to help draw votes away from the Republican candidate to help the democratic candidate. He went to jail. Michael Goland v. FEC.
Odds are nothing will come of this. McCaskill is a Democrat and the Obama Justice Department has shown an incredible reluctance to prosecute their fellow-travelers. With McCaskill’s record, there is at least a 50% chance she is simply lying to make herself look like something she isn’t: intelligent. But a barely sentient FEC should at least inquire about it. Like I said, IANAL. Representative Amash tweeted and said I missed the elephant in the room:
@streiffredstate Main issue isn’t polling data; it’s unlawful coordinated communication. Akin’s campaign paid for ad suggested by McCaskill.
— Justin Amash (@justinamash) August 13, 2015