Legal AF by MeidasTouch - Appeals Court Issues URGENT DIRECTIVE to Trump in Criminal Case

Episode Date: January 2, 2024

MeidasTouch host Ben Meiselas reports on the DC Circuit Court of Appeals Order that Donald Trump and Jack Smith must be prepared to address the arguments raised in the amicus briefs filed with the court which could lead to Trump losing the appeal on separate and independent grounds including on jurisdiction. Head to https://TryFum.com/legalaf and use code LEGALAF to save 10% off when you get the journey pack today! Visit https://meidastouch.com for more! Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Learn more about your ad choices. Visit megaphone.fm/adchoices

This is a big development in the Washington DC Circuit Court of Appeals oral argument involving Donald Trump's appeal on the issue of absolute presidential immunity. The DC Circuit Court of Appeals has told Donald Trump's lawyers and special counsel, Jack Smith, to be ready to address the discrete issues that were submitted to the court in the powerful Amicus briefs that we've been covering here on the Midas Touch Network to in particular that are very persuasive and we covered it here. Let me just show you the DC Circuit Court of Appeals order. Let me show you why I think this is so important.

This is a Percurium order. All three judges on this panel judge Henderson judge pan and judge child's all agree that this is what they want to see happen. And here's what they request. It is here by order on the court's own motion that council be prepared to address at oral argument on January 9th, 2024. Any inquiries by the court regarding the discreet issues raised in the briefs by the amicus curi by the friends of the court, these outside parties that submitted briefs to the court on issues that had not been briefed before or had not come before the court, whether it was by the district court judge, Tonya Chutkin's order or by the

briefing submitted by the parties. Let me tell you why this is so big. Recall the two amicus briefs that have been filed so far. You have another one was just filed as well, but the two main ones I want to discuss in this brief, number one is the amicus brief that was submitted by former officials in five Republican administrations supporting special counsel, Jack Smith. These were top Republican lawyers. I'll get into that in a moment. And then the other one was from a group called American Oversight and they are represented by a law firm Arnold, Porter K and Scholler.

And I covered that one as well. You will recall that the Amicus briefs submitted by the officials in the five Republican administrations argued that under the Constitution's Vesting Clause, article two, section one clause one, that Donald Trump's claim of absolute presidential immunity would essentially mean there would be no terms for presidents because they could simply declare themselves in office in perpetuity, take the power of a dictator and then claim their immune from prosecution. I'll delve into that in a little more detail with you. The American oversight argument you'll recall we covered it here on the Midas Touch Network is that the DC Circuit Court of Appeals does not have jurisdiction to even hear this appeal

because American oversight argues this is not appropriate for interlocutory review that the order by the district court denying Donald Trump's motion to dismiss the indictment on absolute presidential immunity grounds does not constitute a collateral order and thereby an interlocutory appeal cannot be taken. We'll get into these concepts a little bit more detail right now, but I wanted to frame the issue right there before getting into more detail. And the DC Circuit Court of Appeals has now formally accepted previously did before that that amicus refiled by the top lawyers and five prior Republican administrations.

And before issuing the order that I just read for you at the outset of this video, ordering that the parties Trump and Jack Smith be prepared to address these issues that were addressed in these amicus briefs, the DC Circuit Court of Appeals also accepted formally accepted, the amicus brief provided or submitted by American oversight. So the Court of Appeals, anybody can file amicus briefs with the various courts of appeals with the Supreme Court, with the district court. They're usually only submitted in high profile cases. The Supreme Court gets lots of amicus briefs on the various cases that are on its docket,

the DC circuit court of appeals and the various circuit court of appeals, usually don't get as many amicus briefs, because there usually isn't that high profile issues that are addressed on a day-to-day basis. But when there are, amicus briefs are submitted. Anybody can submit a, that's a third party. And Amicus brief is a third party brief intended to try to persuade the court, but it has to address some unique issue that is not already being considered or

contemplated by the court. The court can reject it. If the court accepts it, that doesn't mean they're embracing the argument. That just means that they'll say, okay, I'm going to read it. And then the DCs are a court of appeals. When a step further, not only say, okay, I'm going to read it. And then the DCs are a court of appeals when a step further, not only saying, okay, I'm accepting it. We'll read this because they could have rejected it and said, we don't know, we're not going to even look at this. They said, okay, we'll read it. Not only that, but the full panel said, and you know what, Trump, and you know what,

Jack Smith, we want you to address these issues. And by the way, this is good news as well because both of those Amicus briefs that I'm mentioning are supportive of Jack Smith's position. They're supportive of, frankly, the constitutional position that there is no absolute presidential immunity when it comes to former presidents who engage in criminal conduct

that that's just absolutely absurd. So let's just take a look right now, though, at these two Amicus briefs that have now been accepted and the discrete issues that the DC Circuit Court of Appeals is asking the parties to address. So the first one is the Amicus brief submitted by officials in five Republican administrations. It goes all the way back to Nixon. And if you look at it, you know, who this list is, it's a who's who of the top Republican lawyers and the various administrations. Everybody from Donald, air, deputy attorney general and deputy solicitor attorney general from 89 to 90 was in the Reagan administration. John Belinger, legal advisor to the state department from 2005 to 2009.

And in the legal advisor to the national security council of the White House, 2001 to 2005. Barbara Comstock, representative of the 10th congressional district of Virginia, and she was there from 2015 to 2019. John Danforth, United States Senator from Missouri, from 1976 to 1995 in United States ambassador to the United Nations from 2004 to 2005, and the Attorney General of Missouri from 1969 to 1976. You got everyone, you know, all the way down on the list to judge, flooding, you get the and the attorney general of Missouri from 1969 to 1976. You got everyone, you know, all the way down on the list to judge, flooding, you get the point there. We're talking about top Republicans, senators, members of Congress, top judges,

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presidential immunity. And this is what they say in that brief. This is the discrete issue that the DC circuit court of appeals wants Trump and Jack Smith to be prepared to address that oral argument. A core allegation of the indictment is that Mr. Trump knew that it was false to say that there had been outcome-determ determinative voting fraud in the 2020 election. But nonetheless engaged in criminal lies and conspiracies to overturn the legitimate results of the 2020 presidential election of retained power. Under these allegations, former President Trump's criminal conduct was directed to usurping the authority and functions of the presidency for the current

term to which President Biden was legitimately elected. That constitutes an alleged effort to violate Article 2, Section 1, clause 1, also called the Executive Vesting Clause. That is an attack on Article 2's very design for the presidency itself. The last thing presidential immunity should do is emboldened presidents who lose re-election to engage in criminal conduct through official acts or otherwise as part of efforts to prevent the vesting of executive power required by Article 2 and their lawfully elected successors and article two section one clause one of the Constitution provides the executive power shall be vested in the president of the United States of America.

You shall hold his office during the term of four years and together with the vice president chosen for the same term be elected as follows. So that was the discrete issue addressed by that Amicus brief then in the American oversight brief. They said, this is a jurisdictional issue, DC circuit court of appeals. There is a 1989 Supreme Court case called the Midland asphalt. That's just the name of one of the parties. That's why it's called that way. Justice Scalia now deceased, though, who is a very kind of right wing conservative justice found that only where there is strict textual support in the Constitution or a statute for an interlocutory appeal or a strict textual support or a statute for some immunity unless that strict textual support

exists, there should not be any jurisdiction at all. You are not allowed to do interlocutory appeals. The order by a court on these issues that aren't involved in some sort of strict textual creation of an immunity, that's not a collateral order. You have to wait if you are a criminal defendant until the case is over until you are convicted before you take an appeal because only then when a final judgment is achieved, then you can appeal the whole case. But you can't appeal piecemeal unless there's strict textual support or a statute that would let you. And I'll look, the case says what the case says. I mean, that's what Midland asphalt says. You've got a right wing

strict textualist and Scalia justice who, um, who, who made that decision that would seem to resonate a lot with the current Supreme Court bench six three, three, and not having jurisdiction is actually a quicker way for both the DC circuit court of appeals and the Supreme Court to basically say, you know what, Trump, come back to us when we are, when the case and the trial is over, this should go to trial immediately. That's why that American oversight brief is ingenious because the Supreme Court and courts of appeals generally have a something called constitutional avoidance. And where they could, it's a, it's a canon of constitutional interpretation called constitutional avoidance, where the Supreme Court or Court of Appeals does not have to make

some brand new law on the Constitution yet. They will avoid doing so until the issue is kind of fully and finally has to be decided. And only then when it has to be decided, will they reach the issue of the merits of what the Constitution said. Notably, Jack Smith didn't make that jurisdictional argument because I think that Jack Smith is like, I don't want to do constitutional avoid it. I want to go right to the core of it. You don't have absolute presidential immunity, former presidents are not entitled to kinglike

powers that the doctrine doesn't exist. And even at the outer limits, if it did exist, it doesn't exist here where the conduct based on the blasting-game DC circuit court of appeals decision, based on the 11th circuit court of appeals decision and the Meadows case, this is not within the amput of what Article II is about the conduct Trump was engaged. And it's for the states to monitor their own elections,

not for presidents, now former presidents to interfere with the results of state operating elections. So Jack Smith didn't go there. That's why Jack Smith didn't, but American oversight said, no, no, no, no, this is an issue where DC Circuit Court of Appeals under Midland asphalt, you don't have jurisdiction. This case, Trump didn't have the right

to do an interlocutory appeal before you. So you should not even have to entertain the merits, just send it back to the district court for trial, and that's what the DC Circuit Court of Appeals wants the parties to address. So in addition to just the issues raised and in the order by Judge Tanya Chukkin, in addition to the issues raised in special counsel, Jack Smith's answering brief and in Trump's opening brief, DC Circuit Court of Appeals is saying

parties addressed a jurisdictional issue, whether we should even be able to hear this in the first place and address the issue of the executive Vestin clause brought by the top Republican lawyers beef before us as well. So big development there as well. And I mean, look, this oral argument takes place January 9th. Trump's lawyers are going to get ripped to shreds because their argument is so species so frivolous. I can only imagine what that oral argument is is going to it's going to look like but of course we'll keep you posted every step of the way. I'm Ben Myselis this is the MidasTouch Network and subscribe we're on our way to two million subscribers thanks to your support let's get there this month thank you so much. Hey Mid Midas, Mighty. Love this report.

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