Legal AF by MeidasTouch - Bannon Makes Desperate Bid to Scuttle Prosecution

Episode Date: March 17, 2022

The midweek edition of LegalAF x MeidasTouch, the top-rated weekend global news podcast covering US law and politics, is anchored by national trial attorney and strategist, Michael Popok and former prosecutor and leading criminal defense attorney Karen Friedman Agnifilo. On this week’s episode, the anchors discuss: (a) late developments in the prosecution of Steve Bannon; (b) the start of the Governor Whitmer conspiracy to kidnap trial; and (c) the DOJ’s change of heart to allow compassionate release for prisoners consistent with Congress’ 2018 First Step Act. Follow Legal AF on Twitter: Legal AF: https://twitter.com/MTLegalAF Karen Friedman Agnifilo: https://twitter.com/kfalegal Michael Popok: https://twitter.com/mspopok Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the midweek edition of Legal AF with your co-host, I'm Michael Popak. I'm Karen Friedman Agnifalo. And we're going to get right to it, Karen. We got a lot to talk about and we're going to bring that brand of legal and political analysis that our fans and followers have come to expect and love. We get a lot of compliments not only on the overall brand of legal AF, but on this special did we condition people are sort of digging the chemistry Between you and me that's different in its own way its own its own thing then the Ben and Popak chemistry on the weekend Thank you. We are adorable. I did say to him when he told me it was our one-year anniversary

I did respond with what when he told me it was our one year anniversary. I did respond with what did you get me? You know, you know, typical, typical person in the relationship. He had no response. He got you a t-shirt. He got me a legal AF, a pocket t-shirt. But people are enjoying this one. There are still a few that are trying to sort things out. They still think I'm interviewing you. And they're like, we just stop interrupting the guest. I'm like, I don't think you're kind of getting what we're doing here. We interrupt each other. It's called a conversation.

It's called a conversation in a co-hosted show. So, but that's like one out of a million. And we're doing great otherwise. So on today's or tonight's midweek episode, we're going to dive down into three very interesting topics that we haven't covered before on the show. One of them is we're going to do a sort of update on the trial related to the attempt to Kittnapp governor Whitmer of Michigan and where we are with that. And the entrapment defense that the five or six

a defendants are trying to run in that courtroom. We're gonna talk about something that, frankly, I don't know, in 52 episodes with Ben, we've never talked about, which is compassionate release under the 2018 First Step Act passed by Congress, a little known act that nobody was really paying attention to, except for criminal justice nuts like you and by extension like me, which gave the right to a federal court to let somebody out early for compassionate extenuating circumstances in a way that the Bureau of Prisons, frankly, would never

do and never has done. But there is a problem related to that related to the US sentencing commission and how Department of Justice prosecutors without having any checks and balances have decided to sort of corrupt what the compassionate release provision was supposed to be all about. We'll talk about that tonight as well. And then we're going to talk about an update on the ban and Steve ban and trial. There's been sort of I don't want to call it a bombshell, but there's been a development related to the preparation of the

case and the development of the case by the prosecution team and some recent filings that will lead to an evidentiary hearing that will happen on today on Wednesday. And we'll report back on that after we get the full report of it. But there's some things that happen this week leading into it. But first, let's talk about some things that have developed in our own professional lives, Karen. How are you? I'm really good. I'm just kind of plugging away, doing my thing and, you know, being a lawyer in adjusting to.

I like being in private practice. I like it, actually. I surprisingly, I'm enjoying it a lot. It's really interesting and it's, I never realized before how hard it is, especially to represent somebody who is innocent of a crime or who's accused of a crime. Their life is literally in your hands and that's a lot of pressure that, and I didn't appreciate it as a prosecutor, but I'm enjoying it. Yeah, it's the biggest difference between civil

and criminal practice and criminal practice liberty is that stick. And in a way that really brings home, why we got into this, I think both of us got into this, I do a fair amount of criminal defense practice and now you do. Remind me, were you ever in a private practice doing civil work before you went into sort of a career

on the prosecutor's side? No, so the only, I was at the Manhattan DA's office since the minute I graduated Georgetown Law School in 1992, but I did leave for a brief period of time in the middle there for a few years to go work for Mike Bloomberg when he was mayor of New York City and I worked on criminal justice policy work,

but other than that, I've been in the government prosecution law enforcement world for 30 years. This is my first foray into private practice, but I'm really enjoying it. It was a little bit of an adjustment at first, but I'm really enjoying it. Good, and we're really enjoying having you here

and your lifelong prosecutorial lens that you can apply to the things that we talk about. So let's kick it off with something that prosecutors think about at the Department of Justice, I'll frame it and then we'll sort of get your impression of it. There you, in 2018, the Congress, really a bipartisan approach, passed a reform for criminal justice that allowed.

By which president? In 2018, it would have been President Trump. Yes, yep. I have a theory about this, by the way. I have a theory about this whole thing. Yeah, he signed laws that he knew he one day would take take advantage of Well, there's that but I'll tell you my theory and go on Let me frame it. Yeah, let me frame it first because everybody's like

Like what's pop up? What is it? Yeah, what is it? So in 2018 they passed a law that allows for the first time the federal courts, the defendants who are serving time can petition, file a petition with a federal court, and let a federal court judge decide whether extenuating circumstances, and it could be a myriad of things. It could be personal illness, it could be rehabilitation. It could be a change in circumstances outside the prison in their family life or otherwise dying of cancer. You know, it could be many,

many, many things. The Bureau of Prisons had been sort of, let's just call a spade, spade, had been sort of heartless about those kind of applications, they were almost never granted. Now, since 2020, only 36 times in the history of compassionate release did the Bureau of Prisons actually granted. So almost not at all. So let's, so let's put it against what's happened since 2018. 30 will take you at your word 36 times in the history of the Bureau of Prisons, they've granted it. 7,000 people have applied since 2018 for compassionate release in 4,000 have been released on those grounds by the federal court. Why are we talking about this? Because the Department of Justice

until recently, I mean very recently had, I don't want to call it a policy, but had allowed prosecutors in their plea agreements that they struck with defendants to have a provision in there that would actually limit the ability of the defendant to ever ask for compassionate release in the future. They would have to agree to that as part of the plea deal now. Go to prison with this on their records. So in other words, if an extenuating circumstance, that Congress had envisioned came up in this prisoner's life, the prosecutor would be able to wave around the plea agreement and say, well, that may be true, but you waved your right to ever seek

this kind of extenuating circumstance. And, And NPR broke the story and did a very good set of reporting on this, which made its way up just to show you the reporting and First Amendment rights are important. Made its way up to Barric Garland and Lisa Monaco, the number two head of the entire Department of Justice. And they looked at the issue and said, you know what? That's not what Congress intended to allow our prosecutors to have unfettered discretion to stick this in plea agreements. And then the last thing that's very interesting is that it reminded me, I guess I do it, but I had forgotten that even Biden in this area is not doing a right, the right thing. Is he's allowing the sentencing

commission, the US sentencing commission, the very same commission that are our next associate Supreme Court Justice, Katanji Brown Jackson served on. It is now immobilized because it doesn't have a quorum. It has six or eight empty seats, even under Biden. And so normally the US sentencing commission would make recommendations about how to implement the 2018 Act. But it's right now, it's powerless because it doesn't have enough people sitting on it, which has allowed the prosecutors to sort of do their thing when they're negotiating

please. So first question I have for you is former prosecutor. Did you have something similar to this in the New York State system? Or is this something that really just resides at the federal level? Oh no, there's something in the New York State system. It's called a Clayton motion that it's an interest of justice, compassionate release, sort of motion that you can bring to a judge and request compassionate release. But similarly, it's a high burden, it's a high hurdle to go over, and it doesn't happen very often.

But there are circumstances when it does. I mean, compassionate release happens in all sorts of ways. It happens through prosecutorial discretion, through judicial discretion, through parole discretion, but also through legal mechanisms like the compassionate release where you get reviewed by a judge and they look at certain factors to see, you know, you can imagine a scenario where where you are being prosecuted and serving time for a low level crime, but now you suddenly find out you have terminal cancer and this becomes that you're your two year sentence is now a life sentence and that that by some be viewed as cruel and inhumane. And there's some people who need medical care who can't get it in prison. And others who are so infirm that there's no way they could possibly recidivate.

And they've aged out or they're physically in bad condition. When you say recidivate, what do you've been? Commit more crimes. To commit crimes again. And it's tricky because on the one hand, you want certainty and you want efficiency and you don't want to constantly be going back and having people, their files reviewed,

you also want to give that to the victims of crime. I mean, especially the really, really heinous crimes. You don't want them sort of always looking over their shoulder and wondering, is this guy going to get out for some reason? That being said, and that's one thing that in one aspect of this, but it's also just cruel and inhumane. When you see, when you read the stories of the people who are granted, who apply for and grant our granted compassion release, it's really sad. And of course, many of them should be considered and especially during COVID, where I think I read somewhere

that COVID spreads in a prison population like six times more than on the outside. And you've got some frail people in there. And I think that's where the judges were really using this and utilizing their discretion and releasing people. Like one observation, then one follow-up question. The observation is, I want to make it clear, because sometimes people click onto our show and they're like, oh, leftists.

They're like, Ben and I did an entire thing about the Supreme Court's decision about the Boston Marathon Palmer. And it was a very straight down the middle, balls and strikes, discussion of Clarence Thomas' decision, and the perfect trial versus the fair trial under the the Sixth Amendment and all of that. And that was it. I mean, you know, we have our own views about death penalty not being, you know, my own personal view of it being cruel and unusual punishment, it shouldn't be used in a civilized society. And this person wrote in a review,

oh, the leftists were defending the Boston marathon bomber. All right, that's, that's not true. And neither are we here undermining the dignity of the victims of the, you know, these people are imprisoned as they committed a crime. They're not getting out because they're being found innocent. We're not talking about the innocence project. We're talking about mercy being shown for extenuating circumstances to be evaluated by a federal judge. I mean, nobody knows the

pain and suffering of victims better than KFA, better than you because of the different units that you supervised and the sex crimes, prosecutions that you did. So we're not, we're not, I want people to be clear, Karen, you're not saying that there's no victim, this is victimless crime and these people should be released for compassion, right? No. And so just to be clear, even, so just putting in context this first step act and this memo that just came out, this memo only, I think only nine jurisdictions in this country

were even utilizing these waivers. So the vast majority of Department of Justice prosecutors weren't using this, but there's certain states that did. But it called for sort of a lack of uniformity. And you have one get arrested in one state, you have an opportunity for a compassionate release, but in other same crime in a different state, you don't. And so they're trying to bring fairness here.

And they carved out, there's a carve out here. And they said the They're that you can still do it in rare circumstances like a terrorist case or a murder case things like that So they're really not that they even the Department of Justice is recognizing that there are certain cases where it really It really is not appropriate to be released ever and that has been carved out of this That that brings me to my question as and wearing a prosecutor's hat for prosecutor's hat for a moment. Why even limited exceptions? Why not? If you're going to effect you weight, what Congress intended, you read through

the legislative history and you see the act, why not leave it to the discretion of the federal judge to decide whether on balance weighing all of the elements, weighing, weighing at all the extenuating circumstances, the crime, the chance of recidivism, the chance of rehabilitation, whatever it's going to be. Why not do that? Why is the prosecutor, I mean, I'm going to play devil's advocate here. Why are they still allowed, even the least under the Lisa Monaco directive, to put their fat finger on the scale? And in negotiating a plea, take out that which Congress has allowed.

Why is that even appropriate? So I'll put on my prosecutors hat, but I reject the fact that I have a fat finger, but I will put on my cross-cars. Let me say, I may. I think so, just getting context, unlike law and order, law and order makes it seem like every big case goes to trial. But in the real world, only I think 2 or 3% of all cases go to trial and 97% or some huge number like that of cases, of criminal cases are resolved ahead of time in a plea bargain.

And a plea bargain is just that. It's a bargain usually. Usually you get something for pleading guilty and the reason you get something for pleading guilty and to get something is usually some sort of lesser negotiated, either something. And the reason you do that is for several reasons. One is to spare the victims so they don't have to go through the trauma of telling their story at trial and then getting cross-examined. And there's always a risk at trial. You know, you never know if you're going to, if you'll, if you'll win or not. And so to spare everybody of kind of the the problem and the pain of a trial, you enter into a plea bargain and a negotiation. Now, at trial, don't forget all of the ugly facts would come out, you know, all the horrible things

that you did would come out. The judge would hear it. And so you would think that at sentencing, the judge would take into consideration the appropriate sort of what happened and the heinousness of the crime. Here, you can imagine a scenario where you don't get that kind of information and a plea bargain and a judge just doesn't get that kind of information.

So they might not realize how serious and severe this is and what it would mean to a victim and the defendant is usually getting something. So I think in exchange for that and to make sure to that the victim will have a sense of security and to make sure that the judge doesn't abuse their discretion from a prosecutor's perspective. I think that's why they allowed it to go in for the rare cases. Imagine if there was a trial on the 9-11 terrorist attack or the Timothy McVeigh, Oklahoma City case. You can imagine certain cases where the facts are so egregious

that if the person was going to plead guilty that you'd say, you know what? I don't think this or a pedophile, you know, a serial pedophile who, you know, has I mean, I could just, there's so many different scenarios that you can imagine where you'd say, you know what, society at large should know that this person will never get out no matter what and that that's I like that perspective. I mean, I still think that We need to wait to see What the sentencing commission is gonna do if it ever gets fully constituted because they're gonna wait Do you know that did you see the head of the sentencing commission is?

It's one of the justices is it's justice briar and you know who justice briar is It's the of the justices. It's Justice Breyer. And you know, who Justice Breyer is? It's the brother of Stephen Breyer. Yes, and it's just funny, because Katangi Brown Jackson was sitting on the sentencing commission with the brother of the justice that she's replacing anyway. It's a very small world. And that she clerked for.

She clerked for Stephen Breyer on the Supreme Court. Yeah, so we'll follow this. I think it's interesting. And a person allows you to sort of flex your chops of being a prosecutor. So I really liked the story when we curated it for today. Can I tell you my theory of the first step act, by the way, signed by Donald Trump?

Yeah, that's right. Yeah, why did Trump sign such a criminal justice reform act? He did a lot of criminal justice reform, surprisingly for someone on the right. And my theory is, because I'm cynical, is I don't know if it's widely known or people remember, but Jared Kushner's father went to prison. And you know who prosecuted him?

Chris Christie. Are, yes, I know which was which he always he never he never never forgave him. Which is why he never forgave Chris Christie. Which is why Chris Christie was never anything in the Trump administration. Right.

And but I think that all of the criminal justice reform was very much pushed by Jared Kushner and his experience with the justice system through his father. I think you are 1,000% correct because Kushner, I think reporting has been big-footed and stopped Christie. Trump would have done it. Trump would have made Chris Christie the attorney general, if not after sessions instead of bar or even before sessions. And the reporting has been exactly what you said that Kushner and therefore Ivanka, were like, absolutely not. But it's interesting. The point you make about criminal justice reform because poor Jared Kushner, the poor little boy, whose father went to prison for five years

because he committed fraud. Yes, I could see him holding the lamp out there for to make sure criminal justice reform happens on their watch. Now, one of the little known facts is that Chuck Schumer with the support of Biden, and others has been able to pass even more criminal justice reform. People think, oh, it's stalemate. Nobody, there's nothing being passed to do nothing Congress. That's not true.

And even though it's 50, 50 with Kamala Harris in the tie break vote, they are passing a lot of laws on criminal justice that you, including, I can't even believe this wasn't on the books, and we'll talk about it another time. An anti-linching statute, how was that not on the books in this country? But we now have an anti-linching law, thank God, that you can point to if somebody tries to, if somebody tries to linch or you are, or somebody, and your family is victim of linching.

We'll talk about that on another time. But yes, I think that's a fascinating observation that I haven't heard made on other podcasts. So thanks for doing it. Let's move on because everybody expects us to be both really, really interesting but also really efficient with our time. So I'm going to move on to Steve Bannon because I think that's interesting. So Steve Bannon, as everyone knows, is being prosecuted by the government, by the Department of Justice for contempt of Congress, because he has refused to comply with the subpoena of the Jansics Committee to turn over whatever he has that relates to the big lie or the insurrection or anything in between. And, um, and so, you know, having, having had, uh, a letter requests,

having had subpoenas that he's completely ignored, it's now, uh, the referral was made to the Department of Justice, to the US Attorney for the District of Columbia at the time, and they made the prosecutorial decision to bring a case in, I think November or December against Bannon. The judge is Judge Nichols, which we'll talk about at another time who has been okay. He is a Trump appointee. He did recently dismiss a obstruction charge against one of the defendants arguing that obstruction was not a proper charge to bring based on the legislative history of that particular charge. Why does that matter?

Because like 170 out of the 700 insurrectionist defendants are charged with it because it leads to one of the highest penalties of up to 20 years in prison if you obstructed the government and its process in this case, the electoral count. So he's one of the outlier judges that has dismissed obstruction, Guy Reffett, who you and I talked about last week, not only was charged with obstruction, he was convicted of obstruction by a jury of his peers. So we got that going on. But Nichols is, you know, he's got a trial that he wants to do in the summer.

The government is being put to its proof, and there's been a development in an attempt to subpoena some records. So why don't you tell everybody what's going on and where you think it's going to come out in terms of this tempest about the attempt to subpoena the records of the lawyer for ban and as the government tries to prove its case. I mean, I think this one's much a do about nothing. I think, you know, the Trump playbook and all of his acolyt, you know, all of those cronies that it's like if you scream something and you say it loud enough and you call it with hyperbole and et cetera, somehow it's outrageous and it's terrible. And to me, this falls into that sort of,

into that sort of camp. What is it? What is it he complaining about? So what he's saying is that, so the government is trying to prove their case, the prosecutors are trying to prove their case against Steve Bannon, right? And one of the things they have to prove in their contempt

prosecution is that he knew about, that he was had knowledge, that he was supposed to appear before Congress. And his lawyer, Robert Costello, was acting as the intermediary between the defendant, Steve Steve Bannon and Congress. And so if Congress subpoenaed Steve Bannon, they'd send the subpoena to Costello and Costello would communicate with his client and his client did not show up or refused to show up. So, you know, the prosecution still has to prove their case beyond a reasonable doubt and they have to prove that he was told and that he knew. So in order to do that, they were looking for this kind of connection to show whether

it's through an email or a phone call that the lawyer contacted Steve Van and during this particular window of time when the subpoena was issued and he didn't show up. Now in other words, it wasn't just that they have the government has, of course, the email or whatever transmitted the subpoena from the Gen 6 committee to Castelo, but they're need that next link of Castelo to his client, right? Exactly. That's exactly right. So they, so the it's complicated because normally the government doesn't subpoena or ever do search warrants or subpoenas for records of an attorney because you then, you can, you dangerously enter into the territory

of attorney client privilege. And there's one exception, which is the crime fraud exception, but that doesn't really apply here. But the government was doing those, not looking for communications between the attorney and the client, they were looking for content. So not the content of any calls

or the contents of any emails, just the records that show, you know, like a telephone record that would show on this date, a call was placed from this phone to, that's Mr. Castello to Mr. Bannon and it lasted 25 minutes. One would argue and it's between the period of when the subpoena was issued.

One would argue that was the phone call where we're explaining the subpoena. That's sort of link. The problem is in order to get that information, the government can't just magically look into some database or snap their fingers and get this information. So they have to subpoena records and sometimes you do search warrants for records depending on the type of information they're looking for and all of that's located in something

called the Stored Communications Act, which is a federal statute that explains exactly what you have to do in order to get these records. And so the first step is to subpoena subscriber information. And that's what routinely prosecutors do. And they want to subpoena the subscriber information for Mr. Costello's cell phone and cell phone records and emails. But they're the subscribe.

He's the subscriber in that. Correct. Correct. The person is a subscriber, and they're going to the carrier to get that information. Exactly. And so once they get the subscriber information and then they can determine which ones belong to him as opposed to somebody else, that's when they do a search warrant for the information within that they're looking for. But the first step is to try to identify what are his emails

and what are his phone numbers. You know, you don't always have all that information, right? He could have more than one email and more than one phone number. So they're looking for information for that. And so you do a little homework and you look in certain law enforcement databases and certain open source information. And you gather as much information as you can.

He's approximately this age. And he lives in this location. And I see an address in this location to this person. I mean, trust me, if someone were to do look for subscriber information and they found someone with an email for Karen Friedman Agnifalo, I can assure you that is me. I'm probably the only person in the country with that name. But Robert Castello is a fairly common name unlike that. So they have to do especially, especially the New New Jersey Connecticut area. Exactly. So they have to do a little more sort of digging to

get the information and try to figure out if they get the right person. So this was very routine and so they did they get the information they get the information back from I think Google Yahoo and Comcast I believe it was and they quickly determined that two of the three aren't him, you know, ones two young ones two old one lives in a wrong, you know, whatever, for whatever they did, they quickly learned it's not them. So they put it aside as every law enforcement person would do when you do this exact kind of investigation. And they see one and it looks like him. It's the right age. It's the right location. So they then go the next step

from a subpoena, which is something that you get to do from your own computer if you're a prosecutor, you don't have to go to a judge to a search warrant where you do go to a judge. And you swear before you have sworn information that you go before a judge and you ask the judge to order a search warrant for the content, for certain content, you know, communications that requires that requires a search warrant. Now in this particular instance, in the search warrant, by the way, you need probable cause and you have to be very particular. So you can't just, you have to be careful.

I mean, it's not, you have to make a showing and you're swearing under oath that this is accurate. But you know, human beings make mistakes. And in this particular case, somebody made a mistake. And when the mistake they made was they didn't realize that, you know, the middle initial and the middle name was different than the lawyer, the actual lawyer's middle name. Had they known that or noticed that, they would have tossed that one to the side to and realized that's not a Z-Mail address. So because there was what some might argue a mistake or carelessness or an oversight, that's where the lawyers

and Steve Bannon are up in arms. Their hair's on fire, calling, making all kinds of accusations of irregularities and whatever. They're just saying that this is just such a, I don't even know what they're saying, but it's just great. Well, let me, let me, let me, let me round it out. Let me round the circle here for the square.

They're claiming that because the government, as you just accurately described, you know, in their catch and release of numbers, trying to figure out which one is, because, which one's the right Castello. I, you know, you know, what I'm I'm about to do right who's on first? Yes, exactly. Abbott and Pistolo. I had to do have an account. Anyway, in doing that, ban and is arguing, oh my god, they've made a Brady violation, which is, yeah. All right, which is that we've talked about this I think in the last episode or the episode before that, the defense has the right under under case law called Brady to get a sculptor or anything that may prove guilt or innocence at the time of trial.

The prosecution has to turn it over and it's called Brady material. They're saying, aha, we should now understand and learn and it should be discovered, it disclosed to us all of the deliberative and investigative process that the prosecutors are using against my client because they effed up the initial for my lawyer in their filing. Aha. And they cite a couple of Supreme Court cases, which frankly, I read them, and I also read the government's response to this. And I was like, these cases have absolutely nothing to do with what happened.

Nothing, yeah. In the one case they cited, for instance, which you're probably very aware of, is a case in which a, the underlying, what appears to be in culpitor, you know, that something that's going to go to guilt, culpitor, you know, that something that's going to go to guilt. But when there is other information provided that the government withheld, it would undermine the power, the credibility, the relevancy of that piece of evidence going against the defendant. Well, of course, that's Brady material because the government can't just say, oh, I have this really bad fact against you and not also

disclose all the other facts that undermine that fact that the defense can use at trial. That is so obviously Brady, it's hard to believe they had a case about that, but they did, and it's a reported decision. So they're going, aha, that's the case that will now allow us to peer into the heart and soul of the prosecution about what they're doing here because they got the got the guys middle initial wrong. I mean, there's going to be that would you believe it's going to be an evidentiary hearing? I know. I can't believe it. Another hearing. I know. So there's one other development in this case. You know, there's one other. Yeah, there's one other wrinkle. So the wrinkle is there's a gag order,

which means the judge has ordered the parties that they're not allowed to talk about this case to anyone. And they're not allowed to publicly disclose any information except what you have to for the case. So if you have to put facts about the case in a filing that you're going to file with the court, or which is obviously public information, or if you want to speak about it in court,

which is also public, and people will hear about it, that you're allowed to do, but you're not allowed to talk about it to the press. So, ban and files this motion, and I think in an hour or two hours, or I think one hour before they file, before the motion is filed,

and therefore publicly available, the daily beast, which is a tabloid, comes out with an article basically with all sorts of detailed information that I would guess could only come from Bannon, but who knows? I'm purely speculating, but it seems like either that

or the prosecution leaked, which I think, I doubt they would make, I doubt they would do it, which I think I doubt they would make, I doubt they would do it A and B, I doubt they would make such an issue additive if they were the source of the leak. But either way, so I think it came from Bannon's camp. And so it was before it was filed. And the Daily Beast updated their article at nine o'clock

at night to show that, that's when the article came out. But there's something called a wayback machine that. Tell our followers, because we use this in our practice and tell them what the wayback machine is. The wayback machine actually keeps tabs and records of when things appear on the internet. There's actually a timestamp on the way back machine for when the Daily Beast article came out,

which was like six o'clock, which was an hour before they filed their motion. It wasn't nine o'clock where it was updated later. There's also that issue about the leak and who leaked it and they could be in contempt of court for that. I mean, it's just there's so much stuff going on in this case. And plus and related to what you just said, ban in in his own filing listed the personal details of all the other Robert Castellos that were not the right Robert Castello, totally abusing their right to privacy in the filing where he's talking about the right to privacy.

I mean, Ben and look, Ben and just sees this as a joke. He feels he's never going to go to prison that he's going to use it for fodder for his podcast and for whatever else he does. And if he goes to prison for a year, it'll be a badge of honor. It'll come out and write a book and do everything. It's a total joke to this, so these people, Nichols needs to sort of honor and it'll come out and write a book and do everything. It's a total joke to these people. Nichols needs to sort of get control of his courtroom here, I think a little bit more. And I think he just, I think at the end of the hearing right at some point, he's just

wrote a book at Bannon for what he's done so far in abusing the protective order and also in outing people that are not involved in this case in his filing. I think it's wrong. But I don't understand what I don't understand about this case just before we move on just really quick is he's claiming executive privilege as to why he doesn't have to turn it over. But he left the Trump administration in 2017 and the Jan 6 thing happened years after, the insurrection happened years after he left. So how could he claim executive? How is the judge even allowing that as a bad faith?

It's a bad faith in vocation of executive privilege that should not defeat criminal intent or mens rea. So you and I, we've talked, we've been and I have talked about it in our, in our podcast. But you and I will follow this because this is rapidly coming to an end this, this period, this phase in the ban and prosecution. And we will get to a trial is there, I don't think there'll be a plea agreement, compassionate release or not. I don't think there's going to be a plea agreement in this case.

So let's move on to our last, but a few minutes, because we, you and I did talk about it. I think in one of our very first midweek, midweek, midweek editions. But now the trial has started of the five or six people who are being prosecuted for the attempted, the conspiracy to Kittnapp, a governor of the United States because they disagreed with her COVID policies. Isn't that quaint after watching the Jansix insurrection? They decided that they wanted to kidnap and hog tie her, blow up a bridge on the way to her cabin, and kidnap and torture a governor,

female governor in the state. They were gonna put her on trial. Who? Oh yeah, they were gonna just, yeah, because they did like her COVID policies. Now, one of them, literally, and I'm not making this up, was so busted. He was living under a trap door of an elect,

of a vacuum, he can't make this stuff up. He was living in a studio apartment, if that's the right word for it, under a trap door in a vacuum repair shop. Like if you saw this on Pulp Fiction, you'd be like, that's so, why did they make that character live in that condition? This is where the guy was living.

And it's like Saddam Hussein, you know. Yeah, they pulled him out of a trapdoor underneath a vacuum shop. So all of these losers who decided to get together over beers and pot and with a FBI informant or two involved decided that they were going to do this. And actually it didn't, it wasn't just like, you know, the within the marijuana haze of sitting around a campfire about what they'd like to do if they ever got the chance. They actually bought ammunition, they bought explosives, they practiced blowing up things.

I mean, you know, this was bad. This was bad stuff. So the you and I talked before the trial started about the fact that we knew that the defense was going to try and entrapment defense to claim that they were innocent except the government and all of its FBI informants to which have played guilty and are testifying against them ensnared them and tempted them in a way that's improper and therefore they should be let off the hook as a complete defense to the prosecution.

And now you've had a chance as a prosecutor for a prosecutor, Karen, to hear a little bit of these openings and see as it's been reported in the media. What do you think about the entertainment defense? So first of all, it's the only defense they have. I mean, so they did everything else. Exactly. So they have to go with what they have. But so entrapment requires two things.

You have to prove that you are induced to do something which is more than just merely asking, you know, you can't just ask someone, you have to like convince them, you know, that's what inducing is, a sort of persuade or convince. And so you have to prove that you were induced, but you also have to, you have to prove that you did not have a predisposition towards this type of activity. The inducement has a little bit of legs here because, you know, at least a little bit, you know, it's not, they're going to make a little bit of headway there because first of all, you had multiple FBI informants, two of which I think were, they're not going to call because they have their problematic in some way. They also had undercover and there's all sorts of issues with some of the witnesses here, but also their main

informant is this guy, Dan, they're calling Dan and everybody saying Dan was the leader. And if Dan was the leader and he was the one who was sort of, you know, convincing people to do this, leading them to do it, they might, some of them might have an argument that, you know, they were, they were somewhat induced. But the predisposition, I think, is almost going to be impossible to get, to get past for them. I mean, as you said, they were blowing things up, they were buying ammunition. Um, you know, these guys, you know, they're, trying to buy some of the ammunition Karen from one of the FB. Yeah, yeah, but the defense attorney saying, come on, it was

a, it was an impose, it was a factual impossibility. These guys were dirt poor. They were, you know, they didn't have any money to do any of this stuff. They were wasted. But yeah, right, right. And I know you're not arguing on their behalf. You're giving the story. But I'm sorry. I must have missed it when Timothy McVeigh was a wealthy man when he decided to take fertilizer and blow up, you know, the Murrah Federal Center. But the defense attorneys are going with all kinds of defenses here. It's everything from this was just tough talk to the informants where the ones running the show to, you know, it was literally a pipe dream because they're high on pot. Right. They were totally, totally, you know,

stone. By the way, they picked an all white jury, which I found. I was sure, you know, this is why you and I are it's becoming like a well worn, we think a pair of blue jeans, because I was going to say to you remember that episode we did when we talked about pick it a jury. Yeah, they're not supposed to do it on racial grounds. How do they get 12 white exactly and jurors and six alternates, 18 people in Michigan. Because they can't all be white. Well, because these are these are the worst.

So my my hobby, if you want to call it, is I like to binge watch television shows. And I happen to be currently binge watching one called True Detective with like Matthew McConaughey, Woody Harrelson. Anyway, they have infiltrated this white supremacist just the worst possible, I've seen it before, but they did such a good job at portraying how horrific, terrifying, scary, violent, and awful these people are.

And the things, the tattoos they have, the Nazi symbolism, I mean, they had to pick an all white jury because they're hoping that they had to. But wait, wait, I agree, but how do you do that without violating, without violating the, the, the, the, the batson and the Supreme Court rulings that say, you can't, you can't challenge and remove based on race. Let me give an example. Michigan. Dearborn Michigan has one of the highest concentrations of Muslim Americans, I think anywhere in the United States.

There's not one month, well maybe they haven't reported. Maybe some of the white people are Muslim, I don't know. I'll tell you how you do it. I'll tell you how you do it. How do you do it? Your defense attorney, you have a panel of jury of jurors that you're questioning. Like say there's 30 of them, right? And you're asking questions or you're having the judge ask questions. And let's say of the 30, say 24 of them are white and six of them are

non-white or let's say 20 or white and 10 or non-white, I would focus all my questions on the 10 non-white ones. And I would ask questions that would get them to say things that I can articulate, like for example, Mr. Person of Color, can you be fair to someone who has a swastika on his forehead? No. Of course not.

And so suddenly now you have an articulable reason to challenge that person that is not based on your own. No, you're not. And so suddenly now you have an articulable reason to challenge that person that is not based on your honor. That's not based on us. By the way, how am I doing? How am I doing it being a defense attorney? I'm trying really hard to. You know what I, you know, I love about this show. I don't care if our followers and listeners do. I know I love it. Because I get this sort of, and I'm a geek for this, this sort of inside baseball, you know, how to get rid of jurors, you know, the way the prosecutors think that I've listened to these other podcasts that are our supposed competitors. Nobody's doing what we're doing. Nobody's

talking about trials and a entertaining and informative way and bringing that angle. That's out there. I defy anyone to find another podcast where that comment about, hello, Mr. person of color. Tell us more about how you feel about Nazis. That's not being said on any other show. And that's why people tune in for us. But we're going to follow the Whitmer trial. We're going to get more KFA observations.

People are going to understand that we're co-hosting the show and I'm not interviewing KFA at some point in the process. And I'm going to look forward to next Wednesday. What about you? Absolutely. One of these days, by the way, we should have a guest on that we do interview. I think there's two things you've brought up that I like as an option. One is guests. And we've talked about it. I mean, Ben and Ben and I don't do it because he doesn't get up early enough or I'm kidding. But it's hard enough for us to do the show without guests let alone adding a variable there. But but you have access as we've talked about offline to really interesting people from the world, primarily in the criminal justice world, but other interesting

people and some people you and I share as friends that that would be really, I think, would be really interesting. And we would try to do that. The second thing that you and I've talked about is doing doing this live, like instead of being into zoom boxes and having Adam Sultan shout out to Adam Sultan, our college, our college student producer, post-production person, extraordinaire. Who's having finals right now and wants us to hurry up? Yeah. I know. Who likes to cut this and take, you know,

my reaction shot and your reaction shot and make it work. Why don't we just get in a room like two hosts, one mic. Here we go. We've talked about it. I got it. You know, the brothers are like, well, it's hard with the sound and the microphones. And we don't really have a studio.

So, but I think before this year is up, maybe before the summer is up, I'm going to find a way technologically to put you and me in the same room and do this across one microphone. Joe Rogan can't be the only one that's able to have three people on one podcast at the same time on a video. The progressive Democrats got to be able to do it too. So you and I are try that. But we have reached the end of another amazing edge of your seat episode of the midweek edition of legal a F with KFA and popok. And we'll see you next week. Shout out to the

Midas mighty and the legal a Fers and remember to tune in for Ben Mysceles and Michael Popock me as we do the Saturday wrap-up edition where we cover seven to 10 things that have happened that some of which you may know about, but a lot of which you don't. Saturday is a marathon. It's so impressive what you guys do. It really, really is. It's a stamina marathon. It really is.

I am exhausted by the time it ends. I love it. My not your fell out. That's all right. Well, listen, that's live live podcasting, ladies and gentlemen. By the way, we should encourage people to send in questions for us. We can do mailbag again. Yeah, we're going to do mailbag.

I promise. That's a very good idea. We're going to do mailbag again next week because that was a nice new feature of the midweek edition. And I want to remind people that that we do this live. We have a live chat. We've had on Saturdays, we've had 2,000 or 3,000 people join. We've had hundreds and hundreds and hundreds join on the Wednesday edition. And Karen, it's like a crossover. Karen comes on, KFA comes on on our weekend edition and does live chatting

with our followers and listeners there too. So if you can't get enough of KFA on the Wednesday edition, tune in on Saturday because she's chatting right along with Ben and me. You know, the followers are so interesting and so nice. So I really enjoy it. I enjoy it much more than I like it's really the fuel that keeps you going because the people who encourage you and send you whether it's on Twitter or the live chat for me, it's the fuel that keeps me going and I really enjoy it. The Facebook crowd is a little bit interesting, but the Twitter crowd is completely

supportive of everything that we're doing, which we appreciate. So we're signing off for the Midweek additional legal a F on Michael ProPock. I'm Karen. I'm Karen Friedman Agnifalo. All right, we'll see you next week.