Legal AF by MeidasTouch - Bannon, Rittenhouse & Trump, Oh My

Episode Date: November 14, 2021

You come for the law and stay for the truth. The top-rated weekly US law and politics news analysis podcast -- LegalAF -- produced by Meidas Touch and anchored by MT founder and civil rights lawyer, Ben Meiselas and national trial lawyer and strategist, Michael Popok, is back for another hard-hitting, thought-provoking, but entertaining look in “real time” at this week’s cases.  On this record-setting episode, Ben and Popok take analyze and make predictions about: 1. The Rittenhouse Trial as it moves to conclusion and jury deliberation next week. 2. The Bannon Indictment and what to expect next. 3. The Jan6 Special Committee and new subpoenas and criminal contempt referrals to the DOJ. 4. Trump, the National Archives documents to the Jan6 Committee, and this week’s appeal to the DC Circuit Court of Appeals. 5. SCOTUS, the Death Penalty and Religious Freedom. 6. The Charlottesville Civil Case against Nazis and White Supremacists who killed and maimed during the “Unite the Right” Rally 7. The Fifth Circuit’s ruling (again) against Biden/OSHA and the Large Business Vaccine Mandate. 8. The DOJ’s successful ransomware indictment this week and forfeiture of $6mm in ransom. And so much more! Support the show!  BetterHelp -- Go to https://BetterHelp.com/legalaf and try BetterHelp today with a 10% off discount your first month! Affordable, private online therapy with BetterHelp. Anytime, anywhere. AG1 by Athletic Greens -- Athletic Greens is going to give you an immune supporting FREE 1 year supply of Vitamin D AND 5 free travel packs with your first purchase if you visit https://athleticgreens.com/legalaf today. Cubii -- Making Wellness Approachable for All Ages, Abilities, and Lifestyles. Click to Learn More! Stay Home & Get Fit While You Sit. Go to https://www.cubii.com/legalaf ! Adam & Eve -- Go check out https://AdamandEve.com today, select one item and get 50% off including FREE shipping when you enter offer code LEGALAF Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to Midas Touch Legal AF. If it's Saturday, it is Legal AF Live. If it's Sunday, it is Legal AF. Basically, if it is the weekend, it is Legal AF for you. Ben Myceles joined by Michael Popok, the Popokian who is in Los Angeles, California, where I live. Michael, Popok and I are going to try to pull off a Popokian and Myceles in-person in my cell is in person meeting at a location to be determined, which may or may not be a clippers game right after this podcast. Popo, have I revealed too much for your enemy list to nowhere to find you? No, typically at 730, Pacific time when the clippers play this evening. No, but now we're going to need to post photos on Twitter of you and I together in one room,

shoulder to shoulder, cheering on the Clippers. You're right. I'm in LA. This posh background is not mine. It is, it is a real background. It is not a green screen. It is a hotel room. Although we jumped before we started podcasting today that it looks like I brought my blue painting with me from New York. Wherever I go, I bring the blue painting with me and I hang it on a wall. Popeyes, you are a very posh-popokian. We've got a lot to talk about today on legal AF. Of course, everyone wants to hear our takes.

I think really more your take, but I'll wrap myself in that popaki and glow of what's going on on the Kyle Rittenhouse trial. I got a lot of questions for you, Popak. You don't know this, Popak, but I've listed a series of questions that I'm going to be asking you about things that took place in that trial. I'm right. And our legal AF followers want to know answers to like, can the judge be removed? Why was the judge yelling at the prosecutor? What does it mean if there is a mistrial with prejudice and more?

Stay tuned to our kind. Why are they ordering Chinese food during the middle of the trial? Exactly. Lots and lots of questions. And one of the themes we're going to be talking about though is lots of people looking at our going, wow, this is so unusual. This is so completely unfair. Let me tell you this, Pope Achtami, if you agree.

Judges are some weird people sometimes, and courts and trials don't infrequently take on these unusual and perplexing dimensions at best, but more frequently take on very kind of prejudicial, filled with implicit bias and riddled with error. And look, judges are either appointed, meaning they're basically political appointees or they're elected.

They run for office to become a judge. I don't know what's worse, we can have that debate later on in the podcast, but the point is is that they come in with the set of biases and motivations. And when we talk about justice being blind, I think we see more and more frequently a lot of idiosyncratic, a lot of prejudicial, both implicit and explicit bias in courts. And these are just high profile ones that are publicized, Popeye. Yeah, Judge Schroeder has taken on a national preeminence for his weirdness.

And he's, you know, he's 50 years or so on the Wisconsin bench. But I, what I've tried to tell people in the tweets that you and I have done during the week leading up to the podcast is that I know we're all excited and we find it fascinating and interesting and maddening to watch the trial of a 18 year old white boy, white man who's convicted of murder of two other white people, but every day black and brown people suffer the injustice of our

justice system with things that would make our legal AF followers and listeners hair rays and blood boil if they knew what happened every day. All of the endemic prejudices and systems, the finger, the thumb being on the scale of justice against the defendant when they're black and brown, juries that are not juries of ones peers, judging people who are allegedly innocent until proven guilty. So I know we'll use written house as a lens to talk about our justice system, but I don't want our followers and listeners to lose sight of because they're following it like a stock market. Like, oh, this happened in the cookie ordering and the phone went off and he's a trumperer. We don't lose sight of the big picture

of what our justice system means to the average American and average defendant in this country. I wanna talk about Charlottesville today, which has been almost ignored by the media and certainly by our followers. We're gonna bring everybody up to speed on that fascinating case. Now we've got four other trials going on around America that,

that are as important or should be as important as teachable moments as the written house case. We also, of course, want to talk about the indictment of Steve Ben and Popoq. You told us, you said, be patient. Be patient. The scales of justice move slowly. You don't say that. That's, that's what I say, but very slow scales. But, but Steve Bannon's indictment, Mark Meadows missed his deadline to respond to the gens. He's going to be indicted. Mark Meadows is definitely going to be indicted. But let's start off by talking about another issue that the Supreme Court is currently addressing. This is death penalty issues.

And particularly how the death penalty is applied in states with the First Amendment free exercise rights and religious rights embodied in the First Amendment. There's a case involving an individual named John Remirez, who was sentenced to death in Texas for a 2004 killing of a 46 year old convenience store clerk, Pablo Castro. John Remirez asked that when he's put to death, that he has a pastor by his side praying directly next to him, touching

him, holding him. It's the touching issue. It's not next. The in the room is okay. It's the touching. I mean, I did say touching Popeyes. No, no, I know. But I'm focused on the touching.

And there's a line of cases here about different religious faiths and having their religious leaders either in the room, touching, praying next to the individual, and this has been teed up for oral argument. A lot of people are wondering here, you have a right wing Supreme Court, which seems fully embracing of the death penalty generally, but also a right wing court that has enumerous other settings put religious, I don't just even want to say religious liberties because we all respect religious liberties,

but really religious priorities to Trump, other constitutional rights like equal rights and the right to be healthy and to live and other things. So Popak, what's going on here with the Supreme Court? What's going on with oral argument? Where do you think the Supreme Court's gonna land on? Yeah, we just had the oral argument and it was fascinating because what you have here is a battle between the First Amendment and the Eighth Amendment.

The Eighth Amendment is against cruel and unusual punishment. And after a series of cases at the Supreme Court level, starting in 1976 and 1977, coca versus Greg and Greg versus Georgia, these cases always come out of places like Georgia. The Supreme Court said that death penalty is not cruel and unusual punishment as defined in the US Constitution, as long as the punishment

proportionally fits the crime. So if somebody murdered somebody, death penalty is not cruel and unusual punishment. If a child is raped, although heinous, it doesn't rise the level of death by the state. So that's where the cases have come out. So to answer questions that I know our listeners and followers have about,

isn't the death penalty terrible? Why do we still allow it under our US Constitution? We're talking about 40 and 50 year old precedent that says it's okay. The battle between the First Amendment, Freedom of Religion, expression, if you will, and the Eighth Amendment was on full display at the oral argument earlier in the week.

And interestingly, even though the conservatives, the right wing, so that I don't get you upset when I say the conservatives, the right wing, so that I don't get you upset when I say the conservatives, the right wing of the Supreme Court, Alito, Kavanaugh, Thomas, Roberts, at all, who have throughout the last term and the last and the term before that have come out in favor of religious expression even when it was maddening to progressive Democrats, for instance, when the issues were contraception, when the issues were adoption, when the issues were same-sex marriage, when the issues were COVID-19, they always cited in the last term and this term in favor of religious expression.

We talked three or four podcasts ago about the florist who didn't want to make the flower arrangement for a gay marriage or same sex marriage. And they were like, freedom of expression. They're allowed to do that. Now you're thinking, oh, all right, well, the murdered convicted murderer who is found religion, not unusual, in the prison, murderer who was found religion, not unusual, in the prison, who has his own pastor, who's this kind of relatively famous female Baptist minister, he wants as part of what they do in their religion. He wants her to lay her hands on him during the actual lethal injection. I mean, that's what he wants.

We all talk about last meals, you know, they get their last meal. His last moment on this earth, he wants his minister to lay hands on him. Being in the room is okay. Even Texas allows all different faith ministers, rabbis, you know, e-moms, whatever, to be in the room. Question is touching. And this was the problem that the Supreme Court had, where the conservatives And this was the problem that the Supreme Court had were the conservatives, right wingers, on the Supreme Court had. So you had Robert set the tone early

in the oral argument. He said, I'm troubled if we allow this, the touching, it'll open the floodgates of where do we draw the line? Head, body, ankle, like this is a problem. I mean, I don't understand why this is a floodgate or slippery slope problem, but they all joined in. Thomas said, oh, there'll be problems with gaming the system. Maybe the convicted murder about to be put to death

is gaming the system. To what advantage, to which I question, to what advantage? I, the person's going to be put the death any moment now. The fact that he would like to have his spiritual advisor of choice put his hands on him seems to be so minuscule and such a small problem that you think the religious fanatics on the court would say he should have that too, but they seem to draw the line when it comes to convicted murderers. When it comes to convicted murderers, they're not going to go that far and let that person have every little thing that they want as part of religious conviction. And the last interesting thing, I don't know if you caught this, Ben. They got all wrapped up in the oral argument with whether the beliefs of the person were sincerely held. How do we know?

We can't look into the minds and the hearts of the convicted murder. How do we know this sincere belief? But they've never looked at the sincere beliefs of the florists about whether their beliefs were sincerely held. When did they become the sincere religious conviction police? You know, it's an interesting question, Pope Pock. You mentioned the eighth amendments,

ban on cruel and unusual punishment. That's what, when you mentioned the eighth amendment span on cruel and unusual punishment. That's what when you say the eighth amendment and the first amendment, the Supreme Court has ruled previously that the death penalty does not violate the eighth amendment span on cruel and unusual punishment. But the eighth amendment does shape certain procedural aspects regarding when a jury may use the death penalty and how the death penalty must be carried out. And there's a long line of death penalty cases that deal with the contours of the death penalty,

including a case that goes back in 1972, which is a case called Ferman versus Georgia, which basically held that at the time the application of the death penalty is unconstitutional, although later cases basically explained as long as it's not applied in an arbitrary and capricious basis when the death penalty can be applied.

And so we see a lot of cases, for example, bays versus Reese in 2008, where the Supreme Court ruled that Kentucky's three drug protocol for carrying out lethal injections does not amount to cruel and unusual punishment under the Eighth Amendment. You have roper versus Simmons. In 2005, the Constitution prohibits the execution of individuals

who were under 18 at the time of the offense. You have Wiggins versus Smith in 2003. The Sixth Amendment requires defense counsel to conduct mitigation investigations in capital cases. Case called Atkins versus Virginia in 2002. The execution of a person who has mental disorders violates the Eighth Amendment. And so a lot of these issues is defining when the death penalty is cruel and unusual. And here, Popeye gets balancing the use of the death penalty with religious freedoms, religious exemptions. We hear all about

religious exemptions, you know, when it comes to COVID protocol. That seems to be what everyone's talking about. I don't need to wear a mask, religious exemption. But we'll see what the Supreme Court does here. Let's talk pro-pock about updates in Charlottesville I know you wanted to talk about this. Yeah, obviously the written house case is getting a lot of tension and put a lot of attention and popuck We had one of the groups that was Kind of helping the litigation in Charlottesville Reached out there. Obviously incredibly busy, but want to give them a shout out as well for the work that they're doing and direct our listeners if they want to support efforts for the prosecution of these white supremacist groups that murdered and fomented hate and

Charlottesville and around the world. Popoq, you want to talk about what's going on and just briefly mentioned that reached out. Okay. So yeah, Charlottesville is really important. You know, we don't put things on scales on legal AF, but you know, if we're going to talk about written house, we should be talking equally about what's happening in Charlottesville. And the interesting approach that nine plaintiffs are taking to try to bankrupt the far right extreme movement. This all arises out of the 2017 Unite the Right Rally. I always love the names that they adopt for these things.

In Charlottesville of all places, which for those who don't know is the home of the University of Virginia. And within a stone's throw of Monticello, Monticello where Jefferson's home. It's a relatively liberal college town. This protest was formed when the Robert E. Lee statute was taken down. And it brought in the proud boys, the oath keepers, neo-Nazis, fascists, and everybody else.

And you should, if you want to see clips of it then go to Black Clansman, the Spike Lee movie and you'll see at the end of the movie a bunch of clips related the live clips of what actually happened. So, nine different plaintiffs all united by integrity first for America, a progressive group, filed a suit against a dozen of these neo-Nazi essels. And the goal of it was if it was a unite the right was the rally, its bankrupt the right is the strategy, which is to try to get civil judgments on a lower standard than the criminal process. These people were all also criminally prosecuted, but was to try to take away their homes or businesses or property, whatever they have to pay them back for what they did in Charlottesville, which

led to many, many injured people and the death of one woman who was run over by James Felix in a car. So that guy, James is serving life in prison. Right. Exactly. So this is just to set the stage. This is the civil trial brought by these plaintiffs against these individuals.

The, if people are finding the written house trial to be hair raising because of Judge Schroeder, they should see what's happening in Charlottesville because a number of these fascist Nazi leaders are representing themselves. So they're what we call pro-say. No lawyer, and they're having a good all-time, and I'm not making light of this.

This is their approach. They're cracking Holocaust jokes in the courtroom. They're getting up in front of the jury, and they're opening when they do it themselves, and they're talking about mind-cump, which is, you know, Hitler's, you know, treat us. They're talking, using the N word in opening, like they don't care. They almost want to lose this trial. They probably have nothing. So they're

going to spend the next 12 weeks saying whatever they want out loud. One neo-nazi was deposing, no, cross-examining or examining another neo-Nazi, and he opened his examination this way in front of the jury. Hey, what's your favorite Holocaust joke? I am not making this up. So people that are all upset about what's happening in written house, you've never heard of Judge Norman Moon, who's the federal judge sitting in that area who's 85 years old, and he's got to run this circus that's going

on and give these people, they're not criminal defendants, but they're parties pro-say, so he's bending over backwards to give them some liberties in the courtroom that you and I would go to jail for if you and I use those kind of phrases. So we're going to continue to follow this. They're not close to their closing arguments or a the jury deliberating. Writtenhouse closings are on Monday, Charlottesville because of this circus that's been created by the Nazis that are representing themselves is going to go on for weeks and weeks and weeks.

But at the end of the day, I'd be shocked if the jury didn't return a verdict in favor of the plaintiffs against all these crazies for a large sum, including punitive damages, and then they're gonna go grab the houses and guns and pick up trucks of all these people. No, that would be ideal. There's often lots of ways that defendants can try to shield themselves from those types of collection efforts, and it's not as easy.

To engage in those collection efforts after getting a verdict against kind of judgment-proof defendants, and we call defendants who really don't have money, judgment-proof, in the sense that really what can you recover from them. But we'll see, I want to give a shout out there to the group is called integrity first for America integrity for USA. It's at integrity for USA on Twitter and IFA. It's a nonprofit dedicated to defending democratic norms and they are suing neo-nazis and white supremacists who attacked Charlottesville and so great effort that they're doing there. and I'm just going to be talking about the importance of the importance of the importance of the importance of

the importance of the importance of the importance of the importance of the importance of the importance of the importance of the importance of the importance of the importance of the importance of the importance of the importance of the importance of the importance of the importance of

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Yes, your dogs. Oh, you heard my dogs in the background. Oh, yeah, but we're going. We're, we're, this lives, ladies and gentlemen. It's live, we'll go with the dogs barking and my dogs definitely need it. Let's talk about, look, not everything the DOJ does involves dealing with prosecutions

of reformer, traitorous administration that try to have a coup. In fact, it's highly unusual that that's an issue that a new administration's DOJ has to even deal with. And so I think it is important, Pope, to your point about Merrick, Arlen, moving slow. Like, I don't think throughout history, maybe just post civil war,

but other than that, really has the department of justice like had to grapple with the fact that a prior administration tried to overthrow the government and create in the authoritarian state. Normally, what the DOJ does is they're prosecuting all types of crimes, they're prosecuting drug crimes, they're prosecuting white collar crimes, they're prosecuting a wide cottage right and crime. But let me get to your point. When Nixon, who before Trump, was the scourge of presidencies in the

modern era, when he resigned after being impeached, he literally was never heard from again until about 20 years later, when he sort of in his 80s, he tried to revive his career with the frostics and interviews. I'll tell you what he didn't do. He didn't create a shadow government with shadow ambassadors. He didn't tweet or send out letters as the 40 or his case, the 30, whatever president, running some sort of parallel, you know, shadow presidency and continue to try to foment this content and overthrow the government after he left office.

So the prosecutors under Ford did not have to deal with an insane out of control former president Nixon, the way this department of justice has to do, while they have other things they have to do as well, that are as important. Absolutely. And speaking of which, I think Trump made a statement this week, even that he had ambassadors speaking to people which envoy ambassador, envoy ambassador. This is a made up thing in his mind that he's still the president and he's running a shadow I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send.

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I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I'm going to send. I mean, that's just on a day to day, Trump and his minions break the law every single

day. We'll talk about Steve Bannon a bit, but the DOJ goes about the work of the DOJ does other things. So there was a press conference that was called this week with Merrick Arlin, the deputy AG, the head of the FBI, Christopher Ray. You know, everyone was like, this better be good. It's like, okay, I'm know, everyone was like, this better be good. It's like, okay, like, it's all, it's all, it's all good. You know, number one, also like they're not going to do press conferences like that.

Also, they're going to be delicate when there's a bad and indictment or something like that. They're not going to make strategically this like show of it to make it feel politicized also, which is not politicized. It's individual is violating law, but they did this press conference and there's these ransomware group called Reville, which has been just going around causing incredible havoc on companies in the United States and abroad, causing hundreds of millions in damages and requiring companies to pay ransoms and holding companies hostage by taking

over their computer infrastructure. But this was actually a big announcement, Popo. I mean, they seemed to DOJ with the help of other international authorities, seemed to find the individuals and place, at least few individuals under arrest who are behind these revel ransomware attacks by tracing where the money went. Is this a big deal, Popuck?

I think it is. First of all, it'll allow you and I to introduce our audience to something called the Department of Justice, ransomware and digital extortion task force. See, they do other things. This was created to go after exactly what it sounds like. Ransomware has gotten out of control, just to put a finer point on it. Ransomware is when a hacker,

or a group of hackers, serotoniously enter a computer networker system. They used to do it through the front door, which is, you know, they send you a phony, phishing email and you click a link thinking it's from your uncle Peter and it turns out it now you have a worm that is now entered a virus, it's now entered your software

and they've taken control of your computer. But that's not what's going on in the modern era. In the modern era, which is reflected in the DOJ announcement, there's something called the supply chain ransomware attack, which is, it's not exactly what it sounds like. It's not attacking the supply chain, although it is. What it's doing is it is coming in as a Trojan horse through software providers.

So software, which is supremely important to everything in our lives, from the military application to consumer application to your iPhone, you name it, it's software driven. And many of these companies, for instance, Cassaya out of Florida, you never heard of them unless you're an investor. You probably never want to hear about them, but they do things that are really important, like remote management monitoring software, which companies use and pipelines use and gas companies use and electric companies use.

So they've decided these bad guys that they're going to come in through the software. Software is then there's a loophole somewhere in it and it's exploited by the hackers, and now they've put viruses over the customers, the end users in the supply chain of the software, and now they've locked the files, and they won't release the businesses files, or they won't allow them, like the recent pipeline issue, they won't allow them to pump oil or move oil or do anything unless a Bitcoin or cryptocurrency ransom is paid. If this continues to go on, unabated out of Russia, Ukraine, India and other places, you see the disruption that happened. Just three days of a pipeline interference led to gas prices and long lines in America. We can't allow our infrastructure to be under attack. That's why the Department of Justice

and the FBI and these task force are really important. And taking down these bad guys really quickly, which this happened within three or four months, where they got back the ransomware is really, really important. So the revel, ReVIL, it's like evil with an R software, a ransomware attack was really led by a 22 year old Ukrainian national name Yisinski and a 38 year old Ukrainian national name Yisinski, and a 38 year old Russian national name Pollyonin, and they indicted Yisinski. They indicted Pollyon and arrested both and they were able to grab $6 million of Bitcoin

and cryptocurrency from Pollyonin and get it back into the, you know, have it forfeited immediately to the federal government while the trial is going on. But this is this you framed it perfect on the way into the segment today. We can't have a DOJ that's completely focused and does nothing and is immobilized by handling all the other things. The Department of Justice is responsible for, but because we're looking at our watches and tapping our foot, because it took 23 days for them to convene a grand jury and indict banan.

That Democrats can't lose focus of all of the other reasons we voted for Biden and wanted adults like Marik Garland in the in the Department of Justice. And one last thing, because it's a little bit of a pat on a back for you and I. We are not going to be sensationalist on legal AF. We could be, we could have, we love our audience, we love the size of our audience. We could be five times as large. If I just came out of the box and said really crazy shit all the time. And I'm watching Twitter feeds of other lawyers that are your vintage, my vintage, who claim to have prosecutor experience. I've been doing it for 30 years.

And I got to be honest with you, a lot of them are doing it as talking heads to make a buck, to exploit the issue because it's sensational. And when they do it, they get 5,000 more Twitter followers. We're not doing it for that. That's not the purpose of legal AF. And so we're never going to blow smoke or sunshine. We're going to call it the way we see it through our progressive democratic lens and the story. And so some people may not like some of the things that I post about my view of what's going to

happen and what should happen in a certain matter. But I think that's most of our people that follow us want to hear it straight. And that's what you and I do. Yeah, you know, I had a buddy of mine who was asking me about just what I thought the outcome would be on a certain case, you know, if a certain case resolved. And he's like, but I hear, you know, they're going to try to settle for $85 million. Everyone's talking about $85 million. They're going to offer, you gonna offer on a case that's outside of the statute of limitations. And I said, they're not offering $85 million.

I said, you have to understand. I know a lot about these cases. I've done hundreds and thousands of these cases. I know that if the case is outside of a statute of limitations, but it has a kind of provocative, public profile and can have kind of serious consequences for a company and could potentially be a case as an exemplar that challenges the statute of limitations. a defendant may be willing to settle for something to avoid

the risk of the law changing. But I said, but they're not going to, they're not offering $85 million. I said, what they're probably offering is, hey, if you want to try to resolve this case for a few hundred thousand bucks, we'll try to do that. And then sure enough, later the news came out that I was right and I was accurate. And I just said, look, I'm not trying to bullshit you. I could make you super excited and give you the sensationalist twist to it, but I've been doing this long enough,

actually in the trenches. I'm not a Twitter lawyer. I mean, Popeye, you're not a Twitter lawyer. For decade, for me, and for decades, plural for you, multiple decades, plural for you. Okay, wait, back. What? Three, three, three, three multiple decades.

We've, I mean, the day-to-day stuff has been in courts and has been in trials. And look, I'm so blessed that on the weekends, I could put on the hat, I could put on this, you know, a cool sweatshirt, I could just talk about the law where I don't have to be in a stuffy courtroom, but I've spent my whole life in stuffy courtrooms, wearing suits and ties every single day, you know, arguing these cases at the highest profile level. You've earned the right. And just, you know why this works?

I mean, I hate to make it so self-referential on our own podcast. But the reason I think that what you and I do works is because you've been blessed with something else. And I hopefully I have been too, which is you have a tremendous good instinct and you have tremendous judgment. What's missing for a lot of these talking heads, and I'm not here to tear down, people know the ones that we actually admire. That's obvious, you know, like the Sisters in Law and some of the other ones. But the other ones, they're just missing judgment. They're just missing instincts that come and what do they come from?

They come from this. They come from the hand going around the clock, time, watching hundreds of cases, seeing results, and being smart about it. And I think that's why this works, because I'm not just some pundit, you know, like spouting off about something that I have known nothing about. And I think people are attracted to what you and I,

the product that you and I are providing. We'll find out tonight. We'll definitely find out. I guess it's an open question still every week, but as long as the audience keeps growing and keeps looking the way it is, I feel good about what we're doing. Popeye, let's talk about the fifth circuit. We've talked about the fifth circuit. It's a very right wing circuit filled with a lot of Trump judges. and they blocked the Biden OSHA vaccine rule. It's not a mandate because on companies that have 100 employees or more, it either required

a vaccine or like continuous testing. So it did have the or it wasn't like you had to be back. So though you should be you should be back. But the fifth circuit issue to stay, it didn't make a ruling as to the substance yet of the rule promulgated by OSHA. And it's an emergency rule that a promulgated. But it issued this stay saying for, at this point,

there is a serious constitutional concerns and stay meaning stopping the implementation of the Biden OSHA rule. But the Biden administration is still moving forward with the rule. They're still telling companies they need to follow the rule. One of the things strategically on the legal side is just because the fifth circuit saying that there are other circuits that have weighed in and need to weigh in and there needs to be a coordination amongst the circuits and also Popeyes can speak to the Supreme Court thus far in the cases that have come before it we've talked about this on prior legal AFs though have been receptive to vaccine mandates we talked about a group of students trying to deal

with this as an emergency order in Indiana, for example. And there are a few other examples like that where the Supreme Court basically upheld vaccine mandates. And so what's going on here, Pope, I can't where to think this goes. Yeah, this is gonna be a weird one. And I hope you're right about prior rulings by the Supreme Court, like Amy Coney Barrett rejecting

the Indiana University appeal and allowing their mandate to stand. But here we're coming into what agencies are allowed to do and promulgate as rulemaking. And we've talked about administrative law in past podcasts. I'm always amazed that we're not getting to administrative law, which was the driest course administrative law in past podcasts. I'm always amazed that when I get to administrative law,

which was the driest course in law school and, and all, sometimes when we watch our live podcasts, like the followers of that night go up when we're talking about these esoteric issues. So that's a- Can I pause you for a second? I'm sure I can just give you- I want you to talk.

I give you my admin law story, quickly. Yeah, just of course. So I took administrative law at Georgetown law. My professor was someone named Glenn Nager, N-A-G-E-R. He was at that time, he was either the president or CEO or CEO or something of like the PGA. He was a law clerk at the time for Sandra Day O'Connor, I think he was, he was her law clerk at the time for San Jodeo Conner, I think he was her law clerk.

He was kind of very conservative in the true sense there of what conservative meant when I was in law school was in line to be a Supreme Court justice. He never really went that path, he ended up arguing. He argued the lead better case, that kind of struck, that required the lead better law to actually be passed. And he's argued like 20 cases or 30 cases, maybe even more before the Supreme

Court. But such a brilliant guy. And all of the people who took that class were like, I don't know why. it was a night class, but everyone was like in their 40s, and I was like a 20-year-old law student in this Glennager class. And he was like the most intimidating professor. And I remember I got like a B-minus on my final. And he sent me a congratulatory email on the B-minus.

And he was like, really great job. Because it was like all the smartest people who were much older and administrative laws tough to wrap your head around. But it really relates to though what these agencies are allowed to do in pass. And we talked about it on the eviction moratorium, right? And one of the issues was in the context of a health agency could they in their standard rule making powers about bed bugs. Yeah, relating to bed bugs, you know, basically extend that

though into the sphere of prohibiting evictions. And where that case wasn't decided on, wasn't really on the law. I mean, with the Supreme Court said, is look, Congress, if you want to stop these evictions, go pass a law. That says that, but we can't have this administrative agency in the absence of a law that allows them to do it to kind of create new jurisdictions. Anyway, so it's not, it's not, it's not anyway. It's perfect segway. So let's bring us up to speed here. Here we have the department is OSHA, occupational safety organization, that's all they do. That's what their job is.

That's the rulemaking that's been delegated to them. And they are allowed under the federal rules and federal law given by Congress to create what's called emergency temporary standards, ETSs. And they are automatically imposed as long as they're published in the federal register without public comment, which is normal rulemaking requires public comment, and a very long period of time could take a year or more to get a rule through the normal procedure. The emergency temporary standard procedure allows for

almost an instantaneous creation of a rule and enforcement of a rule, as long as there are certain criteria that are met about safety and health and preserving human resources and trying to prevent agents and toxic agents and harmful things and physical harmful things in the workplace, which sounds like an airborne virus in a pandemic that's killing people, but not to the fifth circuit, which is going to be the bane of Biden's existence. I can just tell every, first of all, it's going to be the circuit of choice for all of the Republicans and right wing to bring their crazy abortion ban and redistricting when it comes to voting. They're going to run it through Texas, Louisiana and all the other states that make up the fifth circuit because they have a friendly environment or receptivity at the fifth circuit. So follow along everyone from now

until the end of this term and beyond. You're going to hear us talking a lot about the fifth circuit. Same circuit that that ruled against staying the Texas abortion ban, which is what is up on appeal with the Supreme Court of the United States. So what have they done here? Well, a judge that was appointed by Trump along with two other judges. So a three judge panel of the fifth circuit. In this case, Judge Kurt Engelhart issued a rule just the other day

that said that the emergency temporary standard which required companies of a 100 or more to either mandate vaccine or daily or weekly testing, whatever it was, is beyond the scope and powers of OSHA despite an overreaching of what their jurisdiction is, despite all the things I just talked about. And they actually said, Engelhart actually went on to say, not only is it a gross overreach and likely unconstitutional in terms of delegation and unlawful, but he actually said that basically two things. The airborne virus, which is COVID, is really not that bad anymore. People aren't really dying from it the way they used to be.

So this is not part of their mandate as to protect workers in the workplace. And so, you know, he spends time being a scientist and a virologist to talk about why he thinks COVID-19 is no longer a health crisis. And the second thing that I thought was really outstanding is that, you know, he started it off with saying the last OSHA under Trump never issued an ETS and emergency temporary standard. So why is the current administration doing it? And this is where elections matter because Trump was in office just long enough to put his lackeys in OSHA and they refuse because he threatened them to take the pandemic seriously and issue any mandates and any standards.

The first line of the order by Engelhart was, oh, prior OSHA didn't do it, so it really can't be that big of an emergency. What changed must have been the election. So, you know, you said earlier that Trump, in another podcast, that Trump was successful in like hollowing out all of these agencies, administrations, you know, departments and putting in getting rid of laws and regulations, making them toothless. And the repercussion is even after he left office, we got a deal with Republican right wing judges who point to what those agencies did under Trump or did not do under Trump. And that's the starting point for their analysis. Absolutely. We were talking on the Brothers Midas touch podcast the other day, we were just saying, like, why do we even know who Dr. Fauci is?

Why are we even talking about a Dr. Fauci? The fact that the GQP right wing has politicized this so much that the people in these positions of health and safety, who are literally bureaucrats who we never even knew about, who we're just trying to help people stay safe and keep their family safe, are now enemy number one of the right wing is something that should never be politicized. It should never even be a legal conscience.

Can I give you the difference? And I think I may have told this story before, I was lucky enough to meet Dr. Fauci when I was in college in 1988, something. And he was then the rock star of the AIDS epidemic in the sense of his team at NIH was really at the forefront of finding a cure and therapeutic ways to approach the AIDS crisis, which was people forget. But in the 1980s and into the 90s, it was a pandemic and epidemic that was killing everybody from blood transfusion people to the gay community.

I met him. He came to NYU and gave a speech. And in the back of my mind, I thought, it's guys like a rock star. I hope I never have to hear about him again. But this guy was amazing. And he was in his 40s and I was, you know, 20 by 19 or 20. I never heard about the guy again. I sort of followed him a little bit because I'd met him. So as life went on and we had he bowled on, we had, you know, other thing, you know, a nurse that came out, his name would pop up. But the fact that he's been vilified today instead of celebrated

for helping to keep America safe is just the sad commentary on the right wing crazies that we, you and I now have to live with. Do you remember just the right wing when they excoriated Obama over his handling of the Ebola outbreak? I think you have like David Perdue, chicken Perdue, and he was a senator basically saying how it showed a failure of leadership there, and then basically saying it's a totally different situation,

you know, now when it comes to COVID. I mean, over Ebola, which was handled perfectly. We had three deaths for Ebola, maybe two. It's such hypocrisy, and it just really makes me sad that they would politicize health and Not to turn this into overly political like the brother show though, but you know this We need to really fight for though is a legal system and fight for though is a legal system and a justice system and a health system that follows the law and that follows the science and that we could hopefully deal with trials that involve the presumption on the criminal side, the presumption of innocence, the right to

a jury, and then the let the legal process sort itself out without having to hear a judge turning on his phone and it rings and it plays the Trump anthem as trials about to gear up that specific day. Anyway, this podcast is also brought to you by Athletic Greens, the health and wellness company that makes comprehensive, daily nutrition, really simple. Popoq, I used to be for AG1, which is this category leading superfood product, which brings comprehensive and convenient daily nutrition to everybody. I used to have shelves filled with all of the vitamins. I was kind of like, I thought of myself as the conno-sour. I'd go into those vitamins, tourism, like go,

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vitamin D and five free travel packs with your purchase and take control of your health and give a G1 a try like popok and I did and love it today. Let's talk popok about January 6th committee updates. Popok drinking a martini glass filled with water, popok. I suppose that's water, right? I mean, I had to take a drink of water before we start with banan. Because I thought popok that if that's not water, you're about to get hyped up for this Clippers game we're going to tonight. I'm going to have a wild papokian.

I'm going to have to, uh, I'm going to have to reel in there. I'm going to have our viewers and listeners. My hair sounds exactly. So, you know, you take a sip, but I take a cell, I take a celebratory sip, oh yeah. Popock, because banan was indicted. I'll just leave it there, Popock.

You took the sip, now tell us the juice. Okay, here we go. As predicted, right, just be patient. We have an indictment on two counts of criminal contempt, one for not producing documents to the Gen 6 select committee and the other not testifying in front of the Gen 6 committee. And why is this so important? And why is it so fascinating?

Because it's the first time in the history of our democracy that a person who has asserted the executive privilege has been indicted criminally for contempt. What do I mean by that? There are DOJ memos that go back to even Obama and beyond Obama, including with Democratic administrations that have been developed by the Department of Justice, that have told prosecutors that when someone is asserting the executive privilege, it is very difficult to indict them and a prosecutor should be wary of doing that. And that has to do with the separation of powers and the sanctity of the executive privilege

when it's properly exercised by somebody who's not insane and bent on a coup and overthrowing the United States government as Trump was. So that's the starting point. The prosecutor goes to his shelf or her shelf and pulls out a manual, literally a DOJ manual, and goes to the chapter on executive privilege and criminal contempt. And there's a memo that's been written that is their guidance that says, pause, pump the brakes, make sure you get all your ducks in a row before you do that. The Department of Justice smartly decided

to use the grand jury process to have an indictment issued rather than do it by way of information which would have been without the grand jury. It's just a stronger way to charge somebody. And so in order to do that, and this is where I'm going to now catch up and pull together a week's worth of tweets

and try to answer as many of these issues as I can, it takes more than a minute to get a grand jury assemble. The trial level jury can take a week or more to get together. A grand jury was not already in existence. Sometimes grand juries are in existence already. And then you just bring new issues in front of them if you're allowed to do that. We talked about in New York, Sy Vance, and the state grand jury is already in process. And so that's easy. You just walk in on the Tuesday Wednesday Friday of the grand jury and you present

your evidence of the prosecutor. But if there is no grand jury already in place and there wasn't one in place before the referral from Congress to the Department of Justice, you have to create a grand jury, which means you have to go to a judge. There's a process you have to use to have one put into place. Then once the grand jury is established, then the judge and the prosecutors have to work to see a grand jury, which is 23 members out of a pool of hundreds and hundreds of people. And given COVID and given all sorts of other excuses and absences that people can come up with, it's very hard to select 23 people who are going to sit for a few weeks or a couple

of weeks to hear evidence, even though this one was relatively straightforward. Yeah. And people get off of grand juries, injuries all the time. So it takes more than a minute to actually get a grand jury. Then you have to select and see the grand jury. And then the prosecutor by himself or herself, there's no judge in the room with, and there's no defendant in the room on a grand jury presents evidence to the grand jury in order to have them

issue ultimately if it's successful and indictment. In this case, on two counts, Mr. Meener counts under federal law. And once the indictment is issued, then the prosecutor actually has to sign on the dotted line on the bottom of the indictment for it to be effective and say that he or she adopts the indictment that's been issued by the grand jury. And then you have an arrest or this case a a self-surrender which has been arranged for Monday probably by Monday afternoon. There'll be a first appearance by Benin where he will likely as I've predicted plead not guilty, he will continue to argue at that hearing and at other hearings that he has a executive privilege

right. He's going to continue to harp on this executive privilege. And the judge who is a, as everybody has pointed out, is a Trump appointee who served in the Bush administration in the Department of Justice who worked for a couple of pretty well-known high-end white shoe firms in Washington, DC, before he got appointed. And Trump stuck with them because the committee during the selection process at the Congress level rejected his candidacy once. Trump stood by him and got him into that position on the federal circuit. And look, he's a mixed bag. He's the federalist. He's a Clarence Thomas, a former clerk, the judge that we're talking about here, Judge Nichols. However, he's had a number of rulings already that have involved or touched on Trump, some

of which have been against Trump He had a case where TikTok brought a case against Trump and and because Trump tried to claim They were a Chinese controlled company and they shouldn't be able to do a merger or an acquisition and he's sided with TikTok against Trump He cited in favor of dominion voting and against Powell Giuliani, pillow guy and denied their motion to dismiss that defamation case. That was also in front of him. He, on the other hand, when the Donald Trump tried

to stop his tax returns, here we go with the tax returns again, from being produced by New York State to a different committee of the Congress, the House Ways and Means Committee, not the Special Select Committee for Gen 6. He stood in the middle and initially stopped the production of the tax returns, but ultimately dismissed the case because he didn't have jurisdiction and those tax returns ultimately, at least partially, went through the Supreme Court to that committee. So I'm not sure it's like the death knell because he happens to be a Trump appointee given his track record. And plus, if he

doesn't make the decision that we think he should, which is to find that that banan's future motion to dismiss his indictment under the executive privilege grounds. It has no merit. There is a pellet, sorry, an appellate for the pellet court for the district circuit, which is more liberal, which will ultimately make that decision. We're going to talk about that very panel or that very circuit when we get to the executive privilege invocation by Trump to stop the National Archive from producing documents in the next segment. So I think we should be happy if you're a progressive Democrat that Justice has been served, that

he's been indicted, that he's going to surrender. And then the last thing I want to touch on is, and I want to hear your opinion, you know what bail and retention policy is and what the law says. Do you think he gets bail or do you think they do pretrial detention? I don't know, I'll give you my thought. Oh, he's going to get bail. 1,000%. So let's pop that balloon now for all of our listeners and followers, despite how disgusting he is, despite the things that he says on his podcast, despite being involved with the violent overthrow of the United States, he doesn't likely fit the criteria that is required to put him in jail, pretrial detention until his ultimate trial, which under the Speedy Trial Act could be as early

as 70, 70 days from now. So he's going to go out on bail with conditions. He might have to surrender his passport. I'm not sure even that's going to happen. But those issues are going to be start to be resolved Monday afternoon with his first appearance. Each count of contempt of Congress, as you mentioned, Popok is a misdemeanor punishable by up to one year in jail with a maximum fine of $100,000. And I think Bannon's arguments going to be a little more nuanced when it comes to executive

privilege. What he's going to argue is that Donald Trump is declaring the privilege, not Steve Bannon. And Steve Bannon's going to say, I'm just following what the president of the United States told me. And he's going to make it about the powers of a unitary executive. And he's going to frame it that way to try to appeal to the Federalist Society and basically say, I was just following the orders of the president of the United States, who holds the privilege, don't blame me criminally. And your issue on executive privilege is really this broader issue with Trump.

I think that's what he's gonna make. I agree with you. And then in terms of being a win for progressive Democrats, I do think it's also really just a win for democracy here, small D democracy and just for our law in general, which is, we were for our nation, that's a rule of laws. And you're subpoenaed to give testimony. I mean, Barack Obama during Benghazi did an assert executive privilege and not turn over any documents. I mean, Obama and Hillary not testify. Hillary testify. Hillary

dollar did she testify. She sat there for literally 12 to 14 hours answered every single question. Wasn't a chicken shit like these GQ peers. And here this relates to an insurrection against the United States. They should be, you know, if they're true patriots, like they claim, if they're patriots, they should be willing to go in front of the patriotic congressional committee. And just speak and tell the truth. What are you so afraid about that you're claiming executive privilege?

As we're gonna talk about with Trump's claim of executive privilege over the archives. And as would you call this specific district judge, hang him, Chakkin or hang him, hang him. Hi, Chakkin. Yeah, hang him. Hi, Chakkin. She goes, Donald Trump's not the president. And we don't have kings in the United States of America. We have the rule of law. I mentioned this earlier as well in the podcast, but Mark Meadows violated the requirements of responding to the congressional subpoena as well. And so likely an indictment is coming there as well.

And the same process will repeat. At least for Mark Meadows, he was in the administration, at the time, whereas Baton was a podcast, there's so Meadows at least has, I think, at the time where I was back and was a podcast or so. But that was at least has I think at least some argument, a little more straight-faced argument than that is. But the two things and then I wanted to give one last sort of lesson that's come out of criminal contempt and civil contempt because there's a little bit of a confusion about this crime

that's been charged and what can the result be versus whether we're ultimately they get the testimony of Bannon or not. And I'm going to give you an argument that's been raised by Jamie Raskin that I think is actually an interesting one. But my favorite moment from two days ago or from yesterday was that you see, and maybe you guys on the Brothers podcast talk about it, Did you see that actually while Bannon was doing his own podcast behind him on the MSNBC on his big screen television, the banner read Bannon indicted while he was doing his podcast. So so good. No, I saw that exactly. I love doing it. So great. So look, this is this is the last teachable moment for ban and for this segment. I think that's

important. The crime that's been charged and the indictment will be unsealed on Monday as well, and that will start the 70 day clock for speedy trial for this issue is one of criminal contempt two counts. If he's if he's found guilty of criminal contempt, the two counts, he can get up to a year for both. So it could be if they're served not consecutively but concurrently, it could be two year term plus a hundred thousand dollar fine. But that's not going to make him talk. He can just rot in jail for that. You know, under criminal contempt, it's either happened or it hasn't happened.

It's either a crime or it's not. This is not the minority report We're not this is not the thought police So he's being convicted and prosecuted for a prior bad act that rises the level of a federal misdemeanor That gives him jail time. He doesn't have to speak as a result of that So everyone's like well now we'll talk he can choose to speak But that does not expunge or remove the conviction. Just because he says, okay, I'll talk.

He's already in criminal contempt. Now, how do you get him to talk? If he's going to talk at all, and I know there's a whole group of theorists that think he doesn't want to talk. He wants to be a martyr. He wants to go to jail. He wants to come out, you know wants to go to jail. He wants to come out. He'll boost his ratings and his financial position. All probably true with that part of the party. There is a civil contempt mechanism

which you would ideal with all the time in court. And civil contempt is, Congress has the power to go on a civil contempt charge. They can bring it into a courthouse with through the Department of Justice on the Civil Division. The judge can then order him to testify, to expunge or to purge the civil contempt. If ban and refuses then, it actually can escalate to another level of criminal contempt. And if he doesn't testify even after facing a judge ordering him to in the face of a judge-based criminal contempt, that judge could put him in jail, kind of like Susan McDougall, back in the Whitewater days, and the only way out of jail would be to testify. So the key to the jailhouse door in a civil converted to criminal contempt

environment is by testimony. So make it clear, the the DOJ's case will not force him to testify. And he can rot in jail upon conviction for the prior bad act. But there can be in Congress if it has the will, which I think it does, they can bring a civil contempt claim through the Department of Justice, which could become a criminal contempt claim, which would require him to testify or he'll just sit in jail for a period of time. Big rulings with the national archives and the efforts by the Jan 6th Committee to compel by the Jan 6th Committee to compel Donald Trump to produce records, the first tranche of records responsive to the January 6th requests into the Trump administration's involvement into coordinating the coup, the insurrection against the United States. Those docs are ready to be turned over to the January 6th committee.

Trump and his lawyers sought to block that from happening. Popok and I talked about on the prior. Legal AF, we analyzed the judge that it was before, the law, we predicted the outcome that judge Chalkin from the district court in Washington, DC, was certainly not going to allow Trump to block the production of those records from the National Archives

as we discussed on the prior podcast. The privilege lays with the current administration, the current president, and the Trump administration's lawyers were arguing for a law that was overruled by the actual law of what exists today. Also, these are public records. Donald Trump is not a king and Judge Chalkin talks about that in the ruling. Pope Aka want you to talk about that big ruling and what the district court, what happened with the district courts ruling

by the circuit court of appeals. But first, I want, and we're gonna talk about Kyle Rittenhouse soon, which I know everyone wants to hear our take and specifically your take part. Everybody wants to hear it except for Kyle Rittenhouse. I exactly on that. But first I wanna talk about this podcast is brought to you by QB.

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into your most productive opportunities to stay healthy with QB. So visit QB.com.U-B-I-I dot com slash legal AF. Popak I teased the ruling. Tell us what's going on in Chalkin's court and in the circuit court of appeals. Okay, so you got Judge Chalkin, who we love for many, many reasons, including making really great decisions

on sentencing the Jan 6th people and the like. So Trump just to bring everybody up to speed, we got the National Archive, which is the repository for all of Trump's memos and speeches and notes, anybody in his administration at the time, all has to be turned over to the National Archive. There's a federal law that requires that came out of the Nixon era, the President, President, Presidential Records Act. So while I'm sure Trump would have loved to just grab up big boxes of overflowing papers and kind of go out the back door with a U-Haul,

with all of his shit, he's not able to do that, even Trump's not able to do that. So we had to turn it over to the National Archives. Then you have the fight that's going on between the application of the executive privilege, who holds the executive privilege, the current president, or the former president. Well, the law has already been established in that area by the Presidential Records Act and by Supreme Court President. And it's held, generally, by the current sitting president. Well, the current sitting president, Joe Biden, has not globally, but on a selective basis, waived the executive privilege as it relates to Jan 6th and the lead up to Jan 6th and the

immediate post events of Gen 6 to try to get to the bottom of what happened with the coup, who was involved on the planning side from the presidential level, the president's campaign level in a White House chiefs of staff and others. And we now we've discovered through the Gen 6 committee and from testimony of people who have testified.

I mean, they've had a lot of people testify. I know we're fighting over these 10 or 12 and another 20 or 30 subpoenas just came out, but they know a lot already the Jan 6th committee. And what they, what they already know is that there was a war room that was established at the Willard Hotel in Washington, DC that had a rogues gallery of people there from Giuliani to Flynn to John Eastman, who's sort of a crack pot lawyer who came up with all sorts of reasons, all sorts of coup memos that were the basis of trying to argue that Pence should stop the Jan 6th selection of the president. And all of these people coordinated by meadows. This is the testimony coordinated by other people in the Trump campaign. Literally had a war room leading into and

planning the this march that led to the violent attack on our capital. That's what the Jan 6th Committee is focused on right now. And so the documents were first released by the Biden White House. And so the documents were first released by the Biden White House. They then went to the Trump side to review them and Trump then tried to argue to this judge that he's got executive privilege. He lost three times in front of Chuck in a week span. He lost the main the main argument which that he has executive privilege and you've outlined what her ruling was there. Then they wanted her to hurry up and make her ruling so they could do an immediate emergency application to the Supreme Court.

And she says, I'm not herring. She denied that application. I'm not doing that either. And then when she finally ruled on Thursday or so, against him, they then asked a third time, will you stay your order? Will you prevent the National Archive from providing the documents in a day or so to

the Jan 6th committee? While we take our appeal, she said, no, I'm not doing that either. If you want to get a stay, you better go to the DC Circuit, a pellet court, and ask for that stay. So that's what they did. They filed an emergency appeal to the DC circuit. Now, we just talked about the judge that got pulled, that was selected to handle the banan indictment who sits in the DC circuit.

This is the appellate court that sits above that judge. And that is a mainly more liberal, a lot of Obama and Clinton appointee place, than even Biden appointee. So the three judge panel that got selected to decide if Judge Chutkin was right or wrong and whether these documents should be immediately turned over to the National Archive consists of a judge appointed by Biden and two judges appointed by Obama. That's a pretty good that's pretty good poll. Now, some people were upset because

they did issue an administrative stay almost immediately to stop the National Archive from giving the documents over to the Gen 6 committee while they allowed for full briefing. But the full briefing schedule that they adopted is only one week long. So the whole issue is going to be briefed by this coming Tuesday. That panel is then gonna probably have oral argument later that week, and they're gonna issue that ruling. Why do I think they did that? They did it for a very good strategic reason,

because if they denied the stay, it would have allowed the Trump side to take an immediate, what would you and I call the shadow appeal directly to the Supreme Court and to the one justice of the Supreme Court that sits on top of the DC Court of Appeals. And that justice is the Chief Justice of the United States, John Roberts. So it would have been a direct appeal to one justice of the Supreme Court who would have decided heads or tails whether that issue

was going to be in our favor in terms of executive privilege or not. So the panel said, why do we do full briefing? Why do we just stay the production for another moment? Let's give us a week. We'll do a full brief. And then what has to happen is a full fledged appeal to the US Supreme Court, which requires four votes to take a case on cert, and then they can decide whether to put it on fast track or not, which is what they did with the SB8 Texas case. Does that make sense? It does.

So, but what happens, Popeye? So, if the DC Circuit Court denies the appeal, which it will, does then, is Trump, do they file an emergency petition to the Supreme Court, though? Then tries to stay the records again. Yeah, and then you need a four judges to take it up on search, a search r re. So it's better for justice that instead of John Roberts alone making the decision on an emergency shadow docket appeal. It's a full blown requirement. And then even if they get four votes to say, hmm, this is interesting,

we'd like to hear it at the Supreme Court level, then you have full briefing. You at least have briefs and amicus briefs and you have oral argument and you have all of those things that are really necessary as opposed to a back door ruling by John Roberts, yay, your nay, we're all kind of on the edge of our seat about, oh shit, what's John Roberts going to do? I'd rather have a full panel. It's going to the Supreme

Court. They're going to get the four votes to bring it up. But I'd rather have it on full briefing and oral argument and search and the sunshine and the light of day and you and I and our listeners can listen to the oral argument than what happens when it goes to one judge or one justice through the shadowdocket process? Popak, a lot of our listeners and viewers have referred to you as a silver fox. What's your response to that? You know, this is why we don't rehearse, so I can get those kind of questions thrown at me. Okay, A, I'm not sure. I like that. I may have to shave my beard because that's where the most of the silver resides. I've also seen some people, including on the

brother's podcast, that have said pop up for attorney general, which I like that one. I'm going to be starting today, the on-voice shadow attorney general of the United States, because I said so. So you do not like the term silver fox. I'm okay with it. I don't, you know, there's worse things if you called it life. I've earned it. I've earned every gray hair on my head and my beard. So I will take it as a compliment and I will tip my hat that I'm not wearing to her

to our followers and listeners. Thank you. What do they call you? Thank you for that, Bob. What do they call you? They call me Ben. They call me one of the Midas brothers. Exactly. I want to talk. That gives us a good transition point to our sponsor, Adam and Eve. Adam and Eve. This podcast is brought to you by Adam and Eve. Let me ask you a

question. Are you getting enough? And I think what we were saying, are you getting enough? We're referring to, I think we're referring to, are you getting enough sex? That's what I think that line means, Popeye. Yeah, I think, you know what, I've been around that long, but I think that's what they're referring to. That's what they're referring to, I think here. And I bet you love more, right? Also, I think we're referring to sex here, right? We're referring to, you know, I think these are good assumptions that you're making. Go with it. Go on.

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Oh, you think it's a double entendre, Ben? I think the hard there is referring to erections, Popak. I think that's what it's referring to. Elections, you say erections. Corrections. Okay. I forgot what podcast that was on. So just go to AdamandEve.com and select any one item. This could be an adventurous new toy or anything you desire. It's a sex toy. You're referring to sex toys, but they've got sex loobs. And there are people who are like,

oh, you're doing an ad for sex toys and loobs. Yeah, we're not above that, okay? On legal AF, let me just be clear, okay? Like, Jordi may do that ad in a better way than I just did it, and I broke it down as the lawyers would on that legal podcast. But let's be clear.

Let's not pretend that like human beings aren't having sex here. And let me also be clear here too, that you don't have to go into like those stores that make you feel maybe enjoy going into those stores where you get to see everybody picking out the stuff. But like, you know, that could be uncomfortable. Here, you can do it anonymously. You can get this stuff at really good prices. Don't have to tell us about going to. You don't have to share with the world about what you're doing. Just go ahead. Can I give you that one? I'll just leave it at this. When you go into those stores, you might have a situation where somebody needs to do a price check.

When you go to those stores, you might have a situation where somebody needs to do a price check. Price check. And, you know, you really don't know. You scared me for you, Popak, you pulled that, you pulled that up. I had no clue what it was. You were, I thought you got that from Adam and Eve right there. No, no, that was my phone in my hotel room. But you don't want a price check. And you can, and on Adam and Eve's website, there's no price check. You can pick out whatever your heart desires or your, your partner's heart desires. And, and you can do it in the comfort of your own home and they give you the pricing right there. And you get a discount when you do it through legal AF. Yeah, just enter offer code legal AF at checkout and you'll get 50% off almost any item. So go check out Adam and Eve.com today. Select one item, get 50% off, including free shipping when you enter offer code legal AF. That's legal

AF at Adam and Eve.com. And I think one of the things to pop up, we're hearing about supply chain issues, delivery issues on the news every day. So just don't wait on your Adam and Eve order shop now, shop early, hurry up while supplies last. And one of the things to like those the legal AF codes, it's not tracked like we have no clue who's ordering anything. So it's it's completely anonymous. But go and go to Adam and Eve.com, use the offer code. Christmas is around the corner. Legal A. And I don't know if that's a, you know, just transitioning into the Kyle written house trial right now. After that ad read is a smooth transition or not, but we got to talk about this trial. It is what everybody has been waiting for,

Popock in the live chats. And again, for those listening on just the podcast audio, when I say legal AF is live on the Saturdays, we do a live legal AF on YouTube and on Facebook where you could watch and interact with us as we're actually shooting this live and recording this podcast live and made for live. And so you could join us there as well. We appreciate you listening. Lots of people like to listen to it twice because it's jam-packed with information. But lots of people on the chats have been saying,

let's talk about the Kyle Rittenhouse trial. We have to talk about it. A lot of people on the chats have been saying, let's talk about the Kyle Rittenhouse trial. We have to talk about it. A lot of people have focused on the judge in this case, judge Schroeder and his antics in the courthouse. Do we have to give a primer pop-up? Do people know, I mean Kyle Rittenhouse, basically crossed county lines

prior to when people were protesting post George Floyd and there were anti-racist protests and people expressing their views peacefully. You know, I saw a video on TikTok pop-up that I talked about for all of the, you know, Trump trying to frame Black Lives Matter as being, you know, this just this horrible organization and talking about the vast majority

to a significant degree of protests were incredibly peaceful and a lot of the agitators were right wing agitators. And in terms of people who went there and actually killed humans, and nothing to do with the anti-racist protesters, but people like Kyle Rittenhouse who grew up with guns in his hands, crossed county lines with guns and he wasn't, he illegally

possessed the gun. He was 17. And 17 years old and killed two individuals, shot another individual, repavoc, and now wants to go up there and show those alligator tears. That was a call alligator tears. Yeah, crocodile called alligator tears. Yeah, yeah. Yeah. No, crock, crock, crock, crocodiles tears.

That's my brain is so weird from the alligator tears. Right. Crocodile tears. Right. I do my best here. Um, Crocodile tears. And so, and so, Popo, you want to give us the high level summary of what's going on. Yeah.

And I'm going to hit you with some papakian questions. You're going to do a speed round on written house. And I'm going to be, I'm going to be a little controversial on this segment because my view of this is different than then has been expressed by other competitor talking heads. And I want to start at the end and work backwards because we're coming to the end of the written house trial a trial of a 17 year old to claim self defense against a murder charges against two people that he killed. There are, there is something going on with the defense and I believe that they are worried about the conviction more so than the people on Twitter belief. And why do I think that? Because they've done certain things that lead me to believe that they watching the jury. Everybody, everybody on Twitter is watching the judge because he's a

buffoon and he's making the trial about himself. Well, agree. Quillo, we just stipulate Popeye that this judge is a total buffoon. Yeah, he's not a controlled. He's acted totally unprofessional. Yeah, I think that's a given. Yeah, I'm going to stipulate to that. I'm going to stipulate that this judge is making a mockery out of what it's supposed to be. We're not even supposed to know who this judge's name is. He's become a celebrity in his own mind.

He's imprinting himself. But something that doesn't get talked about is that there are 12 people sitting in that room that actually is the trial of fact and makes the decision in this case. And I assure you that some of the judges' antics are pissing them off as well. And they don't, they're not buying into his game either. I've seen judges turn juries off. The, the defense is in the room. It's breathing the air, it's drinking

the water, it's watching the jury. And my position, my supposition is they have spotted something in the jury's body language, maybe getting turned off by the judge at his antics, maybe getting turned off by written house, maybe getting turned off by the blueberry alligator crocodile tears event. And they are worried. Why do I think that? You almost never put your witness on, you're defended on in a criminal trial and have them wave as Fifth Amendment rights unless you believe you're behind on points in the case. You don't just do it. People, I love reading people

on Twitter saying, Oh, they think they're winning. They're slam dunk winning. So they're just going to throw them on there anyway, because I know they got the case in the back. Wrong. So there's a number of events that have happened that led me to believe the defense is worried. One, I believe they're watching the jury and something's going on with that jury that's being missed by the commentators. And we don't even have cameras on the jury because you're not allowed to have cameras on the jury when you do a televised murder.

And there's a reason for that because they're supposed to be private citizens being the rule makers, the finders of fact in the case. That's why when the jury enters the room, everybody rises. You're not just rising for the judge, you're rise for the jury. So they're watching the jury that you and I cannot see right now. That's one. They had they had their their client wave as fifth amendment rights and take the stand. That's usually when you think you're losing. Secondly, there was a battle yesterday over other charges because now after the closing

arguments, closing arguments on Monday, which are going to be two and a half hours long a piece. So five hours of closing argument, then the jury gets charged, literally charged what the law is, what the, what the crimes are, what the elements of the crimes are, how they're supposed to evaluate witnesses, how they're supposed to evaluate the credibility of people, and other instructions, including one related to self-defense, which I'm going to tell you about. So there's a battle, there's a tussle between the prosecution and the defense over what are the charges. We know that the reckless and intentional homicide charge is there, because that's what the indictment was. That's what the charges are. The question is at the time just before deliberation by the jury.

Is there going to be lesser charges that they're going to give as options to the jury having heard the evidence. Prosecution sometimes wants lesser charges as an instruction because they're worried that their case hasn't gone that great and they don't want to walk out with no conviction. The defense sometimes is worried and wants lesser included defenses because they want to give the jury an exit ramp to avoid if it's a capital case, the death penalty or here life imprisonment. So for those that think the defense is really cocky about their case, they agreed to have lesser included offenses less than reckless

and intentional homicide included in the charges as did the prosecution. That's another one that signals to me. And also the fact that they move for a mistrial, arguing that the prosecutor, in this case, ADA Thomas Binger, who will talk about more in this segment, who I think is done a terrible job as a prosecutor in a number of ways that have ruined the case for him if they lose. We'll find that those were the bad decisions that led when they have the jury testify or be interviewed about what their ruling was. If it goes wrong for the state, it's because of bingo. I think you did a terrible job.

But on the mistrial, you don't move. Yes, you'll move for a mistrial when you think you have it. But the fact that they move for the mistrial, which the judge took under advisement and is not going to grant. He's not going to find mistrial or worse, a mistrial with prejudice because he needs to find prosecutorial overreach or abused by the prosecutor. That's not happening.

This is going to go to the jury, the jury's going to render a verdict. Now, Fifth Amendment waived, mistrial moved for and the defense allowing for lesser included defenses says to me that the defense is worried. The prosecution is worried as well because they've screwed up in a number of ways. I'm going to give you two or three examples.

They had one of the victims who was murdered by written house. They had the fiancee of that victim testify. And why in God's name, Binger asked her whether her fiancee who was murdered was on or off his medication. And opened the door to an issue that had been closed by motions and limited pre trial to the psychotic state of her fiance, giving the defense and a self-defense support is beyond me. And so she said, no, he was off his meds, which opened the door to allow the defense to say, what mental illness did your fiance have? He was bipolar. So now you've got an issue in the jury's mind about a raging bipolar person

that written house killed in self-defense. That is an unforced error, Binger didn't have to ask that question. He didn't have to open that door, but he did. He did the same thing with the videographer who was a witness. He said to the videographer, well, how do you know what was in the mind of the victim of this other victim? And whether that was, you know, a supported self-defense or not? Why ask that question?

And so he got a bad answer. The bad answer that the witness said was, well, right before the victim reached for his gun, he said, fuck you to Kyle Rittenhouse. So now you got a guy reaching for his gun saying, fuck you, which supports Rittenhouse position that he shot the guy in self defense. Why ask the question? And if you don't know the answer to the question, then you violated the cardinal rule of cross examination. You've asked the witness a question that you don't as the prosecutor know what he's going to say is the answer. So prosecution has done a terrible job here, but defense is worried

as well. And that has, and then you've got all of the bad things that you would now talk about, the judge did, which could give both sides a pellet reversible error arguments if this case goes the wrong way. One last thing before we go to your speed round, Wisconsin's governor has called up the National Guard. There's going to be 500 National Guard people or more in the streets around Kenosha and around the courthouse when that ruling comes out, that verdict comes out probably later Thursday Friday of next week. We're going to have a lot to talk about in the next podcast. Bobpock, what was the issue about, was it an authentication issue or why didn't the judge allow the prosecutor to show video that was taken on an Apple device and wouldn't

allow them to zoom in on it, which, what was the issue about when they want to zoom in on and then why did the judge not allow that? There's video and I don't know why it was on an iPad and it was being presented that way, but there was Apple video or iPod or iPhone video that was taken and it's one of the many angles of, you know, there's actual video of what transpired here of written house being, you know, at one point, you know, pointing his weapon, but then being chased, he was hit by it with a skateboard a couple

of times. He was hit with a bag. And, you know, the tick-tock of exactly what happened and why is important to the defense who has a self defense, a self defense defense. Right. And so there's video from different angles, including on iPhone. The problem with the iPhone is the defense

successfully argued to the judge, you know, he's like 80 and probably has a jitterbug phone in his back pocket, that the pinch and zoom feature of the iPhone actually is using artificial intelligence that changes the perception and the perspective of what's being viewed and it can't be entirely trusted the way a regular video or photograph can be. And so inches, when inches matter and timelines matter in a case like this, they successfully argue to the judge that this pinch and zoom feature has so much artificial

intelligence baked into it and algorithms baked into it that it can't be completely trusted. So the judge said to the prosecution, you got five minutes. Why don't you find an apple or iPhone expert and come back? The burden is on you because you're presenting the evidence as the state. And I don't, I'm not trusting the credibility or authenticity. So he bought hookline and sinker the defense's argument. I've never seen the whole Zoom algorithm AI thing raised before. It's an interesting topic. I don't think the judge was completely right about that. And it stopped from some critical evidence from being brought into brought into the trial and gave the defense a way to cross-examination.

You know, I had what I did, lots of civil rights trials and a police officer would often be the defendant in a civil lawsuit, in often involving the death of a decedent. I would represent the family of the decedent. And virtually in all of the cases, the defense would basically do exactly what the prosecutor wanted to do here, which is to zoom in on the decedent, the individual who got killed, frame by frame, to the one hundredth of a second, and basically show any movement whatsoever.

And then they would pause it like here's the four one hundredth of a second clip and you know people move. So when I just did that right there with my hands and for those listening I moved my hands from side to side. If you were to slow mo it, there may be a moment where my hands looked like I just made like a furtive motion or a point with my finger. And they would say to the officer, so when they did that, did that look like a gun to you or did that cause you intimidation, but in real time, that's not anything that anyone visualized. And oftentimes, that's evidence that's allowed for a police officer who's charged to not be criminally prosecuted or to add to their defense.

So that was interesting. Yeah, I also think, you know, and I know everybody wants the 18 year old who took the took his gun without provocation into Kenosha the night of the and Kenosha, you know, we talked about most BLM movement protests were peaceful and that's true. That that that wasn't Kenosha. Kenosha, which came off of James Blake, being paralyzed by the police shot in the back and pro it was around the BLM movement and kind of all around the same time. But I had to do with Blake that lit that fuse. They were burning down Kenosha, whoever it was. You can call them whoever they were. I'm not saying BLM

was burning down Kenosha, but the business district of Kenosha was under attack. And this kid goes in there with his weapon. If he hadn't done that, two people would still be alive. The problem is, and I've seen this reported by other prosecutors and former prosecutors, even in Wisconsin, there's a working theory, and we'll have to see what the jury does with this, that the prosecutors in Kenosha overcharged this case that some prosecutors wouldn't even have brought an intentional or reckless homicide. They would have already brought a lesser charge against him because there was enough evidence when you interview these witnesses that would have supported at least a good faith application of the self defense. Yes, the kid put himself there voluntarily, but the question is after being hit with skateboards

and after having one person reach in to his waistband to pull out a weapon and say, fuck you. And having as testified by gross croits, who's the survivor, the surviving victim, who says, it was an intentional, but I did point my gun right at him right before he shot me and tore away my bicep. That supports the defense more than the prosecution. And there was the good moment though, Popak, in the cross examination of written house,

where they then went back to written house, who now waived his Fifth Amendment rights, took the stand on that time sequence, where this was a good moment for the prosecutor where he did get written house to admit that he was pointing his gun at the victim first before the victim put it in the lock and then again. Smacking is forehead during, and I'll tell a story about that in a minute, the prosecutor's smacking is forehead at council table when cross-crites was testifying not great for the prosecution is not great in the courtroom and in front of a jury. I once had a situation. I had a habit which I think I've now

eliminated from my body language and not in front of a jury. I was once in a high profile case in Florida involving a real estate development trial. The jury was out of the room and the judge made a very, very unfavorable ruling to me that changed the course of how I was able to present that case of trial. And at a break while the media was behind me, I just rubbed, I did this. I just sort of to collect my thoughts, I just rubbed my face. And that ended up as a quote in the paper in her reporting the next day

that things went so terribly. And even the lawyer for the city, Michael Popak, rubbed his face in disbelief. It really wasn't that, but that's what it looked like to the media. And when you have a jury, and again, I want to reiterate, we are not seeing the jury on purpose in the courtroom with the cameras, the lawyers are. And I am telling you, they are picking up body language from that jury. I once had a jury ben that was a civil jury of six people. So it wasn't 12. And on the third day of testimony,

five of them were sitting on one, literally on one side of the jury box. And one was by herself. And that meant that something had gone awry in the jury room and that this one woman was hauled out. That's not great when you see things like that. And if you are a trial lawyer, which you and I are, and you have your head on a swivel,

and you're constantly watching the jury, the judge, the witness, to pick up clues to help you in your presentation, or to pivot, or to make a new move, a new tactical move, this is going to be a hard decision. I'll do your question and answer, and then I'll tell you what I think the result's going to be with the verdict. Well, I'll tell you one also quick story along those lines where in my first trial, I was so fascinated by what the jury's reaction to things would be.

I kept on looking at them. And then so like I just wanted to keep looking to see what they're doing. Expression and then the judge even said to me, she goes, stop looking at them. Like probably during a break, she said, can you stop looking at them all the time? It's weird. But you know, it's your first, you learn those lessons. Yes. You learn those lessons over time.

So Popoq, you answered pretty much four of the five questions that I had, but my one question is, what do you make of it when the judge told everyone in the courtroom and I believe, including the jury to applaud a witness? Now granted, it was Veterans Day. So he was saying applaud people who were in the armed service. But it happened that this particular witness was the use of force expert for

the defense. So a very critical witness for the defense, probably arguably the most critical witness outside of Kyle himself testifying where he didn't have to testify. But the use of force expert basically is allowed to opine whether in a given circumstance a reasonable officer or a reasonable person in this case, what they would, what their response would be to external stimuli. An expert can't give an opinion as to like the ultimate liability issue, but they can give their opinion about normal responses and people's right to defend themselves in certain situations based on their expertise. And the judge had the jury and the audience

applaud the witness that he was really absurd. All right. So here I'm going to give you two views. One of them is what do I think an appellate court would do as an error, as an issue of error, and then I'll tell you what a trial judge should never do, because you don't even want to get into the world of whether you just committed error by doing that. There's a concept in the law called bolstering, B-O-L-S-T-E-R, and you never want to be in a position where you are bolstering improperly the credibility of a witness before that witness even takes the stand.

So the judge will be accused in the appeal, if there's a loss by the prosecution, that he inadvertently or not improperly bolstered the credibility of the witness that was about to take the stand, who was a veteran of army, my dad was army, so go army. But you're not supposed to do that because then it gives the sort of the halo effect around the witness with a jury that's supposed to be judging credibility based on testimony and what they observe in the courtroom with their five senses, not out of sympathy because he's a war veteran. So you don't do that. Even if veterans day happens to fall on trial day, I've never in 30 years seen a I've seen a judge say things patriotically about upcoming holidays, regardless

of who's in the room, including the jury for the July is coming and whatever. But veterans day and then when the only person that he was already stuck because when the only person out of the jury, the defense, the prosecution courtroom observers, the only veteran in the room happen to be the use of force guy. Judge was sort of stuck. He's like, well, let's, let's give a round of applause. Now, a, I'm not sure that's going to rise the level of improper bolstering. B, I think that could have backfired with the jury, the jury or human beings too. I'm not sure they're going to be swayed

by having to applaud for the guy just before he takes the stand, although, although we'll never know. So I think on the appellate level, while bad and the judge will be chastised for it, I don't think that the appellate court would find it to be reversible error in proper bolster. Then there was the moment where the judge yelled at the prosecutor. I don't believe the jury was in it was not in the jury's presence. No, it was out of the room. But he yelled at the prosecutor for going down a line of questioning that suggested to the jury that this was the first time. It was accurate that it was the first time, but that Kyle Rittenhouse previously invoked

his Fifth Amendment rights against self-incrimination. Now, the question wasn't, you previously invoked your right to self-advertise, that's not how the question was asked, but the question was asked. So this is the very first time that you've ever told anybody this story today, isn't there right? And you had all of these months since the incident. And now you choose to tell them this story. And you watched all and you're testifying having watched every other witness in the courtroom, all 30 witnesses and seeing the documents and now you're testifying, right? That was the, That was what he was trying to do. Go ahead, make your point, and I'll tell you what I thought is. So the judge yelled at him and said, you know that that's

completely improper. By the way, that's the basis of what the mistrial motion is on that, that that came before a jury and that suggestion that to imply guilt within Kyle Rittenhouse for invoking. We all have that constitutional right. We're all, you may hate Kyle Rittenhouse rightfully so, but he does have a presumption of innocence. And we should all be angry that it tends to seem and is that Kyle Rittenhouse's presumption of innocence seems to be far more presumptuous

and more of a presumption rather of innocence than people who are different skin colors, different races, and different ethnicities. So then a white 17-year old, now 18 year old. But he still has that presumption of innocence. And you're not supposed to ask those questions. The judge was right there. Now should the judge have yelled at him in that kind of way

and kind of showboat it? But at the end of the day, lawyers get yelled at all the time. You know, that's not uncommon. I mean, judges, you know, I'm just not great judges. There's different approaches. I just got yelled at you, I just there's different approaches. I just got yellow. I just got yelled at at a trial in Miami. And I liked the judge and the judge was my former law partner from 15 years ago. I was having a technology problem. Literally, we had three or four people in a room and the Wi-Fi was groaning and straining under it. And I kept blinking in and

out. And he couldn't hear me. And we were at a critical moment in the earring. And the judge said, no, Jerry president, but the judge said, Mr. Popok, if you cannot get your technology straight, we're going to cancel this hearing today. And I'm not sure when we'll ever have it again. So I'm going to give you 15. And it was just like this yelling and screaming. I had my client there. I mean, it looked terrible. It was just a technology problem. But the judge, the judge was throwing the book. I'll tell you a yellow card. You gave yourself a yellow card. You gave me a yellow card. I'll tell you a story tonight. I can't tell in the podcast about that issue at basketball. But I'll, anyway, it happens all the time. And everybody that got upset because the prosecutor got called on the carpet for what I think

is violating the most sacrosanct rate of a criminal defendant, which is not to have his Fifth Amendment assertion commented on during a trial. I thought it was too cute by half of trying to thread the needle to avoid the violation of the Constitution by having him say, he actually said you previously had taken the fifth amendment and now you've had the opportunity to listen to everybody else. And this is the first time you've testified. I think that's foul. So and I've seen the judges get upset. I mean, I've been in cases that don't involve liberty and don't involve life threatening and victims where the judges have gotten annoyed. I had a case, another case in

Florida, where it was a construction case, I mean the driest of construction defect cases for a huge project in South Florida. And the lawyer against me had been, we had already had a ruling in my favor, or no, actually in his favor, to keep out damning evidence about a prior lawsuit. And the judge said, well, as long as Mr. Blank, you don't open the door. Mr. Pope, I can't go explore that in his cross examination. Well, I'll be damned if the guy didn't accidentally open the door and started asking his own witness questions about the very lawsuit that I wanted to ask questions about. So there was a break in the action. Jerry was dismissed. We all got brought up to the, to the judge's bench and the judge literally took a giant binder clip and like threw it into his, into his own bench and said, what were

you thinking, Mr. Bank? Of course, the door is open. And then there was a later motion for a mistrial. This happens every day. But the point that you made earlier been that I don't want to lose is that the justice system is primarily, uh, the criminal justice system is primarily where black and brown defendants are in our process. And we're all up in arms about the white kid in Wisconsin and the two, two things that he did were terrible with murdering people. Every day black and brown people suffer more injustice at the hands of our justice system, more prejudice at the hands of a jury, more prejudice in the way of sentencing by way of a judge, then written house will ever will.

So yes, be up in arms about what you think's going wrong in the written house case, but be equally up in arms about what happens every day in America in our justice system against people of color and people who are not white and privileged. What's your prediction? I think he's not going to get convicted of the intentional or reckless homicide. I think he's going to get convicted of a lesser of a lesser offense and be sentenced to about five or 10 years in jail, but it's 50, 50. He could get off on the self defense with a jury just doesn't buy it because there was

enough evidence that of it with one with one signal that I want you and I to watch carefully. The judge did allow, and this is in favor of the prosecution, did allow the jury to be instructed on the concept of provocation. The question is whether a written house provoked the attack on him, the bag being swiped at him, the skateboard being thrown at him by some of the victims. If he provoked that and the jury is instructed, if they find that he provoked that, then his self-defense goes out the window and he can be convicted. I thought that was a good sign for the prosecution that they got one big win. This judge ruled on Friday that the provocation instruction

is going to be given to the jury once they start delivering. Interesting, Popuck. They would cover it all there on the Kyle Rittenhouse trial. We'll keep following that. Lots of developments there. And of course, we will talk about the outcome of it, likely on the next legal AF podcast. Popock, I think we've covered it all. A nice, long episode of legal AF. I don't think we could have done it any shorter, honestly. No, no. And I don't think our followers and listeners, let's look down at the chat.

Do you guys want us to cut this stuff short doing 20 minutes or less like a TikTok? I don't think so. Wait, wait, wait, wait, it's not TikTok, Popak. It's not TikTok, Popock or TIPPock. Popock, I always love spending the weekends with you and I'm gonna get to see in person now. So drive on down to downtown.

I will catch you at the office where the game's about to start pretty soon. So you gotta head out now. So head out and we'll be at the Clippers game for any of our Los Angeles fans if you want to do a Popaki and meet and greet I suppose will be at a Clipper game tonight So if you're at the Clipper game, we'll say hello to you or if you're by LA live we'll say hello to you and You know look Popak love spending every weekend doing this with you

We've we've spent a really long time going through all of these issues, but it didn't feel like long at all felt like we've been doing this only for a few minutes, but looking at the clock, it suggests counter. I'm going to paraphrase Judge Schroeder, which I know will try people, baddie. He had one good line when he set the two and a half hour limit for closing arguments on Monday, and this applies to you and I. He said, the mind cannot absorb what the backside cannot handle.

So our people sit in their chairs and on their couches for, you know, almost a couple hours on a Saturday night and then Sundays and beyond. And it's a testament to their devotion to learning about the law and the intersection of law and politics from you and I and they've got tremendous steely back sides, which, which we appreciate. I want to thank everybody. Look, I'll tell you what I'll be really helpful for everybody listening to this. as a five star podcast, that helps the algorithm. And that's a five star podcast on wherever you get your podcast devices, you could rate us a five star. And then please leave a review as well. Like I know Apple Podcast has the feature

and Spotify has the feature feature. And I know other podcast services where you could leave a written review. You've spent two and a half hours with us or two hours with us. It would be helpful to spend another five minutes writing that positive review. And we read them. You and I read them and the brothers read them. Of course we do.

And then I'll tell you what also would be helpful. We talked about our sponsors today. We talked about QB and where it's QBCUBI.com slash legal AF. We talked about athletic greens and AG1, which is athleticgreens.com slash legal AF. We talked about Adam and Eve. You go to Adam and Eve and you type in the code legal AF for that 50% off almost any item discount and we talked about better those discounts as well with the sponsors so that we could pass on those discounts to you on these types of products. And so it helps the show too if you support those sponsors. If you reach out to them and tell them you heard about them on legal AF, it helps them

renew and that keeps the show going. Popo and I like to keep the show going. And we want to make the show somewhat economical to do. But it doesn't have to be. But it helps a little bit if we can pay for the mics and pay for the sound and the editors and all the paintings my blue paintings are costly and all the things that go into it. We learned a lot on this podcast today, especially that Popock is okay with being called a silver fox, but not incredibly enthusiastic about it. He is enthusiastic about the people who say he should run for a G. Popock, any final words before we close

out? No, I think this was a spectacular show. I can tell by the people that are with us that they overall feel the same way. So I'm looking forward to seeing you in a little bit and then doing this all again, rinse repeat for next week. Shout out to the Midas Mining. We'll see you next week. you