Legal AF by MeidasTouch - California Judge OVERTURNS Assault Weapons Ban

Episode Date: June 6, 2021

On Episode 11 of LegalAF (#LAF), MeidasTouch’s Sunday law and politics podcast, hosts MT founder and civil rights lawyer, Ben Meiselas and national trial lawyer and strategist, Michael Popok, provide a sobering analysis of a California federal judge’s decision to overturn California’s 30-year old ban on assault weapons citing the overriding considerations of the Second Amendment (while comparing AR-15s to swiss army knives and Ford pickup trucks) and predict what the Supreme Court will likely do about it in a future term. Speaking of 30-year precedent going out the window, next the Legal Analysis Friends look at Coney Barrett’s first majority opinion scrapping the 1986 Computer Fraud and Abuse Act criminalizing most database breaches and why the composition of which justices joined together to make up the 6-3 majority is so bizarre. And on the topic of here today, possibly gone tomorrow, the Legal AF duo discuss the likely decision this week by SCOTUS to revisit next term (and possibly overturn) the use of affirmative action in higher education to create diverse student bodies. Next up, Ben and Popok take a hard look at former National Security Adviser Michael Flynn and why his recent statements made at the Q-Anon convention (?!?) calling for the violent overthrow of the US government is not only a federal crime, but should lead to his court-martial and loss of his military pension to boot. No #LAF episode would be complete without a look at Former 45’s current legal troubles, this time his being sued along with Don Jr., Rudy and Rep. Mo Brooks by members of Congress, including Rep. Eric Swalwell, for violation of the KKK Act for inciting the January 6th insurrection. Ben and Michael also don’t pull any punches and share their jaundiced view of Trump’s efforts to argue that he enjoys “absolute immunity” from a civil suit since “it happened” while he was President. While they're at it, the #LAF hosts scratch their collective heads as to why on earth Rep. Mo Brooks would try to dodge the process server trying to serve him with the suit, as if that’s a good thing to do. To round out this hard-hitting, action-packed episode, Ben and Michael discuss if Matt Gaetz will also be hit with obstruction of justice charges for interfering with the federal investigation into his having sex with minors, and whether before he assumed the post, Postmaster General DeJoy committed federal election law crimes by illegally funneling money through his then employees to political candidates. And in a special “crossover” segment, the MeidasTouch Brothers visit #LegalAF and interview Matthew Modine running for the president of the labor union representing over 160,000 actors, artists, influencers, models and other media professionals, along with his running mate Joely Fisher, running for secretary treasurer. Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Midas Touch Legal AF podcast. If it's Sunday, it is legal. A F I am loving the new Sunday time. I've said that on the last podcast, I was skeptical on the podcast before that, but legal AF is crushing it Sunday. I am Ben Myceles of Garagos and Garagos with me is Michael Popak of Zumpano, Patricious and Popak. We are your legal AF enablers. And for the next hour or so, we have a jam packed schedule of dissecting legal cases. And as we dissect, we teach you about the legal issues at play. And ultimately at

the end of the day, we discuss how our law can help us save democracy, Michael Pope, how are you doing today? I'm doing really great, Ben. And you and I talked about our lineup for today. And some of it was even suggested by some of our followers. So we're going to dive right in because we got a lot to cover this week. No doubt about it. And at the end of our podcast, we have a very special interview with Matthew Maudine and Jolie Fisher, Matthew's running for President of the Union, SAG-AFTRA, the Screen Actors Guild guild union. They're going to be talking about important labor issues surrounding the screen actors guild. And so that will be at the end of the podcast. We hope you will check out that interview. But of course, first we want to get right into the law. Let me take you to the sunny state of California, where the weather is in the mid 80s,

as we're recording this podcast, but the beautiful weather doesn't necessarily translate to beautiful court rulings in the state, especially in San Diego, a San Diego federal judge from the California Southern District Federal Court overturned California's ban on assault weapons. And worse yet, in this ruling, this particular judge likened AR-15s to Swiss Army Nipes. We're going to talk about this federal judge in more detail, but the judge's name is US district judge Roger Benitez started off as a magistrate was appointed as a federal judge in around 2003, 2004 by President George W. Bush. I think there was some sense when this particular case was assigned to this judge based on prior rulings that he would rule in the most horrific way possible, overturning a ban that has been

incredibly helpful in our state since it was enacted in 1989. But I think the writing was on the walls with this particular judge who in 2019 granted summary judgment in a lawsuit against California's ban on large capacity magazines. That was appealed to the ninth circuit, which actually affirmed Benitez's granting of summary judgment, but actually fairly recently, as recent as February 25th of 2021, the ninth circuit agreed to hear what's called NBUNunk, a large panel of the Ninth Circuit judge to review the two to one decision. And so I think with that backdrop, Popak, tell us what's going on here.

Yeah. So look, you laid it out well. You joke a little bit with me about some of my Miami Florida roots. California has come up with a really horrendous overturn of the assault weapons control act that's been on your state's books since 1989. And I read the 94 page decision that he generated. He is obviously in every fiber of his being because you can tell in the way he wrote. In every fiber of this judge's being, he is a second amendment protector

above all other amendments of our Bill of Rights. How do I know that? The line in the decision that got the most press that we just talked about was him comparing AR-15s as commonplace as the Swiss Army knife. But if you read a little bit deeper into the 94 pages, he actually said it's the equivalent of Ford's 150 pickup truck. That there are probably more in his view assault weapons in America.

This is sad if true, by the way, that there are more or double the amount of assault weapons in America as they, there are of the top selling pickup truck in America. He actually says in the opinion, just to show you how cavalier he is about human carnage that results from assault weapons. He actually says every time you're on the road and you see a Ford, you know, F-150150 think about two assault rifles that exist in America. What he does in acknowledge in 94 pages is that every major mass killing in the last 20 years has been at the hands of an AR-15 in some lunatics right or left hand. And just to remind our listeners, I'm talking about the mass shootings in Las Vegas at the Pulse Night Club, Norlando, at Sandy Hook Elementary School, at Stoneman Douglas School,

every one of these, an AR-15 was used, and one of the fathers, who's the leading gun control advocate, one of the fathers of the victims at Stoneman Douglas, put it best. He said, if this AR-15 is the equivalent of a Swiss army knife, my child would still be alive, because how many people can you stab with a Swiss army knife? The problem with this judge is he's fallen in love and picked and chosen from certain precedent of the United States Supreme Court, and particularly DC versus Heller, a 2008 Second Amendment case, which did set a new standard. It did once and for all, tell all circuit courts, including the one in California, that the

right to bear arms is not a right of a states. It's an individual right, both based in the right to have a militia, which you and I have talked about in past analysis of the Second Amendment, and in personal self-defense. This judge has sort of smushed that together and said, well, the AR-15 is perfect for both. It's perfect for home defense, and it's perfect for homeland defense. And it is so commonplace in America. This is justification in a second amendment analysis that it is so commonplace in America that an AR-15 sits in somebody's gun cabinet

that therefore the court and the second amendment should recognize it and allow it to be to be in everybody's household and not be a violation of the Second Amendment, and it's this violation of the Second Amendment, if you ban it. What he's ignoring is the actual language and text of DC versus Heller, where even that Supreme Court back in 2008 recognized that it does not grant an unlimited right to have any weapon of choice for any purpose and have it be okay under the Second Amendment. And I think the assault weapon and high-count magazines that this judge has already ruled is also okay is just the type of thing that the founding fathers who had flit and muskets as their weapon of

choice would find appalling and not with the intended by the Second Amendment. And then Ben, just to turn it back to you, what happened to the federalists who are these people who say their conservatives on the court, who say their federalists, who say you have to look at the literal text of the US Constitution and what the founding fathers intended. How can they justify an AR-15 which would never have been within the Ken or the transum of the mind of a founding father to justify it under the Second Amendment? And so we've broken down the language of the Second Amendment. And what's always intriguing are people like Judge Benitez, when they usually interpret other cases, they are always talking about how you have to be very strict,

you know, strict interpretation. Every single word has a meaning, you know, and you must, you know, dissect every single word when you read the second amendment. It says, a well-regulated militia, comma, being necessary to the security of a free state. The right of the people to keep in bare arms shall not be infringed. And the words that they clearly do not give any credence to. And this is when we talk, Judge Benitez is not pro-second amendment. Judge Benitez is pro-interpretation of second amendment that leads to mass deaths in the United States. That's the interpretation of the second amendment that he as scribes to because when you read it, a well regulated militia. Well,

the word regulated is literally in the second amendment, even if we read out the word militia, also it being necessary to the security of a free state, the right of the people to keep in bear arms. The word regulated literally's one of the only places within the constitution that you actually have the word regulation in there. And then I'll be right. Right. The framers didn't say a horde of vigilantes armed on the streets is is is appropriate in order to guard against, you know, the tyranny in this country. That's not what it says. And then if we look at the words, particularly of the ruling and then Pope

Ack, I want to move on to some perhaps legal lessons that we could glean here of what's next. Here's some language that's actually written by a federal district court judge. Like the Swiss Army knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Firearms deemed necessary, deemed as assault weapons are fairly ordinary, popular, modern rifles. Also in the ruling, the judge criticized the media, writing, quote, One is to be forgiven if one is persuaded by news media and others that the nation is awash with murderous AR-15 assault rifles. The facts, however, do not support this hyperbole and facts matter.

But according to 2019 FBI data, the handgun that was the most commonly used in Popeyes, you said this in murders accounted for 6368 victims in 2019 alone. We see these school shootings every single day. You know, it's like when we talk about COVID, the way these GQP members talk about death is as, it's not really all that bad. You know, like death is the worst thing possible. And when we look at 7,000 victims of AR-15s of handguns, that's pretty bad statistics. I don't know what would persuade this judge, but I know that I wake up every single day in this country to another mass shooting. Here's my problem, and I totally agree with you. Here's my problem also with Benitez. He's full of hot air. Let me break it down as far as I, and for our listeners, because I want to

manage expectations. Under DC versus Heller and the current constitution of the United States Supreme Court, we are not going to have handguns banned in America. It is going to always be for the foreseeable future a second amendment right for a person to have a handgun for self-defense or other purposes. Period and stop. We can argue about it until the cows come home. That's going to be the second amendment for as long as you and I are both alive. But here's the problem. Benitez goes on to say, an AR-15, as you just quoted, is the perfect weapon for home protection. I have never, in my adult life, heard, if even an anecdote of a situation where someone has protected their home,

their castle, as we like to call it, in the legal profession, with an AR-15, when they were attacked or robbed or otherwise. I've heard plenty of handguns. I've heard somebody pull the handgun out of their nightstand. I've heard in a church, you know, a church security officer or in a bank, somebody pulled out their handgun and maybe was able to return fire. I have never, and I defy Judge Benitez to give me one example where somebody under attack in his own home went to his gun cabin and pulled out

an AR-15 with his family and shot dead the perpetrator. You know why I've never heard of it? Because it's never happened. And he's using that as a justification to say that the assault weapon ban in California, which he loves to say predates the 2008 DC versus Heller Supreme Court decision and therefore must be wrong. But he's completely wrong.

So if you let Ben, let's go to where this case goes next because I know that's what you want our listeners to know. So now it gets appealed. Basically what the judge issued was what's called a permanent injunction and injunction. An injunction means a judicial order stopping something from taking place. And this is stopping the insult ban in California from being enforced. So now this gets appealed to the ninth circuit. The way our federal court system is structured, you have district courts, you have circuit courts as the next level of appeals.

They review what the district court does. And then you have circuit courts as the next level of appeals, they review what the district court does, and then you have the Supreme Court. So this goes in front of a ninth circuit. Remember earlier, I talked about that other case, the case involving a summary judgment on large capacity magazines. That goes in front of a panel that's often randomly selected of ninth circuit judges. These are appeal judges that have three members who sit on the panel. Don't wanna over-complicated or confuse it,

but sometimes there are arrangements where judges who are from different circuits or even sometimes district court judges for very limited purposes can sit on these 9th Circuit or these Circuit panels. It's kind of a way for judges to get different experience and to travel and they kind of have their own little world there with where they do those things. But anyway, you go in front of that panel and by the way, you could have three judges who look, you know, who look at the law

the same way Roger Benitez looks at the law. You can get a panel of three judges who look at the world. The opposite way Roger Benitez looks at it. And then you can have some mix of it. And so ultimately that randomness sometimes determines what the ruling is going to be. And I know you listening that kind of sounds well, it's kind of a crazy process, and it kind of is when you really break it down and you talk about it like that. And then depending on that ruling, you can do exactly what happened in the 2019 Benitez summary judgment case. And all summary judgment means is that Benitez is basically saying that one side won and it doesn't

even need to go in front of a jury. Right. As a matter of law. Correct. And there, he's basically saying, I'm saying that the California ban on large capacity magazines as a matter of law is unlawful. A jury doesn't even need to hear it. And that's what's basically being appealed. But then you can do

after you have the panel, the three-person panel, then it goes to an unbong hearing. But it's a petition that's made to the entire ninth circuit. And this is any circuit. The ninth circuit just happens to be the circuit that encompasses California and other states on the west coast. They have to agree to hear it and bunk, which is very rare for a circuit to hear something in bunk. How many do you have? What do you have? 18, 20, what do you have? What would be the on bunk? It's a large panel around that size out here. And ultimately, they rule And ultimately, they rule on it. And then depending on their ruling, it can get appealed to the Supreme Court.

That's our process. Yeah. Yeah, I think this is clearly it's on a fast track. It's going to be a year and a half or so before it's ready to go. And it's primed for a Supreme Court review, which, of course, they have to decide to take it at the Supreme Court level. We're going to talk about another case coming up today. We're going to talk about a case of affirmative action that you and I are pretty confident

that at the June 10th Supreme Court conference, they're going to decide to pull up for the next term, which starts in October, to recall or to decide to pull up for the next term, which starts in October to recall or to remind our listeners and followers. We're in Supreme Court season. It only runs for a period of time and the summer ends it. So we're coming up where we're not going to be hearing any more Supreme Court decisions. You and I probably have one or two more episodes where we will report on Supreme Court developments and then we're going to be a summer I ate us for the Supreme Court

until the fall. Then we'll pick up again with whatever the cases are decided for the fall. So it's not going to be this fall for this assault weapons ban to be decided by a Supreme Court. It's probably going to be the fall of the following year that you and I will talk about this. And I'm into it. Let's jump right into that, you know into that one, which is the Supreme Court considering

taking up a major challenge to affirmative action. The Supreme Court is going to consider in their private meetings that they hold to determine if it is a case that they will eventually hear. They're going to be considering taking up the challenge to Harvard's use of racial criteria in its admissions

process, which could tee up a landmark showdown over affirmative action in higher education. This particular case arose from a conservative back to group. Again, I hate the labels conservative. Because I think at this point, people used to call themselves conservative at this point, I think I'm more conservative in AR because I want to conserve our democracy. And I don't believe in insurrections. But a group called the students for fair admissions. Basically, these are contrived groups that are created by people. There are no students involved in that organization.

It's an organization that's created purely to generate litigation, to challenge laws, to get in front of the Supreme Court, and you have this whole cycle of groups that help fund the process by which the confirmation process, they fund literally ads that are pro, the certain judges, these are the same groups, though, that back these litigations that make their way from a made-up student group or a contrived student group. And these groups take it, file the cases in

the district court like we just discussed, then file it in the circuit courts, which you now know what that process is like, whether there's end-bong hearings or not, is a question that's left up to that circuit if they hear it, but regardless, then the rulings are appealed to the Supreme Court to get the judges who these groups help select and put in their positions to hear their cases. You know, you got to give the GQP credit, though, and this really doesn't exist on the left. They are really good at rigging the system. And they had a plan 30 years ago and 40 years ago, even. How could they install their judges to basically overturn all of the laws?

They were playing a long-term game. And when we look at these types of cases, this was part of the plan that they were playing a long-term game, and when we look at these types of cases, this was part of the plan that they had in the 80s. The Federalist Society, which was created in the 80s and 90s, when I was actually in law school in the 90s, the Federalist Society came in. There is no democratic equivalent of the Federalist Society. We have the ACLU, we have public interest groups and public justice groups,

but we don't have the Federalist Society, which is a cradle to grave. I know you hate using the word conservative, Republican, right wing, Republican, from law student to judge, to justice, feeder system. They get them when they're young, they get them when they're in college,

they push them through law school, they get them onto the bench as justices and judges, and then they get them elevated to the Supreme Court, and you're right, they played a 30 and 40 year long game, and then they had people like Mitch McConnell, who were there to reap the benefits of all this work, all this preparatory work, but it's but it's what you're teaching what might as touch I hopefully is alerting your listeners and followers to and is teaching them is that democracy

is a long game. It's not a short game. It's not about what you and I are doing and your brothers are doing in 2021. It's about what we're doing now that's going to pay dividends and redevidence by focus and concentration from now for the next five, 10, 15, and 30 year cycle. And if we do- Here's the thing, Michael, you're so right because they were on the other side. Wait, it's the thing, Michael, you're so right, because they were on the other side. And this is why it's an important moment. They were sneaky for the last 30, 40 years. You know, they hit it, they hit it.

And they did a good job hiding it and just methodically and quietly doing this. Then you have Trump come in and he's just like, fuck it, here's who I am,. Fucking hate democracy. You hate democracy. Join my team at the end of the day. Insurrection. We're for it. Fuck you, Democrats. That's what they are. So you see it now. Like the trick is out. And we see it. And which side are you on? So on the case that we're talking about, and just to make a fighter point here, because it's even more nefarious as far as I'm concerned, there is no students for fair admissions,

trying to get Asian Americans to be better represented at Harvard University, which is what the thin vene near of their of their case says. It's a guy named Edward Blum, the LUM, who is a self-proclaimed neocon conservative. Con is the real word there. He is not a lawyer, but I, but I, again, I want to manage expectations. This guy, whatever organization that he gets behind, or he forms, whether it's the students for fair administration or whatever it is or some other one, he is batting 750. He has brought six cases to the US Supreme Court, challenging things that are the bedrock of democracy and democratic politics and policies, including affirmative action. And he is one, four out of six.

So we should not take lightly his ability to get to a Supreme Court that is receptive to conservative right wing values and have them overturned 30, 40, 50 years of principle. The affirmative action case law, including 2003's Grutter versus Bollinger, which allows any university to use as part of their selection process diversity to to have a diverse student body because that that is a good thing in higher education

Not a bad thing everybody being various shades of light is not a great thing when you go to university. Having people from different socioeconomic and racial and gender backgrounds and sexual backgrounds is a good thing. That's what the Harvards of the world are doing when they select their classes. But you're going to have a Supreme Court, which we know, which way it leans right now, six to three, that he thinks, blumb things, he's going to be able to get affirmative action overturned, and universities are not going to be able to balance their student body with blacks, Asian Americans, Latino, etc. We're going to be left with white and Asian Americans at Ivy League schools and then Ivy League judges. And this is the

biofeedback ecosystem, Ben, that you just described, that would be the wet dream of the right wing of federalists. And you know, look, we make lots of predictions here. I think by now our listeners of Midas Touch, legal AF, know our predictions are accurate and sometimes our predictions. I don't want to be accurate, but you know when I predict good things, last podcast, I predicted Trump is going to be indicted in 2021. I stand by that. I give myself a two-month cushion, you know, with holidays. So if it's February or March of 2022, I'll buy myself a cushion, but I have no doubt, I have

no doubt based on the current posture, that that is absolutely going to take place, but also based on the current composition of the Supreme Court, based on the attention, based on the fact that just the fact that we're talking about this tells me that this was leaked. There's an agenda behind it. I have absolutely no doubt this will be taken up. I have absolutely no doubt that the case that you just mentioned, the Bollinger case is going to be overturned. And I have no doubt that having any analysis of diversity and admissions process will be completely bad. Period. That's what's going to happen. I know you're saying, why you're so cynical. Nope, nope, nope. I'm just telling you right now,

mark the tape that is going to happen. And that is a kind of footstep, though, into larger, unfortunate things that could happen if we don't guard our democracy. If you sat out that last election, not this past one with Biden, I know you voted for Biden, but the one before that, because Hillary Clinton wasn't your perfect candidate. Here it is, folks. Here's what happened, whether it's you or your friend, we talked about this before. Here's what happened, but let's be clear. Some really bad things are going to happen, But let's be clear. Some really bad things are going to happen.

But fortunately, the federal courts, at the very least, were protectors of our democracy. I was very nervous when the Trump cases, the bullshit Trump cases, alleging bullshit election fraud that never took place. I was worried. I saw some of these judges. We are very, very fortunate though.

That I think the judges were caught off guard. Now the Republican GQPs, they're coalescing around ways to legitimize anti-democracy with their voter suppression bills to allow these judges to root their rulings in legislation that's being passed by these GQP legislatures and are creating things that are very problematic. Let's pivot for a second, Pope, to real crazy shit. The ex-national security advisor of the United States, Michael Flynn, I refuse to call this man a general because he's an absolutely a disgrace to our nation, but he was

an ex-national security advisor. He was pardoned in the pardon spree by Trump after Trump lost the election. He was asked a question at a GQP convention if a coup like the one in Myanmar should happen in the US. And his response was basically yes, it should happen. I mean, I support it. I support a coup against the current government, which is consistent with a lot of language coming out with the former guy talking about being reinstated in August. We need to take this seriously, folks. This is treason. And these are people who are openly talking about a coup.

It is not funny. And the fact that there is a political party, the GQP, who coalesces around this, who supports this behavior, who refuses to investigate the insurrection, who doesn't condemn this. What we have to protect and what we still can protect. I feel bad after our last segment is having America be overturned by complete fascists and public. The Flynn who let's downsize him. He was a lieutenant general at best. And he's a crack pot, as we've seen. Unfortunately, he has the heat be here. He literally appeared at a QAnon convention. The fact that they're so mainstream that they can have a convention. And they're not just, you know, some crazy people on the dark web should be an alert.

They charge real money for, it's like $1,000 to a 10. By tickets, I mean, there were waiters and servers serving them cocktails. I mean, they should be in the sewers of America operating on the darkest of dark web. They shouldn't be at a convention center or whatever in Texas with Flynn addressing them. And his recent attempt, I don't know if you saw this, Ben, a couple of days ago, he realized he probably had violated what we, you and I referred to as the Smith Act, which was passed in 1940 during the height of World War II against people who were advocating for the violent overthrow of America, which is, as our followers, suspect a crime, a federal crime that puts you in jail

for a long, long time. That's what he did. He said, oh no, the media has mangled my words again. I didn't say that a coup, like what happened in Myanmar, should happen here. I said that it shouldn't happen here. There is no one that has listened to that video. And I commend people that follow Midas Touch and Lee Clay F to go and find the video.

It's online. We'll post it again. I'm sure Midas Touch will post it again. And listen carefully to his words. It makes his new walk back of this makes zero sense. He realized he was in deep crap that he had just advocated for the violent overthrow of the government. And now he's got two problems, well major two problems. One, as a retired member of the military,

he is still subject to the code of military justice. He also draws a pension from the federal government as being a former military person. And his pardon didn't really affect that. What the government could do now, led by Biden, is they could recall him to service. They could court martial him using the courts of military justice, which we've never talked about. I don't think on legal AAPA, but we'll do a quick primer here. The military and all of its branches are subject not to the regular federal criminal law and civil law that regular lay citizens, civilians

are subject to. They have their own court system. They have their own code of justice. They have their own judges and they have their own lawyers. And the lawyers are with the judge advocate general's office for those people that watch TV. There was a show called Jag J.A.G. And that showed the life of a lawyer who works with the military and works on behalf of a person or being convicted of a crime or being defended for that and judges are in that process as well.

What is the purpose of court marshalling him because he loses pension? That's one. Secondly, on the non-military justice side, on the regular civilian justice side, the guy committed treason, sedition, and a violation of the Smith Act and should go to jail. And I'm hoping that this Department of Justice is going to prosecute him. Look, when an average citizen, crazy, but average, makes a threat against the president or the vice president and says, I want to blank the president. And it's picked up by one of our surveillance operations

and the secret service and the FBI show up at his house, that person is likely to go to jail for having threatened the president or the vice president or some other elected officials' life. And unfortunately, it happens more frequently that people get the credit for. It happens at least half a dozen times a year. It just happened recently with President Biden. Why is this any different when Michael Flynn,

who was only pardoned for his bad past acts, he doesn't have a right to say that he's not a president. happened recently with President Biden. Why is this any different when Michael Flynn, who was only pardoned for his bad past acts? He doesn't have a free monopoly, get out of jail free card forever, that anything he does in the future that's criminal, he's not going to be prosecuted for, he is. So it's early, I know our fans and our followers get a little frustrated without the wheels of this move, but he should be prosecuted for what just happened. Scales of justice do move slow as well. If you think about a scale, like unless you put like a brick on it, the scales do move, the scales do move slow.

And so we'll keep everybody apprised of what's going on with Flynn. And it just again, every time you see his outrageous and egregious behavior, the fact that for a certain period of time, he was the head of all of our national security apparatus. And that he's literally wants to destroy our country. and that he's literally wants to destroy our country. It is something that is just completely terrifying that that even existed, but thankfully, we are past that process, but again, no complacency whatsoever.

I'll tell you, someone who's not being complacent right now, it's representative Eric Swalwell, democratic representative out here in California, former prosecutor, someone we had on the Midas touch podcast. We should definitely get as a guest on legal IF, because his legal perspectives are very interesting. Anyway, representative Eric Swalwell is the plaintiff in a lawsuit against enablers of the insurrection, including Donald Trump,

including Donald Trump, Jr., others who spoke at the insurrection, one of those people being representative Mo Brooks. Well, when you file a lawsuit, one of the documents that it goes with the lawsuit is something called a summons. And these summons alert the person who's being sued in the lawsuit that they need to show up. And they need to respond in a specific time. The response states are different depending whether you're in federal court or state court. That response time could be as short as 21 days, 30 days, sometimes for government officials. It could be 60 days. It depends on the statute and the specific jurisdiction.

But you have to respond. But when you file the lawsuit, you have to actually serve the person. So you often those listening probably have seen the TV shows or movies where a process server goes, you've been served and they hand them the documents. That's sometimes how it works. But oftentimes in litigation with sophisticated parties that are represented by lawyers, parties that are represented by lawyers. It's understood that you're not going to get a case dismissed because you were good at dodging a process server. You just look stupid in front of the federal judge

or the state judge that you are just trying to dodge the process server. People realize that you exist and that you're just trying to dodge the process server. Like people realize that you exist and that you're going to be sued eventually. But here, yeah. Well, one thing, I, when I've had in civil cases, when I've had lawyers on the other side who haven't agreed to accept service of process for their clients and make me or you go through the hoops of having to get them served. Why they want to do that? I have no idea. It's an embarrassing situation.

You can serve people when they're having dinner with their friends and family because of that party. It's because why would you make you and me do that? So I use an example because I love pop culture references. I used to be a big NYPD blue fan. And I said, I don't get this. You want me to get like SipaWitz and put him in a van with a box of donuts and a cart of cigarettes and have him sit on your on your client's house until he comes out and then serve him. I don't why do you want me to do that?

And usually they go, you're right, I'll accept service. But look, we just did it. You and I did it in the Marjorie Taylor Green case. Your office handled service of process of an elected official and the House of Representatives and you were able to effectuate service. We did and we had our process servers just go into the capital building. I think their Marjorie Taylor green had reached out to the general council for all of the House of Representatives, because we got a call from the general counsel saying, you can give it to us and we'll affect you a service on that. But you should tell Swalwell that you know how to get somebody served in the capital and

give them some tips. I mean, just going there as crazy as a barjorie Taylor green, you know, is I think she still realized I don't want to have somebody coming up to me and giving, you know, and waiting outside of my house. But this is exactly what Mo Brooks is doing. But at the end of the day, Mo Brooks, if you think you're innocent, if you think that you're not liable, go ahead and file your motion to dismiss and you're going to, you're going to have to do that eventually.

So it just makes no sense why total total care. And then the judge and you're pissing the judge off because do you think the judge here which is a meat meta? Do you think judge meta really wants to deal with an adult, a house of representatives member who is dojging service of process. That's the way you want to, if you're the defense lawyer, that's the way you want to start out your defense of this individual. No, you know, and look, you know, that just, there's different types of obstruction, right? There's actual criminal obstruction, which we'll talk about in a bit.

You know, and then there's just being a jerk in a litigation and just being, I guess, the informal colloquial term of obstructing and just making things more difficult than they need to be. And, you know, I find when I'm in front of a federal judge, particularly, but also a state court judge, if you're experienced counsel and you're representing clients who are professionals who feel they're innocent, there's no need to engage in tricks and stupid juvenile behavior. That's often indissia to people who have been in this industry of guilt, of trying to hide and conceal things. And ultimately, it's an interesting practice that you and I have.

Oftentimes, the higher level, the cases that you get, it's like a good boxer. When two good boxers go into the ring versus two fighters who are just like street fighters, like professional boxers, they're not throwing punches wildly and looking crazy, right? They're jabbing, they're looking like, let me find the weakness. And they understand there are 12 rounds or 10 rounds depending on the match. You know, when they have respect for their opponent, and they go by usual norms and rules. But when you see a street fighter, people at a bar fight there looking crazy.

And it's the same kind of thing in law. And at a high level, good lawyers don't want to make each other's lives more difficult than they need to be. You understand the process, you understand the facts, you understand ultimately where this is all going to end and you treat each other with respect. But sometimes in our profession, even on big cases, we'll get like crazy lawyers on the other side who just want to make everything difficult and it's like, listen, it's your weekend also. It's your Friday night also.

You have a family, I've got a family, so you want to do jerky things with me. I'm going to do jerky things with you. Are crazy out of each other's life, miss. Crazy out of control clients that lawyers can't even start to control. We've had you and I have had that too. We've had those experiences. I'm just... What's the most important thing that you can do to get a job?

Speaking of out of control, clients that lawyers can't control, I would think Donald Trump and Donald Trump Jr. fit that criteria. Sure. And one of the arguments, look, to Trump and Don Jr.'s credit, they've at least And one of the arguments, you know, look, to Trump and Don Jr.'s credit, they've at least accepted service of the lawsuit by Eric Swalwell, you know, they've made their arguments. And in the same case that

we're talking about, with Bob Brooks, and the argument made by Donald Trump is that he is completely immune as the president of the United States from any liability associated with his speech on January 6th. And his argument is my speech was in furtherance of my duties as a United States president, and therefore I can't be held responsible whatsoever. And there's an interesting line of case law regarding presidential immunity here. And Popak, what do you think about Donald Trump's claim here about he's totally immune?

Yeah, and let me just back up a bit because we dropped the needle a little bit deeper in the record than maybe our listeners would have liked. Just to remind them, Swalwell's lawsuit is, and there's a couple of other members of the House of Representatives that joined them because they were, they have standing to bring the suit

because they were the victims, if you will, one of the victims, if you will, of the January 6th insurrection, hiding under their desks within the Capitol, fearing for their lives. They brought a suit under the 1871 Federal Civil Rights Act, which is also known as the KKK Act, obviously, for obvious reasons, to support the 14th Amendment

of equal protection. So that's the basic charges. And it all has to do as you just said then, with Trump, Mo Brooks, Don Jr., Giuliani, and others that were in that park who incited the mob. Mo Brooks said, we're kicking ass and we're taking names, go out there and get them,

like you some sort of Newt Rockney in the football locker room, half time trying to gin up his players to go out and smash the other team. Trump, we know what Trump said, which was go go out and smash the other team. Trump, we know what Trump said, which was go get him and pointed to the Capitol. And I'll be there with you. And then he immediately walked in the opposite direction to the White House as they ran

to the Capitol to join up with all the other crazies that were there to break in and attack the Capitol, leading to five deaths. 450 arrests have resulted so far from that. And then these elected officials are trying to say, and the former president in particular, I'm immune. It was part of my job. And so the line of case has been that you're talking about, really, there's two polls. There's Nixon versus Fitzgerald involving President Nixon on one side, and then there's Jones versus Clinton, which is Paula Jones and Bill Clinton. On the Nixon

versus Fitzgerald case, that was a civil servant who claimed that he was fired by Nixon in retaliation for something that he did while Nixon was still president. And what the Supreme Court said way back in the 70s, in that case, is that most things that a president does while he is in office are immune from civil suit. You can't sue him for having done something and exercised his duties or exercised his conduct as the president of the United States, even if you disagree with what he did, even if he, in the case of Nixon, with Watergate taped his adversaries, wiretapped his adversaries, broken to the Democratic National Committee at Watergate Hotel, and all of that. You can't sue him for that. But they did say that if it goes to the outer perimeter of his duties and goes beyond that outer perimeter, whatever that outer perimeter is, he is not, that president does not enjoy absolute immunity.

They left it sort of dot, dot, dot for another day to decide what is the outer boundaries, the outer perimeter of the president's duties, to decide whether he'll be subjected to civil liability for things he did while in office. So then Jones versus Clinton tried to put a little bit of a line in the sand about what is the outer boundary. Because Clinton tried to argue under Nixon versus Fitzgerald that he can't be held liable for sexually harassing or making comments or the faming Paula Jones, whatever it was in that particular moment when he had all these issues that we now know about through the whitewater investigation or otherwise. And the Supreme Court said, no, Bill, you don't have immunity for that.

That is the outer boundaries. That's not official conduct. That is kind of unofficial extra curricular conduct that you are doing in the White House for which you do not enjoy absolute immunity. So we have those two extremes and what Trump is trying to say is, it doesn't matter what I was doing, what I was really doing, and this is his words, not mine, what I was really doing was I was just asking Mike Pence and the Republican members of Congress to not certify the election because I believe the big lie, which I was promoting. And that's just

the normal part of being president. I get to talk about certification of elections, and that's all within my absolute immunity to which the lawyers for swallwell and others are saying no f in way. That is inciting a riot by perpetrating and promulgating the big lie is so outside the outer boundaries of barimeters that even under Nixon versus Fitzgerald's precedent, you are civilly liable here under the KKK act for the five deaths and all the other bad things that happened on that day. What are you thinking that happened with that, Dan? You know, I think the, let me, let me answer the question by kind of not answering it, which is I think the problem is going to be regardless of what the district court rules.

As we just discussed, and now our listeners know all about the appeals process, undoubtedly whatever the ruling is going to be, it's going to be appeal to the circuit court, and it's going to be appealed to the Supreme Court and ultimately based on the current composition of the Supreme Court. I can tell you what the district court's going to do. I need to delve deeper into the specific judge, but I think that inciting an insurrection would be on the outer bounds and would be something that would subject somebody to a civil lawsuit. That's not in the president's job description, That's not in the president's job description, Ben. It's not in the president's job description

to incite an insurrection. But I do see how a current Supreme Court, based on its composition, could rule and accept the argument by the president that when I'm giving speeches and when I'm riling people up, that's a function of the president. I wasn't physically at the capital building doing the riot, which you could hold me responsible for. But if you were to hold a president for the, this is what the court would say, for unintended consequences of speech that it creates a difficult precedent

for other presidents. And by the way, I completely disagree with what I just said, but doesn't that sound exactly like something that Justice Thomas would say? Well, let me agree with you. But let me take it this way. Let me run something by you and see what your reaction is. Presidents, when they sit in office, are not only the leaders of the executive branch and

of constitutional powers under the U.S. Constitution, but they are also the head of their party, in this case, the US Constitution. But they are also the head of their party, in this case the Republican Party. And simultaneously with running the government, they also fundraise, conduct rallies, in this case of Trump every week, and do all sorts of things wearing the other hat of being the head in this case of that party and trying to run for re-election, whether it starts on the second day in office, which it did for Trump, or later in a term, which is normal for a president. Normally, you don't start running for office again.

The second day in office, Trump did. When Trump is at Rally's Ben, when he was in office, and he used taxpayer dollars to fly on Air Force One and spend $5 million or $10 million of taxpayer dollars to fly on Air Force One and spend $5 million or $10 million of taxpayer dollars to go do a rally in Wyoming or Texas or Ohio or wherever he was. Is he within his job description of the boundaries of the president at that moment? Anything he says enjoys absolute immunity, or is he just a creature of politics at that moment? And he does not enjoy qualified immunity for the things that happen in that

arena. What do you think? I think it gets into a deeper discussion of the Hatch Act, which was supposed to create a firewall between those two things. The president's executive powers and the president being a politician. But you have Donald Trump who held the presidential convention, the Republican convention and his speech at the White House. With the Rose House. Um, uh, we the road garden at the Rose Garden, which would be the most egregious, uh, conceivable violation of the hat jack, then

you have the entire Republican party that, uh, support was supportive of it. I mean, again, that's why they're the anti democracy party. That's um, Hitler Mussolini level propaganda bullshit right there. They always they all went. They all got COVID, if you remember, it was a big

super spreader event. It was the first time in, I don't even know modern history. I think it's the first time in American history that a sitting president conducted a political rally while in office on the grounds of the White House in the Rose Garden. It completely gave me the chills watching that because it was so akin to all that behavior of dictators. But to answer your question, Pope, I think that's the right argument. You know, you posed it as a question, but that would be outside of his scope. That's that's him as the fascist cheerleader.

That's him as the politician for which he should be held accountable. But let's follow it. And unfortunately, I do think the argument that I made is where this, to me, that would probably be five for, I think, Justice Roberts would side in favor of democracy on that one. It wouldn't be six three. I agree. But I still think that the votes are not there in the Supreme Court. And I agree with you on that count. I agree with you. And Roberts, the thing that our followers and listeners will have to watch is Roberts able, on occasion,

to drag Gorsuch over as well, to ensure that there is a 6-3 the other way on some of these key, fundamental, democratic, and a small, de-democratic principles. I'm hoping, yes, he's shown some of that in the past, not on every issue that's important to me or to you or to our listeners, but he has shown that if it's gonna be the Roberts Court

and not the Coney Barrett Court or the Gorsuch Court, he's going to have to do that and be a statesman and be the, if he wants this to be the Roberts Court and that be his legacy, he's going to have to step up and make those kind of decisions and be persuasive behind those closed doors of that chamber. Hope we often talk about the Supreme Court in very binary terms that there are a certain number of judges who are Republican appointees who vote a certain way and a certain number of judges who are Democratic, big D Democratic appointees who vote a certain way. But there are some unique examples that we should point out to our listeners, where that is not always the case. And one of them was this past week

in a case called Van Buren versus the United States, where the Supreme Court and interesting six three decision, where it involved an unusual lineup, the Court's three Trump appointees, all the newest justices joined with the courts three liberal justices to reject the justices interpretation of a particular statute that involves accessing cyber databases.

It's an interesting kind of case with that somewhat convoluted, but Polpa, can you break it down for us in some basic terms with this? Yeah, and I don't think just so we can signal this to our listeners and followers. I don't think we're ever going to see in the next term or in the immediate future a voting line up six to three in which it's Coney Barrett, Neil Gorsuch, Brett Kavanaugh, Sotemayar, Kagan and Breyer agreeing in a case. I mean it would have to be an esoteric issue of cybersecurity and computer crime in order to bring that strange group together in one voting block, which is what you alluded to. It's crazy, but I want to give a little bit

of a longer view for the listeners. There are situations where Republican presidents have chosen Supreme Court justices and those Supreme Court justices. Once they're on there with a lifetime appointment, they are, they stop being Republican appointments or appointees and they start being the appropriate jurists who have democracy and patriotism at their core that they should be.

So, you know, you and I know William Brennan for which there is a center named after him at NYU, the Brennan Center, was a Republican appointee. Brennan wrote some of the most, for you and me, liberal decisions that ever came out of the Supreme Court that go to some of our most fundamental rights. David Souter, who was appointed by Bush 1, who came off the New Hampshire Supreme Court,

they all thought, oh, he'll be great, he'll be a real conservative. He ended up siding with the liberal block. The problem with what you and I talked about earlier in the podcast is with the advent of the Federalist Society, it's almost going to be impossible for someone to get on there and flip their allegiance. They are being pressure tested and pressurized before they even get selected. They have to pass a Federalist Society litmus test. They have to genuinely reflect to the altar of all of these crazy conservatives, starting

with Ted Cruz all the way down the line. And so the chances of a Coney Barrett growing into her role and becoming more liberal, and I mean that in a positive sense, as time goes on, is almost nil. So here we see a unique situation that this group got together, but it doesn't mean the Coney Barrett is now going to side with Sota Mayora and anything else that's important to our listeners followers. It just means when it comes to the federal cybercrime, they were able to get together and rule in the majority, and therefore we have an, meaning prosecutors, federal prosecutors are not gonna be able to use

the federal cyber crime law, which is the 1986 computer fraud and abuse act to prosecute crime any longer. That was put on the books in 86, again, the back to pop culture. There was a movie with a very young Matthew Broderick was called War Games, where he accidentally cracked into a database and almost started an international nuclear war. And that scared the crap out of elected officials who I guess go to the movies and they decided, well we got to

do something about that and we got to and we have to do something about people who on author in an author out unauthorized way used computer databases against other people or access computer databases or computers and that should be a federal crime. Before that federal prosecutors used good old-fashioned mail and wire fraud against that's all they really had in their arsenal against people that committed computer fraud crime. I'm not talking about child pornography computer crime that that's different and that's covered by a whole different set of statutes. This is people who tap into databases that they shouldn't be

rooting around in and therefore have committed a crime. And what Coney Barrett writing for her first majority opinion said, joined by the other people we've mentioned, is that we don't want to criminalize any kind of database breach. If it's a real crime, use mail and wire fraud. We think this goes too far. It's going to criminalize the commonplace. If somebody accidentally accesses their Twitter account or social media account when they're at work and it violates a policy, that shouldn't be a federal crime. So we're going to take it off the books and they did, which means the Congress, if they care, the current Congress is going to have to rewrite the statute

in order to have it survive this overturned by the Supreme Court, right? With knowing that it was now found to be unconstitutional, the elements of it, they're going to have to either revise it and rewrite it and pass it again, which the Democrats can do because they're in control at least for another year and a half. Or, and in the meantime, the federal prosecutors who want to go after cybercrime are going to have to use what's already been on the books for 100 years, which is mail and wire fraud. It's interesting because I think it's the right result legally, but when you actually break down

the specific case, you're kind of like, well, in that particular case, you know, I get what was wrong here. So the Van Burenverse United States case involved a former police officer who was convicted by a jury of violating this law because what he did was searched a license plate database in exchange for a bribe as part of an FBI sting operation. And so there, as it was applied, he had access to the database because of his position, but he shouldn't have accessed it by taking bribes to give away people's license plates. So you have a law enforcement officer who abused their power

and it appears the law was appropriately applied to punish them there, but the problem is, and this is why a lot of whistleblower groups were warning that the CFA, this particular law, could invite retaliation against any whistleblower who had access to a database and used it appropriately. They do. They do. Wistselblower often download material from their employer or from wherever they work. And it's technically a violation of company policy. And in this case, and that's the fear, it's technically a violation of this federal cyber crime. And then how do you protect the whistleblower?

So a lot of the meekest briefs, which are friends of the court briefs, they're not actually parties to the case, but they have a position of stakeholders in this law, in this policy that you just talked about, submitted briefs in addition to the briefs of the parties that all of the Supreme Court read. And it was an interesting, you know, politics makes strange bedfellows. And a lot of these groups sort of got together

that you would think, wow, I can't believe they're agreeing on this, but it's as you laid out. Now, I don't want the listeners to think and the followers to think, wow, that guy's not, he didn't commit a crime. He probably committed some other crime. There's theft of honest services crime. There's mail fraud. There's wire fraud.

There's Rico. There's a bunch of other things over the course of legal AF university. You would have the occasion to talk about. It's just not going to be, at least for the moment, until it's rewritten. It's not going to be this cyber crime that's been on the book since 1986. No doubt. Let's go from that crime to another two more criminal investigations as we close out our legal AF podcast. But again, remember, we have the bonus interview for those who want to stay after and listen

to the great interview of Mr. Maudine and Joly. I recommend you listen to it, but let's talk about Matt Gaetz and Louis DeJoy, both under investigation. Matt Gaetz, we know about his investigation for a lot of things that you'll talk about Popak, involving sex with minors, but also obstruction is what I want to focus here. We know Gaetz, of course, is under investigation for having sex and transporting minors for the purpose of having sex with them across state lines. And in addition, though, is an investigation for obstruction. And in a lot of these cases, you've heard the expression that cover up sometime is worse than the crime here.

I don't think the cover up is worse than the crime. It's a heinous underlying crime he's accused of, but he can be convicted of trying to cover up the crime, which itself is a crime. And then Lewis DeJoy, the horrible postmaster general who literally tried to destroy the post office to have Donald Trump be installed as a dictator is under a criminal investigation for having his employees enforcing his employees and his private company to donate to Republican candidates and then reimbursing those employees with bonuses and other payments, essentially violating the limits on contributions, Pope Mark.

Yeah, so let's start with Gates. There's a federal statute. There's a state's equivalent of this, but we're talking federal prosecution. So we'll stay with federal statute. 18 United States Code Section 1503, what you and I colloquially call the obstruction 18 United States Code Section 1503, what you and I colloquially call

the obstruction of justice statute, says that someone cannot, through intimidation or influence, try to obstruct or impede or influence the two administration of justice. And that covers a whole multitude of sins. In this case, the allegation is that Gates got on the phone with a potential witness.

It was either the underage woman who he forced to have sex enraped, or it's a friend of hers who was in consultation with Greenberg, who's already a felon, who's already a convicted felon based on his plea deal, that he tried to influence her testimony in her participating in the investigation with the FBI and other agencies that are investigating this crime. You are not allowed, if you're the subject or target of the criminal investigation, you are not allowed to witness Tampa or to get on

the phone with somebody who may be providing information and cooperating with an investigation to try to scare them, influence them, impede or obstruct them in any way as the wheels of justice continue to turn against you. You have to sit on your hands and sit on the sidelines and put tape over your mouth and let the prosecutors and investigators do their job without undue influence. And if Gates is guilty of this, that alone, even if he didn't get this back to what you just said, it may not be the crime, it may be the cover-up.

Now look, you and I believe he based on what we've heard and what we've read, he committed the crime. But if he didn't commit the crime, but he's worried that his defense isn't gonna hold up or he wants to rig the system because he doesn't wanna go through the criminal justice system. And he wants to influence the outcome

by getting on the phone and trying to brow beat this poor person, this poor woman into, into not testifying against him. That right there is a crime in and of itself punishable by prison. And so look, there's many different ways, there's many different roads to prison for somebody like this. They can't help themselves. Somebody like Gates cannot help themselves. You and I have seen it in criminal defense work.

They think they're the smartest person in the room. They think that they have the master plan that they've hatched, that no one will ever figure out. And they're usually almost always too smart by half. And their plan is terrible. It's so easily facile and easily debunked. And then they panic, continuing to think, if I just keep talking, if I just keep talking enough, I'll get my way out of this. So let me get on the phone with the witness and I'll

talk her out of it. Wrong federal crime, 18 USC 150, obstruction of justice. That's where he's going. And every time you would, I pick up the newspaper or read online, he's done something else bone-headed that's going to land him in prison. Never I think about him, you know, I think about Jonah Ryan from Veepe. And he's like a he's like a QAnon embodiment of of John Orion like that. And and honestly, Trump, I think Trump put VEEP out of business because the level of corruption, you can't make a parody when you have a horrific parody in the office. And Pope, I tell us a bit about the joy. So so Lewis to joy, I'd ever thought there

there could be a postmaster general who could make the post office worse in terms of its delivery of service, but he found a way to do it. Now, again, and let me just want to pause right here. There are some people who you just don't ever want to even know about. And if you know about them, there's a big problem. And with the Trump administration,

there were so many officials that you just started learning about, because normally they're just supposed to sign their fucking name and that's supposed to be the end of their job, yet they just totally perverted what they're supposed to be doing. I've never really talked about postmaster generals before the Trump administration. I couldn't name one if you spotted me their first name and most of the letters of their

last name other than Detroit. I could not name for you any prior postmaster generals except maybe Benjamin Franklin, who I think, hopefully I'm not wrong and I'm not going to get corrected. Well, I think was the first United States Postmaster General. Other than Ben Franklin, I can't name another one. Or the head of the general services administration. Oh, yeah.

I remember. So tell us what's going on with the joy. So Lewis to Joy, before he became, you know, basically just bought his way into a political appointment as postmaster general. And just to clear up any misconceptions, it's basically sort of like a lifetime appointment, at least for a term. And even if there's a change in the presidency under civil service law, Biden can't get rid of them. He can lean on them.

He can do all sorts of things to try to convince him that it's time to go. And Biden has done that successfully with some other commissions and committees to get rid of all these last-minute midnight appointments by Trump of all his Republican buddies to the National Endowment for the Arts and the Kennedy Center. All this late night, look it up if you're interested. Literally, in the closing and waning days of the Trump administration, he started packing all of these civil organizations with his accolites

and his synchophants, and Lewis DeJoy being one of them. Lewis DeJoy used to run a business called, I don't even know what it does. It sounds like a made up thing from Warner Brothers or from a movie. New breed logistics. It just sounds nefarious, whatever it was. But whatever it was, it also contributed, or its employees contributed millions of dollars, at least a couple of million dollars over a period of time, to Republican candidates

of the choice choosing. So let's just break down campaign finance law for our listeners in the couple of waiting minutes of our podcast, our podcast. Employees are allowed to donate money. Corporations are not allowed to donate directly to candidates. We talked a lot about case law and citizens united, but that does not allow a corporation to make a direct payment to an elected officials campaign. It allows the corporation to donate to a political action committee or donate in other ways,

but not directly. It can't be A to B. An individual, like an employee of the company, can, and often does, make contributions. Sometimes, like when I worked for a company, I made contributions, I had to disclose them, but I made contributions. My boss didn't tell me who to contribute to. I told him who I contributed to in disclosure, but I'm allowed to make direct contributions as an individual to a political candidate. Here's the murky thing, and here's what the joy is being investigated for as a crime.

There's three potential crimes that is committed under federal criminal election law. What is called masking? The other one's called funneling. The other one's called coercion. They're all about the same thing. Masking means you are forcing your employees to donate money to candidates and campaigns of your choice as the owner of the company. They're using their money, at least on the surface, to make the contribution, their checkbook is being used, but then you're giving them bonuses or other

compensation behind the scenes to reimburse them for the contribution. So you are masking the fact that the company is really making the contribution by doing it through the straw man of the employee. Funnalling is the same thing. You're funneling corporate cash through the employee to end up in the coffers of the political party or the political candidate of your choice and coercion is you're forcing the employee to do that. You're not just saying to be clear, a company can say, I support Donald Trump. Our company supports Donald Trump. Donald Trump is good for our industry and our company. They can say that and they can even go further and say, I, the chairman of my company, would like you fill in the blank, you know, uh, staff

person, rank person, CEO, whatever, to donate to this candidate. But then you have the right to say, no, I don't want to do that. And you can't be retaliated against. So coercion is threats that if you don't participate in this scheme, where I'm gonna give you my money in a bonus, you're gonna use it to pay the candidate so that I can avoid and circumvent federal election law. You know, that's a crime, and that's what the joy is being investigated over.

The main problem is to pick up with lessons from prior LAF law school additions is that there's a statute of limitations. And the statute of limitations is five years. And some, at least some of what happened here when he was at New Breed logistics was six years ago. So some of what he did while it was a crime, it may be time-barred for the prosecutors who are investigating to bring the crime.

If it isn't, they got a hurry. Because again, unless they get a tolling agreement, It may be time-barred for the prosecutors who are investigating to bring the crime. If it isn't, they got a hurry because, again, unless they get a tolling agreement, which we talked about last week, to stop the clock with the defense, they're going to have to file the charges relatively quickly, either by information or indictment, and then go from there. This is bad stuff. It could have him lose his job, but the prosecutor's are going to have to get this case together quickly under the clock that's ticking with statute limitations. One of the other implications to outside of criminal impact could also be administrative impact. And if indeed he's engaged in conduct of moral moral turpitude or criminal activity, perhaps even if it's time-barred, it could justify a four-caused

termination, which is one of the ways to terminate a civil servant. So we will look out for that. But I think we've said it all on this incredible Sunday edition, our standard time of legal AF. Popok, thank you. As always for your incredible legal analysis. We want to thank all of our listeners for tuning in to Midas Touch, legal AF podcast. And we're going to now bring in a very special bonus edition with the brothers who have all interviewed Matthew Modine and Jolie Fisher who are running for SAG AFTER president and secretary treasurer. And so we hope you'll still listen to that interview, learn a lot

about unions and learn a lot about SAG AFTER and what they're doing at the screen actors, guild members, hope, off, thanks for joining. Oh, it's it's my pleasure. One last shout out. We have one of our Midas mighty who is having his first jury trial Apparently on Monday and he wrote he tweeted about legal a after he listens to you and I for encouragement to get sort of geeked up and excited and to get sort of geeked up and Excited and confident about his first jury trial and I told him in a tweet back You always remember your first and that the fact that you and I been give him confidence to go and kick some backside

On Monday and court brings great joy to both you and I Absolutely and good luck and thank you for listening to this week's legal A. We are joined by Matthew Modine, who is running for President of SAG, APTRA, as the leader of membership first, the Union's opposition party, and Jolie Fisher, a former national board member, who is running for Secretary Treasurer as his running mate. Jolie and Matthew, welcome to the Midas Touch podcast. Thank you so much. I should also mention your incredible backgrounds as well as entertainers. Matthew is an actor, filmmaker, activist known for his roles and full metal jacket. One of my favorite

movies growing up, Dark Knight Rises. one of my favorite movies growing up as well. And plays Dr. Martin Brenner on Stranger Things and Jolly Fisher is an actor and activist who rose to fame with her role on the ABC sitcom Ellen. A very accomplished people. And you have the time to run for office. Matthew, on another note here, I don't even know if you know this, but we've actually been hanging out this whole pandemic. So, and you mean?

You mean me? And he given Sunday and Dark Knight Rises has been my go to every night after I finish the crazy news cycle to decompress. So, it's not really a question. I just wanted to say thank you for hanging out with me. Thank you. Each night, it's a thank you.

I really give a shout. Any give his Sunday is a crazy movie, isn't it? It's each night. It's a thank you. I really give you any any given Sundays a crazy movie is wild one. It's a wild one. Wow. And Jolly, I love your Twitter presence. I love your stance that you take on the political landscape out large. And I think there's someone very specific who you talk about frequently. And I think it's important to address and that's Marjorie Taylor green.

It's how dangerous, you know, she is becoming here. Can you just give us your thoughts on Marjorie Taylor Greene. It's just how dangerous she is becoming here. Can you just give us your thoughts on Marjorie Taylor Greene and what you think she means to the modern day Republican party? I mean, I think you'd have to censor me a little bit if I actually started something that I didn't feel. I didn't feel their podcast.

We could do it, say nothing. I'm sorry, I forgot where the fuck I was. We don't wanna get you in trouble with the guild now, but... No, no, no. Those ladies are outrageous. I don't know how that happened, bobert and green. Like, what, like, where did they cut? How does that happen? I mean, I know how it happened.

It is dangerous. And I think we need to be conscious of where that party's going. They're kooky and crazy and all that, but like you said, we need to watch out for them. They're mixing it up. They are coming together. They're cookie and crazy and all that, but like you said, we need to watch out for them. They're mixing it up. They are coming together. They're coalescing. There was an insurrection on the Capitol.

We're living in such dark times, but it's always been under the surface, always, right? And the last president just scratched it and cracked it, opened it and let them them all erupt out into the world what he represented and how everybody allowed oh he's just he does things the way he does them. Well we don't, we as Americans, we don't do things like that. And I think it just it brought to the surface what's always been under there. And it's ugly and it's dangerous. And what do we do? Well you know I know what Batman would do. in Matthew Modine thinks being of the Dark Knight

rises. There's actually a lot of parallels. It would be like, you know, the Joker or a kind of Batman evil movie character taking over and truly opening up and unleashing this hidden craziness that exists like a virus, you know, like the actual pandemic, deeply lurking in our society was deep-seated mental illness, deep woe, QAnon conspiracy, and you know, like the evil village, Trump ripped the scab open, and the crazies have come flooded out from the basements onto the street,

and the parallels between the movies you're in, and this are staggering. That's why Jeff Bezos just spent what almost $15 billion by the studio. He and others understand the power of this entertainment industry. It's power to influence, it's power to influence, it's power to corrupt, it's power to alter the way that people think about things.

I studied acting in New York City with Stella Adler, who was part of the group theater, and the theater that she grew up with was all political theater. That was the theater was a place to tell stories that reflected life and the political landscape of those people that were living them and those times. She said to me that if you, like in this podcast, come into people's homes, if you're broadcast onto a television screen, if you stand on a stage,

or if you're on a motion picture screen and people are watching you bigger than life, that the things that you do and the things that you say will have an impact upon their lives. And we saw during the Second World War how film was used as a tool of propaganda from the Lenny Riff and Stahl movies, to the war bond movies, to get people to purchase bonds,

that the motion picture industry was involved to get people to go and go fight in the war and buy bonds and be heroic. It is a powerful tool of influence. Tell our listeners who may not know what SAG-AFTRA is, what is SAG-AFTRA, and why is this election important? Well, first of all, I want to say that I think we were just sitting around one day and

said, we want to be in charge, absolutely not. I said no, whenever. It started. We lived through this extraordinary time, all of us together. And we huddled together and we looked at each other across these screens. And I think that was, I started learning.

I started learning about SAG, Aftra, more than I already did. And how our union represents actors, not just actors, but stunt performers, background performers, recording artists, not just actors, but stunt performers, background performers, recording artists, broadcasters, dancers, puppeteers, I mean, the list goes on. We have a very wide range of people

that we serve at the union, or that the union serves us, right? So the reason why I feel like I wanna be in leadership is I feel like the studios and our employers participate and profit at such a huge, huge level. And we have started to negotiate contracts on our behalf that have gotten lesser and lesser. They're showing us what we as actors and all the rest of that group that I told you about what we're worth by going into a negotiation and chipping away

at Matthew and our part of legacy sag, which was before we merged with Astra and we were we used to be so proud of what our union meant to us and what it meant to have a sad card and it meant healthcare, which is the biggest debacle that happened in this past year is our health plan imploded in a major way due to trustees that didn't tell us what was happening to our healthcare plan. We're going through a lot of growing pains in the merge of these two unions, but we are

a big family. And Matthew and I saw a place that was being neglected, you know, where our leadership is not protecting us and not going into these negotiations with us at the forefront. We hear these acronyms, SAG, AFG After, you mentioned the merger of two great unions. It's the merger of SAG, the screen actors guild, and AFTRA, the American Federation of Television and radio artists, and SAG After represents 160,000 film, television, actors, journalists, radio personalities, you name it. Explain to me why

SAG after just that it's most basic level is needed in the entertainment industry. You know, there's no way to talk about this in simple terms without applying some sense of philosophy to why do we have unions. If we go back in time to the founding of the Screen Actors Guilder, any guild across the United States, whether it's the international auto workers or our sister unions, the writers guild of America, the directors guild of America, there was a time for us actors, performers, when the studios controlled everything, and actors were hired on contracts, and we were essentially traded like baseball cards amongst the studios. Mary Pickford and Douglas Fairbanks and Charlie Chaplin, they saw how powerful they were as

artists and weren't being really financially rewarded for the work that they did. So they decided to create their own studio called United Artists. And from that firmament of creating and taking power into your own grasp, there was a group of people who decided to create a guild to bring artists together, to be able to give protections, and be able to create a health fund, and a pension fund, and be able to create safety on film and a pension fund and be able to create safety on film sets so that we could look out for one another and empower us.

And over time, we started to negotiate for participation in the films, you know, to receive residuals so that we would also be rewarded rather than just the employers being the beneficiaries of the work that we do. Now, you mentioned there's 160,000 members in the Screen Actors Guilds, which is extraordinary. It's one of the largest entertainment unions in the world, but we have a tremendous amount of unemployment, and the average actor makes nothing. Those lucky few actors make enough money to be able to afford to go have another job so that they have two jobs to be able to pay the rent and buy groceries and maybe have raise a family. So what is the purpose of a guild? It's to create a safe home for performers where they can, if they're lucky, be able to contribute to a health plan, to contribute to a pension plan, and have safe working environments

for them to work at. That's the goal of the union, and it just is the goal with other unions. I think from the outside looking in, like this is inside baseball a bit, right? So, but from the outside looking in, what I would want people to know is it's not like actors whining about not making enough money. But it's also that we should have protocols in place that are written into our contracts regarding nudity. I say nobody wants to see me take my clothes off on screen anymore, but I want to protect young actresses and actors coming into the business where you're put on a set on a show like Westworld where they're like, okay, everybody's stripped down.

And it's like, whoa, I didn't know. Do I get a robe? Do I, you know, are you gonna double my body? Or you, you know, we have a big problem with sexual harassment and shenanigans going on on sets and they failed to put protocols in place that were it contractually obligated for fear that maybe there's retaliation from producers

or they be blacklisted in some way. And that really would have cost them nothing. And protection for stunt performers and dancers who are being corralled in parking lots and not being given water in some cases or being asked to rehearse something ahead of time on camera and then come in and perform it on the wrong kind of surface. I mean, that's very dangerous. A stunt person's career is not as long as everybody else is. You know, there are dangers that we need contractual obligation that are written in. Streaming services have obviously revolutionized

the landscape. You know, you used to, you had TV shows that have 10, 15 seasons. If it's a huge hit with multiple episodes, and now you have limited series. How is your team, your electoral slate, responding to streaming services and representing your union in these difficult and tough negotiations with streamers, and I should also mention with the agencies, you know, oftentimes that have these existing relationships with streamers

while also representing writers at the same time. In this era where it's not new media, it's now media, it's not the future, it's happening right now. Streaming is completely taking over. I mean network television, they're not letting shows really run for a whole season but just grabbing them off and everybody has a streaming platform. Their profits are skyrocketing because of this. It's extraordinary the amount of money that they're making. And they're saying, oh, well, we don't really know residuals are going away. Well, what do you mean by that? That's crazy. Yeah, my wife actually does participations. That's what she does. She audits participations on behalf of actors, on behalf of producers, on behalf of creators. And one of the things that

she's noticed and that that industry is completely afraid of is the fact that with the move to streaming, participation in many ways are going away. And for those listening, participation are the residuals that Julie's talking about. So it's, you know, people, the creatives in a project have a share in the project. So when something sold to syndication, or if there are DVD sales or video on demand sales, the creatives would normally get a percentage of that. But now that it's all going to the streaming platforms, that's kind of gone away.

Now that everyone's just paying a simple flat fee for all the content that they get. So is there a way to solve this participation's issue? Is that something that we're just gonna have to get used to? That's a thing in the past. Like, how do we deal with that? Having spent several years with this administration, with this leader, with this departing NED, they lead the union from a position of fear.

They have never gone into the negotiation with a strike authorization. Now, just for your listeners that don't know what a strike authorization is, it doesn't mean that you want to strike authorization. Now, just for your listeners that don't know what a strike authorization is, it doesn't mean that you want to strike. It means that you are willing to strike if the people that you are negotiating with aren't going to negotiate in good faith. That's like going into a boxing ring with Mike Tyson, with your hands tied behind your back.

You're just not gonna have a chance in hell of winning. And the president of the union has said to the members, stop fighting for residuals. They are going away. For this administration in 2020, to be saying to the members, stop fighting for residuals. They're going away. The only way that they're going away is if we give them away. Sometimes an actor, that's all that they make in a year is residuals from guest spots on TV shows that rerun and rerun and we pray for some of those sometimes to get us through tough times. They used to count to qualify us for insurance and if they go away, people don't survive.

Moving on from the politics of the unions to the politics of America, what do you guys think of the role is of actors to to speak out about injustice and to be activists in the current time that we're in? Where in my opinion democracy is currently hanging in the balance. Where do you see actors role in this landscape? I think it's so interesting when people don't want to hear what we have to say so interesting when people don't want to hear what we have to say. You know, I was very vocal in the past couple of years about where I stood and if you check my Twitter, you can see that very plain and simple. I think it's the same thing as saying, well, oh, doctors, they don't know what they're talking about in politics, right? I think that we have a responsibility. We're part of humanity, we're allowed to have an opinion

about how we feel about things. Sometimes we have a platform on which to do it. And, you know, I think you can take it, you can come and say, oh, I saw that lady on TV, she made me laugh. What is she talking about? Oh, I agree or I don't agree with her. If you're talking about people that want to shut us up,

I disagree. In Harper Lee's book to Kill a Mockingbird, her protagonist, Atticus Finch says that you never truly understand another person so you get inside their skin and move around in it. That's what we do is performers. We get inside the skin of different kinds of people. And in order to do that, you have to open up your mind and try to understand the person from their point of view, from their perspective.

And that's a unique profession. Performers like myself have had the opportunity to travel around the world and spend time in countries like India, in Japan, in Africa, and Morocco, all over Europe. This gives you a unique perspective on the world. You know, if you imagine that you come into the world kind of like a horse with blinders on, that each time you play a different character, each time you get the opportunity, the privilege to travel to those other countries and hear different perspectives and see how different governments run

and how different people live and how they think that each of those trips open up your blinders and give you greater peripheral vision and greater understanding of the suffering that exists throughout the world. I'm very fortunate and blessed to have been able to work with such incredible artists who've opened up my eyes and opened up my heart

and my consciousness and the way that I think about the world. I'm now at an age where I see where I've come from and I know where I'm going, that the end is something that is inevitable. There's a book that I encourage everybody, every chance I get to read by Marcus Aurelius called The Meditations.

What he says in that book is that you should learn to die while you're living. That as soon as you accept the inevitability of death is when you become conscious of this moment, of being present. And you can't help but become a better person, a kinder person, a more forgiving person. We all face the same destiny.

So why make your life miserable? Why make life miserable for other people? Why not try to help other people? Give them a hand up and help us all get through this saying with some fun and some laughter. That's really beautiful. That's amazing. And I think that's what frames sag after when you think about what sag

after, you know, does and means though, you're right. I mean, in many ways, it's just so enlightening to talk about. The entertainment industry really is its own kind of nuclear energy. It could be harnessed for happiness and joy. You know, or it can be harnessed for evil and bad and depravity. You think about Ronald Reagan's, you think about Arnold Schwarzenegger's, you think about Donald Trump. We've had so many major leaders come from TV television and movies and it's not just unique to hear. I mean, we think about the Ukrainian president Zelensky.

He was a TV guy from Ukraine. That's how he came to power. And so when you think about the union and the end of protections, in many ways, the members you represent, and the culture that you're trying to make better and improve, truly has international ramifications and diplomatic ramifications more than you think. So I hate to put that pressure on you,

but there you go. We need both of you to save the world. It is a microcosm. Our little democratic society that goes on within the union really feels at times a lot like what's happening in the country. There are factions there shouldn't be. We all should be working together.

But there's something that Matthew said about Jeff Bezos and buying the studio. And I just want to remind everybody that Jeff Bezos now owns the outtakes from the apprentice. Just want to let everybody know that. Now he's got control of all those tapes. I hope that Jeff Bezos does the right thing, but we'll leave it at that. So please tell us when the election is for those members who are listening, who are voting members, what do they do? There's 160,000 of them. You have to be paid up in your dues to vote. And the ballots go out the first of August. And I think they remain out for 30 days. We want everybody to get their everybody in. That's another problem

low voter turnout. So we Abrams, the shit out of actually exercise there, w for a month. We have a m next three months to keep running on this truth and know your union and decide your future. And I like that Stacey Abrams the shit out of it is now a term. I like it. Hashtag. Hashtag Stacey Abrams the shit out of it which means go and vote. I want to thank both of you Matthew Modine, Jolly Fisher. Thank you for joining us on

the Midas Touch podcast. We appreciate you both. Thank you, Ben. Thanks guys. We will be right back after these messages. Thank you for listening to the Midas Touch Legal AF podcast. I thought that was interesting to share with you with Jolly and what Matthew had to say. I think it's, you know, definitely getting into the weeds a bit about how unions interact, but look, whether it's SAG

Aptra, whether it's the Longshore Men and Women unions out there, whether it is school teacher unions and steel worker unions. Unions play a very important role in the law. And on future Midas touch legal A.F.s, we will also get into the grievance procedures around unions and discuss more about those processes and administrative processes. I want to thank everybody for listening to Midas touch legal A.F. I want to remind you all that Michael and I are practicing attorneys. We're here and ready and willing able to help you on your legal cases. If you or a friend or someone you know has been injured in an accident, whether it be a car accident, a catastrophic injury, whether it involves sexual assault, whether it involves sexual harassment at the workplace or wherever, whether it involves a wrongful employment

termination, a breach of agreements. If you have a case and you want to know what to do, please send me an email at benatgaragos.com. That's be at g-e-r-a-g-o-s.com. Again, my email is benat-g-e-R-A-G-O-S.com. Again, my email is Ben at G-E-R-A-G-O-S.com. I am here to look at your case and let you know what I think the next steps are. And we've been doing that. We've gotten literally hundreds of inquiries. And I think we've responded to each and every one of them. Thank you again for listening to Midas Touch Legal AF. We will see you same time, same place, next Sunday.

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