Legal AF by MeidasTouch - Conservative Judge DELIVERS BIG BLOW to Trump in 14th Amendment Case

Episode Date: January 31, 2024

A conservative federal judge who wrote the “tweet” that saved democracy, has led a band of Republican senior officials, lawyers and judges, to file a new brief with the United States Supreme Court calling for Trump’s banning from the ballot because he “engaged in (armed) insurrection” against the Constitution. Michael Popok of Legal AF dives into the new brief and explains why it will resonate with the other conservative right wing judges who consider themselves “textualists”. Head to https://tryarmra.com/legalaf or enter promo code: LEGALAF to receive 15% off your first order! Visit https://meidastouch.com for more! Learn more about your ad choices. Visit megaphone.fm/adchoices

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visit rbc.com slash avion. Michael Popak, legal AF, a powerful new brief filed with the Supreme Court of the United States led by Judge Michael Ludig, he who wrote the tweet that saved democracy, to stop Donald Trump interfering with the peaceful transfer of power and to give a backbone and to run a steel rod up the backside of Mike Pence as he was brought in as a consultant, this former federal judge, conservative, Federalist Society member, member of Mount Rushmore, a lion of the Federalist Bar. He got off the sidelines of history, stepped into the fray, and he gave Mike Pence what he needed to reject the overtures of Donald Trump to stop the peaceful transfer of power.

And now he's back, Judge Ludig, who will be a guest of mine right after the Supreme Court holds oral argument on the 14th Amendment Section 3 disqualification and banning Donald Trump from the ballot as an insurrectionist, as someone who engaged in insurrection and rebellion against the constitution of the United States because of his failure and his refusal and his overt acts to stop the peaceful transfer of power, which culminated on the attack on the Capitol. But it's every aspect as outlined by the Jan Six committee, every aspect, every link in the chain to let Donald Trump to try to interfere

with the peaceful transfer of power. And there's another social media posting today by Judge Ludig, which I wanna start the hot take with and I'm gonna end it with the brief. And the sections of the brief, I am sure have Judge Ludig's fingerprints all over them that are a powerful, powerful, and should resound with and vibrate with

the members of the United States Supreme Court, including those that call Judge Ludig their colleague. Some of them clerked for him. Some of them have clerks that clerked for him. And that's when he speaks, when he speaks, people listen. Here's what he had to say today in a social media posting, which is a great segue into my hot take and my analysis. As with many tragedies, fiction and none,

the former president wrote the story of his own disqualification. On January 6th, 2021, he engaged in an insurrection or rebellion against the constitution of the United States by attempting to cling to power after the American people had divested him of his presidential powers and vested the powers of the presidency in his rightful successor, President Joe Biden. That's not some Democratic partisan hack who wrote that, as Donald Trump likes to call any judge or prosecutor that's against him.

That was Judge Michael Ludig today about the brief and about the circumstances that compelled him to write along with 20 other people a powerful amicus brief to the United States Supreme Court, urging the Supreme Court to disqualify Donald Trump from office and find that the 14th Amendment, Section three passed along with another series of amendments coming out of the Civil War era and the Civil War age and the people of that age to make sure we would not have another insurrection and rebellion again, right? Powerful words from a period of our history, right? In which those words in their in their textualist, originalist approach to reading the constitution

that the right wing on the Supreme Court constantly talks about as being their touchstone. Well, then Judge Ludwig and others, including 25 American Civil War historians have all told the Supreme Court the exact same thing, which is listen when the people of the civil war speak to you and put into and bake into the United States Constitution and several amendments that were passed to protect newly freed slaves, now black Americans, and try to prevent the next insurrection and rebellion. Those words matter. Don't try to narrowly interpret them

Don't do it in a way that's so constrained and cabined that it doesn't achieve the ultimate goal of the people of that period And what they were trying to accomplish It's a unique period in time and that and those amendments 12 13 14 that all came out of that era, 15, are all coming out of a civil war, from a civil war people that are speaking to us today in the way that they wrote it. And quickly, Judge Ludig and the others

that wrote their brief that's now before the Supreme Court, which I'm sure will be addressed by the Supreme Court. For those that think that amicus briefs, for instance, have no real value, they're just vanity pieces that are written by former or retired judges or historians or lawyers or people with access to grind. They're not really considered by the United States Supreme Court.

Bouldersh, that's untrue. We just saw an example just a month ago in the beginning of January In which three judges of the DC Court of Appeals instructed Donald Trump's lawyers to be ready and prepared to discuss aspects of issues in their Immunity presidential immunity assessment as to whether there is absolute presidential immunity

for a criminal president in office to dismiss his indictment. They liked aspects of amicus briefs that were filed, amacai, and asked the lawyers to be ready to debate those. It's not just what the parties put in their briefs. Once these amicus briefs are accepted, I wanna talk about the one that was just filed by Judge Ludig and his colleagues, including my full disclosure, my own law partner, senior law partner, Nick Rostow, who also served two Republican administrations.

He's part of that team, that band that's again gotten off the sidelines of history and into the contact sport of protecting our democracy in ways that only they can. And if I had to pick a quarterback to do it, it would be Judge Ludwig. Let me read to you the briefs 50 pages, but there's a section of it that just pops out. And I am a, and I've let the judge know this,

and I'm not trying to be obsequious. I am, I'm not sure what to call this, a Lutugian, when it comes to what the 14th Amendment Section 3 says. Many judges in courts get it wrong because they don't realize that the language refers to the Constitution and an insurrection or rebellion against the Constitution, the same to use the phrase from the actual amendment.

People have interpreted that because it's easy to remember, of course, the end of the insurrection or rebellion, the last attempt to light the match and lit the fuse to blow up the Capitol by Donald Trump and his followers and those that follow him To stop the peaceful transfer of power But that was that is not the insurrection or rebellion. That's an element of it. That's a tactic of it But the strategy is what is what judge Ludig and others address? It's the it's it's the entirety it, as outlined eloquently by the Jan 6 Committee. It's everything. It's the pressuring state officials, local officials, election officials, elected officials, Vice President Pence creating the fake electors in the battleground states. It's all of that.

It's the perfect phone call to find 11,780 votes in Georgia. It's the phone calls to the speakers of the house of other state houses to get them to hold these bogus hearings. It's the 60 lawsuits that all lost all under the control and leadership of Donald Trump, who was the commander in chief of his own insurrection, of his own rebellion against the Constitution. All of that put together. And when all else failed, burned down the Capitol, hunt for elected officials

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a special offer for my audience. Receive 15% off your first order. Go to tryarmorah.com slash legal af or enter legal af to get 15% off your first order. That's t r y a r m r a dot com slash legal af. Let me read to you from section two, which is what I'm going to focus on on this hot take of the amicus brief just filed and signed by judge ludic and others including, as I said, my law partner starting on page 19, Roman numeral two, the fair meaning of section three disqualifies former president Trump. He's speaking here. They're speaking here to the original lists, the textualists. Like a lot of Democrats like me like to think that's a dirty word because we see the constitution as a living, breathing document, not a brittle piece of parchment from the past Where we help where we have to think well, what are the founding fathers think what the framers of the Constitution think about abortion?

What they think about gun control, right? But I'm not from the school of dead hand control But if we're gonna use dead hand control And we're gonna take a time a time machine back to the past to learn what the people of that era, the Civil War era meant when they wrote something down and they meant what it said without an owner's manual and operator manual. Doesn't say go back to Congress to disqualify Donald Trump. It says anyone who engages in insurrection or rebellion against the Constitution shall not hold office again. If they took an oath to support the Constitution, Donald Trump took an oath to support the Constitution shall not hold office again. If they took an oath to support the Constitution,

Donald Trump took an oath to support the Constitution. He's, well, my oath said defend, protect, and preserve. Same thing. Those are all analogous words to support. I'm not an officer under the United States. Yeah, you're the president of the United States. You're a federal officer. You told the federal court you were a federal officer

when you were trying to remove your Stormy Daniels hush money cover up case to federal court. And Judge Hellersding told you, well, you're a federal officer. You're bad, you know, your employee badge number one and the federal officers. Now he's suddenly not a federal officer. The only one that wouldn't be,

as if the people that drafted the 14th amendment who were coming just out of the Civil War restoration period just had Jefferson Davis in the same year being prosecuted for insurrection because he left the union and became the president of the, you know, the counter-programming unit of the Confederacy. They were dealing with that in real time.

They're, it's not just old, tiny analysis. Is there an interesting, you know, thinking about the funny hats that they wore back then? You know, I saw Lincoln, forget that. We're talking about a message to the future embedded in the language and the text of the Constitution. Let me read from the Ludig brief, which I like to call at least a section of it that I believe you wrote or helped write.

Section three must be accorded its fair meaning, not a narrow construction. Or helped, right? Section three must be accorded its fair meaning, not a narrow construction. The textualist touchstone is to give every constitutional provision its fair meaning, citing two, Antonine Scalia, along with Brian Gardner reading law. A narrow construction to promote judicial restraint is just as bad as any unreasonably enlarged construction.

Scalia and Gardner approvingly quote, just this story that it is forbidden to narrowly construed a constitutional provision as if it were subversive of the great interests of society or derogated from the inherent sovereignty of the people. Who is this brief talking to right now? The original list and textualist on the right wing of the Supreme Court.

And it has a powerful, it powerfully resonates because it's coming off the pan of Judge Ludick. The duty to use fair meaning is especially compelling for section three of the 14th amendment for two reasons. The brief continues. First section three has life only because it applies fully to those who violate its terms and still retain or regain enough popularity, potentially to be elected or be appointed by elected officials.

Section three would be a dead letter if the court refused to apply it because an insurrectionist had popularity with large numbers of voters. Just as it is not the role of the court to pronounce the second amendment extinct, it is not the role of this court to render section three extinct.

This is this is the brief hitting the Supreme Court where it lives. You're going to uphold the second amendment and say you can only regulate things that were being regulated at the time that it was passed or things like that. You got to do the same thing here to be intellectually honest. Don't you? Don't you? Second, the civil war generation, and I love that turn of the phrase because it instantly puts you in the mind of the people who drafted and what they were trying to accomplish not just by the 14th Amendment, but a series of amendments around it to protect black citizens,

protect their right to vote, make sure they were not lynched, and to make sure that people that were supporting slavery, listen up, Nikki Haley, supporting slavery, the root cause ultimately of the civil war would not come back into power and be rewarded just because they were popular again. Like Jeff Davis wasn't gonna be president of the United States after the assassination of Abraham Lincoln, and they made sure that wasn't going to be president of the United States after the assassination of Abraham Lincoln and they made sure that wasn't going to happen.

They weren't going to leave it to the American people and the populace to decide that, right? They were going to bake it into the into the an amendment to the United States Constitution, which is a big AFN deal. I'll put it that way. As they said here, the Civil War generation recognized that what started as an insurrection in a single state, the succession of South Carolina in December 1860, had metastasized into a civil war. More than 620,000 soldiers lost their lives in four years, citing two Professor MacPherson of Princeton, who filed his own brief in favor of banning

and barring Donald Trump from the ballot. Section three of the 14th Amendment was the Civil War Generations, powerful deterrent to ensure that even an at first localized insurrection would never happen again. And that's why the stat section has to be liberally interpreted They then go on to say the president of the United States obviously is an officer of the United States

Even Jeff Davis who was on trial for insurrection frequently referred himself referred to himself as an officer of the United States And so they go through the Constitution related to that. But then we get down to that the Jan 6, 2021 armed attempt to prevent the peaceful transfer of executive power was an insurrection against the Constitution. As they say on page 24 of their brief, the peaceful transfer of executive power is not merely a norm or tradition.

It is the foundational mandate of Article 2 of the Constitution, Sexual One Clause 1 of Article 2, often called the executive vesting clause provides that the executive power shall be vested in a president of the United States. He shall hold his office during the term of four years and together with the vice president chosen for the same term, be elected as follows. As Chief Justice Marshall put it, right?

The leading, he is the Mount Rushmore of this, of the Supreme Court. The first Chief Justice that actually established the role of the United States Supreme Court. His teachings in Marbury versus Madison were so important back in 1807 that I spent three weeks of a 12-week course on constitutional law in law school just on Justice Marshall in Marbury versus Madison. And as they quote in the brief on page 25, And as they quote in the brief on page 25, the president is elected from the mass of the people. And on the expiration of the time for which he is elected, returns to the mass of the people again.

That's our problem. Donald Trump didn't want to return to the mass of the people. He wanted to cling to power and we needed to rip it away from his whatever dead, white, cold fingers. January 6th, the brief goes on, saw an insurrection against the Constitution

because there was a threatened and actual use of armed force to thwart the counting of electoral votes that is mandated by the 12th Amendment as part of the transfer of executive power that is required by the 12th amendment as part of the transfer of executive power that is required by the executive vesting clause. That's article two, the 12th and 20th amendments, right? This January, this on page 26, the January 6, 2021 insurrection sought to prevent the vesting of the authority and functions of the presidency in the newly elected president, Biden. The civil war generation certainly understood that the threat and use of force

to prevent a newly elected president from exercising executive power is an insurrection. Indeed, the activities of federal officials to prevent Lincoln's inauguration were one basis for the section three of the 14th Amendment. See, for people that fell asleep in history class or civics class, they tried to stop Lincoln's inauguration, to stop him from, and the peaceful transfer of power. And that was one of the bases for section three of the 14th Amendment.

I mean, the Civil War generation, you know, didn't take amending the Constitution lightly. Let's put it that way. Moreover, the Lincoln analogy continues, the event that precipitated succession was the election of a president, Lincoln, by a constitutional majority on November 10, four days after Lincoln one, think of Biden as Lincoln here. South Carolina's legislature called a convention to consider secession and both of South Carolina's U.S. senators resigned. Can you imagine that today?

Biden wins and senators resign and states like, I don't know, Texas say we're going to secede from the union. That insurrection was 20 days before the next state seceded and 10 days before South Carolinians seized the federal arsenal at Charleston. The South Carolina's convention declaration of the immediate cause which induced and justified the succession of South Carolina from the federal union objected to the election of a man to the high office of president of the United States talking about Lincoln whose opinions and purposes are hostile to slavery. He is to be entrusted with the administration of the common

government because he has declared that the government cannot endure permanently half slave, half free. And the public mind must rest in the belief that slavery is the course of ultimate extension. Ironic that Nikki Haley, who is the governor of South Carolina, doesn't know her South Carolina history about slavery being the cause of her own state succession.

And the brief goes on. And my favorite ending of it is on page 31 of this particular section in which they say, led by Judge Ludwig, ultimately this case, this case of Donald Trump has a virtual confession on December 3rd, 2022. Trump posted that his unfounded accusation of widespread election fraud allows for the termination of all rules, regulations, and articles, even those found in the Constitution. He had said much the same in his January 6, 2021 speech on the ellipse, quote, when you catch somebody in a fraud, you're allowed to go by different rules.

Trump deliberately tried to break the Constitution. The brief continues to incite, threatened, and actual armed force to prevent the peaceful transfer of executive power mandated by the executive vesting clause and the 12th and 20th amendments. That constituted engaging in an insurrection against the Constitution. Signed respectfully Judge Ludick and about 20 other people, including my partner Nick Rostow. I'm going to have the honor and the great distinction for the Midas-Tutch network and for Legal AF to interview Judge Ludick the day after the Supreme Court hears oral argument on this case. There's still more briefing to be done, but the oral argument is going to be on the 8th of February. We'll talk to Judge Ludick a day or so after that and bring it to you one place, the Midas Touch Network,

two million strong Midas Touch Network. So until my next hot take, until my next legal AF, Wednesdays and Saturdays, 8pm Eastern time on the Midas Touch Network and then on Audio Podcast platforms of your choice. This is Michael Popak, Legal AF reporting.