Legal AF by MeidasTouch - DESPERATE Trump Filing DOOMED TO FAIL, BACKFIRE Incoming

Episode Date: November 17, 2023

Trump’s final brief is in in the DC Court of Appeals gag order matter, with oral argument scheduled for early next week. Michael Popok of Legal AF dissects the brief and explains why Trump’s new t...heory that as long as nobody dies or is injured based on his violent attacks on prosecutors and witnesses, he’s free under the first amendment to do and say as he pleases, will fail in court. Get up to 50% off for a limited time when you go to and use code LEGALAF at checkout! Visit for more! Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: Legal AF: The PoliticsGirl Podcast: The Influence Continuum: Mea Culpa with Michael Cohen: The Weekend Show: Burn the Boats: Majority 54: Political Beatdown: Lights On with Jessica Denson: On Democracy with FP Wellman: Uncovered: Learn more about your ad choices. Visit

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Starting point is 00:00:13 What did you wish for? From the studio that brought you frozen. A score of just said good morning to me. I have a few thousand questions starting with how is this possible? Disney's wish. Only theaters November 22nd to get available now. The Michael Popok, League of Legends, I'm going to talk a lot about Trump gag orders and appellate courts considering them because we got two of them, one in New York,
Starting point is 00:00:39 one in the District of Columbia, and it's all come colliding together on a new filing, last filing by Donald Trump's lawyers in the federal DC election case to the DC court of appeals, but they drag in the gag order against Donald Trump that's been stayed by the one justice so far administratively of the New York First Department of Pellet Division. I'll put it all together right here on this hot take and the new information that's now been, uh, that's now out there based on the new filing. Just to remind everybody, the DC court judge, Chuck in presiding installed or issued a gag order limited in nature, despite what you may have heard on the Trump side, limited in nature to stop Donald Trump from attacking violently by name participants in the criminal justice system, including the prosecutors,
Starting point is 00:01:32 staff and their families, investigators, FBI staff and their families and witness intimidation by Donald Trump. She drew a line down the middle, a bright line that judge did and said, you have a First Amendment right, sure, but it stops at the water's edge of a sixth amendment right to a fair trial, which you are inadvertently polluting and compromising the safe and fair administration of justice. And I won't have it. This is my paraphrase of the purpose of the gag order. That's the limited gag order. She said particularly, by example, in the gag order that she initially installed or imposed. She told Donald Trump, you want to go after the department of justice, not in not any individual person by name,
Starting point is 00:02:17 go after them. You want to go after Joe Biden, the president by name, go after him. She didn't even make the gag order applicable to her, even though she's gotten death threats from Maga right wing Trump supporters delivered right to her voicemail and her chambers. But she has a tough skin and is protected by federal marshal. So she said, that's okay too. Just don't go and and docks the prosecutor call him deranged, elunatic, crazy, his family, his wife, staff, kids, witnesses, and the like and don't use violent rhetoric to do it. That was the gag order. It was imposed.
Starting point is 00:02:52 It was then lifted or blocked temporarily by the judge yourself to give them time to fully brief it. And then it went up to the appellate court. At the same time, parallel to all this, a gag order twice imposed by the New York state court judge against Donald Trump attacking his staff, particularly where he targeted and doxed his principal law clerk, which assists the judge of the trial. A fact in a six week or eight week or 10 week trial to keep track of all the evidence, keep track of all the rulings, keep track of all the testimony.
Starting point is 00:03:25 It's proper what she's doing, but they have decided to attack her mercilessly up in New York. That led to a series of gag orders and fines against Donald Trump that went up almost at the same time on appeal to the highest court or the second highest court of appeals in New York for Manhattan, the first department, a court of appeals or a first department of pellet division. They all came, these two worlds came colliding to today in a filing by Donald Trump because the appellate court in federal appellate court also issued a temporary administrative stay, not on the merits, just to have full briefing in the DC
Starting point is 00:04:07 election case of the gag order issue from Judge Chutkin. And they set out in their administrative order about a week ago or 10 days ago, a very tight briefing schedule. The last brief, because it starts with a brief by Donald Trump, who's the appellant, the person seeking to overturn something on appeal, then the Ap Donald Trump, who's the appellant, the person seeking to overturn something on appeal, then the app Ali, which is the department of justice in this case, files a middle brief and opposing brief. And then there is a reply brief. That reply brief got filed by court order today on the 20th of November. I'm sorry, on the 15th of November. I don't even know.
Starting point is 00:04:43 Sorry, 17th of November. I'll get it right eventually. Come on, Popuck. And in three days, next week, before Thanksgiving, there will be an oral argument at 9.30 in the morning based on this full briefing and in front of a three judge panel of the DC Court of Appeals for the federal circuit. Those three judges, for those that are following this type
Starting point is 00:05:06 of thing at home at the home game, the gagging Donald Trump home game are two judges that were appointed by Barack Obama and one judge, federal who was appointed by Joe Biden. That's the three judge panel, randomly, randomly selected that's hearing this issue on now, the full briefing. Let me get to what is in the brief. Now that you've gotten the background, the brief today is how can I say it, a long
Starting point is 00:05:33 unredderic and very short on case law that's applicable to the case. The fundamental issue here for the appellate court to decide is whether and how robust a person who is a criminal defendant who is being supervised, it is released by the criminal justice system, which Donald Trump is. How much First Amendment rights they have to continue to attack by name other lead participants in the criminal justice system, including witnesses and prosecutors and investigators by name. Because there are limits to the first amendment, it runs counter to the sixth amendment, right? So you got the first versus the sixth and a friction resulting in the sixth amendment,
Starting point is 00:06:20 right, to somebody to have a fair and impartial jury trial. And the judge sits in the middle as a fulcrum, as the black robe gatekeeper to make sure that the First Amendment rights and the Sixth Amendment rights don't collide. And there's a bright line between them. Because at the, at the end, you can't just say anything if you're a criminal defendant. You don't have a First Amendment right to do most of the violent rhetoric that Donald Trump has used. And that's what the judge has tried to kind of thread the needle concerning. And that's the issue on a field.
Starting point is 00:06:54 How much First Amendment right? What are the limits of the First Amendment when you have the justice system itself being undermined much the way that Donald Trump undermined free and fair elections and the peaceful transfer of power. Same guy, same playbook, different page. And that's the issue on appeal. The government cited properly all the examples of the violent rhetoric and bashing and gag order violation by Donald Trump.
Starting point is 00:07:24 By name. The defense, Donald Trump likes to argue that he can say whatever he wants as long as somebody doesn't get killed. We try it again. Their version of the first amendment is that because Donald Trump has 100 million followers, I'm not even sure that number correct because Donald Trump has a hundred million followers has core political speech first amendment because he's the he's a candidate for the presidency. And because nobody yet has been killed, mained, injured or kidnapped yet, although in our history, in our most recent history, all of those things have been attempted or completed against judges, governors, jurors, prosecutors, and the like. But they've come up with a new test. They say basically Donald Trump can say anything as long as death threats or people
Starting point is 00:08:22 don't get killed. That is not the test of the First Amendment. I'm gonna read for you some of the actual brief that was filed so that you know what we're talking about. Okay, so here's the brief that they have filed. And particularly the portions of that brief that matter in this particular hot tick, as they make their argument that if you have a hundred million followers and nobody died yet, you can't limit first amendment
Starting point is 00:08:50 speech, which is not the case law. And not surprisingly, there's not one case cited by the defense to support that new Trumpian theory. And as long as nobody's died yet, he can say what he wants. Here's how the summary of the argument page, which is usually how you orient the panel. You get the final word. And on page one, the final word here says the gag order, which is what I described earlier, installs a single federal judge. That's Judge Chutkin as a barrier between the leading candidate for president, I'm not sure he's the leading candidate for president, and every American
Starting point is 00:09:30 across the country. The district court had no business inserting herself into the presidential election just weeks before the Iowa caucus. The First Amendment does not permit the district court to micromanage President Trump's core political speech, nor to dictate what speech is sufficiently general and what speech is too targeted for the courts liking, nor does the due process clause. And so that's their lead argument because that's in the first paragraph of their observations and of their summary of their argument. They go on to say that the gag order, this is also on page one, violates a long list of first amendment,
Starting point is 00:10:05 and it's most basic doctrine, such as the primacy of campaign speech, the audiences, right to listen, the categorical ban against the hecklers veto and the heightened protection for criticism of public figures among others. And then says the criminal proceedings do not suspend the first amendment. If anything, they heightened the need for first amendment. There's not a case cited for that proposition or any of those propositions because they've turned the first amendment on its head as it relates to the rights that are limited of a criminal defendant to violently attack participants in the criminal justice system without regard
Starting point is 00:10:43 to whether there's actually been an attack for Trump's argument to work. He says that basically for him and for anybody, if there's not a Jan six insurrection leading to five or six deaths, Donald Trump can do or say what he wants, unless it until that time. And then goes into actually a misunderstanding fundamentally that the, and this is what I've said in prior hot ticks, what the Department of Justice is trying to do is protect Donald Trump from himself because undermining the justice system is undermining his Trump's six amendment right to have a fair and impartial trial. You get it? He is undermining his own
Starting point is 00:11:26 ability because he's scaring the crap out of future jurors and others, which would impact their impartiality. They might be so scared they just convict the guy to put him away, which might be the right thing to do, but they're supposed to as a jury apply the facts as developed in the record in the courtroom to the law, not just be so scared of him that they want to put him away for life. But Donald Trump doesn't understand that. In fact, on page 14, I believe, sorry, page 13 of their brief, they turn the entire law on their head.
Starting point is 00:12:01 They say that two cases underline a fatal irony. The prosecution relies heavily on authorities focused on protecting the criminal defendant's rights in attempting and failing to justify violating the criminal defendant's rights here. The Supreme Court has approved restrictions on the communication of trial participants where necessary to ensure a fair trial for a criminal Defendant and they emphasize criminal defendant right That is the restrictions that Judge Chuckkin has imposed on the communication of all trial participants Including their own client to make sure their own client gets a fair trial And they think that's an irony that that's the case law that's being
Starting point is 00:12:45 used because they have a blind spot ethically morally and legally about this argument that Donald Trump is undermining his own ability to pick in the future a fair and impartial jury. And that's the reason for it. It's not because Jack Smith or his wife necessarily are afraid, although they should be given what we've seen with the maga right wing and what they're willing to do and take up arms in support of their cult leader, but it's because it's the sixth amendment right that he keeps missing.
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Starting point is 00:15:00 sale of the year and get up to 50% off for a limited time. When you go to slash legal AF, the discount is auto applied at checkout. No code necessary. That slash legal AF for up to 50% off. And so throughout the brief, they then focus on the New York case. Again, using the opportunity, because they never miss an opportunity to attack the principal law clerk for judge and gore on up in the New York civil fraud case. And they say, for instance, I don't even know why they would even spill any ink in this particular limited brief on this purpose. Other than it's another media press release, they say on page eight, another failing tactic is the prosecution's repeated
Starting point is 00:15:52 reliance on media reports about President Trump's social media post about the principal law clerk of the justice presiding in the pending civil fraud trial in New York. In fact, this principal law clerk, and here we go with this ridiculous analysis by people who don't practice in the pending civil fraud trial in New York. In fact, this principal locklark, and here we go with this ridiculous analysis by people who don't practice regularly the way that I do in the New York court system. In fact, this principal locklark sits beside the judge on the bench during trial.
Starting point is 00:16:18 Of course she does. All key staff sit next to the judge in courtrooms. That's why there's a second desk next to the judge up on the bench. She passes notes to the judge constantly. Right. She's assisting the judge as the trial of fact to keep straight eight to 10 or 12 weeks of testimony.
Starting point is 00:16:37 Consult with the judge before virtually every ruling. Right. Because the judge is not a computer and he needs to lean over to his law clerk or his principal law clerk and make sure he's right before he makes a certain ruling. And even questions counsel on behalf of the court directly. Yes, in the New York court system for a Supreme Court justice, which is what the trial level court in New York is called the law clerk plays a unique role as almost like a magistrate judge making certain rulings about discovery on behalf of the judge.
Starting point is 00:17:10 This is obviously written by people once again, like John Loro, who's a Florida lawyer who does not practice in the new is not admitted to practice and is not involved with the case in New York because everything they're commenting on here is run of the mill, garden variety, regular process and procedure in New York. And then they use this phrase, which I've already called down in a prior hot take as a drinking game, calling her a code judge of the case wrong. I mean, I don't just to be clear on the appellate court in the district of Columbia, this is going to fall flat.
Starting point is 00:17:44 This none of this stuff here. This is just filler with, to get the brief, to 25 or 30 pages. This has, this has no impact on the ultimate argument here. And so every time they cite a major, a major proposition, like, for instance, this is my favorite. On page 16, the gag order violates the rights of 100 million Americans. They've now created for themselves 100 million American running for president exception when there's nobody who's actually dead or maimed or bodily injured. Donald Trump can do what he wants and he can't be limited.
Starting point is 00:18:19 That's their new doctrine. It's the Donald Trump 100 million American social media. No one dead yet. Doctrine. The problem with that doctrine is it doesn't exist in the law and it shouldn't exist in the law and it won't exist by way of these three judges once they get their hands on this case on the 20th of November in their oral argument. I don't care if he's got a billion Chinese that are interested in what he has to say that doesn't give him the right to go and attack by name violently. People involved in the criminal justice system while he is out on bond as a criminal defendant facing four felony counts in a federal case. To paraphrase this judge, I don't care what Donald Trump's day job is. Politics is left at the courthouse store and has no place inside
Starting point is 00:19:15 the courtroom and he's going to be treated like any other defendant to remind the audience who may not know this during her oral argument that the trial judge held about this matter in which she gave them two hours to argue their position. She said to John Loro, name for me a case where a defendant like yours was able to attack violently the prosecutor and remain on the streets. In other words, not locked up in jail as a result. Then she sat back and waited with a bemused look as John Loro, how to admit there was no case that permitted that. And she even boxed him in further, which is part of the record for the appeal when
Starting point is 00:19:56 she said to him, you're not your position. Isn't the Donald Trump can say anything, right? And that's where the oral argument and we'll follow it here on the Midas Touch Network is going to go on the 20th of November. It's going to go right to the heart of the matter with the judges on the panel. I am sure putting John Loro back on his heels as he argues for Trump and saying, Mr. Loro, we want to understand where you see the bright line in limits on free speech. You're not taking the position that Mr. Trump can say anything at all and to remain and not violate our system of justice or the conditions of his release are you. And he'll say, no, okay, give me an example of something your client could say that could
Starting point is 00:20:39 violate a gag order or that a gag order could address and he'll be boxed in right away on that because I don't think there are any limits in his mind. And so they will then walk that back and get him to either concede that there has to be some limits in the tension between the sixth amendment right to a fair trial and the first amendment right to free speech, regardless of how many followers or listeners want to listen to Donald Trump talk. And that can't be the, that can't be the determinative factor.
Starting point is 00:21:08 They'll also, I'm sure right away say, it looks like you suggest that unless there is a violent attack immediately linked to a piece of speech of your client, there can't be anything to address it or to gag it. Is that your position? And the reason they're going to say that is because it's right in the brief. Let me read for you. I'm page four. They say that the prosecution argues that President Trump, they love calling him by his former name,
Starting point is 00:21:38 where he's impersonating a president has repeatedly called the prosecutors hailing the case deranged thugs and lunatics. And here's the here's their point, but it does not identify any resulting threats or harassment or claim that the prosecutors are even remotely intimidated by such speech. That is not the fundamental analysis under First Amendment and the impact on the criminal justice system. And that's why there's absolutely no case law cited next to that for that proposition. All right. So what do we have so far in summary? We've got the final brief being filed by Donald Trump in the DC election interference
Starting point is 00:22:18 gag order case. It will then there'll be no more hearings on this particular issue until or no more briefing until we get to the actual hearing, three judge panel hearing. There'll be an audio version of it. We'll be able to download it, bring it to you on the Midas Touch Network. And then analyze what happens at the oral argument, but this is the key issues. And the judges are also able to take judicial notice of everything that Donald Trump is doing right now, right? In the, in the, uh, bashing of judge Angora and, and, and her, and his law clerk up in New York, as soon as the court up there, one judge of the court up there put a administrative
Starting point is 00:22:58 pin in the gag order in New York, bashing, you know, uh, unabashed bashing continued by Donald Trump. And that can be noticed by judicial recognition at the hearing itself, if the record isn't even sufficient, which I believe it is. We'll report on the likely outcome, which I believe is the, the reassertion of a gag order in federal court against Donald Trump from violently using violent rhetoric against particular participants in the criminal justice system and trying to use witness intimidation, which is also a relative of his conditions of release. We'll talk about it. I don't think they're going to rule from the bench. They never do. We'll probably get an order but soon thereafter, probably in early December could be at the end of November,
Starting point is 00:23:46 but we'll see it relatively quickly from this court because they understand that they got to move quickly. They'll move quicker, I believe, that what's going to happen in the New York gag order case because the briefing there doesn't time out until early December, and then there'll be an oral argument and then a ruling. So I don't think these will be, these will be off track. They won't be parallel. And the federal courts, to be honest with you, don't really care what happens in state court. I mean, not to be elitist at the federal court level, but they are the major league and
Starting point is 00:24:19 they see themselves as the preeminent deciders of case law about their own justice system on the federal level. And what Angkoran did or didn't do or what the appeal court in New York, state court does or doesn't do really, to be frank, doesn't matter at all. It'll be what case law precedent at the Supreme Court level and at the DC Court of Appeals level that applies. And I think on that, the stronger hand is held by the prosecutor. We'll continue to follow it here. Hot takes like this one by the leaders of legal AF. And then on that curated podcast that we do on the Midas Touch Network,
Starting point is 00:24:54 call legal AF. It is that title is exactly what you think it's on Wednesdays and Saturdays at 8 p.m. Eastern time. We pull together the stories from the week. We bring it to you with an analysis of all of the anchors with all their experience collectively 75 years in the court system, including in the court houses that we're talking about right now.
Starting point is 00:25:14 So give me a thumbs up, please, for this hot take, it helps keep the ratings and keeps the show afloat, if you will. And so until my next hot take, until my next legal AF, this is Michael Popak reporting. Hey, Midas Mighty. Love this report. Continue the conversation by following us on Instagram. AtmidasTouch to keep up with the most important news of the day. What are you waiting for? Follow us now. you

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