Legal AF by MeidasTouch - DOJ HUMILIATES Trump in Motion for MISSING DEADLINE

Episode Date: November 1, 2024

Special Counsel Jack Smith tells Judge Chutkan that because Trump is more than a year late in filing his motion, she should immediately dismiss Trump’s last-minute motion to dismiss on the grounds that the Special Counsel is unconstitutionally appointed and funded. Michael Popok does a deep dive into the latest filing to undermine Trump’s embarrassing arguments and use their own expert witness against them. Go to https://joindeleteme.com/LEGALAF and use promo code LEGALAF for 20% off. Join the LegalAF Patreon: https://Patreon.com/legalAF Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af MissTrial: https://meidasnews.com/tag/miss-trial The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Coalition of the Sane: https://meidasnews.com/tag/coalition-of-the-sane Learn more about your ad choices. Visit megaphone.fm/adchoices

You know the phrase, day late and the dollar short? Well, special counsel Jack Smith does, because his new paper filed with a DC judge, Judge Chutkin, to try to avoid him being dismissed as illegitimate and funded unconstitutionally basically tells the court that Donald Trump is a year late in making such a motion and should not be allowed to make it now. And that even if he were, his entire argument about how the special counsel's office has been funded or how it was appointed is all washed up. That's the dollar short.

Let's break into it right now. I'm Michael Popock, Midas Touch Network and Legal AF. Let me frame it for you. That was the headline. Donald Trump for the first time in over two and a half years of being prosecuted in the DC election interference case in front of Chutkin in September at a September 5th conference raised for the first time that they're planning to bring a motion to dismiss based on the fact that they believe that Jack Smith

was unconstitutionally and illegitimately appointed by the Attorney General and that he was improperly and unconstitutionally and illegitimately appointed by the attorney general and that he was improperly and unconstitutionally funded in violation of some sort of congressional edict. He hadn't raised that at any other time in the case and of course he's relying on a recent win he got with his candidate of choice for the attorney general position, Aileen Cannon, the federal judge down in the southern district of Florida, the Mar General position, Aileen Cannon, the federal judge down in the Southern District of Florida, the Mar-a-Lago case.

The problem is he had to bring such a motion back in October of 2023. We are now approaching Halloween 2024. And so that is the day late argument that leads off the new paper by Jack Smith. His argument is simple. They've always known about the special counsel. They've always known how he was appointed.

They've always known about the order of the attorney general establishing the inferior office of the special counsel's office pursuant to Department of Justice guidelines, several statutes approved by Congress, and the appointment under the Article 2 of the Constitution of inferior officers under the Attorney General as the department head. They've known that from the very beginning. And in fact, they raised such a motion, this particular motion on time, but in Mar-a-Lago's case with Judge Cannon. They never raised it in the D.C. election interference case.

And the special counsel reminds Judge Chutkin of one better. When the issue of whether they were challenging the legitimacy, the constitutionality, the legality of the special counsel was brought up at the D.C. court of appeals on the way to the United States Supreme Court and at the United States Supreme Court, lawyers for Donald Trump looked the judges, the appellate judges in the eye and said, no, we're not relying on that. In other words, they waved their argument at both levels of appeal up to the United States Supreme Court to make the argument now a year late that Jack Smith should be

taken off the case and the indictment dismissed. That is their lead argument in this new filing. And I think it's a compelling one, especially since I had forgotten, even though I'd covered it at the time, that at the D.C. Court of Appeals oral argument, it came up as it did in the United States Supreme Court. And the lawyer John Sauer for Donald Trump said, pass, hard pass on that argument. We're not relying on the illegitimacy of the special counsel's office, right? Because you waived it. And Jack Smith reminds Judge Shetkin, well, Donald Trump knows how to raise that motion on time when

he wants to because he did it down in Mar-a-Lago. He just didn't do it here. But they're not just relying on the day late argument, which is, I don't want to make it sound like it's technicality. It's a problem. I practice federal court and if you're late and if you missed your deadlines, even if you think you had a meritorious argument, you're done. You're out of the game. So that's how they lead because that is a very strong argument for them. Then they argue that there's no merit even if the judge were to give them through her exercise of her inherent authority, she waves her magic wand and she gives them the extra time. She rolls back the

clock a year and grants them the permission to file late and out of order. Judges call that nunk protunk, and she grants a nunk protunk order to give them the right, they lose anyway. That's the dollar short about appropriations and about appointment. There's two arguments that were raised for the first time in the September 5th argument before the judge and then in the papers that were subsequently filed about a week or two ago. And that is that the special prosecutor, special counsel was illegitimately appointed, that's the appointments part under Article 2 of the Constitution, and inappropriately funded,

that's the appropriations part, right? That he spent $36 million or whatever it is, about half of it has been for security for he and his team because he's going against Donald Trump. Now as to the appointments, it's a relatively simple argument. That's why this entire brief that was just filed by Jack Smith is only 18 pages long, which is incredibly short given the complexity of the issues on their face and the momentous the momentous principles that are being litigated over, right? Just shows you, keep it simple. I tell my lawyers when they write, nothing says simple like less pages.

You file a 50, 75, 85 page brief, that sounds complicated. Keep it simple if it is simple. And that's what they did here with Jack Smith, 18 pages. And what did he say in the 18 pages? Popak, get to it. Okay, Article 2 is easy. It says that there are, and there's law around it from Congress, there is vested in the heads of every department of government full power about that department. So the Attorney General heads the Justice Department. And then the Justice Department

is in the head of the Justice Department is permitted to appoint inferior officers, that's a constitutional term, including special counsel and special attorneys. What else is the special counsel than an inferior office under the head of the Attorney General and a special counsel. Every special counsel in the last 50 to 75 years that's been appointed has been appointed pursuant to that same very constitutional principle and has been found to be constitutional. And they list Jack Smith in their papers, every special counsel all the way or upon the shoulders upon which Jack Smith is standing. Republican and Democrat appointed by

Trump's Department of Justice and Biden's Department of Justice, and Clinton's Department of Justice, and Bush's Department of Justice, and Reagan's Department of Justice. I mean, they list special counsel, her, Durham, Mueller, Fer Fisk Danforth side note of the interviewing former senator Danforth Who's going to be my my guest on legal AF hold that thought Danforth me even Even I love this part and just just you know every scandal that they investigated from Iran-Contra to the Russia

investigation, to whatever John Durham for Donald Trump was doing, Robert Herr for Joe Biden's classified documents issue, and Jack Smith all were appointed pursuant to the very same language in the Constitution and the congressional statutes that were promulgated around it. Every one of them. This podcast is sponsored by Delete Me. Have you or someone you know been a victim of identity theft, harassed, stalked, doxed? I recently changed banks and opened new accounts only to quickly have bad people use that opportunity to try to hack into my online banking profile. And with all my hot takes and podcast episodes every week,

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Now at a special discount for our listeners. Today, get 20% off your DeleteMe plan when you go to joindeleteeme.com slash legal AF and use promo code legalAF at checkout. The only way to get 20% off is to go to joindelete.me.com slash legalaf and enter code legalaf at checkout. That's join deleteme.com slash legalaf code legalaf. Now, Donald Trump makes a lot of wheeling, I mean literally, wheeling out a 93-year-old, Ed Meese, who used to be Attorney General, before he was indicted when he used to work for Ronald Reagan, that he appointed, he said, well, in his expert report that was submitted,

he said, I don't see how this special counsel was properly appointed under the Constitution or under these statutes. And the government – I love this part – the government said – actually, let me read it to you. Here's what Jack Smith said in the filing. It's actually in footnote three. Let me just pull it up here without fumbling around too much. He said the following. This is a directly at Ed Meese. Trump fails to acknowledge that as Attorney General Meese relied on the very same statutory provisions when he issued a Department of Justice regulation appointing the Iran-Contra Independent Council. As described in that case, Mies promulgated a regulation in 1987 to make certain that

the Iran-Contra Independent Council could undertake the necessary investigative and appropriate legal proceedings in a timely manner. Notwithstanding this history, the footnote concludes, Meese now appears to take the position that the very statutory provision on which he relied in 1987 does not authorize the appointment of the special counsel today. I love when they catch him in that. I mean, that's the reality. This special counsel was appointed pursuant to the very same process

and procedure as every special counsel before him, whether they call them independent counsel or special prosecutor. And they rely on case law dating back just to remind Judge Chutkin, because she has her own bosses. There is a leading case in 2019 with her bosses at the DC Court of Appeals called Inray Grand Jury in which the special counsel appointment process was confirmed and they declared, and it is the governing law in that jurisdiction for Judge Judkin, that the special counsel is an inferior officer as that term is used under Article 2 of the Constitution. Shut the book! End it! It's a wrap! That's the argument. And the Supreme Court reaffirmed that in the U.S. versus Nixon decision in 1974. As to funding, that's an even easier

argument. That's why this thing was 18 pages long. In funding, there has been, since 1987, an indefinite appropriation of funds for anyone occupying the position of special counsel. There can be multiple special counsels all at the same time. We've had three at one time right now. Robert Herr overlapped with Jack Smith, who overlapped with the guy going after Hunter Biden. And so in 1987, the background to that is Congress had an independent council statute after Ken Starr went after Bill Clinton, so infamously now, trying to investigate about a failed real estate deal called Whitewater and end up investigating him and prosecuting him for having an affair

with Monica Lewinsky, or whatever that was. Both Republicans and Democrats said, let's scrap the independent counsel role, but they kept the funding on the books. They kept the funding, indefinite funding to be used by the Department of Justice for all special counsels in the future. And that's exactly where they've been getting the money from. That includes Trump's special counsels, Mueller and Durham and everybody else. So to say, oh, we don't know where he's getting his money from.

Oh, he spent $36 million. Who cares? It's only $36 million because they've got the burden of proof and they have hundreds and hundreds and hundreds of witnesses to have to make their way through. Tens of thousands, millions of pages of documents starting with the Jan 6 committee work and their own independent investigation. And half of that went for security to make sure Jack Smith doesn't get mortally wounded along with his team.

That's what happens when you got an out of control criminal defendant who's constantly attacking and putting crosshairs on the back of the FBI investigators, attorneys, and the judges. This is, as I said last week, just as a follow-up, this motion by Donald Trump late by a year, right, based on the wrong law, ignoring precedent in the D.C. Court of Appeals, at the United States Supreme Court, ignoring funding language that's been on the books since 1987, allowing for it, totally flipping on their head their own expert Ed Meese, who got indicted for his own criminal activity, but when he was Attorney General used the very same appointment provision to appoint his special counsels for Iran-Contra. This motion is going to lose. Judge

Chutkin is going to deny it. She may, I think she does it the way that Jack Smith's proposing it. She says you're late, you're late, you're late. You're late by a year. You waived it. You waived your argument. You waived your argument. You waived it at the DC Court of Appeals when the issue came up and you said pass, and you waived it at the United States Supreme Court when they did the same thing. And as to your funding argument, you fair no better. On waiver. But even if I wasn't going to waive, I would still rule against you so that she nails the coffin shut and then they can go take it up on appeal. Because everything is going back to the United States Supreme Court. That's why I want to manage

expectations. Her ruling about any of these dismissals, her ruling eventually, and it's going to come right after the election about whether the superseding indictment survives the immunity decision by the United States Supreme Court is going back to the United States Supreme Court. It's going to be a 2025 event. It doesn't matter who wins the election. It matters to you and me, but it doesn't matter to them. This will continue to be litigated to make the law that it needs to make all the way through 2025 and maybe a little bit beyond. There are cases in the Nixon era, the last criminal president that we had, that went on for years with his name on it, all the way to like 1980, right?

It went into the late 80s. Case law after case law after case law with Nixon's name on it, same thing with Trump. We're not going to get rid of him that easy even if he's defeated and crushed on Tuesday. He's still going to be making law in a hundred books with his name on it for a long time into the future. You know where you can figure all that out? On Legal AF, we sit at the intersection of law and politics, we do it on the Midas Touch Network.

And we're so excited, so excited right before election day that we decided to open up a new channel, a new channel to talk about law and politics. We call it Legal AF, what else would we call it? It's over on the YouTube channel, and you can find it easily. Our handle is at Legal AF MTTN from MidasTouch Network. The chief curator there, I'm doing some amazing new work

exclusively for that channel, bringing on some interesting collaborators and contributors there. Come on over, free subscribe, help us build that pro-democracy channel as well. So until my next hot take, my next Legal AF the podcast or over there on Legal AF of the YouTube channel, I'm Michael Popock and I am reporting. In collaboration with the Midas Touch Network, we just launched the Legal AF YouTube channel. Help us build this pro-democracy

channel where I'll be curating the top stories, the intersection of law and politics. Go to YouTube now and free subscribe at LegalAFMTN. That's at LegalAFMTN.