Legal AF by MeidasTouch - Ex-President Prosecution Predictions

Episode Date: April 7, 2022

The midweek edition of LegalAF x MeidasTouch, the top-rated podcast covering law and politics, is anchored by national trial attorney and strategist, Michael Popok and former prosecutor and leading criminal defense attorney Karen Friedman Agnifilo. On this week’s episode, they discuss: (a) SCOTUS’ landmark 6-3 decision this week in Thompson v. Clark finding that a person has a 4 th Amendment right against being falsely arrested or prosecuted; (b) the uptick in the pace of the DOJ’s criminal prosecution of Trump and those involved in the Big Lie; and (c) an update in the Ketanji Brown Jackson SCOTUS confirmation process. Special Bonus: KFA and Popok preview their guest for next week’s show, attorney superstar Robbie Kaplan and the first federal constitutional challenge against Florida’s Don’t Say Gay law just filed by her law firm. Follow Legal AF on Twitter: Legal AF: https://twitter.com/MTLegalAF Karen Friedman Agnifilo: https://twitter.com/kfalegal Michael Popok: https://twitter.com/mspopok Remember to subscribe to ALL the Meidas Media Podcasts: MeidasTouch: https://pod.link/1510240831 Legal AF: https://pod.link/1580828595 The PoliticsGirl Podcast: https://pod.link/1595408601 The Influence Continuum: https://pod.link/1603773245 Kremlin File: https://pod.link/1575837599 Mea Culpa with Michael Cohen: https://pod.link/1530639447 Zoomed In: https://pod.link/1580828633 The Weekend Show: https://pod.link/1612691018 Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to Legal AF Midweek edition with your host Michael Popak. We're Karen Friedman Agnifalo. And tonight on this 30-minute podcast, we're going to cover these topics one, the Supreme Court of the United States landmark civil rights and pro-defense ruling this week in Thompson versus Clark, settling that burning question, can a police officer and a prosecutor who frames an innocent person, be sued under the fourth amendment? And the answer to that is now yes,

in a six to three decision by the Supreme Court, written by Justice Kavanaugh of all people. Number two, we're gonna update our listeners and followers on the next steps in the prosecution of Donald Trump with Biden leaning on America, Ireland, a new DC grand jury being impeannelt and subpoenaing witnesses. And the question that we're all wondering whether the Janssick's committee will even bother making a criminal referral concerning Donald Trump or have they

done what they're going to do with the filing in the Eastman case related to those emails. And three, we're going to have an update on the confirmation process for our latest and greatest justice of the Supreme Court, Katangi Brown-Jackson, now that a procedural vote has happened moving it out of the committee phase and onto a full, a full, floor Senate vote later this week. And then lastly, as an extra, well, it's appropriate Easter egg. We're gonna do a little preview of a rock star VIP guest. Our first on midweek edition of LegalAof,

that Karen and I are gonna interview and spend some time with next week, Robbie Kaplan. And for those that don't know, she is lawyer and warrior extraordinaire, a public interest trial lawyer rock star if might as touch ever gets around to making action figures. Robbie Kaplan is going to be one of the first among them. She is Superman or super person to Donald Trump's Lex Luthor. She has sued him in every and one in various cases, including for E. Jean Carroll. She also represented the victims of Charlottesville against the 26 neo-Nazis and one there. And we're

going to talk about her latest case, which is the first federal case against. Don't say gay, the the horrendous law in Florida. Who brought the case? Robbie Kaplan and her law firm were going to talk all about it next week when Robbie's with us. But let's kick it off with a little bit of a kind of a follow up where you're at, how you feeling? Karen, how you doing? I'm okay. I'm a little stressed out. My husband has a jury out right now and that's always a really, really stressful time. How long have they been out?

They just got the case today, but it's nerve-wracking because he's somebody who we are absolutely convinced is innocent and that's a lot of pressure. So to try to distract myself this morning, I was listening to the Brothers podcast where they interviewed the mooch as they call them, call him, I should say, uh, Scaramucci. And what an interesting fascinating guy. I mean, really, really interesting. But I have a prediction that I'm going to make here on legal AF mid midweek edition. We're breaking news. What is it? Breaking gossip. I wouldn't call it breaking news. I predict that Ben, my cellist, is going to run for office. I've worked for enough politicians and enough people who run for office that I see it happening.

It was so clear to me today that I thought, am I the last of this party? Is everybody know this but me? But apparently. This stays in the pod. I'm not producers, I'm not allowing Ben to edit out this prediction that one day Ben, my Salis, will win National Office, local office. National, I predict I predict the House of Representatives. That's it's just again, it's very clear

to me that that's where he's headed. It's definitely national and he's he's of the people. He's a grassroots kind of guy. That's why I see him in the house. I just got butterflies thinking of the steel cage match, Thunderdome, Marjorie Taylor green versus representative Ben Mysalis on the floor of the house. I mean, I got out of what's beyond goosebumps. That would be amazing. I hope I never lose them as a co-anchor, though. That would be, I guess you could still do the co-anchor. They all do. They all do their own podcasts. Why not? All right. Well, I like that prediction. And let's talk about other things that we're going to predict in the law. Let's start off with the fourth amendment, which is the to remind our legal AF law school students here on our make believe law school that we do twice a week.

The fourth amendment is a protection that is in place in the Constitution, a constitutional right against illegal searches and seizures and how to to come up in the case of Thompson versus Clark. Well, and first I want to do a shout out to the Midas mighty for adding this to basically our mail back, because they actually caught it before I caught it. And another shout out to the MacArthur Justice Center in Chicago, a leading public public interest law firm who brought the case, their lawyer argued the case successfully in front of the Supreme Court. And we now have new jurisprudence in the Supreme Court, which is,

if you're the victim of a trumped up case brought by the prosecution and the police, or either one, you will have a fourth amendment violation case. It's hard to believe that that wasn't a fourth amendment violation case before Monday of this week. Terren, let's start by putting that great prosecutors hat on of yours and talk about this wasn't through your office, right?

No, this is... Okay. So in Brooklyn, do you know the facts well enough to lay them out and then you can talk about the prosecution side? Yeah, so this is a case where Mr. Thompson was living with his now wife, I think it was his partner at the time, and they had a newborn baby and his sister-in-law had mental health issues and called 911 reporting abuse, like child abuse of their newborn.

The police come to the door and they try to talk to him. He says, nobody called 911 here. He refused to let them in. They go back and they get EMTs, you know, emergency medical technicians. They go in and they take the baby. They see there's redness they go in and they take the baby, they see there's redness on the baby and they take the baby to the hospital. And they arrest him for two crimes, one called obstruction of governmental administration

and the other resisting arrest. And obstruction of governmental administration, just for, is basically when you when you you try to prevent a government from doing something that they are normally doing. And it's that's what's often charged in protest cases where people chain themselves to a tree and won't leave, you know, it's sort of those types of situations where you're disobeying a lawful command and resisting arrests is just what it sounds like. You're actively resisting being arrested. So they arrest him. He spends two days in jail.

He's detained for two days. And then in the case proceeds, then he's released by a judge and then the case proceeds as a case proceeds. And during the course of the pendency of the case, the medical community decided that there's no evidence of child abuse, it was a diaper rash and that the sister-in-law called 911, she has mental health issues and there's no case here. And the prosecutor dismissed the case.

And the way a case gets dismissed by a prosecutor is could be one of any number of ways. It could be that they go to court and they make a long record of dismissal. It could just be that they stand up and court and say, the people move to dismiss this case because we can't prove it. It could just be, they let it die on the vine.

And it just gets dismissed because they don't meet their statutory speedy trial obligation So cases get dismissed any number of ways there's no sort of standard way But but there's certainly and this is a significant point for for the analysis in this case There's there is no requirement for a prosecutor to put on the record their findings and whether or not they believe the person on the record their findings and whether or not they believe the person was innocent or guilty or whether they're doing it because it's the right thing to do or because the person didn't do it or because there's some kind of the police acted badly. I mean, there could be any number of reasons why a case gets dismissed and one of them could just be prosecutorial resources.

We're going to use our discretion. But only one of those is that the individual is innocent of the crime. And sometimes that's put on the record. And sometimes that's not. It's really kind of a fortuitous thing to have that put on the record. So those are sort of the salient facts

that went into the Supreme Court's analysis here. And I'm curious to hear your thoughts of the analysis. And, you know, so the case gets dismissed. And Mr. Thompson wants to bring a civil case against the police department and against the government saying there was malicious prosecution and they brought it under 42 United States code section 1980. For the moment, just interrupt for a minute. So the prosecutor likely did nothing wrong. But the police in trumping up and creating the fall, the resisting arrest and obstruction of justice arrest and obstruction of justice or performance in response to his objecting to the warrantless

search of his home under the Fourth Amendment. Retaliation for that is Kavanaugh put it, is the crux of the case, right? It's not that the prosecutor went an adult finally got the file when you used to be that adult and said, yeah, I'm not prosecuting diaper rash and I'm going to, and anything that related to that, I'm not doing that, totally understandable, but isn't the actual focus for Kavanaugh in his recitation of the facts, it's hard to believe I'm making Kavanaugh out to be the great protector of the criminal

defendant, especially on the heels of what they just did to Katanjee Brown Jackson. I don't know if you saw Marjorie Taylor Greene today, a vote for Katanjee Brown Jackson is a vote for for pedophilia. I mean, this is where that by the way, by the way, she doesn't have a vote. She's a congresswoman. She's not a senator. But leaving that aside for moments, but you know what, that's straight out of the QAnon playbook. What is it with them with the, the pedophiles? I know. They think we, they think we eat babies. But they have some obsession with pedophiles. Like, you can disagree with, with people, but this,, but to take it as far as everyone's a pedophile, and it's just, I never understand that. Yeah, it's horrible.

Well, speaking of strange bedfellows, terrible transition, the amicus briefs, the friend of the court's briefs that were filed in this case, I don't know if you caught this in the reporting. One was by an anti-LGPTQ organization who's in favor of homeschooling, a very conservative Christian, you know, they call themselves a Christian entity, and of course the ACLU,

which they're almost never on the same side. But what brought them together in all agreeing that what happened to Mr. Thompson is a fourth amendment violation because the right, right wing Christian at home school community has been subjected in their view to unwarranted welfare checks at the house to see how the kids are doing and while they're there on these welfare checks, they think they've been subjected or persecuted by it. And so they don't like knock on the door, hi, we're just here to check on the baby or the children,

because I think that leads to a bad place. So they jumped on board with the ACLU to support Mr. Thompson and to have established a fourth amendment right. The weird thing about the decision was not necessarily that six votes, including Kavanaugh and Roberts joining, joining, and Amy Coney Barrett. And I think this homeschooling thing picked up Amy Coney Barrett and her vote because she's into homeschooling.

So that's like a religious thing. So that was the six, the three, you know, is the is the evil triumph for it of of Alito, Thomas, and and now Gorsuch always sort of joins along with that. And and they were a guest that Kavanaugh and the rest found a fourth amendment right against what they called malicious prosecution. They said, where? Where in the fourth amendment? I don't know. How about the phrase improper search and seizure? How about the word seizure in that context, judges? Justice says, I mean, I didn't think that was, that this was that hard in 2022. Yeah, it took us that long in juror in constitutional jurisprudence to get to that. But you started off talking, I talk about it, which I thought was very insightful about

on the prosecutor's side. But if a prosecutor did something terrible and decided to prosecute this case, what would your, what would your feeling be about that as a Fourth Amendment violation? Well, before I answered that question, I just want to pick up on something else that you were talking about. So first of all, as you pointed out, there was no arrest warrant or search warrant in this particular case. So the question is, how did the police go into the home

without a warrant? And the question, and I think the answer must be there was The question is how did the police go into the home without a warrant? And I think the answer must be there was accident circumstances. I don't know that the police did something. I actually felt for the police in this matter. You've got a 911 call saying that there's a baby that's in danger. And they have no idea if that's true or not. And then you've got a dad standing there saying,

no, I'm not letting you in to see what to check whether or not the baby's okay. I mean, what else are they supposed to do? I think they would claim its exigen circumstances they go in. And I actually sort of didn't think it was trumped up charges necessarily. Why did they send the EMT? Why did they send the ambulance guys on a 911 call? Why didn't they send the police at the beginning if there was a child in danger?

Because the EMTs are the ones who, I mean, the police aren't going to handle a newborn baby. I mean, if there's a child that's in danger of some sort, you know, that maybe their abuse, maybe their indistress, you need medical technicians. I mean, so I was not as sort of, I think the police could have gone in arresting Mr. Thompson. I thought took it a bridge too far. I thought that was a little much that they did that. And that seemed kind of like they were ticked off and wanted to get back at him. So that was one thing. But now to get to your question about the prosecution,

this is where, so I agreed with the majority's result. Absolutely. They you should be able to bring a case. So the issue here was, in order to do a malicious prosecution, do you have to prove that you are actually innocent? And in a particular matter, and there was a split in the circuits,

because it requires a favorable termination in order to bring a malicious prosecution claim. And so the circuits all came up with sort of different viewpoints as to what a favorable termination was. And most of them thought it meant that it had to end with a finding of innocence. And so I agreed very much with the result of the majority opinion, which was that it makes no sense. I mean, as I was describing in the beginning, it's basically your, your, your lucky if you get a prosecutor, you know, it's, and it reverse incentivizes sort of people to bring,

you might have the weakest case of a prosecution. And that's why it gets dismissed. But because there was no finding on the record of innocence, because there was no evidence whatsoever, you can't bring this case. Whereas you have a stronger case, but there's an acquittal after trial. And that's when you can bring a malicious prosecution case. I mean, it's sort of reverse, it's sort of a perverse, it creates a perverse

result. So I did agree with the, with the, um, result of the majority opinion, but I found it hard to follow because I don't see it as easily in the fourth amendment as you see it. You know, it's interesting when, when, when the descent called it a, you know, cited Homer and the chimera of the goat snake. Money or whatever that thing is, you know, that's what it felt like to me of a decision. You know, it just seemed like you want the right result. Of course, you shouldn't have to prove actual innocence. But I kind of thought this is more of a false arrest, not malicious prosecution case because you shouldn't have to require like,

there could be instances where there is no seizure, you know, he happened to just be arrested and and detained for two days, but you have, you know, they they gave an example, I think which I thought was a good one of a white color defendant who who surrenders himself and never spends a second in custody and they're never seized, but they're prosecuted, You know, you shouldn't have to require this, this sort of, you know, fitting it into the Fourth Amendment search and seizure scenario, but I do agree with the result. I agree with the result. I think the argument is that seizure takes many forms when the state is involved. And it's not just, yes, obviously it's when you're

cuffed and taken away or when you're detained in a certain way, that could be a seizure as well. But, you know, they've extended the seizure here. Look, you sound a little bit like Alito Thomas corsage. Where is it in the Fourth Amendment? I mean, listen, the good news is regardless of the facts of this case, which people can debate about exigent circumstances and whether the diaper rash was enough to rest the guy, you know, all of that. But putting that all of side, and as we know from lawyers and that argue cases, when the case of,

this particular case is cited again, and we argue it in court, we're not gonna get it. Yes, there'll be some, well, it was this, but not that. There is now a pronouncement at the Supreme Court level that now establishes all the things that you just said about when Fourth Amendment against search and seizure will encapsulate malicious prosecution and when it won't.

And that's good. I have a question for you. That's a good, sure. Give me an answer. I'm sure you do. So split in the circuits, right? So this particular circuit where this case was brought was one of the circuits that held that you needed a finding of innocence in order to

bring the case. So I presumably there are tons of other cases who who decided that and dismissed cases right before this, you know, that was still within the statute of limitations. Can those cases now be brought if it's within the statute of limitations? In other words, if a case was, was brought and dismissed because there was binding second. Okay. nodding. No, I think this revives previously to smist cases under the jurisprudence at that time, because the jurisprudence has now changed. And as you as you rightly noted, if the statute of limitation, the interesting thing is, I think those are definitely revived. If the statute of limitations run through no fault of your own and the law changes, I think you're out of luck. That's sort of my. That would upset me so much if I was.

I think you're out of luck because it's very hard. Courts are almost, are almost powerless to extend or run a time machine with stature limitations. I've been involved with stature limitations fights where the court says, you know, I would love to do this, but you know, your clients three days late and there's nothing, and I understand the reason and the exercise. But these plans weren't like the judge just wasn't, so really quick, I have one more prediction in this case.

Mr. Thompson is gonna ultimately still lose because the judge, because what the court said, yes, you can bring a case, but you still have to prove there was no probable cause here. And that the qualified immunity does not apply. And I do think that there was probable cause because don't forget, this wasn't about the diaper rash. This was about, you know, was he resisting arrest? Was he not allowing them in? Was the circumstances exgen, I think a court is going to find there was probable cause and we'll also say that the officers had qualified immunity. So I think in the end, it's going to be

one of those those victories that are, you know, it's a constitutional victory like like what happened to Miranda after they established Miranda rights? I don't know. I mean, was it was it good or bad for him who really knows, except for the family, but the reality is we have a body of law with his name on it. Yeah. And I think I think that's where we are now.

So let's move on to a lighter topic. We're going to have a new Supreme Court justice. That's basically guaranteed. It's going to be to the extent that you can call three Republicans voting for it by partisan. It's going to be bipartisan. Let me just bring us up to speed. to the extent that you can call three Republicans voting for it by partisan. It's going to be bipartisan. Let me just bring us up to speed and then you can talk about what you've, what you've researched

and what you've read so far. So as we've outlined, I think you and I did it four or five podcasts ago. The Senate Judiciary Committee, which is responsible for vetting this, is 22 members 11 on each side. People might say, well, what happens when there's a tie? Well, I'll tell you because that's what's happened this past week. None of the Republicans crossed the aisle and voted for her in the committee, not Lindsey Graham and all the rest of them. None of them did. Ted Cruz, you know, all the rest. Now what they didn't do,

frankly, it's a remind people what the Democrats did to object to Amy Coney Barrett's fast-track 36-day process to cram her in, you know, before the election is that they walked out, like the 11 members of the Democrat mayor. they didn't vote at all. They were in absentia. So the Republicans didn't do that. They just didn't vote for her. So how do you break an 11, 11 tie? There's a procedural vote that is brought to the House floor,

not voting to confirm her, that's where it gets a little confusing, but voting to take her out of her nomination out of committee. And three Republicans, Susan Collins, Mitt Romney, and Lisa Murkowski from Alaska, crossed the aisle and said, we like her. We interviewed her. She's made, Romney said she's mainstream. Murkowski said, look what she would, look, look,

look at the grace under fire that she just went through in that process. I'm voting for and Collins the same thing. Now the real vote of the whole Senate, this was a vote of the Senate, but the on her nomination thumbs up or thumbs down is going to probably be later this week. And I don't think I don't think unless you do, she's going to pick up another Republican vote other than those three. What do you think?

I probably not. And it doesn't seem like it. I mean, this one really killed me because as you point it out earlier, this is where Marjorie Taylor-Green tweeted basically that Murkowski Collins and Romney are pro pedophile for voting that case out. And that just I couldn't and then cruise and Holly and and Roy Blunt sort of went on a smear campaign. I mean, it's just gotten so ugly and so political that I found this really disgraceful and I was so happy that she's getting past this, but I'm just so disappointed in where we are and what's happened. So I don't think there's any going back. I think that toothpaste is fully out of the tube. And we are not going to go back to the, you know, 90, 10 votes in favor of our Supreme Court justice, even if it's not of your party, because it's the

right and diplomatic and statesman thing, statesperson thing to do. I mean, Lindsey Graham, Lindsey Graham, who I take back so several episodes ago when he, when he supported Michelle Childs, I said, I know, I said that he's my new favorite person. I take that back time to a thousand. I wish I had never said that. I am so disappointed in Lindsey Graham. I mean, Lindsey Graham, he voted for her less than a year ago when she was confirmed for the DC circuit. I mean, it was not disappointed

in Lindsey Graham. Lindsey Graham. This is exactly when they rejected Michelle Childs from his great state of South Carolina, which I'm not even sure he was really going to support her, but he said he was. Once that was over, he was never going to support and he was going to vilify anybody else that got picked. What did he say today, Karen? He said something along the lines of, if we were in control, this is like a dog, if we were in control of the of the Senate, she wouldn't even be, well, no, no shit. Lindsay, we know shit sure a lot. no shit. Um, Lindsey, we know shit, Sherlock. Thank you. We, we, we understand that this is not the type of candidate that a Republican, whatever

put up, we, we see your candidates. They're all, we see Kavanaugh, our corsage and Amy Coney Barron and Thomas before them. We know what they're responsible for. So for our listeners and followers who know that we do the show through a progressive democratic lens. And I know some people who hit some trolls occasionally that are like, oh, these were all just woke. This is like a woke safe space. I'm out. Like, I don't, I don't even know what that means. But okay, that may be true. However, I, I long for the days, except for Clarence Thomas, because he had a lot of problems in his confirmation process because he had a lot of problems as a human being. But everybody else all pulled together

before this last 10 year era. And the votes were what you would think, you know, Ruth Bader Ginsburg. Yeah, there were 20 people on the Senate that voted against him, which had like 80 votes in her favor, you know, um, Briar, Souter before, I mean, you name until we got to, uh, George W Bush and, and chain, but Lindsey Graham was one of those Republicans who prided himself on somebody who would still vote for someone who's qualified. And he, he's, he's singed ever since, Kavanaugh ever since he, Lindsey Graham had a meltdown when Kavanaugh and they brought in Dr. Blaney and all the women who said he was a terrible person in college and a latch at a sex of salt, you know, perpetrator and all of that.

all of that. You know, you don't know if you remember, Lindsey Graham had a literal meltdown on the Senate floor, almost crying about, and a cabinet was doing his own crying, but Lindsey Graham was like literally crying over how mistreated he thought cabinet was, and he's never recovered. Well, anyway, this is the, the Republicans, you've got the Q and on, you know, pro, she's a pro pedophile Republicans, but then you've also got the, she's qualified but Republicans, you know, and they twisted into some kind of, she's an activist judge, you know,

she's qualified but she is not an originalism textual, you know, the qualified but people. So they're all gonna figure out a way to somehow not vote for her, but they all have their version of how they're going to, how they're going to take it. You know what they want to say. What do they want to say after, but she's black. I know.

Well, I know exactly. She's a black Democrat and they're not going to, doesn't matter. If Katangi Brown Jackson doesn't show the world, that it does not matter what your credentials are. It doesn't matter what your personal values are, your personal success. You can go to the right schools. You can be top of your class, not through affirmative action, through hard work, and dint of perseverance, you can come from a great family who's also has achieved a great success

in their home city of Miami. You can do all of that, but if you happen to be named Katanji, you're never gonna get a Republican's vote. And I, you know, I'm okay with my friend. I have friends that are Republican, of course. And I'm okay with that. But just like they try to make me accept the radical left wing of my party, they have to accept what their party is all about. And what a vote in there, forget about a vote for her as a vote for pedophile. A vote for Republicans is a vote to perpetuate what we just saw happen to the honorable and

graceful and talented Tatanshi Brown Jackson, which never should have happened under any circumstance. And it's not the same to answer Lindsey Graham rhetorically. It is not the same. Back to the Brothers podcast where they interviewed Anthony Scaramucci, the Mooch, you know, I did not appreciate how smart he is and how thoughtful he is. When he worked for Trump for whatever it was 11 days or however short of time it was, I just thought he was a clown like like the rest of them. It's worth watching, it's worth listening to, and his take on the racism in the Republican Party and how they just, how blatantly racist they are and all the different places where it is.

I thought it was, it's worth listening to. And it was very, very interesting hearing from his perspective, but it's exactly what you just said. It's because she's black. Yeah. So speaking of people that should be prosecuted, see, that was a good segue. Let's talk about Donald Trump. Now, last week on the podcast, you came out of the box.

Another one, this is like every week there's a there's a KFA prediction. Today it was the shocking one that Ben will be heading to, you know, it'll be Mr. Myceles goes to Washington, which I'm sure everybody we'd be proud of. And last week it was, I think the Southern District of New York office of the U.S. Attorney's Office is going to prosecute Trump now. But we've learned since or right around the same time as you made that prediction that we didn't know before and as reported by the Washington Post in New York Times, there has been a grand jury and panel did Washington DC focused on two major tranches of attack on Trump or or or avenues of investigation. One of them has to do with the fake electors, all those electors that were like the altered it slate of electors that they sign and sealed

and these morons sent to the national archives as being the slate of electors from Michigan, from all the battleground states. That's probably a prime. You're not, I'm just guessing here with my experience that creating a fake government document saying that you are the authorized elector from your state and sending it to the National Archive with a cover letter that says you are might be a crime. So that's one thing that the DC criminal grand jury is investigating.

And that so-go reports based on people that have gone into the grand jury. And the second thing that they're investigating is everything about the planning around the stop the steel around the ellipse, which is where all of the politicians like Trump gave their speeches before Trump took the loaded weapon that was that mob scene and pointed it at the Capitol and said, go get them. See you there, folks, and then head it back to the White House. So they're looking at the planning, the organizing, how high up it goes, the VIPs.

There were VIPs there. I assume with special arm bands and lanyards, they're looking at the VIPs. Backstage access to Trump about how close can they get to Mark Meadows, the Trump campaign and Donald Trump himself in this investigation. So you got that. That's new news. And the news now coming out of the Department of Justice is that they are substantially expanding their criminal investigation, not starting a criminal investigation, which a lot of our listeners and followers and some trolls who got who got upset like they're not because if they were really of Merrick Garland was doing a job, we'd know about it.

I don't know why I use that voice for Mer Eric Carlin, but reality is there is an investigation. Lisa Monaco said there was two months ago, if you listen closely, Lisa Monaco, the number two under under in the Department of Justice under the deputy attorney general under Eric Carlin said they are opening an investigation about the fake electors. We knew that. And now they're doing the ellipse, which gets them into the ambit of Trump. That's one. Second, you've got the Jan 6th committee, which is basically getting frustrated with the Department of Justice.

And now that I've heard them come out and say like Jamie Raskin and others come out and say, we may not even make a criminal referral because what is it matter if we make a criminal referral department Justice should do their job. Now, when I think back to what they filed in the Eastman case about his emails, in which they laid out the crime fraud exception, they laid out the crime that Donald Trump committed and got Judge Carter last week to adopt that brief in its entirety to declare for the first time in 230 years by a federal judge that a sitting president committed crime more likely than not. That was basically a love poem from the Jansick's committee to Merrick Arlen. Hello, are you listening? Here's our best case laid out for you? Why don't you do something with it?

So I have a question for you. As a prosecutor, do you think it hurts the Department of Justice taking up the prosecution of Donald Trump with the Jan 6th Committee makes a referral? 100% or it helps. Good. Good. I agree with you, but I want to hear why. So first of all, this whole concept of making a referral is not even a thing.

The only referral I even remember as a prosecutor was we would have to get referrals from the state tax department because tax records, as we know, from Donald Trump, are confidential. And so in order to prosecute a tax case, you would have to get a referral from them so that they are saying we found a crime and we will give you over these tax returns. Tax returns are very hard to get if you're a prosecutor. That's the only time I know of where you need a referral. I know of cases that were brought by prosecutors because they read a newspaper article. I know of cases that were brought because they talked to a police officer because someone made an arrest because someone came in and talked about a crime. Why is it bad? Why is it referral here,

bad? So, okay, so the point is that's not even a thing. So you don't need it. The referral here is bad because it infuses politics into prosecution and that's, I would say it infects. Politics will infect a prosecution. That's the death knelt to prosecution and that's when I get frustrated when people would say was the, is the Donald Trump a political, is it a political prosecution? Because the minute you make it political, then it's no longer about following the facts and following the truth. And that's why people are frustrated with Merrick Garland because he is, you know, he's, he's quoting what all prosecutors say and what I used to say and people would say, which is I'm following the facts. It's about the rule of law. I'm following the evidence no matter where it leaves. I wouldn't no matter where it leads. I wouldn't no matter where it leads.

I don't have any agenda in mind. I'm literally just doing an investigation. The minute you have a Republican, I'm sorry, the minute you have a Democratic House of Representatives committee making a referral, it infuses politics into a prosecution that is supposed to be justice is actually blind and needs to be and should be. And I know there's a lot of people who are going to criticize me for saying all these things

and tell me that it's not true and that there's that that prosecutions filled with politics. And yes, I understand that, but it is that it is to be avoided at all costs. And I know that the line prosecutors who do their job every single day, yes, prosecutors are elected. And so there is an element of politics to their job, but the career prosecutors who who work for the elected prosecutors pride themselves on prosecuting without fear or favor without politics and justice is blind. And I will say to in the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department of Justice, and I will say to the Department is blind and and I will say too in the Department of Justice those are not elected and And you've got Ashley Biden, who's being, who's cases being investigated, because she's a victim of, of diary theft. And Biden has nothing to do with those cases. You keep them separate. I, I remember when Prit Burrara, who was the United States attorney for the Southern District of New York under Obama, Trump actually initially asked him to stay. And he thought, okay, you know, I would love to stay in my job. And that says something to me

that and signal something to me that he wants that. That lasted about five minutes. Trump wanted to be able to call him directly and have aligned to him. And you know, this is all over Preet's podcast that I would listen to. And he wouldn't take his calls because you can't bring politics or the president into into prosecutions. And one other, just one other case I want to bring up that reminded me of this, when politics gets involved, whether it's the appearance of impropriety or impropriety, is I remember when Bill Clinton ran into Loretta Lynch

on the tarmac, and they had a conversation. And all of a sudden from that, you know, chance encounter that the entire prosecution and investigation of Hillary Clinton was called into question and was called political because there was that appearance. And so you have to protect, you have to scrupulously protect the separation.

Even though Marricke Garland is a Biden appointee, he has to protect that separation between the president and Congress and everybody else who's political and they have to be a prosecutor and follow the facts. Yeah, it's hard because the Constitution doesn't even recognize that complete separation. There's three branches of government.

There's the judiciary which are the judges. There is the legislative branch, which is the house and the senate, and there is the executive branch, which is the president. And some people that are not in our field may think that the Department of Justice on the big organizational chart in the sky sits somewhere near the judiciary. It doesn't. It sits under the executive branch. And that's why the president is able to appoint and fire, the prosecutors. Now, you're right. Presidents like Biden, who respect

that historic separation and need and aren't like the Nixon's and the Trump's of the world who you know Nixon using Hoover in the FBI to do his bidding and his own department his own attorney general Mitchell who went to jail because of doing Nixon's bidding. Trump same thing with whoever he picked sessions wouldn't be his Marionette and that got him into trouble. Bill Barr was at the end at the critical moment when he when Trump really needed him to help overthrow the government and the transition of power. Barr said that that's a bridge too far. We're not doing that. So now here's a couple of interesting fact toys that have come out in the

last week around the Department of Justice. Lisa Monaco and presenting the budget asked for enough money to have 131 new line prosecutors hired by the Department of Justice and funded by the Department of Justice for the Jan 6 insurrection issues, including presumably about Trump. That's a big number. They had 131 people 14 months into the investigation. Yeah, but they made 775 arrests so far, and they're broadening this. I mean, you've got a lot of cases to prosecute. No, I'm not saying it's a bad number. I'm saying, look at the number. No, they've done, look, the numbers are 775 arrests, 280 convictions, and we're only 14 months since Jan 6th. So that's a lot, you know, that's a lot to accomplish.

But everyone, no one is going to rest in our audience, except for that small subset that listened to you and me on a regular basis. Most of them are like, you know, the country that they would live in is not the United States. If they think we'd have Trump already after 14 months being prosecuted. Now, there are, there is leaks coming out of the White House, and I can't believe, you know, that it's not intentional, where Biden has fumed, I'm sure he wants Garland to hear it, that Garland is acting like a ponderous judge instead of a muscular prosecutor. Because even though he was a prosecutor back in the day, he's meant a fair amount of time in the very rarefied air of being a federal circuit

judge in Washington. And we know what that is. And you and I sometimes joke about black robe disease, which is the disease that sitting judges get when they forget they were once lawyers and had clients. And now they get to be on Mount Olympus. So Biden is, you know, the three comments that came out attributed to Biden through anonymous sources were one, Biden believes that Trump continues to be a threat to

democracy. I think everybody who listens to this podcast or anchors this podcast agrees with that. Secondly, Biden, that, uh, Marik Arland is moving too slow. Where do you sit in the ponderous judge versus muscular prosecutor, given all the other things that have been done by the Department of Justice and not yet getting to the meadows, the Navarra, the Peter Navarro, the Trumps, the Trump kids at 14 months. Look, it's very frustrating, but it takes time. And to prosecute a case, well, takes time and he's Teflon Don and gets away with everything. And you got him, you know, it would be worse to rush it and then it doesn't stick.

It would be better to take the time and do what needs to be done and do it right. But, you know, I had a thought after our last podcast and it's as follows. You know, so in New York state when you can be in a grand jury, they there to bring charges against somebody. You have to have non hearsay. So live witnesses have to come before and testify about it. But there is no such requirement in the federal system. You can put hearsay in. And what are your, like what are the chances that the Southern District has called up Mark Pomeran's on the phone and said,

come testify in the grand jury and tell us everything you know, all of the evidence, all of the facts, and brings an indictment. What's, and what's stopping them from doing that? And I, maybe I'm a little too obsessed with why isn't the Southern District doing this case? And I recognize that, and hopefully they're not mad at me for saying this, but what would stop them from doing that? And that's, I'm sort of throwing that out there, hoping that that's happening behind the scenes, because you've got a case that took years to prosecute and to investigate, I should say, because that's what it takes. The time has, has happened, the work has been done. So now all you need to do is find a willing...

Or if it's not, on your, which I think is a very good and creative suggestion, if it's not pomeranous, because there's too many like third rails that have to get crossed for pomeranous to do that, what about Jamie Raskin? What about somebody in the JAN-6 community to come in and talk about in a Proffer in a summary witness format

giving a exposition of what they have found in their 700, speaking of 700, 7 to 800 interviews that they have that they have had in the last, not even 14 months, because they started much later. Including, as we know, a deposition two days ago of Jared Kushner. And now Ivanka is going in. And supposedly, you know, according to people that saw that saw the Jared one that were on the committee, he did not take the fifth a lot. He was cooperative. So, um, yeah, I don't know. I did get a lot of reporting. I know they, it was yesterday. I saw a report in one of the many feeds that I read to prepare for these shows.

They said he was more cooperative than not cooperative. Look, he's got his own. Life and career and liberty to worry about. He already had his father go to jail. I mean, he doesn't, right? He doesn't need, supposedly the comment was when he was in Saudi Arabia during Jan 6th, conveniently not at the ellipse. He found a way to go to Saudi Arabia to handle some business for the government. The rumor is, or

the statement that he made was he did not want to come back and see his father-in-law because he knew he would be really angry and yelling and screaming. So I'm not sure how much love lost there is between those two but I think your prosecutor sense your spider sense about how to progress this by using the special the special powers of a federal grand jury to use hearsay and take all these people and have all this great hearsay. I've seen the evidence. So they're not precipiant witnesses. They don't, they don't know the facts from their firsthand knowledge and their five senses, but they know it the way a hearsay witness knows it from seeing it

or hearing it or repeating it from somewhere else. And people might say, ah, that's hearsay, but in the grand jury, federal side that Karen just described, that's okay. It's not okay ultimately after the indictment, but it's okay to get the indictment. Then you're going to be put to your proof, and the prosecutor's going to be put to their proof to be on a reasonable doubt. So that's very interesting. This is why I, you know, I don't just do this midweek podcast for the ratings. I do it because like you, I learned things on it, both preparing for it in talking about it beforehand with you and on the show in real time. I also learned things

and hopefully our audience does too. We've reached the end of another unfortunately, of another midweek edition of Legal A app with Michael Popak and Karen Friedman Agnifalo. This is going live tonight. It'll end up on all the places that you pull your podcasts from. It'll be on YouTube, all on the Midas Touch Network, which is also the home of Mayacolpa, Michael Cohen, the Politics Girl, and of course, the Midas Touch podcast, which I think go on twice a week. And every Saturday, we do it a long gated version of legal AF with soon to be Congress

person Ben Micellus, Ben goes to Washington according to Karen. And we're going to do that again, of course, as we always agree that I don't you. I don't disagree. I'm not ready to say Popeyes agrees. I don't disagree. First of all, I think he'd be fabulous at it. Whether he wants to do it, I don't know, but he certainly has the makings of somebody and has the chops to do it,

and we would be well served if he did. Ben, are you listening? You do, I know you. I hope he's not mad at me for this. No, he's not mad at you. Next week, we won't have Karen as the co-actor, not kidding. Exactly.

She'll be replaced by Robbie Kaplan, it'll be June. And as a reminder, a final reminder, as we sign off, we will have Rockstar legal legend, Robbie Kaplan, joined us to talk about her newly filed case that her law firm is brought in Florida in the northern district of Florida federal court against it's a constitutional challenge against the don't say gay law that the scientists has signed into into law.

I can't wait I can't wait for next week. It's gonna it's gonna be great I mean and she's not a lot of things but we're gonna we're gonna focus on that shout out to the mightest mighty and the legal aeifers in Karen it's it focus on that. Shout out to the Midas Mighty and the Legal A.F.ers in Karen. It's my special way to spend Wednesdays are with you. So I look forward to next week.