Legal AF by MeidasTouch - FED UP Jack Smith SHATTERS Judge Cannon’s Scheme

Episode Date: April 4, 2024

Defense attorney Michael Popok & former prosecutor Karen Friedman Agnifilo are back with a new episode of the midweek edition of the Legal AF pod. On this episode, they discuss/debate: (1) developments in the Manhattan DA prosecution of Trump including the new and improved gag order to stop Trump from attacking family members of the criminal justice system, Trump’s last minute attempt to have the Judge disqualified and removed, and Judge Merchan rejecting (again) Trump’s last minute attempt to have the indictment dismissed on immunity grounds, (2) Trump finding an odd bonding company to post his $175 million dollar bond in the NYAG civil fraud case, (3) what happens next in Florida with the new Florida Supreme Court ruling that allows a 6 week ban on abortion to go into effect, (4) Special Counsel Jack Smith telling Judge Cannon in Mar a Lago that she is committing clear reversible error if she allows Trump to use the Presidential Records Act as a defense to the Espionage Act and Obstruction criminal charges, and so much more at the intersection of law, politics, and justice. Head to https://www.fast-growing-trees.com/collections/sale?utm_source=podcast&utm_medium=description&utm_campaign=legalaf right now to get 15% off your entire order with code LegalAF! Upgrade your sleep with Miracle Made! Go to https://TryMiracle.com/LEGALAF and use the code LEGALAF to claim your FREE 3 PIECE TOWEL SET and SAVE over 40% OFF. Get up to 40% off for a limited time when you go to https://shopbeam.com/LEGALAF and use code LEGALAF at checkout! Lomi: Visit https://Lomi.com/LEGALAF and use code LEGALAF and checkout to save $50! Join us on 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 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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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Gambling problem, call 1-866-531-2600 or visit connectsontario.ca. Oh, there are just stories and developments at the intersection of law and politics we have to talk about at the midweek on Legal AF. We're gonna kick it off with the Manhattan District Attorney's Office and the developments there which are extraordinary as we lead into the April 15th trial date with Donald Trump

kicking and screaming to avoid the inevitable. This freight train is coming into the station on the 15th of April despite Donald Trump's acting out and is pulling the emergency brake at every chance. First we have an enhanced gag order that has been put in place because, of course, the judge and the Manhattan DA's office is concerned that Donald Trump is interfering with the administration of justice, is making people not want to be jurors, not want to be witnesses, maybe not even want to be judges on this case, because Donald Trump keeps attacking civilians, the

soft underbelly of the criminal justice system. In this case, family members like daughters who work. Apparently, the crime committed not by Donald Trump but by Judge Marchand's daughter is that she's employed. That's about it. And that gave Donald Trump free run and free rein to go after her and try to bash her, defame her and destabilize everything in Judge Marchand's life or at least try. But now we have an enhanced gag order related to family members expressly and some other warnings that can only come from a person wearing a black robe about criminal contempt and fines and maybe you won't know who the jurors are at all, Mr. Trump, if you keep acting out and don't show any self-restraint. And then we'll talk about the, we saw it coming, we talked about it,

I did a hot take on it two weeks ago or a week ago, the motion to recuse and remove Judge Mershon because, why? Because Donald Trump keeps talking about his daughter creating bad publicity for the case. And the daughter works for a Chicago based company that has a part of its client roster, Democratic causes like Adam Schiff running for the Senate, and she used to work for Kamala in some capacity in her company, but not her, did some work for the Biden campaign. And oh my god, Democrats are mentioning the fact that the leading candidate for office for the Republicans is indicted 91 times and is going to trial on April 15th as part of their fundraising. Shock! Oh my God. And that's grounds now to try for the second time in a year to get rid of Judge Mershon because he has an interest in the outcome of the case based on absolutely no

evidence, based on absolutely no sworn testimony, and no proper law. Other than that, what could go wrong? We'll talk about everything going right for the Manhattan DA as they get ready for the April 15th trial of Donald Trump for business record and election interference fraud. And then we'll turn, we'll stay in New York, but we'll turn to the New York Attorney General case. We already reported and talked about that the Appellate Division First Department, which is the appellate court, sits over all things Manhattan, all things Supreme Court trial level courts in Manhattan, civil and criminal, and they lowered the bond amount requirement from Donald Trump's having to post against the $465 million plus,

plus, plus running with interest, civil fraud judgment obtained by the people of the state of New York, by the New York attorney general, and lowered that bond requirement, that undertaking requirement to $175 million. Still a boatload of money, a shedload of money that has to be raised, but lower than the $465 million. Well, and we talked about, and we'll touch on it a little bit here again on the podcast just to square the circle, we talked about why potentially the appellate court did that. But in any event, Donald Trump had to post the bond or get a bonding company to do it and boy, should we not be shocked at all that he had to go to a subprime lender that only lends to people with no or low credit.

No, I'm not doing a car commercial for some sort of company like, no credit, low credit, you can get a car loan. I'm talking about Don Hanke. And some people, when I started talking about Mr. Hanke, thought I was talking about a Long Lost Simpsons episode. I'm not. Mr. Hanke lent Donald Trump the money or at least put up the bond. He made all of his money as the king of the subprime auto loans, charging usurious or close to it rates for people that can't get credit to give them a car. That's who Donald Trump went to because he had to go to another, a real billionaire who was not part of an insurance company or not part of a publicly traded company who could

just sign off on his own signature to issue the bond and probably took some real estate or real estate related assets as collateral to step in for him. But we got a new development with that bond, which we're going to talk about here. So all hope is not lost. The New York attorney general still might be able to go after assets before the appeal is over leading up to September. Then we're going to get out of New York, but stay with issues that matter, with all seriousness, especially on the ballot. Remember, we're at the intersection of law and politics. And so abortion is again a key issue for the Democrats and will be on the November 5th election. And it will be on the ballot in various

states, not just in the form of voting for a president who could put Supreme Court justices on, who could stem the damage or tamp down on the damage that happened with the Dobbs decision. But in each state, there's a privacy right embedded in most states' constitutions. Florida's Supreme Court, using the US Supreme Court's reversal of the Roe v. Wade decision, ripping away a woman's right to choose, which had been enshrined in the Constitution for more than 50 years in decision-making, using that decision, they decided that it's okay ultimately for Florida to go to a six-week ban. Because remember, Florida to go to a six-week ban because remember when Ron DeSantis, the governor, was trying to out-Trump Trump when he was running for office, spoiler alert, that didn't work out for Ron DeSantis, and he decided, oh, a 15-week? No, we'll go to six-week. The women of the state be damned.

And that's what he did. He passed a new, the legislature in Florida first said 15 weeks, then they went to six weeks and they wrote in, just in a very disgusting, immoral fashion, they wrote into their legislation that if the Florida Supreme Court gets around in the case that's in front of them to find that there is no right to privacy that governs a woman's abortion right. In other words, a woman's right to choose is not in the Florida privacy right in the Constitution. We're going to six weeks. That's what just happened in Florida. As of May 1, there'll be a six-week ban on a woman's right to choose in Florida. Except there's also a referendum that the Florida Supreme Court also approved, which is going up on

the ballot allowing the voters of the state of Florida to decide once and for all whether abortion by name expressly will be in the Florida Constitution up to, as this referendum is written, up to 24 weeks. And staying in Florida, to New York, to Florida, now we got to go return to Donald Trump. Jack Smith has fired his own cannon at Judge Cannon and has finally fired back at what we said was a completely nonsensical and showed a tremendous lack of judicial temperament and potential bias against the government in favor of Donald Trump by Judge Cannon in the way she decided to do this thought experiment to require the two sides, the Department of Justice Special Counsel's Office and Donald Trump to submit competing jury instructions based on a homework assignment by the judge that

demonstrated an utter lack of understanding of what the Espionage Act is and the law around it, what the Presidential Records Act is, and whether there's ever a defense to the Espionage Act or obstruction of justice because of the existence of something called the Presidential Records Act. And the fact that she gave that homework assignment is probably not only grounds for her reversal, but maybe grounds finally, finally, for her reassignment off the case by the 11th Circuit. We'll cover all of that, whatever else Karen Freeman, Rick Niflo and I can come up with, on the midweek edition of Legal AF, one place, the Midas Touch Network on this

YouTube channel, and then of course on audio podcast platforms of your choice. Oh, I'm winded. Karen, I love the new digs. Where are you? I'm in my new office. So I work with Donya Perry, who has been on the show before, and we have a new office and I'm sitting in the common area of the new office so you'll see people walking around behind me you

might hear some noises but I kind of wanted to show off my new office to everybody because I love it so. I wanted to show off my new hotel room. I'm traveling as some people know who follow me on Instagram or other places but I'm really happy to be here with you I can't wait to get over to that new office. For those that don't know, Karen and I practice in the same city. We're both, when we practice, we're both in New York, or resident in New York, and we're just one subway stop away from each other, and I'm going to come visit, and we're going to have lunch, you, me, and Danya at some point, probably the next week or two. And I want to, I want to, I don't know if we're supposed to like smash a champagne bottle against the front door

of your new office, but we'll come up with something to celebrate. And are you ready to talk about these matters at the intersection of law and politics today? You're ready to go, Pope. I know you are. All right, let's kick it off. Let's start with your old office.

We're so lucky to have you and you as my friend to talk about things about the Manhattan District Attorney's Office where you were for 30 years or so as the number two, you didn't start as the number two, but you ended up as the number two there and oftentimes the acting Manhattan District Attorney. So let's start with the gag order. I'll turn it over to you on the gag and then I can kick it off on the motion to recuse and then we can wrap up that segment.

Why don't you tell our audience what you found from a prosecutor standpoint about the first gag order, Donald Trump's violations of the first gag order, and then what Judge Mershawn did in the second gag order, and then that last piece. Why do you think Mershawn didn't include family members the first time around? Now that it's included, what do you think he does inevitably, invariably, when Donald Trump violates the second gag order? So I'm going to pronouncement right now on legal AF. I think Donald Trump has already violated the gag order. Okay. So, and I'll get to why I think he has, and I'm

talking about the new enhanced gag order that excludes family members, I think he has violated. So essentially, what I think is happening here is Donald Trump is baiting Judge Mershon. He wants him, he wants to get him to do something or say something that he can then go and get him recused off the case. That is what I think is happening here, and that is why Trump keeps going after Judge Marshawn's family member. Now, Donald Trump loves to go after the women in people's life and go after family members, whether it's Jack Smith's wife or whether it's the

Judge Angoran's law clerk. It's like he's trying to get under someone else's skin, right? Because there's no basis to go after these people who truly aren't public figures and have nothing to do. They're just doing their job or they're just being married to somebody. I mean, it makes no sense. And he's doing the same thing to Judge Mershan with his daughter. And, you know, they're just doing their job or they're just being married to somebody. I mean, it makes no sense. And he's doing the same thing to judge Mershon with his daughter. And, you know, as you said in the opening, his daughter works for works for a group that consults, provides political consulting to Democratic candidates and causes. But there's nothing about her that needs to be talked about

or said in any way. This is the adult daughter of Judge Mershon that he's talking about, right? And obviously, you can't necessarily impart anything about a person's family member, right? Just because you have a family member that does or says or believes something. It has nothing to do with with the the parent or the sibling or whoever, right? And look, Donald Trump has a family member marry Trump, you know, they couldn't be more opposite, right? But yet somehow he calls out other people and their family members. So the first gag order, the first limited gag order talked about family members, but was not clear that it referred to the judge's family members at all.

I think the reason it was inartfully drafted and unclear is because in the history of defendants, I can't think of a single one that's ever gone after a family member or an adult daughter, or if they did, the minute the judge said back off, knock it off, cut it out, that they didn't stop. So I just think this is an unprecedented thing that Donald Trump is doing that wouldn't be acceptable in any form, in any courtroom, in any case in this country.

Because he is doing this unprecedented thing, I think it was inartfully drafted. Okay, what happens next? Alvin Bragg, the Manhattan DA, makes a plea to the judge to say, can you clarify? Does this apply to family members? Because Donald Trump just went after your adult daughter, right? There's no doubt about it. It was a few hours after the limited gag order was imposed.

Donald Trump posts on Truth Social information about Judge Mershon's daughter, names her and accuses her of being biased, et cetera. And Alvin Bragg did exactly what they were supposed to do, which is bring a motion before the court to say, there's been a violation, or clarify whether there's been a violation, but we wanna bring this to your attention

and make it part of the record, right? Because you have to make it part of the court record, especially if you're going to use it as an escalating pattern of behavior ultimately if he continues. So otherwise it's an extra judicial thing that's happening. So in an effort to make it part of the record, you bring a motion and you bring it to the judge.

The judge ruled, okay, let me be clear. My first gag order did not include family members. So I'm going to now include them. You can still go after me, the judge. You can still go after Alvin Bragg, but the prosecutors who are just public servants and not public officials, they're off limits. Witnesses are off limits. Jurors are off limits. Family members are off limits if it's designed to materially impact the case, right? So he clarifies that. What does Donald Trump do?

Okay, he's not allowed to speak about or cause others to speak about family members, right? If it's going to materially impact the case, or it's designed to. And the judge, when he did this, he wrote some pretty strong language in his amended gag order. He says, first of all, you have to balance the First Amendment with the fair administration of justice. What does that mean? That means you balance the right of free speech with the judge's obligation to protect the trial, to protect the jury, to protect the integrity of the court proceeding, right? The fair administration of justice. You balance these. It's the highest scrutiny. It requires the court to make its

own inquiry into the imminence and magnitude of the danger that could flow from the utterance and balance the character of the evil and likelihood against the need for free and unfettered expression. That was a quote from the judge's order. And he was citing a Supreme Court case, Landmark Communications versus Virginia. He also said the court has an obligation to prevent outside influences, including extrajudicial speech

from disturbing the integrity of a trial. Okay, so he's talking about protecting and preserving the integrity of a trial. So Judge Marshawn goes on to say, the defendant doesn't deny making these utterances. He says, however, that as a candidate, he must have unfettered access to the voting public to respond to attacks from political opponents and to, quote, criticize these public figures. Judge Marshawn said, but this went beyond that, okay? You went beyond this.

You went to family. You went to staff. You went to private individuals, including the grand jury. This stokes fear, and this also required the assignment of an increased number of security, and it can risk the orderly administration of justice for fear of family safety. What does that mean? It means I'm scared to make decisions or people might be scared to make decisions if I'm a juror

because I'm afraid something's gonna happen to my family or if there's a witness, I'm scared to come in and tell the truth. Why? Because I'm afraid something's gonna happen to my family. And so Judge Murchon then goes on to say, we didn't start with a gag order. First, I gave you an admonition, right?

I said, watch it. Then when you didn't, I gave you a limited gag order. Now I have no choice but to expand it. And it's the eve of trial and the risk of harm is paramount because the court doesn't have to wait for something bad to happen. I have to protect against the contamination of the jury pool, protect the impartiality of the jury once it's selected,

and the evidentiary record needs to be confined to just what happens in the courtroom and in the jury deliberations. They can't have the jury hearing extraneous things, can't have the jury hearing these comments about Judge Mershon's daughter or anybody else. It's not appropriate. So he changed the gag order and he essentially, it's three things that Donald Trump is required to refrain from doing.

Number one, making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding. Number two, making or directing others to make public statements about number one, counsel in the case other than the district attorney.

Number two, members of the court's staff and the district attorney's staff. Or three, the family members of any counsel or staff member. If those statements are made with the intent to materially interfere with or cause others to materially interfere with counsels or staffs' work in this criminal case or with the knowledge that such interference is likely to result. And the number three, making or directing others to make public statements about any prospective juror or any juror in this criminal proceeding. So it's pretty clear now it includes family members, right?

What happens after this expanded gag order? And this is where I think he violated the gag order. Hours after this expanded gag order, Donald Trump posted a clip to his truth social account, a clip of where Fox News commentator Brian Kilmeade was essentially slamming the judge's daughter and named her. Okay. And he was all of Trump's arguments about the daughter, right? Brian Kilmeade doesn't know anything about the judge, his daughter has nothing to do with this. This all came from Donald Trump, right?

This is 100% Donald Trump's agenda, does not coming from anybody else. And by Donald Trump taking, going after the judge's family member, right? By way of this Fox commentary, he's doing a couple of things. He's baiting the judge. He's taunting the judge. But more importantly, I think he is violating the gag order because let's read this again together. Making or directing others to make public I would argue that by reposting that clip, he is making a public statement about the judge's family member that is designed to materially interfere with his ability to basically

rule on the case. Why does he have to worry about the safety of his daughter? I mean, I don't know if you remember, Popok, that there was a, I remember the horrific, horrific case here in New Jersey where there's a federal judge, Esther Salas, who had, who there was a defendant who came to her house to attack her and ended up killing her son. And I just remember how horrific that was, right? It was so terrible. Like these things do happen.

And the American College of Trial Lawyers, which is one of the most prestigious groups of trial lawyers in this country, they came out and made a statement, basically condemning this and condemning these statements by Trump and attacking just all of his attacks, right? Whether it's about the prosecutors, the judges,

the family members saying, look, you know, you can't do this. This isn't right. It's dangerous. It provokes violence. It provokes violence against the court system, against judges, prosecutors, jurors, witnesses, and their families, and it undermines the public trust in the rule of law. And so, Judge Bershon has essentially been bending over backwards for Trump, and he's been trying to allow him to speak freely because he's a political candidate, but there has come a point where he has to do something about it. And I think Donald Trump crossed the line by posting that, that, uh, reposting that, that whatever you call it, um, interview. Um, and you know, I'll tell you one other thing really quick about, about this

gag order, cause it just really gets under my skin. I can't, I can't stand how Donald Trump baits Mershon. He's doing it because he wants him to do something that will then get to your next section that you're gonna talk about, which is recusal. Because right now there is no grounds for recusal. And so this is going to be his way to bait him into doing or saying something

to try to then actually have something to recuse himself. But I think he's violated the gag order. Let's see if anyone does anything about it. So Mershon is too smart to take a bait. I think that's why he didn't originally put the family prohibition in there. He wanted to see if anything, he was setting a trap for Donald Trump. He's never probably his entire career on the bench ever had to warn a litigant or a defendant in a criminal case that he shouldn't attack the judge's family. That just sort of goes without saying.

And I like the fact that when Judge Murchon issued his new decision in order, he started by putting Donald Trump back in his place. He's always referred to as the defendant, just like a garden variety indicted person that he is. No other respect is afforded to him nor should there be. And he tells them in the very beginning of the first paragraph of the decision and order, defendant has been indicted for 34 criminal counts under New York Penal Code and then describes the case for both election interference and for business record fraud related to Stormy Daniels. That's how he starts it. He doesn't have to start it that way, but that's the way he starts it because he wants to reorient and get back the leverage that should come with being a person

who is a Supreme Court member and a person who's trying the case. So that's one. I agree with you that it's probably been violated and what the judge's powers are and I don't think he's going to be hesitant at all to exercise the two remedies that he cited at the end of his order, both under the judiciary law. One of them is, I will find you in criminal contempt. That's what it sounds like for our audience. That means we're skipping civil contempt where, well, you pay a fine and maybe you start complying better and all. No, we're beyond that. We're into criminal contempt. That means if you violate it and I find that you

violate it, whether the Manhattan District Attorney brings it to my attention or I find it on my own, I'm going to put you in jail. Bring your toothbrush because you're going to go to jail for a period of time. I don't know what it is yet, but that is where you are about to go and I'm going to fine you up to $5,000 a day, which is the limit under another provision of the judiciary law. If you don't stop screwing around and you are screwing around, I'm going to take away your right to know who the jury's identities are because you've shown that you don't comply with any norms, let alone court orders and my mandates. That's the bazooka that Judge Bershaw has on the recusal which is coming. I agree with you that Donald Trump, as he did with Judge Chutkin, as he did with Judge Angoran, tries to pressure like a full court press to continue college basketball is on the air right

now. He tries to pressure hoping they'll make a mistake, the judges, they'll say or do something. And then he self creates the record that he then relies on to move to disqualify the judge. He did it with Judge Chutkin, moved to disqualify her based on statements she made or didn't make. Usually he's false about the representation he makes. And then he, and that didn't work.

And she didn't refuse herself or disqualify herself. He didn't like the rulings in Judge Ingoron's chambers and said he was biased and tried to get him to make a mistake and get him off. And that didn't work. And Judge Mershon, this is just a repeat. He already did last March, ended up with an August decision, tried to get rid of Judge

Bershawne because he happens to have a daughter who's employed. That's basically what it comes down to, that she works for a political consulting firm out of Chicago called Authentic and they have a client roster that includes Democratic candidates. You have to make the link between that and the judges having a financial or other interest, not just being the administrator of justice, in the outcome of the case. Then also make a link that Lauren Mershon, and I'm not outing her, she's out in the public already in all of the reporting, that Lauren Mershon somehow will be benefited herself because of the way the administration of justice is going for Donald Trump and rulings that are being made. And since there are no new

facts, same daughter, same judge, same relationship, she has the same job, and they do the same thing, since they made this motion last time. The Manhattan DA's office pointed out to the judge, you don't even have to have briefing on this. They asked for it because Judge Bershaw does trust them to exercise good faith in their filings and has warned them already that if you cross the line from zealous advocacy into kind of misleading the court and taking bad faith positions, you know. I have my own inherent authority to deal with that. And the first thing is you're going to have to ask me for permission to file a motion. And they asked him for permission in a two-page letter on Todd Blanch's letterhead.

And then the Manhattan DA fired back and said, there is nothing new here. You already got, Your Honor, a ethics opinion from the judicial ethics panel that said, you, your daughter, what she does for a living, what you do for a living, and the case in front of you are not in any way related to show that there's grounds to have you disqualified or that you should recuse yourself. So don't. And he's not going to. And Manhattan DA said, don't even take briefing on this.

You got their letter motion. You got our letter. The two letters just say no. And if he just says no and then also refuses to certify the question on appeal, he's not going anywhere between now and April 15. But we're seeing again the emergency break attempted to be pulled by Donald Trump time and time again. I got one left that is in the back of Donald Trump's mind, I am sure, that if he can't, if this doesn't work and he can't get some sort of last-minute emergency application with the appellate division to do something somehow to stop the jury from being picked on the 15th of April, don't be surprised if he tries to fire his lawyers. I've seen this happen before.

It's the equivalent of going bankrupt. You fire your criminal defense lawyers and you say, oh, irreconcilable differences. I can't get along with Susan Necklase or Top Lanch anymore. They keep losing. He won't say that last part, but that's what's in the back of his mind. I want to bring in somebody new.

They need to get up to speed, judge. Due process. You can't let the trial go forward. Let's see what happens. That's the final attempt, like Jan 6th was the final attempt to burn down democracy when all else failed. This will be the all else fails for Donald Trump. We're going to talk about the motion to recuse, which will probably be rejected by the time Ben and I take the air on Saturday. We'll then turn to the Cannon case and what's happening down there with the jury instruction homework and whether that ultimately provides grounds for Jack Smith to seek the reassignment by the 11th Circuit of Judge Cannon. We'll

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And thank you to our pro-democracy sponsors. Let's talk about the New York Attorney General, the $465 million bond, and Donald Trump just making the deadline to post the reduced bond or undertaking that the Appellate Division First Department gave him, which is the 175 million dollar undertaking. He finally found a bonding company, not one anybody ever heard of, at least in the bonding world, not one that's associated with an insurance company, which is usual, not one associated with a public company, which is also usual, but instead a little known bonding company owned by the king of the some prime auto loans, Don Anki, a $8 billion Forbes 20 listed rich person who apparently on his own say so without having to go through true underwriting, decided to bail out Donald Trump and give him a hundred and seventy five million dollar bond, which I'm sure

there's a large fee that was paid for that. And one of the reasons I think that Don Henke did this, Mr. Henke's bond came into play through his company Knight, is that I'm sure he was willing to take things other than cash. All other bonding companies, legitimate bonding companies, like the ones owned by Chubb Insurance or that are part of insurance companies or publicly traded companies, they hate real estate. They only want cash, dollar for dollar, especially if your IOUs are compromised by the fact that you operate or have been a judge to have operated a fraudulent business and

your financial statements have also been a judge to be fraudulent and you've lost your chief financial officer because he's going to jail for fraud and banks have fired you and insurance companies don't want to work with you any longer. It's hard to get a bond without putting up the dollar for dollar assets behind it. So, Trump insurance required, for instance, the $91 million to be posted behind the E. Jean Carroll bond that Donald Trump had opposed. They required $91 million to be held. He basically signed over apparently his Charles Schwab account. I used to know he has Capital One and Charles Schwab just like everybody else. But he has $91 million in his and he turned it over in a restricted

account in favor of the bonding company in case he defaults. And that came out of his $400 or so million of cash that he admitted he had about a year ago, leaving him, let's say, let's just call it an even $300 million. And that's to operate all of his businesses, run his burn rate on all the money that he owes and his families. And so it's a lot of money for you and me. But for Donald Trump, $300 million sort of cutting it close in cash. But I'm sure that Don Hanke, who has real estate investments himself and is willing

to be more creative in the type of assets he was willing to take, probably took something along the lines of, I'm just guessing here from my own experience, something along the lines of a stream of income that comes from assets that Donald Trump owns, lease payments, commercial rental payments, and other things that bonding companies usually don't want to take. I'm sure Don Henke was like, we'll take it because he wants to be in bed and in business with Donald Trump. We have for the first time in our entire political life, for 270 years, a president who is for sale, a presidential candidate who is for sale,

who's put himself up for the highest bidder, who's told the world that he's financially compromised, that's willing to sell bits of himself on an open market called NASDAQ with stock that has his initials on it. You want to buy a presidential candidate? You can. DJT is the stock initials. Here every time he's in trouble or financially compromised, which means he's compromised

from a national security standpoint. This is why you don't usually put somebody in a position of authority who's a bankrupt, who has credit problems because they could succumb to bribery or become a foreign asset. This is the problem. So, Donald Trump needed the money at this point. He's on bended knee or bended something. He got Don Hanke, the king of the subprime mortgage, who only gives loans to people with

no or low credit. Sounds like a commercial to give them the money. But there's something in return. There is a quid pro quo. We know what the quid is. We just don't know what the quo is yet, but we will. But it's just another example of Donald Trump having to auction himself off and get that bond posted. Now, what that means is that while the bond is in place, but there's a defect in it. While the bond is in place, and now that it is in place, Letitia James has to stop all of her collection activity on the $465 million judgment. Let me tell you what it doesn't mean because I've seen it in the chat. It doesn't mean that

interest is not still running on the full 465, it is. It doesn't mean that somehow she has to just accept the $175 million if she wins and he defaults. It doesn't. It's just the undertaking or placeholder that the appellate court has allowed him to put in it to stop enforcement proceedings during the pendency of the appeal, which will be fully briefed over the summer with an oral argument in September. So that's what we had. But Karen, did you see that the bond that this company that doesn't do a lot of business

in New York turned out to be defective? It has been bounced by the clerk's office. Yeah, it seems like it's something that's easily remediable, but gee, what a kind of unforced error. It makes them look incompetent, frankly. What do you make of it? Yeah, they don't take... New York doesn't take IOUs and pieces of paper that say that they are undertakings

from companies they've never heard of, signed by presidents, this guy Amit Shah, who works for the company they've never heard of, without a financial statement, without a balance sheet. How ironic that Donald Trump used a bonding company that forgot to submit their personal financial statements for their company to show that they have the wherewithal to stand behind a $175 million bond. And surprise, New York clerk wasn't just accepting a piece of paper stamped by Knight Bonding Company and some guy they never heard of signing it and saying,

okay, enforcement of the judgment is over now. We got a piece of paper that says it. There's errors in the judgment form, which will get fixed as Karen, you just alluded to. And then they're going to have to submit their balance sheet and show that they are solvent as a bonding company. Yes, they have to be licensed in New York, but that doesn't mean that the clerk's office knows right now where they actually are solvent and are good for the money. So this is going to be interesting. They'll give them some time and know to answer the questions, I'm sure that will arise. It doesn't mean that in this short period of time while they fix this

problem that Letitia James can go sell Trump Tower, but it's got to get fixed. But it just shows you that we had to go out of state to California to some company nobody's ever heard of to go find a person like Trump who headed the company, who just on a say so on a handshake would allow him to take out $175 million of credit in a way that as you always say, no normal average person would ever be able to do this. If you and I walked into Don Hanke's office and said, hi, I need $175 million judgment to post a bond post in New York. Then you gave him the description of everything that went wrong in your financial life. I mean, how quickly would he be calling security to have you escort it out? But the reason that Donald Trump went to Hanke is obvious because any other

legitimate normal bonding company and the ones that I've dealt with are all backed by usually by insurance at that level by insurance companies, and they are picky on who they do business with and the requirement for assets. And so he found this, this Don Hanke guy to bail him out. But at what, this is my posit, at what cost? At what price? How compromised is this candidate that he had to get it from him?

And what is the policy, policies that he will try to implement if he ever gets anywhere near the White House again as a result of having to do business on this bond? That's the issue for me, right Karen? Well, you know, when it was originally, he had to give the full amount, right, the almost half a billion dollars, his lawyers had to beg the appellate division, first department to please make that number lower, because they were turned down by

over 30 legitimate companies, and banks and insurance companies, etc. They just couldn't get the bond, they couldn't get the money. And so the appellate division essentially bailed him out, lowered the amount to 175 million. But he still couldn't get a bond even for that amount from one of these illegitimate companies. He had to go to what's essentially a used car salesman.

I mean, literally that's what this is. And it just really goes to show what a fraud Donald Trump is, right? He holds himself out as this billionaire business person. But really, when it comes down to it, he has bankrupted more companies, right? Everything he's ever tried to do is bankrupted. And he doesn't have, you know, Alina Haba can go on TV and say that Donald Trump, maybe not every company, but a lot of his business ventures have gone bust, obviously.

And Alina Haba, meanwhile, goes on and says, oh, he's a billionaire, he's rich, he's this, he's that, but he can't come up with cash and he can't get a loan from anybody. And that should tell you something, right? That should tell you something. So I just find the

whole thing really suspect and also shady. And I just don't understand. I just don't understand how he continues to get away with it with his followers. Yeah, because yeah, I agree with you. It's because they don't care. I did a hot take on how the Trump media stock is being propped up for a short time. They can't do it unlimitedly because they're just too small by his followers that are on the 5 million active users on Trump media, Trump technology, media company, whatever it's called, which by the way is not that much higher than what the Midas Touch Network has. And we're not publicly trading at whatever dollars on the stock exchange. But his people, I saw it, I don't know if you saw it in the New York Times, Karen.

I know you did, you probably did. They said that going to a Trump rally now is the equivalent of going to church. And I read that title and I was like, oh, I got to read this. And now he goes into his rallies, and there's like a moment of hushed silence where he starts using biblical vocabulary and vernacular, and people in the audience bow their head like he's some sort of high priestess. And he talks about, in biblical terms, the battle for the soul of America and that he's the one that's been chosen by God to fix it. And his people put their hand up like they're at some sort of, you know, revival meeting. And it's scary to see, you know, we joked on the

network about the 59.99 Bible, but it's just this complete collapse of church and state. It goes beyond trying to use religion as a wedge issue, as a wedge cultural issue to drive a wedge between Americans to try to get elected. It's now, there were people in the audience, as reported in the New York Times, that told the reporter that they thought—I hope people are sitting down for this one—that Donald Trump is more crucified than Jesus Christ. And this is where this kind of cult following for Donald Trump is right now. And to be clear, I have no issues with prior to Trump, Republicans as a party or as people or as fellow Americans, I may disagree with their policy decisions.

I may not have agreed with all the planks of the presidential platform, but ultimately, I could recognize them as another party, one of two in our country that we're trying to govern and try to set policy. I don't recognize what's happening now by the MAGA takeover of this Republican Party. I feel like I'm living in the 1800s, and when there were these multiple parties and there were takeovers of parties and what was once the Whigs is now the, I mean, it's just a complete co-opting of what was once a legitimate party in this country under our constitutional system and has now just been co-opted by evangelical Christians and others who see Donald Trump as their Lord and Savior.

It's- But what I don't understand is if you're an evangelical Christian and a Bible-fearing good person, and there are so many in this country, how you can back and support a rapist, somebody who brags about touching women in their private parts, somebody who's cheating on his wife with a porn star, somebody who, I mean who he doesn't live an upstanding Christian life.

He doesn't live a life that should be in any way celebrated or revered. And that's what I don't understand, how he's co-opted, how he's been able to get people that I know and love very much, and I respect very much, close friends, close family members who have values and morals. I don't understand how he's been able to convince them that he's somebody worth following at this level. It's just really… Pete Because on the fundamental, I agree with you, but on the fundamental things that move and animate them, on policy, on abortion, which we'll talk about in a bit, on religion in school, on other things that where they see the world through their biblical lens,

he's on the right side of those issues for them in a way they think the Democrats aren't. And the solicitation of the evangelical right, the Christian right has been going on and successfully by the Republican Party, you know, since Lee Atwater, Karl Rove, all the way down to today. And it is a problem for the Democrats because if we can't as a party, just to speak off of topic for a moment, but at the intersection of law and politics, if we can't make our tent large enough, and we do,

but get the message out that they are welcome, of course, as fellow Americans in our party, it will make it more difficult than it needs to be every election cycle for us to win the presidency, just well. Yeah, look, it's just so complicated. There was a time in my life where I would have described myself as purple, right? There's some, I think we pay too much in taxes. I think when it comes to certain, especially fiscal things, I think the government needs to be a little bit smaller, et cetera.

Obviously, when it comes to social issues, I'm extremely liberal. But also when it comes to law enforcement, I still believe in the rule of law. I came up as a prosecutor. I am so not purple because I can't have anything to do with this Republican party. I don't recognize it, I don't respect it, I don't value it, and I would have nothing to do with it. And I used to be someone who would say, I vote for the person, not the party.

I would never say that right now. I will only vote Democrat 100%. Even if I don't agree with everything they say, because the MAGA side of the Republican Party, which is essentially the whole Republican Party now, this is about our democracy. This isn't about, do you believe in this issue or that issue?

This is about democracy. Donald Trump doesn't want to follow the rules, the law. He wanted to steal an election. Take it. Doesn't matter what people voted for or who they voted for or what they said. He wants to do and say whatever he wants. They want to basically when the Supreme Court is going to look at history when it suits them and not look at history when it suits them so that they can rule on things like abortion or whatever else they want so that they can get the policies that they want. It doesn't matter what the law is.

It doesn't matter what people vote for. This is what we're going to do. I can't help but say it feels like, I remember, my grandparents, we've talked about this before, were Holocaust survivors. I used to ask my dad, how did that happen? How did that happen? How is it possible that people followed Hitler? How could that have ever happened in this world? You look at at what, you know, you look at people who are following Donald Trump, and I have to say, it scares me. You know, I don't think we've, we've come much further than that. So I know we're getting completely off topic.

No, we're gonna, I'm gonna round it in right now, because we're gonna, we're gonna, we're gonna talk about Florida abortions, rights rights as expressed by the new Florida Supreme Court decision and what it means in November. And speaking of a refusal to adhere to the rule of law, we'll end the podcast with our discussion of what's going on in Mar-a-Lago with Judge Cannon and what Jack Smith, the special counsel, does next in terms of potentially seeking her reassignment from the case and getting a new judge of the Southern District of Florida on the job. We'll do all of that, but first another word from our sponsors.

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to the Florida Supreme Court decision. I'm a Florida practicing lawyer. I lived there for 20 years. I know a couple of people who are on the Florida Supreme Court, and I was very, um, disappointed and crestfallen by the, not shocked, but, uh, crestfallen by the decision. Let me just lay out with the decision as I'm gonna turn it over to you. In an overwhelming decision of the Florida Supreme Court, only one person in dissent there, Judge La Barga, they decided that unlike the line of precedent stretching back to 1989 in Florida, that the

amendment to the Florida Constitution that had been enshrined in the Florida Constitution since 1980, establishing a right to privacy in Florida or a right to be left alone as we used to like to recall it, that that embodied a woman's right to choose and independent from the US constitutional right of a woman, whether under a due process analysis under the 14th Amendment or under a privacy analysis that had been given to a woman or it was a constitutional right of a woman for over 50 years under US constitutional principles until the Dobbs decision two years ago, March overturned Roe versus Wade and all the other precedent related to it, even the super precedent as we like to call it, and found that there was no federal constitutional right to choose. Independent of that, Florida had

on its books since at least 1980 and through a 1989 line of cases called TW, a woman had a right to have an abortion and not have it banned or limited by a legislature in Florida for all that time until Ron DeSantis got into office and got swept in along with a Florida legislature that just rubber stamps whatever he wants. And Ron DeSantis, in order to be a tough guy and run on the Right to Life platform, decided at first after the Dobbs decision came out to try to lower the ban down to 15 weeks. He already had the Texas ban at six weeks, which was on the books under SB8 in Texas, but he didn't wanna quite go that far.

He was still trying to get the moderate vote. So he went to 15 weeks. But the Florida legislature wrote in there that if the, because it was already a case that was wending its way through the Florida court system, ultimately through the first district court of appeal up in Tallahassee and then up to the Florida Supreme Court brought by Planned Parenthood chapter that would try to determine whether embodied in Florida's right to privacy Article 1 provision, there was a right for a woman to have an abortion that couldn't be limited at the 15-week mark. They wrote into

their legislation that if that case guts the privacy right and says that there's no right to an abortion under the current version of the Florida Constitution, we're going to six weeks. Knowing that, because of course that's part of the record, the Florida Supreme Court, in an overwhelming majority decision with one dissent, said that their brethren and their colleagues back in 1989 of another Florida Supreme Court got it wrong because they didn't properly analyze how the privacy right got voted by the voters into the Constitution in 1980. And they didn't get the context right, and they didn't get the legislative history right. And they based it on a right to privacy that they thought was in Roe versus Wade, but that really wasn't in Roe versus Wade, and therefore, we're taking it away. I mean,

there's no other way to put it. It's really reverse engineering. We want to get it. We want to remove as a policy from the state of Florida the right of a woman to make these most intimate decisions about her reproductive health and rights. And we're going to do it by slapping what our brethren did back in 1989 and saying they got it wrong. And they also completely ignored this 91 page or so decision, which you and I read. They also ignored the fact that in 1980, when the Florida voters were voting on the right to privacy, yes, they might've been concerned about data collection by governments and they wanted to keep government out of their computers, maybe. And yes, the gay community was

interested in certain things. But one of the reasons that they weren't that concerned, and there wasn't a lot of debate about a woman's right to choose being part of the right to privacy, is because there was already a 18-year or more right on the books by Roe versus Wade, which was reaffirmed a number of times before 1980 that a woman had a constitutional right to choose. I mean, Dobbs, for the first time in constitutional US history, took away a right once given to a group of people, in this case women, and their right to choose and ripped it away from them and said it didn't exist after having established it 50 years prior. So that's one of the reasons I could probably think of course that's ignored in the order. Well, they weren't really talking about women's right to, you know, no shit because

it was already, you know, people felt comfortable that Roe versus Wade would not be overturned and didn't have to take it up in the local constitution of the state. So that's that. Then there's an amendment. I'll turn it over to you to talk about the amendment. Then there is a proposed referendum that's on the ballot on November 5th. Tension Florida voters about a woman's right to choose being enshrined literally expressly in the Florida constitution. They issued their decisions on the same day, turning it over to my partner, Karen. This really felt like a compromise to me

because there were two decisions, both four to three, right? And I think it was, okay, one of them is gonna be, we're going to say, yes, the six weeks, okay, it's not in the Constitution, this right to privacy, but at the same time, we're going to let the people of the state of Florida vote. I thought that was sort of an interesting nod to the Dobbs decision, which ultimately did say leave it up to the voters, right? Leave it up to see should there be a right to privacy, a right to abortion, and that's going to be voted on. And it'll be very interesting to see when the rubber meets the road, you know, if women are going to show up in Florida and if women are going to come out and they're going to vote for the right to an abortion.

And I think in some ways, this is going to be the starkest example of an identity crisis that states like Florida, which traditionally used to be purple, it kind of isn't anymore. And it'll be very interesting to see what happens there and what they do, because this goes beyond kind of reading the law and what does it mean. This is really coming down to women are going to have to come out and they're going to have

to say, you know what, back off and I want to be able to make my own decisions with my own body. And you know, look, the decision here was very much the, you know, they kind of say, oh, but you know, six-week ban has exceptions. And if there's rape and incest and abnormalities when the mother's life is in danger, they specifically say, but not if there's, it has to be physical health, not mental health, which I thought was really interesting that they called that out and made that distinction, right? They're basically saying,

they're putting a value on physical health that is superior to mental health, even though one of the number one causes of death in this country is suicide. So, it really doesn't acknowledge what the trauma having, you know, a pregnancy, an unwanted or a pregnancy that could risk someone's life, what that does to somebody. But they really, they absolutely are trying to say, oh, it's okay, there's these exceptions, these exceptions.

But we've seen in practice in states where there are these exceptions, the doctors feel like they can't make these decisions. Doctors feel afraid. They're afraid to say, well, what if, what I believe that it's a health issue, I believe that her life's at risk, but you know, what if I'm second guessed and someone believes otherwise?

Or why do I, I know, I know the trajectory of what's happening right now? Her life's not in danger right now, but it will be if this pregnancy is allowed to continue for the next six weeks. So I have to wait for six weeks and allow her life to actually deteriorate, her health to deteriorate, and to become in danger, right? While until I can actually perform this, it's actually torture for people. And, you know, because Florida is largely surrounded by water, almost entirely except for the top portion, right? And there, it's essentially only surrounded by other southern states that also have outlawed abortion.

This will really transform access to healthcare and access to medical care in the South. Abortions will only be available to wealthy women or women who are able to travel. I mean, because the six week ban is, you know, essentially outlawing abortion because most women or many women don't know they're pregnant at that stage. And so I think that this is going to be a really important vote to see where people are in Florida. Right, this is like an identity crisis and they have an opportunity to assure this right to healthcare, this right to make a decision and it'll be

interesting to see what they end up doing. If this doesn't drive people to the polls, women and men who support women in Florida on November the 5th. I mean, the Supreme Court, Florida, I don't think they thought they were giving a gift to the Democrats, but if this doesn't drive voters to the polls to once and for all vote a lot, this isn't even down ballot from the presidential election. This could drive many, many people that are women and people that care about women on this issue to the polls. Yeah, they'll vote for Biden too, that's good. But this is a shot for the first time since 1980 on the right to privacy in Florida

to enshrine and embody once and for all a woman's right to choose up to 24 weeks on the issue of these most intimate affairs of her life, about whether to carry to term a being. We'll leave it at that. And so I hope that the silver lining of this is that it drives voters to the polls in the ways that we've seen in other states

in the special elections to date in Alabama and other places. And that is the coattails upon which Joe Biden rides for the state of Florida. So we're going to turn lastly to the Cannon decision to give homework to Donald Trump and to provide her primarily the Department of Justice in a way that demonstrates that she either just doesn't understand the proper defenses to the Espionage Act claim against Donald Trump, doesn't care, is just siding with Donald Trump because the way she framed her issues and the way she framed her request for jury instruction drafts so early before there's even a jury. We're not even close to picking a jury in this case, nor legal issues being sorted out, sort of demonstrates for me her sort of fundamental misapprehension. But we also have new reporting

that Judge Murchon, as we talked about at the beginning of this podcast, getting ready for the April 15th trial that I said he's getting ready for, is clearing out the brush of any remaining motions that are out there. Having rejected a couple of weeks ago, nine different motions filed by Donald Trump in an attempt to limit evidence and witnesses and defenses at trial or to have defenses at trial, there was still one that was still lingering out there. And we were just waiting for the ruling to come in. And that was, does Donald Trump have presidential immunity?

Okay, stop right there. He was a candidate for office who implemented as alleged in the indictment, a strategy to stop women who claimed to have had sex with him in some capacity from going public to undermine his candidacy against Hillary Clinton in the first form of election interference. And he wasn't president yet. And all of the acts really under the conspiracy that are alleged in the indictment, the payments to Stormy Daniels by Michael Cohen involving Allen Weisselberg, his chief financial officer, involving the National Enquirer, David Pecker, in all of this and all of that. It was well before he became president. So, how does the immunity

part come in? And now we have the ruling from Judge Mershon. I'll just quote one part of it that we thought here on the Midas Touch Network was interesting. Here's Judge Mershon not being happy again with the lawyers for Donald Trump, meaning sanctions could be coming. Defendant's decision is unjustifiable.

In other words, his decision to file this late filed motion for immunity defense and renders the motion untimely. Further, as an aside, the fact that defendant, this is always Trump, waited until a mere 17 days prior to the scheduled trial date of March 25, that was the original trial date, to file the motion raises real questions about the sincerity and actual purpose of the motion. After all, defendant had already briefed the same issue in federal court, and it was in possession of and aware that the people intended to offer the relevant evidence at trial the entire time.

The circumstances viewed as a whole tests this court's credulity. Motioned to dismiss on grounds of immunity denied. He already denied it at the start of the case when they try to get rid of the indictment on a motion to dismiss. This case is going, is there any doubt in your mind, Karen, that the case is going to start picking a jury on the 15th or 16th of April? Is there any doubt in your mind? I would have said a hundred percent no, but I would have said that before when March 25th was the date, not in a million years could I have predicted this delay based on the data dump from the Southern District.

So I'm never going to say 100% certainty anymore. There's no doubt in my mind that Judge Marchand is doing everything he can to keep this case from going. This presidential immunity argument and decision is just a setup because Trump is now, the next thing that's going to happen is he's going to appeal and he's going to try and get the appellate courts to issue a stay

so that he's gonna say, look, in 10 days, this very issue is being argued before the United States Supreme Court. What's the rush? Just wait brief stay Let's let the Supreme Court that's already in an expedited basis. Let's let them rule and then we'll know why why would you go forward? You know, it's not like we're waiting years. This isn't a huge delay It's a few days and that's how they're gonna phrase it. So this was this is just a setup for that He's gonna try it. It's going to fail, but he's going to try and delay.

You're going to see lots of desperate attempts to get a delay between now and the trial date because he doesn't want to go forward. You said what I've been saying for months now, which is he's going to maybe potentially fire his attorneys. That's the surefire way to try and get a delay. But in New York, in criminal cases, you can't just fire your attorney. Once you enter, and once an attorney enters what's called a notice of appearance in a court file, you have to get permission from the court to be let off the case. And so it'll be interesting because even if Trump either fires his attorney or threatens his attorney or creates some kind of irreconcilable conflict, those attorneys still have to get, or that attorney still has to get permission from the court to get off that case. And that does not happen easily in New York State Court. That is one thing

that a lot of judges do not allow to happen. So we'll see. It'll be very interesting to see what happens. But yes, I do think the trial's starting. I think it's more likely than not starting on that date. But who the heck knows what's going to come up because Donald Trump is a master at mucking up the water. Well, one of the problems they're going to have is that they were untimely already in the E. Jean Carroll case in raising immunity and got slapped when Alina Habba raised the issue in an oral argument before the Second Circuit Court of Appeals, now federal. And they were like, why are you raising this three years into the case? Isn't this a little late in the game

for you to be raising this issue? And basically they denied it on two grounds, one being it was untimely. Yeah, they could try it. I mean, I think the Appellate Division First Department is wise to Donald Trump at this point and knows that he'll be flailing to try to stop the trial. And I'm hoping that the people there that we respect on the court, Karen, don't fall for it again. They've already given them enough breaks. It's the same Appellate Division that just let them post $175 million bond instead of something much higher. They've already given them enough breaks. It's the same appellate division that just let them post $175 million bond instead of something much higher. They've delayed aspects of this case, but not the ultimate trial date in the past as

a little bit of a breathing space or breathing room. All right. So I'm a betting man. I think it'll be the 15th of April or there or within a day of that. We'll be picking a jury. It might take a week to pick a jury. I agree with you. It's very hard to get off a case, especially on a criminal case. Even saying, you got to really lay out a reconcilable differences that makes it unethical for you to

continue in that position. Not getting paid is not going to be enough and those kinds of things. But we'll follow all that. And let's just take a quick drive down to where I'm at now, down in Florida, and talk about Judge Cannon. You did an amazing interview today, I thought it was, with CNN. Why don't you take the lead on that, frame it, and then I'll give my little two cents and we'll wrap up our podcast for tonight. So, Judge Eileen Cannon did what many judges do ahead of or at the very kind of right before trial, ahead of the trial, which is give me your proposed jury instructions. Because at the end of a case, what a judge does is a judge will say to the jury, okay, you've been asked to, you've heard all the evidence, you've heard summations, now you are asked to render

a verdict on the following charges. And let me read you the elements of each of those offenses. And the charging of the jury is what it's called, can sometimes take hours. It's a very long process. It's methodical, where the judge literally instructs the jury on the law, because the lawyers aren't allowed to tell the jurors what the law is. And so the judge is the only one who's allowed to say this is the law. And they talk about the elements of the statute and the definitions of different words. And you sit there and you listen to each and every definition, every element that the people

have to prove or the government has to prove each and every element of each and every crime beyond a reasonable doubt. And that's how it works. And it's a unanimous verdict that you have to have in criminal cases. And I remember as a prosecutor, you finish your case, you get all the evidence in, you know, you're listening to the charge and you just you shake your head and you're like, oh, beyond a reasonable doubt of every one of these elements, did I do it? You know, it's nerve wracking. So judges often will ask the lawyers for their proposed jury instructions.

And what they'll say is get together, see what you agree on. You know, what charges do you want? What jury instructions do you want? See what you agree on and point out what you don't agree on. There are some very standard jury instructions that people don't necessarily engage in, that you know it's going to happen. You focus on the ones that you want certain language to go a certain way.

There are model jury instructions, there's pattern jury instructions, there's jury instructions out there that you can draw from. You don't normally make them up. You look and you see, okay, what has been said before? What's been upheld by the appellate courts before as the appropriate language? Sometimes cases get reversed because the wrong language of jury instruction occurs. So the court here asked the parties to engage with two competing scenarios and offer alternative draft text that assumes each scenario

to be correct formulation of the law to be issued to the jury. So essentially said, I'm going to give you a hypothetical, and I want you to give draft jury charge language. And I have to say, when I read the statute, when I read her two hypotheticals, Popak, I had to go back and I started questioning my own ability as a lawyer. I started thinking, do I not understand the law? I studied this. Not only did I go to law school, we all, in preparation for all these legal AFs, we read every single decision. We read every single filing. We study the

law. We study cases. And these hypotheticals were so far afield of what my understanding and interpretation of the law is that I couldn't understand how she got to these two hypotheticals. So it wasn't either or, it was neither. And so I looked at that and I thought, what the heck? And I know you did and Ben did too as well because it was so outrageous that she thought that the law was the way she said it was. I'll go into more detail in a second. I think she showed two things, A, inexperience, because there's no way that an experienced

judge would do what she did and think that it means what it means. But the other thing too, I started to think, because there was a while there that I thought, you know, she's so in the pocket of Donald Trump and trying to help him. And, you know, she should be recused from the case because of that. And there's a part of me that wondered in this particular instance, is she afraid of Donald Trump? Because there is no other explanation for why she would pose the hypotheticals in this way, because it was that egregious. Essentially, what she said was, it was both of these scenarios had to do with a legal premise that what Jack Smith last night in a late night filing called fundamentally flawed legal premise, Jack Smith came out with a scathing, scathing motion about this hypothetical scenario.

And he said, essentially that these scenarios are flawed because they she's basically says in them videos are flawed because she basically says in them to determine whether a former president is authorized to determine under the Presidential Records Act, is this personal or is this presidential? And again, I was like, the Presidential Records Act, what does that have to do with the Espionage Act? It's like she's conflating two different statutes, right? Presidential Records Act is its own statute, and it has to do with at the end of the presidency, go out and take out your love letters from Melania, from the nuclear codes and separate them out because you're going to want to take your Valentine's Day cards with you.

Those aren't necessarily presidential unless of take your Valentine's Day cards with you. Those aren't necessarily presidential unless, of course, your Valentine's Day card was given to you by Kim Jong Un. That was considered a presidential record because it has to do with your official job. It's not personal in nature. But she's saying the Presidential Records Act potentially allowed him to just decide what's personal and what's not and what he's allowed to keep. And so essentially, Jack Smith reoriented and tried to reorient Judge Cannon to say, this is about the espionage act. And this is about the espionage act and the ability to possess highly classified documents, right?

You're not allowed to possess them or store them in an insecure facility. And that comes from an executive order. It's executive order one, two, five, two, six. And that's what governs possession of classified information. Donald Trump is not charged with possessing all of those boxes and all of those records. He's charged with 34, right? That's what Jack Smith did. He carefully and surgically went through those boxes and said, okay, you weren't supposed to have some of these. Some of these would

be a violation of the Presidential Records Act, but I'm not going to charge that. That has nothing to do with this case. I'm only focusing my case on the violations of the Espionage Act because that's what's really serious here, right? Is you possessing essentially our nuclear codes when you're not supposed to and you refuse to give them back and you stored them in an unsecured facility. And so Jack Smith said in his filing, the legal premise is wrong and it would distort the trial and it would distort the trial and it would result in an acquittal, right? He said either scenario, Judge, is going to result in an acquittal because what you're

saying is that Donald Trump, what you're asking us is to give you language to charge the jury that essentially says he can just declassify, he could just not declassify something, he could just determine in his mind that something is a president is a personal record or a presidential record. So of course, they're going to say he decided that right, because that's what he's going to say. That's what his defense is going to be a trial if she gives that jury charge. And so what Jack Smith is saying, if you do that, you are putting this trial in jeopardy and you are essentially

because once the jury is sworn, okay, once you pick a jury and the jury is sworn, something called jeopardy attaches. And those are magic words. That means that if there is an acquittal or a conviction, double jeopardy applies. The government doesn't get a do-over, okay? Especially if there's an acquittal, It's done forever. What he said was essentially by saying that the Presidential Records Act applies here and by asking for a jury charge regarding that, what you're doing, Judge, is you're making an acquittal almost certain. Because it would be after jeopardy attaches, we wouldn't be able to appeal at the end. So what we're asking Judge Cannon, we're asking you to do is to promptly decide whether

the unstated legal premise underlying your recent order represents the correct formulation of the law. If the court wrongly concludes that it does and needs to include the Presidential Records Act in the jury instructions. Please inform the parties well in advance of trial so the government can consider appealing before jeopardy attaches." Jack Smith also says, quote, the adoption of a clearly erroneous jury instruction that entails a high probability of failure of a prosecution, right?

An acquittal, that's a failure of a prosecution. A failure of the government couldn't then seek to remedy by appeal, constitutes the kind of extraordinary situation which empowers to issue a writ of mandamus. So the two scenarios that the court was asking Jack Smith to consider, right? Or both parties to consider was scenario A, the courts, in the

court's order, this would be the charge, right? In the court's order that the Espionage Act, a former president is authorized to possess any document that the jury determines qualifies as a personal record as defined by the Presidential Records Act that would wrongly present to the jury a factual determination that should have no legal consequence under the elements of Section 793. Likewise, if the court concludes as posited in Scenario B that a president has carte blanche to remove any document from the White House at the end of his presidency, that any document so removed must be treated as personal under the Presidential Records Act as an unreviewable matter of law and that also as a matter of law a former president is forever authorized to possess

such a document regardless of how highly classified it may be and how it is stored that would constitute a quote clearly erroneous jury instruction that entails a high probability of failure and so the government must be provided with an opportunity to seek prompt appellate review. As I said, it's normal to discuss in advance jury selections, but Cannon did Jack Smith a favor, frankly, by signaling her wrongness or this erroneous jury selection. If she had waited until the end to do it, that would have been fatal to the case. So part of me was like, why did she do it?

If she was really in the bag for Trump, why did she do this in advance? And that's why I think maybe she's just scared of Trump. And so she's trying to maybe get off the case because this is gonna get her recused from the case finally. So it was very interesting to me to see this motion. So what Jack Smith did is he said, look, let me give you instead the well-supported jury

instruction for the elements of section 793 of the Espionage Act. Let's talk about the plain language of the statute. Let's talk about the language of executive order 13526, which implements the regulations of the Espionage Act. And he basically said, look, you're trying to propose this as a defense, but this is not a defense that is allowed, and it's made up.

And it was made up at least a year after you possessed these documents. Jack Smith says, look, you were in negotiations with the National Archives for a long time, asking the National Archives, you know, talking about these documents. You never once said, these are personal, personal records. I'm allowed to keep it. You know, you didn't do that. This was a reliance on what he called it, pro-Hawk justification concocted more than a year after he left the White House. And by doing that, he's actually basically making this up later after the fact. He also calls Trump out and says he never represented to the court,

to this day. He's never represented to the court, that he in fact designated the classified documents as personal. He didn't say it in his motion to dismiss. He didn't say it in his reply. He didn't say it in the hearing on March 14th, 2024, just a few weeks ago, despite every opportunity to do so, despite every incentive to do so, he never did it. And so it does not apply. And let me just read for you what the presidential records act says. It defines a personal record as any document of a purely private or non-public character,

which does not relate to or have an effect upon the carrying out of the constitutional statutory or other official or ceremonial duties of the president. In fact, all the, so Jack Smith goes on to president. In fact, all the documents in the indictment are of a nature that make this straightforward that these are not presidential records. It would be pure fiction to suggest that these highly classified documents, don't forget, Jack Smith only put in their highly classified secret important documents that were created by members of the intelligence community, created by the military and presented to the president during his term in office. To say

that's purely private and that they don't relate to or have an effect on his carrying out of the constitutional statutory duties of the president just absolutely flies in the face of any just you can't even make that argument with a straight face and you know Jack Smith just eviscerates Donald Trump. He says your own representatives didn't you know didn't make this representation. We interviewed the White House Counsel's office, national security advisors, we've interviewed everyone who ever worked for you, Donald Trump, none of them said that you designated these as personal. So, you know, he basically accused him of

inventing this and told Judge Cannon, figure it out because and figure it out early, because if you don't we're appealing and he's going to move to get her recused off this case because she does not know what she's doing. Yeah, so I agree with all that. The reassignment process, which I have a hot take on, is they got a show at the 11th Circuit

that what she's done so far satisfies three factors of a case called Torquington in the 11th Circuit, which is based on a second circuit case, which basically says, has this judge, because of their decision making, basically painted themselves in a corner so that they are doubling down on wrongheaded decisions in the past in their current decision making and therefore that is undermining the administration of justice. The answer to that factor is yes. She's made a series of wrong decisions in this case starting from her interference pre-indictment with the prosecution or the investigation of the case and had been reprimanded

twice by the 11th Circuit Court of Appeals, even before this case became a case in terms of an indictment. And she's made a series of mistakes about the Classified Information and Procedures Act, which is at the heart of the case, and now making fundamental error about for all to see as called out by Jack Smith about whether the Presidential Records Act provides a defense to espionage act, which it doesn't, can't, or to the obstruction of justice count at the heart of the case. So if they can show that the Torkington factors that one, that the administration of justice won't be impaired by her removal. How could it be? She hasn't made any real decisions. The case is sitting in a suspended

animation without having been set for trial. The argument would run the other way. You put a new judge in there. The new judge would come in very quickly, survey the landscape, figure out there were a handful of motions that needed to be resolved now, set the case for trial, and then work backwards from there for a very efficient pretrial practice and motion practice and jury information or jury instruction practice, and get the case tried, which is the goal. You wouldn't know it, for those that watch us, that this is the goal of the federal court, is actually to efficiently try cases and get to their conclusion for justice.

You wouldn't know it, by the way, Judge Canada is doing it. And that is the essence of asking for reassignment. It happens rarely. Florida has a lemon law. It's basically three, it's like three strikes, three defects by the judge and she gets recalled. Bring her back in. It's like Westworld. You know, we need, you know, two guys are gonna come in and take Judge Cannon away with white lab coats and

replace her with somebody that actually knows what they're doing. And this, this is it, man. And the way that you've outlined exactly how Jack Smith has fired, there's a reason he wrote an entire brief on this. It's not because he thinks he's going to be able to talk her out of it and talk her off the ledge or talk her into reconsidering. It's because he's establishing the record for his eventual soon to be appeal. And in there, he's going to catalog all of the misfirings and mistakes that she has made that go to fundamental clear error and the undermining of our criminal justice system as relates to this case. Fundamental reversible error. And he will catalog all of them,

cite the Torkington factors that the court should apply, and not only ask that she be appealed and or instructed and given a mandate on how to properly run the case, but that she be reassigned. And they're gonna have to think long and hard about it. I'm not sure the 11th Circuit, at least the current group of it,

led by Judge William Pryor sitting in Atlanta, can think of too many other cases, certainly not ones of high profile and national security involving a former president, of course, in which a judge has made so many fundamental, reversible, clear errors and miscarriages of justice. And now faced with that, they're going to have to figure out what the 11th Circuit stands for. What does it stand for? They have the inherent authority and power as the 11th Circuit and the bosses of their trial court level people to reassign them. There's a couple of rules right on the books, statutory rules that allow them to do exactly

that for the proper administration of justice, not just issue mandates, not just coaching counsel, not just reverse and send back for further orders or further proceedings, but actually reassign. And I can't think of a better case than that. The entire world is watching what the 11th Circuit and in this case, the Southern District of Florida is doing. And I am sure, I'm sorry, I know a number of these judges on the, not only the 11th Circuit, but on the Southern District of Florida.

Many of them came up from the trial court, the state court level where I practice frequently. And I know that for a fact, well, not for a fact, I can suppose that they are slapping their foreheads about what Judge Canada is like, and wishing that they had the case. People that have been on the bench for five and 10 and 15 and 20 years, who have been judges for 15, 20 or 30 years, who know what they're doing, that understand the rules, understand the Constitution and understand how the things are briefed and have good law clerks. We did some reporting on Midas such recently. She can't even keep a law clerk. The law clerks do most of the writing and research related to opinions and she can't seem to keep one. She had two leave in December, which is quite unusual. She hasn't been able to replace them. She's shorthanded. I assume she's doing her own work,

which is equally scary. Give it 11th Circuit. This is my plea. Give the case to one of the other just judges, and I know you can think of one, in the 11th Circuit in Southern District of Florida who's more qualified to handle this case and get this case tried. Public justice requires it. and get this case tried. Public justice requires it, right? Public have a stake and have a seat at the table. When it comes to trials, it's not just the right of the accused to a fair trial. It's the right of the public. That's why things are not done generally sealed. They're done in the open. It's the right of the public to observe a criminal process to its conclusion. We don't do secret trials. We don't do star chambers, except in rare circumstances.

And it's not a war tribunal. We're supposed to know what's going on at any given moment. We're supposed to really understand it. And the question under the Torkington factors is also if a lay person who's not a lawyer possessing of all the facts that I've just outlined, Karen has outlined, would believe that there is an appearance of justice being undermined, then the judge needs to go. And I'm sorry, I don't care which side of the

aisle you sit. I don't know how you can objectively as a lay person, not even as a lawyer, go through the facts I've just outlined and come away with a conclusion that the appearance of propriety hasn't been compromised here or that the appearance of justice not being done isn't in the air, isn't in the ether. It is. And so I implore the 11th Circuit when Jack Smith deems it's time, and we trusted him so far to do the right thing, and he brings it to the 11th Circuit's attention. We've reached the end of the midweek edition of Legal AF. For those that are new to the show, and we know there's new people to the show, both based on the chat and because we try to promote the show, there's many ways to support us

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Let's be honest, that's one of the reasons that they are on the show with us and we like the products, we use the products, and then we talk about them on the air. So Karen, let's bring Karen back. Karen new office, for those that are wondering, it's not Law & Order. It's not her home. It's her brand new spanking new office with lots of people walking around in the background showing a very busy law practice. And I always love doing this with you.

Don't tell Ben, it's one of my favorite times of the week. Saturday is too. And then join us on Legal AF on Saturday where Ben, Mycelis and I kind of catch up, catch our breath from the week and do things after the midweek, if you will, that are important at the intersection of law and politics. And then on Hot Takes, the three of us, you, Karen, me and Ben do about every hour on exclusively on the Midas Touch Network and you can find each of us, we each have our own playlists. If you slide over in the Midas Touch YouTube channel,

you'll see not only the videos and the hot takes and all that podcast, there's a section that says playlist and you can go down and you find your favorite among the three of us or all three of us and look at our content is all there in a nice library with a bow around it. So we've reached the end. I want to do a quick shout out to the Midas Mighty and the Legal A F'ers and welcome them to join us on Saturday with Ben, Mycelis and me. And Karen, always a pleasure to be with you for this time. You too, Popak. Okay. See everybody next week.