Legal AF by MeidasTouch - GOP’s Deadly Hypocrisy: Guns are in; Privacy Rights are out

Episode Date: May 26, 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, Popok and KFA focus on: 1. The 19 Robb Elementary School children and 2 adults who died in a mass shooting this week, only 6 days after the massacre in Buffalo, and sensible gun control around the 2nd Amendment. 2. A North Dakota, Trump-appointed federal judge stops the Biden Administration from enforcing the non-discrimination provisions of Obama-care if an insurer refuses to pay for gender affirming health care based on the Q-anon lie that “babies are having sex change operations.” 3. The Manhattan DA’s office files papers to avoid dismissal of the criminal charges against the Trump Organization and its Chief Financial Officer. 4. New York sues New Jersey in a case to be heard by the United States Supreme Court sitting as a trial court over which state controls one of the world’s largest ports and cargo shipping businesses. 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 the midweek edition of legal AFI Michael Popok and I'm joined every Wednesday with my co-anchor Karen Friedman at Nifalo tonight. We're going to start with picking up with where we left off last week where we talked about the Buffalo shooting. Unfortunately we have another mass shooting event and this time in a middle school again in Texas and a Valditexis or hearts go out anywhere between 14 and 18 middle school children have been shot and killed by an 18 year old in Ovalde, Texas. As we said last week, we knew that the Buffalo shooting was not going to be enough to change

gun control law. And now we have another epic mass shooting in America. We'll also talk about the Supreme Court asked to referee the long growing fight between New York and New Jersey over who controls the ports and waterfront for East Coast's busiest port. Is it New York or is it New Jersey? And we'll talk about why is it even the Supreme Court? That is the Court of Original Jurisdiction hearing the matter. We'll talk about that.

We'll talk about a North Dakota federal judge, Trump appointee, who has stopped enforcement of the non-discrimination provisions of Obamacare to prevent a Christian insurer from being penalized because they don't want to pay for gender affirming care. Including, and I'm not making this up in the judge's decision on the grounds that if he doesn't enjoy them, babies will get sex change operations. Yep, you heard that right. The third story we're going to cover on tonight's pod is that the Supreme Court has hollowed out yet another criminal justice, criminal reform precedent on the books.

Clarence Thomas has written, who else a decision for the 6-3 majority over turning 10 years of precedent, which is undermining the ability for a prisoner to bring a habeas corpus petition on ineffective assistance of council grounds. And lastly, no show would be complete if we didn't go back to KFA stomping grounds and talk about the Manhattan D.A.'s office, this time led by Alvin Bragg, going to court this week to make sure that Trump's long time CFO, chief financial officer, Alan Weiselberg, has his criminal charges stick and that they aren't dismissed. What a pod, what a co-host.

Karen, how are you? I'm good. The shooting is obviously, the news is just coming out. It was 14 children, and then all of a sudden now I'm reading it might be up to 18. I think 21 people total. I think they might even be elementary school children. I'm reading as young as second grade, which are seven year old. Now they're second to fourth grade children.

Yeah, that's elementary school. These little babies. Yeah, 14 to 18 years old. You know, this is, this is, you know, this is, there's four to yes, four, you mean 14 to 18 kids have been, yeah, we're killed. Yes, exactly. But they're little, little tiny kids. And it's like the Sandy Hook elementary school shooting, you know, and then Sandy Hook, it was, I think, 20 kids were killed. And that wasn't enough for gun reform. But here we have another, what's looking like 18 children, 18 young children also murdered

in another shooting. And it's just, it's not going to happen. And, you know, I think what, I think it's interesting. And, and if you sort of read what's coming out, and, and I know that later tonight, the president is going to speak to the nation about yet another shooting and we'll learn a lot more between now that we're when we're taping and when this actually airs. But we're sort of already seeing a lot of the same rallying cry. You know, the people on the right who are second amendment people and love their guns are already saying this is why more people need to be armed because you've got someone like this this shooter who is unhinged, kills his grandmother

and then goes and shoots up an elementary school. More, if more people had guns and more people who are armed, they could have protected these children. The teacher should be armed, everybody should be armed and they truly believe that. And I think I predict you're gonna see a spike in gun purchases after this, because this is what happens, and you'll also see schools with armed guards, so that nobody can come in and do this sort of thing. So, it's interesting.

I was thinking about this today, and thinking I happened to be at the White House and was there when Obama was giving a sort of post-Sandy hook speech to a fairly large room full of people. It wasn't like I was there talking to the president, but it happened to be in the audience. And he cried. He actually cried. It was so powerful and so such a difficult, you know, just seeing these young children be victims of mass shootings like this. And I'm sure Biden will be equally impassioned, but I just don't see anything changing.

And if anything, I see more guns being purchased because that's what history has shown us that after each mass shooting, there's a spike in gun purchasing. Well, that's the role of the of the commander in chief of the president United States to be the compassion person in chief. And we saw it with Obama, the Sandy Hook. We all saw it on television. You have, I didn't know you were in the room. That's that's amazing. It was pretty incredible. With tears in his eyes, we see it with Biden.

Unfortunately, he's now had to take the podium in the White House now the second time, second time in a week to talk about the loss of innocence, the loss of innocent Americans in this case children. You know, we didn't see during the Trump days when there was mass shootings and there were mass shootings during the Trump administration. We never saw him take to the podium. We never saw him comfort the nation because to do so would be to undermine his, in his view, his base and their beliefs about the preeminent role of the Second Amendment in their life. And really over all the other amendments and all the other liberties. really over all the other amendments and all the other liberties. And the result is, as we said, last week,

if 20 plus children in Parkland, I'm sorry, in Sandy Hook was not enough, if 18 in Parkland, Florida was not enough, 14 in Texas. What is the number we asked rhetorically? That is enough to get the leadership of the GOP to move to the center and pass legitimate, meaningful gun reform in this country, recognizing that we're not talking about eliminating the Second Amendment from the Constitution. It's not going anywhere. We talked about the reasons why last week, but you can have sensible gun control

and gun reform around it at the center aisle. And we don't, because we don't have the leadership, you need leadership, not pandering to your base, not pandering to your social media crowd, not throwing raw meat to your base, not pandering to your social media crowd, not throwing raw meat to your voters, your core voters, but leadership. And we are lacking the leadership on the other side. I mean, Elon Musk had some ridiculous comment last week that he's, I used to vote Democrat, but I'm going to switch to Republican because it's the Democrats that are to the public and because it's the Democrats that are roiling up America and causing division.

Are you, Evan, out of your mind? We have been waiting in the center aisle for leaders to come join us there to pass sensible, fill in the blank policy, whether it's related to gender rights, transgender people rights, abortion rights, and he's so you fill in the blank social issue. And of course, at the core, the gun control around the second amendment. And we're the left standing at the altar with no other leader from the other side, joining

us to do bipartisan legislation. That's it. Plain and simple. Look, we've we've devoted an entire show to it. We were sorry to bring the first episode back on such a dower moment, but Karen's right. We talked about it pre-recording. It would be foolish for us and to have ignored the shooting. As we get more details, Ben and I'll cover another weekend and beyond. Let's, let's turn now, Karen, to the four, four topics that we're going to cover today. And let's, it's a weird segue, but let's change gears and talk about the Supreme Court, and what's called original jurisdiction, that the Supreme Court has in very limited circumstances. In this case, when two states are fighting over something that matters to them, and that is the Waterfront Commission,

which if some of the people like me that like old movies will remember the movie on the Waterfront with Marlon Brando, which came out a year after the Waterfront Commission was formed by the states of New York and New Jersey in 1953. That commission, which I learned and doing research for the pod, consists of two commissioners. I thought it was like this big giant commission that had like, you know, a dozen people on it, like a giant board. It's not it's one from New York and it's one from New Jersey. There is a contract called a compact

when it's between states, between the two states that regulates all activities, workers, licensing and the like, policing in and around the ports of New York and New Jersey. And cargo traffic that happens along those waterfronts. Now in 1953, it was about 80% New York cargo going through New York, 20% New Jersey. Today, in 2022, it is 80% in New Jersey and 20% in New York. And New Jersey's sort of had enough with the log jam of two commissioners, no veto power. Basically, the New York commissioner having as much power as the New Jersey commissioner

over these issues, even though New Jersey has, by far, all the fees, the costs, the expenses, and the issues on their side of the harbor. And so, you know, people have gone to court entities have gone to court to try to either keep New Jersey in the contractor compact with New York or for New Jersey to get out of it because they want to get out of it. And so the fundamental question Karen is, can a state that is signed a contract with another state to create something, to work together towards something, can one exit when either the usefulness of the original contract has now fallen by the wayside, or just because it wants to. So that's the question. Can New Jersey exit the compact? What do you think?

So this is one of those, it's funny. So the Waterfront Commission is the New York Commissioner is this gentleman named Walter Arsenal. Walter Arsenal used to be among other positions. He worked at them in Hatton D.A.'s office and he was the head of the homicide investigation unit. And I was for him. I worked under him. You worked for him many, many, many years ago. Hey, I love the story. So Walter Arsenal is sort of a legendary crime fighter. He was somebody who back in the heyday of the early 90s, late 80s and early 90s when there were just crime was rampant in New York City and in Manhattan.

I mean, there were stories that used to go around back then that police officers would go down the street and they would see what looked like a group of men or a group of kind of kids kicking around what they thought was a ball and it was a person's head, you know, or they would torture up people, these gangs would torture people by gouging their eyes out with hot spoons.

And I mean, just the, I remember the stories, but I was in the homicide investigation, you know, I think it was in the late 90s. And back in those days, it was a reason to have that kind of crime fighting because, you know, just they had to get murders under control. There was, you know, 5,000 murders in New York City and, you know, just like 10 times the amount of serious crime as there is now. And that was Walter. And so Walter left and became head of the Waterfront Commission after escaping, I think 13 years

ago, the inspector general of New York wrote a scathing report about the Waterfront Commission and it was corrupt and all these bad things were happening. And so they brought Walter in to kind of reimagine and reinvigorate and clean up the waterfront commission. And by all accounts for the last 13 years, he's doing an excellent job. You know, he is the real deal. And so even given all of that history, I kind of side with New Jersey on this one. And I know that's a little bit, it's a goes against my home state, you know, and I hate to go against, you know,

all the people I respect, all the people I respect and have worked for have signed on and said New York should, that keep the Waterfront Commission. And so it's hard for me to go against, to go against what people I respect believe. But I just really think it's a little outdated, you know, it was, it was created. It was created because there was the mafia, and there were all these horrible things going down there. But really, it's now, I think, kind of outdated red tape. And so I think that it's really caused a little bit of an issue. If you ask people who work there or union people,

it's really caused an issue for them to attract good people and to hire people and to be nimble and to modernize. You know, and it's time to modernize. And so, and the other thing too is they really have sort of a policing function. And we have enough, you know, with state police, we have the New York City police, we have the New Jersey state troopers, we have, Troopers, we have the federal, all the different agencies that the feds could do there. We've got many prosecutors. I mean, there's kind of more than enough, we're not, you know, sort of in the middle of nowhere. And I don't know other, it's not the only waterfront, you know, state waterfront in the United States. And I don't know

other waterfront agencies that have this kind of agency that mires you down in red tape. And do you do these background checks? And it's just, you know, I'm not saying walk away and have lawlessness, but it just seems like this is a relic of the past. And it's kind of time to modernize. Like I said, I feel weird saying it. But I think the issue it comes down to the question you asked, which is can a state unilaterally unilaterally pull out. And what does this mean for other unilaterals, kind of agreements between New Jersey and New York? I think that's where I think that's where I think Jersey is right.

I think if the if the contract that you sign with your fellow state is silent about who and how you can depart the agreement, I think you're allowed to depart the agreement. Otherwise, what's what's New York's position being led by the New York Attorney General, Tisch James and Governor Hocal? You can never leave the contract. Well, that was the other thing, exactly. Yeah. Or even if it is, even if it's not silent, even if it says something, do cut. I mean, can you really bind two states forever? I mean, it seems I'm not a contract lawyer, but that seems ridiculous too, you know?

So that's the point. Now, this is an interesting procedural thing and we'll round it out here. The state was, New Jersey was actually sued first by the commission. I don't even know how, when you have two people the New Jersey commission or in the New York commission

or agreed to sue New Jersey is really weird. But the commission and its own name sued New Jersey and lost. It went all the way up to the third circuit, which is the circuit for appeals in New Jersey, and they lost. And then the Supreme Court looked at the matter and refused to take up grant, what's called

certiorari and refused to take the appeal. So New Jersey was like, okay, we won at the third. Supreme Court didn't tell us anything different. Let's dissolve the commission and they had a whole plant. It's not like you said, it's not like they were just going to like leave it to like some chaotic state and see what happens at the port. You know, they were going to use the New Jersey state police and their investigative units to police and license and do background checks and that type of thing because they're set up for it

and they're already there. And and that's what New Jersey was going to do until Governor Hockel. And I know she's a friend of the pod and she's a friend of my sister. I know. That's why I said it's hard for me to go against this. And Tish James, New York Attorney General, we like her and a lot of different areas. Yeah, look at them. for me to go against this. And Tis James, New York attorney general, we like her in a lot of different areas. But she brings a case in March, where she goes directly to the US Supreme Court, because it's one of the few things that you don't, that you don't go, states don't go to a lower level court when they haven't dispute with each other, states by constitutional right go to the US Supreme Court who sit as a trial

court, not as an appeal court. It's one of the few areas. There's only a couple has to do also with countries that fight with each other or fight with the United States. But then the Supreme Court doesn't wear it's a pellet hat looking at the right. It wears a divorce court hat. It wears a divorce court. Because New Jersey and New York are trying to get divorced. And they need a divorce. Now, interestingly, even though the Supreme Court, when the case was the commission versus New Jersey, the Supreme Court did not agree to take the appeal and sort of let it lie with the third circuit's ruling in favor of New Jersey. Now, they've actually issued as a trial court in

injunction as of a month or so ago to stop New Jersey from pulling out of the commission, taking its fees with it. That's really what this is about. Money, if New Jersey doesn't pay the fees, this commission has no money and it basically goes out of business. And the Supreme Court said, you know what? Let's preserve the status quo until we have a chance to rule. But they haven't even said they're going to take the case. It's the weirdest procedural posture so far that I've seen. So why did the commission go to the federal courts and have to go to the third circuit? Why didn't they just go straight to the Supreme Court? Because it wasn't New York versus it wasn't a state versus a state. It't a state versus a state.

It was a commission versus a state. And that can stay at the lower level because the original jurisdiction of the Supreme Court is no pun intended. It's supremely limited to a very narrow set of things. State versus state. State versus another country. Another country versus another country or the United States. That goes fast track trial court, Supreme Court. Everything else, if you don't have those combinations, you have to go to the Supreme Court's like, no, so that's the peculiarity.

That's another peculiarity. So we don't even know if the Supreme Court's going to ultimately rule, but they did issue an injunction and we'll have to follow it. I thought it was a good way for the legal layupers to learn about the Supreme Court in different contexts. In this case, original jurisdiction when they sit as a trial level court. And also, I think it's fascinating to watch New York and New Jersey bash their brains in about the about the waterfront.

I think I always side with New York, but that's why this is what I thought, you know, because I'm a New Yorker. I am not a New Jersey. And I like the case because I, you know, I'll do a shout out. Tom Dewey was the governor when in New York, when the Waterfront Commission was created, and I'm friendly with Tom Dewey's grandson, who's a very well-known lawyer here in town. New York City bar, right? Yeah, there's a friend of Sivans and all that. So this whole thing goes spiraling around.

Let's be quiet. So really quick, I had to just say one other quick story. I just remember, as we sit here, I trained the Waterfront Commission employees because they have a staff. I trained them all on sexual harassment and sexual assault and all of that. So anyway, I just remember

that as we're sitting here, but let's move on. This is what we bring to the pod. So let's move on to what is happening in North Dakota federal court with Judge Daniel trainer. This one kills me. Yeah. Who before he got appointed to the federal bench, worked for his great grandfather's personal injury law firm in North Dakota, and then got appointed in 2019 by Trump, and then ultimately confirmed. He's decided that the, uh, this is a case that was brought by the Christian employers alliance, which is a self-funding entity, apparently, of Christian employers, who, um, are, are under the auspices of Obamacare past the decade ago, more than a decade ago, another chipping away, attacking things on the Democratic Progressive Agenda or Docket.

In this case, can and insurer, in this case, a Christian one, refuse to provide gender affirming healthcare in effect discriminating against people who are transgender or otherwise. Can they do that and not violate federal law, violate what's called a title, a title seven action, and under the Equal Opportunity Employment Commission, the EEOC, whether they will be found to be discriminatory, and this entity, this insurer, this Christianity, said, it would violate our First Amendment rights, a freedom of religion to force us to pay to have, and this was in their briefs that the judge

adopted, babies have sex change operations. I can almost barely get that out without cracking up. But this is the boogie man under your bed that Republicans and QAnons use to portray Democrats and QAnon's use to portray Democrats as out of sync with mainstream America when we are. So they take something that is not in the Biden administration regulations, nor in the language of Obamacare, and they take it to a ridiculous, extraordinary... Nor would any doctor do it, or... Nor would any doctor give a sex change operation to a baby and use that as a way to get the judge's attention with a shiny object and say, Hey, judge, you got to enjoy this or or or doctors all over America are going to be giving sex changes

to babies of it. And I would have thought the judge would say, well, I don't think that's happening. But here's a, here's a reasonable, uh, with integrity analysis of why, you know, the First Amendment is violated by that provision of the, of the Obamacare. But no, he said, I got to stop babies from being having gender affirming, um, sex change operations. And he has enjoyed for now the EEOC, at least in North Dakota from enforcing the anti-discrimination provisions of Obamacare. And then it'll go up.

So you don't think it's a plot, since he's the only judge who's ruled on it, you don't think it applies nationwide until another judge comes in and rules. Well, it close. I don't think he issued a nationwide injunction. However, if he's the only precedent that is out there, it's sort of the binding precedent that could be, but, you know, another judge somewhere else could say, especially outside of North Dakota, like a New York federal judge sitting in the Southern District of New York. I don't think is going to adopt the reasoning there. And then we're going to have a conflict between two of them has to go up to their appellate courts, the appellate court for

North Dakota would have I don't recall which one that I want to say the eighth, but I'm not sure. And the probably the eighth. And then the appellate court for New York. And then that would end up at the Supreme Court where they love, they love themselves, their First Amendment religious rights led by Amy Coney Barrett at the Supreme Court. So for people that think, no, when it finally gets to the Supreme Court, you know, justice will prevail and adults will make proper decisions. I'm not sure about that. What do you think, Karen? So I have two thoughts and two questions. So first of all, I'm just thinking back to the mask mandate case. Do you remember the woman, I can't remember which judge it was?

No, so no, the district of Florida. Yeah, whatever her name was. And that, and that was just, they forum shop, they found a friendly judge and she ruled, the one who'd been a judge for five minutes, she like, you know, never practiced law, et cetera. Her name would come to me. And that was, everybody decided, okay, that applies nationwide, you know, because she was the only judge who ruled that way. And I guess my question is, why is this different than that? In other words, why in that particular case, she could make, she could rule on a case and the implementation of

something in Florida, but it has nationwide implications because it's the only one who's ruled that way. And then of course, everybody said, no masks on the airplanes. Well, it depends on what they're applying. It depends on what they're asked. If the court can try to grant a nationwide injunction, if it's briefed and that's the request, some judges realize that they shouldn't grant nationwide. But the problem with these attacks on the Biden and the Obama administration

is the plaintiffs are always asking for nationwide injunctions and until, you know, and then you have judges like Rideau Conner, who's the go to, usually I was surprised this actually wasn't filed in the Northern District of Texas in front of Rideau Conner. He's the one that took away Biden's role as the commander-in-chief about the seals being vaccinated, but he also ruled about the Catholic insurers not being required to do certain things that were against their First Amendment rights, which I'm sure was case law cited in the case in front of Judge Trainer in the Northern District of Dakota.

But you're so right that these plaintiffs groups are finding that those judges that will give them the result that they want, knowing that they have the numbers at the US Supreme Court, if they can just get a federal judge, and then they also have to find a federal judge in a really friendly circuit, like the fifth circuit, the 11th circuit, may have to look a little more into the eighth circuit. They don't want to put cases where the second circuit out of New York is going to make a ruling or the ninth circuit out of California, because they know that's not going to be in their favor.

So they do two things. The circuit, the trial court, and then the judge. And the judge will be a little... Probably, well, before I'm shopped like that, how can you take a look at that? Well, the judge is a and then the judge. And the judge will before I'm shop like that. How can you take a little bit different? Yeah. The judge is generally a wheel that spins, but they're looking for places where frankly, there aren't a lot of judges. How many federal judges are there in the northern district?

No, in the district of North Dakota. How many people are in North Dakota? There's probably, I'm gonna look it up before we're done. I wanna say there's five, because Utah's got like four. So you got a one in five chance, or you got better odds if that group is whatever. You try to file something in New York or California,

you've got dozens of judges that you have to pick your way through. So there it's maniacal and it's methodical about where they choose and how they try to thread that needle to find it. And then you've got to have, well, why are they in that court? Like, what is the jurisdictional hook? What is the interest of that of that what's that interest of the state that that puts it in North Dakota? Well some of these insurers some of these insurers these businesses were in North Dakota. So it's all concocted from the very beginning. You get these groups that they make up they find a plan if they create a plan, they create a law firm around the plaintiff, they find

the place of least resistance, they file it there, they pray to their God that they'll get one of the two judges that they're looking for. They get it, if they don't get it, they dismiss it. If they don't get the judge they want, they will dismiss the case and try again another day. So what is the specific finding and holding and rolling? And how does it translate to life transgender people in North Dakota? No, really, like what like from a from a like, so it's what I said, the insurers can discriminate against people seeking gender,

affirming care by not paying for it, and it will not be found while the injunction is placed to be a violation of Obamacare, and therefore a violation of federal law that the EEOC enforces. So the EEOC cannot find So the EEOC cannot find that the insurers have discriminated against people who are transgender or are looking for gender-affirming health care if there is a denial of coverage by the insurance company. But insurers can also pay it. In other words, if I'm an insurance company that wants to stand up for this, stand up to this sort of nonsense, I can still say I am going to pay for this if it's deemed

between the individual and the doctor to be medically appropriate. right? Like an insurance company can still do that, right? If they want like, every insurance company, every insurance company does it. And because they don't want to violate the anti-discrimination provision of Obamacare, except groups that are religious have tried to argue that you cannot find that I have discriminated because I have a First Amendment right to religious freedom. This is the first injunction in 10 years, 15 years of Obamacare against the application of the non-discrimination provision on religious grounds. Second, if you count the one that reads Smith did in Texas. And back to my, and back to my earlier point, as I suspected, there are two judges, two federal judges in the district of North Dakota.

That's it. So you got a one in two chance. Perfect place to fly. Yeah. So that's where we are on that. And we will follow that. And as it moves its way, and it is the eighth circuit, as it moves its way to the eighth circuit, we'll see what the panel is. And they'll be in appeal. I'm sure a fast track appeal based on the instruction. And we will go from there. And in the meantime, religious organizations

that choose not to pay claims related to gender affirming healthcare, will it looks like for now, not after worry about being found to be in a discriminatory posture, period. That's who we are with that. So in this uplifting edition, the legal A up midweek, let's go to the Supreme Court

and what it did in a six to three decision written by Justice Thomas to attack and undermine what had always been the last resort of a prisoner, many of them on death row, to argue that they had ineffective assistance of council in the in their state court because most of these are state court proceedings, but there was always a path to the federal court on a habeas corpus petition to argue that that the prisoner at the trial level in his state had ineffective council because they missed something. They didn't bring forward evidence that would have exonerated what we call exculpatory evidence at the trial level. They didn't properly investigate mental capacity or the inability of the prisoner to have committed the crime because he had a

six IQ or she had a six IQ or something like that. And just as Thomas, you know, just, you know, biting his time until he got the numbers has now revisited yet another precedent that's only about 10 years old or so and said, yeah, what we said in the case from 10 years ago, Martinez about ineffective assistance of counsel is true, except if you're a pellet lawyer, the lawyer that you use to to bring your case has not proper doesn't have the facts that he needs or she needs from the from the lower case to prove ineffective counsel by the trial level, they're not going to be able to have an evidentiary hearing or a mini trial over the issue,

no more new evidence to assist that claim. If it's not already in the box for the trial level, we're not going to allow the appellate lawyer to develop new law to support that petition, meaning more people who may be innocent are going to die on death row. What are your thoughts there, Karen? So, you know, this one is very ironic to me that ineffective assistance of council claims that succeed means in lay persons terms, you had a terrible shitty lawyer, okay? I mean, that's what it means.

And what this ruling is basically saying is that you can't, if your lawyer was so shitty that it wasn't raised below or developed below, you can't raise this in federal court. And so to me, that's just ironic because, and there's no guarantee that you're going to have an appellate attorney, right? I guess if you're a death penalty, if it's a death penalty case, you'll have an appellate attorney, but you don't have a constitutional right. Six amendment does not guarantee the right to counsel post conviction. And so, you know, some are better than others, you know, and if they don't, I like the way you said it, if they don't have the facts, you know, and they get them later, I'm actually thinking they're

just not that potentially not that good of a lawyer, and they don't raise the issue. And so therefore, you are barred from raising that issue above. And especially in a death penalty case, that should not be an area where we hang on procedural technicalities. When you're taking away someone's life in a death penalty case, and it's about the one thing in the criminal justice system, obviously, can never be reversed, it can never be reversed.

It can never be changed. And you got to make sure you get it right 1,000%. And there's what the famous quote, it's better to let an innocent person go free then to go free then to convict an innocent person. And every prosecutor I ever worked with believes that to their core. And you got to get it right. And in a death penalty case, I just don't understand,

you know, how they could possibly, from just a humane and humanity standpoint, you know, you look back in history and all the times that people post being killed, frankly, you know, I always think the death penalty just to put my cards on the table. It's premeditated murder, you know, and the part of the government. So I'm very anti-death penalty, even if you know a thousand percent that you got the right person and even if it's the worst crime on the face of the earth, I just personally think it's premeditated murder. But putting that aside, you gotta get, if you're going to do it,

you got to get it right. And you got to get it right 1,000% at the time. And if you had a terrible lawyer or your lawyer was ineffective, and they didn't pursue claims of innocence, for example, that's something that should never be pursued really bad, in my opinion. Similar to if you have a low IQ and you're mentally disabled, those are, again, aren't procedural technicalities. That's not like you weren't read your Miranda warnings or you didn't get a search

warrant or something when you should have. You know, those, these are fundamental, you know, you didn't get, these are fundamental things that go towards your ability to formulate intent and your guilt, your ultimate guilt or innocence. And again, if you're going to take someone's life to me to eviscerate the ability to make these arguments and the Supreme Court are just, you know, they're just completely wrong. And it's, in some ways, it's incentivizing bad loyering, you know, frankly, because you can't, there's no consequence to it.

There's no consequence even at the appellate level. So if you don't raise it, then, you know, you haven't preserved it. So, so this is a case, you know, the other thing about this case is strange. In addition to what you mentioned about how it's overruling yet another precedent and eviscerating yet another precedent. And, you know, to me, 10 years is not, you know, we say only 10 years. That's because we're comparing it to the leaked, you know, dobs versus Mississippi precedent.

But 10 years is still precedent. But here, you know, this is, this is a case where they're saying, basically there's a statute, you know, this is this is a case where they're saying, basically, there's a statute, you know, the anti terrorism and discrimination. What is it? A DPA stand for? I almost can't, I can never remember. It's the anti terrorism and effective death penalty act is what it stands for. And if that's a statute that was passed in 1996 that essentially says that you know, federal courts cannot hold evidentiary hearings if the defendant did not develop the facts in below and state court. But then in 2012, so 2012 is after the 1996, the Supreme Court ruled in a case of, called Martinez, where they ruled that there is,

ruled basically that you can in these instances make these arguments about ineffective assistance of council, et cetera, you know. And basically in this particular case, what they're saying is the statute, the statute trumps a case. They're saying that Martinez was judge made or judge created law and statutes, which is the legislative body, they created the anti-terrorism and death penalty act and so that controls. And so they didn't want you to be able to do it. So that's the one that controls.

And I think Thomas in his 22 page decision, 11 of which, where it was all I did was talk about the terrible facts, because this is a bad case, terrible guy, so that you don't feel sorry for him and that you will ultimately say, OK, you did the right thing here. He's basically signaling that when he's always signaled and he's just consistent, that he doesn't believe in judge-created law.

He thinks that judges should call balls and strikes. And if the legislature or the constitution or someone else wants to write the law and write the statute, that's what controls. And that's it. And this is another case where they just said it doesn't matter that there's precedent. We're going to go with what the black letter law says and we're gonna interpret it that way. But I think he got it wrong here.

And I will say I missed the days when he didn't talk. You know, is it true? Is it true that he only asked one question the entire time in oral arguments that he was on the bench until the pandemic and when they went to Zoom and now we can't shut him up? Is that true? Well, it's sort of, it's partially true.

When he was in the minority, or when the court was closer to a five, four, where decisions hang hung in the balance depending upon consensus building and the opinions, he rarely spoke. When he's gotten emboldened after Trump, and now we know why, with the Ginny Thomas revelations and the emails about Jan 6th, he's gotten emboldened with the addition of corsage

and Kavanaugh, and now Amy Coney Barrett. And as he got the numbers, as I like to say, he's gotten more vocal, and now he's written more decisions that matter in the majority. Yeah, this is now, this is the, the last two years, we are seeing the renaissance of Clarence Thomas. He's bided his time for 30 years. You know, he went through a appropriately rough confirmation process because of his own sexual abuse and misconduct. And he's never forgotten what he's called at the time, the electronic lynching that he went through, the televised lynching that he said he went

through purposely using language, loaded language, race-based language, related to his, never gotten over it. And he's just waited to get into the majority. And now we are seeing that he's payback time. And anything that he and the others have seen on the shelf of the Supreme Court in terms of precedent that they haven't liked, I think they must have the shelf of the Supreme Court in terms of precedent that they haven't liked.

I think they have must have a list of the things over the last 20 years. And it's just clear the shelves time while we still have the numbers. Let's just, what's that precedent? You want to get rid of that abortion? Sure. Let's get rid of that. All the stuff we had about privacy rights, trends, transgender people and gay rights. Nope.

That's gone. You know, you know, until we don't have the numbers, which completely, you know, hollows out the argument as he likes to say and Roberts likes to say is we're not, we're not a political bunch. We're umpires, balls and strikes. Nothing could be further from the truth. And it's laughable to have them. And they'll continue to do it all summer while they're on hiatus. Until we see the appearance of of Katangi

Brown Jackson, who's just got through picking all her clerks and she's ready for the new term. But the summer is usually when they take a little bit of vacation, they get all these expense paid trips to foreign countries to talk about comparative law. They go to law schools like unfortunately mine. I just found out that Alito of all things has been a visiting professor at Duke for the last year.

I've written something about that. Having now found out about it, how embarrassed I am about that. But you will see a fair amount of vocal defense about from the six in the majority about them and what they've done. And we'll see more of that over the summer. And now the briar will be retired. I would like to see what he says is he just going to slink off like, you know, like you never hear from the ex Pope again, like when Benedict resigned, you never heard from him again. Are we going to hear from briar about what's really going on there?

I hope so. Or is he going to slink off like suitor who was never, who was never heard from again? Kennedy is a different time. Different times. Let's see. Let's see. I hope you're right. Well, let's move on.

We've, I think we've covered as much as we can cover about this decision. Let's move on and end the show with not Tish James fighting it out with a Trump organization, but an entity we haven't heard from in a while as it relates to Donald Trump. And that is Alvin Bragg's Manhattan DA's office and the reappearance of Solomon Shindrock who I swore had been fired from the investigation, because we hadn't heard from him in a while. And Alvin probably sensing that Solomon Shinerock, the assistant district attorney needed to make an appearance

went to court and argued against, or filed a paper anyway, and argued against the motion to dismiss that was filed way back in February. I don't know why this is just being fully brief now in May, but back in February, the Trump Organization and Alan Weisselberg, the former Chief Financial Officer filed a dismissal, argued of their charges against them. We forget there's a couple of entities that have been charged with crimes by Syvance and or Alvin Bragg, the Trump organization being one of them. And Alan Weisselberg based on some grand jury testimony. Part of it is his his former daughter-in-law, Jennifer Weiselberg,

who testified about tens of thousands of pages of documents sitting in their house about what her father-in-law did and what all the money that he got unreported from a tax standpoint, which is a tax evasion prosecution, totaling a million five over 15 years, private schools being paid for by Trump that was not a taxable income to Alan Weiselberg, chauffeur limousines, ubers, you know, apartments that were bought not just for Alan Weiselberg and paid for, but also for his son and all of that. And so they argued in their moving papers, Trump organization in L.S.alberg that this is a vendetta of Tish James again, they got the wrong office, that's one problem, that it's selective prosecution.

I want you to talk about selective prosecution that he has immunity because he testified against Michael Cohen in a federal grand jury. And therefore, he has some sort of immunity from suit in the state proceeding. So we've got federal versus state immunity, Karen. We've got selective prosecution as a defense. And then we've got something that you'll be able to comment on, the vengeful witness doctrine. When you have a vengeful witness, they think this is all concocted by Michael Cohen, who gave to the Manhattan DA's office in their view, all of the information about about Weiselberg to pay Weiselberg back because Weiselberg testified against Michael Cohen in the federal case.

This is amazing. And I'll leave it this until I turn it over to you. I'll leave it on this one. Solomon Shindrock on behalf of the office files the brief and says this is in the opening preliminary statement. He says this is an ordinary case, an ordinary case of tax evasion. Nothing says ordinary case, like 117 pages. That's what I have that I thought. I was like, come on.

You know, I saw. There's nothing ordinary about this. Right. If it's ordinary, you know, do like 20 pages, 117 pages. But he had nothing ordinary about this case. He had to address all of the defenses that were raised. Let's start with each one of them. What the heck is Weiselberg trying to argue with federal and state immunity from grand jury

testimony, selective prosecution defense, and vengeful witness. Walk us through it succinctly. So, basically, this case, so, you know, it's interesting. this brief, as you just said, this is anything but ordinary. There's 117 pages of a lot to unpack. And so that's why it took three months. This is a beautifully written, beautifully sourced. You know, this probably went through many, many, many different brilliant legal minds in the Manhattan D.A.s. office to get this exactly right.

And it's basically is saying that, I mean, and you know, they make the, the Weiselberg and Trump org made kind of twin motions to dismiss. And this was the response to both of them. I don't know if you noticed buried on like page you know 111 of 117, they do admit the Manhattan D.A.'s office does admit that one of the counts was barred by the statute of limitations. I thought they sort of buried that in there, but it was sort of a nothing, nothing thing to concede. But there were some, you know, heady legal questions. So one of them, as you said, was sort of this, you know,

can the state bring this case? Because it's really talking about federal tax crimes. And, you know, that, that, that a tax prosecution is federal. Well, you know, in New York, we pay state tax and we pay federal tax. And so we both have jurisdiction. And so they sort of address that in that, that it's something that, you know, that New York prosecutes all the time. And that is true, you know. And so that in the sense, and I think what Solomon Shiong Rock was saying about this is at his core ordinary is the fact that the state does prosecute state tax or,

you know, just tax evasion or tax related cases all the time. So that is the thing that's ordinary, you know, nothing about this case is ordinary as you said, but that is what's ordinary and that was the argument that he was making. And so, but, you know, they were trying to say, no, this is not appropriate. What is selective, yeah, but what is selective prosecution? Is that's, let's take the three defenses. What's selective prosecution? How does it work? So selective prosecution, the claim is you basically have to say, if I remember correctly,

this is something that is, that basically, okay, looks back up. When you are analyzing whether a prosecution is a selective prosecution claim, there's a presumption of good faith, right? And a presumption of regularity on the part of the prosecution. So you presume that,

but the defense has to allege that somehow you are prosecuted because of race, religion, or somehow that this law was applied to you different than other people who were similarly situated. And so that was what they were trying to say. It was you're singling me out, not obviously not because of race, religion, or anything like that, But you're singling me out because I was associated with the Trump organization, and you're hoping that I will cooperate against him. And when I didn't, you brought this case against me, and that's why you're sort of selectively prosecuting me

and eventually prosecuting me. I mean, that's essentially what these papers are alleging. And so, the DA's office had to take these claims one by one and had to address them and show how, first of all, know this is an ordinary prosecution. They do this all the time. Second of all, just because, you know, you came in to talk about whether or not you were going to cooperate in good faith. We do that all the time. We decided not to. That's fine. You know, we still went forward. The other thing they not to. That's fine. We still went forward.

The other thing they tried to say was that this was a vendetta that Tish James had against against Weiselberg. That's what was sort of the animus here. The other thing that the DA's office had to dispel was how did this case start and when did it start? And, you know, they talked about how there was some investigation for going on and then they put it on ice for a long time because the feds were doing this and in fact the feds actually gave Weiselberg immunity

and he testified against Michael Cohen who was prosecuted federally. And so what these papers said and what these papers established was that no, this was actually, this actually came from an article that the prosecutors read in Bloomberg in I think 2021. And that's what caused them to kind of dust off their investigation and look at it again because there was some detailed information. Actually, no, I think it was 2020.

In November of 2020, there was Journalist from Bloomberg that had an article that talked about these violations. And so they sort of dusted off their file and said, um, and said, you know, we're going to, we're going to investigate this. Now they also, the Manhattan DA's office, the night, and this was in their papers, walled themself off from the federal prosecution because Wiselberg was granted immunity. And so they can't, because Wiselberg was granted immunity, they can't get any information as a result of his cooperation or testimony or as it compelled testimony because it was granted immunity

for compelled testimony. And they walled them and one last thing. They walled them salsa off from the New York Attorney General's investigation because the reporting is that night that they did not know at the time that both offices, the New York Attorney General, the Manhattan DAs on the state side, were both investigating Waiselberg. Correct, correct.

But then in March of 2021, the state tax, okay, referred the case, a tax referral. So remember we talked a while back about, do we want the Jan 6th Committee to make a referral to the DOJ? We talked about that and I said it's not a thing, you know, a criminal referral is not a thing, you don't need that. There's an exception and that's in tax cases because tax, your tax records are kind of sacrosanct, you know, it's almost like, that's why

it was so hard to get the Trump tax records. It's like medical records or, you know, it's almost like that's why it was so hard to get the Trump tax records. It's like medical records or you know, it's one of these sort of special things that's very, very hard to get. And so you can't even get your state, you can't get your tax records unless there's a referral. And so the New York State Tax Department, I can't remember what the agency's called. I'll talk about my head right now, but they referred the case to Tish James. And so that's when they all sort of came together and Tish James brought, and it kind of did a joint investigation and they sort of went forward,

but just to kind of keep each other informed, advance in these papers, it said, advanced at all of the decision-making, James, Tish James did none. She had no authority, no decision-making, nothing. This was a side-vance-led investigation, and all of this was laid out in the moving papers, the affirmation and the moving papers,

but it was very interesting. A lot of it was very arcane, and, you know, I just just thought I have to admit that I kind of skimmed part of it, because I just couldn't bear to read some of the stuff that they were saying. But basically, that's the gist of what was going on. But I think it's beautifully written and very well done. So here's our production. And you tell me if we're wrong. The moving papers that dismissed the motion to dismiss the indictment against the Trump Organization of Weisselberg is gonna be rejected by the court.

Oh, a thousand percent, yeah. That's right. Right, don't hedge. Thousand percent that it's gonna be rejected. And the three main defenses that Weisselberg has raised, one that he had immunity at the federal level, doesn't apply in a state level prosecution that think that the as the papers layout filed by the Manhattan DA, that selective prosecution has not happened here, that it's he's not being singled out because of some condition or animus or vengeful prosecutor, because the vengeful prosecutor,

by the way, is the wrong one. This is the Manhattan DA's office that is bringing the case as a prosecution, not the civil side with cischames. And thirdly, the vengeful witness, which is their argument that the entire indictment is somehow based on Michael Cohen. I forgot that. Yes. Michael Cohen goes out the window because I think they made, as you said in the beautifully written papers, a legitimate, good faith argument that it had nothing to do with Michael Cohen,

that they did not pick up this investigation on the criminal side until the Bloomberg piece in which Bloomberg, who obviously had a cooperating, you know, informant, probably at the accounting firm, started to say, we should look into Weiselberg and all the luxury items in his life that are being paid by the Trump organization and whether he's paying taxes on that. Now, let me ask you a final question related to this piece. How often, as a prosecutor, did you get,

or did the people under you get leads that were found because of the first amendment and news reporting agencies bringing basically stories and possible criminal investigations to you? How often has that happened? All the time. All the time. All the time. The Manhattan DA's office.. I mean not every DA's office is like that but especially in the in the Investigation division where they prosecute long-term white collar cases, you know, you they have staff who literally That's where they get a many of their leads, you know So you have staff at the Manhattan DA's office that Combs through the New York Times and all the other all the other newspapers

Bloomberg looking for possible things. And then what do they do? They're a researcher. What do they do with that information? Oh, I just saw, like you, we talked about art theft. We talked about the Kim Kardashian gold dress next to the stolen sarcophagus at the Met. Okay, somebody, some researcher, you know, your daughter works in one of these offices, finds it and brings it to whom?

Who vets this? So it gets up and escalates to somebody like you. Yeah, I mean, look, it happens, not just in my collar cases, it happens in hate-crime cases, it happens in sex trafficking cases. But how does it happen? How does it go? No, people, so basically, you have people whose job it is to base, who's looking underneath the surface, and looking for, this is presenting as one thing, but it could be much more serious or much worse. So what happens is, let's say a white collar mattered, just to continue this thread.

They'll look into something, they'll read about it and they'll say, oh, this first of all, it's a reputable news agency. You know, it's one that has multiple, you know, they're going to not just write something because one person said it or it's not, it's not legitimate. So it has to be a reputable news agency that you know has multiple sources and confirms the information, et cetera. You know, that's sort of that's primary. And then second of all, they'll start to look at other, there are other sort of public information that's out there and they'll start to do research.

You know, you can sort of research public databases, you can do research on people. You can also, you know, look at other types of financial information that's available to law enforcement. And they'll start to do research and they'll start to try to confirm some of the information that's out there and start to build enough information that looks like it's worthy of issuing subpoenas.

And so what do you have to do? But wait, you just wallpapered over my question and I'm gonna hold you to it. I'm the researcher I find it. Where do I go next? I go knock on your door or is there another person? How do I get? Okay, so so there are there are teams and units at the Manhattan D.A.'s office so and and they work with lawyers and so you'll have the financial frauds particular unit or you'll have the cybercrime unit or you'll have the major economic crimes unit or you know there's there's different sort of units and bureaus and and sort of groupings of people that have a support network that works for these types of long-term

investigatory cases. And so depending on the type of case that they uncover, they will go to the assistant district attorney that specializes in that particular type of work. And they'll work together to start to develop the information further. They'll say, or sometimes the assistant district attorney sees the same thing and goes to the

analyst and says to the analyst, looks to start to analyze, so go for me their place. So, so you basically, you know, you also get things from law enforcement, you get leads, you get leads from, you know, good Samaritans and whistleblowers, you get, you know, you get leads from all sorts of places, but in this particular type of instance, you know, and so you, whether it comes from the lawyer or the analyst, they're really teams of, and they have, they have accountants, they have real experts that work at the Manhattan DA's office. These, you know, some of them are, are, you know, young kind of, you know, just really excellent kind of investigate, investigators, but some have of just really excellent kind of investigate it, investigators, but some have really extraordinary expertise that they know how to develop this information, whether especially in the area

of financial crimes. You need a particular type of expertise and financial crime expertise. So they have teams of, I mean, just to give you context, the Manhattan DA's office has about 500 or so lawyers and about 1200 support staff. So there's way more staff than lawyers and many of those staff are investigators and analysts and paralegals.

And so, you know, it's like they have, you know, their own police force in a way, but it's not just a police force, it's a police force plus this sort of forensic accounting and forensic financial accounting abilities. So it's really extraordinary because they have experts in so many different areas, whether it's art fraud or terrorism

or forensic accounting or financial crimes or human trafficking or cybercrime. Or I could go on and on and on, obviously. But it's so in this particular type of situation, you develop the case together, you use all the tools and it could be with the cybercrime unit and cybercrime investigators. And the analysts from the financial crime experts or the accountants or whatever it is,

you build your team and you start to pull threads and you start to see what's there. And then you open up a grand jury investigation and you start issuing subpoenas. And then you get documents for documents know, subpoenas for documents. And then you get those documents, and the documents come in and you look at those, and those lead you to other documents, and you talk to witnesses, and you build a case. And it could take years.

It could take many, many, many years. And that frustrates a lot of people, you know, especially the trumps prosecution that I predicted and will predict will be a prosecution. I even think it's going to be off and brag. I think it could also be the Department of Justice or could also be Georgia or somewhere else, but I actually think the Manhattan DA's office is going to ultimately bring that case. That's what I think.

I have zero inside information. And I know I said I thought the case was dead when Carrie Dunn and Mark Pomerantz resigned, but I still think they're gonna bring a case, but it takes a long time. These are painstaking, methodical investigations when it's not a former president of the United States these are pain, staking, methodical investigations, when it's not a former president of the United States and when it's a former president of the United States

and someone who might run again, you're not gonna do everything you can to get everything you can. And that's what I think they're doing. And I think they'll ultimately bring a case. That's my prediction. Well, I like the ones that involve the Manhattan D. as office because we really get into the ones that involve the Manhattan D.A.s office,

because we really get into the hood with you at the very molecular level. In an interesting way that I don't think is out there, you know, with kind of any other pod. So I thank you for that. We've reached the end of another edition of the midweek pod for legal AF with Michael Pope, and Karen Friedman, Agnipfalo.

And we do this. We do this every week. We try to take two to three to four stories, ripped from the headlines, and give you a deep dive and analysis. And an informed opinion about the cases, the procedural posture, the facts, where they're going. And we bring it down to an authentic level that people could understand. That's our wheelhouse, the intersection of law and politics. That's what we do every week, and we're going to keep doing it until we look up one day, and we have nobody listening to us.

So, fortunately for us, the audience has been growing every week, Eliebsen Bounds for both the regular legal AF podcast in the midweek edition. So signing off for this week's edition, I'm Michael Popock and I'm joined by. I'm Fribuneck Nishal, great to meet you. Yeah, you too. We'll see you next week. Thanks, everybody. you