Legal AF by MeidasTouch - HOCUS-SCOTUS: Making your Rights Disappear

Episode Date: October 17, 2021

The top-rated weekly US law and politics news analysis podcast -- LegalAF -- produced by Meidas Touch and anchored by MT founder and civil rights lawyer, Ben Meiselas and national trial lawyer and strategist, Michael Popok, is back for another hard-hitting, thought-provoking, but entertaining look in “real time” at this week’s most compelling developments.  On this episode, Ben and Popok take on: 1. The Fifth Circuit Refusing to Stay the Texas Abortion Ban and the DOJ’s decision this week to file an emergency appeal directly to the US Supremes. 2. Updates regarding the Supreme Court’s term and oral arguments on the Kentucky “second trimester” abortion ban, and the Boston Marathon Bomber’s conviction and death penalty sentencing being overturned. 3. A Bronx NY court ordering the deposition of Trump to occur in October in a 2015 case arising out of bouncers at Trump Tower injuring protestors who objected to then candidate Trump’s stance on immigration. 4. The January 6 Select Committee’s decision to seek criminal contempt against Bannon, and likely others including former Trump Assistant Attorney General Jeffrey Clarke for their failure to give sworn testimony before Congress, and the historic powers of Congress in the face of refusals to testify. And so much more Reminder and Programming Note:  All 27 past episodes of Legal AF originally featured on the MeidasTouch podcast can now be found here  Athletic Greens is going to give you an immune supporting FREE 1 year supply of Vitamin D AND 5 free travel packs with your first purchase if you visit athleticgreens.com/legalaf today. Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to Midas Touch. Legal AF. If it's Saturday, it is Legal AF live. And if it is Sunday, it is Legal AF. Ben, my cell is here joined by Michael Popak, the Popokian, Michael Popak. How are you doing this weekend? Oh, it's doing great.

I love Saturdays with you. I never thought I's doing great. I love Saturdays with you. I never thought I'd say that. I love Saturdays, heart. I would say this, I love working on Saturdays, although this doesn't really feel like work. This feels like I get to spend Saturday with you, Popock. We get to talk about the legal issues. We get to speak with our

community of incredible followers, supporters, fans, friends, really family at this point of legal A-Fers. And we've been with them now for several months teaching the law. What I like about the progression of the show, Popock, is that we build on the knowledge that we teach the legal a efforts. So some of the earlier points, we don't have to go back to like when we talk about just how a complaint works its way through the judicial system, you know, the processes of what is discovery, what is a summary judgment motion versus a motion to dismiss? Are legal aeifers are super bright? They know this now. And if you're new to the show,

I would just say go back, listen to some of the early legal aefs. Although some of the news topics may have been changed, there may be updates, updates, updates. You will be able to learn these key principles of law through our case discussions. Wouldn't you say, Pope?

Oh, 1,000%. I know of at least one follower who's gone back and actually binged on the entire catalog of 28 or 27 past episodes. And the nice thing about this, and you're right about the build, is that when you and I started this in January, we talked about it in January, I had a slight reservation that we wouldn't have enough to talk about every week. I'm thinking a half an hour, maybe every other week, and it's just amazing, both that the interest of our followers and listeners motivates us, and just the times that we live in. I mean, the fact

that you and I are able during a week, during a day, even right before we record, are able to find interesting articles, stories, and descriptions that you and I can talk about. I mean, you and I on this podcast occupy a lane, almost to to ourselves among all the other podcasts out there. And there's a lot of podcasts that you and I like as well. And we've been on other podcasts, but I think we occupy uniquely Elaine. And that lane that we have to ourselves is sort of this litigated politics

and the intersection of politics and law in the way that you and I present it from a progressive viewpoint. And the followers and listeners seem to resonate and vibrate with us in that lane. So we're going to, we're going to stay there. We know where the strike zone is. We're going to keep throwing the ball right down the middle. Talking about the strike zone, Pope, I think that gives us an interesting illustration of the law that I wanted to talk about before getting into the news.

I grew up a New York Met fan. I moved though to Los Angeles. Sorry to hear that. I grew up, you know, as a big family experience. My grandfather was a Brooklyn Dodger fan. And so Brooklyn Dodger fans became Met fans. That's how I inherited the New York Metz, the Scarlet M for New York Metz there and lots of frustrating years. But I moved out to California, became a Dodger fan. And while watching the Dodger Giants game this past week, the Dodgers won and they'll be in the National League finals series. You know, there was a very controversial call at the end of the game about whether or not the Giants batter had a check swing or didn't have a check swing. In the umpire ultimately said that the batter swung. This was in the very end of the game. The Dodgers won the game and celebrated and

everyone said that call though, you know, it shouldn't have ended like that. You know, when you think about baseball and sports is often a great metaphor for just other aspects of life. It was a human decision by that umpire to make that strike three call there in that critical moment. Now, for all we know that umpire was not a Dodgers fan. That umpire was not a Dodgers fan, that umpire was calling balls and strikes and whether you believe that was a human error or the correct call, it

was a human decision. So inherently built into systems as we talk about the legal system, you know, there could be human errors, you know, judges try to call balls and strikes, and that's the role of judges, but sometimes they don't call it the right way, just as a matter of human error. However, what we've been talking about on legal AF is something deeper, something a little bit more insidious. What happens when the umpire is actually a Dodger fan, and he's talked about being a Dodger fan his entire life, and that he wants the Dodgers to win and you get to a point that umpire as your umpire in the game that you're playing when we talk about our Supreme Court reviews when we talk about

Decisions that are being made by district courts. I want you to keep in mind that example because that is what our legal system is. It's not just umpires who call balls and strikes and sometimes get it wrong. It's umpires who are selected through a political system to call the balls and strikes that their political enablers want them to and too frequently in our system right now, it is fascist, leaning, it is anti-democratic, it is anti-women, it is anti-LGBTQ plus, it is anti-humanity. You know what the problem is, the problem is that you and I are able to, I mean, it's unfortunate that we're able to predict as accurately as your and my predictions have been on the show about the results at the appeal level and at the Supreme

Court. But the fact that we're able to say we think, and we're usually right, Alito is going to vote this way. Amy Coney Barrett is going to vote that way. Thomas is going to vote this way. We shouldn't be able to do that. We should not be able to sit here and handy cap because if, if this were truly blind, which lady just this is on every courthouse and every courthouse steps, if she was truly blind, then decisions that were made one to another would not be so easily predicted based on politics. And that is the problem with our system and that is the veil that we're pulling down from the eyes of our listeners and followers as justice, unfortunately, is not blind. It is made by human beings who have been selected for a purpose. And not today,

but at another episode, you know, I'll talk about the whole confirmation process. That's become a sham, especially in the hands of the Republicans when Supreme Court nominees are put before a congressional committee and they don't answer a darn thing anymore about how they'll rule what their political leaning is, what their judicial philosophy is. I mean, if you look at the confirmation hearings from the 70s and 80s and you compare them to the ones that just happened, and the one that happened in a 20-day process for Amy Coney Barrett. She wasn't asked the darn thing, and didn't answer a darn thing. And why is that? Because her handlers and her political appointees and president knew how she was going to vote, knew that she was going to be where they wanted her to be

on key issues that we're now talking about the aftermath of like abortion, like same sex marriage, like sexual autonomy and personal liberty. And that's the problem because those confirmation hearings, which again, we'll talk about at length at another time when probably we're closer to a confirmation hearing, have become a really an abdication of the responsibility of Congress to find out who was going to be making these key decisions for a lifetime on the Supreme Court. Oh, absolutely.

And we talk there about the umpire, you know, and you think about, you play that out a little further, you know, the security that's there at the stadium who's supposed to protect the field or protect the players, protect the people. What if they're enabling the scheme as well? And we see that happen here in our system where you have law enforcement and law enforcement is not just enforcing laws but enforcing their views of white supremacy very frequently,

supporting their views of fascism and going into a recent story in our legal news, the January 6th insurrection, many of us suspected that a lot of it was aided and embedded by some bad Capitol police officers. There were great heroic capital police officers, metropolitan police officers, who fought for our democracy, who stood there in the face of the fair spray and getting stabbed by American flags. I mean... By our extinguishes, the headhired, fire extinguishers head, hot extinguishers to the head, you know, with multiple deaths

taking place, but it seemed when you watched it, that a lot of these insurrectionists were kind of just let in. And there was a recent criminal indictment that was handed out to a January 6th capital police Officer and where it is alleged that he told an insurrectionist to delete certain photographs to cover up the insurrectionist involvement in January 6th. Is there any bigger breach of trust than that, Popeyes? No, I mean, and again, I want to just reiterate the vast majority, 95% or more of capital

police that they were heroes. They're heroes. They protected the capital when outmatched, outgunned, and outmaned. But there's been enough evidence and video and social media postings that there were friendlies on the Capitol police side that were holding the door open, taking pictures and taking selfies with the insurrectionists.

And that's all been public also. Not one Capitol police officer has lost his job yet because of that, but now we have our first indictment, which reminds us that there are unfortunately bad people inside of law enforcement and inside of our military. I'm hoping that Lloyd Austin, our defense secretary, goes further with his policy of rooting out white supremacy within the US military and investigating their social media

and getting them out and drumming them out of the Army Navy and other branches of the armed services. Capital police have to do the same thing. So Michael Riley, a 25 year veteran of the Capital Police who was on K9 duty, bomb sniffing duty, actually was part of the bomb sniffing team that found some incitiary devices around the Capitol on Jan 6th also took a liking to one of the insurrectionists because in his own words in his own social media and direct

messaging on Facebook, he sympathized with those political views. I got you, I feel the same way. And so what he did is he befriended, I don't know if it's before or during Gen 6, but he certainly befriended one of the insurrectionists who was not identified in the indictment, but the media has outed as being Jacob Hiles, who is a pot smoking fish captain or fisherman, um, who literally smoked a joint, um, and celebrated it when he, when he, uh, made his way through

the cap into the Capitol. He actually, Riley reached out through social media on Facebook on the 7th of January and told this fisherman, hey, I'm with you politically, but you better delete all your social media and all your videos of you in the capital because there's a major investigation going on. I mean, you couldn't make for a better indictment than that was exhibit a of the indictment was the acknowledgement that there's a federal investigation going on about the insurrection and you telling somebody to destroy evidence. We call that obstruction and there's now a two-count indictment against Riley at an arrest. And of course, he's been put on permanent leave and eventually be fired from the Capitol

police. But it's scary because Ben, isn't it? We've always suspected that there were white supremacists, QAnon, and other radicals within our armed forces who wear a badge, who take an oath, who wear our gun and are supposed to protect us. But here we have the first, I'm% was the number that you gave of the Capitol Police officers who you believe were heroically fighting. I hope that number is correct. I know that I've seen a lot of Capitol Police officers who were heroically fighting. I also saw a lot of Capitol police officers who were heroically fighting.

I also saw a lot of Capitol police officers in those videos seemingly pull out the gates and just let people run right in. So I don't know if that is entirely scientific, too. Pot smoking fishermen is just a, I feel like the polls have like completely reversed like, like this, the, the Trumpers in their ridicule of what they labeled their parody of what the left was kind of pot smoking, like anti-vax free, you know, that all of a sudden, like irresponsible, like all the made up shit that the GQP, you know, used to claim more like liberal things. Think of pinko hippie liberals are now are now the most reprehensible disgusting. If you really

break it down, the true, like the true, we want the government to intervene in all aspects of your life and have big brother as a government is nowhere more embodied than every GQP ideology. I mean, they literally want to create a handmaid's tale in the United States of America. So that's your pot smoking fishermen. brief observation is I've had lots of cases in my career involving canine officers like this officer, not with these fact patterns, but there's really only two circumstances where you're supposed to use a canine dog. You know, one is like in a chase where someone has like a vi,

where someone is a violent defender, they're running away, they have a weapon. That's basically the one way you use a canine dog. The other way you use a canine dog is for sniffing drugs or for sniffing something. That's really it. What a lot of officers though do with the canine is they use them as like a weapon and these canines are lethal killing machines and they're trained to kill. So I've had a lot of civil rights cases against police departments across this country where a cop will go right up

to a suspect with the dog. They'll shout the command in German. And they'll usually give a code yeah, and Then the dog will bite the leg and what often happens is these bites are so vicious and severe I've had many cases where the victim suffers a pulmonary embolism You know get seriously get seriously seriously injured and then often there's a civil rights litigation that that follows. So those are my three observations there. Pope, Pope, Pope, here's another historical reference and you'll see where I'm going with this.

The Lewis and Clark expedition from August 31st to 181803 to September 25th, 1806 was the United States expedition to cross the newly acquired Western portion of the country after the Louisiana purchase by President Thomas Jefferson. The banan and Clark expedition is the descent into total Trump fascism and trying to overthrow the democracy that was built through presidents like Thomas Jefferson and others. You heard that right. Stephen Bannon and Jeffrey Clark, Jeffrey Clark, a DOJ lawyer, Stephen Bannon, a one-time advisor to the president, but was then fired by the president, but then went on his fascist tour across the world where he wanted to basically create a new world

order of fascists and hoist up. And he's still doing it today with his podcast, but he wants to use the Charles Lindbergh of podcasters. Time's it's, it's really horrific. What's going on here? And he's discussed how on January 6th, how he was aiding and abetting the insurrection when he had no official or even unofficial role as far as we know with the executive branch. But Steve Bannon is claiming an executive privilege about why he should testify in front

of the January six commission is trying to get the deposition of Jeffrey Clark as well. These people are gonna get, are they gonna get deposed Pope-Pocker? Are they gonna get subpoenaed? What's the process here? What's going on? First I wanna say that I have so much trust in you

that I had zero idea where the Lewis and Clark thing was going, but I knew that you were going to tie that to this segment of the story. So I just sat back patient, but I was like, I was like a follower and listener there for that moment. I was just sure where we were going, but now I know, you know, just the historical lesson. Yeah. You know, just the historical lesson. Yeah, it's like, I'm body these little, these little beautiful glimpses. That's why that's why they pay you the medium bucks for those kind of observations on this show. Okay, let me break it down on where we are with the Gen 6 and the select committee and their orders. So they issued a series three, three waves or three tranches of subpoenas, including the

big ticket items, the big peltz on the wall, Jeffrey Clark, former deputy attorney general, who was itching for taking over the entire Department of Justice after a bar stepped down into December. It was basically the number one henchman for Donald Trump to do all of his bidding related to trying to overturn the election. Baden, we've spoken about him literally ad nauseam. Guy named Meadows, Mark Meadows who was the chief of staff for Trump, Cash Patel, a guy who led the stop the steel, another QAnon based rally, rally organizer, and Dan Scavino. And they've all been ordered first to produce documents and to appear ultimately for deposition. The deposition's in Congress under oath before the select committee, was supposed to happen on the 14th and 15th of October. Banan and Meadows and Scevino and Patel.

Banan's lawyer wrote a letter and said, we're not appearing. There seems to be issues of executive privilege and we're gonna sit on the sidelines until something else happens, which we're gonna talk about next, which is what is the next thing that's going to happen. The reality is he doesn't have executive privilege, as you've pointed out both on our podcast and on the Brothers podcast.

The guy at best was a low-level podcaster at the time he participated in these rallies and in fomenting discontent in order to create the insurrection, certainly was not in the White House. It would not have been subject to the protections of executive privilege. So that's out. The others have an argument, but I've heard that, or I've read that Meadows, at least, and Scavino are cooperating with the investigators and may end up giving testimony. But the day for B and has come and gone, and he is dug in on his position that he's not gonna testify unless order to do so,

which brings us to legal AF law school, the contempt powers of Congress, which we've talked about on a number of podcasts. But let me just sum up the three ways that they can use their powers. There is an inherent authority of Congress established by the Supreme Court in a case from 1917 that said the Congress in order to do its work

and including investigations has to have, there has to be a repercussion if you flout the orders of Congress. You can't just go, yeah, I'm not showing up because then Congress has absolutely no role, no teeth in the process. So the Supreme Court in making law, which we're going to talk about later when we get to the Texas Supportion Development. Later tonight, the podcast, Supreme Court announced what the law was and gave Congress that power. That's the inherent power and authority of Congress on contempt. There's also a statute that you and I haven't talked too much about, which is two USC section

192, which makes it a criminal contempt of Congress if someone doesn't appear for testimony and bring documents with them as ordered by Congress. That's where I think we are. Benny Thompson and Liz Cheney, the co-chairs of the committee, have basically said, without quoting the statute, we're exercising our rights under the criminal contempt statute. First step in the process is that there's a vote of the House, the committee, and then the House, about making the finding criminal contempt. Once the House votes, and the Democrats have the votes, so this should work, Once the House votes and, you know, the Democrats have the votes

of this should work, once the House votes on criminal contempt, the Speaker of the House, Nancy Pelosi, makes a referral to the Department of Justice. Now, I've seen some followers and listeners worry about Merrick Garland. You know, we have two schools of people that are on our feeds. One thinks Merrick Garland hasn't done a darn thing. And then there's people that sort of fall into my camp. And I think a little bit yours, which is be patient. Justice takes time. Overall, what the Department of Justice has done under Merrick Garland in all of the cases that he's filed and are investigating is right where we want him to be. I know people would like more

and faster, but that's really not the way our justice department or justice system works. So Merrick Garland, it's not, it's his decision whether to ultimately bring the suit, but not entirely. He has prosecutorial discretion, and we'll talk about that in your view of prosecutorial discretion. But it ultimately has to go to a grand jury. That's what the case law says. That's what the statute says. So it would go, it would go speaker of the house referral to the Department of Justice, Department of Justice convenes a grand jury

to indict bad and on criminal contempt of Congress. That's all on the criminal side. The Congress could still and the committee can still go on the civil side and go to court for civil contempt related to the failure to appear. I think they're definitely going the criminal route. You and I predicted that in the past. I think the votes going to happen in the next week or so. The referral department of justice, grand jury, probably kick around for a month or two. At the meantime, ban and may see the writing on the wall and come in from the cold and testify. Or he's going to be a martyr because it makes him more money and makes Trump happy. And just, you know, even when he's indicted, he's still fighting.

I think the others at least one or two of them. I don't know if it's Kavino. I don't know if it's meadows, but one of them is going to be or Clark. One of them is going to be testified. They're not all going to wait to see if they get indicted. Agreed. You just asked me my view on prosecutorial discretion. To give that just a quick definition, it's the longstanding authority of an agency charged

with enforcing the law to decide where to focus its resources and whether or how to enforce or not to enforce the law against an individual. And let's be clear, but no pun intended, but that definition does not really give it justice. And I say, no pun intended, because that's the whole game right there. The decision whether to prosecute or not prosecute is the decision of a person, a group of people, where their priorities are. And so while the Department of Justice is in theory

an independent branch of government, it's not supposed to be influenced untoward by the executive branch. It's supposed to have its own, it's set forth its own policy, and not the influence they're interfered with. One of the issues with the Trump administration was that Bill Barr was Trump's justice department. They were Trump's private lawyer. They were not enforcing the law. They were acting as the Trump law firm. But that was really done at a very kind of obvious, specific and directed level.

But at the highest level, the decisions, what law enforcement, and that's just not at the federal, that could be federal, state, local. Where prosecutors make the decisions, I'm going to prosecute this person. I'm going to prosecute this company. That very decision, we go back to the Dodgers analogy, they're creating the game in the first place. They're saying, whether or not the Dodgers are even going to play the San Francisco Giants and there's going to be a game. And then we go, well, who's going to be a game. And then we go, well,

who's going to judge the game? And then we go to our other analysis of who the umpire is and who the judges take it further. I mean, I like baseball. I mean, I'm not a Dodgers fan, although I'm enjoying the series. The it would be like the umpire is getting together as you said to decide whether there's going to be a game, but also deciding how many players and which players each side can have Dodgers, you get seven players. We're on the other side. You guys get all, you know, 23 players and Dodgers, you get to play with two pictures. The other side doesn't. And because it's that decision making process by prosecutors, whether to decline to prosecute, which is called declination, or to prosecute, and how, and which counts.

And, and unfortunately, although there is a body of case, all that limits what a prosecutor can or can't do and requires them to do, to give a defendant in a criminal case justice and do process. Prosecutors play games, no pun intended with that all the time. We're not going to give you that witness statement because we think it's work product. We're not going to give you that ex-culpatory evidence that would help your case because, man, we lost it. We couldn't find it. And then who is injured by that, the criminal defendant, who is supposed to stand before the court and blind justice within a presumption of innocence, but the prosecutor's got his big fat or her big fat thumb on the scale. Here's another comparison, and you think about the TV show Mad Men, or any of those kind

of ad agency shows where the slick marketing exact or ad exact goes into the office and pitches why their campaign should ultimately be the campaign for the product. That's what's going on in our legal system. Every day you have a group of government lawyers who go into a room or rooms with their bosses or with their committees and pitch it. Hey, here's why we need to go after this company. Hey, here's why we should go after this person.

Here's why we should go, this is a great case. The same way, you know, this is a great jingle. That's what's going on and then there's a decision, hey, we should make that decision to prosecute or not prosecute. And you want, yeah, pop up. And the pitch is also going on at the justice side by clerks at the Supreme Court and federal level who are pitching positions. Sometimes the judge says, you know, on weighty, weighty issues like abortion that we're going to talk about later, usually the judge will sit down with his clerks and say, this is where I want to end up on this

decision. Now go write the opinion for me to look at or they write their own opinion, but you an ideal not just with weighty constitutional issues in our day to day practice, but we're still in front of federal and state judges on a regular basis. And a lot of times, and I know this from people, I didn't personally clerk, but I know this from people who did clerk, and they say, look, the judge didn't give me any instructions about which way he wanted that case to come out. He led it to me. So clerk justice is going on, where the clerks who were right out of law, are writing a fair amount of what passes as jurisprudence and justice in this country. Absolutely.

I want to remind everybody before we move on to the next topic, just why cash patell is such an important witness. And why we were so close to the brink of like a actual overthrow of our government and that's actually what was being planned behind the scenes. So Kash Batal, he was made the chief of staff to acting Secretary of Defense Christopher Miller.

If everyone recalls Donald Trump dismissed the actual Secretary of Defense, Mark Esper, for apparently being thisloyal to Trump. But Trump was trying to stack his defense department believing that that was a way that he could go about potentially having a coup. A lot of people believe that Cash Patel, who was kind of Trump's personal pick there was really the frontman was real actually that Miller was the frontman and that cash

Patel was behind the scenes calling the shots and Miller was just a figurehead who was pretending to basically be the acting secretary of defense but that cash Patel was really the one calling the shots and that one source who was a high level source at the Department of Defense said that Patel was probably the most influential person in US government on matters of national security at that time. A guy you never, a guy you and I before like recently never heard of. And let's remember during those critical hours of January 6th, Miller, the Secretary of Defense, they're the acting Secretary of Defense, approved the deployment

of National Guards from neighboring states to reinforce the D.C. National Guards at 4.41 PM. That was three hours after the Capitol police said they were being overrun and two hours after city officials had asked for assistance. And so that failure to even call the National Guard on that day can trace back to the removal of esperec secretary of defense, the appointment of Miller, Miller being the frontman for cash Patel, who was his chief of staff, but who was running it all. That's why they cashed. That was Ben.

That was so good. I was on the edge of my chair because all of those dominoes, all those links, which all of course run back to Trump, are so important. And you know, your eyes and gloss over when you read all this stuff online or a newspapers, one of the things that you and I do, hopefully, well, is synthesize all of this information and all these data feeds that come into us and come into you through Midas Touch and me through working so closely with Midas Touch. And being attuned during the week, because I know I'm doing the show with you at the end of the week, and I know our listeners

and followers have now a reasonable expectation and have set a high bar for us, which we have to, I feel we have to jump over. I feel like it's a high bar that goes up a foot every week, but I work hard. And so do you to be able to synthesize this information. So what we just said is that's a, a, a, the one of the top three members of the administration who's confirmed by the US Senate, the Defense Secretary was replaced by an acting secretary who I don't think was confirmed, who was a, who was a, who was a straw, again, straw person for the real power who was an unconfirmed, in other words,

didn't go through a confirmation process, appointed chief of staff. So we have a puppet government, we have a puppet government where the positions of power required by the Constitution have been undermined and hollowed out and replaced with bureaucrats who are puppets for a president who's basically gone insane. And then on January 6th people said, well, where's the National Guard?

Where's anyone? No, I mean, that was all planned and choreographed for it to happen that way. Fortunately, it failed because Trump is a gigantic loser and everything that he does. But if he was a competent person who had the ability to really plan through it in a significant way, and he didn't have the shaman and losers there, but you had a little bit of a different style militia, which is what they're trying to build now. The results could have been very different. And even then, the results were incredibly serious. And that insurrection, that insurrection fortunately was put down,

but it was a full fledged insurrection. So, so before you leave though, let's tie it back to Jan 6th committee. That's why the work of the special select committee about what happened on January 6th is so, so important. Because if we believe in a system and a democracy that's whose foundation are three co-equal branches of government and checks and balances, we just had a president who disregarded the three

branches of government in every way, shape, and form, giving orders to his Justice Department to do his bidding and other things, undermining and hollowing out all the institutions and really testing, really testing in a way that's never been tested, at least in the in the modern era, the checks and balances that were put in by founding fathers who, who I think anticipated that we could have a crazy sitting in the White House. But look how he tested this, the guardrails of democracy that are in place. And now, the reason for the committee is not to do the political bidding. Everyone's like, Oh, it's Democrats going after Republicans.

It's not. It is a committee whose institutional and historic role is to find out what happened on January 6th and to make recommendations and changes in the law. So it never happens again. Popeye Trump is being deposed this week. Finally, finally being deposed. You know, it's not exactly the, if I had to rank the cases involving Trump, where I'd want him to be deposed from like one being the number one I want him to be deposed into 100 being the least one I want them to be deposed in put it this way. I'll take him being

deposed in any case, but let's just say I'd probably put this in the 90s if not 100 because at the end of the day, this is not a case that is going to have any significant constitutional ramifications. The end of the day, this is a personal injury case that in the run up to the 2016 election, there were protesters in front of Trump Tower, Trump had private security,

the private security allegedly roughed up. Some of the protesters, the protesters sued. Everybody including Trump, they tried to take Trump's deposition during the presidency. Trump was to take Trump's deposition during the presidency. Trump was able to prevent that deposition from taking place to indelate while he was a sitting president. Now that he's no longer a sitting president, that deposition is is is able to go forward. It happened before he was the president,

so there are no issues or claims about executive privilege or anything like that, some may say, well why is he getting deposed here or not the Lafayette Square where they harmed peaceful protesters and attacked peaceful protesters? According to the Justice Department and even the Merrick Garland Justice Department, we've talked about this before,

that the Lafayette square situation is at least being construed even by the current justice department. I don't really agree with this one, but I see what they're saying that the one of the acts of a president is to address issues such as protests. And that's possibly why it falls under the gambit of executive privilege while in the course and scope of being an executive, we could set that aside for another day or you can go back and listen to previous podcasts where we analyze that decision by the Department of Justice. But here, private citizen running for election, security, beats up people,

the Trump organizations being sued, they want the deposition of Donald Trump. So, a few observations. One of them is going to be downright my salcion, my salion. What's that? My salion. You said in the last podcast and you were right that my sort of minimizing the lawsuit with the Supreme Court related to the flower arranger that it didn't, it wasn't just about flower arrangement. It was about broader constitutional issues and that was the gateway drug to get into that I'm paraphrasing. This deposition, and this is where you and I can talk a little bit about in our

careers, which I think people like to hear about, while on its face, the topic, the subject matter of a lawsuit, is as you've laid it out. A 2015, again, for our listeners and followers, this was the loss it was filed six years ago. It was stayed as Ben just described, as you've just described, because of his being a sitting president, but now is up and running again in Bronx, in a trial level court, even though we call it the Supreme Court in New York to remind everybody that is a trial level. That is not the New York Supreme Court it the Supreme Court in New York to remind everybody that is a trial level. That is not the New York Supreme Court. The highest court in New York is the Court of Appeals.

Just the ad confusion, right? Just the ad confusion. Let's call in New York the Supreme Court, the Court of Appeals, and the trial court, the Supreme Court. I mean, a lot of courts that you and I practiced in called their trial court, some version of superior or circuit in Florida, it's circuit in California. I know it's, I think it's superior. Yeah. In New York, it's supreme, just for confusion. So we have a Bronx judge who said, yeah, you're

given the deposition now about a Mexican-American demonstrators who were injured by bouncers hired by Trump at Trump Tower and their bodyguards. But that's what it is on its face. But how many times have you and I gone into a deposition and are able to explore because it's not only what's relevant, it's what is reasonably calculated to lead to the discovery of relevant information. That's the standard. And courts, and I think this judge in particular, is going to have a, is going to give a wide birth and wide latitude to the person asking the questions. So I don't think it's just going to be, what did you know, Mr. former Mr. President about,

you know, Mr. Trump about what happened in your bodyguards and negligent retention, negligent supervision. I think they're able to get into a broader set of topics, just the way they were able to get into it with Clinton, who sort of stumbled into the monochelowinsky testimony in a place where he didn't think he was going to have to give that testimony. What do you think, Ben? Don't you think, especially with this judge, that Trump may have to answer questions that aren't fitting in the box of this particular day in front of Trump Tower. So let's break it down for our listeners and viewers.

At the trial, if a trial takes place for the evidence to come in, the evidence has to be relevant to the case and it has to be admissible relevant evidence. And there's a whole analysis there about whether it's probative value even if it is relevant evidence, if it's probative value is outweighs any undue prejudice that the information could potentially cause a jury. But to make this very simple for our listeners and viewers, at the trial, relevance matters. Prior to trial at the discovery phase, because you are obtaining evidence,

which may be relevant at trial, you are allowed to ask questions about things that aren't directly or necessarily on its face relevant, but that could be relevant because how else could you find out the information that would be relevant if you're not even allowed to ask the questions. Now, in the discovery phase, there are also safeguards that are put in place so that people don't go on just untoward. We like to say fishing expeditions just asking random questions that have nothing to do with it. So if the questions are completely outside this scope and bounds and you know here in the deposition, if they start asking about January 6, for example, I think Trump's

lawyer would object and say this is not reasonably calculated. There could be an argument that it shows a pattern in practice of violence towards individuals and that the Trump supports, that's the argument you would make as a plaintiff. You would say he has a pattern and practice of being violent towards people. So I should allow it. Ultimately, Trump may decide not to answer that question and may go to a judge who may compel him. Can I give you an example on your point? How about all the times Trump stood up during campaigns?

And when people protested him, he would point to them and tell the crowd, get that guy out of here, rough them up, beat them up. I mean, there's a number of cases where he fomented potential bodily violence against people at his rallies that were protesting against him. I would use that in the cross. I'm going to give you the mycelian prediction here. what's going to happen? Here's what's going to happen. Trump is not going to answer any questions other than the questions that directly relate to that day. And for that day, he's going to answer, I don't know, I had nothing to do with the security, I don't know. There's then going to be a motion to compel that's going to be filed an emotion for sanctions

and we are going to be talking about that on a future legal AF and so just to summarize what I just said and what that meant if someone does not respond to the question at a deposition if their lawyer instructs them not to answer the question, which at a deposition is supposed to be circumscribed to very limited and finite circumstances where there's a privilege claim, or if it's completely, completely outside the bounds, but then a lawyer supposed to go in when you're representing someone who's being deposed, and there are questions that are completely outside the

bounds, you're supposed to then go in and ask the judge for a protective order to limit the scope on certain questions, would be one of the proper procedures you would take. But I think that's what's going to happen. I don't think he's going to answer the questions. And then we'll see if the judge compels Popak for those questions that you just said to be answered. Popak, I want to talk briefly about A.G.1 athletic greens. I have it right here in front of me, and I am loving athletic greens. Today's program of legal AF is brought to you by athletic greens, the health and wellness company that makes comprehensive, daily nutrition really, really simple.

I love this drink. It, you know, one of the things that I had before I got AG1, I'd have all of my, like, like pre-workout pills, post-workout pills, and the vitamin C and the vitamin D. And like, if you look at my shelf, I have like just a cabinet of all these different things. Are you showing your biceps to the audience tonight? I'm not showing the biceps.

But you know, with all the stressors that come with the life and the lifestyles, we live maintaining effective nutritional habits. And that give our body the nutrients we need with our busy schedules, but sometimes poor sleep, trying to balance exercise our environment, work stress. It is difficult, and I like to try to curate for myself, like what I think the ideal regimen is, but I just want to make it easy. And AG1 Athletic Greens has made it super easy. It's just one tasty scoop of AG1 contains 75 vitamins minerals and whole food sourced ingredients, including a multi-vitamin multi-mineral probiotic, green superfood blend and more, and one convenient daily serving, the special

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I mean, I did other things as you've identified. And trying to get in one efficient package and one tasty drink, because they're not all tasty out there. This one is, you know, all the things that I need. And you and I, we've joked about our age gap, our age difference. And by the way, I'm okay with the fact that you're much younger than me.

But from my perspective, I need other things that may not fit for you, but this is calculated in a way that it really just crosses all age brackets. For me, I like the prebiotic, probiotic that it really just crosses all age brackets. For me, I liked the prebiotic probiotic and that balance of minerals and vitamins that in order to replace this one package, I'd have to, like you said, I'd have to have an entire kitchen full of pills

and pill holders and powders and all sorts of things. And I can just set it and forget it. I did it today, not as a replacement for breakfast. I had a light breakfast earlier today, but I had the server come out and bring me a glass of water and I just mixed it up right there. People were actually watching me. I was on Madison Avenue near my apartment.

And then the rest of that morning, I just kind of, I took this in. I always feel great after it, which is a nice surprise, because like I said, I was not a green juice person or a juicer at all, and I really liked the way this taste. It has a really good, like umami, earthy taste that I found really attractive. So I'm glad there are spots here.

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legal AF to take control of your health and give a G one a try. That's some health upgrades. Now let's go to some updates updates. Some scotus Supreme Court of the United States. When people say, why do we say scotus Supreme Court of the United States? That's what it stands for. Some scotus updates. And let's talk about the Boston Bomber update, Popak, the Boston Bomber sentence to the death penalty in the district court proceeding, the younger brother.

And then, and that's what we're talking about here. And then the court of appeals, the first circuit overturned the district courts ruling. The first circuit said that additional information should have been provided to the jury. Remember, I'll let you explain it, Popeye, but as we go back, remember what I said there, you know, that when we were talking about evidence that goes in front of the jury, we're talking about giving relevant evidence in a jury in trial, but sometimes what we have to determine also is that relevant evidence to prejudicial, would

that relevant evidence, even if it is relevant, just confuse the shit out of people, so they have no clue what they're talking about. Does it create, for example, all these other issues that create trials within trials, so the jury can't even focus on the issues that are at stake in a trial. And then the Supreme Court heard oral arguments on this Boston bomber case. And the Supreme Court seemed very skeptical of the court of appeals overturning the district court. It seems like the death sentence will be reinstated.

I think regardless of where you stand on the death penalty, I'll just tell you where I stand on the death penalty so people know I'm against the death penalty. I'm against the death penalty generally in the United States. I think that in a civilized society, no matter how heinous the crimes that are committed, ideally you would say, hey, a death penalty should just be used in this circumstance. But remember, legal AF, all these discussions tie back together. We talked about prosecutorial discretion. And oftentimes, what one person believes to be heinous, another person may believe to not pursue a death penalty in a certain circumstance. And of course, with the Innocence Project and other groups that have done incredible work there, we've known that there have been serious and significant, significant systemic issues relating

to the death penalty where people wrongfully accused have been killed by our government, which to me is a horrible outcome. And if a system is that imperfect and it's resulting in the deaths of innocent people, we need to rethink that piece of our system. So that just might be good. Yeah, well, let me continue there. Then we'll get into the case of Zach Corts, Sarnaya,

who's the younger brother, the older brother, having been successfully apprehended and I think killed after the Boston Marathon bombing, which killed three people and maimed and injured hundreds more, including children. That my approach to the death penalty decision, which is a personal decision about where I'm going to be on the spectrum is the same as yours. I've always used, when I've had this debate with friends

and family, I've always come down to two things. Because I'm in the business, I'm in the law. I understand that the law and everything that you've described today on this podcast with me, prosecutorial discretion, the disproportionate impact on minorities, how jury see black and brown and other people of color in the process. That judicial process, as much as I would like it

to be, Lady Justice has blind, is really a gray process that is impacted with thumbs on scales by the amount of money that defendants have to spend the wealth by disparities between rich and poor by what color the person is and what the jury composition is and what evidence is brought in or not brought in during a trial. I cannot allow me personally a death penalty which is a finality black and white ending to come from such a gray process. And to your point, in order to support the death penalty, people

have to be willing to accept that innocent people will die under the death penalty if it's in place. If you're okay with that, if you're okay with one or more innocent people, because that's what the Innocence Project has proven, dying through the death penalty because the government made a mistake, then continue to support the death penalty. If morally and ethically you can't live with that, then you can't have lethal injection and other ways of death penalty be a part of our society. So I agree with you. On the Supreme Court case, and I think the reason you and I talked about bringing it up today,

even though it's not directly in the lane of litigated politics, it's important for us to teach another chapter in legal AF law school, which is the criminal jury process, what happens on appeal, evidence that's let in, instructions that are given by the judge to the jury in order to do their job, and all of that. So what's the lesson for today? The first circuit, which is the circuit in the Boston area that sits over Massachusetts, throughout the conviction that the jury had found of Sarnayev, finding that there were at least two errors in their view, and those errors were so fundamental that they were reversible errors, as we like to call it in the appellate world.

One error was the first circuit didn't like the fact that the judge didn't allow the lawyers for the defense to evaluate through a questionnaire and question and answers the potential jury and their exposure to media reports about the Boston Marathon bombing before the jury selection. And the second one that the first circuit was not happy about and found to be reversible error was Sarnayev's lawyers not being able to bring in factually the argument that the older brother, the one who died, the older brother was really the person responsible for the bombing and had participated in a triple homicide, not convicted, not proven, but that they had evidence that he had participated in a triple homicide, hoping that in the penalty phase, the jury in coming up with whether death penalty or

not death penalty would have taken that into consideration and gone lighter on the younger brother. And the trial judge said, we're not trying the case of the dead brother, maybe killing three other people. We're here on basically your client. And I'm not letting that evidence in. And the first circuit said, now that should have came into. So now having thrown out the conviction, it goes up to the Supreme Court, where the prosecutors are now asking the US Supreme Court to reinstate the conviction. And then so there was an oral argument just this week. And

this is what you and I are trying to determine from oral argument, we're all nine of the justices, ask questions. And they're all and right now all nine are asking questions, including Clarence Thomas, which is unusual. And and trying you and I are trying to determine from the questions that are asked and how hard they are beating up one side or the other, what the ultimate ruling is going to be. But but the take away from the oral argument is that the looks like the majority of the Supreme Court is not buying the argument that these are errors that were so fundamental that they are reversible. It looks like they set aside almost immediately the argument about the media.

It looks like the Supreme Court, including the liberal justices, the ones on the left side of the aisle, like Kagan, like Breyer. They're not that concerned that the media questionnaire didn't go out to the jury about, have you seen news reports? But the entire oral argument, it was about 90 minutes, was really centered on whether Sarnayav should have been able to bring in the evidence of the triple homicide by the brother. And it was Kagan and Breyer, what we call the liberal wing, who seemed to be the most, in the most position of believing that that should not have come in. It was okay that the trial judge didn't let it in because they didn't want to have a trial within a trial. And ultimately,

on facts, they couldn't be proven. It was more than a rumor, but less than a conviction that the older brother participated in a triple homicide. And they thought that was just too confusing for the jury and they were there for one purpose and that was on Sardinaya. So I would not be surprised that they come back and say reinstate the conviction and the death penalty ruling.

And then we have that other issue about the death penalty being imposed. So we take the analogy we've used about baseball, the district court proceeding, in this case, the murder trial or the initial lawsuit or the initial case, whether it's criminal or civil, takes place at the district court, the superior court, and a New York state. It's called the Supreme Court. But then after that, you basically are supposed to get the, like, an instant replay in a way. You know, and that's going to the Court of Appeals, the Circuit Court or a Court of Appeals,

to review the findings of what happened at the court below. And what's not what doesn't happen at the court of appeal or the Supreme Court, there isn't a new trial, there isn't new evidence that's presented. It's supposed to look back at the proceeding that took place at the lower court and determine if the judge properly applied the law, if the evidence that was supposed to come in came in, and if the evidence that was supposed to be excluded was excluded, and was the decision that was ultimately rendered consistent with the law or were there any egregious errors.

Now, in that replay at the next step, there are different standards of review that are applied, whether you're supposed review the underlying proceeding, the district court proceeding like from scratch. Like you look at it, you make your own decision. That's called De Novo review, like just a new review. You look at those facts and a court of appeals

makes its own decisions. I disagree with that. Or is there another standard that's applied by the court of appeals that looks at a lower court and says, did that lower court judge? Did they abuse their discretion? Did they engage in conduct that was troubling or problematic? Or so inconsistent with the law that we need to step in. Or should we just basically allow the district court ruling to stand because

even if it was, even if there were errors that were made, the errors at the end of the day were small errors and that's not our job to correct those types of errors and didn't have a significant impact. But in theory, that's what's supposed to happen, but you get quarter of appeals judges, and we're going to talk about a little bit with the fifth circuit quarter of appeal, who come in, who are also appointed, who have ideological beliefs, who are political appointees, and they look at the replay and rather than calling the balls and strikes and or saying that the underlying

empire called the balls and strikes, they want to play an entirely new game. They want to change the game. They don't care what the, they don't care that the analysis was this incredibly co-coherent constitutional analysis. They will fight and struggle to find ways to overturn a ruling where everybody sees the ball in the strike being called as it should. As we segue their popoq into the updates on the Texas abortion law, which are working its way anti abortion law, which is working its way into the Supreme Court and anti-child bearing personal anti-women law, call it everything that you want to call it, but it is taking away a person's right to choose in that state, attacking women's

vile, vicious, hateful, horrible law that's there in Texas. But let's talk briefly about this Kentucky case, Popok, that's in this, that's in the Supreme Court, where there was oral argument and the Supreme Court appears to be leaning to allowing a Kentucky attorney general to intervene to support a law that would ban in the second trimester the main way that an abortion takes place, the main function of how abortions take place, maybe talk about that. Yeah, and it's interesting because it's yet another abortion case that the Supreme Court will be hearing.

There's going to be three or four of them. We've got the Mississippi Previability Abortion case, which is sort of this red letter case that's just looming out there that's going to be heard in December. And the question that you and I have, and for our viewers and followers and listeners, is which, if any of these other cases dealing with the fundamental right of a woman to choose, constitutional right of a woman to choose, are going to be heard in advance of December, or are they going to be joined together and all heard in December? So the Kentucky case is supremely fascinating for a number of political and legal reasons.

On the political front, you have a Democratic governor, Andy Beshear, who used to be the state's attorney general, who has decided that the district court having ruled that the ban in Kentucky on second trimester abortions. So we've got pre-viability abortions, we've got second trimester abortions, we've got pre-viability abortions. We've got second trimester abortions. We've got this bullshit thing in Texas, which they call the fetal heartbeat, which is none of that, neither fetal nor heartbeat, all coming together about the constitutionality of a woman's right to choose. But in Kentucky, you've got a Democratic governor who after he got elected said, you know what?

The district court having ruled in the favor of ban of outlawing that ban, finding that ban to be unconstitutional. I'm good with that. We don't need to have it appeal on it. And then the attorney, the new attorney general, who's a Trumper, who appeared at the Republican National Committee convention and gave a speech who replaced Andy Bashir, the governor as attorney general. He's tried to intervene and said, no, I want to I want to represent the rights of Kentucky. Even though my governor doesn't want me to and I should be on the other side of the argument so that the appeal is not just mooted by the fact the governor has walked away from the appeal. He can't walk away from the appeal. This is the argument. I is the attorney general. And of course, I'm Republican. I get to make the argument. So this was an oral argument at the Supreme Court as to whether the attorney general could intervene over the objection of his governor to continue to prosecute the

appeal on behalf of the state of Kentucky or not. and just as a matter of facts, I found this fascinating. Ben, do you know how many licensed abortion clinics there are in the state of Kentucky, the entire state? I'm going to guess for one, there is one licensed abortion clinic in the entire state of Kentucky. Okay, so this just shows you how important this issue is because no matter what corner of Kentucky you live in, if you want an abortion, you got to go find that one. And that's why fundamental rights can be warped by state legislatures and other other events, even though there's a constitutional right on the books to the right of an abortion, Kentucky only saw fit to open one this entire time to serve as the needs of its constituents.

It's just, it's just totally crazy. Based on my reading of this hour or so oral argument, and including the liberal wing, I think they're going to allow the attorney general to intervene. They're going to keep the appeal alive and the Supreme Court is going to be dealing with weather. Second trimester abortions are constitutional or not. What do you think? Well, it's all headed towards this December oral argument and the decision that's going

to be made out of that case that we've been talking about for some time. And it is a direct challenge to Robi Wade. You know, even these cases, the SBA Texas case, we're talking about it right now, but it seems that the fifth circuit is really just putting it on a course where it's going to be linked regardless with the Supreme Court's December case. And I think as you and I have predicted, I think that there will either be a complete reversal of Roeby Wade by this current Supreme Court or a 80% of the way there,

kind of ruling that doesn't completely abolish Roe v. Wade, but empowers and enable states to do the types of things that Kentucky wanted to do and Texas wanted to do and try to slice the line between allowing states to make good faith determinations about laws that are necessary. This is what the Supreme Court language would be, not my language. That would be kind of necessary to balance the issues of fetal heart, beat viabilities with the constitutional right to choose.

Because the Supreme Court, I don't think you'll see a ruling that just literally says, we will overrule Roe-Roe, be weighed. It's not constitutional. But I think the effect of it will be to create confusion and chaos in this space with the effective result of overturning it. Well, I think, and then we're going I know we're going to turn to Texas, which is really important because we've had two developments this week in Texas, one just, just a day or so ago. The majority opinion on Roe v Wade, I agree, is not going to,

on the new cases about Roe v Wade is not going to overturn completely Roe v Wade. But I'm, overturned completely rovers his weight. But I'm sad to say this. I'm reasonably confident that they're going to find five votes to hamstring it and gut it in a way that it just removes the constitutional right almost altogether. And they'll have a majority vote of five. And then they'll have these concurrences where Alito and Thomas, who have been waiting for, you know, 20 years or longer for Thomas to finally get to overturn Roe versus Wade. It's like their life mission for whatever reason. Well, we know why with Thomas, because he's got a slightly off center to say the least wife who's very public about her political views. So we know

where he sits. They're going to write concurrences that, you know, future Republican right wing lawyers are going to cite about the press, the press and it that's been said here. And, you know, this thing's just going to go on generationally for, for a long period of time. But I agree with you, whether it's the December oral argument on the Mississippi case, that's the obsv Jackson women's health organization. Right. Or it's the Mississippi or it's the Texas emergency Supreme Court appeal from the fifth circuit that we're going to talk about next. They are going to have to deal the Supreme Court and grapple with the constitutional construct

of Roe versus Wade, precedent that they've already set, scientific viability and all of these other things that have come together and make a definitive ruling one way or the other. They are not taking these cases in order to leave people confused about the Supreme Court's pronouncement on this key constitutional issue. They are going to make a pronouncement that will be the law of the land. And it's just not going to be something that you and I and our progressive followers are going to find appealing. Right. And to me, whether you're progressive, conservative, liberal, Democrat, Republican, you know,

at the end of the day, we should support a person's right to choose, period, end of story, you know, the government has no place making that decision for women or childbearing persons. It's that simple period and stop. And if you think that that is the role of a government, I think there is something incredibly wrong with your construction and view of what the government's

about. You can go to Saudi Arabia. There's plenty of Muslim countries that would welcome you. You're absolutely popox. So let's talk about SBA, the anti-women childbearing person, handmaids, bounty hunter law. We talked about the 103. Well, that fit on a t-shirt. That was a very long explanation of SBA, but I encourage.

Words don't describe it and don't do justice. And sometimes I try to find the words to describe the horror of it. And then as I say it, and then I hear what I say, I'm like, those words did not do it justice. So, so, you know, whatever. But we talked about, on the last legal AF, we analyzed the judges 113 page ruling in the district court. It was in the Western district of Texas. That's

sits in Austin. You joked about how, you know, Austin is the, what did you describe it as the Greenwich Village of Texas. And we fairly predicted where that ruling was going to go. And it was consistent with the Constitution. Equated Roe, be way to quote a quoted Casey, it did this extensive analysis and an injunction was issued against SB 8 preventing SB 8 from being effective from stopping that law from taking place and allowing the right to choose to continue to take place in Texas. Immediately after the district court, 113 page ruling, the fifth circuit court of appeals issued an emergency ruling which stopped the enforcement of the injunction. It stayed the injunction pending further arguments before the fifth circuit court of appeals, meaning that the injunction in the district court,

which stopped the law from taking place, that that injunction would go away. In other words, the Texas law could continue, which prevents the right to choose. And so the status quo was Texas, which passed SB 8 into law, remained in law, and the district court's ruling was not in effect. But as we said on the last legal AF that the fifth circuit was going to have a more full sum review and issue a more full sum order and they This one was a full page. This one was the other one was half a page. Right. This one was a full page. And the full page kept the status quo pending a full of more full sum appeal on the issue, but kept in place SBA and Popeyec we predicted it. Yes, it all comes down to Judge Ho, H.O., who is one of the three judges out of 17 at the fifth

circuit, Court of Appeals, which covers states like Texas and Louisiana. It actually sits in New Orleans. And it's the same panel of three, one Obama, one Clinton, one Trump, one Bush appointee, Ho being the Trump appointee, a former solicitor general for the state of Texas, who, and I'm sure no shock to the Department of Justice either, even after full briefing decided that they

would not stay the case while they did what they quoted to be an expedited appeal in front of, I think this, I don't know if it's the same panel as just reviewed the state or it's definitely the same panel that is reviewing the earlier pitman ruling from the summer that did not involve the Department of Justice, but also went after SBA, it is being unconstitutional, which are sort of being joined together at the fifth circuit. But the Department of Justice, speaking of circuits, is going to short circuit all of this as we, and I predicted, and is going on an circuit all of this as we and I predicted and is going on an emergency appeal directly to the US Supreme Court.

The difference between this one, this fast track to the US Supreme Court, I think. And the earlier ones over the summer when the Supreme Court was not in session is that this Supreme Court is in session. All nine justices are back from their summer holidays and all their clerks are in and they're holding oral argument. So what I think is gonna happen with this one is the Department of Justice is gonna file

their appeal probably this coming week. Supreme Court is gonna take it up on a fast emergency application. I don't think that they're gonna wait until December. I think they're going to rule now on a full briefing this time, not shadowed docket, full briefing, and even oral argument, expedited oral argument, before they rule, and to bring our followers and listeners, you know, fully to the meat of the course here for legal AF today. The standard that the Supreme Court is going to apply

to determine whether the stay was properly not put in place by the Fifth Circuit is the same prongs that we use as an analysis for injunctions. Will the Department of Justice likely succeed on the merits of proving that the underlying law is unconstitutional? Do the balance of equities tip in their favor? And with the government, the balance of equities always tips in their favor and the favor

of the public of the public. So the fundamental thing that the Supreme Court is going to determine under the stay issue is whether they're the merits of the constitutionality of the underlying case, can a state delegate to people improperly the ability to violate the constitution and its most fundamental principles, which are the right of a woman to choose or not. That is how Pittman has framed this, which is perfect. And it is what the department, it's the battlefield upon which the Department of Justice is going to is going to do battle with the Supreme Court. Now, there was one, I don't know if you caught this, Ben. There was one

fascinating filing or brief argument that Texas put in it to the fifth circuit. Did you catch what they said about the Supreme Court and opinions and precedent? Did you see that? Yeah, but I think that wasn't from the state of Texas. I think that was an amicus brief in support of Texas. But yeah, they said that the Supreme Court's opinions are just that. Their opinions and they don't have any, we should ignore precedent. The Supreme Court is not the interpreter of the Constitution. It is,

anyone can interpret the Constitution, state should have their own interpretation of the Constitution. I've seen this before where they say, well, that's why they call it opinions because the Supreme Court doesn't get to declare the law, the land. Actually, since 1803 in Marbury versus Madison, the Supreme Court does exactly that. Their comment in that brief was there is no constitutional right to a abortion, and we defy you to find it anywhere in the literal expression of the Constitution, which is just shows a complete in the literal expression of the Constitution, which is just shows a complete, a misunderstanding, misapprehension, intentional on how our system of government works and how the US Constitution works. The interesting thing about what's going to happen now at the expedited Supreme

Court review is you have the fifth circuit now. It's got two cases that's sitting on both by Pittman one brought by abortion clinics and providers. There's a whole bunch of issues there about standing and that gave that tie the Supreme Court up in fits in August when they ruled five four that they were not going to stay the Supreme Court was not going to stay the enforcement of SB 8 because in the majority's view, it was really complicated issues about standing and about injury and about whether state actors are really involved and whether a federal court can enjoy a state court judge about lawsuits

that would be filed. And it's just too hard for us to figure it out right now. So we're not going to stay the case. That's my artist rendering of the Supreme Court back in August. And that was a five to four decision with Roberts. So follow Roberts here, Chief Justice Roberts in the minority voting for the to to stay the enforcement of SBA against all the other right wing people. Roberts now in the new case, which I believe the Department of Justice has eliminated, as Pittman has ruled and is ruling in his 113 pages, has eliminated all of the barriers that the Supreme Court was concerned about in August. They've eliminated the standing problem. They've eliminated the injury problem that was cited by the Supreme Court. They've eliminated the issue of whether

is federal judges can enjoy in state court judges. They've addressed it all in their complaint and in their briefing. So all of the excuses that the Supreme Court had back in August about why we just we want to do it on full briefing. We can't figure it all out. Maybe this is not the right case to make our ruling on. Now they have no choice. The Department of Justice has put front and center. There's nowhere to run. There's nowhere to hide.

And now the question is whether Roberts can get gorsage or, you know, oh my God, Kavanaugh to come over to his side. So this is five for it in the proper direction. I'll leave you with this thought. Early on in my legal career, when I would do some criminal defense work, I would occasionally do favors for certain clients and family and friends and go to traffic court and help people who went

to a traffic ticket. When you first first start, you always start at the lower levels and you try to grow up. This is how I start. And you would see some people make these arguments that the people of the state of California, because the cases would be framed the people versus the defendant.

But they would have this convoluted argument how the people can't actually represent the government and it's unconstitutional for the government to even stop you in a traffic stop because the power that emanates from the constitution creates, I can't even articulate what the point was, but it's this crazy rabbit hole conspiracy tortured logic about how the government can't be the people and have a

case against an individual. And they make the arguments and they get laughed out of court, but there was a group of like crazies who would make this argument. That's the Republican party. Okay. That's the GQP right now. That are all of these theories. That's SB 8. That is the logic of the law professor from Chapman, Eastman, who tried to explain why Mike Pence shouldn't be able just to certify the election results. What the GQP is doing, and this is the problem with the law to tie this episode up with the nice little ribbon is in using the baseball game analogy when you have the ability to write the rules and rewrite the rules. It's not a foregone conclusion that baseball is going to be here forever, right? It's not a foregone conclusion that the sports always going to be here.

Someone could rewrite the rules to make it something of the past. And here what the GQP wants to do is literally rewrite all of the rules to interpret law in such a tortured way that foster their view of fascism, their view of an anti-democratic system, and they really want to just overturn our democracy. And we have to depend on our empires, our instant replays, the system that we created, the game. And we need to keep the game alive, to keep the game alive to perfect the game to make the game better and not destroy the game because our democracy is the analogy to the baseball game. Our

democracy is precious. It's under attack every single day. It's under attack in Texas. It's under attack with all the things that Trump's doing and Trump is them and GQP is them and you have a Republican party. They don't care about democracy anymore. Don't care one fucking bit about our democracy. So what do we do? We have to not be complacent. We have to not just be so depressed about everything. We need to fight like our lives depend on it

because on the other side, the GQP, while they have crazy theories, while they're hateful and despicable people, they're out there working every single day to build up their fascist view of the United States. Let me, let me, let me pick up the mantle of your baseball analogies. Democracy is not a spectator sport, and it's not a spectator sport for legal AF and might as touch followers and listeners. Put down your beer, put down your hot dog, put down your popcorn. You are armed with something

that's really important, your intelligence, your passion, your focus. You have found a home on the Midas Touch Network for your expression, a safe space to express your opinions among like-minded people and learn information and news feeds and legal analysis along the way. Now you have to get in the game because we don't want to just watch our democracy burn. We want to do something about it. I don't get on this show every week with Ben because I just want to hear myself talk or hear Ben talk about his past or baseball analogies, although I do like them. I do it for a reason.

I do it because I want to activate even if it's just one person out there to go down and become a community organizer, to go down to an election office and monitor something that's gone wrong, to go into the streets and peacefully protest about something that's important. It's easy to tweet. It's hard to be a participant on the right side of this democracy. It's not a spectator sport. Popak Well said, want to thank our sponsor athletic greens,

AG one. I love it. Make sure you go to athleticgreens.com slash legal AF. Get that free one year supply of vitamin D and five free travel packs with your first purchase. That's athletic greens dot com slash legal a F and also if you have your own case, if you've been injured in an accident, a serious injury, you know, someone who's been seriously injured, if you have a case, sexual harassment case, a work case, a breach of contract case, a big business dispute case. If you or someone you know has a lawsuit, a big case has been injured.

Just for you feel free, reach out to me and Popoq, we're practicing lawyers, we'll review your cases, we'll let you know, if we think you have a case, Popoq's email is mpopoqmpok at zplaw.com, that's mpopak mpop at zplaw.com that's mpop at zplaw.com. My email is benat-touch.com that's benat-m-e-i-d-a-s-t-o-u-c-h.com. You are loved one. Have a case or think you have a case. Let us know when we will get back to you or have someone from our office reach out to you. Thank you so much for listening to this edition of Legal AF. If it is Saturday, it is Legal AF live. If it is Sunday, it is Legal AF. We love you, Midas Mighty. We'll see you

same time, same place next week. Shout out to the Midas Mighty. Shout out to the Midas Mighty.