Legal AF by MeidasTouch - Jack Smith & Georgia’s Fani Willis GEAR UP for Trump Indictments

Episode Date: January 12, 2023

The Midweek Edition of the top-rated news podcast, LegalAF x MeidasTouch, is back for another hard-hitting look in “real time” at this week’s most consequential developments at the intersection of law and politics. On this episode, co-anchors national trial lawyer Michael Popok and former prosecutor Karen Friedman Agnifilo analyze and discuss: (1) the discovery of classified documents in Biden’s old office and what it may mean for the Mar a Lago investigation against Trump; (2) DA Fani Willis’ Special Grand Jury in Fulton County (GA) wrapping up and issuing a report on its findings concerning criminal election interference by Trump and others; (3) the issue of whether Trump defamed E. Jean Carroll while president when he implied that she was lying about being raped by him moved to the DC Court of Appeals courthouse this week; and (4) the House GOP majority creating a Select Committee to go after Biden’s DOJ, FBI, and Homeland Security for the next two years, and so much more. DEALS FROM OUR SPONSORS: LOMI: https://lomi.com/LegalAF GET LEGAL AF MERCH: https://store.meidastouch.com 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 The Weekend Show: https://pod.link/1612691018 The Tony Michaels Podcast: https://pod.link/1561049560 Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the midweek edition of legal AF with Michael Popuck and my co-anchor, Karen Freeman, at Nifalo. Today, we're going to cover four top stories ripped from the headlines at the intersection of law and politics. First, Karen and I will talk about the Biden classified document, find and compare and contrast that to Trump, why it's the same and why it's different. And we'll talk through that. Then we're gonna move to Fannie Willis,

wrapping up in record time, her special grand jury process, special grand jury in Georgia has issued a report, which will then go to a real grand jury, a proper grand jury for a possible indictment about election interference by Trump and others in the 2020 election. Then we'll move on to the DC Court of Appeals, not to be confused with the federal DC

Court of Appeals. This DC Court of Appeals is basically the Supreme Court of the district of Columbia, and they had a here oral argument about whether Donald Trump was inside or outside the scope of his employment when he defamed E. Jean Carroll who claimed, and as a led that she was raped by him in a department store dressing room back in the 1990s. And we'll end it with, you know, votes matter and elections matter. We have a new house majority slim as it may be at their end the majority. And they have created a select committee under

the Judiciary Committee now helmed by big fat election denier, Jim Jordan. Jim Jordan's got what he's wants. He's got subpoena power. He's got a new select committee that he completely controls. And there go, and after Joe Biden, the Department of Justice, Merrick Garland, the FBI, and Homeland Security, oh my, get the popcorn. That's all they got to do is just run hearings for the next two years. And this is going to be one of the lead panels that they're going to use select committees that they're going to use to do that.

Karen, it was fun seeing you yesterday for those that are looking for the fifth special Easter egg bonus topic. Karen and I did a hot take yesterday, and it's up on YouTube, on Alan Weiselberg being sentenced, the long time CFO of the Trump Organization. And Karen was in the room and has some very interesting observations because she got to look out on Weiselberg kind of in the eye and watch what was happening. As Judge Mershon, you know, through the book at him, at least the five months worth of book at him, and you can go to the YouTube and take a look at it. We posted it yesterday and it's there, but we're moving on. Justice moves on, the wheels of Justice moves on

and new stories move on, new topics for us to cover. Let's kick it off, Karen, with the revelation, self-reported revelation by lawyers for our president, Joe Biden, that while they were cleaning out a closet, and I'm not really making this up, while they were cleaning out a closet at an office that he used in between Vice President and running for President, they found, you know, eight or ten between friends, we'll call it ten, classified documents that should have been

returned to the National Archives. Let's let's talk about that, Karen, because you know, the Trump and the Maga people are jumping up and down saying, see, we're not the only ones that have sticky fingers and kept classified documents. But what's the big difference here, Karen, that you can see? And then there are differences, obviously, between Joe Biden's team, self-reporting, to the National Archive that they have the documents that they want and returned. And what Donald Trump did, and then we'll talk about what Merrick Carlin is doing to show even hand itness about assigning a prosecutor to kind of take a look and make sure there wasn't any funny business by the Biden administration. What do we know so far Karen? So we know there are

similarities and there are differences as you said the similarities are that there were classified documents that were retained. They, the Presidential Records Act, requires that it go to the National Archives, as we all know. And that, that right there is pretty much the only similarity between the two. How are they different? I think the biggest difference is the mens rea, the intent, right? So here, there was no Biden didn't know that they were retained. The minute they were discovered, they turned them over

right away. Clearly, they never meant to have them or have them inappropriately or illegally. And whereas Trump, I think the case is going to boil down to what his men's rail or what his intent, his state of mind was. And you know, that's the big difference between whether something is a crime or not, is what was the state of mind? What did you mean to do? You know, that's why someone could die in a car accident, but it's an accident, and no one gets prosecuted because it's just an accident, whereas as someone intentionally runs someone over with a car and they die, then that person's

prosecuted for murder. So, you know, the harm is the same, but it's the intent in someone's mind that is different. And so here, that will be the analysis, is the state of mind and it looks like Biden never intended to do this or possess these certainly not hold on to them and Trump as we know from all the prior podcasts that we have all done and all the reporting. He, first of all, he had what a couple hundred documents versus ten but also how much they resisted turning back over the documents so much so that they avoided subpoenas and they had to issue, they had to execute a search warrant.

Let's talk about that. Yeah, I agree with you. Let's talk about that because our listeners and followers and viewers like to be armed with the facts. It's the one takeaway that I take away from all of the social media postings and tweets and live chat that I read, and you read for legal AF and for our hot takes is that people universally and uniformly

like the legal education, so to speak, the informal one that we provide, that we give it to them straight, that we give it to them in ways that make so to speak, the informal one that we provide, that we give it to them straight, that we give it to them in ways that make sense to them, boil it down to the elements and and very bite-sized pieces that people can digest and understand that they get facts to help them to bake friends and families and others about this issue. So let's talk about the facts. Donald Trump had 184 classified documents that he eventually returned to the National Archive, but the National Archive believed

there were more, which led us to now the infamous 100 documents that Donald Trump held on to despite numerous requests by the National Archive, despite letters from the National Archive and its Council, despite negotiations between the Trump's lawyers and in-house people in the West Wing and the National Archive. And in addition to all of that that the Department of Justice got involved. Department of Justice said let's do a subpoena. So they did a subpoena going to a grand jury in Washington and when the subpoena was not adequately complied with because Trump either believed he had the right to hold on to these documents in

order to use them for his own personal gain or for extortion or for whatever the reasons he was holding out of these things. The Department of Justice went to us a bad straight judge in South Florida, Judge Reinhart, and got a search warrant. And they went in and executed a search warrant. Lo and behold, found lots of things in there that should have been returned to the National Archive, including at least 100 classified documents that are now after appellate practice, appellate rulings, 11 circuit rulings, appellate by the US Supreme Court, are now back in the hands where they've always should have been of the government and the Department of Justice. That's Trump, Biden? Biden had an office for the Penn-Biden Center, P&N Biden Center, which he

used in between being Vice President and becoming president and his lawyers, not with him present, in cleaning out the office to close it in a locked closet, found at most 10 things that were still more classified. Okay, you know what? I want to be clear about this for those that think we're not fair. I am sure that every president has inadvertently taken home something that he shouldn't have and then had to return it. You know, you go, they have millions of pages of information that pass through their hands

while they were president. And if two terms, they have double that. And they have to be sorted out for presidential papers for the eventual presidential library like Obama is going through right now. And I'm sure as they go through that process, working closely hand in glove with the National Archive, pursuant to the Presidential Records Act, they'll occasionally find, oh look, this shouldn't be in this pile, and they return it immediately. So we're not saying it's a zero, it's a tripwire, and that, and you got it, Men's Rea crime, you're going to jail. But let's contrast

that with Donald Trump. Look at all, look what the government had to do into this moment, to this very moment, Donald Trump says all of those things were his and that he should have been allowed to retain them. Joe Biden, his lawyers turned it in almost upon, upon its, upon its discovery. Now despite that, there was a little bit of a time lag. There was a one or two week time lag when they had the documents they didn't yet return it to the National Archive. Merrick Garland is taking it seriously. I don't want to get your opinion of it,

putting on your ex-proscutor hat. Merrick Garland is taking it seriously because he's appointed a prosecutor and not one of his necessarily prosecutors, a Trump-appointed US attorney from Illinois to take a look at the timeline, take a look at the issue, and recommend to Merrick Garland whether he should appoint a special counsel like a Jack Smith related to this relatively minor issue. What do you think about all that? What do you think about

Merrick Garland's play it by the book, playing it safe, and appointing John, I think, Lausage, his name out of the U.S. Attorney's Office out of Illinois. What do you think about that? I think it was smart politically for him to put someone on there that was a Trump appointee, a Biden appointee, which I was surprised that there was a U.S. attorney still in place that was a Trump appointee because normally when a president comes in they all the US attorneys hand in their letter of resignation. That's the custom. But that shows you Biden's courage and moral compass. He did not demand that every US attorney submit on day one their resignation so we could fill those jobs.

He allowed the other party to continue to occupy those seats. That's a credit to Joe Biden. I agree. But it was smart politically of Merrick Garland to do that. I have to say that when I saw this, it was like a kick in the stomach for me. And the reason is because there's the legal question, which we discussed about whether this was intentional and the mens rea was there. But there's also a prosecutorial discretion question. Every time a prosecutor brings a case, it's because they've made a decision to do it.

And prosecutors don't bring every case that they can bring. Sometimes they don't bring cases. And many prosecutors judge themselves as much by the cases they do bring as the cases they don't bring. And the cases they use their discretion. For example, there are times, some places have adultery on the books and prosecutors won't prosecute that or abortion

or those types of things. Those are examples of times prosecutors use their discretion. There are other times prosecutors use their discretion. And that's when there are political questions that are a foot. And in this particular instance, with the fact that this, you know, Jack Smith, I guarantee, is going to recommend to Merrick Garland that there is a crime that Trump committed, that the mens

reo will be there, the elements of the crime will be there, and Merrick Garland will have to use his discretion to decide whether or not to bring the case against Trump. And I think there's going to be a lot of thought put into it now that Biden did what they're going to some will say is the very same thing. And if you prosecute one and not the other, it'll be viewed as a double standard. I'm just very concerned that this has now put in doubt and put into question whether or not the Mar-a-Lago documents case will be brought ultimately against Trump, which frankly I thought was the easiest, simplest case that was going to be brought for sure.

I now think there's a question because of this revelation. Well, let me push back on that. As I said, I am sure in the history of presidential papers since the act was passed, especially after Nixon. I'm sure there's been cases where Inet Burton, which is what this appears to be, at first blush. I think that there has been other cases of presidential papers act technically being violated inadvertently

by a president on the way out. I'm sure it happens. I'm sure it's stuck to the back of a box or stuck to two documents stuck together or something that they thought they had returned. They didn't. I think the only reason that that Marik Garland is taking it a little bit more seriously than I thought in appointing a person, not the special prosecutor, not a special counsel. He's appointed a US attorney to look at the issue as to whether there should be the appointment of a special counsel and make that recommendation

to Merrick Garland's, Merrick Garland's call as to whether he's going to appoint a special counsel. And I think this is much to do about nothing. It would be a not only a complete waste of time and money, but just kind of a perversion of what the special counsel process is for. Special counsel's process shouldn't be. I found documents in a locked drawer that I didn't know was there. And as soon as I found them, I decided to turn them in.

Now, if for some reason, America, Ireland is concerned about the two-week delay or so that's been reported to the media between the finding and the notice to the National Archive and sort of the midterm election was in the middle of that. If he thinks that that is something that they were gaming the system a bit, then maybe. I'm not sure at the end of the day, it has a hill of beans differ. It will have a hill of beans difference to Mar-a-Lago, because we've already outlined the dozen or more fundamental ways Mar-a-Lago and Trump's continued resistance to this moment, and foot dragging, and hiding documents documents and moving documents from room to room on video

and and not securing them is different than than oops I found 10 documents sitting in a clock closet. So I'm not as concerned as you are. I think if Jack Smith decides he's going to I mean it's it's not a recommendation let's be clear on the special counsel law. It's not a recommendation, let's be clear on the special counsel law. It's not a recommendation to America. It runs the other way. Special counsel makes a decision whether to bring an indictment. If the attorney general decides to override that, then he has to report that to the Justice Committee, which is crazy, the Judiciary Committee of the House, now

gabbled by Jim Jordan, who we're going to talk about at the end of the podcast today. So a Republican-shared committee about why he overrode that decision. And in that case, the report, if there's a special counsel report, needs to get disclosed to the public. So there's that process coming on. So I don't know. I mean, you think that two questions for you. You think this prosecutor,

or whoever whoever it is, in reviewing the timeline, and the facts is gonna recommend to Merrick Garland that he appoint a special counsel. And do you think the special counsel is gonna find a crime was committed by Joe Biden? I don't really know whether they'll appoint a special counsel. That possibly just, but the problem with doing that, now you are making them equivalent. Now you are saying they are more similar than not. And really what you pointed out was how

different they are. So I worry a little bit that by treating them the same way, you are further underscoring how similar Fox News is going to report these two things as. So I don't know if that will ultimately occur, whether or not somebody recommends that a crime occurred on the Mar-a-Lago case, like I said, I think there's no way they aren't asking themselves this question. That's all. Whether it makes the ultimate difference is the, I don't know, but for sure. Certainly, certainly has entered the conversation in a way we hoped it wouldn't about, well, Biden

did it too. Although, the Biden did it too is, I think, as a far stretch. And I'm sure career prosecutors like you have been are making the point that we made here about the tremendous differences between the two and why one shouldn't have an impact on the other, but you're right. When you're talking about prosecuting a former president, political considerations, unfortunately, enter the mix. Let's move speaking of political considerations. But one other thing I just wanted to say about that is let's say they do decide to prosecute Trump for the Mar-a-Lago documents and not Biden for these. What's the first thing the house is going to do? Right? They're going to bring Maricarland in and ask him what's the difference. And they'll have a hearing. And they're I'm just saying it's

going to have anyway when we get to the weaponization select committee at the end of the pod. They're going to do this anyway. Exactly. Yeah. So let's talk about somebody who's not in the swamp of Washington who doesn't answer to Jim Jordan who now gavls the judiciary committee and doesn't really care about Jack Smith and Merrick Garland and that is because she's her own prosecutor, the way that Karen used to be, Fawni Willis, who is the district attorney, state district attorney in Fulton County, which covers Atlanta, Georgia, as everybody probably knows, starting in May of 2022, and taking their first witness in June of 2022, Fawni Willis asked the then Chief Judge of Fulton

County to under their statute, very unique set of statutes in Georgia, to empanel a special grand jury for the purposes of assisting the district attorney to develop evidence in witness testimony. That if it pans out a certain way with a report, she can then use with a inditing grand jury to get an indictment of people who interfered with the 2020 Georgia election. Now from so from May to January, that's what they were doing. And just recall, unless you've been following it closely, we had, you know, Mark Meadows testify Graham, Senator Graham, pardon me, testify Rudy Giuliani testify, Raffin's perger who is the current secretary of

state of Georgia who received the infamous phone call from Donald Trump and Mark Meadows about finding 11,000 more votes to win the election in Georgia. John Eastman, the architect, the crackpot mastermind for Donald Trump of his constitutional challenges. The Mike Pence is gonna turn the election in our favor with the electoral vote count and certification, and let's have fake electors submit certificates.

That guy. Apparently he took the fifth every time he testified to every question in the grand jury, but he testified to the special grand jury. But now, as we reported, and I actually did a hot take on this about a month ago, Fannie Wells has done, the special grand jury's done and they have issued a report one we haven't seen yet.

And we'll talk about that next and she's so informed the, I don't think he's the chief judge anymore, but the supervising judge, Mick Bernie, that she's done the report is ready to go and he issued an order related to it. And what do we find out from Mickie's order and next steps, Karen? Well, what I found interesting about his order is it was revealed that the grand jury voted to make the report public. So it was interesting. So I guess they're going to have a hearing on January 24th. McBernie is to determine whether he's required to make the report public or not.

So, that's, I think, what the next step is going to be. It would be very interesting to see that report. So, the way that this very unique, we don't have it in New York, we don't have it in most of the places that I practice, or Karen practices. George has got this very unique thing, this whole, it's not advisory, so to speak, but they run through evidence and witnesses through a special grand jury before they have what I'll refer to here

as an inditing grand jury, one that can actually issue an indictment. And it advises the, Karen's text to me as I'm talking. We have special grand juries too, but in New York, but they do the same thing as this one does. Yeah, so it's very interesting. Sorry to, you know, why would you know this, right? No, no, that, listen, I learned on legal AF as well. So I'm not going to act like I know everything.

I'm just here to try to transmit information, even if I have to learn it on the fly with you. So why don't you compare the New York special grand juries that you're familiar with because of your years and then that in DA's office with what we understand the Georgia one is and then I can move the ball forward and the story afterwards. Sure, so not every state has grand juries. Grand juries are in many, many, many states. New York is one of them,

and it's different from what we call a pedigery. A pedigery is a jury of 12 people who sit and or 12 or six depending on, it's a misdemeanor or felony in a criminal case, and those are the ones that sit through a trial. But a grand jury is what is used to indict someone of a felony to bring charges, which is the formal initiation of a criminal case.

And grand juries can sit for periods of time, and they hear cases. It's only the prosecution typically that brings the information, but in New York, a defendant has a right to testify, but they have to waive, they have to, they go in and they have to waive immunity because in New York any witness

who goes into the grand jury automatically gets full transactional immunity for the case. So there's all this complicated stuff that happens in the grand jury. But grand juries in New York, for example, typically sit for usually four weeks at a time. And they are, like, say all morning or all afternoon, and they come every day, and you go in and they hear cases. And it's a probable cause, a reasonable cause to believe that a crime

was committed standard and what they do is they vote on whether to indict someone. That's what a typical grand jury is. And it's fairly easy to indict someone. In fact, I think I can't remember who it was, a Supreme Court justice. I think it was Saul Walkler, who was the Chief Justice of the Court of Appeals,

in New York said, you know, a grand jury would indict a ham sandwich because it is fairly easy to get an indictment in New York. It's a proof, it's largely just procedural or witnesses going in testify. Okay, but then there's something called the special grand jury and what special grand juries are are Most of the time long-term Investigations that occur in a special grand or occur happen in special grand juries because you're not going to be able to do it all in four weeks So what will happen is a prosecutor will say I have a Huge investigation that I want to bring or I want to call witnesses and I want to call witnesses, and I want to investigate. And so what they do is you apply to the court for a special grand jury,

and that can sit for six months, for eight months, for a year, and when you apply for it, you can apply for an investigatory grand jury. You can also apply for one that can also bring charges. And so there are times when, and DA's offices, Manhattan DA's office, we did this all the time, where we would, we'd say, you know what,

there's a situation that we're not really sure warrants indictment, but certainly warrants a report. You know, so one of the things we did a report on was we were having lots of pedestrians get hit by cars. And it was just happening very frequently. And we wanted to look at what the problem was. And so what we did was we called a special grand jury and we issued a report. We called witnesses. And in the report, we made recommendations about why we haven't brought cases. It's because we need changes in the law.

Or, you know, so there are lots of topics that you could come out with a special grand jury, but they usually look at a situation or a problem or a case or whatever it is, and they usually make recommendations. And like I said, sometimes though, you can call for that special grand jury and have it be in Viscatory and one that you can bring charges. And so you may or may not vote charges at the end. But we do have these special grand juries in New York similar to Georgia. Okay, so that's great. That's great. So let me, let me pivot off of that. The one here in Georgia is according to Fannie Willis.

She's also, now she has a prosecutorial decision to make. She's gonna make the decision based on the report that she knows what it says, but we don't yet. McBernie, the chief judge, or former chief judge knows what it says, but the public doesn't yet. But we will, if this hearing goes the way, I think it's gonna go that you mentioned.

And then she's got a decision to make based on the report and I'm assuming the, let me just, let me just make a few easy predictions here. The report found election interference by series of people. That series of people included people at the innermost sanctum and group people around Trump and probably include a Donald Trump and recommended that they and founded the committed crimes under Georgia's election statutes, criminal statutes related to interference with elections. Now she's got to make the decision, do I take this report, which is what happens and present it and all of the evidence from the special grand jury and present that to it, what I'll call an indicting grand jury to get an indictment.

She doesn't have to start all over again. In other words, she doesn't have to like bring Lindsey Graham in again and she can bring in all the testimony the way the Georgia works into the into the other grand jury the regular grand jury and Walk out with an indictment So that is what's going on and then the side show that's going on is at the media and the public and legal AF Want to get our hands on the report? So he's a big Bernie's gonna hold a Hearing on the date that you mentioned And the media has filed their motion center

being because everybody wants a copy of this thing. And so we're going to know. And my god, as McBernie is going to, his only question is whether this is the type of grand jury that I'm supposed to allow the report to come out for. And it's weird. It's a little unclear whether under the statute, under 15-12-80 of the penal code of Georgia. Whether this is a final report is a what he referred to as a presentment.

Because if it is, he's going to release it, if it isn't, he's not. You think they'd have case law on this already, and Georgia, apparently, they don't. So he's going to have to make a decision after seeing submissions on legal briefs by lawyers related to this and the media and then make his ultimate decision and we will report on that as soon as it happens. So let's move from the door. Before we move before we move from Georgia, I just want to say one more thing. Go ahead. We got to move, but go ahead. I just want to say one more thing. Go ahead. We got to move, but go ahead.

I just want to underscore how important it is for Fannie Willis to bring this case. Because as we've said over and over again, and I want to just repeat it because it's so important. If a Republican becomes president, they can always pardon Donald Trump, Rudy Giuliani, and everybody else. But they cannot pardon a state court case

or state court charge or conviction. And so it's very important that the state prosecutors do their job and not just rely on Jax Smith. That's all I want to say. But the governor of the state is a Republican and he could pardon the state claim. He could. That's true. Yeah.

So, right. Although there is is pardon differences, and not every governor has that power. Some states, and I'm, and in the vague back of my mind, I'm thinking Georgia doesn't allow, and we're going to look it up, I don't think Georgia allows the governor solely to make a list of who he's going to pardon. I think it has to come from a pardon commission recommendation. Yes, I'm almost sure about that because Georgia had its own political problems in the 70s where corrupt governors were pardoning people.

And so to avoid that, they created this other thing and took the pardon power away from the governor. Interesting side note. Speaking of interesting side note, while we were on the air, our producer, the great Salteini, let me know that there's breaking news that there may be another small bundle of documents that the Biden alloyers have found as well. But whether it's one bundle or two bundles, the analysis we gave earlier is the same.

They immediately upon discovery, self-reported to the National Archive and said, how do we get these back into your hands? I don't think you're gonna find criminal men's right here. And I think unless there is some sort of underhanded conduct about cooking the books about the timing of the discovery and the timing of the self-reporting that suggested that they were trying to do it for political gain.

I think this is much to do about nothing, but again, there may be two bundles of inadvertent Biden documents that need to be sifted through by this US attorney advising, Merrick Garland. See, we keep things real in real time. So let's move on, I'm waiting for Karen to say, no, don't move on, Karen, we're moving on. We're moving on to, we're going to move from that courthouse into another courthouse we rarely ever talk about, which is the highest court for the District of Columbia, the territory of the District of Columbia, not the federal system. We always talk about basically two systems, state system and trial courts and usually

Supreme Courts for state systems except in New York where it's called the Court of Appeals and federal system where it's district courts up to courts of appeal up to the U.S. Supreme Court. But there's really a third system we don't talk about and it has to do with district of Columbia. They have their own court system. They have trial-level courts to deal with things that happen in the district of Columbia. If you live in the district of Columbia and somebody owes you money or you rent an apartment, you got a problem with your landlord. There's a court for you and it's that court.

It's not the state court for Maryland or Virginia or anything like that. It's this court in District of Columbia and it has a highest level of ballot court and that court is called the DC Court of Appeals, which is effectively the Supreme Court for that district. Why are we talking about this? Yes, Pope, it's very interesting. There's another court system we never talk about. Why are we talking about this? Because the second circuit, which is the Federal Appellate Court,

which covers New York, decided that they couldn't figure out in the Donald Trump case brought by E. Jean Carroll, who alleges that she was raped in the dressing room of Berkdorf Goodman in 1995 or 1996, which is a very high end luxury Hoi Ditoit, department store directly across the street from Trump Tower effectively, that he also defamed her while president

at a press conference when they asked him about the allegations and he said well number one She's not my type. I don't even know what other than being mean-spirited and misogynist I have no idea what that has to do with the defense to the crime That she claims but he said it. He said it while president and so the issue for that particular claim We'll talk about he's got bigger problems because those claims are not the claims that are going to be front and center in front of this jury in April, that that's going to be trying this case as a trial of fact. But the, this issue of whether he can or can't defamor is important because if he was an

employee of the federal government, which the second circuit says he was, the president is the number one, is employee number one of the federal government and everybody else is under him. And he was within the course and scope of his duties as president. Listen to those magic words. Inside or outside the course and scope of his duties in that position. President, when he committed that act or said that thing, then under a statue, in line of cases, it's called the West Fall Immunity Statute, he is immune from

suit, meaning he may have done that bad thing, but you can't sue him over it because he was president when he did it and he's immune from suit. But in order to get it, it's that two-pronged test they just laid out. Is he a federal employee? Second circuit said, we got that. You're federal employee, we got it.

But then when the second circuit got to, is he inside or outside the scope of his duties, rather than send it down to, is odd send it down to to judge Kaplan who is the southern district of New York federal judge who's handling the matter and say to him You should hold some of an entry hearings or maybe it goes to the jury and develop some facts about whether he was in or out of the thing They said oh we can't figure it out. We're going to send it to the highest court and ask for an opinion of the highest court in the District of Columbia, which happens sometimes. Sometimes federal courts, like we saw in the Dobbs decision when the fifth circuit wanted

to send a question of law to the Texas Supreme Court. So they crossed federal lines to state system asking the highest court for an opinion about a certain novel issue of law before they would rule. So it does happen when you cross federal over to state. But this one was weird because usually, and I've tried cases not on presidential immunity, but on a related concept that's referred to in the law as vicarious liability or respond at superior, where you have to do the same analysis

with somebody inside or outside the courts and scope of their duties. And that's a fact-intensive issue that a jury has to develop or a trial or fact has to develop based on evidence and testimony. A pellet courts don't, that's not their thing. They don't do that. They don't develop records.

They don't develop facts. That's not at the trial level. And in fact, pellet courts will often chastise an advocate who's arguing in front of them and saying, where is that in the record? We can't develop facts. We can't take testimony. We can't look at evidence.

It's not in the record developed by the trial court below. And you're asking us to be a trial court. We're not a trial court. We're in a pellet court happens all the time. So when the second circuit shifted over and said, send this off, we'll certify a question to the DC court of appeals, was Donald Trump inside or outside the course and scope of his duties when he made this comment in response to a question at a press conference. And there was a hearing an oral argument yesterday. One side, Alina Habba, poised you, outmatched, Alina Habba

arguing in front of a nine judge panel. They had the entire gang there, chief judge and eight people listening to Alina Habba, make her arguments about it. Donald Trump was only doing his job when he maligned and defamed E. Jean Carroll and a partner of Robbie Capital who's been on our show before. One of her law partners, Matt's, who made the argument, the contrary argument, that it was too far. That misogynist comment, the fame and comment, was not part of his presidential duties. That's the battle.

But what was the problem that you could see, Karen, from the reporting in the room, about the questions that were being asked by the panel, and what do you think's gonna happen next? My question is too full. Well, first of all, I'll start with what's gonna happen next. I think this case is irrelevant. Why do I think this case is irrelevant? Because it doesn't matter what the judge rules because we've got the New York case.

Since he's been left the presidency, he's being sued in New York under the Adult Survivors Justice Act, which gives a one-year window for sexual assault survivors for adults. No matter when it occurred, if the statute of limitations has passed, they can bring their claims. And so that case is pending in New York, and that's really the heart and soul of what's going on. But then Trump reiterated these comments after he left office. And so even if he was in,

even if he was in office at the time, and this was part of his duties because what he claims, what Alina Habba claimed was, he was just being asked, questions by reporters. And so he answered them. And that's part of his job. Even if they rule that, it kind of doesn't matter because he did it again.

And so the defamation piece will go forward in New York as a companion to the adult survivors justice act claims that are being brought. But my question is for you is, do you think, let's say this moves forward and these cases move forward, do you think his statements were defamatory? I mean, to say someone's not your type isn't, you know, that's an opinion, right? To say she's lying, you know, and that this is fabricated in false, perhaps that's defamatory. I don't know. I just, I looked at the statements that he did make, and while they're upsetting, I'm

not sure they are defamatory as a matter of law. What did you think about that? Well, I agree with you that the stronger case and the one that I think Robbie will probably focus on rather than confuse the jury about presidential immunity. Because here's what I think is going to happen. I think the ballot court is right in some of their questioning about why are we here? Why are we being asked to decide without a factual record below whether Donald Trump did or didn't do something within the course and scope of his duties?

Don't we need a factual record? Isn't that only being done at a trial court level? Meaning the second circuit punted it to them. And now hot potato and mixing metaphors, they they're gonna punt it back to Lewis Kaplan, the judge in the Southern District, New York, to put that question in front of the jury. If I'm Robbie, if that's the way that this is gonna play out, I cut that claim completely

and I focus on the civil rape claim, and I did a hot take on this, that's now up on Myd on mightest touches YouTube channel. I just focus on the civil rape claim, which is the strongest claim with its birth with its lower burden of proof in her testimony because she was able to bring that claim in November because of a change in the law in New York state on the Adult Survivors Act law and her and to take advantage of it. And take advantage of the defamation claim that you just outlined Karen

that is not subject to the immunity defense at all, which is the stuff he said in 2021 and 2022 on a social media. The strongest case she has for the jury is rape. And the defamation becomes sort of the tale to all of this. And I think if she's trying to figure out how to best present her case,

and you know this from being a prosecutor, and I know it from being a trial lawyer, as well in civil context, is you know, you don't wanna blow the jury's mind and have them get confused about anything about presidential immunity, drop the claim completely, and just focus on the things that aren't immune,

but she's not ready to give that up yet because, you know, she's following through in a process and she doesn't know where it's going to land yet. I assume just before trial, regardless of what the result is, she's going to cut that claim and cut it off. But let me answer your question before you jump in on defamation. Yeah, I'm not sure saying, this misogynist comment that's disgusting about, well, she's not my type But in there is implicit as a denial. I mean it is if it's not if it's not defamation

It's defamation because it's implying a set implying a set of facts Which is she's making it up and she's lying which is false and defamatory. And that can be defamation. Go ahead. No, it's just going to say, strategically, there might be a reason where Bertic Kaplan keeps the defamation and it's for the following reasons. Number one, if you recall, there is a blue dress, you know, or I don't know the color of the dress, but there was the equivalent of E. Jean Carroll saved the dress that had Donald Trump's DNA on it.

And if this case proceeds, I, Roberta Kaplan is going to get a court order for Donald Trump to have to submit his DNA for comparison to the dress. And if his DNA is on that dress and PS, they'll be able to tell, are they skin cells? Is it semen? They'll be able to tell, right?

So let's say his semen is on her dress. If that is the case, the defense will change very quickly from, she's not my type, type it never happened she's a liar to consent it was consensual and so if I'm Roberta Kaplan if that happens I want to show that he lied and so I want those statements in my case I want to be able to say oh you know he didn't say consensual until he got caught until the DNA was on there he's a liar. And that's an important fact that you're going to want in your case.

So I like that. I think that's a very good twist there about how to try a case. It's easy for it's easy for us sitting here in our podcast to Monday morning, Monday morning, quarterback, a trial that we're not involved with. but I thought that was a very, a very good comment. And the struggles that Robbie will have with making the key decisions to put on her best case. And not to compare that, but Karen, I have struggles too. And they're in the kitchen with what to do with all the food products and wet food and scraps of food and how to compost in a New York kitchen. And I'm sure you have it, you have it too. So we have a

sponsor that you and I enjoy a lot. We use their product. It's the Lomi by Pila and it's a great kitchen device. I don't know if it's if it's one of the great kitchen devices or appliances or the greatest, Carol, what do you think? To be honest with you, I'm obsessed. Now, I'm gonna be totally honest. I was very hesitant at first when I got that low-me. It's, yeah, I thought, what am I gonna do with this? And why?

Why is this important? I thought that food garbage and things like that, that are things that should go in the landfill, the things that shouldn't go or plastics and styrofoam and that, so I was very confused. And what I did is I did research. I did my homework because I'm not going to just say I love something or I spawn, you know,

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Everyone criticized it said, you're crazy and I said, I don't care, this is what I'm doing. My mom, I got my mom into it, she also got a loamy. It is now my obsession. So it is incredible. And now you can take that eco guilt that you had and that feeling that you're not doing your part to help the environment, Karen. And you can get your friends and family to help you do your part to alleviate that and

resolve all of this build up of garbage that's in your home or now in other people's homes. So I had that same eco-keleton, then I got a loamy. And that loamy allows me to turn my food scraps into dirt, not compost dirt, with a push of a button. Loamy is a countertop, electric composter that turns scraps into dirt and under four hours, there's no smell when it runs, and it's really, really quiet. And to answer a question that's out there, it's low power. People are thinking, well, the power to run the thing, no, the power to run

the thing is very minimal, but the payoff from an ecological standpoint is tremendous. So now I have less garbage each week. I went from three or four bags of just garbage down to one. I was cooking Sunday dinner again this past Sunday, like a Sunday roast with roasted vegetables. You know, we loved it, but it generated an entire sink full of scraps and vegetable scraps and meat scraps and all sorts of things and put it all into this this canister, this metal canister that's inside the loamy, just have that out sitting in the sink, piled it all up with the scraps and things and then I was

ready to go to turn that that waste into nutrient-rich dirt that I can then turn around and feed my plants, which of course we love a lot. It is eco-conscious. I throw out way less garbage. I'm contributing way less to landfills that produce, as you said, Karen Methane. And instead I turn my waste into nutrient-rich dirt that I can feed my plants. So if you want to start making a positive environment, environmental impact, like Karen and me with her friends and her mom, or just make cleanup after dinner that much easier, Lomi is perfect for you.

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I like Lomi, I'm glad they're here, thanks for being a sponsor. And let's move on to our final segment in our podcast tonight. With what is going on with the House Republican majority, all they seem to be doing is passing ridiculous laws that will never be bills that will never become law because the Senate majority, Democratic will not allow it. Let's defund the IRS, Trump hated the IRS as we know. Let's get rid of the IRS. Let's defund it. No, not going to pass in the Democratic Senate. There's no way to override a veto by the president. And they're doing that like every day. Hunter Biden, let's spend an entire

set of subcommittees on Hunter Biden and his laptop. Because let's be frank, they've got nothing else to do. They only have two big levers that they can play with, like a child on a plate on a play school driving kit in the car. They've got two things they can do for the next two years. They can play around with the debt, the budget, and the ceiling related to debt, and spending bills until they're forced because the economy will spiral out of control, putting them all out of office if they fly too close to the sun and they can have hearings just what just what American needs to to get to progress itself or hearings. I mean,

we're all riveted by the Jan 6. So of course, the House Republicans don't want to be out done. They want to have their own version of the Jan 6 committee. So they've created a select committee concerning the weaponization of the federal government. That'll sit right under Jim Jordan and his House Judiciary Committee, which he now gavls, having taken the gavl from Jerry Nadler, from New York who chaired it when he was a Democrat, when the Democrats had control. And just as a little statistic for those that suspected this and the numbers bear it out, out of the 17 major committee gavils, 11 of them are now chaired by election deniers and Trump supporters. 11 out of 17 and all the major committees are headed by people that voted for Donald Trump

against any repercussions related to chance 6 and we're all election deniers. That's who's in control of the house. Remember that, friends and family and independence, when you're voting in 2024 for the party that you want to have change your life in a positive way. This is who's running the house for the next two years. So they say, of course, they need to cover. So they're going to reach back into the 1970s and say, we're just like the church committee from, which named after Frank Church, back in the 1970s, looking at abuse of civil liberties by agencies like the FBI.

This is nothing to do with the Church Committee. This is more like the McCarthy Committee, of the House on American Committee that went after alleged communists all over the country, wrecking lives and careers along the way. This is just payback. They're gonna bring Merrick Garland and the Department of Justice to answer for, you know, whatever

they're doing with the Jan 6 insurrectionists. They're going to try to bring Jack Smith, then although I'm not sure they can get Jack Smith, but maybe they can get Jack Smith. They'll bring the other members of the Department of Justice. They'll bring the FBI, Chris Ray, the head of the FBI and the head of Homeland Security, Mr. Mallorca, Secretary Mallorca will come in. And this will be in a colossal waste of time where they get the bully pulpit and they get their pound of flesh to go after Joe Biden. And it's no surprise.

It's they're very transparent about it. This committee and other committees, Chairman, have already said we're going after Joe Biden. Period. Point blank, which will resonate with their base, allow them to raise money. They run every year and a half for office. Allow them to have little sound bites and clips on their local newspaper and media. And they'll satisfy some, I don't know, 42% of people that need to vote for them. But I think it pisses off is the independence who don't want to see taxpayer dollars spent on vendettas and retaliatory committees. But Karen, what was your takeaway about this appointment of the committee, the 13 members

that are going to be on there and what their remit is, the scope of their work over the next two years. By the way, what is it with an in McCarthy? No, no, no, never met a McCarthy that I've ever liked. And that starts with the one that had the Ventriloquist doll. I didn't like it. It's just, this is just so upsetting. I mean, it's going to cause a lot of fighting. You know, they're going to, the fact that they're going

after law enforcement. And in, you know, in some ways, it's amazing how they call the weaponization of government when really what they're doing is weaponizing the house. And they're going to look into programs. You know, they're going to look into the FBI and the intelligence community and the IRS, as you said. And they're going to, it's going to create big fights because the Department of Justice is going to say, we're not going to hand things over that are sensitive. And

we're not going to hand anything over. That's a criminal matter, you know, pending criminal case or a criminal investigation. And because it'll compromise the investigation or the case, and it's going to create a big fight over separation of powers. And the DOJ is going to have to create, I think, some very clear lines on what it will and will not turn over. I guarantee one of them is going to be,

they're not going to turn over anything related to a case pending or investigation that's not yet a case. That's going to be one clear line, but what about past cases? You know, are they going to cooperate at all? So it's going to be very, very interesting and to see how this plays out, but it's going to be ugly, I think. I don't see this happening. You know what, I mean, I don't want this, nobody wants this, but if's going to be ugly, I think. I don't see this happening. You know what I mean, I don't want this, nobody wants this, but if I have to have it, I guess we'll make the best of it,

we'll make lemonade at a lemons. I am sort of looking forward, and I have a perverse sense of humor. I am looking forward to seeing on one hand, Merrick Garland, and on the other hand, like Jim Jordan, or whoever's on the, Jim Jordan's gonna be doing the all the subpoenas all the subpoenas are going to be issued as if they're coming out of the judiciary committee they gave this they supercharged this this select committee basically saying they're

all adjunct members of the judiciary committee giving them strong subpoena powers but and I don't know who's going to gavel yet. I was trying to check before we did the podcast tonight about who's actually gonna be the 13. They haven't picked the 13 yet. Five of the- I really hope the Democrats will stay on. I hope they don't do what the Republicans did to the Select Jan 6th Committee.

They not stay on. Because I wanna know, that's the only way we're gonna know what they're doing. Yeah, but I'm not sure the reporting on that has been accurate. They made it sound like five of this 13 are going to be Democrats. That's not what it says. What the resolution says is that five are going to be in consultation with,

in this case, Hakeem Jeffries, representative Hakeem Jeffries. So listen, he's going to say, here's my consultation. I want five Democrats, and here's my five Democrats. Jordan does, McCarthy doesn't have to go along with that. He can say, yeah, I like those five. Pick again. And then, you know, then you're stuck with Hakeem going, okay, pretty pleased. Will you take these five?

I mean, I don't think you want to be there either. And what is the advantage of making it, quote, by partisan when it's obviously completely partisan? So I'm not sure I agree with you that I want to have the craft. I'll tell you why I want them on there. All right. Because otherwise, we're not going to know what they're doing. And Democrats will make it's true. The Democrats will make sure that we get oversight over the oversight.

Come in. Basically, yeah. No, I mean, I just think that way we'll know what they're trying to do, what they're saying, what the, you know, what the agenda is. Otherwise, otherwise the Republicans are just going to control the message. They're going to control the dialogue. And we're going to be, I mean, information is power. Having information is a good thing.

And so that if nothing else, just for that reason, I want Democrats on there to, to keep everything honest. Number one, number two, the other thing that's going to happen is people are going to refuse to come before the committee and testify. Most notably, people like Jack Smith, for example, is going to refuse to come testify and talk about his investigations because they're open. And so what's going to happen is the committee's gonna refer

contempt of Congress, they're gonna refer cases, right? Contempt of Congress cases to the DOJ and the DOJ's gonna refuse to prosecute it. It's just gonna be so ugly. This whole thing is gonna be a mess. And so that's what, this may single handedly keep legal AF alive. You know, I kid around with Ben

about the fuel that we need. And I'd be very happy if things were like normal. I'd be very happy to put the show out of existence. Like, okay, we're done. We did our job, we're done. Everything, nothing to see here. That's never gonna happen. Thank God, we like doing the show.

And I think people like having us do the show. But we always worry about, is there to be enough to talk about on a weekly basis? I mean, just the, the shenanigans of the House Select Committee under Jordan and all of the election deniers, you know, running around for the next two years, like you said, running in and out of court with subpoenas getting the Supreme Court to have to rule on things. The DC, the real DC courts courts and DC courts of appeals. You know, they're nutty enough to actually try to get the sergeant in arms of the house to go arrest somebody in there.

This will be like, you know, 1800s. You know, and the sergeant of arms went literally like on horseback, like I'm constable and try to arrest people. We may try to see that again You know rest them on the house floor crazy crazy stuff But anyway, listen, this is why we invented the show There's obviously a need there's obviously content that we can talk about every week and we've come to the end of another midweek edition of

Legal AF Karen Friedman, AgniFalo and Michael Popok and our sponsor today, one that Karen loves, Deely and Soto-I, lo me by Pila. We're glad they're on board. They're going to be with us for the whole year. Looks like and people should try it. It's a way to, as we said before, to get rid of your eco-gilt and do something for the planet,

which is always a good thing. Karen, final words. Great to see you. Stay tuned on Friday for the sentencing of the Trump Organization. That's going to be big news. Oh, yeah. And Karen, I don't know if you're going to be able to get in there. Maybe if you're in town and you have nothing bad about it.

Yeah, I don't think I'm going to be in town Friday, but I wish. All right. I think that's's gonna be one to watch. That's really really. And we'll report on that. If my plans change, I'll go, I will definitely go. And just to manage expectations, and we'll leave it on this. And there's no such thing as sentencing

a corporation to prison, so or jail. That's not happening. So we say the sentencing of the criminal defendant who was convicted by a jury of 70 counts of tax evasion and other types of fraud, it's not going to be that someone goes to jail other than Alan Weiselberg and maybe others in the future. But there are other things that the judge can do, monetarily finds, and some other conditions that can be set, and we'll talk more about that when it happens on Friday.

I'm sure we'll report that on Saturday, and maybe a hot take in the middle. So for legal AF midweek, Michael Pope, our free bidect, Nifolo, we'll see you next Wednesday here on the show. Thanks all. here on the show. Thanks all.