Legal AF by MeidasTouch - Jack Smith Puts Judge Cannon ON NOTICE

Episode Date: July 18, 2024

Michael Popok and Karen Friedman Agnifilo are back for the midweek edition of the top-rated Legal AF podcast. On this episode, the anchors debate leading stories at the intersection of law and politics including how Special Counsel’s Jack Smith’s third appeal of Judge Cannon will fair as he seeks to overturn her fringe ruling that the Special Counsel has no power and is illegitimate; the outlook for a Trump prosecution in Georgia in 2025; President Biden’s moves to reform the Supreme Court and get constitutional amendments passed to overturn the immunity decision by the Court, and so much more. Join the Legal AF Patreon: https://Patreon.com/LegalAF Thanks to our sponsors: PolicyGenius: Head to https://policygenius.com/legalaf to get your free life insurance quotes and see how much you could save. Lume: Control Body Odor ANYWHERE with Lume deodorant and get $5 off your Starter Pack (that’s over 40% off) with promo code legalaf at https://LumeDeodorant.com! #lumepod Beam: Get up to 40% off for a limited time when you go to https://shopbeam.com/LEGALAF and use code LEGALAF at checkout! Fum: Head to https://TryFum.com/legalaf and get a FREE GIFT with the JOURNEY PACK today when you use code LEGALAF Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af MissTrial: https://meidasnews.com/tag/miss-trial The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Coalition of the Sane: https://meidasnews.com/tag/coalition-of-the-sane Learn more about your ad choices. Visit megaphone.fm/adchoices

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Benefits vary by card, other conditions apply. Welcome to the midweek edition of Legal AF. We sit at the intersection of law and politics so that you don't have to, and we curate the top four or five stories at that intersection and bring it to you. Wednesday's here, Karen Friedman, Nick Nifilo, my friend and colleague, and me, Michael Popak. Got three big topics up for grabs

today. We're going to talk about the Georgia prosecution of Donald Trump. Is it DOA? Is it dead on arrival? Because three judges of an intermediary court in Georgia have decided to postpone the hearing on both Swanee Willis' motion to dismiss the appeal and on the appeal itself to well after the election. What does it mean? Is there going to be a trial in 2025? We're going to talk about that. Then we're going to talk about Judge Aileen Cannon.

We just have to. We talked about a love letter that was sent by way of a concurrence from Clarence Thomas to Aileen Cannon, which has now been called a cancurrence, because this was nothing but just a message that he wanted Aileen Cannon to find that the special counsel was illegitimate, was not properly appointed, not properly funded, and the whole indictment, along with all the other co-conspirators, should just be tossed out the window.

She's hated this case from day one since before day one. Now Clarence Thomas gave her an exit ramp. Look at Clarence Thomas in the middle of all this. This is a guy that should have recused himself, never made any decisions at all given his wife's involvement in the insurrection and yet he was involved with helping Donald Trump not once but twice, joining the majority in the immunity decision in July on July 1st and writing a concurrence in the immunity decision, which was a message directly to screw up and throw a monkey wrench directly into Mar-a-Lago's prosecution on behalf of the special counsel.

Clarence Thomas sat around for years not talking. Now we can't get him to shut up. We're gonna talk more about that here on Legal AF. And then, as we said, as Ben likes to say on other hot takes and other versions of this podcast, every action has a reaction. And we have a series of things that the Supreme Court has done over the last two terms, especially this year, breaking down the wall between church and state, of finding or helping to find a special counsel to be invalid against the woman's right to choose, imposing and giving immunity, almost blanket immunity to the person who occupies the presidency,

and suggesting that even pardons are appropriate in that scenario. What do you do about it? So we're going to talk about the evolution of President Biden, who a year or two ago said, well, I got a blue ribbon panel. And, you know, they're sort of split about what I should do to him coming out now, and really following the lead of Professor Lawrence tribe of Harvard, and saying there's a number of things we have to do immediately, including the number of people on the court, making sure that special counsels in the future are protected,

making sure that pardons aren't used improperly, taking away immunity from the president and other constitutional officers. Finally, we're hearing a coherent response to an out of control rogue fringe Supreme Court by the President of the United States. We're going to talk about it here on Legal AF. What a week, Karen, since last time I saw you. Events in Pennsylvania transpired. A convention has started. And if you could believe it, the only people that have been convicted in the last month are two Democrats, one named

Senator Menendez and the other one named Hunter Biden. Well, Donald Trump, Donald Trump. I don't know how that's lawfare. The only people that seem to be getting convicted are the son of a president who's a Democrat and a Senator who's a Democrat for New Jersey. Who was prosecuted by a special counsel, no less. That's right. Suddenly. Right. And we're going to talk about that. Democrat for New Jersey. Who was prosecuted by a special counsel, no less, that's suddenly, right. And we're gonna talk about that. That's one of the

things I want to get to with you when we get to that segment, which is, what does that do to open the floodgates of everybody who got convicted by being prosecuted by a special counsel, going back to time immemorial? Because if it was invalid, nonc protonc, as we like to say sometimes to brag on our Latin in law school, then it was invalid at then and now, and they could be seeking to vacate all of their convictions. Let's kick it off, Karen, with anything that you'd like.

I'd like to start with Georgia, but tell me how you're doing. We haven't seen each other in a while, and certainly there's been a lot that's happened in between. I mean, and I don't say this with a lot of pride, but it is the first time in four years of Legal AF that we did not put on an episode. And it's really because frankly, and I'll apologize to the audience now, we were scrambling because at the moment we were about to go live, the events in Pennsylvania, we were trying to get our minds around it. We didn't really have full information. Maybe we should have done a live version of it, of the shooting issues, but we sort of didn't do that.

And so, we didn't put out that episode from last week, but we'll find a way through Patreon to drop it as far of content, but look what's happened. So it's the last time you and I were looking across a laptop together. Yeah, no, a lot. A lot has happened. And, you know, now the Republican Party is allegedly calling for unity and the convention is happening. But more importantly than what has happened there is that Judge Eileen Cannon

dismissed the Mar-a-Lago case on the first day of the Republican National Convention. Talk about a partisan decision. I mean, of all days to do it, it was absolutely such a sending a message straight to Donald Trump. Talk about a love letter. You say Justice Thomas, that was his love letter to her. This was her love letter to Donald Trump, talk about a love letter. You say Justice Thomas, that was his love letter to her.

This was her love letter to Donald Trump. So if there was ever any doubt that she's trying to curry some favor or seek higher office or whatever it is she's looking to do to Donald Trump, just the fact that she had a 93 page decision dismissing the case in full, ready to go on the day of the convention. It was just stunning to me. Absolutely stunning. She should have just attached that to her application for the Supreme Court, see attached. And we talk about the political calendars and how judges like Judge Chuck can

want to stay away from the political calendar. And any judge worth his or her salt stays away from the political calendar. And the way you do that is, okay, I'm not telling you if you are going to write a 93 page decision, that's wrong, that's fringe, that's rogue, that it's going to get reversed. And we'll talk about that at the appropriate time on the show. Just wait until after the Republican National Convention. Don't do it the day of and after the shooting. That is the worst time. That shows that it's politically charged. Do it next week.

And then, I mean, we will be equally critical as we're going to be on this show tonight, you know, as a spoiler alert. But don't give us the opportunity and Karen the opportunity to say at the top of the podcast that this is a love letter to Donald Trump on the day of the... No other judge would do this. Chutkin wouldn't have done this. Mershon wouldn't have done this. The DC Court of Appeals or any of the judges there would not have. Any other judge in the Southern District of Florida would not have done this but her,

but she doesn't care. And we're, but her, but she doesn't care. We're going to talk about why she doesn't care. But why don't you, I know you're doing something on the Georgia appeal along with, I think your mistrial colleagues, but why don't you, since you're steeped in it, why don't you talk about what's going on in Georgia with the appeal? Because there's been a new development there, and I think you're the right person to kind of catch your audience up on it. Yeah, so oral argument date has been set for December 5th

at the Georgia Appellate Court to determine whether or not Fannie Willis can continue to prosecute that case. If you remember that this was a case where some of the defendants said that she had an affair and therefore she should be disqualified. Then they had this hearing to see whether there was a conflict of interest because she was having a consensual adult relationship with the lead prosecutor, Nathan Wade, who she brought in to prosecute that case.

He's a former judge, he's a former prosecutor, and he's a well-respected attorney in that community. She brought him in after several other people, including the former governor of Georgia, who turned her down to be the lead lawyer on that case. So she brings him in. She and he then had a consensual adult sexual relationship, apparently. And, and as a result, the there was this long involved hearing saying that was a conflict of interest. Now, many of us, including me, watched that

entire hearing to really try to see what the conflict of interest. Now, many of us, including me, watched that entire hearing to really try to see what the conflict of interest was and whether there was a conflict of interest. And certainly, I didn't see any evidence whatsoever come out that there was a conflict of interest. And in fact, Judge McAfee did not find that there was an actual conflict of interest. What he did say, however, is that there was an appearance of impropriety, an appearance of a conflict. Now, I still disagree. I don't understand it.

It's not like she was having an affair with someone on the other side of the V, the Georgia versus Trump. It's not like one of the defense attorneys. It's not like she was having an affair with the judge. It's an HR question mark, whether or not that's appropriate. But what's the conflict? It was unclear.

It was never clear. People speculated that it was financial, but they never really kind of developed that at the hearing. So I was surprised that he would even say there was an appearance of impropriety, an appearance of a conflict. But he did. But he said it would be remedied if Mr. Wade

were to get off the case, which he promptly did. He resigned. But Judge McAfee allowed the defense to appeal, which they did, and they briefed it, or the briefing at now, oral arguments is set for after the election. So at the time they'll know whether or not that he's going to be president or not. So there's a lot of moving parts to this case. This case is very much tied to the DC case, the Tanya Chutkin case, in the sense that a lot of the evidence is the same, a lot of the charges are similar, and a lot of the conduct is similar. This continues and does a lot more on Georgia,

and obviously has 17 more defendants than that case. But the reason it's significant is this July 1st presidential immunity decision. So let's just start with can Fonny Willis prosecute the case? That's what's going to be decided. If she gets removed from the case, frankly, I think the case is, is, you know, I don't know who they would put in to do it or who could do it. So the case is a big question mark then. But let's say she can stay on the case. The next thing that has to happen, first of all, Donald Trump is gonna be president. There is absolutely no way that case will go

against him during his presidency. And the reason is federal law, through a memo from the Office of Legal Counsel, interpreting the United States Constitution, has determined that a sitting president cannot be prosecuted while they were president. That just cannot happen because it interferes with his ability to run the country.

So because of the United States Constitution's supremacy clause, which I think it's Article 6, clause two says basically that the law, the supreme law of the land is federal and takes precedent over any conflicting state law. So even if Georgia state law said you could prosecute the sitting president because that's federal law, that would control. So Trump, if he wins, will not go to trial while he is president number one She could proceed against the other Defendants however, but they'll still have to be an analysis about the evidence and about the charges and immunity again

Because of the supremacy clause, right? The Supreme Court now has has determined that he's immune as to certain certain things So a lot of that what's in that indictment, I think would come out. The candidate Trump stuff, right? The fine 11,780 votes, the perfect famous phone call, I think actually will survive. And I think the Georgia specific stuff

is more candidate Trump. So it's not President Trump will not be his official acts, but your guess is as good as mine of what will happen. But that case as to Trump is very much in question as to whether or not that will go at all or certainly will go anytime in the next four and a half to five years. And what survives with the other defendants, I do think that could go though, whether or not he's president. But that's what I think.

Yeah. I think you're right. So Fonny Wells has a motion to dismiss the appeal, but I assume it will now be heard after the election. Her grounds for that, which I covered once before, is that there is no ability to appeal the fact finding that is at the heart of the decision by Judge McAfee. And once you rip that away from the appeal, there's nothing else to do. There's so much deference that's given to the trier of fact in this area.

And that's what they're just trying to do. They're trying to make the appellate court redo the factual hearing or interpret the facts differently. And that's not their job and she pointed that out but rather than hear that early they're hearing that I assume closer in time or at the day of the oral argument whenever that is set and as you said it's only the second the first level appeal there's also there's also a Georgia appellate court the supreme court of Georgia that would have to get involved as well but then you have the the heart of the matter is the heart of the case being ripped out by the immunity decision. We've always said that, yes,

state prosecutions are great when it comes to Donald Trump, if they're successful, because they can't be pardoned away as easily. It depends on your state and your governor or your parole board, probation board, whatever it is in your particular place. But the Supreme Court has just given a blanket, almost absolute immunity or immunity that's very difficult to overcome for official conduct. And they would require, and it's now the law of the land, and they would require, and any judge in Georgia will have to follow the Supreme Court on this issue. They're not going to be able to come up with their own aversions. That many of the things in the speaking indictment, the sprawling indictment that Fonny Willis chose to use, and we applauded her for it at the time, are going to be sifted out and surgically removed from the indictment,

because they're not going to be able to support the charges because of the official conduct. And official conduct can't be used as evidence to help you prove unofficial conduct. So she's got a bit of a problem if she even gets the case back about what her indictment looks like versus what the Supreme Court, US Supreme Court decision is. And then you've got the whole kick it down the road, kick the can by these three judges on this panel outside of Atlanta. These are people who didn't want the political calendar to be involved.

They're like, yeah, except in favor of the candidate. Let's kick it way out there. Now one of the things that I've called for, and we'll talk about it probably in another hot take or as this thing develops, is the thing that's missing, as you said, is the other co-conspirators, they're not out of the woods. The immunity decision doesn't help them. They, at worst or best, they conspired to commit crimes

with somebody that had immunity. That doesn't help them. And I would assume based on her track record and her approach that she's gonna prosecute the case against the other 14 or 15 regardless. Many of those people that are in there, think about this. If Donald Trump somehow gets restored to power, there's no other way to put this,

many of these people that have been indicted or unindicted, unindicted co-conspirators, cooperators, they're going to be swept back with him. People have to recognize that his coattails are loaded with felons, people in and out of prison, people who lost their law licenses or should, and co-conspirators, including ones charged around the country in the Attorney General cases. And I've said, and I called for this in a recent hot take, we should demand, and Joe Biden should demand, that Donald Trump put up his cabinet, tell us who is going to be in his West Wing.

Who's your Attorney General? Who's your Secretary of State? Who's your attorney general? Who's your secretary of state? Who's in this office? Who's your chief of staff? I mean, a lot of times in order to make a country feel better or at least know what they're voting for, a presidential candidate will be pictured with their cabinet right around the time of the convention. You know Donald Trump's not gonna do that because he doesn't want people to know, especially

the independents and those that are still on the fence about his candidacy, about the criminal element that he's gonna sweep back into the into the White House with them and some of those people are in the Georgia prosecution. You don't think Mike Roman, who was the head of his election day operations, who was the mule to carry the fake elector certificates, you don't think he's going to be back in a White House with Donald Trump, even though he's indicted in Georgia? Donald Trump doesn't care about that. He's putting on the stage today, or tomorrow, Peter Navarro.

Peter Navarro just got sprung from the Miami Penitentiary today. He's changing out of his orange and he's changing into some suit and they're throwing him up on the stage to be celebrated and feted because that's what the restoration of Donald Trump's presidency sort of means. Carol, what do you think about that, about the cabinet, naming your cabinet?

Tell me who your attorney general it is because I keep speculating that it's Rudy Giuliani, Aileen Cannon, Jeffrey Clark, Alina Haba. Who's your first lady? I think that's either Alina Haba, Ivanka, or maybe Melania. I'm not sure. I know. I mean, I know it's, yeah, was surprised where where we're speaking of where we're Melania and Ivanka on the first night at the convention. I mean they would know where to be seen so Well, we're gonna we're gonna we're gonna talk about something he got away with in Florida with judge Aileen Cannon she of the Southern District of Florida in a I mean, I'll just tell you it was not a jaw-dropping as an understatement

in a, I mean, I'll just tell you, it was not only, jaw dropping is an understatement of the fact, the way we reacted on our own text chain when it came out within moments was, but you had some good predictions about that, and I agreed with you on one part. I agree with you that she was gonna find a way to get rid of this case as quickly as possible, and she has, but the 11th Circuit is the backstop for that. It's the firewall,

hopefully does the right thing. We're going to break all that down. We're going to talk about finally what Joe Biden's administration and the president himself is doing about in reaction to what we just watched the Supreme Court do, the train wreck of the Supreme Court. As it ethically circles the drain, somebody's got to stand up and do something about it. And finally, we've got President Biden who's proposing to do something about it. I think that's part of the job he hasn't yet completed that he wants the American people to vote him in for.

We'll talk about all of that. But we've got, as people know, we got some amazing and a lot of them new sponsors who are pro-democracy and help keep us on the air. Let's be frank, there's three major components that keep us on the air. This audience, many of which watch us on YouTube or then listen to us on audio versions of the podcast, and that's all for free. That's one big component. Our sponsors, and not just kind of watching the ads, but also trying out the products that we've already tried for you

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bare hands. So these are the ways to support the network. And we always we appreciate everybody being here through a very hot summer through a very difficult summer in terms of having to watch what's happening and but hanging on with us and letting us be a community together. We'll pick it back up with Mar-a-Lago and what President Biden's doing, but first a word from our sponsors. When I think of summer smells, I think of sunscreen,

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the Mar a lago Aline cannon fireball special Holy-shmigoli You know, it's like I Mean let me just I'm gonna turn it over to you in 30 seconds. Let me just say this. There's nobody, I'm not surprised by anything that Dailien Cannon does. And unfortunately, we finally have the opportunity to take an appeal of this crazy 93 page decision.

Three pages of which actually looked at the statutory language that was appropriate, but read it out of context and read out most of the language following the lead of Judge Clarence Thomas. He's wrong too. And just the other 87, 88 pages is just make-weight. It has nothing to do with the heart of the case. The heart of the case is a two-page section. She got it wrong. She didn't cite to the right legislative history. She got the language wrong. She knew she got it wrong because she just dispatched it with, well, that's all that needs to be said on that one. She literally wrote that. As soon as I saw that, when I first saw 93 pages, I said, well, this is hard hitting I mean I'd agree with it but there's gonna be intellectual integrity here she's in a former appellate lawyer for the Department of Justice this is

right up her alley here we go nope not at all it's just a a sophomoric wet mess which is gonna be my prediction gonna be is going to be easily dispatched by whatever three judge panel of the 11th Circuit gets this. At the same time, you're going to look, finally, we've been talking about it for over a year, Jack Smith's going to be able to ask for reassignment. And if she doesn't know what reassignment is, and she doesn't like statutory language, she should go look up the statute that allows her bosses in the 11th Circuit to reassign her off of this case because under the Lemon Law, there's three defects and three recalls, you're off the case. She already had two before the indictment even came out. She now has this major one in which she's dismissed the indictment with

prejudice and closed the case and didn't even give the special counsel who she doesn't think actually exists. She thinks it's a figment of her imagination. It is an illegitimate prosecutorial body. She doesn't even give them that the courtesy, the courtesy of delaying the effectiveness of her order until they get their appeal up and running. And my favorite part, Karen, is when they noted when they when this spokesperson for the special counsel's office, they made a made a point of saying, we're not a figment of your imagination. We exist. We are employed by the Department of Justice and our boss is the Attorney General. And we have gotten the Attorney General's approval to appeal your backside.

That's the last part was mine. All right, catch up everybody on the ins and outs of the 93 pages, then we'll say what happens next. So a couple of things. First, let me see how well I know you after all these years of doing this weekly podcast with you. Let me guess, the part of the opinion that you think of the 93 pages that's substantive

is around page 20 Something mid 20s 24 25 so good You know popok I just know you now is that wait help me out here who is winning the fourth race in Pimlico tomorrow Because you're very good at this kind of stuff. No, I mean look the prediction I got I got half a prediction right, I got half a prediction, right. I got half a prediction wrong, right. Soon as you know, the frustration with Eileen Cannon is, is that she doesn't rule on anything, right. She never makes a decision.

There's every substantive legal motion out there is still not ruled on. She didn't even set a trial date and it's just been beyond frustrating. And when she does say something, it's one of these strange three or four lines minute order in her docket. There's no like piece of paper decision that's handed down anywhere with any analysis. And as a result, there's not anything to appeal. Everyone's like, why isn't Jack Smith appealing? Why aren't they asking her to recuse herself or to get her off the case, asking the appellate courts to disqualify her?

And the reason is they've been waiting, because she didn't do anything. She refused to make a ruling. She refused to make a decision. She refused to do anything substantive. As you said, there was two other times that she was smacked down hard and pretty quickly by the 11th Circuit.

They didn't waste any time to unanimously smack her down and overrule her in this case, right? Is there, but my question to you is, is there really a three strikes when you're out? Like there's three reversals when you're off the case or is that just sort of understood in the 11th Circuit? It's of understood? It's understood. The Southern did other courts do it too. The Southern District certainly has cited in cases and it seemed to be around three. They'll give you like you know it's like those cases the dog bite cases you get one free dog bite and then that's not then you can't

yeah there's like three major errors in your rulings. It's like, no, you're off the case. And we'll just have to see, I'll go back to you here. We'll just have to see which three judge panel they get. She had two separate three judge panels. I think there was one justice judge that overlapped that slapped her back hard when she tried to interfere with the investigation before the indictment.

One was headed by the chief Chief Judge William Pryor. I think they've been chomping at the bit, Karen, to get a substantive ruling, and they couldn't ask for better. You're like, you did a great hot take on it. Like, I mean, this is a gift, and this isn't a small gift. This is like a gigantic gift to the special counsel, right?

This is a gift to the special counsel, because now they is a gift to the special counsel because now they can appeal obviously, because this is lawless. I mean, every other time that anyone has ever questioned this and appealed this, it's just been not, you know, it's not the law, right? Essentially, essentially the argument goes like this. The United States Constitution has something called the appointment clause, which essentially means that any appointment of an official with power has to be confirmed by the Senate, right?

The president appoints and it's confirmed by the Senate. And so all the United States attorneys are confirmed by the Senate, the cabinet members, you know, et cetera. Everybody's confirmed by the Senate. And what they're saying is this violates the Appointments Clause. And they could be, they would be right, except there are several statutes that actually authorize the appointment of a special counsel, two of them. And those are the ones that I think that you, where she did some legal

analysis or tried to, even though it was just perplexing, because when you read the two statutes they clearly say this is okay. But they're in 28 United States Code, Section 510 and 515. And basically, Section 510 says the attorney general may from time to time make such provision as he considers appropriate authorizing the performance by any officer, employee or agency of the Department of Justice, any function of the attorney general. I mean, you know, there's no doubt that this is a function, investigation and prosecution is a function of the attorney general.

And so it clearly says they can essentially designate someone else and appoint them to do it, but she barely even addresses it in her opinion. All she basically says is, oh, but he's not an employee of the Department of Justice or of the government. He's from the outside, so it doesn't count. And you scratch your head and you say, that makes no sense. And then there's 28 United States code 515B or 515B that basically says each attorney specially retained

shall be commissioned as a special AG or special attorney and take the oath by law. So, I don't get, she says this refers to the US attorneys, but that's not what it says. Right. It's special, right? That's exactly what it says. So I didn't quite understand her argument, right?

I just didn't get it. And then where's the site and Karen not to interrupt, but where's the citation to anything other than other than Aileen Cannon on her interpret statutory interpretation? Where's the legislative mystery? She cited to Thomas as concurrent. Of course, and Thomas leads back to landmark foundation, legal foundation, which is a MAGA right wing that indirectly is involved with his wife.

This is corruption writ large and baked into a 93 page opinion. And that's why we're calling it out. Yeah, no, it's, it's, it's atrocious. Um, what happened there, you know, there's the fact that, that, that, that issue wasn't even before the Supreme court, nobody briefed it. And even more importantly, that not a single other justice of the Supreme court joined Thomas's concurrence on that,

leads me to believe that there's hope that if she gets reversed and it gets to the Supreme Court, that maybe it's not a given that this is going to be completely dead in the water. That being said, timing wise, if he's elected president, he will tell, he will he will tell his Department of Justice to dismiss the case and, and he'll pardon himself. So the argument is very similar. The reason I think if it ever got back to the Supreme

Court is because even though it's always been argued by MAGA, another fringe theory is the Gen 6 committee was invalid because it wasn't appointed properly, there weren't enough Republicans on it, it didn't follow the requirements, the whole thing should be ignored. No federal judge and the Supreme Court has implicitly endorsed the Gen 6 committee's authority and legitimacy in its other rulings against Donald Trump, just as Judge Carter did in ordering the Gen 6 committee subpoenas be enforced against John Eastman and ultimately against Donald Trump. I think that'll end up there, but you're so right on timing. I mean, that's why it was only a gallows humor joke that I said at the top of the podcast,

which is, lawfare? What's the lawfare? Everybody that's been convicted in the last month are Democrats. That's the lawfare? I mean, if lawfare was really a thing, Menendez would have walked by the way, Menendez was prosecuted by Senator Menendez from New Jersey was prosecuted by Donald Trump's Department of Justice in 2017 and walked out the wood front door because that jury got hung on another bribery scheme and another corruption scheme and he skated by. But that was Trump's prosecution. The one that nailed Menendez is Breon Pierce in Brooklyn under Biden and Department of Justice led by Merrick Garland. That's how that went down. And Hunter Biden, special counsel, right. Let's talk about the special counsel for a minute.

Assuming we're you and I are in agreement, I think I'm sure we are, that the 11th circuit is going to reverse her. I don't know which panel of the judges are going to do it. And they'll do it, I think, relatively soon. They brief the issues related to the investigation very, very quickly, not like the DC Court of Appeals. I think we'll get a ruling this summer, then an appeal, and the Supreme Court's not doing anything until they get back from summer vacation in October. I mean, they can make emergency rulings in the meantime. But the 11th Circuit, I think, and I'll double check this at a break, I think Clarence Thomas sits over the 11th Circuit, if I'm not wrong. I'm going to double check that as the judge responsible for the circuit.

I'm going to double check that. If I'm wrong, I'll come back and tell you. If I'm right, I'll tell you that too. But the thing I want to talk about after our next break, Karen, is what happens with all the other defendants who are convicted by some special counsel, including a guy named Hunter Biden, what happens to them? I mean, we know he's gonna file, Trump's gonna file this same motion and put it squarely in front of Judge Chutkin. I'm sure, I'm sure, surprised he hadn't done it yet. And she's gonna have to then make the decision up to the DC Court

of Appeals. and we will have competing appellate courts there. But there's hundreds of people that, or dozens at least, that have been prosecuted by special counsels, not just this one. What happens to them? Do they say, hey, it's an invalid prosecution because the guy that was on the other side of me wasn't real. He was illegitimate. He was rogue. Talk about all that and we'll talk about what Joe Biden's going to do about the United States Supreme Court as part of his new agenda moving forward. Both a constitutional amendment that he's seeking, more seats, do something about the immunity, do something about this decision about special prosecutors and special counsel. We'll

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Head to tryfume.com. That's T-R-Y-F-U-m dot com and use code legal af or scan the QR code on the screen to get a free gift with your order today. Welcome back. We're going to talk about other people who were convicted successfully by special counsels, special prosecutors. There's a special counsel that's being called for by the Senate Democrats against Clarence Thomas and to investigate him. And others have been convicted by him. I wanna hear from our resident former prosecutor,

Karen Freeman McNiflo about the next steps now that we have that ruling besides the obvious, which is the 11th Circuit appeal that Jack Smith has announced that he's gonna be taking. And of course, as we're going on the air, we also learned that unfortunately the president has contracted COVID. He was gonna appear in front of a Latin rights group

in Las Vegas, but has had to now postpone it because he has contracted COVID. So the wheels of justice continue to roll. So can't catch a break, right, Karen? Cannot catch a break. It really is just crazy to me that he now has COVID during all of this. Yep.

Well, I wish it were all. Well, at least it's July and not October. There's more time on the clock for everybody. So that's a good thing. Talk to me about what do you do if you're a defendant who got convicted by a special counsel now that Aileen Cannon has made the only ruling in America that says that that position is invalid? What do you do?

Yeah, if you're a defense attorney, you're going to write a motion to set aside the verdict and you are going to, or I guess I say that with Hunter because he hasn't been sentenced yet. Or if you've been sentenced, you'll appeal and you'll basically say, look, you know, there's a federal judge, the federal district court who cites the Supreme Court Justice Clarence Thomas saying that this is invalid and I,, you raise your hand, and you say, me too. And you appeal. And you try to get your case thrown out because of it.

I mean, it really does put cases in jeopardy for anybody, for absolutely anybody who wants to make mischief, right? Anybody who wants to make mischief, right? Anybody who wants to make mischief, any other judges who want to follow Eileen Cannon's, follow her ruling and what Justice Thomas said. I mean, it's just stunning to me what this does to all the other cases potentially. And hopefully most judges will say she's lawless, because this has been appealed before,

this argument has been made before and nobody has entertained it, nobody. But of course it gets put in front of Judge Eileen Cannon and she finds it so interesting that she invites strangers who aren't parties to the case to brief it and to give oral arguments. And then, you know, Justin, then she doesn't rule on it. And Justice Thomas sees an opening to talk directly to her

and knowing that that motion was pending, knowing that she hadn't ruled on this very issue and wrote that concurrence, which was talking to Judge Cannon directly. And so I think every other defendant out there who's ever been prosecuted by a special counsel is gonna seek to use this to get their case thrown out, including Hunter Biden, right?

And it puts, the problem is it puts Joe Biden in- The Biden administration in a bad spot. Yeah, in a terrible spot. I was just going to say puts him puts puts, you know, his father, who's also the president, who's also the head of the Department of Justice in a terrible spot to be able to say, you know, here to be able to say no, you know, actually, this is it's okay that you prosecuted my son, but it's not okay. You know, Donald Trump gets away with it. It's just it's it's an untenable prosecuted my son, but it's not okay, you know, Donald Trump gets away with it

It's just it's it's an untenable situation. It really really is. Yeah, I want to see what the you know, we'll have to see what how how much the hunter Biden people and the The Biden campaign people are gonna have a conversation about some of that but we'll will And I just to square the circle here, as my colleague confirmed, Justice Thomas is the Supreme Court justice responsible for the 11th Circuit, as I suspected, and that makes his canon currents even more nefarious because he wasn't just speaking to any old judge he was speaking to a judge like a boss speaks to an underling I am your your 11th circuit Supreme Court justice justice cannon and this is just

cannon see one day she could be justice cannon at the rate she's going. But how does that work? And this is what you should do. But how does that work, Pope Pock? How is it that he decides over the 11th Circuit as opposed to the full panel? In other words, how does it explain how that works? Well at the top of each term, the Chief Justice assigns, and usually keeps them in place, a Associate Justice to be over one of the 11 circuits plus the Federal Circuit, so there's 12. He takes the Federal Circuit for himself, and then he carves out among the other. Well, he has others besides that one. So he then distributes the 12 or 11 left among the nine, meaning some have more than one.

And he generally plays politics. He puts the more, let's put it this way, the blue states get the three liberal progressive justices, Sotomayor, Katanji Brown Jackson and Kagan, and the more red ones get the rust. And that's the way it works. So New York is Sotomayor and California is, I think, Kagan. Katanji Brown Jackson? Is she Katanji Brown? Or is it either her or Kagan? I think so. Yeah. And Chicago, you know, and so that's how they do it. And so the red purpley states like Florida, get

somebody like Clarence Thomas, which means that the shadow docket now we're back to the shadow docket when there is an emergency appeal, it first goes through the justice assigned to that circuit, they can either make the decision on their own, or refer it back to the full panel. But the first stop on the train is Clarence Thomas for 11th Circuit coming out of, so it's not just he's over here

and he's just whispering sweet nothings to her. He's like the guy. Now, because networks like ours and others have for the last two years called out the shadow docket, they've stopped using it as much. Sometimes they use it occasionally when it's not that controversial. But if it's anything that's like smacks of any kind of controversy, they've been rolling it back to the full panel to see if there's enough votes to grant the writ, grant the

cert, grant whatever. So that's sort of a quick and dirty. So you're saying that Justice Thomas, if Trump appeals this up, let's say the 11th circuit reverses, you're saying that Trump can appeal it up to just one judge? No, he'll ask for a full appeal, but he'll ask for emergency appeal on an interlocutory basis without full briefing. And Thomas can

decide to grant it and, and then take it up. And then it goes to a vote within the Supreme Court, and they can decide on full briefing or argument. And all of that it's normally comes normally that issue arises more when there's like an injunction, or a ban or a block of a ban that has to be put in place. But this isn't really that. This is a dismissal of an indictment. So you're right, when it gets to Thomas, he can't like, Oh, I affirm it and it appeals over. That's not how that would work.

But it will start with him and the writ will be addressed to him. And then I just even he I believe as I've he's done it himself will refer it over to the full panel. If there's four votes or five votes, they'll take the appeal. If there's not, they'll say the 11th circuit decision stands. They don't have to take the appeal by not taking the appeal of the 11th circuit stands. And that is the end result could just be a per curiam decision, you know. And if the 11th circuit keeps it you know affirms no doesn't reverse. Ken Jacks is this something Jack Smith can appeal all the way. Oh yeah oh yeah and as you noted I think in something else maybe maybe when we oh you

ban me and you jumped on to talk about this and a hot take to talk about this You rightly pointed out that thank God she did it now without having made any rulings Because it's not so but there's not so much race judicata or law of the case It has to be traveling with the case to the new judge The judge can sort of make decisions sort of a new which is good because we never liked any of her decisions leading into this but um That's where my prediction was wrong, but I thought when I read the immunity decision I thought three things were gonna happen number one She was gonna rule everything is immune right that he's immune from everything and fruit of the poisonous tree

so number one and number two Dismissed because the special counsel. And number three, I thought she was gonna do a nationwide injunction. But so I got one and three wrong. So she didn't make as much mischief as she could have. I mean, she really would have tried,

she could have done that. And by not making that substantive ruling, hopefully she gets kicked off the case that all these bad rulings aren't stuck with the case and the new judge can kind of reset and, and, and try this case. Of course. I liked your two. I went with two with you because I thought that is a way to get rid of the

entire case, including against Walt Nauta and Carlos, the only be Yara whoever's name is the other co-conspirator. including against Walt Nauta and Carlos de Olibarra, whatever his name is, the other co-conspirator. And that's ended up, what she, depending on her entirety of her 93 pages of make-weight, that's exactly, lightweight making make-weight is a bad combination. But hopefully the Levin circuit, which I have a lot of confidence in,

will do the right thing and get this case back on track. But again, this is gonna to think about the timing. This is July, even if they hold oral argument and issue a ruling in August, then there's an attempted appeal that gets sat around for a while. Now it's November. And then what? Mar-a-Lago never, as we said, it was DOA when that ruling came out one way or another, at least until after.

And if people were looking for yet another reason to vote against Donald Trump, it would be that he's going to, as you said, he's going to kill all of these federal cases on his first moment in office with a stroke of a pen and with his attorney general, whoever fill in the blank, that's going to be, let's talk about things we, we can do and what the president can do to address an out of control, rogue, Supreme Court that has so changed and made imbalanced the three co-equal branches of government.

It's now, if you had one of these charts where the circles represent the power, it would be Congress in a small circle the supreme court So the congress would be like a plum Supreme court would be like a grapefruit And the presidency would be like a watermelon That's what that was supposed to be three co-equal branches of government with checks and balances. Forget it Once you give absolute immunity or basically it's equivalent to the presidency,

then that's out completely because you've just, and you say, and there was even a suggestion during oral argument that pardons were okay and self pardons were okay. You heard Gorsuch, and now we know why, because he's now completely over in the right-wing camp with Thomas and Alito and Sam Alito. And so there's things that you can do in response. One of them is, you know, AOC proposing articles of impeachment. They don't go anywhere unless the Democrats get

the House again. But that's out there and it's the right thing to do. But then you have the proposal, which had to be fair, had been rejected by Biden once before with a blue ribbon panel. But now he sees that, you know, he's got to start putting on brass knuckles here and get that Supreme Court under control. So what we've seen is the announcement is not formal yet, but he had a apparently had a zoom conference call with the progressive Democrats and disclosed that he's ready to follow the the analysis of Lawrence tribe professor out of Harvard constitutional law professor that there should be a number of things that get done. One of them, an ethics code that sticks.

Secondly, more justices. How many more, I'll throw it back to you on that. Third is some structural changes that have to be done through a constitutional amendment. One, an independent federal prosecutor. That's almost like a fourth branch of government. That would solve this whole problem that we didn't know was a problem until Aileen Canham made her ruling, but it would establish

a federal prosecutor who is independent from the executive branch. People who tune in from around the country sometimes don't recognize or realize the independence of the Department of Justice is by tradition, generally a democratic tradition. It is not in the Constitution that they be independent. They are a part of the executive branch. There's always been that anomaly. It's no joke when we say it's the Biden Department of Justice. It is. We don't say it as nefariously with conspiratorial tones as the Republicans, but that is the truth. And if you want to resolve that, then you get a special prosecutor

out here who's kind of codified, but you have to do that by constitutional amendment. And then what are the proposals, Karen? I'll give you the rest on immunity and pardons. Yeah, look, I mean, you know, there's lots of other proposals in their term limits for Supreme Court justices, which I love. I don't know why they get a lifetime appointment and, you know, and at the same time are essentially all powerful and don't have to abide by any code of ethics. So those are the two ones that really interested me the most was an actual code of ethics that they have to abide by and term limits. Those are the two things that I thought are really important. The timing of this is I 100% agree with you,

that sometimes you got to do this to be on the right side of history, even though you're not going to, it's not going to go anywhere. But the timing of this is just less than ideal, because it's coming now when, unfortunately, his political opponent's case was dismissed, and now he's calling for it. I mean, he should have called for this a long time ago. He appointed this panel, but he's such a kind person and somebody who wants to try to find unity and bring people together that he tries to do things that aren't political hot button issues

that are controversial. And unfortunately, the other side doesn't play that game. The other side cheats on the game. And I'm reminded of when Obama in the last year of his, I think there was 11 or nine months left of his presidency, he, Justice Scalia died and left an opening before the Supreme Court. And that's almost a year of a four year,

it's almost a quarter of his term, right? And Mitch McConnell, who was the Senate Majority Leader was like, you know, we're gonna wait until there's gonna be a new administration. Let's see who wins. And because why? Because of the Appointments Clause, they have to, you have to have the advice

and consent of the Senate, whoever the president appoints. And so, Merrick Garland, who was his choice, was never confirmed by the Senate. What did that do? That let Donald Trump appoint the Supreme Court justice, right, and made it a conservative justice. And then at the end of his term, right, I think he'd already lost the election. It was like, or it was, you know, right before the election, but it was like months to go, you know, like, or weeks to go. It was,

it was ridiculous. Well, Mitch McConnell, knowing that he lost the election and there was gonna be a new president, certainly didn't give that, he certainly didn't stick with his same statement. And he rushed through Amy Coney Barrett. Now, thankfully she's turning out to be not as bad as the others and has a mind of her own. And even in certain things, doesn't let them go as far as they

want, which is a good thing. She's still extremely right-wing, but she's not as bad as the others, in my opinion. But it's like we play by different rules. And I say this over and over and over again, it would be one thing if we had an actual disagreement on facts, right? And it's like we play by different rules. And I say this over and over and over again. It would be one thing if we had an actual disagreement on facts, right? And it's like, well, I believe in fracking. I don't believe in fracking. And I think it hurts the environment. Whatever.

OK, let's talk about it. Let's talk about what it means. And people can have an intelligent discussion about it and disagree about it. But when you're cheating and not playing by the same rules, it's not fair, right? And the other side is going to always win because they're always cheating. They're always doing things the way they want to do things and the rules apply to them differently. And that is to me what is so frustrating about the Supreme Court and everything that is going on here.

And that is what's so frustrating that they constantly are getting away with. And so, Joe Biden, I say this in the context of Joe Biden, is because he's such a decent, law abiding kind person who believes in decency and believes in trying to bring people together and trying to really do things the right way keeps getting outplayed by these people. The Supreme Court is just making it easier and easier for that to happen. It's literally stacking the decks. I mean, they've removed power from the agencies in the Chevron case, where they overruled the Chevron deference doctrine.

They've literally removed any authority of agencies and given it to who? The courts. They have literally made it so that presidents are above the law. It's a special position. It's a special position. It's a special thing that nobody else has. And they're consolidating the power there.

And the fact that they can pack the courts the way they can and get away with these rulings that are just, the history, stare decisis, and interpreting the law coldly versus being an activist judge just is is where we are right now and it's dangerous and it's uh it's terrifying we are headed toward an autocracy and um and if anyone thinks this is anything but that they're not paying attention. And every single thing we talk about here is exactly that.

And so Joe Biden, I very much applaud him for doing this. It is the right thing. He should recommend that these changes be made. And if nothing else, at least there will be a record that this is what should be done and this is the right thing to do. The panacea for this is relatively straightforward and simple. It's blue up and down the ticket, up and down the ballot on November the 5th. If that happens, all of our hand-wringing about the Supreme Court and the 6-3 supermajority can quickly become a 5-4 progressive majority almost overnight or within a year or two if the right person is in office. If Joe Biden and the Democrats are back in power,

things like the constitutional amendment to remove the immunity that was just blankedly granted by the Supreme Court will become law. It will promote it, it'll be on the ballot. People will, I think thinking adults, will think that's a good thing to have and to get away and take away the pardon power from the presidency. But it has to be a constitutional change in order for that to happen.

Packing the court, good idea. Franklin Delano Roosevelt, FDR, thought that was a good idea. Scared the crap out of the New Deal Supreme Court and made them approve all of his New Deal legislation ultimately. And so, you know, I like a 12-person court, 14-person court, sure, why not add three or four more on there. But, you know, there's always that unintended consequences, the wrong hands that could also run the other way, but you know I think adding more than nine is a good

thing. Lifetime appointment is not a good thing for that particular body. It does imbalance, as I said you got the lemon, the grapefruit, and the watermelon problem that you didn't have before and it would solve that. But you got to have the right people in office in order to execute on these plans of term limits and structural changes and a fourth branch of government in the form of an independent prosecutor body that doesn't currently exist. So it is a we can accomplish this. It's not like putting a camel through the eye of a needle. This is not hard if we can pull together and pull ourselves together and prevail in November. And if not, we know what it looks like other than that.

And that should be the motivating factor for everyone to early vote, register to vote now. Early vote wherever you can because the earlier you vote the better. In case something comes up, in case it's a crappy weather day, the day of your election, you know, election day, November 5th. Mail-in vote, absentee vote, whatever your state allows, follow the rules really, really carefully. I just got a notice and got invited to be part of the Florida Protection Squad for the Democrats to help with outside the polls and do things that I can do,

even though I'm not registered in Florida any longer. Some people are lawyers, some people aren't, and people can do that. Even if you're not a lawyer, you can join democratic organizations that are made to protect voting, and there's a role for you. And it's a very exciting and interesting way to be involved. I've done it a number of years in a row, and I can't tell you how rewarding it is to be at a precinct and be right in the thick of things as people are voting and making sure that voting is

done properly. These are all the things that we can do that we ask people to do here on the Midas Touch Network. And we have a, this is the reef where all of this type of fish hang out, right? People that are pro-democracy, pro-voting, don't make voting harder. Not fraud, nobody wants fraud. We're talking about voting and taking advantage of extended hours for voting for people who work and can't get there at certain times on November the 5th. And then doing something about the United States Supreme Court rebalancing, recalibrating

that delicate balance of three co-equal branches of government that our founding fathers and our framers put together that has been torn asunder and ripped to shreds by this United States Supreme Court. There's something we can do about it. We're not going to sit down for it any longer. And we've got a president who can help lead us there. Karen, why don't you come on back for a minute? So I always like giving you the last word. It's always something interesting, memorable, impactful to our audience. So what do you got?

always something interesting, memorable, impactful to our audience. So what do you got? I should know because you always do give me the last word. I should be more prepared. But you know, look, the one thing I will say is one of the reasons I love doing this show with you show with you is our audience and how engaged they are. And I always feel like the audience is, they express, they're very interactive and express a lot of comments to us, whether it's in the comment section right now, or whether it is through the, on YouTube people leave comments

or whether it's emailing directly to us or on Twitter or whatever it is. And I'm always so surprised at how much we all need each other. We're like a community that we all feel similarly. We share the same frustrations we share. We're very like-minded, not just in terms of policies, but in terms of how we're all feeling about the moment and what's going on.

If that is the way people are, if how we feel is how other people are feeling, I just want to say how much I appreciate that I'm part of a community because this could feel very isolating where we are right now, feeling like it's why is it that the other side keeps winning, frankly, and keeps catching all these breaks and having the Mar-a-Lago case just get dismissed. It know, it's just, it's just crazy, right? The immunity decision, et cetera. And it can be disheartening and it can be scary and terrifying when you see the results

of voting red, frankly, right? You see women's rights being taken away and you see a lot of scary things that are happening. And so to have a community to come together and know that you're not alone, I will say means a lot to me. And so for that, I am extremely grateful to be here every Wednesday. And I really do appreciate the engagement. And I try to appreciate the engagement. And I try to

read every comment. I try to take the advice you know, that people give whether it's you know, the glare in your glasses to other other pieces of advice that people are very kind in how they and how they give it. And because it means a lot, right? It's it's a it's hard. It's hard to be in this time right now. And so I just want to thank everybody and talk about how lucky I feel to be here and part of this community. Appreciate you support the show.

Mistrial is a sister podcast anchored by Karen Friedman and Nifilo. Legal AF Patreon, patreon.com slash legal AF for some exclusive videos and then supporting whatever we do, wherever we do it here on the Midas Touch Network. So we've reached the end. There we go. There's Patreon. We've reached the end of another episode, midweek edition of Legal AF. And so we're going to do a shout out to the Midas Money and the Legal AFers.

We'll see you Saturday, Ben, my cellist and me.