Legal AF by MeidasTouch - Jack Smith SHOCKS Trump with BRILLIANT Maneuver

Episode Date: August 27, 2024

Corporate media has it wrong: in the Trump DC election interference criminal case, the Special Counsel Jack Smith will NOT need to use a “mini trial” to defend his indictment against dismissal, and that’s NOT A WIN FOR TRUMP. Michael Popok who practices federal criminal law explains how Smith made his indictment MAGA Supreme Court-proof, and would never want to turn his trial playbook over to Trump before the real trial. Head to https://manukora.com/legalaf to receive $25 off your starter kit today! Visit https://meidastouch.com for more! Join the Legal AF Patreon: https://Patreon.com/LegalAF Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af 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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Terms and conditions apply. Visit mx.ca slash business platinum. This is Michael Popak, Legal AF. Some people were worried, but not me, that Jack Smith was going to have a hard time defending his indictment in the DC election interference case against the new immunity decision issued by the United States Supreme Court, the MAGA right wing of that court on July 1. Everybody was dithering and wringing their hands. Oh no, will the indictment survive? Will he be able to prosecute Donald Trump in the DC election interference case? What will be the procedures? Don't worry.

I already see corporate media reporting this the wrong way. They're reporting it like, Jack Smith rejects opportunity to put on mini trial against Donald Trump. That is written by people who don't practice law. I hate to be rude, but let's just call it out for what it is on legal AF. For those that practice regularly in federal court, including criminal law, let me tell you why the mini trial thing never was a thing.

I mean, it was delicious. It was something I would have loved to have seen Mike Pence and all of the coup plotters be dragged in, including from their locations in prisons, to testify against Donald Trump. But that's not how you test the veracity of an indictment. An indictment is issued by a grand jury. The indictment has to rise or fall on its own merits, on its own four quarters, of what is on the face of the indictment.

A prosecutor is not allowed to supplement the indictment, change the indictment. The indictment is the charging document. It is issued from a grand jury. It informs the criminal defendant in our system of justice who is presumed to be innocent about the charges against them and the evidence against them. Separately, the prosecutor has to provide an entire truckload, electronic or otherwise, of all of the documents, information, witness testimony, data that would both be incriminating and exculpating, meaning

tending to prove someone's innocence. That is an obligation of the prosecutors in our system of government and it has to be turned over in advance. So that's going on. Now the question is, did in order to have his indictment survive going through the meat grinder of this immunity decision from July 1, which now Judge Chutkin is required to do by the United States Supreme Court, who wrapped her knuckles a bit in making new law that favored Donald Trump in telling her, oh, you should have looked at the indictment at the top of the case two years ago and you should have determined which of the allegations in the indictment fall into these three categories. And the court gave her the three categories to filter the indictment through, to push it through

the sausage maker. As any of the elements of the indictment official conduct stretched to its outer boundaries as a person, president, co-op, president of the United States? Is any of the conduct that's alleged at the heart of the indictment absolutely immune because its core presidential powers or functions? And does anything fall into that last bucket of private conduct for which there's no immunity? And you got to go piece by piece and allegation by allegation because the Supreme Court says we have to. So there was a lot of speculation about

how would Jack Smith defend his indictment and how much of it needed to be defended. I've looked at that indictment. I've looked at that indictment as probably as many times, if not more than the actual team that's prosecuting the case here on legal AF. I've looked at all 43 pages of it.

I've looked at every element of it. There is very little in the indictment that's gonna have to be removed from the indictment because of the July decision, very little. Jack Smith knew there was a possibility that this right-wing Supreme Court could get into some sort of immunity debate with him. He knew that certain of the elements may be subject to another court proceeding in the Supreme Court about

two of the four counts. He made his indictment supreme court proof, MAGA proof if you will. It will survive. There's gonna be a couple of fringe allegations here or there, not at the heart of the prosecution, not at the heart of the crimes or the overt acts or the conspiracies for sure. And you can use what we call in the law a blue pencil, which is what it sounds like,

and you can go and the judge can blue pencil the indictment and say, okay, the indictment stands, except for paragraphs 32, 62, okay, the indictment stands except for paragraphs 32, 62, 68, 75 through 92, 106 through 12. You get the point. But then you look, then after you're done with your scissor or your blue pencil and you take out these allegations, you say what stands? What's left standing?

Is there a appropriate valid indictment that puts the defendant on notice of his crimes and meets out the elements of each of the crimes? And the answer to that is going to be yes. Now you don't get the luxury when you're a prosecutor because you have to prove your case beyond a reasonable doubt. You don't get generally to supplement your indictment with an evidentiary hearing in court or with briefing.

If it's not in your indictment with an evidentiary hearing in court or with briefing. If it's not in your indictment, you can't fix it in a brief, in a motion, in a piece of paper you submit to the judge, in an argument you make on your feet, or in a witness testimony or other document you bring into the court. It has to be in the indictment. And if it's not in the indictment and it's important to the indictment and you needed it in the indictment and you can't bring it in all these alternative ways, what do you need to do? You need to re-indict. You need to re, you have to go back in front of a grand jury

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And try some honey with superpowers from Manakura. Manakura is incredible. and I'm so thankful they're a partner of the show. I look forward to Manakura every morning. Make sure you click the link in our description or head to manakura.com legal af and try some today. Now let me just give some comfort here. I don't believe Jack Smith's gonna re-indite either. That'll set the case back over a year to go back to a grand jury to do a supplemental indictment or amended indictment or what we call

a superseding indictment, not going to happen. He is confident, I believe, and we're gonna find it out next week when he files, I'm kinda giving you my predictions here, as a practicing lawyer practices this kind of law, that Jack Smith is going to find a way to thread the needle and keep this indictment up and running. It's not even on life support. The way some of these corporate media, and I'll throw up some of their headlines here, it makes it look like the indictments on life support. Jack Smith, oh my God, how is he going

to save it? It's not on life support, okay? I don't know how many ways I can say that in a hot take. It's not. And the mini trial would not have worked. Although, as I said, at the top of the hot take, it would have been extraordinarily delicious and entertaining, especially right before an election, to have the Department of Justice put on a mini trial

of all of its evidence against Donald Trump. But they don't want to do that. They don't want to show their cards before they go to trial. A mini trial means you're giving the other side an overview and an insider analysis and view of the trial in advance of the trial. Now look, the prosecutors, like I said before, they have the burden. Person is presumed innocent until proven guilty, even a guy named Donald Trump. The evidence has to be presented beforehand to the defense in order for them to evaluate it. Witnesses have to be presented to them along with any witness statements that were

taken. Expert witnesses have to be presented to them in advance. The only witnesses in documents that you don't see in advance are what we call rebuttal evidence or testimony. And that comes up on the fly during a trial. If it really is rebutting a point made by an affirmative witness or piece of evidence, you got to deal with it on the fly. That's one of the both exhilarating and terrifying things about criminal federal trial practice. There are times there are, and I've done this before in my career, there are witnesses up on the stand. You barely know who they are. You thought they were tangential. Now the government's making a big deal out of them. You got to fumble through your electronic files or boxes. You got to find hopefully a witness a witness folder that you made in advance.

If not, you got to get a paralegal or one of your attorneys to scramble and go find a document with their name on it. Maybe you're told at nine o'clock in the morning and the witness is going on after lunch, it happens in federal criminal court. It happens. So other than rebuttal witnesses, you get everything in advance. But what you don't get in advance is the trial notebook for the prosecution.

You'd love to get the trial notebook for the prosecution if you're on the defense side, but you're not getting that. And you'll get a version of that in a mini trial. I have participated in versions of evidentiary hearings or mini trials. I participated in what's called the summary jury trial where you have fake jurors, mock jurors, and you and with a judge present, you present your case in a condensed format to

the other side and to these jurors and then you pull them at the end to see what their result was going to be. And sometimes that's used as a settlement technique by a judge. But that also can potentially tip off the other side to the strengths and weaknesses of your case, to strengths and weaknesses of you as an advocate. It basically gives them a mini version, maybe not all the pages, of your playbook, of your trial notebook. And the Jacksmith doesn't want to do that. So forget the mini trial and it's not a bad thing.

That's not going to happen. This indictment is going to survive the analysis and the proper application of the immunity decision from July from the Supreme Court mapping it onto this decision by Judge Judkin. She's going to take, yeah, she's got to take briefs from both sides. She'd be remiss if she didn't. But ultimately she is the jurist that's responsible for administrating justice and criminal justice in this case. And she's going to make the ultimate decision because she has to answer to her bosses. Buck stops with her and only the appellate court cares about what she finally decides.

She'll take in the briefs. She'll look at the indictment herself along with her law clerks and people that assist her. And she will make a ruling probably in, I don't know, it's not going to be in September because they're not meeting until September. They're meeting on September the 5th. And there's going to be briefing throughout the month of September. I think this is going to be, I don't know if an October surprise is the right word, could be an October decision, could be a November decision. But ultimately this case, DC election interference case against Donald Trump is going to go to

trial between November and in the inauguration it may go to trial. And whether he wins or loses, he's going to trial the DC election election interference case. I think Judge Chuck Ginn owes it to the American people. She understands she owes it to the American people. And if somehow in the slimmest of chances Donald Trump figures out a way to return to the White House, he's still gonna go to trial on this case. And we'll continue to follow how Jack Smith, he's gonna file his brief next week. We'll report on it. The Midas Touch Legal AF right here and on hot takes like this one and on our podcast, Legal AF like this one.

Then we'll see some response by Donald Trump. Then we'll have the hearing, which will not be televised, but we'll be able to report on it and we'll do our own analysis like no other, I think, show on the internet, on YouTube, on podcasts, we call it Legal AF, there it is, for a reason. If you didn't know why we called it that, now you know. We sit at that intersection of law and politics as practicing lawyers and we bring it to you.

Wednesdays, I co-anchor it with Karen Friedman, a former prosecutor. Saturdays with Ben Micellis, co-founder of the Midas Touch Network. And then I do my own independent analysis of hot takes like this one about every hour right here on the Midas Touch Network. So you can help us build the network by free subscribing, get us to 3 million free subscribers on this network. We're completely independent, no censorship, unfiltered, unhinged sometimes in the defense of pro-democracy and our constitutional republic.

So until my next hot take, until my next Legal AF, this is Michael Popak reporting. Hear ye, hear ye, Legal AF Law Breakdown is now in session. Go beyond the headlines and get a deep dive into the important legal concepts you need to know and we discuss every day on Legal AF. Exclusive content you won't find anywhere else, all for the price of a couple of cups of coffee. Join us at patreon.com slash Legal AF.

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