Legal AF by MeidasTouch - Jack Smith STICKS THE DAGGER through Trump’s PATHETIC Defense

Episode Date: November 8, 2023

Jack Smith and the Department of Justice have solved the problem of Trump maintaining that he genuinely believes he lost the election to prove he committed criminal fraud. Michael Popok of Legal AF breaks down how the Department of Justice’s new filing to oppose Trump’s motions to dismiss the DC election case now argues that it is a crime for Trump to use specific phony examples of voter fraud against Pence and state officials even if he can somehow provide evidence that he believed the election was rigged. Head to https://TryFum.com/legalaf and use code LEGALAF to save 10% off when you get the journey pack today! 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 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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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Be alert, be aware, and stay safe. This is Michael Popok, LegalA aff, let me read you something. The defendant Trump stands alone in American history for his alleged crimes. No other president has engaged in conspiracy and obstruction to overturn valid election results and illegitimately retain power. Not my words. The words of Jack Smith in his 70 pages filed in opposition to Donald Trump's motions, to dismiss the indictment for them for the DC election interference case scheduled to go to trial in March. Uh, Jack Smith's team and lawyers have pushed back shove back, if you will, against Donald Trump and his efforts to try to avoid the trial in March, having just now gotten around filing in November, a omnibus motion to dismiss.

And Jack Smith calls out the timing of the motion as well, saying that this defendant has a history of trying to obfuscate and delay and avoid the trial and he timed the filing in November, just several months before his trial for maximum disruptive impact, meaning he could have brought this kind of motion a long, long time ago. He's had the indictment for a long, long time. The motion goes to the indictment, not to all of the evidence that has been exchanged and provided by the government, you know, the one terabyte or so of information, the hundreds and thousands of pages.

That's not part of the motion to dismiss, or Donald Trump sat on his motion to dismiss in order, again, as the government to paraphrase the government to have a devastating impact by its filing. But even in the late filing, which goes to Judge Chutkin, it was obvious to me when I saw the original motions. And more so now that I've read the government's opposition papers, Donald Trump is going to lose this. His primary argument, Donald Trump's primary argument that infects all of his motions is that he's got a first amendment right to commit fraud. He's got a first amendment right to tell Mike Pence, fraudulent, untrue things in order

to influence his certifying the election. He's got a constitutional first amendment right to lie to the American people about the outcome of the election and about the evidence to support the fraudulent election. And what the government pushes back with, which I think is really masterful, is to say to the American people and ultimately to the judge that even if Donald Trump believed that ultimately he would prevail and that there was fraud in the election. The particular specific fraud that he was using in order to berate and abuse election officials, elected officials all the way up to Mike Pence was something that was easily debunked and was false when said false when known and therefore cannot form the

basis of that action, that action, even if later somehow, which it was not, but even if later, all of Donald Trump's actions were proved to be in the pursuit of a valid attack on the election, what he said about it at any particular time was so suffused with fraudulent statements that that alone creates the crime. Think about that. They've solved the conundrum of how to prove criminal intent and trial. To the question to the defense that Donald Trump will raise is, I believed that the election

was stolen. I believe that there was fraud to try to defeat criminal intent, right? Subjective, subjective mind, even though any reasonable person observing all the evidence being told by his legitimate members of his cabinet and lawyers that he had lost the election, even, even performing certain acts, which indicates that he knows that he lost the election, Donald Trump continues to maintain that he always believed that he had been the victor. But it doesn't matter.

Here's where they've solved the conundrum at the government level. Because at any particular moment, he was telling lies that he knew or should have known were untrue about dead people voting in Georgia about, you know, ballot stuffing and false Chinese ballots for Biden being placed and stuffed into ballot boxes in Georgia and the other battleground states. Those were all lies. And therefore that lie is the conspiracy that he is being charged with the obstruction of Congress, the obstruction of government function, the

defrauding of the United States of America. So that, so think about that. Think about how devastating that is the Donald Trump's arguments. Now, the motion says that the indictment to answer Donald Trump's attacks and he's being vindictively persecuted, they say the indictment is based Donald Trump's attacks and he's being vindictively persecuted, they say the indictment is based on facts in law, not animus. In other words, we bring everyone equal under the law in front of the courts as prosecutors, not because he's a Republican, not because he's the, as he likes to call himself the leading candidate to be reelected or whatever it is. And now we also saw a new twist that I appreciate it.

And I want to bring to your attention in the motion papers or the opposition papers by the government. They've answered the question more satisfactorily for me about the Jan 6th being used as a tool by Donald Trump. We were all upset when we read the original indictment that when Jack Smith's team got to the point in the indictment to talk about the chronology and Jan 6th itself, the attack on the Capitol that he didn't lay the blame at the feet of Donald Trump the way that Jan 6th committee did in their reporting.

We know now the one of the reasons he probably didn't do that is because that issue of Donald Trump's responsibility for Jan 6 itself, the insurrection violent acts of that day were litigated in the Senate in the house as part of the impeachment process. And rather than touch that issue with the 10 foot pole as to whether that's a Congress issue, a political issue or whatever, he just said, I don't really need it. I don't need to lay the blame, culpability criminally at Donald Trump's feet for Jan 6th, but I get to talk about Jan 6th, contextually, as part of the conspiracies. Donald Trump did like that.

One part of his motion was that to dismiss the Jan 6th references, because of course, he doesn't want the jury to be reminded of that darkest chapter, one of the darkest chapters in American history for which he's responsible. Here it's a very interesting nuance. In the original indictment, if you read it kind of comparing contrast, the original indictment said basically that Donald Trump took advantage of the chaos of Jan 6th, in words, got behind it, not that he created it, not that he let it, but when you read the new filing, whereas you exploited the Jan 6,

exploited the Jan 6 crazed mob here in the motion papers. They go further. They say Jan 6 was the day that each of the four criminal conspiracy led, criminal conspiracies led by Donald Trump came to a head and that they provide the contact, context to his criminal conduct. And then they cited all the times that Donald Trump has promoted or extolled the Jan 6th defendants themselves champion them, right?

Calling them that those defendants are very special special that we love them, that they are great patriots, and that the Jan 6th day itself was a beautiful day in American history, trying to whitewash American history, and even turn it into something that is an admirable set of conducts for Donald Trump instead of the crimes that have been alleged. And so I thought that was a new pivot for the justice department that I was pleased to see. And I'm sure we'll see more of as we get into the trial. This is Michael Popok, legal AF. Colterky may be great on sandwiches, but there's a better way to break your bad habits.

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I won't bore you with just a free reading of, although people might be thinking, I would pay to see Pope Acreta that. I don't think so. So let me just read some excerpts from it that I found were really poignant and right to the point. On page three of the brief to continue to chip away at the first amendment defense by Donald Trump, which is really ridiculous, because all we're talking about is not criminalizing protected speech. We're talking about speech being used to perpetrate crimes and defraud, of course, by way of speech that are outside the protections of the First Amendment. So bottom of page three, the brief for the government says, the allegations that the defendants sought to overturn the results of the 2020 presidential election by resorting

to fraud, deceit, and corruption place his conduct well outside the protections afforded by the First Amendment. And likewise put him fully on notice that his conduct was criminal and thus subject to prosecution. And you hear that theme time and time again in the papers. His conduct, even though it has some speech attached to it, is outside the protection of the First Amendment. The brief also reminds the court that the indictment frequently provides examples of Trump's deceit, trickery, and use of dishonest means to spread lies that there had been outcome, determinative fraud in the election that these statements were false and that defendant knew they were false. For instance, I'm paid six of the brief. The Department of Justice says, and I quote, the indictment goes on to describe the false statements

that undergirded the conspiracy alleging that the defendant, his co-conspirators and their agents, made knowingly false claims that there had been outcome-determinative fraud in the 2020 presidential election, including dozens of specific claims that there had been substantial fraud in certain states, such as that large numbers of dead, non-resident, non-citizen, or otherwise ineligible voters at cast ballots, or that voting machines had changed votes for the

defendant to votes for Biden. These claims were false, the indictment alleges, and the defendant knew they were false. The indictment provides examples of these false claims, including the defendant's statements, Trump's statements, that 36,000 non-citizens had voted in Arizona, false, that more than 10,300 dead people voted in Georgia, false, that there had been an illicit dump of more than 100,000 ballots in Detroit, false, and that there had been an illicit dump of more than 100,000 ballots in Detroit, false, and that there had been 205,000 more votes than voters in Pennsylvania, false, and that there had been tens of thousands of unlawful votes in Wisconsin, false, and that voting

machines in various contested states had switched votes from the defendant to Biden false. The indictment identifies this motion or this brief by the Department of Justice continues. The indictment identifies five ways in which the defendant and his co-conspirators use these lies, these specific lies, to obstruct the federal function by which the results of the presidential election were collected, counted, and certified. And that's how they're able, later in the brief, to kind of bring it all home with the argument that if you lie about specific things, you still can be guilty of fraud and a conspiracy to defraud the government. Even if later on, you have a working theory that there was some sort of improper conduct in the election, that doesn't give you the right to lie about

these specific things along the way. You don't get an automatic license to just say anything, which is what Donald Trump is known for, of course, is that's his calling card is hallmark, because you think you have a legitimate gripe about the, that the election was rigged. So on page 10, the brief says, quoting even the Supreme Court, starting on page nine, starting on page nine. Uh, moreover, even if the defendant could supply admissible evidence of his own personal belief that the election was rigged or stolen, it would not license him to deploy fraud and deceit to remedy what he perceived to be wrong. And it would not provide a defense to the charge, even where a defendant uses deceit to obstruct government

functions that he thought were unconstitutional. The Supreme Court has made it clear that a claim of unconstitutionality will not be heard to excuse a voluntary deliberate and calculated course of fraud and deceit. Going on, the brief says, the defendant, defendant Trump may be guilty using deceit to obstruct the government function by which the results of the presidential election are collected, counted, and certified, even if Trump provides evidence that he subjectively believed that the election was rigged. That is the problem for Donald Trump. It doesn't matter. We know it's not the trial is not going to be a test of whether he really did believe or didn't

believe and all that. Yes, they're going to put on that evidence. But he can be convicted of the crime, even if he really believed it because the specific things that he told other people to influence the outcome were lies and he knew or should have known them. You know, trying to persuade officials to consider alternate slates of electors, arguing to them that there was a bonafide legitimate dispute between what was the legitimate electors and what weren't. That's a lie. That's a lie that he cannot maintain in the First Amendment.

Does not predict. Specifically on this point, on page 13 of the brief, the government Department of Justice says, thus, even assuming some of the defendant statements about the vice president's authority could qualify as misrepresentations of law. Such statements, for example, his statement that the vice president had the power to reject fraudulently chosen electors from certain states were undergirded by specific factual lies that the vice president could and should do so because outcome, determinative voter fraud took place in those states, and there was a bonafide dispute about which slate

of electors should be counted, right? So even if you have a good faith, bonafide belief that the election was rigged, the things you're talking about are obvious lies, and you don't get a pass on the lies just because you have an overall belief that the thing was rigged. And that's how the brief really picks apart all of the arguments in the four motions

that the Trump Trumpers filed in this one really elegant 70 page omnibus opposition paper. And now it's left with one more brief, or I guess four more briefs, a reply brief of a very small length, usually it's about 12 or 14 pages. So we should expect about 50 plus pages of reply papers by Trump. They get the last word as the move it. And then that's it. We're done.

The judge judge, Chuck and does it have to hold oral argument she can or she can just rule on the papers. And my reasonable opinion is that she's going to deny the motion to dismiss all of them against the indictment and Donald Trump will then try to have to take an appeal and maybe stay the case on an appeal. And it'll be up to a DC court of appeals, a random three judge selected panel, not any of the panels that have heard matters or have been assigned matters so far. It'll be another three judge panel. We'll see who that panel is.

And they'll have to decide whether they're going to temporarily or permanently stay the case. I don't think they will. I think they'll just let the appeal take its normal course. They'll let the trial go forward. And if they let the trial, if they let the appeal move in its own pace, it'll be a six to eight month period and we'll have the trial well before that.

So I think we'll just continue to follow it here on legal AF on the Midas Touch Network. And if you like hot takes like the one I just did at the intersection of law, politics, injustice, you're going to love what we do on Wednesdays and Saturdays on legal AF, the leading podcast devoted to law, politics, injustice, one place, exclusively on the Midas Touch Network. Free subscribe, help them get the two million, they're getting so close, they're at 1.75 million. Free subscribers, the bigger they get as a grassroots media company, the more your voice is heard. So, until my next hot tick, until my next legal A F, this is Michael

Popock reporting. by following us on Instagram, at MidasTouch, to keep up with the most important news of the day. What are you waiting for? Follow us now.