Legal AF by MeidasTouch - Jan 6 Committee Calls Out Trump for Criminal Conspiracy in NEW Legal Docs (and More)!!!!

Episode Date: March 6, 2022

Anchored by MT founder and civil rights lawyer, Ben Meiselas and national trial lawyer and strategist, Michael Popok, the top-rated news analysis podcast LegalAF x MeidasTouch is back for another hard-hitting look in “real time” at this week’s most important developments.  On this “one year anniversary” episode, Ben and Popok discuss and analyze: The Jan. 6 Select Committee’s court filing finding a good faith basis to believe that Trump was a co-conspirator in an effort to defraud the US Government. The DOJ obtaining its first guilty plea for seditious conspiracy. The first Jan. 6 insurrectionist criminal trial, US v. Guy Reffitt. Tucker Carlson’s racist comments about the next Supreme Court Justice, Ketanji Brown Jackson. SCOTUS’ oral argument to decide whether Congress can delegate to administrative agencies to allow them to regulate big business, and in the area of environmental protection. Federal judges in Florida and Texas undermining Biden’s role as Commander in Chief to deploy troops consistent with the federal vaccine mandate. A North Carolina federal judge finding that Madison Cawthorn can run for re-election because a 150-year statute drafted for Confederates overrides the United States Constitution about future insurrectionists. SCOTUS reinstating the death sentence for one of the Boston Marathon Bombers under 6th Amendment grounds, while Breyer comments on whether the death penalty is Cruel and Unusual Punishment under the 8th Amendment. DEALS FROM OUR SPONSORS: AG1 by Athletic Greens: AthleticGreens.com/LegalAF LightStream: LightStream.com/LegalAF Policygenius: Policygenius.com/LegalAF Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Midas Touch Legal AF podcast. If it's the weekend, it is Legal AF Ben, Myceles and Michael Popak breaking down all the legal issues of the week, the key critical pressing legal issues. We try to break it down in ways that you all will understand, relate to understand the implications and we've got a lot to discuss. Michael Popak, how are you doing this weekend? I'm doing great and I'm really glad that I think the brothers are sprung from the YouTube jail, which I appreciate. Yeah, there was a bit of YouTube gait going on in the past week where bit of YouTube gate going on in the past week where it was very odd. We played the video of Governor DeSantis bullying, it was just disgusting when Governor DeSantis bullied the high school

students who he was using as props at university of southern Florida. He was out there actually supposedly touting cyber security program within the school within academia. And when he saw these high school students wearing their masks, he yelled at them. He called it COVID theater, told them to take off the masks and told them that they look ridiculous. It was a very the opposite of leadership. And it's also the opposite of what it's supposed to mean if you're conservative. You're supposed to be about personal responsibility and the individual's choice. It was literally an example of big government yelling at the average citizen and telling him how they should act.

Imagine what the chapter in the high school textbook is going to look like, not in Florida, but in other places. And on this date, Governor DeSantis yelled and screamed at underage high school students to remove masks before he started a speech. So presidential, so much leadership being displayed there. Such a nice chapter at a future history book. At the same time, you have over 953,000 deaths in the United States from COVID is the opposite of COVID theater to downplay this raging pandemic that came upon our shores.

What was the yelling and screaming at the Florida children and I see you's not to die? Because of his policies? No, he just screamed, he's talking about theater. He just screamed at children to look like a tough guy, like a Putin guy at a press conference. That's what the parties become. Yeah, you know, and I still think,

Popaka, references on the Midas Touch brother podcast. You know, there are legitimate discussions legal and otherwise that I think we can have over should, during a pandemic, large corporations be able to keep open their stores. Should the targets of the world, the wallmarks of the world, the CVS's of the world remain open, and the mom and pop shops, the small businesses, the restaurants have to shutter and close and go out of business.

My heart goes out to all of the small businesses and the restaurants. In fact, early on in the pandemic, I was fighting for a lot of restaurants and small businesses to come up with something creative. Can we do outside dining? Can we do this in a safe and effective way? And I think that's fair to have those discussions. But the moment that people start saying

that COVID is a hoax, that the vaccines don't work, that just is beyond irresponsible. That is aiding and abetting really the murder of Americans and people around the world. Through that, we're going to talk a little bit later in the podcast and in the first beat of the podcast about a navy leader who is actually commanding a ship as a leadership position of a 1.8 billion dollars ship who refuses to get vaccinated. Not only that, intentionally, it seems, or at the very least, recklessly spread COVID, all of his commanding officers said, this guy can't be leading this ship and you have

a federal judge who's been very sympathetic to the anti-vax movement, saying, no, no, no, no, he's allowed to leave the ship and you can't take any adverse actions again. And we'll get to that. But it's really, COVID has done a lot and it's also exposed this underbelly of conspiracy that actually isn't the underbelly. It's the overbelly, you know, and to see how prevalent some of these antilogical views are and people in power holding these views, it's been incredibly depressing, but I'm still confident that the majority of people out there want and a significant majority of people.

Want their children to be safe, follow science, care about these things, we just have to talk about them. We have to be loud and proud about the truth, about science. Yeah, and we're gonna talk about that fifth circuit, ruling that's basically taken, taken Biden down as the commander in chief of the armed forces and had replaced him

with three ultra conservative members of the fifth Circuit, again, the Fifth Circuit, and coming up from a trial judge that seems to be the go-to judge for the Republican right-wing causes. They file in his court. They try to get him as the judge. He makes, you know, really outer boundary off the margin rulings, like Obamacare should be repealed. He gets reverse seven to two. And other things, he seems to be anti-health and health care. But we're going to get to that when we talk about the Navy SEALs and how a court has replaced the President of the United States as the commander-in-chief as it comes to the deployment of troops. First, let's start off with the Supreme Court. However, reinstating the Boston Marathon Bombers death sentence, you'll recall, Jocars Sarniev, the younger brother, a terrorist who killed many people

during the Boston Marathon, his older brother died in a shootout during the manhunt that transpired after this terrorist attack in 2013. He was found guilty. Joe Zkar, Zarnav, was found guilty in the trial court and sentenced to death. The court of appeals overturned the first circuit court of appeals, overturned the death sentence in 2020, finding that the lower court judge improperly excluded evidence that could have shown Sarniew was influenced

by his older brother and specifically evidence that his older brother may have been involved in other murders prior to the Boston marathon. The triple homicide on the anniversary of 9-11. That they think the brother was involved with before the Boston Marathon bombing. There's, and there seems to be significant evidence to suggest that, although the lower court judge

and Sarniab's trial said, we're not gonna make this trial about another trial. We're gonna focus right now on Sarniab, so we're not going to bring that information in. That's not relevant to the calculations here of guilt or innocence or of the application of the death penalty. And in a six three split along pretty much party lines, not pretty much the six three, the sixth right wing judges, the three not right wing judges ruling against the death penalty, finding that the first circuit court

of appeals was followed the law when they overturned the death sentence. Popeye, what do you think about this Supreme Court? Yeah, it was a swan song for for briar. He got to probably for the last time state the progressive position that the death penalty and capital punishment should be eliminated and found to be cruel and unusual punishment. Under the eighth amendment of course the only two other people that agreed with them on that are so to my sautomarior and keagan, presumably Katangi Brown Jackson probably holds that view to him and will replace Briar, but we'll keep losing that debate six to three for my lifetime

on the death penalty. So we had that in there. Thomas wrote the majority opinion and he said something, it wasn't that objectionable to me. I've heard this before when it comes to the Sixth Amendment and the right to it impartial trial, a fair trial and one with impartial jurors of peers. And what Tom has basically said was, it wasn't a perfect trial, but that's not the guarantee of the Sixth Amendment. The guarantee of the Sixth Amendment is not perfection. I mean, if there's reversible error, it should be resolved

by the appellate court and ultimately by the Supreme Court. But it's not perfection. I mean, if there's reversible error, it should be resolved by the appellate court and ultimately by the Supreme Court. But it's not perfection. We're looking for, we're looking for impartial jurors. He found that the first circuits position that the jurors in jury selection process were not properly screened on how they've been influenced by the media did not rise the level of reversible error and reversed the first circuit's decision on that. And found that the issues of, you know, whether from a sentence, and you remember, he's already convicted. This is not about the fact, just to be clear

to our legal AF law students, you know, on our podcast. You know, Joe Cards Sarnayev is guilty. He was convicted of almost 30 counts leading to the death of three people. And you know, it's been a while since we've talked about this. It's Lindsey Lou, who was a 23 year old BU Boston University graduate student, Crystal Campbell, who was a restaurant manager and an eight-year-old Martin Richard who were tragically killed in dozens maimed in the Boston Marathon bombing and a police officer Sean Collier who was killed on a lead up to the Boston Marathon bombing. So he's guilty. His brother was guilty. They're guilty.

This is about sentencing and this is about whether they were mitigating circumstances that would lower the penalty off of a death penalty down to life imprisonment without possibility of parole. That's what's at stake in the appeal. And that's what Thomas was clarifying. So it's not about him being found innocent. It's about whether he was going to spend his entire natural born life in jail, where he was going to be executed under a federal series of counts. So, you know, they found that the death penalty sentence was appropriate, and that the fact that he was the younger brother and, you know, much younger and probably under the influence of his brother does not something that's exculpatory

that lowers his guilt for the purposes of sentencing him to death. But just let's just bring it home and make it a reality. The Biden administration is very reluctant to execute people, even though they have the power to. And federal executions under Biden have dropped to zero, just by contrast, under the Trump administration, in the final six months of the Trump final term, he executed 13 people. You know, he like cleared the decks of the death row. And Biden has not, I mean, Biden has expressed his position. It was a weird place for him to be bent, don't you think?

Because Biden is public about being against the death penalty yet his administration had to support the death penalty in position at the Supreme Court level. Which is think about that? You know, we've seen that a few times where Biden and their Department of Justice has had to defend pre-existing cases that were inherited. And you know, that is part of the continuity of government and continuity of cases, if you took an all of a sudden and about face-based on what was pled six months ago or nine months ago

and all of a sudden changed it. It could create real confusion and real problems. But ultimately, despite the fact that he had his DOJ supporting the Trump policy because they had to, in effect, they're not actually implementing death penalties at a federal level. And you and I have talked about our own views about death penalty. And when you have a case like the Boston Marathon and a terrorist attack that's so obvious, so in your face

instinctually I want to be supportive like in my blood and my gut. I want to say I support the death penalty But then when I take a step back and I recognize that the death penalty has been Misapplied in certain cases knowing that the death penalty has been a tool that has executed many innocent people. And it's also a tool of negotiation and bargaining power where district attorneys and prosecutors use it to negotiate plea deals and agreements. And it's a tool. It's just where we are as a society right now. I'm against it. I think it's a flawed system. I think that it feels like something that in many cases, I want to have that revenge,

but sometimes I have to take a step back and think through the implications. Yeah, we agreed. Now turning our attention, Popak, to what's going on in federal, certain federal judges that are now intervening in our national security fairs. I mean, the implications right now while there is the unlawful invasion of Ukraine by Russia while we need to have be most ready, able, prepared military. We have federal judges who are interfering in that readiness, which is just shocking to me. And so I'll talk about Tampa, then I want you to talk about what's going on with the

Navy SEALS. But out of Tampa, federal judge, an anti-vax judge is preventing the Navy SEALs, but out of Tampa, federal judge, an anti-vax judge is preventing the Navy from deploying a warship. There are admirals who are trying to remove this insubordinate commander, who is an anti-vax commander and who intentionally spread or seems to have recklessly

spread COVID, who's controlling this $1.8 billion ship. The judge at issue is named Stephen Douglas Meridae, a George H.W. Bush appointee who sits on the federal bench in Florida. He gained attention in 2021. He blocked the CDC order that was trying to limit cruise ship operations during the pandemic. So he was saying cruise ships go ahead spread the pandemic. And so a lot of the anti-vaxxers have been trying to file in Meredith's court. And here they wanted to again challenge the ability to have vaccine restrictions on the Navy, on the military and claiming that it was a violation of the Religious Freedom Restoration Act. And what's really

wild about Mariday's ruling is that he didn't simply say and slate's done a really good job, but everyone go to slate to read this title, describing what went down. But he didn't just say that this particular commander who's referred to as John Doe, the judge also granted this commander anonymity, which is a very rare to be granted, but not just an exemption. The judge said that the military, in this case, the Navy, could not relocate him, cannot engage in any employment activity to move him in any way. And just one of the things that this particular commander at issue did, who's now on this ship. So he refused to get a COVID test when he had a raging case of COVID and he was coughing.

And they said, take the test. He refused to do it. And then he went down into a cramped room with 60 other people coughing, sneezing, spewing his germs, however everybody, getting everybody else infected. And so not only did he have it, he like intentionally recklessly got everyone infected. Is there is there evidence that other people got it? It says he refused to get tested. It's a clear violation of protocol and attended a briefing in a cramped room with 60 other people. He was ordered to get a test revealed he did have COVID and he exposed dozens of others to the virus.

And so at the very least, he exposed at least six the other of his shipmates to it. And this is what they said that he intentionally deceived his crew, he put his career at risk. He failed to comply with the Navy's COVID policies, engaged in negligent behavior. Yet the judge said, this man needs to stay on the ship and don't you dare move him to another ship. And if you do that, you know, this is someone who's controlling like weapons.

Like this is someone who, you know, who may need to be trusted in the event of a war, you know, with, you know, with Russia. What's going on? I mean, it's insane. So, Pop-Ock, tell me about the other federal court intervention in our government's ability to function with the military. I said, not going to come as any shock. We've got the fifth circuit court of appeals again, sticking it to Joe Biden and his presidency, and now undermining and replacing him in effect as the commander in chief. We now have three judges in Texas who believe that their decision-making, their authority, supplants that of the commander-in-chief now during, basically, wartime, about troop deployment. I mean, there's no more fundamental

right of the president as the commander-in-chief, the highest ranking officer in the land, than troop deployment. And he in consultation with Lloyd Austin, his secretary of defense, has decided that the Navy, particularly, and the other branches as well, need to be vaccinated the personnel in order to do their job, in order for a spree to core to be maintained, in order for the chain of command to be maintained,

without which there is no military and there is no ability to lead the military. Everything is about the chain of command. Well, the judges have decided they don't care about the chain of command. They care more about their values as it relates or their decision making as it relates to the vaccine. And so we have a group of Navy SEALs, supposedly the toughest warriors, one of the toughest warrior batch that we have in all the military. We have decided that on religious grounds,

they do not want to take the vaccine because it interferes with their bodily autonomy or it's an irreversible injection of a drug that, you know, with unknown consequences and everything else. So, you know, a bunch of Bible thumping right wing conservatives have ginned up this lawsuit and got 13 Navy SEALs to file it. And they filed it in their court of choice in Texas. And they got Rito Conner, who's also a in their court of choice in Texas. And they got Rideau Conner, who's also a Bush appointee. And he, people will remember him because he tried to abolish Obamacare single-handedly and lost seven to two with that Supreme Court. And he's done some other nutty

things, but they love him because he'll issue these rulings. So he enjoined in February, Biden and Austin, from not accommodating the religious convictions truly held, he said, of these Navy seals. And order that they be deployed, along with all of their other seals, on sensitive missions, which could include the Ukraine, including Ukraine and other places that are related to our operations overseas. And the Secretary of Defense basically said, no, I am with my commander-in-chief, the highest authority, and I believe it destroys a spritical war, it destroys the chain of command, and I'm not going gonna be ordered by a judge

as to who gets deployed to where and when. And the judge actually is gonna hold a hearing on a contempt, the trial judge on a contempt order as to why his order to force the deployment of these seals and the department of defense's decision not to do that is not contempt of court. So the government has to answer for that. In the meantime, it went up on appeal to the Fifth Circuit.

Because Trump packed the Fifth Circuit on the way out with six appointees, it was already sort of conservative, but now it tilts Trumpian as a result of Trump with six different appointees. So it's a three judge panel. We've talked about this before on a prior podcast. Generally a three judge panel for the, for the court of appeals. In this case, the fifth circuit to hear a case. And the three judges, two of them are Trump appointees, right, right wing, federalist society, and the three judges, two of them are Trump appointees, right, right wing federalist society, and the third, Edith Jones, who people may remember from the Reagan days, because she was on the short list for the Supreme Court then, has been accused of being a racist based on speeches that

she's given at universities like University of Pennsylvania Law School, where she accused blacks and minorities of being more violent in terms of crime. So you have a racist right-wing edith Jones to Trump appointees. And so of course, in their 29-page decision that wasn't signed, and it was procurium, meaning it was the view of all three of them, they took the Navy to test. They basically said 99% of the Navy is vaccinated, but you've allowed 5,000 out of millions, 5,000 active duty members of the Navy not to be vaccinated. So it's not like you're doing 100% and you're deploying them and we don't like the way you're

trying to assess religious conviction and good faith religious exceptions to medical issues. And so under a body of law that you and I run into before called the Religious Freedom Restoration Act, RFRA, they've said that the Navy has violated RIFRA. It's subject to it, and violated it because of the 47-step process the Navy uses. And I'm not kidding. it, it's subject to it and violated it because of the 47 step process the Navy uses. I'm not kidding, I think it's 47 steps in it. It really puts in their view the thumb is on the scale and favor of vaccination and against religious freedom and we're not going to allow that.

So now three judges, Edith Jones and two others are now the commander in chief when it relates to deployment of troops in the world. And that is a scary chilling place to be with these three who live in a vacuum, live in a medically sealed world of a black robe, are now basically telling our highest leaders how to deploy their troops. The Religious Freedom Restoration Act was also what was used by the Tampa Bay federal judge as well. Yeah, they love that, but you know what you know what I've been back to your point about, this is not the conservative way. And what are they doing when a Republican is sitting in office and they believe in the unitary executive, okay, theory, they love unlimited, almost unfettered war power of the commander-in-chief to

detain enemy combatants, to exclude immigrants at the borders, which Trump tried to do under his war powers, to deploy troops, and everything else, except when it's a Democrat in office and it's a vaccine. Yeah, I mean, they're ever shifting. You have to realize that it always is ever shifting when it comes to the radical right. As long as it protects their privilege and their perceived political wins, that's all they care about and that's where they will move. On one day, there'll be a strict constructionist when strictly construing the words validates their point.

When it doesn't, they'll all of a sudden find other ways and other meaning and try to look at historical context and come up with some other way. There literally is no logic. You know, what I like about pro-democracy judges, because I think you're either radical right, extremist at this point, or you're a pro-democracy judge,

like unfortunately, the minority three judges who are on the Supreme Court right now with Kagan, so to my or and and briar, and soon to be Jackson, which we should talk about Tucker Carlson for a second quickly demanding her LSAT score. But look, what I like about the pro-democracy ideology is we're always trying to advance human rights forward and correct some of the archaic, anachronistic evilness that existed in the past, but remain ultimately consistent to democracy. Like, we'll still call balls and strikes at the end of the day, whether it's at a trial level, and there may be things I don't agree with, there may be things I agree with, but ultimately the law is what's going to guide it, not trying to

overthrow the United States government. Like it seems like that's what the radical right wants to do, but you got to talk really briefly though about this LSAT issue with Tucker Carlson asking for the LSAT scores of Biden's nominee. Yeah. You know, this is part of, you know, you said underbelly overbelly, which I liked a lot. I liked the imagery of Republicans with overbelly, but this is not even used to be you and I would talk about it like, oh, they're blowing a dog whistle that only, you know, the racist

dog whistle. He's playing the race card out loud up front. He would never have the temerity to ask a white candidate for the Supreme Court what their GPA or law school admission test, LSAT score is. If, first of all, what the F does that have to do with anything? It's accusing her of being the product of affirmative action and that she never got anything other than what was handed to her with a helping hand of affirmative action,

which is a bald face lie. And that's why we're back to defamation because if you do any research about Contange, Contangey Brown Jackson, which by the way, he refuses to pronounce her name properly just as he did with with Kamala Harris, you know, he calls her to Kataji. It's Kataji. If she wasn't the number one in her class, she was the number 200 class starting at high

school. She was the class president in high school. I saw a beautiful picture of her when she was in Miami, a Palmetto high school, and it was super accomplished. She was the president of her debate team. I mean, you know, you don't win and I was, I was the vader. You don't get to be the president of the head of your debate team because of affirmative action.

You get there because you're a brilliant orator and critical thinker. That's how you get there. And then she goes to Harvard Law School and then she gets on to Harvard Law Review which there's no affirmative action at Harvard Law Review. You either have the grades and the writing ability to be on law review or you do not. She then becomes all the other things

in her life where she's appointed as nothing to do. I don't know what her L.S.A.T. score is. I know what mine is. I don't even know what yours is. But what does it matter when you have a president who barely, you know, Trump barely passed PEP University of Pennsylvania. It's well known that he was a C student. Well known, the kids too. The kids, I would like to see on this show, I would like to see Ivanka's transcript, Don Jr's transcript, and Eric's transcript,

and Trump's transcript. I bet you they are terrible, from what I know for people that have attended school with them. I would not be surprised if they're not very good. Tucker Carlson's transcript. I like to see his IQ test, but I'd also like to see his transcript. And what does it matter to her body of work and accomplishments? Big dignified.

Stop being a racist. And the good news is we are motoring through her confirmation process. And she's flying through with flying colors. She's met Republicans and Democratic senators so far, so good that progressive groups like yours are running ads in favor of her. It's going well. There's a ground swell of support. And if all goes well, Biden has said, and it's going to happen, she's going to get confirmed by Easter. And then she's going to take her place. I know she's going to sit for a bit because Biden, sorry, Breyer wants to wrap up the term. I think he said he wants to step down in May. But that

could change, but she is going to be confirmed by eat by like before Easter Sunday. Just give you in terms of Tucker Carlson's qualifications. Oh yeah, oh, good. So, you know, it's well known that he's a trust fund kid, you know, who's got, you know, very wealthy parents who basically paid for his entire life. What most tuckers are? And so in 2008, this was unearthed by the intercept some time ago, but this was an interview that Tucker Carlson gave in 2008. He said, I'm like extraordinarily

loaded, just like from money I inherited from my number of trust funds. I go out and beat some servants. I'll wrap my Lamborghini around a tree, go pick up a kilo of cocaine or two, just like normal stuff like that. I'm completely a trust fund baby. I never needed to work. The whole cable news thing was a total pose. It was just like a phase I was going through. So that's what he said in 2008 in terms of his qualifications. Just so everybody knows that. They should be fast tracked, you know, to the Supreme Court based on that body of work. But you know, they do it with, like I said, with a, with a, with a temerity to do it, because they, their audience will not take them to task, will not say, you know what, that kind of crossed the line.

I may not agree with our, with the, who is the president of the United States today on policy grounds, but this person seems well qualified. And, and what the F was the qualifications of Clarence Thomas, People should go back and look. He had a mediocre body of work that doesn't even come close to comparing to Katangi's body of work at all. He had low level jobs. He was with the EEOC, all different things. He did not have a st-

He wasn't at top firms. He didn't do well in his, and he didn't do as well as she did in law school. And he's he's on there. I mean, Kavanaugh, we sat through the hearings. We know what kind of college student he was. So this is only racism writ large, so obvious. And it, but it takes progressive organizations like the Midas Touch podcast and platform to call it out for what it is. I mean, it's sad that Republicans don't cringe when they hear their talking heads say things like this. It's just, you know, I know you got to fill air time, but, you know, pick, pick on somebody your own size and she's much bigger than you are. And secondly, you know, go do real like we do.

Real critical analysis and thinking and opinions. Even judge, I mean, judge Baron, I mean, every Republican nominee that they fast track, don't have the qualifications and Katanji Brown Jackson has, you know, beyond ample qualifications. That's what you have to hear. Yeah. Tucker Carlson say, this podcast is brought to you by athletic greens. Everybody knows that athletic greens is my favorite.

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federal injunction against a group, a group that we had on the Midas brother podcast, seeking to disqualify him under the 14th Amendment Article 3, which disqualifies individuals who take part in rebellion and insurrection against the United States. So this group filed with the board of elections, a disqualification in the state of North Carolina, preventing Madison, or if they prevailed would have prevented Madison Co-author from holding office based on his support of the insurrection. After this group filed that disqualification request, Madison Co-author filed injunction requests in a federal court in North Carolina asking that that action in front of the board of elections be injulling, be stopped, in other words. And he argued, well, I'll let you say, Popo,

what was the cockamani argument, but ultimately the argument prevailed. Oh, yeah. I remember we talked about this like three podcasts ago and I was like, wow, we're gonna go back to the time of the Confederacy. And when the 14th Amendment, a clause in the 14th Amendment, you and I, I'm sure it never studied in law school. We just glossed over it because whenever thought

we'd see the day when somebody would try to participate in, as a elected official in the insurrection or the violent overthrow of the government and then try to run for re-election. I mean, that hasn't happened since the days of the Confederacy, and the reason the 14th Amendment was written, and that clause of the 14th Amendment was to prevent people that had taken an oath to uphold the Constitution who ended up separating from the Union and setting up the Confederacy. Once there was, you know, once Lincoln was able to prevail in the war and the country was was reestablished as a union. The union was reestablished. I read the clause. Popak.

Yeah. 14th Amendment section three. No person shall be a senator or representative in Congress or a lector, a president of ice president or hold any office, civil or military under the United States or under any state who have previously taken an oath as a member of ice president or hold any office, civil or military, under the United States or under any state who have previously taken an oath as a member of Congress or as an officer of the United States or as a member of any state or as an executive or a judicial to support the Constitution of the United States, shall have engaged an insurrection or rebellion against the same or given aid or comfort to the enemies thereof.

Right. And so you had Confederate officials and Confederate generals who are running for election after the union was reestablished and that clause was used to keep them out. Now, there was a statute that was passed afterwards, apparently by two-thirds of Congress at the time that allowed basically a short window of time for people that had supported the Confederacy to come back into office. In other words, Congress would decide by a 2-thirds vote that that disqualification would be removed from that individual or those individuals and allow them to run for office. And that statute has been sitting on the books for 150 years as well.

That doesn't mean that the 14th Amendment and the third clause that you just read is not still on the books under the US Constitution, the highest law of the land, to prevent people who participated in an insurrection from being barred from office. Why does it matter? Because Madison Clawthorn is running for re-election

on the 13th district as a Republican in North Carolina the the elections board Has a valid petition or had a valid petition in front of them or has one to have him not be able to be on the printed ballot that's going to be printed for the May primaries and he ran to federal court and that's going to be printed for the May primaries. And he ran the federal court. And I'll talk about the judge in a moment that he pulled. And that federal judge, after hearing the argument, says, yeah, I see the third clause in the 14th amendment,

the one that Ben just read. The Constitution. Yes, of the US Constitution. But I also believe that the statute that's still on the books can be used even for future insurrectionists or potential insurrectionists. So he didn't overturn a ruling by the North Carolina Board of Elections.

He's preventing the North Carolina Board of Elections from holding a process to determine whether he should or shouldn't be on the ballot. And his argument is, I need to enjoin this now because the ballots have to be printed and the election is in May, which is relatively short time away. This judge is interesting. This judge is a Republican, but a Jamaican American. He was a law professor at the University of North Carolina. You know, sort of a professorial guy. And

you know, he had an interesting comment in this ruling. He said his job as a federal judge is to protect the soap box, the ballot box, and the jury box so that people don't grab the ammunition box. That's a direct quote from his case, which I thought was eloquent, although wrongly applied in finding that the 1872 law applied to Madison Kotler. This is now going to go up to the fourth circuit Court of Appeals, which is sort of split. It's not as right-wing as the fifth circuit, but tends to be conservative. It's still sitting in North Carolina after all, which is sort of purpley, but has gotten more read over time. Then I'm sure there's going to be an appeal

because, you know, right now he's a lot, he's not, he's, he's keeping him on the ballot, that is a caught thorn. And he's not letting the board of elections do its job, which is really weird. So the fourth circuit's going to have to do an expedited appeal. If they rule in favor of the North Carolina board, then they'll, then they'll conduct a hearing to decide whether Madison caught Thorne sits there or not with an expedited attempt at appeal to the US Supreme Court. So we have not heard the last of cock and cockameney. What do you call it? Well, I'm, I'm trying to think through if there was ever a legal maximum that applies here and the legal maxim would be something to the extent of like illogical interpretations should be completely ignored or struck down because under his theory, Vladimir

Putin can run for Congress. If he was a U.S. citizen at some point, that's a lot. Yes. Oh, yeah, absolutely. He's been an enemy of the people. He, the sendation would apply to that. Yeah. I wonder which district he would run with. Maybe the 13th from North Carolina, where the one Marjorie Marjorie Telegreen represents in Northern Georgia. Under his theory, this judges theory, no, in someone can say, I'm an insurrectionist.

I want to overthrow the United States government. Actually, do, you know, literally go and do it. I mean, brag about it. I mean, that's basically what happened anyway. And then run, and then run for office. I don't even understand the judges how he thinks that statute works. The way I read the statute and the legislative history around the statute, Congress has the power on a two thirds vote to remove the disability. In this case, yeah, you've participated in the insurrection or you were a Confederate general, but we're going to let you back in on a two thirds vote because we think you've rehabilitated yourself and for other political reasons. But

there was no vote here. The two thirds of the Congress did not vote to allow Madison Cautorn to run for office again. And the statute just sitting on the books is not the embodiment of a two thirds vote from 140 years ago, 150 years ago, to allow Madison Cautorn now because it's just, it's so, you're right, it's so asked backwards. You and I set it before. The statute, I get it, it's still on the books. And maybe you can argue that it applies to something other than the Confederacy, maybe, maybe, but even if you do, I, Ben, don't you read it to, to require Congress to vote on a case by case basis and get a two

thirds vote to allow that person to to run for office if they are ultimately found to be disqualified or disabled. Yes, and there's just no way that what Congress was contemplating after the Civil War was to give a free pass to all insurrectionists on future civil wars. I won't get one free, folks, saying you're saying that that law is a free, there was a pro insurrectionist law, Congress said, here's what we need to do. Our lesson from the civil war is we need to give every insurrection is community and perpetrated.

We need more insurrections. So what? Under this logic, 500 years from now, there's an, you know, 18, you know, the 1870 insurrection act, that's clearly not what it was for. It was about for a very discreet period of time, trying to rehabilitate individuals who renounce their Confederacy affiliations. That's what it was. And, but now you're going to see a Supreme Court, because we're going to talk about it

when we get to the EPA decision, or the oral argument that just got held about the EPA rulemaking. And you see where the gorsages and the cavernal and the Thomas's heads are at, whenever they talk about the founding fathers or the framers or the legislative history, it's this contortionist tortured interpretation of things about what was in the minds of these people at the time they passed the statute. And you and I is thinking sentient human beings, look at it and go, that can't possibly be. And the legislative history doesn't support that. And yet they'll find some stray comment. And they'll say, see, founding fathers never thought to do that.

And therefore, we're not going to do it today in 2022. So let's break down what this EPA oral argument is all about. And let's situate it in the deeper context of what's going on. So the Radical Right Extremist Supreme Court and the Radical Right Extremist that founded the Federalist society and put these radical right extremists. They used to be called conservative. They're now radical right extremists. That's what we call them. They don't want our government to function. One of the way our government is able to function is when Congress passes laws, it delegates the authority to implement those laws

to agencies because people actually have to do the work for the law to actually have effect. And experts should help make the rules, not some elected official about water pollution or air pollution. So Congress can pass laws saying, you know, signed by the president saying we want to reduce pollution. We want to reduce carbon emissions. We want to reduce this that or the other. And okay, great. Well, who's going to do it? The agencies have to do it. And so whether that's the EPA, whether that's education, there's a whole host of agencies out there that are the ones who kind of implemented.

And the agencies will take the law, will take the legislation that's been passed, and they will do their best to implement it and come up with administrative policies to put these laws into effect so that it actually does what it says it does. But the radical right extremists do not want the government to actually function. So they've come up with all of these doctrines, non-delegation, major question theory, you know, all of these things, which basically says, an agency is not really allowed to do anything, unless Congress not just tells the agency what it can do,

but like literally has to spell out word for word for word for word for word, in the piece of legislation, what the agency has to do to implement it. And if Congress doesn't do that, then the agency is not allowed to actually function or not allowed to implement the law. And what they realize and the practical effect of what they realize is that Congress doesn't do step by step by step by step by step guides. Congress compromised, they passed, you know, broad legislative

mandates and requests, and then they expect the agencies to do it. This this the radical right knows that. So they know based on this dynamic by coming up with non-delegation, you know, duty and that reinforcing Congress to lay out, it's very specifically the road map. They know they're just going to cripple the agencies. And that's what they're doing here with the EPA. And Popeye, the interesting thing about this case that just had our argument with the EPA is that, you know, it was regarding reductions in carbon emissions about making addressing critical climate changes

under the Obama administration. But Biden even withdrew the specific policy that was at issue to try to re-craft it in a way that would be, would likely meet a Supreme Court criteria. But even though Biden withdrew, the Supreme Court said, we're still going to, we still want to hear this case. Normally a Supreme Court would say it's moot. We don't want to listen to it. We don't do advisory opinions. We don't do advisory. Here the Supreme Court says we don't care that you're not even focused on this anymore. We want to tell you what agencies can or can't do. We don't even need cases anymore. We don't need cases. We don't need a case. We're just crazy. That break it down. Pop out that was insane. We don't even need cases anymore. We don't need cases. We don't need a case. We're just crazy. That break it down Pope, but that was insane. We don't even need a case. We're just

going to legislate from the bench, which is exactly the thing you're not supposed to do at the US Supreme Court level. So this is lesson for those that are checking off their, their blue books at home. This is, I think we're up to admin law, administrative law 4.0. We've been talking about it literally from the first or second episode that we've done together, Ben. And now we see it again. And so what's going on in this particular case?

You have the Obama administration who in order to try to reduce greenhouse gases past the series of laws that try to reduce carbon and fossil fuel and increase clean air and came up with all sorts of policies and pursued related to that. And it worked. You know, because of penalties and sanctions and the statutory scheme that was created, business and technologies joined hand-in-hand and decided it was more efficient to stop being polluters and was better for their business and better for their bottom line to be better

corporate citizens and stop polluting the air. And they found ways through wind and solar and clean, clean fossil and clean coal. I know that sounds like an oxymoron, but there is such a thing as clean coal to reduce greenhouse emissions and the use of, for instance, coal. And that was on the books. And it was successful. Trump destroyed it. And with a stroke of a pan and executive orders, his EPA, which was led by the coal industry, primarily, I think the head of the EPA was either a colobious or a lobbyist for another sort of dirty, small, de-dirty industry, putting the fox and charger the chicken pen, undermine all of those things and pull that out of the Paris accord and all sorts of other

things that we like as progressives, clean air and clean water. And Trump found a way to find that to be a bad thing. And then Biden, you know, Biden has now has his EPA and his head of that, which was a former state EPA director, knows what he's doing. And they're now working on, and they haven't yet developed in the last year, they've been busy on other things, the new policies and guidelines that the coal industry,

for instance, are gonna have to follow. They haven't published them yet. They haven't gone through rulemaking yet. But that didn't stop 16 states mainly led by West Virginia, all coal states, to bring a federal court action to try to stop the Biden administration from going back to the Obama days. Biden hasn't said what he's going to go back to. That's why this is not a live controversy. This is why the first argument that was done at oral argument on Monday, and got some curious questions from some of the sitting judges,

including one of the Republican ones, one of the Republican appointees, he says, why are we here now? Why do we have standing as the Supreme Court, which is a court of limited, the most limited jurisdiction possible is the US Supreme Court. They are not supposed to take every case. They're supposed to use in a very conservative way, small, so you conservative way, their jurisdiction. Why are we here? The Biden administration hasn't moved yet, hasn't developed

case law yet, or administrative guidance. But that hasn't stopped a group on this court, led by Kavanaugh, Thomas, and Roberts, to make what's called the major questions doctrine, which is brand new. It's in the last 10 years and is used by the right wing to try to shrink government so small to quote Lee Atwater, Reagan's famous political director, to make government so small you could drown it in a bathtub. And how do you do that? You throw sand in the gears of the government. You throw sand in the gears of administrative agencies and stop them from implementing policies that will have an impact on the economy or on the political body. It's a value judgment. This is what the members of Supreme Court say that believe in the major questions

doctrine. They say, yes, the agency is delegated certain authority under what we call Chevron, which is a case from the 1970s or 1980s, which gives a tremendous amount of delegated authority by the Congress to the agencies to do their job and to do the backfill of all of those words that you talked about then, all of those little details in hundreds and thousands of pages that are published in the CFR that give the rules and regulations

for each area of our economy and each regulation related to that. And the way that the way that Congress delegates, it's not just like, you know, here you go and let us know how it turns out. Congress has to pass the laws you've, as you've talked about. Congress has to provide oversight. Every agency reports to a committee or a subcommittee of the U.S. Congress. The every one of them and they have to go before Congress, either on a regular basis or they're called in, especially like, hey, EPA director, get in here. Tell me about this policy that you're planning to do and tell me why that's consistent with the law that we passed. That happens all the time. That's what goes on

on the day to day boring machinery of Congress in their role as the, as providing oversight. They also control the purse strings. You don't like the EPA. You don't like, you don't like what it's doing. You don't like the FTC. You don't like the SEC and you have the numbers in Congress, then you cut their budgets. Then you give the FTC or the FDA or the, in this case, the EPA, you know, your budget last year, five billion, you're getting one billion. Let's see what you can do with that. And that's how through the power of the purse string and the power of oversight. This is how insane Popeye. Like, you almost think about it. Like, maybe here's another example. And tell me if you think this example makes sense.

Like a board of directors at a company that then puts forward the direction of the company. But then the company is not allowed to do anything. So the board just says, here's what our goals are for fiscal year 2022. And then it's like someone says, well, they can't do it. Why can't they do it? Well,

unless you very specifically delegate every single aspect to every single employee from the assistant level, to the secretary, all staff, to the, you know, to, to this group of that, they can't do anything. It's hamstringing people to do anything. Yeah, and it's take your, your example's right, and it's take it even further. In public companies, the board of directors, which would be Congress in your example, cannot do the day-to-day work. Exactly. At all, they're not allowed. They can set policy, the executive, the executives in the C-suite, the chief executive officer, chief operating officer, chief financial officer, chief legal officer of that company, report Officer, Chief Financial Officer, Chief Legal Officer of that company

report ultimately through supervisory methods, but the board can't do the, by law can't do the day-to-day work of the CEO. If they set, listen, we want to increase our bottom line by 12% this year. Thank you. See you next time. The CFO can't just sit around and go, well, they haven't really told me how to do that. So I'm not exactly. I don't really understand that. So I'm not going to do it off for lunch. So this is, this is again, this goes back and people that like the historical references that you and I make go back to Leot water, go back to Karl Rove, go back to Grover, Norquist. This is the goal of conservatives. This is their thing, is they hate government. They hate agencies because they are regulating big vertical sectors of our economy.

And that's what the major questions doctrine created by the Federalist Society and the Federalist Judges was meant to be a to put that at logger heads with the chevron doctrine, which is to defer accepted extraordinary circumstances to the agency's decision making because they as the experts in that particular industry, whatever you're going to call it, nuclear, water, power, energy, securities, stocks, they, there are experts in these agencies that know this stuff, Cole, that you and I, you know, we'll do a podcast for a couple hours a week, but I'm not an expert on water and an air environmental policy. They are. And the scientists are there, but the, you know, Republicans hate science. So they don't want scientific agency people making decisions

that impact the economy. And now the Kavanaugh's got none, who is a big, major questions doctrine person. He's now joined hands with Gorsuch on one, and Roberts was always there, and Clarence Thomas was always there. By the way, the major questions doctrine is so radical that even Antonin Scalia, who was the basically the lone right winger for long periods of time, the most eloquent writer on that side of the bench before he passed away, even he didn't buy the major question, Stockton. This is this new generation. This is Federalist Society judges 3.0 who have grabbed hold of this and use it as a battering ram to beat up agencies and to stop them from doing their work.

As the longer that's got tied up, you know, even with them sitting around gazing at their navel and, you know, rolling their hair about, this is interesting. There's no real case or controversy, but we really want to make a proclamation. So let's tie this up in the courtroom for another four or six months. And what's happening then? The EPA isn't doing its job and the air is getting dirtier. It kind of goes back to what we said earlier on the podcast, even when it was about COVID.

There are legitimate discussions that I think can be had about whether a small business should be shut down when you leave the large business open right next. I'll have that debate, but don't call it COVID theater, right? Don't be a dumbass. Don't be a murder. Don't go down that direction. It's kind of the same thing here. We could have debates. Is this regulation overstepping? Do we think here the EPA while trying to do great work for our climate is hamstringing business so unduly that we can't be competitive internationally? As a Democrat, a big D Democrat, I'm happy to have those debates and try to find the right balance that exists. But when you say an agency is not even allowed to do the work, when you're saying that we

have to completely ignore climate change or we can't address that issue, when you try to destroy the very essence of the ability of government to function, I think I don't think governments the greatest thing I've got. Yeah, government screws up a lot. You know, none of us are happy when you look sometimes at not lots of times, when you see how much money you're paying and taxes and then you drive around and you go, where's it being spent? That's all right. We have the right to question that. But we shouldn't destroy our government in that frustration. We should try to make it better. And that's where, you know, the, again, the radical right extremists lose me and they lose me and either their conspiracy or even they're over trying trying to over intellectualize common

sense is to me a species of conspiracy where they go in there to justify their radical right extremist beliefs was actually aren't over intellectual. It's just pretending to be smart. We could probably have this philosophical debate forever. Popok, but tell me about light stream because I love light dream, Popok. And I don't know if you knew this, but did you know that refinancing your credit card balances can lower your interest rate and save you money?

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to get your free life insurance quotes and see how much you could save. Again, head to policygenius.com slash legal AF. Popoq, let's do those January 6th committee updates. So a lot to talk about. We've got a criminal trial that began of one of the insurrectionists. We have a guilty plea for sedition conspiracy and sedition. You're just stop, just stop right there.

In your lifetime, when you were coming out of law school, college, and studying history, what was your undergraduate major? Political science. Mine too. So you're a lover of history too. Did you ever think that you'd be sitting, well, a, did you ever think you'd be sitting on a podcast hosting a couple of them? No. Did you ever think that we would be talking about in modern times, somebody that was going to plead guilty to a seditious conspiracy count for the attempted violent overthrow of the US government? I did not.

Right. And, or did I think that there would actually be a federal judge who says, you know, that person may be qualified to serve in Congress, even though I'm conflating the two issues, essentially, you know, there'd be perhaps other disqualifications for this individual. But for that judge that he could probably run after he served. I can't think of what they are. I mean, serial killer. I mean, what else would keep you off the ballot? But, but, but exactly, but no, Popak, I never thought that would happen. But not only did the DOJ and everyone saying, what's Merrick Garland doing? It's taken really long. Look, you started with the low level

people. He's then got to the mid-level people. He's escalated the type of charges to seditious conspiracy. And now we have a guilty plea of an oath keeper. Tell us about that. And it's 14. The fact of what is Garling doing. He's he's prosecuting eight almost 800 people. And he just put on within 13 and a half months his first trial, which we're going to talk about next, which is of guy refit. He of having both his children, not one, but two voluntarily testify against him with trial. But we got our first seditious conspiracy, the highest count, the one that everybody loves and drools over. We have our first guilty plea. And it's of Joshua James in front of Judge Maitza, who we admire on this podcast. And he has pled guilty. He was one of 11 just to remind everybody, there are 20 total oath keepers led by Mr. Rhodes,

Stuart Rhodes. Stuart Rhodes. Stuart Rhodes, who wears the iPad, she shot himself in the face is why he wears the iPad. She's a gun instructor who will shot himself in the face. And then he had to wear the iPad. We had we had Stuart Rhodes ex-wife. I know what I am.

It's sad to laugh at somebody who shot themselves in the face, but when you're a gut instructor. But here's why he asked the where the eye patch to. I think it was according to his ex-wife and his son who we had a special guest. The podcast. Yeah. He wouldn't wash the eye.

And so he got infected so badly because he wouldn't wash the plate plates of spaghetti tonight on our podcast or dropping all around the world on that description. So because of his poor hygiene, he couldn't wear the prosthetic eye and apparently not knowing the business end of a of a weapon for which he was an instructor. So Stuart Rhodes is the leader. He's the hub of the spokes of the conspiracy. Nobody doubts that he's sitting in jail because no sane judge would ever let him out in trying to get it. I tried to get out twice. rose particularly because he has not only pled guilty and he is one of 11 including roads who are charged with seditious conspiracy. The other nine or 10 are charged with variations on a theme of federal crimes including obstruction but not the seditious conspiracy

that everybody solubates over. But this guy has pled guilty to it and he is cooperating with the federal government and providing them with all sorts of information. Now, let me tell you what Joshua James has already told the federal government and what the federal government has on these 11 people to begin with. And this already sounds, I mean, you and I can't make this happen. If you and I were pitching a movie, they would be like, this is incredible. Where this is ridiculous. We're not going to make this movie.

They were running around the capital, the days before Jan 6 in golf carts. Did you know that Ben? Did you know that they brought golf carts to the capital to allow them to run around and do their surveillance and planning and run to the hotel, the willard hotel and all these other in golf carts in January. So that's one. So he's running around in golf carts. He apparently was part of the security detail for Roger Stone, not only on Gen 6, that the ellipse, but also leading up to Gen 6. So wherever Roger Stone went, Joshua James was part of the muscle that the oath keepers provided. And he was armed. And he admitted that he brought a gun into the into the capital and that he also conspired to stop

He admitted that he conspired to stop the peaceful transfer of power and that Stuart Rhodes told him to do it and Stewart Rhodes told them to Use deadly force against anyone that stopped Trump from being Reappointed or put back into power free and clear. So this is a terrible development. I'm laughing in a in a in a great way and a heartless way about Stuart Rhodes and the rest of the Oathkeepers who this is the beginning of the end for them. What do you think then? Oh, I think it is the beginning of the end, but also the end of the beginning.

Because I think you take you Winston Churchill. I think we, I reach for that one. Because I think we're now going into another face, right? With this charge, the question is is now that you have a seditious conspiracy, yes, Stuart Rhodes to me is a foregone conclusion that he's either going to plea or be convicted, but who are they also in the conspiracy with? That becomes the critical question. People like John Eastman, people who are going to talk about in a second, Trump's lawyer, who's claiming attorney client privilege, has Trump's lawyer on the day itself.

And we're going to talk about why that's important in a second. But that's why we're at the end of the beginning and we're reaching a new phase now, an escalation phase of the prosecution with that guilty plea. That's why it was such a big guilty plea to have. Let's talk about what the January 6th committee is doing. You want to talk about Chiwref at first before you go? I think he read my mind Popeye. Try to.

You sometimes read mine. I'm sorry. Mine lawyers and mine readers. So tell us, Popeye, about the trial that just began, why they focused on him as the first trial. And what do we see on the first day of, or the first few days of trial? And Ben, it's a perfect bookend for what we just talked about

with the oath keeper with, with, Josh James going down. So Guy Reffit is the first of Jan 6 trial on obstruction and other counts that the Department of Justice putting on in Washington. He was a part of the Texas militia, a group called the three percenters. By the way, even in their name,

it starts with their conspiracy theories and mythology that's just wrong. Their name the three percented. You know why their name the three percenters, but isn't there a view though too, that it would take 3% of the population to like overthrow the government? That's close. They believe, and this is totally wrong, and one, they would have failed American basic American history if they gave this answer in an essay in high school or otherwise.

That only three percent of the American colonists during the American Revolution fought against the British to overthrow and throw the yoke of British imperialism off of the American colonies to make them states. That's a ball face lie. But they named their whole organization after this total made up bullshit mythology that only 3%, the other 97% were totally fine with King George.

That's wrong, along with many other things. So, Guy Refford, I thought this was interesting, but I don't know if you caught this. The opening statements were this week. The government's opening statement, even though they had a tremendous amount of evidence against him and witnesses and two children that are testifying against Guy Refford. They only did a 30-minute opening. I've never done a 30 minute opening in a case ever, let alone a case of such magnitude and justice being involved. But they, look, they got it down to a science. They got 30 minute opening.

They went through how this person led, it was the tip of the spear, their words, who led the assault on the Capitol, and the first assault on the Capitol since the War of 1812, that he fomented the mob, he lit the match, he stoked the flames that he created with the match, he exhorted people to go up the ramps, up the staircases, attack the Capitol police,

he himself confronted the Capitol police in a violent matter. He created videos before, during, and after that were all used against them or will be used against them during the course of the trial. He went so far in a, they actually have a, see even, even crazy right wing violent militia overthrowing people do zoom. So they did a zoom, a zoom meeting. And of course, the government got a copy of it. And so he's in the zoom meeting in another place is saying that he

will not rest until Nancy Pelosi is grabbed out by her ankles and dragged down the stairs. And he'll sit with Glee and watch her as every, her head hits every stair being dragged out of the Capitol. This is his words, not mine. And this is what they're putting on at the government level, along with two of their children, including an 18 year old son who when he took the stand this week, even refer tough guy refer first into tears at the site of his son, testifying against him at all. Do you know how long Ben on that note? Do you know how

long the opening statement was for Mr. Reffert? Yes. 30 seconds. You're so close. But you're remarkably close. It was a three minute. I'm not making this up. Three minute opening where he basically said, my guy didn't assault anybody. My guy, we remind you, guy didn't assault anybody. My guy, we remind you, he didn't assault anybody. He talks a big game, but you know, that's just rhetoric. And as soon as he got hit with 14 rounds of pepper spray, I know the number, he didn't say 14 rounds, 14 rounds of pepper spray, he fell back

and did not continue to lead the insurrection or the assault. That's the complete defense this guy has. And then, you know, Jackson Riffett, his son, takes the stand and said, I, this is the scary part, though, and you know, you've been, you know, I've talked about this before. He alerted the FBI, Christmas Eve before the Gen 6 insurrection that his father had gone off the rails and was packing heat, had weapons and was talking about the violent overthrow of the government.

And I don't know what the FBI did with that tip, but they did not apprehend referent. He went to the Capitol. In fact, the Sun said, I followed disappeared for a day or two. I didn't know where he went. I was just hopeful that he didn't go to the Capitol as I tipped off the FBI. And they put on already this week two different Capitol police to talk about, refer particularly, and the assault on the Capitol of which he was a major part. So I mean, we'll continue to report on it.

I'd be shocked if the jury doesn't convict him and send them away, you know, the judge will ultimately sentence him for up to 20 years, but there's no way he avoids a conviction here. I don't even know why he's trying this case. Finally, Popaka, I want to talk about the January 6th commission updates, big news this week out of the January 6th Commission. It was somewhat buried in a technical motion, but it was the first indication, the first statement of the January 6th saying that Donald Trump was engaged in a unlawful conspiracy to try to overthrow legitimate election results. I mean, we all know that when I saw that, it was like, duh.

But it's the first time the January 6th committee said that and in a court filing to a federal judge. So which court filing and which federal judge and what's the context here? The context is John Eastman, formerly a professor at University of Chapman Law School, who has stated that he was serving as Donald Trump's lawyer on the date of the insurrection. January 6th subpoenaed John Eastman for his records. John Eastman is based in the Orange County area where Chapman Law School is. John Eastman is based in the Orange County area where Chapman lost school is. John Eastman objected to the request by the January 6th committee for his documents relating

to January 6th, his communications with the president. And so the January 6th committee moved to compel those records. And so based on the jurisdiction of where John Eastman is located, that went to the Central District Federal Court of California in their Southern Division. The court is in Orange County. It's before Judge David Carter, a decorated Vietnam veteran, a well-known, a highly respected judge, a judge who I've personally appeared before, and my firm and myself was appointed as the council

to the Securities and Exchange Commission several years ago in a large fraud case, and we were serving as the SEC's Conflict Council in a very big case. So I have actually a lot of experience with Judge Carter. He starts his court early, like there are sometimes Judge Carter will start his court at like 6.30 a 7 AM in the morning, which is unusual for judges. I mean, you usually start 8 39 30, but he goes in there early. He's someone who works with rehabilitating

prisoners and so like ways to remove their gang tattoos. He's very hands-on, very pro-democracy, and just the no-nonsense judge. So Judge Carter initially demanded that Eastman produce a significant trunch of records and documents that were not being claimed as Attorney Client Privilege, which couldn't be claimed as Attorney Client Privilege, but then set aside these other documents that Eastman was saying, I can't turn over these records. These records are attorney client, privilege, confidential communications between me and Trump and the White House,

and I'm the lawyer for the White House. Now, the attorney client privilege is a means that your communications with your lawyer in the course and scope of their representation are confidential. Now, there are exceptions to that. If you wave the attorney client privilege by talking about it, if you're the client

and you start talking about what you're telling your lawyer to third parties, if you write books about it, that's the way you can wave the privilege. There's a few others, but another way you wave the privilege or the privilege doesn't exist, or there's an exception to what called the crime fraud exception. So an attorney and the client can't commit crimes

together and then say, hey, you can't look at these documents because they're attorney client. It's called a crime fraud exception. Let me just comment on that before we leave it. It's not only that they can't commit crimes together. The way the crime fraud exception works, and this I took from Judge Carter, the filing in front of Judge Carter as a reminder, because we learned it a long time ago, is that even if the lawyer doesn't know that the reason he's being consulted is because of a crime or fraud. And even if the crime or fraud are not actually

achieved, the crime fraud exception will destroy the privilege and allow those documents or information to see the light of day. So it's I don't want to leave the impression that the like the lawyer and the client have to be in cooots together to commit the crime. The lawyer doesn't even have to know that he's being consulted for that. Hey, how many, you know, if I were to do and if I need it to bury a body, I mean, they're the lawyer knows. But if he's being asked, it's like some arcane side issue that is going to help to perpetrate the fraud or crime, but he's not aware of it, that's okay. That will still remove the privilege and allow that communication to be produced to the other side. Right. And that's for the actual commission of crime. So if you're saying, well,

if you represent someone who committed a crime, isn't that always the crime for it exception? No, right. Right. For it's in the commission of the crime, the lawyers, communications can't be used to aid the crime. So what Congress was telling Judge Carter, this judge is, John Eastman is improperly claiming these documents and emails and records as attorney client

privilege. But your honor, John Eastman was engaged in criminal conduct with who? With his client. With Donald Trump. Right. And he was engaged in criminal conduct on that day with Donald Trump and they're involved in a criminal conspiracy. Those documents should not be shielded your honor. So that's the argument.

That's why the headline is January 6th committee says, you know, Trump involved in criminal conspiracy, the context is getting those records. I'm going to tell you what I think. Judge Carter is going to order that those records are going to be produced. So, Johnny Eastman, who is too smart by half so far, I mean, typical of the lawyers that were retained by Trump to basically tell him anything. I mean, they'll just, they'll tell him anything that he wants to hear.

And you know, you found this crack pot law professor, Johnny Smith and Johnny Smith, you know, whispered in his ear, he's kind of the snake charmer. And he told Trump, oh yeah, we can overthrow the election. And here's how. And we just get pens to not certify the vote and we return it back to the states and the states will then, you know, we got

it at the state level, you know, the five battleground states won't, won't certify and then we'll throw it to the House of Representatives and suddenly you'll be reinstated as the President of the United States. And this is Eastman is the architect for the legal, he's honest about it. He said, I, in fact, in order to, in order to assert the privilege, he has to say, I gave legal advice about these issues on these memos. And this is what should be done. And our analysis, the problem is that they've now interviewed the Jan 6th committee, select

committee, his interviewed people like Meadows and the Department of Justice personnel, including Jeffrey Rosen. And they've all said, yeah, we sat down with Trump. And we told them that this is all bullshit, that none of this is going to work, that none of this is a lawful proper analysis. And he's still, you know, so he can't possibly really believe the big lie because we've told him that there, there's no empirical evidence of fraud and that this theory that John Eastman has come up with is full of crap.

John Eastman says, yeah, but you can't get my documents because I was giving advice. So the Jan 6th Committee filed a 207 page brief, which you just started to summarize Ben, in which they said, these are the reasons the documents aren't privileged. One, you weren't functioning as an attorney when you had the communications with Mr. Trump. functioning as an attorney when you had the communications with Mr. Trump. You were giving speeches at the Jan 6th rally. You were, Trump told you to go reveal things for him. So you weren't functioning as an attorney. So the your communication with Trump at that moment is not privileged.

That's first trudge. Second trudge, it's not attorney-client privilege because you communicated not just with your client, Mr. Trump, but you've communicated with third parties along with Mr. Trump. And that destroys the attorney client communication, because that's a privilege that only applies to a client and a lawyer. If you bring in a third party, whoever that is, and there's no extended privilege with that third party, it could be a wife, the housekeeper, another employee, somebody that you know sitting next to on the train, you've now destroyed the privilege, at least arguably. That's the second tranche.

The third tranche was he claimed, it's work product. It's the mental impressions of a lawyer. They said, no, this doesn't rise. The level of work product. And again, you disclose that to many, many people outside of your client relationship. So it can't possibly be that. And then because the judge, this judge Carter that you think so highly of, and now I see why, because the judge at a hearing recently raised the issue of the prime prime. I just made a new word, the prime crotch exception, the crime fraud exception and said, what about the crime fraud exception? And the panel said, yeah, we'll get back to you that in our brief. And in their brief, they say, we have, and this was the part that was really satisfying, but also chilling to

us, we have a good faith belief that the president of the United States participated in a fraud, a conspiracy to defraud the United States in the obstruction of the work of the House of Representatives and the Senate to affirm the election and the electoral vote. Not this additional conspiracy count, but a conspiracy to defraud. I mean, the fact that they actually typed those words, the president, the then president or ex-p soon to be ex-president of the the United States participated in a conspiracy to defraud the United States and a conspiracy to obstruct is bone rattling and chilling. That's never been written. Even with our prior crazy presidents, Andrew Jackson comes to mind. We didn't write those words. And so you're right, it was buried. It was like on page and it's like, I'm paying $199 of $211 when they raised the issue. But this is the thinking. This is now a window into the thinking of the Jan 6th select committee and the eventual criminal referrals that they make.

And the Department of Justice, so people that are haranging Merrick Garland, Department of Justice doesn't have to wait for a referral. They've now seen this now filed, the way you and I have seen it. And they can come out and say, let's open up and investigate the case. haranging Merrick Garland. Department of Justice doesn't have to wait for a referral. They've now seen this now filed, the way you and I have seen it. And they can come out and say, let's open up an investigation, which I hopefully they've been working on.

And this is part of the evidence stream, this whole filing of evidence stream that they're going to use. So we're gonna have to follow this. It's definitely a eye opener about where after almost a year, the Gen 6 Committee is mentally and emotionally. And they did a good job of, if people want to see how the synthesis of all the evidence, the hundreds of people that have testified, the hundreds and thousands of pages of documents so far until if you want to, if you can't wait for the hearings, which will be coming up soon,

go read the 211 pages that was filed with Judge Carter, and it will give you a pretty good roadmap as to where the Gen 6 committee is in their investigation. Because we also see through those filings and other things that the January 6th committee has uncovered is Eastman's real-time communications with Pence's staff at the White House, where he's telling Pence to commit, quote unquote, minor violations was the use of the minor violation. The fight time. Yeah. And by the time it's even a thought he was nuts, even Pence's own counsel and general counsel thought Eastman was crazy and say what you want about

Pence and you and I could have every show about Pence and his lack of conviction, balls and leadership, but at the very moment when our entire democracy hung in the balance, probably because of fear for his own life, he finally did the right thing and stopped Trump because could you imagine, I don't want to imagine, the dystopian world we'd be in, if Trump had another Trump light like the Santas as his vice president, doing his bidding for him on that, that fateful moment, where would we be then? Yeah.

And there were a lot of people in Trump's orbit who would be willing to do that on that day. And basically what Eastman was saying in these emails to Pence and Pence's staff is, because the objections, the debate on the objections to the electors slates has been delayed and didn't take place within the time frame under which the statute for certifying the electors is supposed to be done. You could then not certify the electors that day and you could throw it back to the legislature.

So, but this is where this all works together because the insurrection and the events of that day obstructed and prevented the counting Which is an ministerial task what the vice president's supposed to do took longer than it was supposed to Then the next argument was look we already technically didn't do what we were supposed to do under the statute for counting votes. So now, Vice President, you should be relieved of your responsibility to keep on counting and just say, hey, you don't know, there's too much confusion. Throw it to the legislatures at this point. So that's why the insurrection

and the distraction was a major part of the legal strategy, which was a criminal conspiracy strategy. That's how it works together. And it backfired in the way, you know, we like to round these things out with the global world, the way the Putin strategy in Ukraine is backfiring and now bringing into the NATO and EU alliance countries that were sitting on the sidelines like Norway and Finland. Is it, oh, we'll sit this one out and other like rushing to get into these affiliations? and EU alliance countries that were sitting on the sidelines like Norway and Finland. Is it, oh, we'll sit this one out and other like rushing to get into these affiliations.

Same thing here in my view, you know, I want to hear your opinion, the the Jan 6 insurrection scared the shit. They won't admit it, but it scared the shit out of certain Republicans. And when they went back the next day, I don't think it was that night. I think it was the next day when they went back, even those nut bags couldn't pull the trigger on Trump scheme and they fell in line and eventually voted

to confirm Biden as president. That's where I think it backfired because they were like, when you're under attack, regardless of which flag you're wearing, and you're white from blood drain, you know, they came back and very sheepishly said, you know, I, I, I, I, I, I was president. I think it backfired. It was part of the strategy. How I do agree with you. What do you think? Definitely backfired. And it's why it's why what we talk about illegal aaphysal important, though. It's why the prosecutions of these insurrectionists, why calling its addition is so important.

You give the analogy of Putin, we could talk about appeasement of despots and authoritarians throughout history that are like that. And we have to take an unambiguous and unapologetically pro-democracy anti-authoritarianism. And we have to call it out at every turn. You know, it's difficult calling out assholes, you know, because assholes often make it, there's a reason that they're in a lot of times the way they are, like challenging someone like a desantis, challenging someone like a Trump who will appeal everything and

try to create violence and try to destroy it. Like that's sometimes you just want to go through our day, have lunch, go to dinner, go to sleep, read a book, listen to a podcast, and the problem with that is, when you just do that every day, is you're just sometimes kicking the can inevitably down this descent. And it may not be this year. It may not be next year. But eventually, you are going to be caught up in this one way or the other. And so taking an affirmative stance now, being proactive about your supportive democracy and not staying on the sidelines is really the most critical thing

that you can do and the most critical thing that you can take away from the side. Sometimes, when I write on my Twitter feed about the show that we're about to go live or we just drop the pod or audio or whatever, sometimes just for efficiency and because your brother has coached me on how to shorten up my tweets, I'll just do all caps like live, now, 8 p.m. Eastern time. See you there, whatever I write. And I'll do it in caps because that's what I want to do in it. And Scott Putt person wrote me and said,

and they like to show their supporters. They wrote Popok. Don't put it all in caps. It's like you're screaming. Like don't be so screaming. Like why are you screaming this person wrote? And I wrote back, why aren't you? Why aren't you screaming about democracy progressive issues

and getting into the participatory sport that is the protection, preservation, and propulsion of our democracy? Why aren't you screaming? You should be screaming. We're not here to make you screamy. We're here to give you facts and to give you optimism that with your participation, good things will happen,

but you gotta participate. And it goes more than just using your ear muscles to listen to Ben, me, and the brothers' podcasts and all the others that are in the Midas Touch family were stable of podcasts. I couldn't agree more with you, Popak. I want to thank everybody for listening to this edition of Legal AF Popak. Always enjoy spending the weekends with you talking about these great legal issues. I want to tell all of our listeners as well and those watching.

Popo and I are practicing attorneys and many of you have reached out with legal inquiries and cases, whether they're sexual harassment cases, sexual assault cases. Got a call recently about a listener whose minor was actually sexually assaulted by a teacher and that's a case that we're going to be pursuing. Big catastrophic personal injury cases, car accident cases, breach of contract cases, business dispute cases, reach out directly to me and Popok.'re happy to answer. My email is then at mightestouch.com. That's V-E-N at mightestouch.com. Michael Popox is M-P-O-P-O-K at zplaw.com.

That's M-Popock at zplaw.com. Wanna give a special thanks to all of our sponsors, our new sponsor, Light Stream. Check them out, sponsor athletic greens, and of course our sponsor policy. Genius, thank you for all of your support. We so appreciate the Midas mighty. Keep fighting for our democracy each and every day.

We'll see you next time on Legal AF. Shout out to the Midas team. We'll see you next time on Legal AF. Shout out to the minus team. [♪ OUTRO MUSIC PLAYING [♪