Legal AF by MeidasTouch - Law Experts Ben Meiselas and Michael Popok Break Down This Week’s Legal BOMBSHELLS

Episode Date: November 27, 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 at the wheels of justice in “real time analyze and discuss this week’s most consequential developments at the intersection of law and politics. On this week’s episode: Trump’s lawyers are grilled by the 11th Circuit Court of Appeals concerning the the stolen documents at Mar-a-Lago, and Special Counsel Jack Smith is on the job; a new suit is filed by columnist E. Jean Carroll against Trump in New York federal court for civil rape and a new defamation claim; the New York Attorney General’s civil fraud case against the Trump Organization is set for a 2023 trial date; the Supreme Court rules against Trump (again) and permits his tax returns to be turned over to the House Ways & Means Committee; the Department of Justice seeks testimony from Mike Pence about Jan6 and Trump’s actions; and the Fifth Circuit (!) rules in favor of the Biden Administration in a case brought by 2 states related to the spread of social media disinformation. DEALS FROM OUR SPONSORS: AG1 by Athletic Greens: https://athleticgreens.com/legalaf Aura Frames: https://auraframes.com/legalaf Shop Meidas and Legal AF Merch at: https://store.meidastouch.com Join us on Patreon: https://patreon.com/meidastouch Remember to subscribe to ALL the Meidas Media Podcasts: MeidasTouch: https://pod.link/1510240831 Legal AF: https://pod.link/1580828595 The PoliticsGirl Podcast: https://pod.link/1595408601 The Influence Continuum: https://pod.link/1603773245 Kremlin File: https://pod.link/1575837599 Mea Culpa with Michael Cohen: https://pod.link/1530639447 The Weekend Show: https://pod.link/1612691018 The Tony Michaels Podcast: https://pod.link/1561049560 American Psyop: https://pod.link/1652143101 Learn more about your ad choices. Visit megaphone.fm/adchoices

The 11th Circuit Court of Appeals held its much anticipated hearing in the Department of Justice's expedited appeal of Judge Eileen Cannon's order finding equitable jurisdiction in the case involving Trump's theft of thousands of government records. It did not go well for Trump. Would be putting it lightly. E. Jean Carroll files a new federal complaint under New York's adult survivor statute against Donald Trump for sexual assault.

She also adds a new defamation count against Trump based on new statements he made in October of this year, the special counsel investigating Donald Trump's criminal conduct, Jack Smith, is already a very busy man. This week, we learned that the DOJ has been reaching out to former Vice President Mike Pence for questioning about Trump's crimes and Pence is considering speaking with the Department of Justice. Not that he really has a choice in this matter as Michael Popak and I will explain. The Supreme Court rules against Donald Trump in his emergency application to block turning over his tax returns to the House of Representatives and Trump lashes out at this unanimous decision by the Supreme Court rejecting Trump's emergency relief by going on a

deranged rant against the Supreme Court on his social media platform. And remember, three of those radical right-wing justices Trump appointed. And the right-wing fifth- fifth circuit, Court of Appeals, gave a bit of a surprising smackdown to a Trump-magajud who demanded that top-level Biden officials appear for deposition in a completely frivolous lawsuit brought by various Republican lead states against the Biden administration, alleging that the Biden administration was involved in social media moderation of anti-vax content. You can't

make this stuff up. Popoq, that's why you have legal AF, the most consequential legal news of the week. Happy Thanksgiving Michael Popoq. Happy Thanksgiving to all the legal AFers out there. Hope you

all are having some time with your families and relaxing a little bit while watching legal AF. Popeyes, how are you? I'm doing great. I can say this about that rundown that you just did. I don't think in the history of clients, a client, a defendant, has had a worse week in multiple venues across the country than Donald Trump, which is great,

because Donald Trump always likes to be the greatest, the best, the most. He, this is the greatest, the best, the most worst week that a client could ever have across five different courtrooms, all of which we're going to talk about today. In one week, if I had a client like this, I would have to sit him down and with a pot of bourbon and have a long, deep conversation with him about how do we resolve these matters? Of course, Donald Trump's not going to do that. We'll talk about when he hires which lawyer for which matter, you know it's going to be

crazy depending upon which lawyer he uses. And we'll talk about the lawyers assigned to each of these five cases throughout today's podcast. You know, and I didn't even mention in the introduction the New York State civil case brought by New York attorney general, Leticia James, who was seeking at least $250 million in damages. There was a hearing earlier in the week where the presiding judge over that case judge Arthur Engron set trial date for October 23rd of 2023, you

know, and a lot of people and I want to get your take on this pop out because there were so many comments like that's still 11 months out and I wanted to tell everybody, look, New York court, that's like the fastest trial date I've ever seen ever. Trump is not getting any benefits there in pop out. You practice in New York. How quick of a trial date for a case that was filed late September. Have you even heard of a case going to trial in New over of 2023? You can barely get... and this is again, not a criminal case. So criminal cases sometimes go a little bit faster because of right to trial. However, you can barely get an injunction hearing on an emergency application in less than a year. Trials in New York on the regular docket, three, five,

ten years away from an actual trial date. I'm in cases now, we don't even have a trial date set. And these cases were set three years ago. There's not even a trial date looming. So justice and the wheels of justice move at different places, in different jurisdictions, in different systems. Federal moves usually quicker. State moves slower. Civil moves slower. Criminal moves faster.

So you've got all these wheels of justice turning simultaneously being led by prosecutors and civil lawyers like Robbie Kaplan, we're gonna talk about in E. Jean Carroll and all of that. So you got, you know, this isn't like a mass orchestrated thing. There's no conference call during the week for all of the prosecutors prosecuting Trump's state and federal Robbie Kaplan doing the EG in Carroll.

I mean, that would be like the conference call of my dreams, that that would happen every week to talk about what can we do today to coordinate each other's cases and whipsaw a Donald Trump. That doesn't happen. And that just shows you though that these wheels are independently moving and it's based on docket,

the length of time things take in that court that courthouse and Motion practice the Donald Trump files usually without any credibility or merit that does slow down the process and we'll talk about that as well And judge Arthur Anger on point did that out at the hearing earlier this week this motion practice without merit Alina Habba was representing Trump in that proceeding, which almost seems that he sends her there at this point as a complete troll to judge Arthur N. Grant, because she's just absolutely the worst than she files, like the most frivolous, made up documents. And Arthur N. Grant was like, what are you even filing? Like, what is this?

I already denied these. He said, I already denied these very emotions, just because you can't keep filing the same thing, Miss Hava. Look, this goes back to what you and I described a few podcasts ago as the crazy, you know, the crazy meritless axis or graph, the crazier and more meritless, the motion or case, the more likely you're going to see Alina Hava. The more, I mean, credible is giving him a lot more credit than he should,, the more likely you're gonna see Alina Habba. The more, I mean, credible is giving him a lot more credit than he should, but the more credible the argument,

or at least it passes basic straight face test, the more likely you're gonna see Jim trusty, Corcoran, Susan necklace, who's his defense lawyer in the criminal case, in the Trump organization, and Chris Kites. Chris Kites. Yeah. So that if you see those guys, I mean, you can at least sit through the argument, although

we'll talk about how trustee was just flame broiled during the 11th Circuit earlier this week. But if it's really nuts out there, Kukku Matt is a hatter, that's Alina Habbo. Yeah. You know, the assistant New York attorney general who was arguing the case before Arthur Engron after Alina Habbo went up there and she was like, this is unfair. This is unconstitutional. This is an abuse.

You know, the New York attorney general assistant was like, okay, literally judge all she does is say those words and she doesn't actually make an argument with evidence. Can we all appreciate that for one second and then the judge was like, yeah, I'm ordering you to trial in October and Pope, you mentioned Jim trustee. I want to talk about Jim trustee. He had a not so easy task in representing Donald Trump before the 11th Circuit. He did a not so good job doing it, but I have no sympathy for him because this whole entire shurage should never have taken place in the first place.

It is completely unprecedented for a federal judge like Judge Eileen Cannon, a Southern District of Florida federal judge who was appointed by Donald Trump to assert equitable jurisdiction to stop to enjoy the Department of Justice from engaging in a criminal investigation of an individual where there has been no finding that the Department of Justice engaged in unlawful conduct, yet alone the Department of Justice engaging in a callous disregard for the rights

of somebody being investigated. Or it's a put it in chief briars, chief judge, chief judge, briar, one of the three on the panel we're going to talk about next. To put it in his words, the record is already complete and settled law now. The execution of the search warrant

in Judge Breyer's words who chaired that panel, it was a lawful execution of a search warrant and he posed that question to trustee. He said, right up front, that's why you knew this was not going to go well from the minute the first question came out of the box, both to the Department of Justice we're going to talk about, which was a softball. I've never seen such a softball thrown by a panel

to an advocate in their favor, which was chief judge prior saying to the advocate for the Department of Justice. Basically, how would you like us to write the order in their favor, which was chief judge prior saying to the advocate for the Department of Justice. Basically, how would you like us to write the order in your favor? Should we write that the judge can in decision was vacated? You said reversed, but shouldn't it really be vacated because we're talking about jurisdiction? Oh my God, if I was on the other side of that, that's the first question to my opponent. Your toast. The question to trustee was no better, which was from Judge Prior.

Name us one case, give us one case, where a federal judge exercised equitable jurisdiction, where a search warrant was lawfully executed. Go ahead, we're waiting. And of course, he tapped and said, maybe this one, there's a case involving Rudy Giuliani that we're gonna get to, which is what you're talking about. That was later though, Popeyes.

Yeah. That was a four minute argument. He admitted that it wasn't that there was no case. And so, and then later on, like the next day, trusty then sends a letter to the 11th Circuit Court of Appeals and cites the Rudy Giuliani search warrant case, which was not a case involving equitable jurisdiction. And then the day after on Thanksgiving, November 24th, for everybody wondering if Jack Smith was going to be caught up to speed, Jack Smith writes a letter to the

11th Circuit on the 24th, calling out trustee for being a liar and say, look, trustee just lied to you and said the Rudy Giuliani case involved a federal court's assertion of equitable jurisdiction. It wasn't. It was a case where we, the Department of Justice, executed a valid search warrant. We requested a special master simply because it was a very unique circumstance involving a lawyer and a law firm where there could be potentially other client documents at issue. And so we just thought in the abundance of caution, the taint team wouldn't be the right

use here. Let's just use a special master to be extra careful. That was not a federal judge in joining or stopping the Department of Justice. Pope, give me some other highlights you thought from this 11th Circuit oral argument. Well, let's start with Jack Smith, who I first of all, I'm going to come up with something new for him. I love the fact that he's Jack Smith. He's not John Smith. When he signs his pleadings or people sign pleadings in his name, which is what happened here. Gonzalez, who's the US attorney for the for the Southern District of Florida, signed it in the name of Jack Smith when they did this Thanksgiving filing.

I love it. It's like James Bond, Jack Reacher, Jack Smith. And if it's James Bond, I'm telling you, Trump after watching his lawyers get roasted, is now shaken and stirred, because Jack Smith is out for blood here, and he is, as you said, really up to speed in the case. What I liked about it was a couple of things. First of all, Trump got a terrible draw on purpose. This was not a random selection of a three-judge panel at all.

This was Chief Judge Prior selecting two other people, and the two other justices that he selected, although Trump appointees, Judge Brasher and Judge Grant were terrible picks for Trump and great for justice because they were on the panel in September that ruled in favor of the Department of Justice and against Donald Trump on almost the same issues about whether Eileen Kan and Judge Kan had equitable jurisdiction to set up a special master process for 100 classified documents. They went out of their way in that multi-page opinion to not only say she did not have equitable jurisdiction at all. Therefore, stop. don't do anything else

They said but only because the Department of Justice asked a very narrow question of us on appeal We have narrow jurisdiction ourselves. So we're gonna say she didn't have equitable jurisdiction But they basically as we anticipated then in our podcasting Invited a bigger appeal about the entire assertion of equitable jurisdiction by Judge Cannon. Now, before I get to what you asked me, which is a couple of the high points led by both Judge Grant, Judge Brasher, and Chief Judge Pryor. Each one of them were terribly skeptical of everything Donald Trump's lawyers was saying

and even caught him off at numerous places to correct the record and to note that there was nothing in the record to support most of his arguments. What about when they cut him off Popeyes right away and said when he said it's great and they go, wasn't it just a valid execution of a certain? I was judge for him. I'm sorry, I'm sorry, Your Honor, I'm sorry. I agree with the court's premise that there's not case i would start with the broader premise which is there's also not a situation in the history of this country

we're sitting president authorize the rate of a presidential candidate home so we have some initial context do you think that rate is the right term for execution of a war or execution of a war that's fine for a lot of us for using a more a lot of term yeah that was judge great judge uh... or an application of a warrant, that's fine. You're all right, apologize for using a more allotment term. Yeah, that was Judge Grant, Judge Britt Grant, who was a Trump appointee when he said, because he can't help himself.

He's got his talking points, they all do. They've got to attack Joe Biden and call it a political process that led to the quote, unquote, raid. That's on a little kitchen index card, recipe card, that's not like a little kitchen, you know, index card, or recipe card that they bring, they have to get it in. Otherwise, you know, it's like a drinking game for Trump. If they don't get those words in, they get in trouble when they get home. So they got to get it in. But create cut them off. It's it stopped. Basically stopped.

It wasn't a raid. It was the Rolf Alexis execution of search warrant. Isn't that what you meant, sir? And he said, yes, but then he couldn't help himself when he was responding to a question by Judge Breyer 10 or 15 minutes later. He tried it again or Judge Brascher. And for the both said, I thought we've already established that it's not a raid. Because they had already read all the briefs and we knew where they were going, just to clear up some misconceptions. Oral argument, most judges having read the brief,

although they haven't really caucused officially yet. They sort of made up their mind about where they're going. They use oral argument to sort of sort out some of the questions they may have, push back on things that weren't in the brief or weren't properly developed in the brief. But they're fully prepared for this hearing. And they knew that they were gonna start from the proposition or the presumption that this was a lawfully exercised search warrant.

And so you have Judge Grant saying, isn't every argument that you're making, sir, an argument that any target of any search warrant before they're indicted would make? And it's no different just because you're guys, is the president or ex-president, right? And of course, he had to concede that. So she walked him into that trap. And that led to the trap that Judge Prior laid, which is, name me one case, where a properly exercised search warrant leads to the exercise of equitable jurisdiction to interfere with the executive function of the Department of Justice to investigate and prosecute a crime. I'm waiting. Give me one case.

Now, Trump, I think the strategy is too smart behalf, realizing, especially after they pulled that panel, that they were probably going to lose potentially judge canon. They file the night before the hearing. You talk to better what your heart takes. They filed the night before the hearing, a motion for judge canon to basically stay in the case, like an invitation to stay in the case, because if her special master process goes out the window and therefore her equitable jurisdiction, finally, Eileen Cannon is out of this case. So they file a motion to keep her in, you know, to kind of pull her back.

And the motion is a motion to unseal the entire FBI affidavit that supported the search warrant, naming all of the confidential informants, naming the FBI agent, naming the people that rat it out, Trump, you know, stuff that you certainly are not going to give a criminal defendant, not even a criminal defendant, a pre-endipment to our heaven search warrant. Never happens. But there, and just just so everybody knows and we want to be fair, the redacted version of that affidavit was already released by the person that was appropriately exercising jurisdiction here, the the magistrate judge, he already produced as much of that as possibly could be set out without compromising the

Oh, Pock and I'm pointing there for one second because how smart in retro spec'd was the Magistrate judge judge Reinhardt. We talk about playing chess and thinking many moves ahead. This guy back in August looked like four months ahead to what was going to happen because a lot of people were even skeptical of him there, unredacting certain portions of the affidavits supporting the search work. That's very rare. He held that hearing.

He did the full analysis and then said, you know what government? Some of this because of the public interest unique to this case should be public, but I want to keep the names confidential. And he got some criticism because it's so rare to even do that. But in retro spec now, he kind of check made it right. It's a brilliant move. I think you're right. you're right on it. You're right on it and he took away the entire argument about the need for that. The other thing that was very interesting for me out of the 40 minutes was, and this

is, we'll get into a lesson about appellate records and what can be argued on appeal and what can't be as it comes up from the trial level. Because some people might get the impression based on Jim Trusty's presentation that you can argue basically anything, throw it against the wall and hope the panel will bite at it. If it's not in the trial record from below, preserved literally in a big R, capital R record, that the parties have to literally prepare with the clerk of the court. Numbering the pages R1 through R whatever of documents, briefs, exhibits, evidence, whatever was below, you can't come into court on the day of your appeal or even in your appellate

brief that you filed and attach a new piece of evidence, a new testimony, a new deposition transcript, a new argument that wasn't raised below or at least raised the trial level. You certainly can't do it on your feet when you're arguing your oral argument. And so, trusty kept saying, well, it's no secret that we'll be arguing that it's a general warrant, which is under constitutional law, you know, we don't like having a criminal judge's issuing just general warrants to go, go look in this person's house and see what you find. That's sort of a general warrant, and they're arguing somehow this was a general warrant,

but it's no secret that we're arguing is a general warrant. It's no secret that we'll be arguing eventually, sometime in the future, based on, we don't know what yet, that this was an improperly executed search warrant, and Chief Judge Briar stopped him and said, all right, stop. None of what you're talking about right now is in the record, sir. Is it? He said, no, he said, all right. So it's a secret to us as the appellate panel.

It is a secret, because it's not in the record. And basically, if it's not in the record, stop arguing it here, because we're not in the record and basically if it's not in the record stop arguing it here Because we're not gonna be able to rely on it and making our ruling and what judge prior is most concerned about and I think He's gonna write the decision But judge prior is most concerned about is precedent things you would I have talked about This is why the Department of Justice had the child's judge cannon because you couldn't leave this on the books for some future Jim trusty to pull out and try to argue, oh, the case of Trump versus, you know, US and the

Judge Cannon, you got to take it off the books, terrible law. And he said there is a set, Judge Pryor said there's a separation of powers problem here that I am very concerned about. And it's not just about Judge Cannon. He was, they were very upfront that panel been. And they said it is about the future Judge, cannons, the instructions that were giving to the future federal judges about their exercise of executive, of equitable jurisdiction in the face of the Department of Justice trying to do an investigation.

Creminally, they are concerned about it. They're concerned about the precedent setting nature of it. And that's why they kept interrupting trustee with, we have a bigger case here. We're worried about the next I lean cannon doing something. And that and the separation of powers is what's I think going to drive the decision. That there's no precedent in favor of, thank God. I mean, could you think what the world would be like if every target pre-indipement, they're not even a criminal. He's not yet Trump, a criminal defendant. He will be, but he's not yet.

If they could just run into courts, they don't like the search warrant, the search warrant, they were mean, they threw things on the floor. They took that memento that I wanted from North Korea or whatever it was. And stop the investigation while we sort it out with a special master. This would turn criminal jurisprudence federal or state on its head. I know it would turn the executive branch inside out.

The whole notion of equitable jurisdiction is that in the rarest of circumstances, that the government is engaging in such a abuse of someone's rights, and it's so obvious. Like, what are you doing? That a judge has to step in and go, oh, right, oh, right. Let's take a, let's chill here for a second. And because otherwise, the judge is now becoming like a counter executive branch.

You are stopping the executive branch as functions. You are no longer functioning as the judiciary where you're supposed to call balls and strikes. You are now overruling what executive branch decisions can be. And that's really, again, to your point, Popock, this broader issue of what's at stake here and why Judge Eileen Cannon's decision was so completely wrong. Popock, final words there, because I want to move on to that.

Yeah, I do too. So the way I want to, I use this on one of my takes on it. Interference between the branches is really important. And just as we wouldn't want the judiciary, the judges, to interfere with the executive function of the Department of Justice in doing its job as a co-equal branch of government, which is to investigate and prosecute possible crimes, it would be like if the Department of Justice walked into the Eileen Cannon's office on a Tuesday and said, yeah, you're not going to be issuing injunctions today.

What do you mean? We decided, the Department of Justice decided no more injunctions with Tuesdays, no injunction day in Eileen Cannon's courtroom in any case. Got it? That would be interference by the Department of Justice in the exercise of the judicial branch. We can play this game all along with the executive branch. So this thing is serious.

The same thing that Trump wallpapers over at his lawyers. The separation of powers is a serious thing. And it's the foundation of our constitutional republic. Let's travel north from Georgia where these oral arguments were taken place before the 11th Circuit panel. And let's head to New York where E. Jean Carroll filed a new federal complaint under New York's Adult Survivors Act against Donald Trump.

This time alleging sexual assault. She also added a new defamation count in this federal lawsuit filed in the southern district of New York. Now, you'll recall that E. Jean Carroll previously filed a defamation lawsuit against Donald Trump back in November of 2019 after Donald Trump, while he was still the president in a number of press statements and press conferences made defamatory statements about E. Jean Carroll after she came out with the fact that Donald Trump had sexually assaulted her in the mid-1990s at a

burgdorf government, which is something that she stated happened in a book that she wrote and she hadn't talked about it before as she had felt intimidated and during the Me Too movement and as other people began speaking out against Trump, she felt it was important to tell her story, but her statute of limitations for the underlying sexual assault in New York had expired. So she couldn't sue for sexual assault, but she did sue for defamation because Donald Trump made a number of derogatory and defamatory statements about her and saying that he would never touch someone who looked like that or statements that are disgusting to that effect. Donald Trump then repeated those statements again when he was not the president.

He said it on his social media platform in October, which is an important distinction because he was cloaked with potential immunities as the president that worked its way all the way up to the Court of Appeals, where the second circuit had found that the district court judge partially aired in finding made an error in that Donald Trump was not a federal employee under the West Fall Act, the second circuit said he was a federal employee under the West fall act. The second circuit said he was a federal employee, but then the question of whether Trump's

statements about E. Jean Carroll while he was the president was in the course and scope of his employment, they sent that question and they certified that question to the highest court in DC, in Washington, DC, before their court of appeals question to the highest court in DC in Washington, DC before their court of appeals there in the highest court within the district. So that's still playing out. And it's possible there that E. Jean Carroll's underlying defamation case gets thrown out. We don't know. But her new defamation case, when he was not president, definitely doesn't have immunities. So she can pursue that and she can now file a claim for the underlying sexual assault

under New York's Adult Survivors Act, which was signed into law and recently took effect. In fact, it took effect for the first time on Thursday, which has a one year look back window for people who were victims of sexual assault, certain delineated sexual assault crimes. So in E. Jean Carroll's lawsuit, she cites the criminal conduct that was that issue with the sexual assault. And for people who statutable limitations expired, there's this one year look back period where she can sue up until next year, you know, one year from that Thursday, unless it's extended again, but it's one year. So she filed the underlying case for sexual assault. Popo, what do you make of this new lawsuit?

Well, a couple of things. First of all, shout out to Robbie Kaplan, the lawyer who's represents E. Jean Carroll. We've had around the show, Karen Friedman at Nifalo and I in the midweek, right when Dobbs, the Dobbs abortion decision was leaked, we're fortunate enough to have Robbie Kaplan on the show. We didn't know that that was going to happen. We had around the show for another reason, including talking about E. Jean Carroll and some cases down in Florida that she was bringing against Trump.

And we'll try to get her back to talk about this one. I read, I'm sure you did too, Ben. I read the complaint that was filed the day of the opening window of the Adult Survivors Act. We read these things so everybody in Legal AF world doesn't have to, they can, but they don't have to. And I was really struck by a few things. First, a master class and master craft by Robbie because she not only brought the civil

rape case, let's just think about that, a civil rape case against a president of the United States. He's now former, but it's just breathtaking in how terrible a series of events this has been with the Trump, with Trump having been president and former president. The second thing is how smart Robbie was to add, as you and I predicted, you were one of the first ones that said, keep tweeting, keep social truthing, you're just adding new claims that are outside of immunity for defamation against E. Jean Carroll. That's exactly what Robbie did.

She added a claim because she wants to tie these cases together as related cases. She says in the new pleading, the new lawsuit, just to give a little bit of a procedure class here, the first lawsuit is already pending on defamation. It is scheduled for trial in April. There is a January oral argument at the DC, as we talked about, a court of appeals to determine whether he, Trump, was within the course and scope of his employment as president of the United States when he made these statements denying E. Jean Carroll's charge of rape and to faming her. Yes or no.

And if it's, if it's, he's in the scope, it's gonna go back to the second circuit and ultimately that those claims will just continue. But in the meantime, Lewis Kaplan, the judge, who's not related to Robbie as all the papers like to report, has the trial set setting. We've known about this new case being filed because Robbie

Kaplan's firm has been very public about literally within a minute after the opening window for the new filing of these cases, which is basically 60 days after Governor Hocault signed the act giving people time to draft up their complaints, then you can then you could first file. And it's interesting just as a side note, there were two major cases that were filed almost at the same time being the first cases in New York. One of them is E. Jean Carroll. The other is a class action or a series of cases that filed against major banks based in New York like JP Morgan Chase for the Jeffrey Epstein scandal that they helped perpetuate his sex scandal and his sex schemes by letting money flow in and out of their bank accounts that he then used to rape these young girls.

So that's it's interesting bookends for the two cases that were filed. So you have a defamation, a brand new case that's filed though, same parties, same lawyers. Now the question is, are those two cases going to be joined together as related cases and consolidated? Robbie's arguing that they should be, she's put in the hooks in her new case in order for that to happen. She said it is related to the other case, it is new defamation based on, you know, on his truth social about the same events.

And there should be jurisdiction for the judge to put them together. So they're arguing to put them together. Of course, the Trump organization, I mean, Donald Trump's lawyers, including Alina Haba, again, makes the argument, like, I don't even know judge if I'm going to be retained for this case. We need more time. And the judge cut her off at another hearing retained for this case, we need more time and the judge cut her off at another hearing last week and said, with all due respect, you knew about

this new case coming because Miss Kaplan's law firm has talked about it for quite some time. You knew it was going to come on today. You should have got your ducks in a row in terms of representation going into today and I'm not stopping the trial. And I'm going to, I'm going to, I'm going to table for today. I'm going to take under advisement the question of whether I'm going to join these two cases together.

Again, always subject to what the Court of Appeals does at the DC level on the other, on the other case. But even if, even if the DC Court of Appeals rules somehow in Trump's favor and finds he was inside the scope of his employment when he defamed E. Jean Carroll and therefore gets the benefit of what's called Westfall immunity because he's a federal employee and is inside the scope and therefore he can't be sued. It doesn't matter because he has a new defamation claim against him now based on the same facts in the Berkdorf-Gutman dressing room

where this terrible crime took place. And he's got actions, the civil rape, the rape of E. Jean Carroll that happened before he was president. So this case is going to trial. And this case is going to trial with Robbie Kaplan versus Trump with Hercline E. Jean Carroll, with all of

her evidence, including apparently physical evidence that she has from the attack. And a jury is going to have to make this decision. This case is not getting dismissed in advance. There's going to be a jury picked in this case sometime in 2023 spring, and they're going to have to sit and adjudicate whether Donald Trump raped her and then defamed her in 1995 or 1996. You know, the only caveat that I would say is it's possible the trial may be delayed, and you and I may disagree on this,

that with the new claims that are asserted, I think that Judge Kaplan not related to lawyer Kaplan, but the Judge Kaplan presiding over it. He's been no nonsense with Trump. I do think though to protect his record on appeal with the new claims being asserted, he may set that trial for around October of 2023. He may set that trial for around October of 2023.

Oh, so you're still in 2023 though. I be early, more likely, early 2023, late 2023, rather would be me being optimistic and wanting that to happen. I think that trial with the new assault claim probably is February. Can I ask you for a question? From on, 24. I don't disagree that he might add on six more months to get them more time, but what

are the factual differences between him having to prove that it was not true that he did it, basically, or that she's lying about what happened in that burgdorf Goodman dressing room when he raped her in that dressing room, according to E. Jean Carroll. What's the difference between that, the discovery and the witnesses that would go into that issue of defamation and the physical rape issue? I don't see the exact same thing. Yeah, the true answer is there is there is nothing, but could someone who's being sued make an argument to the court and a court feeling

like there could be potential issues on appeal if you don't give an appropriate time frame here and say, look, the new claims of the sexual assault are actually far more serious claims than a defamation claim. There are all these New York laws being cited. We're going to have to consult with criminal counsel now. It's going to impact the strata. You can make up a bunch of stuff, and I'm not trying at all to make those arguments,

but I think that those arguments will give you a little bit of rope, but not too much rope is my is my read there because I'm with you Popeye. There truly is nothing, but Trump will make those arguments and the judge will be cognizant not to make sure that when they're to avoid a situation where a jury reaches a verdict against Trump, but that could be appealed for violating any due process. Well, let's make that a teachable moment point. Trial judges look to their appellate courts above them and will make decisions not only based on written precedent, of course written precedent, binding precedent in that jurisdiction,

but also how they feel based on the second circuit in this case or any circuit, how they will see a trial judge's conduct and whether it's going like to make reversible error It's terrible on their statistics. It looks terrible for them as Jurists for that to happen. It happens. I mean every I don't think there's a judge alive that hasn't been reversed on some issue some point By a higher authority, but they rather not and so they are mindful of these things They're mindful of the precedent of their jurisdiction. They're mindful if it's federal of Supreme Court precedent. But they're also mindful that I don't want to screw this up. So you're right.

They might just throw them, you know what? I don't want an argument on appeal about not enough time was given for discovery and too short a period for trial. So what is the problem? Let's just go another six month. I mean, you know, E. Jean Carroll, you know, had 20 years to bring the case. So given the defendant another six months really doesn't matter, it could land right in the middle of he's running for office, which is, you know, that's his problem that, you know, the timing bites him at the backside because he's in trial during a campaign. You know, and if you don't follow the rules and you don't follow the law and you go rogue,

the court of appeals can do a number of things to make your life and future career as a federal court judge, very uncomfortable. Look at what the 11th, yeah, exactly. Look at what the 11th Circuit Court of Appeals did with Judge Cannon, and then later in the episode, look at what the fifth circuit court of appeals is making the federal judge Terry Dowdy do.

The Trump appointed judge, and the fifth circuit is like actually making Terry Dowdy go through all these hoops and justify why you did this and justify why you did that. And really call Terry Dowdy out this Trump Maga judge, we'll talk about that later. But let's talk now about Jack Smith, very busy. We talked earlier in the podcast about Jack Smith sending a letter on Thanksgiving calling out Trump's lawyers for lying to the 11 circuit court of appeals.

And we learned last week before the holidays had begun that the Department of Justice has reached out to former Vice President Pence to ask him questions about Trump's crimes and to interview him. This technically started a little bit before the appointment of the Special Counsel with Thomas Windom, who's also been leading the investigations into Trump's crimes. Windom now joins the special counsel's team. And you know, from what the reporting is, Pence has a different view about a department of justice, subpoena or an

attempt to question them. There hasn't been a subpoena yet versus the January 6th committee. And Pence frames the issues, and I think it's BS, but he frames the issue against the January 6th committee as, well, this is a separation of powers issue here. So no, no, no, I will just write books about it, but I am not going to talk about it because I am a Christian first. I am a conservative second and I am a Republican third. So if there is an election denying candidate who wanted to kill me as a Republican, I would support that individual.

I would, I would definitely think deep and hard about it, but I would support anyone who wanted to murder me because third, I am a Republican. That's that's my I was gonna say he was almost a hanging Christian What do you do just be a normal human being? What are you doing these people tried to kill you? Like what the heck are you talking about anyway, Popoq break them break down what oh and the Department of Justice being the executive branch Them having questions for pens he doesn't really have any of the same arguments that break down what uh... and the department of justice being the executive branch them having questions for pens he doesn't really have any of the same arguments that uh... you can make for separation of powers

even though i think he lose the separation of powers argument against congress but here's one thing i want to say to we've been saying about this on legal a f is that the department of justice through these grand jury proceedings that have been taking place have been fighting hard against Trump's assertions of executive privilege stopping Pence's former top-level staffers, Mark Short, the former chief of staff, to Pence, Greg Jacobs, the former general counsel to Pence. And so Trump tried to block their testimony. They testified over the summer when they were asked

about their communications with Trump. They said, we can't answer it. Trump's asserting executive privilege. We'd like to answer it. Just get a court order. The Department of Justice did that. And then Judge Barrow Howell, the presiding federal judge over the grand juries

in Washington, D.C. ordered Mark Short, the former chief of staff in Greg Jacobs, the former general counsel in Washington, D.C. ordered Mark Short, the former chief of staff and Greg Jacobs, the former general counsel to pens to testify. But here's what I've always been saying, on legal IF to everybody who's been saying, I wish that Merrick Garland did the indictment of Trump like years ago. And I always say to you, I agree. I wish that too, but just think if they didn't build that foundation, like building a building, they wouldn't have even been got to this point

where Pence is feeling like, I may have to testify because this judge has already made these rulings because of the methodical and careful way that it's been built versus a haphazard scatter shot approach, which by the way, a haphazard scatter shot approach may work, but I want someone to be diligent and careful and precise when you are going against someone who was a former president and a complete maniac like Donald Trump. I'm going to put it, I'm going to put it even simpler. There is no doubt in my mind that for the last two years since Jan 6 coming up two years,

there has been a large group of Department of Justice personnel, prosecutors, line prosecutors, special prosecutors, and FBI agents that have done nothing, nothing, but get up in the morning and brush their teeth and think about Donald Trump and think about Jan 6th and the insurrectionist and 900 other prosecutions until they put their head back on a pillow. At all. That takes time. If it was a smaller, let me put it this way. If it was smaller insurrection, they would have gone faster. But when you have 900 people, more, more, they prosecuted 900 people. There were thousands of people who were who were who were swarming the capital. 900 are identified and prosecuted as as criminal defendants. And then all the and then backing up to that to figure out from a timeline, how did that happen? Who lit the match? What were What were the conversations had?

Thousands and thousands of thousands of interviews, but it had to be done. There is no short cut to justice. We'd like it. I'd like microwave justice. I'd like TV justice, but we would all be kicking ourselves and kicking the Department of Justice if they didn't turn over every rock and they didn't do every interview, they didn't strip away every executive privilege at every attorney client privilege and get every witness, it's extraordinary what they've been doing. They're getting lawyers to flip on clients.

Clients being Trump, clients being Pence, Trump, you know, they're blowing through Sacraseg the attorney client privilege and getting the Eastmans of the world to be in the firing line and having federal judges declare Trump a criminal and lawyers a criminal. People have been disbarred, who have been involved. I mean, there's a lot that's been accomplished when the final scorecard for Merrick Garland

is assembled. I think we're going to be proud of the work he did. I also think they took one for be proud of the work he did. I also think they took one, they took one for the team before Jack Smith was appointed. They knew that Jack Smith was coming on board, but they let the Department of Justice and the other prosecutor that you mentioned and ultimately Merrick Garland put out the feeler for, for a Pence. They figured, you know what, he's got a lot of this plate on day one. Now that the midterms are over, we'll take that one. So they started the process.

And now Jack Smith, of course, is picking up the pieces. I saw all the reporting, you're totally right in your approach. I don't understand why you get to write a memoir about how scared you were on Jan 6 and how you thought your boss lost his mind about about it. And then, you know, you know, he's very interesting, it's very interesting because he's also candidate Pence. He hasn't announced yet, but he's getting awful close. And he's trying to find a way to thread the needle

to keep as many Trump supporters as possible without alienating them. Whether he alienates Trump or not, I'm not sure it matters, but he doesn't want to alienate that red meat base because he wants to get it over to him. So now he's saying things along the lines of when they asked him in interviews recently, they said, well, what would you think about the Hang Mike Pence comment? And he said, I'm not sure it's a crime to get terrible legal advice, meaning Giuliani, Powell, Eastman, you know, Boris Epstein and all the other people in

the Gena Ellis, all those other terrible lawyers in that inter-synctum. So you can see how he's trying to spin this. But as you said, he was adamant about not testifying to Gen 6 because of separation of powers, but less adamant about whether he's going to voluntarily cooperate with the Department of Justice or make them go through their paces of going through a grand jury process, through Judge Howell's courtroom, to subpoena him, and then whether there's gonna be an assertion of executive privilege.

Apparently, the focus for the Department of Justice based on reporting is on the phone call, specifically, between Trump and Pence at 11.20 a.m. before the Gen 6, you know, attack insurrection on Gen 6 about, hey, Mike, can you do us a favor here and don't certify the election while we work back door to try to get all these election integrity issues resolved or whatever the F and phone call was. And that was the phone call that they wanted, which is interesting, because that really would tie Trump's fingerprints to an obstruction of the, you know, free elections

and the transfer of power. So among other things, they'll ask him, but now there's going to be a negotiation process to see if they're going to let him come in and give a voluntary testimony or through the grand jury process and you and I will have to do it. The other interesting thing before we leave the topic then is who's representing Mike Pence. It's Emmett flood who used to represent Donald Trump back in the day but is very well considered in legal circles and as a defense lawyer for politicians, flip sides a

long time ago, and even rat it out, it even criticized Trump as a former client, and is now a lawyer, de jour, for people like Mike Pence, when they need a real lawyer, not Alina Habba, to defend them with the Department of Justice. Absolutely. Definitely no, Alina Habba. Alina Habba though makes me happy. Okay, whenever Alina Habba is in a case, this makes me happy. Or she's it or she's doing an, you know, an argument somewhere or her name is on the pleading. I smile. I go, okay, this is going to be fun. Trump's going to be sanctioned. And it's like, you know, it's so easy for me to predict the outcome.

You know, it's usually very easy for me to predict the outcomes of Trump cases. But on an Alina Habewan, I know I'll be 100 for 100. Did I ask you a question? I want to ask you a question. I know, honest question. Who do you think decides ultimately which lawyer is, besides the lawyer is having their own interest in deciding whether they want to do that case or not? Who do you think decides what's gonna go to Alina Hava what she's gonna argue? What's gonna go to Kice what trust these good? You know, this isn't just random selection. It's not like they sit around

Who do you think is saying I know it's Alina? I know K's Walena. I know it's a kind of... I know it's someone's personality. I know what happened. So, they all think they're going to be doing the argument. And none of them really know. But Trump would never, like, he knows where Habas should argue.

Like, he knows that if she argued in front of the 11th Circuit or if she actually did the oral argument on like a serious motion that it would just be so embarrassing and humiliating, but he'll let her think that she may be doing it. And then at the last minute, he'll like tell trustee, he'll be like, all right, I need you to do this tomorrow. You're gonna do this, right? And trusty, and they pretty much just know based on their experience, who's gonna do what? And on the briefs, and they make a decision on the briefs because they have to be, you know, they gotta really be on the brief to argue.

But I agree with you. I think they let everybody think that they are, you know, the top dog. And then at the end, he's smart enough to know that Alina Hava is not smart enough. And that she's... But the other thing we haven't talked about today, although we've talked about it at length, is this third parallel track that goes along with the lawyers and the judges,

which is Donald Trump's continued social media presence. And the... Not only infuriating, demeaning, misogynistic, degrading, defamatory things that he says about everybody, FBI, DOJ, Merrick Garland, the judge that's presiding over his case, the prosecutor or the attorney general that's got the case, I mean really disgusting things. And of course, the lawyers come in,

try to come in clean hands, you know, while you never hear, for instance, you'll never hear in a courtroom, Alina Haba call Latisha James, Pika Bu James, which is a racial dog whistle. I won't even go into what it's related to. That Trump calls the nickname, terrible racist nickname, that Trump gives to Latisha James. You'll hear Alina Haba say, she's a political hack. You'll hear her say, she is. There's no one that benefits more from this

than the politically corrupt and compromised Latisha James. But they leave it to Trump to do the dirty work, which is to call her a racist name, or to go after an attack. You know, you'll see Alina Hava stupidly attack Jack Smith, although she'll never be in a courtroom at the same time with Jack Smith ever, based on our analysis here. But you'll have Trump and the others then follow suit, attack Jack Smith's wife. Talk about misogyny knowing no boundaries.

What does it matter? I thought it didn't matter what wives did or husbands did. In Clarence Thomas, it doesn't matter that Jenny Thomas is an insurrectionist that she was trying to promote the fake electors scheme and was emailing and texting and meeting with all sorts of people in order to promote that, but that's not Clarence.

But here it matters that Jack Smith, who's completely apolitical, who is an independent and hasn't, there's nothing they can tie him to in terms of his own political leanings. But they have to go for the wife because she's a documentarian that wants to do a documentary on Michelle Obama. Who cares? I thought it didn't matter with the spouse did. Only matters. But you'll never get my point is you'll never get the lawyer

to say this out loud. But almost parallel to them in the courtroom, Trump will be tweeting, or whatever he's doing, all of this crazy, crazy racist, misogynist things against his opponents. Well, he's getting his just desserts and we'll talk more about some of those just desserts because his tax returns were handed over to the House Ways and Means Committee.

Trump's been trying to block that for many, many, many years. But first, want to talk to you about athletic greens. Today's program is brought to you by athletic greens, the health and wellness company that makes comprehensive, daily nutrition really simple with so many stressors in life. It's difficult to maintain effective nutritional habits and give our bodies the nutrients and needs to thrive. Busy schedules, poor sleep, exercise, the environment, work stress, or simply not eating enough

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But it's how I do my transitions. Donald Trump has to turn over his tax returns to the house ways and and Means Committee. In fact, he doesn't really have to even do anything. The IRS gets to turn it over. So the House Ways and Means Committee will get it. And for everyone saying, oh, you know, it's too late for them to have it. It really is it. They're going to have it in time.

They're going to be able to read it. Trust me, they'll be able to go through it before the Republican MAGA extremists will try to stop things like that from happening. So I'm not worried that it happen. I would have liked it to happen sooner, but I'm still happy that we'll get them and the right people will be able to read them. And it's not going to be blocked. So this is a big deal. You may recall that the Chief Justice John Roberts, who is the supervising judge for emergency

applications from the DC Circuit Court of Appeals, granted a temporary stay blocking the House and Ways committees from getting these records after Donald Trump lost at every level in the DC Federal Court system, lost in the federal court, lost in the DC circuit court and feels. And everybody was like, John Roberts is the absolute worst. And look what he's doing. He's so corrupt. And I said, he is the worst. And he's very corrupt, but not for this.

I said, for this one, he is what he's going to do. He's going to grant a temporary stay. He's going to have briefing. He's going to refer to the full court. And then the full court is going to deny on a unanimous basis, Donald Trump's emergency application to try to block it. The House Ways and Means Committee has an absolute right to it. There is a mandatory audit function by the IRS of presidential tax

returns. Donald Trump is the only president who didn't turn over his tax returns publicly, while also whining about the IRS being corrupt and that that's the way he couldn't turn it over. During the Trump administration, he used his Treasury Department, which oversees the IRS to block this from happening. Biden then followed the law and said, yeah, that's fine. This is what the law is. Presidents shouldn't be hiding their tax returns if you want to become the president of the United States. Trump intervened to try to block it, lost that every level. Did this Hail Mary to the Supreme Court. Roberts only gave a two or three week block of the records being turned over,

and then the Supreme Court unanimously ruled against Donald Trump. Just like what we said was going to happen here on Legal Avenue. And as I said, a lot of reasons to criticize Roberts, a lot more reasons to criticize Clarence Thomas, a lot more reasons to criticize this entire Supreme Court. They've made the right rulings, though, with respect to Trump. Yeah, and this is the new post-attack criticism on the Supreme Court that we talked about last year in which we talked about the shadow docket which was emergency applications for appeal being made to the Supreme Court in from circuits that were headed and supervised by associate justices and justices that were on the right wing

that would then make the decision on their own without full briefing, without our argument, rather than refer it over to the full nine for full briefing and argument. And so there was so much criticism, thank God, by media outlets, including Legal AF and Midas Touch, that I think they've thought better about it. And now, within a week's time, we had Justice Kagan, Justice Amikoni Barrett,

and Justice Roberts, all doing the exact same thing in the cases that were coming up from their circuits, which was to issue a temporary stay, emergency stay, because that usually signals that they're going to refer it over to the full panel of nine. They want full briefing. They'll set a briefing schedule from that. And then, you know, better things will come out of that process because you'll have full briefs, maybe an oral argument, or they haven't done oral argument on these emergency applications as of late, but you do get a ruling out of it, which is what we just got. Just to remind everybody to kind of put the jigsaw puzzle together. This is not the first time the Supreme Court has allowed

Donald Trump's tax returns to go somewhere. Back in 2020, in 2021, Sy Vance, who was then not only Karen Friedman, Knifelo's boss, but was also the Manhattan District Attorney, he tried to get as seven or eight years worth of tax returns because of, as part of their investigation, an investigation that is now playing out, at least part of it, in a Manhattan courtroom against the Trump Organization for loan inflation, but started as, let's see your tax returns. Trump fought that, took two years, but Justice Roberts and the rest of the then Supreme Court in a with no dissents, just like now, said those tax returns got to get turned over to

Sy Vance and Manhattan D.A.'s office, which is why Donald Trump, people might be saying why he's complaining so much about this Supreme Court always rules against me. They don't always rule against him, but they have ruled against them consistently on records turned over issues, tax return turned over issues to the appropriate authorities, whether it be the Gen 6 committee, the Manhattan DA's office, or in this case, over to the House Ways and Means Committee. House Ways and Means Committee was looking for a batch of six years of tax returns. They were and the scotus after that this started in 2019 to show you how quickly things are moving like let's say in the where a year away from a case in New York on New York Attorney General. This is three years that the Houseways and Means Committee has been seeking six years

of tax returns and they finally got them. I agree with you wholeheartedly that in the six or eight weeks, that's six or seven weeks that's remaining before the 118th Congress comes in. There is time for the House Ways and Means Committee to review these documents from the IRS and make public whatever they'd like in a hearing. And they of course have the jurisdiction

to do that under federal statutes. I'm not sure they have enough time, Ben, though. I want to hear your opinion on this, to pass legislation, which is what the House ways it means community ultimate goal was going to be, which is to look at the tax returns and then make decisions for future presidents about changes in reporting and law and get law passed.

They don't have time to get law passed, right? I agree with you, Popeye, but I mean, the chances of them really getting the legislation passed with the Republican members in the Senate who would likely block it and filibuster it and stretch it out anyway. Unfortunately, it was not likely, but nonetheless, they have this legislative oversight function. And I think for purposes of what we want as the public to know that there is scrutiny, accountability, determination, if there was any improper conduct, and the legislative cycles, you know, over time, as we begin reflecting

back, Democrats have reflected appropriately, but I think as Trump spirals ever more into these deranged levels that even for Trump, we haven't seen these depths quite yet where you think, wow, can you even go lower than that? I think that as a country, this will put us in the right position, hopefully to pass legislation in the coming. Right, and to your point, and to our point earlier, we'll signal to future Donald Trumps

that they will ultimately lose, because they'll be new precedent on the books once again, that efforts not to turn over your tax returns to the Houseways and Means Committee is going to be met with complete disrespect by the Supreme Court, so you better do it. In other words, we don't want another Donald Trump, whether it's Donald, it won't be Donald Trump again, but we don't want DeSantis to think that he can get away with what Donald Trump got away with, and even push the envelope, as you said, sink it

even lower, sink lower in the mud, and try something else crazy. And I think now the Supreme Court is signaling, if you look at their body of law, you have to come away with the result, the synthesis of the body of law is that You got to turn over your records to whoever has legitimate jurisdictional powers in that particular area jam six to do its investigation House ways of means community to talk about tax returns in the internal revenue service and you know Prosecutors if they're prosecuting a case of financial crime turn them over because your Supreme Court's not going to be your ultimate Savior at all. They're going to financial crime, turn them over because your Supreme Court's not going to be your ultimate savior at all. They're going to tell you to turn them over.

No doubt about it, Popok, and then turning to this fifth circuit court of appeals, right wing reputation, but they gave a bit of a smack down to this Trump-Maga judge. It was a very harsh ruling, but appropriately so. The judge, the federal judge in question, is Terry Dowdy, judge Dowdy, appointed by Trump for the Western District of Louisiana. This was one of those cases that were kind of these weird astro turf cases brought by Republican attorney generals who have nothing better to do like Missouri and Louisiana. The same thing like these are the states that sue to block the student debt cancellation program where here their big focus is not on like, well, how do we help with education

and healthcare and like issues that people care about and like And how do we focus on workers and raising the wage? We raising a minimum wage to not just the living wage, but a wage with dignity. And how do we do things for people? That's not what they focused on. They focused on, well, social media companies are moderating anti-vaxx conduct and they're telling people to wear masks

and they're telling people that getting masks and they're telling people that getting bad things. They're telling things. So the Republican states and attorney generals were like, how dare these social media companies try to block content that spreads conspiracies about vaccines and has death threats to Dr. Fauci. We must investigate the social media companies. So they filed the lawsuit, like a batshit crazy lawsuit

against the Biden administration. We can't even tell this story without cracking up. That a two states of our union would file a case presumably on first amendment grounds, pretextually on first amendment grounds, to allow social media to spread lies and disinformation that could lead to people dying. There if it come to Missouri, come to Louisiana,

we're in favor of people dying. And this isn't even the lawsuit against the social media company, but that somehow the Biden administration, because they've said we don't like disinformation to spread on social media that the Biden administration is now the overlords of social media and they are suppressing the speech of hateful conspiracy theorists. And as you said, Popok, these states, their highest legal officers,

their attorney generals, filed lawsuits against the Biden administration. And they got in front of this batshit crazy judge. The case is so frivolous, that what the states did too is they immediately sought depositions of all of these like top level people in the Biden administration. So they sought surgeon general Murphy. They sought the head of the cyber security and infrastructure security agency. Jen Easterly, they saw the head of digital strategy at the White House, Rob Flatterty, Jen Saki. This ruling doesn't relate to Saki.

They later saw it. Saki's deposition. Although it will eventually. It will. But so, and then the Department of Justice was like, we haven't even filed our motion to dismiss yet to the frivolous lawsuit. So can we file the, first off, these people shouldn't be deposed.

They're high level apex officers, meaning they're top level officials. And the law says if they're a top level official, they shouldn't be deposed if there's less intrusive means. I'm getting first. At least not first. At least not first. Yeah, maybe later.

You have to climb the ladder, which is what the, which is your case. And we haven't even filed our motion to dismiss yet because we did originally then they filed an amended complaint and this lawsuit just batshit crazy. And then the federal judge, the Trump appoint a judge is like, no, I am ordering that these people show up for deposition. They better show up immediately. So the department of justice went to the fifth circuit and went to them and we're like, look at what this judge is doing, like this stuff's crazy.

Like can you stop this judge from doing it? And then the fifth circuit basically said, yeah, what are you doing, judge, Dowdy, like this makes literally no sense, Popeye. Yeah, so here is, we like to give a little decoder ring to our listeners and followers about what to look for. And the good thing that happened, just as the three judge panel, that judge prior put

together at the 11th Circuit, included two Trump appointees in the Mar-a-Lago case, but that already ruled against Trump. In the fifth circuit, in terms of, you know, cherry, cherry, cherry, like you're at the jackpot, you're at the jackpot in Las Vegas, we got three judges, two were George W. Bush appointees, meaning they're reasonably reasonable Republican appointees, and one was Obama. So we had, unlike normally normally when you get a couple of Trumpers in there, we had Bush from the Halcyon days of the Republican Party when they were it, as you like to say, that's shit crazy.

You got people who are in their 60s and 70s who are reasonable. And you have an Obama appointee. That was the panel. And so that was good because, as you said, this Louisiana trial judge that they're over, they're supervising, is a Trump appointee of the first order and skipped all protocol and procedure and decided that just on the filing of a complaint, we're going to go immediately

to depositions of the highest level officials of a federal government that we can find. In fact, he questioned in his own opinion, the trial judge did, whether these were really high ranking officials within the Biden administration, the head of cybersecurity and infrastructure about the election process, as you call that, the director of digital strategy, the chief person in charge of media, social media for the Biden administration and the surgeon general. There was even question in this judge's mind that these people were high ranking. The appellate court was like, okay, first of all, they're high ranking, okay? So we don't even know where you were going with that.

And they go, these people oversee tens of thousands of employees and have budgets, billions of dollars, okay? Very definition of high ranking. I don't know what you think high ranking is, Judge, but these people are high ranking and you need it to find a least intrusive method of discovery. But more importantly, for our purposes, Ben, is another invitation from an appellate court to do something. It says in the order that we've read, I think it's a five-page order, that upon the filing of a timely motion to dismiss by the Biden administration, the

trial judge should consider whether there should be discovery going on during the dependency of that motion at all. Wink, wink, apartment of justice, file your motion to dismiss because you'll find a receptive audience at the fifth circuit for stopping discovery completely. Meaning what you said, Ben, is that they see this as a borderline frivolous case, if not totally frivolous case, and we're certainly not going to let, you know, the frivolity of the case overwhelm the system and allow us to go, let's go right to discovery. Why don't we take the deposition of Joe Biden? Let's do that right away.

Do that right up front in the case. No, they're going to have to get through a motion to dismiss process. It looks like the fifth circuit is going to ultimately rule that's discovery should be stayed in the case overall while we even figure out whether there is a case here, or as you like to say, a legal theory in search of a case. Is there one, probably not, based on of a case, is there one probably not based

on the fifth circuit, at least this panel? And let's not bother Biden administration officials with depositions on a fishing expedition, political fishing expedition by two states who have nothing better to do, but then to make sure that QAnon theories stay on the internet. What a lot of a goal by a state have. Why don't you worry, if you're a shout out to Missouri, Louisiana, but negative one, why don't you worry about birth rates

and death of children mortality rates for children in your state, education rates, testing scores, literacy rates, poverty rates. Why don't you worry about that instead of wasting energy, time, and money and resources on these ridiculous political trumped up cases? I couldn't agree with you more, but that's why we do the show, Popok. The law is so important. And what we saw in the 2020 election is that what actually held everything together certainly was not the Republican legislative branch

because they were willing and still wanna do a coup right now. It wasn't the executive branch because Trump was leading a coup right now. It wasn't the executive branch because Trump was leading a coup. It was the judiciary which held everything together. There's no other way around it. And so when we call out the judge, Eileen Cannon's, the doudies, the, oh, that federal judge in Texas who can't, who blocked kind of cancellation. Pitman. Pitman.

Yeah. Judge pitman, when you start looking at these Trump appointed judges, and by the way, there have been Trump appointed judges, though who have followed the law and there have been some that have gone deep down into conspiracy land and eroding confidence in our judicial system. But it's why we do this show. It's why this civic engagement that we provide here at League of La F. And when I say engagement,

I mean, this is a community effort. You know, we're all in this together. This isn't just like a network. This is a true community and it's so great spending these weekends with you to discuss the importance of our legal system. Want to tell everybody here to also consider checking out our Patreon website by going to patreon.com slash mightesth p at r eo n.com slash mightestouch. We are not funded by any outside investors at all. We rely 100% on you and your generosity.

And so we're 100% independent 100% accountable to you. There's lots of exclusive content you can only get on Patreon, but most importantly, you can help grow our independent media platform. So go to patreon p-a-t-r-e-o-n dot com slash might as touch. Also, check out store dot might as touchouch.com store.mitustouch.com for the best unapologetically pro democracy mightest touch and legal AF gear. We've got those great long sleeve shirts from legal AF the wheels of Justice shirts. Check it out at store.mitustouch.com. I'm Ben Myceles joined by Michael Popak. Happy Thanksgiving to all. I am very, very thankful to you all. We'll see you next time on Legal AF. Shout out to the

Midas Mighty. you