Legal AF by MeidasTouch - Prosecutor Gives Supreme Court PLAN to Start Trump CRIMINAL TRIAL

Episode Date: April 10, 2024

The LAST argument made by Special Counsel Jack Smith to the United States Supreme Court to argue that Trump has NO IMMUNITY FROM CRIMINAL PROSECUTION, may be his strongest and the one the Court embraces. Michael Popok dives deep and explains how the Special Counsel has built a circuit breaker into his brief to make sure that the Court doesn’t dismiss Trump’s indictment. Upgrade your sleep with Miracle Made! Go to https://TryMiracle.com/LEGALAF and use the code LEGALAF to claim your FREE 3 PIECE TOWEL SET and SAVE over 40% OFF. Visit https://meidastouch.com for more! Join us on Patreon: patreon.com/legalaf Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Learn more about your ad choices. Visit megaphone.fm/adchoices

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Michael Popak with the League of Laf Hot Take. Every so often the special counsel Jack Jack Smith, in the prosecution against Donald Trump gets to lay it out in a brief, this time to the United States Supreme Court, and buried on page 44 of the brief, I'm always finding things buried on page 44, of briefs filed by the Department of Justice, lays out the entire circuit breaker that Jack Smith has developed as a just in case to continue the prosecution against Donald Trump, just in case the Supreme Court finds there's some sort of immunity for some sort of official act committed by Donald Trump while he was president. The entire appeal that's going to be heard on the 25th of April, we're going to be able

to get an audio version of that appellate argument in front of the full nine member panel of the United States Supreme Court on whether Donald Trump has immunity as a former president for official acts. That is the entirety of the appeal. That is all that the United States Supreme Court found interesting about Donald Trump's appeal. It's the only question I think they want answered after reading the 60 or 70 pages of the DC Court of Appeals, three-judge panel led by Judge Pan that ruled against Donald Trump and found, of course, no immunity that under our separation of powers, under our three major branches of

government, under all the precedent starting back in 1807 forward, a former president is not immune from criminal prosecution, even if he claims that the things he was doing was official acts. But the circuit breaker that is inside this new filing, this new 50-page filing by Jack Smith, his brief to the United States Supreme Court, which he answers the question that they asked, and the only question they asked, does a former president have criminal immunity or immunity from criminal prosecution, even if some of those acts are considered to be official? I think they've already decided, this is my view, the Supreme Court's already decided

that the DC Court of Appeals is right, that things that have to do with unofficial acts, private matters, personal matters, personal conduct, Donald Trump trying to remain in office are not covered by any type of immunity. But they want to go further because it's a multi-page indictment against Donald Trump, basically under two theories. One that he defrauded the United States through his activities, so conspiracy to interfere with an election. And then there's this other couple of counts that they're trying to address in this brief, which have to do with whether there's been obstruction of an official proceeding.

And on page 44 of the brief, get there, Popak, you've told us about it, now tell us what you're talking about. Under a headline, even if a former president has some immunity from federal criminal prosecution for official acts, this prosecution should proceed. That is the major circuit breaker that Jack Smith has built into his filing, just in case some majority

on the Supreme Court finds that some aspect of what Donald Trump did wearing his president hat leading up to Jan 16 and beyond qualifies for some sort of former president official immunity, he should still be prosecuted under the way this indictment has been framed. Let me read to you from page 44 and beyond. In the brief, this is what Jack Smith says.

This is his break the glass only in an emergency moment in the brief. Even assuming that a former president is entitled to some immunity for official acts, that immunity should not be held to bar this prosecution and this indictment. First, this is Jack Smith, a president's alleged criminal scheme

to overturn an election and Thorpe, the peaceful transfer of power to his lawfully elected successor, is the paradigmatic example of conduct that should not be immunized, even if other conduct should be. So even if he's calling out the court here, even if you find that something that he did,

some phone call that he did, some contact that he made, some plan that he executed to cling to power, somehow kept state in the lane of being an official conduct and they wanna give immunity to that conduct, not the conduct alleged here, particularly the type of obstruction and they want to give immunity to that conduct, not the conduct alleged here, particularly, particularly the type of obstruction of an official proceeding that has been alleged. The brief continues. Second, at the core of the charged conspiracies is a private scheme

with private actors to achieve a private end. Do you see the theme here? Petitioner's effort to remain in power by fraud. Trump's effort to remain in power by fraud. That is private to him. How do we know that? The brief continues, using Donald Trump's own words and arguments, especially the First Amendment argument, my personal freedom of speech against him

to argue that this is a personal, private misconduct. Those allegations of private misconduct are more than sufficient to support the indictment. They're telling the court, you have an exit ramp. Even if you want to find some grander finding or ruling or precedent about presidential immunity, you don't have to. And Supreme Courts are supposed to make narrow rulings to preserve their jurisdiction and not go further than they have to. There's a doctrine related to that. So Jack Smith goes on in his brief on 44 to say, thus, even if the court determines that some form of official act immunity exists and may apply to some acts alleged in this case, the court should at worst

remand it, send it back to the trial judge, Judge Chutkin, and she can address the issues through evidentiary and instructional rulings at trial. We can deal with this at trial. So here's what they say. For instance, on page 45, this case should be remanded for trial because any novel immunity from criminal liability for a former president's official acts should not apply to the allegations in this case. A president's alleged criminal scheme to use his official powers

to overturn the presidential election and thwart the peaceful transfer of power frustrates core constitutional provisions that protect democracy. These provisions include the term of Office Clause, right? Article Two, how long Donald Trump and any president stays in office. The provisions for electing presidents, also in Article Two.

And the installation of successor provisions in the 20th Amendment. Trump's concern about chilling official conduct that violates these provisions rings hollow because no president has an article to interest in using crimes to give himself a second term after election he lost. Nor would it be gerrymandered approach,

as Trump has said in his brief, to focus on the specific allegations that petitioner conspired with others to quote, "'Overturn the legitimate results "'of the 2020 presidential election by using knowingly false claims of election fraud. That's the crime. To the contrary, the Department of Justice continues, a holding that petitioner has no immunity from the alleged crimes would suffice to resolve this case. That's all you have to do, Supreme Court, these narrow

grounds, leaving potentially more difficult questions that may arise on different facts for decision if they are ever presented, reminding the court that that's exactly what they should do when constitutional principles are in play. They continue on page 46.

Even if the court were inclined to recognize some immunity for official acts, it should remand a trial because the indictment alleges substantial private conduct in service of petitioners' private aim. And they then give the examples of that. Trump's use of official power was merely an additional means of achieving a private aim, therefore not official conduct, to perpetrate his term in office.

That is prosecutable based on private conduct. The conspiracy centrally embraced private actors agreeing with petitioner Trump to achieve his private end through private means. For example, from the brief of Jack Smith, Trump turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges

to the election results. That's gotta be Rudy Giuliani. Could have been Sidney Powell, but I think there it's Rudy Giuliani. Did you know that traditional bedsheets can harbor more bacteria than a toilet seat? It can lead to acne, allergies, and stuffy noses, and it's just gross. Miracle Maid offers a whole line of self-cleaning,

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and use the code LegalAF to claim your free three-piece towel set and save over 40% off. Again, that's trymiracle.com slash LegalAF to treat yourself. Thank you, Miracle Made, for sponsoring this episode. Petitioner conspired with another private attorney who caused the filing in court of a verification made for sponsoring this episode. Petitioner conspired with another private attorney who caused the filing in court of a verification

signed by Trump that contained false allegations to support a challenge. Three private actors, two attorneys and a political consultant, that's gotta be Rudy Giuliani, probably John Eastman and Boris Epstein, helped implement a plan to submit fraudulent slates of presidential electors to obstruct their certification proceeding. And petitioner and a

co-conspirator attorney directed that effort. So let me recalibrate. That's Ken Chesbrough, that's John Eastman, that's Boris Epstein. That's who's on top of page 47. Even though they're not named, those are the unindicted co-conspirators he's referring to. Chesbro, Eastman, Epstein. That sad law firm that Donald Trump helped direct. That alleged conduct falls well outside of any conception of presidential official acts.

They then go on to use his own words against him, Donald Trump, on page 47. Petitioner Trump confirmed that he acted in a private capacity by seeking his own First Amendment protection for his false speech and moving to dismiss the entire indictment on that basis. There you go, right? Touché against Donald Trump. You want a First Amendment? That's a private right. You just confirmed that you committed a private act to support your private means to achieve your private ends.

That can, and then they later say at the bottom, that petitioner also engaged in official conduct that was intertwined at best with his private means of attaining the conspiracy's aim, should not immunize all of his conduct. There can be no valid claim of blanket immunity to attach to non-immune conspiracy committed with private actors through private conduct to obtain a private end simply because a former president also used official powers to further the conspiracy

citing to the Haldeman case from Watergate against Donald Trump. And then they go on on page 48 consistently to argue if the court were to find that some form of immunity from criminal prosecution for a former president's official act exists, that immunity should not preclude this petition, this indictment based on private conduct. His interactions, Trump's interactions with government officials or actions in his official capacity would still be admissible to prove, for example, his knowledge or notice of falsity of his election fraud claims. They are going to bring in people in the White House Council's office like Pat

Cipollone and Pat Philbin and his department of Trump's Department of Justice, Richard Donahue and Jeff Rosen and others that were in the inner circle to talk about the fact that Donald Trump knew or should have known he lost the election and that there was no outcome determinative voter fraud. And this is their argument here in conclusion. Here's an example they give about private means being used even in an official capacity, which should subject Trump to criminal liability. They say in the Haldeman case Trump to criminal liability. They say in the Haldeman case

that there was a note that the Watergate defendants were charged with a conspiracy to defraud the United States, which is exactly the charge against Donald Trump, not with the crime of misusing the CIA. The proof of misusing the CIA, which Nixon did, served to illustrate a means of accomplishing the crime of defrauding the government, which is exactly what the argument is here. He may have used some official capacity. He might have made some orders to the Joint Chiefs of Staff. He might've tried to issue some directives. He might've tried to use the White House councils

or the Department of Justice, but he did that as a private means to an end, right? To defraud the government and defraud the people. And that is for me, one of the most compelling arguments. Oftentimes, how you write a brief is indicative of what you think is your strongest arguments. Lawyers like me use, and Jack Smith, use the rule in writing of primacy and recency. You put your most compelling argument first. So in the brief, the way it's structured, they've argued that they answered the question

that the Supreme Court asked, which is the sole issue on appeal. Can a former president enjoy immunity from criminal prosecution related to official acts. They've answered the question. But at the end, in the recency section, if you will, the last thing the Supreme Court's gonna rule is you have off-ramps here. You don't have to make a broad decision.

Send it back to Judge Chutkin if you have an issue, which is similar to what one of the judges of the DC Court of Appeals suggested. Let her figure out the judges of the DC Court of Appeals suggested, let her figure out the private from the public conduct, the official conduct from the private conduct, and our prosecution will still stand. And so that is the last argument, and I think it's there for good reason. I mean, the basis of the entire analysis, just to leave the hot take on this, is how the separation

of powers work in our United States. You have three articles that define our three branches of government. Article one is everything about Congress and its ability to set the laws of the land, including all of the federal criminal laws, including the ones, of course, being used in this indictment. And nobody is above that law of Congress. Nobody is above Article one. It's the first one. Article 2 is the establishment of the executive branch.

It has one occupant and it's the President of the United States. But in there are the powers that are given to the President of the United States. And if they're not given to the President of the United States, then they're usually given to Congress. And then you've got the third branch, the Article 3 branch, which is the judiciary, which are the judges. Those are the three branches. In order for them to properly check and balance each other, you can't have the Article 2

branch be above the Article 1 branch, which is what Donald Trump is proposing. He's proposing that he's above the laws generated by the Article 1 branch of government Congress and that he can, unless there's an express provision in criminal law that makes the president subject to it, he's not subject to it, which would mean the Department of Justice identified that in the entire criminal code, there's only two statutes that expressly say and mention the president, and they have to do with his office. But that doesn't mean that he's, therefore he is immune from prosecution on all the other things as he clings to power, no matter whether it's murder, robbery, misuse of the military, or using SEAL Team Six as the

example was used during the DC Court of Appeals decision to take out a political rival. used during the DC Court of Appeals decision to take out a political rival. The founding fathers, as the Department of Justice reminded the court, never, never envisioned that a president or former president was above the law. It's the very basis, for instance, as mentioned in the brief, for the Nixon pardon. When Nixon was pardoned by Gerald Ford,

I almost said Henry Ford, by Gerald Ford, I almost said Henry Ford, by Gerald Ford, both sides of that transaction, outgoing President Nixon, incoming President Ford, after being elevated from Vice President, assumed that Nixon could have been prosecuted after he left office, which is why Ford gave the pardon, and it's why Nixon accepted the pardon. Right? Everybody, all the framers envisioned a world where a former president could be prosecuted without immunity. That's why they, one of the reasons they invented the pardon process. If the next president wanted to sort of tamp down on, you know on public revolt, he could graciously pardon the other person.

Of course, that's not happening here. But when you have that Article I, Article II, and Article III shape, you understand the separation of powers demands that nobody be above the law, and certainly and especially the Article II person, the President of the United States. the Article II person, the President of the United States. I'll see how that recency and primacy argument, the last argument in the brief, plays out an oral argument on the 25th of April. We'll bring it to you here with commentary from Legal AF, the show that I co-founded and co-anchor on Wednesdays and Saturdays only on the Midas Touch Network. Come right here. Join us. You'll find out why we call it Legal AF. It's at 8 p.m. Eastern Time, only on our YouTube channel here on the Midas Touch Network. Come right here. Join us. You'll find out why we call it Legal AF. It's at 8 p.m. Eastern time only on our YouTube channel here on the Midas Touch Network

and then on audio podcast platforms of your choice. If you like this hot take, this kind of legal analysis at the intersection of law and politics, come join all my hot takes. You can find me. Go to playlists under Midas Touch, under Michael Popok, and you'll find my entire body of work in real time. Until my next hot take, until my next Legal AF, this is Michael Popok reporting. Heary, heary. Legal AF Law Breakdown is now in session. Go beyond the headlines and get a deep dive into the important legal concepts you need

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