Legal AF by MeidasTouch - Republicans play Federal Judge Whack-a-Mole

Episode Date: April 21, 2022

The midweek edition of LegalAF x MeidasTouch, the top-rated podcast covering law and politics, is anchored by national trial attorney and strategist, Michael Popok and former prosecutor and leading criminal defense attorney Karen Friedman Agnifilo. On this week’s episode, Popok and KFA analyze: 1. Trump’s efforts to, on the one hand, disqualify the Florida federal judge he does not like in the racketeering case he filed against Hillary Clinton in Florida, while on the other, use a New York federal judge to stop the New York Attorney General’s investigation of him. 2. Bannon’s last ditch efforts to have his criminal contempt of Congress case thrown out by a D.C. Circuit federal judge before his July trial. 3. A Georgia federal judge’s decision to allow Georgia to continue to evaluate whether Marjorie Taylor Greene is an insurrectionist that is disqualified to run for office under the 14th Amendment’s “anti-insurrectionist” clause. 4. A Florida federal judge’s decision to prevent the Center for Disease Control from, well, controlling disease, by continuing to require masks on all public transportation. Follow Legal AF on Twitter: Legal AF: https://twitter.com/MTLegalAF Karen Friedman Agnifilo: https://twitter.com/kfalegal Michael Popok: https://twitter.com/mspopok 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 Zoomed In: https://pod.link/1580828633 The Weekend Show: https://pod.link/1612691018 Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to Legal AF Midweek Edition with Michael Popok and Karen Friedman at Diffalo. On today's podcast we're going to cover Trump two ways. He likes federal judges when he's trying to dismiss the attorney general's prosecution of him or civil investigation of him, but he doesn't like them when he pulls a Clinton appointee in his big case down in Florida. We're going to talk about Steve Pannon and his latest ploy to avoid prosecution and the trial in July by filing what else a motion to dismiss. We'll talk about Marjorie Taylor Green and KFA's prediction that went exactly to form the federal judge sending it

on to the North Carolina administrative process to decide whether she was an insurrectionist or wasn't and whether she belongs on the ballot in the Northern District of Georgia. And we're going to end with one of our favorites Max, masks and backs. We're going to talk about the recent decision by the middle district of Florida federal judge to say that masks are not really that sanitary. So the CDC doesn't have the power to enforce them on public transportation and the Supreme Court coming back once again and saying that the commander in chief and the in this case the head of the Air Force can require its soldiers and enlisted personnel to get vaccinated in order as a condition of being in the military. And that's what we're going to do, Karen.

What do you think about all that? Exciting. It's really exciting. It is exciting. Can I start by complementing your podcast this weekend with Ben, the big main legal AF? I listen to, I didn't get a chance to watch it live, which I normally do and chat with all the listeners,

which I love doing, but I couldn't do it this weekend. It was so many holidays. I'm Jewish, my husband's Catholic, you know,, but I couldn't do it this weekend. It was so many holidays. I'm Jewish, my husband's Catholic, so it just didn't work out this weekend. And, but I listened to it the next day. And it was one of the best podcasts I've ever listened to. And I really want to compliment you guys on how you handled all the issues and how excellent it was.

And in particular, the Elon Musk Tesla, what you were saying about that and the way you described it, it was. And in particular, the Elon Musk Tesla, what you were saying about that, and the way you described it, it was really fascinating and easy to understand. And despite the fact that we were criticized for our opening, which I didn't love, it was that what was that about? Let's, let's, there's some sort of fake phony in good jest war between the two legal AF podcasts, the one in midweek with you and me and the one in the weekend with Ben and me. And I took a pot shot. I thought it was funny.

I think you did. A lot of the audience did. They noticed this collar was pointed in the wrong direction during one of the podcasts. And I made a comment about you said how you complimented me, because that's the kind of people that you and me are about whatever I was wearing that day. And I said, yeah, unfortunately Ben hasn't gotten the memo because he looks like he pulls his clothes out of a hamper right before he podcasts on the weekend. He didn't like that. And he got back at me. It was great because I wasn't expecting it. He said, and Popoq, what is with the opening

that you and Karen are doing on the midweek edition? I know, I was like, what? I called them out. I said, this is obviously payback for the Hipper comment. It's so obvious. Well, let me just say something about that. The show is the same. The focus is the same.

The co-host and their chemistry are different. You and I have a different chemistry than Ben and me. Whereas he is like even at eight or nine o'clock, whenever we do this, he's like a shot at tequila with a side order of cayenne pepper. We're more like smoldering aged burden or scotch. Our opening is going to be different. Anyway, enough of all the logistics. Let's get down to the stories and let's start with our favorite Donald Trump. So I'll frame it and then I'm going to turn it over to you. We've got an attorney general in Latisha James, New

York State Attorney General, who is leading a civil investigation of Donald Trump organization and all of his kids. And that's been going on for over a year. It's been supervised, if you will, by a state Supreme Court trial level judge in the state of New York the whole time. And everything is vetted with due process and adversarial process.

Trump has the right, he has lawyers, and he makes his arguments to the state court judge. State court judge listens to them and then decides whether he's going to order depositions or order documents to be produced or whatever it's going to be. So the whole process with the unlike what some people might think about and you'll give your view of a prosecutor or a attorney general just running wild with all sorts of investigative techniques. This is going through a judge. Everything that Latisha James' team does is vetted ultimately and approved by a state Supreme Court justice.

Well, Trump doesn't like how it's been going over the last year. So he and his lawyer of choice, Alina Habba, who's a New Jersey lawyer that works out of a we work or a Regency office, I'm not kidding, in New York filed a federal case, made a federal case out of it in the northern district of New York, is they got to find the furthest place from Manhattan they can go to try to hopefully find a conservative or Republican judge. Well, that didn't work because they got a judge, Barbara Sanis, who you may have been in front of before, I have a bite remotely anyway. Who is a Democratic appointee? And they they file an injunction motion, stop the state

proceeding, stop Leticia James. She's mean to us, you know, this whole thing's a sham. We want to raise all sorts of constitutional issues. They filed that in December. This is now, let me check my watch. This is now April. The judge has not moved on the preliminary injunction papers at all. So they decided, why don't we, why don't we write another letter to the judge? Never wise move in a federal court. That's what they decided to do.'t we write another letter to the judge? Never a wise move in a federal court, that's what they decided to do. Let's do a letter of motion and see if we can get the judge to move.

And that's what they did. And so Karen, what are they trying to do with this federal judge in relation to the state proceeding and the civil investigation? So the theory I have is they're trying to basically knock, test James, the attorney general off the case. And that's what I think they're trying to say is that the state doesn't have jurisdiction and she's the state attorney general that it's really a federal matter and a

belongs in federal court. And the question is, if that happens, will she be knocked off the case or not? Will she lose her jurisdiction? And at first when I saw this, I had a kind of strong reaction thinking, this is never gonna fly. But then I, as I sort of read about it and read more into it,

I remember when Sivance was seeking Trump's tax returns. And that was, and it was all part of a big subpoena compliance initiative, you know, and they were basically looking into the Trump organization and, you know, the now prosecution of, of, of Weiselberg and the Trump organization. As part of that case, they were subpoenaing all sorts of documents, including the president's tax returns. And everybody knows that was a long, hard, fought thing. But the state court judge in Manhattan

was overseeing this subpoena compliance, much like the state court judge is overseeing the Tisch James investigation. In our case, in the SIVAN case, what the president did, President Trump at the time did was bring a motion in federal court to saying that this should be removed to federal court. That this is a matter of such great importance, and it's a sitting president, and if you allow this to happen happen every elected county prosecutor could go after every president and you know this is can't possibly be the case and and State Court judges

many of them are elected many of them are are you know Democrats Republicans political you know this just open up the field the floodgates for all presidents to be either sued or prosecuted all over the country that this really belongs. Sitting, while sitting presidents. Yes, exactly. This really belongs in federal court. And in that case, the judge, the federal judge agreed and removed the case to just the subpoena compliance part of the case to federal court. And ultimately ruled that Trump had to turn over his tax returns. So I mean, he ruled that it was belonged federally.

They appealed the the appellate courts ruled it belonged federally. They went to the Supreme Court of the United States that also said, basically, yes, it belonged federally and he had to turn over his tax returns. So it was a long fought hard fought battle, but it's but ultimately it stayed in federal court. And I think that's the precedent they're using to try to say. Well, they are. They are. They're using us versus vans while you're in the office to say, see a sitting president can't be subpoenaed or have a process against them led by a local process, you know, investigative body. But what is the fly in that appointment, Karen? He's no longer the sitting president.

Right. He's been out of office for a number of years. So I love when Alina Haban, her filing, says, it's a great case. This, this US versus Vance federal judge up in Northern District of New York. It has the same Trump. She actually said, it's the same party there

in one side of the case and see what it says. And she leaves out completely the analysis of he's no longer the president. It is, but yes, that's true. But it is a similar, don't forget, this was a joint investigation. This is a similar related case. So I'm a little bit just I have

pause. Let's just say I don't think it's as clear cut staying in the state court as as you we one might think because it is a really can I ask you can I ask you a question. Are we a little late to be trying to remove, if you will, to federal court? Didn't you wave this already? This investigation has been going on for over a year. She delivered preliminary findings to James like three months ago. She's been ordered by multiple courts to sit for step position and produce documents. Are we a little late in the game to be arguing that the state court doesn't have jurisdiction

over him? Yeah, I don't know why they waited so long to bring this this action. I really don't. Or maybe they just thought of it, who knows? But they added, I think they added in here that, you know, his James is racist and, you know, they're doing all kinds of all the old stops are coming out. So we'll see, you know, we'll see what what they do. We'll see, I don't think it's going to go anywhere, but we'll see. We'll see what happens. But the open question I have is if they decide it does belong in federal court, does that, in fact, divest to James of her jurisdiction, or can she bring this state court civil case in federal court? And that's the open question I have that I was wondering what your thoughts are on that.

Well, people come here for the commentary and they stay for the predictions. So here's my prediction. This judge is not divesting the state court judge, Ergaron, or Tisch James of their jurisdiction over the former president of the United States about his business dealings having nothing to do with his time in office at all. And I think the reason we haven't heard about any decisions or any hearings or anything

on the docket since they filed this BS case in December is because this judge is signaling, this is my interpretation, is signaling that she's really not interested in these issues and she's got it on the slowest track possible which drove them crazy and I think that's what led to them submitting a supplemental brief.

I don't think the judge asked for supplemental briefing. If I were the other side, I would move to strike the supplemental filing as being, A, that's not in the federal rules. You get around a briefing, but the federal rules don't have when you're annoyed that the things not moving fast enough for you, you can file a letter brief with the judge asking them to move faster. That's not a thing. And so I think if I'm, if I'm, if James is office, I move to strike the letter brief and argue that it's improper procedurally, it should be ignored.

And I don't think this motivates the judge one wit to move any faster on this. And when there's full briefing on whatever, I mean, I'll, I'll, I was going to say, I'll take you to lunch, but we got a lunch anyway. If I lose this one, well, I get, I get the precedent. I get the precedent. So you ask me a question. I get the precedent. I don't think it applies.

I don't think this judge is going to move on that. And I think T James is gonna stay as the top sheriff in town when it comes to the civil side of the investigation of Donald Trump and his family. Yeah, I think I agree with you, but it's a strange tactic that they're taking here because if I were Trump and his lawyers,

I would say to the state court judge, I have this motion pending in federal court, you can't do anything. And you have to wait until this judge rules before you can do anything and just delay, delay, delay, delay. I mean, that's Trump's tactic. He loves to delay. And I would think that in this particular instance, he'll also, if your predictions write, he'll appeal and then I'll go to the Supreme Court and more delays. And all the while, everyone's frustrated and nothing can get done because the state court has to wait for this to weave its way through the federal court.

So I'm surprised why Trump given this delay tactic and it seems that that would benefit him. Why would they poke the judge with this letter brief and their loss-blaining? Well, I totally agree with you. I think that's a very good observation because, as I've said, on prior podcasts, Trump obviously subscribes to the old theorem when bad things happen to you, make them happen slower.

And that's what he's, you know, because the time is on his side, he can maneuver better with a longer runway. But he's got a problem, right? That we've talked about in other podcasts. He's got a first department state court of appeals case in New York about whether he has to sit for deposition. The judge, Ergaron isn't waiting around to see what happens with the federal judge.

That case got filed in December. The judge, the state court judge has just been chopping wood since then. Trump, you sit for a deposition. Trump, you pay $10,000 a day for documents. Let's take this up on appeal. Things are not stopping on the state side and less than until there's an injunction. And so I think he had to do something. You know, this is being on the runaway train and like pulling the emergency brake

and hoping that it stops, but I don't think it's stopping. Yeah, I think you're probably right. Yeah. I think you're probably right. So as you were saying earlier, in this particular case, they love the feds and they want to move it to the feds, but then there's this other case, right? Go on, but you're about to talk about the other case.

Yeah, they love the feds until they don't like the federal judge that they were selected. Now, this one is a little bit closer and nearer and dearer to me because I actually practiced in the snack of the woods for 20 years and I tried cases in front of Judge Middlebrooks who's the judge that's been assigned the case

in federal court, pardon me, Southern District of Florida by random assignment. I will tell you, this is like the inside baseball stuff. Just to remind everybody, because sometimes you and I start talking in code and we don't bring everybody up to speed for legal AF. About a month ago, Trump filed a lawsuit under the racketeering statute, the Rico statute against Hillary Clinton, John Podesta, James Comey, and everybody else on his enemies list. For the 2016 Russia interference conspiracy case that he says negatively impacted him. Pardon me. I will remind everybody that he won that election.

That Hillary, if that's what she was trying to do, was to use the Russia investigation or an attack on him saying that he was in bed with the Russians to stop his being elected president. Newsflash, that did not win. That did not work. He was elected president. So what his damages are, other than legal fees, I have no idea. But it's another publicity stunt. And who are the lawyers? Alina Habba, we just talked about, who's not admitted in Florida. So they needed a Florida lawyer. So who did they use? This guy named Tickton who went to military academy in high school with Donald Trump. And he wrote a book. And he wrote a book. Might like the real Donald Trump. So he has been, you know, puckering up and kissing the backside of Donald

Trump forever. And now he's got a chance to be to file the case, this big Rico case. So they're going to do it in, they're going to do it in South Florida, because Tickton sits in Fort Lauderdale. Haba sits on the 19th hole of Bedminster Golf Course for the Trump family. So they say, okay, we're going to file down here. But of course, they look at the judges and they're like, well, wait a minute, a lot of them may not be in our favor, especially in Miami or especially in West Palm Beach. We're going to drive, you're going to love this because I've done this before. They're going to drive the filing or do it electronically now and file it in Fort Pierce. We'll take a moment for everybody to go look on the map

to see where Fort Pierce Florida is. It is the northernmost point of the southern district, the Florida district. It's the top, top, top of it. The bottom of it is Key West. The top of it is Fort Pierce. Why Fort Pierce? Because there's a lot of conservative judges up there.

So they think. So they clicked the box for Fort Pierce. I don Pierce? Because there's a lot of conservative judges up there. So they think so they clicked the box for Fort Pierce. Trump, I don't even think Trump has a home anywhere near there. They just, they think they're going to get a better lottery pick. Well, they spun the wheel and they didn't get a judge in Fort Pierce because the southern district is one big mass of judges and whoever's got time on their hands, they got judge middle Brooks. Why is that bad for them? Because he's a Clinton appointee. So Hillary Clinton, who's the defendant in the case, her husband 25 years ago appointed Don Middlebrooks, who was an amazing commercial litigator at a very good firm that I know in town, elevated him to the federal bench when he was like in his,

I think early 40s, he's now pushing senior status. I tried a case in front of him about 20 years ago. Really smart judge. Unimpeachable in terms of ethics, you know, has been sitting in West Palm Beach all this time. He gets the case. Okay, Rico, the defense is ready and loaded for bear because they wanted to pose Trump because now he's a plaintiff. And they want to move to dismiss the case eventually because it's so ludicrous. Trump looks up and says, crap, filing and for pierced didn't work. I got the worst judge for this. So what do they do?

Good, Karen. What do they do next? Yeah, well, now they're trying to file a motion to recuse this judge saying he can't possibly sit in here and hear this case because whether or not he can be impartial, there's also a doctrine of the appearance of impartiality that needs to be upheld. And so that's what they're trying to do. I mean, look, whenever you try to form shop, like the way they did, sometimes it can backfire.

And I always wonder if this happened on purpose because it was so obvious they were form shopping by going up to Fort Pierce that they sort of, I'll volunteer, I'll do it, you know, kind of thing with the judge, but who knows how that works, but go ahead. But I, you know, the, the, the, I did something very similar. I'll be frank with the audience. I don't remember the case exactly, but I remember there was a reason we didn't want it in Miami that the filing. So we went to Fort Pierce and I'm not kidding. I think we got middle Brooks because he sits in

West Palm, but sometimes he goes up and sits in Fort Pierce. They sort of ride the circuit a little bit. But he already ruled. He's already, first of all, I don't know if you read the filing. And I mean, can the Trump organization hire lawyers that can file something that doesn't have typos in it? It was only a five-page motion. And in paragraph 10, they spelled the judges' name wrong. I mean, it's just mind-boggling. Look, it's recusal of a federal judge is very, very rare, right? I mean, have you ever seen it happen? Have you ever had it happen in the case?

I've tried once to have a state court judge down in Florida to qualify, and I got him to qualify. But he had a history of being disqualified by the appellate court. So I felt pretty good about that one, and he did some really bad things in the case. I've never moved to just to qualify or recuse a federal judge. I never had to. Usually federal judges are beyond reproach.

If they suspect that they've got a problem, like they own stock in the company or a daughter clerked or did something with the law firm, they'll disclose it. And then they'll say they'll invite. Okay. You know, I invite a motion to disqualify because you have to do it promptly. And they'll sit back and let the parties do it. I had a case where I decided not to move to recuse. I'm handling a case in Chicago, in Illinois, on behalf of a litigate against a major Catholic university in the Midwest.

Random wheel, I get a judge who graduated from what law school, the law school of the university that I'm suing I Had to make a judgment call to I move to disqualify him or recuse because and we did the research and I did not have the grounds to do this This was not enough the fact that he went to that university Without more and there wasn't more was not enough So I raised the issue at a status conference, but I also closed it right down.

I said, your honor, I understand you went to that university, but we trust your ability. I figured I'd get a little mileage out of brown, brown nose again, brown, and then moving to disqualify him. If they did the research, they would have revealed that just because Don Middlebrook's was appointed 25 years ago by Bill Clinton, every federal judge gets appointed by somebody.

How many times have you and I talked about Trump appointees who handled Trump cases, cases involving Donald Trump and cases involving his policies? They don't get to qualify. We'd like them to, but they don't get disqualified because he happened to be appointed by Donald Trump. We're going to talk next about the Florida mask federal judge. She's a Trump appointee. Yes. It's a, don't you think it's a little different? Like, say, let's say he had pulled a Trump appointee judge. Like, say, it was somebody who he appointed. Do you, you don't think that that judge might recuse himself in a matter where Donald Trump

is the plaintiff? I don't know, I haven't seen it yet. I haven't seen one Trump judge walk away from something that touches on Trump and the Supreme Court certainly doesn't do it. Yeah, true. I just think that when you're the plaintiff though, or the defendant, as opposed to one of your policies or one of your agencies, but when it's said, and I think I liked it, and I think it

applies to what you're asking. He said, judges, federal judges must all transcend politics, and the fact that I was appointed, like every federal judge, is appointed by some president from some party, without more, is not enough to find that there's an appearance of a variety. Now, if there was more, like he'd golfed with the president, he went to wherever with Hillary on something. Hillary appointed him to some board or some charity or the wives or the husbands have a relationship. But the problem is that plus more is missing in that.

And I think it's missing. It's probably missing in the example that you gave, like without more the fact that, you know, that the person was appointed by Trump. I'm not sure that's enough. I mean, I don't think it's enough. I don't think it's enough. And, and the other thing too, I've seen in both state and federal court when there's a motion to, for recusal, for one reason or another, and the judge chooses not to recuse themselves. Sometimes I think they bend over backwards to make sure that they are fair to both sides.

I really do think they make sure to protect the record because now that's an issue. And so in some ways, just even raising the issue protects the record and makes it so that, and if this is judges as good as you say he is, I'm sure he will make sure that he calls balls and strikes and it's fair and just. He's gonna dismiss that rico case. He's gonna do it fairly and justly

and after a lot of thought and powdering. Can we just talk about the fact that this case, I mean, forget the judge issue. Let's just talk about this case. I mean, Rico cases, you know, that stands for the racketeering something, something corruption, you know. Racketeering influence the corrupt organization.

Yes, I mean, it's what prosecutors use to prosecute the mafia, you know, for illegal organizations of, you know, these illegal sort of organizations that have a structure, they have to have a structure, they have to have like someone who's the head and then they have to have like people, you know, who have caracquist regime. Yeah, exactly, but you think of Rico, you think of, you know, you think of, like I said, the mafia is what I, it's certainly what I think of. And the fact that he's bringing a civil Rico case against his opponent, the Democratic Party, James Comey, he even threw in the Peter Stroke and that woman forgot her name. And Debbie Wasserman Schultz. Yeah, I mean, I was like,

it's literally everyone he's ever had a beef with. Yeah, it's a sit list. He's thrown in there and it's a sit list and then it's every single beef, every issue he's had, it's almost like a therapy session, where he started just had to get it all out and get it all off his chest and

and he wants the judge to believe that John Potezza James Comey Hillary Clinton Devy Wasserman Shulz and everybody else were all uh spokes around a wheel of a conspiracy working together to plot the Russian collusion case. Yeah. Yeah. And what's his damage? Well, he said what, $24 million in legal fees to defend against the witch hunt, he says. How about, all right. But you know what?

If we're doing that accounting, A, wasn't damage. He became president. B, how much is he fundraised? Exactly. How much money has he raised? I'm sure he didn't pay a dime of that. I'm sure it was he fundraised? Exactly. How much money has he raised? I'm sure he didn't pay a dime of that. I'm sure it was all this fundraising.

Exactly. Exactly. And he has made multiples of the 24 million using the hoax, using the big lie, using the whatever to raise money. He does it at a whim. He blows his nose. He gets $5 million with it. We can't tweet

anymore. Wherever he types up on a, on a, I almost said a rotary phone. He types up on a typewriter, uh, Popeyes losing it already. I see. Last week, last week, I wandered off without doing the third segment. And now I'm typing on a phone. I don't know what's happening here. Okay. Anyway, let's, let's continue the thread of Trump appointed judges and what they're doing these days and talk about Judge Carl Nichols, who was appointed by Trump in the DC circuit. And as the judge presiding over the Steve Bannon trial, that's going to trial in July. And as Ben and I talked about last year, there was going to be a motion to dismiss at some point filed by Ben and I actually thought it was going to happen and I want to get

your prosecutor view. I thought it was going to happen a lot earlier. I thought he was going to get the indictment. And I think the feds thought it was going to happen a lot earlier because they're arguing waiver. You waited too late. He got indicted a long time ago. That's usually when you move to dismiss an indictment at the beginning, or maybe soon thereafter, not like three months from trial. What is going on here and what did the judge, a Trump appointee, what do you think the judge is gonna rule about dismissing the indictment?

I mean, I have no idea what's going on. I can't possibly guess why they would wait so long. I mean, they waived that, but they also waived any objection to the privileged issues, et cetera, because they had to make those before Congress. But this judge is saying, if you wanted to bring these issues forward, you had to bring these before Congress. And by not bringing these issues before Congress You had to bring these before Congress and by not bringing these

issues before Congress, you've raised them. You've waived them. And so it's not going to succeed here, but I don't know why they waited to do the motion to dismiss. It's very strange. There's a lot of weird things coming out of the ban in camp. I read yesterday that his one of his new lawyers, remember, David Shine or Sean are showing he's the orthodox Jewish lawyer that argued against the impeachment on behalf of Trump. Right. He came out two days ago in the media and said, if I were his lawyer then, I would have made him go in to testify to Congress, avoid contempt, but take the Fifth Amendment.

So he's just publicly declaring that this was all a mistake. Now, what has bad? Look how many people have got in and given so many people have gone in and spoken that he sort of missed the boat. I don't know. Well, and Bannon has now had one big part of his defense ripped away. I don't think we talked about it, but Ben and, Ben and I did. Two weeks ago, Judge Nichols took away a major defense that banan was relying on.

He wanted to rely on what, what we call, advice of counsel, that the reason don't prosecute, me don't convict me. The reason I didn't appear before the committee is because I was given advice, good, bad, or indifferent by lawyers that I followed. And the judge said, you know what? Under a 1962 precedent in DC circuit, that is not a defense to contempt of criminal contempt of Congress. So you don't have that defense.

Now, there's still tussling over some other defenses that they want to bring. But his big problem is he was not in the White House, nor in the executive branch, when all of the information that they're seeking happened. He was already citizen Steve Bannon, podcast host. He wasn't, he wasn't special advisor to the president at the time.

So the fact that he keeps saying, but the president told me he was going to assert a fur, you know, executive privilege. And I read a memo in the department of justice's own manual about people in the white house. Right. This is like the argument Habba is making about a sitting president who can't be pro, you know, who can't be prosecuted by a local prosecutor. Great. When you're the sitting president, Banin is a podcast host at this point and they narrowly tailored that subpoena to only go after things about Jan 6, which is like two years after he left the White House. This is a

dead bang loser. He goes down in waves in July. I think, I don't know if he gets sentenced to the full one year, but he is going to prison. I believe off of this, I don't know. I could be wrong. Maybe at the end, Nichols throws him, you know, saves his butt. And I think this is a jury trial, don't you? Yeah, I think so. I think for sure as a jury trial. What jury in DC is not going to convince the better? Yeah, well, the content is, is, it's, it's, it's not going to be tried for anything other than did you go before, you know, were you served properly? Did you know about it and did you go? Did you not go? And, and so it's a very streamlined straightforward, forward, forward case and the carbon adjusters, prosecutors are making motions

and limiting, you know, these pretrial motions to preclude him from making certain arguments, from introducing certain internal memos. The ones you just said that they're, he's saying he relied on and they're making the necessary motions to say, you know, to say, you can't bring this stuff in. It's not a law. You can't. Let me ask you a question. Let me ask you a question. Prosecutor question. Does he have to take the stand in his own defense in order to win? How, in other words, let me ask you another way. How does he, how does he avoid a conviction without taking the stand? Who's going to put on the evidence? Well, it'll be interesting. So don't forget the prosecutor still has to meet their burden and prove each and every element of contempt of Congress beyond a reasonable doubt. And let's say they put on members of Congress, which I'm sure they'll have

to do, to talk about the fact that they, why they wanted to have him come, that he had material information to provide and that he was served properly, he didn't come, et cetera. And a good defense attorney is going to be able to potentially cross-examine these members of Congress and show their bias and show, et cetera, show kind of all the things that Trump, Trump side of the aisle and ban in the witch hunt and

all of that's going to want to show. And there could be a jury nullification thing happen here the way we saw with Gretchen Whitmer. You know, none of us predicted that that was going to be that kidnapping plot was going to be not guilty, that was kind of ridiculous, but that was I think a jury nullification kind of case. And I think here, you potentially, depending on again, how the witnesses do, if he doesn't testify, that's always a question,

that's always an issue. But that's how he would win without taking a hand. Yeah, let me explain jury nullification. Is that all right? We always like to bring up new lessons for the legal aeifers. So jury nullification is basically when the jury decides on their own that they don't like a case or that they think that a case doesn't meet. It's, we didn't, you didn't meet your burden, but you did, but I don't like your case. So I'm going to, so I don't like, or I don't like the law, you know, I know that you, I know Judger telling me that this is what the law is, but I don't like it. I think here it would be unfair, even though I think that the burden has been met and the elements have been satisfied, it would be unfair here for somebody to be convicted.

And they're not allowed to do that. Jerries are not allowed. This is a bad thing. Jerry notification is not supposed to do that. They're not supposed to do it, but it happens. I mean, it does happen. And so I think that's potentially an issue. I mean, I think they'll prove their case beyond a reasonable doubt.

Yeah. You know, you could always have one person or another who, you could have, don't forget, a jury has to be unanimous, right, to convict someone criminally. And you could always have someone who's a Trump sympathizer who's on that case and who's going to be a no matter what, I'll never convict somebody for this. I think it was a witch hunt, etc. And that's, you know, so in that particular situation, you could have a hung jury, you know, where you have a holdout or two or three, but, you know, you just never know. And of course, if he testifies, yes, he could assert all these defenses and say, give them something to hang

their hat on, but don't forget there's cross examination. And the cross examination of Steve Bannon is something that you'd want to buy tickets to watch that. That's gonna be something. To what, yeah, well, one thing I'd like to do a little research on is I know in federal court, they used to pull the jury pool from the voter ranks. They do it now, usually through the Department of Votering, Department of Motor Vehicle. For the DC Circuit, I assume that's the Department of Motor Vehicle in and around the District

of Columbia. In other words, it's not Virginia, it's not Maryland, it's DC. And that is overwhelmingly a democratic town. You know, that urban center is very democratic. I don't think he's going to get a jury of his peers. Fun fact, the every every state has both federal prosecutors and local prosecutors and the local prosecutors, prosecutors, state court cases and the federal prosecutors, prosecutors, federal crimes. DC is the only jurisdiction where the federal prosecutor actually does both because it's not a

state. They don't have a state prosecutor. So the Department of Justice there, the US, the United States attorney has has basically two different divisions. There's the state court crime division and then there's the federal court division. And anyway, it's just so in some ways and the reason I bring that up is, is, they're used to trying state court, you know, just basically they know their jury pool. In other words, you know, they, they're, they're very aware of their jury pool. So they'll know how to pick a jury. Yeah. Yeah, this is, we could, I could talk with you about that in all night long, but we're going

to move on to, you know, speaking of hopeless cases of, of racists. Let's talk about Marjorie Taylor Green, this podcast's favorite Congressperson in the Northern District of Georgia who decides that she doesn't like the fact that the election board and the Secretary of State and the administrative process is evaluating whether she is qualified or is disabled under the 14th Amendment article three, which is commonly referred to as the insurrectionist disability clothe us coming out of the civil war. A clothe, none of us heard of until recently. None of us heard of. And so she didn't like the fact that there was a petition to have her

remove from the ballot. Now, let me tell everybody, she's on the absentee ballot that's printed, and it's already gone out, or it's about to go out. The primary is in May, in May 24th. So there's a fight now to see if she's gonna get pulled or yanked, penciled off. Now let me just tell everybody, I'm not sure this matters at all because I think that district votes for her nonetheless. Then there's gonna be a fight about whether she gets seated

or not. I'm not, the Democrat is not winning. Now, maybe another Republican has to take her place, but the Democrat is not winning in a district that, that Trump won by 32 points. Okay. So a ham sandwich wearing a red cap would win that seat. Okay. If, if it went to that, so I don't want to make it all excited like we're going to get

that district. We're Democrats are not going to get that district. The question is whether Marjorie, we have to put up with Marjorie Taylor Green and all of her bizarre conducts and un-American conduct for the next two years or not. So she didn't like the fact that the state proceeding was moving along like a locomotive overseen by Brad Raffin's burger with a P who is the Secretary of State, the Trump call to say, hey, can you find me some votes among friends? I don't like that. Things are not going well for our. So she goes to the court of choice for Republicans in trouble federal court. Let me go do a federal injunction and try to stop that proceedings. I don't like

the way it's going for me. And the wheels spins in the clerk's office. And who does she pull on the north district of Georgia? Just Tom Burke. Maybe, Judge Totenburg, who's a Democrat. Oh, I'm sorry, she was appointed by Democrat. She probably is a Democrat. And so, you know, she leaves through all of the case law and all of the things about the 14th Amendment. And she looks at the argument that she makes that she she ripped off from Madison, Cautorn, which is that the 1872 Amnesty Act, which applied to Confederate members of the Confederacy,

was a blanket pass forevermore for all insurrectionists in the future who now get a complete immunity in case they do anything wrong in the future. How could that possibly be fundamental? How did the judge of the cathartic case say that a statute over rules the amendment to the constitution? I mean, there's a hierarchy. We know that the constitution is wrong. Wrong paper scissor. Yes, how did they get that?

And he's, and he is a law, he's a former law professor. He got all tied up in knots with the, the, this language, there was a comma in the wrong place in the 1872 act. So it must be prospective. Even, even if the 1872 act was meant to be prospective, doesn't it still try, doesn't the constitution still trump that law? I still don't understand. It does. You cannot. Yes.

I Congress, a Congress, a session of Congress cannot by law, by a statute, override a constitution. Only a constitutional amendment can override a constitutional amendment. That's what I didn't understand about that particular decision is even if you buy the Aaron Kamma and it's interpreted this way versus that way, even if it doesn't render it invalid because it's trumped by the constitution.

That's what I didn't understand. Here's one for you that Judge Tottenberg pointed out. If the 1872 Amnesty Act is a blanket removal of disability for everyone, that notwithstanding the 14th Amendment of the Constitution, what do you make of the 1898 Amnesty Act? What was that for? Why did you need the 1898 Amnesty Act? If the 1872 Amnesty Act took care of everything. They forgot. They forgot about it when they did it. So the judge in a 73-page decision looked under a preliminary injunction standard, which means there's four prongs that have to be proven by a Marjorie Taylor Greene, one of them being that she has a likelihood of success on the merits that she's

going to win at the trial of this matter on these issues. The judge says, let me see, what is it? First amendment? No, you're not going to win on the first amendment. You're on the ballot. And if we have to take you off the ballot, you ballot, that's not first amendment that you promoted the insurrection. What's your other argument? The 1872 Amnesty Act that was only applicable to Confederate soldiers and leaders? No, that's not applying to you in 2022 and so on and so forth.

Now, this is interesting in sort of the analysis that went forward. The next step now is not, I don't want people to take away from the federal judges ruling, is not the Judge Totenburg as ruled that she's off the ballot. I want to tamp down a little bit the celebration. What she's ruled is she is not going to enjoy or stop or prevent the state proceeding at the administrative law

judge level, state level, from continuing to evaluate whether a Marjorie Taylor green is disabled because it disabled. I don't I mean that in the sense of not being able to be a little elected official because she's an insurrectionist. Now, I have that's on Friday, right? That's on Friday. There's a hit at a state administrative judge. And she has to testify, right? Well, I don't know. Does she? I mean, maybe there's just argument that

proper. That's maybe I have I have something for you and I threw this out of bed. I want to see your reaction. There are 800 people that have been prosecuted or in the course of being prosecuted for Jan 6th. You made a good comment a podcast or so ago about the nomenclature of the word insurrection and how it's taken on a life of its own. Not one, not one of the 800 has been charged with insurrection. Not one. They've been charged with obstruction of a proceeding, which is a 20 year federal crime.

They've been charged with seditious conspiracy, but not one of them, and there is an insurrection law on the books that they could be charged with. Does that matter if none of the people that actually took the torch and storm the castle and tried to kill people and stop the peaceful transfer of power? If they haven't been charged with insurrection, is that a problem for just having the Marjorie

Taylor greens removed from the ballot because they're insurrectionists. I have a related point to your question, which is, Lex doesn't Marjorie Taylor, Green, have a sort of a due process right to be prosecuted and convicted of insurping insurrectionists before she can be removed from the ballot. That's my biggest issue with this entire thing is I understand what you're asking about all the other people and they weren't even charged with that. And that could be for all, for all I know there are elements of that crime that are more complicated and the, then the crimes that these individuals were charged with and it's more straightforward and it's easier to prove and why why why give yourself a headache with 800 cases because you have to prove prove something that's harder that's harder to do and perhaps being and insert you know be charged with the crime of being an insurrectionist that that's harder to prove so so there are many reasons why a prosecutor may or may not charge that but Marjorie Taylor green so so they have a

hearing on Friday where where where she has to testify under oath about her involvement in January 6th and she answers questions, whatever they are. But I just don't understand, doesn't she have to be found guilty or doesn't have to be a finding of some sort of guilt of being of that in order to disqualify her. Yeah, a finding. I did not have guilt because of course, that's the prosecutor criminal standard. This is a civil standard.

So what Ben and I batted around like a badminton was... Is there a civil insurrection charge as well as a criminal, that's my question. No, but the insurrection is not defined in the, it doesn't say crime of insurrection. It says insurrection and rebellion in the 14th Amendment Article three. So yes, there has to be a finding made

on some standard, some evidence standard. And you know, it's gonna be low. It's gonna be preponderance of the evidence, not beyond a reasonable doubt. In front of this administrative law judge, is ALJ. And so they're gonna put out, the people for the whatever, there's a whole group here that's been filing these complaints.

And their lawyers are gonna put on a whole slide show, I'm sure, of her tweets. And I know a little something about her Twitter account having, having sued her successfully on behalf of Midas Touch. So she's going to, they're going to show her tweets, her public statements. I mean, you know, there's no mind, mind, mouth barrier with Marjorie Taylor Green. She just comes viewing out. So there's a lot of stuff they're gonna have to choose.

There's gonna be too much. It's like a fire hose of stuff that she has said that painter to be anti-Republic, anti-The Democracy, and anti-American and an insurrectionist. And they're gonna put up the best stuff. Here's the best 40 things that Marjorie Taylor Green said about Jan 6th, promoting it, fomenting discontent, and painting it. And the judges are going to go, okay, and what's the standard I'm supposed to

use for this? And they're going to say, well, here's the Merriam Wepster definition of it. You're going to see it. And don't let it, not you don't laugh. The, our audience don't laugh because judges often use as do lawyers when they can't figure out what something means. They'll go take the Miriam Webster or the Oxford Dictionary definition of something and argue that it applies.

Look, we're going to talk about the mask ruling by the middle district of Florida judge. At one point, she said, I went to the corpus linguistics to find out the meaning of the word sanitary. You and I call that googling. She googled, she gave it this great term. I have never heard of about searching in databases for usage, common usage of words. So you googled it, all right, judge? I get it. And to say what, what this word meant or didn't mean in the statute, this judge, this administrative law judge, I am sure is going to be hard on the plaintiff and say, what is the standard I am supposed to use to decide whether like you just said, she is an insurrectionist. You're not coming here with judge, we've got

a conviction. Here it is. She's convicted, take her off the ballot. That's easy. This is hard. Yes. So, yeah. I think they're going to help. Yeah, exactly. I don't think she gets booted. I don't either. And I think that I think we're going to have to vote for her or not vote for her. The ballot box is going to have to decide whether Marjorie Taylor Greene is going to be a member of Congress or not. I know that's not going to satisfy. People are going to be upset during tonight's live chat. But, you know, we're not here to blow smoke or sunshine. We're here to tell you the truth as best as we analyze it. Let's move on. We'll do the last one. We'll let's just do let's what you what do we do masks? Because, you know, everybody was all upset about it.

And and boy, the airlines couldn't wait to implement the new rule. The one one pilot for I think Alaska airlines got on the microphone. You imagine this, you're already freaked out being on planes these days to begin with. And the captain gets on and goes, this is your captain. I am about to make the most momentous announcement of my, he actually said this, my entire career. Okay, when I'm sitting there with like my little mini bottle of Scotch or bourbon, I'm out of flight.

I don't want to hear the captain say that. And what he said next. Unless it's on a lotto or something. I'm sharing with all of you. Or we're getting in 20 minutes early. That would be really exciting. But what he said next was, you may now drop your masks. I'm like, really?

Seriously, so here's what happened. A group of concerned citizens and air travelers filed a lawsuit because the Biden administration and their CDC, the Center for Disease Control, extended the mask mandate in light of the new B2 variant, whatever it is, until they got the handle on the science. They said, you know what, we were going to let it expire on April, whatever 14th. Let's go to go, let it go for two more weeks.

In the meantime, this lawsuit's been going on about about the fact that the CDC may have exceeded its powers because every, and I agree with this, every agency is a creature of statute is a creature of legislative history and a creature of what powers have been delegated to it by Congress. I totally agree with the judge on that point. So they run in a court. Judge, the mass mandate is beyond the powers of the CDC. They don't have to, despite their name, centers for disease control. Sorry, they don't have to write to control disease and come up with a

method to stop the spread of the most infectious disease in our lifetime. COVID, okay? And all right. And they use the same case law that they were successful in getting when the CDC had the eviction moratorium. The even the Supreme Court said, you know what? There's a bunch of things you can do, you know, fumigation, pest control, throwing out mattresses, rent eviction is not one of the things the CDC can do.

And I was okay with that because I thought it was a stretch. But prevention of disease by transmission and requiring masks, I did not think this was a problem. So they spin the wheel. We're talking about the wheel a lot tonight. And they get a newbie. They get a federal judge who's 37 years old, who spent less than six months in private practice as a lawyer.

Her entire time, she was her medically sealed from the time she graduated law school. She never saw the light of day. She did one federal clerkship after another federal clerkship until she got to Clarence Thomas at the Supreme Court level. So she never saw the light of day as a practicing lawyer. She never went to court. She never, she never tried a case.

She never second chaired a case. She never handed papers to the person that trying a case, never nothing. But Trump thought, hey, here's an eight, here's an eight year lawyer. We can point to her as a federal judge. So this, this federal judge, Catherine Kimball, my cell, is the judge. She writes a very detailed opinion, which Karen wanted to explain why this federal judge believes it's beyond the CDC's powers to mandate masks in public transportation. So she said this is a long ruling. I think it was

like 60 pages long or so, but basically she turned to the meaning of sanitation because, you know, because basically the federal government in regulating disease can regulate sanitation. And she said the way she defined sanitation was it has to sanitize or clean and wearing a mask does not clean something, which I actually think it does. It actually cleans the air that you're breathing out or breathing in.

But for whatever reason, she doesn't think that that was within the definition of sanitation. And the reason that's relevant is in the rulemaking, you know, that the CDC is allowed to do. That's one of the things that they're allowed to do is things involving sanitation. The other issue that she sort of talked about was, there is a right to travel in the Constitution, the sort of constitutional right to travel. There are limits on how you can restrict people's laws that restrict people's travel. And she said that some people have to travel, whether it's for work or for other reasons.

And that this basically restricts that and violates the Administrator's Procedure Act and violates the law. And that's why she knocked it down. Is the right to travel embedded embedded in the commerce clause? Is that what we're talking about? I think so. Yeah. I only know that this exists because there were times when I was a prosecutor,

when we had sex offenders, for example, and we wanted to ban them from the subway. And because these serial groper's who would rub up against, in New York City, the subways are very, very, very tight. And sometimes you're almost pressed up against someone. Obviously, this is mostly pre-COVID. The idea of someone breathing in your face today, at rush hours is almost incomprehensible.

But for many, many years, you'd be pressed up like Stardines in the subway with people and you had these serial sex offender, groupers, subway groupers who were just beyond disgusting. And you'd have people with multiple, multiple, multiple offenses and convictions. And there came a point where we wanted to ban them from the subway and are the really smart lawyers who advise you on what you cannot, can and cannot do in matters such as this

said, we can't because of the constitutional right to travel. You couldn't restrict their ability to travel and they had a right to do it. So it was just sort of an interesting, I think an interesting point that she made and how she looked at it. I think it's completely wrong. I think it's ridiculous. What I didn't understand about this, but what I didn't understand was she's just one judge in Florida. How does she get to order the entire CDC for the entire United States of America was how how did that work? Yeah, the minute she ruled, nobody appealed, nobody said I'm going to go to another judge, you know, nobody did anything other than I'm not enforcing this. And well, here's what happens. I think federal judges have powers that go beyond their jurisdiction when it comes to

constitutional or statutory analysis, unless and until another federal judge comes up with a counter position or a different ruling, and then that split in the circuit or the split in the law until there's another federal judge that rules somewhere in a different circuit or a different court, that federal ruling is the only federal ruling on the issue and is really has, as you just know, to sort of extensive powers around the 50 states until somebody else, you know, if we got,

let's say next week, a judge in New York said, that's ridiculous, you know, sort of like we're watching with the Marjorie Taylor Green of Madison-Cautor, but until there's a competing decision, that is the decision about a bi-a federal judge. Now, here's my problem. I read the, I read the work. This is an example of reverse engineering. She wanted to get rid of the mass mandate. So she went through trying to find some word, some grammar, some punctuation, buried somewhere anywhere in the statute.

And when she didn't like something or didn't fit her reverse engineering, she threw it out and ignored it. For instance, rather than go back to the legislative history around the statute, which is a proper statutory technique to interpret a statute and it's meaning is to go back to see what the framers, what the sponsors of the bill, what the debate was around the bill. That's all reported in the congressional record. It's right there for her clerks to go find. Rather than do that, she Googled what the word sanitary means. Why would she even have to Google it? Shouldn't the papers, the parties papers, the government here saying that the CDC shouldn't they put the legislative history in their

moving papers and spoon right over the law. But she ignored it. She ignored it. She went to her toolbox. She went to say, what's this one, legislative history? Nope, don't want that one. What's this one? A word in the Miriam Webster dictionary, and then I'll Google, I'll do that. Okay, that's, so, you know, a lot of times as you know, federal judges, even state court

judges, they sometimes lift their entire decision out of the other, some one brief or the other or they just go, no, I'm going to do my own thing. So she ignored legislative history. She ignored plain meaning of the word sanitary and sanitation. Do you know what a surgical mask is technically called? It's called a sanitary face covering. The word sanitary is she said, oh no, see, Sanity, a mast is not sanitary. Now she's a scientist because it captures droplets. And who is it sanitary for? I'm like, are you kidding me with this pseudo-science culture? Yeah, this is absolutely bizarre and wrong ruling, which leads me to believe some other judge tomorrow

or next week is going to rule differently. And then what? What happens? Who controls the TSA? No, but in the meantime, in the meantime. But here's the problem. And this is what I don't understand. Why did the Biden administration just lay down?

Why did they walk away? I don't do some, are they just tired of taking their lumps on masks at the Supreme Court level? Well, they, they want a couple. I look, they've had it like 10 or 12 cases already. They know where the Supreme Court is sitting. If it's, if it's, if it's vaccines, they got a decent shot, depending upon whether there's a military overlay to it. If it's churches, they don't. If it's less, I think they know that masks aren't

long for this world anyway. They were about to let it expire and they extended it a little. But I think they just said enough people have grown mask weary. People are getting their second second booster. I think they just said, you know, let's just, we're done. And I don't think there's any going back. I think people have passed. I agree with you. People have masked fatigue. And I also think that we haven't done a good job

at being consistent, you know, you've got, you've got some people who don't have to wear masks indoors, other people do. And it's caused a lot of fatigue and confusion. I think people are have just had it. Yeah, I totally agree with you. I think the Biden administration has made a political call that they were gonna let it expire anyway,

and they don't wanna make more bad law on their watch. That other presidents, maybe this one, and if he's reelected, have to live with. Every time you go knock on the door of the Supreme Court, you have a chance to make good law that you like, or you can get beaten with both ends of the stick and end up with bad law that you have forever, you know, because, well, I used to say forever because precedent lasted a long time. It doesn't last a long time with the current makeup of the Supreme Court.

They're like, when did we last make that decision four years ago? Let's bring it back up and do it again, because now we've got the numbers. I mean, it's really, it's disheartening and ridiculous. But Karen, we've reached the end of another midweek edition of legal AF. It is my favorite time during the week.

Don't tell Ben. It might have to do with how you dress. I think it's always immaculate and perfect and great, and I enjoy my time with you. Any concluding words or parting words before we sign off for tonight? Not none actually. No concluding words for tonight. I'm going to take a pass, yeah. My only parting words are I like our beginning. I don't we don't need to have that big dramatic beginning that you know Yeah, he likes to wake the dead for the beginning of and that's you know, you know, that's a new thing He's been doing anyway. We didn't originally do that if you go back to older episodes of the pod

You know he that's become a new thing You know, you know, we have to do we put together, somebody has to, somebody who's listening to this who's really good at this, has to put together like the best of bends, intros all from like the beginning and then sort of the crescendo of the shouting at the end and I bet it would be hilarious, absolutely hilarious. All right, we're, I'm somebody out there and I can think of a few people that are good at this. Put together a compilation, best of, Ben, openings and closings for legal AF over time,

and we'll run it. So one of us will run it. It'll be hilarious, because you'll see the buildup, and the fact that he's sort of changed. You'll see the athletic greens sort of, you know, take hold, and now he's got so much more energy, you know. And also, let's be frank, and then we'll end it on this. I'm on, I don't know, episode 60, 60 with Ben, you and I have been doing this like, you know, 14 episodes, 15 episodes. And, and I think we're in, I don't know, I like to think we're improving every time.

I try to. I think we are. I think we are. All right, anyway, we'll let everybody in the live chat tonight. Tell us whether they think we are. And we'll look forward to next week. Shout out to the mightest mighty Nilega layup first.

And the K-Fans. Thank you. So long. Bye. Thanks. So long. Bye.