Legal AF by MeidasTouch - SCOTUS Frisson, RIGHTWING Loss of Reason, & POTUS Hunting Season

Episode Date: October 3, 2021

The top- rated weekly US law and politics podcast -- LegalAF -- produced by Meidas Touch and anchored by MT founder and civil rights lawyer, Ben Meiselas and national trial lawyer and strategist, Michael Popok, is back for another hard-hitting, thought-provoking, but entertaining look in “real time” at this week’s most compelling developments.  On this episode, Ben and Popok focus on the following: 1. InfoWars’ Alex Jones has a default judgment on liability entered against him for failing to provide any documents or proof to support his statements that the Sandy Hook Elementary massacre of 20 children and 6 adults was a “hoax”. 2. A Federal judge appointed by Trump finds that Jan6 insurrectionist sentencing is too harsh and wonders aloud why more BLM protestors weren’t punished harder. 3. The Jan6 Select Committee is ready to flex its muscle of congressional criminal contempt powers to arrest those witnesses like Bannon and insurrectionists who won’t testify. 4. The US Supreme Court opens its new term this Monday (the “First Monday of October”) that runs through April, and we examine the oral argument process, and “cases to watch” this term including about abortion rights, the Second Amendment, campaign finance and religious rights. 5. Updates, Updates, Updates, including this week’s injunction hearing between the DOJ and the State of Texas defeat SB8’s abortion ban/vigilante law, NYAG James and future prosecutions in the Trump Organization investigation, and SCOTUS addressing New York’s vaccine mandate for public school teachers as school reopens on Monday.  Reminder and Programming Note:  All 24 past episodes of Legal AF originally featured on the MeidasTouch podcast can now be found here: https://pod.link/1580828595 Support the show! Go to https://BetterHelp.com/legalaf and try BetterHelp today with a 10% off discount your first month! Affordable, private online therapy with BetterHelp. Anytime, anywhere. Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to Midas Touch Legal AF. If it's Saturday, it is Legal AF live. If it's Sunday, it is Legal AF. And my cell is here with Michael Popak, the Popakian Michael Popak. How are you doing this weekend? I'm doing great. It is a crisp fall day, the beginning of October in New York. And I'm really pleased to be back with you with our listeners and followers. And we got another action packed day of talking about a night and talking about legal issues that are developed over the weekend that our people are anxiously waiting to listen to our analysis concerning.

We had Jill Weinbanks, Pope-Pock, on the Midas Touch Brothers podcast. She is one of the co-hosts of Sister-in-law, another legal podcast. Then when we look at the rankings, we're often kind of neck-and-neck with Sisters-in-law. And I mean, Jill Weinbanks was an incredible interview, Popak. I would tell our listeners, if you haven't heard the Midas Touch podcast, go back and check that interview. You know, when she was a young prosecutor, she was one of the only women in the DOJ. And I think the only woman on the team that was prosecuting the co-conspirators in Watergate and she was given a witness who was President Nixon's secretary to cross-examine.

It was originally just supposed to be a chain of custody witness regarding the Nixon tapes and just to corroborate that these tapes are admissible evidence. And you would literally just call a custodian witness like that and say, are these true and correct copies of the audio? But a week before or two weeks before, it turned out that Nixon had deleted major portions of those tapes. So all of a sudden, a custodian witness, a chain of custody witness, became a key witness, and that became one of the Perry-Bason moment

cross-examinations where Jill Weinbank showed that it was impossible at the story that was being called by Nixon Secretary, that it was inadvertently deleted by where she was positioned, and it couldn't have happened that way. So it was a really cool interview. It was a really cool experience hearing that war story. We like sharing our war stories, but Popeyes, the lesson there to me was,

when you're a lawyer, you really never know what's going to be thrown your way. You may have a chain of custody witness. You may have a certain fax scenario, lots of clients go, what's the plan? I said, well, here's the plan right now, but in law, you have to have fluidity, fluidity is the key word. And from one day to the next based on facts, things may change. And a good lawyer is able to adapt to those changes. Well, yeah, I do. And let me give you some personal examples. I call it, I take it from the military, the fog of war. You and I do a lot of planning to get ready for a trial.

If I'm doing a full day witness at a trial, it may take me, well, it took me a whole year to get to that point of being able to cross examine or direct examine that witness. But just to prepare the outline for that, sometimes it's a yellow pad and I go up to the podium and we do a quick cross, but a lot of times it's methodically prepared, but then you have to see what the witness is going to do in response. Even if you've taken a deposition of that witness, they may deviate from that testimony because they didn't like it or they don't remember it, and you have to sort of follow that along, ready to either impeach the witness because they've so deviated under oath from

their prior testimony that you now have the ability to impeach them. And we can talk about that at another time or just leading them through their examination. But the way I tell clients, like you do, when I'm either evaluating a case or giving them a status update is, don't fall in love with any witness. Either for us or against us. I have thought a lot about how great a witness is going to be for us, an expert that we retained and prepared, a fact witness that is supposedly friendly to us. And some of those witnesses have been the worst witnesses I've ever seen a trial. Or in deposition.

And other witnesses that I had white knuckles about, oh boy, this is going to be, this is going to be a bumpy ride on this witness because of something they said or an angle that I used during the deposition, I was able to make that witness into the best thing I've ever seen. So witnesses, you think are going to be great, sometimes crap out. And witnesses that you are worried about, sometimes are the best witnesses in the case. And lawyers like you and I that practice this practice for a living have to be ready for that. And literally on the balls of our feet, ready to adjust depending upon how that witness does under cross or direct examination. Tell you who I think are the best witnesses for me, Popak, the best witnesses, I think

are children, because children are honest. They answer questions, yes or no. They listen to the questions. If they don't understand the question, they say, I don't understand the question, and you truly get the truth when you're speaking to kids. The worst witnesses are oftentimes

highly educated professionals who want to keep on talking and talking and talking and show how smart they are during a deposition and an examination. And even if they're 100% right on what they're saying, they're just speaking word salad. And when I have someone like that on the opposite end, when I'm cross

examine, I just sit back. I don't know what you do, Pope, I just sit back and listen. And I go, huh, and I just let them believe they're so smart and intelligent. I go, huh, okay, and tell me more, tell me more. Because the question just may have been, where were you on December 1, 2020? And if they want to provide all that additional information, they may create additional data that I was unaware of. And you as a lawyer, and Popoac, this is a skill that you're great at, that I think I'm good at, that other lawyers, that are good cross-examiners,

can do is we listen, we listen, and then we have our documents memorized pretty much because you're going through it. And then you go through all those things and you walk the witness through the story and then you're ready to show them why they're wrong and why they're lying. And so there's just opportunities where clients or opponents give you gifts and you have to take those gifts where they lead you and that could be for very good result in your case. The biggest gift, Pope-Pak, of all, is when the client, well, the other client, the person on the other side of the case, not your client, when the defendant or the plaintiff, depending on which side decides, they're not going to even participate in the legal process.

And so the case gets either dismissed for failure to prosecute if there's a plaintiff who's not pursuing their case, or on the defense side, a default judgment being entered, or their answer being stricken, if they're not participating in the legal process and not complying with legal orders.

We have an example of this this week. There was a story how Alex Jones, a court found that Alex Jones was liable to a number of the families who had a fat who lost children during the Sandy Hook school shooting massacre Alex Jones defamed these families called the shooting's false flags, threw up a bunch of conspiracy, just horrible, horrible conspiracy lies that said that these that basically Sandy Hook didn't happen, can't even imagine anything more traumatic as a parent one going through the biggest tragedy in the world, losing your children

to a school shooting, losing your children at all, and then having a fucking idiot like Alex Jones go out and then say that that was somehow, like theater, that didn't really happen, and none of that is real. So the families sued Alex Jones in Texas, and Alex Jones simply did not respond to the discovery, he didn't respond to process,

he engaged in so many discovery abuses, like literally just not responding at all. And you would think Popok for a blowhard like that, you respond, right? You prove your case, prove that it's a false flag if you're gonna have the audacity to go after victims, families like that. Did nothing, did nothing.

And that's kind of a theme. I think we have here Popeyes with a lot of these GQ peers. They want to say what they want to say publicly so they could fundraise. And then when they're in a court, they're chicken shit. Right. You had Sydney Powell who claimed it was all her opinion. And it wasn't everything she said that about the big lie of the election was really just her opinion. And you got Alex Jones of Info Wars, you know, taking the disgusting position that him using the hoax attack on 26 people who died,

really died in Sandy Hook Elementary School that day. It was his opinion that it was a hoax. I mean, that is so despicable and an assault and an affront to the First Amendment, that he has his opportunity in the Court of Law in Texas to defend himself. His argument is anything I say on my podcast or anywhere else is First Amendment protected. And that's just not a proper recitation of the contours of the First Amendment. Our followers and listeners after, if you can believe it, Ben, we're on Episode 25, Episode 25 of listening to legal AF, know that, they know that. They know the First Amendment doesn't protect those kind of statements and

those aren't opinions, especially ones that aren't fact-based. In the case itself, the other side said, all right, Mr. Jones, you say it was a hoax. You say you have facts to support it. You said you've had facts to support it on your podcast. Produce the documents. Produce the documents that support your belief. What did you read that made you believe it was a hoax? What research did you do? What documents did you read that made you believe it was a hoax? What research did you do?

What documents did you look at? And he produced all of nothing for our viewers tonight. That's a zero for our listeners, a big fat goose egg. He didn't have any. He didn't participate in the discovery process, which is his obligation as a defendant in a lawsuit. That's our legal process. And so the judge, having warned him,

having ordered him to produce a document, having found him in contempt, and having had him violate all of those orders, finally said, fine, unliability, you're now in default. We don't need a trial on liability by your actions, and by your flouting the orders of the court and the judicial process, you have now waved your right to have to have a defense on liability. We will now go to a jury trial on damages and there'll be a jury trial on damages. Now all of that does not mean that Alex Jones doesn't have the right to appeal this default ruling. And so his lawyer took to a podium or took to a press conference and said, this is an example of the first amendment being crucified. I mean, look at the language that Info Wars is lawyer uses. Crucifixion, which has religious connotations, the combined

with the first amendment to support somebody saying that 26 people, including 20 children dying as a hoax. I mean, this is how far we have gotten from morality in our society among the right-wing conspiracy theorists. So here's what's gonna happen. He's gonna lose a jury's gonna find against him and award a lot of money to the families of Sandy Hook against Alex Jones.

And they're gonna own InfoWorse. InfoWorse, whatever assets it has, I don't know what it has, whatever it has is going to end up going to these families. And I don't think he wins an ultimate appeal. Do you, Ben? No, he's not going to win an ultimate appeal. And here's the thing. There, the first amendment argument that Alex Jones is making that he has a first amendment

right to defame victims of Sandy Hook. There's no First Amendment right for that. There's a body of law and defamation. That said, Alex Jones could have participated in the legal process. He could have produced what evidence that he thought he had that supports his First Amendment speech. And then he could have filed motions like a motion to dismiss, or a summary judgment motion, or presented evidence at trial showing that he had a first

amendment right. No one was preventing him from making those arguments. The only person who prevented him from making those arguments was himself by not making those arguments and then going to their refuge of their conspiracy theory forechan, H&N kind of message board things that they go to and then spread the conspiracy further that their First Amendment rights are being taken away when they had every ample opportunity

to present those facts as absurd as they are. They had the opportunity to prevent those facts in a court of law. The thing that I find always so maddening about the right wing of that party of the GQP is they pick and choose among the Constitution as if there's only the amendments that they care about and nothing else is present in the document or in constitutional analysis or legal precedent. And so they've constantly referred to second amendment rights and our first amendment. And they ignore every other aspect of the Constitution, the separation of church and state

right to assembly, all the other things that you and I get really hot and bothered about to protect, they ignore. And you have an obligation in this country, if you were a plaintiff or a defendant or a party, to participate in our legal process. And if you don't, it's at your peril, it is at the orders of judges.

It could be criminal contempt at the very highest level. And we're going to talk about criminal contempt and the powers of Congress when witnesses don't participate in a process. But just to make it clear for anybody that stumbles upon our podcast by accident, if you are sued or you're suing or you're a party or a witness, you have to participate in that process. And if you don't, you could be subject to civil and criminal exposure. Think about

a popact, the GQP. It's very similar to religious extremism and how they interpret religious texts religious texts and find three words and then read them out of context to support some of the most extreme hateful acts on fellow humans when in fact the totality of what's being encouraged is peace and love and other things and they pull peace and love and other things. And they pull three words over here, three words over there from the Constitution, from various laws, to create this fabrication that ultimately is to impose their kind of Taliban-style vision of the United States. And look, elections have consequences. Elections have consequences because right now,

one of the things Biden's been doing a great job at, I think he's done a good job at a lot of things, but here I would give him an A plus is appointing judges, federal judges, diverse federal judges, in district courts and courts of appeal throughout the United States. And we go back to Trump appointees, just look at what happened this week. There was a, this week, a judge who was appointed

by Donald Trump, a judge named Trevor McFadden. Right. The prosecutors recommended a fairly, in my view, lenient sentence on some insurrectionists who had pled guilty. I think it was too loyal. It was like the prosecutors recommended two months of home confinement for some of these insurrectionists. Like detention in high school. Like what we've done during COVID. I mean, like we've all been under hope. Just literally do the same thing that you did during COVID, except the one day you decided to lead an insurrection against the United States.

So frankly, the prosecution provided no real significant penalty. And we've talked about on prior legal AFs that lots of federal judges were critical of the prosecutors for doing stuff like this recommending two months of home confinement. I'm critical of that. If you were in its erectionist, two months home confinement, that's like sign me up. You're doing my own confinement. Are you kidding? That's like a reward. Right. If they told right, right on that note, if they had told those people that were gathering in the park at the rally for Trump and they've done all the planning to lead into this, that we're here's what we're going to do. We're going to storm the Capitol. We're going to use violent attack.

We're going to attack Capitol police and maybe kill them along the way. We're going to breach the doors of our democracy and we're going to look for an anti-policy and Mike Pence and others. You got them. Kill them. And at the end, be ready. You might get two months home confinement. People will be like, where's the t-shirt?

Where do I sign? Where's the merch? I'm in. It's really absurd. But here, United States District Court judge Trevor McFadden questioned why federal prosecutors should have brought more cases against those accused in the 2020 summertime protests. That was what his concern was.

And this federal judge said, I'm only going to give these insurrectionists probation because I think that the two months of home confinient was too harsh. What you should have done prosecutors was go after BLM. This festers into their whole thing that Trump says, where were you with Antifa? Where were you with BLM? Okay, let's be clear. None of them created insurrections and tried to kill and tried to storm the capital. But even more, even more poignant of a point is he's wrong. The judge cited statistics that were incorrect.

In the over the summertime protests, there were over 300 prosecutions of BLM and other protesters and antifa or whatever they were, including some that received very, very, very harsh sentences. Contrast that with the 600 so far that have been charged, which wasn't hard because they're all in one area with video cameras. 600 that have been charged and all of us have commented on how so far how lenient the sentences have been, including the chief judge of the federal circuit that's responsible for for sentencing these people. So this judge is beyond an outlier. All I had to do when you and I started preparing for tonight, all I had to do was look up his background. Although on paper, it looked pretty good. It was like, well, he was a US attorney or assistant, US attorney. He was in the Department of Justice, you know, all under Trump.

Then I saw he was a federalist, under the federalist society. And he's a member of a church that has, you know, problems with same sex marriage and union. I'm thinking, okay, I know where this is going. So, you know, he's decided to be the lone voice in the wilderness that somehow the Jan 6th insurrectionists are being treated too harshly. No one believes that. No thinking person believes that. And that's why there is such a crisis right now in this country. We're going to talk about the Supreme Court in its new term that opens on Monday.

The Supreme Court, for instance, one of the co-equal branches of government just had its lowest approval ratings among the public in the history of the Gallup poll. People do not trust institutions like the federal court system, like the Supreme Court because of decisions and rulings like this one. And just to your point, as I thought it was a really great one, I don't want to leave it. Biden has appointed over 65 justices to the federal bench since he's been in office in a year. It's a pretty good number. I think up to 65 or 70% of that are women and people of color. Those numbers are remarkable. Trump did the opposite. It was all old white guys. Well, I was saying, oh, white guys like you and I, oh, white guys like me, who were appointed to the exclusion of every other member of equity or diversity. I would say we're the only part that you're wrong there, Popeye is it was young white guys.

Not old white guys. Good point. I was guys like you. And so this judge Trevor McFadden, for example, he graduated law school in 2006. I'm dating myself a little bit because that does mean he's been a lawyer for 15 years. I was saying I graduated law school in 2010 and I've been a lawyer now for 11 years. But I mean, he could have been, he was one year removed from being a three L, which is what

we call a third year when I was a first year. So he's, he's a peer of mine. And that's a very good point because these are to remind our listeners and followers. Federal bench is a lifetime appointment. They take senior status at a certain point. They sort of get pressured at around 70 to go come in less. And at the, well, let me rephrase, at the federal bench below the Supreme Court, it's around 70, you got to take senior status on the Supreme Court. It's lifetime appointment. So the younger

you put the judges on in their 40s, up to 50, the longer impact a, a, a president has on the face of the judiciary. That's why it's so scary. You know, they don't want 60 year olds. Ruth Bader Ginsburg would never be considered today. She was, she was on the very old side. At least she was pushing 60, which isn't old to anybody on this podcast, but she was, she's too old for today to be considered for a federal position because the, the presidents want to impact the judiciary, not just today, but for generation after generation. And that's why back to your point, elections matter because it's the direct link to the

judiciary. It's one of the frustrating things about being a lawyer too, where you feel like Sisyphus sometimes and sometimes your case feels like Sisyphean tasks because imagine me you polpock getting a case where we're representing a victim of a police shooting. And for whatever reason we have to file the case in an area where this judge Trevor McFadden

sets and presides. And we get assigned, we talked about in past legal AAPS, the assignments, there's gotta be jurisdiction in a location, you have to file it in the right venue, but assuming this incident happened where Trevor McFadden is a judge, assuming that, and it's in the District of Columbia, assuming there's venue there, and we have a case in front of him.

Who listening and who watching thinks on a police case where we represent a victim that Trevor McFadden is going to rule in our favor, or that we're going to have a very uphill battle in a case like that. And you can think about a lot of cases where there may be a corporate defendant, an employment case, a judge who's willing to look at the insurrectionists and say, two months home confinement is too harsh. How do you think they feel about employee rights? How do you think they feel about unions? How do you think they feel about victims of sexual harassment and sexual assault?

Think through those things because you may be the greatest lawyer in the world. I'll tell you what, you put that case in front of Trevor McFadden. Good luck with that. And you could be the greatest arguments. It's so hard sometimes. You know, in Popoq, we've been sharing a lot of personal stories here on this podcast. It's become very personal, but it's very hard sometimes where you put your heart and soul into a case as a lawyer, you know, representing someone who's clearly been wronged. And you do your best,

and you get assigned a bad judge, and you have to go back and you have to tell the client, despite great evidence, this judge has rulings, for example, that not all sexual assaults have gender components into it. The fuck? How would not all sexual assaults have a gender component? You know, you get rulings like that. It sounds very familiar, by the way. It does. And then you think to yourself and you go, what in the world, you know, and then you have to have a difficult conversation with the client anyway. And, and, and, and stay on that point. I think it's a good one. And it's an interesting one to our, to our followers and listeners who sort of,

as you and I joke, sort of make a meal out of the things that you and I talk about. You know, and the federal judges don't just, even when they retire, or they step off the bench, they don't go away quietly into the night. They end up reappearing as mediators and worse arbitrators in arbitration matters where, you know, maybe even written into the contract on the arbitration right, it says, and there will be a federal judge or an ex-federal judge as our arbitrator, which is like private justice where you and I and our clients have to pay somebody, in this case, an ex-federal judge to make a ruling in a case or an ex-state judge. And so they get the impromotor and the credential of having been a federal or state judge, probably elected, sometimes appointed.

And then they kind of have a life in the law shaping and shaping results and impacting people's lives. And they might have been a terrible federal judge, but they may end up being my arbitrator in a case. And now they're just a terrible arbitrator as well. And we got to look at our clients and say, we have a great case. We have a terrible jurist who's going to decide this great case, which lowers our expectations of our ability to obtain justice. So we head into October, we head into the new term for the Supreme Court. Popoq before I want to talk through our listeners, those who are watching this about this coming term for the United States Supreme Court.

Before we do that though, we have some updates. We've got some updates, updates, updates for the listeners and viewers of the Midas Touch podcast. The first update, and I want to go through these quickly, Popok, to give you enough time to really talk through some of the Supreme Court cases, January 6th committee into the insurrection. They are seeking testimony from insurrectionists and those who pled guilty, who are apparently are either getting home confinement or probation after what we're hearing there, but they're seeking testimony there from the insurrectionists. A lot of lawyers for the insurrectionists said that they've gotten

subpoenas and requests for that testimony, another update about January 6th. We talked about how the January 6th committee has sent letters and requests to the National Archives and other executive branch agencies regarding Trump's role in involvement in the January 6th insurrection. It's been reported that Donald Trump plans to assert executive privilege and to file a lawsuit if indeed Joe Biden produces those records and agrees to produce those records. Which he will. Which yeah, Joe Biden. There's about a 60 day process where Joe Biden can decide whether he will produce these records regarding January 6th. I think it'll take him about one day to do it and he'll turn it over. We already know from Merrick Garland that Merrick Garland has stated that

it's the position of the Department of Justice and all those things that happen on January 6th do not involve executive privilege. We've talked about that on past episodes of Midas Touch Podcasts. And we compared that to other areas where Merrick Garland and the DOJ, to I think the chagrin of a lot of Midas Touch listeners.

And watchers said that the Lafayette square protest where Trump was there and the E. Jean Carroll, the DOJ was taking the position that those were things that were in the course and scope of executive privilege because one happened at a press conference for the president, the other happened in his role as executive as commander in chief and executive leaving the White House grounds.

That frustrated a lot of people. But on January 6th, they said every aspect of January 6th is outside the course in scope. These are political in nature and in insurrection. And that's not what presidents are supposed to do. Popo, any other thoughts about the January 6th updates? Yeah, I think there's a lot, I think there's a lot to update them on it. I think the committee now that is led by Betty Thompson and Liz Cheney are going into overdrive on getting witnesses to cooperate and give testimony. And they've, so first they're starting to subpoena and ask for testimony from insurrectionists who have pled guilty. They're 60 of those, and ask their lawyers

to make them available to provide testimony to the committee. They've subpoenaed and are looking for the testimony from the very innermost sanctum of Trump's White House, including his chiefs, his ex-chief of staff, Mark Meadows, and Steve Bannon, and others, there's at least four of them. And so the question is, if these people don't respond to Congress, what do they do about it? Well, in the past, they didn't do much, but they have tremendous powers that you and I have outlined in prior legal A.F.s of contempt, civil contempt, referral to the Department of

Justice for Criminal Prosecution. And since a 1927 Supreme Court case, as we lead into the Supreme Court analysis today, of McGrain versus Dowerty, which the Supreme Court established that Congress has the power of criminal contempt and to jail people for violating orders of Congress under their inherent, what's called inherent contempt authority. And while past Congresses didn't seem to have the brass ones to exercise those inherent authorities, and they've also been referred to as dormant, they've never been used, maybe since the 1920s, I think this committee and this Congress with Nancy Pelosi at the

top, with Benny Thompson, with Liz Cheney is not going to hesitate. They're being guided as our followers and listeners probably know by Jamie Raskin, who's a member of the nine person, Jen six committee, is a constitutional scholar in his own right and constitutional lawyer and does that for a living and he's guiding this committee on issuing not just pieces of paper that can be ignored, but subpoenas and citations of contempt that lead to arrest by the sergeant of arms of Congress. And so sit back, get the popcorn, legal AF followers, because this, this investigation has teeth, and this investigation has legs.

It's going to, it's not going to be concluded. A lot of court watchers or Congress watchers believe until a year from this January, January 2023 is when the Jan 6th committee is probably going to issue its report, because that's, that's how long it's funding is for. So they fear that if we lose the midterms coming up and they don't have the majority, they won't get a renewed budget. So they are rushing. It sounds like it sounds like they're not rushing, but they are rushing to complete this complicated investigation within the next 14 or 15 months. But you and I, I guarantee you're gonna be reporting over the next six months or a year about,

what does it mean when they just issued as criminal citation? What does it mean that they just sent the sergeant of arms to knock on somebody's door to arrest them? This is gonna be historically fascinating for you and I to talk about our listeners to follow. We will keep our listeners updated, other update, Pope Pock, that in federal district court in Texas.

We talked on our last podcast about the case before Judge Pittman. He sits in district court in the Austin area. You made the great analogy that Austin is though. I forget what you said. If it was the soho of Texas, there's the Greenwich Village of Texas. Greenwich Village of Texas, lots of people like that analogy, but Austin based US district court judge Robert Pittman held about a three hour oral argument following the DOJ lawsuit against the state of Texas for what we clearly believe Popok to be a highly disgusting and unconstitutional law, the bounty hunter law, the anti-women and

childbearing personal law that turns neighbors into vigilantes to sue privately and recover $10,000 for ratting out someone who's had an abortion six weeks after. Popo, what's going on here? Yeah. Yeah. This is really getting down to hand-to-hand combat here between the Department of Justice and the State of Texas. They filed the lawsuit, the Department of Justice did to have the SB 8 law declared unconstitutional in a violation of the supremacy clause of the US Constitution on September 9. We're just here on the, you know, a couple of days into October and we're already before a federal judge, this judge pitman, on a full briefing schedule, on an injunction to enjoy the SBA as being

unconstitutional. And let me just, let me just repeat some of the language that the Deputy Attorney General for the Department of Justice, arguing the case used both in briefing and into three hour or all argument. He said that the SBA is an unprecedented, unprecedented scheme of vigilante justice that imperils the supremacy of the US Constitution and employs, I found this fascinating because I've never used this phrase in a brief, but I will now, employs turrets. So those are those military items where you hide guns and other weaponry behind walls or you know almost what like what cannons would be hidden behind, that there's turrets in this statute that are hidden and unpredictable and unconstitutional. And that this is the argument

that they're making to get around what we think is this too smart by half creative statutory scheme where no state actor expressly is involved with the implementation of the abortion ban. So therefore, who do you enjoy, Judge? You know, Texas is really involved. It's just, it's just local people. Well, the Department of Justice has said that the state has effectively deputized those individual people, those private citizens, and made them agents of the state. And if they're operating as agents of the state, then they can be enjoined. They can have an injunction filed against them. So look, here's my handicapping of it.

I think that the injunction is going to be issued by Judge Pittman. I think, and I want to hear your opinion, I think he's going to enjoy courts, state courts and federal courts, while certainly state courts, from entertaining any lawsuits that are filed under this illegal and unconstitutional bounty law. And I think he's going to enjoy any person

from acting as a state actor to enforce SB 8 through the vigilante bounty system. What do you think? I think so. I think it creates incongruity between federal law and constitutional protections espoused there and by turning individuals into state actors that violate the Constitution through their through their acts. I tend to agree with you, Popoq, that I think we will see an injunction coming. We're call. He denied

he being Judge Pittman denied the preliminary injunction, which seemed concerning, but he wanted the issues to be fully briefed. The issues were fully briefed, and this was the oral argument that happened and we had told our might is touch, legal AF listeners that would be taking place beginning of October, and indeed it did. Final quick update, Popack on the litusia James, Tish James, Attorney General of New York, her criminal investigation in the New York AG office,

rather criminal investigation and civil investigation into the Trump organization, its agents and affiliates as well, Donald Trump, Trump Jr. Shouldn't surprise us. This is the theme that we talked about at the beginning of the podcast that the GQP likes to come up with all of these public excuses, but when it comes down to actually

process and participating as in the legal process where they can put up or shut up. They don't turn over documents. They don't participate in discovery and they delay delay delay, but their time of reckoning ultimately comes and it looks for the like the Trump organization here. It is coming. The court said that has basically found that the Trump organization has not been participating as it was required

to do. And if they don't start turning over the documents that are requested, a third party, e-discovery firm would be hired, that would then go through all of these records. Usually you would use like key terms and search terms to try to pull these emails and records. My own guest, Popo, can I hate to be a cynic here, but with Trump, it probably is. Accurate that sure, a lot of the electronic documents they've purged and have thrown out. And I think, you know, that's probably what they're buying time for. But for Trump, it's all going to be a certain executive privilege trying to just delay, delay, delay, even though there's probably no basis here being the Trump organization,

just asserting every privilege, claim, bullshit thing to basically. And here's what Trump's going to do. He's going to just dump us on his kids and just try to stretch this out, you know, through the rest of his, the rest of his totally dies, totally. Well, let me, let me give our followers and listeners on legal AF a little bit of hope. Sometimes when we give updates, I, I don't want don't want the takeaway or I know you don't either or the read to be, oh, this is hopeless. The reason you and I do this is because we want to empower our listeners and followers with factual analysis and information. So they understand what's going on in their own lives. And if they need to, they can debate it with others

on the street and help us protect democracy. That's why we do this. The good news is, in terms of the good people wearing the white hat in our society, a New York Attorney General James has a tremendously good track record of beating Donald Trump. Her office beat Donald Trump

and the BS bullshit Trump charities were all shut down by the state of New York under Attorney General James. And now she's turned for the last year and a half. She's turned her attention and trained her fire on the Trump organization. And already we have, you know, the Weiselberg father and son being indicted, Matt Kalamari about to be indicted. He's being asked to cooperate first. And if he doesn't, he will be indicted. And she just gave a speech earlier in the week here in New York. It was covered here in New York. I'm not sure how much it was naturally. Suddenly bring it to our followers and

listeners attention. She was not coy at all during the speech. She talked about where she is in her career, the takedown of Andrew Cuomo and her comments about him personally, about him failing to take responsibility for the things that they alleged and the investigative that he did. But then she turned to the Trump organization and she said, and I'm not kidding, this is how she put it. There are, you know, get ready. We're not done. You know, stay tuned. There are more prosecutions and indictments coming. So she is not done.

I know everyone's like hurry up, hurry up and died and died and died. But in order to have a case that that with stands, all of the pressure testing of a lawsuit and a judge and motion practice by the other side, you got to make it as airtight as possible. You got to get every I dot on every T cross and every document you can obtain. And like you said, giving Trump more time to participate in the legal process is usually a good thing for the prosecution because the more time he's given, the more rope he's given, the more he's going to screw up. If he's doing the things that you mentioned, Ben, if he is what we call spoliating evidence, he's destroying evidence, that's going to be found out.

The next thing attorney general James is going to do is ask for the hard drives and the physical phones like they did with Rudy Giuliani and the iPads, they're going to turn it over to a forensic expert who's going to get into the metadata, the electronic, you know, data and fingerprints that exist on every document. And this expert's going to be able to tell you if the document was altered when it was altered, if it was erased, when it was erased. So, you know, I hope we try, I hope Trump tries it because that will just give more evidence. That'll be a gift to the prosecution. So I think the prosecution also knows that Trump does not operate in a moral universe or an appropriate universe and often makes really weird choices. And they like to give him the space to do that because prosecutors eat that shit up and we'll use

it in their prosecution. Prosecutors eat that shit up. That is. Merge. Eat that shit up. Popokian. That I rarely curse on this podcast, but the one time I do you pointed out, well, I think I'm rubbing off on you, Pope.

I don't have the yellow card. So I will pull up the yellow card and you should celebrate my cursing. I will. That's your own. I don't have a yellow card. I will celebrate the cursing. I will reward. I will reward that cursing.

Popak, have you heard about better help? I have. You've heard about better help. And I have heard about it because they've been a tremendous sponsor for us. No, better helps been a great sponsor for us. And look, being a lawyer is very stressful. You know, I think it's important that lawyers get exercised, that whether you're a lawyer or not a lawyer,

but I think I could speak from a lawyer, you gotta get to exercise, you gotta take some breaks, but I think that in all of the stress that people go through today, having a mental health break is important and focusing on your mental health is important. This podcast is sponsored by BetterHelp. If there is something

interfering with your happiness or is preventing you from achieving your goals, Better Help will assess your needs and match you with your own license professional therapist. Isn't that right? Popeye. Yeah, I it is. And I'll tell you back to the mental health issue. I was walking around a home improvement store this morning. I know you always talk about Pope-Pak on errands. And one of the things I thought about is the impact of COVID hasn't just been on the logistical supply chain of the world.

It's been on the logistics of people and individuals and an impact on depression and emotional health and spiritual health. And it's just, I don't know what made me dawn to think about that. I knew we were going to have the podcast today. But certainly it's something that mental health and therapists who are connected to you is something that's really, really important. So look, from a better help, you can start communicating with a therapist

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That's betterhelp.com slash legal AF. Popak last segment of the show. I want to talk about the Supreme Court's upcoming term. Give us a bit of a summary, PoPock, about what is going on here. What does it mean that we're in the next term? And at the highest level, PoPock, what cases should we be looking at right now as we head into this term?

Yeah, when we launched Legal AF, we were just in the throes of the beginning of what you and I referred to as Supreme Court season. And now we're at the point where we can really give a timeline in an interval and a little bit of a 10,000 foot view of the Supreme Court season. So that as you and I every week update with results of oral arguments and results of decisions, there's some sort of framework that are legal AF listeners and followers and students, if you will, can hang each piece of information on.

So the Supreme Court term starts the first October, the first Monday in October, which is this Monday. There's some conferences that the Supreme Court just says have all nine of them prior to that to finalize what cases they're going to take for the term and what cases they're going to hear an oral argument for the term. They do about 70 to 80 oral arguments between October and April. So October of 2021 to April of 2022, they'll do, let's say, about 80 oral arguments and they'll issue decisions throughout the year. And those decisions, by the way, both the oral arguments and the decisions can be found for those that want to do additional homework and research for extra credit at SupremeCourt.gov.

If you go on SupremeCourt.gov, you will be able to find at the end of every week a transcript of the oral arguments that happened and you'll be able to find as decisions are issued, that's where you're going to find them. So, what did we have to start this time? Well, the first thing they had to get around to was swearing in, again, Amy Cody Barrett at some big investiture ceremony. So they did that already. Apparently Kavanaugh had COVID and couldn't participate in the investiture. So he's not going to be there either. So the oral arguments, which are before the full nine person Supreme Court

will be for the first time in two years, live and in person, not by Zoom. And that's gonna start with the first hearing on Monday. They have caucuses related to the oral argument. They have clerks that are assigned to each Supreme Court justice. We'll talk at another podcast about how you become a Supreme Court clerk.

I know some of our followers and listeners are interested in that, but the clerks do a lot of heavy lifting as it relates to each case and getting getting each member of the Supreme Court prepared for oral argument and ultimately for testimony. The interesting thing leading into this Supreme Court season is how much members of the right wing of the party have spent this summer trying trying to defend the institution of the Supreme Court and their own decision. So you had Amy Coney Barrett giving a speech at the McConnell Center. You had just this week Samuel Alito at the University of Notre Dame, which was Amy Coney Barrett's home, home court when she was on the faculty of the law school, giving a speech, and you had Thomas giving a speech.

And all of them were trying to say, Oh, don't blame the institution of the Supreme Court. We know what we're doing. We don't really operate a shadow docket, you know, have faith in us and the media should back off and stop trying to intimidate us. That was Alito's words from yesterday. Kind of bad, right? I mean, Supreme Court justices do give speeches. Remember when I went to Georgetown law,

we had Ruth Bader Ginsburg would come in and speak. You know, lots of Supreme Court justices would speak. But usually it is on broader kind of constitutional principles and they try to avoid really talking about specific cases and criticisms and not looking defensive. And here you have a lot of these justices out there. And the ultimate irony is that they are proving the point that they are trying to disprove by coming out and sounding so defensive and sounding so political and sounding so impartial. Sounding so not impartial. I found it fascinating, right to your point, because if you went to a really great law school,

like you and I did, you had the opportunity to rub elbows with Supreme Court Justices. You went to school right in Washington, DC. I went to Duke Law and it was only a three hour drive from DC. So we had a lot of Supreme Court Justices come down to judge move court competitions and give speeches. We had a whole bunch of people

that I was able to have interaction with, but I've never seen in my review of the court. I've never seen Supreme Court just as talk about matters that will be before them. Obviously, Alito took time to say, we didn't overturn Roe versus Wade when we ruled on an emergency application to allow SBA in Texas to go forward, we did nothing of the sort. In fact, we said we didn't do that, even though Sautomierre in her dissent said, you're basically just overturned Roe v Wade

and you signaled that you will. So I've never seen them talk about so defensively or at all, about cases that are gonna be coming up before them. And it is obvious that they believe that the institution of their co-equal branch is taking a hit in the media and is lowering their esteem and the public eye. And you know what, they're, well, they're 100% right. We talked earlier in the podcast tonight about the Gallup poll. It is, they are in the bottom that they're on the drags of American society's beliefs about the Supreme Court and its contributions to America.

People don't trust the court right now and for good reason. So for them to say, oh, trust us, believe in us, you'll see what we'll do this coming term. I found fascinating just into the mentality the psychosis the psychology of Supreme Court Justices, you know, who was silent over the summer though? And I thought that spoke volumes was Chief Justice Roberts. He didn't once defend the court in any way. What would you make of that?

I think that that though is his style in the sense that the way the Supreme Court maintained its legitimacy and the way Chief Justice's historically try to preserve the independence was not by going out there and waiting into political debates, but by following precedent and by letting the action speak for itself. And I think that behind the scenes, he's very disenchanted by what these Trump appointees and Trump sympathizing justices are doing to his court. Popok, here are some cases that I'm looking forward to and some topics coming up on the abortion rights, Dobbs versus Jackson Women's health will take up Mississippi's ban on most

abortions after 15 weeks of pregnancy. This is a direct challenge to Roe v Wade and other cases guaranteeing a woman's right and childbearing person's right to seek an abortion. Don't leave that one yet. You know, it's because I want this, you know, we're teaching our listeners and followers the fine points of Supreme Court practice. I went on the Supreme Court official docket related to these issues that you and I are now going to talk about. And for Dobbs versus Jackson's women health, the issue that has been framed for the argument by the Supreme Court is the following, quote, whether all pre-viability prohibitions

on elective abortions is unconstitutional. See, words have meaning too, and you've done a good job on these podcasts talking about that. The words that were chosen very specifically by the Supreme Court in one sentence, whether all pre-viability prohibitions on elective abortions is unconstitutional, has an agenda built into that language. You and I could have framed that

Dobbs versus Jackson Women's Health case any number of ways. I think it signals potentially what you and I have said, which is the defeat of Roe versus Wade by the court, by the use of that language. That's just, I may be overreading into it, but that's my, that's my popochi and analysis. No, I, I think we need to keep following that oral argument there. We'll take place at the beginning of December. We'll keep everybody updated on oral arguments there. Gun writes.

We have the New York State Rifle and Pistol Association versus Bruin. This will test whether New York's denial of concealed carry permits violates the second amendment right to bear arms on the religious freedom side. We have Carson versus Macon concerns parents in Maine who sued over the state's exclusion of religious schools from a taxpayer funded tuition program for families who live in towns lacking public schools on the issue of state secrets. There are a pair of cases that will test whether the government can block the release of information acclaims would harm national security if disclosed. There's US versus Zubaita will weigh whether a Palestinian man detained at prison on the US base at Guantanamo Bay after 9-11 attacks can get access to information the government classifies as state secrets and FBI versus

Fizzaga, which will explore whether a lawsuit can go forward and which a group of Muslim residents of California alleged the FBI targeted them versus surveillance whether a lawsuit can go forward and which a group of Muslim residents of California alleged the FBI targeted them versus surveillance because of their religion. And then on the campaign finance side, federal election commission versus Ted Cruz for Senate is a challenge by senator Ted Cruz to rules limiting repaying a candidate for federal office who loans his or her campaign money. It's funny that I was happy. What is it?

Who did that? That cruise took that to the Supreme Court Popeye. I think I gave a fairly good sound. I'll give two observations on them. One that you didn't mention that I personally found interesting. And we may end up talking about. And then on the second amendment in New York issue, which is really important. The one that I found interesting, another inside baseball matter, is US versus Sarniav,

who was the Boston Marathon bomber. He's claimed that his sentence should be invalidated because the judge in instructing the jury, or I'm sorry, selecting the prospective jury, did not let questions be asked about the media and whether they were influenced by the media in any way prior to taking and being in panels on the jury. We'll talk about the role of juries as this year continues and the impact on our judicial system. So I wanna have people highlighted on that. And the, and the, and the interesting thing on the second amendment case, which you,

you rightly mentioned as New York State Rifle and Pistol Association versus Bruin, is that the underpinnings of the case and, and, and what's going to be re-explored or reexamined again by the Supreme Court only 13 years later is DC versus Heller. And I say 13 years later, because in the lifespan of a Supreme Court, they really shouldn't be re-evaluating precedent every five, 10 and 15 years. I mean, you and I talk about when I was in law school, we were talking about precedent from like 1787, the fact that every five years, because the political winds are shifting, because of the composition of the Supreme Court is changing, they're reevaluating cases that they've already decided is really troubling.

But in this one, in DC versus Eller, which Scalia, in the late Antonyne Scalia wrote, they went into this whole Federalist analysis of the text of the original right-to-bear armed Second Amendment. And in DC versus Hall or the Supreme Court decided that the Second Amendment applies to private citizens, not just to militia. And that was a big change in the approach, and you and I have talked at nauseam about the language of the Second Amendment and why that's probably not correct, but they went back and found all sorts of ancient texts and debates on the floor of the continental

progress or whatever it was to figure out what they meant by the language of the second amendment. But one thing that they did say that Alito wrote was concealed carry, which is the issue in New York. New York has a ban on concealed carry even with a permit. And Alito in 2008, in Heller said, oh, I don't think there's a justification for concealed carry because if you look back, our founding fathers didn't really want people secretly carrying guns. So it was interesting because he left open that you could regulate concealed carry in 2008. Of course, Justice Thomas hated that ruling.

Kavanaugh has been inviting an attack on the Second Amendment or support for the Second Amendment and getting rid of these bans. So we're going to have to see how the right, right extreme wing of the Supreme Court now tries to decide that the founding fathers thought concealing a pistol in their, you know, trench code or whatever they're wearing back then was appropriate. And they're going to be doing all sorts of acrobatics and contortionist tricks to try to get the ban to be unconstitutional. And I would tell everybody, go to SupremeCourt.gov and look at the granted and notice list that has the October term for 2021

cases for argument. You can read through all the cases that are posted as cases are added. You can then click on those cases and special shout out also to the AP article of Borschen Guns Religion, top a big Supreme Court term, which is also does a very good job summarizing the cases and it was written by Mark Sherman with special contributor, Jessica Gresco. And so everyone can check out that article too, where I got that summary from and you can just look at the Supreme Court page itself.

And it gives you a very good summary of the cases. Popok, have you seen the quid games? Squid games, I think it's called a Netflix. Squid games. Oh, this is good. This is going to be like stumped the popok. What is that? You got to check out this thing.

It's called Squid Game, not Squid Games. It's on Netflix. What is it? It's got this first scene. I don't want to ruin it for anybody listening. I mean, it's incredibly violent and incredibly kind of mind bending, but it's a case, it's not a case. It's a show. It has nothing to do with the law. But I thought I would mention it because I just watched it last night. And it is a South Korean show that was bought by Netflix and put on Netflix. And it's a group of people who are in debt in South Korea, basically sign up to be a part of this game where they go to this private island to try to repay the debts

that they're owed and kind of crazy things ensued, but you should check it out. It's a game show or this is a documentary or what is this movie? It's a movie. All right, I'm going to see it. But before we leave, I have a TV show. It's a TV series. Yeah, Netflix. I'm going to do one of your jingles, updates, updates, updates.

We got one I want to talk about off the Supreme Court. And that is just came out hot off the presses yesterday, which is the attempt by the teachers union in the city of New York to avoid getting one dose of vaccination before school opens on Monday for tens of thousands of their teachers. I mean, just another scary proposition that the teachers union would attempt to stop teachers from getting vaccinated before they face to face children starting on Monday. So they filed again an emergency application with the US Supreme Court, now the one of these shadow docket things, but thank the Lord. docket things, but thank the Lord, the Supreme Court justice that is responsible for the second circuit, which is where the New York court sits, is justice, Ben, you know, so to my or justice, so to my or why does that matter? Justice's matter, elections matter because

justice, so to my or was from the Bronx, who frequently attends Yankee games and sits in the Aaron Judge section whenever that, you know, whenever Aaron Judge hits a home run, it's all rise. She's been known to wear her black robe from the Supreme Court to attend Yankee games. She is a New Yorker through and through. She rejected the appeal without oral argument and without even waiting for the state of New York to file an answer brief as to why the union was incorrect. So Monday morning that having that appeal been rejected on an emergency application, the vaccine mandate for the state of New York for the teachers is in place, meaning if they're not vaccinated and show proof of at least one dose, they are going to be sitting home. So the governor, how cool has announced that she's going to use her emergency powers to

bring whatever temporary and substitute teachers and other staff that she needs so that the children of New York's education is not severely impacted. But so we finally got a great result. The wheel spun and it landed on so to my or. But this is consistent with the Supreme Court's earlier decision. Remember, even Amy Coney Barrett in Indiana University, back in August, ruled that Indiana University could do a mandatory vaccination program for their their entering students. So, you know, sometimes they get it right and sometimes it's just a luck of the draw of which judge you get. And Popock tried to stump me. He failed. I knew exactly who the judge and I didn't know Squid Game or whatever that. He knows Squid Game, but you should check

it out. It's really incredible wild show. Anyway, I want to thank everybody for tuning into the legal AF podcast brought to you by might as touched with co-host Ben my cellist and Michael Pope if it's Saturday, it is legal a F live if it's Sunday, it is legal a F special shout out to our sponsor better help. Remember go to betterhelp.com slash legal a f and get that discount that's being provided today. Go to betterhelp.com slash legal a f popock final words. This was really fun.

We should do it again next week. I think yeah, I think we got something going here. Shout out to the mightest mighty. Have a great weekend. you