Legal AF by MeidasTouch - Sessions, Barr and Trump's Illegal Targeting of Journalists

Episode Date: June 13, 2021

On Episode 12 of LegalAF (#LAF), MeidasTouch’s Sunday law and politics podcast, hosts MT founder and civil rights lawyer, Ben Meiselas and national trial lawyer and strategist, Michael Popok, explore the Garland Department of Justice (DOJ) three-ways, first tackling the recent revelations that Sessions and Barr, doing former 45’s bidding, created an enemies list and subpoenaed not only journalists’ phone, text and email records, but also targeted some of the highest ranking members of the US Congress, like Rep. Adam Schiff. Then, Ben and Popok analyze the DOJ’s return to muscular enforcement of the Voting Rights Act to prevent voter intimidation and minority discrimination against the 14 states that have recently passed voter suppression laws under the guise of “election integrity.” To round out the DOJ segment, the co-hosts discuss why on occasion the current DOJ feels compelled to continue to support some positions taken in court by Former’s DOJ, like the one seeking the dismissal of a defamation case brought against him arising out of a sexual assault. Next up, the “Analysis Friends,” take a deep dive into all things SCOTUS as this term comes to an end, including the eyebrow-raising 9-0 decision to deny a path to citizenship for the almost 500K people in the United States here under Temporary Protected Status program. SCOTUS’s decision to hear two (2) separate cases based on the government’s use of the “state secrets” defense also leads Ben and Michael to handicap the odds of the Court using the cases to weaken the defense (unlikely). After a brief tutorial on crypto currency like Bitcoin and why it's loved by the criminal underworld, and the power of the federal government to seek asset forfeiture of bitcoins used in ransomware attacks, the podcast brings this action-packed episode to a roaring conclusion by discussing whether MeidasTouch should go after Fox for refusing to air its January 6th insurrection ad on television, Popok challenges MeidasTouch’s “PAC-hood,” and Ben fires back! Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Midas Touch Legal AF podcast, the AF stands for Analysis Friends. Ben Micellus here of Garagos and Garagos, joined by Michael Popak of Zumphano Patricius and Popak. not Opatricious and Popock, we are your weekly enablers of legal dissection. Welcome to another episode on our new day, new time, Sunday. Great to be here. Popock, how are you doing? I'm doing great. And if it's Sundays, it must be legal. F. Exactly, exactly. We have a lot to talk about today, including some minus touch legal battles. Everybody knows that Popock has become

the fish and essentially the general counsel of all minus touch related legal matters, which has kept us all incredibly busy enough for I think a whole law firm based on Midas Touch's battles with Fox and other enablers of the GQP will get to that at the end of the podcast but we've been hearing a lot about the Department of Justice. So I want to get in and I want to talk about all these various issues surrounding the Department of Justice and just at a very basic level, the Justice Department, what is it? It's the federal executive department of the United States government. It's cast with enforcement of federal law and the administration of justice was formed in 1870 in terms of at least the modern incarnation of what the justice department is. It's headquartered, of course, in Washington, DC.

The current attorney general is Merrick Garland, who used to be on the DC Circuit Court of Appeals. Prior to that, we had Bill Barr, who basically ran the Department of Justice as Trump's de facto personal law firm, and so it was fair to call the Department of Justice that Trump's entire legal bidding. There are various law enforcement agencies as well that are administered by the Department of Justice. So when you hear about, of course, the United States Marshall Service, the FBI, the Federal Bureau of Prisons, the National Institute of Corrections, the Bureau of Alcohol

and Tobacco, the DEA, the Office of the Inspector General. These are all administered by the Department of Justice, and then there are also different divisions. And the Department of Justice, there's the Antitrust Division. There is a Civil Division. There's a Civil Rights Division, Criminal Division, Environment and a civil division, there's a civil rights division, criminal division, environment and natural resources division, a national security division, a justice management division, and a tax division.

And that just gives you some framework of how expansive the tasks are and expansive the scope is of the Department of Justice, right? But at its core, the Department of Justice, you know, administers federal law. I mean, it enforces federal law and at the highest level. And so, Popoq, we've been hearing a lot about the Department of Justice and one of the stories that have come into focus this week is prior practice and procedure by the Department of Justice, of course, in their capacity as investigators, going after records, metadata, phone records, emails of reporters, of congress members. What's going on here, Popeye? Yeah, it's just the disturbing set of revelations that started with the Biden Department of Justice

revealing a couple of months ago that they had learned that the Biden Department of Justice, revealing a couple of months ago that they had learned that the prior Department of Justice under both FAR and Sessions had obtained through the federal court system secretly subpoenas, not just of the press, and that is already earth shattering and spine tingling and Nixonian to understand that the Trump administration by way of at least Jeff Sessions and maybe Barr went after four New York Times reporters,

a Washington Post White House correspondent, CNN reporter, and convinced the federal magistrate and then a judge to allow them to obtain a subpoena, to obtain from Apple for iPhone records and other technology companies like Microsoft, the most intimate details of a reporter and a reporter's life, which implicates tremendously the first amendment. I thought that was terrible. And every week we got a new story. Today was Washington Post, tomorrow was the New York Times, and it was CNN.

Then we learned earlier in the last week that the enemies list that Trump was executing on included some of the highest ranking Democratic Congress people that we have, including Adam Schiff, the head of the House Intelligence Committee. So let's just put this draw line in the sand on this. Trump, through his Department of Justice, targeted an enemy's list, including Adam Schiff to obtain his records while he was sitting in office. I mean, there's nothing more chilling than that. And so what is up for grabs now in the tentacles of this include a couple of things.

One, there's going to be a house investigation whether the Republicans sit on their hands or not. There's going to be a house investigation by the Justice Committee as to what happened here because there are still prosecutors, career prosecutors that are sitting in the Department of Justice that participated in this process who did not resign, who did not have moral conviction and authority to resign in the face of being asked to do something like this, which they should have. And they're still sitting in the Department of Justice.

So how we've gotten this far is Merrick Garland, Arateri General, has appointed Lisa Monaco, his number two, to task the Department of Justice's in-house Inspector General, a guy by the name of Michael Horowitz, so you normally would never hear about, to do an investigation as to what happened,

why, and when, and who was involved. So you've got the department looking at itself to determine, reflectively, who should be sanctioned, penalized, and fired as a result of participating in that. Then you've got the house going to be looking at the investigation to determine if federal laws were violated or congressional laws were violated or congressional laws were violated.

And then you got the department probably prosecuting and investigating related to that. And then, Ben, bring our followers up on why William Barr may be in trouble for purgeary related to this whole investigation. Yeah. So as you may recall, it was actually Kamala Harris during Senate testimony who had asked attorney general bars specifically if any investigation, if any subpoenas, if any probes were done at the behest

or the request of Donald Trump, at which point Bill Barr said, I don't know, or I don't remember, you know, and obviously tried to dodge that specific question. Now, on the topic of Kamala Harris, because the specific issue of whether Bill Barr potentially committed perjury or lied or misled the Senate relates to now Vice President Kamala Harris, then sitting senator from California Kamala Harris's questioning.

I remember when Kamala Harris was the state attorney general in California, remember when she was running for office and I was first year, second year lawyer. And I had asked her a question about what was the most important thing that she would tell a new lawyer? Was the question that I had asked her. And her response always stuck with me to this day. And I think is relevant here. And it was a very unusual legal answer.

And she said, I learned that a lawyer's power of their pen is something not to take lightly. And every day I realized that when I sign up leading, when I sign a complaint, when I sign a lawsuit, when I sign a subpoena, that what I do has serious implications and ramifications on other people's lives. Whether that will embril somebody in a lawsuit, whether that will compel them to do something, but a lawyer, because they go to law school and they pass an exam called a bar exam, is imbued with these powers. And sometimes I think, you're also in the court. In the office, the court as well. And I think lawyers don't necessarily appreciate their power of

the pen and that they have choices to, and they're guided by their rules of professional responsibility. They're guided by the ethics of their profession to do the right thing. But in these specific instances, there were lawyers at the Department of Justice who enabled through their legal acumen, through their legal abilities, potential illegality, in many cases, actual illegality of Donald Trump. I think there are two separate issues here. On the one hand, the issue of zippenaing reporters

and gathering reporter records, in leaks that are relating to kind of whistleblower complaints against the government. So there, I think the issue relates more to a policy. Do we believe that our government should be utilizing their governmental powers to intrude on whistle blowing activity and to interfere with, you know, intrude on free speech and the ability of reporters to conduct their investigations. I think there is, and with respect to this issue over Trump's enemy list in Congress and trying to get those records, some real separation of powers, issues,

because members of Congress have their own autonomy, they have their own immunity, they have their own general counsel, they have their own protections, and they're supposed to be treated as a co-equal branch of government and not to have an executive branch dictator gathering their metadata. And when we talk about metadata, you've heard me mention that. Metadata has become a very important thing in modern day litigation. Popo, if you want to talk briefly about metadata. Yeah, we use it all the time in discovery.

And really it's at the forefront of what you and I do in our civil cases, but of course, federal criminal investigations by the FBI and others use it as well. And it is the embedded electronic information about a particular document that is not seen by the human eye, but if but a computer investigative forensic analysis will reveal, every document has an electronic signature. That when it's, at least if it's created electronically,

if it's, of course, somebody's using a yellow pad in a piece of paper, there's no metadata. That's good old-fashioned analog information, but everything else in our life is really electronic. And there is an electronic watermark on it that talks about who the author is, when the document was last changed, who where was it sent,

where all of that is really important to lawyers like Ben and I and to the government investigators, because I just don't want to get the hard static document. I want to know its history, its origins, whose scene it, whose edited it. When was it last edited? Who made an edit to it? Has it been forged in any way, shape or form? Has it been changed over time if that's important to the case? And all of that is embedded in the metadata that is part of what you subpoena when you ask for documents and information.

But it's also very revealing because there's privacy issues related to it just as when they investigate where your cell phones been used with cell phone tower information. Metadata is revealing in a way that the user may not even understand at the time that they're creating the document. Yeah, I may even tell where you are. I mean, you know, that just because, you know, the government asks, you know, tell me where you're living, where you're located, right, the specifics. You don't have to tell them everywhere you go, every second of the day, you know, and give them a full accounting of every aspect of what you're doing. And for all you know that you've had certain documents analyzed by a lawyer. And so there may reveal attorney

client privilege communications embedded in embedded in metadata. But ultimately, you know, one of the things that the Trump DOJ wanted to know is with respect to specific documents, they wanted to know that the underlying history of the documents to determine if anybody was leaking these documents. What are these documents? These are documents that showed that Trump engaged in the crime, in various criminal activities. The underla... We're piecing this together and you and I will talk more about it. It's like a jigsaw puzzle and every day we get a new piece. It looks like the

bold BS cover story for the mole hunt looking for the leaker that the Trump thought gave him the power or the authority to do this. At least in the context of the reporters is former federal FBI director, Komi and the Hillary emails. I mean, our followers and listeners are probably thinking, oh, God, we're back to the Hillary email server again. Yeah, but that was the BS cover story to get a federal magistrate to issue the Secret Sapina. And it's really his secret. CNN has reported on itself that it was in a six-month secret battle. It was secret because

federal magistrate gagged them from talking about the lawsuit in any way, shape, or form. Even the powers that be that own and publish, the general council of CNN was even kept in the dark on many aspects of the litigation because we're going to talk about state secrets and all of that. But that went on. I want to approach two things that you talked about that I found really interesting. And you're right. There are two different issues engendered by the exact same

bad behavior of subpoenaing off of your enemy list, whether that be reporters or elected officials. And in your comment about what the federal prosecutors who were then working under sessions in bar really should have done. And to remind our listeners, when we were last under a corrupt administration, as probably less corrupt than this one, under Richard Nixon, there were patriots and people with moral conscience within the Justice Department, including Attorney Generals and Acting Attorney Generals, who resigned rather than do the bidding of the president, in this case Nixon. Some didn't. Some got indicted as a result, which is what's going to happen likely here. But there are people that say, no, I'm not going to do that.

I took an oath to be a federal prosecutor or an FBI agent, and I'm not going to do that. That does not appear to have happened here. and that is very troubling and we're going to get to the bottom of it. One way or the other through the Inspector General investigation, the House investigation or just lawsuits. We're going to get to the bottom of this. But the principle of going after the press in a society that was better off constitutional principles are free press and first amendment

is terribly troubling. We've got to find a way to reinstall the guardrails that Trump spent four years trying to trample over and destroy to make sure our democracy is protected for the next crazy tyrant who tries to take that office. No doubt. And you start thinking about some of these pretexts and these crazy conspiracies and the Trump and Trump are focused on these things. I mean, you have from the Hillary Clinton emails and then the voting that you go shavas and Venezuela and then somehow bamboo and China manipulated, you know, that there's these manipulations and all these

kind of mainstream Q and on theories and then, you know, throwing, you know, all they want to talk about is Hunter Biden emails and like every can look at this and be like this is utterly ridiculous, but it has this purpose of trying to completely not just undermine our laws, but also to then weaponize these fake conspiracy theories that are created by the far right or exaggerated to such degrees as to take something that that's a non-issue and bring it to some ridiculous lanes and then actually utilize that to get subpoena power to then actually go after people and attack people and use it for protectional purposes. You know, Popak, I'm representing now and I put this out on Twitter. I'm representing a Secret of a retired secret service agent and all of these right wing

You know magazines and online Papers, you know basically said that this guy was involved in you know helping hunter Biden go from hotel to hotel and he helped Hunter on his benches. And they just printed the guy's name and his photo. And one thing, the guy was retired. The Secret Service agent was retired at the time and had never even met Hunter Biden before. Never even met Hunter Biden. Yet alone text message Hunter Biden before and everyone met Hunter Biden, yet alone text message Hunter Biden.

And you have all of these, you know, crazy right wing, you know, papers, you know, was Washington Examiner, you've got Breitbart, you know, you got, I was speaking to a reporter the other day from New York Post and, and she's like, well, I understand why your client would like to distance himself from Hunter Biden. But we will publish the general denial. It's like my client was a superb secret service agent who gave his life to law enforcement. He retired in April of 2018. There are fabricated text messages out there from late May of 2018 that my client never

even sent and never even meant Hunter Biden to begin with. And they run with this incredibly crazy narrative. And it's weaponizing these conspiracies with real world ramifications. Yeah. Look, if you go back in our history, yellow journalism, there's a reason it was called that. And so-called newspapers used to run all sorts of, I mean, crazy, crazy stories in the 1800s and 1900s against political candidates accusing them from out of wedlock children and affairs and drug use and all sorts of things.

And when I was a kid and I'd read these because I was a history buff, I'd be like, wow, that was a really crazy time. You know, too bad we don't live in that time now. We do. And these things that you've mentioned, these, I'm not gonna give them the honor of being called a newspaper or a legitimate news gathering organization, any of these Washington Times or examiner or newsmax or whatever the heck it is.

This is just tabloid journalism and it's worse. When I was a kid and I used to wait in line at the supermarket, the national inquiries that have all these crazy headlines about foreheaded baby and aliens landing in Minnesota. It's just nuts. Now they've just done that. Their content is the political ramblings and conspiracy theories of crazy people and QAnon. And of Russia. And of Russia.

And of our enemies again. And of our enemies against our country. I keep saying this and people just sort of nod and collect their eyes glaze over. But the Russians and the Chinese are using all of these crazy theories through bots on social media and fake websites and fake social media accounts because they want to divide and conquer the United States and they love, they love fomenting the disagreement and discontent between whatever this Republican party has become and legitimate Democrats, because all of that makes us a weaker country

and that's great for our communist enemies. – Popo, are you a Yankee fan or a Met fan or a... – Oh, Yankee. – It's like going to a Yankee game and you may have differences with the person sitting next to you, but at the end of the day, if you're a Yankee fan, another person's a Yankee fan, you both want the Yankees to win. You may have disagreements of the order.

You may have disagreements of the order. You may have disagreements of which player is the best player on the team. You may have disagreements with managerial decisions that are being made, but at the end of the day you root for the Yankees. Here, it would be like going to the Yankee game and half of the team is rooting for the Metz.

Half the team is rooting for the other team, and only that, but they're trying to distract the players they're throwing food at the players. It's like, what do you do with it? It's so transparently helping the other side. Why are you doing that? That description sounded like an NBA game, an NBA finals game, but no, no, I don't get it.

And I don't get the world in which you and I can just observe. You and I can just observe and provide healthy criticism and critique through our eyes, for our followers and listeners. But I mean, I'd be remiss if I didn't tell the people that like us, that I smack my forehead on a regular basis about the world that I now live in operating. I want to talk about two things now, as we're focused on the DOJ.

I want to talk about one thing that the DOJ I think is doing good. So I'll start with that. I like to start with good news first. And then I want to talk about something that I don't agree with what the DOJ is doing, but I want to pick your brain co-pock if there's something, there's another option, you know, the DOJ could have done. So what do I like that the DOJ is doing? Well, I like that attorney general Garland has stated that the Department of Justice is going to step up their enforcement of voting rights protection. They are going to double the size of their voter rights enforcement division. And what this means is that with all the

various, you know, states out there who may be passing illegal laws that violate the Constitution, the federal Constitution, and other federal laws that provide for equal access to voting and do not discriminate against individuals. You mean 14 states since May is what you're talking about? Yeah, 14 states since May, you know, and the list is growing. When states look at what happened with the Cyber Ninjas. Remember Popeyes? Here's my, I have so many issues with the right to be the craziness.

But remember, they could fail so big in failures that should just destroy people's careers and that they should never even surface like this cyber ninja thing. By all accounts, this cyber ninja and the most embarrassing fucking thing that you could ever do to have these con artists from Florida, have them fly in to Arizona who have never conducted an audit before, have no clue what

they're doing. Tamper with machines, not be able to prove everything, make a whole mockery of the voting system. Literally, everything, Democrats, and frankly, Republicans with some common sense in Arizona predicted was going to happen. Not the Republicans who were in the state legislature who invited these crazies to show up, but they destroyed it. And not only, not only is the GQP not embarrassed by that. They want the cyber ninjas to go to every state. They're like, let's get cyber ninjas over here.

Let's get cyber ninjas in that state. They love failure. They need a swimming failure. I got a new one for you. Speaking of the cesspool of failure they're swimming in, did you read in the last last day on Twitter that some Arizona state elected official said that if Merrick Garland, our federal Department of Justice, Attorney General of the United

States, if his Department of Justice comes after them for the Arizona fraud it, he is going to find himself in an Arizona jail. This is what this is what this elected, this is how this elected official thinks the world operates. Well, you've got the elected official also was it in Washington or Oregon, you know, one of the GQP members who literally opened the door and let insurrectionists into the capital building. You know, and that person since been disbanded and not permitted to ever hold that position again, but really nothing surprises me with this GQP, but it does shock me, you know, again, a little bit on a tangent with the Cyber Ninjas. It's like, they're, they love failure. I mean, it's like, why do they like Trump?

Because he's the biggest fucking failure in the world. All they want to do, and I think when you view their actions through this lens, you know, you have to say, okay, it makes sense. They're done with America. They don't give a fuck about America anymore. In fact, they don't care if America burns. As long as during

their life, though, that they could basically maintain their privilege for the remainder of their life. That's all they care about. Let me ask you something on this tangent that we're on. We're going to get back to good news, which is a more muscular support for the Voting Rights Act by the Department of the Social Security Council, and I'm going to ask you a particular support for the Voting Rights Act by the Department of Justice under Garland. This I don't understand.

No one can debate because it's just an immutable fact that over the next 20, 30, 50 years, America is getting browner, lacquer, more diverse. these are all good things. And that whites, like you and me, are gonna be not in the minority,

but we're gonna be considerably less important to the electorate over the next 20, 30, 40, 50 years. We're talking about the death rattle of a Republican party who's gonna try to cling to getting white men to vote for them. Why don't, I'm not asking this rhetorically, I wanna get your opinion. How do you base a party on the failed strategy

of continuing to attract white men to vote for you in national office? How do you not know that that is a losing gamble over the next lifetime in generation? How do you not know that? I point you to South Africa and I point you to apartheid and I point you through the fact that there you had a white minority from 1948 until the early 1990s, who fixed and rigged the entire institutional structure so that a very small group of white privileged individuals could rule over a country that had a significantly larger black population. a little bit more difficult, a little bit more difficult, a little bit more difficult, a little bit more difficult,

a little bit more difficult, a little bit more difficult, a little bit more difficult, a little bit more difficult, a little bit more difficult, a little bit more difficult, a little bit more difficult, a little bit more difficult,

a little bit more difficult, a little bit more difficult, to win again, but we can't win fair. And in fact, there are some Republican legislatures who have said that quite part out loud. When I was interviewing Gabriel Sterling out in Georgia who runs their election systems, I confronted him with a statement made by one of the leaders and one of the counties that are Republican. And she said it. She goes, we're never going to win again unless we take serious action to do, to engage in conduct like we're doing. So I think that there's a deeper issue here that the Republicans do want to set up

in a apartheid style. It's a loaded term, a part of it. But in apartheid style. It's a loaded term of parts. But in a partied style way that they can maintain control through kind of by rigging the institutions around them. And frankly, at the Supreme Court level, one of the problems we have to deal with is that all of these laws, though when Merrick Garland goes and files a lawsuit, it takes time for that lawsuit to work its way up. We've talked in the past about how that goes

from a district court, the first court it gets filed in, to the court of appeals, the next level, and then eventually to the Supreme Court. And we see here with a six to three vote that exists right now, with six people appointed by Republican administrations, three of them appointed by Trump. You know, I don't feel good or comfortable that any of these efforts, even if they're pursued, these enforcement actions, will be allowed by the Supreme Court and not be struck

down by the Supreme Court. Yeah, to me, if they had, you see, the federal courts, to some extent, I was surprised, but happy. I was so nervous when Trump was filing those crazy bullshit lawsuits that the federal judges were going to act the same way as some of these state legislatures and then have some of these at the federal level, the way these Congress members and senators acted. But see, the thing is, is that there was no law for these GQP judges to even hang their hat on.

Well, you mentioned that. Now, the thing that we had in our favor, the thank God moment, is that Trump could not, back to your lawyer point, right? The power of the pen that we started this podcast with. Fortunately, Trump could not get legitimate lawyers from legitimate law firms to support his position and be his advocates in court. So he was left with the bottom of the proverbial barrel with the Sydney pals of the world and these local, schmokal solo practitioners who like, you know, the best thing that ever happened to them is they get the president as their client for 10 minutes. These were not the American lawyer,

Rottmout Rushmore of legal brain trust. So that, we are a gatekeeper. The legal profession is a gatekeeper. If you and I and top lawyers stay on the sidelines and don't go rush to go help a crazy like Trump, he'll have problems navigate, even he'll have problems navigating a court system, even when he has his own judges that he's facing because even his own judges were like slapping

their foreheads going, this is like a clown show. This is a dumpster fire and a clown show and nothing you're telling me makes any sense get out of my courtroom. Thank God, thank God he didn't get the Williams and Connolly, the Wilmer House, the Scad and Arpses, the Sidley and Austin's of the world, to join his charade and argue, because they are good lawyers, they are competent lawyers. Absolutely. And and though one of the concerns, though obviously is as they attempt to change these state laws, you know, they're saying, well, how do we basically institutionalize

our cheating and get it affirmed through a kind of sneaky process while we keep ourselves in power? And that's why we're seeing a lot of these, you know, these voter initiatives that are designed to suppress the vote. But we will keep you updated on the DOJ's enforcement actions. I want to say, I want to make sure we're giving some good substance to our listeners. The GQP, which I'm finally getting right, the Republican led legislatures and 14 states of best, 22, what they call voter integrity, election integrity laws was just a code word for voter suppression. The Department of Justice and

the Civil Rights Division under Trump in four years brought exactly zero, zero investigations and prosecutions and lawsuits to enforce the Voting Rights Act. I don't think that's ever happened in a four-year period other than Trump. But now the Department of Justice is back, just as Biden is telling the world that the leader of democracy is back in the United States, Merrick Garland will bring it and is committed to bringing a muscular prosecution and investigation under the Voting Rights Act every way he can. They're going to prosecute voter intimidation. They're gonna challenge every state

and how it, all these new laws, and if these new laws have the impact, the disparate impact that we know, you and I know that they do, on minorities, on black and brown people, they're gonna call them out on that. And those legislatures and state officials are gonna have to go to Washington and justify these that. And those legislatures and state officials are going to have to go to Washington

and justify these positions. And when they can't, then there's going to be lawsuits applying that strict scrutiny standard that you and I have already talked about. The highest level of constitutional analysis is going to be applied. But it's going to be three, four, five election cycles before those cases make their way through.

But we have adults in the room in the Department of Justice led by Merrick Garland, Lisa Madako, his number two, and the head of the Civil Rights Division, Kristen Clark, and somebody that people won't even think about, but is really, really important here. And that's Vanita Gupta. Vanita Gupta is the number three lawyer in the Department of Justice under Garland. He brought her in especially. She has spent her whole life, her whole life trying to protect voting rights. I can't think of a better group than Monaco, Gupta, and Garland to now resuscitate the Department of Justice in its role in protecting voting rights.

So that's the good news about the Department of Justice. Lots of other good news. Marik Arlen is a great lawyer. It's great justice. And he is going to bring integrity back. He's the perfect person for the job. And of course, you may recall, just as Garland at the time, was President Obama's election to be on the Supreme Court.

And he should have been a Supreme Court justice, but for Mitch McConnell and the Senate Republicans blocking it for literally hundreds of days, under the pretext that during an election year, the president does not have the right to appoint it to appoint a Supreme Court judge, and of course, very swiftly when Ruth Bader Ginsburg passed. And as the election was about to take place with Trump Biden, within a matter of what was the 10 days, 12 days, you know, two weeks they appointed a whole new justice and went through a process that's supposed to take, you know, months with hearings and significant due diligence, they passed it immediately.

And now we have a 6-3 with Amy Konebarratt being my point to be honest. By the way, if you were, and I'm not asking this in a joking way, if you were lucky enough in your career, this was a goal of yours, to be nominated for a Supreme Court position, right? Let's say it happened. Judge Mysalis is going to be elevated hopefully to the US Supreme Court. That would be great. I'd love to see that bottom. And it was being done in a sort of underhanded tilted and rigged system where you're going to be crammed in in 20 days with like

very little hearing. And it was obvious that it was being done in a really undermining and politically terrible and morally terrible way. Let me ask you something. Would you take that position or would you step down and say, you know what, I don't want it this way. I have moral and political convictions that are bigger than me just getting on the Supreme Court. What do you think? Well, it's an easy choice for me because I would never want to be a judge,

and that's just me personally. So it's an easy way to cop out of the question. But the reason that I don't want to be a judge in many senses is because I think judges should have to respond to questions like you ask in a very deliberate way where I'm more of an activist, I'm more of an advocate and I would want to ensure that my side, which I believe is the one that's pro-democracy, you know, wins. But I would want to have a process in place that is consistent with those values. So in terms of a personal decision that I make, I don't know. But I think the fact that she didn't hesitate for even a moment tells you the type of judge she's going to be and the type of justice she's going to be. You can't be a judge, you'd have to give up cursing.

I could not be, trust me. I think through our legal AFs and through the Midas Touch podcast, I've appropriately disqualified myself from becoming a judge. I couldn't even imagine being at a hearing and seeing them playing back all of the curses. But you know, it's that type of passion, though, that we all have different callings that everyone has to be a judge, that everyone has to be a justice,

that everyone has to, but what we're doing to fight for pro democracy, we want judges and justices, though, to have to be faithful, ultimately, first and foremost, to the constitution and a justice who is aware of the unusual circumstance. I could tell you what I would definitely not do, Popeye, the moment Donald Trump or somebody like that, if even if it was a Biden on my side, used me as a prop in the political campaign on the balcony and compromised my integrity and made me look like a fool,

that gesture alone I would bow out. I would say that's a disgrace and an embarrassment that's some like that's some fascist Mussolini you know type propaganda and I would never let myself be used for that. And if I unwittingly you know who knows you know the circumstances I get it you show up to the White House which you're probably uncomfortable for anyway and then you go up you're with the. And let's just say he tricked you into going on the balcony and doing the photo up. I am momently right there with drawn basically,

say I can't be a part of this, this is disgusting. Yeah, now I agree with you. And she didn't, and she was at the White House with that super spreader event. And she allowed herself, as you said to the users for political theater and as a prop in a partisan way for a non-partisan position or at least one that we claim that's non-partisan.

But like the Oregon House of Representatives, I referenced before just so everybody knows his name who was ousted as Republican representative Mike Neerman. It was a 59-1 vote, two ousted, and it was the first time in state history is sitting Oregon. Lawmaker was expelled. It was Oregon at Washington. Going to the bad thing that I think the DOJ is doing.

So the Justice Department through its filings demonstrated that it was going to keep fighting to defend Donald Trump in a case relating to a rape allegation. The allegation was by Jean Carroll. Jean Carroll had accused Trump previously of rape and sexually assaulting her. Donald Trump was asked the question about the allegations at a press conference while he was giving a presidential press conference. He made a statement that denied the allegations and also went further in, talked about her and made comments about her and who she is. And, you know, and bashed her in typical Trumpian fashion.

And her lawsuit against him, because the rape and sexual assault allegations do not meet the current statute of limitations, was a defamation lawsuit for what he said during the press conference. So I want to be clear that it's not a case about representing Donald Trump uneaccurzation of sexual assault. The Department of Justice's position in its legal brief is the following. When members of the White House media asked then President Trump to respond to Miss Carol's serious allegations of wrongdoing, their questions were posed to him in his capacity as president. Elected public officials can and often must address allegations regarding personal wrongdoing

that inspired doubt about their suitability for office. And so that's the claim about why. Now let's be clear. And so that's the claim about why. Now let's be clear, she is suing, by suing the president, she is suing the Department of Justice. She is suing the United States government, though, who is indemnifying the president as, you know, based on when the conduct took place,

even though it's suing Donald Trump, the government. I'm not sure if I'm right. Would you say? I'm not, they may be defending him. I don't think they're indemnifying. The government's not going to write a check under even under this scenario that we're talking about.

The government's not going to write the check to, and I know the lawyers that are handling the case. We're not going to write the check to Robbie Kaplan's firm and Carol. They may be defending him, which is what they've been doing, but I don't think they're indemnifying them. It'd be a good question, right? There are two duties, obviously, there's a duty to indemnify.

I mean, whether or not they apply, here's up for discussion, but a duty to defend, provide legal representation to somebody during the course in scope. We've talked about these issues in prior legal AAPS, and then a duty to somebody during the course in scope. We've talked about these issues in prior legal AAPs, and then in duty to indemnify, which is actually pay the settlement judgment, you know, or otherwise. What's going on here, Popeye? Yeah, this one's interesting. I'm not going to take a different tack than you, but I have a slightly different

analysis and it and it and it harps back to what you and I talked about a couple of episodes ago when we talked about the Lafayette Park issue. Look, 99.99% of what Biden has done is to reverse the policies of Trump and every way shaping for, at every department, internationally, nationally, domestic and otherwise. He's done it by executive orders, hundreds of them that he issued in the first few days, and everything else. However, there have been already a couple of places where his Department of Justice has decided

in looking at the underlying constitutional or legal issues that they're going to have to hold their nose and side in a way with the original Trump position for that particular legal doctrine. So in the Lafayette Park clearing that we talked about a couple of episodes ago, it was they were protecting not the craziness of Trump making all the protesters lay down on the ground or be stomped to death by military and police as he made his way with an upside down Bible to the church. The principle is, does the president of the United States have the right to define his own security, especially in and around the White House, yes or no? And that shouldn't turn on how crazy the occupant of

the White House is, and that's the Biden argument. Here, they're sort of saying the same thing. There is a law. It's called the West Fall Act. It's technically the federal employee liability reform and tort compensation act of 1988 that the president as a federal employee falls under back in the 80s. There was this whole big movement of what we call tort reform which was Republicans again thinking that trial lawyers like you and I were out of control and that we were

improperly obtaining jury verdicts on behalf of our injured clients and they wanted to take that away. So they did all sorts of reforms. And one of them that they did is they made a law that's now called the West Fall Act that if you're a federal employee and you're sued while engaged in your official duties. If while you were engaged in your official duties, you did something bad and you're sued civilly as a result of that, you're going to have immunity and you're going to have protection. As long as it's while you're engaged in your official duties. So that is the 40 year law that the Justice Department, the Biden Justice Department, had

it decide which side of that law they were going to be on. And they ultimately came down on, as unsavory as this is, that we're going to have to sigh with Trump on this, not because it's Trump, because we hate everything about him, but because we think at the end of the day, he's right about the Westfall act and its application to a sitting president. And because as you framed it, then, Trump in response at a press conference for the media is where he allegedly defamed Mrs. Carol. They, the Biden administration is going to continue the same analysis in front of the court. They

just filed their brief and they're going to say that should be covered by the West fall act. Do they want to really defend Trump? No. But what's going through their minds? For every Trump, there's an occasional Clinton who does something like Denai Monika Lewinsky's Affair in a press conference, and they're not thinking 2021. They're thinking the next 100 years, what law, and you and I've talked about making bad law versus good law, what law are we making not dependent on the sitting occupant, but on future history, you know, future future occupants? And that's the reason why. And everybody, I know

I've seen the Twitter comments and friends of the show and of yours and mine, like Katie Fang, I know has taken a position about this is ridiculous, the government should back out and let and let Carol have her day. And the problem is not them applying the Westfall Act. This is a two-step problem, because if the federal government is successful, even under Biden, in getting into this case, and making the case now read, Gene Carol versus the United States of America, uh, Gene Carroll versus the United States of America, the United States of America has sovereign immunity for many of the torts that she's suing for. So why don't we talk about sovereign immunity then? Yeah, I mean, so at its most basic, they can't be sued for it.

So they are immune. And there are different reasons why a entity may or may not have immunity, but in specific cases, in order to function as the federal government here, in order to be the United States government, and the fact that they have the ability to pass laws that give themselves these types of powers. The government cannot be sued for certain things. This is just one of those examples where there would be total immunity, where it's been determined that to sue the sovereign here, in this case, the United States government would impede its ability to operate, that it would allow all individuals to sue the government for every grievance that they may have.

This idea of sovereign immunity has developed historically over time. A lot of our laws are rooted back to British law, but the idea of being here, the government has to operate and that's the function for the people and you can't sue it. So the problem is not the one we're really focused on here, which is does the West Fall act, cover Trump and his actions? The problem is if it does, does he then enjoy sovereign immunity so that her entire lawsuit is going to be dismissed? And here's a question for you. I don't know the answer to it.

So I'm sorry if I'm setting you up, we used to call that a hospital pass, throw a pass over the middle and you just get covered by the defenders. So I know in state government, a sovereign is the state government in the legislature and they can waive sovereign immunity and they often do in certain cases. Who has the power to think to waive sovereign immunity at the federal level? Is it the president or is it Congress? Well, you know, you have, I think Congress would have to pass a federal law and there would

be, you know, for example, there's a federal torts, a federal torts claims act that circumscribe specific times and instances where and you can sue a federal government for different conduct. And if there's not an expressed law that allows for the waiver, not an expressed law that allows for the waiver. But remember, I mean, for that law, it requires, it requires the president's signature. You know, so Congress would pass, you know,

the law would pass the bill, the president would sign it and make it into law. It would become part of the, you know, the federal laws, federal regulations. They may, they may. That's their next step. Jean Carroll's advisors and lawyers, if this were to, if they were to lose,

and the government was able to come in and assert sovereign immunity, I think they have to assert it. So maybe the Department of Justice, maybe the Department of Justice elects not to assert sovereign immunity, but it'd be weird because why are they having the West Fall Act apply and let them intercede if they were

planning to do the second part? But if they're definitely going to assert sovereign immunity, because that's why they're. So then Congress and the President and Biden and Biden on the trail when he was campaigning came out in favor of Gene Carroll. So I wouldn't be surprised if there wasn't a friendly bill floating around that would make its way through Congress and land on his desk that he would sign, that would make an exception to sovereign immunity in her case. I'm surprised there wasn't some other creative solution here because to me what was just

unique and disturbing was the affirmative intervention by the Department of Justice in the Trump White House, you know, and that the lawsuit wasn't even brought in that way and that The Department of Justice could have just not intervened like where I'm surprised is why couldn't the current DOJ You know just basically Make a comment that it preserves, that it's not going to intervene, but basically reserves the right to intervene and doesn't wave any future ability. Why couldn't there be a creative solution? Or is that just a product? Yeah, I don't think that works. If you're going to take the position, which I do, I don't think that works. If you're going to take the position, which I do,

that if you've made the election to defend the Westfall Act, that they can't sit on the sidelines for fear of making bad law, once you make that decision, you gotta intervene and you gotta defend the law, even if you hate the occupant for which the law is being used as a defense. Well, we'll follow up with everybody on that, you know where that's headed,

and we will keep you apprised. One of the things I wanna talk about to PopoX switching gears here for a second is asset forperture, which is often pursued by the United States marshals under the DOJ of actually in criminal cases and criminal investigations, seizing property, seizing money that are fruit from the poisonous tree as we would say in the law. In other words, that come from the illegal acts and that people who are arrested

upon a showing, you can't just steal people's stuff upon making the showing, that certain property goods, money comes from an illegal purpose, illegal design, that the government seizes it and then it puts the burden back on a criminal defendant to actually have to go through an entire separate procedure, almost separate and apart from their criminal case in an asset forperture action. And not just the criminal, but also co-owners of the property. Think about the innocent husband or wife and who really is innocent and there's actually an innocent owner defense. They come into court as well and they go, I had no idea my husband was money laundering and I shouldn't lose my house, my car,

my yacht, my boat as a result. And if they can make a showing, and as you said, the burden is on them, And if they can make a showing, and as you said, the burden is on them. That spouse, family member, co-investor, partner, whatever, is going to have at least that portion of what the government wants forfeited to the government reserve to them. So it's not a 100% forfeiture. But yeah, that's how you've explained the process properly. And there are very strict requirements about asset forfeiture in terms of the dates and deadlines in which to file your oppositions to the asset forfeiture proceeding to initiate an asset forfeiture opposition to the goods and property or money being seized. There are a lot of

articles out there and lots of people out there who are very critical of an asset forfeiture process. A lot of people saying it's a lot of government overreach in seizing property and getting this leverage in cases over individual defendants or over people without really making significant or substantial showings or just kind of bullying a judge to approve it. One of the interesting questions that Popoq has come up now is asset forfeiture related to Bitcoin.

No, I know we may geek out a little bit here, but the origins of Bitcoin, like a lot of great fortunes that kind of come from kind of dark improper uses of the Bitcoin. And oftentimes Bitcoin was being used originally, this was almost 10 years ago at this point, as part of what was called the Silk Road, basically a dark web network of money laundering, money laundering, money from drug profits, you know, and other criminal activity and weapons exchanges, and then hiding the money by making it part of the blockchain, you know, and the blockchain is basically where Bitcoin attaches to in a digital way if you want to make it, you want to create a physical image of it. And so when you hear about what the blockchain is, it is kind of the series of codes that give the actual coin or the token,

its own unique identity that can't be copied and is very, is impossible to trace. So that's why it was. That's how I think about it or how I've come to grips with blockchain and cryptocurrency, right? So blockchain for our listeners is the electronic ledger book of all transactions by and sell that's recorded electronically on a chain that extends into the infinite horizon.

So, if we get to the world which we're quickly getting to, we're all transactions from your food purchase at the local supermarket to your acquisition of your house to buying your college tuition for your children to buying health care and and and everything else that goes to a business as purchases is all recorded in a digital way we're back to the digital world now on a digital ledger book just like you know a hundred years ago you pulled out a pen a quill pen and you wrote down accounting this is all done. And then there's a chain that's created so you can track back every purchase and sale in the world onto the blockchain. Cryptocurrency is the currency that is used on the blockchain.

Yes, dollars can be recorded there as well. But blockchain is, the cryptocurrency-like Bitcoin is recorded onto the blockchain as a transaction in a unique coded way. And that's why, as you said, the dark web loved it and continues to love it. And this is the problem we're having with the legitimization of cryptocurrency, whether it's doja coin ether, Ether or Bitcoin or any of them. There's now hundreds and hundreds and hundreds of these things that we'll talk about in another time, how they're created.

But the problem is they have always been the fancy of the criminal underworld and the question that our society is struggling with and regulators around the world, banking, currency, and stock exchange regulators around the world are struggling with, is how do you legitimize and regulate it and make it normal? Look, there's no secret that one of the reasons that the internet took off and became as robust and used today by legitimate normal people is because of things like pornography that was driving the internet and helping grow it and server farms before you and I caught on it.

It's also a good place to go buy books and dry cleaning. So there's always been a dark side to some of our technology. The question is how do you move it into legitimate, the legitimate world? And that's our world is now our world of legitimacy is struggling with how to bring Bitcoin into legitimacy. So one of the interesting things that arise here is when the government sees this the assets It sells them and so the questions also become here when What obligations should the US Marshall service have of being market actors and there are stories of them selling the Bitcoin at certain points

Where they made nominal amounts of money, but had they held it two months or three months or more, it could have been tens of millions of dollars. And so ultimately where the legal scholars tend to air is that the government and the US marshals are not market actors with respect to selling Bitcoin. Their job is to seize it and at the appropriate time sell it without disregard, without regard to becoming like stock pickers. That's not the goal. Although it would be an interesting concept once it is seized, if we do want to talk about maximizing the profit for them to maybe think a little more sophisticatedly about it and have positions of people who would invest it appropriately.

They could have that. They could have. Well, that's okay. So, the thing that's been in the news, which I think is motivating our chat about this, is that the FBI, and it's not the first time, but it is an amazing development, was able to recover the entire Bitcoin ransom that was paid by the colonial pipeline company just two or three weeks ago, which shut down the oil supply at the Eastern Seaboard for a good six or seven days leading to an increase in gas prices. So we all read about that and went, wow, that's crazy.

They've attacked our infrastructure, these bad guys that are probably Russian as what we believe led by Putin. So it's a Putin-led operation that led to the shutdown of our oil distribution network on the Eastern Seaboard. That alone is scary. But the FBI within record time was able to recover the 2.5 or whatever billion dollars of Bitcoin. And the result was on the Bitcoin market,

it dropped by like 30% because it scared the crap out of the dark web who thought Bitcoin was impenetrable and would never be able to be seized by the federal government. Fortunately for the federal government, they found the wallet. It literally an electronic wallet, like the Apple wallet that everybody carries on their iPhones. There's a wallet that carries the Bitcoin, and that has obvious vulnerability to being hacked

by good guys like the FBI, and they found the wallet, and they found the wallet and they found the password through sleuthing and investigation and they were able to crack it and collect back and steal back. That was stolen. So you could set up then to your point. Instead of having FBI agents who are obviously not MBAs and they're not in the job of market participants, you could hire special referees and masters who know what the heck they're not in the job of market participants. You could hire special referees and masters who know what the heck they're doing in cryptocurrency

and other assets like real estate, the specialist and have them have delegated authority through the government to go sell, because anything could be forfeited, an apartment building, a $100 million apartment. I mean, I can't get too close to it because my law firm is involved with some forefature issues related to terrorist organizations domestically. And you know, if it's a real estate

asset of $10, $15, $100 million, that has to be sold. And if it's forefitted to the government, somebody needs to do it. So why not bring in experts who are working for the government on some hourly rate and let them try to maximize the amount of return on forfeited assets. Why not? That press release was dated Monday, June 7, 2021, Department of Justice Seizes, $2.3 million in cryptocurrency paid to the ransomwareortionists' dark side. This was actually what the Department of Justice named their press release. And it said, quote, there is no place beyond the reach of the FBI to conceal illicit funds that will prevent us from imposing risk and consequences upon malicious cyber actors said FBI director Paul Abadi.

So that was a interesting new, probably the first of its kind time when the FBI was actually able to go in and kind of seize a ransom of this sort that was trying to be. I thought it was the first time, too, when I did the research. They did it before a couple of years ago, but not as publicly. Look, very rarely do you see, you know, turn about as fair play happened as quickly as this one did. You know, we're all going, I'm just getting my mind around the colonial pipeline being shut down. And all of a sudden, two weeks later, the FBI recovered the entire ransom. So that was, talk about velocity. That was a, you know, an amazing event and a, and kudos to the Biden administration to make that happen.

Absolutely. And closing out the Midas Touch Legal AF, I want to talk about two supreme court actions. The first one I want to talk about is Supreme Court ruling. The next thing I want to talk about is the Supreme Court that's going Court that's agreed to hear a case during its next term, but I want to talk about the Supreme Court in a unanimous decision, which is rare these days, where it was 9-0. The Supreme Court ruled against immigrants with temporary status. Popo, can you tell us about this? Yeah, I don't think we're going to see many nine zero votes on this particular court,

especially how it's comprised. But you know, the issue has to do with a status that about 400,000 people in this country hold. It's the temporary protected status or TPS. And these are people that came to this country from primarily war-ravaged countries. And there's about 12 of them. And they got status to stay in this country, protected status to stay in this country. Half families, work, pay taxes. But the question here is, were they, and this is a hyper-technical term, were they admitted, admitted, into the United States to allow them to go through the green card naturalization and permanent residency process,

or did they come in some other way and therefore are not ultimately green card eligible? And so our listeners are probably saying, well, who cares? Just give them the green card. They got here, we recognize them. They already went through a lot in their life, having left a war ravaged country. They're now thrown down roots. They've had babies and children,

which are mainly, a lot of them are dreamers, the Dream Act. And they're contributing members of our society. Why are we making them go through an extra hurdle? But look, the way the immigration laws are written, the question, and this was, this is a majority opinion written by Ellen Lena Kagan. You can't get any more liberal of a Supreme Court justice than that. And even she thinks that under the statutory reading of who is admitted and who is not admitted to allow them to get into the green card line, that they are not technically admitted. Now, she also recognized in the Supreme Court

decision that Congress has a role here, and that Congress is currently considering to fix this because that's what their job is. If there's a loophole or they can close it and they can pass a law that says, okay, if you're TPS temporary protected status and you came in during this period and you're in this country and you've done everything else fine, you're not a felon, you haven't committed any crimes, you've done everything to be a law abiding participant in our democracy, then we're going to allow you to get into the green card line. We're going to give you a path to citizenship or permanent residency.

That is the role of a legislature. The role of the Supreme Court is to rule on the law and to come to terms with whether technically and otherwise the law says that they're allowed to get green card status or not. And, you know, unfortunately for the TPS people, and there's again, and half and almost half a million of them, Kagan and the other eight said that, no, unless there's a law change by the legislature, we're going to have to deny you green card. That doesn't mean they get thrown out of the country. They stay in the country. Their TPS status does not change, and they're allowed to continue to work in this country and contribute. They just don't get permanent residency

or ultimately citizenship unless, and they're never going to do this, unless they left the country, went back where they came from. And there's a reason they left where they came from and came back through the front door, if you will, through a proper admitted process and applied. None of them are going to do that. And we wouldn't expect them to do that. We wouldn't expect

them to do that because that would be barbaric to send people back to places where they're going to be killed. Absolutely. And I think though it is going to be hard based on at least the current composition of the Senate. And the fact that Mitch McConnell said that he will fill a buster and block everything. And Joe Manchin and Sinema saying that they're not going to fight against the Mitch McConnell use of the filibuster in such a way that I think there won't be legislation passed. But I do think that even though the outcome seems incredibly harsh, It does not mean as Popoac just pointed out that these individuals are gonna be sent back

to their country anytime soon. And where is Mark, I mean, just to, I'm not even joking about this, where is Marco Rubio? I haven't seen Hyde nor Hare of him. He's still a US Senator, is any from Florida? And one that came from an immigrant family that came to this country from Cuba. Why isn't, where are we? What world do we live in? That people like Marco Rubio don't put politics aside and stand up for what's right and lead the charge. You know, he's always taking

these BS positions and immigration when he thinks he's going to run for president. But what it really matters, at 400,000 people, most of which would like to be US citizens one day and have done everything they can to come to this country. Where is the moral leadership in the Republican Party? It's completely absent. Completely, utterly absent, although we can do a whole podcast

that in fact we do. It's the mightest touch podcast with Ben Britton-Jordy twice a week. I want to close by talking about this final Supreme Court action. The Supreme Court's going to hear the second state secrets case that they're going to be hearing this one about the FBI allegedly surveilling certain Muslims in the Orange County Muslim community. the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, the region, region, the region, the region, region, the region, the region, the region, region, the region, region, the region, the region, the region, region, the region, region, the region, region, region, the region, region, region, the region, region, region, the region, region, the region, region, the region, region, region, region, region, region, the region, region, region, secrets? Yeah. So this is always a nettlesome problem,

because on one hand, and if it wasn't Trump, we probably wouldn't find it so troubling, but on the one hand, the United States government does have the right to protect state secrets. And if they are conducting legitimate surveillance operations on citizens or otherwise, the argument is and the case law is including a 1953 Supreme Court decision that they are not required to reveal the full extent of the investigation because if they do, they will jeopardize

assets, human assets around the world, including FBI agents and other CIA agents and espionage around the world and compromise those programs and maybe put people's lives at risk. That's the argument. And if they're able to avoid providing this information under the state's secrets avoid providing this information under the state secret's a doctrine, then the plaintiffs who are suing like these Muslim Americans in California, their case is going to have to be dismissed because they're not able to get any of the discovery, and that's we talked about that before, that's the information that you obtain in the civil process

throughout the course of the litigation, whether it be by deposition or documents or metadata, whatever it is, there's a whole period in which you try to develop your case in the United States in advance of a trial. If they can't get any of that information because it's been blocked by state secrets, their case therefore gets dismissed.

So this is about whether their case gets dismissed or not. And there's two state secrets cases that the Supreme Court has taken at the same time, one about Guantanamo Bay, and this case about the Muslim Americans. So they are going to be ready in the next term. Remember, we're going to come into the Supreme Court hiatus, some are hiatus soon, like next week. And then we're not going to pick up again until the October term soon like next week, and then we're not going to pick up again until the October term of this year when they hear oral argument. So they're going to hear this case both cases, and we're going to get a Supreme Court ruling the first time in probably 20 years, if not more, about the application and the extent that the United States government can apply the

state secrets doctrine to prevent lawsuits like this from happening in the civil context. What do you think is going to happen in these cases? it's doctrine to prevent lawsuits like this from happening in the civil context. What do you think's gonna happen in these cases? You know, it's interesting. I think on the underlying showing, remember that, or when I say remember, I'm really talking to our listeners, the appellate courts do not take evidence

in as part of the record when they're doing their review. They have to make their decision based on a static record developed below at the trial level. I mean, you and I know that, but I want to make it clear to people that listen to us and follow us. The Supreme Court doesn't take testimony, it doesn't swear in witnesses, it doesn't get any new documents submitted to it or information submitted to it. It can only review that, which is in front of it, that was developed below at the trial level. And I don't know the record really that was developed below. They're going

to have to evaluate what the federal judge that looked at the information, the affidavits that were supplied by the government, Because that's how the government exercises its alleged right of state secrets. Doctrine, they file affidavits and they outline, I mean, as much as they can without revealing state secrets, why they, in this case, this Muslim surveillance case, they shouldn't be forced to provide documentation or information in discovery.

Supreme Court's gonna have to look at that record and decide it. But even beyond the record in an individual case, the Supreme Court obviously now has an interest for whatever reason. They've gotten at least four of the justices to agree that it's time to make new pronouncements about the state's secrets law.

So they, as a Supreme Court body, they see as their responsibility putting more clarity for lower federal court judges on this particular doctrine in the trying times at which we live. So I'm not really in a position yet to handicap how it's going to come out. What do you think? Well, you know, I think one interesting point is when people know, well, who's arguing these cases, you know, for the government. There's actually a position called the Solicitor General of the

United States. And so when the government is a party, it's usually the solicitor general, or the solicitor general's designee, and the solicitor general going back to our theme of Department of Justice is really other than the, other than, Merrick Garland,

the solicitor general would be basically the top position there who argues in front of the Supreme Court these cases. And so what's interesting too is that a lot of these issues may have arisen in past administrations, takes time for these cases to go up. So a lot of these cases may have been decisions that were made by the Trump Department of Justice, or even before that earlier departments of justice, even maybe Obama, the Department of Justices, but in the line of continuity, the solicitor generals defending the government's position in these cases.

But I tend to think the reason they're taking these cases and knowing the kind of composition and the general view of some of these Republican appointees of taking a robust view of the powers of the president, the executive, the ability to make claims and do things in the interest of national security. My gut is, is that they're gonna take an expansive view of state secrets. And basically say, we should basically take the government's view of state secrets here and dismiss these actions and that the government should be given leeway here.

But, you know, while you're right about that, because I had, I was remiss, I didn't, I didn't explain fully that the doctrine, the state secrets act is an extension of presidential power. It's the, it lies in the executive branch, and you're right, the Republicans, and especially the Republican appointees love to find ways to expand the presidential powers. And I think you're also right

that they wouldn't be agreeing to take it. They're not taking it to water down the act or the doctrine. Hey, great. Now, I want to thank one, everybody, for listening to this edition of Midestouch League of the F, but we do have to talk about this Fox News situation. A Fox News refusing to air our Midestouch video called GOP betrayed America. It features the voices and stories of law enforcement, the insurrection. It tells the story about just what happened during the insurrection. And the point of the video

is that it condemns the insurrection and it condemns Republicans who want to whitewash or who support the insurrection. 60 seconds, super short insurrection, bad, don't vote for people who support insurrection. That's the theme. It's a very simple ad. We tried to get that on Fox, might as touch did. Usually, if there are issues, someone like a fox will come back to us and say, hey, there's an issue with a copyright or there's an issue with, you know, this is maybe too violent or whatever their comments are. And then you have an opportunity to fix it. And, you know, because of the, you know, the first amendment and, you know, generally, you know, these networks, you know, will take your money and play ads that should be played as long as they don't violate the law.

And here, this ad clearly does not violate the law. It actually condemns people who violate our most sacred laws. So I thought Batch was actually going to play it. I'm not trying to be naive. We've run other ads on Fox before. And sure, they've come back to us and said, hey, can you make this change? We made the changes.

And then they are. But here they just ignored us. And then we followed up and then they said, we're rejecting it. No comment, nothing further, just we're rejecting it. Now, networks do have an obligation when it comes to political candidates, not to refuse them the way they did here,

it is true that technically, because we're a political action committee, there's no absolute law that requires Fox to air our ads, but it does strike me as something is wrong here, and the question is, is there something legal wrong when us as a political action organization, not the podcast, but the political action group

wants to operate and get its message out, pursuant to its underlying business purpose as a political action committee, and then an entity that has dominant market control over conservative voices, over conservative viewers. And again, I hate the term conservative, but under GQP viewers, that they deny us the ability to even have a conversation. And so, POP, is there any chance we have any legal remedy here or was our remedy just exposing Fox as being a fascist network and not wanting to show a video that condemns

the insurrection? Well, without blowing entirely attorney client privilege by having 20 or 30,000 people listen to my advice to you. Let me frame it this way. You have one of the big four television networks, probably the second largest or first largest depending upon how you review the ratings, who have a license provided by the federal government under the FCC, it's a license.

It's not a right to be a broadcaster. It's a license provided by the federal government who have denied my client, wearing that hat, might as touch in the pack from from having an ad. If all, let's do it this way. All networks decide they don't want to run ads from might to stuch because they don't feel like it denying you the ability to broadcast literally your point of view. You do podcasts, you do viral videos, and they reach millions of people, but you're not hitting 25 million people, super ball numbers in one

But you're not hitting 25 million people, super ball numbers in one 30 second clip, the way you would on broadcast television. That's still the power of broadcast television. Yeah, you know, with power, with power comes with responsibility. So whether it's through, and you and I have talked about the problems with the federal, the federal communications commission, the FCC, which regulates TV licenses. They can yank a license. They can censure and sanction a broadcaster for doing something inappropriate. They can. Will they? Depends on who's in charge. And that's why the Biden administration now being in charge helps. Federal Election Committee Commission, I don't think helps us because, as you said, if you were a political candidate, you'd have a more elect to stand on.

But the avenue of attack has got to be that these are commercial organizations that hold licenses at the liberty of the United States through the regulatory process. They're denying you a point of access to that market. And therefore, they have committed, and then you and I are going to have to develop the cause of action that they have violated. But if you're asking me, does it sound like that there is a lawsuit in there? Because it's not going to be the only time they do this to you. You and your brothers are going to create another amazing heart- insightful ad that should be seen by not not just the

Midas mighty, shout out to the Midas mighty, and to the couple of million that see your viral videos, but to the planet and the country writ large. And you could only do that through broadcast television. So I think there isn't avenue of attack there. I mean, you think, Paul Pak, you know, to me, it's incredibly far more serious when it's a message like R's, which is the insurrection is bad and they refuse to play it. But just think about if market actors could conspire with other entities here to truly dominate certain areas and crush competition simply because, again,

as you state, they have a license or they have access to this audience and that they could consolidate or monopolize a specific audience by preventing them from hearing other points of view. Now ours is pro-democracy, but just imagine if it was hey You know, we only want you to try this ice cream and then another ice cream company says hey, can you play our ads? No, we don't like your ice cream you you can't air it on our head do it this way, and it's not so much competition

It's that they control your access to the National public because they hold a one of the four major broadcast licenses. Everybody, we talk about all these other places that people get news. And like 70% of a certain demographic in this country get their news from Facebook. It's crazy. But having said, I mean, it's, it's efficient, but it's crazy.

But broadcast television still has a major role, but let me bring it, let me bring it home this way. And this is going to sound a little bit like science fiction or a Philip Roth novel that never got written. But suppose technology was really advanced the way it is right now, but in the 1930s and 40s. And we were in Nazi Germany, and you wanted to run an ad to bring to the public the horrors that were going on behind the scenes in concentration camps. And you had an ad like that, and there was television the way it is today. And the Fox news in that country did not want its public to see this

and denied it. Is that the country that we live in? We live in a country where that atrocity can't be portrayed and disseminated to the widest possible population under the First Amendment and the press, right? January 6th to happen again by keeping it undercover and rewriting the history of it? You know what here's the thing. So you have the Fox Broadcasting Company, obviously, which requires a license from the FCC. The Fox News Network, because it is and I hate the word news, because it's not what it is, is a cable news channel. So I don't think they are the same or if any kind of FCC specific licenses

and regulations, but nonetheless, the fact that it's still anchored in a broadcast and company that does indeed have an FCC license requirement in the underlying Fox universe. And then the fact that it's out there and just denying us our ability to speak about pro-democracy. I mean, to me, is very problematic. And I think ultimately, you and I will be discussing this more.

I do want to pursue every possible legal remedy here because I want, at the end of the day, I'm not looking for money, I'm not looking for a lawsuit that, you know, to sue for damages here. I want the ad to be played so that I can speak to people that may have a different view of things and say to them, come on, don't you think that leading an insurrection against democracy is bad? Come on. Here are some capital police officers. Here's what they have to say about. Let me make it. Let me even, let me geek you up even more, not that you're not geeked up for this enough. We talk about making bad law. How can you sit on the sidelines and allow this to happen to set the precedent for the next time?

Because if you don't take a stand now, if the pack doesn't take a stand now and go after this, stand now. If the pack doesn't take a stand now and go after this, it's going to happen every time and you're going to be known and it's going to be in the hallways of Fox News that all they have to do is reject the ad and write a little letter and you're going to go and run and run hide. Is that is that might as touch? That is not might as touch might as touch our fighters might as touch? That is not might as touch. Might as touch. Our fighters might as touch doesn't give up. And that is why we have Popock as our lawyer and as our legal AFCO host.

And so Popock, I want to thank you for this incredibly insightful edition of Legal AFK. I want to thank you for listening out there to this Legal AFK. We hope you learned a lot about the Department of Justice. You probably learned a little bit about Bitcoin. You learned a lot about some of the recent Supreme Court actions taking place. We hope you share and spread that information to your friends, family and colleagues. And of course, we hope that you continue to unabashedly, unequivocally go out there and support our democracy, our institutions.

And we hope that's one of the key things you take from these Legal AF podcasts. Hope I can find a word. Other than I am sure that we're going to refill the water glass and have another six or eight great topics for next Sunday. And thank you to the Midas Mighty for all the support and love that we get on Twitter. As Jordy would say, shout out to the Midas Mighty for all the support and love that we get on on Twitter. As Jordy would say, shout out to the Midas Mighty!