Legal AF by MeidasTouch - SHOCKING New INDICTMENTS in Trump CONSPIRACY and MORE

Starting point is 00:00:00 In the New York Civil Front Case, Trump has already suffered a series of losses in the last week. The gag order to stop the Trump side from bashing the judge's law clerk is reinstated by an appeals court. Trump's team got basic appeal procedure wrong to obtain a fast track appeal to the highest court and put a fork in it, the defense case is about over, with Trump and Eric electing not to testify again for the defense, sensing I am sure that they will be on the losing end of the civil fraud case come January.

Starting point is 00:00:31 We break it down. Jack Smith has informed the trial judge in DC election case, that he intends to use Trump and his co-conspirators' words and actions against them at trial, with special 404B evidence to show common plan intent, lack of mistake and to prove Trump's criminal intent. We break it down. What is 404B? You'll know at the end of this podcast. The Federal Civil defamation jury trial, the District of Columbia against unindicted

Starting point is 00:00:59 co-conspiratory number one, formerly known as Rudy Giuliani, starts in about 10 days. Why is the trial only about damages? And how big a check will the jury write for election workers Ruby Freeman and Shay Moth? Moths. Why is this a jury trial at all instead of the judge just deciding? Why is Rudy the only remaining defendant? And why is the judge so annoyed at Rudy and his lawyer we discuss. Finally, now the Ken Chesbro, disgraced Trump lawyer and Georgia felon has likely testified to the grand jury in Nevada.

Starting point is 00:01:33 We have new indictments of fake electors there, including the former heads of the GOP in Nevada, joining Michigan and soon Arizona. We discuss all this and so much more at the corner of law politics and justice on the midweek edition of the legal AF podcast with Karen Friedmanek Diffalo and me Michael Pope-Pock Karen. I got a I got a question for you. Yes. Are you thinking of launching a yet another edition of legal AF? The ladies edition? Well, I've seen that. Is it though? Does that that sounds like the NBA versus the WNBA? We're all peers, but is it true? You and Daniel Perry? We're testing the waters. We're, you know,

Starting point is 00:02:16 doing a few here and there. You know, we're, it's a little, we'll see. We'll see. The restaurant's still a self-dopening today. For now. For now. For now. For now. For now. For now. For now. For now. For now.

Starting point is 00:02:32 For now. For now. For now. For now. For now. For now. For now. For now.

Starting point is 00:02:40 For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now.

Starting point is 00:02:35 For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now. For now.. Let me let me lead with that. That's the better headline. We get tremendous, tremendous, beautiful support. You know, we share with each other when we catch something in a chat or an email or a text. One of us gets that is complimentary because it helps balance off some of the other trolling that happens. But occasionally we criticize for grammar or we pronounce states names wrong or names

Starting point is 00:03:10 of people wrong. And all I can say is, I don't know, we're trying. We're like a garage band. We're doing the best we can on the limited budget we've been provided to bring you that analysis in real time as quickly as we can. And sometimes we make mistakes, but we're human. I guess what people like about the show. Speaking of humans, that's a great segue.

Starting point is 00:03:33 Speaking of humans, let's talk about the New York civil fraud case. And let me frame it and then punt it over to my illustrious partner. In this all things law, I was at crime, partnering crime, partnering law in order would be better. Karen Freeman, I can't follow. So Donald Trump didn't like that. He got gagged and his lawyers got gagged because he likes to bash and a misogynist way doesn't care that he puts somebody's life in jeopardy. The principal law clerk that works for the judge.

Starting point is 00:04:06 There's no other way to put it. He must get up in the morning and brush his teeth and think, how can I attack this poor civil servant on a daily basis, accuser of crimes and being unethical, because I'm losing in the courtroom. When he got gagged, like enough, put a sock in it, you know, show some decorum, you know, you know, show some respect for the dignity of the process and all of that. You know, he was happy for about a minute when they were successful in getting a administrative, like a duty judge, a duty judge that's assigned to take in on appeal and

Starting point is 00:04:48 kind of emergency relief. And they got, they pulled Justice Friedman again. And Justice Friedman has been wrong twice related to Donald Trump and said, yeah, I'm going to stay the gag order until the full merits panel of the first Department of Panel Division can rule on it. And I'm not sure I see anything wrong with attacking the law clerk. We were like, what? And so that just led Leticia James to send in pages and pages and pages of declarations

Starting point is 00:05:14 in affidavits and exhibits showing how the threat assessment has gone up so terribly against a judge and Goron and against the principal law clerk that the Department of Public Safety has had to intervene and protect them. And then a four-judge panel, full merits panel, four justices of the Appellate Division First Department reversed what the Judge Friedman had done and reinstated the gag order, both on Donald Trump and his lawyers, while in the background, we still wait for the DC court of appeals in the criminal case there to decide whether Judge Chatkins gag order should be upheld. And so all these things are going out at the same time. So that was the result. And then why don't you take it from there. There's been reporting about how clueless Chris Keiss and Cliff Robert are.

Starting point is 00:06:10 And I mentioned this in a hot take that I did about just basic appellate procedure and how it works that at the first department as they showed up breathlessly at the clerk's office trying to get their papers filed which were bounced to get to the higher court, the court of appeals in New York on the issue. And in the meantime, going back to the trial judge, Judge Engoron, because the case, I've spent seven minutes, six and a half minutes talking about everything except for the merits of the case, which is sort of what Donald Trump wants.

Starting point is 00:06:40 I've just been talking about the law clerking, gag orders. And it's taken away valuable time to talk about what's going on in the courtroom in a civil fraud case where a judge holds Donald Trump's business future and past and dollars in his hand. So why don't you take it from there, Karen, and fill everybody in about what you observed. And where do you think this goes from here as we move into a closing argument in January?

Starting point is 00:07:08 Well, we're deep into the defense case, right? The prosecutor rested. They've had over I think 45 trial days at this point and we're in the, I think fourth week of the defense case and they have been putting on witnesses, a lot of experts and bankers and various individuals. And it was widely expected that Eric Trump was going to come back as well as Donald Trump were going to come back and testify on their case in chief, their defense case. And you know, for people who aren't familiar with civil law and how it works and I'm new

Starting point is 00:07:44 to it. So I find it fascinating how different it is from criminal law. You know you might say well I don't understand in Eric and Donald already testify why would they be coming back and the way it works in civil cases and not in criminal cases this is completely different and, is you can't call the opposing counsel in a criminal case, or the opposing party, I should say, in a criminal case, on your direct case, because they'll take the fifth. They have a fifth amendment right against us, incriminating themselves, and so it's not done ever.

Starting point is 00:08:20 And they would testify if they want to put on a defense, and then they would waive, you know, but that's their own choice. So they'd be waiving their Fifth Amendment privilege and then the prosecutor cross-examines them. Well, in civil cases, it's fascinating because they have depositions already. So they've already questioned them. They know what they're going to say. Again, in New York, you don't have criminal depositions

Starting point is 00:08:44 and so you can make a decision whether or not you want to put them on the stand know what they're going to say, again, in New York, you don't have criminal depositions. So you can make a decision whether or not you want to put them on the stand and you would essentially cross-examine them because by law they are hostile because they are a party opponent. So, I found it fascinating that they were cross-examined, but then their lawyers didn't talk to them or speak to them or ask them questions. And I asked you about that, and you educated me that, and I appreciate it very much, that the reason that's done is because they wait until, and they tell their side of the

Starting point is 00:09:17 story and what they want to say on their case, because when there's a motion to dismiss at the end of the government's case, you don't want to have added to that by providing evidence, right? You wait until your case. And so that's where we are. And so everybody's expected that they would come back and give their side of the story and testify. The way Don Jr. did when he gave his Trump organization television commercial and touted all the various properties and talked about how great they are

Starting point is 00:09:47 and fond over his father who he called a genius and his ability to work with real estate and transform it was like watching an artist work. I mean, it was just one of these like gag may moments that happen sometimes in trials. And but apparently what happened was they asked, they asked Judge Angoran to delay their testimony until after the pellet courts rule on this gag order

Starting point is 00:10:18 that you were just talking about, the gag order that they are appealing. And Judge Angoran turned to the government and said, what do you think? And they said, no way. And Judge Engoron said, no way. And so Eric, so far, has chickened out and decided not to testify. And all the reading I've done is that Trump is still scheduled to testify on December 11th, although I know you did a hot take saying you don't expect him to testify given this information. Do you have other information that I haven't been able to find? Yeah, I think the reporting that I'm saying is that Trump's not testifying again,

Starting point is 00:10:56 but Donald, I mean, especially now that they've ruled that he can't... A pair, I don't, I still, for the life of me don't understand that they've ruled that he can't, I still for the life of me don't understand why the gag order preventing him from bashing, that's all, that's all that I want to be clear. The gag order in the District of Columbia is broader. That has to do with targeting witnesses, co-defendant was no co-defendant in DC. Witnesses and members of the criminal justice team, prosecutors, their staff, investigators, and the like, and targeting them in social media and in other statements by Donald Trump or his proxies, ones that he controls.

Starting point is 00:11:36 This one's even narrower. This is in a civil case. Don't bash docs, attack, talk about the functions of, or the behavior of conduct of my law clerk. And to be clear, I am not here suggesting that if Donald Trump or his team had a legitimate appellate appeal reversible error type issue, that they shouldn't have the right to preserve the record and make a record for the appeal. The way that we'll have a little legal AF breakout session on a pelvic practice.

Starting point is 00:12:08 At the trial level where the record is made, that's the record meaning the judges rulings, the evidence, the testimony, the transcript of the hearings and the trials and all of that, comprise and the filings, pleatings and other discovery and other things that are on the docket of the case, so to speak, are comprised the record. That becomes the record on appeal that gets transmitted to whatever appellate court is the next stop on the train. It literally gets transmitted the entire package.

Starting point is 00:12:37 It gets numbered one through whatever the last page when you stack it up in one big pile. So, joint appeal appendix or appendix, you know, one to 5,000. That's how it's referred to in briefing. And you send it to the appeals court. And if you have an issue that you want to preserve for appeal, you mention it at trial to give the trial judge the first opportunity to make the decision, because that's what you're supposed to do, to preserve it. And if the judge rejects your position, you can go further and make a proper about what the evidence that's bit or the issue that you're being precluded from talking about would

Starting point is 00:13:14 have shown and you can make a proper not for the judge who's probably already made up their mind, but for the appellate court. And you can point to that, I made a record. The record, they made a record. It's now become what I call the Nihatik a broken record about the principal law clerk. We got it. You think she's Chuck Schumer's girlfriend. You think that she's because she's a Democrat. She can't be fair. You think because in response to ridiculous arguments being raised by Alina Haba, the lawyers or Donald Trump, and she rolls her eyes or puffs that that indicates reversible error. That she's doing her job as the

Starting point is 00:13:52 principal law clerk, handing notes and assisting the judge at the trial of fact in a 10-week, 12-week, 14-week trial where he has to keep everything straightness head in the record. Great, you made the record. That doesn't mean, first of all, not only does it mean that you have to keep raising the issue every, oh, another note, another eye roll, another comment, another social media post by the law clerk, you made the record.

Starting point is 00:14:19 And to do it after the record has been made, which was it was made a long time ago, five, six weeks ago, then it just becomes abusive, unethical conduct by people that are supposed to be officers of the court in a courtroom. And that's where we are now. We've crossed past, well passed the line of making a proper record if that was their intention into the world of abusive, harassing conduct that has no place in the court system of New York. And that's what the Appellate Court has been saying by reinstating the gag order. I don't know what that has to do with Donald Trump or Eric Trump or anybody's decision to

Starting point is 00:14:57 testify or not. They're just looking for an excuse not to testify. Because obviously, now we're in minute 15 of our podcast talking about what's going on inside. It's not going well. Experts for Donald Trump that have no basis in fact in the record of the case or in relevancy tied to issues about materiality, intentional fraud, and the amount of the ultimate recovery by the people if they prevail. They have nothing to do with it.

Starting point is 00:15:28 Most of those people were destroyed by their own reports in cross-examination. So take the Trump experts off the board. The bankers didn't help him either. He promised Trump, you'll see my bankers, do what you're bank loves me. They love me. They love giving me money as much as I want, regardless of how much I have in the bank. Wrong. You have a disconnect in a mismatch between the front of the house and the back of the house and a bank. The front of the house is the banker. They're salespeople. They're just selling all day long. They go on golf trips and junkets. They take their clients to Scotland to go play links courses, look it up.

Starting point is 00:16:08 And they shower them with gifts and presents because they just want the business. I want the biz. The back of the house has compliance and underwriting requirements and review of assets and due diligence requirements in order to run a bank. And the underwriters are the ones, not the bankers are the ones that set the amount that they want as security and pledge collateral for alone. We want 2.5 billion in that worth, real net worth, not cookbook that worth. We want 500 million in liquid assets.

Starting point is 00:16:42 And that's what you have to have. It's binary. You either have that number or you don't. It's up to Trump world when you don't have that number, when your real balance sheet is closer to one billion, which we'd all love, I wouldn't want that, suck that on my bank account. But that's the one billion.

Starting point is 00:16:59 It's not two and a half. So that would limit the amount of money that he'd be able to get from a Deutsche Bank. So we're not here to suggest that Deutsche Bank's bankers didn't love him. I'm sure they did. He was a well. If you're a billion or more, you're a well. The question is, are you Moby Dick? Are you two and a half times that in order to get the money that they were given?

Starting point is 00:17:20 And that is the issue. They keep missing. It's like they're putting on two different cases, which is... Let me just finish that point, and I'll turn it over to you, which is terrible for Donald Trump, because the case that matters is the civil fraud case and the amount of the remedy dollar amount that's gonna be awarded by this judge.

Starting point is 00:17:36 Sorry, Karen, go ahead. No, no, I was just gonna say, what I thought was interesting or weird was the bankers who testified that Deutsche Bank bankers who testified, the Deutsche Bank bankers said, look, financial statements are estimates. So as a result, we do our own due diligence. And in fact, here, we adjusted the numbers downward. We adjusted it from 4.9 billion to 2.6 billion.

Starting point is 00:17:59 Doesn't that prove the fraud? Didn't he just say? Because it's about the fact that they submitted false fraudulent documents. I was like, that to me is the proof right there. Right. The delta between, we gave John Trump a haircut off the number he gave us, but the problem is the number was so high that the haircut wasn't deep enough to match the act, right? Isn't that your point, Karen? To match the actual $1.5 million net worth.

Starting point is 00:18:30 He didn't have 2.7. He didn't have 4.5. He had one point, something. If you were honest about the value of Mar-a-Lago, the Trump Tower, 40 Wall Street, and all the other pieces of property that make up his balance sheet. And that's what the, some people I boot- boot tuning in late might be thinking, is that what this

Starting point is 00:18:47 case is about? This is exactly what this case is about. The statements of financial condition reflecting the assets that Donald Trump can claim ownership of and what if the numbers were true or false? It's easy. You know, if you go pull the balance sheet for Microsoft, for Apple, for name your favorite company in America, it's relatively easy. So if you go pull the balance sheet for Microsoft, for Apple, for name your favorite company in America, it's relatively easy.

Starting point is 00:19:08 There are there's cash on hand, there's assets that are valued under generally accepted accounting principles, which is which which have due diligence as part of it because there's auditors that are involved, not auditors that that leave the scene screaming, we can't trust the numbers of our client, but real auditors. And therefore the public in making investment decisions can rely on them. And that's why we don't have cases where a major company in America is cooking the books. We do in a mom and pop shop basically a family business, which is all this is a family office, which is all this is. That's a thing that's a

Starting point is 00:19:43 New York thing, right Karen? Family offices. Yes, exactly. So many people are. It's interesting. Yeah, there's a lot of people who work for family offices. All that means that's code for, we're rich, we have a lot of money, and we have an office, and we invest our money and take care of our properties

Starting point is 00:20:00 and our various holdings, and that's the family office. And right, and the family office, this is just a glorified family office, the way that the way that that's run, and they didn't have the controls in place. This is my family office, by the way. This is my office. They didn't have the, the family office in the Trump world doesn't have the controls in place to be a legitimate business. And that's why persistent fraud is often found in places like that and not in places like

Starting point is 00:20:28 publicly traded companies because publicly traded companies don't have all their executives with their last name, same last name, and they actually take their position seriously. And they are control officers and they know what that means. And they're skilled, qualified and trained to run that to run those operations. Those different operational parts of that. That's not here. That's not what Donald Trump wanted. Donald Trump wants to wake up in the morning and go, I'm a five billionaire.

Starting point is 00:20:56 Let's go borrow money today. Get my guys on the phone. I mean, that's fine until you get a New York attorney general and combined with the most robust series of laws in the, I would argue, in all 50 states to go after persistent fraud exist in New York since 1956, which is the 63-12 executive law that we're under right now. So let's say Trump comes back. All right. So is there any, do you have any,

Starting point is 00:21:25 what's your view about, what are the odds, so let's do odds making here? What are the odds in your mind that Donald Trump prevails on any of the remaining six counts and or is able to limit the amount of money that is taken away from him and companies dissolved when the trial is all over. Through Judge Engor. So I think after the government puts on a rebuttal case, if any, and Judge Engoron has his, here's the closing arguments mid-January, and then gives his decision that will likely be written.

Starting point is 00:22:05 I believe he is going to throw, I think he's going to acquit, if that's the right word, on at least one charge. I really do think, especially now that you've got all these bankers saying that it didn't make a difference, we didn't rely on them, we did our own due diligence. And the reason I think Judge Engoron's going to do that is because Trump's entire appeal is going to be based on the fact that Judge Angoran was biased, that he's partisan, a

Starting point is 00:22:33 best law clerk, that he wasn't listening, he didn't have an open mind, that he was 100% had his mind made up, that he didn't listen to the evidence, and the perfect way to inoculate that and immunize that argument is to show that he did listen to the evidence and the perfect way to inoculate that and immunize that argument is to show that he did listen to the evidence and he didn't just give the government everything that they wanted. And so if he doesn't give them the remaining six charges, I don't think that makes a difference one way or another. They've already found the big charge, right?

Starting point is 00:23:00 The big one and the damages, I think, are going to be significant in addition to monetary damages. It's going to be a huge, huge, huge penalty, but I also think he's not going to be able to do business in the state of New York anymore. He's going to have to sell off many of his, or dissolve many of the LLCs or other companies that he's set up that hold many of the LLCs or other companies that he set up that hold many of the licenses and the businesses that he has here in New York. That's my prediction of how it's going to go. What about you? Yeah, I know. I just want to check in with you. It's very similar to what we said a few

Starting point is 00:23:37 weeks ago, but now having seen more evidence, I wanted to see if your position changed. I think you're right. I think that there's enough evidence. And on the lower scale, not criminal, a preponderance of the evidence for the litusia james and the people of the state of New York to prevail at everything remaining. But why not? Why not throw them a bone and suss out? Maybe the remaining counts are insurance fraud, books and records fraud, which are all crimes, by the way, financial statement fraud and conspiracies around those things, other three things.

Starting point is 00:24:13 And so, sure, throw them a bone. I think it'd have to be because the conspiracy and the underlying count issue, I think you'd have to throw two bones. So maybe he says, I don't really see the insurance fraud. If there were one, if I were to pick one from the Karen Friedman Ignifalo world, which I agree with, I think he may toss the insurance one. Because again, that's the one. There's not a lot of damage there.

Starting point is 00:24:35 There's not a dollar amount that could be discouraged from insurance. But it does give him, like you said, that prophylactic insulation from being said, well, how biased was I? I dropped one of your counts, you know, and all of that. And so we're going to keep watching. I think without any of the Trumps testifying, even if Donald comes back, I think the case is about baked.

Starting point is 00:24:56 There may be a short rebuttal case the way it works as Karen alluded to it. Petitioner, plaintiff, state went first then and they went for a long time, 25 witnesses, thousands of pages of documents and exhibits, hundreds of thousands of pages. Then we bid in the defense case for the last several weeks. And then at the end, the attorney general gets the last word and they decide to put on what's called a rebuttal case. They can. I've done them. It depends. I'm of two minds. You never want to give up the opportunity of the final word, but if you think we've been

Starting point is 00:25:31 here, it's exhausting. We've been here for 12 weeks, and we weren't really damaged because the rebuttal would have to literally be a rebuttal to what you just heard in the defense. And the experts were terrible for Donald Trump. The bankers weren't any better. You know, even when they put McConion to cry his way through his testimony or Patrick Bernie, I'm surprised he's still employed Who said that he was told by you know, Weiselberg for Donald's rubbed to change the numbers You know, what are you gonna rebut?

Starting point is 00:26:01 But they could they may take a day to do a quick rebuttal. If they have someone from Deutsche Bank, if they have someone from Deutsche Bank on the other side of the fence, that could be pretty crazy. You could bring in rebuttal, you could bring in, you're right, you could bring in rebuttal witnesses. Unless you feel like you're gilding the lily,

Starting point is 00:26:17 you and I have done this. If you think you're way up on points, although it's never enough, because you never know, especially. And I would still do it just to show that it's not true. I just, for me's never enough, because you never know, especially. And I would still do it just to just to show that it's not true. I just for me, but again, I'm used to having to prove my case beyond a reasonable doubt. Right.

Starting point is 00:26:32 And so you better work out that point. Right. You better work out that point. Yeah. Yeah. You definitely have to run up the points on that theory. But you also have a slightly frustrated and go on, you know, look, eight weeks ago, before they started the trial, it's hard to believe, beginning of October,

Starting point is 00:26:52 and go on turn to the New York Attorney General's lawyers the day after he granted some rejudgment in their favor and said, do we really even need a trial? Like, I'm ready to go to remedy. And they said, no, judge, we think we have to try all six of the counts and we're in because the remedies that we're asking for are drastic. We got to make a record. Okay. But I think like the lawyers to shut their pie holes and let him start writing his order. I think he's already written a lot of his order and do the oral argument and then hit print. And as I joked in a hot take, I'm sure you have to or maybe not yet, I've finished oral arguments, and then have the judge go, okay, here's my decision, like, wow. Didn't change a word from when we started arguing. They rip it off in hand at you.

Starting point is 00:27:33 So I may not do that, although he's quick. You know, they got on him about the summary judgment being ordered. They went to a pellet court to force him to both rule on the summary judgments and delay the trial to give him more time. And six hours later, he issued his 30 page order on summary judgments and said, see you Monday for trial.

Starting point is 00:27:56 So he's, this is already written. I would say right now, three quarters of this order, one way or the other, is written already by the judge. And it's all, well, you know, the proof of the pudding is in the tasting. We'll see what happens the last week or so. Well, it makes sense because a lot of it's going to be, you know, the facts, the allegations, this is the prosecutor, the plaintiff's case, this is the defense case. I mean, a lot of it summarizes it.

Starting point is 00:28:21 So as you go, it makes sense that he would, you know, populate it with things that happen as it's going in his, in his, in his, in his, in his, and who's populating it. So as you go, it makes sense that he would, you know, populate it with things that happen as it's going in his in his in his or his popularity. And who's populating it? The principal law clerk and her staff. Exactly. She is. Yeah, she has a job. I know people think they they they made her into such a cartoonish figure as they attack her and body shame her and misogynist and anti-Semitic and sexist and all of that. She got a job to do and every day she goes through the record at the end of the day and she points and marks the places in the transcript that just going to end up in the order. You know, just mind boggling to me. It's also mind boggling that they can't find the lawyers for Donald Trump who are not in who are not New York lawyers by training. I'm sorry, they're just not.

Starting point is 00:29:04 They can't find their they can't find their butt with two hands. They just, they are just, they run down to the first, I run down to the first department. They run down to the first department and they get with Chris Kaesol frustrated with the clerk. We're here, we're here to file an emergency. We want a one judge, yeah, they want the one judge again.

Starting point is 00:29:24 One judge, justice, to let us expedite it, go to the court of the fields of New York on the gag order. And the lawyer, another courtroom staff, because the principal law clerk's the lawyer too. The lawyer for the first department comes out and says, yeah, but that's not procedurally correct. Well, what do you mean? There's got to be a way.

Starting point is 00:29:41 He says, yeah, it has to go to the full for justice panel that just ruled against you and they have to decide you can't get an emergency judge right now To just pull them out and sign the order. Oh, what do you mean? He got all the reporting was he got people went down there and reported on this the criss-ciss got all upset Chris is always upset In this case. He's upset with the judge He's it's of travest, the travesty of justice. We can't bash the law clerk.

Starting point is 00:30:08 I assure you, never in his 30 year career in Florida as a lawyer has ever had a temerity or the balls to bash a Florida state judge, Florida Supreme Court justice, when he argued in front of the Florida Supreme Court as a solicitor general in Florida or any of their staff. when he argued in front of the Florida Supreme Court as a solicitor general in Florida, or any of their staff, I assure you, he has never, until he got into bed with Donald Trump ever did that. And yet he comes to my and your city, and our bar, and tries to crap all over the process because his client has his hands up his backside.

Starting point is 00:30:41 Who's his local council? Who prohac Vichet him in? Cause, you know, local council. The proper in Rhode Island. Because I mean, I try cases, I handle cases all over the country and all over the state. I did a trial in the far reaches of Upper New York state. And I'm barred in New York, I can practice there.

Starting point is 00:31:04 I hired local council because there is nothing like local counsel. They know every courtroom is different, every judge is different, every DA's office is different. Just the way they do things and there is nothing. This would not have happened. They would not have screwed up this appeal. They had someone who knew what they were doing and knew how to practice in New York.

Starting point is 00:31:26 It just doesn't make any sense to me. They're like a keystone cops of lawyers and layering. Just in a serious case like this that they wouldn't have someone who practices right here in the first department. It's almost malpractice to me. Yeah, it's interesting. She says she's a member of the New York state bar, Alina Habba. The people on the street don't agree. But I,

Starting point is 00:31:53 I'm not sure about that. And if she doesn't practice regularly in New York, look, it's hard to practice in New York. It's hard to pass the exam. And it's hard to practice. We have a thing called the CPLR, which is all about our civil procedure. It's unlike any other state. Most states follow and model themselves after the federal rules of civil procedure. And it's sort of when you look at the local, if you look at the Florida rules, for instance, of civil procedure, the Chris Kais is used to, and you look at them next to the federal, you know, you can see they're pretty close. New York, New York's got this Byzantine thing for the 1930s that we've been, you know, you and I still pull out the book. Where is that in the CPLR? Let alone the appellate

Starting point is 00:32:35 rules. So anyway, we'll continue to follow, like you said, the Keystone cops and what transpires in New York will turn next in our podcast to Jack Smith getting ready for trial. In March, has some filings to do and some evidence he needs to identify in advance. Special 404B evidence, which has a special quality. And Karen and I will break that all down. Along with some developments in the Rudy Giuliani trial, go to jury trial, just on damage, just how big of a check that he's gonna have to write to Ruby Freeman and Shay Moss in the middle of December. Christmas comes early to Shay Moss and Ruby Freeman.

Starting point is 00:33:16 And then finally, Nevada, Nevada, Nevada. It's all about elect fake electors, who also were heads of the GOP in Nevada. Now being indicted based on their activities in the 2020 election. All that and so much more. But first, one of my favorite breaks of the show are sponsors. Green Chef is the number one meal kit for eating clean.

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Starting point is 00:37:21 We're back. Or a frames green chef. Those are our sponsors for tonight. Great sponsors. I love those sponsors. I eat those sponsors and use those sponsors. Same. My parents actually love the aura. We're going down to visit my mom this weekend and we're given she's in Atlanta and I unfortunately in a sister living facility and we're given, she's in Atlanta in a, unfortunately, in a assisted living facility. And we're bringing her an aura frame that we preloaded with all of our most recent photos. And now once we set it up in a room, we'll be able to just shoot off the app.

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Starting point is 00:38:25 Donald Trump's lawyers might not realize they're going to trial and march and are doing everything they can in the District of Columbia case to avoid it. They're waiting on a gag order to be reinstated, I would presume, by DC, but in the meantime, there's a case to be tried. And as part of that case,

Starting point is 00:38:42 there's a rule of evidence that Karen, trial lawyers like Karen and me like to refer to as 404b literally is a rule of the evidence code, which talks about a certain special quality of evidence that's being used not to show that somebody because they did something bad in the past. They have a propensity to do something bad in the future, but it can be used to go to the heart of this case against Donald Trump, which is common plan, intent, criminal intent, lack of mistake, and it burdens and all of that.

Starting point is 00:39:14 So I know Karen, you did a nice breakdown of it with Donu Perry. I'll recently, it's up on one of our hot takes that's running right now. So why don't you lead off on this one? And then I'll fill in the couple that I found really interesting that I did some hot takes on. Yeah, sure.

Starting point is 00:39:31 So in the state, we called this MOL-MOLE-IN-E-UX, the French spelling, but it's a Rule 404B federally, as you said. It's basically the same thing. And it's essentially, you're not allowed to put in evidence of propensity of criminal activity. And it seems almost counterintuitive, right? Because if if you're a serial burglar and you go and you commit burglary after burglary after burglary and then you're caught doing a burglary, it seems like it would be probative, you know, to show that that this is somebody who that's what they do, right? And unfortunately, that is not allowed in

Starting point is 00:40:07 because the prejudicial effect, and that's the balancing test that the court will use is they weigh the probative value against the prejudicial effect. They'd say, look, just because he commits lots of burglars, doesn't mean he did this one, and you still have to prove your case beyond a reasonable doubt. But there is an exception to this kind of propensity argument.

Starting point is 00:40:28 And it's to go to prove up a particular character trait or a particular point, like, as you said, motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake mistake or lack of accident. And if you're going to introduce any of this 404B evidence, and 404B evidence is literally anything that's an uncharged, bad act or uncharged crime. And in this particular indictment, the conspiracy is very short, right? The Jack Smith DC case.

Starting point is 00:41:03 It's from November of 2020 to January of 2021. So about two months and in two of the charges it's even shorter actually. It's about a month, a month and a half. It's a very short narrow conspiracy from from November of 2020 to January of 2021. One defendant for charges and Jack Smith did it very very kind of tight for a reason and it makes sense. So if he wants to bring up anything that is beyond that time period, either before November or after January, he, one could argue that that's an uncharged bad actor and uncharged crime. And what Jack Smith did was said, look, even though much of what we're about to ask you to allow us to admit falls at different times, it's intrinsically part of the crime.

Starting point is 00:41:53 It's intrinsically part of the evidence. It's not extrinsic. And he said, but if you find that it is extrinsic to the crime, in the abundance of caution, we are going to serve notice of 404B evidence that we intend to offer in our direct case as part of our case that we're putting on. And that way, we comply with the notice requirement. It has to be in writing. And not only do we have to, not only does the law require you as a prosecutor to spell out what it is, what 404B evidence, what are the bad acts that you want to bring into your case, but you have to give the reason. You have to say, I want to bring this in because in all of the past burglaries, he always

Starting point is 00:42:38 left behind a pink scarf. And in this particular case, there was a pink scarf. And so that was his signature, right? That shows a common scheme or plan. It shows his identity. It shows his modus operandi. That would be allowed in, to show that, no, this is the guy. He's the guy who always leaves behind a pink scarf

Starting point is 00:42:59 because he's done it 10 other times. And that's when you can bring it in, because it's for that purpose. It's not to show that he has a propensity to commit a crime. And so that's how the judge looks at it. It's entirely in the judge's discretion to allow it in or not. And it's not appealable the way certain very limited things are appealable mid trial. It's appealable only after the fact, meaning

Starting point is 00:43:26 if he's convicted, then he can appeal it in the normal course. He can't go up on appeal prior to trial or during trial. If he doesn't like Judge Chuck Kinsley-Rooling, neither side can do that. And that's called an interlocatory appeal, which they cannot take. The way they can, the way Trump is doing in the presidential immunity and other constitutional arguments that he's making, those last week Judge Chutkin immediately after the DC Circuit in a civil case ruled that there is no presidential immunity in civil cases for former presidents

Starting point is 00:44:01 who were acting outside the scope of their job within hours of that ruling Judge Chetkin said, and there's no presidential immunity in criminal cases, either. And her 48 page ruling on that is like a novel and worth reading for anybody who wants to learn about presidential immunity and the history of our country and Alexander Hamilton.

Starting point is 00:44:24 It's actually a great decision decision and I loved reading it. But in this particular getting back to back to Judge Chutkin and the 404B evidence, I would categorize Jack Smith's evidence in three categories that he wants to bring in. And one is historical evidence of his consistent plan of claiming election fraud that was baseless. And that's sort of category number one. And there, Jack Smith talk goes as far back as November of 2012, where Donald Trump issued a tweet saying that voting machines had switched votes from Mitt Romney to Barack Obama's sound familiar. And that was obviously a long time ago before 2020. And he was already talking about this voting machine switch without any basis.

Starting point is 00:45:17 And then in 2016, he complained again without any basis of widespread voter fraud and basically going on and on about that again baseless but Jack Smith wants to bring that in as evidence to show a common scheme of plan or plan of falsely blaming people for fraud in election results and it also shows his motive and his intention and his plan to obstruct the certification of the 2020 election. He also, in that same category, talked about, brought out some of his own words, Trump's own words, where he refused, for example, prior to the 2020 election, he refused to commit to a peaceful transition if he lost, and that when loser draw with writing and everything else, he still wouldn't commit to a peaceful transfer of power.

Starting point is 00:46:12 And I thought that was incredibly, that will be incredibly powerful if it comes in. The next category that I would say that he wanted to, that Jack Smith wants to bring in, had to do with Trump's knowledge that he lost the election and his motive and his intention to try and steal the election. And in that, he brings up several examples, the fake electors for examples.

Starting point is 00:46:40 That's a huge, that's a huge, although that is definitely part of this. He's talking, and so he will be allowed to bring that in. I think that what Jack Smith wanted to talk about is things that he didn't mention in the indictment, right? He talked about stuff that happened, for example, text. It looks like he got new text messages because he revealed, I think for the first time, I don't remember seeing this. It looks like yet a seventh now on indicted

Starting point is 00:47:11 co-conspirator that seems to be cooperating because it's redacted in there, this election employee in Detroit that I had not heard of before, didn't know about. So he seems to have obtained a cooperator since the last last indictment and potentially got a new, got this new evidence. And so that's why it's not in the indictment and why. I think he added it here in 404B evidence. As well as, you know, all of the time he and Giuliani, for example, were talking about retaliating against

Starting point is 00:47:47 and retribution against, you know, Shemoss and Ruby Freeman, that brings us to the next, basically the next category, which is where he attacks individuals, right? He attacks pens, he attacks, Ruby Freeman and Shemoss, and what Jack Smith wants to bring out is the stuff that's happened that continues to happen, right? And he wants to talk about, for example, you know, the

Starting point is 00:48:10 proud boys in 2020 when he said, you know, stand back and stand by, that was his way of knowing and then seeing what happened January 6th, they want to bring out that he knows that the people, his followers, commit violence. and so when they put on Ruby Freeman and Chey Moss Who will testify and talk about the threats and harassment that they have Suffered because Donald Trump singles them out Jack Smith is going to use all of these other examples to show he knows what he's doing He knows what his followers are doing and even after the select committee hearings I thought this was really powerful even after the Select Committee hearings, I thought this was really powerful,

Starting point is 00:48:45 even after the Select Committee hearings that happened two years after Jan 6, where there were video tapes of Shemos and Ruby Freeman talking about the horrific vitriolic death threats and racist things that they encountered. Donald Trump, at that point, knew because he obviously knew, because that was publicized and that was broadcast, he knew about that. And even after hearing about that, he doubled down with his comments about them and recommended attacks on them and posts in his truth social. And he even zeroed in on one of them writing that she's an election fraudster, a liar, and one of the treacherous monsters who stole the country and that she would be in legal trouble. I mean, you know, it's just outrageous. And Jackson said, like, this shows his plan

Starting point is 00:49:39 to silence his people and to silence those who come out against them, it goes to his knowledge that the public attacks on people like Shem Osiru, Friedman, Mike Pence, etc. could forcibly lead to violence and to threats and harassment. And I thought it was a really, really compelling motion that I think that I think that he will win most of these, if not all of them. Donia Perry, who was on with me, thinks that the judge may some of the Seamus Ruby Freeman stuff, she thinks that the judge may limit because it is so prejudicial and so compelling and so powerful. But I think it all comes in. What about you, Pope? What did you think? Yeah, two that I like the most that of all the six or seven. I

Starting point is 00:50:35 don't I don't think I disagree with Donnie. I think there'll be some Some limiting of some of these things the reason that we're talking about it just for our audience is The reason that we're talking about it, just for our audience, is that you have to give notice of your intention to use this type of powerful, potentially prejudicial, having to be balanced type evidence, especially when you're putting on evidence not of the actual conduct that's been charged in the indictment, because that's not 404B. Let me just wait for this. Let me just wait for this to pass. Okay. It's not, that's not 404b.

Starting point is 00:51:11 Actual evidence of the crime's charge, the four conspiracy counts against Donald Trump. That's just stuff that he did. That supports that comes out of the indictment and there are elements of the crime and conduct consistent with the crime. This, as you said earlier, is a trying to bring over the wall into the courtroom, evidence of prior conduct, historical, historical conduct, evidence, testimony, statements, videos, and the like,

Starting point is 00:51:42 to try to aim at an element of the crime that has been charged. And that's what we're doing here, and that's why we're talking about it, because you have to get, you can't sandbag the other side, you can't surprise them or the court and try to just, some people might be thinking, like, well, why don't they just do it in March? Yeah, I got to do all this stuff in advance. First of all, there's a pre-trial order that schedules out when filings like this are due. And believe me, if Jack Smith didn't have to give Donald Trump's lawyers notice of this, he would not

Starting point is 00:52:14 and he would save it for trial as a surprise. The rules allow for the litigation of the issue and the resolution of the issue well before trial so that the jury's minds are blown with some of this information. The two that I took away that I found really interesting because it's again an example of the more evidence that we're learning. We are not even at the tip of the iceberg of what was listed in the indictment. Donald Trump is shadow boxing because all he knows is what's been dumped on him, which

Starting point is 00:52:45 is the, of course, the one terabyte of information, the two tractor trailers worth of information, but doesn't know which of those are going to be used against them particularly yet. And he's got to, he's got to try to figure out what the case is against him. Of course, prosecutors have informational advantage because they know exactly the testimony and the clips and the evidence and exhibits that they're going to use against Donald Trump. You always have that kind of informational asymmetry between the two sides of government and the defense side. And here, we, but we're learning, and when there's a mandatory filing in the court process,

Starting point is 00:53:22 like we just had, that's when we start learning the kind of the curtain gets pulled back. The hood gets opened and we get to see under the hood as do some more evidence that and how the prosecutors see the case. It's like going shopping in a supermarket. No two baskets are the same when you're waiting in line in a supermarket and you look over at your neighbor's basket, I assure you it is not identical to yours. And so you can put this the building blocks of this case together in different ways. What turns one prosecutor on might turn off another. I mean there's some fundamental things maybe 80% if carrying out our hands as a prosecutor

Starting point is 00:54:05 for a prosecutor on the file, so to speak, about 80 or 90% of it might be exactly the same as Jackson, but there's always that difference, right, of prosecutorial discretion and things that they light on and they think from their past experience would be successful in front of a jury in a case like this one. And so that's what they're trying to build right now. What we learned, for instance, was, and I outed him already, because it's obvious who it is, there is an unindicted co-conspirator

Starting point is 00:54:31 that's listed as one of the 404B potential pieces of evidence against Donald Trump, who interfered in the Detroit vote counting and suggested or argued that there should be a riot of Trump supporters and others clashing in front of the streets in front of the count when he learned that Trump was going to lose. As soon as they learned that Biden was winning election night, two things happened in Detroit. One is the actual counting office got flooded with people that were supposed to be poll watchers

Starting point is 00:55:06 who are instead just doing all sorts of ridiculous challenges to try to gum up the works and throw sand in the works of the legitimate vote counting that was going on. And in the streets outside of the vote counting center in Detroit, there were, I wouldn't call them a mob, we have a video clip, we may be able to run tonight, but there was, you know, like a group of people And there were a group of people on the other side and what Boris Epstein and that's who I'm outing right here in a myotic Who was a political consultant and a lawyer for Donald Trump still to this day Involves with every decision making that Donald Trump does in civil or criminal cases went so far as the hire for Donald Trump, the current lawyers that he has, Chris Kaisenthal Blanche.

Starting point is 00:55:47 That Boris Epstein, who's identified in the 404B as an employee of the campaign, a campaign employee, he's listed in the indictment as unindicted co-conspiratory number six, a political consultant. There's only one political consultant slash campaign employee who is an unadidated cook and spiritual and that's Boris Epstein can't be the lawyers, even though he is a lawyer. He doesn't really operate as one, but it's not it's not Ken Chesbro, Sydney Powell, John Eastman, Jeff Clark, or Rudy Giuliani. It's Boris Epstein. And so Boris Epstein on behalf of President Trump at the time, then President Trump,

Starting point is 00:56:26 tried to cause a riot in Detroit to stop the count. I said in one of my hot takes, people who tune in late might think I'm reciting last season of succession. Spoiler alert, I'm not. This is what they tried to do. And Jack Smith wants to present that to the jury, along with evidence that they purposefully flooded with a goon squad into the vote counting to try to stop the vote count. Justice Boris Epstein is alleged to have done in the indictment on Jan 6, where he Rudy

Starting point is 00:56:59 Giuliani and Donald Trump to try to stop the vote count related to the electoral certification, tried to do a pressure campaign using the violence of Jan 6, i.e. that riot, to stop the vote count. Never heard that before. Begs the question, why is employers ever dying in chains and shackled and why is it in an orange jumpsuit and why hasn't he been indicted? That's for another day at another hot dick. I have a theory about that. Has to do with keeping the March trial date at all costs. So that I thought was fascinating. And I thought of it as a trial lawyer, the power of the power of that being presented to a jury at the right moment in time in a trial. It would just be breathtaking. It would just change the weather in the room for that particular day, day,

Starting point is 00:57:45 whatever of the trial against Donald Trump, putting aside all the lawyers and all the vice presidents that are going to come and testify against Donald Trump. That kind of he tried to start a riot as soon as they realized that they were losing, which goes to the intent of Donald Trump, the criminal intent that he knew he had lost on election night was trying to do everything he could to avoid the peaceful transfer of power even then. That's one. The second one is, as you mentioned, not only is Donald Trump complaining about voter fraud since like 2012, arguing that there was vote flipping somehow software hardware for Mitt

Starting point is 00:58:22 Romney votes that went to Barack Obama. But on more than one occasion, he's refused to acknowledge that he would agree to a peaceful transfer of power. And there's two clips in particular, and I did it on a hot take that's coming up soon, that they mentioned by name, in which during the debate with Hillary Clinton, he was asked by the debate moderator in 2016, Chris Wallace, will you right here in front of the American people? Will you commit to a peaceful transfer of power the way we've done in every year of our republic going forward?

Starting point is 00:58:54 We'll see. I'm sorry, we'll see is not an answer. What do you mean we'll see? Well, the ballots, the ballots got to count the ballots, don't know about the ballots too early, can't commit. And to which Hillary Clinton responded, that is a, I try to think of her word off top of my head. We have a clip of it. She says something along the lines that that is an abomination. That is hard. That's the word that this that is horrifying. What my opponent for the presidency just said about is not supporting the peaceful

Starting point is 00:59:25 transfer of power. And then there's a clip from September of 2020, two months before the election with the kind of the aftermath of the Black Lives Matter protests and other issues in our, in some of our big cities that summer. A fresh on everybody's mind. A reporter asked Donald Trump at a press conference where all he wanted to probably talk about was Amy Coney Barrett being picked the next day of the Rose Garden for Supreme Court Justice. He got asked with the riots in red and blue states and blood in the streets. Will you commit

Starting point is 01:00:02 here right now, Mr. President, to a peaceful transfer of power? And instead of saying yes to kind of quell people's emotions about it, he threw gasoline on it and said the opposite. He said the ballots, you gotta get those ballots thrown out. And if the ballots thrown out, there won't be a transition. There'll be a continuation.

Starting point is 01:00:21 Right, he'll stay in office. Now, that's easy to unpack. He didn't like it. His side didn't like the mail-in and absentee ballots that were being used in all states, including in blue states, because of COVID. And people probably not wanting to wait in line, shoulder to shoulder with their neighbor during a pandemic, yet finding a way using absentee and mail-in ballots, which are as secure as any other way of voting.

Starting point is 01:00:47 Donald Trump only voted by absentee ballot for many of the years that he voted, if he voted at all, that that was the way to balance the health risks in the pandemic with the constitutional right, fundamental right to vote. But for Donald Trump, the ballots, too many mail-in ballots because he wants to suppress the vote because he wants to disenfranchise because if you suppress the vote and disenfranchise in September, you don't have to worry about a vote count on the other end that's against you in November. So there was a lot packed into that statement. And for Jack Smith, he wants to put that in front of the jury and show, see this is the common purpose in plan. This is the intent,

Starting point is 01:01:23 and show see this is the common purpose in plan. This is the intent, claim to power, never transition, always claim the ballots are wrong, always claim. There's fraud in the election and try to stay in office. That goes to criminal mine and criminal tent for Donald Trump and he'll play if he wins on that issue in front of Judge Chuck and he'll play those clips for the jury as part of that overall presentation. So for me, you do the good category thing

Starting point is 01:01:47 and I kind of drill down on two in particular. Before we move on in the pod, anything else on the 404B, which, but just to leave it at this, the notice comes in, Trump has another opportunity to argue against it. Maybe I think there's a reply brief notice thing. And then Judge Schatz and Chuckings are gonna go thumb up up thumb down on these categories of

Starting point is 01:02:08 Information and evidence outside of the actual elements of what's been charged in the indictment Yeah, the only other thing is that struck me was you know Donald Trump is arguing that he wants to strike the language of Jan 6 and the attack from the indictment if you recall He doesn't like that in there. And Jack Smith was like, well, not only are we not, are we objecting to that, I want to show that you actually had a motive and intent for that exact same thing to happen on January 6th by introducing evidence of how you characterize the rioters and the insurrectionists,

Starting point is 01:02:47 how you have openly and proudly supported them, all of these individuals who criminally participated in the obstructing of a congressional certification that day, including suggesting that he's going to pardon them if reelected, and that he has conceded that he had the ability to influence their actions even during the attack, right? As he said to Caitlin Collins on CNN in that town hall, you know, when he said my listeners, my followers listened to me like nobody else. And even talked about certain individuals, he even has talked about specific individuals, he wants to pardon, who committed seditious conspiracy and violent assaults on the cops like Enrique Tariyo, right?

Starting point is 01:03:32 He said, I want to tell you he and other people have been treated horribly and called them hostages, political hostages. I'm sorry, but he's not a political hostage. He's in prison. And you know, just the way he plays that Jan 6 prison national anthem at his rallies and calls them all hostages and supports them all, that was, I think that's going to be very powerful evidence that Jack Smith is going to introduce. Yeah, I think as I said, either last week or on a hot take, there's just an entire team working for Jack Smith.

Starting point is 01:04:09 That's just scrubbing and scraping. All of Donald Trump's social media, his statements, his rallies, his interviews, his debate performances for testimony, for adverse testimony that they can use against him. We've said it from the very beginning. Donald Trump thinks he's winning because he's out there raising money on the backs of lies and thinks he wins the new cycle. So he's going to win the trial. And it's the exact opposite. It just provides more fodder for a very skilled prosecutor and a trial team to find the things that will hang in with his own words. And that's

Starting point is 01:04:51 who we're watching now. Rudy Giuliani, going to trial, but not in the case that people would want at this moment, in the District of Columbia, presided over by Judge Barrow Howell, formerly the chief judge who was responsible for administrating all of the Jan 6 trials. There's been over 900 either plea, either convictions by plea or by bench trial or jury trial in the District of Columbia. And she was responsible for administrating a lot of those when she was the Chief Judge. Now, as just a federal, as a regular federal judge, she's got cases in front of her like, the defamation case brought by Shay Moss and Ruby Freeman, mother daughter team in Georgia,

Starting point is 01:05:32 Fulton County speaking of election vote counting, and there is a trial coming up in December. And then finally, we have new reporting today, new information today, a couple of things. You got Nevada having indicted, likely on the backs of some testimony of a former Trump attorney, a bunch of fake electors, all the fake electors in Nevada, including those in leadership with the GOP in Nevada. And we got oral argument in Colorado

Starting point is 01:05:58 about the 14th Amendment and whether it, Section 3, and whether it bans Donald Trump from being on the on the ballot in at any time primary or in the general election because he engaged an insurrection or rebellion against the constitution will cover all of that. But my second most favorite point in the podcast we have a break from our sponsors. If you're a long time listener, you might know I've been drinking AG1 for about three years now. I absolutely love AG1 and when I started drinking AG1 daily, I could feel a real difference in my daily health and I also had more energy than ever. That's because AG1 is a foundational nutrition supplement that supports your body's universal

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Starting point is 01:08:02 not going to be doing any of that. He's not going to have any money to do any of that because he's going to lose a lot in this defamation case that's going to trial in december ruby freeman and shame off settled out with some other right wing media people like o a n and others leaving really julie and he who defamed and docks them mercilessly, as that's the Donald Trump, claiming that they committed voter fraud. They, the running, the running thematic there for the Trump organization and the campaign,

Starting point is 01:08:35 and their lawyers like Sydney, Palo, Rudy Giuliani, was that in Fulton County, which is 80% Democrat, that's the place where you commit fraud, where it's 80% Democrat, that's the place where you commit fraud, where it's 80% Democrat, right? And then the vote counting in Atlanta, when Ruby Freeman and Shay Moss with a low paid or no paid job of counting votes, doing their job,

Starting point is 01:08:56 counting ballots, putting them into optical readers, taking discarded ballots, putting them in the lockboxes under their desk, and doing it all over again, Rinssen repeat, no, to Donald Trump, discarded ballots, putting them in the lock boxes under their desk, and doing it all over again. Rinsen repeat. No. To Donald Trump, who mentioned it during his perfect phone call to Brad Raffinsberger and to Rudy Giuliani on his podcast on Fox News and anywhere else, and anyone else who would

Starting point is 01:09:17 listen. This was part of a voter fraud because they were taking fake ballots for Biden, Biden ballots and stuffing the ballot box electronically or otherwise, with votes that got dropped off in suitcases and briefcases that were from China that whatever else were made up stuff, that on a thumb drive, on a thumb drive that Ruby Freeman and Shay Moss were passing back and forth

Starting point is 01:09:42 to each other and taking votes from under the table and putting them into the machine, which is true if you run the video backwards, which is what they did because actually the ballots were going from the table to the box, not the other way around. The Georgia Bureau of Investigation did a full investigation of this as did the Secretary of States Investigative Body, Investigative Branch, and completely cleared Ruby Freeman and Shay Moss of any voter fraud whatsoever. The thumb drive was a breath mint. That was being passed between the two of them,

Starting point is 01:10:14 and there was nothing untoward or improper, or fraudulent done by them at all. They're heroes, they're patriots, doing their civic duty, and we know it because it was all caught on film. Because there's cameras. None like Donald Trump who tried to drown, bury, burn, his video cameras at Mar-a-Lago to hide his misdeeds.

Starting point is 01:10:32 These video clips actually exist and were reviewed by the Georgia Bureau of Investigation. That didn't stop Rudy Giuliani and Donald Trump despite that from continuing to claim that they committed voter fraud. It got so bad that they actually two at least three of the Kochin spirit doors in Georgia went after Ruby Freeman, including woman named Kutie, Kutie, who used to be a stylist for Kanye West and black voices for Trump leader, Willie Floyd, and Ray Smith, a reverend who cornered Ruby Freeman,

Starting point is 01:11:08 even bringing her to a police station to try to coercer, to admit to fraudulently admit to voter fraud. And that's part of the conspiracy of which Donald Trump is also tagged in Georgia with Ruby Freeman at the center. But Ruby Freeman and J. Moss have a civil day in court to because they were docks because they were almost attacked physically. They had to move from their house for protection.

Starting point is 01:11:32 And so they sued Rudy Giuliani. And Rudy Giuliani did so many things wrong. And you'd almost have to think that Rudy never was a member of the bar. That he was, like it would make a lot more sense if this was like my cousin Vinnie instead of my cousin Rudy, where he didn't know the rules of the procedures he'd never been in federal court before.

Starting point is 01:11:54 I've never been at the big city before. I'm not all these things work. But he has a lawyer. Well, even if he didn't have a lawyer, Rudy Giuliani is a lawyer for 40 years in the federal court practice. So how you are so terrible at being a participant in the process, that you completely

Starting point is 01:12:14 flout the authority of the judge. You refuse to provide any of the documents that you're required to provide. You refuse to participate in discovery process. You get sanctioned three times for attorneys fees for over half a million dollars. And then when the judges had enough, enough Rudy, you lose your ability to defend the case and you get a judgment against you on liability. How does his lawyer allow it to get to that point? If this was your client, more than one lawyer. He's got an out of control client that's not, I mean,

Starting point is 01:12:46 unless you bail out, which, you know, some, some tried to, you know, you, you, you, you know, your client is his own worst enemy. There's not much you can do. Other than to say, wasn't me, judge, don't sanction me, sanction him. And that's not what happened today. When he was supposed to show up in court today, and he didn't show up and the judge was like, what the heck, you were supposed to be here and the lawyer was like, oh, that was me, that wasn't him. Well, that one, that one, he took the bullet,

Starting point is 01:13:12 but where, how we got where we are, where lawyers are getting screamed at by the federal judge, this federal judge has been more than patient. She has, she has been, her orders have been violated, half a dozen times by Rudy Giuliani important ones and it's gotten so bad that even when she gave him the last chance To turn over his financial records about his revenue from his podcast How much money he makes so that the jury has an idea for punitive damage is how much to award if they're going to award any at all He missed the deadline to do that.

Starting point is 01:13:45 And the judge says, if you don't give this information within a week's time, I am going to give an instruction, an adverse inference instruction to the future jury that tells them that as a matter of law, they are instructed to conclude that Rudy Giuliani is trying to hide his money to suppress his net worth, sound familiar, except it goes the other way for Trump,

Starting point is 01:14:08 in order to avoid punitive damages and for good measure that he's not allowed to talk at all about anything related to liability case. He's just has to stand there and take it for damages only. Now Rudy, hearing all of that, decided, well, my best place to avoid a huge jury, a huge award is with a jury, is with a judge. So he argued in the last minute, there's no jury involved here, even though the judge

Starting point is 01:14:37 has already decided that there's going to be a jury. And that there's no jury. It really not a damages. That's a judge thing, not a jury thing. And the judge says, well, you know, you may be writing certain circumstances, but I'm the trial of fact and I want help. And I want a jury to handle the fact finding

Starting point is 01:14:52 related to the damage amount. And so we're having a jury trial. See you guys on whatever day this was yesterday or today in my courtroom. And she has ordered him to be there for every event in the case since. And he didn't show up today and what happened with the judge KFA. The judge got very upset, you know, and basically,

Starting point is 01:15:12 you know, it was head scratcher how Giuliani did not show up for this and how he didn't, how he didn't, you know, he wasn't here to agree to the things that he's supposed to agree on because the trial starting next week and, you know, he wasn't here to agree to the things that he's supposed to agree on because the trial is starting next week. And, you know, look, a lot, this is fascinating to me because, you know, the amount of incompetence that is going on in addition to trying to, I actually, I don't even know what the strategy is. I can't wrap my head around this because, and maybe it's because Rudy Giuliani was such a big figure, larger than my figure in New York for years and years and years, I just can't

Starting point is 01:15:52 believe that he's gone from being, you know, a kind of a, he was America's mayor after 9-11, right? In addition to being a United States attorney for the Southern District of New York, you know, someone would say the most prestigious US attorney's office in the country. He's gone from that to the, you know, to having the press conference outside of the four seasons, you know, whatever that place was. Like a landscaping. And growing up. Yeah.

Starting point is 01:16:18 I'm instead of the four seasons with, you know, another one where he has that, that, that hair dye, you know dye dripping down his face. And now he's in this case, he's just this can't be a strategy. He's just screwing up at every single turn. He's not doing anything he's supposed to be doing. And now, so the latest one was he asked that there not be a jury. He said, I want just a bench trial, not a jury trial, because otherwise, the jury instruction

Starting point is 01:16:50 that you're going to read is going to be, is going to say that this was your only, the jury's only to consider damages because he's already been sanctioned. He's already been found a default judgment as a sanction, not even a default judgment the way the way, you know, there's no sort of like the way Judge Angora did in the Trump case saying, you know, I've looked at all the papers and I think, you know, the plaintiff wins on the papers basically, the papers and all the record

Starting point is 01:17:19 before me. This isn't a substantive win. This is a win because of all of the things you just said that he has not done. And, you know, it's this willful, willful discovery misconduct. And, you know, he said basically that, that, that what that would prejudice me in front of a jury. So I just wanted a judge trial and the judge basically said, first of all, the seventh amendment guarantees the right to a jury trial in a civil case. And why should the plaintiff lose that right under these circumstances? That would be extremely unfair. And PS, Rudy Giuliani, when we went over

Starting point is 01:18:01 the jury charges, you didn't even object to that one. So now you're objecting, like at the, you know, the 11th hour, it's like, it just seems like his lawyer isn't paying attention and he is just not getting involved at all in this case, but to what end? I mean, I just don't understand because he's going to, for sure, be found 100% liable and the damages are going to be, you know, the two most compelling witnesses in the Jack Smith cases are going to be Ruby Freeman and Shay Moss, right? They are, when they testify about what has happened to them, you know, there's not going to be a dry eye in the house and the same thing is going to go for the Giuliani trial, right? And all of the things that Giuliani said and did about him. And, you know, I loved, the one thing I did love that I wrote down that, that, that Barrel how I wrote, he said, you know, the irony of this assertion must be highlighted, given the many opportunities Giuliani was afforded to comply with his discovery obligations, but to no avail. And the further opportunities Giuliani was afforded to be heard on any adverse instructions

Starting point is 01:19:07 to be given to the jury, but he consented to those instructions. And Giuliani's own discovery misconduct necessitated the entry of default judgment against him, and this court will not reward him for conduct that has already resulted in significant prejudice to the plaintiffs. I mean, you know, it's like I just love the way he phrase that and look, you know, he only has himself to blame and, you know, and then he doesn't show up today. I mean, I just, the whole thing makes no sense to me how this is going to go down and how, why this is happening. And, you know, the other question

Starting point is 01:19:41 we were talking about, you know, why have a few questions about the trial for you, the civil lawyers? I love learning from you. Um, is first of all, it's going to be a jury of eight people. Why eight, not 12, right? How do you get the number of, of jurors, um, in a civil case? And does it have to be unanimous? And I'd love to hear, because I love learning from you in these circumstances. I think you're on mute. Okay, so we're doing jury. All right, so you need between six and 12, and usually the parties, whatever the standard practice is for that courtroom. I've never done eight. I've done six. I've done nine. And I've done 12. Eight's an odd number, not literally. It's an even number that happens to be odd. Generally, it comes from court practice

Starting point is 01:20:32 or consultation with the lawyers that are involved about how many that they want has to be over six. Usually it's under 12. Eight's a weird number. You read eight because eight, yeah, okay. So all all right so it's eight and in terms of that it's worry it's like agreed upon well it's statutory between the numbers of six and 12 and then you can sort of pick what you want in between there and satisfy the requirements. As to, for criminal, it's generally unanimous. For a federal civil, last time I did a federal civil, I needed, I don't think it's a majority. I think you have

Starting point is 01:21:17 to get, when we go to the next, when you're chatting through the next one, I'll double check about the issue of a unanimity for it. I might be confusing with the state requirement. Well, that's why legal AFS great. I'll figure it out and I will report it. So we'll follow that trial closely. It's gonna be tens of millions of dollars awarded and putative damages by this jury against Rudy Giuliani. And as you and I joke before the show, you know, I think Ruby Freeman and Shay Moss would like living on the Upper East Side of New York in a condo that Rudy used to

Starting point is 01:21:54 own, or in Florida, in near Mar-a-Lago. I think those are both beautiful places for that. One question you and I talked about beforehand, and I'd love to hear your thoughts because I don't understand it is Why they didn't sue Donald Trump? Why did they just sue? Giuliani I even asked ahead of time. I was like did I miss it was I forget what happened to it because Logically to not suit when you again when you read what happened to them and who did it? It was very much Donald Trump and Rudy Giuliani. It wasn't just Rudy Giuliani. So why they didn't sue Trump, I don't get it. I think these lawyers made a tactical decision that they did not want to go through. Look, we're three years into an immunity decision, two and a

Starting point is 01:22:39 half years into an immunity decision in DC court of appeals about whether Donald Trump can have civil liability to the outer boundaries of his office in under the KKK Act for the injuries to the Capitol Police, Metro Police, and to the elected officials that were running for their lives during Jan 6th. And the answer just got answered last week. That issue got raised in the E.G. and Carol case, as well, and that just got decided or sort of decided, half decided recently. And so I think this is not having spoken to these lawyers,

Starting point is 01:23:23 but these lawyers looking around having sued the media company and gotten a quick settlement and having sued Rudy, coming right off of that issue of whether Donald Trump's statements are inside his scope or color of his authority or his campaign or in chief and he's outside, they're doing this kind of pro-se, they're doing this pro-bono, maybe Maybe a contingency certainly a contingency fee And you know, you have to pick your you have to pick your battles and the battle that they didn't want is to fight through Donald Trump and all the immunity issues and Donald Trump's bullshit making a circus as we've seen in I mean what bigger sir he didn't even go to E. Jean Carroll and it was a circus.

Starting point is 01:24:06 He went to the civil fraud case and it was like the circus like I've never seen as a child. And so you know what you know what they've avoided in DC they've avoided the circus and they got Rudy off by himself for him to crap his own diaper which is all he's done since he's been a defendant in the case and gotten his already lost the case. And they haven't had a go through the Trump bullshit. I think if that is the reason, they didn't forget. It's not because they forgot. They didn't go, hmm, who are we missing here?

Starting point is 01:24:38 Somebody made a decision in consultation with the client that they didn't want to pick the fight with Donald Trump and have to be the firm to have to prove whether he has immunity or not for that particular set of actions when there are all these other low-hanging fruit they could go after. That's the only explanation because the lawyers are very, very good and the firms are very, very good. I hope that's the explanation. Yeah, no, I hope that's the explanation. What else do you think? The other thing it could be, to be honest, is now that I represent clients. I'm not. But I'll say it. The other thing it could be, to be honest, is, you know, now that I represent clients and I know what goes into the thinking of certain clients, I wonder whether they were afraid because when you go after Donald Trump, look what he's done.

Starting point is 01:25:16 Look at how he doubles down. Look at why there's an aging Carol too. I mean, look at what he does to people. He's a bully in chief and he got death threats. I mean, look at what he does to people. He's a the bully in chief and he got, they got death threats. I mean, those were real. And I just hope he didn't silence them and make it so that they were actually too afraid to bring the case against him. That would be a shame. Yeah. I don't know. Knowing that Wilkie Farring Gallagher, which is a major firm at a New

Starting point is 01:25:42 York, it is not going gonna be afraid of Donald Trump. Now, maybe they're firm. No, not the lawyers, not the lawyers. I'm talking about the plaintiffs. Oh, you're talking about Ruby Freeman and Shay Moss. Yes, yes, I'm talking, I'm not talking about the lawyers. Of course, the lawyers aren't afraid. I'm saying, I wonder if the plaintiffs were like,

Starting point is 01:25:58 I can't go through that again. I can't go through that again. Well, the point you're making is a good one, which is this is a client decision ultimately. So whether the law firm decided, look, the path of least resistance for us to get you the money and connect you to money is to go after people not named Donald Trump.

Starting point is 01:26:14 But it also could have been, I don't want to say Donald Trump, I already law must lost my house. I had to have law enforcement sitting outside my house and I don't need Trump, although Rudy is a part of Trump world, but not directly taking on the cult leader.

Starting point is 01:26:26 I like that. I think that's a very good potential analysis. One day, maybe we'll have the lawyers for Wilkie Far on the show and we can ask them. Let's turn our attention on that one. Let's turn our attention now to breaking news today in Nevada. A lot of states, Michigan, Arizona, Nevada, the battleground states are looking not Florida, because if it's governor, are looking at the fake electors and whether they were criminally liable for impersonating real electors and other things that are on the statute books

Starting point is 01:26:56 for individual states, because if they thought they were going to get away with it, just participate in the conspiracy that's been, that it's at the heart of at least two criminal indictments, one in Georgia and one of the District of Columbia, they got another thing coming. And so it took a long time. I think many of these attorney generals that are now handling these cases

Starting point is 01:27:17 that are going after them, waited to see what Jack Smith would do, what the Jan 6th Committee would do, what Fonney Willis would do, and then when the dust settled, they're finally getting around in 2023, late in 2023, to get their indictments. Now, the advantage to waiting is a lot of the work has been done for them. A lot of the heavy lifting has been done for them by Fony Willis and Jack Smith in their

Starting point is 01:27:40 indictments, and in the witnesses that have been disclosed. For instance, one of the reasons I'm sure that Nevada, Grand jury, indicted all of these members of the GOP and Nevada for being fake electors is because Ken Chesbro, the now felon former Trump lawyer, architect with John Eastman of the fake electric scheme, got permission 10 days ago to go to Georgia, sorry, to go from Georgia, leave Georgia, and the conditions of his release, and go to states like Arizona and Nevada to cooperate and DC. They were listed by name. And then, whoa, low and behold, there's a grand jury in Nevada right after Ken Jess broke visits that indicts those GOP members.

Starting point is 01:28:31 Tell us what you know about the indictments there and then we can touch on Colorado as we end the podcast. Yeah, well, the big news coming out of Nevada, right? The Attorney General, Aaron Ford, announced that six Nevada's, I know you say Nevada, I'm from California and in California we say Nevada or at least I grew up saying Nevada and I'm sure there are a lot of people who are cringing right now but that's how I learned it. Anyway, that they falsely represented themselves as state electors in 2020. And, you know, look, if you, it just to remind everyone there was Republicans in seven different

Starting point is 01:29:10 states, right? Arizona, Georgia, Michigan, Nevada, New Mexico, and Pennsylvania, and Wisconsin, who hatched the fake electors scheme and pretended to be the duly elected and qualified electors, right? And then these documents were sent to the United States Senate as well as the archivist. And it was done as if they were the legitimate electors. And Michigan and Georgia, if I already filed criminal charges because of this scheme, Fani Willis and Georgia,

Starting point is 01:29:39 did the big sweeping rico case that in addition to charging some electors charge the lawyers church Trump and Others in the scheme. They were 19 total and in Michigan the attorney general there only Indicted the fake electors. They didn't go up the food chain if you will and Nevada seems to have Gone has seems seems to have followed Michigan's lead and indicted six Republican fake electors,

Starting point is 01:30:08 including the chairman of the RNC in that state. And you know, each person was charged with two felony charges. I think they carried a max of one is five years, the other is four years. The charges are offering a false instrument for filing and uttering a forged instrument by submitting fraudulent documents to state and federal officials. So that's when they submitted the fake electors,

Starting point is 01:30:35 the slates to the archives and to the Senate. And the Attorney General opened this investigation a mere few weeks ago, despite previously saying they were unlikely to do so because of the fact that Chesbro is cooperating and has made the difference. So this is huge that they're going to be held accountable. And that is, that that's happening now. When this came down and in preparation for the podcast,

Starting point is 01:31:06 I went back to the Jack Smith indictment just to just remind myself what the allegations are in Nevada. And you know, Jack Smith goes state by state. There's a whole section on the states and the fake electors and he goes in alphabetical order, you know, Arizona and Pennsylvania, Wisconsin, Michigan, you know, whatever, it's in alphabetical order, but there's no Nevada in there, which I thought was very strange because why isn't there a separate section for Nevada? But it is mentioned in the indictment, it's just not a separate

Starting point is 01:31:34 section. Anyway, so it's just interesting to me that the conduct there, perhaps, is not quite as egregious as in other states, or maybe the Trump wasn't as involved there as he was in the other states. Who knows? But there's clearly a case. It was clearly part of the part of the common, you know, part of the scheme, the plan, you know, given the fact that Chesbro was able to provide this information and this testimony that was the key to being able to indict this case. So, um, so I think. So I think there's other investigations and other states going on as well. I think Arizona has an open investigation

Starting point is 01:32:12 and there's rumblings that's same with other states. So finally, people are starting to be held accountable for this scheme. And just again, to remind everybody, the defense here is going to be, we're allowed, we were allowed to do this. In fact, there's precedent for it in the 60s, in the Kennedy election in Hawaii. It was so close that they did a, Kennedy's people put together in a case slate of electors, if you will. In case it turns out when they actually

Starting point is 01:32:48 recount the votes, he wins. They didn't submit them as the actual electors, though. They just had them there, just in case he won. And in fact, he did win. And so they ended up using those electors. So they actually turned out to be the real electors. So it's just a matter. But so that doesn't mean you can lie and put in a fake slate of electors. So they actually turned out to be the real electors. So it's just a matter, but so that doesn't mean you can lie

Starting point is 01:33:07 and put in a fake slate of electors, because these weren't just in case electors. These were actually being held out as the legitimate electors in an effort to try to steal the election from Biden. Yeah, Nixon and Hawaii and Kennedy are apples and oranges. They first called the state for Nixon, and there were electors that stepped up. They then recounted and called the state properly for Kennedy, which helped put them over

Starting point is 01:33:35 the top. And then those electors, that's different than certifying that your electors are the real electors, sending them to the sending them to the national archive, the judge of your state and to Mike Pence to try to get them to be recognized as the real electors. That didn't happen. They love that Nixon versus Kennedy case, except they totally just stored it and mistayed it, which is usually pointed out. And we're going to watch, we're probably not going to cover it too much detail today, because we're just, we want to really re-through it. But Colorado is holding oral argument at the Supreme Court level in Colorado about whether

Starting point is 01:34:12 the 14th Amendment Section 3 applies to Donald Trump as president, really the sole issue for them on appeal, because the only issue that the trial judge we think got wrong is that the 14th Amendment section 3 doesn't apply to a former president. Everything else she found, the engagement in insurrection and rebellion against the Constitution, she found all that as a matter of fact and her fact-finding, but then sort of fumbled, we think, on the interpretation of legislative history. And what the framers wanted about the 14th amendment in the reconstruction period after the Civil War, in which there were lots of loyalty tests in different step-aik than the different statutes,

Starting point is 01:34:55 as the Union tried to be reconstructed, put back together again after the Civil War. And so the question is, was Jefferson Davis able to run for office after having left the union and become the first president of the Confederacy? Would it have applied to him or not? There's a lot of debate, literally legislative debate at the time about its application to rebel like Jeff Davis.

Starting point is 01:35:19 And that all applies here. The Supreme Court were getting the reports of the oral argument, is trying to, I think they understand they got to make this decision before, well, before this particular election. But there still seems to be a debate in the oral argument that's, that's just wrong about what is the insurrection or rebellion. Because I can tell from some of the questions and answers that are being given, that they're still focusing on Jan 6th, and like, where they armed, where they armed, he controlled them. I'm talking about the people that attacked the Capitol,

Starting point is 01:35:50 the more than 2,000 people. That is not the insurrection or rebellion for the 14th Amendment analysis. And everybody who's a constitutional scholar and everybody that's looked at the issue, like Michael Ludic, the former federal judge and federalist society lion has said that it's just read the provision. It's an insurrection rebellion against the

Starting point is 01:36:12 Constitution and the Constitution was rebelled against and by Donald Trump when he refused to the peaceful transfer of power Not when he participated in one way or the other and giving the command to attack the capital. That's different. And but it looks like they're all, they're still kind of running through some of confusing dialogue at the Colorado Supreme Court level. But we'll report on that more in some hot takes. Ben and I'll pick it up on this,

Starting point is 01:36:38 the weekend edition of LegalAF because we've reached the end of the midweek edition of legal AF. I do it every Wednesday for the last three and a half years with Karen Friedman nickname below. And then every and for four years, with Ben, my cell is hard to believe these these time has passed only a month. I can't believe it's been that long.

Starting point is 01:36:59 Has it really been that long? Yeah, March will be four years. For what we call the beginning of legal AF,, it started as, we can, legal roundup, legal update. I forgot we called it, it was terrible, whatever, whatever you can find it on YouTube, it's terrible. But that was the beginnings of LegalAF, it's like those early, it's like that first episode pilot of Star Trek, you know, from the 60s that they had to redo because people didn't

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Starting point is 01:39:41 That's fine. I only like Ben. But, but, Pop, hope, you can go over to playlists and you'll find our body of work, our library of work for our individual hot takes about legal issues that are interested to us and we hope will be interesting to you. But this is the end of the podcast. Until next Wednesday for Karen and me signing off, shout out to the Midas Mighty and the Legal Aethers.

Legal AF by MeidasTouch - SHOCKING New INDICTMENTS in Trump CONSPIRACY and MORE

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