Legal AF by MeidasTouch - Supreme Court Gets POWERFUL ROADMAP to Reject Trump IMMUNITY

Episode Date: February 14, 2024

Would Trump have used the military to prevent Biden electors from voting and certifying the election? This terrifying real possibility is at the heart of a new brief filed by REPUBLICANS AND FEDERALISTS with the Supreme Court to encourage it to REJECT TRUMP’S request for a further stay of his DC criminal trial. Michael Popok of Legal AF reporting from the road, explains why if this brief doesn’t convince the Court to reject the stay and let the trial happen before Election Day, nothing will. Head to https://TryFum.com/legalaf and use code LEGALAF to save 10% off when you get the journey pack today! Visit https://meidastouch.com for more! Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Learn more about your ad choices. Visit megaphone.fm/adchoices

Michael Popak, Legal AF, I'm going to take a different angle about the United States Supreme Court in its decision making and logistics about the DC Court of Appeals decision to deny Donald Trump and future presidents and former presidents presidential immunity for conduct that interferes with the election, the peaceful transfer of power and article two of the Constitution. Article two of the Constitution. There are briefs that are now flying in within hours of Chief Justice Robert's decision because he's the first stop on the train. He is the administrative judge, circuit judge that sits over the D.C. Court of Appeals. He just gave Jack Smith until next Tuesday at four o'clock to file a paper as to whether there should be a stay or not sort of a leisurely pace by John Roberts. I'm not sure if that's pro-Trump, pro-justice, or pro-democracy, but that's the timeline.

Now, we'll expect Jack Smith to file his brief much earlier than next Tuesday, but we've got a new brief already in within hours by 25 high level former members of Republican administrations who serve six different Republican presidents led by J. Michael Ludig, former judge of the Fourth Circuit, appellate judge, constitutional scholar extraordinaire and patriot. He appeared to the Midas Touch Network in an interview with me just in the last couple of days. He just filed within hours of John Roberts issuing his direction to Jack Smith. He already filed with his gang of 25 a well-composed constitutional brief, amicus brief, arguing that

there should not even be a stay. Yes, it goes to the merits of the actual appeal. I'll talk about that as well. But their argument is there's nothing to see here. The DC court of appeals can easily be affirmed its decision on the narrow grounds that it did. And the Supreme Court should dispatch the appeal, deny the stay, reject the effort for the interlocutory appeal and move on

and let the DC court of appeals decision be the interlocutory appeal and move on and let the D.C. Court of Appeals decision be the precedent. That's their argument. But in their argument is a question that I've never seen posed yet in briefing, certainly not even in Jack Smith's indictment. And that is whether Donald Trump was willing to use the military and armed forces to stop the peaceful transfer of power in violation of federal criminal law, the 12th Amendment and the Article II of the Constitution. And they don't say in this brief that it is hypothetical. They say that if you grant presidential immunity

to Donald Trump or others, you're inviting insurrectionist presidents to use the military against their own people. And they cite comments made by Mike Flynn, comments made by Lynn Wood on behalf of Donald Trump, in which martial law was suggested, the use of the Insurrection Act by Donald Trump was suggested. A presidential declaration was drafted by Sidney Powell along with Mike Flynn and others in order to seize voting machines. All of this is at the heart of this new brief. I'm going to read to you from it. I'm going to tell you the analysis that's present there. First, we have how they frame the argument.

I think that's important. I'm going to read from there and analyze from their introduction Now much of this was touched on by Michael Ludwig in his Interview with me in fact when we get to the part about they're not this section about they're not even being for votes The United States Supreme Court to bring this appeal up so the state should be rejected that is eerily similar to what Judge Ludwig just told me. So this is what it says on page one of the brief. This amicai or amici brief focuses on one reason why Mr. Trump has failed to make two of the mandatory showings required for a stay, meaning without the stay it goes back immediately to the trial judge, Judge Chutkin, to set the case for

trial in May or June. The brief continues, the judgment below to deny immunity is so clearly correct as applied to the harrowing allegations in the indictment that there is neither a fair prospect that a majority of the court will vote to reverse the judgment below, nor a reasonable probability that four justices

will consider the issue sufficiently meritorious to grant certiorari. Presidential immunity should never be so broad, the brief continues, as to embolden an outgoing president's violation of federal criminal statutes as part of efforts to prevent what article two of the constitution mandates, the vesting of the authority and functions of the presidency in the next lawfully elected president.

Let me go right now to a clip just from a couple of days ago of my interview, hard hitting, far ranging, unplugged. Judge Michael Ludwig, obviously knowing that he had this brief in his back pocket. And here is a clip from that particular interview on this particular point. Now, you ask, where does the immunity case go from now? Well, by Monday, we'll know because of technical jargon, the DC circuit state is mandate only until Monday and only until or unless the Supreme Court itself issued a its own state, which means we'll know Monday or Tuesday at the latest whether the what the Supreme Court's going to do or or or might do. I don't of course have

any more insight than anyone else does but but I believe that that the court might well the decline review of of that immunity case because the Supreme Court knows that it's it would never immunity case because the Supreme Court knows that it would never, in a million years, reverse that decision. I don't believe that there is a single justice on the Supreme Court that disagrees with the DC Circuit immunity decision. At the same time, the DC Circuit understood, as does the Supreme Court of the United States. That if the Supreme Court takes the immunity case, it increases exponentially the likelihood

that the former president will not be tried before the 2024 presidential election. Now, courts are appropriately to be unconcerned with that kind of political consideration, but not in this one instance of all, where a president of the United States for the first time in American history is to go on trial for crimes against the United States of America. In that one instance, the Supreme Court hasn't a responsibility to the nation not to unnecessarily delay thatay that trial. Until after the election.

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completely undermines and turns on its head the entire article two structure for our executive officer in the form of the president and that can't be allowed. But more chilling I found on page 13 in a way, as I said, Jack Smith's indictment never really did itself, is under what could happen, the real world implications of granting immunity to somebody like Donald Trump or Trump in the future. Listen to these chilling words. This is on page 13, 14, and 15 of the brief under the heading,

under Mr. Trump's view of absolute immunity, a future president could disregard federal criminal prohibitions against using the military and armed federal agents to halt their election results. Here's the argument. that he should not be denied federal criminal immunity based on a lurid hypothetical about a president's use of the military to commit crimes to keep that president in power. But that kind of hypothetical follows both from what former President Trump allegedly did and repeatedly considered in pursuit of subverting the 2020 election results. Think of this August body, panel of people, all Republicans, all conservatives, mostly Federalists, and what they're saying about Donald Trump's actions. To start, the brief continues, the indictment alleges that former President Trump attempted to use the Justice

Department to make knowingly false claims of election fraud to officials in the targeted states through a formal letter under the acting Attorney General's signature. The targeted states urging them to replace legitimate Biden electors with the defendants, citing to the indictment, under Mr. Trump's vast rationale for federal criminal immunity, a future president would be emboldened to direct the Secretaries of Defense and Homeland Security, as well as the Attorney General, to deploy the military and armed federal agents to support efforts to overturn the President's election re-election loss. It goes on after citing two various criminal codes, criminal sections, and crimes that have been created by Congress criminalizing anyone who tries to undermine the peaceful transfer of power

or tries to use any element of the armed forces as a posse kamatates or otherwise to execute the laws. They go on to say on page 15, absolute immunity from criminal prosecution would undo the protections provided by these federal criminal statutes, the checks and balance of Congress in this case. A future president could disregard these criminal statutes and deploy the military and armed federal agents to prevent the counting of votes in an unfavorable county or of a certain type, such as mail-in ballots by seizing ballots and voting machines. Such absolute immunity also would encourage the president to use the military and armed federal agents

to bar physically his or her opponents' electors from casting their electoral votes on the day and place required by the Constitution and other provisions. These terrifying possibilities, the brief continues, are real, not remote. Indeed, after this court refused to overturn the 2020 election results in Texas versus Pennsylvania, there was a drumbeat of calls from allies of President Trump for him to deploy the military.

The brief continues. The next day on December 12, 2020, Lynn Wood, a lawyer for Donald Trump at the time, appeared on Newsmaxed and stated that if the Supreme Court does not act, I think the president should declare some extent of martial law and he should hold off and stay the Electoral College. The Electoral College does not need to meet and vote until we have resolved these fraud and illegality issues. The brief continues on page 17 on December 16, 2020, former general and national security advisor Michael Flynn reviewed the draft order that was prepared by Sidney Powell, an executive order that was drafted for the secretary of defense to seize voting machines and including the use of federalized national guard units.

According to Politico, the draft order was created by a lawyer assisting Rudy Giuliani in efforts to overturn the 2020 election. Then you have allegations that Mr. Flynn called for Mr. President Trump to seize voting machines and deploy military capabilities to return an election in each of these swing states. In response, General Milley, the Army Chief of Staff and Secretary, issued a public statement that there is no role for the U.S. military in determining the outcome of an American election. And the brief continues. Look, at the end of the day, we're going to have a result here that I think is gonna go as follows Jack Smith is gonna file before next Tuesday to speed this up if we know jack Smith at all

He's moving with great velocity to bring this to a head then John Roberts is gonna have a decision to make for right now There's an automatic stay in place because the Supreme Court For right now, there's an automatic stay in place because the Supreme Court has taken up the DC Court of Appeals decision. The DC Court of Appeals said that it would stay its decision until the Supreme Court makes a ruling. The Supreme Court has not made the ruling as to whether it's gonna continue the stay,

not the appeal yet, the continuation of the stay until they hear from Jack Smith. Then John Roberts will then, I am sure, refer it over to the full group. the appeal yet, the continuation of the stay until they hear from Jack Smith, then John Roberts will then, I am sure, refer it over to the full group. And the question that's been posed here by the new amicus brief filed by Judge Ludwig and others is, is there four votes? Because that's what it's required to take this up on appeal. Yes, it's a right wing majority court and there's six on the right wing. But does John Roberts maybe taking um, Kavanaugh with him? Does he deny uh, and one other,

you know, cause we got, we got to peel off three votes here. Does Kavanaugh, Gorsuch, Amy County, Barrett and Roberts sort of stand for the proposition that this does not have to be brought up to the United States Supreme Court with all the delays that are incumbent upon it. Because as you heard Justice Judge Ludig tell me in the prior clip, he's afraid that if this doesn't get resolved by the Supreme Court and they decide to take it up, the chances of having the DC election case happen before November 5th, the chances are very remote. And that's what we worry about here. The reason that these Republicans, like Judge Ludig, step forward is not because they're in love with Donald Trump or they're in love with the federalism,

it's because they're in love with the presidency as an institution and the constitution as a concept. And they don't want anybody to eff with it, my words. And that's why they as patriots and constitutional scholars have stepped forward with all of their heft and all of their might to provide support for Jack Smith and the arguments to be raised there. Then the ball is going to be back with the filing of the amicus briefs by, I'm sure, historians and now we've got this powerful one,

encouraging, encouraging and providing proper support as a Supreme Court completely ignore and don't take the stay. And they even cite in the brief, recent precedent. I'm talking about 2022 precedent that was just set by the United States Supreme Court in a decision involving Benny Thompson and a lawsuit there. I mean, it's a 2022 decision by the United States Supreme Court, which ruled eight to

one. You know who the one was, Clarence Thomas, not to take up the appeal and not to stay the results related to whether a certain lawsuit needed to move forward or not against Donald Trump. So, there's recent precedent in the last year and a half that they cite to. We'll watch what happens. Here's the timeline. Jack Smith will file before next Tuesday, I'm sure.

Amicus briefs like this will be reviewed by the court. John Roberts will send it over to the full United States Supreme Court to decide. Then there's a hunt for four votes. If there's not four votes, that DC Court of Appeals decision will remain intact, and this case will get re-, you know, there'll be a hearing now before the trial judge, Chutkin, to set the DC election interference case sometime in late spring, early summer, which will be concluded before November 5th. If they decide that there are four people at the Supreme Court level to take the appeal, they'll set a briefing schedule.

It may not be as fast as we want. And depending upon the briefing schedule, this will either kill the case before the November election or allow it to happen. We're gonna find out what kind of court the John Roberts Court is. What does the Roberts Court stand for? Does it stand for justice?

Does it stand for proper adjudication on the merits? Or does it stand for politics? And ultimately election interference. It's the exact opposite of what Donald Trump argues. The case is not election interference. His crimes have to be pursued. The question is, is the Supreme Court gonna conduct their own election interference

by not allowing the trial judge do her job, the jury to do their job, and decide thumbs up or thumbs down whether the voters on November 5th are voting for a convicted criminal or not. The public, Chief Justice Roberts, has a right to know, under the we the people

that this entire Constitution of public is based upon. We'll continue to follow all of this right here on the Midas Touch Network and on legal AF on Wednesdays and Saturdays at 8 p.m. and I invite you to join us until my next hot take, until my next legal AF. This is Michael Popak reporting. Make sure you stay up to date on the latest breaking news and all things Midas by signing up to the Midas Touch newsletter at MidasTouch.com slash newsletter.