Legal AF by MeidasTouch - The Fight to Save the Republic & SCOTUS Caught in the Cross-Hairs

Episode Date: December 12, 2021

You know what happened; now hear what happens next. The top-rated weekly US law and politics news analysis podcast -- LegalAF -- produced by Meidas Touch and anchored by MT founder and civil rights lawyer, Ben Meiselas and national trial lawyer and strategist, Michael Popok, is back for another hard-hitting, thought-provoking look in “real time” at this week’s developments.  On this episode, Ben and Popok analyze: 1. The US Supreme Court’s 5-4 decision regarding Texas’s abortion ban after 6 weeks (SB8) to allow abortion providers to sue but refusing to block the ban in the meantime, pitting Chief Justice Roberts against Justice Gorsuch.    2. The US Supreme Court’s oral argument on the Constitutional Separation of Church and State embodied in the First Amendment, and tax assistance for religious primary and secondary schools. 3. The DC Circuit Court of Appeal’s ruling to permit the National Archive to produce Trump documents to the Jan6 Select Committee in a blow to Trump and others like Meadows, Bannon, Eastman and Clark. 4. Justice Robert’s consideration of an attempt to eliminate the TSA’s air travel mask mandate. 5. The SEC’s decision to turn up the heat on Trump’s failing SPAC and his social media platform for possible federal securities law violations. And so much more. Support the Show! Aura Frames -- Use code "LegalAF" at https://auraframes.com and take $30 off Aura's best selling digital picture frames! Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to Midas Touch, legal AF. If it is Saturday, it is legal AF live. If it is Sunday, it is legal AF. If it is the weekend, Ben Myceles joined by my co-host, Michael Popuck. We are breaking down the week's legal issues at our pseudo legal university disclaimer. We're not actually an educational university, but I think we are delivering the facts hard, true, real. You got a gavle, Popeyes, and for those listening and not watching, Popeyes got a two mic set up, two Popeyes microphones. I like it. Popeyes, how are you doing this weekend? I'm doing, two pop-up microphones. I like it.

Pop-up, how are you doing this weekend? I'm doing really great. This is part of my onica present from your brother Brett. I have a new recorder that we're gonna use, and hopefully people will appreciate on the audio, pod, drop, midnight tonight, and this other one is for you and I to talk. So plus I look really cool to Microsoft's.

Oh, pockets like you're giving a massive legal a f press conference. Let's get right into this week's legal news. Oh, I should have make one, one comment before I go into this week's legal news. So a bunch of people posting themselves wearing the legal AF t-shirts. I saw one legal AF listener studying. I zoomed in. I wanted to see the topic and see if it was law. It was administrative law that they were studying while wearing the legal AF shirt and a number of people posting it, which always brings me a ton of joy to see how engaged our audiences, when they learn these facts, they learn about the cases, they apply the law. And look, we try to tell people and teach people about the law, and ways, frankly, that when I went to law school, I wish professors kind of broke down the issues and connected it to today's current events. We always had, I'm sure you did too.

We always had a couple of professors that were really popular, that were able to break it down. And I think you and I, and you probably had it at Georgetown too, I had it too. And I bring with me, I stand on the shoulders of those educators when you and I approach this. I've never taught law school before, but we definitely put in as much effort into every class, every episode, to bring it down to the essence, the molecular structure of the case that involves the political overtone to it, constitutional overtone to it.

So our people walk away, hopefully more educated, more interested than they were before they started the podcast. Absolutely. Chief Justice Roberts rejects a request, an emergency request to block the TSA's air travel mask mandate. This occurred on Thursday. Roberts dismissed an emergency request. We've talked through on legal AF, the emergency request process. It's different than the granting of cert, you know, which then has a full briefing. It's set for all argument. We talked on minus touch legal AF. Most of the cases that we're hearing about now, and we'll talk about later, for example,

the DOBS Mississippi case, for example, where there was the oral argument. That case was a case that was heard through cert, not through an emergency appeal. But then what we're going to talk about as well, you know, is, you know, the SB8 case, which originally, there was an emergency appeal, you know, and then there was a more expedited, full briefing

on the SB8 law and the federal governments lawsuit against Texas. And we're going to talk about the status of that at the end of the podcast because there was a ruling here, but Mike Skakele, he's a Florida resident when he was alleging that his four-year-old son who was autistic and he himself, Michael Skalklelli, said he's someone who just can't tolerate wearing masks. It gives him emotional distress when he wears masks. And he was saying basically, I think he was stuck in Florida. And he couldn't make it to Washington, DC or North Carolina, where he was going to meet with families, unclear why he can't drive or take any form of other transportation, the things that the airlines is the only form of transportation. But he filed, I mean, this brief that the only form of transportation, but he filed,

I mean, this brief that was filed, you know, with, look, it's groups that have an anti-biden agenda, it was a 90-page brief that day filed. These are the same groups that are working with GQP, Republican Attorney Generals, across the country, to try to overturn the Vax mandates. And as we talked about on the past podcast, the GQP has been successful when it comes to the vaccine mandates and the testing mandates. But you know, over here with mask mandates, at least with respect to this emergency request, it was rejected as not being an emergency-based. So it's just...

Yeah, all true. Let me try to break it down a little bit, a little bit more. One shout out, I know he didn't write it himself, but this person who filed on behalf of himself and his autistic child alleges that he did it, pro-say, which means he did it without a lawyer. I don't know what his background is, but he's either an amazing fast study

because he did structure the brief really well. I was sort of impressed by the structure and the writing and the brief, but I gotta believe it was ghost written by one of these Trump lawyers. It's a pro-say appeal, which went first started the 11th circuit, which covers Florida. Got transferred by the 11th circuit itself to the DC circuit.

And then he tried to direct appeal to the DC circuit. There really wasn't a proceeding below. This is almost one of those fast track through appeals where you skip the trial level. And then once he didn't like the ruling at the DC circuit that would give him relief. And I think he gave the DC circuit two days or three days because he had to get on that flight, which was sort of ridiculous. It then went to, and we're going to talk about this in another segment later today about another ruling coming out of the DC circuit. Again, a reminder lesson, each circuit has assigned to it a Supreme Court Justice or Chief Justice

who is responsible for that circuit for emergency applications and to decide at the threshold at the gatekeeping level, whether that appeal is going to move forward on an emergency basis or not or it's just going to have to be brought up through what you referred to earlier as the writ of surgery process, which requires a vote of at least four justices to decide to take a full blown appeal. This is an emergency appeal and you get what you pay for when you're applying for an emergency application. You get the duty judge, the judge, the justice that's assigned to your circuit to decide the issue at the outset. Justice Roberts, his chief justice Roberts, is the assigned justice

for the DC circuit, which makes sense. It's the circuit that sits in DC. And he on his own without a consultation of any justice, has the power on an emergency application to reject the application and say, no, you're not going to go through an emergency application. If you have any relief, you need to do it through the trial level, through full briefing at the DC Circuit Court of Appeals.

And then maybe we'll see you at the Supreme Court if pardon me, if we get, if there's four votes to do it. And basically what Robert's is saying here is that there is no substantial issue of law that he finds so overwhelming that he has to fast track the appeal and then he sent it back. So again, I think this is more about a segment, giving a lesson about circuit courts, appellate courts and the justices that sit over them, which we're gonna pick up as a thread throughout this podcast.

People wanna know about Trump's SPAC and the SEC investigation and the FINRA investigation, two investigations under way. We've talked about the digital world acquisition company. That's the SPAC. Then you have that merging into the Trump media group. And when this SPAC was initially announced, Popak and I pointed out all the idiosyncratic natures as a nice way of putting it about the SPAC that made it highly unusual. I mean, number one, the fact that the SPAC digital world acquisition company was buying the Trump

media group, which just had zero financial records whatsoever. I mean, normally you're merging into an actual company that has financials, that does audits, that is real, that exists, that has users. I mean, one of the things with this Trump media company, the first goal it's set by November to start beta testing, it's a product, you know, you know, failed. They used open source coding where they were required to credit the creator of the open source code. And what the Trump media group also did was they claimed it was their own code and they claimed it was proprietary code, which to me

would also be a material misrepresentation. And they missed another deadline. They missed, they said they had a $1 billion worth of secret investors or investors, institutional investors that they were going to announce last week, along with the launch of the site. And that didn't happen either at best. Then what this SPAC was merging into was the ego of Donald Trump with nothing, it was like they were acquiring Donald Trump with nothing else behind it in terms of metrics that any other investor would use to make any other investment. So there are really two issues that are being investigated separately on the finra front and finra stands for the financial industry regulatory authority. Popuck, they're looking into the unusual trading, which seems to have the pattern of insider trading immediately

before the announcement of this merger. They were unusually high volumes of trades from certain traders before it was announced. And the only way you would know that is if you received material, non-public information, which is a big no-no to trade on that. Yeah, sorry, because digital world acquisition group had no business at the moment that people were allegedly trading. People talk about penny stocks. Oh, let's take a flyer on this and see what happens. When they graph at FINRA and the SEC, the trading volume, and they see tremendous trading volume before what was supposed to be a secret announcement is finally announced to the public. Usually, signal somebody is buying in anticipation with insider knowledge. And usually, you know, a spec that is successful, first up, SPACs usually trade around $10.

So not usually, I'm almost in all cases, $10 a share. And so the fact that that started trading, so all these insiders started buying before the announcement. And then the stock shot up at some points at times, you know, around $100 a share, more than $100 a share. 143. I mean, unbelievable. And so those people made massive, massive amounts of money.

So Finra is investigating that. And then the SEC, Pope, Pock, they're investigating the timing of when Digital World Acquisition Company, the SPAC, this blank check company, this holding company, if you will, that would be merging into the private company in this case, the Trump company and taking it public, when they began communicating with each other about this merger, because the time from when the SPAC was created in September to the announcement in October is an incredibly short period of time. The purpose of these SPACs is to do due diligence over a number of months and you are not allowed to have conversations with your target company about the merger prior to you announcing the formation of the SPAC.

Once the SPAC starts trading publicly, then you're supposed to go out as the SPAC due due diligence on a number of companies for investors to bring it public. So SEC is investigating that and that was also based off some great reporting at the New York Times. Yeah, I mean, look, the SPAC can in its own mind think about what industries, segments, sectors, and even companies that it would like to have as a target if it ever raised enough money

through the sale of these $10 units. But it can't disclose that to the investing public, and it can't disclose it to the investing public. And it can't disclose it to the private placement public entity, the pipe PIP investors who are coming in because then you're just, the charade is over. You're just doing a public company without all of the required disclosures and protections of the public investor that are required. The biggest problem Trump has right now is two folks. One, he's got Elizabeth Warren who is on him like White En Rice who wants to bring down that SPAC. And you've got Gary Gensler who is Biden's head of the Securities and Exchange Commission who is formerly a Goldman Sachs who is known as the Sheriff of Wall Street

who has decided that he's going to make, because he announced just this past week, he's going to make the regulation of SPACs and pipes, which is the, what I just mentioned, the private placement public entity investor. He's going to make that the focus of his legacy at the SEC. He thinks they need to be regulated. He thinks they're, it's the OK corral now, and anything goes. And he's going to bring discipline, financial regulation

to the market to protect the public investor, because who gets hurt? The investor that you talked about that invests in the SPAC and probably does it with insider knowledge and it gobbles up all these $10 units, knowing which the public doesn't know that they're going to try to buy this Trump entity and then waits for the stock to shoot from $10 to $143, then sells out and now the stock is trading at 64. So everybody that lost money between 143 and 64, which is tremendous, and I'm sure there'll

be class action lawsuits off of this, is the injured, regular public. Trump does not care about the public, the small investor at all. And I think that's been obvious when you outlined all the things that have gone terribly wrong with the Trump media and technology group. They don't have a working website. They don't have a social media platform that's been announced. They have not acquired a billion dollars of investment, which they said they would by last week.

This is just the Trump states, Trump shirts, Trump, whatever, all those other failed business ventures that Trump has littered the highway with on his way to his own family's fortune, period. Speaking of additional Trump litigation, I mean, you know, the level of bogging down the legal system that the GQP does. The GQP is so entitled there. So we see it in everything with their challenges of, we talked about it earlier with mask mandates, but on the past might as touch legal AF, the way they've attacked vaccine mandates and or testing the way they attack the separation of church and state. They're out there whining about how we need

tort reform and how Democrats are supporting trial lawyers. And at the end of the day, you have trial lawyers out there who are doing great work. I mean, not all trial lawyers are doing great work, but by and large, you have great trial lawyers who are the ones on the front lines against the big tobacco companies, holding pharmaceutical companies accountable,

fighting for consumers, right? And on the other hand, you've got Republicans and GQPers fighting basically so that Americans have the right to die, to kill Americans under these fond notions of what they perceive their own freedoms to be over the health and security of people, with their lawsuits challenging the vaccine mandate, which I just want to remind our listeners is not a vaccine mandate. It was only a mandate with respect to healthcare workers. And the only punishment was basically, you know what, you don't get the government benefit of the

Medicare and Medicaid payments. If you don't follow this, which again, the Medicare Medicaid payments is something that Republicans and GQPers are against in the first place, but they're fighting to keep the government benefit that they don't want so that they have the right not to be vaccinated as health care workers. I just want to point out the absurdity of that. And then they're against testing in employment settings as well. So there's flooding the courts with this litigation and Trump's flooded the courts with litigation over January 6th. And we're going to talk about it after. Mark Meadows is seeing that as well. And Mark Meadows is just the worst whoever's advising him though. He's all over the place with his litigation strategy. There's probably a lot of people chirping in his ear because strategy is being too kind to what he's employing.

Whatever Meadows is doing is wild. But it is we don't want people knowing about what we did on January 6th, and we are going to use every legal measure, every legal maneuver to stall and delay and try to not allow the January 6th committee to do his job in hopes, sorry, good. In hopes of a Republican taking over the House and dismantling the committee. Popak. So, so two quick observations, then we'll talk about the Jan 6 National Archive case, which just came down firmly against Trump yesterday. First observation is what you and I are observing over the last now 37 episodes of legal AF, which is, as I mentioned to somebody recently, our show is episodic. It has an arc and you follow and you learn and one builds on the other.

We're not just a standalone podcast where you can just tune in for this episode, but it's building on now 36 episodes and discussions and analysis that we've given. And one thing that we've made clear is the Republican strategy now is just reaping what they sowed 30 years ago or more with the Federalist Society and Mitch McConnell's plan to put as many Federalist judges on the bench as possible at every level of the Federal Court, from the trial court level to the Court of Appeals or the Appellate Division, level of the federal court, from the trial court level to the court of appeals or the appellate, the appellate circuit, all the way to the U.S. Supreme Court, and he has done it methodically while the Democrats slept while we complained and rang our hands about our

presidential candidate. Mitch McConnell was chopping wood every day for the last 30 years and stacking it up as federal judges. And what, and what, and what you have the home court advantage or you think you do, then you're ready to go after a sitting president like Biden and try to pin him back, hamstring him, undermine him and his administration values at every turn by flooding as you just talked about. So eloquently flooding the court system with cases that you think there is a receptive, federal judge on the other side for,

they never would have done this 30 years ago when the bench was more equally divided between Democratic and Democrats and Republicans, but now they have the home court advantage. There's an extra man on the court and it's them. And so they are like screw it. You all those sort of things that you and I were like, they're never gonna get abortion overterm

in our lifetime as a constitutional right. They're never gonna get religious schools paid for by taxpayer dollars. They're never gonna undermine the establishment clause. Everything that was on the Republican wish list and the conservative or right wing wish list for the last 30 years is now we're watching it. This is what this is the assault on the courts with a friendly federal court judges there

in Republican and they're pushing their entire social agenda now. We're just watching it. Our mouths dropped open, but that's what's happening. And so fortunately, there are some judges like the three judges on the DC Circuit Appellate Court who upheld Judge Chuck Gens decision that Biden combined with the Congress with the JAN, in the form of the JAN6 committee has the power and the right to waive executive privilege and to have all of the relevant, not everything that Trump did, but all of the relevant documents and information turned over to the National Archive related

to the Jan 6th insurrection, rally and planning, pre and post, and the election overturning activity of Trump or election fraud claims of Trump is fair game and proper for the for the special committee to review. So you have Chutkin at the trial level who said, you have not made your case under the Presidential Powers Act or the Presidential Records Act, Mr. Trump at all. I don't see an affidavit from you. You haven't told me which documents are or are not and why they aren't or shouldn't be disclosed at all. You haven't met your burden. Then got taken up on appeal with a three-judge panel at the DC Court of Appeals. And I want our listeners and followers to keep an eye on one particular judge on that panel, Contengi, Brown, Jackson, because I think if Biden gets a pick,

she may well be the next Supreme Court Justice. This should be the first black woman to ever be on the US Supreme Court. And she's part of that panel. The issue was for the three judge panel, which they did on an expedited, but complete briefing and oral argument, whether Trump had met his burden, a substantial burden to overcome the presidential records act, and the presumption that the sitting president, Joe Biden, his calculus, as to which document should and should not be given to the Gen 6 committee, should overcome

a former president in that analysis. So first they said, listen, we're not going to even touch whether a former president can ever overcome the presumption that the sitting president decision-making is correct because you, Mr. Trump, have not done your duty to meet your burden, to prove at all that you have a right, that you have documents that need executive privilege, why they need executive privilege, as the Gen 6 committee looks at why there was an attack on the legislative branch, trying to facilitate the orderly transition of government, which is fundamental to our constitution. And one last thing, Ben, I mean, this was breathtaking

in its analysis, the 68 pages. It was written by Judge Millett, Patricia Millett, at Obama appointee as part of the panel. And in it, she said, a quote that I've repeated on Twitter, which is a quote from Ben Franklin who after the Congress, constitutional congress was asked by an onlooker or a friend of his, do we have a monarchy or do we have a republic, Dr. Franklin, to which he responded a republic if you can keep it, meaning the burden is on us as citizens,

as participants in democracy to preserve the Republic. And these judges believe that Jan 6th was such an existential crisis, such an attack on our democracy in our Republic, that Trump's gonna have to do a lot better than say, well, I was the former president, I get to have unilateral control over my documents, not happening.

Now, one last thing, just so we can keep track for updates. The panel, the three judge panel did stay the order for two more weeks. So the net, so people might be saying, oh, turn them over right now, get those national archive documents over to Benny Thompson at the Chan Six Committee. That's not going to happen. There's a two week stay starting Friday to give Trump time to take an emergency application to judge Chief Justice Roberts to decide whether he's going to get an emergency

injunction at place. So it's up to Roberts to decide at the outset whether there's going to be a fast track appeal here or not. And we're going to have to wait and see whether he decides, no, I'm going to reject it as the sitting duty judge for this circuit or he opens it up and looks for four votes to take it up on a fast track appeal like the SBA abortion case. We'll have to sit and wait and you and I will follow and report. Two things I want to read from Judge Patricia Millitz ruling writing for the DC Circuit Court

of Appeals quote, the executive privilege for presidential communications is a qualified one that Mr. Trump agrees must give way when necessary to protecting overriding interests. The President and the legislative branch have shown a national interest in and pressing need for the prompt disclosure of these documents, these documents being that tranche of National Archive, documents surrounding January 6th. The court goes on to say, quote, the events of January 6th expose the fragility of those democratic institutions and traditions that we had perhaps come to take for granted.

In response, the president of the United States, referring to Biden, and Congress, have each made the judgment that access to the subset of presidential communication records is necessary to address a matter of great constitutional moment for the Republic. And she's saying this for a number of reasons. One, as a historical marker, she knows this opinion is going

to be read as part of the historical library of our democracy and that this decision is an important one for the protection of our democracy and that that's what's at stake. She's also writing it, knowing that there is going to be this 14-day hold on the ruling and that it is going to be reviewed by the Supreme Court. And she's also saying, you overturn this. One of the things you're doing is you are not rising to the occasion in this great constitutional moment for the Republic, and you may be responsible for the destruction of our Republic, Supreme Court. And it's a challenge to them to do the right thing

as well. I want to put it in perspective before we leave it. If we were talking about John Adams agreeing to turn over the papers of George Washington or Jefferson agreeing to turn over the papers of George Washington or Jefferson agreeing to turn over the papers of Adams to get to the bottom of an insurrection that had attacked the Capitol. Those statesmen would have stood aside, I believe, and allowed those papers to be easily transferred over to whatever Congressional committee was empowered at that time. But because it's Trump against Biden, who he thinks is the anti-Christ, you know, you

have an even judge, Melette mentioned it in her ruling. She said, a lot of presidents just step aside in this type of investigation and don't even try to make the court determine the balance between, with tips substantially in the favor of the sitting president. Let's leave our listeners and followers with no doubt. That, that thumb is on the scale automatically under the Presidential Records Act and constitutional analysis in favor of Joe Biden. And Trump would have to have overcome all of that.

And then, and then the, and then the last thing is, it's clear that I don't even think Trump thinks he was going to win this one, because once again, he didn't submit an affidavit or a declaration on his own behalf at all. So the court had no problem in saying that Trump had not made an insufficient showing or there wasn't enough. This is the quote from Millet. There was no basis provided by Trump to prevent the national archive turning over this material to Congress, none at all. And we've seen this before with they, you know, even like Rudy Giuliani got this far because he didn't file an affidavit that properly supported any of his claims. Trump, Trump's lawyers, if you and I were handling the case for Trump, we'd be like,

hey, Donald, we got to make an affidavit. We got to go document by document through all of the documents that you claim are privileged by executive privilege and tell the court why. In fact, the court in its order said, Trump, you got it backwards. It's not up to the court to go through a stack of documents and determine when or if the privilege should be applied. It's not up to the court to go through a stack of documents and determine when or if the privilege should be applied. It's up to you to tell us what you think is privileged and you have not met your burden. I think Roberts either turns this down and even if it went to full briefing, I think even this Supreme Court would turn these documents over to the Gen 6 committee. That's my prediction.

these documents over to the Jan 6th committee. That's my prediction. Hope, we will keep our legal AFers updated on the status of that. I want to turn to oral argument in the case of Carson versus Macon, which appears to be another victory for really abolishing any separation between church and state, between taking away what the establishment clause says and what it stands for. The case in Carson versus making where oral argument was is basically whether the state of Maine is required to subsidize whether the state of Maine is required to subsidize religious education. So what state of the state of Maine was allowing with this voucher program to subsidize a subset

of like 5,000 students. Maine was like, we're okay actually. If you go to a school that has a religious affiliation, that's fine. Where we're concerned about and what we won't fund is if that school specifically teaches though religious indoctrination. If that school specifically gets into teaching things

like, and in some cases extreme religious radicalism was really what they were concerned about. They weren't really concerned about love thy neighbor. They were concerned about certain radical, you know, evangelical religious schools that were teaching people that homosexuals were the devil. That's what they were concerned about. The government funding things like that. And what the Supreme Court appeared to be indicating in this oral argument is that they were saying, Maine, do not discriminate against those religious schools that say, you can discriminate against homosexuality. That's who we're concerned about. We're concerned about you as a state discriminating against those schools. When I look back at the

history of all of this Pope, I can I know you have strong feelings here. You look at a case like Everson versus Board of Education in 1947 where the country understood the separation between church and state. And in that case, it was no tax in any amount. Larger small can be levied to support any religious activities or institutions, whatever they may be called or whatever form they may adopt to teach or practice religion. They understood it. It's clear. There's a separation of church and state in it. It's great. If you want to practice religion, go for it. Like that's something that we're all supported, but just not with government taxpayer dollars. That line of cases

was effectively abandoned in the case, Xelman versus Simmons Harris in 2002, in which a five to four court there basically said that an upheld this pilot program in Ohio that provided tuition vouchers for funding private education, including religious schools. But here, the issue went a step further, was not just the religious schools. But here, the issue went a step further, was not just the religious schools which Maine was fine with funding.

It was religious indoctrination and government funds going to that. Popack, I know you had very strong feelings when you were listening to this or your argument. Yeah, well, let's back up a bit and talk a bit about the establishment clause because everybody throws around the term separation of church and state, but where does it come from? And that's part of

what we do on legal AF. So the establishment clause and the free exercise clause is the first amendment combined with Article 6 of the US Constitution. And the establishment clause reads, Congress shall make no law respecting the establishment of religion or promoting the free exercise thereof. And how do we know it's separation of church and state because Thomas Jefferson, right, who is involved with one of the founding fathers and

framers, is on record, and it's been cited in prior Supreme Court cases, as saying that this means that there is a separation of church and state. And there's a case from 1879, Reynolds versus US, in which Jefferson's comment is taken by the Supreme Court as the authoritarian declaration of the separation of church and state forever more. That's where the phrase comes from. Now, there has been, as you've started to reel off, a dozen or more cases, since the the 1800s all the way through 2020

about religion in schools and taxpayer dollars. And so we like to think as laymen, as laymen when we talk about it, as lawyers when we talk about it, that there is a hard and fast giant wall there is a hard and fast giant wall impenetrable between church and state. But it's almost like the wall a little bit in Game of Thrones. It is very protective, but one day you can come tumbling down and what we're seeing is a chip away at that wall by not just this Supreme Court, because they're just carrying the ball forward from other cases. So you mentioned one, Zelman versus Semen Harris in 2002 by a five to four decision, which upheld,

and that one it upheld, payments to provide vouchers related to religious education. In 2020, they even got even closer. And that's when we had not all of the current justices on the Supreme Court, but many of them, Coney Barrett had enjoyed yet. But in Esponosa versus Montana Department of Revenue, the Supreme Court ruled that a state could not exclude

a religious school from tax credit because of its religion. So that's the beginning of the end of what we always think of as an impenetrable separation of church and state because that court found it was okay to use tax dollars or tax credit to support a religious institution. So the current supermajority right wing Catholic voters on the Supreme Court now led by Amy Coney Barrett, Thomas Alito, Gavin, Kavanaugh and Gorsuch have based on the oral argument seem to be taking this even a step further. So in Maine, it's sort of unique. There's not a public school near the parties to this case where they can send their kid to public school. So they have to send their kid to private school.

And in this case, a religious school. And the question is, can they participate in that tax credit voucher system if their only choice is to send it to a religious school, even if the religious school is inculcating the values of that religion, it's teaching kids to be Catholic or whatever, you know, Christian sect or Jewish, I guess, if there's one in Maine. But the problem that this current supermajority on the Supreme Court has is that the main law says we will give you this voucher money, but we won't if part of what you are doing is inculcating religious doctrine in your school day to your children, to the students.

And that's the part that gave the six to three majority heartburn during the oral argument, which is sort of like, who are you, Mr. Bureau crad at the school board or the state? Who are you to decide whether there's too much religion or not enough religion? You know, we don't like that. You're supposed to be sort of neutral in this. This is the new thing, the Supreme Court, supermajority is doing. They're saying, oh, the Constitution is neither pro-abortion or anti-abortion. It's neither, it shouldn't be pro-religion, but it shouldn't be anti-religion.

Ignoring all the precedent about the separation of church and state when it comes to religious funding for religious schools. But this is the Federalist Society approach to every problem. We're just seeing it writ large during oral argument. So my gut is they're just going to take the ball from Esponoz of the Montana Department of Revenue

in 2020. And now they're going to say, in Maine, if you have a situation where there's no choice but to send a kid to a religious school, no bureaucrat can tell you how much religion or not enough religion is in that program before we're going to allow taxpayer reimbursement. And that's just going to be the law based on the oral argument. I'd be shocked if there's any changes when it goes into conference. But really what they're doing is this is not the landmark case. The way dobs is in potentially abolishing Roe v Wade. This is kind of the setup, right? This is the, we are going to start kind of fundamentally creating these obligations of states that offer voucher programs to make sure that they're funding private educations

outside of public schools in religious institutions and making religious institutions, beneficiaries, tax exempt, religious institutions, beneficiaries of tax dollars, whereas in Maine, the issue was a little bit narrow and unusual given it was this small subset of people who couldn't be educated anywhere else, other than a religious school, but the broader more fundamental movement where I think you see in 2022, 2023,

2024, especially as long as the six three remains, you know, you know, no pun intended on saying main, but as it remains, is this pushed towards tax dollars, funding, private, funding private religious education and making private religious schools basically as big of beneficiaries in some cases bigger than public schools. That's what I think is. I agree with you. And the test they're going to use, but they're going to use it, they're going to distort it and corrupt it and use it to their benefit, is a test that's known as the lemon test, and corrupt it and use it to their benefit is a test that's known as the lemon test, which came out of a case whose one of the parties was lemon. I don't know how people think it's something else, but it is referred to as the lemon test. And the way they analyze any law under the establishment clause is three prongs.

One, they look to see whether the law was adopted for a neutral or non-religious purpose. Two, they looked to see whether the effect of the law neither inhibits nor advances religion. So they're going to say, in this case, does the reimbursement advance religion or is it just as they're going to say, setting a kid to school where he can't, there's no public school nearby. And lastly, does the law represent an excessive entanglement, an excessive entanglement of government in religion? And you know what they're gonna say?

They're gonna say, it's not an excessive entanglement. These schools will operate with or without the tuition remission program or voucher program. And we don't see the fact that their curriculum includes teaching about Catholicism or teaching that transgenders or transgender

people are bad or homosexuals or against the Bible or God's will. We don't think that's an excessive entanglement because those schools are going to exist with or without this taxpayer dollar. You see where this is coming, but that is the lemon test that they're going to bake into their ruling off this oral argument.

No doubt about that. Tell us about our sponsor, Aura Frames, which is Popak, your favorite holiday gift that Aura Frames is like the perfect Popakianian gift. Popoq loves and for those watching, you know, it's digital photography that you can display through a frame in your living room or wherever you want to post photos. But it's done so immaculately. Like I saw these products we talked about at Popoq before, like a few years back, they had these like digital picture frames. And even recently they were, they just weren't good. Like I would, I bought one of them and it was crappy photos. But like this is really good.

I have mine, you know, in the kitchen with photographs. But Popak the day you got yours, you started loading the photos like day one. And like all you do is talk about it. So tell our listeners why they need to buy aura frames for this holiday season. I mean, I have a lot of toys in my life, but like this wasn't one of them, a digital frame. And I did, I had friends that got one.

I remember when a friend of mine got one, not aura, a dinosaur version of aura, you know, like 15 years ago and his wife loaded all the kids photos in it. And I thought it was sort of interesting. He told me he was really cumbersome to use, and he probably was never going to load another photo in it again after he got the original set from his wife. And so I don't think that's where we're going. But, you know, you have all of these pictures. I'm sure everyone in our audience has thousands of photos in the cloud or on their phones. And, you know, yeah, you occasionally look at them. You think they're interesting,

or you put them up on Instagram once or Facebook once. And you never look at them again. But, you know, I like the days of the, you know, the old photo albums and big collections of photos inside a Ziploc bags that My mother used to give me. And, you know, we've lost that. And Aura Frames has now digitized all that in a really easy and efficient way, which makes you able to see all these photos that you were so intent on taking at the moment, right? You couldn't wait to get that perfect shot where that family, you know, get Uncle

whatever in the photo with you, get the dogs expression just right. And then, you know, you said it and forget it never saw it again for years, unless unless something came up or Facebook popped it up in one of its reminder pages. But now you just have it cycling all day long and it does bring us, I have it right by my phone. So like when I'm mindlessly on the phone on something, I can at least look at something that's interesting. And I check off in my mind, oh, I like that photo. Oh, I remember that experience. I was just at a holiday party here in New York. And from the holiday party, a couple of pictures that we liked, we shot right to the frame.

Somebody sent me a photo of my mom and dad from 1964 that I had never seen. It was from a bar mitzvah of a cousin and it was a beautiful photo of my parents and my dad As past and I love that photo and I cleaned it up and I shot it right to the frame and then when I came into work today to To the podcast with you tonight. There it was on the frame. I really like I really liked this product a lot So it was one of Oprah's favorite things for a third year in 2021. For me, more importantly, it was on Popax favorite things. Get some great deals. Now go to auraframes.com, a-u-r-a frames.com listeners, use the code and and watchers use the code legal AF and take $30 off or as best selling digital picture frames.

That's or a you are a frames. com use the code legal AF and take $30 off or as best selling digital picture frames. Popok, what in the world is Mark Meadows doing here? I mean, you lost the Meadows for the trees. I just scary that somebody, one who shows just the worst judgment, someone who's like an idiot, being the chief of staff to an idiot. But I guess likes attract likes and it's no wonder that, you know, Trump allowed this idiot to be around him because Trump's the more on and they both probably complemented each other. I mean, so we talked about on the last legal AF podcast that Mark Meadows through his lawyer appeared to be cooperating with the January 6th cooperations, maybe not the best word, but what they were at least

agreeing to do was to turn over certain records that did not involve the claim of executive privilege and to sit voluntarily, although under threat of contempt, so not sure how voluntary that would be, but they wanted to frame it as, hey, we're gonna voluntarily talk to the January 6th committee and that they would assert objections about on the grounds of executive privilege

where executive privilege applied, meeting communications directly with Trump in the White House, that relate to all the things that executive privilege covers. But on areas where executive privilege is either waived, it doesn't exist, where executive privilege doctrine doesn't apply, you'd have to answer those questions. And so an example of where executive privilege

doctrine wouldn't apply when you're not talking to the executive. So when Meadows was communicating with other congressional people, other whack jobs as part of the stop the steal and correction movement, all those people, that's not executive privilege. And so Mark Meadows turned over records.

He turned over, you know, apparently a PowerPoint presentation, a PowerPoint presentation, which basically showed the steps of how they were going to engage in the insurrection. Overthrow a government in one easy PowerPoint tech. So they turned over those records already. He turned over text messages between Meadows and congressional aides talking about how they were trying to work with state legislatures to get alternative electors in there to which Mark Meadows replied, quote, love it. And that's just kind of the tip of the iceberg.

But he's now filed a lawsuit against the January 6th committee, Nancy Pelosi, basically seeking an injunction so that he doesn't have to testify on the grounds of executive privilege. Meanwhile, Benny Thompson, Liz Cheney, the January 6th committee's moving forward, you know, with their recommendation for contempt, that that vote will then go in front of the full house. But just what's he doing? Like, I think we say at the outset that this lawsuit, he's, are there any grounds for this lawsuit?

Popeye is just going to get dismissed? Is he just wants the delay? What's going on? Yeah. Meadows is demonstrated that he is a sock puppet for Donald Trump whose hand is firmly up Meadows colon. How do I know that? Because he's acting so irrational in his interactions through his attorney with the Gen 6 committee and is basically almost, I mean, in certain ways he's waived the privilege by producing 2,000 pages of documents, including the aforementioned PowerPoint,

which lays out the stop the steal, how do we stop certification issues? Any wrote a book? Well, he wrote a book, so he's done a lot of things that could be claimed to be waiver of the very privilege that he's trying to assert in the lawsuit. Another thing I want to put on the radar of our listeners and followers today is the importance of the national archive appeal case that you and I talked about two segments

of code tonight because a lot of these defendants or future defendants in the congressional criminal contempt case like banning, soon-to-be meadows, Clark, Eastman. A lot of them have said, let's see what happens with the civil case on the Gen 6 National Archive thing and how executive privilege plays out there. And, you know, I shouldn't be forced to testify until that gets played out. Well, that's getting pretty played out given Fridays ruling against Trump where executive privilege has been improperly asserted. So, you know, this thing they've been standing on, this house of cards they've been standing on, like just, let's just wait, let's just delay. Let's see what happens in that appeal in this appeal. All these things

are going terribly wrong for them. So as you mentioned, Meadows probably waived his privilege throughout his memoirs that he published last Tuesday. He's probably waived aspects of the privilege related to the production of documents that he's already done. And you can't, the courts are pretty clear. You can't have, you can't use a privilege as a sword and a shield. You can't waive part of it and give the ones that you think are beneficial to you or don't show anything and hold back the ones that the Gen 6 committee really wants to get its hands on by claiming privilege can't do that either. So now he's running out of exit ramps. And so the last one is let's try to go to a court and try to hope we get a federalist society judge to make a ruling here. So they file, but they have to file in the DC circuit

because that's where everything, everything here resides. They can't but they have to file in the DC circuit. Because that's where everything, everything here resides. They can't run out to Texas or the fifth circuit or the 11th circuit. They got a file in DC circuit. Now, I haven't seen Ben have you, and I looked right before we started podcasting tonight, I haven't seen which judge has been assigned to the case of you. I'm not seen. I'm not sure it's been announced yet. It may be Monday or Tuesday, and then we'll tweet about it and talk about it next week. But whoever is assigned to it, the lawsuit which says, I should not be subjected to the Congressional Committee's investigation, A, because they're way outside their boundaries

of their authority. That's not going to happen. That's not going to work. And secondly, I have legitimate issues related to the exercise of executive privilege. And if I made the testify, or then, you know, I'm being put through a kangaroo court for no reason. But that's not what Benny Thompson and Liz Cheney

has told him. What he's told, what they've told the lawyer is, come in, testify. And if you have a proper application of the executive privilege, make it on the record. It will assess it at that time. But you don't get the right to do a blanket assertion of the privilege and just say, I'm not coming in because I used to be the chief of staff. That's not the way that works. So he'll probably lose, we'll see which judge he gets at the court of at the DC circuit court trial level. And then it'll be just exactly what we've

already mapped out with all the other cases. It'll be some sort of appeal to the appellate circuit of the DC court. And then if he doesn't like that ruling, another emergency application of justice, Ruchief Justice Roberts. So we know it, we've seen this movie before, but again, it's the time interval that you're talking about that's so important. Because this will push out, you know, all of these issues well, potentially well beyond the, the midterm elections. Because, you know, Bannon's trial is now going to be in July. So and look how long it took us to get to that point. They haven't even voted on contempt yet. Congress hasn't against meadows, but that's coming.

And then a criminal referral so that he's trying to muddy the waters for the Department of Justice when they get the criminal referral from the house And he's got this lawsuit out there, you know He thinks that he may brush them back from the plate and they may give pause and not decide to criminally prosecute Waiting for the results of the court and he may be right We have to really what you and I have to watch really carefully so that we can explain it to our listeners about the next steps. But he's not a lot of weird things leading up to the lawsuit. If he was going to file the lawsuit, he should have done it three months ago and not produced

anything and certainly not talked about Jan 6 in his memoirs. Now, it's one of the extra kind of dastardly things about this Trump administration is this additional trauma of now trying to gaslight the nation and extend deadlines and just totally destroy all democratic institutions post the insurrection. I mean, all of this conduct that they're engaged in with these bogus's assertion of executive privilege over a Jan 6th insurrection, and then trying to delay it to erode our democratic norms is truly something

that's unforgivable. The other option that Mark Meadows can avail himself to as well is he could invoke the Fifth amendment. And if you want to think through, he could show up, invoke the fifth, not answer any questions, and then just leave. But even if you invoke the fifth, you know, at a criminal proceeding, you don't get to say, I'm not even going to show up to court. That's essentially what Mark Meadows lawsuit is saying. He's first off, he's trying to convert a qualified privilege, not an absolute privilege, a qualified privilege, that is the executive privilege, which is supposed to be about the liberations within the executive branch to try to protect those solemn conversations

between a president and another person in a city works for him for national security reasons. So that's like the whole purpose behind the executive privilege to begin with. He wants to basically convert that into the Fifth Amendment, which is I don't even have to answer any questions, you know, to against my right against self-incrimination. So I'm, which is not, that's not what the executive privilege is. but even if it was like the fifth amendment You think about it everybody listening the criminal doesn't get to show up and say hey I'm not going into court right now. I'm gonna plead the fifth. You're making me show up to invoke the fifth I'm not even gonna do that. You're harassing me. I'm gonna file a lawsuit against you

And I'm gonna file a lawsuit. This, I don't even need to show up. And you are proceeding to invoke the fifth. That's how absurd this lawsuit is, you know, trying to put it into those terms. And it's different just to make clarity to our listeners. It's different than when a criminal defendant asserts his fifth amendment right not to take the stand and testify in his own defense.

That's different. This is, first of all, this is it. Right now, this is a civil proceeding being conducted by the House. The only criminal component of it is a criminal contempt. If you don't testify in the civil proceeding of the House. So the House, if you're in a situation where you're in a civil proceeding, yes, you can assert the fit the amendment, but it has two, there's two qualifications to that. One, as you mentioned, Ben, you got to do it question by question, and it can be challenged. You can actually go to a judge and say, look, there's a series of questions here for which this witness has asserted the fit the amendment privilege, and and the judge can say no, it's not likely you're going to be prosecuted, or you don't have a reasonable likelihood of

you beginning to prosecute for it crime, or other factors that go into Fifth Amendment analysis, and then the judge may order you answer the question because it's an improper assertion of the Fifth Amendment. That's one thing. The second thing is in a civil case, so we've talked about this once before, there is an adverse inference that can be assigned in a civil context if you take the Fifth Amendment. So you can go to a civil case. OJ Simpson can go to a civil case where he got sued and refused to testify

every question that's asked of him. Did you kill your wife? Did you hide the knife? Did you hide evidence? Did you try to witness tamper and he can assert the Fifth Amendment? I assert my Fifth Amendment right, not to answer on the grounds that they incriminate me,

but the jury can take an adverse inference and almost here, guilty, guilty, guilty, guilty, every time that question is answered. So Fifth Amendment application in the civil context is different than in the criminal context where there can never be an adverse finding against the person asserting the fifth amendment. So we've got that going on

within this civil proceeding of the House. Absolutely. And then finally, Popak, I wanna talk about the Supreme Court's finally ruled on the Texas bounty hunter law, SB 8. There were two lawsuits against this SB 8 law that were ruled on in the district court, then subsequently ruled on in the fifth circuit court of appeals, and then taken up by the

United States Supreme Court. One case was brought by clinics that assist in the performance of abortions. The other case was brought by the United States Department of Justice against the state for enacting that law, and that was against the clerks and judges seeking an injunction to stop SBA. So basically what the Supreme Court said, and it's a weird, it's a weird ruling. It basically says that we will allow, because it was

never an issue about whether the SBA would be struck down or not. That was really not what was at stake. I guess the question was, could their SBA be challenged and could SBA be implemented in the way it was, you know, basically with the Supreme Court held, is that SBA will remain in effect, SBA is not going to be abolished, but it can be challenged, but it can be challenged in limited ways, not the way the federal government was seeking an injunction on it, but it can be challenged on, you know, through lawsuits against licensing agencies that could potentially revoke the licenses of doctors who are performing abortions, but that you can't go after the clerks, you can't go after Texas judges, you can't go after really anybody else in Texas. So I mean, what does it mean? It's a bit confusing, Popok, but I think at the end of the means is it means

an SBA remains an effect in Texas. So that horrible abortion law remains. No one is the federal government is not able to basically stop that law from going into effect. But to me.D. scheme, once they're targeted by S.B.A.D. Like, they're able to challenge the law, but they have to kind of go through the or deal to challenge that law within the federal system. And mind you, this is while you have the dobs case that we talked about last week that's seeking to overturn Roe v Wade.

And so to me, what the Supreme Court was really doing here is basically saying, we'll let you challenge SBA in a reactive way. We'll allow SBA to have its chilling effect to basically prohibit all abortions after six weeks in the state of Texas. We'll allow you to challenge it. Good luck. That'll take several years. In the meantime, we're working on dobs that's going to probably overturn Roe v. Wade, which is probably going to make the SBA law moot anyway. That's how I see what they really did here, but you could break it down a little better. Okay.

I don't disagree with your analysis, but let me make a little more molecular because it has baked within it in the decision. You have Roberts, Chief Justice Roberts, versus Gorsuch. Those are the exact two justices you and I talked about during SBA and during Dobs versus Mississippi that we said would be the key to whether the pre-viability right to a constitutional right to an abortion to whether the pre-viability right to a constitutional right to an abortion is going to survive or not. Chief Justice Roberts in this decision from yesterday or the day before yesterday, in his descent, in his partial descent, that was joined by the left wing or the Democratic wing of the Supreme Court, Kagan Sotomayor and Breyer, so four votes on a partial descent,

said without reservation that the Texas law violates the constitutional right to an abortion established by this court, by the Supreme Court, and did it in a way improperly to do an end-run around the ability of the Supreme Court to exercise its primacy in the area of constitutional interpretation, citing, as our listeners and followers know well, from me and you, Marbury versus Madison, from 1807, which is the case that established the role of the Supreme Court once and for all as the body of the three branches that declares and says what the law of the country and the nation is.

He didn't mince words. He wrote it plain and clear. He got three other people to join him. And that was throwing down the gauntlet in advance of the decision in Mississippi, the Dobbs case, and his effort to try to get one more vote over to preserve the constitutional right to an abortion. He failed yesterday.

He failed to get that fifth vote that he needed to tear down the Texas case, the Texas ban of six weeks now, while they, while we wait for the summer decision in Dobbs versus Mississippi on the fundamentals, he was unsuccessful in his, in his attempt, and it was a real attempt in a sharply worded dissent, which I'll post, to try to get I presume gorsuch over to his side. Instead, Gorsuch wrote the majority opinion, which basically said, this is a procedural issue only. We are not going to rule on the merits of the SBA six week ban on abortion.

We're not going to solely ourselves at this moment while we're deciding Mississippi's case for the summer on the merits. So we're okay. There's at least six people. No, sorry, without Roberts, five people on the majority on the US Supreme Court that thinks it's okay that there won't be one abortion in the state of Texas between now and next summer, even if, even if they ultimately find, because Roberts is able to get Gorsuch over or somebody over that there is a some sort of constitutional pre-viability right to abortion left. If there is that left, what have they done in this dastardly way that you've identified? They for for thousands and thousands of Texas women, this won't matter because they will have had the baby already.

That's how many months out this is and they don't care. This is the callousness that Roberts pointed out and is dissent when he said, this is an institution that is supposed to declare what the law of the land is under the U.S. Constitution. And we are abdicating our responsibility to do that. And oh, by the way, the law of the land is Roe v. Wade and Casey. And are we going to let the states do an end run around us and ignore us as the sitting body of the co-equal branch of government?

Yes or no. And right now, five people on that on that Supreme Court are like, yeah, we don't really think it's that big of a deal. My biggest issue with this and reading the tea leaves is Roberts, as we've said time and time again in the last 37 weeks, has lost the control of the court. He is basically a chief justice and name only. He is not shaping a result in the important social issues that matter. And he is losing his hold as that tug of war that that piece of cloth in the middle of the tug of war gets pulled and yanked over the supermajority

side and issues of importance. Now, I want to ask you something. I saw in Slate magazine, I thought it was a very good hypothetical that if Roberts wants to preserve his legacy, because up until this moment, his legacy, one of his legacy was, and I think he was proud of it, was having Obamacare survive twice. If this goes awry in the summer, he will forever more be the chief justice that let a constitutional right go out the door first time in 150 years. If he doesn't want that to happen, there is a strategy. He is 66 years old. He could resign right now and let Biden appoint the new chief justice and swing it back in

terms of the amount of people on that paddle that are in his favor. Does Roberts do that? What do you think? Absolutely not. Roberts is not going to. Well, that was easy. He's absolutely not going to do it. You know, he's been on the bench since he was appointed by George W. Bush. it's a big deal to be the Chief Justice. His view of the institution is going to be that through, over time, he could be able to fix it, that it could be a dark moment in the history of the court, but that we'll see what happens with future elections and what the composition of the court ultimately will be.

And I think that he'll have a very strong descent to preserve his view and where he stands when I think there will be a ruling overturning Roe v. Wade. And then I think there are going to be people who take to the streets. I think there are going to be people who are going to mass protest when that happens, you know, in June or July or when that order hits. And, you know, history is not going to be kind to this 30-year plan by the GQP and the Federalist Society to attack women, to attack child-bearing persons, to attack the separation of church and state, to attack

our democratic norms. It's incredibly sinister, and people don't realize it, but when that ruling hits, it's going to, people are going to wake up, and people are starting to wake up, and I'm happy to be able to do this podcast with you, PopoK, every weekend, to help people wake up, learn the law, be be empowered and to teach others about these legal cases that we're talking about. I want to wish everybody a great weekend. I'm Ben Myselis always a pleasure being joined by Michael Popak. If it's Saturday it is legal AF live. If it's Sunday it is legal AF.

Thank you from the bottom of our hearts in making Legal AF one of the top legal podcasts in the country. Shout out to the Midas. Midas.