Legal AF by MeidasTouch - Top Legal Experts REACT to midweek legal BOMBSHELLS - Legal AF 9/14/22

Episode Date: September 15, 2022

Anchored by national trial lawyer and strategist, Michael Popok, and former top prosecutor karen Friedman Agnifilo, the top-rated news analysis podcast LegalAF x MeidasTouch is back for another hard-hitting look in “real time” at midweek’s most consequential developments at the intersection of law and politics. On this episode, Popok and KFA discuss & analyze: the DOJ and Trump’s “legal team” duking it out (again) in West Palm Beach (FL) federal court over the appointment of a special master for the documents Trump stole on his way out; the DOJ firing out over 40 new grand jury subpoenas against Trump world and his lawyers focused on the fake electors and Trump’s phony fundraising; and the NY state criminal trial against the Trump Organization scheduled for 10/24.  DEALS FROM OUR SPONSORS:  Aspiration: https://www.aspiration.com/LEGALAFDEBIT SHOP LEGAL AF MERCH: https://store.meidastouch.com/ Remember to subscribe to ALL the Meidas Media Podcasts: MeidasTouch: https://pod.link/1510240831 Legal AF: https://pod.link/1580828595 The PoliticsGirl Podcast: https://pod.link/1595408601 The Influence Continuum: https://pod.link/1603773245 Kremlin File: https://pod.link/1575837599 Mea Culpa with Michael Cohen: https://pod.link/1530639447 The Weekend Show: https://pod.link/1612691018 The Tony Michaels Podcast: https://pod.link/1561049560 Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Midweek edition of Legal AF. We have the return of the dynamic duo, Michael Popak and my co-host. Well, I haven't seen it quite some time because of summer and family commitments and all those other things. Karen Friedman, I can if you love Karen, how are you? Great, it's so good to be back. It's amazing how personal and other commitments get in a way sometimes, but. Summer, summer, but we're so glad you're back. The fall is here.

I'm wearing sort of a fall color sport coat for those that are watching this on YouTube and other places. And we are ready to bring the most consequential stories from this week at the intersection of law and politics. We're going to start, Karen and I I are gonna start with the Department of Justice having accelerated and ramping up their efforts to prosecute Donald Trump and all those around them with not one, not two, but likely three or more grand juries

that are in play in Washington, DC. And we'll talk about what we think each of the grand juries is investigating. And the issuance of 40 or more subpoenas, 40, to everyone in the Trump orbit, including lawyers, and another lawyer enters the Hall of Fame of having his cell phone picked up and reviewed by the FBI Department of Justice having been close to Donald Trump. And that is Boris Epstein, and we're going to talk about him as well, that lustrous hall of fame that he's entered. And other Trump lawyers lost his phone to the Department of Justice.

And we'll talk about what that, we think that all means and caring from a prosecutor's standpoint, what you think that means. And then we're going to turn to an update on Mar-a-Lago, all things, Espionage Act and obstruction of justice, and what is happening in the courtroom of Judge Cannon between the Department of Justice and Donald Trump's lawyers, over those pesky 100 classified documents that Donald Trump decided to take as a personal souvenir when he left the White House.

And what should a special master look at and what a special master should not look at and what it means for a national intelligence assessment about a potential compromise of our national security because the former president decided to have sticky fingers out of the White House and take with them all of these materials that he should have turned back to the government. And then we're going to end with a quick update related to an office near and dear to my co-hosts, Hart, the Manhattan District Attorney's Office, going to trial October 24th against the Trump Organization for tax evasion and fraud and other crimes.

And that case is full steam ahead based on the judges' rulings in the last two days. And we'll talk about that. Karen, we got a lot to talk about in our midweek edition, isn't that great? It's amazing how so much news is made every single day. And it's just you can't almost can't keep up with it. You feel like you're watching tennis match, right?

Yeah, Ben and I when we kind of created legal AF, we literally said to ourselves at one point, so you're going to be enough to talk about like every week, you know, in the beginning, just a little bit of origin story at the beginning, we were filling our plate with things like, let's talk about the world wrestling federation lawsuit in Connecticut. Somebody should go back and find the old clips before we realize, you know what, that's not really what our audience is interested in. They're more interested in that amazing intersection to be a witness at the corner of the ring

side of what's going on in our democracy as it relates to the all-important justice system. So let's kick it off with what our department of justice is doing as it relates to all things Trump. Let's do the first let's do the headcount of how many grand juries we think there are. And then we'll talk about the subpoenas and we'll talk about this 60-day rule 60 days before an election in what the Department of Justice may be trying to do by firing out all these subpoenas at this moment. First, and Ben and I went through this last Saturday, but let me just remind the midweek audience, there's definitely a grand jury in place, federal led by the Department of Justice, related to the fake electors that Trump and all the people in this orbit tried to use,

led by John Eastman, led by Peter Navarro, in order to have these phony electors ready to go to overthrow the government and declare Donald Trump to be the president. That's a no-no in criminal process and constitutional law, and the Department of Justice has a grand jury looking at all things fake collector. We now know, because that same grand jury issued subpoenas related to the Trump PAC, the political action committee, that he formed after he lost, okay, just to make this clear. He didn't have this in existence. This was created special after he lost allegedly to raise money to fight the big lie, you know, well, what we consider to be the big lie, to fight against the phony

election results that Trump and his supporters believe happened, and all the money, millions and millions of dollars that poured in because of those things. So one grand jury is looking at Trump's Save America Pack and fraudulent fundraising using the fake elect electric scheme together. Another grand jury we know Karen is looking at everything that happened on Jan 6th around the ellipse, how we got there, Jan 3, Jan 4, Jan 5, you know the command center at the Willard hotel, Trump's role, Trump's campaign's role, campaigns role and what happened that led to the attack on the Capitol, right? The siege that was laid on the Capitol, which looks like it was led by Donald Trump and those around him.

That's a grand jury. Another grand jury we know is looking at the documents that were retained by Donald Trump, those sticky fingers things we talked about earlier, because they issued a subpoena related to the documents that led us to the search warrant ultimately at Mar-a-Lago. So, we know those are all out there. To answer the question, what is Merrick Garland, his Department of Justice doing? This is what he's doing, along with the other 700 prosecutions of the people that store in the capital. So let's, let me first get your view. What's your view of this reporting there that there

is an internal rule at the Department of Justice that 60 days before an election, things that could influence the election by way of prosecution or investigation will be put on hold until after an election. And how do you think that's impacting the issuance of these 40 grand jury subpoenas? Well, I think it's fairly clear that the Department of Justice is clearly not stopping their investigation and their continuing. And this rule or this tradition is something

that a lot of criminal prosecutions and prosecutors take very seriously. I know Sivance was very conscious of that around the time of elections. And would say to us, we can't do anything involving something that could influence an election. And so 60 days isn't really a rule. It's just kind of a place mark that prosecutors give themselves to say, you know, just as you get closer to an election, be careful that you don't make any decisions that could impact that. And so it's just something that's more like a tradition that prosecutors keep in mind. And I think it's clear that this is something that Bill Barr, he issued a memo and Marik Garland

re-issued the memo just to remind prosecutors that they aren't supposed to do anything like that. And of course, we all know that James Comey, when he felt the need to tell everybody that the Hillary case was reopening two days before the election, that a lot of people think that that's why she lost the election. So, these things have real life consequences, but in this particular case, it's unclear. You know, it's Donald Trump. It doesn't supply to him. He hasn't declared his candidacy.

I mean, clearly he's, has an outsized role in the election. He hasn't declared his candidacy. I mean, clearly he's hasn't outsized role in the election. He's considered the leader of the Republican Party, but at the same time, does it apply to him? Does it not apply to him? And then the other questions are, you know, does it apply to things that go on behind scenes like, you know, issuing subpoenas that the Justice Department won't tell people they issued a subpoena, but the person who receives the subpoena or the lawyers, they are free to tell people. So if you do not continue your investigation, because there's a possibility that someone else might reveal the information, you know, it becomes very murky when you look at this rule or this, this tradition and try to figure out how to implement it. I mean, certainly the fact that they seized two more phones and issued these 40 subpoenas. I mean, we know of two more phones that they seized.

For all we know, there were others because we know DOJ is not releasing this information. These are just people who are coming forward and telling, I think it was the New York Times about this and they're the ones who reported on this on Monday. But I really think that it's very clear that DOJ has not gone on vacation and they're not pressing pause. I don't think they'll make an arrest, for example, during the 60 days, those types of things. But I do think their investigation is clearly continuing. And, you know, interestingly, the New York Times article that reported about the fact that these phones were seized and these 40 subpoenas were being issued. You know, normally, if the New York Times had a copy

of the subpoena, they did talk about what it was subpoenaing, but they didn't mention the crimes that were being, or which statutes were being investigated, at least I didn't see that. And so I found that interesting because that led me to think maybe they haven't seen a copy of the subpoena, maybe someone just told them about the existence and what they were looking for, which were documents and

records. But, so I'd love to know which of the crimes of the four grand jury investigations that you just mentioned are these subpoenas, because although there are these separate and distinct investigations that you just laid out, so perfectly about what's going on, in reality, they all bleed together. So if you're a prosecutor, a prosecuting this, for example, you might want to, you might want to prosecute Christina Bob, the lawyer who, uh, I believe is the one who swore the affidavit saying,

I searched and found all the documents and there's nothing else in there, whatever she said. But let's say they prosecute her and she has loyered up. You know, let's say they prosecute her. She could flip. I don't know if she would or not, but let's say she flips and cooperates. She could cooperate on the Jan 6 investigation because she was in the room in the in the various rooms. I think she was at the Willard Hotel. You know, she was very much involved in a lot of the planning or she could be involved in the fake electric scheme. Who knows? So to the extent, it's one thing to look at these things as separate. But as they go up the chain in particular, these investigations are going to start to bleed together in ways that I think these are going to be, these are going to start coming together

nicely. If things go the way I predict they're going to go, which is towards additional prosecutions. So yeah, that that's that's a good observation especially about the 60-day rule I think that's from your prosecutor's standpoint to hear that and I agree with you I don't think since he's not a candidate and he has an announced and may not announce I don't think it necessarily applies to him and certainly what we've seen from the Department of Justice is its full steam ahead I don't think they're trying to cram things in before this imaginary 60 day period. I think they are just moving forward with their investigation with the grand jury. And that was very good observation also about, you know, you, we learn this information

that we're piecing together on this podcast and in other places because people reveal it to the papers and, and others, not because the Department of Justice is leaking it. And so what we know though, from people that have decided to disclose what's happened to them, that Boris Epstein, who was a lawyer, who was a very close confinant, friend and fundraiser for Donald Trump, got his phone picked up.

So we've got at least three lawyers, if not more, probably more half a dozen lawyers who have had their phones picked up, Rudy Giuliani, of course, had all of his devices at one point picked up. So, you know, if you're going to represent Donald Trump, your law licenses at risk and your phone is probably gonna get picked up in a criminal investigation. So his, what's on that phone related,

we think, to the fake electric scandal, because both Boris Epstein, a target of the, or at least recipient of a subpoena, and Mike Roman, who was Trump's head of election day operations, worked together on the fake, what we call the fake electric scheme. So we think that's coming out of the day operations, work together on the fake, what we call the fake collector scheme. So we think that's coming out of the fake collector slash save America packed grand jury. Then you have of the remaining 40

that it looks like have gone out, subpoenas that have gone out, you have, it looks like it's broken down again into fake electors save America America, pack based on the information that's been requested, maybe not the statutes that have been cited, but the information is a lot about the pack and the phony fundraising and a lot about the fake electors. So we get a sense it's coming out of that one grand jury. So you have Dan Scavino, we know who was the social media director.

I think he used to actually, like, he was in charge of, I'm not making this up, the golf carts at one of the Trump properties before he got promoted to be head of social media for Donald Trump. But Dan Scavino, close confinat Donald Trump, got a subpoena, Bernie Carrick, the disgraced former police commissioner from New York, who also testified to the Jan 6th Committee, and as a very close conflunt of Rudy Giuliani and promoted the big lie and the fake electors, he's been subpoenaed again to the grand jury. So, and we know all the other ones that have already gone in. I mean, there's a lot of low-level White House aids

who know the most, right? They're the literal fly on the wall in every meeting and they don't wanna blow their careers or go to jail. So they're inclined to tell the truth. You know, they, covering up for the president is not part of their resume, you know, resume building. So the low-level executives, low-level aids are gonna be very, very helpful here. And then the low level executives, low level aids are going to be very, very helpful here. And then the senior most people, though, a good development.

Now let's manage some expectations here. If I had to predict, and I want to get your view on it, the Fulton County Fawney-Willis Grandjury Criminal Prosecution is further ahead than the Department of Justice with all of these grand juries. Do you agree with me on that? It certainly appears to be yes. Yeah, and I think I think the Department of Justice is also in all these grand juries is also necessarily behind what's happening in a more rapid basis in the Mar-a-Lago criminal investigation. Do you agree with that? Based on what's been publicly reported, yes,

it appears to be, but it's hard to know. I just having been on the other side of it where you get all the speculation and reporting on something, and meanwhile, we would know what was really happening. Sometimes you scratch your head and think, where are they getting this information from? And gee, they really don't know, but I can't say.

But it also was comforting as a prosecutor because it showed we didn't have leaks. Yeah, right. Yeah, I'm not doing leaks. I'm just saying, based on how it looks, the case is developing in court I just want to manage expectations department of justice You know is a giant bear that got out of hibernation and is now wandering around looking for food

But I'm really into a fall winter mode But it's gonna take a while one of the things I know from the reporting that is part of the subpoenas Karen is not only what we've already talked about, but is also give us all of the stuff that you gave to the Jan 6th Committee. So this is now the Department of Justice playing catch-up. Because they were asleep for 2021. Yeah. And the Jan 6th Committee, it's credit or it's detriment, wasn't willing to turn over its materials until they were

done using them for their own purposes? So they kind of kept the Department of Justice in the FBI a little bit at bay, and we know there was a fight over that. But now the Department of Justice playing catch up. Good developments if you're in favor of justice and bringing Donald Trump to justice, but the wheels of justice move slowly, but they grind really fine. That's what we're launching now. Before you move on, I just want to mention something about Bernie Carrick. I always forget that he's caught up in this soup of Donald Trump world.

And for people who aren't from New York, you know, Bernie Carrick was a larger than life character here back in the days when Rudy Giuliani was the Southern District US attorney and then America's mayor during 9-11. Bernie Carrick was the corrections commissioner. And, you know, there's a big his name. He's on the local Manhattan jail. It's the Bernie Carrick correctional facility. I mean, he's sort of a larger than life figure who he may

and he may adopt there. Well, so that's what I wanted to say was, you know, so he had a big falling from grace and was prosecuted and was put in prison for many years. And he is a perfect target for the Department of Justice. He is the kind of guy that they are going to go after and really try to flip because he's vulnerable because of his prior, first of all, he's been to prison, so he doesn't want to go back. He knows how bad it is. And second of all, any sentencing of him would be an enhancement because of his prior criminal conviction. So I think he's just so so as a result, he has more to lose. And those are the types of things that prosecutors look for when they're looking to find someone who potentially might flip his who has the most exposure, who has the most to lose. He's somebody that I think we should keep our eyes open to see, I could see the prosecution

heating up against him. He had a very good observation on that. Let's move on to catching our listeners and followers up with Mar-a-Lago. So we have Judge Cannon, who we already reported on as made her initial ruling or ruling, that she would appoint a special master, that she would appoint a special master and that she would have that special master

review executive privilege material, attorney client privilege material, and personal items of Donald Trump, sort and sift through all of that, and then report back to the judge and ultimately to the parties, basically granting everything that Donald Trump wanted. We now fast forward to the Department of Justice's response to that, which was appealing aspects of the order, not the entire order. We'll talk about the aspects of

the order that Department of Justice was okay to live with. It was okay to swallow, related to that. So it's not to delay the prosecution, the criminal investigation, and the intelligence assessment about whether our national security has been compromised by Donald Trump storing hundreds of classified documents in a storage room or other places at Mar-a-Lago, and very not secure facility. So the Department of Justice has called back to the judge and said, we've appealed you, Judge, as to your, at the aspect of your order that stops us and what we call enjoying issues and injunction against the Department of Justice using the materials until they're reviewed by the special master, including the classified materials that are obviously marked classified in their continuing investigation.

Meaning you can't use it to go talk to witnesses with, you can't follow up with them, it puts, it stops the Department of Justice down in their tracks related to those 100 classified documents. And also by extension, the way the Department of Justice reads the judge's order, stops the intelligence community, including the FBI and the director of national security, national intelligence, from reviewing the documents also.

And so they are appealing that. And they're also appealing the aspect of the magistrate, the order of the judge to set up a special master to establish or look at executive privilege, arguing there cannot be any executive privilege. And therefore, having a special master look for executive privilege is a fool's folly and is unconstitutional.

And they told the judge last week, will give you till the 15th of September to fix your order as it relates to those things. Here's what the Department of Justice is willing to live with your honor. You can have a special master appointed. You can have them look at attorney client privilege material if that's even in existence. And you can pick out or she can pick out any personal items like medical records or passports or anything that's sort of a personal item, not necessarily the focus of the investigation. We're okay with that.

And the judge has not yet ruled on that issue. I don't want any confusion in the report. And people are like, oh, they've agreed to the special master. They've agreed to the special master concept, but only in the limited way that we've just described. Then the judge gave Donald Trump and his lawyers the ability to file their paper addressing the, what was a motion for stay, the Department of Justice going to the trial judge saying, you need to stay these aspects of your order, or we're going to have to go to the 11th circuit and get an appellate stay against you for that, because we've got to move the investigation

forward. It's a reputable harm to the nation if we don't, and we've got to do the intelligence assessment. And we haven't gotten that rule again. What there seems to be agreement now on, that Karen, I wanna get your view on this, is who's gonna be the special master? The Department of Justice put up two former judges very highly reviewed and rated Barbara Jones, who has done this exact work in the Michael Cohen case, in the Rudy Giuliani case, and another judge, Griffin, who's the formerly on the

Pellet Court for the District of Columbia Federal. The other side, Trump put up a federal judge, what's Ray Deerey, we'll talk about him in a minute, and Paul Huck Jr., who I know in the community is not really the person for this job, especially since he's married to a woman who sits, a judge who sits on the 11th Circuit, Paul Huck Jr., who I know in the community is not really the person for this job, especially since he's married to a woman who's a judge who sits on the 11th Circuit, Barbara LaGoa, who was also touted to be on Trump's short list for the Supreme Court before he picked

Amy Cody Barrett, not the right person. And I said last week with Ben on the weekend that they obviously put up Paul Huck Jr. because at least Trump wanted Ray Deere to be picked and they were sort of pointing the arrow at Ray Deere. And the government has agreed that if they want Ray Deere, they're okay with Barbara Jones, Judge Griffith, or Ray Deere for the Eastern District of New York in Brooklyn, who's on senior status

or may be coming off of senior status and has the background having been nine years on the FISA court for foreign intelligence surveillance appointed by Roberts, Chief Justice Roberts, that he's okay with the Department of Justice if the special master's limited to the things that we just said. They also filed and said, on a very interesting note, the Department of Justice filed last night and said, we don't really understand Donald Trump's argument. How could anything be both personal to him and covered by the executive privilege? If it's personal to him, and we'll talk about how classified material could ever be personal to a to a president

and ex-president. That how do you have it be covered by your presidential title and status with an executive privilege? It's either personal or it's presidential. If it's presidential, then you get the executive privilege. So we don't get that argument. And also, how could classified material ever be designated to be personal and where the Department of Justice wrote last night?

Where is a declaration or affidavit from Donald Trump that says any of that that says that he's declassified any of this information? That's only been reporting. That hasn't been a declaration by the ex-president or that this is personal to him and how They don't file anything related to these things from Donald Trump They never put Donald Trump in harm's way with an affidavit or a declaration or any sort testimony or evidence Related to it. They just say it just naked arguments of counsel in their filings are in the courtroom So that's where we are and that's what's all on the slender shoulders of this very junior judge, Judge Cannon, to have to make this ruling in the next few days or be taken up on all these

issues, the 11th Circuit. Let's start with the special master. What did you think about the Rae Deere selection consensus between Department of Justice and Donald Trump? I mean, I think anyone who doesn't think that there's a 100% chance that Ray Deere is going to be the special master doesn't know what they're, I mean, it's so clear that he's going to be the special master, right? He's very well respected.

I mean, he was a very well respected judge. Everyone who's appeared before him will say he's a fair, smart judge who recently took senior status. He has staff in place that can jump to do this very quickly. He was on the FISA court as you said. He's, I think, I haven't found, although I've never appeared before him, I asked around about him. I know Barbara Jones very well. She's excellent, but the fact that they all agree on Derry means that is 100% who's going to be picked. I mean, there's no question why I'm not about that.

There's only one problem with Deary, but the Department of Justice has obviously calculated it and think it's not a problem, is that, you know, he was involved with the Carter page, FISA subpoenas, sorry, search warrants, he authorized three of them, and subsequently two were found to be invalid based on misinformation by the FBI. So if Ray Deere felt like he was misled by the FBI, I assume that's why Trump picked them. They figured they had to pick a federal judge. Let's pick one who once got burned by the FBI, but give it his body of work. Yeah, exactly. Yeah, of all the years of dealing, of not being burned

by the FBI, I don't think he's going to, I think that's a little bit of a stretch to think that one negative experience is going to cause him to suddenly lose his, his judgment of all these years. So I, I think that I think he's clearly going to be the special master. You know, I have a slightly different take on this whole special master thing. It feels very much like a red herring. I mean, I hate to use, I think that's what Bill Barr said, but it really sort of does. I think the Department of Justice did an excellent job at threading the needle here and say, fine, you want a special master, have a special master. Just not for these particular documents that we have to go through so that we can assess both the national

security implications as well as continue on our criminal investigation, you know. And I think that the sort of the interesting part about this that the Department of Justice pointed out was that there really is this bleeding together or blending together of the intelligence community and the law enforcement community in this particular instance that you can't separate them out. You can't sort of say, okay, we'll use,

because the judge's order says you can continue to use the classified documents to assess the national security implications, just not for any criminal investigation. And I think that shows, and the Department of Justice did a good job at letting them see that it shows that they really don't know what she really doesn't know what she's talking about by thinking that these things are separate because the intelligence community, they can't conduct investigations into domestic criminal activity. And to assess, so for example, to me, like the best example is these empty files, right?

There's these empty folders that were marked classified. Somebody's got to figure out what was in them and who took them and where did they put them and how are they going to do that without things like subpoena power or using search warrants. Those are all domestic law enforcement techniques and that's the only way they're going to figure stuff like that out. And so there is really no, and the CIA can't do that, right? Only the FBI can do that. So there really is no way to separate this out. And I think the Department of Justice explained that in their response and is giving the judge an opportunity to change course here, but

part of me wonders if she doesn't do it. It looks like she doesn't agree to the partial stay. Should they just agree to the special master, and this is where my take is a little bit different, should they really appeal? Or because to me, that's going to delay things even more. I think that if they go to the 11th circuit then they're really going to be a delay. And then at a certain point there argument that there's a national security issue I think falls. Maybe they instead just go along with the special master. I think Judge Deary is a serious person.

And I think he will vary. I could see the way, I could see the special master sitting down with all these documents and saying, I'm going to start with the things that are marked classified. And he can look at them and easily say, they, they are not personal as you just pointed out. They are not attorney client, because they, by their very nature, cannot be attorney client. They are not not executive privilege because the law doesn't apply there. And the Donald Trump and your team, you haven't put forth any evidence that these things are declassified. And so therefore, I am now on day one,

handing them over to the government to say government, you can now review these while I now parse through the, you know, is this or is this not a presidential record? Is this personal? Is this, you know, your medical records, your tax records, all the things he claims that we're stolen, that might take a little bit longer. I don't really see it, but to me,

I, and this, like I said, this is where I'm a little bit, I really think that if the judge does not, I think the judge might to save face, give the DOJ what they asked for here say, fine, let's just do the special Master and I think that's a, that's an excellent, amazing observation that I haven't heard before comes from here. Yours being a prosecutor. I think you're right. I think the path of least resistance here, the quickest connection between the Department of Justice and what they want to accomplish is to stay in the West

Palm Beach courthouse with Judge Cannon, Try to shape the result as you just eloquently outlined all those points. Try to shape the result that they can live with. We always say that perfection is the enemy of the good or the good enough. It doesn't have to be perfect, but it's good enough for the government to accept so that they can accomplish

in an expedited fashion, all the things they want to accomplish, progress the criminal investigation and do the national intelligence assessment. I think you're right. I think they stay if your analysis is dead on. You stay in the West Palm Beach Courthouse, federal courthouse, if that's what you want to accomplish, otherwise you run up 95 to Atlanta to go hang out with the 11th Circuit and spin the wheel there and find out which, you know, two out of three Trump appointees to get on your panel. And therefore, you know, your chances of a stay

are diminished as well with all the briefing that's required. I have one more thing I want to say if you don't mind, I apologize, but I don't. I know, sorry, okay, just one more quick thing. There's something in this that I, there's a so Donald Trump's team on September 12, which was a couple days ago, filed the response to the Justice Department's motion for a partial state pending appeal, right? And you read it, and it's all the, it's sort of, you know, he says that this is unprecedented, misguided, you know, and it's court, this is a document storage dispute that spiraled out of control, you know, all that kind of stuff. There's something, there was something in there that caught my attention, though, that I

want to bring up, that I want you to, I want to just hear what you have to say or or it looks keep an eye on. And it's footnote one. So in footnote one, he basically says that how can they don't exactly say this, but I'm taking it two steps further. But he basically talks about is if these are really classified documents, if this was a real criminal investigation, when you have a criminal investigation, you have to be prepared at some point to go to trial, right? At some point, you're going to trial, it means your evidence gets put before a jury. And so what they're saying is if this was a real criminal investigation, they must have, the DOJ must have already made the determination that these classified documents

are something that you can release, that you can release to a jury because if not, you wouldn't even have a criminal investigation. And so it was sort of interesting to me because it makes me wonder, you know, is this really a real criminal investigation? Because I don't think at the end of the day, if this was really the nuclear secrets of other countries, there's no way this is going to be put into evidence. And so I worry a little bit that is this really a criminal investigation or does the DOJ want delay in this matter while they do their real criminal investigation, which is the JAN-6. Because to me, that is the one that has, like, that or the fake

elector, you know, Fannie Willis, but the DOJ version of it. To me, those are the real, those are the real cases that you can't say, it was a witch hunt, you can't say this was a document storage, like, you know, those are the real, real criminal cases that I think that that won't cause riots in the street, you know, because that those really happen. So I don't know. Part of me kind of wonders, does the DOJ really want this to proceed quickly? Because I don't know that this is a real criminal investigation, because at the end of the day, I don't know that they'd be prepared to put these

records into evidence, a trial, and have them be out there for the world to see. Yeah, that's a good observation. One of the things we'll have to look at is when they've tried SB Nage cases in the past, all the way back to the Rosenbergs. When they have nuclear secrets and other things, I assume there's a way to, even though the preference and the rules require public disclosure of things. There has to be scenarios where you try a case, but things are sealed,

and other people than the jury are banned from the courtroom, and information can be presented in a sealed container, because they are still active live, radioactive documents. Otherwise, you'd never be able to prosecute somebody. Yeah, no, there was a stealing for stealing a national secret because you didn't want to reveal the national secret. No, there are all kinds of rules in place and laws that govern this.

I think it's called SEPA. I think it's the acronym for these types of documents. And I'm going to, between now and next week, I'm going to bone up on this and we'll talk about it and see what it is. I still think, though, I know it's very complicated. And I do think it's complicated, both actually, but also from a public, you know, perceptions standpoint, you know, the, the whole Russia collusion, you know, that whole thing that, that was done before really didn't get anywhere and didn't, went over the hearts and minds of the American people. And I think they have to be careful because it just feeds into his witch hunt language. They have to

be careful if they're going to do the unprecedented thing, which is prosecuted president in the United States, they got to put their best foot forward. And I don't see them doing it on just, on just this. I really don't. And so I think I think that delay might be something they actually want while they, while they go forward on their, on their more serious cases. That, that's what I think this Department of Justice might be doing. That's a good segue from our discussion

about which of these prosecutions is further ahead and why in this chess game that prosecutors not all in the same office or even then in the same system, federal versus state are playing throughout this and why. And we talked a lot about Karen, special masters, they're supposed to be neutral, but when it comes to saving the planet, there is no neutrality.

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Against the Trump organization, everybody forgets, there's a criminal case against the Trump organization. Who are the owners and executives of the Trump organization? Hmm, let me think, Donald Trump and all of his children. And we've already reported that three weeks or so ago, Alan Weiselberg, the longtime 30-year plus CFO chief financial officer of the Trump Organization, who was also facing 15 counts of tax fraud and tax evasion, played guilty, and if he wants his five months sentencing, even though it's in Rikers Island was a terrible place to spend five months

I wouldn't want to spend five minutes in Rikers Island But if he wants that five months he's got to testify truthfully about the conspiracy that he organized and led and All the people of the Trump organization that knew about it So we're gonna have to see how he what he what happens to him. I don't take a lot of comfort. I take some cold comfort from the reporting that as soon as he made that deal and and pled guilty the Trump's through a birthday party for him at at one of the Trump buildings. It doesn't sound great to me, but in any event, Trump Organization goes trial

October 24th. Judge Marshawn, who's also the judge for the new banan trial. Boy, is this like all things coming together? Same judge now handling the banan indictment and surrender and all of that. And trial there about Bill DeWal has been the judge all this time on the Trump Organization prosecution by the Manhattan DA's office. And what did we learn last week in some of these last hearings leading to October 24th about whether the trial is going forward and the types of defenses that the judge will or will not allow Karen. So Judge Mershawn has someone I've appeared before many, many, many times. He's a great judge.

He's calm, he's kind, he's fair, he's very judge like. And he said in his calm way, way. October 24th is a fixed date and that's that. And the the Trump lawyers tried to get a delay. You know, they they they appeared before Judge Marchan last week and basically asked for motions and lemonade and and talked about various things and one of the things that that trumps the Trump orgs lawyer Susan necklace, you know, she asked for more time because she says that their defense is changing now that they have the Alan Weisselberg testimony. And Judge Mershahn said, no, this is a fixed date and you're going forward on October 24th. One thing I want to, two things I want to say, Susan necklace is a real lawyer. She's not, I mean, Trump hasn't been able to attract good lawyers or real lawyers yet,

but Susan necklace is a respected attorney in this area. So I found that sort of interesting that she is representing the Trump organization. And the only other thing I want to send out a something to watch is what exactly is Alan Wieselberg going to say and what will he say when he's called as a witness because I think he's going to not implicate the Trumps. And as a result, I think that's going to make any future prosecution of Donald Trump by the Manhattan D.A.'s office very, very tricky and very precarious. And I think that's, you know, it's going to be interesting to see how that plays out. Well, Susan Neckless, the lawyer that you just mentioned, certainly signaled that because

when she gave her mandatory courthouse steps interview after press conference afterwards. She said, oh, this is going to be about Alan Weisselberg and one other person that, you know, he's going to testify that nobody knew about this scheme. And it was just him and one other guy, the Trump organization. That's not a criminal prosecution of an organization. Now, look, I've defended organizations, criminal cases, and I know you have too. There are many ways up that mountain to find that a organization has criminal liability

if one of its senior executives for many, many years without oversight, without supervision proper, without controls in place by the organization, without compliance around it. You can still prosecute the Trump organization, but you're right. If people think that Donald Trump or his children are going to be criminally found liable in this trial, that's A, unlikely, B, that's not who's the target of the criminal case. Not this trial, but I also think in a future, other free-to-prosciputions. I mean, think about it.

Alan Weiselberg is going to be called as a witness by the Manhattan VA's office. That means that he's their witness. They're going to put him on direct. They're going to ask him questions under oath. And in some ways, it shows, it means they're endorsing what he says. And frankly, if he says Trump and his children weren't involved, that creates Brady material, which is a expulpatory material, makes it very hard if you have under oath expulpatory material that you created to then use that in a future prosecution of Trump.

To me, this is in some ways potentially the final nail in the coffin of the Trump prosecution that I always hoped and hope is not dead because, you know, Alvin Bragg has said it's not dead. So I keep hoping that it's not, but this worries me that this could potentially impact that in the future. Although the nature of the case, I mean, it's an interesting case, and anytime you can talk about Trump organization and criminal prosecution and the same breath, I get excited, you get excited.

But it's a case about whether a bunch of executives off the books got private school paid for, limos, cars, and apartments paid for. I mean, it's interesting, but is that the thing that's going to send Donald Trump and his children a jail for life? No. I mean, we've got bigger fish here to fry. I want the prosecutors to do their job, and they're doing it. I want them to, if there was a case, a bigger case against Donald Trump led by the special prosecutor team that exited.

I wanted them to do that too. But, you of the day, I mean, this case is small potatoes Compared to all the other cases that are going on against Donald Trump that could that could fell him But let's keep an eye on it. We're gonna there's there's gonna be a little bit more Hand-to-hand combat between now and October 24th judge asks for some other motions to be filed and you and I will follow them Karen I'm so happy to have you back Happy to be back. I hope you catch your plane, Popeye. I know. I hope so. I hope I co-anchored and torpedo me. Okay. Goodbye. Goodbye. Let's get off the awesome phone.

It's all right. It's fun. It's just part of the job. You know, you were practicing lawyers who were on the road. I'm in Las Vegas doing depositions in a case. What are you going to do? Anyway, shout out to the, so the mightas Mighty shout out shout out to all those on LegalAff who follow our Saturday show with Ben Mysalis and me and our weekend, our midweek edition with Karen Friedman, Ignifalo. You know, we are on the forefront of providing you with information that you need in

order to make critical decisions in your own life and to debate your friends and family about what's really going on in our court system as it relates to the political world. And we'll see you next week on Legal AF. you