Legal AF by MeidasTouch - Top Legal Experts REACT to midweek legal BOMBSHELLS - Legal AF 9/28/22

Episode Date: September 29, 2022

On this edition of LegalAF Midweek, the top-rated legal news podcast by MeidasTouch, Anchors Michael Popok and Karen Friedman-Agnifilo discuss and analyze: Next week’s rescheduled Jan6 Committee Hearing and the possible focus on Roger Stone and the Proud Boys, and Ginni Thomas; the start of the seditious conspiracy federal criminal trial against the Oathkeepers and Stewart Rhodes; the Second Circuit’s “split decision” in the E. Jean Carrol defamation case against Trump; and the NYAG’s office “criminal referral” to the US Attorney’s Office for Manhattan concerning its civil fraud case against Trump and his children, and so much more. 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, where Karen Friedman, Agnifalo, and me, Michael Popak, will tackle stories ripped from the headlines, including the most consequential legal stories at the intersection of law and politics at midweek. Karen, how are you? I'm good. How are you? How are all your people in Florida? Yeah, that's a very good point. Let's do a quick shout out to the

Midas mighty legal aeifers and just, just people who are in harm's way because of Hurricane Ian, which by the time we do our live chat tonight, we'll make a landfall somewhere possibly on the west coast of Florida, which hasn't had a hurricane in over a hundred years. So we wish all the best to them if listening to the podcast tonight helps will contribute that, but really not just not just prayers, but anything we can do to help let us know. I was texting with my sister last night who lives down in Florida and she was just saying the wind and the rain and you know, it was just getting really intense.

So yeah, it's also a psychologically traumatizing place to live. I lived in, as people know, I lived in the Miami area for 20 years, went through a couple of hurricanes including Hurricane Wilma, you know, and it's just the build up to it. You know, whereas in an earthquake, you know, no, it's coming in a hurricane, you know, it's primetime television 24 seven for the week leading up to it, and it sort of scares the crap out of you emotionally. And then then you have the hurricane and you have to deal with all the physical related to that or evacuation, which is, which is happening on the West Coast. But I'm glad you raised that issue because it is important. It's where real life intrudes on what we do as as podcasters.

Let's do three stories today. And then a little, I want to get a comment about the New York Attorney General's offices, civil case against Donald Trump. And what do you think it means for the criminal case? But let's start off with the three topics for today. One of them is going to be what you and I think is going to happen at the session number nine, the last and final, Jan 6th hearing. It would have been today, but because of Hurricane Ian, they have pushed it off to a date that will be rescheduled. I presume it'll be next week. And we'll talk about what you and I think they'll be including in their presentation on

that date. Then we're going to turn to the start finally of the Seticious Conspiracy trial against Stewart Rhodes, the leader of the Oathkeepers and nine others of his group that are going to trial with Judge Mehta presiding in Washington, DC. That case is underway. We'll talk about how we got there. The charges that they're facing and attempts by Stuart Rhodes to delay this trial at all odds, impossible defenses that the media is reporting on based on filings that have been made that we might see to avoid this vicious conspiracy count. We'll then do a very real time update in the E. Jean Carol case that you and I just talked about last week,

where we talked about the new rape claim, civil rape claim, that she will be bringing in November when she's allowed to under the New York Adult Survivors Act. But, there's been a development in the second circuit court of appeals for New York and the on the question of who is going to be the defendant. Is it going to be Donald Trump or is it going to be the United States of America who has intervened in the case under a federal tort claims act statute, well, the West fall act, which we'll talk about. And if they are successful in intervening, even though we may not like it, Donald Trump

will avoid liability for what gene gene carol alleges happened to her in the department store dressing room, which was a sexual assault and a rape at his hands and defamation when he denied it. And we'll talk about what the second circuit did and what they did not do and what we think will be the next steps. And then I'm going to pick your brain former prosecutor. Now that you've had the opportunity to review the New York Attorney General's civil lawsuit and her footnote where she's making a criminal referral

to both the eternal revenue service and to the Southern District of New York U.S. Attorney's Office. I want to get your, you know, you've been very vocal about your disappointment that Alvin Braggsman, Hatton District Attorney's Office isn't prosecuting the case. I want to see how you feel now that you see that LaTisha is referring the case not to Alvin, but to the federal prosecutors at the Southern District of New York. So let's jump right in. Let's kick it off with Jan 6th, just to give some stats and then we'll launch right into

what we think is going to happen at the ninth and final hearing. The Jan6 committee has reviewed 130,000 pages of documents. They've interviewed 1,000 witnesses. We've only seen a small batch of those witnesses with video testimony during the prior eight hearings. eight hearings. And, you know, each hearing has had a theme. It's chaired by Benny Thompson and Liz Cheney. This will be likely Liz Cheney's last hearing since she lost her primary. No surprise there. And Adam Kinsinger, the other Republican didn't run for office again. So the two Republicans on there making a bipartisan will not be on any longer. I they're on for as long I believe as the report will be issued. But we don't expect the report until after the midterm elections at this rate. This is really the last time other than an interim report, which they may issue sometime in October,

a little bit of an October surprise. This is going to be the last time we're probably going to see this committee live in action in a hearing with witnesses live and taped before we get the interim report and the final report. So what have you been able to pick up from different sources about what do you think they're going to be focusing on, let's say next week's final hearing, Karen. Yeah, so the reporting seems to suggest that this final hearing is going to focus on how the plan was to declare victory regardless of the outcome of the election. And then that was the plan. And that was how people were going to all fall into line and do whatever it took to do that. And so it basically Roger Stone, who is a political operative and advisor to the president. He's, his MO has always been attack, attack, attack, you know, never defend your position,

just go on the attack and admit nothing, deny everything, launch a counter attack. I mean, that's his way of being. And so I think that the reporting that the next hearing is going to focus on him. You know, the Danish filmmakers, the documentarians that were following people around, caught him on tape. And there was lots of negotiation between the Jan 6th Committee and these Danish filmmakers over whether they would be willing to turn over some of their video because reporters or journalists guard their sources at all costs. So they really only turned over, I think, it was 10 minutes worth of thousands and thousands

of hours worth of a video that they had collected. And part of their negotiation was we'll turn it over to the Jan 6th Committee, but we don't want to cooperate with law enforcement because we don't want to get involved in law enforcement. So they were able to get video of Roger Stone threatening violence and spelling out the plans to fight the election results. So he said something's like, you know, the F word,

you know, F the voting, he said something, something's like, you know, the F-word, you know, F the voting. He says laughing, you know, let's get right to the violence, shoot to kill if you see an antifa shoot to kill. So it'll be interesting to see Roger Stone and what his involvement was in all of this. It also shows his close, the hearing is supposed to show his close association with Enrique Tario and Joseph Briggs who are the proud boy leaders, who are also the simultaneous our other story that we're talking about today is the Stuart Rhodes trial with the Oath Keepers that's also going to link all of these militia groups that came together to overthrow the government together

and show that they are this giant conspiracy. But it's going to show, I think that's what everyone's saying that the hearing is going to be about. It's also about pardons, right? About presidential pardons. I think there was some comment that you know Roger Stone. President Trump was the first president to be impeached twice and Roger Stone is going to be the first the first guy to be pardoned twice, but but it's going to it's going to focus on

on on on that part of the Jan 6 insurrection. And that's at least what the reporting seems to be. What have you gleaned from everything we've read? No, I think the Roger Stone focus is gonna be front and center, at least for part of the hearing. You know, in reading about Roger Stone's, what he called the Brooks Brothers strategy, where he's going to send a whole bunch of Republicans

wearing khakis and polo shirts, I guess, or buttoned down in order to throw a monkey wrench into the gears of democracy, he claims that he developed that strategy in 2000 during Bush v. Gore, where I was in Florida and was active on the streets related to Gore exercising my first amendment rights. In watching the counting, I was in the home of the hanging Chad, if people remember that. I remember that. And I did a lot, I spent a lot of time in front of the clerk's office, the election clerk's office, and it was Palm Beach. But that was

different. That was, the lesson that Roger Stone allegedly learned from that was that James Baker told George W. Announce your victory, and then we'll work backwards. So gore sat on the sidelines, waiting for all the votes to be counted, waiting for the Supreme Court to ultimately rule five to four. That's how the election went in favor of George Bush. It was really five people that elected in president, not the country at that moment. But the optics, the strategy was for George W. Do Declare Victory. And then, was for George W. Do you declare victory? And then, you know, you know, as Roger Stone says of this documentary, that the Danish filmmakers did of the, um, Oathkeepers called the storm, the storm foretold. He said, that's, uh, you know, possession is 9th 10th of the law. So I'll just

declare myself the president, um, but, but it was different because they're in Bush v. Gore. It was everyone exercising under the First Amendment. They're right to political speech. I was in the streets. I watched the protests. They were nonviolent. They were, I didn't agree with the Republican side of the aisle, but I could have a conversation with them about it. And ultimately it worked its way through various court processes. And then Al Gore said that George W was the president, and he transferred power, if you will. He told his followers, the Democrats, like me, this is your new president. And we had another peaceful transfer of power. That's different

than here. Roger Stone took that lesson to mean that even in the face of an overwhelming electoral victory by a president, in this case, Joe Biden, you could just declare falsely that you were instead the winner to avoid the peaceful transfer of power. That is the exact opposite of Bush v. Gore. His other comment that you mentioned about F the voting, let's get right to the violence. You know, it's interesting. I was reading some other things in preparing for the show and I ran across a definition that security experts

around the world and political scientists around the world use in warfare. It's called hybrid warfare. And hybrid warfare is defined as undermining democratic functions, disrupting normal conduct and sowing chaos and uncertainty, undermining democratic functions, disrupting normal life and sowing chaos and uncertainty. Isn't this exactly what Donald Trump, Roger Stone and all the others, aren't they engaged, haven't they been engaged in hybrid warfare against the American people and

against this country? I mean, my eyes popped open when I saw the definition of what that is. It is warfare and everybody that was affiliated with it believes it was warfare. And we'll talk about when we get to the road's edition hearing what they're going to claim as a defense related to that. But Roger Stone has a lot of problems. He just curries favor with, like as you said, the proud boys who are up for seditious conspiracy charges of their own. He's close with Kim Gillfoil, who is Donald Trump Jr.'s girlfriend. So he has a lot of connectivity to the Trumpers.

And as you mentioned, he Bernie Kerrick all got bailed out once before by Trump and we're given it a pardon. And after Jan 6th, you know, he made contact, as you said, with the lawyer for Donald Trump. One of the lawyers for Donald Trump handling his impeachment hearing, David Sean, and said, hey, I could use another partner here. Could you help a Fred Doubt?

And Bernie could use one too. And this is all gonna be from the, not only the film footage from the Copenhagen filmmakers, but they also obtained somehow text messages and copies of text messages that the filmmakers had as well. And as you said, I thought it was extraordinary. It's something that's been little reported until the New York Times did recently. The Gen 6 committee went to Copenhagen at some point. You know, when we're like, what I wonder what they're doing when they're not on television, they're

working. And they went to Copenhagen to convince the filmmakers to give them as much footage as they could possibly get their hands on and other documentary documentary evidence. And they did. And we're going to see, I think the results of that. I think we're also going to see a focus on Mark Meadows and Mark Meadows and Jenny Thomas. I don't know if they're going to wait for Clarence Thomas's wife, Jenny, who said she's going to voluntarily testify. I don't know if that's going to be this week or next week. I don't know if they're going to have it in time to present at the last hearing, but, but I would be surprised if they don't mention the role of Ginny Thomas and her text messages. And there were at least 23 text messages that

have been discovered in the Mark Meadows cash of documents between her, actually 21 text messages between Jenny Thomas and Mark Meadows and which she urged him to avoid the peaceful transfer of power and to overturn the election results. I think, I think they're, let me just finish that point. I think they're going to mention that. I think they're going to, whether she testifies or not, or they have video or not, they're going to make this connection while they have the last chance back to Clarence Thomas on the Supreme Court.

What were you going to say? I was going to say two things. First, I think your point about a hybrid warfare is an excellent one because it's insidious, it's silent. It happens sort of, you know, behind the scenes in ways that you don't even realize. And I think one of the tactics that had been from the beginning with Trump and Stone and all the rest of them was to put as many judges to fill as many judicial openings as possible. And one of the things that Trump did early on in his presidency was fill every federal judicial opening.

I read somewhere that he appointed as many as Obama in his entire term in a much quicker timeframe because he realized the importance of appointing judges who will support your theories or your positions. And so that was, I think that's that's part of this hybrid warfare, if you will. And I think Roger Stone was counting on just fight this declare victory. And then let's get in front of judges that we appointed like we did in the Bush v. Gore, you know, get in front of judges and they'll support whatever it is we did. And that that was part of of their tactics. So I just wanted to underscore that that how important that is. And thankfully some of the judges that he appointed are upholding the rule of law and not going along with what he's doing like in, you know, the 11th circuit. We saw saw with the classified documents that two of those judges said, no, this isn't, we're not going along with what you're saying, Trump. And so thankfully, it's reaffirming, I think, a little bit that judges still uphold the rule of law and are not partisan.

The only other thing I wanted to mention was I was slightly, I don't want to say disappointed, but I was hoping this last hearing would have the blockbuster smoking gun connection to Trump. And I worry a little bit that the JN6 hearings have fallen to some people will feel have fallen to some people will feel that has fallen a little bit short in terms of linking Trump directly to this. And that's what I think drives everyone and myself crazy, is he somehow always gets away with everything. But what do you think? Do you think that the hearts and minds, I think the JAN-6 Committee is one over the hearts minds of most people that yeah the insurrection was terrible and all these people are terrible it should be prosecuted. But do you think it's gotten the you think they've they've achieved the the Donald Trump portion of it and do you or do you feel like I do a little bit that it's I mean yeah Clarence Thomas, Jenny Thomas are going to also be hopefully connected, but

the Trump portion of it, I want them to get much more Trump. What do you think? I don't think they've made the case at the Gen 6 Committee that Trump has direct liability for all of the bad things that have happened. I think they've made an argument for a conspiracy of which he was a part. I think that was Benny Thomas' initial, Benny Thompson's initial presentation day one, moment one, about the coup in the making and who was responsible for it. But, you know, as a prosecutor and as a defense lawyer, there's a lot of holes in what they have presented.

Now, I don't think their main purpose was to prosecute Donald Trump at all. I think it was to do what they were supposed to do, which is to bring to light and ultimately to justice all of the people at the highest levels of power who were involved in this and then the minions that they used as the final tip of the spear to attack and lay siege on the capital when all their other strategies and strategies failed, when all the lawsuits failed, when all the attempts to confiscate election equipment failed, when all of their efforts to get Republicans at the state house to do their bidding failed when the fake electors scheme failed.

But all of these things failed in a multi-pronged approach. The last desperate act was Jan 6th and was lighting the fuse, knowing the crowd was loaded and pointing that weapon directly at the, at the Capitol. That I know you've said it before also. That is probably the closest we're going to get to Donald Trump because he knew having asked for the magnetometers to be removed to let his people in. They're not going to hurt me, meaning by implication, they'll hurt

the Democrats, they'll hurt Nancy Pelosi, they'll hang her. Maybe Mike Pence, so I don't like right now either, but they're not going to hurt me. That is probably the closest. But the question is, you know, the, the, the audience for that for Jan 6th, Committee hearings, has been multiple audiences, right? What is Democrats like and progressives that follow and listen to our show? Who wanted this brought out to light, needed this, you know, a democracy needs to be able to hold hearings like this and Congress needs to be able to hold hearings like this without favor, without without any partisan approach to it. We would have done the same thing if this was Democrats leading a potential overthrow of

the government. I would have hoped the Republicans would do the exact same thing, and I would be sitting there watching it just the same if that had happened. That's one audience. The second audience was, you know, sort of independence that we're getting their news information from social media and getting a distorted view from Fox and maybe trying to get them to understand what really happened historically and politically. The Republicans' right-wingers, Trumpers are a loss cause.

This was not must-see TV for them. They thought it was all political theater and a charade, kangaroo court, whatever they called it. It only solidified them and they dug in even deeper their heels into supporting Donald Trump. That whatever percentage that group is in the electorate. But the last audience that we've always talked about was the Department of Justice in watching, almost getting a mock trial, right, a moot court. They got to see how evidence with witnesses was presented.

Now, not under cross examination, not in a court room in a very, I don't say contrive, but very structured, measured way, polished presentation of evidence and getting that evidence into their own hand. So the Gen 6 committee should be commended for all of those things that they have accomplished. I think their final 500 page or whatever it's going to be report, boom, that lands on the desk and everybody like you and me scrambles to get a copy of it, is going to be a roadmap for history, for historians, for researchers, for books that are going to be written in the future. And I think it'll aid the prosecutions that are already ongoing. I've always said the most likely prosecution of Donald Trump that's

going to be successful, putting aside the Latisha James's civil case to talk about a minute is Georgia. And the second one is his screw up at Mar-a-Lago by holding on to all of these classified and national defense documents and not turning them over, um, violating the statute. So, you know, I have always thought those were the ones. We'll talk about what you think about with Latisha James's criminal referral to the IRS and the Southern District. But, you know, that's enough speculation on Gen 6. Let's, I don't want to be like those people on television just trying to kill airtime. We don't have airtime to kill. We do this because we love it and every moment is valuable that we present on the podcast.

So let's, let's turn over to something that is real, that is happening and is criminal justice and justice at its finest, which is a group of oath keepers, including their leaders Stewart Rhodes, is on trial right now in Washington, DC, in a federal courthouse with a jury on the highest charges that have been brought by the Department of Justice, which is seditious conspiracy, the plot against America, and which they face 20 years of prison time. Just to remind our listeners and followers, there have been 870 arrests, but the only people that have been charged with seditious conspiracy are nine oath keepers and a group of proud boys.

That's it for right now. So these are really important, important to the Department of Justice. They've already gotten a handful of people, including in the oath keepers, we're gonna testify to plead guilty, this aditious conspiracy, but they have not yet put on a trial,

where they've asked a jury to return a verdict on this aditious conspiracy. So this is a big test for the Department of Justice. They've been, I think there's seven and 0 or eight and 0 in trials, but this is the first time on seditious conspiracy. And you have Stuart Rhodes, Kelly Megs, Ken Harrelson, Jessica Walker, and Tom Caldwell all joined together, sitting at a defense table with their separate lawyers being tried Stewart Rhodes, the leader tried to separate himself from this trial and filed a motion to bifurcate or have a separate trial because he's like, well, those people, they're crazy.

They did crazy things on Jan 6. I didn't do any of those things. I didn't storm the Capitol. I didn't punch anybody or try to kill anybody. I didn't do any of those things. I didn't storm the Capitol. I didn't punch anybody or try to kill anybody. I didn't say go at the Capitol steps. I didn't do any of that, but he did so much more as it relates to the planning related to a violent overthrow and siege on the on the Capitol. And he's tried a number of delaying tactics. What if you thought about watching Stewart roads and action and tactics. What have you thought about watching Stewart Rhodes in action and squirming as he's had a face his judgment day and all the motions he's filed and the change in lawyers. What do you think about all that? You know, I can't get past the fact that he went to Yale Law School every time I look at him

and read about him. I don't know why he just doesn't fit the mold of what I picture of a Yale law graduate to be. I don't know, it just makes me scratch my head. But, you know, the trial is going to be very interesting. You know, as you said, this is one of the first times in a very, this is a rarely used statute, so dish is conspiracy. It's different than what all the other people are being prosecuted for January 6th. And it's a civil war era statute. And it's basically defined as two or more people plotting to overthrow, put down or destroy by force the United States government. And so it's similar to just a regular conspiracy and that it requires two or more people to agree

or to conspire or to come together and have a meeting of the minds. And so that's one of the reasons I think that would judge would find that these people can be joinable and he's not gonna be separated from them because in any conspiracy, you could have two people who agree to rob a bank and one of them rents the car that's going to be used to drive to the bank

and then they drive to the bank and then someone else gets out and robs the bank. The guy who rented the car might say, well, I shouldn't be prosecuted for robbing the bank because I didn't actually drive there and I didn't go into the bank and I didn't rob the bank. So you should separate us out. But conspiracy law is one that says if you have a meeting of the minds or an agreement between two or more people and there's an overt act meaning something, you do something towards that conspiracy,

then you can be liable and prosecuted for the whole conspiracy. So in that bank robbery example, the guy who rented the car, agreed with them to rob the bank and rented the car to do that, even though he wasn't anywhere near the bank and didn't go in the bank, he would still be part of that conspiracy and be prosecuted as such. So I think that's what the the, the, the, the dishes conspiracy theory here, why he is joinable with these guys, even if he didn't go into the capital, and even if he didn't do some of the, the things that he did. I found this, you know, I had to do a little research on seditious conspiracy because it is so rarely used that I wasn't familiar with it and I didn't know what the elements were. It doesn't require treason, it doesn't require any kind of waging war against the government

or treason. It's just basically where you plot to attack or overthrow the government. So it's very interesting. It'll be very interesting to see how this plays out. Is it the same documentarian from, there was only one, I like losing track. I know there's a documentarian that had video of them planning and meeting with Rhodes and Enrique Terrio, these two groups coming together. Is it the same documentary or is there more than one

that was following around these groups? I think it's the Danish filmmaker. Yeah, so I just didn't know. I was like, I was like, and who allows a documentary into, you know, what is the psychology behind that? Oh, sure, come around and, and video us. And, and I think the answer is what the defense is going to be, right? So I, I talked to my husband who's a criminal defense attorney about this case. And I said, how would you defend this? You know,

how would you defend? You've got him on tape. You've got what happened. It seems very clear, right? The evidence here and what's the defense? I think the defense here, what they're going to say, is number one, we didn't think we were doing anything wrong, of course. Otherwise, why would we allow a documentarian to follow us around and record us? We thought that the election was actually stolen and we believed it. Our president was telling us that election was actually stolen, and we believed it. Our president was telling us that everyone was saying that, and there's millions of people who actually believe it. It was on Fox News.

It was everywhere that the election was stolen. So we genuinely believed that what we were doing was saving democracy. We were saving the government. We weren't trying to overthrow the government. We thought what we were doing was okay. And that's a dangerous defense because you get one like-minded MAGA Trump person on that jury, and I think you've got a hung jury there potentially. I worry a little bit. I just hope they have a good jury because trials like this are all trials. It's all about jury selection and the media and all the TV shows about law and order, etc.

They never talk about jury selection because it's kind of boring. But any trial lawyer knows that jury selection is the most important part of your whole case because they are the ones who are going to be deciding there's 12 people are going to be deciding. Whether you whether you have met your burden or whether you are right or whose theory it is and you know it's interesting because the jury selection in this case was was similar to to most jury selections in a case of this magnitude where they had jury questionnaires and where they're asking questions, how much do you know about January 6th? And did you watch the hearings? Because the lawyers are trying to figure out,

are you on my side or are you on the other side? So it's gonna be very interesting. How this plays out. I understand that the government has several cooperators, you know, and that'll be, you know, that'll be very interesting as well. So let's see how it goes. Yeah, I think I've got six former oath keepers who have pled guilty, including three to seditious conspiracy that are taking the stand against this first set. This set of oathkeepers is split into half.

And so they're doing half the group now, including Stuart Rhodes, and half the group later. And this is the group that definitely has seditious conspiracy as a charge. I think in addition to what you and Mark came up with on the defense, I think there's two other areas that they'll likely try to use. Although I don't think they'll be, at least the one of them, I don't think they'll be successful. They may try to use that they relied on their council,

their legal council about, and this goes to your point about, we didn't think we were doing anything wrong. We thought the election was stolen, and they were getting guidance, at least mock guidance from a lawyer, a woman by the name of Kelly Cerelle, who was like the general council for the oath keepers. And the problem with that is I'm sure she was giving them all sorts of advice that fit their, fit their needs is what they wanted to hear.

But she's been charged with committing crimes by the Department of Justice, not seditious conspiracy. But, you know, if you're going to rely on a lawyer who herself has been charged with a participation in either a conspiracy or in crimes against the government, you're in a tough spot. The second thing is it looks like Stewart Rose because of the filings that he's made in the courthouse before trial. And the others are going to try to rely on the fact that they thought based on what they had heard. And this, I don't know if you remember Karen, there was, I think the documentarian picked it up. There was like this speaker phone conference,

telephone conference with some unknown voice that looked like it was connected to the president, talking to Stuart Rhodes, and Stuart Rhodes with others was trying to get like the go order because he already had remembers. Stuart Rhodes is to have a hard time with all of the, just the sheer volume of testimony against him, video against him, audio against him. Because of course the government was able to pick up these idiots who were all communicating on different apps, different lucky talky apps, and they were able to get all of that audio.

But Stewart Rhodes planned and successfully had ammunition, munitions, weaponry brought into the Capitol, waiting at a hotel in other places for this quote, unquote, go signal. These, these idiots were Yahoo's run around on golf carts, but they were going to be armed on those golf carts if they were going to store in the capital. There, one of their defenses appears to be that they thought that Trump was going to invoke the insurrection act of 1807, which was in Jefferson's time, which allows, we should really take this off the books, by the way,

which allows the president to have the authority to call up the militia to suppress an insurrection. And the statute, which I've taken a look at, we'll put up on the screen, is like a paragraph less than a paragraph. It's like one-inch thick, meaning there's not a lot of text there. And there's not a lot of, you know, when you look at a traditional statute of today, it goes on for pages and single spaced six point font with, you know, 32 subparts and Roman numerals. And this isn't that. This is like a high coup, it's like a poem that gives the president the power to put down

right and armed, you know, to put down an insert, whatever he refers to, it was considered to be an insurrection under, you know, calling up a militia. And the term is used in that militia, right? Back to the Second Amendment about a well-armed, well-regulated militia. So what is a militia? It's not the US Army because the statute would have said the Army. There was an Army in 1807. So what is a militia? It's a band of happy warriors, like the oath keepers that are just weaponized, The president could call on them. So there were internal discussions with the we know of among the constitutional scholars around Donald Trump like John Eastman, like Jeffrey Clark and others, where the insurrection act of 1807 came up.

We saw it in tweets by people like, you know, a Marie Taylor Greene and others, like almost encouraging Trump to exercise it. So they're going to say, listen, we're just the militia of Jefferson's dreams that we were just standing by for our president to tell us what to do, but we never did it. He said stand by. He said, stand back and stand by. And stand by it. Right.

So listen, it's a DC jury. The jury selection, I agree with you. It was super important here. Could they get one person that's all they need to hold out and say, I think these people are assholes. I think they're terrible human beings, but do I think they committed seditious conspiracy with the criminal men's, rea mental criminal

intent? No. Let's see. Let's see the presentation. And if for anybody on this podcast that thinks there's no way with the overwhelming, and there will be shock and awe, the government is going to bring, you know, every amazing piece of video and audio and document to bear in front of this jury. But you know, the five or six Yahoo's

that tried to kidnap the Michigan governor walked walked out the wooden door of the courthouse and, you know, and, you know, and didn't get and get a hung jury there and didn't get convicted. So let's be careful. So we're going to watch this closely. It's going to probably go on over the next two to three weeks as we are able to get reporting. That's interesting. We'll bring it, we'll bring it to our list. There's a followers attention. There was a tabloid headline, and I love some certain tabloid headlines that said from Yale to jail. So let's just hope they're right. just hope they're right. It won't be the only one. Sorry, Hill.

Let's move on to a slightly disappointing story or update. But one, I think we need to keep and manage expectations and keep expectations where they where they need to be. I don't think any I don't think either of the side in E. Jean Carroll should be running to the podium to declare victory based on what the second circuit just did a day or so ago. So as we reported last week to remind everybody, because this has been in the news for the last couple of years, that she was raped in a high end department store in New York in 1995 or 1996 by then developer Donald Trump. And she brought her claims to light

in the wake of the hashtag me to movement and filed her case against him after having brought the claims out in the public. Donald Trump then, then president in a series of interviews denied the allegations and went after E. Jean Carroll and made some very unkind, but, you know, Trump appropriate comments like, look at her. She's not my type, I wouldn't have done that, really disgusting things. Ejien Carol brought a defamation case because she says that's not true. That's untrue.

What I said was true, what happened to me and that dressing room happened. She claims to have physical evidence related to it, a dress with DNA on it that she will bring forward. And since before Biden was elected, there has been a fight over whether Donald Trump is allowed to have the protections of federal immunity because as an employee of the federal government, so the story goes, he's entitled under a statute that you and I are going to talk about, which is colloquially referred to as the West Fall Act to immunity for his actions.

And then and he also has the right, if that's true, to have the US government intervene. In the case, take him out as defendant, substitute in the United States of America. And then, of course, the United States of America has, has its own sovereign immunity, meaning if, if Trump is successful in arguing that he's covered by the West Fall act, and that the US government should be the defendant, not him. And he shall have no liability. E. Jean Carroll will not have a case of defamation against him. However, as we reported last week, she is, she has put the president and the world on notice that in the middle of November, the end of November, when she's able to, she will be bringing a civil effectively civil rape claim that she was raped a while in that

in that dressing room by Donald Trump. And she's going to join that to the case that's sitting in federal court, the Southern District of New York. So what happened with the with the second circuit? The second circuit had an appeal by Donald Trump and his lawyers. And they argued that Judge Kaplan, Louis Kaplan of the Southern District of New York, who denied the US government's motion to intervene in the case and to substitute in for Donald Trump. And that was brought by, first by Bill Barr as Department of Justice, but then by Merrick Garland's

Department of Justice, who took the position that no matter how disgusting the comment is, he was the president of the United States when he made it. He was refuting allegations that were made against him, which he's allowed to do. And we're going to take the position that was within the scope of his presidential duties to do that in that interview, even if he made some other gratuitous comments that we don't agree with, we think the principle of the West fall act and substituting in the US government and immunity for federal employees is paramount. And therefore we're going to, we're going to, we're going to stay on the side of Bill Barr's Department of Justice.

Louis Kaplan said, you're wrong, the trial judge. And I'm not going to allow you to substitute in this case as E. Jean Carol versus Donald Trump. Trump and the Department of Justice took a appeal to the second circuit, which covers in New York. And we had a three the second circuit which covers New York. And we had a three judge panel, which was very interesting. It was like a, you know, a Bama appointee, a Trump appointee, and like a Clinton appointee. So it was, you know, it was a mixed bag.

It was three men just to be clear. And in a two to one decision with, with just Judge Denny Chen in descent, they came up with a very interesting ruling. I know you like to say a lot on the show. It was very confusing and I had to sort it out. It was very confusing. What were you able to sort out about about the two questions that the Appellate Court was asked to decide and what they did with those two questions that's so interesting. Yeah, this one felt like a law school exam, just the way all the various twists and turns that it took.

So, the defamation case was first brought in New York State Court. And then when the government, the federal government intervened, as you said, that removed it to New York Federal Court. And in the New York Federal Court, there are the, there are two issues that the judge has to find. And it's number one that a president is a federal employee and then you would be cut, you know, so you have to find that first. And two, whether he was acting in that capacity when he made the comments, the second circuit said, Judge Kaplan, you were wrong when you ruled that the president is not a federal employee. And so, and so if the, if the DOJ says that he's a federal employee, that controls, and then they go through the whole history of the definition of a federal employee

under the West Fala Act, et cetera, and they said this is within the spirit. And so the president is a federal employee. But then it gets to the second question. And whether he was acting in that capacity when he made those comments, the second circuit said that the DC court had to answer that question. And I was scratching my head thinking, what does the DC court have anything to do with this case?

Because this is all happening in New York and the New York federal courts. But the answer is, and at least what I was able to do with this case because this is all happening in New York and the New York federal courts. But the answer is, and at least what I was able to glean, has to do with a concept that I have not thought about since I was in law school called respond yet superior. So it's basically vicarious liability. Is your employer going to be responsible for the conduct of your employee. And because all the parties apparently agree that because the scope of Donald Trump's employment was in the district of Columbia, everybody agrees that it would be governed by DC's respond yet superior law not New York. So what the second circuit did was certify the matter straight to the DC court of appeals.

They even skipped over the DC district court and said that basically DC court of appeals, you must answer that question about whether or not those comments were within the scope of Donald Trump's employment while he was president of the United States. And depending on what the answer to that question is, will depend on whether or not there is the ability to bring a case. Because as you said, you know, what they're basically saying is the United States is going to be the substitute. But if it turns out that it was within the scope of the of the employment, then the Federal Tork claims act, as you said, shields the United States from defamation. The government cannot be sued for defamation.

This could be the end of her defamation claim and her defamation case, but it's not the end of her right case. As you said, in November, I think it's November 24th, the day that the Adult Survivors Victims Act goes into effect in New York State, she will bring a case against Donald Trump for raping her. And the question will be, will that be in federal court or will that be in state court? So Roberta Kaplan in her filing that we talked about last week told the judge that in November she's going to be bringing this rape case before this judge has a related matter.

And so, you know, we'll put them all to putting you on notice judge. It's all going to be put together. But if this case gets dismissed in front of Judge Kaplan because of this ruling by the second circuit, what then happens to the rape case does Roberta Kaplan file it in federal court or does she file it in state court where most of these claims will be filed in New York. Do you have a thought as to that? Yeah, I think we're in for years of litigation and appellate and appellate work because, let's see if we can break it down there. The referral that was made by the second circuit

should not have surprised anybody because, everybody forgets that DC is not just where the federal court system sits. It's also a territory that people live in and has its own body of laws and statutes that govern its citizens and its residents. And just like you go to the superior court in your town or the state supreme court of your state, there's a whole system of it's not a state. It's a district, but there's a whole series of law. Sometimes we talk about, you know, the attorney general for the district of Columbia, like, who is that?

Yeah, there's a position because there's a parallel, a parallel government, municipal government if you will, municipal court system that goes along with the District of Columbia, which is set by the federal government, but it's their own thing. And the highest court, as you mentioned in their system, it's not a, it's not a federal court per se. It is, it is the District of Columbia Court of Appeals. It's their equivalent of the state Supreme Court. There's a statute on the books in, in the district of Columbia that says

that if there is a question about the application of our law within the district, in this case, the law of whether somebody is inside or outside the scope of their employment when they commit an act, whether they're whether respond at superior, if I carry a liability, is going to apply to the employer, in this case, the federal government or not, right? We'll also do what the scope that you talked about. That goes to the court of appeals under the highest court of their jurisdiction, not to be confused with the federal court of appeals sitting in Washington that's in the federal side of the equation.

This is the District of Columbia's highest court. And so the second circuit said, look, we're going to make the decision right now, as you said, Karen, that the Trump was a federal employee. You know, he got elected to a job, he gets paid it to a job. The job is being the president of the United States. You know, they spent 80 pages, but that's effectively what they said. Then as the scope, the two of the three judges felt there was not enough clarity that it was unsettled law. It wasn't well developed law. It wasn't well developed precedent in the district of Columbia on the issue of scope. So they said, we can't figure it out. We're going to certify the question, that's what it's called, to the highest court in that jurisdiction, the Court of Appeals of District of Columbia

to tell us, and then send it back to us, whether Donald Trump was inside or outside the scope. So now there's going to be a whole briefing that Robbie Kaplan, the lawyer for E. Jean Carroll and the Department of Justice is going to have to do with Trump at the District of Columbia Court of Appeals level, arguing that he's outside the scope. He's inside the scope because he's inside the scope of his employment. Then the Westfall Act gives him complete immunity. If he's outside the scope of his employment, which is what Robbie Kaplan is going to argue, and Denny Chen in his dissent at the second circuit, basically gave her the roadmap, then

the case of EG Carol versus Donald Trump for defamation continues. But we're going to have to now wait for the second court with a full briefing schedule, and it's not going to be an emergency briefing schedule because it's just a civil trial. So this is going to take some time. And then if Robbie Kaplan and EG Carol don't like the result there or somebody doesn't like the result there, it either goes, you're either going to appeal the second circuit finding him to be an employee covered by the Westfall act, or they're going to appeal the court of appeals to

the federal appellate courts in a whole nother series. That could take like a year. And the meantime back to your original posit. What happens to her civil rape case? Well, she doesn't have to wait for all of these defamation things to win their way through the appellate process. Robbie Capone, Eugene Carroll, can file the suit. I think it's November 23rd is the date where the one year window opens in New York under the Adult Survivors Act to file claims within that one year, That's the first day.

And she can file it. She can file it in stakeholder. She can file it in federal court. She can file it wherever she wants. And it should not be covered by the Westfall Act because intentional torts back to your law school comment about responding at Superior. Intentional torts are almost always outside the scope of somebody's employment, right? You could be a driver for a company like UPS and you could you could be driving down a driveway to make it delivery You're inside the scope of your your employment. If you come out of it, fall and break your leg. You're inside the scope You have a fight with the homeowner of the delivery of the package You pull out a crowbar and smack them across the face. You're outside the scope of your employment likely. You've just committed the intention, the intentional tort of assault and battery. And that's going to take

you out from under any immunity protection. So she's going to argue, and I think she wins this, that the rape is intentional and is not covered by the West fall act. And I don't think this department of justice with Merrick Garland says, no, I think even for a rape, even for a rape, when he, when he was in president, we're going to step in. That's where, that's where I think he, no one can argue that the rape, he was a government employee at the time of the rape. So here's the question for you as a prosecutor. There's no, there's no statute of limitations on a rape. The government, the, the prosecutors in the state, your old office now has credible evidence that's being presented on the civil side that a rape happened in a department

store between E. Jean Carroll as the victim and Donald Trump in 1995 or 1996. What do they do? So believe it or not, there was a statute of limitations for rape. Up until I think it was 2006, don't quote me on that, but up until sometime in the mid 2000s when the law changed finally and extended the statute, because back then there was a statute of limitations on rape in the first degree. And so unfortunately, that case is criminally barred by the statute because the law of 1995 and 96 will apply. Oh, that's interesting. So even though there's been, let's explain that to everybody.

Because I knew there was no longer a statute of limitations. But you're saying since the act happened when there was a statute of limitations, it won't be retroactively applied the change in the law to benefit the victim unfortunately, because of the way the statute was written. They could have, they could have written it to benefit to allow the victim, unfortunately, because of the way the statute was written. They could have, they could have written it to benefit, to allow the victim to get the benefit of the change in the law, but you're saying they did not. And so there's not going to be a criminal case.

Yeah, there can't be a criminal case. So, you know, it was, it was recognized in the, in the, I think, like I said, I think it's 2006, but it was recognized that this is unfair and that people aren't always ready to come forward and it takes time, et cetera. And so the statute of limitations was changed so that the most serious sexual assaults, ones where there was force no longer have a statute of limitations in New York State. So, but that was only prospective. I think it also only applied to all future cases or cases that the statute of limitations had not yet expired prior to the time that the law went into effect. But this had already come and gone at the time that that law went into effect.

And so unfortunately, it applies. So let's turn to a final couple of minute comment, which is, that's a good segue into your old office and the civil case that we've reported on at length that Latisha James has filed against Trump and all of his children or has been my salus likes to say with me on the weekend, all of his adult children. I'm not sure why we have to clarify that any longer. We know his children are in their 30s and 40s and are totally capable of committing

crimes and civil torts. So you have this fraud case brought under a very, a unique set of powers under the executive law of the state of New York, giving the New York attorney general broad powers in the areas of, um, a fraud misrepresentation. And those types of things, broader than really most other states. And she's happily use them here to factor a three-year investigation to bring her case. To remind everyone, she was shoulder to shoulder in a collaborative joint investigation

with the Manhattan District Attorney's office on the criminal side and on the civil side led by her office. And they worked together and they shared information. And there's been a lot of fights in the courthouse that led by Donald Trump about whether it was really just one big criminal investigation for which he enjoyed certain privileges or not. That's been ruled, you know, that issue got ruled against him time and time again. He tried to have the investigation by Latisha James dismissed by a federal judge in the Northern District of New York. That was unsuccessful. He tried again to dismiss by the supervising judge in the state court in Manhattan. And that wasn't successful at all. And so you, but you know, she

continued to plot on in her investigation. And Finally, after three years, as we predicted, she filed her fraud case seeking the discouragement of at least $250 million of ill-gotten gains by the Trump crime family, if you will. They're taking out loans that they were not entitled to based on property valuations that they were make believe and made up in a hyperinflated to satisfy Trump's ego and his desire to line his pockets. And you had commented that Alan Weiselberg, longtime CFO of the Trump organization, having now pled guilty and will testify in the case against the Trump organization, which is going to criminal trial, very, very soon in October, that based on the deal cut with Weissselberg, the Trump organization trial, and the fact that the two special prosecutors in the office who were focused solely on Donald Trump left the office in a very noisy way and writing letters in which they said, we had enough evidence to prosecute Donald Trump, but Alvin Bragg or Abbas wouldn't let us. I'm summarizing.

Based on all of that, you thought that that was the death knell for the Manhattan DA's office to bring a criminal case based on this loan fraud and asset fraud issue. And now what do you make of Latisha James in her filing and at her press conference saying that she is making a criminal referral not to the Manhattan DA's office, but to the US attorney's office for the Southern District of New York and to the IRS. What do you make of that? That'd fit that in a reconcile that with your earlier feelings and disappointment with your old office. So if you recall, Alvin Bragg, the current Manhattan DA who took over in January for side-vance, the prior Manhattan DA who started the investigation against this particular investigation at issue here that Tish-Jane's just brought the civil case with.

If you recall, Alvin Bragg, after the two lead prosecutors on that case, as you said, noisily resigned, Alvin Bragg issued a statement saying, our criminal investigation continues. That gave me hope that he still had, just that he still had a criminal investigation and that they were still planning on potentially bringing a criminal case against Trump and his and his family. However, this Tish James filing and press conference, I think, no longer gives me hope that they are going to bring a case. Despite the fact that he tweeted out right after this, that they still have an investigation

going again. But I really don't think, I think the Manhattan DA's office bringing a case, a criminal case in this matter is less and less likely for the following reasons. First of all, a criminal referral is not necessary, and it's actually not even a thing. It's something that people talk about, but most cases don't happen because there is a criminal referral.

Sometimes it happens because the prosecution doesn't know about a matter. So if you're investigating something, if you're an inspector general's office or if you are some other If you are, if you are some other government office that is investigating something from say a civil standpoint like the Securities and Exchange Commission or any other Any other authority that has Investigator authority, but not necessarily criminal authority. If they uncover something that they believe a prosecutor's office doesn't know about, they'll

make a criminal referral. But no one can think that Southern District or the tax authority or the Manhattan D.A.s office doesn't know about this case because obviously they do. And obviously they have a lot of information about it. And not only that, Alvin Bragg in the Manhattan DA's office with Tish James had a joint investigation, which means that Bragg's office had had access to all of the information, all of the evidence, all of the documents, all of the witnesses that Tish James's office also had. So not only do they know about it, they have access to all of it. So the fact that Tish James made a referral, a criminal referral to the Sun and District,

they didn't have to make that referral, right? I mean, why did she? Why did she? Why did she? Why did she make it to them and not to out doesn't it show a lack of confidence in Elvin that she? Well, even if it's a made up thing, she, she publicly declared that she wants the Southern District of New York to prosecute, not the guy she's been shoulder to shoulder with for the last three years or two. I think what it shows is exactly what you're what you're saying, which is that it is crystal clear that the Manhattan DA's office is not going to bring a case. And so therefore she believes, and she has a lot of experience.

I have a lot of respect for her. She's she's an excellent attorney general. I believe she what she has said is that there is more than enough evidence to bring criminal charges against Trump and the kids. And so I am making a referral to the Southern District because that, what she didn't say, but what it seems like is that's the only chance of someone bringing a criminal case and the IRS. And what I found interesting about her press conference

and about her case was she made it crystal clear that, you know, everyone knows in a criminal case it's proof beyond a reasonable doubt, which is a really high burden. And in a civil case, it's a much lower burden, right? It's like, it's a preponderance of the evidence. And she wanted to make it crystal clear that there is more than enough evidence

to prosecute Trump and his kids beyond a reasonable doubt. She talked about how they lied in documents over 200 times, right? It's not just one lie, it's not just a little bit of a lie. It's over 200 times where they filed false information and that false that there was that there were falsification of business records or you will, of over 200 times where they did this. The other thing she made crystal clear was that this wasn't just, I hear a lot of people say, well, who was harmed here? Banks, they got paid and also, everyone knows that something is worth and the valuation of something is subjective

and that's true. You know, one could say your apartment's worth, you know, $200,000 of your apartment's worth, $230,000, you know, and you could get two different ones that have two two different slightly different subjective valuations. But but was she made clear was there were things that were that were hundreds of times more the valuation We're not talking a little bit of a difference here. You're talking You're talking something that's ten times more, you know or twenty times more or a hundred times more like These evaluate these valuations were so extreme That they went from the subjective,

okay, it's mushy to, it's absolutely fraudulently criminal. And I thought she, her, both her filing and her press conference did an excellent job at signaling to the prosecutors, to the Southern District, that you have more than enough evidence, and this is extreme. And so we'll see if they pick up the, you know, if they care, if they pick up this referral,

and you know, if I were the Southern District, the first phone call I would make is to the two prosecutors, the two senior seasoned prosecutors, I think one of which used to work at the Southern District, and I would call them up and say, tell us what you know, tell us the case. Yeah. Well, that's why people tune in to Legal AF Midweek

to get the former prosecutor, Karen Friedman, Agnipilo, interviews, especially about her old office. And that unique insight concerning Latisha James's press conference and the fictitious but powerful criminal referral to the Southern District of New York and the Internal Revenue Service. So we'll keep a close watch on that. We've reached the end of another midweek edition of Legal AF with Michael Popak and Karen

Friedman at Nifalo wishing everyone who's in harm's way in the path of Hurricane Ian, in harm's way in the path of Hurricane Ian, a safety and security and anything that they need that we can help on the Midas Media Network send one of us a direct message and we'll try to do what we can do. We'll be on a live chat tonight about the time that that thing makes landfall, so we'll keep a close eye on that as well. Karen, thank you for being with me again for another midweek edition. Good to see you, Popoq. I always learned something from you every week, every episode I learned something. I learned something from the show. Can I tell you what I'll do it? I'll tell you what I learned from you this week. Sure. Because I always learned from you.

You're an excellent professor. What I learned this week. So, you know, in DC, the federal, the prosecutor, if you will, is the US Attorney's Office, wears two hats. They wear the federal prosecution side, but also state prosecution side. I wrongly assumed that the courts did the same thing. I thought that it was one court that sometimes sat as a local state court and sometimes sat as a federal court and so I misspoke and said that that the that this was a certification to the DC circuit. But you and I because I I was wrong, but I learned from you today and I thank you for that that they are. I learned that you know, I learned that or began to learn that. I don't know if you remember about six months ago, we covered a story where the attorney general for the District of Columbia brought a case against the Trump inauguration committee related

to fraud and the inauguration. I mean, fraud with the Trump started like literally day one and beyond. And that, you know, that all had a scurrying to figure out because they don't teach us in law school, like, who is that position? What did they do? And then I had to learn everything that goes on in the municipality of the District of Columbia

for people that live and work there that's different than the federal government. Thank you for that. I learn a lot from you, anything that's prosecutorial-based trial-related. I'm always on the edge of my seat, trying to listen. I hope our listeners and followers are, too. Otherwise, this shows just about you and me listening to each other, which is also fun, but not exactly our business model, if you know what I mean. So, shout out to the Midas Mighty, shout out to the Legal AFers. We'll see you next week on the midweek edition of Legal AF.

Don't forget, we have new merchandise with Legal AF's wheels of justice emblem on it, a long sleeve shirt for the fall, with an amazing logo that I helped design with Jordy, which everybody likes. And in addition to that, we've got the weekend edition with Ben, my Salis, and you and I, along with Ben and Brad and Jordy, will join Tony Michaels

when the Gen 6 Committee hearing finally happens. I will do pre-game and post-game and during the game commentary about that so I'll see everybody on that and then the mid-recondition.