Legal AF by MeidasTouch - Top Legal Experts REACT to most important legal news of the week - Legal AF 10/1/22

Episode Date: October 2, 2022

Anchored by MT founder and civil rights lawyer, Ben Meiselas and national trial lawyer and strategist, Michael Popok, the top-rated news analysis podcast LegalAF x MeidasTouch is back for another hard-hitting look at the wheels of justice in “real time” as they analyze and discuss this week’s most consequential developments at the intersection of law and politics. On this week’s episode, the anchors break-down: the DOJ asking the 11th Circuit for an expedited appeal in the Mar-a-Lago search warrant matter so it can get back to investigating Trump; the NY Attorney General getting the judge of her choice to handle the trial of its civil fraud case against Trump and his children; the start of the Oathkeeper and Stuart Rhodes seditious conspiracy federal criminal trial; Judge Amy Berman Jackson’s sentencing of insurrectionist Kyle Young and her powerful comments addressed to Republicans; and the Second Circuit’s decision concerning the E. Jean Carrol defamation case against Trump; and so much more. Special Easter Egg: New Wheels of Justice LegalAF merchandise is now for sale. DEALS FROM OUR SPONSORS: AG1: https://athleticgreens.com/LegalAF GET 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

The Department of Justice is done with the corrupt Trump judge Eileen Cannon and they filed a motion to expedite their appeal. Meanwhile, Trump tries to get a new judge in the New York Attorney General lawsuit. And Tish James, meanwhile, says she's ready to go to trial soon. She wants trial to be set in 2023. Let's go. The jury selection in the Oath Keepers Seditious Conspiracy Trial before District Court judge Amit Mehta with criminal defendant Stuart Rhodes and his co-conspirators. That jury selection process wrapped up last week. The panel will be sworn in on Monday and trial starts this week. Meanwhile, a January 6th insurrectionist named Kyle Young sentenced to seven years for his involvement

in the insurrection and the federal judge presiding over that matter, Amy Burman, Jackson, standing in stark contrast to everything Judge Eileen Canada is doing and here slamming the un-American MAGA movement in no uncertain terms. And in the E. Jean Carroll defamation case, which was removed to federal court and subsequently appealed by Trump to the second circuit, the second circuit port of appeals ruled that Donald Trump was acting as an employee at the time he made the potentially defamory statements. The other questions that issue were certified to go to the DC court of appeals, but this may lead to the dismissal of that action, not for certain, but New York just passed the Adult Survivors Act reviving the Statute of Limitation for Sexual Assault. The statute of limitation for sexual assault. So regardless, Trump is going to be sued for, but for by E. Jean Carroll for sexual assault when the law officially comes into effect. The most consequential legal news.

I'm Ben Micellus joined by Michael Popat. This is legal AF Michael Popat. How are you doing this weekend? I'm doing, I'm doing great. I'm doing really great. You know, it's funny when you did the intro for the section on the 11th Circuit, we're gonna talk about first.

I had the exact same note. This is the new and I have that Vulcan mind meld about with underlining the Department of Justice has had it with Eileen Cannon. You know, the Department of Justice has had it with Eileen Cannon. You know, the Department of Justice, they previously filed that motion for partial stay, which was granted by the 11th Circuit after being denied by Judge Eileen Cannon. So they got the 100 classified records back, which they said, this is what's going to cause us that irreparable injury and irreparable harm.

So they got that back and I think they were thinking to themselves, you know what, we can tolerate Judge Eileen Cannon in this process. At this point, the special master that was appointed Judge Raymond Deerey is a respected judge who follows the law. Judge Raymond Deerey is going to be the one making recommendations to Judge Eileen Cannon. Judge Eileen Cannon, she's not after being essentially reversed by the 11th circuit and such humiliating fashion. Like she's not going to keep making these horrible orders. And so let's just let the overall appeal process play out because let's not forget the motion for partial stay was not the appeal

That's a motion for partial stay pending the appeal because as we know and as you know as loyal legal a F Listeners appeals take time right there's a briefing schedule that's fairly long with an opening brief a reply brief a Response brief the irreparable harm was those classified records and the Department of Justice was like, look, we'll tolerate a normal slow process until Judge Eileen can and continued to make these orders that totally fly in the face of the law, that fly in the face of comedy with COM ITY comedy with the special master making the recommendations. And this past week, she rejected the special master's recommendations that Donald Trump

as the plaintiff, bringing the case should file an affidavit under penalty of purgery in response to the Department of Justice as affidavit of the evidence log, either confirming or denying that that was the stuff that he took and was being kept in Mar-a-Lago. That's what judge Deere said because, hey, you're the plaintiff, submit an affidavit as the plaintiff in a civil case. And I, as the special master, I want to make sure that I am dealing with an accurate set of documents. So later, nobody's going to make arguments. Oh, there was the process was confusing to me. And these were not the real documents. She suespondy swoops in and she goes, he does not have to file a declaration under

penalty of perjury. How dare you judge Raymond Deary force the plaintiff to submit an affidavit under penalty of perjury. That's not what I envisioned in this process. One of the other things judge Raymond Deere also requested is that on a rolling basis, rather than wait to the end with the thousands of documents that are still in play that Trump responds to his various bogus privilege claims on a rolling basis versus waiting to the end. Judge Eileen Cannon swoops in goes, why would we do it on a rolling baseless? Let's just wait. In fact, let me push back the dates to December 16th.

And then finally, Judge Raymond Deerey said, you know what? The rule 41G motion, which is a federal criminal rule of procedure about return of property. I'd like the parties to brief if that should even go before me or judge Canon shouldn't that go before the magistrate judge judge Ryan Hart. I want you to brief those issues and then judge Eileen Canon swooped in and said, how dare you, how dare you request that the magistrate potentially hear this like, let's not even brief the issue. I asserted extraordinary equitable jurisdiction. That was in the footnote of her ruling. I asserted the equitable jurisdiction. This is mine to make the ruling on. And so when that happened, I did one of the quick video hits that I've been doing on

the Midas Touch YouTube channel. I said, they're going to file an appeal so quickly on this because these orders are just insane. And she's got no credibility and boom, the Department of Justice filed for a motion for expedited appeal saying, let's get the show on the road. We want the entire briefing done, no extensions by November. And let's get make a ruling right now, 11th Circuit that Judge Eileen Cannon

shouldn't even have jurisdiction over this at all. Like she should never have even exerted equitable jurisdiction. She has no jurisdiction. Stop this whole process right now. Popo, if you wanna go into what that emotion said. Yeah, give comment on some of the other things that you said. I think the Department of Justice, as we had predicted, was willing at one point, and

that point has long since passed, to live with Judge Cannon and work around her and thread the needle to try to find a place of expediency to do what we keep ignoring every time we talk about these things, not you and me, but others, which is there is an ongoing pending criminal investigation that has been completely hampered, hamstrung, and blocked by a federal judge on behalf of a former president of the United States. That's extraordinary. That any potential criminal defendant would get bad or as Tristan Snell, one of her fellow talking heads on legal tweeted, oh Trump finally found the defense lawyers, the criminal defense lawyer, he was looking for in the form of Eileen Caden. It's a great line.

So that the DOJ has been, as it always has been on to Merrick Garland, very sober and real politic and their approach to things. Like we don't like Eileen Cannon. We think she's made a bad ruling as of September 5th, her original ruling. But let's find a way to maybe live with it without inviting the iron of this young judge. So we'll appeal as you outlined earlier, Ben. We'll appeal part of what she did. Let's get those hundred classified documents and empty folders back. So we aren't inhibited.

And then we'll deal with the, and that'll be the immediate stay that we brought motion up to the 11th Circuit. Let's get a new set of judges because we're not doing well with Judge Cannon. And they got a great ruling out of the 11th Circuit that you and I covered extensively, a three judge panel. It'll be the same three judge panel for this briefing.

And they got great rulings. Even an invitation, I believe. And I think you and I talked about this from the 11th circuit to bring back a bigger case. They said, we are only here on the very narrow thing that Department of Justice has asked us to look at, which is the 100 documents, but, but when they wrote their order, originally, the 11th Circuit gave a very broad and sweeping analysis as to why the Department of Justice was right in Judge Cannon was wrong at every turn. The Department of Justice had to be heartened by that and had that always in their back pocket, that if they ever go back to the department of to the 11th Circuit, they have a friendly receptive panel who is already on their side on the major issues, which are national security is at stake. A criminal investigation is at stake and Judge Cannon went way too far beyond her powers,

beyond her jurisdiction in ordering of these things. And the Department of Justice had to say in their back pocket, if we ever have to go back there quickly, we know we have a receptive audience because we see how they've analyzed it and how they've slapped and reprimanded Judge Cannon. So they sat and patiently waited. It's a patient organization, the Department of Justice under Merrick, Ireland, to see what Canada would do next. They were certain they were they were heartened in the beginning, the how quickly things change Ben. How how sands shift so quickly, they were heartened by Judge Deerey. The judge of you and I were taking you know,

thinking about, well, maybe they picked them because of Carter page and prior problems. Judge Deerey is the only judge with any gravitas that's involved in this case other than the 11 circuit. And he started issuing really great rulings for the Department of Justice and for democracy. You think I've heard all this crap out there about the FBI planting Trump? Okay.

File an affidavit and tell me if you have any objection to any part of the inventory and tell me what's been planted or what's not been planted or we're not going to ever hear about that in this courtroom again. And other things that were consistent with the with the delegation of authority that he was given by Judge Canon. So what does Judge Canon do? As you said, she clips the wings of a more senior experienced uh, judge in judge in Judge Deerey who's still a senior judge federal court Easton, just like New York. He's not retired. He's still a senior judge, federal court, Eastern justic, New York, he's not retired. He's still a brethren of hers.

Clipses Wing says, no, you got it all wrong and all the reasons that Ben you outlined, which leaves, by the way, we haven't talked about it yet, but it leaves Judge Deerey in a really weird place because if he can't do the job that he thinks he's been given because he's getting micromanaged by Judge Cannon, he may walk. At a certain point, Judge Deerey may say, you know what, I don't need this. I have a job to do. I'm not being allowed to do that job in the delegation by Judge Cannon. And I'm out, which would be a major delay, of course, if the special master stays in place. So having watched her recent rulings on

Thursday, the department justice must have slapped their collective forehead. I'll do it here for people that watch us. And so now we can't live with Canada anymore. We thought if she, once she turned it over to Deerey, she'd let him do his job. He's, she's not letting him do his job. She's interfering again. We have a receptive 11th circuit. Let's file our motion now for an expedited appeal on the remaining 11,000 documents because they shouldn't be sitting with the special master either and what they said in that application then to the 11 circuit to that same three judge panel is Let's get all this done by all briefing should be done by the 9th of November on both sides. So it's fully brief, full blown appeal for the panel to consider on the remaining 11,000. The special master should not have been appointed by Judge Cannon. That's the appeal. The 11,000 documents shouldn't be sitting in Brooklyn. They should be back with the Department of Justice who has a job to do, a job, the 11th Circuit already recognized, which is to defend democracy, to protect national

security, and to investigate a potential crime. Let's not forget the Department of Justice in the FBI is charged with investigating crimes. They've said it's not just the 100 documents, 11th Circuit panel. It's the 11,000, some of which were commingled with the documents that are now that we now have back in our possession. And we can't naturally investigate and follow leads wherever they take us as to the commission of possible crimes. And not just classified documents is the crime. They reminded the 11 circuit. These the criminal statutes that are cited in the original search warrant, as you and I talked about at length, talk about statutes that have nothing to do with classification, including

statutes that predate the classification system like the Trees, like the SB and Hush Act, having nothing to do with it. So you need to lift 11th Circuit, all inhibitions and prohibitions on the FBNC Department of Justice to do our job and do it now and get everything briefed by the 11th of November. I think they have a receptive audience, audience in the 11th Circuit. I think they're going to get expedited briefing and I think ultimately they're going to win and canons going to be out of this case as is Judge Deie either by his own own hand or because the special master goes poof when the appellate court rules the favor of the Department of Justice. What do you think then? Oh, I absolutely agree with you and what the

Department of Justice pointed out to the 11 circuit is your same analysis why she doesn't have equitable jurisdiction when you apply those factors of that case. That is the controlling case about any judge who wants to extraordinarily assert equitable jurisdiction has to maintain that these factors are present. And you've already ruled that there was no callous disregard by the Department of Justice in 11 circuit. You said that the inquiry by Judge Eileen Ken and should have ended there and she should not have asserted jurisdiction.

But then you continue to go down all of the other elements as well under the Richie Test and found that even under those other elements, under any element, she should never have asserted equitable jurisdiction. Like how could you claim that Trump would have irreparable harm to documents that he can't possibly possess? And if you're claiming that Donald Trump would face irreparable harm, you're essentially saying anyone who robs a bank will just say, hey, I'm going to be harmed if you criminally investigate me. That's going to harm my reputation. And that's the dumbest possible legal analysis is essentially what the 11 circuit said. So the Department of Justice said you've already analyzed these issues.

The same exact analysis applies here. Let's not delay this anymore. One other point I want to make before going to the next topic, which is how unprecedented it is for a federal judge just to overturn a special master's recommendations when they appoint the special master to do the specific task and they then carry out the task. Even if it wasn't a distinguished senior status former chief judge of the Eastern District like Judge Deary, if it was a private lawyer and a federal judge did that, it would raise lots of eyebrows and go, huh? And why would you appoint the special master

in the first place to give you those recommendations? Like you almost never see that type of thing happening. Now, the fact that she's doing that to a judge who's like one of the most respected judge who's been a judge for like four or five decades, you know, who has presided over some of the most consequential cases in New York, from mafia cases to Pfizer-related cases. And this new judge is going to say, I'm overturning your recommendation that the plaintiff in a case should not have to submit affidavits in support of their own case is

the most bat shit crazy stuff. And like you and I could go on and talk about this. What was the one thing? Yeah, on the bat shit crazy. Because there's a lot of Twitter feeds about how do you how do you get rid of judge cannon? And I and I I had hats off, you know, to the Department of Justice who I think has had the win in the bank since their prior ruling and did not immediately go for the full appeal on the 11,000 documents, but waited to see what Judge Cannon was going to do next. They got this win in the bank. As you said, it's the exact same analysis

that that it doesn't give her jurisdiction over the 11,000 over the 100 doesn't give her jurisdiction over the 11,000. So I think it's a win. Now, why did they wait? Because they're trying to do this fast. They got a criminal investigation. As to the removal of judge can, and originally, I was always like, listen, I've had judges so of you who you, you haven't liked their decisions.

But it doesn't mean as terrible as those decisions may be in your mind. It doesn't mean it's, you know, fraud or corruption or disqualification grounds or refusal grounds to get rid of the judge. However, having now watched her a few times, there is a petition that the Department of Justice could bring. And I think it could go to the chief judge of the Southern District of Florida, who sits in Miami, or to the 11th Circuit, it is not unprecedented for a pellet court to remove a trial judge because they find either incompetence bias, the appearance of impropriety or bias, which

is what the rules on judge recusals and disqualification says. If they think she has now gone so far that her own rulings will not will be challenged for appearance of a propriety, the 11th circuit itself, if the Department of Justice were to ask, could remove her. And I think the chief justice could too. But here you go, the Department of Justice, there's an old line about assassinating a king. If you're going to shoot the king, you better kill the king because if you shoot and miss, you just have a wounded pissed off king.

If you go for the federal judge and you lose, you're stuck with Canon, who now knows you tried to remove her. So I'm not sure this Department of Justice does that, but there is a method to remove the trial judge through the 11th circuit should they so choose. Shifting years to New York now with the Latissia James, the New York attorney general's $250 million fraud lawsuit against Donald Trump, his adult children who purportedly run the business, Weiselberg, and others,

this lawsuit would also enjoy or stop Trumps from the Trumps from being on boards as managing members or directors, basically stopping them from doing business or running businesses. It would be about a five-year ban from buying property in New York. But basically, it would be the civil death penalty for the Trump organization, if this case prevails. When this case was filed, it wasn't assigned yet to any specific judge, but one of the things the New York attorney general

Tish James did was they filed a notice of related cases to justice, Arthur Ngaron, and Justice Arthur Ngaron was the justice who presided over the special proceeding where the New York AG, Tish James was issuing the subpoenas and gathering the discovery that was the precursor to the lawsuit that was being filed in that, in that special proceeding, right? Donald Trump was held in contempt for not for not turning over the discovery. He was basically fined and sanctioned by justice and Garan over $100,000 that he had to pay. Alina Haba was Trump's lawyer on that case. And apparently she still is representing Donald Trump. In this case, so a notice of related

case just basically says, one matter is related to the other matter. And so therefore, the judge who presides over the other matter should hear both or multiple matters because they're familiar with the facts of the case. And for judicial efficiency and judicial economy, why would you have a new judge have to relearn everything? One of the things that Trump's lawyers did though in response to the Tish James lawsuit though is say in response to the Tisch James lawsuit though, is say this should not go in front of justice, Arthur and Garan. They said it should go in front of the complex commercial division within the New York court system because it satisfies

the elements of being a complex commercial dispute. And they filed a letter brief to the administrators of the New York court system earlier this week. And they said, Tish James should not be able to transfer this case or get this case related to that same judge. They don't like justice Arthur Engoron because he followed the law and held Trump accountable. And they want to try to go judge shopping for a judge who more resembles an Eileen Ken, and although you'll probably have a little bit more difficulty finding that in New York, but nonetheless, that's what they're out basically fishing for. And then in response to that, well, I would say shortly after Alina Haba asked for that this goes to another judge, the New

York court system immediately assigned it. They allowed the related case to go forward and they assigned it to Arthur and Garan. And then on September 29th, Tish James in the New York AG's office filed a letter and said, look, Alina Haba isn't wrong in the sense that this does satisfy the complex commercial division requirements, but it's long been held in New York that that's not dispositive. Cases could and should go before the related judge in circumstances where that meets the judicial economy. And here, all of those factors would make sense.

And so it's not an absolute that if you satisfy these requirements, it goes to the commercial division. It should stay in front of Justice and Grown. And not only that, we're ready to go to trial in 2023. And we're going to ask and Grown for 2023 trial date. And so there's no reason at all to even address or deal with Alina Habba's motion. It's before the right judge.

This is more delay. And one of the things that Tish James says is, we know Trump's tactics by now. His whole thing is delay, delay, delay, while he is engaged in active criminal fraudulent conduct. And so this case needs to be heard now. None of this Trump BS, we're ready to go and judge Angeron or Justice Angeron knows the case.

And Popeyes, you know a lot about this procedure. This is your, you know, one of your home courts, this end Florida. What do you make of these moves? Yeah. Well, let me first say that what we are doing right now on legal AF, I think this is what people tune in for us, is completely different than mainstream media reported this. All the headlines from mainstream media were, Latisha James, New York AG moves for immediate trial as early as at the end of 2023.

That's not the headline. The headline should have been what you outlined, which is Trump tries to form shop, get a better judge than the judge that was assigned to the case and tries to do it by way of asking for a transfer to the commercial division or assignments, the commercial division. That's really the heart of the story. And then I have one observation about the NYAG's comment about there's an ongoing fraud. We got to hurry up and try this case. I want to talk to you about that in a minute. But you have the procedure exactly right. This is my backyard.

This is where I practice. And let me just say, because, you know, it's true when I practice there, the judges of the commercial division are very good. There's four of them, five of them. They're very good. I appear in front of them regularly. I've transferred cases to the commercial division

that were complex in nature and that belong there. But that's not appropriate here. And that's why the New York administrative judge did not heed the request by the defendant here to transfer the case to the commercial division. If there wasn't a prior case, what you call properly the special proceeding, that Judge Angeron already presided over with 800 court filings, with tens of thousands of documents already reviewed by Judge Angeron in his supervision of the investigation by Latisha James'

office that led to the filing of the civil lawsuit, right? That's why they're related. He already has the learning curve. It would take a year or, you know, if even if a judge in the commercial division dropped all of their other cases and they have thousands of cases in front of them, they have, you know, this is New York. This is like, we call it almost like deli justice. You know, number 38.

Okay, what do you want? Half a pad of pastrami and you want to me to decide your contract case? All right, great. You don't have a lot of time with these judges. In fact, a little known fact for people outside of where I practice. I think this happens in California where you practice a lot too, Ben, is that the law clerk, the law secretary, it's called for each judge is almost like a mini judge. It's almost like a magistrate and they make a lot of preliminary rulings on things other than discovery, substantively, as if they were the judge. They're not elected, they're lawyers. They some of them

want to be judges in the future, but they are the law secretary. They'll tremendous power over a case in each one of the commercial judges for justices, for instance, has a law secretary as does Engoron. So you have that's the process. Normally, a case like this, because it is complicated, would go to the commercial division. However, judge Engoron, who's better than judge Engoron, who has all of this body of work that he's done already. There's only one judge that's ready to take this case to trial in 2023, which is what the AG's office has pointed out. And that's Judge Engoron. The only part of the

application of the letter, which was successful, they successfully got it, a back to Engoron, when the case assignment came out. And he'll now be trying the case. And now he'll decide at a hearing, they've asked for a expedited preliminary conference in front of Judge Engoron, which will report on when it happens. And they're going to, and they've already telegraphed that they're going to ask for a 2023 trial date.

And I think he's going to give it to them. The only aspect of it that I thought they went a little bit too far is when they said, this is an ongoing fraud. And we've got to hurry up and try this case. Well, listen, if it's an ongoing fraud that you're really worried about, then what's the thing that you move for? Say that one more time. If it's an ongoing fraud that you're worried about, what do you move for in the temporary, temporary restraining order, which they haven't done here. So maybe they will.

And then they can really pound their chest in the courtroom and say, oh my God, it's an ongoing fraud. And we need to stop it immediately to stop banks and other victims from being victimized. And maybe they should, but they do. That was a bit of a, that was a bit of a law school moment for me right there. But I was, I'm sorry, Professor Popuck. I was, I was sorry, Professor Polbach. I was like Kingsfield in paper checks. I got Mr. Madeline flashbacks to law school there. So for those who were listening

on the audio, and we'll keep that in the pod. So I'm at my mom's right now, and I just flew back from Europe. And so I was just getting a text message about what did I want to eat for lunch? And so I was not paying attention to anything, Popeye, I was thinking, oh, that's terrible. And then Popeye's like, what do you call that, Ben? I called you out. It was just like in law school where you'd be, you know, g-chatting or whatever with the people in your classroom.

And what do we call that, Ben? Can you repeat the question? That would, by the way, that was really fun. I did feel a little bit like paper chase. Mr. MySatis, what do you call the thing that you filed in a courtroom? Yeah, it's an injunction. They didn't file the injunction. Listen to me, Ben, you have to listen to me more on this show. So, so that's that. That's where we are. It's going to stay with Anger on lean Alina Haba can stamp her feet all she wants. It's not going anywhere. The judge they hate. The judge that already found, as you said, Trump in contempt, the judge, the judge

who has looked at tens of thousands of documents and doing his in-camera review, who's or you know, who's already formed an opinion about whether and has denied Alina Habba's motion to dismiss the investigation for being politically corrupt and biased because Latisha James has it out for and she's a racist and she's had all the Trump bullshit defense stuff. This is the judge that's basically said, that's not happening in my courtroom. So they, they don't want, I don't think though, you said this as we led into the segment. He's not, he would not get a better, a better audience for his shenanigans to put it mildly before the commercial division judges. I know them. They are no nonsense. They deal with some of the most complicated commercial matters in the state of New York, which means in the world.

From real estate to securities fraud to, I mean, you know, this is a very sophisticated set of judges that are very sophisticated courthouse, but he would get delay because they would never be able to come up with the learning curve, the body of work that Engron already has. So he'd get that, but he would not get a more favorable audience. And, you know, he would like to start all over again with somebody, even though, you know, they would know what happened to the prior proceeding. They wouldn't know it the way Edgar on did. So there we are. Sorry, you go back to your text. Texting. And that difference right there is dramatic, though, because, you, because I've seen firsthand from an LA, we've got a five-year

rule. The case needs to go to trial within five years, or else the case can get dismissed unless you go to the judge. Like in New York, like the five-year rule, and I'm not trying to mock your New York court to mock, but like the five-year, and I'm not trying to mock your New York court. But like the five year rule sometimes is like within five years, you get your first status conference sometimes. And like the in New York, those cases, especially in the the Supreme Court, which is actually the trial court, they have weird names in New York. The court of appeals is the Supreme court, the Supreme Court, the trial court. But those cases like cases in 2012 that I'm aware of, right? We're going to trial now because everything gets appealed and then it goes back.

So the fact that it will stay in front of Engoron is a major, major, major difference maker. I left, I'll give you a proof of your point. I left in house council position over three years ago. I just got a notice on a case that was going on when I was there. And now after four appeals during the process of the trial, they're just now at a complaint, final complaint after three years of pleading that they can now use to move forward. So it was three years just trying to figure out if the party had a proper complaint or not or causes of action. Yeah.

And that's what Trump wants. Delay, delay, delay. Now, one of the things Popok about covering all of these Trump criminality cases on legal AF is you start to really learn about these judges. And like the judges become these characters in this Trump crime drama, right? You know, we've heard the name Amit Mehta because here's the thing about federal judges.

Federal judges, unlike a lot of state court judges, at least in California, like in California, you've got criminal state court judges, you've got probate state court judges, at least in California, like in California, you've got criminal state court judges, you've got probate state court judges, you've got civil state court judges, a judge doesn't hear criminal and civil matters in state court proceedings here in California. But in the federal court systems, a judge who will hear the criminal case also hears the civil cases. So someone like Amit Mehta is presiding over a lot of the civil lawsuits that were filed against the insurrectionists and ruling on the torts and the torsious conduct at issue that causes monetary damages. And so we've talked about a lot of his detailed rulings there, permitting

those civil lawsuits primarily to stay intact. He's dismissed one or two peripheral characters, but the main cases have been able to proceed and go through on the civil cases. But he also has presided over a number of these January 6 insurrection cases and insurrection trials. I mean, heck, he's also the judge overseeing the Peter Navarro contempt of Congress trial, right? You also have people like Judge Nichols, who was appointed by Trump, who oversaw the ban in trial. We'll talk in a little bit about Judge Amy Berman Jackson, but you start learning about all of these judges and getting a feel for him. And in the DC circuit to be fair, even though I

think a lot of the Trump appointed judges have approached these January six cases with a little bit more of a degree of skepticism than the totally pro-democracy judges, I think you've got overall a pretty fair shake in the DC circuit of judges following the law and handling themselves admirably in stark contrast to what we see with Judge Eileen Cannon in the Southern district of Florida, who's just like totally rogue, which is why we highlight her absurd and, you know, and just destructive rulings. But this next case, you know, is before I meet Mata, which tells me the rule of law is going to be filed followed He's a no nonsense judge. He's a deep thinker of a judge and this is the oath keeper

Saditious conspiracy trial if you're an oath keeper It's probably the last courtroom you want to be in as before I meet Mata who's not gonna let any of your as before I meet Mata who's not going to let any of your attempts to politicize the trial or inject things into trials that shouldn't be in there. But jury selection completed last week. When you heard about the jury selection process though, you really saw the impact that it had on people from the DC area who saw the violence firsthand. So finding a fair and impartial jury pool through the WOD deer process, which is the process by which you select jurors in a case. Jurors in federal courts usually receive a questionnaire first

to then become pre-qualified. And then once they get past the questionnaire phase because you may have a panel of a few hundred people, they do the questionnaire and then lots of people will be disqualified based on their answers in the questionnaire. As Judge Amit Mehta made clear in the jury selection, the fact that you have some relationship to that date is not in and of itself a disqualifying factor if you can make sure that you would follow the law itself and go where the law leads as opposed to where your inherent biases may lead. But the questionnaire process led to about 45 jurors who were pre-qualified. The juror selection was then that what deer

process was directed at those 45. The panel was finally selected. They'll be sworn in on Monday. But this is a big charge against the oath keepers. Their head steward rode the one who wears the eye patch and the history of his eye patch was that he wouldn't actual first he shot himself in the face is why he got in the situation in the first place and then his children said he wouldn't ever like clean it. So it got infected to the point where he has to wear an eye patch. We actually had him on his kids on the Tony Michael show. So we actually got that firsthand insight here. But any event the O Keepers, the Dishes trial, but the allegation essentially was that they're trying to overturn our government. They were engaged in a coup. I mean, we could go through

the elements in a little more detail, but that's the essential claim. That trial will start, and it is a big, big deal, an important case for the Department of Justice. There have been prior, I believe, Popaka, if I'm not mistaken, some prior plea agreements where people have played guilty to that charge. And they're going to testify at this trial. They're going to testify and be cross them. But here, this is really the first seditious conspiracy trial with this oath keeper terrorist leadership group. And it's so important because they are connected to that next tier, which are that next layer

of people who are close to Trump, which is the next part of the latter where I believe the DOJ is going. This is to the Jeff Clarks and the John Eastman's and the people like that and Trump's kind of inner circle, potentially the meadows and people who connected that directly to Trump. So what do you make of jury selection on this trial? Yeah, and then I'll comment on what you just said about the substance and the importance of it. So to remind everybody that follows and listens to us,

this is the trial of half of the oath keepers, including Stuart Rhodes, its leader and founder, the other half we're going to go several months later, also in Judge Mators Court House courtroom in District of Columbia. And of all the people that arrested over 800 by the Department of Justice and the FBI, of all the people who have already been convicted over 260 convictions, there's only this group

and another group of proud boys who have been charged with seditious conspiracy, a number of them, which is the highest charge out there. If you remember, some judges, including Judge Nichols questioned whether a seditious conspiracy was the proper charge or interference with or obstructing Congress was a proper charge as well. But be that as it may, there is a series of people, including at least three witnesses who are going to testify because the government has already revealed it at the Oathkeepers trial, who were Oathkeepers or former Oathkeepers

who already pled guilty to seditious conspiracy and are going to testify against Stuart Rhodes and his compatriots there who were all in charge of things. We cannot understate or sorry, or overstate the importance of the strife department of justice. Yes, they are seven or eight, no, in the trials that they have put on. But this is the one on the conspiracy, seditious conspiracy charge that they have been using as the giant club against all of these people to lose this would be a tremendous black eye to the Department of Justice knowing that and having seen their trial preparation and their trial presentation in the other trials that they have put on for lesser charges.

We know what to expect. It's going to be a lot of video clips of these people, these Yahoo's, these insurrectionists. It's going to be audio clips from the apps, the walkie-talkie apps that they were using, thinking that they were gonna be scrambled in secret, but that the government was able to obtain in the process and reveal. And so it's gonna be live testimony of witnesses

against the defendants who were part of the Oathkeeper's conspiracy. It's going to be video from body cams that these people were wearing from GoPro's that these people were wearing in cell phone video and audio, as I said before, from their conversations, all spliced together in a very coherent timeline for the Department of Justice to educate this jury. I think the Department of Justice is reasonably happy with the jury that's been selected.

It's half of it are women, the other half are men. Some of them, as you said, Jan 6th touched them. They know a witness because there's a list of witnesses, for instance, in the questionnaire. Do you know these people? Here's the 30 people who we think could take the stand. Some of them said, I know that guy. You know, I go to church with that person or school or this or that.

That is not enough to disqualify when you're going through that process. And just a comment on what deer for a minute, the jury selection process. In state court where you and I also practice, you get a lot of leeway in doing your jury selection. In federal court, it's really run a lot by the federal judge. There's the questionnaire, the judge will do some other questioning. He'll give it over to the lawyers, but you can't do what you normally do in state court, which is you put on your opening argument in front of the jury and see who bites. And I'm like, Oh, I like number six number nine number 12. They seem to

like me. It's very hard. You have very limited interaction with the jury pool in the selection process in federal court as compared to state court. And at the end, I think you know, you get the jury. You get the jury that you can select not the, not that there's no perfect jury. And so I think on balance department of justice is probably happy with it. And they got to hope that they can avoid one person getting hung up with Stewart Rhodes's defense, which he's already previewed in filings. Now, Stewart Rhodes, who's, you know, big man on campus, Oathkeeper, you know, I'm going

to, you know, support Trump, my president, no one squealed louder than him to try to avoid this trial. He filed motion after motion after motion to delay to fire his lawyers to bring in new lawyers to separate himself from the other outkeepers and have his own personal trial. And the judge was like you said, Judge Mehta wasn't having any of this. He's like, no, you're going to be roped together with your co-conspirators in one trial. There's two sections of this group that are going to go only because they can't fit all of them in a courtroom. The conspiracy, potential conspiracy is so large, Ben, they couldn't try all of them together in one courtroom.

So they had to separate them. That's the only reason. Otherwise, it all be like 20 of them all sitting at some sort of defense, elongated defense table. So he's got to go no matter what he's filed. He's also previewed, well, I thought, I want to make you take on this one. He's going to say, I thought, the others thought that the president was going to exercise his rights under the insurrection act of 1807, which Jefferson signed,

which is a one paragraph, like no statute or law that you and I have ever seen, because it's, it's literally five lines. And it gives the president tremendous power to put down an insurrection. Whatever that is, by use of a militia, which then you have to go search around from 1807, as to what a militia is. And, and, you know, Stuart Rhodes is going to testify that he thinks that he was the militia of Jefferson's dreams, that he was waiting for his president to give the go order. And he was going to put down the insurrection, the insurrection being, this is the upside down world, not the obstruction of the peaceful transfer of power to Joe Biden, but that Joe Biden had stolen the election and the people in Congress who

were doing their job constitutionally to turn over power and count the votes for the electoral college were the insurrectionists. This is the upside down fever, you know, hash pipe dream that these people live in. And so I was just waiting for the 1807 insurrection law to be exercised or triggered or invoked by the president, my president, and I was ready to go. I never came. Okay, well, I never did anything, even though I had weapons and ammunition and munitions that I brought into the Capitol and I had golf carts ready to storm the Capitol with these

munitions, but the go side never went. And so I'm not a member of a conspiracy. We know that that fails under conspiracy analysis. And that fails under the fact that he's not going to be able to get Donald Trump to take the stand. Donald Trump's not taking a stand in his own cases. He's not going to take the stand and do it Rose's case and say, yeah, it was this close to invoking martial law and the insurrection act of 1807. And yeah, these were these were going to be my guys. This is my militia. Never happening. But the question is, can they get one juror, one to believe that somehow that defeats

criminal men's rea, criminal mental state? And if it does, this, this guy could walk. But I'm not sure that happens with a DC jury, but I want to get your view. Do you think they can get one person to buy into this defeated criminal intent? Therefore, he can't be convicted of a crime. No. And you're going to have one of the reasons he wanted to sever and have his case tried differently is because the cross exam that's going to take place of each of these criminal defendants, when they take the stand and try to advance that argument that you just made,

any trial lawyer that's worth anything to be called a trial lawyer will be able to dismantle and destroy that line of responses, very, very, very quickly. You know, when I think that actually testifying to that versus just invoking your fifth and not saying anything and just hoping it goes your way and that seditious conspiracies a tough crime to, you know, it's, you know, it's been hard to prove that, you know, and maybe focusing on just the obstruction aspect versus going for, you know,

taking the stand on all of it. I just think it would piss jurors off to the extent anybody would be on the fence and I can't imagine that that would be the case. I just think that, you know, it will aggravate an anger jurors to hear that that's actually what the positions going to be. I agree with you. And he's he's he's now he could change his mind because they're always

they're always have high braga dacio before the trial starts like, Oh, I'm going to take the stand in my own defense. And then the trial comes and goes and the guy never took the stand. He has said publicly that he's going to take the stand, but that could change minute by minute. As soon as he sees, you know, all's great, but in the fog of war in the courtroom, all your plans that you had in your head, and these are people that are, we've already seen a sort of adult brain when it comes to planning. If they think the trials are going to go a certain way, wait till opening statements, wait until the video and audio gets run, wait till they see the reaction of the jury alive a live jury in the box and in that fog all of a sudden, it's like, you know what? Maybe I'll just stand down and not take the

stand. If you got your wheels of justice shirts yet, the long sleeve shirts for this fall and winter head to store. to access to exclusive benefits, head to patreon.com slash might as touch. That's P-A-T-R-E-O-N.com slash might as touch. And today's program is brought to you by Athletic Greens, the health and wellness company that makes comprehensive, daily nutrition really, really simple. With so many stressors in life, it's difficult to maintain effective nutritional habits and give our bodies the nutrients it needs to thrive. Busy schedules, poor sleep, exercise, the environment, work stress, or simply not eating enough of the

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and switching gears from the jury selection and the oath keeper, seditious conspiracy trial to the sentencing of an insurrectionist by the name of Kyle Young, who actually brought his 16-year-old son with him. And this was one of the people who held down DC officer Michael Phannon, passed the taser to the person who attacked Michael Phannon, that you could hear him in videos saying, hold them down and hold them down. Judge Amy Burman, Jackson over seeing the sentencing in federal court, the judge hands down the sentencing. She first addressed Kyle Young and said, I want you to know, you're not a patriot.

You're not a political prisoner. You are a traitor to this country. And what you try to do and what you attempted to do is to destroy what makes our country truly great, which is the peaceful transition of power. So don't you dare whine that this was about your first amendment. Don't you dare make these claims that you're some patriot,

you are basically scum. I'm paraphrasing slightly, but she said that. And then she said, and I want to speak to all of those people out there referring to mega Republicans who are inspiring this type of conduct. And she called the mountain, said, how dare you pledge allegiance to one man who knows that he lost an election and spread the big lie versus affirm your oath under the United States Constitution and how dare you continue to spark violence and say things like if he's if this one man referring to Trump is held accountable,

people will riot obviously talking about people like Lindsey Graham, you know, in these statements by Amy Berman Jackson, you know, we're strong, but they were apt and they were appropriate. Roger Stone trial and connection with the Maniforts and Maniforts case as well So she was the presiding judge over those cases Upheld the law there She was attacked by them as well. I think they like tweeted out photos of her or posted photos of her with like cross hairs You know try to encourage people in their stochastic terrorist way to try to, you know, harm her and potentially kill her. You know, and she just had enough and made it very clear at this sentencing hearing, you know,

what the issues were at stake. And she gave a call to the judiciary too. And it is the judiciary's obligation to stand up and uphold the Constitution where a political party is clearly failing, you know, with referencing obviously what MAGA Republicans are doing. What do you think about the sentencing and her words more broadly? And so reason why it's called the Wheels of Justice. It's not the wheels of the executive branch, it's not the wheels of legislation, it's the wheels of justice. And she talks about the importance of a strong judiciary as the last firewall for democracy

to make sure, as Jamie Raskin once aptly commented, there's not an accidental toppling of our democracy, which could have well happened on Gen 6 had it just gone a hair further to the right. So I like Amy Burman Jackson a lot. You and I do. Pardon me, we've commented on her in prior podcasts. And she did not have to in sentencing address him or the other multiple audiences that you talked about in your, in what are your trending takes that she was, that she was talking to. Kyle Young, and his family didn't even have

to be in the courtroom for most of what her, she was talking about the sentencing because she was talking to a different, a different audience. She was talking to the American people. She was talking to, as you said, fellow, fellow jurists, regardless of their political persuasion. She was talking to the Republicans and the Maga right wing Republicans who have bet the knee to Donald Trump and have as a result, abdicated their responsibilities under the US Constitution.

She's talking to them as well. Let's not forget Michael Phenone for a moment. And I don't think we can talk about him enough. Police officer Michael Phenone, a 20-year veteran, not only was brutally, horribly beaten with his own equipment by the crowd, including leaders of the crowd, pardon me. Like Kyle Young, who pinned his arms against his side so that he couldn't, he couldn't call for help and he couldn't use his side arm, who put him in a position to be bear sprayed and tasered.

And Michael Phanone, who was a well-built man, middle aged man, police officer, had a heart attack during that attack. That's how brutal and devastating that was his entire system, but not just a brutal attack on his body leading to a heart attack. He left the force and testified which he's purposely permitted to do and it's appropriate as a victim.

Before the sentencing he testified and he looked young in the eye and said I hope you suffer in prison the way that I have suffered because I've not only lost my career because of you because I had Psychologically had to leave the force. He says I've lost my faith in law enforcement, in the institutions of this government that I gave my life to and my career to. You've taken that away from me as well. Another set of powerful words in that courtroom were by Michael Fanon in addressing the judge

in sentencing. And of course, there had to be an a-hole in the audience when Michael Phonone said to young, I hope you suffer in prison because I've suffered somebody yelled out, oh, you're an a-hole. I mean, literally, even today, there is a group of people and we can't Trump do us Trump. We can't do us, right? We can't do a census of them and figure out what percentage of it is in the electorate. But even the day that Fennones, what happened to him is described in a courtroom

and what Young did to contribute in a criminal way to his beating, senseless and maming of another human being. Somebody else thought it was appropriate to yell out in the courtroom and attack Michael Fennon, totally inappropriate. So she sentenced to Amy Burman, Jackson, Amy Burman, Jackson, sentence, Cal Young to over seven years, 86 months. He has already served 18 months. He's, you know, these people, these Jan six people rightly so have been in detention. these Jan six people rightly so have been in detention.

Retraw the tension for all this time. So he's been in for 18 months. Pretty sure he gets a credit for the 18 months. This is one of the people though, Pope, who Trump is calling a political prisoner when he said they all call them that. Yeah, they, they, the, the, and that's why I love Damie Burman, Jackson. I love her for many reasons. But for her to come out and say, you have not been prosecuted and convicted because you

exercised your first amendment right. You have not been prosecuted and convicted because you were peacefully protesting something that you believed in under our constitution. And as you said, you are not a political prisoner. You are not a patriot. You were none of those things. You have been convicted and prosecuted and convicted because you committed crimes against this country For which there is no excuse and you're going to jail for a long long time as a result

And the fact that he brought the 16 year old with him is just mind-boggling now Kyle Young at least in terms of his own defense He has said that he's a changed man that he realized realized it at the end, that had gone too far. And she said to him, this, you want me to believe, Mr. Young, that this was a momentary lapse of judgment and a little bit of a contact that you had with with officer Fennon. That's a lie. That's a lie. We have the video of what you did and the audio of what you did. You were a leader in the brutal attack, the first line of defense at the Capitol steps of officer Fennone who got swarmed

and rushed by the crowd that you led and we have the result as well. So I loved it for many, many reasons. More judges in doing their sentencing should actually for history's sake speak to these multiple audiences as eloquently as Amy Burma Jackson did. But first of many, we're not done. You know, we're up to 260 convictions and sentencing.

And that's not the last call young that you and I unfortunately are going to have to talk about. It is the fourth, largest, fourth highest sentence on the, if you look at the Department of Justice Database, that any of the insurrectionists has gotten. So it's up there. People that in the beginning were wondering, why are these people getting off with Mr. Meaters? They're not.

You start at the bottom. You end at the top as we move to hopefully that next level of prosecutions of the people that were in the White House and the Trump campaign assisting the president. You know, I put Kyle Young in tier two in the hierarchy I have. So that kind of tier one, I have people like the Shaman and a lot of like the real kind of cultists and people who maybe didn't do violent things, but nonetheless, desecrated, stormed into the building, and trespassed tier one. Tier two, the more violent people, the violent people, people like Kyle Young, who assaulted,

who are more instrumental in engaging in the violent conduct. Tier 3, I have the terrorist organizations like the oath keepers, like the three percenters, like the proud boys. Tier 4, I then have the people who have not yet really been indicted. I put these people like the John Eastman, the Jeff Clarks, the pillow guy who went in and the cash potels, even the Mark Meadows, that next tier right above the fifth tier, which I have has Trump. And they've really yet to go to that fourth tier yet, although a lot of those subpoenas that we've been hearing about that have gone to people like Steven Miller that have been sent out. I think there's about 40 other subpoenas that have gone out. And we've heard about all the grand jury testimony that's been

taking place. That's aimed at that fourth tier, the search warrants being executed on phones. And then, and I think we'll start seeing indictments there as well. It's the ultimate multi-level marketing pyramid scheme against America. All those tiers you just did, those are just steps up the pyramid until you get to the very top, which is, as you said, it's a little bit of a layup there. You gave me a little bit of a layup there too. And I, and I, this wasn't on necessarily what we're going to speak about, but it is related to kind of Trump's deposition. So he's being sued civilly in one of the number of class actions he's being sued with

for engaging in one of those pyramid schemes relating to the celebrity apprentice and, uh, you know, fraudulent telling people about get rich quick schemes. And a class action was filed against him in the organization that was selling these DS classes and products. So the deposition was scheduled to take place at Marilago originally this past week, but when the hurricane was set to hit, the lawyers, for the plaintiffs' lawyers representing

the class said to Trump, basically, hey, you know, the hurricane's hitting in Florida. We're not going to fly down there to Florida to take your deposition. Why don't we take your deposition and Bedminster? Well, let's come up with a new location. So we're all safe. Donald Trump got on a plane, flew into the hurricane so that he could avoid the deposition. And then he tried to file a motion with the judge in that case because the, no, he tried to delay, delay, delay his deposition. So the

final deadline of when his deposition could be taken was last Friday. So then a the class action lawyer sent a letter to the judge and said, look, the hurricane's going to hit. We're not going to fly down and potentially put all of our, you know, the court reporter, the lawyers, the staff, and peril of potentially getting killed. And then Trump's lawyers wrote a letter saying, too bad. So sad, you blew your deadline to depose Donald Trump. The court stepped in and said, that's absurd. I'm going to continue the deadline until October 31. But you said the pyramid scheme. And so Trump was supposed to be deposed on Friday. And he literally went to the hurricane to avoid his

deposition. So, so you and I are always good at weaving things together. We're going to talk about E. Jean Carroll next. In the same week that he tried to avoid the deposition by flying into the eye of a hurricane to get away from it, he also has filed papers in the case against E. Jean Carroll, now that the second circuit that you and I are going to talk about has ruled partially in his favor on one aspect of what he's trying to accomplish there, which is to get out of her defamation case. And he said, well, I don't want to give my deposition, I was going to give my deposition, but I don't want to give my deposition now to the lawyer, Robbie Kaplan, who's representing E. Jean Carroll, because I may win

this appeal. I don't want to do that. And of course, Robbie Kaplan came back with. Here's another example of him trying to avoid his deposition. Although she wrote one thing that I don't know if you caught it then, which I did not like. And I don't think it's true. She said he's trying to play out the clock until he is elected president again in 2024. I think she should have said potentially elected president. I don't really think that's going to happen, but her point was he's just playing delay, delay, delay. He should sit first that position now in E. Jean Carole while we go through the appellate

process and not the other way around. So two two depositions he tried to avoid consistent with his with his obstructionist conduct to delay until something, you know, as as you've said, the law of holes, as I've said, when things go badly, make them go badly slower, because time is on your side. And that point he's trying to do that, that aspect of that principle. I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I,

I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I team. He's going to, and she said this, but all that other stuff was in there. He's going to be deposed in this case or the other case because she had previously filed a motion letting the court know or a letter brief because in New York, you just file letters with the judges, which is also something that's so to wild. Tears. Yeah. Yeah. You file all these letter briefs, but letting the judge know that there would be a claim that was filed under the Adult Survivors Act, which revives the statute of limitations for adults who are victims of sexual assault and extends the timeframe for which they have a new window.

So I believe New York's new statute of limitation for sexual assault is 20 years, but that's prospective and is not retroactive. So what this adult survivor's act said is that for people who were sexually assaulted in the past, we'll give you a window. Was it a one year window Popeyes? Yeah, it's a one year window starting 30 days after a governor, Hockel signed the new statute. It's that recent.

And the 30 days is I I think, the 23rd of November, which is the first day that anyone, including Robbie Kaplan and for her client, EG and Carol, can file. So one year from November, I think 23rd, anyone who is an adult now who says that, I'm sorry, who was an adult when they had an alleged sexual assault or abuse happened to them, because there's a separate, there was a separate child survivor statute that got the then governor Cuomo sign that gave a similar one year open window last chance to file that already expired. This is now for adults because of course Eugene Carroll was an adult when she says she was raped in the dressing room of the high-end

department store in Manhattan in 1995 or 1996. And so the case that was currently pending before federal court was actually not the case involving the actual sexual assault and the rape itself. It was a defamation case because Donald Trump gave a press conference where he said a number of derogatory things about her appearance and her looks and then denied that it ever happened. And then E. Jean Carroll sued for defamation. She sued in the New York State Court system

as discovery was about to take place there. The Department of Justice swooped in and under Bill Barr asserted that Donald Trump was not the proper party to be sued because he engaged in whatever the alleged conduct, the spoken purported defamation is what Bill Barr would say happened during a press conference in connection with his role as the president. And therefore, the proper party is the United States government.

So the case should be framed, E.G. Carol versus the United States government. So the case should be framed, EG Carol versus the United States government. And because the United States has not waived sovereign immunity as it relates to defamation cases by substituting in the United States, it would act to dismiss the overall case. But the federal judge in the United States district court there specifically made the finding that the United States District Court there, specifically made the finding that the United States, which it was not the proper defendant, found that Trump was not acting

even as an employee of the United States government when he made those comments that the unitary executive is outside of what the definition is and of a government employee and in any event his conduct was not in the course and scope of his employment. So the bizarre thing here is that after the district court judge made that ruling, Merrick Garland and the Department of Justice, because by the time this happened, Biden was the president, but the Department of Justice, and many people thought was the Department of Justice going to change the position from what Bill Barr had said. And I think in something which upset a lot of people about Merrick, Ireland, and I think Merrick Garland has reignited a lot of confidence in his overall approach to justice,

as the wheels of justice have turned, and as he's handled all these other investigations and prosecutions. But this was one that was a bit of a head scratcher at the Department of Justice continue to pursue Bill Barr's policy and appeal and saying that the conduct because it occurred during a press conference itself of the president speaking should have been viewed as a government action in the course in scope and the United States government was the proper party. Even if we don't like what the outcome would be in order to preserve and protect the fact that most presidents are not pretty much all of them are not demented lunatics like Donald Trump.

And what Merrick Garland was trying to preserve and protect is not the case where this is an extreme example where a president goes and demeans and does all and relies about a sexual assault. But where someone like Biden is giving a press conference, he's asked the question and says something about someone and everybody starts suing the president to do it this way historically. Bill Clinton, who's on our side of the aisle, gave a press conference in which he denied accusations by Monica Lewinsky that they had an affair.

And everybody remembers that crooked finger where he pointed it and said, I did not have sexual relations with that woman. We know now that wasn't true, but Monica Lewinsky could not sue Bill Clinton and did not successfully sue Bill Clinton because this is this is the Department of Justice's position under under Barrett Garland and under bar. A president has allowed to deny allegations against him whether sexual it's sexual in nature or other things in nature. I did not breach that contract. I did not have sexual affair.

I did not run over my neighbor's cat, whatever the allegation is, without being subjected, without losing the immunity that comes under the West Fall act, that Congress has provided to a government employee, in this case, the president. And so we didn't like it when Clinton did it. And certainly it's a whole different, you know, it's like comparing apples and bowling

balls as to what Trump has done versus what Clinton did for his impeachment, but the principles are the same. And so the Department of Justice under Garland held its nose, you know, put fingers on its nose and said, we don't like what he said. And he went, he's a little too far when he said, you know, she's not my type. So that couldn't possibly have happened.

But a president in office is allowed to deny allegations against him. And we're going to stand by that principle, whether we, you know, whether we like it or not. And that's why they continue to, to pursue that, that policy. You want to talk about what the second circuit did? Yeah, let's talk about what the second circuit is. So the second circuit, you're not going to catch me looking at my cell phone text messages twice, Michael Popeak. So the second I want to split screen side by side, don't, don't cut away from me. I want to split screen of Ben doing whatever he was doing at the moment. I asked that question. So the second circuit ultimately made a very discrete

ruling and then kind of punted the rest of it to the DC circuit. And they said that under the provision of what constitutes an employee of the government to then analyze whether the employee step two acted in the course and scope under what's called the West Fall Act, that Donald Trump would have been appropriately characterized as an employee. But whether he acted within the course and scope of his employment, such that the United States government should be substituted as a defendant, that second step analysis,

the second circuit just said, you know what, let's go and ask the DC circuit what they feel about the issue. So they did something that's rare, but on these, I guess, tough, broader constitutional questions, you see it from time to time, which is to certify the question and issue to a court that is more of the appropriate authority in the area. So they certified the, was it within the course and scope question? And now that process will be briefed and heard before the DC circuit. Meanwhile, the deposition of Donald Trump is still set for October 19th by E. Jean Carroll's lawyers. And so the

question is, is will that take place? But what do you think about the DC circuit being involved in this now? Yeah, it's actually the DC court of appeals. It's, and we talked about it on Wednesday, because it was, it was something we had to unpack. I don't know if you remember, this is like stump bend day. And do you remember we talked about the DC attorney general investigating the inauguration fraud, literally the Trump fraud number one day one from his inauguration? And they had that lame settlement. It was like $1 million or so.

But we got to discover that there was a DC attorney general who sits in the municipality of the district of Columbia and and and wears the hat of being an attorney general, which would be the equivalent of a state attorney general like at the Latisha James. Along with that, there is a court system in district of Columbia that is independent from the federal system, even though it's a federal territory. It has to have its own court system because, you know, people live and work in District of Columbia that don't all work in the capital. You know, they work at a coffee shop.

They teach. They do what, you know, they're firemen and, you know, they live a life inside the District of Columbia. That's where they live. And so they have to be a court system for them. And the highest court for that court system, I'll call it a municipal court system because they're not a state or territorial court system is the district of Columbia Court of Appeals. It's their state Supreme Court,

their version of it. And this issue, it's very esoteric issue that the second circuit kind of wrap themselves around their axle about was, all right, we're going to find he was an employee. I mean, look, he got he got elected to a job, he gets paid to do a job, his job is being the president. He's an employee under the Westfall Act. But the second question is, as the employee was, was he within the course of scope of his duties? Let me give an example of what that means. You know, you've got a FedEx driver, an Amazon driver. It course the scope of his duties are to go from house to house and business to business delivering packages. If while doing that, he steps out of his truck as an go from house to house and business to business delivering packages. If while doing that, he steps out of his truck as an argument with the homeowner and punches

the homeowner in the face, is that within the course and scope of his duties or did the course and scope of his duties stop at the moment he opened his door, stepped out and drew up his fist. And so if he's outside this course and scope of his duties, then in this scenario, Amazon and FedEx are responsible for or liable for that driver's bad acts. If he's within the course and scope of his duties, they are. And that's a concept that you and I call in the business, respond at superior, meaning by carrier liability, holding somebody else liable. In this case, the employer for the acts of the employee, same analysis here for the president. Are we going to hold of the federal government responsible?

Therefore, the U.S. can intervene in the case, taking Trump out and enjoy sovereign immunity to avoid the defamation case. Or is he outside the corseness scope of his duties as president when he went, you know, and said all those statements denouncing E. Jean Carroll, not just saying it's a lie that it happened. That's one thing, but saying all the, including all those other things. Denny Chin appointed by Obama as on the second circuit, wrote in descent, because it was a two to one decision, that there's no way that the, that a president basically stepping out to call out an accuser and claim that the thing didn't happen and that there's no way I would have ever sexually assaulted

this woman, look at her is within the course of scope of being the president of the United States. And therefore, that I think is going to be the roadmap with how the how the other two, this was a three male panel, the other two men. And this was like, you know, one Clinton, one Obama, one Trump. So we had the fall, you know, cherry, cherry, cherry of, you know, the process here. They said he's an employee, but we're not sure about course and scope because the law of the district of Columbia, not the federal law, the local law of district of Columbia on this issue, which the parties agree applies choice of law is unclear and unsettled in

the area of respondent superior. So we need to get guidance with a certified question, as you said, Ben, to the highest court of that territory, the court of appeals of District of Columbia, come back and tell us the result. Do you think that he's within the course of scope? Give us more guidance. Brief it. Come back to the second circuit, depending upon the ruling, and we will then make the ultimate

ruling on this case. That will delay this defamation case for a long time. This is not an expedited appeal, this could be a year or more, wending its way through all of these processes that we've just outlined. But for those that think he'll never come to justice against E. Jean Carroll, E. Jean Carroll has got the civil rape claim that she's going to file in November 23rd, that's going to be completely in her favor. And that just to anticipate a question is likely not going to be covered because that rape alleged happened before he was president.

And therefore, I don't see Merrick Garland intervening and saying that there's some sort of doctrine that has the US substitute for a citizen Trump sexual crime in 1995. And even if he did, it would be outside the course in scope because it's an intentional, an intentional crime or tort is always outside the scope of employment. It's never within responding at superior. So there's under no scenario is the US going to substitute in in the civil rape case and take Trump out of that. He's going to have to sit and be a defendant in that case against E. Jean Carroll. Yeah. And there he wasn't, he wasn't the president at the time. To be with you. He was enduring a trust con for exactly.

And you know, ultimately, that's where I think Merrick Garland who thinks deep about these issues wanted to protect and preserve not the Bill Clinton example you gave, Popak, although that's on the front. I think Merrick Garland wanted to focus on, look, there's a lot of things that presidents can say when they're giving press conferences, not like a Clinton, there's a lot of things that presidents can say when they're giving press conferences at not like a Clinton, not like a Trump, but just say things.

And if they can be sued for saying whatever they're saying, as the president, there's going to be potentially a lot of lawsuits, some may be meritorious. A lot will probably be frivolous, you know, if he just mentions and bring up that, but regardless, this should be an area where we're not waving our sovereign immunity and all of those cases should be dismissed. So he was trying to protect and preserve an institution that Donald Trump unfortunately comes in as the bull in the China shop and tries to destroy the institution. And so that conflicting aspect makes Merrick Garland's appeal feel callous when in actuality the deeper broader plan is the underlying conduct at issue that E. Jean Carroll is alleging the rape. There is a day and a place in court and justice for that conduct. And did Merrick Garland know that New York was going to absolutely pass the

law when he did this? I don't think he definitely knew, but there were certainly signs, and I'm sure he's aware of it because unlike his predecessors, he reads and studies, legislation and the national trends, I think he knew that was going on anyway and that that type of law was working its way through legislatures and that E. Jean Carroll would eventually have her day in court. And so he was willing to bite the bullet to protect an institution and look bad and temporarily, but ultimately let the wheels of justice take its course. Yeah, and we've talked on this podcast really early on

about another position, principled position that Merrick Harlan's Department of Justice took, which we didn't like viscerally, but it was the right decision to make in terms of, as you said, the long view, which is when Trump had the park cleared of all the protesters right on the way into church and the same thing, just as, you know,

Marik Garland stepped forward, I was called him, just as he should be, just as Garland. Marik Garland stepped forward and took the position not for today, but for the future. That would be a terrible precedent for future presidents, not named Donald Trump, to be subjected to liability for doing something kind of akin to that,

or for doing, you know, if he had a natural fear for a safety and security and not being able to do those things in the park. We don't always agree with the decisions. But as you said at the top of the show, we know what we get with Merrick Garland is a reactivation of a principled, measured, sober, rational approach to justice. This is the reason you have to vote for Joe Biden. This is the reason why you get adults in office like this because the policies that

are enacted, you may not agree with them. I was thinking of something when you were talking about the peaceful transfer of power. I was thinking about me. And I was thinking about every four years, I would do to flee since I was a child, I would do tofully watch in an inauguration, regardless of who won the presidency, because I wanted to see the peaceful transfer of power, even if two people in their campaigns were at each other's throats, you know, in the campaigning, at the end, to see, you know, in the campaigning at the end to see, you know, these two people sitting next to each other, congratulating each other. And so the, the, the history of America progresses and continues, I wanted to see that. And I loved seeing that because it gave me tremendous confidence in the

stability of this country until Donald Trump. And you saw the interview that Hillary Clinton recently gave, where she said that too, and she said, look, when I lost the election, I was there in my capacity as a former first lady, and I sat there because I believe in the peaceful transition of power. And as I was at that speech, I genuinely wanted Trump to go out there and unite the country despite all of the issues that existed and everything. And I was hopeful. And then she goes, he gives that speech. And all I could think about with American carnage. And she's like, that was really horrifying

and she goes, then George W. Bush whispers in my ear, that's some real weird shit right there. It's a crazy shit, right? That's a crazy shit right there. You know, and she was like, yeah, and then from that day on, you know, that's why you got to believe these mega Republicans when they say things like we should abolish the VA or we want to Seriously consider taking away social security and Medicare. How about holding a constitutional convention? How scary is that they want to call a constitutional convention that we have it had since 17

whatever to to amend the Constitution. Yeah, and it's very, very, very dangerous stuff. But the wheels of justice turn still in the right direction. And this is why term still in the right direction. And this is why Popak and myself and the Midas Touch Network, why we've jumped in to this arena and why our independent media is doing what I don't really think there's much media doing, which is calling out traders as traders, exposing and calling out maga for what they are and the threat that they pose and not both sides the issues and talking about the real ramifications better at play. That's why I love doing this each weekend with you, Michael Popak. That's why I love that.

This is not just a network, right? It is a movement. And for everybody who listens and watches this, watching it is not a passive process in the legal AF and Midas Touch community. Watching this is just one of the steps of the movement where then everybody goes out into their communities and registers voters and spreads the truth and talks to people about these issues. Our message is a coaching strategy, if you will, to the audience, but then the audience, we rely on you to go out there in your communities and to spread the truth

and to call out the lies and to not let. And Popo, you mentioned this earlier, I'm not sure the percentage of these mega people out there and what they are, but they certainly represent a small portion, but a loud and vocal portion of people out there. And we've heard that term before the silent majority, which was used inappropriately in the 90s by the precursor to the current mega Republicans. But truthfully, the silent majority of people that exist in this country want to just go about their lives with normalcy. They want to have hobbies, they want to speak with friends, they want to go into grocery stores and not have their food spit on by conspiracy theorists. We want to take pandemics seriously and not lock up scientists. We want peaceful transitions of power.

We don't want insurrectionists. We don't want QAnon, weird, dangerous cult behavior out there. We want to give people their freedoms. We want to give women their freedom to choose and to make decisions over their bodily autonomy. We don't want governors like Greg Abbott and DeSantis kidnapping people and taking them abroad and having PR stunts. We just want stability over the mega dangerous stupidity. And it's really, really, really up to all

of us to spread these messages. I'm truth. If you want to support independent media like the one you're just watching right now again, head to patreon.com slash minus touch that's PAT, R-E-O-N dot com slash might as touch. Join one of the membership tiers there too. Check out store.mitustouch.com that store.mitustouch.com and get your wheels of justice t-shirts. We also have our Roe Vembre Roe Roe your vote and convict and convict 45. But definitely if you're illegal a effort and you don't yet have your wheels of justice long sleeve shirt, make sure you get that as we're headed into the fall and winter. And then finally for all of those watching this on YouTube,

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and you want to check out and watch it on YouTube, subscribe to the MidasTouch YouTube channel as well. But for now, it's been my cellist with Michael Popak, discussing the most consequential legal news of our time with a special shout-out to the Midas mighty.