Legal AF by MeidasTouch - Trump ACCIDENTALLY Makes BAD PRECEDENT Against HIMSELF

Episode Date: February 9, 2024

In the DC election interference criminal case, Trump is making BAD LAW for him in real time that will be cited and used against him in the next 60 days in his other criminal. Michael Popok of Legal AF explains how the implosion of his “I need to be impeached and convicted by congress before I can be indicted” argument will be used against him in the Mar a Lago and Georgia Interference criminal cases. Thanks to HIMS! Start your free online visit today at https://hims.com/legalaf for your personalized ED treatment options. Visit https://meidastouch.com for more! Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Learn more about your ad choices. Visit megaphone.fm/adchoices

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So Michael Popak, Legal AF, Donald Trump lost for a number of reasons at the DC court of appeals in which they found no presidential immunity for somebody for criminal conduct while he was in office. A natural extension of all the other cases that ruling stood on the shoulders of dozens of other cases, including some that had Donald Trump's name on it from 2020, which led inexorably to the decision that's right in rock solid analysis by Judge Pan, Judge Childs and Judge Henderson, that Donald Trump and no occupant of the presidency is above the law, is above judicial review, is above the application of criminal law that was established by Congress in our three co-equal

branches of government and checks and balance constitutional republic. But one of the reasons he lost, and I did a prior hot take on him losing on his structural immunity argument under the separation of powers, this one I'm going to focus on his argument that impeachment had to happen first as a prerequisite before, for instance, before, don't ask for whom the bell tolls, before he could be criminally prosecuted by an Article 3 judge or a federal judge. Donald, let me explain the position of Donald Trump. I'll try to keep a straight face while I do it.

And then I'll tell you why it lost and the analysis that was done by the three judge panel and why it matters in terms of his other arguments in other cases. Because Donald Trump, when he loses, he loses big and it reverberates and it throughout the entire, throughout all of his other criminal prosecutions, because he's not a, he's not a single prosecution defendant, right? Donald Trump likes to, what does he say? He likes to be the most, the best, the greatest. Okay, he's the most, the best, the greatest in terms of having multiple criminal prosecutions in four different jurisdictions, state and federal,

totaling over 130 different felony indictment charges. Okay, so when you have a bad ruling at the federal highest level of appellate court, DC Court of Appeals, and then the United States Supreme Court case, it has an impact on your other arguments. Because precedent that was just set by you, like February of 2024, can be used against you in cases that you have not yet argued in front of. This is a case of where a criminal defendant is literally making his own precedent against himself in real time and then being applied in real time by federal judges, state judges, trial judges,

and appellate judges. Crazy. But let me focus now on what I wanna do on this particular hot take. It's focus on the heart of his impeachment argument and then tell you how it was dismantled and then end the hot take with why it matters because of the other arguments that he's raising. The impeachment argument,

which I thought was dead on arrival because of the oral argument that John Sauer on behalf of Donald Trump had and how he got roasted, I mean just roasted by Judge Pan, he got paned by Pan. They Biden appointee. And for good reason. Their argument is not a double jeopardy argument. Even in their decision, the three judge panel said he's not quite making, Trump's not quite making a double jeopardy immunity argument, which means you can't be tried for the same crime twice. If you went through it, if a jeopardy attaches, which means you've been indicted, you went through a trial, you either got acquitted, maybe there was a mistrial on a certain count, or you got convicted or exonerated, you can't be tried again. If the crime is identical, it's not identical and the elements are different,

then you're out from under the double jeopardy immunity defense, if you will. But he didn't raise double jeopardy immunity. Even at oral argument, John Sauer said, well, it's not really double jeopardy. They're raising an impeachment judgment clause. The impeachment judgment clause quite clearly says, and this And this is what was pointed out by a literal text that an officer such as a president can be, you know, can to be removed from office and that the only penalty is removal from office. He can be tried. He can be impeached in the house, which is the equivalent of an indictment, and tried in the Senate and convicted or exonerated. But that particular provision of the impeachment judgment clause, which is Article 1, Section 3, Clause 7, only says this is only good for removal from office. Everything else, including potential

criminal prosecution, that's not banned or barred or precluded by the impeachment judgment clause. So right there, right from the text, literal text, his argument was a loser. Their argument was that in order, listen to this, by negative implication, whatever you're in the world of negative implications in constitutional analysis about key core provisions by our drafters, by our framers, our founding fathers, you're dead in constitutional argument world. If you can't, well, it doesn't say that, but by negative inference, by the time you get negative inference out,

you're sort of done. You are weekend at Bernie's at that moment, and that's what the court here has said in their ruling. But their argument is that in order for Trump to be indated and tried in an article three federal court, or by implication a state court, he first for the exact same crimes has to have gone through an impeachment process

and needed to have been convicted, convicted by the Senate. And since he wasn't convicted by the Senate, because he was already out of office and a lot of the senators said, I don't think we can actually vote to convict if he's no longer president. That's a big issue. He says, well, I wasn't convicted by the Senate,

so you can't try me now in court by a negative implication. That's not what the impeachment judgment class says. And to show you the ludicrousness and the ludicy of the argument, Judge Pan said to John Sauer, I don't really understand. Are you saying that, how about if there's no time?

How about if there's no time left on the clock to after the crime has been discovered by the president to put him through the impeachment conviction, Senate process. What if it happens like in the waning days of his administration? Look how much Donald Trump did bad in the last 10 or 12 days of his administration.

How many attorney generals he fired and went through during that period? Suppose he did it in the last minute, like five minutes before Joe Biden takes the oath of office while Donald Trump is still president. He commits a crime How are you gonna put him through an impeachment and conviction process in the remaining four minutes? Okay, so then this argument was as I said dead on arrival Sort of early on but they've really hung their hat on it in the Trump world

And so they said that look if you look at the 14th amendment I'm sorry if you look at the articleth Amendment, I'm sorry, if you look at the Article I, Section 3, Clause 7 of the U.S. Constitution, it says, judgment in cases of impeachment shall not extend further than to remove from office and disqualification to hold and enjoy any office of honor, trust or profit under the United States, but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law. It says exactly what it means. Right? They know how to write. Congress knows how to write when the framers of this provision

know how to write it. They said, it's this is only about a removal and disqualification under, if you had an office, under the laws of the United States. Here we have under the laws of the United States. Again, that's going to kill Donald Trump at the 14th Amendment, Section 3, ballot banning argument where he argues, I'm not under the laws of the United States. I am the United States. I didn't take the right oath of office for the Constitution. I'll leave that for another hot take.

But this also, this provision kills him in his argument that I can't be tried unless I'm first convicted in the Senate. Real talk. 52% of men over 40 experience some form of ED between the ages of 40 and 70. Personally, all of my friends, once they hit 40, started using something to help, whether they admitted it in the locker room or not, because it's always been a taboo topic. Thankfully, HMS is changing that by providing affordable access to ED treatment all online. HMS is changing men's healthcare by providing access to affordable and discrete sexual health treatments all from the comfort of your couch. HMS provides access to clinically proven generic alternatives to Viagra and Cialis up to 95% cheaper,

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On the negative implication thing They said the judges say on page 42 The impeachment judgment clause is focused solely on those who are convicted by the Senate following impeachment by the House. The first part of the clause limits the penalties that can be imposed by the Congress based on impeachment conviction. It's only removal from office and disqualification for future office. The second part makes clear that the limited consequences of impeachment do not immunize. that the limited consequences of impeachment do not immunize, listen to these words, do not immunize convicted officers

from criminal prosecution. That's what Donald Trump wants to do now. He wants to have immunity because he's claiming that he didn't go through an impeachment process that led to his conviction. It's the opposite of what should be happening. The party convicted shall nevertheless be liable and subject to indictment,

trial, judgment, and punishment." The panel goes on to say on page 43. In former President Trump's view, however, the word convicted in the second phrase implicitly bestows immunity on presidents who are not convicted based on a negative implication. He asserts that the impeachment judgment clause presupposes, this is a quote from the briefing and from the oral argument by Donald Trump's lawyers, that a president is not criminally liable absent a conviction in the Senate, citing to the appellant's brief,

other courts have rejected this tortured interpretation of the impeachment judgment clause. Moreover, they continue, former President Trump's interpretation runs counter to the text, structure, and purpose of the impeachment judgment clause. And as they cited from a case from the United States Supreme Court from 2017, the NLRB versus SW Gen case, quote, the force of any negative implication depends on context. Apply and it applies only when circumstances support a sensible inference that the term left out must have been meant to be excluded. To begin, this is their gut punch, the solar plexus punch

To begin, this is their gut punch, the solar plexus punch to this whole impeachment argument. To begin, former president's reliance on a negative implication is an immediate red flag. The framers of the Constitution knew how to explicitly grant criminal immunity in the Constitution. So if they wanted to give him criminal immunity or immunity from criminal prosecution, they knew how to use their quill pens

and write it in their parchment. As they did, the opinion continues to give to legislators in giving them immunity under the speech and debate clause of Article 1, Section 6. So same article. In other words, they knew in the same article how to give it to Congress. Why did they give it to the president?

Yet they chose, the opinion continues, not to include a similar provision granting immunity to the president, citing Vance, which is the Vance versus Trump case from 2020 with Thomas dissenting, Clarence Thomas dissenting, but the majority ruled that the text of the constitution explicitly addresses the privileges of some federal officials,

but it does not afford the president absolute immunity. I mean, that right there kills the entire absolute immunity argument by Donald Trump. It should have been a one-page brief in that way. Another important clue, the opinion continues, is that the clause's use of the word nevertheless, as in the party convicted shall nevertheless be liable, right, in a criminal case,

that nevertheless, according to contemporaneous, 18th century dictionaries, I love when judges, I'm a law nerd, I love when judges go to 18th century dictionaries. And they say, you know what, not withstanding met in the 18th century when this was written, it means not withstanding that, which in turns means without hindrance or obstruction from.

The impeachment judgment clause contains no words that limit criminal liability and to the contrary it uses nevertheless to ensure that liability will not be limited even after an official is impeached convicted and removed from office. The text of the impeachment judgment clause reflects its purpose. They conclude to allocate responsibility between the legislative and executive branches for holding impeached officers accountable for misconduct. So here we have yet another example. And then they finally take, just let me just end it with this, they finally take Donald Trump to task by taking one line out of an Alexander Hamilton Federalist paper that was written around the time of the Constitution

in order to promote the passage of the Constitution. Cause there were some struggles there I won't go into on this, I think it would take too long among the various states about whether they were gonna pass this Constitution and what the version of it was gonna look like. And there were a lot of people like Hamilton and Madison and Jefferson and others that were writing

Federalist Papers in order to support the analysis. If anybody saw the Broadway musical Hamilton, they know that Hamilton wrote most of the Federalist Papers even though they were supposed to equally split the load between Madison and Jefferson, but Hamilton kind of just couldn't stop writing and he wrote most of them. And what, and, and Donald Trump loves this one line in which in one sentence, Alexander Hamilton wrote, the president of the United States would be liable to be impeached, tried it upon conviction of treason, bribery or other high crimes or misdemeanors removed from office and would afterwards be liable to prosecution and punishment. They try to argue that that semicolon means

that he has, there has to be a president, a Senate conviction first before he gets to come out to article three judges for indictment and conviction. And they coat. They totally reject that. They say that the Trump, you know, miss, uh, myopically focuses on the word afterwards and suggests that a president is not liable to prosecution and punishment until after he's been impeached and convicted. But we think the more significant word in Hamilton's statement is liable, which means subject to. Hamilton specifies that a president would be subject to impeachment, trial and conviction and removal, and afterwards would be subject to prosecution and punishment without regard to the verdict in the impeachment proceeding. Moreover, in the very next sentence in the same essay by Hamilton, they point

out, just a side note, Trump loves to, to quote half comments and half statements and then leave out the very next sentence. That's a frequent problem, a defect in Donald Trump's lawyers and their arguments. They say moreover in the very next sentence of the same essay Donald Trump relies on, Hamilton stresses that the president must be unlike the king of Great Britain, who was sacred and inviolable, invaluable. Sorry. The federalist number 69, it strains credulity, they conclude, that Hamilton would have endorsed a reading of the impeachment judgment clause

that shields presidents from all criminal accountability unless they are first impeached and convicted by Congress. This is an argument now that Donald Trump raises time and time again in state courts where he's arguing supremacy clause or impeachment or immunity in the Georgia election interference case, in the DC election interference case here, and in the Mar-a-Lago case, which will come up.

And the precedent that's being set now by the DC Court of Appeals up to the United States Supreme Court, it's gonna turn out to be the ruin of Donald Trump in his legal arguments. Now, whenever he tries to argue that, well, the impeachment clause, here's the argument I have on the impeachment clause.

While it might have sounded barely passing the straight face test when it was made in briefing and on oral argument, it's now dead. The DC court of appeals killed it with this methodical breakdown and attack and criticism of his argument. Forevermore reflected in 57 pages of a federal court decision with that's Trump's name on it,

which will now be cited against Donald Trump down by Jack Smith in the Mar-a-Lago criminal prosecution case by Fawty T. Willis in the Georgia election interference case. And anywhere else that Donald Trump tries to raise the argument of impeachment before indictment and conviction as a legal principle will continue to follow. Got a big oral argument coming up on February the eighth in front of the United States Supreme

Court will get the oral, the oral transcript of it will get the oral recording of it, report on it one place only legal AF on the Midas Touch Network right here. And on Wednesdays and Saturdays during our Legal AF podcast at 8 p.m. Eastern time on YouTube and then on audio podcast platforms of your choice. So, rest assured, I'm gonna follow it. I'll come back to you on hot takes just like this one. If you like what I'm doing, leave me a thumbs up.

Literally leave a comment, helps with the algorithm, helps keep us on the air. So until my next hot take, till my next legal AF, this is Michael Popak reporting. Hey, Midas Mighty, love this report? Continue the conversation by following us on Instagram, at MidasTouch, to keep up with the most important news of the day. What are you waiting for? Follow us now.