Legal AF by MeidasTouch - Trump BRACES For CRIMINAL VERDICT As Defense BLOWS IT

Episode Date: May 23, 2024

Michael Popok and Karen Friedman Agnifilo are back for the Midweek edition of the top-rated Legal AF podcast. On this episode, the anchors discuss and debate: (1) the jury instructions to be used at the Trump Trial and how they favor the prosecution as the jury gets the case in deliberation next week; (2) whether the assertion of executive privilege by President Joe Biden saves Attorney General Merrick Garland from a contempt charge by MAGA Congress; (3) whether Judge Cannon will dismiss the case against Trump’s co-conspirator Walt Nauta, and (4) and another jan6 and Christian flag being flown after Sam Alito’s summer house has been located, so much more at the intersection of law and politics. Join the Legal AF Patreon: https://Patreon.com/LegalAF Thanks to our sponsors: Liquid IV: Get 20% off when you go to https://Liquid-IV.com and use code LEGALAF at checkout! Lume: Control Body Odor ANYWHERE with @lumedeodorant and get 15% off with promo code LEGALAF at LumeDeodorant.com! #lumepod One Skin: Get started today at https://OneSkin.co and receive 15% Off using code: LEGALAF Lomi: Visit https://Lomi.com/LEGALAF and use code LEGALAF and checkout to save $50! 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 Coalition of the Sane: https://podcasts.apple.com/us/podcast/coalition-of-the-sane/id1741663279 Learn more about your ad choices. Visit megaphone.fm/adchoices

It's time for the midweek edition of Legal AF. And boy do we have a lot to talk about. We're going to talk about the Trump trial. What else? It's not over. We've got jury charges. We've got Donald Trump violating his gag order, going after Matt Colangelo, who did the opening statement and used to work in the Department of Justice and was now a special prosecutor in the Manhattan DA's office.

We've got more Judge Marchand being upset with lawyers, this time, Emile Beauvais, the lawyer for Donald Trump about his ridiculous request to have advice of counsel or presence of counsel or some sort of defense charged to the jury. In fact, so far for what we know from those that are privy to the charges, looks like it's going well for the prosecution in terms of the second crime issue necessary for a felony. We'll talk about that today. Then we'll pick up again with the Oversight Committee, the Judiciary Committee, and their attempt at finding Merrick Garland in contempt related to Joe Biden's voluntary

testimony that he gave to Robert Hurd, the special counsel, and the assertion of executive privilege. We'll talk through that. And then Mar-a-Lago's back from the dead, even though that trial looks like it's definitely not going to be happening before the election. Hearings going on today as well. Unsealing of evidence and transcripts we didn't know existed involving the original search warrants and post-search warrant issues that were before Barrel Howell. Remember when we had a good judge in charge of Mar-a-Lago, Barrel Howell, then the chief judge of the DC Circuit Court, responsible at the time for all things grand jury. And she's the one that stripped Evan Corcoran, the lawyer for Donald Trump at the time, stripped him of or stripped Donald Trump of his attorney client privilege and made Evan

Corcoran testify. Well, we got some new revelations related to that, new revelations about Walt Nauta and a screaming match. Yes, this apparently is what happens with things involving Donald Trump or at least Walt Nauta. A screaming match broke out in front of Judge Cannon involving Walt Nauta's lawyer, Stan Woodward, and that now infamous meeting that he held in Washington with Jay Bratt and others on the special counsel's team about whether he was extorted or not in an attempt to have Walt Nauta cut a deal with the prosecutors.

We'll talk about it with my favorite former prosecutor, Karen Friedman-Eknit-Fillow. Hi, Karen. Thanks for dinner last night. It was so fun, Popok. You've gotten so much mileage out of this bet. We can't stop talking about it. All right. So here it is. Popok paid off his bet. Everybody went to Nobu. I brought Sydney with us, who was one of our production assistants. We had a grand all time. It was about six inches from Karen's apartment. It was about literally, I think she lived over the restaurant, at least

that's what it looked like. And we had a great time. It was fun to get together in person. Thank you so much. Yeah, we learned a lot about Sydney, because you know, really, she's one of our producers along with, with, with Jeremy and salty and all of that. And people have seen pictures on our Instagram and Twitter x about our wedding last week that we attended for Ben. And we got to spend a lot of time with Jeremy and Salton. And we posted some photos about that. I posted a photo about Sydney. And as we meet other producers,

we will post appropriate photos. So we got that going on. You and I did a couple of rounds of Trump on trial updates to give Ben a little mini moon. He took a little mini, you know, that's all he can do. That's all we let him do. Little mini honeymoons. Mini honeymoon that he still dropped recordings. I couldn't believe it. We were trying to force

him to stop. He can't. He just can't. It's an addiction. We'll have to do an intervention at some point. Democracy intervention. But we really appreciate what Ben does. And we all do it. Listen, I've dragged my equipment, 16 pounds of my equipment around on every holiday I've ever taken since I joined the network. And you have too. And do things from all sorts of places that people don't think are podcast locations, but they become that way. Let's talk about Trump on trial. So jury charge conference going on. To me, it looks like the prosecution's doing great. There's one in particular I want to kick off with, which is the second crime issue, because this looks like a big win for the prosecution. And I want to get your opinion about it. So just to keep everybody up to speed, Trump's violating the gag

order again, and the judge will have to deal with that. And then during this charge conference, which is to get straight and work it out with the judge what the actual jury instructions are going to be, the jury charges are going to be before they're charged. And it's really important. You said yesterday, I recall, during our wrap, or one of them, you said, and I've mentioned it before too, it's one of the biggest grounds for reversible error around,

which is to get your jury charges wrong. That's why, even when the judge does it, and reads them, and you've approved them, everybody that's a lawyer that's involved is like reading with a finger along to make sure there isn't a mistake, a comma out of place, a word out of place. And I've been there, I'm sure you have too,

when you say, oh, judge, you missed a word there, gotta go back, you left out don't, or no out of place. And I've been there, I'm sure you have too. And you say, oh, Judge, you missed the word there. Got to go back. You left out don't or no or whatever. And because it's really important to get that charge right. And so they're battling it over now. And then the second crime issue is, and we've talked about this at length, but I think it deserves another pass here, is that the business record fraud at the heart of the case, which is the entry in the books and records of the Trump Organization of the payment ultimately to Stormy Daniels,

which got recorded instead as a payment for legal services rendered to Michael Cohen, who then used it to repay himself for having laid out the money for Donald Trump. This is so the prosecution argument goes. And then it got recorded. And then that got taken as a business deduction because that was an expense on their books and records

instead of being a direct payment for hush money and election interference and all that. That's crime one. Now that's all that we were talking about, frankly, I doubt your old office would have brought crime one misdemeanor only in the state of New York, even though there are thousands and thousands of prosecutions of that over the life history of that statute and that provision. And it's not, they're not just picking on Trump, but it became really interesting when

a second crime in furtherance of a second crime was added on, because that ratchets it up to a Class E felony in New York. And the question we always had was, and I'll just run through the checklist, this is like an FAQ, right? One, does that second crime have to be charged? No. Does it have to be indicted?

No. And what does the second charge have to be? And now the judge has solved that problem. Does the jury have to agree what the crime that's being covered up is? And do they have to have not just consensus, but unanimity about the second crime? The answer is no. So, and I want to hear from you how they're going to present this one. So seven, let's say there's 12 jurors.

Seven out of the 12 jurors could think it's a cover-up related to tax fraud. And five could think it's a cover-up related to election interference. And he's convicted. They does not have to be unanimity. Let's start there. What's your opinion about it and how do you think that helps or hinders the prosecution or the defense? And what do you tell?

I mean, we've been following this closely. What have they been told about tax fraud and or election fraud in co-aid in order to make that determination as a jury? So I remember when this case was first brought, that's this is what the question that everyone's asked, and I've been talking to reporters, other lawyers on TV, et cetera, and everyone is asking this exact crime, this exact question about this second crime. And I was describing it back then and still now as it reminds me of burglary. And I know I've said this before, but I want to say it again because it turns out this is exactly how the judge is doing it, exactly how I've been describing it all along, where people,

really, really smart lawyers, smarter than me actually, were saying, no, it can't be, that can't possibly be the case. And so every once in a while, I actually know something from my experience, because I've been doing this a long time, and so I was very pleased to see that I didn't get that wrong because it made me concerned because there are people who thought this isn't possible. But this is exactly how it's always done. And let me explain what it is. That it's it's it's a general criminal intent. It's not I have the intention to go out and and I'm going to the elements of a

particular crime, I'm going to make sure that I meet each and every one of those elements. It's a general criminal intent, meaning I'm going to commit a crime. I'm not doing this in a way that is above board, that is legal. I'm hiding it. I am doing everything I can. It's like money laundering almost, right? But this is like you're laundering, you know, this isn't money laundering,, it's like money laundering almost, right? But this is like you're laundering, this isn't money laundering, but it's similar to that. You're trying to make it look like something that it isn't so that it can't be traced back to you.

And the burglary example is, burglary is a trespass misdemeanor, which is you enter or remain unlawfully somewhere, but it becomes a felony, burglary. It's just a misdemeanor trespass plus. And the plus is the intention to commit a crime therein. And that's what I have experienced prosecuting. I've prosecuted hundreds, if not thousands, of burglaries

on the course of my career. And you never specify what the crime therein is, because you don't really know half the time. Sometimes they get caught in the act before they've done anything. Sometimes you do know what the crime is. Sometimes it's sexual assault or it's theft or it's some other thing. And sometimes you can infer criminal intent through surrounding circumstances because you're not in the brain of the person. And so if they get caught as they walk in the door

before they've done anything, you look at the surrounding circumstances to try to figure out what is it that they have the intention to do. And there's another possibility. You have a guy who's a burglar walking up and down a hall, jiggling doorknobs. He doesn't know what crime he's going to commit once he gets in.

It depends on what's in there. He just knows he's going to go in there and see whatever it is. And if he gets caught, the minute he steps in the door without having done anything and without having a specific intent of which crime he's going to commit, he gets charged with burglary too because he was going to commit a crime therein. And so there is no difference between that kind of intent and this kind of intent. This is false business records, meaning you have entered or you have put some sort of entry or omission or you have caused the entry or omission of false information in the business

records of an enterprise, okay, with an unlawful intent. And that is falsification of business records. And the unlawful intent there means you didn't make a mistake. So you intentionally caused false information. You didn't just get it wrong. And that's a misdemeanor crime. And what makes it a felony is if you are in furtherance of another crime, like you're doing this to either cause or aid the commission of some other crime or to conceal another crime, et cetera.

And so here, that is what the jury is going to be charged in this general criminal intent. Now the prosecution is going to argue on summation that this other crime is going to be election violations because donating this this hundred this this all this money that they this $420,000 that they structured over 12 months to reimburse Michael Cohen for legal fees It was a reimbursement not legal fees the reimbursement But they called it legal fees. That's why it was false the reason they structured it like that was it wasn't a reimbursement, but they called it legal fees. That's why it was false. The reason they structured it like that was it wasn't a reimbursement.

This was in order to in order to not have to claim this hundred and thirty thousand dollar payment to Stormy Daniels in they didn't have to claim it in the to the Federal Election Commission, which they would normally have to do because it's an in-kind campaign donation. And so that's going to be, it could be federal, state, and the other is the tax crime, income tax. You know, they made it look like income tax so that even though it wasn't income to Michael Cohen, so that he would be made whole, plus he'd get a bonus in order to get paid back. So that's how they did it.

The jury charge, the judge is doing it exactly how I know this to be, how we do it in New York and how it's done in every other case. So I guess it's a win for the prosecution in the sense that the judge is doing, following the law and giving them what it should be. But that was sort of the main decision in the jury charge conference that the judge is going to be charging the jury next week. Yeah, the reason I see it as even though they're

following the law, the reason I see it as a win is because if he had done the alternative, which would have been against the law and forced there to be a unanimous decision on either election interference or tax fraud, that would have also, as you mentioned, would have basically turned the law on its head about what the general intent was. It gives this way the jury as a little bit of a Chinese menu, a little bit of a column A and column B. The jurors don't have to, and they'll have to be instructed about that. They can't just be left to their own devices. They'll have to be told when you go back, it's okay. Because they can't be left under the

impression that we've got to figure out the second crime. Because that'll just, A, it's wrong, and B, it'll waste a lot of time. They have to be told in the instruction, you don't have to reach a unanimous decision, just that there was a second the instruction, you don't have to reach a unanimous decision, just that there was a second crime, and you can fill in the blank about what you think that second crime was based on the evidence. I mean, it has to adhere to the evidence and all of that. So I like that.

What'd you think about Emily, Emily, Emile Beauvais' attempt once again to have some sort of advice of counsel or presence of counsel. And the argument there is, well, Donald Trump just entered into these NDAs, these non-disclosure agreements and these arrangements with Karen McDougall and with Stormy Daniels because lawyers told them to do it. And Emile said, oh yeah, David Pecker testified, Your Honor. He said that David Pecker said that the arrangement with Karen McDougal

was bulletproof. And that implied lawyers were involved, Judge. Let us instruct the jury about that. Why don't you tell the audience about what is a advice or presence of counsel as an instruction, what it would do for the defense if they were getting it, and then, of course, they're not getting it. Yeah, so in advance of counsel, first of all,

as this, what Salty is putting up, this graphic shows, the judge was not happy that Emile Bove raised this again. This has been litigated before. Judge says, I've litigated this before. I'm not changing my mind. But Emile Bove, I think was tryingvais, I think, was trying to preserve the record because, look, jury charge is one of the number one ways that a case gets reversed. So the jury charge, you have to get it right, you have to preserve things. What good is a conviction if it gets reversed? What that defense is, it's like

an affirmative defense. Basically, what it is, is it says, if you give your lawyer all the information they need to give you advice and they give you advice and it turns out they were wrong and you relied on that advice in good faith you can assert that but but you end up committing a crime incidentally you can say look I relied on my lawyer for this advice it was all done in good faith we just got it wrong that That would be an affirmative defense. Now, what it does is if you assert this affirmative defense, meaning you now have the burden to prove this defense by the preponderance of the evidence, which is a lower standard than beyond a reasonable doubt, which is what the prosecution has to do. What happens is it will then trigger a waiver of the attorney-client privilege between you and that lawyer, the one that you have the advice of counsel with.

That lawyer can't represent you because there'll be a witness at the trial. And the prosecution then gets access to all communications notes, etc. that you normally wouldn't get between the client and the attorney because the advice of counsel defense will waive that privilege. And since they didn't assert it in time here, they didn't waive the privilege. And when they finally tried to do it and they litigated it, correct me if I'm wrong, I believe the judge found not that it just wasn't timely, but that it just wasn't appropriate here. And the judge then said, rule, there is no advice of counsel defense here. So you can't argue that. And I'm not going

to charge the jury of that. And what facts were developed during the trial that this is the thing. You can't just have sort of free-floating jury instructions that don't what facts were developed during the trial that this is the thing you can't just have sort of free floating jury instructions that don't match the facts that are because that's worse, right? Then you got a jury who's, you know, talk about idle hands or a devil's play thing, jury instructions that don't match facts are deadly. Oh, that's interesting. Let's use that. But there weren't a fact developed by a witness. That's okay. I like that particular. I like

Trump. Let's let's use that. So what am I wrong? Were there any facts? There could be a judge didn't allow the defense. Correct. So I get that Emil Boves, but the judge was like, you were late. And I denied it. I denied it anyway. Well, I think what they would say, I guess the facts, they would argue I'm trying to put myself in the loop. Are already in evidence? They'll say, look, Michael Cohen was my personal lawyer.

I was relying on him to tell me how to do this. So I mean, I suppose. Yeah. Except some of the reporting is they were focused on Pecker saying bulletproof, but maybe they were relying on Michael. You know, this has always been a weird case for conservative traditional lawyers like you and me and Ben because you had, you know, some people were saying like in the chat the other day

when you and I were doing it, like, how can you and Bob Costello testify against Michael Cohen when he was his lawyer? Or at least Michael Cohen thought he was his lawyer, or he thought he was his lawyer. Like, where is the privilege? So many of Trump's cases are about stripping privilege away and people testifying over it.

I don't want people to come away with the impression that this is normal. I mean, I've been doing this for 32 years. I've never had the privilege stripped away from me. And I know that it is, you know, for me, sacrosanct and ironclad. And I'm very careful about preserving the privilege that's held by the client. But here in the cases involving Trump,

Evan Corcoran, Donald Trump stripped of the attorney-client privilege with Evan Corcoran, crime, fraud, and session. Michael Cohen, Bob Costello testifying about his client, Michael Cohen. It'd make people think they shouldn't go talk to lawyers confidentially because they'll end up, you know, in some sort of criminal case. Such a good point. It really is so abnormal and so strange.

And everything that they do is so abnormal, you know, even being held in contempt 10 times. I've never had a situation where anyone was held in contempt in any one of my cases as a prosecutor or a defense attorney. I only know of one case that I was supervising where there was a contempt proceeding. That's it. I mean, most judges have never even done that. And yet here, 10 different times he was held in contempt in a criminal case. I mean, it's just shocking. A gag order, same thing. There aren't that many gag orders imposed in many cases You don't have threats to witnesses or to prosecutors or to prosecutors families or you know All that kind of stuff same thing with asking for a recusal motion for a judge. I've never I don't think i've ever asked for that

Let me ask you something i'm just thinking about this out loud One of donald trump's goals has been to undermine one of our pillars of our society. Well, two. Right? The government, the prosecutors, the investigators, the court system, destabilize them, devalue them, right? Leave Karen back up if someone asks you something. It's okay. I was just shifting in my seat and Salty didn't want to... Oh, I'm sorry. I was getting vertigo from how many times we were cutting away from Karen. Okay. Here's the question. Why won't others who aren't named Donald Trump now think it's appropriate lawyers to to yell at their judges to act with a lack of decorum and respect for the system to to attack their prosecutors.

Why won't there or do you think there will be more acting out now in courts that courts have to worry about with all the rhetoric for Donald Trump? Or do you think this is an anomalous outlier, you know, sue a generous because it's Donald Trump? You know, I have to say I've noticed a general lack of civility and decorum that Donald Trump has brought forth. There are people who will speak online, for example, in ways that I don't think they would ever normally speak. You saw in Congress today or yesterday, Marjorie Taylor Greene and another representative, I think her last name is Crockett, got into you know just a screaming match and and shouting match where their AOC had to jump in and and there's like name-calling and just really really unprofessional and same thing with

the Mar-a-Lago case that we're going to talk about in a little while, there was shouting in court. I mean, it's just not the way we've been raised, if you will, you know, just as a civil society, just the way Trump talks, the way Trump threatens people, the way Trump, you know, calls everybody names, everybody has some derogatory nickname and somehow other, it's almost like it gives permission for people to behave a certain way in all areas. It's not just in court, but yeah, I do think,

I think he, look, the president is a leader, you set the tone, you, it's like any organization, the leader sets the tone, right, of what's acceptable, what's not acceptable, what the, what the, um, culture will be, et cetera. And Donald Trump has definitely, um, I think really changed our society, uh, in a way that is not for the better. And it's certainly not, um, not a good thing. And I think, I,

I hope it doesn't bleed into the court system beyond him. I think I agree with you. I think that social contract has been torn and thrown into tatters at our feet and it has given license and permission to people to act inappropriately, to be at each other, to be at each our neighbor's throats, if you will. And I think it is bleeding over and crossing over into the court system. And I think the courts, if they haven't already scheduled judge camp and court personnel camp on how to handle it,

it's sort of like in the airlines. You know what the airlines have been seeing post COVID in the amount of abuse and violence that's happening on the aircrafts the way that had never been before COVID. They have had to retrain their personnel about how to deal with it. And it's not going that toothpaste isn't going back into the tube. I don't think this is going back in the tube and the federal courts are going to have to have a strong hand here in the future as people are going to actually

think, well, Trump did it. I mean, like you said, tone from the top. That seems okay. Well, we're going to talk about more screaming that happens in a Trump case in Mar-a-Lago today. And we'll talk about the, um, what's going on with MAGA who can't pass a bill, who needs Hakeem Jeffries, um, the minority leader to get anything done. And when they're not doing that, they're doing things like, oh, Hunter Biden lied. I mean, I did not vote for

Hunter Biden. A, I don't think he lied. And B, I did not vote for him. He's a family member at best. But anyway, that and they're trying to hold in contempt our attorney general, Joe Biden's attorney general. We're going to talk about all of that and so much more, but now it's one of my favorite parts of the show. It's a word from our sponsors. We've all had embarrassing body odor moments. Fortunately, Lume, whole body deodorant is making it so none of us ever have to worry about BO again.

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when you go to liquidiv.com and use code LEGALAF at checkout. That's 20% off your first order when you shop better hydration today using promo code LegalAF at liquidiv.com. And we're back. All right, let's roll up our sleeves here and get back to Congress for a moment

at the intersection of law and politics. We're right there. And I'll frame it and turn it over to you. So you've got Merrick Garland doing his job. He and the Office of Legal Counsel, which is the White House internal law firm for the president, if you will, gives advice to the president as president, not Joe Biden's personal lawyers, but the president as president. They have opined that it's enough that the public got the actual transcript

of the two days of voluntary interviews that Joe Biden gave about his boxes and how many filing cabinets he owned and who made the oat tag and who wrote on the side of the boxes and all this other stuff about the minutia of his packing after he was no longer vice president and wasn't president yet. It matters and frankly if Trump hadn't been criminally prosecuted for doing not the same thing at Morillago at all, I doubt this would have even taken on a life of its own. But the AmeriCarlin had like bent over backwards to appoint a special counsel We'll leave that for another debate. That was a mistake The main line main justice could have handled that just as easily

Then there's like, you know a two-day transcript boring transcript of the interview released you can find it online Roberthurst 330 page report about his findings and his decision not to charge Joe Biden with a crime released, you could read that, but you don't need the audio of Joe Biden giving an interview. I mean, what we do for a living, Karen, me, Ben, mainly is on the papers.

When we file about really important legal matters, some of the most important legal matters to that company or person that we represent, sometimes involving their liberty, it's not on the papers. It's transcripts that are read by the judge. It's not like the judge gets the transcript from a deposition or something in one of my cases and says, you know, it'd be interesting. Can you send me the video? They don't need that. and says, you know what would be interesting? Can you send me the video? Hey, they don't need that. And so the only reason of course,

that MAGA wants the audio, is because Trump wants the audio in order for the RNC and the rest to cut, slice and dice it into some sort of, you know, deep fake commercial for Donald Trump and which Joe Biden, I don't know, stumbled over what yogurt flavor he had earlier in the morning and they make a big deal out of it. They have the transcript and that's all they really need. And so the White House Counsel's Office and Merrick

Garland ultimately recommended to the President of the United States that he assert executive privilege because it would put a chilling effect on future investigations, high-profile investigations, if all this stuff came out to the other branch of government, in this case Congress. And remember Congress doesn't just get to do whatever investigation it wants to do, it has to be tied to a legislative function or a fact-finding function around something that's relevant to Congress's powers. So it can't be impeachment of Joe Biden because this set of acts happened after he stopped being vice president. He wasn't president. So it's not that. And so they don't like the fact that Merrick Garland isn't gonna turn it over

and they wanna find him in contempt. What do you think about the Joe Biden's assertion of executive privilege here? Was it right? Was it wrong? And what do you think MAGA does about it in this performative thing we're watching where they're just trying to take a pound of flesh

out of Merrick Garland? Yeah, I mean, it's hard to say what's right and what's wrong when the decision to appoint a special counsel in the first place was wrong. Joe Biden didn't have to sit for this interview. He didn't have to agree to be recorded. I mean, you know, so many things. Joe Biden is just such a decent person. And he's such a just nice guy who is desperately trying to play by the rules,

but the rules don't apply anymore. The decorum, the norms, what we were just talking about doesn't apply anymore. What MAGA does, they don't act the way anyone can resemble what normal was or what is civil was. And the reason I say that is because in the olden days, you know, a good politician like Joe Biden and Merrick Garland would say, you know what? I think it's, I'm going to appoint someone who's a Republican to investigate me because I'm so confident that I didn't do anything wrong. I have nothing to hide.

And it shouldn't matter if you're a Democrat or a Republican. If you're a legitimate investigator, you will find that. And the reason I'm going to appoint a Republican is that so nobody can call into question the integrity of the investigation, that even they will see that this is the right thing. And they look, they did the same thing with Hunter Biden, right? They left in a Republican special counsel to investigate Hunter Biden for the exact same reason, hoping that it would somehow give credence to the findings.

Well, when I say that they're playing by a different set of rules, they're playing by old set of rules where people were human beings who got along with one another and we cared about things like the truth and we cared about things like justice and we cared about things like following the facts wherever they lead without fear or favor. MAGA doesn't do that. And so you don't inoculate your decision makingmaking because you appointed someone who's on their side. It just doesn't work.

And so that was a mistake to begin with. But Joe Biden's a decent guy. He does that. He says, I'll cooperate. I'll sit for an investigation. I'll even allow it to be recorded. And I think that was a mistake, right? Because what happens, her turns around and writes this ridiculous report

that added all sorts of information that was unnecessary for the report and was just really just taking potshots, unnecessary potshots at Biden and taking into consideration things that I don't think is appropriate to take into consideration, like jury nullification because he's an old guy.

I mean, come on. You know, if that's not a total, if that's not just a total by the MAGA playbook to give them something to work with, I don't know what is. But so then you get to the they release these transcripts. So therefore, they have everything they need to conduct a hearing. If you ever file an appeal in court, what do they look at? They look at transcripts, the appellate courts. What does the Supreme Court look at?

They look at transcripts from the proceedings below. What are transcripts? They're the typed, written document, documentary transcription of whatever was said. There's no video that anyone watches. There's no audio that anyone listens to. You review the transcripts. That's why you do things during trials like let the record reflect that the witness is raising their hands up in the air and waving them at the defendant's table or, you know, whatever you, because otherwise you won't see any of that while, when you're reading the record, when you're reading the appellate record. And so you have to make a record of everything. And so they released that. So if they were really looking to provide oversight or doing something legitimate, they could look at the transcription and have what they need, but that's not the way it is. What they want is they want to be able to get the recording and take little pieces of

it and put them into campaign ads against Joe Biden, take them out of context, et cetera. And that's just inappropriate. And that's not right. And that's not what this is for. And so I think the Office of Legal Counsel, I think the most important thing you said is what the OLC is. They don't represent the president,

they represent the presidency in a way, right? They don't represent Joe Biden as Joe Biden, they represent the office of the president of the United States. And their job is to protect and preserve that, and preserve that no matter who is sitting there, right? The Office of Legal Counsel, there are people who are there from administration to administration.

It's a nonpartisan office that is there to work for the presidency. So I just think that it's just really outrageous that they want this. And I think it's just all political theater. And I do think the Office of Legal Counsel was 100% right in counseling, Joe Biden and the presidency and Merrick Garland in this way. Yeah, the end result is going to be nothing. Because Congress

can't go out to court and prosecute Merrick Garland for contempt. They can make a finding, and then they can ask nicely the Department of Justice, which has just recommended at the highest level that executive privilege be asserted, which it was, appropriately, by a president in office, about things that its property was served executive privilege about, especially things that

preserve the co-equal status of the three branches of government, executive branch, judiciary, and the legislative. And you can't have the legislative, you know, sort of peering in to the prosecutor's underlying mental impressions and paperwork, or in this case, an audio version of something that's already been released in hard copy transcript. It's just unnecessary. And if that were to happen, nobody would want to give voluntary cooperation

because then, you know, it's going to happen. Same thing happened with the video tapes of all the security cameras for Jan 6th. They get sent to the MAGA's favorite right-wing commentator or news organization, and it shows up in some special. And we can't trust them to be honorable with the use of it. You know, they'll do a whole best of Joe Biden stuttering, you know, because he's a lifelong stutterer

and run it as a commercial and a campaign ad. It's just not, it's just unsavory, it's inappropriate. And he did the right thing. And so the Department of Justice is never gonna take up that recommendation, then they're never gonna bring, based on the assertion, proper assertion of executive privilege, they can't bring a prosecution against Merrick Garland even if they wanted to.

I mean, their own internal DOJ manual says that, and their own office of White House counsel says that. There's no criminal intent, especially when he's been told by the President of the United States, I am asserting executive privilege. You are not to release that. That's sort of the end of it.

You don't litigate over that issue in a court of law, but you know, it doesn't matter to MAGA. None of this matters. Just to be clear, they're not doing it because they think there's a legitimate basis to find Merrick Garland in contempt or Secretary Mayorkas impeach him for what's going on down at the border that's been brewing for the last 20 years, or, or, or impeaching Joe Biden, or because Biden, or why aren't they? Why aren't they holding hearings on Sam Alito's false flag upside down? You know, why aren't, why aren't they like holding hearings on like real, you know, issues or why? Yeah, go ahead. Because they're too busy writing letters to Fonny Willis and sticking their big fat noses into talking about law and

politics. Sticking their big fat noses where it doesn't belong, which is in state level prosecutions of people that happen to have one time held elected office. You know, why does Jim, why does Jim Jordan or Jim the Jims or Jim Comer, why do they get to even have a dialogue with, why do they even have to have a dialogue with prosecutors about them doing their job under their state penal codes? It's just, but you know, they get mileage out of it.

They get votes, they get, they get, holds their party together. They get money. We know why Trump tells them to do it. No, that's why that's why we're watching it. So anyway, we're going to talk about more screaming, more unsavory more unprofessional down at Mar-a-Lago with an update there. But first, let's have another word from our sponsors. Many people are surprised to find out that I'm 57, almost 58, and that I'm a grandmother. That's why I love this product One Skin.

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and use the promo code LegalAF to get $50 off your Lomi. That's $50 off when you head to lomi.com slash legal AF and use promo code legal AF at checkout. Thank you Lomi for sponsoring this episode. All right, we're back. Rapidly making progress. It's a very efficient episode. Let's talk about, what have you heard so far about Mar-a-Lago?

I want you to lead off on it. Yeah, like there's just a hearing going on, I think two hearings going on today and that has turned into a screaming match, apparently a shouting match between between a prosecutor and Walt Nata's attorney, Stan Woodward. They had a hearing in Fort Pierce, Florida today, which is for Walt Nata. And the argument was basically going over a disagreement that they've had, this prosecutor and this, the prosecutor's name is Jay Bratt, and now a defense attorney is Stanley Woodward. And there was a meeting in August of 2022 between the two lawyers,

and Stan Woodward has claimed in court that Bratt tried to pressure him into convincing Walt Natta to cooperate against Trump by threatening him. And basically by threatening him saying, oh, you won't get a judgeship as a result. And then Walt Natta, and this is what the hearing was supposed to be about, was he claims

he was criminally charged as retaliation for not cooperating against Donald Trump. And Woodard said, look, he was recommended, he claims for a judgeship and that there was a folder about him on the table. And he basically said that Bratt referenced that judgeship recommendation during this meeting and he basically said there was an implication that he had to convince Walt Natta to cooperate with the investigation.

Otherwise there would be consequences to his judgeship. That's what he's basically saying. There was a defense attorney, David Harbach today, a prosecutor, sorry, David Harbach today, who accused Woodward of engaging in gamesmanship. He called it a garbage argument about the meeting. He said, Mr. Woodward's story of what happened is fantasy. And I guess the prosecutor was banging his hand on the lectern in front of him saying it didn't happen.

I don't know. It just, it doesn't feel like any court that I know that this is going on in. But you know, this hearing happened despite the fact that Judge Cannon has indefinitely delayed this trial. She hasn't even set a trial date, which is ridiculous. And that's in addition to so much more that is coming out about this case. Now, at this hearing, apparently it just became this screaming match where the judge had to get involved and tell everyone to calm down.

And they were going back and forth. And then Woodward said, I'll testify under oath about what happened at the meeting. I mean, it's about the lawyers. It's not about Nauda and the cooperation. And it's about the lawyers. It's not about NADA and the cooperation. And it's interesting because some people think that the selective prosecution, which is what the hearing was supposed to be about,

they think that because NADA is so low down the totem pole and they gave them a chance to cooperate before prosecution that this was somehow retaliation for that. But it's such a common tactic for prosecutors to basically reach out to people who they would normally cooperate. It's like, look, I've investigated a crime.

I've identified these 10 people who committed the crime. And I'm going to reach out to some of them if I think that they are people I would be willing to make a deal with and let them flip and make them part of my case instead of a defendant, especially if they're a much lower level on the totem pole in all of this. No one thinks that Walt Natter would have stolen or moved or possessed or had anything to do with classified documents but for Donald Trump.

He's just Donald Trump's pawn in this. And so it makes sense why they would want to cooperate him. And it also makes sense why they would reach out before indictment and give him that opportunity because, you know, there's a big difference between being convicted versus cooperation. So, so it's not selective prosecution, any other judge would find that. I don't know what Judge Cannon is going to do, but that's, you know, that's, I think that was one of the big things that happened at the hearing today.

Yeah, I think you covered that well. We got some new sort of late breaking news, the Sam Alito flying inappropriate flags over houses has a new example. Sam Alito, who is a fellow New Jersey person like me used to be on the New Jersey Supreme Court, apparently like many people in New Jersey summers in Long Beach Island, New Jersey, where some of my friends actually have a house, we call it LBI for those that don't know the area. And apparently they found a flag that we just put up there. That is what's called an appeal to heaven flag there, also known as the pine tree flag that was carried by rioters at the Capitol on Jan 6th. It's a symbol of sub there's one there.

There's a symbol of support for Donald Trump and stop the steal. It also encourages more Christian values in government. Just the type of flag you want flying by a United States Supreme Court justice as he's hearing matters about Jan 6th and the separation of church and state. Look, we all know that Sam Milito is in favor of Christian values being injected into everything. We all know where his position is. He's been quite public in his rulings about what he believes is the proper role of religion in politics and in our government. He talks about it all the time when he's off for summer

vacation at various Catholic universities, including two summers ago for Notre Dame, bragging about the Dobbs decision in which he wrote, he wrote away a woman's right to choose after 50 years of constitutional protection. And he did it just recently at a commencement address that he gave, you know, it's commencement season in which he talked about religion under attack in America and free speech under attack in America. It's almost like he knew the New York Times and other places where he's gonna find the photos of him flying a flag. Now, you wanna fly your flag in your opinions

where we can do something? Great, but to show the world, could you imagine riding by, you and I are gonna argue something in front of the Supreme Court about religion or Jan 6th. And we ride by, you know, Google Maps, Google Earth, whatever, tells us that's Sam Alito's house. And we see a stop the steal Christian flag flying from his house. What does that do to us in terms of believing that justice is blind or that we're gonna get a fair shake in front of this judge that he hasn't prejudged so

to speak the issues and they call judge Mershon conflicted because he donated thirty five dollars or because to a democratic cause and because his daughter works for a democratic consulting, political consulting firm. And can you imagine if Judge Mershon was flying? Flew a flag? Yeah, I mean, no, flew something that, like can you imagine, like it's just shocking that Trump will say things about that most conflicted judge ever.

How about do it that way? Judge Mershon is flying or Judge Chutkin down in DC. You ride by her house on a tour, you look over and there is a dark Brandon or Midas touch flag flying from their flagpole. First of all, the Democrats wouldn't blame their spouse. They would say my wife did it. What are like, you know,

chicken shit excuse like own up to it, you know? Oh, I did it there. Who did it? The summer house, the wife again. She's she's she's the flag, the keeper of the flags. I mean, if this doesn't. And shout out to whoever, you know, rode by the house and LBI and found that flag at the right time. But what is Robert's?

I mean, I know all the organizations and ones that we support are going to like file ethics charges and ethics complaints and lawsuits or whatever they can. Maybe if we ever can get an appropriate Congress, we could start an impeachment proceeding. It won't be now and have to be in November, but that's okay. We're patient. We'll wait. But, you know, that's what we're going to, that's what could happen right now. You can make a judicial complaint. But Chief Justice Roberts has to do something about it. The fact that he just does nothing about the ethical compromises and the ethical conflicts

of his own court, you know, Clarence Thomas and the money and the RV and the vacations. Justice Roberts with the wife making money from all of the legal placements in law firms for law firms that appear regularly in front of the court. Gorsuch selling his summer home or some piece of property to a lawyer who regularly appears in front of the United States Supreme Court. It's just, I mean, if you're a Supreme Court follower like we are, and you've read all the books from the Brethren to all the more recent ones, you know, we've had Abe Fortas step down because he took a $40,000 fee for doing some legal work

while he was a Supreme Court justice. And he was shown the door. That seems very, very mild, compared to what we're watching now with Sam Alito. What do you think's going to happen? What do you think should happen? And then we'll figure out if it's going to happen. Wait, what do I think is going to happen? Nothing. What should happen? I mean, he should recuse himself from any chance. I mean, look, he's going to be...

The court is hearing presidential immunity, right? They are hearing that question. They are about January 6th. They're also hearing at the court is also right now hearing about the statute 1512, about whether that can apply to the Jan 6th and Donald Trump, whether that statute can apply as a criminal statute and eviscerate half the indictment against Donald Trump. I mean, he has to recuse himself. He is literally actively showing that he believes, you know, look, do Supreme Court justices have beliefs? Do all justices have beliefs? yes, they're human beings, but he's actively showing that by putting flags outside. I mean, he is almost like putting, you might as well just put the middle finger

up to anyone who comes before him in court, because that's what you're doing. And in addition to it, I mean, the appearance of impropriety is not- Right. The thumb on the scale. I mean, I understand the scales of justice, they're supposed to be blind, but you're not supposed to come in seeing a big fat thumb on the scale against you from the moment you start advocating your position. I mean, how- And you know what? He's not political. So even he, they have to apply the law to the facts. They can't even put their own opinion in. They're not legislators. And so it's just inappropriate.

How about this? And this just shows you how wrong it is. Because even if you say it out loud, it's just terrible. Suppose you and I were an advocate for the United States Supreme Court. And on the way over, or now, of course, we learn about the flag. And it doesn't matter what we're arguing. But let's say we argue something that goes to Christian values or religion in politics or whatever, or Jan 6th. What if I or you as an advocate during our 20 minutes? We started with, well, I'm prepared to answer any questions from the bench and of course I'm prepared to present my argument, my roadmap for my argument, but I have a question for the bench, in particular Justice Alito. On

the way over, Justice Alito, I saw a flag flying over your house, not one house, but two houses, which seemed to indicate that you were aligned with the Stop the Steal movement and or religion in the government. And I'd like to ask if you are going to be able to be fair and independent and impartial during my oral argument. And that's a question for the bench. Somebody's got to have to have the balls to ask that if he's not going to recuse himself. Because it's a missed opportunity. So what does he say? It's inappropriate. It's inappropriate. What's he going to say? Find him in contempt? It's inappropriate to ask me that. Or he just stares at him, just glares at him like Bob Costello stares him down. What's he going to do? The fact that he, we're even talking about this and thinking about what could happen next is,

it just shows you how terrible it is. I've never had a situation. I've always suspected that there's judges that are on one side or the other on politics, but frankly, you don't really, you know who appointed them. But federal and state judges, you know, it doesn't seep in the way it does at the United States Supreme Court level. Who's supposed to be apolitical and above it all? They keep saying that in all their speeches, all their commencement speeches, all their stupid, whiny interviews. And yet, he's literally flying the flag up of one side of the case while he's presiding over it. That's just, it's just mind-boggling. It's mind-boggling. Yeah. So Joe, I think it's got to be a combination of pressure campaign by the Senate, Judiciary Committee led by Sheldon

Whitehouse and the minority of the Democrats on the version of it on the House going after it. Maybe we start impeachment proceedings over it. At least draw up an article of impeachment and have it be voted upon. I mean, maybe that's what taking, like you said, take a page out of their book. Maybe that's what needs to happen. Maybe, you know, maybe they need to draw up that Marjorie Taylor Greene is constantly drawing up articles of impeachment or, or no confidence votes on the speaker lets us do something about Alito like enough is enough. How many times does the American people have to be a pinata and be beaten over beaten by these Supreme Court justices and we just sit there and we just don't do anything.

I mean, it's really interesting. Yeah, we don't do anything. And when we do, we appoint special counsel from their side, hoping that somehow it's gonna have, you know, right. You know, like, to your point, Judge Mershon, I did a hot take on this last week, Judge Mershon got a cautionary letter, it's the

lowest level of things that can happen, along with about 3,000 other judges, because he donated at that $35 level to a particular political party. I assume his daughter, who's a political fundraiser, encouraged him to do something on Act Blue, which is where he donated and 20 bucks went to Biden out of the 35. He got a cautionary letter for that. Then what should watch then then Alito should be drawn and quartered for what he's doing. You know, and there's, I don't want I don't want to hear when I wake up in the morning, some bullshit email that Alito sends to the New York Times again, like he

did last week, where he comes up with some ridiculous justification or excuse for the flag on his LBI vacation home. There is no excuse for it. There's no justification for it. I'm sorry that you and I, Ben and Legal AF, we want our justices to at least have the appearance of impartiality, right? That justice is blind. That's why she's wearing a blindfold. It's not supposed to be a big fat finger of Sam Alito on the scales of justice, you know, for one side or the other. It's just, and what if the other, what if the, what if the left side of the Supreme Court had done something similar? So if the mayor, Kagan, Katanji Brown, suppose Katanji Brown Jackson,

or any of them, flew a Black Lives Matter flag, or a gay pride flag, or anything, I would think that's equally inappropriate for a United States Supreme Court justice, not for other people. Because they don't have First Amendment rights. I know that Alito likes to talk about it. Oh, the First Amendment is under attack. Right.

Right. I'm sorry. You either have First Amendment rights or you can be a United States Supreme Court justice. You don't get to have both. That's as far as I'm, that's my opinion. What do you think, Karen? It's interesting, because there's certain things

that to me aren't political. You know, like gay rights. Like that shouldn't, that's not, to me this is not political. That's, you know, human or I don't know. Like it's funny that you would say that. I, I, I'm not sure. I think, I don't know. It's funny that you would say that. I'm not sure. I don't know. I do think it's important that they remain neutral. When I was a prosecutor, I was never allowed to engage in

anything political ever. And so I made it pretty clear. I never did. I never donated money. Pretty clear. I never did I never donated money. I never Even though I could have donated some money, but I didn't do anything political I just thought it was important to stay neutral as a prosecutor. I didn't get involved in any campaigns and that kind of thing But gay marriage gay rights, that's just something I wouldn't have thought would be is political but I guess I guess it is Just interesting. It's interesting. It's an interesting question of what they should or could do. I do think if you do though, I do think you might have to recuse yourself on certain issues. If you do, if like say you were anti-NRA.

But again, I don't think they should be a lot I don't think they can do that. I think you're right. I think as a Supreme Court justice, you have to be really careful because it's important the appearance of impropriety is just as important. You gotta be neutral. And look, they browbeated, Taji Brown Jackson into agreeing during her nomination confirmation process. And Ted Cruz led it that she would not preside over and would recuse herself from the affirmative action case because Harvard, where she went, was one of, they all went to Harvard by the way, many of them, and she wouldn't preside over it.

She agreed, and she didn't. And where it's deafening the silence by the MAGA and the right and even the country club Republicans about what is going on with the right wing of the United States Supreme Court. I'm saddened by it as a patriot and as a lawyer that has always admired my profession. But, you know, that's that. That's the intersection of law and politics for you folks. We've reached the end of an episode of, or the show we like to call Legal AF and now you know why. It's every Wednesday and Saturday right here.

I do it on Wednesdays with Karen Friedman at Knitfo. Saturdays with Ben Mycelis. And then we do hot takes, the leaders of Legal AF, I don't know, about every hour at the intersection of law and politics. If you're interested in the law side of law and politics, we've got a Patreon, patreon.com. There we are, slash legal AF. And I got one up right now on like a tutorial, a PO-POC talk on the difference between opening statements and closing arguments or summation. So we

really drilled down in a way that we can be tried to do here to be as part of the education process and to simplify things that make sense without dumbing them down. But we do more of that over there. It's for the non-lawyer, but we have a lot of lawyers that are interested. We've got over 3,000 Patreons who support the show patreon.com slash legal AF other ways to support us Just as a reminder, we have an audio version of course of this podcast the classic podcast and that drops in a few hours Listen to that watch us thumbs up Comments all that kind of feeds into that algorithmic computer and tells the world or the people that matter in this process The ranking people that we matter and people that matter in this process, the

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looking for there. And then sort of word of mouth. We do, we refer to only half tongue and cheek as legal AF after dark because we show them late at night as a way to kind of pick up, I almost said insomniacs, not insomniacs, because we have a worldwide audience, just pick up people who didn't happen to see this particular show. We were kidding around yesterday in texting back and forth. There's a whole group out there that support Legal AF that only know about live and live versions of things

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that we just did during the show. We post them, you'll see me do them. Then if they're for you, if you missed the show, or if you didn't have time for the full hour, hour and 20 minutes, but take that clip, send it off to people in your life and say, hey, you know that show I really like, Legal AF, here's an example of it.

And maybe they'll join our audience as well. So it's a way to sort of be part of our ad hoc marketing department. So that's it, Karen. sort of be part of our ad hoc marketing department. So that's it, Karen. You're gonna do, just the last lead off for the trial. No trial today, no trial the rest of the week, picks back up on Tuesday with what, charge conference?

I think they had the charge conference already. So I think the judge will let them know what the charges will be and then summations on Tuesday, on Tuesday. Yeah. So it's a liberation Wednesday morning or something. Yeah, something like that. Yeah, we're gonna have a verdict for the trial that people said would never happen. Donald Trump would never see the inside of a criminal courtroom wrong. He would never be indicted by a jury, grand jury wrong. Now we're going to see what happens. Now the rubber meets the road with 12 members of this jury, seven men, five women, as they

go back and deliberate to try to find unanimity about the charges in front of them. We'll have a verdict by, hopefully hopefully or as you've said yesterday we were talking a hung jury which we don't want knock on wood sometime next week i mean it could roll it could keep rolling we'll see i'm not making any more bets i gotta pay off this one first i gotta take out a home equity loan like cohen so anyway we've reached the end of Legal AF. Shout out to the Midas Mighty and Legal AFers.