Legal AF by MeidasTouch - Trump Judges, Federal Courts, And the Threat to Democracy

Episode Date: December 5, 2021

You know what happened; now hear what happens next. The top-rated weekly US law and politics news analysis podcast -- LegalAF -- produced by Meidas Touch and anchored by MT founder and civil rights lawyer, Ben Meiselas and national trial lawyer and strategist, Michael Popok, is back for another hard-hitting, thought-provoking look in “real time” at this week’s developments.  On this episode, Ben and Popok analyze: 1. The US Supreme Court’s oral argument on whether there will continue to be a constitutionally-protected right for a woman to have an abortion in this country, or not.   2. The Jan6 Special Committee’s move toward criminal contempt against Trump insiders, Meadows, Eastman and Clark. 3. Mainstream media joining Bannon to argue under the First Amendment for the complete release of all materials related his criminal contempt prosecution, and the same for certain aspects of the Mueller Report. 4. A decision this week by a Texas Federal judge relying on the First Amendment and Section 230 of the Communications Decency Act to stop the enforcement of a new Texas law aimed at preventing large social media platforms from “deplatforming” (banning) people who have abhorrent views.  5. Trump-appointee Federal judges who have banned President Biden’s vaccine-mandate for front-line Medicare/Medicaid health care workers from going into effect 26 states. And so much more. Support the show!  Aura Frames -- Aura digital photo frames offer the highest resolution display on the market. The auto‑dimming screen wakes each morning and goes to sleep at night. Your photos will always be the ideal brightness. There’s never been a better time to buy. Take advantage of Aura’s best deals of the year, with Black Friday/Cyber Monday pricing now through November 30. Visit https://auraframes.com now to get gifting. Use code LEGALAF to take $30 off Aura’s best selling digital picture frames Fiverr -- Receive 10% off your first order by using our code LEGALAF at https://Fiverr.com. Cubii -- Making Wellness Approachable for All Ages, Abilities, and Lifestyles. Click to Learn More! Stay Home & Get Fit While You Sit. Go to https://www.cubii.com/legalaf Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to Midas Touch Legal AF if it's Saturday or Sunday. It is Legal AF Your Weekend Legal Counselors Ben Micellus and Michael Popak breaking down this week's legal issues and ways you can understand. We appreciate being your professors of law here on legal AF and much to discuss. Michael Popak, birthday boy. This was Michael Popak's birthday week. Lots of Midas Mighty reaching out to Popak earlier in the week for his birthday and Popak, happy B day. Thank you. Special special shout out to the Midas mighty. They, this is my first birthday as part of that group, that family. And first one since we started legal AF.

And it was, it was heartwarming to see a thousand or more people wish me a happy birthday. I don't think I've been wished a happy birthday by a thousand people collectively in all of my years. So it was great, all in good fun. And just shows the camaraderie of the family and community that you and your brothers have created that I've joined. And I appreciate it. Absolutely. We launched a special edition, might as touch, Legal AF podcast this week, which you may have heard where we broke down the Supreme Court's ruling in the DOBS case, the DOBS case, or the oral argument was earlier in the week. These stakes are significantly high and no short of overturning, Roe v Wade overturning, planned parenthood, VKC, and essentially removing the right to an abortion as a fundamental right under the United States Constitution. We're going to talk a little bit more

about that, but for a further analysis, I would tell everybody to go back and definitely listen to the 20-minute edition that we dropped middle of the week where we really broke down what each of the specific justices were saying. Let's just get into the law, Popok, for this week. Let's get into the cases and what's going on. Another tough week for on another tough week for Biden's and really for the world for health for vaccine mandates generally. I mean, it isn't really even a vaccine mandate that Biden has. I mean, with respect to large employers, it kind of has the either or either get vaccinated or get testing.

And then when it comes to healthcare workers, though, it's get vaccinated. Your healthcare worker, you, it's get vaccinated. You're a healthcare worker. You're in the healthcare system. What the hell are you doing as healthcare workers not being vaccinated? And we've seen a lot of these videos on TikTok and on social media of nurses being anti-vaxx, which is just completely blows my mind that that exists, but a number of Republican states, Republican attorney generals have been filing lawsuits against these vaccine, what I call them mandates, what I call them requirements, you want to call them just showing proof

of vaccinations. And we always talk about it, I might might just touch legal A.F. Elections have consequences. And when these cases have gone in front of Trump appointed judges, these judges have struck down any vaccine mandates, vaccine requirements. And one of the most recent ones that we have here is a vaccine mandate within the healthcare system, a mandate that emanated from the administrative agency, from the Centers for Medicare and Medicaid services, for healthcare workers, for healthcare companies, for hospitals, for entities in the healthcare system

that take Medicare and Medicaid money, basically the government saying, if you want to continue to take Medicaid money, basically the government saying, if you want to continue to take our money, if you want the entitlements, if you want the government benefits, you don't have to take these, you don't have to take these. But if you're applying for them, we want to make sure that the health workers are vaccinated. Another ruling came out this week district judge Matthew Shelpe a Trump appointee from I think 2020 out of St. Louis Missouri and the federal court struck it down that comes to the same time may Louisiana district court striking down

this law and other federal court striking down Oshas law the fifth circuit saying that Oshas law law, Oshah's rulemaking and administrative policy is invalid regarding the employer mandate. What's going on here, Popeye? What's going on is you have a battle between the Trump appointees, the judges, and the others about the proper administrative rulemaking by agencies such as OSHA on the one hand, which issued a rule under Biden that employers over 100 employees had to have either

regular testing or mandatory vaccination. And then what seems to be even less objectionable under an administrative procedures act analysis, the Centers for Medicare Medicaid, which is referred to colloquially as CMS, requiring in federally funded healthcare entities, clinics, that their workers who are healthcare, frontline healthcare entities, clinics, that their workers who are healthcare,

frontline healthcare workers, be vaccinated. It sounds so ridiculous that we are debating whether a federal agency doling out federal money to federal employees can require them as part of their healthcare delivery of service to be clean, to be clean of virus, to not further infect or propagate the virus. You and I talked and I only did it with half tongue in cheek six or eight podcasts ago about the example of a surgeon who just doesn't want to wear gloves during surgery, likes to get

his hands right in there with the surgery. And that might have worked in the 1800s, early 1900s, but we don't allow that anymore. And so you have these Trump appointees like the one in Missouri, like the one in Louisiana, who backed out in Louisiana, she's left in Missouri. Yeah, it's she'll it's she'll by one of column schlep, but it's she'll I'm still going to call him schlep. It's judge schlep. And what do they have in common? They're Federalist Society, Trump appointees in relatively conservative jurisdictions. And the states that want to see, I guess their people die and not have healthcare workers properly vaccinated go running to these jurisdictions and try to get before these judges.

So you have 10 states that went before Judge Schelp and you had 16 states that earlier in the week went to Louisiana. So you got 26 states out of the 50 in the union that have now obtained an injunction from right wing judges stopping the CMS from enforcing in federally regulated funded facilities a vaccine mandate. And it's just, it really is shameful. And so the analysis, if you want to call it that, is that under the Administrative Procedures Act, which you and I have talked about before APA,

that the agency, in this case, the CMS, has overstepped its rulemaking authority, and it's not allowed to do what it has done, which is mandate vaccination, which is totally ridiculous. And totally it odds with, you know, Supreme Court, even Supreme Court precedent going back a number of years. Now, the Supreme Court hasn't weighed in yet. And we've got a split in the circuit developing already because a Northern district Florida judge recently ruled that vaccine mandates were fine, especially

under CMS. So you're going to have the 11th circuit, the 8th circuit, and the 5th circuit, all ultimately in conflict, and who resolves conflict spend of circuits at the appellate level. We're going to have that 6 to 3 Supreme Court that we have, that we heard these, oh, these oral arguments, Popoq, we are living in the handmade tale. When I heard the oral arguments in the Dobs case, oh my gosh, I can't even believe that that's, that it is not representative of our country, you know, from all different ways in terms of

how those Supreme Court justices got appointed, you know, whether you're even talking about the Bush appointees who were on the bench, where the popular vote was not in favor of him, you know, same thing with Clinton and the GQP and Republicans, you know, basically doing all the mischief that they did, you know, around the appointment of Obama's, Merrick Garland and others. I mean, it's literally, the GQP cheated to get the court the way it is. And even if they didn't cheat, it's not representative of the country. But anyway, Popeyes, that is a long way of saying it goes to the Supreme Court to resolve the dispute. Yeah. And then we're going to talk about it now. So far, the Supreme Court on an emergency application has allowed the state of Maine in the summer

to mandate healthcare workers have vaccine. But that was on an emergency application and the full briefing hasn't happened yet, so we don't have the thinking of the 6-3 supermajority right wing court yet on vaccine. We talked about Popoq the shadow docket. They use their shadow docket powers when it actually helps, though, affirmatively, a GQP-related issue. When it comes to some of these other issues, they're not affirmatively acting, right? They're just not doing anything with respect to the main laws and some of these other laws.

And I think they're just dead wrong. These judges are dead wrong on the CMS's power to regulate its federal facilities and its workers and I think it they stand on usually on very, very, very shaky ground and there is a distinction all and well, we can leave the discussion on this point, but it is it is an interesting nuance that I think our listeners and followers will need to know about. In the OSHA regulations, when OSHA makes a rule, they can do it if they find grave danger has occurred in the workplace, and they can regulate around that. Every Trump judge has somehow concluded that COVID, and now Omicron COVID, is not a grave danger to our society. Just look at the death rates, the mortality rates, and the infectious rates, and the impact on the world, let alone the US economy. I don't know how you could ever, in a straight face, conclude that. The CMS administrative

rulemaking, however, does not even need grave danger to be found. And so I would think even though all the judges like to, here's a popaki in term, smush it together and argue that, well, OSHA overstepped its boundaries. So so did CMS. They have completely different standards in the analysis of what rulemaking they can make. So I think CMS is on a very firm ground to issue its rulemaking. And you can see the politicization. As you said, the GQP or the right wing judges like to say they're not playing politics, they're just umpires calling balls and strikes.

Nothing could be further from the truth. Even in Shelps' decision, he talks about the overreach of the federal government into politics, into allowing this federalism activity, pushing the boundaries of politics. I mean, front and center, they just call it right out that they are playing politics. And in the other decision in Louisiana, I found it interesting that in the judge reciting the history, because even as you write a decision, you're making, you make, you may act like you're neutral in the recitation of your facts, but you're not, because the judge in Louisiana started with,

well, when candidate Biden was running for office, he said we didn't need a vaccine mandate. And then four months later later when he got elected, we suddenly needed and they literally said, the judge in Louisiana said, Biden changed his mind. Did Biden change his mind or did the health crisis and the statistics around it and the CDC and all the other and the NIH and the World Health Organization. Did that change his mind? But he made it sound like Biden is playing politics, when nothing could be further from the truth.

It's the Republicans that are playing politics with the COVID pandemic. And Popoq, you're so right, when you read these rulings, you literally have from these Trump judges. You have a what the fuck moment because what pervades these rulings permeates their core is that COVID is not a serious thing. That's at kind of the, you know, they don't say it as direct as that, but that there's nothing urgent here. Why would the government want to get involved in something that doesn't even really impact

people? You talk about the CMS. The judge in the Louisiana case found that CMS did not have good cause, that their reasons did not constitute good cause for not going through a formal, incredibly long drawn out rule making process regarding, there's a good cause exemption where they don't have to go through an administrative agency, doesn't have to go through a rule making process. And the judge said, what are you talking about? You couldn't find a good cause. And the CMS is saying things like 2021 outbreaks associated with SARS-CoV-2 delta variant

have shown that current levels of vaccination coverage have been inadequate, requiring no delay, encouraging vaccinations through public education campaigns and through state and employer-based efforts have so far been inadequate. The COVID-19 pandemic continues to strain the U.S. health care system, most of which patients are unvaccinated.

The judge takes issue with those findings anyway. I could be laborate, but elections have consequences and you see federal judges imperiling this country. We're going to talk about it at the end. That should be the theme of this. We just need good judges who are not going to fuck with our constitution,

not this, not this performative bullshit about what the constitution is. And that brings us to Austin where we have a judge who follows the law. We have a judge, what's up, Popak? We love judge, Pittman. Yeah, we got US district judge Pittman in Texas. You know, say what you want.

Democrats appoint smart judges who actually apply the United States Constitution, who take pandemics seriously and take and understand what the First Amendment is. Okay. And in Texas, Texas looked at Florida and Florida had these laws that were going to penalize and prohibit social media companies like Twitter and others from banning people who spread disinformation, who spread conspiracy theories. It basically tells social media companies.

With these right wing states, they call it, you can't disable accounts on viewpoints. With these right wing GQP governors, consider viewpoints, is that the election was stolen, the big lie, that QAnon is real. And so what they're telling social media companies is you can't ban your QAnon followers. That's a viewpoint. You have to respect. You can't ban people like Lin Wood and Donald Trump and others who spread conspiracy and big lies on the platform. And what these right wing GQPers analogize, these social media private company platforms to as common carriers. And they're basically saying, whoa, whoa, on vaccines, government, don't you dare regulate

what we're doing. Stay out. Oh, social media companies, governments regulate, governments need to regulate the speech of private speakers, governments. Let's get involved. The state of Florida says we're going to prevent you from blocking or banning people like Donald Trump, Twitter, and then Texas kind of won up them and made it even more prohibitive than I think Florida's law and Texas's law That was passed through their GQP House of Representatives and their process there

This law went before the federal judge in Austin and judge Pittman from I forget what you called it the soho of Texas what you called it, the Soho of Texas. The credit village of Texas. Explain there, private company, private individuals have First Amendment rights. Twitter has a First Amendment right to block people from hate speech and the Communications Decency Act. He also gives them another reason why they can block or ban people from spreading conspiracies on their social

media platforms. So, Popeye, did I just steal your thunder and giving the whole analysis? No, you never steal. Our thunders go parallel and hand in glove. You never steal it. I just take it and run with it. So let's start with the act and then we're going to talk about the difference between social media companies that a 50 million or more follower base and common carriers, which you referred to and I'll explain, are phone company, cable company, and the electric company.

What's the big difference between the phone company, the cable company, the electric company? Everybody needs phone cable and electric. Not everybody needs to be on a social media platform, and a social media provider, especially at the 50 million or more mark. Application, right? An application. It's not the internet generally. Twitter doesn't control the internet. No, right. Did you think I was going off course? That's why you wanted to clarify that? No, I just wanted to put the point that if there was a common carrier that may be controlled all of the internet, it may be a different announce.

No, no, but yeah, right. But my point is it's not a common carrier because we all need electric, cable, and phone and a hook up. It crosses all party lines and all ideologies, a social media platform operator, whether it be Facebook, Twitter, TikTok or whatever at that level. Has the ability under the Communications Act Section 230 to cultivate the way that might have touched us, its own network, its own community, and decide who can be on the in the community and outside of the community.

And that is the first amendment that they have, and a section 230 right under the Communications and Decency Act of 1996. And I'm going to talk more in this segment about section 230. Because unfortunately, it's not just the right wing that is trying to do an assault on the social media provider's rights under 230. Some of the Democrats are doing it too, and I'm gonna end with a discussion of Klobuchar and another act that even the Democrats are doing

related to algorithms and amplification. But let's start with Judge Pittman. Judge Pittman is facing House Bill, Texas House Bill 20, which was an attempt by Abbott who signed in September of 2021 to block social media platforms from banning people from having viewpoints. Holocaust deniers, it's always good to ban them. Anti-vaxxers, stop the steal overthrowing our government, that kind of thing. Now you might say at home, well don't they have a first amendment right to express their opinions?

They do. They just don't have the ability to do it on a private platform that is regulated by Section 230 and for which the social media content provider has their own First Amendment right and association to cultivate the community of their choice. Midas mighty, I mean, Midas touch is not yet at 50 million, although they're growing. The Midas mighty is part of a family that's been cultivated by Midas touch. Midas touch is allowed to remove from that community. If it's so, if it's so chooses, those that don't share that viewpoint or are as we like to call them in our chat room, trolls. It's so true, Pope, and that's a great example there. And I'll let you go on. But like in the chat rooms, we've seen it, you know, over and

over again, sometimes you'll have people come in who will say horribly anti-Semitic things, you know, say, you know, make threats against, you know us and we'll say, you know what, you're not being appropriate, you could leave the chat room. Under the Texas law, they would say that person, you can't remove them from the chat room if you're a certain size would say that person, you can't remove them from

the chat room if you're a certain size. Now, if I'm a common carrier and I'm regulated at a different level, if I'm the electric company, I got a supply to a neo-Nazi, the power to his house, and I can't regulate that based on viewpoint. I don't like his viewpoint. I'm going to cut off the power. I'm sure they'd like to, but they're not able to and they're regulated separately. But that's not what social media is. Social media is not your electric company. Social media is a voluntary choice of a community that that's on the internet, which was invented by governments at one point, and it travels lightly across that. And they have the right now. Pittman did the right thing as he has done consistently. He is the judge and SB 8 for the Texas abortion cases, both of

them that went to the fifth circuit that are now pending with the US Supreme Court. So we like his way of thinking. We like how he's what he said and what he said is you cannot under the First Amendment in Section 230. Stop platforms from moderating their own content, and they are not common carriers, or don't interpret them that way. I reject that argument. That, of course, is now going to go to one of our favorite circuits, the fifth circuit,

ultimately, which is very conservative. I'm sure they'll take the opposite approach to pitman. Then we're going to be up and running with another Supreme Court case. You know, the Republicans are busy trying to litigate what they see as their values on a daily basis. And that's with the court system. The federal court system in particular is under assault by the Republicans who have decided since they lost the election, the only way they can shove their values down our throats is to do it through their judges, federalist judges in the federal courts that they choose, the really conservative ones, because they can't win a fair and square election at the presidential level.

But it's worse because presidents can change every four years. These judges are on for a lifetime and the laws stay on for even longer. Absolutely, Pope. But but here's the thing too. And it seems to be just a legal strategy employed by the GQP. It doesn't seem it is a legal strategy employed by them. They sometimes will know they're not going to win these lawsuits, right? But they just, and for the political party that claims we're against litigation and people being litigious, their whole apparatus and structure is literally wearing down the court system and actually wearing down people at all levels from the school board to the courts. And their politicians are important,

but whatever the tide is and the political tide, they've been able to really, with these legal strategies, get their political policies implemented. And you pass the law like the one in Texas, you pass a law like the one in Florida, unlawful laws, like ridiculous absurd laws that the governors are getting passed with their legislatures.

And then you just have this barrage of Republican litigation to try to get these laws through it, through and through it. It's great, great people down here. I feel like the old, that old story about the, the boy at the dike with all the holes in the water pouring through, and you only have so many fingers. And, and, you know, they, they go to the fifth circuit, they go to the 11th circuit, they try the 8th circuit. Of course, they avoid the 2nd circuit in New York and the 9th circuit in California, where they can. And you're right, it's a full frontal assault and through the school boards and critical race theory, for example.

But let me give one warning. You and I talked a little bit in prep before we started recording this evening. Democrats are doing it a little bit too, and we have to be careful what Pandora's box we open, particularly on section 230, as it relates to social media. You've got two bills that you and I need to keep a watch on. One of them is a Democrat, Amy Klobuchar, Adam and Asoda. Actually has pending and will eventually come up for a vote. The Health Misinformation Act,

which will remove liability insulation from Section 230, which the providers currently enjoy. They can't get sued themselves for information that is on their platforms. If it relates to health misinformation, specifically anti-COVID vaccine information. The problem with that is where do you draw the line? Yes, I would like to get off of all Facebook and other sites, misinformation about vaccines. A lot of it being used by foreign agents to try to so discontent

in America and undermine our vaccination program. But the next step is even worse. There's a Democrat, Malanowski out of New Jersey, who has, did you see, I'm sure you saw this one, Ben recently, the Protecting Americans from Dangerous Algorithms Act, the Pada, PADAA, which will subject social media platforms, again, at the 50 million or more mark, if they use algorithms to amplify certain viewpoints. even though it's a democratic sponsor bill, that one set like a chilling, a chill down my spine. What do you think about that?

The algorithm one, I need to dig more into. I'll talk about that on the next legal AF, but that sounds that there could be issues there. The, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the the hate speech, big lies stuff about the election versus and banning that versus saying, hey, if a social media company is not being responsible and they are causing deaths of millions of people by allowing anti-vax stuff that's clear and present and obviously on their platform and they're not removing it, they need to remove it. But Popak, as, so that's where I would draw the line. But as you were saying, I was just thinking to myself, you know, you just think about the

world that these Republicans, these GQ peers, like want to create. And we've just touched on a lot of it in the podcast already. It's like anti-vax. Let's get guns to everybody so we could have guns into school. Let's spread and proliferate hate speech everywhere. Let's take away a woman's right to choose. You know, people were saying, Oh, you're calling this GQP and what they want to create for America, the handmaids tail. Oh, that's hyperbole orP and what they want to create for America. The handmaid's tail. Oh, that's hyperbole or you were comparing them to the Taliban. That's hyperbole.

These are radical extremists and these issues that we're touching upon prove it. It's right in front of you people. At well, for the next season of handmaid's Tale, could run just the oral argument and the supermajority right wing's questioning of the lawyers as an episode and it would slot right in and nobody would notice that it was not fiction. I mean, it was that we're going to get to dobs. I know we keep teasing the wrong word. We keep talking about it.

We're going to talk about it at the end tonight, but again, because we did it in a special broadcast, but it is scary to see attempts by right wing justices to undermine democracy and justify it in the way that they do. Popuck, I know you're a big fan of aura frames in this podcast is sponsored by aura frames. You've got your aura frames. Or frames is the perfect popochi and gift. And if you're an organized like like a historian, like to document things like popoq, I knew when he got his aura frames, he was going to start loading his

photos into it right away. It really does make the perfect holiday gift. Tell us what Orra frames is and why you think our listeners would love this. I love my Orra frames. I do. And I mean, we use all the products just to be clear. We, everything that we sponsor on the show,

we get our hands on and we use. So that we can talk about it when we do these parts of the podcast. An aura frames, I'm a user. I mean, I'm a real user of it. I enjoyed it. I remember the first generation of digital frames that came out like 10 or 15 years ago.

They were very hard to use. They were hard to upload. You had to use cables and memory cards and all sorts of things. And this one is so seamless in working with it that it's been really a joy. And I've added it into my life and lifestyle in a way that I hadn't even envisioned. I was telling you earlier that as part of my birthday celebration, I went to go see a show last night. And while I was there taking pictures right there from the seat, it just became a natural part of my existence as opposed to just posting it on social media, which frankly, I don't do much of,

I sent it directly to the frame. And now I'm here in the office and the pictures from last night are circulating and cycling through the frame. It's really great. And you can set up other frames to match. Like if you have a loved one, like a grandparent or a parent or a husband, wife or whatever, for a gift, you can preload the frame with all of the photos. You can share that frame with other people of your choosing and they can send photos to the frame and video clips. It's really great. I like it a lot. And it's a nice addition to my office. So to go, you go, if you want to get it, you go to oraframes.com. That's a you are a frames.com listeners use the code legal a f and take $30 off or as best selling digital picture frames. That's auraframes.com, a-u-r-a-f-r-a-m-e-s.com. Use the code legal AF and take $30 off or as best selling digital picture frames. Hey, look, if you want to put a photo

of Popak on your or a frame, you know, and display it when friends and family come over. Great. You want to do one of me and Pope, I feel free. I'm sure you're definitely going to do one of Jordi. Oh, oh, oh, that reminds me. You know who needs an or a frame for the holidays? Oh, I mean, specifically, who specifically needs an or a frame? Jordi. And how do I know that? Because he just chatted with me during our podcast recording and said, I wish I had one.

People don't know this about Jordi, but amongst his many talents, Jordi is also an executive producer of Midas Touch, legal AF. And I believe he's both producing and watching college football at the same time, the evening hours and in the chat room, all three at the same time multitasking, watching the evening football game recording and in the chat room. So, Jordy, very impressive on your newfound producer skills. Let's talk, Pope, about January 6th related cases, legal maneuvers, what's going on with the January 6th committee. So let's just talk first with the January 6th committee.

Commonly, first. Yeah, let's go into the committee investigating the January 6th Capitol riot, moved on Wednesday to hold Jeffrey Clark in criminal contempt of Congress for refusing to cooperate with its inquiry, although they did agree to delay a house vote on the matter as the former Justice Department lawyer made a potential offer to be interviewed again. What's going on here? They actually find them in contempt. Yeah. The committee found them in contempt and it'll go to the full house for a vote.

And I'm sure it'll come down like that. And but you really, when we talk about the Gen 6 witness issues, we're right now as of today in real time. We're really talking about three people. Mark Meadows, the former chief of staff for Trump, Jeffrey Clark, who was a not a high level, but a medium level assistant attorney general, but that was used by Trump as a lackey to bash the sitting attorney general, the acting attorney general Jeffrey Rosen, who took over for for bar and Dr. Eastman, John Eastman, nobody ever heard of, but was also a lawyer who was

a major architect of stop the steel, putting pressure on Pence to not certify, putting pressure on Georgia in order to stop certification, was a speech giver with Giuliani at the Gen 6th insurrection rally and all of that. So you got three different people that are now the targets of the Gen 6 committee to force them to testify or face jail time. I'm among others. I mean, these are the most high profile ones for this. We've had 200 people testify.

They've already had 200 people testify. I know a lot of our mightest mighty legal a furs are like, do it in the public. Put them on camera. That's not really what what select committees do. They they they put them under oath so that if they lie, there's a perjury in a in a criminal violation, but they don't generally put the cameras on them. It's not like Godfather to when you know Michael Corleone is testifying, but they don't generally put the cameras on them. It's not like Godfather too, when Michael Corleone is testifying. Although, I don't blame the mighty, I don't blame the mighty

Spidey's feeling that way, though. You know, why not? I mean, just how is it in like this version of how is this real life? Here's what they want to ask Mr. Clark about, because these are the things that he did. They want to ask him about a national intelligence briefing he sought about the theory that China was hacking voting machines in the 2020 elections through thermostats. And they want to ask him about his proposal to write to legislative

officials in Georgia, urging them to put forward an alternative slate of electors to vote for Mr. Trump instead of Biden when Biden obviously won the state. And they want to dig into his other conversations with Trump and others at the hotel where they were organizing the insurrection. This is a justice department official. Popak, a high level person who's doing engaging in this act, but I digress. Pop up and then Mark Meadows, Mark Meadows released a book and he's claiming executive privilege. He's literally writing a book to try to make money where he's talking about his interactions with Trump.

By the way, you want to write a book and make money fine. I mean, you know, I don't think that insurrectionists like Mark Meadows should profit from trying to, you know, do improve their characters after they've supported insurrections by saying, oh, I shouldn't have done this or I should have done that. But he talks about his private interactions with Trump in a book to sell to the public. And then he's gonna claim to the January 6th committee that he's evoking executive privilege. Well, let me break it down this way. You've got on a continuum from meadows to Eastman

and the application, the Fifth Amendment, which I want to talk about. So you've got meadows who finally in the face of Bannon's indictment and an attempt to assert executive privilege and attorney client privilege or no executive privilege for meadows. Has finally at least partially cooperated

with the Gen 6 committee. He's turned over a thousand or so emails and he said he is willing to sit down for a deposition or an interview under oath which will be scheduled soon. Although he has continued to say that he will try to assert where he can the executive privilege, if he can, on a case-by-case basis. So some people might be saying, finding him in contempt now, well, they're going to find

him in contempt later. If he doesn't, in good faith, participate. And he throws up these continuous roadblocks in his testimony. And now that he's publishing his memoirs on Tuesday, this coming Tuesday, which it looks like he was holding back on testifying and turning over documents, it's only got his book out for commercial game, which looks terrible.

And if in the book for which the Gen 6 Committee has already obtained excerpts, he's already talked about the Jan 6th discussion. He's had with Trump, discussions he's had with Trump, particularly about, I never meant to go with them to the Capitol. That was just rhetoric. That was just a figure of speech. Then as you just said, Ben, doesn't that open the door literally to the waiver of the privilege because you're discussing in your book the very subject matter that the JAN-6 committee wants to talk about. I think he screwed the pooch legal term as it relates to his privilege as assertion of privilege. I think he's going to give a deposition or

sworn testimony and he's going to have a tussle with the Jamie Raskins of the world, the constitutional scholar who's on the JAN-6 committee about, well, how do you get away with just publishing your memoirs when you talked about Gen 6 and the lead up to Gen 6? And now you're telling me you're asserting privilege. So Mark Meadows, I think, got a deep deep problems and trying to navigate through that. Moving on to Clark, Clark was already found in contempt. He has said that he will try to assert the Fifth Amendment as has Eastman.

Why is that so shocking? Because Trump, when he was in a rally during the campaign against Hillary Clinton, said that when Hillary staffers asserted the Fifth Amendment about the email server issue, that was totally improper. Trump said that only mobs and people in the mafia assert the Fifth Amendment. And if you have nothing to hide, you should never assert the Fifth Amendment. And now you have two leading people in his camp who he was close confidence with, both

saying they're going to assert the Fifth Amendment. But I want to make it clear for our listeners and followers, that's not the way you assert the Fifth Amendment. You can never under federal rule, federal law assert a blanket Fifth Amendment privilege and refuse to testify. You have to stand and deliver question by question to properly assert the Fifth Amendment. Some aspects of the question may be relevant to the Fifth Amendment. Some aspects of the question may not.

Some questions may not even implicate the Fifth Amendment. So I'm asking so the question may not. Some questions may not even implicate the Fifth Amendment, but you can't say I am not going to show thumb your nose and flout the power of the Jan 6th Committee and say Fifth Amendment. And that doesn't stop you for getting prosecuted either by the way. It just means that your own testimony won't be used against you, but if there's enough of a body of of of investigative work that has been developed by the JanAN 6 committee and the future department of justice investigation, Eastman and Clark will go to jail, not just for contempt, but for the underlying crimes that they might have committed to try to overthrow the government and not allow and not allow the certification. So so again, this is when bad

things happen, make them go slower, and that's why they're throwing up all of these roadblocks. But Clark has now been found and contempt. It'll go to the full house and then a criminal referral to the Department of Justice. And then I'll go the ban and route. Eastman has said in a letter, I'm asserting the Fifth Amendment and I'm not showing up, that's going to lead to a contempt vote and a referral to the Department of Justice. Meadows has avoided contempt as of now, but when he testifies after the publication of his memoir and is in forthcoming, he'll be subject

to contempt. So that's where we are at the moment along the continuum of Meadows to Clark to Eastman. So before you talk about ban and two, just how far I think we've fallen and how just wild the conversation we're even having is, you know, with the assertion of the fifth amendment with respect to Hillary Clinton, I just want to remind our listeners what that was even about. That was about a former State Department staffer who was alleged to have helped Hillary Clinton set up a private email server. And when he was deposed in connection with a case involving just setting up the private

server, this individual is a computer specialist by the name of Brian Pagliano invoked his constitutional rights with respect to setting up the server. In the Trump administration, creating the private servers using back channels to have conversations, like, there's been reporting about it, like, every Trump or did that. Like we've heard about all the stuff that Trump himself did, that Ivanka did, that Don Jr. did, that, you know, that who's the dweeb that I'm forgetting about? Who's his son-in-law?

What's Trump's son-in-law name? Jared Kushner. Jared Kushner, I'm glad that the name doesn't even roll off the top of my tongue anymore, but that's a person who needs to be held accountable. Like stuff like that, the idea of setting up a private server, the nuance and detail and our views of the rule of law when it comes to like Democrats is there's no accusation that anything actually illegal was ever being done, just that in our government system,

in the United States of America, when you're a public official, you shouldn't have to have a private server because we want the utmost transparency for our public officials. That's what that issue was about. Here we're talking about invoking the fifth and leading a fucking insurrection against the United States of America, invading the Capitol building, killing police officers, Capitol police officers. And every single thing that Trump did was to treat the office as an emolument, as a personal gain, as a profit. Every aspect was to enrich the Trump organization, not in the most subtle and nuanced way of,

hey, I may just need to have some conversations offline in my role in 2020, you know, when she was in the state department in, you know, the 2014, 2012 kind of period, hey, based on technology, there's just some delicate conversations that may need to be happened offline and back channel. So I'm going to have potentially a private server versus I'm going to enrich the Trump organization. But I digress this. It seems I'd love to go back to the days of Hillary with with with the email server. Could I believe that's an email server versus a political rally that that on purpose transforms itself into a bloody insurrection led by the highest levels of the Trump administration and Trump himself, just to give you an example.

Just so we remember who everybody is. We know Meadows Chief of Staff involved with all the organizing and the war room the night before. We know Eastman involved with the architect of the whole putting pressure on Pence and other states. Clark, I love Clarks. Clarks, the child, the child's against Clark, the child's against Clark, is that he on Trump's behalf leaned on the acting attorney general, the one who took over for Bar when he resigned, and headed for the hills. Jeffrey Rosen and told Rosen that he must declare to the

Georgia officials that there has been found to be fraud in the election at the at the federal level in Georgia to stop them from certifying, which is a lie. And if he didn't do it, right, then Clark who was four levels down from where Rosen was on the hierarchy. In other words, this is his boss four times up. And he told him, so this is like me, you know, or like my first year associate trying to fire me. He goes to the guy who's his boss of the boss of the boss, the attorney general of the United States, and says, if you don't do this, you're going to have to resign. We're going to fire you. I mean, this is how crazy.

And when stories like this came out of Watergate and the midnight firings and archipelago and all the other attorney generals that had a resign in succession who wouldn't do Nixon's bidding, we know what happened there. What's not happening here is the accountability that we need through the Jan 6th Committee, which is doing its work, of the issuing its report soon, and through the Department of Justice combined with the court system. We've got to get moving. This stuff's got to happen well in advance of the midterm election, where this is just going to be an interesting chapter in a textbook 10 years from now, but doesn't have real life consequences.

I think it's worse than that. I think the fear is that the, what will be in those textbooks 10 years from now can be rewritten. It's not a foregone conclusion that our democracy is safe. In fact, I would say the perils facing our democracy are so greatly at risk that you can see a world that if the GQP took over, they would rewrite the history of January 6th.

It wouldn't be unfathomable that January 6th would become a national holiday for Trump and Trumpists to celebrate and give thanks to the brave men and women who fought for liberties on January 6th. Well, the Victor, how sicko they are to come up with that. The Victor, the Victor writes the history book. That's, that's been forever. If the South had won the Civil War, the war of Northern aggression as they used to teach it in the South, you know, you know what the statues would look like, you know what the,

the alternate universe we'd be living it would look like. And, and to one reminder about why you and I do this every week, and what is our lane and what is our approach in this show. I read a review that said, you, the legal stuff's great guys, but just stay to the legal stuff. Don't do the politics stuff. It's outside your lane wrong. Our lane is the intersection of law and politics as it relates to our democracy through the lens that you and I bring to it, both as practicing trial lawyers and lawyers. And as patriots on the Democratic side. And when we talk about the Dobbs case and so to my or his statement in the case about Dobs case and so to my or our statement in the case about

the stench of politicization taking over the Supreme Court and destroying the body of the Supreme Court. You know, I would like to cut up here every weekend and actually not talk about the politicization of the legal system. But the reality is we have to talk about what's going on. And what's going on is a right wing GQP radically imposing political ideology in the courts and trying to put their thumbs on the scale of justice for a radical extremist Taliban-like political ideology. This podcast is brought to you by Fiverr.

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Every successful something was once nothing like my Distoch head to five or FIV ERR dot com again, that's five and then use that code legal a F and before going into the dobs case and updates on the ban in case I do also want to say that this podcast is brought to you by QB thinking about how many hours that we spend just sitting at our desks on the couch watching TV. And what if Popock, what if we could turn those inactive times into opportunities to burn calories and get fit. And that's exactly what I'm doing

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That's cubie dotcom slash legal a F someone who is not using QB is probably Steve Bannon. Popak tell us about what's going on with Steve Bannon's criminal case. And why is CNN and other media networks like joining Steve Bannon in his motion to have documents be released from his case against the opposition of the government. If by QB for Bannon, you mean crispy cream. Yeah, he's using it. Here's what politics makes strange bedfellows and sometimes litigation does too. So Bannon, as we reported last podcast, has decided because he's a podcaster and that's how he makes a living when he's not being an insurrectionist and an architect of insurrection, has decided that he wants the entire proceeding

to not only be in the public forum that he can talk about, but also thousands and thousands of pages of documents that he will be obtaining or exchanging with the government in the prosecution of his case, including witness testimony that the government obtained, grand jury proceedings in testimony, which the government obtained. He wants all that out in the public and the public. He wants to be able to talk about it without being gagged under First the public. He wants to be able to talk about it without being gagged under First Amendment. And he wants to be able to, you know, publish all of this private information, confidential information that was developed by the government, which is normally because of the sanctity of the grand jury proceeding, for instance, that needs

to be done in secret and grand jury members protected and their identity protected is usually not in the public domain. Now, the interesting thing is mainstream media, CNN, Washington Post, New York Times have jumped on board and have filed motions intervening and briefs with the judge, Nichols in the DC Circuit and said, that's a great idea. We should be able to see everything too, because we want to be able to report it. And they actually went as far as to say that and agree with Manin that his first amendment rights should allow him not to be gagged. And he should be able to talk freely about the proceedings and any information that he sees, which sounds diabolical.

But look, it's great for the content providers because Bannon will say anything, though they want to report it, they want to do it as part of their exposés. And sure, they'd like to, they have, they have an interest in seeing whatever is being produced by the government as well. So we'll have to watch this. Nichols is going to, Judge Nichols is now going to have to decide whether he's, he's in favor of the New York Times Washington Post and CNN along with Bannon, or he's going to decide with the government who says, wait a minute, this is like private information that we developed in grand jury

proceedings and witness testimony. It shouldn't be out in the public domain as of yet. And we'll see, Ben, what do you think Nichols rules on that? I think the key point is what you just said, though, Popeye. It's that the government's position is that this shouldn't be released as of yet. Not that this shouldn't be made public generally. Steve Bannon will have access to the documents to prepare his specific defense. Steve Bannon's lawyers will have access to the records, so they'll be able to prepare that defense. It's the government

saying what we're worried about is other witnesses, other people who were prosecuting seeing these documents and then learning for them so they could try to get their stories straight while we're still examining and taking testimony, you know, the proceedings of some of these insurrectionists, but we're not biasing Steve Bannon. You know, I guess the broader question though here, where I, where I somewhat take issue with the government though, is that what the government said is that this case is really just about the failure to show up at a deposition by the January 6th committee failing to give the testimony.

And so if I'm the government strategically, what my position is, you could have all of those documents because we want to go to trial on that immediately, put up or shut up, we're willing to put up the documents. It's a subpoena to Steve Bannon to show up. It's potential correspondence for him to show up. It's his refusal to show up. Judge, there's nothing else out there. If Steve Bannon, though, is making these broader discovery requests, which he is going to do for all of the Jan six documents and to try to make this into a circus,

well then those documents should be subject to a protective order and be kept confidential when they're not even needed for the trial. There's nothing to do with Steve Bannon's case about not showing up for his agency. Oh yeah, but it may go to Men's Rea. It may go to the criminal intent. I think on the defense side, some of those documents go to whether he in good faith

believed that he was following the proper direction of the former president on executive privilege application, which we know in Bannon is a stretch anyway, because he was three years removed from the White House at the time of the, three years removed from the White House at the time of the, uh, uh, yeah, three years removed from the White House at the time of the Jan 6th insurrection. I, I suppose I, I think that that would be a stretch of an argument, I think, to actually bring in, um, to trial that there's going to be any documents around that that would suggest that, but, but, but can I just mention one thing about about about the podcast world? We talked about Eastman, Professor Eastman, who the Jan6CMD he wants to talk about,

and he's going to eventually be found and contempt and is trying to assert the Fifth Amendment. You know where he has been chatting up a storm, including on the day his lawyer sent the letter to Benny Thompson, the head of the Jan6CM 6 committee asserting the Fifth Amendment on not only a Bannon's podcast, which is now the podcast of choice for all insurrectionists and people facing the Gen 6 committee, but Mark Leven's podcast as well, testifying at length about what a joke the Gen 6 committee is, what a farce it is, flouting it, thumping their

nose at it. He literally set this on the day that his lawyer said I'm asserting the fifth amendment. They think they can have it. They're cake and eat it too. They can go on social media. And at the same time, ask for people to send them money. He said Eastman's already collected $50,000 for his legal expenses by appearing on Bannon's podcast. So this is like this hermetically sealed loop of, you know, Bannon's indicted. He brings all the other indicted people on and then they do fundraising through the Republican QAnon party. I mean, it's really disgusting, but it's in plain view. It's an open, this isn't, we can go on today and go look at the episode on, you know,

and download the episode for Bannon. I'm not sure which platform he's on, but whatever he's on. But it's really sick. And so then you have that ban in the world. And then lastly, something on a related note, you have a judge ruling just three judges of the DC circuit ruling that parts of the Mueller report that were redacted for national security and other purposes should be removed, should be released to the public. Specifically, specifically, the one that references potentially Don Jr., and you and I talked about this, I think on episode one or two of Legal AF, Don Jr. meeting with a Russian abortion lawyer, ostensibly to talk about Russian abortions, but really as a way to flout federal election contribution law and get money into the hands

of this Russian person to get a dossier against Hillary Clinton that took place in Trump Tower in New York. He's listed as Don Jr.'s name is not listed, but every legitimate media outlet has outed it as Don Jr. And the Buzzfeed, which we like and support, went into court in DC and said, we should be able to get a lot more versions of the unredacted portions of the Mueller report as well, including we think that's talking about Don Jr. That should come out in the public. And the three judge panel of DC Circuit sided with Buzzfeed and it's going to force the Mueller report more aspects of it to be released

to the public. Although I'm not really sure, you know, I don't want to get our listeners hopes up that anything substantive from the not redacting it anymore is going to do anything. We all know what it said. I mean, I think what the court, I dug into that a bit, Pope, because the headline, I applaud Buzzfeed for going the distance and continuing to like seek the unredaction, but really what the court said is like everybody knows this anyway now and it's already out there. So the privacy concerns don't matter.

Well, no, it's on junior. I was talking about a podcast. And I also want to say, could you, this podcasters privilege that these right wing GQ peers assert is just one of the most, it's not really a privilege. And I'm saying it jokingly, but these podcasters who are no longer associated with an administration, but who podcasts for a living, all they, like, I don't think, Bannon does anything else other than, you know, his podcast that he does, asserting that he has executive privilege. Can you just imagine if you and me, we have like a federal judge like, um, sends like, you

need to have a call at 11 o'clock and we're like, a podcast is privileged. I'm doing my podcast. I can't communicate right now, you know, or we're in a deposition or someone asked us a tough question. I'm a podcaster. Okay. You expect me to actually answer your question. But if we had a hearing where we maintained decor of his lawyers and said, yes, Your Honor, and no, Your Honor, and of course, Your Honor. And then we had a podcast later that day, we're like, this one, were you and I said, what a douchebag that that judge is.

I hate be he's always wrong. You know, the things that, you know, you sometimes you think of, but you would never say that's what they're doing. The lawyers are sending letters to the Jansix committee saying, Oh, we might be criminally prosecuted Fifth Amendment right. And they're going on ban and show to go fundraise by saying the Jansix committee is a circus and a joke. And here's the thing. I think also when we talk about the Supreme Court, and when we talk about the Amy Coney Barrett's, when we talk about the Gore-6, we talk about the Kavanaugh,

the Thomas, the Alitos, the Roberts, all the people appointed by right-wingers. And these people think they're very smart. What if I posit this theory, Popak, that they're actually kind of useful pawns in the destruction of their own institution, the people like the bannons of the world. They don't really want the courts

to have any legitimacy whatsoever. When we saw what happened with the Giuliani's of the world and all the bogus frivolous lawsuits they filed with asserting the big lie were there now all being sanctioned and disheart at some point they basically made the decision hey let's just set up a fake courtroom in a fucking Sheraton lobby you know or in the Hilton lobby and let's just put up a fake courtroom in a fucking Sheraton lobby, you know, or in the Hilton lobby. And let's just put up our bogus crazy shit. We'll call our crazy people. Let's just do this kangaroo courtship. Why are we having real judges where we actually have to talk about the facts? Let's set up conspiracy court. And really what we saw this

week with the oral arguments in front of the Supreme Court, and so to my ears, warning that the stench of politicization is going to destroy us as an entity, if we're going to start overturning fundamental rights, like the right for a woman and a childbearing person to choose and to have the right to an abortion simply because y'all are appointed by Trump and Bush and particularly Trump. Then this institution that I'm a part of has no credibility like I've never seen a judge like actually she basically dropped the bomb on the Supreme Court rightfully. So the truth bomb saying, I know what you're going to do. And when you do it, you're going to destroy yourselves,

right wing judges, because none of us are going to have any credibility. This Supreme Court is for shit. And see, I think though, the right wing judges, though, Popeyes, I'm not sure they fully get it, that they are being treated like shit. The Trumpers at the world, they don't believe for a second, they don't give a fuck what the Supreme Court does about abortion, about gun rights.

They don't give a fuck one way or the other. What they care about is that the institution and our court systems have no credibility. That's my rant on that, but Popeyes, I don't wanna repeat and rehash all our arguments about what we spoke about with- Are we doing about- I'm on the 20-minute special. Yeah, I wanna talk about the Dobs,

verse Jackson, women's health, but before but going into that Popeye, are you surprised though, the Supreme Court has yet to rule on the SB 8 cases? I told you, you know, out of Texas, there was the two cases that were consolidated. Judge Pittman up to the fifth. Yeah, from Judge Pittman in Texas and Austin up to the fifth circuit. And now to the Supreme Court on the, and the remember, the Fifth Circuit said that

this crazy Texas bounty hunter law was allowed to remain in effect. It was then argued in front of the Supreme Court. The Supreme Court seemed to suggest that they were going to strike down this Texas bounty hunter law. But for the reasons that wait a minute, this same concept that states can basically create private bounty hunters to enforce laws that go around the Supreme Court. What if what if progressive and liberal states can do that to try to stop mass shooters from getting guns? We in the GQP want students and mass shooters to have guns. We want guns everywhere. Imagine if a state

like New York or California said that private citizens could sue other private citizens for $10,000 for carrying certain types of weapons when they shouldn't have these types of weapons. Imagine what would happen then. So that's why they were going to strike down that law. I told you, Pope, I thought they were going to wait the Supreme Court until they heard oral arguments on dobs because I told you, I know what they're doing here, Pope, they're going to do the ultimate screwdriver. They're going to totally abolish the right to an abortion. They're going to abolish that fundamental right by a judicial unconstitutional decree, but they're gonna say it so

And then they're also going to say Texas. It's moot your SBA law isn't even really matter anymore They're not gonna say it's moot. They're gonna strike it down and say that's not the right mechanism So that progressive and liberal states can't use it on Laws that are things that actually help our safety like guns and other things. But then Texas is going to say, yeah, it's a win for us anyway. Abortion is illegal. What do you think, Popeye? Well, I was hoping they would make the ruling on the SBA, bounty hunter law upfront and clear the brush before they took argument on the Mississippi Dobbs case. And that didn't happen.

And I think you were right about that. They're going to obviously the Dobbs decision is going to come out this summer. And we're going to have a special edition, I'm sure, like we just did for the oral argument when the ruling comes out about June or July. And I think they're just content and they don't have the votes on the current Supreme Court to do anything differently. They're just content with letting basically abortion be banned in the state of Texas for eight or nine months all the way through the ruling. I think at the end, and we're going to talk about now the scorecard, the lineup that I see for voting

between the nine justices and what could be the likely, there's really two likely outcomes, possible outcomes that could happen. We're just going to have to wait till June or July. I think they're going to handle Texas in the meantime and you're right, they're going to just allow band abortion in Texas in the interim. But when you looked at the oral argument, not to repeat our special edition from two days ago, but you've got the only two justices that matter now, the only two that matter, and are the swing votes, and what is not really even a swing vote,

is Amy Coney Barrett, and Gorsuch. When Amy Coney Barrett and and Gorsuch. When Amy Coney Barrett is your swing vote post. She's not really. I said, one of them is not really. So you're not even gonna say basically that. That just shows you that she was the swing vote we be dead. So the you have the lineup as the the Kagan Sartemiar, and Breyer, who are defenders of the constitutional right to pre-viability

abortion, being established first in 1972 or 1973 in Roe v. Wade and reaffirmed in 1992 by Casey. As a constitutional right established by a reading of the right of privacy and the other rights that are expressed in the constitution, but these are implied rights that are given usually just as much enforcement and validity as any other right, even though it's not in the literal text. That's where those three line up.

Then you've got Thomas, who doesn't believe there's a constitutional right embedded in the constitution to abortion, pre-viability at all. You have Alito, who doesn't believe that either. You have Kavanaugh, who is siding quickly with Alito and Thomas on this issue and believes and said this in questioning, which was really pseudo questioning, really statements of what his position was, staking out his position, that the Constitution is neutral on abortion. I guess it means that the Constitution didn't have the word abortion in it. And therefore, we should be neither pro-abortion or against abortion. We should let the states decide, which means 26 states within a year of a decision allowing

it will ban abortion outright. But he's okay with that. And then you have the last two. There's Amy Coney Barrett, the mother of seven Catholic law professor, who in her own questioning said, why do we even need abortion? Because adoption laws and safe haven laws are pretty well established. That's not a good sign for where she sits. The safe haven law part was even extra kind of handmade drop them off at the firehouse. That's okay. Yeah. Why would you need it? What you should do is, if you're a victim of, you know, rape or incest, what you can do is carry it through term and then abandon it. Right.

Right. And she was asking the government and others, why didn't you address this argument? We have safe haven. Yeah. So that, so we know where she's going to end up. And so what is the fight the the ideological ideological fight that is now going to happen in conference among the law clerks and among opinions that will be circulated between the right and the left between now and June or July. The ideological battle is between Justice Roberts who wants to find, based on his questioning and his past rulings and his approach, he wants to find and maintain a constitutional right to an abortion, but he wants to limit it back to at least the 15 weeks that's in the Mississippi Statute.

Right, the Mississippi Statute, Bands of Borsians after 15 weeks. And the other one you're saying. And so what you're saying here, which is what's kind of shocking about this oral argument, is that probably the best result that could come from a pro-choice perspective is just that the Mississippi ban is upheld, and that the Supreme Court doesn't go further and just completely claim and assert that the right to an abortion doesn't exist.

Right. You're right. The best case scenario is that Roberts gets gorsuch over to his side, which is going to be a heavy lift. And then in combination with Breyer, Kagan and Sautamayur, they both reaffirmed the constitutional right to pre-viability abortion while at the same time removing the viability line that was established

by KC and Roe v. Wade, which is 24 weeks. So 24 weeks get rolled to 15 weeks, but the constitutional right is maintained. That is one outcome. If he's not, Roberts is not successful in getting Gavin getting gorsuch over to his side. The constitutional right to an abortion will be eliminated. It'll be the first right that has been eliminated in the last 150 years by a sitting Supreme Court period. And but it's really, this is, he's at list with the whole world on his shoulders that it's Justice Roberts because he wants to side with the liberal wing, with the thinking

wing of the party of the Supreme Court, but he needs one more vote, or this goes down five four, because my gut is Roberts will side always and find constitutional right to an abortion. It will write a concurrence, but we'll ultimately side with with Breyer Kagan. It's up to my or, but it'll go down five four. And so he has to try to avoid that. That will be the legacy of the Roberts court. The legacy of the Roberts court used to be that he upheld Obamacare twice. The legacy of the Roberts court used to be that he upheld Obamacare twice. The legacy of the Roberts court, he knows it is if this goes down in flames, is that he was the chief justice that let it happen.

So that is going to be the battle. And when you heard the questioning from Alito saying, well, when they passed the 14th Amendment to the Constitution, there were no real abortions. So we can't do an equal protection analysis of the 14th Amendment to the Constitution. There were no real abortions. So we can't do an equal protection analysis of the 14th Amendment. And Cavanaugh saying the Constitution is neutral when it comes to abortion. And Amy Cody Barrett saying, safe havens and adoptions for all, I mean, it really is disgusting. And the problem with Gorsuch is that even Gorsuch's questions were along the lines of of he sees it as all

or nothing there either is a constitutional right to an abortion or there is not and there's no middle ground using viability as the as the angle of attack. So look, this is going to be a lot of long lunches between Roberts and gorsuch and the clerks for Roberts and gorsuch to try to get them over to the other side. And we're going to know who won that war when the opinion is issued and who writes the opinion, which is selected by, you know, by the chief justice. If the chief justice won the war, he'll end up writing ultimately the opinion and you'll

know it. If he lost the war, it's going to be one of the other five that we've identified, right? And woe be it if it's Clarence Thomas, who is who has consistently said in every opportunity that he's had, even when it doesn't deal with abortion, there is no constitutional right to an abortion. And the only judge left on that on that on that group that actually was on the panel in 1992 for Casey. This will be his grand, this will be his grand moment as a justice for the right wing if he's able to eliminate abortion in our lifetime.

So dystopian, Popak, because we, we're using the terminology here though, the right to an abortion, but also really more fundamentally, it is the right of a woman and a right of a childbearing person over their bodily autonomy from the United States government, from telling them that you do not have a right to make decisions over your body, that you don't have the right to make decisions in private consultation with your doctors, your faith, if you lean on your

faith, your family members, you don't have that decision. We, the United States government, we Kavanaugh, frat Kavanaugh with skew and skew, and I'm going to tell you what your right is. Justice Thomas, who's got family members, at least one family member who's at the right to steal the steel election rally, telling you what you need to do with your money. Exactly. He asked people before he hit the bench. Justice Alito, telling you what the government's going to interfere in on your body. telling you what the government's going to interfere, intervene on your body.

Robber, Scorsic, Amy Coney Barrett, but primarily the men asking those questioning is what infuriated me the most to to to know end, which is just even just thinking about it as a man. Like how do you even put yourself in a fucking robe in a position where you think that you have the right To say these things about what the government can do about a woman's decision and about a childbearing person's decision Well, look who argued for the look who argued for Mississippi the male attorney general for the state of Mississippi He was an entire argument boiled down to you, you Supreme Court did a terrible thing 50 years ago in settling this social debate for the people by declaring a constitutional right to an abortion pre-viability, wherever that line was. You should return it to the people and then everything will just calm down and the people will

don't worry have faith in the people. The people will take it from there, which means just draw line right down the country. This is this is handmaid's tale where you have the free states that are going to allow abortion and the other states that are not going to. And then it will be a poor woman in one of those states who can't even afford to go to McDonald's that day, let alone leave the state to try to find an abortion within the time period in the new dystopian world that's created by a decision that goes the way of Clarence Thomas.

And just to be clear, a woman has never had even under Roe v. Wade and Casey and limited unfettered right to have an abortion at any time of her choosing. Just hasn't. It's always been by trimesters, by periods, by weeks, by by science having a role in it in the courthouse. But and the state having a role in the protection of the viable entity as it continues down the protection of the viable entity

as it continues down the continuum of viability. But, but prior to viability, a woman should have a right to choose and have her own bodily autonomy and everybody should get out of the bedroom and out of her vagina for and womb for lack of a better term. And then you see, uh, Kavanaugh saying, well, we've struck down precedence before. Why wouldn't this be just as good as when we struck down precedence regarding slavery and giving African Americans the right to vote? Those were, aren't we doing such a great thing here like we did then? And so you just have those horrible analogies there,

but we go full circle in this podcast of here when it comes to a woman's body, a child bearing person's body, the government saying, we think the government should affirmatively intervene and tell you what you should do with your body. As we started off at the beginning of the podcast, when it comes to vaccines and the government saying, you know what, to have some common sense approach here, and when we have a

pandemic that's killing potentially millions of people, and that poses existential threats to the lives of our loved ones, let's just get vaccinated. And if you don't want to get vaccinated, you know what, we're not going to require you to it, but you may just need another job. You may not get a lot of funding. We're just going to try to incentivize you to do something. And there are these justices that Trump appointed are saying how dare the government even intervene to try to incentivize people to get vaccines and to push people to be healthier. So that's the legal AF for you. Wish I could wrap it up with a little bit of better news other than other than you got to do

something about it. You know, if this, if this podcast, the other podcasts, you know, tell you that you shouldn't get off your feet and do something or that if you're bummed that Biden didn't get you as much in the infrastructure bill that you wanted, it's like, dude, stop complaining, do debt, dude, whatever, stop complaining about this. And you got to realize what the real threat is here. And it's a fascist dystopian threat that's not just encroaching but has almost fully encroached. And I'm always, I take great pride when we get emails from people out there who are doing things who are activated as a result of these podcasts, but you listening, you have to do things. You can't just turn this podcast off anymore and then just say, all right, that was a good podcast. Say it's a good podcast. Say it's a good episode. Go out there, do something about it and make change by spreading the truth.

Putting aside all the the funny gifts and little animated animated birthday wishes. The thing that I came away with in reading, warm wishes to me and you in the show from my birthday was how much of an impact you and I are having on the worldwide listening audience and watching audience, which is motivating them in a way that I think they weren't motivated before or didn't have an outlet to be motivated before. We've created and your brothers have created a safe space for people to express themselves politically. But we don't want it.

This is Ben's point. This is your point. We don't want it just to be in a hermetically sealed vacuum. The chats are fun when we do the, you know, as we're doing this live recording and I jump on occasionally under your live recording just to check in. They're fun. It's fun. The tweets are fun and informative and we try to pull that off, be entertaining but also informative. But you got to do more and that's your point, Ben. You got to get off the couch. You got to get off the canvas and you got to get into the ring. As we've said over and over again, democracy is a is a participatory sport.

It's not a spectator sport. And and we have to maintain our control of the government beyond this term or will never reverse the scars and damage created by Trump. We just won't from the federal judiciary alone. It's going to take more than one term to fix what happened. We will fix it. But you can't sit back and say, I don't like the candidate.

I wish I had somebody else. Get behind whoever the candidate is for the party that you choose. And go out and knock on doors and do phone banks and go down and do local politics, whatever it is, and run for office and become delegates. And that's what you do every day on your show and what we do through the legal political

process on our weekend podcast. Hope, I enjoy spending the weekends with you. Everybody out there, thank you so much for tuning in. That's what you call it with podcast listening, watching wherever you consume legal AF. We truly appreciate you. Make sure to give legal AF a five star review and please read leave reviews on the podcast platforms if the podcast platform that you're listening to allows you to do it. Those five-star reviews and the actual reviews themselves helps with the algorithm to make sure that Legal AF continues to be the top legal podcast in or one of the top legal podcasts in the United States of America, the top legal podcast that I like to joke in Micronesia, Cyprus, and a bunch of other countries where I'd love to visit one day and meet all the people who are listening to Legal AF and a bunch of the foreign countries who I see are listening to it.

We appreciate you. Give that five-star review. Go to MidasTouch.com as well if you want to check out some of the Christmas holiday, Anika, Kwanza, other holiday specials that we've got going on there for gifts. Special thanks to all of our sponsors on this podcast, Fiverr, QB, or frames, use that code, legal AF, to get those discounts, unlock those discounts. We'll see you next week on legal AF, if it's Saturday and Sunday. It is legal AF, shout out to the latest page. It is legal a shout out to the might of Spain.