Legal AF by MeidasTouch - Trump LASHES OUT After Gag Order as Criminal Case GETS REAL

Episode Date: March 28, 2024

Defense attorney Michael Popok & former prosecutor Karen Friedman Agnifilo are back with a new episode of the midweek edition of the Legal AF pod. On this episode, they debate: developments in the Manhattan DA prosecution of Trump as the Judge prepares for the April 15th trial and reprimands Trump’s lawyers while gagging Trump; whether the appellate court lowering the bond amount 62 PERCENT that Trump has to put up to stop enforcement of the $465 million civil fraud judgment means that they are concerned about certain aspects of the trial judge’s rulings; whether Fulton County DA Fani Willis will move for a new indictment of Trump as the trial court considers new motions to dismiss, whether the US Supreme Court will rule that a woman does not have a right to access medicated abortion pills, and so much more at the intersection of law, politics and justice. DEALS FROM OUR SPONSORS! Smileactives: Visit https://SmileActives.com/legalaf to get this exclusive offer! Lume: Control Body Odor ANYWHERE with Lume deodorant and get $5 off your Starter Pack (that’s over 40% off) with promo code legalaf at https://LumeDeodorant.com! #lumepod Nom Nom: Go Right Now for 50% off your no-risk two week trial at https://TryNom.com/LEGALAF SUPPORT THE SHOW: Shop NEW LEGAL AF Merch at: https://store.meidastouch.com Join us on Patreon: https://patreon.com/legalaf Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Learn more about your ad choices. Visit megaphone.fm/adchoices

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Gambling Problem, call 1-866-531-2600 or visit connexontario.ca. Oh, there are just developments at the intersection of law and politics that you have to know about. We're going to start with the Manhattan DA and the trial of the century, at least this century. It's going to start on April the 15th, unless there's a stoppage created by the appellate court. We'll put a pin in that for a minute. Trump has been gagged, motions have been denied, witnesses are ready, and a judge is annoyed.

All in one case, Judge Mershon presiding. We're gonna talk about what happened, how the judge kind of cleared the low-hanging fruit to get ready for the trial, had a hearing about when the trial would be, ripped into Donald Trump's lawyers for making baseless attacks about prosecutorial and judicial misconduct. What else is new? But the judge was having none of it and then issued some subsequent orders that showed that his ire, or as our president says, his ire is up about this case and the lawyers, and they better find a way

to find credibility with him quickly as a jury is going to be picked on the 15th. But a possible and likely appeal by Donald Trump related at least to the gag orders and the offing. We know that because we know Donald Trump's MO, if we know anything, on legal AF. Then we're going to turn, we'll stay in New York, but we're going to turn to the civil fraud case and the New York attorney general $465 million plus civil fraud judgment and other aspects of the judgment that have been partially stayed by a intermediary appellate court, the Appellate Division First Department in Manhattan. And they've also decided to what we refer to around here as bail out Donald Trump and make

him post only $175 million of the $465 million judgment. What does it mean? Does it mean that the five justices, including the presiding judge, the chief judge, Judge Renwick, is having second thoughts about the dollar amount that Judge Angoran entered, how he calculated it, whether he properly applied the prior rulings by the appellate division, the same appellate division, about how to calculate disgorgement. How did they come up with $175 million? Is it just random, which is what some people think, or as I've started to posit, it's not random at all, and it may actually result from their own analysis of some things that

Judge Angoran may have not done entirely properly. They also state other aspects of the judgment, particularly about Donald Trump having to stop running his own companies along with his sons, and his inability, based on the judgment, to continue to borrow money in the state of New York. Those aspects have been stayed, but other aspects of the judgment are still in place. They didn't disturb or touch the fact that there not only is a monitor over all financial affairs

of Donald Trump and his companies, but she's been given even more robust powers. I mean, that last aspect isn't up for appeal just yet, but they kept the monitor in place and they kept the independent compliance director component of the stay order in place. So we'll analyze what all of it means and we'll read the tea leaves

and try to tell you our best guess as to what's gonna happen next with that particular appeal, which will time out with a ruling sometime in September. Then we'll move to Georgia. We talked a lot about Georgia at the beginning of the month in ways that made most of us uncomfortable about why we knew so much and why do we have to know so much about the prosecutor's private affairs. They're called private affairs for a reason. And why did that even matter to the judge or to the case law about whether she should be disqualified or not?

Well, she's back from the dead like Lazarus. And you know what they say, that that that doesn't kill you makes you stronger. And we now have a renewed Fonny Willis Fulton County prosecutor who says she is loaded for bear, that the train is coming for Donald Trump or whatever the recent phrases were, and she wants a trial date sometime in the summer.

So we're going to touch back on Georgia and what's going on there with the trial that Donald Trump may fear the most. He's got, you know, it's sort of like Goldilocks. He's got the one that's going to start right now. He's got the one he fears the most. He's got the two he's trying to delay. It's an elaborate children's game and we're the victims of it, but we'll talk about Georgia. And then lastly, we've got the United States Supreme Court deciding that not once, but twice this term, they've got to go back and touch abortion rights again. Having just two years

ago, it's hard to believe it was two years ago in March, having ripped away a woman's constitutional right to choose that she's had enshrined in the Constitution and case law for over 50 years in the Dobbs decision. They've decided not to leave well enough alone, or maybe they have, and they've taken up the appeal of a Texas federal judge sitting in Abilene, Texas, Judge Kazmeric, who before he got the job wearing a black robe by Donald Trump, was a general counsel for a right-wing anti-abortion organization. Guess where his sentiments lie as he sits in little old Abilene, Texas, the only judge in that division, up through the Fifth Circuit, who decided that Judge Kazmarik's ban nationwide from Abilene, Texas of the use of Mifapristone, which is one of the two drugs in the regime that's necessary for

medicated abortions, which is the primary way that women get abortions. This is not about an abortion right. This is about the FDA, the Food and Drug Administration, and their rulemaking and whether they have the right to declare, as they did in 2000, 24 years ago, that mythoprestone was not only safe, but as safe as aspirin, if not safer, and then made other rulemaking, especially around COVID, that allowed women to get mythoprestone

without having to go to a doctor through telehealth, telemedicine, and through mail order. And of course, the abortion anti-abortion group that lost their mind over it and have decided to attack that as well. Josh Hawley, Senator, his wife is a lawyer and she decided to make her first appearance in front of the United States Supreme Court arguing on behalf of the Alliance for Hippocratic Medicine, a made up astroturf organization that incorporated itself in Abilene, Texas in order to file a case in Abilene, Texas in front of Judge Kazmarek.

Handpicked justice is what we like to call it. How did the arguments go in front of the United States Supreme Court? Well, let's just put it this way. When you lose Justice Gorsuch, when you're anti-abortion, you're probably not going to win your case. And we'll talk more about Kagan and Gorsuch and Kavanaugh and Amy Coney Barrett and Kataji Brown Jackson and the oral argument in a way that, as I said on the podcast with Ben, in years past, the correlation between what you watched as a court watcher at oral argument and what would finally happen in final decision about major cases sometimes didn't match.

Sometimes there'd be a mismatch because there'd be a hot bench or they would just be interested in taking the devil's advocate position, but then you'd see something else as they got time to really sit, look at the case law and develop their positions. No more. No more. What you see is what you get with this Supreme Court on key civil issues that challenge our times. And if they're lined up in a raid in a certain direction during the oral argument, rest assured

that's how the judgment and the final decision is going to be. We'll talk more about that. We do it in one place twice a week. It's called Legal AF. You've reached the midweek edition of Legal AF with my co-anchor, Karen Friedman-Ikniflo. I'm Michael Popok. We're ready to get going.

How you doing? I'm good, I'm good. How are you, Popok? I'm doing fantastic. Tell us, catch everybody up a little bit about what happened. We haven't seen you in a couple of weeks. You were traveling on assignment last week. Anything our audience should know about the life of KFA? You know, just busy living the dream, busy running around, doing lots

of fun things. Doing your practice, active law practice, we were just talking before the podcast started, Karen is regularly on a short list, as I hope I am someday, for certain types of cases around the country, a national trial lawyer, a national defense lawyer, and couldn't think of a better person. I'm actually thinking about working with her on a new case that will not be talked about on Legal AF. But it just shows you that as I joke when I do the bumpers for After Dark, for Legal AF After Dark on segments that we'll be doing today, I say, you like listening to a podcast led by lawyers who know what they're

talking about at the intersection of law and politics? That's novel. And I feel that way. law and politics, that's novel. And I feel that way. There's other people that do what we do. I'm not an idiot. However, I think that unique brand of practicing lawyers, former prosecutors, defense lawyers, trial lawyers, civil rights lawyers, media lawyers, and celebrity lawyers like Ben,

kind of bringing it all together here with our unique take is different. It's a different product. And I was looking back at our numbers because we just celebrated our third year anniversary in founding the show. And the numbers just as a compliment to the audience before we get started.

Just like when I said two years ago, Dobbs decision, I went back and looked at a midweek that you and I did where we had Robbie Kaplan, who is E. Jean Carroll's attorney in the case against Donald Trump, who's taken a cool $100 million off the former president for being a sex abuser, technical rapist, and punitive damage payer for being a recidivist when it comes to defamation. And then we had her on and we had her on about the Dobbs decision because it just happened the day that we brought her on to talk about other things where we broke the news of the

Dobbs decision. It had 5,000 views and that we were happy with that at the time. Like now if we didn't have an audience that was, if we had an audience of 5,000 people, we would think something has gone terribly, terribly awry. That's a compliment to everybody that's here. All right, enough Pat and everybody else on the back. Let's get into our stories. Let's start with your old stomping grounds, as we like to say, the Manhattan DA's office. I'm going to turn it over to you, Karen. What are you, what's your takeaway from Judge Mershon's demeanor, his interaction with Todd Blanch on behalf of Donald Trump, the rulings that he's issued, the gag order, the trial date, the no, you don't get to file more motions without asking for permission order, his decision-making

on witnesses and evidence. Do that and then I'll pick up with what I think is going to be the eventual appeal. I'm not sure it stops the April 15th trial date, but why don't you do all the nitty-gritty trial work and then I'll wrap it up at the end. Yeah. So it's clear that this case is starting. It's going to trial. And the reason I say it's clear is that's how everybody is acting, especially the judge. The judge is absolutely behaving in a way that the trial is beginning April 15th, come hell or high water. I would have thought it was going to start March 25th like it originally was. And I think everybody else did. And then the Department of Justice, Biden's

Department of Justice and the Southern District of New York dumped a huge trove of documents into Trump's lap and the DA's office lap at the 11th hour, literally a week or two before the trial was supposed to start. And so for Donald Trump to go out and say, oh, this is all a collusion with Joe Biden, with Alvin Bragg is so ridiculous because it really had the potential of derailing this case. And it did derail the case for about three weeks. So there's no coordination there.

There's no collusion there. This is, as it always has been, two completely separate offices who do their own thing and and occasionally bump into each other with cases because they're both in Manhattan and you can tell though that this judge has just keeping everybody on a short leash so that nothing else delays and that this trial goes when it's supposed to go now, April 15th. And let's just talk about two recent decision and orders that Judge Mershon, who's the trial judge in this case, that he issued in addition to the gag order that he also just issued

after the court appearance on March 25th, because on March 25th, the day the case was supposed to go to trial, they had a hearing about these documents and about this document dump. And at that hearing, Judge Marchand clearly expressed and voiced his frustration at the lawyers. And in particular, the lawyers representing Donald Trump

and is basically sending a very clear message, start acting like real lawyers, you're officers of the court first, start acting like real lawyers, not just this performative thing that you do for an audience of one, your client. And so he's really letting them know that he's in charge, that he's going to protect this jury because

that's his job. His job is to protect the trial and protect the jury. And when I say protect the jury, I don't mean protect them from any threats or harm. I mean, protect them from irrelevant inadmissible information that they should never see or hear so that there is a fair trial based on relevant admissible evidence and that the verdict, whatever it is, is only based on that and not anything else. That there A is a trial, B that it's a fair trial and a just trial. And so all that Judge Marchand is doing is to make sure that that happens. And of course, he has the benefit of what Donald Trump did in front of Judge Angoran, right? We saw him talking

outside of court every day, attacking judges and witnesses and others. And there, he could be a little more lenient, the judge, because there was no jury. So there was not the risk that there is in a jury case, right? Because a judge can just put all that extraneous stuff aside. And he also has the benefit of how Trump behaved in the E. Jean Carroll cases, right? And to know exactly, and that was the case with the jury. And I think he's watching, he's watching what Trump is doing in other cases, and he's learning from it and ruling accordingly.

So let's talk about the two decisions that Judge Mershon issued the day after this hearing, which was one of them was Trump's motion to, he wrote, he made a motion to ask for public proceedings and to unseal everything. And he actually said in his, in Trump's motion, the public should not be shielded from anything. And so I'm making a motion to unseal everything. So if you were to read that, if a lay person were to read that, and who isn't following this in any granular detail, the way you and I are, Popak and Ben, they might wonder, wait, what's going on here? Why are there things being hidden from the public? A courtroom and a trial is a public forum

and there shouldn't be anything secret or hidden. And so Judge Marchand's order was very clear at spelling out exactly what is going on and what's not going on. He's not gonna let anyone be misled about what's going on in his courtroom. And so he says in his decision, Trump asks for public proceedings and that the public not be shielded from anything. And what he said was the court, basically everything that is normally maintained in a public file here is in a public file. So there's nothing secret. And he said,

the court, now the bigger court, not his courtroom, but like the unified court system, they're even posting key documents online, which is unusual for Manhattan Criminal Court. They're not online yet. There are no, it's not like federal court or civil cases even where you can get stuff online. Manhattan doesn't have that yet. And they're working on it. But but here in this case, they're even putting stuff online for that. And he said, of course, the proceedings are open to the public like they are any other, like any other time.

He says, all you're trying to do, Donald Trump, there was one protective order on May 8th, 2023, and you're trying to get around that. And he says, your statement, Trump, Donald Trump, defendant Trump, that there are quote, multiple rulings that have been shielded from the public is wrong. And he said, all you're talking about is one email, one email that I sent to you guys that I said is regarding this protective order,

and you are misleading people. You're trying to let people think that there are things that are hidden. It's not. And he said that the email that he sent You're trying to let people think that there are things that are hidden. It's not. And he said that the email that he sent is not a decision or an order. It's a communication and it was just an email. That's it.

And so for one email sent to both parties by the court, for Trump to then somehow say this is not a public proceeding is misleading. So he kind of smacked him down with that one. The second one that he also filed the next day was a decision and order on defendant's motion to vacate a court order on filing motions because on May 23rd, 2023, which was two days before the case was supposed to start, the trial was supposed to start. Sorry, May 23, 2023. I'm talking 2023. Sorry. May 23, 2023. That's when the court set a firm trial date of March 25, 2024. And the court told the parties, he said to both sides, to the prosecution and to the defense, they were directed, do not engage yourselves in any other case, in any other trial or commit to anything that would prevent you from starting

and completing this trial beginning March 25th, 2024. The judge said in a decision, which I thought this is really shots fired as they say, that he would put this in an order. He said, quote, since that time, okay, since that 2023 date, that defendant has repeatedly tried to delay the start of the trial. Indeed, the March 25th, 2024 start date has now been moved to April 15th, 2024. He goes on to say that the parties have filed numerous motions, including one on presidential immunity two weeks before the trial was supposed to start. And the next day, March 8th, the court ruled no more motions without permission. You have to get permission to file motions.

The date for any motions long past, you filed many, many, many, many motions. You've had many opportunities. We're going to trial and any motion that you file now late is going to be to try to delay. They said no more motions without permission. So, and he said, look, the defendant is trying to get around this, try to vacate this order. And he said, first of all, denied, okay, no more, I'm not vacating this order that there's no more motions. And by the way, by including, when you asked for permission to file another motion,

by including in it, in this permission letter, including a 51 page motion with 214 pages of exhibits that doesn't cut it, and it's clearly disregarding the court's order. He said then two days after that, Trump filed three more motions, right? Three more motion letters, including the one to say we have to be able to file more motions. So basically what the court said was, look, what Judge Marshawn said is this court advises counsel that expects and welcomes zealous advocacy and creative lawyering.

However, it also expects those advocates to demonstrate the proper respect and decorum to the courts and judicial officers and never forget that they're officers of the court and that the court follow court orders. So you could just tell Judge Marchand is getting impatient essentially with the defense attorneys and with the defendant who are trying to circumvent the law, the rules, and do things the way they wanna do them, the way they always do. They don't wanna listen to the court. And the court, the judge is in charge.

That's who is in charge of that courtroom. And so the third and final thing that stuck out to me for the hearing on March 25th was Donald Trump, as usual, went outside the courtroom and made his speeches and accused everyone of all sorts of things that were false, including the judge, including the prosecutor, witch hunt, all his normal, Michael Cohen, all his normal shenanigans. And that prompted the judge the very next day to rule on the prosecution's earlier request

for a gag order. And it had been out there for a while. Judge Mershon hadn't ruled on it. Clearly he was waiting to see if Trump was going to walk up to that line again and potentially cross it. And he did. He absolutely came very close to the line, right? By making these speeches. And so Judge Mershon, what did Judge Mershon do? He said, I'm granting the people's request for a gag order. It's

very, very similar to the language in the gag order that was upheld in Washington, D.C. by the D.C. Circuit. And so I'm not surprised that he did it that way, that Judge Marshawn did it that way, because since that's already been upheld by a federal appellate court, that's a way of kind of knowing that it's okay to that a limited gag order here would be okay. what does Donald Trump do right away literally right away as soon as he has the gag order. He he posts these two truth social Postings where he calls out the judge who says judge Mershon is suffering from an acute case of Trump derangement syndrome His daughter represents crooked Joe Biden Kamala Harris Adam de Schift and other radical

liberals. She's posted a picture of me behind bars. Her obvious goal is to make it completely impossible for me to get a fair trial and has now issued another illegal un-American unconstitutional order. He continues to try and take away my rights. This judge by issuing a vicious gag order is wrongfully attempting to deprive me of my first amendment right to speak out against the weaponization of law enforcement, including the fact that crooked Joe Biden, Merrick Garland and their hacks and thugs are tracking and following

me all across the country, obsessively trying to persecute me while everyone knows I've done nothing wrong. He then posts another one. So let me get this straight. The judge's daughter is allowed to post pictures of her dream of putting me in jail. The Manhattan DA is able to say whatever lies he wants about me. The judge can violate our laws and Constitution at every time, but I'm not allowed to talk about the attacks against me and the lunatics trying to destroy my life and prevent me from winning. You know, he goes on and on and talks about the judge's daughter again.

And, you know, I had to go back and reread the gag order because I thought for sure this violates it. And when you go back and you reread the gag order, he does not, you know, somehow he once again does not cross the line. Let's just read the pertinent part of the gag order. The order issued by Judge Marchand on March 26 says, people's motion for restriction on extrajudicial. Extrajudicial means outside of court. Extrajudicial statements by the defendant is granted to the extent that defendant is directed to refrain from the following.

A, making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or this criminal proceeding. Okay, so he doesn't talk about witnesses. B, making or directing others to make public statements about counsel in this case, other than the district attorney, meaning other than brag. Didn't do that. Two, members of the court's staff and the district attorney's staff or the family members of counsel or staff member. If those statements are made with the intent to materially

interfere with or cause others to materially interfere with counsel's or staff's work on the criminal case or with the knowledge that such interference is likely to result and c making or directing others to make public statements about any juror in the proceeding. Excuse me. So that's what Donald Trump did. He walked up to the line of the gag order. I would say he stepped on the line and stomped on it, but I'm not sure he crossed it. What do you think, Popehawk? No, he's a cockroach and he adapts.

He reads exactly the contours of the gag order and he decides at that moment in consultation with his lawyers what he can get away with. And it's not by accident. It's not inadvertent. He says, I'm sure there's a sort of meeting in Mar-a-Lago, some sort of huddle. And he's like, oh, what can I say? Can I attack the daughter? Hold on. Yes. Can I attack the judge? Hold on. Yes. Can I attack Alvin Bragg, the prosecutor? Yes. He's like, okay, good.

That's what I'm going to do. And then that's what he does. Now, this gag order though, even though he's able to do all of this, he will then in the same breath, because he speaks with forked tongue, he will then argue at the appellate level somehow, as he did with the DC Court of Appeals, that the gag order is overbroad, that it violates his First Amendment rights, that you'll hear his lawyers, I'll just do it now. I mean, we could just play act now.

Everything they're gonna say, we've seen this all before. I've seen this episode before. And they'll just say, oh yes, you should have the right to fire back. And I think at the end of the day, the Appellate Court Appellate Division, even though I'm not thrilled with what they did recently for Donald Trump in lowering the amount of the undertaking or bond he's required to put up for the civil fraud matter. And we're talking about the same

Appellate Division. I mean, a slightly rotating group of justices, they don't have that many justices on the Appellate Division First Department, so there'll be some overlap. But, you know, they're not going to... He's already been gagged more than once. They already challenged an earlier version of the gag order by Judge Murchon when he got arraigned, and that failed. And every time he gets gagged by a federal court or something like that, he challenges it, and ultimately it gets upheld. Now, the one for Judge Chutkin, which is still in place despite the fact that the case has stayed until the Supreme Court hears oral argument on April 25th on the immunity issue and makes its ruling before the end of the June

term, the end of the term in June, it's still in place and she reinforced that it's still in place when she ruled a couple of months ago on some motion practice that the special counsel was filing. And she said, oh, by the way, all my other orders are still enforceable, including the gag order. And so I think you're right. Judge Mershon wisely used as his template the gag order for Judge Chutkin, which already went through the acid bath and litmus test of being tested and came out the other side in DC because hers was mainly upheld. They paired it back a bit, but it was mainly upheld.

And I think he's right about that. And I agree with you that the judge is, it's funny, it's always like this weird, you could tell what gets in, what's renting space inside of Donald Trump's head, right? Speaking about real estate and leasing. And Mershon and Alvin Bragg and Letitia James are renting space for free inside of Donald Trump's head. And he said, even though the judge is elegant, that's so weird, the things that he comments on. He's still a Biden puppet. The guy that worked in New York for so long should know that Manhattan doesn't really take its marching orders from whoever's sitting in the White House at any given moment. It moves

to its own drummer. A Supreme Court judge, trial judge, especially one that's been appointed or elected, they're not taking orders from anybody, nor do they have to. But he can't help himself because it's the grift, right? He's able, Donald Trump is able to, you know, he raises $100,000 after he inappropriately, immorally bashes the judge's daughter, who's an adult daughter, who works in PR for a political firm, who didn't work on any of these campaigns, but those firms worked for some democratic operatives, and who cares?

If we cared what people did, who were related to the person in interest, then we would be a little more, I mean, I am, but people would be a little more hot and bothered about how much money and grift the Trump kids made while they were working in the White House. I mean, I've seen numbers and I did a hot take on it that Ivanka and Jared made $750 million while they were working for the President of the United States in office, let alone the $2 billion he brought in as a rookie hedge fund manager from the Saudi Private Investment Fund. So what's the bottom line here? Trial is going to be on the 15th of April. Jury selection

starts then. They're going to pick 12 jurors. They're going to have to get a unanimous jury, but they've done it before. the D.A.'s already had their dress rehearsal. They went 17 and 0 against Donald Trump's organization on tax evasion. They got 12 jurors to go their way. And they were up against half of the same defense team in Susan Necklis representing Donald Trump. And we'll see what happens with Donald Trump,

whether he testifies. I sort of want him to testify. Every time he testifies, things get a lot worse for him. He loses anyway. He's 0 and 31 for jurors in all the cases that have been tried against him so far. He hasn't convinced one juror about anything, civil, state, federal, criminal, nothing. He's 0 and 31. Every juror has ruled against him.

I haven't even added in the grand jurors and the special purpose grand jurors, and I'd be in the 60s. So he can't win there. He's 0 and 60 in every case he's ever brought related to the election interference. And yet people are thinking, he may pull this out. And I'm thinking, what are you, what legally are you smoking? I think he's going to testify. Well, he may, but he's not gonna win that trial. And by my point of making this- He doesn't need to win. He just needs to convince one juror.

That's the problem. No, I don't mean, when I say win, I mean, he's not gonna convince one person. And my point is every time he testifies, he makes matters worse, not better for himself. He may take the stand because he thinks, well, what's the worst that's gonna happen? I get convicted and I got to have house arrest

for four months or five months or whatever it is. But we'll see. I mean, you and I have a bet with Ben about it. Ben and I are on the, he's not going to testify. He'll threaten up until the moment of, but I don't believe he'll ultimately testify. But we'll see. Stranger things have happened.

I didn't think Sam Bankman Fried was going to testify either in the FTX case and he did and he's looking at 60 years in prison as a result. We'll see. See what happens. It's me and Salty against you and Ben. We're on the Trump's going to testify side. If it was a pickup basketball game, I'd take that. I'm taller than somebody. I don't know who somebody. All right, listen, we're going to talk about that. We're going to make other bets. We're going to talk about the New York attorney general and what the $175 million bond reduction or 62% bond reduction might mean about the judgment itself, if anything. And we're going to talk about Georgia election interference case. And now that

Bonnie Willis is back and loaded for bear, what's going to do about it when the trial could be in that case and then we'll end with the Supreme Court oral argument about Miffah Pristone FDA's regulatory powers in the area of reproductive rights as the Supreme Court touches not one but twice on abortion rights before this term is over all All that, but first a word from our sponsors. Are you self-conscious about your smile due to stains? Are your teeth aging you? Popular food and drinks are known to stain teeth. Beverages like coffee and wine stain them over time.

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None of us were happy that they bailed him out. Donald Trump was struggling, publicly struggling, putting himself up for bid to the highest bidder, foreign or domestic, as I like to say, as he is an economically and financially compromised candidate for president, which doesn't bode well for our national security. I did a hot take about Donald Trump basically selling off his own public policy about the TikTok ban to the highest bidder, taking in an investor into his Trump Media and Technology Group, TMTG, where you can literally buy a president because the stock ticker for that is trading at DJT. You can buy Donald Trump on the stock exchange,

which means people, foreign and domestic can do that and people have and they've invested in him. And then he changed his policy about TikTok because he took an investment from somebody that owned a large share of TikTok. Surprise! Donald Trump being transactional and commercial. I can't believe it. So we were like, you know, what is he going to do come Monday? Because he doesn't seem to be able to figure out how to syndicate his bond with among a multiple number of sureties in order to collect the 465 million. He doesn't want to put up all of his cash, because then he's going to be living, I don't know, grift

to grift. It wouldn't be check to check. And so he filed an emergency motion to lower the number. We were like, no, the New York Appellate Division First Department, I trust you, I'm a member of you, you're not going to do that, are you? And then we got this decision where they just lopped 62% off and said, put up $175 million, that's fine with us. And they also state a couple of other aspects of the decision in order of the judgment that was entered by Judge Anguaron in the $465 million civil fraud judgment that came out. What does that all mean? Well, two things. Then I'll turn it over to my colleague. One, in terms of timing, this appeal is going to happen over the course of

the summer with an oral argument in September. In other words, the Appellate Division First Department has set this for the September term. They don't hear cases in July and August. By setting it the September term, it means that Donald Trump has to file his brief in July. I think it's July the 8th. The New York Attorney General has to file their opposing brief two weeks later. And then there's a final brief in August by Donald Trump by the 16th. And then the case is ready for oral argument in front of the five justices who comprise the Appellate Division First Department for this case presided over by the presiding judge, Chief Justice Barbara Renwick, who just as a complete aside, but completely blows Donald Trump's mind, I'm

sure, because he can't figure it out. She's the first person of color to ever preside over an appellate division in New York. Hard to believe. She was appointed to that position by Governor Hockel. And she's married to a, sort of like a judge, like Judge Mershon. He's a Supreme Court justice that sits in the Bronx. When I first read it, I was like, crap, why did they do that? How did they get so specific with the number? What 175? Then I looked closer at some filings by Donald Trump, where he said that Judge Murchon made an error in how he applied an earlier decision by the appellate court to his decision-making about how to calculate the amount of disgorgement, which is the fine amount.

It's the amount of ill-gotten gains. It's not a damage. Damage suggests somebody has to be damaged and there's a calculation for damages. Discorgement is how much has the person, through wrongful conduct, lined his pockets with that he shouldn't have? And then you calculate that.

And there were some rules that the judge had to apply based on an appellate decision that happened in the middle of the case. And their argument was that they were off in the calculation, or the judge was, by like $258 million. It's almost the exact amount as they've lowered the bond requirement, which gives me pause. There is obviously to me and to other court watchers something wrong with Judge Angoron's order. I don't think they lowered the amount because they believed for a minute that Donald Trump

couldn't come up with the money and they were going to cut him a break. They came up with an amount because there's something defective, at least one aspect of it, not the whole thing, in the amount of the judgment calculation. I don't know if it's the way he calculated Mar-a-Lago or the way Judge Angoran calculated the old post office discouragement amount or some other amount, but I don't like the number. I don't like how specific it is, and I'm concerned that it means that at the end, and I'm not saying it's an inconsequential judgment, even if they only supported 175 million of it, that still says he committed persistent fraud for almost a couple

of hundred million dollars against the people of the state of New York. But it's not nothing. We shouldn't take it as a signal that they were bailing him out financially as opposed to having an issue. Now, the New York attorney General has to be wondering and scratching their head, what's wrong? What's wrong with the judgment that in looking at the papers, they use the scalpel to cut it down by 62%? And how do we address that in our appellate briefs that are due over the summer? While all that's going on, the actual foundation of the judgment has been left undisturbed. You've got the monitor, who's a former federal judge, who's sitting over all the financial affairs of Donald Trump, is still in place.

She has not been removed by the appellate court, even temporarily, nor has the independent compliance director that has to be appointed, because this company runs without any controls and any kind of internal organizational principles when it relates to finances. Shock. It will now. There's a new order from Judge Angoran that we talked about a couple of weeks ago, in

which he strengthened, or a week ago, he strengthened the powers, gave new superpowers to the monitor. That wasn't technically part of the stay issue on this appeal. It may be challenged by Donald Trump in the future, but that's still in place as of right now as we make our way to the September before the election hearing about the judgment. And then of course, we've got the New York attorney general who's responded to all this. What did you make of the bailout, if you will, by the appellate division? And what do you think it means, if anything, moving forward? I think it could be a couple of things.

I think it's unclear to me whether they did a different calculation at this point, right? They're still going to wait for briefing. They probably don't have the full record necessarily that they are analyzing. They're probably just looking at the arguments. I was thinking it a little more like bail and how bail is set. Bail is a random arbitrary number. When a judge sets bail, it's to ensure someone to come back to court. It's how much money would ensure that this person will come back to court and it's very person specific, right?

It doesn't usually track what the, it tracks sort of how much money can that person, what's a meaningful number for that person? The bail might be higher than if you're an extremely indigent or poor person. Any amount of bail is tantamount to being remanded or no bail if you have no money. So I was thinking it more like what's the number that's going to ensure that this case gets, that there will be a judgment. And I was thinking that's why they did it in a number that kind of felt very, still a lot of money, but this will ensure that there is going to be that at least, that at least Letitia James will get a decent number in there. If with the ill-gotten gains, you know, the the disgorgement calculation, and she could also potentially go after other, whether it's money in the bank.

I mean, don't forget that there's a monitorship here, right? So there's numbers to be known about how much money does he have? How many securities does he have? What also the real estate? And so it could be what you're saying. It could be that they are thinking about this as a reset or just to make it a little more cut it down to where they think it's more in line with the law. Don't forget there's this other argument out there

about the statute of limitations. And Donald Trump claims that Judge Angoran did not listen to the appellate courts about when to apply the statute of limitations. And that could also be one of the issues that if they're looking at it in the light most favorable to Trump, like if they were to rule it the way he's saying, it could be a number closer to this than the other while they think about it. So that's how I interpreted it. It was like, well, this is still a lot of money. It's enough to kind of be a placeholder. And let's just say we did it even if we gave it all to Trump,

all his arguments, even in the light most favorable to him, it would still be this big number. So let's get this number, the 175 million, and anything on top of that could be ultimately, you could ultimately collect in other ways. I think if this was, I think because it's the government, it's Letitia James, I think that's another reason, another factor. If this was a private citizen that was going to have to then go out and collect and spend their own money to collect a judgment like E. Jean Carroll and her lawyers, I think the court would be less likely to kind of,

to be open to this at this stage. But because it's a government, it's the government who, you know, what's it to them if they have to go out and do it. So that's how I interpreted it. But again, it's just tea leaf reading. And frankly, when it comes to this sort of issue, Popak, you are one of the experts and I defer to you. If that's, you are.

Yeah, well, listen, I appreciate that. But I'm just concerned. I mean, I hear you on the bail thing, and that could be it's like enough. And it's enough given, as you said, the fact that you have the Leviathan of the government on the other side of that with unlimited taxpayer resources, and lawyers to throw out a problem, unlike as you said, a private person who's like, really, we're going to make them jump through another hoop in order to get paid? But I am concerned about the specificity of the number, and I am concerned that it may be that they took a

look at the appellate division decision and how, as you touched on again, and how it applied for statute limitations and for transactional analysis purposes and sort of went, you know what, we think he's high here. We think Angoran is high here in his calculus. Let's cut it down to some number. They didn't take a poll among the five, I don't think, and said, what do you think? What do you think we're going to rule eventually? But I do think they were like, we're never going to support the 465. Let's put it down in a number that he can post and we can live with and then we'll see. I just think for me, it's now a marker on the playing field and it's more likely for me that the ultimate judgment that is affirmed on appeal will be closer to 175 than 465 running with

interest. They'll both run with interest. So I don't want people to think it's 175. It'll run with that compounded interest that's running. And then whoever loses that, and we won't know that until several months after September, or now it will be after the election, but of course this has nothing to do with immunity or we're presidents. Even if he were somehow to win, I hate even saying those words, he won't be able to stop the wheels of justice in this arena. There'd be a last appeal at the Court of Appeals. He's lost there before Donald Trump. But I like where Letitia James is at. I'd rather be her than him right now. Let's just put it that way. I agree with that. I'd rather be on the winning side of holding a $465 million judgment and all the other aspects of it than on Trump's side trying to scratch and claw his way to some

sort of stalemate. She made a similar announcement. She said, I don't know, I got a $465 million judgment I'm running with interest on behalf of the people of the state of New York. That hasn't stopped. I got a monitor in place. I've got everything. The fact that they're going to let him go borrow money in New York and they're going to let him continue to run his companies. Okay, that's fine until we're done. Whenever you give Letitia James the ability to do some amazing writing, legal writing, we're always blown away by it. It'll be very well written, it'll be very well argued, and then we'll be able to report what happens in September. But yeah, I'm not here to, you know, blowing smoke or sunshine. I'm not here to say, oh, you know, the sky is falling, the judgment is going to be completely reversed. It's not. I just think we need to manage

expectations that I think it's going to be closer to that end of the playing field when it ultimately is affirmed on appeal. That's where we are on that one. Unless you have something else, Karen, I was gonna move us to Georgia. Go ahead. Georgia, prosecutors. Let's talk with my favorite former prosecutor.

So I'll do it from Fonny survived and has decided, I think, to get back into the saddle of this case and get this case ready for a trial on a date that has not yet been set. Got a whole bunch of motion practice by some of the nuttier, less hinged of the co-conspirators with Donald Trump, like the guy that's listed here, and some other motion practice that's going on. Just to remind everybody, the judge denied the motion to disqualify Fonny Willis as long as Fonny Willis fired Nathan Wade. She had two choices. That was the Sophie's choice, the Fonny's choice. She either fired Nathan

Wade or she fired fired herself and the entire Fulton County DA's office from trying the case. And she said, I'll take the first one please. And she fired Nathan Wade or she accepted his resignation, whatever it was. And then that's cleared the conflict for the judge and allowed her to continue. He certified the question for appeal. The Trumpers are taking the appeal up to the first intermediary appellate court that sits over Fulton County, which I'm not sure exactly which one that is, before it gets to the Georgia Supremes. But he made it clear, I'm not staying the case. I'm not staying the case. There's plenty of things to do. We'll continue to prepare the case. You can go figure out whether the prosecutor comes or goes,

or who is the prosecutor. I'm not dismissing the indictment. I already dismissed six counts of the indictment, but the heart of the indictment is present. She now has, I want to throw this over to you now, she now has a choice. I want to hear your view as a former prosecutor. When he dismissed the six counts, he gave her another choice. He said, I'll give you a choice. You can either re-indict, you can go for a superseding indictment or whatever the version of that is in Georgia or amended indictment, whatever they have there, and you can try to save and salvage your standalone count against Donald Trump related to election interference and that perfect phone call that he made with Mark Meadows to Brad Raffensperger and Gene Sperling

to try to find 11,758 votes. Or you can just use it and leave it as an overt act as part of your criminal conspiracy, which is already at the heart, the engine of the entire indictment. Or you can take an appeal and take me up on appeal and go do that world for the next six months or a year. Given the fact she's announced she wants to start the trial as early as this summer. What do you think she does next with the counts that she lost by way of the order that came out a few days before the motion to disqualify order came out? I think she hedges a little bit. I think she's going to see, is there a chance that this case goes to trial?

She says she's ready. She's ready to go. She's ready to go. She's trying to push it. But, you know, we all know there's there's 14 defendants. One of them is Donald Trump. So many motions going on and on. She also has an election coming up. So does Judge McAfee in November.

And there's a I think she pushes the case to try to go. But she also if it looks like it's not going to go and it's going to take a lot longer for whatever reason, then I think she might appeal it. But I say she goes and she just loses the various counts. I don't, I don't know that that's going to allow her to delay it. I mean, at a certain point, I think you really have to get this case going. So that's what I think she's going to do. I think she's going to prepare an appeal. She's going to be ready for the appeal and she's also going to be ready to cut her, cut those few charges out and go forward from there. Personally, that's what I think she will do.

But, you know, we'll see. We all we also think that Trump is going to appeal. Right. That's the I think she will do. But we'll see. We also think that Trump is going to appeal. That's the other thing. He is going to appeal the disqualification issue potentially. And look, Judge McAfee is going to continue with motion practice and continue with the case while the courts decide whether or not

they're going to take that up. And so I think if that's going to happen and he's going to delay things by appealing that, then she probably would also appeal her ruling on the other one. But I think she's going to push it, push it, push it, and try to go with a few, you know, even if it's less charges, she's going to try to get more pleas out of people. And when I think that that's what she's going to try to do. I mean, look, you know, we dropped this legal AF every Wednesday, you know, we're live every Wednesday

night. And that's, you know, that tonight's no different. And tomorrow, though, there's a hearing, right, there's going to be a hearing that will be televised that I'm sure we'll all watch together and we'll comment on and we'll broadcast here on the Midas Touch Network. And it'll because all the Judge McAfee court proceedings, like other court proceed, all the court proceedings in Georgia, they're all broadcast and on TV. And it's going to be oral arguments on a number of motions that Trump and one of his co-defendants, David Schaefer made.

And so that'll be very interesting, right? Trump argued that the criminal solicitation counts should be demurred for failing to allege the oath of office or the portion of the oath of office that they solicited Georgia officials to violate, and also claims that the prosecution is attempting to violate First Amendment rights and that the prosecution is attempting to violate First Amendment rights and that the statutes are unconstitutional as applied. Those are Trump's three motions. Schaefer, the co-defendant, who's the former head of the Georgia GOP, is a former chair, a big time prominent Georgia politician.

His motion to dismiss all charges against him on the basis that his actions, he says they were lawful. He's, you know, I'm a political figure. I'm accused of organizing fake electors and, um, but I was just trying to comply with the advice of counsel. So he used that magic language that he's going to go with an advice of council defense. And, um, and I'm sure that's Ken Chesborough by the way. Yeah, exactly. Exactly. And, and he'll's Ken Chesborough, by the way. Yeah, exactly.

Exactly. And he'll also say also that the Rico charge, he says that that's fatally defective for failing to establish a pattern of racketeering activity. And he also wants to strike certain phrases that he claims are conclusory in the indictment so that Fonny Willis can't argue them at the trial. Things like duly elected and qualified presidential electors. He doesn't like that terminology. He doesn't like the terminology false electoral college votes or lawful electoral votes.

He wants to strike all of that. They're using the language a general demurer or it's demurrer, I'm not sure, and a special demurrer or demurrer, whatever the term is. It's not a New York term, so, you know, I had to, I had to look up what they mean. And it's basically a general demurrer in Georgia is an attack on the legality of the indictment and a special demurrer is an attack on the form of the indictment. So those are the two legal motions that are happening tomorrow in Georgia. Yeah. We'll cover all that. So yeah, that's a good I think we got a good overview, get everybody up to speed in Georgia.

I mean, it's worth a shot. They other co defendants filed their demurrers and was were successful and at least six of the 3131 counts or so of the indictment to be dismissed. I made up my mind. No, sorry. 41 minus six is 35 left. So if I were sure, why not try it? You know, the judge seems to be concerned with certain pleading aspects or how the charging document was issued by the grand jury or that kind of thing. Um, and we'll see what's left. I mean, I think, look, the Rico charge is not going to be dismissed by this judge. I would be beyond shocked if that were to happen, which is the engine

in the heart of the indictment. Uh, this, the, the criminal racketeering influence and corrupt organization act. This is a racketeering case. If you were to ask somebody at bottom, what this case is about. That's what it is about. It is the criminal conspiracy to try to overturn the will of the people and to interfere with it in various different ways as part of the conspiracy, whether it was trying to coerce and strong arm election officials, elected officials, people that worked in the vote counting space, a state investigators who were investigating,

breaking into voting machines, illegally downloading votes using fake electors, making phone calls, sending your chief of staff down to try to interfere with counting, making phone calls to the Secretary of State of Georgia to try to convince them to throw out legitimately cast ballots, using Lindsey Graham to do part of your bidding, using Rudy Giuliani, using Sidney Powell, using Ken Chesbrough, using Jenna Ellis, and the list goes on. I mean, there's like, you know, there were 16 co-conspirators at one time. And that's why this

case is many tentacled. And it's something that Donald Trump has always been very, very concerned about because he won't be able to pardon himself away from it if he were to get convicted. So time is on his side. When bad things happen, make them happen more slowly. And that's what we're watching. And speaking of things that may be not going badly, including for women's rights, we've got an amazing development that I think is a perfect bookend for what happened with the Supreme Court about methopristone and medicated abortions. We've got a candidate in a special election for Congress in Alabama. Don't get any redder.

Don't get any more anti-woman and women's rights than Alabama with one of the harshest and most restrictive abortion laws in Alabama on the books. This candidate ran for office and won by 25 points, a Democrat. She didn't just run, people wondering where she stood on the issue of reproductive rights. She ran on, if I am elected, I will go after Alabama's one of the most restrictive rights on women and choice as I can. And the Alabama voters, including the women of Alabama, voted 25 points to send this Democrat to Congress.

That is an amazing sign for the power of women and people who support women and what we can do during the election cycle. And then we dovetail that with what we'll talk about next, which is the United States Supreme Court, which is usually oblivious to whatever happens on the ground in the real world. It's like Barbie World, but worse at the Supreme Court. But there was an oral argument that if I'm on the side of anti-abortion and anti-woman and anti-medicated abortion, I would not be feeling great about what happened during the oral argument and who arrayed against me.

And I'm looking at you, Josh Hawley's wife, who argued on behalf of this fake organization called the Alliance for Hippocratic Medicine out of Abilene, Texas, of all things. And we'll cover all of that. But first, a word from our sponsors. Your dog, like my Lily, is a member of the family, so serve them the top quality food they deserve. Serve them Gnome Gnome. All dogs are individuals

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Lily. That's a transition into the Supreme Court and Mefa Pristo. Let me set the stage and I'll turn it over to Karen. So we've got a ruling over a year ago in Abilene, Texas. Some people didn't even know there was a division of the federal court in Abilene, Texas. Oh, there is. As one judge, his name is Judge Kazmeric. Before he became a judge who was appointed by Donald Trump, he was the general counsel for a right-wing MAGA organization that was against abortion rights. Oh my God, this is the judge they found. What a coincidence.

Not a coincidence. In fact, they created an organization nobody ever heard of, comprised of some doctors nobody ever heard of, in Abilene, Texas of all things, to file the suit in Abilene, Texas. The problem with all that and the argument that the FDA had violated some sort of rulemaking because they were allowing a drug that's been on the books approved for the last 24 years as a safe way to have a medicated abortion, which is the number one way women have these things, all of a sudden because, well, they won the Dobbs decision. Let's go after every way that a woman can take care of her reproductive health. Let's go after that. And so they went and they filed the suit and they got Judge Kazmarek to enter from Abilene, Texas, a nationwide ban on 350 million people,

including, oh, about 51% of it being women, preventing them from using the methamphetrys stone, which is the second drug in a two-drug regime for medicated abortion. Some people might be thinking, nationwide ban on women's rights from Abilene, Texas? Is that allowed? Well, that was the same question the United States Supreme Court asked because the United States Supreme Court doesn't issue

nationwide bans. We've got a battle going on right now. We've got many civil wars going on, unfortunately, in this country, red versus blue. And on the battlefield of reproductive health and reproductive rights. The civil war that's going on is also being led by a renegade rogue group of trial judges in the federal courts, primarily in Texas and in the Fifth Circuit Court of Appeals, which includes Louisiana, against the United States Supreme Court that's trying to rein these cowboys in and stop them from doing it. So I think they now having heard the oral argument and how poorly it went for the Alliance for Hippocratic Medicine, especially by the right wing conservative usually reliable justices like Kavanaugh and Gorsuch and Amy Coney Barrett,

I think they might have taken the case in order to finally slap back Judge Kasmaric, I think they really had enough with him and his nationwide bans. I mean, one of the things that happened during the hearing, the argument was the FDA did improper rulemaking because in 2016 and then in 2020 because of COVID, they allowed women to get this drug, not through a doctor in a direct appointment, in a live appointment, but through telehealth and through mail order. No, no, that's terrible, can't allow that. There's doctors being forced to dispense medicine that they shouldn't be allowed to dispense and they're being injured.

Okay, fundamentally there has to be standing. In order to get a ticket into the federal courthouse, you have to show that you've been injured. Okay, there's a law in the books already that says, if you're a doctor, I mean, I think this is disgusting and moral and against the Hippocratic oath, but there is a law in the books already that says if you're a doctor who does not want to because of your conscience and your religious beliefs, you don't want to dispense abortion bills, you don't want to do abortions, you don't want to do things that go to that area of reproductive health, you don't have to.

And your liability is prevented by a series of laws. So you already have the ability to opt out. Why a group of doctors can run into court in Abilene, Texas and ban women all over the country from getting Mifepristone is beyond me. Even the Fifth Circuit thought that Judge Kaczamara had gone just slightly too far, slightly. He was going to ban it all the way. He was going to ban the drug completely. Instead, they banned the rulemaking from 2016 and 2020, saying that that was done improperly, despite the fact that every study has shown the Mipha Prishton is as safe,

if not safer, than aspirin. I'm not using that in hyperbole. That is the study's findings after 24 years of study. Okay? And so the issue here was not the constitutional right to an abortion, because that has already been decided that there isn't one by the Dobbs decision overturning Roe versus Wade. The question was the FDA and its ability as an agency to regulate and through administrative orders regulate drugs, any kind of drugs, including Mifflin-Preston. And Gorsuch, when he took on Josh Hawley's wife, Erica, who was the lawyer representing this phony organization, he said, let me ask you a question. In the 12 years of the FDR administration, which arguably was the most activist administration ever trying to pull the country out of the Great Depression, passing the

New Deal, establishing all of these agencies, all of these new rules, changing the relationship between the government, the federal government, and the people, and all of these things that the New Deal did. How many nationwide injunctions from courts resulted? And he said, I'll answer it for you, zero. How many have resulted in the last four years, which is the Trump era, mainly from activist judges? He said 60. He said 60 in the last four years, none during the entire, before that. That's a problem. That is a problem for you. So that was Gorsuch. Then you have Kavanaugh and Amy Coney Barrett jumping in with, let me ask you a question. This all went to Holly. There already is a law in the books, isn't there,

that allows a person who's a doctor to refrain from doing something they find morally unsavory? Right? You already have that. Gorsuch chimed in with, how do you get to take what is basically a small lawsuit and issue a nationwide ban on it and a referendum on FDA rulemaking. And then Kagan jumped in with, where is your injury? Right now, you need to have it now. Where is the doctor that's being injured and where is the injury? Because without it, how are you here? Which I thought was not ironic for Kagan, but ironic for the court because when the right wing wants to pass a new law, a new judicial pronouncement, usually about church and state, they don't care what the facts are of the case. They don't even need a case. The case is irrelevant. Forget the facts of this case,

I once heard Alito say. That's not relevant. Really? You're supposed to be a court dealing with live controversies. You have to have a case. Here, they're back to where is the case? Where's the injury? Where's the damage? This went all against the lawyers for the Alliance for Hippocratic Medicine. And the Solicitor General, along with the drug manufacturing lawyer who did a very, very good job during oral argument, she only took fire from Alito and Justice Thomas. So I'll leave it to you now, what you observed and what your review is of what happened there. What do you think happens next? And then as a teaser, we're not done with abortion rights this term by this Supreme Court, because in two weeks or so, they're gonna be handling another case on abortion, not done yet, but what do you think happens

with mephepristone and a woman's ability to use it as for a medicated abortion? Look, I think the court is gonna take what I would call the cowardly way out, but I guess, you know, as long as you get to the right result, you get to the right result, and I think they're gonna say there's no standing, that the plaintiffs did not have standing to

basically bring this case in the first place. And the reason I say that's the cowardly way out is, look, that's like a technicality. This is the kind of thing that people get frustrated with the court system saying, oh, this case got thrown out on a technicality. And it's just frustrating because it's just mostly, you know, it doesn't answer the question anymore. It really still leaves this open question out there in the world about whether a person who's pregnant and doesn't want to be pregnant can have an abortion. And it's, and when, when they reverse Dobbs and I can't believe it's been two years now, uh, when they reverse Dobbs, they specifically said, believe it's been two years now, when they reverse

Dobbs, they specifically said, we're going to leave it up to the states. And then you have judges like Kazmaric, who, you know, if you were going to name a villain in a Marvel comic, I think it should be Kazmaric. It sounds so menacing, you know, his name. He lied during his confirmation hearings. He hid his name, he took his name off of articles, anti-abortion articles and other articles and other publications that he was a part of, and then didn't disclose them on his application. So he couldn't be questioned about it during his, his confirmation hearings, just so that he could get in there, frankly, and they could go and make up a new group of doctors, and that these doctors who have never

had to administer mythoprestone to anybody, that they could say there's the potential for future harm, because theoretically, some woman or person who's experiencing medical complications as a result of myphoprestone could appear in the emergency room and they might have to issue aid, render aid to that person and that that's their harm, that they could potentially have to do that. What I didn't understand about the doctors, what their position was, was, okay, doctors with a conscience, you don't have to necessarily perform abortion or you don't have to administer or prescribe myphoprestone, but why if somebody's having a complication from something, would you not treat them in an emergency room? That's what I didn't understand from their

position because lots of people appear in an emergency room that you may or may not agree with their lifestyle. You could have someone who, you know, a lot of people who are engaged in a shooting, for example, could get shot themselves. You know, people who commit crimes often have to go to the hospital. You could have somebody who's overdosing on drugs. You might not agree with drug use. You might not agree with all sorts of things, but nobody passes judgment in a hospital. That's what the Hippocratic oath is. So I didn't understand their whole position about we might have to administer medical aid to somebody who on their own made a decision with a different doctor who doesn't have the same issue to prescribe myphoprestone and then they're experiencing a medical complication. That to me, that is not something that they're permitted on their oath to kind of take the road out, but it also made me not understand their whole position to begin with. But you know, I think that's how the court's going to get out of it. I think they're going to basically say that Judge

Kasmeric in this one-judge town, I don't think they like the precedent that it sets in addition to the abortion issue and the myth of Preston issue. I don't think they like that you can basically manufacture foe standing and go to one of these one-judge towns and get the ruling. I mean, it's forum shopping, it's judge shopping, you're not allowed to do that. And I think they're going to take the off ramp of standing and basically say,

that's how we're going to do it. And this particular litigation isn't really about the merits, right? This isn't the full briefing on whether this is a meritorious, you know, on whether Miffl-Preston and abortion and all that. This is about, this particular issue in front of this court and this argument was whether Judge Kaczmarek's decision would become law, right? Whether there would be this nationwide ban while the case is being litigated and whether it gets stayed or paused during that time. And that's

what's happening here, right? While they litigate and appeal his decision, does it go into effect while they appeal it or does it get paused? And that's what they're arguing here. And I think they're going to just throw the whole thing and dismiss it on standing ground saying that these doctors lacked standing and dismiss the case to begin with. And so it just but unfortunately, you know, this organization of these doctors saying that they might be called on to treat these, these women who have complications, you know, if they if they do it this way, unfortunately, they're, they're just kicking the can down the road, in my opinion. And that's what that's what I don't love about about this, even though I think that's what they're going to do. about this, even though I think that's what they're gonna do. I mean, look, you even got Amy Coney Barrett, okay, to basically say that standing requires

that plaintiffs have experienced an actual harm, not a speculative one. And I think when you've got Amy Coney Barrett on your side, I think it's pretty clear what's gonna happen. Yeah, just to be clear, this is the substantive appeal. So they're no longer deciding whether the thing should stay in place while other issues happen. This group already 7 to 2 blocked Kazmaric's nationwide ban or the fifth.

Did I get that wrong? Well, I mean, I wasn't sure where you were going with it. But if you're arguing that, if you're arguing that they were still waiting for another substantive appeal, we're not. This group seven to two, except with Alito and Thomas in the dissent, already blocked Kaczmarek slash Fifth Circuit and this is the substantive appeal. I see, I see. Well, I apologize that I got that wrong.

That's okay, why we do it together? Yeah, no, and I'm glad, you know, I'm glad. I was so focused on the on the standing thing. I just didn't realize. Anyway, but it's just interesting that, you know, Alito to me seems like he is still going to, you know, that they're not going to get Alito. That's what I thought. Wait, wait, wait, Thomas. Yeah, or Thomas. Yeah, yeah the lawyer for Danko, which is the chemical, the drug company, and said, why doesn't your company's continued sale of Mipha Pristone violate the Comstock Act? And she was like, sorry? And he said, the Comstock Act, right, the Comstock Act is against obscenity.

It is a criminal statute that has not been enforced by any federal government or agency or prosecutor in over 80 years. But it is the dog whistle for the abortion anti-abortion group. They love the Comstock Act. They like to talk about it. They think it's the way to tear down all of these rules and regulations. And she had a great response. She looked Thomas in the eye and she said, with all due respect, Justice Thomas, that's not an issue on appeal, that hasn't been briefed, and it's not before the court. It takes a lot of confidence to be able to shove back at an out-of-whack Justice Thomas trying to use the Comstock Act to claim that drug companies at this moment are all criminally violating a statute when, of course,

they are not. Alito sort of likes that too, because he likes whatever Thomas likes. They're like the Siamese twins. I'm sorry, conjoined twins. Whatever they do together, they do it together. So they're going to be on the losing end of this decision also. I mean, seven people on that court thought that Kazmarik and the Fifth Circuit was wrong and blocked the ban on that, blocked his nationwide ban until they got to this oral argument. And now it's going to be the same lineup. That's what I said at the start. It used to be, you really, you didn't really couldn't tell exactly in a lot of oral arguments

how the ultimate ruling is gonna be. Oh no, you can tell here. This is gonna be 72 on either standing, which is what you talked about as being the coward's way out, which I'm okay with ultimately, or it's gonna be the substance, which is not only is there no injury here, but as long as we're at it,

let me also tell you that you can't use this. It makes no sense. There's no injury here. And the rulemaking was appropriate by the FDA. What they're worried about, this is the policy problem that the Supreme Court is really worried about, is they have out of control,

they have a set of out of control rogue trial judges and circuit courts that they need to rein in. And it starts and ends in the Fifth Circuit, a little bit of the 11th, but really the Fifth Circuit, who comes up with crazy decisions. Joe Biden is not the commander in chief of the armed forces, a judge sitting in Texas or Louisiana is, you know, or a guy in Abilene, Texas population who knows what can ban a woman's right to have access to medicated or medication abortion in her home state because he got taken. No, in order to get taken, you have to not do it willingly. He was duped willingly by a fake group that formed in Abilene, Texas, who have no injury, in order to roll out this

policy decision by the Alliance of Defending Freedom, or whatever this crazy law firm is that Josh Hawley's wife is a part of. I mean, you literally can't make it up. And I was sort of encouraged, I guess that's the right way to say it, by a Supreme Court that was willing to rip the mask, both conservative and liberal, right-wing MAGA and the other side, rip the mask off of this and say, what are we doing? Nationwide bans from Appilene, Texas about abortion rights and the FDA's rulemaking? No. Now we're going to see who's going to be in the majority on that decision. We'll get the decision before June. Is it going to be Gorsuch? Is it going to be Amy Coney Barrett or Kagan or someone? It's got to be somebody in the majority, the seven

in the majority, and then how that rule and how it looks. And it's important. And the other issue you raise is going to be touched on again in another oral argument and another decision, this term alone, two years after Dobbs, about what happens during emergency situations with women and their reproductive health. I mean, it does concern me, I'd be remiss if I didn't say this, that the Supreme Court just consistently and relentlessly returns to the area of a woman's womb over and over again in the Supreme Court term. I don't trust this group. I don't trust this lineup.

As I'm praising them slightly today, I'm sure I'll be maddened by them and disgusted by them another day. This is not the group that I want throwing up the hood and monkeying around under the hood of civil rights, women's rights, and reproductive rights. I mean, can we get past this term? Can we fast forward? You know when sometimes in movies, Karen, or in long episodes, or what do you call it, episodic TV, they just, when they run out of gas of ideas, they just fast forward 10 years and pick up the characters 10 years later.

Can we just fast forward 10 years and get past this current group and hope that a few people drop off for various reasons and get replaced by the right kind of people? Let's just do that. I don't want them monkeying around with civil rights, women's rights, constitutional rights really much longer. But you know, that's not I don't have that ability to hit that fast forward

button. And we are what we are, right? I'm gonna I'm gonna be accused of being a conspiracy theorist right now. And I apologize. But the reason I don't like the cowardly off ramp of just saying lack of standing is it just kicks the can down the road. And I think what they're trying to do, I really do, is they don't want to go too far yet because that could have a backlash against Trump in November and other Republicans. And I think they're going to just, you know, let's put the brakes on this for now. Let's not rule on this now and let people forget about dobs two years ago. I like that. And show them.

I like that analysis. Yeah. And then show them that, you know, look, they're not so bad. Amy Coney Barrett's, you know, she's not so bad. And people have amnesia and get them, you know, because they took a lot of flack in Alabama with the IVF, you know, the whole you could prosecute for manslaughter for dropping eggs, you know, and whatever in Alabama, you know, that had a huge backlash. You know, you saw that seat get flipped, you know, this, this week in Alabama, right, from Republican to Democrat. It has a real impact. And I think they're absolutely worried about that.

And so here, if they can take an off ramp and kick the can down the road to the future, let Donald Trump get elected, rule on standing, get him elected, let him appoint more judges, and here we go. They're gonna take away these rights. They said in Dobs, leave it up to the states. But this is absolutely a situation, I think, where they are, you put your nose in the tent

kind of thing, and they're going to come crashing in and they're going to try to take away these rights ultimately. That's what I think. Again, I don't want to sound like a conspiracy theorist, but that's what I think is happening here. I like the conspiracy theory. I like that they're not trying to rock the boat one more time to help the Republican Party in their electoral success. It's that kind of thought-provoking ideas that hopefully people come to Legal AF for and the interaction between you and me, which I always

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a procedural issue. But this is going to be sort of where we get to nerd out a bit and do some exclusive content that you're only going to find on Patreon and that's at patreon.com slash legal AF. We ended our show here the midweek edition with Karen Freeman McNifilo former federal prosecutor current amazing state prosecutor. What did I say federal shit. We'll clip that. No it's okay. It's okay. Okay. Former prosecutor number two in the Manhattan DA's office, good friend of mine, colleague, amazing lawyer and representative of people's interests in her private practice, which I enjoy talking about with her. And then on the weekend, I do it with Ben, my Salas civil rights lawyer, founder of the

Midas Touch Network with his brother. So until our next Legal AF, until our next collective hot takes, which we do along the way to keep you interested and up to date in between each of the shows, this is Michael Popok and Karen Friedman at Nifilo shouting out to the Legal AFers and the Midas Midas.