Legal AF by MeidasTouch - Trump Lawyer ACCIDENTALLY Throws him UNDER THE BUS during Appeal Argument

Episode Date: November 20, 2023

During a hot bench oral argument to try to overturn Judge Chutkan’s gag order against his violent rhetoric , Trump’s lawyer conceded that a trial court could limit Trump’s speech even if his speech itself wasn’t a crime in order to protect the criminal Justice system. Michael Popok of Legal AF explains why this is a fatal error that should lead to the appellate court allowing Judge Chutkan to re-enter her gag order against Trump. Get up to 50% off for a limited time when you go to https://shopbeam.com/LEGALAF and use code LEGALAF at checkout! Visit https://meidastouch.com for more! Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Learn more about your ad choices. Visit megaphone.fm/adchoices

And I also trust that you agree that your client is not above the law that applies to all other Americans. He's subject to the first amendment, in principle, but yes. He's subject to the law that applies to everyone. He's not above the law. We certainly haven't argued that, you're right. And so the district court found that when the defendant has publicly attacked individuals, including on matters related to this case,

those individuals are consequently threatened and harassed. And we view that factual finding for clear error, right? No, in a first amendment case, I believe, as we cited in our standard review section under Houston against Hill, the court should engage in a plain review of the record under denover review. That is a mixed question of fact. But for the findings about what happened in the world,

we look at that for clear error. And then we look at the first time in implications, denover. Looking at that particular finding, the court would have to look at it in light of the evidence in the record, which shows that that's all based on evidence. That's three years old. And as well against the fact they have no evidence

of any threats or harassment that have happened in this particular case, even arguably caused by the speech that challenged here when the case has been pending for over three months. And the defendant has made public comments about the case almost incessantly. So the government's position, and this is just for purposes of the question,

just, and I know you don't accept this, but the government's position is that we don't, that the district judges not limited to looking only at the defendant's speech that relates to this case, but the government identified a dynamic, not just exclusive to this case, whereby when the defendant has publicly attacked individuals, including but not limited to the facts of this

case, those people are threatened and harassed. If it were, if we were satisfied, and I know you're not satisfied, but if we were satisfied that evidence supported that finding, what more would be needed in your view? What more would be needed to support the district court's order and order? The Michael Popok legal a F very hot bench today DC court of appeals struggling with the issue of whether the gag order should be reimposed on Donald Trump and his DC election interference case to affirm which judge Chutkin already did. Tell you upfront, I think based on listening

to over two hours of oral argument today and listening to the questions asked by judge Millet, judge Pan and judge Garcia, Donald Trump is going to get gagged again by the DC court of appeals. Now, the issue that they struggled with based on my observations, the questions that were asked right away, you heard at the very beginning of this, they're struggling with the limits and trying to push Donald Trump's lawyers, John Sorrow, SAURO, into expressing, what do you think the limits are? You're not saying you're, you're guys above the law. And, and are you saying that the only thing that a trial judge can do is gag or address criminal conduct that's already on the books as a crime.

And there's nothing short of criminal conduct that a trial judge can address to protect the administration of justice. Is that your point? And when he fumbled and struggled to answer the question, just as we predicted on legal AF on a prior optics, that would be one of the first questions out of the box. Give me the limits of your argument so that I understand your argument. And so they walked him into it. In, you know, in earlier clips, I'll play a couple during this hot take, you know, do you

think your guys above the law, Donald Trump? No. Do you think your guy can say anything? No. Do you think that only crimes can be addressed by a gag order or nothing short of it. If your guy is a presidential candidate with a First Amendment right, of course, speech, and he said, well, that's where he stumbled.

Because what he really wants to say is as soon as his guy Trump put on his cape of First Amendment core political speech, you can't gag him in any way, even if he attacks witnesses, prosecutors, their family judges, their family, and the credibility of witnesses, and calls for the execution of one of the witnesses.

In this case, Mark Milley, the former chairman of the Joint Chiefs of Staff, and there's so you heard in one of my clips their judge millet, the more senior judge there, sort of walk him into that trap, and he found himself, you know, painted into a corner of his own making related to it. Then later on, you see the struggle that they're trying to have here, which is obvious, is what are the limits of the first amendment versus the right of a judge to protect the administration of criminal justice system as provided for by the sixth amendment? The sixth amendment provides that a person has the right to a fair and impartial trial. How do you protect that process even from that person himself, protected from himself?

Because he's undermining the ability to get his own fair trial through his attacks on witnesses, jurors, grand jurors, and the like. And the argument by Donald Trump that was made in the briefs and again by Mr. Sorrow in the oral arguments today is sort of ridiculous, which is unless you can show me that there's a direct link between speech that Donald Trump made and somebody being killed, maimed or injured or quitting, then there's nothing to see here.

To which the judges pushed back during oral arguments and said, wait a minute, you understand that the gag order is prophylactic in nature. It's trying to prevent somebody from getting killed, named injured, attacked as a result of the speech, right? So we can't just wait around to see the worst scenario. And then somehow gag order, I mean, the milk is spilt by that point. And so you have that battle.

Let me play another clip of an example where Donald Trump's lawyer stepped into it with Judge Garcia, who's the Biden appointee, about the certain law that he represented stood for a certain proposition, which the judge pointed out he's wrong. All right. And so that undermines the credibility of the advocate, because now you're leading the judge down a path that the judge knows you're not being honest with the court that you're misinterpreting certain language. Let's listen to the clip from Judge Garcia. Going back to the legal standard, you mentioned the fifth-store circuits decision Brown. And that court rejected the argument you're making today, which is essentially that

the district court has no authority to regulate the speech of a criminal defendant as it's entirely unprotected by the first amendment. And what the Fifth Circuit said, drawing on Gentile and even the landmark communications case, is that the Supreme Court has drawn a distinction between speech restrictions on those who are participants in the trial and those who are strangers to it. I believe that's essentially a direct quote from Gentile.

So what's your best argument that criminal defendants shouldn't be treated as within that category of participants in the trial? If you look at Justice Rankin's opinion in Gen Teal, it's 12 pages in the section. Which was not a controlling opinion. The controlling opinion is Justice Rankin's on the legal standard. Exactly right. I'm talking about section two. That opinion is the controlling opinion of the court.

It goes on for 12 pages about the specific, I mean again and again and again it's all about the special laws of attorneys and it says a Tories of officers of the court. A Tories can be subjected to particular restrictions that it directly contrasts with for example the rights of ordinary citizens or the common rights. I'm also talking about participants and there are a number of Supreme Court cases that distinguish participants in a criminal trial from those who are outsiders to the criminal trial. Would you at least agree that there is that language in Supreme Court cases? There is some language that

there is that language in Supreme Court cases. Not language that would tie participants to the substantial likely to material prejudice standard. We do just want to be a little more precise about this. So the quote from Gentile is there's a distinction between restrictions on the speech of those participating in the litigation and strangers to it. And it goes on to say of shepherd, the sort of canonical case about a trial court's obligations. Quote, we expressly contemplated that the speech of those participating before the courts could be limited.

You mentioned landmark. It's that concerned a sanction on the press and footnote nine of that opinion says, if this was limited to those who participated in the proceedings, it might well save the statute. And our job here is to read these Supreme Court cases and it seems like they're drawing a very clear line of participants. Did you know that poor sleep can cause weight gain, mood issues, poor mental health and lower productivity?

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I've done this kind of work before in front of the pellet courts is that you are not trustworthy. You are not providing the court and you're not properly distinguishing the case law, or acknowledging that it exists and then moving on. And he was just doubling down John, down John sorrow on behalf of Trump into an area that he shouldn't have. And I think he probably lost Judge Garcia's vote as a result of that. You got to get two votes in order for the gag order to be reinstalled. And then you had this debate about, as I said on legal AF, why did Judge Chutkin have

there be a full briefing at the appellate level on the stay of her, her, her, her gag order? It's because fact finding by a trial judge is given tremendous discretion at the appellate court. It has to be a clear error in their development of the facts in order for it to be overturned. It's, it's, they're given the widest birth possible by the appellate court. And she made Judge Shuttkin all of her findings about Donald Trump's improper speech and its impact on the listener and its impact on the administration of justice.

And so they're going to bend over backwards and accept as true all of those facts, which means the only thing left is then her conclusions that she could gag speech or conduct short of crimes that are already on the books. Where do you draw that line? Because the panel is concerned, not about cases only involving Donald Trump, but setting precedent on the books to be applied to other people may or may not be last name Trump. And so that's important to them, precedent, and our system of justice is important. I mean, we apply, we're applying precedent from the 1700s still to this day in this country.

The leading case about contempt of Congress and the punishment for it, like in the Steve Bannock case is a 1960s case. So they're worried about that. I believe, however, based on my review of the body language and the way the oral arguments were going, and they gave it as good as they could take it against the advocate for the Department of Justice. He was tangled up a couple of times in his arguments about what are the limits. So I think you're going to find the following in their decision, which we will see in the next week, if not shorter, week or two. One, they're going to be fine with the fact finding by

Chuck in about why she was going to impose the gag water. I think two, they're going to determine that it is appropriate for a judge to protect the administration of justice, regardless of whether the person is cloaked with some first amendment presidential core speech to regulate that speech, short of things that constitute a crime, that there is more latitude by a trial judge. Because that would turn the law of the of the power, the inherent authority of a trial judge to control and protect the administration of justice on its head, because it is allowed short of crimes already on the books for there to be gag orders.

The First Amendment doesn't completely throw over the apple cart and prevent a trial judge from protecting her process, especially where the person is summon like Donald Trump, who was already in the criminal justice system as a defendant and four time indicted as a felon, whose release is conditioned by the court and controlled by the administration of justice. That's different than as the court pointed out today to the advocate. That's different than a drive by participant who's on a soapbox or social media who's not a participant in the criminal justice system who's making comments or what the Trump lawyers like to call the hecklers veto, right? Somebody's

giving a speech and there's a heckler there. You suck. That's a lie. You know, we've seen it. We've seen it in the halls of Congress. Obama's giving a state of a union address and somebody yells out, who's a congressperson, you lie. That's a hecklers veto. That's okay. But that's different than the person who's a participant in the criminal justice system having limitations on their ability to exercise their first amendment, which is allowed. And that's what the court is struggling with. So I think three, they're going to rule that there isn't ability of a trial judge to limit short of crimes, the conduct of a person to protect the Sixth Amendment right to, to, to affair in impartial trial. And now the last part is four, they're going to struggle with did the judge judge, Chuck and draw the line properly, right, put that pin in properly for where

that should go cognizant that whatever law they're making now is going to apply in the future. And that's what we're going to see in the new order that I believe has got a largely a firm what judge Chuck and did. And so I'll give you one more clip from the from the rural arguments. I think this kind of stuff is interesting to hear it directly without smoker sunshine rather than just my analysis. We'll play one more clip, the battle between one of the judges and the Trump lawyer about what are the limits of all of these arguments that he's making to try to get them into that trap. Is that at least when the participant in trial is engaged in political speech, there can be no limitation imposed

to protect the administration of justice and the criminal proceeding. No, that's... ...other than the pre-existing prohibition against violating the law. No, that is not our position. I've been asked for hypothetical with no evidence at all to show how there might be some daylight

between those two standards. And I frankly am thinking of all the social media posted issue in this case and whatever else, whatever daylight there may be between those. These don't satisfy me. Well, this is a test that you've proposed in some trying to see if you have a conception of how it works that would allow a court to still protect the criminal proceeding beyond its prohibition on violating the law and that's this is your test

and so it seems incumbent upon you to be able to explain to me what a court could do to protect the integrity of criminal proceedings that isn't already covered by a don't violate the law. Don't violate the criminal law. Okay, so that's a great example. We've got three examples of great clips from today's two-hour oral argument and we'll continue to follow it right here on the Midas Touch Network to see what precedent is set by this DC Court of appeals. Give me a thumbs up if you like this kind of content. Follow us on Wednesdays

and Saturdays at 8 p.m. Eastern time, one place and one place only on the Midas Touch Network. And we have a curated podcast called Legal AF. It's exactly what you think. We bring these kind of stories to you on Wednesdays and Saturdays there and on audio podcast platforms wherever you can get it. Give me a thumbs up here, helps with the ratings, helps keeps the content coming to you

until my next hot take. Until my next Legal AF, this is Michael Popock reporting. Hey, Midas, Mighty. Love this report. Continue the conversation by following us on Instagram. AF Midas Touch, to keep up with the most important news of the day. What are you waiting for? Follow us now.