Legal AF by MeidasTouch - Trump LEGAL DEATH SPIRAL in 2024 IS HERE

Starting point is 00:00:00 Happy New Year's Legal AF 2024 will be a busy year indeed and we are closing out 2023 with lots of legal developments. So let's get right into it. Donald Trump and stop the E. Jean Carroll defamation case from going to trial in January his attempt to stay a mandate by the second circuit court of appeals was denied in Donald Trump's attempt to exclude E. Jean Carroll's damages expert and Trump's request to add his own expert. Just a few weeks before the trial was, I would say not only denied by federal judge,

Starting point is 00:00:45 Kaplan, but Trump was pretty much laughed out of court for blowing almost every single deadline. Trump is going to get hit with a massive judgment in January. I think a Giuliani size judgment in the next E. Jean Carol trial. Also, the DC Circuit Court of Appeals is plowing ahead with Donald Trump's appeal from the district court's denial of his motion to dismiss for his claimed absolute presidential immunity. Also, Jack Smith keeps on filing motions in that Washington DC federal court, even while the case is stayed, which is just driving Donald Trump and his legal team.

Starting point is 00:01:30 Matt also, in addition to the briefs by the parties, we see some powerful amicus briefs or friend of the court briefs from outside entities being filed with the DC Circuit Court of Appeals, including even one argument that the DC Circuit Court of Appeals, including even one argument that the DC Circuit Court of Appeals really shouldn't even be having jurisdiction to hear Donald Trump's appeal on the issue of absolute presidential immunity at this stage and should just send it directly back to the District Court for trial without even getting to the merits. Also, let's talk Trump disqualification cases. Hey, no one saw what we saw.

Starting point is 00:02:09 But the main secretary of Stivia Legal Affairs, you probably know about this stuff. The main secretary of state disqualified Donald Trump. This was done just by the secretary of state, hell day hearing, but this was not done through the court system in Maine. And this was not done through the court system in Maine, and now kind of goes through the court system after the Secretary of State reached that decision after the hearing before the Secretary of State. Then you have the Michigan Supreme

Starting point is 00:02:35 Court, which decided it did not have jurisdiction, apparently, to hear anything about the 14th Amendment Section 3 disqualification challenges, and then going to Colorado, the Colorado Republican Party is appealing to the United States Supreme Court, the Colorado Supreme Court decision to disqualify Donald Trump from the ballot there. And then finally, you can't wrap up 2023 without talking about the shenanigans by Judge Eileen Cannon in the Southern District of Florida. She kind of closed out 2022 being overturned by the 11th Circuit Court of Appeals. And as we close out 2023 on the other case that now Judge Cannon's assigned to the criminal

Starting point is 00:03:21 Mar-a-Lago document case. You have Donald Trump asking Judge Cannon. Can you just please ignore the classified information procedure act? And pretty please, just, I don't know, maybe let my attorneys just show up at the SEPA hearings. Just, I don't know, because. And can you also ignore other basic legal principles? Will it backfire?

Starting point is 00:03:42 We think it will. That's why they call her Judge Lou Siley and Cannon. We will talk more about this here on legal AF, Ben and Michael Popeye. How are you doing? I'm doing great. I cannot believe it's the end of a year. Most people would be exhausted, but I think you and I and your brothers and Karen were exhilarated by where we are, where the needle is in justice right now against Donald Trump. And we're going to watch, Ben, as you are in your hot takes, and we are on legal AF, this mismatch of resources, talent, experience, judicial prowess between those on the Trump side of the V and those on the other side. I did a hot

Starting point is 00:04:25 take recently where I said, you've got on one side of this mismatch because Donald Trump can't retain a legitimate law firm in America, not one that's highly regarded anyway. Alina Haba, Chris Kaistod, Blanche, and John Laura, lawyers that nobody on this podcast, even on this side of the camera knew Before Donald Trump had to hire them and their and their staff and I'll just be generous and say that's 10 Total people 10 total people and on the other side in all of the cases that we'll be talking about many of which are hitting In January through the appellate process and at the Supreme Court level, the Department of Justice and the Special Counsel's Office, that's a couple hundred people or more dedicated to this.

Starting point is 00:05:14 The New York Attorney General's Office, which is another 50 to 75 people devoted to this, Fawni Willis's Office and the Fountain County District Attorney put another hundred over on that side of the V and Robbie Kaplan lawyer extraordinaire friend of the podcast and her Extraordinary law firm that just knows an unbroken line of success related to Donald Trump She's the one that's representing E. Jean Carroll again put all of that set of talent and resources against these four and you're seeing why we're seeing exhausted intellectual thinking, no intellectual thinking that goes into the briefing

Starting point is 00:05:55 because like the boy in front of the dam with all the holes that has to stick as fingers in the dike, this is what we're seeing with these guys. They have to run around. We're going to be exhausted by the end of the podcast. Just talking about January and what they have to do in civil, in criminal, in appeals, all hitting and timing at the same time while Canada Trump is going into primaries. I said at the end of one of my hot takes, I've been, so have you, I've been at major firms, 2000 lawyer firms. That law firm that I used to work at when I was a child would be, they would do an awesome job, but they would be hard pressed to keep up with and keep at the high level of the

Starting point is 00:06:36 upper margin of legal work. If they had a client like Donald Trump that had all of these things hitting all at the same time, people would be working, socialists would be working 24 hour shifts, dozens and dozens and dozens of them to do the work. You think that's what the law firm of Hobbock, Kice, Blanchard, and Laura were doing? They're not. They're barely treading water. And what we what you referred to at the beginning of the podcast about this pretty please judge can and save us. That's just the gurgle, gurgle, gurgle of a trial team that is drowning under the onslaught of what is happening, civil and criminally against these other resources that I just identified.

Starting point is 00:07:13 You know, it's this very whiny, loosery, loyering. And that's just one of the things I want to point out, like even if I vehemently disagree with a legal argument on an opposing side, I can respect that it is a intelligible argument and we can have a intellectual conversation. When it comes to Trump and his lawyers, it is the lowest of low level loyering where they even just miss the most basic deadlines. They don't assert affirmative defenses. They don't make the requests when you're supposed to make basic requests where you could

Starting point is 00:07:59 simply say, Donald Trump hereby asserts affirmative defense X or Y or Z or whatever it is. They don't do that. And then the judge calls them out for it and then they go and they whine about it. Oh, it's a clit in a point. The judge is being so unfair. This is a travesty, you know, or if you want to talk about the New York Attorney General's civil front case, for example, they start attacking the judges' law clerk, like, whoever gave a crap as a lawyer about a law clerk passing notes to a judge, which is part of the responsibilities of a law clerk.

Starting point is 00:08:36 When you show up in a court, as a lawyer, you're respectful to the court staff, you're respectful to the law clerk. It would never even cross my mind, even if the notes was somewhat distracting, that I'm going to devote my time to attack the law clerk. So after you keep attacking the law clerk, and then there's a limited gag order put on you as a lawyer to just be a basic decent human being

Starting point is 00:08:58 and not attack the law clerk, and you're gonna be put in the gag me. I can't put on a defense. They get me. Like, it's just the wha, it's the whininess. And look, we talk now about the Second Circuit Court of Appeals, denying Donald Trump's attempt to stay the mandate when the Second Circuit Court of Appeals rejected Donald Trump and his lawyer, Lena Habas, the one representing him.

Starting point is 00:09:23 They tried to assert absolute presidential immunity in this eging carol case, which is scheduled for trial mid-January, because the statements made by Donald Trump in this case relate to 2019 statements Donald Trump made during press conferences and other things and other times while he was in office, but they hadn't asserted that defense for three years. And so the second circuit is like, you can't wait three years on affirmative defenses. You've waived that affirmative defense. And look, do I think Donald Trump would have prevailed on that affirmative defense. I don't know. It is a much harder analysis under the Nixon v. Fitzgerald line of absolute presidential

Starting point is 00:10:13 immunity affirmative defense analysis than Donald Trump's conduct relating to the January 6th insurrection because as abhorrent and disgusting and despicable as Trump statements were about E. Jean Carroll. Remember the Nixon v. Fitzgerald case gave Nixon immunity for engaging in a retaliatory termination of an employee because they said that's within the province or scope of the outer limits of the presidency, even if horrible presidents, higher and fire. So could I have possibly seen Michael Popeye, even though I would disagree with it, and this is me trying to play devil's advocate here, the Supreme Court or the second circuit

Starting point is 00:10:56 court of appeals, depending on the panel, saying, look, Donald Trump made that statement during a press conference, press conferences are within the outer limits. Regardless of that, he said defamatory things, the press conference is what we're focusing on. But so, it's so immunity applies there. But it doesn't matter. They didn't assert absolute presidential immunity, so it was waived. They couldn't even argue it. And then so Trump tries to stay that and then stay the mandate, meaning Trump wants the trial to be delayed and ask the second circuit, hey, can I have 90 days so I could go

Starting point is 00:11:32 to the United States Supreme Court potentially, even though we just argued that the Supreme Court should not hear a direct appeal on the absolute presidential immunity in the context of criminal cases when Jack Smith was seeking that relief to the United States Supreme Court and then Trump cites Jack Smith favorably. And the second circuit's like, no, go to trial, go away from us, denied. And then the day after that or two days after that, you have the district court judge Kaplan, who's the trial judge in the next E. Jean Carroll trial, and he was the trial judge before, basically says, look, Donald Trump's trying to exclude Professor Humphreys, the expert of E.

Starting point is 00:12:13 Jean Carol, by the way, the same expert, the professor at Northwestern University, who was the expert for Ruby Freeman and Shane Moss in the damages case against Rudy Giuliani. Look what the judge said about Trump trying to exclude Humphreys. The deadline for filing in-liminate motions in this case was February 16, 2023. This in-liminate motion to exclude Professor Humphreys testimony, E. Jean Carroll's expert, is 10 months too late. Nor can the delay be excused on the basis of her revisions to the original report to exclude the June 24th, 2019 statement from her damages calculation as the methodology on both her original opinions and her revised opinions are identical.

Starting point is 00:12:57 And then Donald Trump wants to add this other expert. Right now he's trying to add another expert. And then the court says to Donald Trump and his lawyers, look, first as the court already pointed out, defendants lack of an expert witness at this point is entirely a product of Trump's own doing. Defendant Donald Trump knew in March 2023 that the other expert, Mr. Fisher,

Starting point is 00:13:19 his original expert for both this case and the Carol II case, had been foreclosed as a witness in the other EG in Carol case on grounds very likely to be applied in this case. He could have read the handwriting on the wall and retained a new expert many months ago, even if only as backup, yet he failed to do so. He did nothing in this regard until he sought permission on November 2nd to add an unidentified new expert to testify to unspecified opinions on an unspecified basis. This suggesting very strongly that he had not yet found a new expert.

Starting point is 00:13:56 He waited until December 13th about a month before the long schedule trial to surface with this new expert. I mean, Po Popo, can you break down for our listeners and viewers like that behavior right there. If you got out of law school in the first year and you did that, that would be like a scarlet letter on your career. I, and I wear a scarlet shirt, I have been meaning to talk to you and your brothers about a new podcast idea I have. Now that this is all the wave that legal AF helped start,

Starting point is 00:14:32 I was thinking about Hobbes, Mishaps and Malpractice because, or just Mishaps and Malpractice of Trump lawyers, we could do a podcast on that. Oh my God. It has been remarkable to me, and I touched on it a little bit in my my spiel at the beginning. We're just watching outmatched lawyers who even at the most fundamental level are making mistakes. Any one of which would have sideline you and me or anybody else in

Starting point is 00:14:58 our careers. I mean, these are malpractice moments that should keep a lawyer up at night, but they're done repeatedly over it. It's almost like an inexhaustible supply of legal malpractice by the lawyers for Donald Trump. There's no other way to put it. You and I and Karen were going back and forth in texting recently, just listening and it went on forever. All of the mistakes that Alina Habba has made that has put her client into both feet into a hole. And it just gets, as if no one's going to notice,

Starting point is 00:15:31 federal judges notice when they when they try to come in and whine about something, they get reminded time and time again, either appellate judges or trial judges, that they have missed important deadlines. They have waved important defenses and all roads, at least for this part of our segment of the podcast, lead back to Alina Haba. I can't even lay it at the feet of Joe Takapina, coloring book Joe as I like to call him, in the E. Jean Carroll,

Starting point is 00:16:00 because he came in 90 days before the trial of the first E. Jean Carroll case that he lost and took over from Alina Haba because and we thought Alina Haba was like a dog house that Trump even wasn't going to let her out of. But no, she still appears regularly as some sort of legal representative on various talk shows and cupcake interviews, newsmax and that kind of thing. What happened here is same thing that happened last time. Let me start from the beginning. In all the cases involving Alina, but there's always a screw up. The reason that he is even not able to assert immunity, and I think based on what you just

Starting point is 00:16:38 outlined, what we've talked about on legal IF before, and the blasting game, the blasting game case that just came out in the DC Court of Appeals, which is the current prevailing law in the land until, unless that until there's a different law made by the US Supreme Court or otherwise, that there's no way he'd have presidential immunity, official act immunity for having defamed allegedly, E. Jean Carole while he was president, that that is beyond the outer perimeter, even if you have stretched it like silly buddy, you know, beyond the reach of my band, my wingspan here. And then you plotted his conduct.

Starting point is 00:17:13 It has to be outside the outer limits. You know, even Joe Takapina before he was Donald Trump's president said that Donald Trump doesn't get to be the the famer in chief while he's president. This is be I guess he was trying out to one day represent Donald Trump in the same case. So you have that second circuit properly found no. First of all, we're not even going to get there because your lawyer effed it up. This is my paraphrase. That's not exactly what they said at the second circuit at the second circuit, what they said. and I think it was Judge Cabrana's who wrote the opinion. He said, uh, you missed your deadline.

Starting point is 00:17:48 You waited almost three years into three years into the case to raise the immunity. If you thought you had it, you probably had to do it. I'll just give you in the first year, you know, then I like the first month. It should have been in the first month or two first, first year, two years after the first year, that's when you get around, sorry, it's waiver. And you can go take it up. If you, if you dare, and we'll talk about the dare part, if you dare, you can go take that up to the US Supreme Court about whether you have absolute immunity related to this alleged defamation of E. Jean Carroll, in which you said she's a hoax. She's trying to shake you down.

Starting point is 00:18:25 You don't know the woman. She's not your type. When it's already been proven, of course, that you did rape her in a dressing room in 1996 in New York. So we'll talk a little bit later. We'll table that for a minute about whether he does take that kind of appeal. I don't think so, and I don't think you do either, Ben. But so that happened. Alina Habba missed the deadline. She was in complete control of the case. Can't blame anybody else. She didn't raise that issue earlier. Now in the actual trial, we're going to trial in the 16th of January, E. Jean Carroll

Starting point is 00:18:57 2, only about damages, only about how big of a punitive damage award for the punished Donald Trump combined with actual damages is the jury going to award after they're going to be instructed that the judge is already determined as a matter of law that whatever Donald Trump's setter did about E. Jean Carroll while he was president, it is the family. There's no other, you don't have to prove any other element like actual malice because she's not a public figure. And therefore, just focus on the damages. And just to focus on the damages, they're going to hear from experts. Experts that have been that have been properly and timely disclosed by E. Jean Carroll's lawyer, Robbie Kaplan,

Starting point is 00:19:39 on time, it's very important in federal court where I practice to do things on time and don't miss deadlines. And because that's grounds alone to deny the relief that you're seeking. Robbie Kaplan brought in Dr. Humphreys. We've known about Dr. Humphreys because she testified in the E.G. Carroll case over the summer and gave the jury a range of damages that they basically adopted to rehabilitate E. Jean Carroll's reputation now damaged through defamation. This is the same as you touched on it.

Starting point is 00:20:14 This is the same economic loss defamation expert that Ruby Freeman and Shane Moss used successfully against Rudy Giuliani just two weeks ago, in which the jury also went along with Dr., her name is, she's a doctor, Dr. Humphries, about the range of damages for each one of them to fix their defamation injuries at the hands of Rudy Giuliani. So she's a known quantity, Dr. Humphries, and a successful one at that on the plaintiff's side. I'm sure she does some defense work as well. And she's been listed forever in and last November, sorry to believe, last November. Actually, no, sorry, last March, March, Donald Trump had the expert that he wanted to use against Dr. Humphreys stricken. Dr., and I don't know who's a Dr. Robertche, Donald Trump had the expert that he wanted to use against Dr. Humphreys, Strican, Dr., and I know it was a Dr. Robert Malkis, Strican, because under expert standards

Starting point is 00:21:12 that a judge uses in federal court, which we call Dalbert, under the Dalbert standard, this expert didn't make it, because his methodology was all Foccata, that's another legal term, and all screwed up. And so the judge says, no, no, that expert's not an expert. So I was on concern. He's not coming in. So even then they knew they lost their expert. When the E. Jean Carroll two case came up, they knew they had to get another expert.

Starting point is 00:21:36 And yet they missed a series of deadlines. The judge says, as you read it, what did you wait for? You knew that Dr. Humphreys was gonna update her damage model. This is all about an updated model. To take out the amount of damages that have already been awarded in the first case, so that there's not double recovery. So that's all she was gonna do.

Starting point is 00:21:55 No new methodology, same methodology. And it even goes a step than that further than that. She was reducing the damages because one of the defamatory statements that was alleged was removed. So she had previously removed the other defamatories, economic statements. There was just one statement that was removed from the methodology. And that's where the judge was like, just one, it's one statement that was, that's different. And the focus is on the methodology and that's where the judge was like to just one it's one statement that was that that's different and the focus is on the methodology hasn't changed If the judge said to Trump if she changes her methodology, I'll give you a shot at it for a new expert

Starting point is 00:22:34 She doesn't change your methodology and all she's doing is math. I'm not so all she did was math She subtracted out what you just identified been and then they came, oh, we need a new expert. Well, a new expert and the judge said, no, not only am I not striking her, she's going back on and good luck to you with the new jury, but I'm not giving you an expert. So they have, think about this from a trial or a standpoint that you are and we can, you know, as we're painting the picture for our audience,

Starting point is 00:23:01 they're gonna go into a jury. E. Jean Carroll's to testify very compellingly, very authentically about all the damage that's happened to her and why punitive damages are appropriate. In addition, Eging Carol's lawyer has already identified statements and testimony that Donald Trump made in the civil fraud case, talking about bringing it back around about his wealth that they're going to use under oath,

Starting point is 00:23:26 that they're going to use in this trial to go to the punitive damage amount. Sure, you're a big shot. You think you're worth billions and billions and billions of dollars? You think Mar-a-Lago is worth a billion dollars? Great. That's going to go to this jury for the size of the punitive damage amount. Good job. So it didn't work in the civil fraud case because the judges are buying it, but it is going to be used as sworn testimony against Donald Trump about the size of his wallet, which is exactly what the jury is going to focus on. And then there's no counter expert. So you got the expert for E. Jean Carroll, E. Jean Carroll, the statements by Donald Trump about his wealth. Normally, you know, the jury would look to the back for the door to open and an expert to come in for Donald Trump. No expert. And then they're going to go deliberate about how big of a

Starting point is 00:24:09 check to write against Donald Trump in favor of each and Carol. You have a number in mind, don't you? For that. Well, look, I think it's going to be over 10 million. I think it'll be, I think it could be 50, 100 million. I think you could have a runaway jury here that hears the fact that the day after E. Jean Carroll prevailed and Trump was found to have raped her, civil rapes actually abused her rape and defamed her. Donald Trump went on CNN and did that so-called town hall and then started lying about her again in front of millions of people. And how much money did he raise, Ben?

Starting point is 00:24:53 How much money did he raise on the back of E. Jean Carroll and lying about her? Isn't that a measure of damage for the jury? Well, I think they're going to hear about that in, yeah, with punitive damages. And this is why you need to make a statement you need to punish him there's no other way to make him stop and then one of the things will see also is will judge Kaplan entertain what we're now seeing in the Giuliani Giuliani case where Ruby Freeman and Shane Moss filed another lawsuit for injunctive relief, basically saying, if he's going to keep on defaming, if Giuliani's going to keep on defaming Freeman and Moss after the verdict, he's going to have to be held in contempt. There has to be some other remedy to stop these grifters from raising money off destroying people's lives. Let me ask you a question. As you follow the social media aspect, closer than I do, to stop these grifters from raising money off destroying people's lives.

Starting point is 00:25:45 Let me ask you a question, because you follow the social media aspect closer than I do, especially outside the law stuff. Since the Giuliani getting sued again in the injunction issue, and since this trial is about to come up in that period, has Donald Trump and his minions piped out about E. Jean Carol? No, no. No, no, no, no, they, they, they, they, they, it's the same, you know, every now and then you'll get, I mean, I think in the past month, there was a post that Donald Trump made and, and about E. Jean Carol, over, it's over and over again on his social media platform. And I think Trump will just keep on ramping it up.

Starting point is 00:26:25 But and here's the thing too, when they lose, when they get sanctioned, it's the political action committees that they grift off of the followers that then pays the sanctions. And then you have Alina Habba, who gives these speeches at these events, bragging about being sanctioned a million dollars. Now, if I was sanctioned a million dollars for bringing a frivolous lawsuit as a lawyer, a normal lawyer would be, I wouldn't want to show my face around the legal community.

Starting point is 00:27:00 Like, I would have so much shame that I did that and I would need to work really hard to regain try. I mean, I can't fathom that ever happening. She then runs around and brags about it. Like that's a good thing. And one of the points we make over and over again on legal AF is in trying to give the weight to different legal arguments and try to filter it through this objective lens that we try to bring, it is not, we're not politicizing issues when we say that a lawyer who brags about being sanctioned a million dollars for filing a patently frivolous case is a shameful lawyer. When we criticize that, that's not us politicizing these issues. It's just, it's just calling it is.

Starting point is 00:27:56 It is what it is. And, you know, they politicize it when they go, oh, I was sanctioned because of this. No, you're sanctioned because you had zero facts. You didn't even plead causes of action the right way. You got multiple chances by the judge to just dismiss it without being sanctioned, yet you persisted in filing completely baseless accusations. You blow every deadline. You don't participate in discovery. You make a mockery of the legal system. And our legal system then looks at that and renders and enters accountability. That's what's happening.

Starting point is 00:28:30 Speaking of accountability, though, Popoca, I wanna talk about what's going on with the absolute presidential immunity appeal. The DC Circuit Court of Appeals is plowing ahead there. They issued the DC Circuit Court of Appeals issued an order setting the time frame for oral arguments on January 9th. The final briefing, if you will, so you had Trump's brief December 23rd, Jack Smith's brief, December 30th, and then you have Trump's reply January 2nd. On January 9th,

Starting point is 00:29:03 you'll have oral argument. I want to hear your prediction, Popeye, of when you think there will be a ruling by the DC Circuit Court of Appeals. I think it'll be very quickly. And let's talk, let's do the roundup of these disqualification cases, where we think they are headed, and we'll finish up with some judge, Eileen Cannon News. Let's take a quick break. Do you ever feel like money is just flying out of your account? You have no idea where it's going? Well, I know.

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Starting point is 00:30:33 That's rocketmoney.com slash legal AF. Rocketmoney.com slash legal AF. So Michael Popak, great ad read first and foremost. We are headed towards, I think a prompt adjudication of this appeal by the DC Circuit Court of Appeals. I know last week and last episode, a lot of people saying, oh, the Supreme Court denied special counsel, Jack Smith's petition

Starting point is 00:31:03 for Sir Shior. or direct appeal. And you and I were saying, I get why the Supreme Court did that now. We'll have to see what the Supreme Court does after it goes through the normal process. I mean, Jack Smith was being as aggressive as you can be there and trying that direct appeal with the Supreme Court and saying, I don't even want to go through the DC Circuit Court of Appeals.

Starting point is 00:31:27 And I think the Supreme Court looked at how fast the DC Circuit Court of Appeals was moving. When Jack Smith made that request to the Supreme Court to hear it on a direct basis, the DC Circuit had not set that super expedited schedule, you know, either. So I think the Supreme Court said, look, the DC circuit's gonna have oral argument on January 9th, you got Trump's brief, December 23rd. You've got Jack Smith's brief, December 30th, you got Trump's reply, Jack, word second. Look, I think the Supreme Court said,

Starting point is 00:31:56 what we're gonna hear this during, you know, Christmas and the New Year's, no, we're not gonna hear it anyway during that time period. And so the DC circuit's doing their work. Let's let them hear all of these arguments first. And then we'll hear it. And look, that kind of patience, I know when our democracy is on the line, they'll give it 30 more days, they'll give it 44 or 5 more days, 45 more days. Every one of those days feels like a miss if Donald Trump's not being held accountable.

Starting point is 00:32:26 So I totally get that. But Pope, just think about all the powerful arguments we're hearing now, not even just from Jack Smith, not to Jack Smith's team, but from these amicus briefs that are being filed by these outside groups. You had a few major ones, lots of Republican former Republican groups coming together. You have the former White House top lawyer, Ty Cobb. You know, he'd be the one who would be asserting absolute presidential immunity. So when you have the former White House lawyer, the top lawyer at the White House, Ty Cobb,

Starting point is 00:33:02 join a brief, an an amicus brief, saying that there is no absolute presidential immunity. That's powerful. But then there was this other one that that kind of snuck up on me and I didn't even think through this argument. But when I read it, I was like, that's a pretty interesting argument. The groups called American oversight. They're represented by top law firm Arnold Porter K. Scholar.

Starting point is 00:33:25 I didn't realize that Arnold and Porter and K. Scholar merged back in 2017. It's a little too different firms, but they're one firm Arnold and Porter K. Scholar. And they basically argue there's no jurisdiction for this appeal at all. And they say, look, there's this case called Midland asphalt 1989 case, Justice Scalia, right wing justice since passed away strict textualist and Justice Scalia and Midland asphalt said you can't take these interlocutory appeals these appeals in the middle of the case that's what an interlocutory appeals on a what's called a collateral order and

Starting point is 00:34:02 not a final order an order that's in the middle of the case. Um, he says, uh, Justice Scalia said, unless there's some strict textual support for the immunity or, or, or grounds for this interlocutory appeal in the constitution or in a statute. And so American oversight says, Donald Trump's absolute presidential immunity argument tries to take this bizarre, contorted, negative inference of the impeachment judgment clause, arguing that because there wasn't a conviction in the Senate,

Starting point is 00:34:36 that therefore he's not entitled to, therefore he isn't entitled to absolute presidential immunity. But American oversight says, even if you accept his argument, has some basis in logic, which it doesn't, that's not in the Constitution. And there's no statute. So therefore, you need to address those issues, DC Circuit, after a conviction. This should not be an interlocutory basis. And, you know, why I find that interesting, that argument so interesting, and why I said, this is why I

Starting point is 00:35:10 am kind of glad that the Supreme Court did show a little patience as well, even though I'm sure this argument would have just been made on an amicus brief to this Supreme Court. But why no one's being hasty here, you know, and and and are addressing these issues. The Supreme Court has a doctrine that's called a kind of constitutional avoidance, right? Where they where if they can avoid a major constitutional crisis through some other grounds, they may not address the issue right away. And so if there truly is a procedural ground to say there's no jurisdiction over this, bring this back to us after After there's a conviction, that could be a way the Supreme Court can look at this too, or the DC Circuit Court of Appeals

Starting point is 00:35:50 can look at it too. Of course, then you get to the merits on whether absolute presidential immunity applies, and then you go through your judge, Tonya Chutkin analysis of the doctrine simply doesn't exist in criminal cases, or you could go to your fallback of the DC circuit court of appeals decision in the last game that it falls outside the outer perimeter because it involves interfering with the state's rights to oversee their own elections. But what do you make of all of this, Pope? And then I think it's a good segue just to jump right into disqualification. Yeah. Look, as we expected, the US Supreme Court is going to have to jump in with two hands and two feet about all things Donald Trump, whether he's going to be on the ballot or not and we'll talk about

Starting point is 00:36:30 that in the next segment or bleed into it. And what's going to happen with the application of immunity for him and how quickly they're going to make that decision and who's going to make that decision. So just to bring it full circle, you outlined really efficiently the briefing schedule, got a briefing schedule, it's going to make it all timed out. So by the 9th of January, the DC Court of Appeals, which is the right place for the appellate decision to first be made by a three judge panel there, judge pan judge, judge child and the other judge who's appointed by the George W. Bush. And the Supreme Court wasn't patting Donald Trump on the back when two weeks ago, it said that Jackson, yeah, we're going to let this come up the normal course.

Starting point is 00:37:14 We're not interested in doing it direct appeal on this. We understand it's an extraordinary matter and it's an extraordinary issue, but it needs to go the normal course. I'm summarizing their thought process. It ended up in a one line opinion of people who don't know better jumped up and down. It's at all a win for Trump. It'll slow down the wins of justice.

Starting point is 00:37:32 It's not. It's not because it will be if what happens happens the way we think it will. In that after the ninth of oral argument within three days, 72 hours, I believe. I think you do too, but there's going to be a ruling by that panel. It's going to be against Donald Trump. They're not going to stand, they're not going to set new precedent for the next 250 years of our republic that a president in office can commit crimes. And that goes without any criminal

Starting point is 00:38:04 justice process to address that he can just get away with the murder if he wants. That's not going to be, I don't believe, the jurisprudence is going to be established by in the next three weeks by this panel. And then once he loses that absolute, there is no absolute or official act immunity for President Wall in office against an indictment. This goes back to your original point about this new amicus brief that we'll talk a little bit more about by American oversight. It also has to do with timing. The case that we like talking about that happened in the last two weeks, it gets now cited over and over again as the momentum of that precedent takes over, the blasting game case,

Starting point is 00:38:46 stands for the proposition that at the motion to dismiss phase, at the very beginning of a lawsuit before the pleadings are closed, before the trial, it's not the right time, especially in Donald Trump's case, to find that there's absolute immunity at the outer limits of presidential, out of the perimeter of presidential acts at that moment. Maybe we'll see what happens during a trial or revisit the issue, but they've also laid out the framework in Blasting Game that it would be an extraordinary turn

Starting point is 00:39:15 of events if the evidence at trial showed us that your acts were within the outer perimeter of presidential authority related to the incitement of the riot that led to personal injury and damage and other things in the civil cases that are pending before Donald Trump. But it is a motion to dismiss moment in time in that case. Similarly here, we haven't done obviously the trial of Donald Trump, although we're all chomping at the bit to get there.

Starting point is 00:39:44 No evidence has been aduse. No witnesses have been presented. No sentence. No conviction. No sentencing. It's early. It's at the indictment phase. The question is on the indict face of the indictment.

Starting point is 00:39:55 This is what Judge Chuck and the trial judge said originally. She says, I'm limited here. The four corners of the indictment have to be taken for true for the purposes of this motion. Everything in there has to be assumed to be true. And then you're asking me whether there's an absolute immunity no matter what is written in there effectively that you won't have to stand at you, you won't have to stand in a criminal trial for your charges.

Starting point is 00:40:19 And I'm not doing that. And that's where at this juncture at the indictment level, I don't believe the DC Court of Appeals three judge panels going to do that either. By the time Donald Trump gets to the Supreme Court through the road of going through chief judge John Roberts first because he's the judge that sits over the DC Court of Appeals and he's the one that's going to make the decision whether there should be a stay, a continued stay of the trial of Donald Trump in the DC, uh, uh, DC, uh, courts that are scheduled for March or not, or he's going to turn it over to the full nine justice panel to see if there's going to be a stay and or what the briefing

Starting point is 00:40:56 schedule is going to be around the issue. They control the Supreme Court controls completely their docket. There's no rule book, there's no owners manual, they decide. They want to do it in 72 hours, they'll do the whole thing in 72 hours like they did in, didn't push versus score. They want to do it in 72 days, 72 weeks, whatever it is is going to be up to them. Now, of course, by, by this logistics timing of briefing calendar, they're signaling what they want to do with the case or how important they say it. If they don't want to interfere

Starting point is 00:41:30 with the March trial, they can they can either take the case up, rule on it quickly, and rule against Donald Trump coming up from the appeal from the DC Court of Appeals that will have ruled against him. So he's already got a foot in the bucket. Or they could just say, this is very, very interesting and fascinating. We want full briefing and oral argument. We'll see everybody in July or June. They're like, wait, wait, the trials in March, exactly. But we'll see you after March. So let us know how that turns out. Now that now dovetails into this amicus, this friends of the brief, the friends of the court brief that's been filed. It hasn't been accepted yet by the court, meaning the DC court of appeals has the right to accept or reject. They get dozens of amicus briefs. Some of them are

Starting point is 00:42:13 like real crackpot briefs, you know, obviously not helpful to their decision making, but some of them like the two you've identified, one, they've already accepted, you know, fought Republican lawyers and senior officials from five Republican administrations. That was the title of the one brief that got accepted. They want to hear from that group and we'll talk about a little bit about their second amendment or their their their their article to analysis of the presidency and why this particular crime that's been charged can't possibly be something for which somebody has immunity.

Starting point is 00:42:49 That's a very unique argument will will about you and I bounce it around in a minute and then there's this other brief that we both liked a lot by American oversight that's not for profit brought by this great law firm or important order in which they say. or a moral important order in which they say, there is only a couple of immunities that fit the bill for having what's called an interlocatory appeal meaning in the middle of the case before there's even a trial. You don't normally get an appellate right. You don't have an right to an appeal. And they're arguing that the DC Court of Appeals

Starting point is 00:43:19 doesn't even have jurisdiction, appellate jurisdiction to hear this issue on an interlocutory or before final verdict and sentencing posture at all. Why? Because under the precedent of Supreme Court precedent, right? Law that's been developed since 1989 in the U.S. Supreme Court. You don't take that issue.

Starting point is 00:43:43 Immunity is not an interlocatory appellate issue before a trial to stop a trial unless there is express textual provisions and explicit guarantee of no trial, right? And that, if that's the case that we want to hear that now before a trial, if it's not the case, even if it's labeled immunity, do the trial, see if you get convicted, see if you get sentenced, come back and talk to us. And there's only, apparently there's only two, as you alluded to, there's only two

Starting point is 00:44:15 constitutional guarantees to avoid a trial. If you have immunity, that's double jeopardy and speech and debate clause. If you've already been tried for a crime in a court of law, you can't be tried again. We're not going to put you through another trial and then tell you, yep, you were right. You shouldn't have had that second trial. We're going to do that early on an interlocutory appeal, therefore a pellet jurisdiction. Speech and debate, you are a part of the House or the Senate, and you are doing your function as part of your lawmaking, your rulemaking, not something else, not campaigning, not interfering with the presidential election, but you're doing legitimate speech and debate, trying to

Starting point is 00:44:55 get to the bottom, fact finding around that great. You can't be sued for that. You can't be prosecuted for that state or federally, And we're not going to wait till the end of the trial to find out whether we were right or wrong. We're going to tell you right now whether you have immunity or not. But those are the only two. And what doesn't fall into that?

Starting point is 00:45:14 This homemade presidential immunity that finds no place in the constitution and isn't guaranteed anywhere. So their argument is judges, back out. Let the trial happen in March. Let's see what happens. If he loses, he can come back with the evidence that's been induced on the record and developed

Starting point is 00:45:31 by the finders of fact, the jury, and the judge is the log giver, then we'll come back and revisit it. Now, they haven't accepted that brief yet, but if they do, which is not been argued by Jack Smith's team, not been argued by the lawyers in the team, not been briefed, doesn't mean it can't enter the deliberations, if you will, of the judge. And certainly, maybe could travel again to the US Supreme Court, along with the other

Starting point is 00:45:52 amicus brief, if the US, well, not if when the US Supreme Court takes this issue one way or the other will know that, but towards the end of January. And again, I'll leave it on this. If the US Supreme Court wants to definitively, definitively snub this issue out or, or a reward Donald Trump for criminal activity, they'll make, they can make that decision as early as the end of January beginning of February, keeping the March trial on track. And I'll leave it, I'll leave it on this bed. If Donald Trump's lawyers outmatched and outwitted and out resourced and outthought and outprepared,

Starting point is 00:46:28 think that they're gonna go away with turning to Judge Chutkin after they lose the series of things that you and I just talked about and say, Judge, we haven't been preparing for the trial because it's been stayed. And so we need more time, forget it. They have an obligation to prepare for the trial, whether it's been quote unquote, state or not,

Starting point is 00:46:50 so that if the stay pin is taken out, in this case goes to trial in March, they are ready. They are not gonna be able to get away in front of this judge, nor will it be proper grounds for a deal to say that we've been sitting around and we stopped preparing a month ago because we thought we were right on our pellet arguments. For, get it. If the appellate court, if these court of appeals

Starting point is 00:47:12 doesn't grandestay and neither does the Supreme Court and where they rule definitively against Donald Trump, this trial starts in March whether, whether a case and blanche and laurel or harba are ready or not. And I like that jack smith is being aggressive though. I like that jack smith is making Donald Trump respond and declare positions about where Trump stands on issues like we all know now as a public that Donald Trump is saying, if you accept everything Jack Smith says as true in the indictment about the conduct Trump engaged in, by the way, I accepted as true

Starting point is 00:47:54 because it's very, very, very detailed that gives very specific dates and times and we all saw what happened with our own eyes. Are we heard about it or we learned about it? Donald Trump says, I am still immune. I have the powers of a king. That's what Donald Trump's argument is. So, Jackson Smith goes, okay, king, okay, you think you have the power of a king? Why don't we ask the Supreme Court?

Starting point is 00:48:19 And then what does Donald Trump say? No, no, no, they shouldn't hear it right now. No, no, no, no, let's delay that. Is Donald Trump saying no, no, no, they shouldn't hear it right now. No, no, no, no, let's let's delay that. Again, it is, it is as a lawyer as a American citizen, as just a lover of worldwide democracy, the behavior, popoq over and over again, is just whiny, loserish, kind of victim, just weak behavior by Trump and his lawyers. And it's just like the constant whining and coming up with excuses versus like, you know, own it or don't own it.

Starting point is 00:48:53 You know, if you did it, then prove your innocence, you know, but it's always, nah, I'm immune or let's just delay it and let's wait and it's that type of just behavior that to me is so abhorrent as a lawyer and just as a as a human being. And to your point, Popeye, Jack Smith keeps filing documents. He just filed a motion and limine. Donald Trump doesn't have to respond to it until the stay is ultimately lifted, filed a motion and limine. And then I saw Alina Haba go on

Starting point is 00:49:25 and call the motion and limited a gag order and said they are trying to gag us with this motion. Like, hope I can motion a limited is filed in every federal or civil criminal civil case, I mean state court cases, it's a pretrial motion to narrow the issues that go before the jury so that it's only admissible evidence going before the jury. I saw how but yeah, I saw how but acting like they're trying to gag us. No, they're filing a standard pretrial motion. You get to file your own standard pretrial motion eliminates.

Starting point is 00:50:04 You can file oppositions at the court will determine what's got to be relevant and missable evidence that goes before that goes before a jury and it's kind of probative and relevant value can't be outweighed by its prejudicial nature. These are standard filing at the act like, oh my gosh, it's a gag order. No, it's it's a emotion and limiting. We we started the podcast with my Observation that we're going to start a new pod legal a f mishaps and malpractice by Donald Trump and his lawyers

Starting point is 00:50:32 Namely Alina Haba frankly to hear Alina Haba comment and give her color commentary on federal practice Is reminds I think I use this once on legal a f mean, there's an old joke about you can teach a monkey how to roller skate, but why? And it's like watching Habba, they just push her out there to make these ridiculous pronouncements of legal concepts of which she is not familiar. And again, I just want, because I know people, and we don't do it for this reason, but people do take, I think, a tremendous amount of confidence and comfort from when

Starting point is 00:51:10 you and I and Karen break down the law and give our legitimate opinions about an analysis, about why and how things are going to turn out. we're fortunately because we're good at this, we get it right. But our comments about the outcomes, I think are important because we talk about it from projecting ourselves into the court process and proceedings. We get inside and under the hood of the court filings, the docket. We get inside the courtroom, either we get a live feed that we can comment on or transcripts after the fact, or we have somebody in the room that we rely on or trust that gives us the information that we need a feed that we need

Starting point is 00:51:54 in order to do the analysis. And the reason we do that is because what goes on and what I like to refer to as the wood-panelled rooms of the courtroom is a completely different universe of which these Trump lawyers are not familiar, compared to what goes on on newsmax or rallies or social media posts or whatever else. That there is not, I can't tell the public in our audience, there's no greater variance or distinction between the world that you and I reside in in the court system and the world that goes outside. And you can get close, you can go on the courthouse steps and say goofy things, you can get

Starting point is 00:52:37 even into the hallway in front of the wooden door and say goofy things that get you gagged or contempt charges against you. When you're inside the courtroom, it's evidence, evidence-based, fact-based, witness-based. And just think about the parade of witnesses, the wealth of witnesses that Jack Smith and the others have put or will put on against Donald Trump. I joke down a hot take that he could spend three weeks and just put on former lawyers, some despised and or convicted of Donald Trump against him. Then after the jury doesn't find that compelling, all these lawyers testifying against their client, their former client, including notes that they took at the time. Wait till they bring in all the senior Republican officials starting with the vice president of the United

Starting point is 00:53:36 States, the attorney general, not one, but two attorney generals of the United States, the White House Council of the United States. you know, and then all the people that were flies on the wall who were intimately involved with all the decision making watching, like Cassidy Hutchinson and the rest. Sure, well, they're still flipping witnesses. They're still flipping defendants. Don't get me wrong. Mike Roman, we'll talk about him later. Mike Roman better flip on Donald Trump or he's going to go down the drain. But just think about the trial inside the wood paneling. The rest of this stuff, it's like the Wizard of Oz. Ignore that. Ignore that. It's what goes on behind the screen that matters to justice. Not this other charade.

Starting point is 00:54:21 Well, you know, to your point when Alina Habba was having oral argument before the second circuit court of appeals, they asked her, how does this relate to the blasting game decision? And she goes, I need to look through my notes. What's that? The blasting game case? Oh, I don't seem to know that decision. But I do want to talk about the Nixon V Fitzgerald case. It's a blasting game V Trump Alina Haba. It's your case. And it's your own immunity. You're arguing about immunity. You better know every case up to the minute about immunity.

Starting point is 00:54:54 Maybe the one that was released two weeks before or before the oral argument that relates to your client. Maybe that would be something that you should know. Let's talk about these disqualification cases where they are all that Michigan Supreme Court saying they don't have jurisdiction to hear disqualification challenges. The Colorado Supreme Court decision, disqualifying Donald Trump and that Supreme Court decision was appealed to the United States Supreme Court by the Colorado Republican Party. Notably, Donald Trump has not filed his petition for surgery or yet, I guess, waiting again to the last minute there. And then you had the Secretary of State

Starting point is 00:55:36 of Maine. And this surprised many. You know, she held a hearing, though, December 15th, and thereafter just said, look, I'm being asked to reach a decision as a secretary of state is the 14th amendment section three, self enforcing, I think it is was January 6th and insurrection. I think it is was Donald Trump involved in that. I think he was is Donald Trump an officer. I think he is. So what do you want me to do?

Starting point is 00:56:03 That's basically what the Secretary of State said, I have to render this decision. It seems pretty clear to me. And that's the decision. So I'm saying that Donald Trump is disqualified. That's my role as the Secretary of State. I don't do this lightly. I understand that no Secretary of State has done this, but I feel I'm duty bound to follow what the law is. Donald Trump immediately puts her contact information to the public so she can receive death threats because that's how MAGA responds to things. Her decision, like the Colorado Supreme Court decision, is pending, you know, kind of a further judicial process. And Maine, it will now go through the kind of court system after to see if she

Starting point is 00:56:53 acted with it, I guess, the appropriate scope of her authority. It'll go through the main courts. And then ultimately, you know, that could be consolidated before the Supreme Court. But I want to get your take on it. I'll just share this one, Ted. The reason that we're here, though, in the first place, is we should never be here in the first place. The only people who are politicizing this issue, frankly, in my view, is today's modern-day Republican Party, the modern Republican Party, the MAGA,

Starting point is 00:57:19 because you have great former Republicans, or now I guess called rhinos and constitutional scholars like Judge Ludwig and others, you know, strict textualists and people who are, you know, formerly with the federalist society, you're still considering themself federalist side of members, who look at and say, here's just what it says. The problem is we've had in Donald Trump an entire political party and I think the the framers of this specific amendment and the kind of reconstruction error did not contemplate that you could have an insurrection, we could all see an insurrection take place, yet the major political parties will rally around the insurrection and the insurrectionist and support it as a legitimate political peaceful patriotic event that's taking place. So therefore if you oppose that

Starting point is 00:58:11 that somehow, you know, you're politicizing it and you are you know, you know, you are over reaching your kind of, you know, jurisdiction if you're a secretary of state doing this, but I think Popak, I mean, common sense informs. And if strict textualism, if our Constitution matters, you know, and the other provisions matter, I mean, I don't know, it says what it says. That's it. It says what it says. And Donald Trump engaged in an insurrection, and it shouldn't be hard.

Starting point is 00:58:41 But you do have, and I think this is the kind of the status state of our country right now. The Republican Party, MAGA, which is it is now, because I think the Republican Party pretty much has done, supports this as, you know, their day, that's their rallying call. And so when you call it what it is, it's like, oh, you are attacking us. No, I mean, just you try to overthrow our government. I mean, you try to overthrow our government. I mean, you try to overthrow our democracy.

Starting point is 00:59:06 Like, we all, we all saw what went down. Hope I maybe take us through some of these just qualifications. Yeah. Colorado, four to three, of course, finding under the uniqueness of Colorado law. Actually, let me take the plane up 5,000 feet, look down from it.

Starting point is 00:59:24 In our system of federalism, states, individual states, and their individual statutes, and their individual secretary of states have a role to play in who becomes our president. That might seem odd to people, especially from those outside of the United States, but that's one of the bargains that we have baked into federalism. There's federal government and federal practice and federal law and federal agencies, and then there's state by state. And one of the ways that we were able to put together this great United States is because of the compromise between state, large states and small states, and how to put fit them all together and have any kind of power and, you know,

Starting point is 01:00:00 electoral college versus popular vote and that kind of fight. But every state, individually, based on its own unique statutes, determines how somebody's going to vote, when they're going to vote, how they're going to vote, what kind of ballot they're going to use, who's going to certify that, how that person got appointed or elected to the position, absentee ballots, mail-in ballots, using boxes, no boxes, early voting, no early voting. That's why if you're in one state, and I'm in another bend, I probably use a different ballot than you. I voted at a different time than you.

Starting point is 01:00:33 I may have had the benefit of early voting. You might have had a longer early voting period. I might have been able to drop my ballot off at a box you may not have been able to. And some people outside the country is like, what are you talking about? Why is it just like an ATM machine? Everybody shows up at nine to whatever over a week period in votes. Yeah, that would be if you want to not suppress the vote. And you wanted everyone in your country to vote. That's why in other European countries, you see voter turn out

Starting point is 01:00:59 at like 70% because they make it really easy. And they don't put barriers to entry and barriers devoted. So you have that system. And some, most states, the Secretary of State is the one through the statutes that it's empowered to do many, many of the things and then it evolves down to clerks and of the various counties or other municipal things. That's that. Then you got Congress and the Constitution that federally sets certain requirements and statutory provisions related to the presidential election. But everything

Starting point is 01:01:35 else, time, place, manner, voting, ballot, that's all state stuff. And we've had a long line of Supreme Court precedent that says exactly that, including some that has been cited by and used by people that are currently on the US Supreme Court like Neil Gorsuch, who when he sat on the 10th Circuit had a very similar case about presidential candidate being barred from a ballot and it's called the Hassan case. And Gorsuch before he was a Supreme Court just as it hands off. It's a state by state issue. It's a the Hassan case and and Gorsuch before he was a Supreme Court Justice that hands off It's a state-by-state issue. It's a state power issue. It's not a federal issue. They can decide Now they're going to have to decide this issue at the Supreme Court level through the Colorado case

Starting point is 01:02:16 Maybe the main case they're going to have to The Supreme Court's going to have to make a decision as to whether this waterfall of events that happens across America in the various 50 states where maybe 50 different outcomes because of the unique state provisions that are being applied to federal, to presidential qualifications for the ballot, right? Come to a head with somebody like Donald Trump that wants a federal decision that's uniform everywhere,

Starting point is 01:02:42 not happening about his entitlement to be on the ballot. And then you've got, well, if Congress and our very Constitution is based on this division of labor, if you will, between the state and federal government, then when the 14th Amendment and Section 3 was adopted during Reconstruction period in American history, didn't they anticipate, in the answer, I think is yes, that the states through their secretaries of states and otherwise would implement the 14th Amendment and Article 3? Otherwise, how would it be? I think we all agree on both sides of the aisle that it's not language that's sitting on

Starting point is 01:03:21 the Constitution for which we should just ignore it, and it's just surplacage. It's just extra words that just have, they, they, they, they need it to fill in, you know, they were printing it in a certain way. And they needed to fill in a section. Well, let's just make up a 14, three. No, you have to be able to effectuate that language. And the battle for the US Supreme Court, whether you call it the Colorado case or the main case, is going to be, how do you effectuate the 14th Amendment, Section 3, the disqualification clause? Who does it? If it's supposed to be the states, which, as you can see for my presentation, I believe it is, okay? If it's supposed to be the states, then courts would seem to be the natural place to adjudicate whether someone engaged an insurrection or a rebellion against the Constitution, because how else do you determine that if it's not the

Starting point is 01:04:09 court system? If it's not the court system, and it's a political question, because it sounds like politics, or people go, it's political question doctrine, can't take it away from the courts, take away from the secretary of state, it goes to Congress. Well, where does it say that in the 14th Amendment? It doesn't say that. Where does it say that in the 14th Amendment? Doesn't say that. Doesn't say that in the legislative history. Doesn't say that in the text. It's very easy for them to have used a quill pen

Starting point is 01:04:31 and written in the 14th Amendment. And this issue of engagement shall be determined through a trial of his peers, or through Congress through another proceeding. Doesn't say that. They figured out they thought the framers of that provision that we were smart enough in 2023 to know what they meant about how to determine who engaged. They put, they gave us the language and then they figured out,

Starting point is 01:04:56 you guys will figure it out. Don't worry, but it's, but it's not what Donald, when you see it, you know, when you see one, You're an Engager. Doesn't say convict. Doesn't say convicted. There was no way, and there's nothing in the legislative history to the contrary that they wanted America to go through trials, basically military trials of Confederate leaders,

Starting point is 01:05:16 like Jefferson Davis, to have him tried first, branded an insurrectionist or rebellious person before determining whether he could stand for office. No, it was a loyalty test. They had many loyalty tests. Now, I've seen one argument about, well, it doesn't apply to the president. We've talked about this at length. But this argument is it doesn't apply to the president because the title, Civil Office, Civil or Military Office under the United States has historically meant civil servants and like the postmaster and not the president. If they wanted to say the

Starting point is 01:05:53 president, why did they use a big P with their quill pen and write in president? Because the legislative history says they put the catch all in any office under the United States civil or military and that captures the presidency So that's gonna be the fight. It's gonna be this federalism fight at the Supreme Court level about the role of the states In doing their job about elections and that's what Shana Shana Abelos said the very brave Mean Secretary of State. She's the first one to have ruled that he's off the ballot. Colorado Supreme Court said that the Colorado, the Colorado secretary of state could get

Starting point is 01:06:34 around to taking him off the ballot, but that got stayed pending the Supreme Court decision. Shana's taken him off. He is off and she's not staying it. She said, I had no choice. I was appointed by the main legislative House, the House and Senate, to be the Secretary of State of Maine. It is my job under the statutes of Maine to look at whether somebody has falsely and fraudulently petitioned to be on the ballot. And I find that Donald Trump committed falsehoods, right? He made false statements saying he was qualified

Starting point is 01:07:08 when he was not. Now, what was the basis for that? It was primarily the Jan 6 report. You and I, I always look for my copy. We talk a lot about the Jan 6 report. That was an exhibit to the petition. And then lastly, I'll leave you on this, Ben, as the record goes up as it is to the

Starting point is 01:07:25 US Supreme Court. Donald Trump barely participated in the main proceeding. He filed two briefs, one about Colorado and how it impacts Maine, and one just a general opposition brief saying, no, no, speech, I have free speech. First of memory, you can't take me off the ballot. You don't have the power to do that and everything else. And the oath of office is wrong. And I'm not covered under the 14th Amendment, all those arguments. That's it. He did not put on a witness, an expert witness, evidence, testimony, nothing. The other side, expert analysis, testimony, similar overlapping witnesses in the Colorado

Starting point is 01:08:02 case on the 14th Amendment. It's basis. It's background legislative history to guide the Michigan, sorry, the main secretary of state in her decision making. And then lastly, this, they're always, she's a partisan hack. She's a Joe Biden puppet. I don't know about all that. She spent her entire life in public service. She grew up, I did this on a hot day.

Starting point is 01:08:24 She grew up in a house that didn't have running water or electricity until the fifth grade. Father's a carpenter, mother was a nurse. Okay. She's self-made in every material way, but has devoted her entire life to public service, starting in the Peace Corps, AmeriCorps, ACLU, and the Holocaust Museum director in Maine. And she was in the house as a member of the House of Maine until she was appointed and selected by her peers to be the Secretary of State. Donald Trump just doesn't like that we have a state-by-state process to guide our election processes.

Starting point is 01:09:02 That's where it sits. And that is inherently political because people either run for office or they're running on a ticket. And that's just the way it is. And you don't get to throw over that entire constitutional framework because you don't like the results. The question is now been with Colorado, with Maine, with Michigan. Obviously, the Supreme Court is going to have to weigh in.

Starting point is 01:09:22 Are they going to rule? I want to get it from you. Are they going to rule based on the text of the Constitution and its history? At the 14th Amendment applies to Donald Trump, and it is a state-by-state decision based on how we determine who goes on the ballot, or are they going to say the states have no role in this, and it goes over to Congress as some sort of political question, or there has to be a conviction of Donald Trump for insurrection or rebellion in order to keep him off the ballot. What do you think?

Starting point is 01:09:50 Well, if there are states right, strict textualists, you'd expect the decision to be very easy and to allow the states to go through this process. I think though the Supreme Court, given its current composition, will probably find some way to stay the enforcement of these decisions post election. I don't know if they will cite the Purcell Principle or something and saying, hey, we're too close right now when we want to have a longer briefing so you stay on in 2024 and then they'll try to punt the issue. I have a very low bar for what I ultimately think. The Supreme Court will do on an issue like this which shouldn't be novel but is novel, which I have a different view of what the Supreme Court will ultimately do when it hears the issue of absolute presidential immunity because the Supreme Court has a body of case law there and Donald Trump's arguments cut directly against

Starting point is 01:10:52 what the Supreme Court's view is of article two. And because there's also a self-preservation aspect to Donald Trump's absolute presidential immunity argument, which if you take it to its logical conclusion, Trump can take away the jobs of Supreme Court justices and be absolutely immune from that as well. I think this Supreme Court justices kick in on their selfish gear on the absolute presidential immunity argument. Unfortunately, I think they tried to find some way to procedurally not get at the issue here in Colorado as well as as well as Maine. But we'll see. I'm interested. I think he stays on the ballot. I think you're right. The self-preservation, I thought you were going

Starting point is 01:11:41 to talk about was John Roberts trying to preserve the Supreme Court and it's legitimacy because all of these things put them out. No, I went out the door and down. There is. But I think they keep them on the ballot. And again, politically, I'm not sure that's a bad thing. If Joe Biden's going to win, I want him to win in 50 states, which he's going to, he's not going to win all 50 states, but I want him to win with it with him on the ballot. And I don't want to make Donald Trump a bigger martyr than he's already,

Starting point is 01:12:06 and I'm grifter than he already is. And if he gets permanently banned from two, and he's down to 48 states, it'll just activate his base in a way that I don't really know what the outcome is going to be. I don't need them more motivated to vote for him and or to give him more money than they already are. So there is a flip side to this from,

Starting point is 01:12:24 and that's just a pure selfish political analysis having nothing to do with the law. You know, but I don't I'll tell you I the part where I disagree with you about the the activating his base part and I saw the New York Times do an article about that too and and frankly I'm not I'm not criticizing your logic there though though, Popok in saying it. But to me, I just think we shouldn't give a crap about what people who say the most hateful and disgusting things and watch the insurrection and think it's a great thing and want to overthrow our democracy. If they want to be active and engaged, the time needs to be spent just calling out how horrific the

Starting point is 01:13:06 underlying conduct is and that's what we're going to be spending our time on. Just one point to make about the decision reached by the Secretary of State in Maine, she wrote, given the compressed timeframe, the novel constitutional questions involved, the importance of this case and the impending ballot preparation deadlines, I will suspend the effect of my decision until the Superior Court rules on any appeal or the time to appeal under the applicable section. The main Superior Court, yeah. Yeah, the main Superior Court, correct.

Starting point is 01:13:40 So there's the enforcement of that's temporarily, I would view that as being temporarily state, there's five days from the date of that order to appeal, basically, the decision and go through the this superior court process. Finally, let's just talk briefly about Judge Eileen and Canon. She's yet to issue on a very, it's a pretty simple case, right? Popoq? I mean, did Donald Trump will fully take national defense information? Did he take it? Was it national defense information? Did he have the intent?

Starting point is 01:14:11 That's it. It's a very simple, like you don't get much more of a simple case than that. But where you have Judge Eileen Cannon, all of the delay tactics that have been shut down in other courts, Judge Eileen Cannon embraces that and has created such a mess of a docket. I'm not even sure that she fully understands her own dates and deadlines because they just make no sense. Like you don't schedule a SEPA section 5 hearing in a case that involves SEPA. Like that's the main hearing. So you're setting a trial setting conference on MarchA, like that's the main hearing.

Starting point is 01:14:45 So you're setting a trial setting conference on March 1, which she's has set. Well, should the trial set for May 20th of 2024? There's a status conference on March 1 to evaluate where everyone's going to be at that time. But you haven't set the SEPA deadline. So there's no way really the May 20th, 2024 date can go. If you have a normal briefing schedule for SEPA deadline. So there's no way really the May 20th, 2024 date can go if you have a normal briefing schedule for SEPA. And so there's a lot that doesn't make sense. She also

Starting point is 01:15:15 has the parties submitting the jury questionnaires two days before that March 1, 2024 status conference hearing, which then if you have disputes over the questionnaire which they will, and then it goes into kind of the canon void if you will, I mean, where are you, you know, you're gonna be arguing the questionnaire through May based on the way canon handles her docket. You know, she hasn't issued an order yet. I mean, think about that. She hasn't issued an appealable order yet.

Starting point is 01:15:47 She's just been issuing these paperless scheduling orders, just moving and shuffling deadlines. So there's been nothing that Jack Smith can actually like appeal. There's no appealable order. So, but I guess Donald Trump wants to change that. I mean, said Donald Trump is asking Judge Eileen Cannon to allow Trump's attorneys to be present at the CPCaction for hearing, which is a private hearing that always takes place

Starting point is 01:16:16 between a federal judge and the government. It's ex-part day in camera, a CPCaction for hearings, where the judge looks at very sensitive national intelligence and then it's decided whether or not this information should be turned over to the defendant under the CEPA protective order, which is a heightened protective order intersection 3 of CEPA or whether it's so sensitive it could be withheld. And then like some sort of summary is put in its place or some replacement of the document. So the defendant's not deprived of their six amendment rights to have all the evidence, get all the evidence, have their due process rights met, and then

Starting point is 01:16:57 have a public trial. But it also protects our national defense information. And you don't want defendants to criminal defendants and classified information case to try to blackmail the government and say that if you don't dismiss the case against me, I know all of these national secrets and I'm going public with them at my time of trial. But Donald Trump saying, yeah, I want my lawyers to be present at that seep a section for hearing, which to me is just over, it's just strategically, strategically the dumbest thing and always count on Trump's lawyers to do that

Starting point is 01:17:31 because I'm being somewhat hyperbolic here, you do have your lawyer at the hearing, you have Judge Cannon there, and I'm saying that sarcastically, but you know, you get what I mean. You have Judge Eileen Cannon and Jack Smith at a hearing where Jack Smith saying that there are certain national defense information that the United States government wants to withhold from Donald Trump and Judge Cannon would be. Now, if Judge Cannon rules that something should go to Trump and Jack Smith disagrees, then Jack Smith gets an immediate appeal to the 11th Circuit under CEPA's,

Starting point is 01:18:16 and that is one of the areas by statute, as we were talking earlier, where it would be viewed as a collateral order, and you can unseep of these orders can be immediately appealable to the 11th Circuit, earlier where it would be viewed as a collateral order and you could unseep of these orders can be immediately appealable to the 11th Circuit, which is the circuit that supervises Judge Cannon. But Trump wants to go a step further and have his lawyers be there at that meeting and

Starting point is 01:18:36 then Jackson it's like that make that would defeat the whole purpose of the meeting being between the government and the judge if you put your lawyer at that meeting. This is national defense information that we're trying to withhold. That's the purpose of CPSection 4. That's why Congress passed this CPS statute. But we're going to see more conduct like this by Donald Trump also. He recently filed another brief about not wanting to disclose his advice of counsel defense early, the same way that Judge Tonya Chutkin ordered that Donald Trump provide his advice of counsel

Starting point is 01:19:16 defense. A little bit before the trial, just because when you assert advice of counsel, it becomes a waiver of the attorney client privilege. So that's why he's dead on that argument. He's got an unabundant front of Canon, an unabundant Canon though. Maybe, but just to remind everybody, just I'll pick up there and then I'll go backwards. Advice of counsel is Evan Corcoran, who's already cooperated with the government, had his attorney client privilege stripped away from him or Donald Trump has,

Starting point is 01:19:45 had a testify to a grand jury in Mar-a-Lago, and otherwise had a turnover 50 pages of single space handwritten notes about his conversations with Donald Trump. Christina Bob, same Jennifer little, probably, these are the lawyers that he relied on, and all their testimony is, we told him, we told him that he needed to turn this over to the National Archives. Certainly, we told him after the subpoena was issued and before the search warrant was

Starting point is 01:20:10 issued, I don't think he has a legitimate, he could ever have a legitimate reasonable reliance on defense council, especially ones that are in the crosshairs themselves. On your other issues, I still take away the remarkable observation that in all of the cases in DC and in Florida, you know, it's not being argued by Donald Trump, either in a filing or otherwise, though we don't need CEPA procedures. We don't need a CEPA room or facility to be built for me because I already, with the magic wand, declassified all of those documents. Why are we even talking about CEPA?

Starting point is 01:20:44 Nobody believes that. Even Aileen Cannon doesn't believe that. That's why she's at least going through the motions of having a SEPA procedure. Certainly Judge Chuck in the Department of Justice Special Counsel, so office doesn't believe that. And that's why they're being,

Starting point is 01:20:58 that's why they've identified the District of Columbia, classified information, procedures act type material that they're planning to use against him there, just as they're using it here So let's put a put away the charade for all of Donald Trump's followers that he that he Declassified everything on the way out of the White House. This is why we're even talking about SEPA This is why my my podcast partner has become a SEPA expert in front of my very eyes

Starting point is 01:21:22 It's because because these are real issues that have to be determined. And I got another news flash for Donald Trump's lawyers if they think because of all of these little battles that they're winning, or they think they're winning with Aline Cannon, if they're wrong that she's going to delay the trial. And she says, well, gentlemen, we've got it all done. I'm a little bit late. We're going to do some things in March that I should have probably done about six months ago. But it's all done now. And so trial starts on May, the whatever.

Starting point is 01:21:53 They're not going to be able to raise their hands, say, your owner, we really thought we had this in the bag. And we haven't been preparing, even though it's four months, five months away. Again, back to my initial theories, positive, they are outmatched, out-resourced, outthought, and out-prepared. And they're not going to be able to throw themselves in the mercy of the court. Certainly, not Judge Chutkin. And I'm not sure he would make that argument in good faith even to Canada, say, well, we really thought we were going to go to trial and may your honor.

Starting point is 01:22:23 So, you know, we haven't been doing anything. They have, they have, they better be it, but we know they're not working night and day for both those trials, let alone the trial in January for E. Jean Carroll again, because they need to be ready for trial, having been given terabytes of information, documents, discovery, witness statements and the like and videos. They need to be ready. Does anybody on this podcast on either side of this camera believe that Donald Trump's lawyers are where they should be in preparation for trials about a Donald Trump's liberty at the beginning of January? No, they're not ready.

Starting point is 01:23:04 You know, so we're going to keep you posted. What's going on with Judge Cannon? What's going on in DC? Just if you're kind of all keeping track, you got E. Jean Carroll, civil trial, January 16, 2024. Right now, you have the Manhattan district attorney criminal trial, March 25, 2024. Right now, you still have the Washington, DC federal criminal trial March 25th, 2024. Right now you still have the Washington DC Federal criminal trial before Judge Tanya Chuckum March 4th, 2024, although we think that will probably get delayed by 45 to 60 days. We'll see how that plays out with them in that district attorney case. Then you've got the Florida Southern District case, Judge Eileen Cannon scheduled for May 20th of 2024. Those are some of the immediate dates and deadlines also to put on your radar closing arguments

Starting point is 01:23:55 in the New York Attorney General civil fraud case against Donald Trump will take place in kind of earlyishh to mid January. We should get a final ruling by Judge Arthur and Goron. I would predict before February 1st. So right around the time Donald Trump's going to get hit with a massive verdict in the E. Jean Carroll defamation case. We will also be getting a verdict that the Pope and I think will be between $500 million to a billion dollars by Judge and Goron in New York. So those are my closing words to wish you all a happy new year.

Starting point is 01:24:33 Popeok, your closing words to the legal aafers out there. Can't I cannot express in words how relieved I am the 2023 is over with the work that we've done, but how excited I am to be with you and your brothers and Karen to cover what's going to happen for democracy and justice in 2024. I can't wait to get started. Thank you everybody so much. Happy New Year's. We're so grateful for all of you team here at the Midas Touch Network at Legal AF, all of our hosts, all of our staff, Salty Jeremy, everybody, great, great work, happy new year, happy new year to all the Midas Mighty. Thank you so much and we will see you in 2024. We're in this together. Shout out to

Starting point is 01:25:23 the Midas Mike.

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