Legal AF by MeidasTouch - Trump Loses Again, Musk Sued, and Courts Respond to Gun Control

Episode Date: May 29, 2022

Anchored by MT founder and civil rights lawyer, Ben Meiselas and national trial lawyer and strategist, Michael Popok, the top-rated news analysis podcast LegalAF x MeidasTouch is back for another hard-hitting look in “real time” at this week’s most consequential developments at the intersection of law and politics. This week, Ben and Popok discuss and analyze: 1. Trump losing twice this week, with a New York Federal judge dismissing his case to stop the NYAG civil fraud investigation against him and the Trump Organization, and then a NY State appellate court ruling that Trump and his children must sit for the NYAG’s depositions. 2. Following the Buffalo and Robb Elementary mass murders, a New York Federal judge dismisses gun manufacturer, distributor, and retailers suit seeking to find that a 2020 NY state law imposing civil liability on them if they do not take reasonable steps to prevent the improper use of guns in New York. 3. Twitter shareholders filing a massive class action against Elon Musk in a Federal court in the Northern District of California for purported fraudulent stock manipulation and insider trading. 4. The Fourth Circuit Federal appellate court issuing the first ruling of its kind that the Amnesty Act of 1872 does not allow future “insurrectionists” and rebels to run for office in violation of the 14th Amendment. Remember to subscribe to ALL the Meidas Media Podcasts: MeidasTouch: https://pod.link/1510240831 Legal AF: https://pod.link/1580828595 The PoliticsGirl Podcast: https://pod.link/1595408601 The Influence Continuum: https://pod.link/1603773245 Kremlin File: https://pod.link/1575837599 Mea Culpa with Michael Cohen: https://pod.link/1530639447 The Weekend Show: https://pod.link/1612691018 The Tony Michaels Podcast: https://pod.link/1561049560 Zoomed In: https://pod.link/1580828633 Learn more about your ad choices. Visit megaphone.fm/adchoices

A court of appeals rules that insurrectionists can be disqualified from political office, overturning the district courts ruling in that Madison-Cawthorn federal case. As it relates to Madison, Cawthorn probably doesn't matter anymore because he is a loser. Elon Musk is sued by Twitter shareholders for tanking the Twitter stock price out in the northern district of California. We'll break down that lawsuit for you. A New York federal court upholds legislation, a New York state legislation that is making gun manufacturers liable for the unlawful acts used with their weapons, but this is at the same time that the Supreme

Court is poised to expand its understanding of the Second Amendment to areas where the founders clearly didn't intend the Second Amendment to go, essentially saying everybody everywhere free of regulation should have guns and this comes on the heels of the you've all the massacre and Trump is ordered to testify for deposition in the New York case out of the New York State Court of Appeals ruling and a federal court in New York has dismissed the Trump lawsuit against Latissia James. This is legal AF Ben Myceles and Michael Popak joining you on Memorial Day weekend. Want to say to all the legal aifers have a great Memorial Day weekend.

We hope that you are spending some time during these difficult times with family or just having a restful and relaxation day with friends, even with yourself, and having a weekend that you can just try to listen to some legal AF catch up on some podcasts, but also try to get away from a lot of the noise, Michael Pope, how are you doing? I'm doing great. It's herbulent week. I'm glad I'm with you and a shout out to the armed forces and people who have served because that's what Memorial Day is also all about. My dad was our me song. It's a holiday that's near and dear to me as well. But we got a lot to talk about, so let's jump right in. Yes, let's talk about this case with Rose out of a group of voters that sued to take

Madison, Cawthorn off the ballot. Madison, Cawthorn took Madison, Cawthorn off the ballot. So he assisted more than the voters did in that legislation through all of the conduct that he had engaged in. And to me, while the Republicans really took aim at him for a lot of the kind of private conduct that he engaged in, we should all who he's reflect that Madison Quaughthorn publicly was a horrible human being who did such disastrous things to this country and represents all of the hate, evilness lies that is embodied in GQP ideology. So that's why Madison Quaughthorn, and my mind see you later,

and that's really what I care about. But as we recall, the group of voters challenged Madison Quathorn, the federal court in North Carolina, basically ruled that this 1872 legislation that gave immunity to insurrectionists in the Civil War that gave immunity to Confederates, somehow applied to all future insurrectionists and all future insurrectionists,

which really made no sense to you and me, Popoq, we talk to our legal aafers, we said that this case is being appealed to the US fourth circuit court of appeals and also recall the federal court in Georgia on the Marjorie Taylor Green case, the district court, remember these cases start at the district court, that's like the trial court, the lower court, they get appealed, they go to the court of appeals, but the federal court. Remember these cases start at the district court. That's like the trial court, the lower court.

They get appealed. They go to the court of appeals, but the federal court in Georgia on the same set of facts that whoa, whoa, what are you talking about? Why would this 1872 law apply to January 6th, 2021? And in that case, Marjorie Telegram was challenged. She defeated that challenge. She actually won her primary recently and Marjorie Telegram continues to go on and do the horrible and hateful things. But nonetheless, there was a challenge that took place that everyone got to see Marjorie Telegram take the stand and lie about it. But anyway, the US Fourth Circuit Court of Appeals, which is the Court of Appeals for Maryland, Virginia, West Virginia, North Carolina, and South Carolina. They basically ruled, what are you talking about lower court? This 1872 law does not apply to Madison.

Cothorn, it applies to insurrectionists, 1872. And before, I think it was the right ruling, Popeye. What do you think? That was a great ruling. And let's talk about what this means going forward. Madison Kothorn, having seen the Georgia trial judge, Judge Tottenberg in the Marjorie Taylor Green case, find that the 1872 insurrection act around the St. Act did not apply was worried having now lost that he was going to set, if not precedent, presidential value at a high

appellate court level, because Judge Tottenberg was at the trial court level. This is the opinion of the first federal appellate court. We've got 11th, we've got 11 circuits. This is now the fourth circuit, as you said, Ben. And it covers, technically covers, you know, Maryland, Virginia, West Virginia, North Carolina, and South Carolina. But it is the only a federal appellate court that has ruled that the Amnesty Act of 1872 does not cover future insurrectionists

and that they can that provision of 14th Amendment Section 3, which you and I colloquially refer to as the insurrection clause, can be applied to bar future people from the ballot. They don't get the benefit of the Amnesty Act of 1872, and you have a Biden appointee. This is why elections matter to the fourth judge Toby Hattens, who issued the majority decision, the ruling. It was really 30, although the two other judges one being a Trump appointee and one being an Obama appointee wrote their own separate concurrences, but they all agreed in the decision. The decision will now return to Judge Myers in North Carolina, will now have to apply the 14th Amendment insurrection clause to these

issues. And so, Cofftern's lawyer said, well, why are we even doing this? It's moot because we lost in the primary. And the judge said, well, people can still vote and the election process is still going on. So, this is going to continue. So, now, Judge Myers is going to have to apply the Constitution to decide whether Madison Claude Thorn, we should even even have been in this issue.

And a reminder to our legal aethers, this is interesting. Caught Thorn brought the case. This was not a case brought by, you know, North Carolina. Caught Thorn brought his case. Marjorie Taylor Green brought her case because they thought federal court would be a better forum for them on these issues and both of them so far have lost. Dan, let me just talk briefly about presidential versus persuasive. It only applies that ruling that just came down on the fourth in the states that I mentioned. However, other states and other trial lawyers can now point to the fourth circuit and to judge Tottenberg's decision with the lower court as persuasive analysis, not presidential,

it's not presidential unless you're in one of those five states, but it is persuasive. And right now it is the only law of a federal appellate court unless there is a conflicting, a conflicting challenge. For instance, as you and I have spoken about, two Arizona representatives, one being, I think, Mo Brooks have similarly been challenged off the ballot. So there could be another circuit that makes it different, really. But this is exactly right. It's exactly what you and I said would happen.

And now it establishes the beginning of a body of precedent to ultimately be decided by the US Supreme Court. The reason this started in federal court for everybody wondering why wasn't this filed in state court? There's something in the constitution called the supremacy clause. And if there is federal law and if federal government had the authority to pass the law,

if it was something within the delegated powers of Congress, then that law would be supreme over, you know, an individualized state voter law. So if there was something in the Constitution, or if there was this 1872 federal law, and there was a contradiction and a conflict between federal and state law, the federal law would be the law of the land. So what these politicians did is they went into federal court and set enforce our federal rights under the supremacy clause. Why I mentioned that there also is we're going to be talking about the supremacy clause today in two other contexts.

We're going to be talking about the supremacy clause with respect to gun control and Congress past. Many years ago, a broad and sweeping bill that basically gave immunity to gun control and Congress passed many years ago a broad and sweeping bill that basically gave immunity to gun manufacturers when third parties would use their weapons in different settings to kill people and give gun manufacturers the sweeping immunity. There are some exceptions and we'll talk about those exceptions in the New York federal case. And then when we talk about Trump case, the Trump case where Trump sued Latissia James,

he was also saying basically his civil rights were being violated. His federal constitutional rights were being violated by Latissia James and asking the federal court stop what the state actor is doing. Stop what the state AG is doing. And in that case, the federal court said, what are you talking about? State AGs should be left alone. State AGs run state investigations. It's not the place under a case called the Younger. It's not the place for the federal government

to intervene. I think it's a 1971 case younger, without the place for this, for a federal government to intervene in state criminal investigations. But we'll get to that. But that's the dynamic there. And Popak, this was the right ruling here. I just want to point to one line by this

judge. I always love when judge give like very pitty remarks. I know the line. It's a great line. And he goes, whether legislation from 1872 lifted a constitutional disqualification for all futures or insurrections no matter their conduct to ask this question is nearly to answer it because it is the one of the silliest and stupidest questions in the world that in 1872 case and in 1872 law rather would impact not a case a law would impact future insurrectionists, no matter their conduct in the future. But nonetheless, a federal court appointed, you know, had ruled and had to be overturned by a court of appeals here. Let's get into this Twitter shareholder lawsuit by Elon Musk.

This case was brought by a private law firm on behalf of shareholders. So it's a law firm in California, a law firm that I actually know about there, a good firm, Kochet, Petri and McCarthy. I knew McCarthy because he was previously the president of the consumer attorneys of California. I remember attending when he actually became the president about a decade ago, but they do really, really good work there. And basically the case is simple. Elon Musk, one failed to disclose his ownership when he had acquired more than 5%. There's something called Schedule 13G. The Securities and Exchange Commission Schedule 13G.

It's a form that basically requires a party who owns more than 5% of a company's total stock to fill out one, fill out the form and two, kind of in a brief way describe perhaps what their intentions are and what they plan to do. And you want to do that because it sends a signal to the market by not filing this timely, by not filing this on time. Elon Musk was able to make an additional $150 million, perhaps slightly more because he was able to acquire it. And once people found out about it, the stock shot up, but he should have disclosed it right away. So people would find out

about it right away. And the other part of it is just that he's been providing false and misleading statements to the public to try to suppress the Twitter stock. A lot of his plan to buy Twitter was based on borrowing against his holdings in Tesla. Tesla stock has dropped nearly 30%, 35% since the Twitter deal was announced. And people say, Musk is trying to renegotiate the deal with Twitter. When Musk announced the deal with Twitter, Twitter stock shot up to close to where Elon Musk would be buying it at, which usually happens. But since Elon Musk tweeted all of these things,

Twitter stock has basically nose dive trading at about $38 a share and losing significant significant, you know, I think it was $8 billion in value since Elon Musk began tweeting these things. And what did he tweet? He tweeted, this is a number of things, but the main tweet that's in focus here is Elon Musk says Twitter deal temporarily unhauled pending details supporting calculation that spam fake accounts do indeed represent less than 5% of users. And here's Michael Popak where I think these lawyers are just so, so smart. And there are some

ways that these things are framed and complaints that I just go out. That's a really great point. So obviously we think that this is a shitty tweet and it's misleading. But like, look at how the lawyers frame this tweet and describe it as why it's false and misleading. And it's so true when you just break it down. It goes, Musk, this is paragraph 14 of the complaint filed by the Twitter shareholders. Musk's tweet and public statement was misleading and constituted an effort to manipulate the market for Twitter shares as he knew all about these fake accounts. The statement was false because the buyout was not,

in fact, temporarily unhulled. There is nothing in the buyout contract that allows Musk to put the deal, quote, temporarily unhulled. Moreover, Musk's statement was misleading because it stated our applied that Musk's obligation to consummate the buyout was conditioned on his satisfaction with due diligence to determine whether spam fake accounts do indeed represent less than 5% of the users. This was false because Musk had specifically waved detailed due diligence as a contention precedent to his obligation under the buyout contract. Thus, Musk had and

has no right to cancel the buyout based on any results from due diligence concerning the number of spam bank accounts at Twitter. Must then continue issuing false and disparaging tweets about Twitter in an effort to drive at stock price down further. I mean brilliantly stated pithy. There's no here's the thing out there. People think that like lawyers write crazy words and all this here too for like no like that right there nailed it nailed it. You don't leave me much but let me see what I can contribute having spent time on Wall Street handling cases like this Firstly, I was impressed that they decided to file the case in California and Twitter is incorporated in California Is that why we're under California law correct?

Well, out of these cases happened in Delaware where I applied my trade for a while Because Delaware usually has the monopoly on Companies incorporating because of the court system down there, but because the court system in Delaware is a business. Yeah, the principal place in business is California 1355 Market Street, sweet 19. Right. Right.

A lot of companies are looking to avoid Delaware because it's getting a little bit less friendly to them in class action type lawsuits. And what class action firms like the ones that you described, will do so potently is they will analyze the stock price and track it day by day, an hour by hour or minute by minute, against public statements that are made or public statements that are failed to be made in a timely fashion and show how the average investor is crushed because of the gyrations and the stock price.

It doesn't have to be wild gyrations. I've seen cases I've been involved with cases where the stock delta, the difference in the stock price, is $0.10, $0.5, $0.8. But remember, for every five-cent or eight-cent move, there is a shareholder, whether it be mom and pop, whether it be a pension fund, whether it be a teacher, or an average person of any type, who's getting hurt by the drop in the stock price, if the market is not efficient. What does that mean? That means that information that the SEC, the Securities and Exchange Commission and state regulators, what we call blue sky regulators, which are

the state equivalents of the SEC, require companies, targets, investors, and others market participants to disclose so that the market has efficient information so that people can trade. That's why there's laws against insider trading and there's an insider trading allegation in this complaint. That's why there's laws against you not disclosing timely to the market when you take a certain position percentage-wise in the company. And in this case, for instance, Elon Musk was more than two weeks late in disclosing when he hit the threshold of over 5%. Why does it have to be timely?

Because the rest of the market is entitled to that information so that they can make their investment decision. And it's not being done in an opaque or closed door smokefilled room way by the big whales, the Elon Musk's, the pension funds, the others who can manipulate the market because people buy and sell based on their comments. When Elon Musk announced that he was going to buy Twitter, it was a four-cent, four-word sentence in a tweet. I have made an offer offer literally attached to whatever his offer was. And the this case, when he loses and he will, he will lose or he will settle this case. And I want to talk about that. Class action cases. Once there is a certification of the class,

and the class year is all investors who bought or sold based on statements that were either false or failed to be made by Musk at the appropriate time and were hurt by a price drop as a result. Twitter stock having dropped 12% already since this. If he makes a false statement, I can walk from the deal or I have due diligence rights about how many bots and fake accounts there are when he does not, where he fails to disclose a timely acquisition. Those are all price points where somebody out there, not name Elon Musk, is getting hurt in the marketplace.

The SEC is also opened in inquiry, for instance, as to why he was late by two weeks. It was able to buy shares privately away from the public while the public was not aware. So he's got an SEC problem and now he's got a class problem. Once this class of investors, which is everybody that bought or sold around these statements or emissions, is certified and it's going to be certified by this judge, probably in the next three, four, six months, must better settle because at that rate, if he doesn't settle, attorney fees are running against him, major punitive damages and other things are running against him. Most of these class action settle, sometime around the class certification stage. So we're

going to keep a close eye on this. So they have a very, very good primaface case already, all outlined in there, whatever, 100 page complaint. I like where they pinpoint price drops to comments and they show places in the contract, which is like a very bare bones contract. As you said, he is buying or offering to buy a Twitter effectively as is. Like, you know, you walk into a pawn shop, you want to buy something, hey, I want to buy that toaster. Hey, as is no warranties. Okay, I hope it works. I'll go home and plug it in.

That's his, that's his offer to buy Twitter. It was very limited, as you said, due diligence. So to say, aha, I'm surprised there are bots and fake accounts, which by the way, Twitter has disclosed in its own filings. Remember, Twitter is a public company. Twitter has its own obligations. And if you look at all of their securities filings, they have already acknowledged that some of the accounts that they have are fake, that they're combating them, that they're trying

to shut them down. So he can't act like, you know, that scene in Casablanca where the inspector is surprised that there's gambling going on in the casino. He can't, oh, there's bots and I get to walk and avoid my billion dollars and drive down the price, because even though the Tesla stock is getting slaughtered by the tech sell-off on Wall Street, but also because of the eccentricities of Elon Musk, because to invest in Tesla is to invest in sort of Musk's shenanigans. So that stock is taken ahead.

So his currency to buy Twitter is gone under. And then the Twitter stock is taking ahead because of his public comments attacking the board, attacking management, attacking the business model for the companies about to acquire. You can't do that without repercussion, both at the SEC level and at the civil class action level. And now the first suit's been filed.

And look, we're supposed to have in our capitalist system effective and efficient markets. And effective and efficient markets had given a certain valuation for what the Twitter buyout would be. And that was there a willing buyer, a board of directors found this willing buyer and Elon Musk who claimed he wanted to buy it for $54 billion or whatever it was. And then Elon Musk had buyers remorse, he didn't want to buy it or he wanted to buy it and manipulate the price. And so he did exactly what our free, what should not happen in our free markets, but what

we see too much from this billionaire class, which is to manipulate the markets, try to drive the price down, try to, you know, destroy, you know, a free and accurate market so that he could, you know, see something for less than what ultimately it's about. And crush the public investor like you, me, and elementary school teachers and others.

And frankly, whenever we have financial crises, we then, and we know, they're oftentimes is, hey, we need to do something to protect against conduct like that. And then oftentimes we'll have this legislation that takes place post, the 2001 internet bubble and then post 2008-2009 recession and the great recession. Then you have people like Trump come in and then they just try to destroy all those regulations,

allow rampant manipulation of markets. Then we go back to these positions. We'll keep you if prized of what's going on here with Elon Musk. But, you know, I think this lawsuit is a meritorious lawsuit. The SEC's also began an investigation into Elon Musk as well, for what I described earlier for not filing appropriately the 13G form amongst other conduct and connection with this, you know, purported transaction, but we will keep you posted. Also Twitter is a Delaware corporation with its principal place of business in California, which is why it was brought in California because it's principal place of business was in California. I want to talk about a bipartisan gun bill. Everyone wants a bipartisan gun bill. So what did Congress and its infinite

wisdom do in a bipartisan basis? Popuck in 2005, it passed what's known as the protection of lawful commerce in arms act. P L C A A is a law that protected firearm manufacturers and dealers from being held liable when crimes have been committed with their products. And this has been cited over and over again in mass shooting cases where families who lost loved ones have tried to sue gun manufacturers. In fact, we've seen cases where after the gun manufacturers have won the lawsuits based on citing this PLCAA, they've then sued the families who lost the loved ones for sanctions and recovered money

in many cases, you know, forced these families into very difficult financial situations, already having lost the loved one in a mass shooting, which I can't even imagine anything more horrible and horrific than that. So, Pope Bach, I've been speaking a lot, so I'm going to pass it to you on this New York law and legislation that was passed, and it was challenged by the trade group of gun manufacturers. And here interestingly, the district court judge, despite the existence of this PLCAA, actually found that this bill that was passed by, is actually passed when Cuomo was the governor and signed into law by Cuomo, that this is valid,

that it meets an exception to the PLCA, because it I guess it embodies the fact that there would be criminal conduct or recklessness in the, in how the salin distribution of the weapon is taking place from gun manufacturer to the person who engages in the shooting. And that's one of the exceptions to the PLCA. Hope I could be can break it down for us. Yeah. So we're going to talk about a lot of new legal AF concepts today. We started it with the supremacy clause and preemption,

and we're going to continue it here. Let's first start with how we ended up in the Northern District of New York as a continued lesson on forum selection and forum shopping. Every time the gun manufacturers want to challenge something in a state, they try to pick the state, they try to pick the district of least resistance where they're going to have the most judges, the chance to pick a judge in that district that may be on the conservative or right wing side of the aisle. So in New York, the district of choice,

although it's failed, and we're going to talk about two failures of that choice today here on the gun case and when we talk about the the Trump attempt to dismiss the New York Attorney General suit also filed in the Northern District of New York in front of a different judge, they pick the Northern District of New York, which is an Albany, which is that the the capital of the state at the top of the state and covers areas like Albany and not ironically but sadly Buffalo, New York, which was until four days ago, the site of the largest mass murder this year at the supermarket in Buffalo were 10 people died, nine of which were African-American that covers the Northern District of New York. We have a judge there, however, that fortunately was an Obama appointee

who got selected by lottery or randomly to hear the case, Judge May D'Agostino, who by the way, back in the Halcyon days, when people got along and did what's right for this country, she was confirmed 88 to zero by the Senate. You don't see those numbers anymore. It just shows you that just as short as 15 years ago, there could be consensus and statesmanship around a selection. Okay, so they're already on their back foot because they got the wrong judge. Although, you look at Judge Daga's Stino's background, she was a defense lawyer

for hospitals and health care. She was a medical, malpractice defense lawyer. So she's already defense oriented. So you would think, okay, bring it. You're your defendants, you know, or in this case, your plaintiffs, but you're really defendants. And you bring in a case about wanting to avoid liability.

I'm all about it. That was my practice. Let me hear it. And so they bring the argument that because, as you said, and people have forgotten, unfortunately, that the Congress had passed a blanket protection over gun manufacturers being sued if the product that they sell, the gun, the long gun, the shotgun, the handgun, the AR-15, though whatever, is used in a crime before that federal legislation was passed. Gun manufacturers had been losing in the court systems against victims and their families

of gun violence, even though the gun was used, quote unquote unquote, criminally, although it was, it was put to its intended use. In other words, somebody pulled a trigger and bullets came out. That's the intended use of the product, but they were able to get not just Republicans, some Democrats to sign on to this bill as well. And we'll talk about it more as we talk in another podcast about the results of Rob Elementary if there's going to be a will to make changes in the gun law. And when the Second Amendment case comes out this summer that you alluded to earlier by the Supreme Court. But so that federal statute says that there can be no state regulation or state law that imposes liability on a gun manufacturer,

distributor, wholesaler, retailer, if that gun is used criminally. Okay, that's fine. And that is the box that Judge Dagestino established. So any law that tries to promote civil liability or give civil liability for the criminal use of a gun is off limits. But that is not what the New York law does. The New York law mindful of the federal law and of the law of preemption and of the supremacy clause wrote something else. And what they wrote is that if an industry, gun industry member who manufactures or makes or imports for sale, a product and does not use reasonable measures to prevent the product from being sold or used unlawfully in New York, consistent with New York laws, they can be liable.

So it's not making them liable for the act of shooting. It's making them liable for their own conduct and not taking reasonable measures in the sale of their product. That could mean their advertising is inappropriate because it promotes the use of their weapon in a way that's inappropriate. Just as we saw the gun that was used by the shooter at Rob Elementary, three days before the attack that killed 19 schoolchildren and two teachers literally had a toddler in the ad campaign holding one of their weapons with a comment about teaching

young now, so they're on the right path or words to that effect. That kind of marketing would violate this law in New York on the books and give them civil liability if this ends up in the hands of somebody or someone like that. So it is legislating and policing their conduct as manufacturers, distributors and retailers, not the ultimate use of the gun. And that's the way that New York creatively got around, I believe, successfully the law. The judge D'Agustino agrees. Judge D'Agustino recognized the preemption doctrine and said if there is what's called one to one overlap between the federal law and the state law. And then the federal law can then said to have

it's called a ouster ousted the state regulation in a particular area. But the judge said the area is narrower than what the gun manufacturers. And in this case, the National Shooting Sports Foundation, which is one of 12 or 19 plaintiffs, their interpretation of the law is broader. They were like, see, federal court said no state regulation of gun sales. No, that's not what the federal law says. And if Congress wanted to do that, they would have had to, a much broader statute. So at the end, the judge said, I know, I understand the preemption doctrine. I understand the supremacy clause. I understand the commerce clause of the U.S. Constitution that generally does not allow

states to interfere with interstate commerce, which is the sale or distribution of your product, which is still a lawful product in the United States. But I don't find preemption. I find this law skates by threads the needle. And therefore, I'm going to allow it. Your case against the law is dismissed, which means it's going to go ultimately, to the appellate court first for the state, which is going to be, so it's going to go right to the second circuit. So it's going to go to the second circuit court of appeals for New York State, and it'll probably find a favorable audience there for Judge Daga Stino's ruling. And then it will go somehow fast-track or otherwise to the US Supreme Court, who has a mixed record on the second amendment as it relates to protecting civilians from being shot and killed.

I think mixed record would be very generous to say that. I look, eventually this ruling is going to be overturned as my prediction. Yeah, well, yeah, I mean, it depends what panel is on the second circuit. And it depends what the Supreme Court is going to say in their ruling on New York State Rifle and Pistol Association versus Brewing. Remember, the Brewing decision is the concealed carry where the second amendment is the expansion of the second amendment is before the Supreme Court, the New York State enacted very common sense legislation there, basically saying certain licenses were needed to conceal carry within the state of New York. That was challenged, brought to the

Supreme Court oral argument was held in this past term. And the question really isn't, is the New York law going to be struck down? The question is, how much broader of the personal right to guns that was embodying the district of Columbia Heller, decision in 2008 and later in McDonald versus Chicago. How unfettered is the individual's right to all guns and all weaponry, arising out of those decisions and how limited is the right of the state

to impose any regulation or obligation on guns. And so why- I'm not sure- Before you move on, I'm not just two things. any regulation or obligation on guns. Yeah, I'm not sure. Before you move on, I'm not just two things. The New York law on concealed carry is broader than just licensing. It says you have to show, you have to, as the applicant, show a need for specialized protection

in order to have a concealed weapon. And the issue that's gonna be decided by the Supreme Court and you're right, it's going to be against the New York law, is whether New York and other states have to convert to being what's called must issue states. They must issue a concealed weapons permit without limitation as long as background checks

and fire safety training is the only limitation. It's the must issue issue. And they're going to, we've said it. You've said it. I've said it. Karen said it on the pot. The must issue is going to be the law of the land every state, regardless of urban, suburban, farmland, country, Midwest, Rust Belt, wherever everyone's going to have the right to go to their

local regular regulator and get a concealed weapons permit if they pass a background check and take firearms training. That's it. Yeah. And we'll see what else they say. You know, in that opinion, I mean, you know, on the heels of the evolved shooting, we're going to get this opinion very soon in New York State rifle and pistol association versus Bruin. And you have people like Clarence Thomas and I mean, just look at Alito's draft decision in the decision to ban all rights to abortion where he starts citing a 16th century or 17th century British jurist who killed women for which

country who believed the women should be murdered for witchcraft. And, and you know, he was personally believe that, you know, women come from the like the ribs of a man and they should be treated like animals. Like that's who he cited. So what is this decision going to say, how far are the contours going to be where people have unlimited rights to guns? And this is on the heels of Evalde. So we have this New York State Rifle Association Supreme Court ruling coming out soon. We're going to have the draft decision become the actual decision very soon in the decision

overturning Roe v. Wade, Alito's decision. My prediction there, Popak, is that that decision basically looks identical. I think they're going to remove the reference to that 14th century guy. I think that's, but like, there'll be a few cosmetic things like that, but otherwise, the ruling is going to basically go with the draft opinion. I totally agree with you. And that line up that you just listed for the summer, this is the reason you're not letting me go on vacation again.

Exactly. I can't let you go on a vacation. If you go on a vacation, there's going to have to be a new papake in there for the day, you know, for those days. And I just for those just for those days, I'm going to have to, you know, I'm going to have to find someone to replace you just for a few episodes with no one would like that. I know you would like that. And that's that's me trying to make you a little bit jealous to see if I can get you to stay. But I want to, I want to get inflatable pop-up.

Exactly. I want to read though, I always think it's important when we talk about these, you know, you know, gun issues that we talk about the second amendment. And I just read it because it's one of these things where you and I have always when we break down the law, we have these discussions on these complex legal issues. This is where, to me, I get most frustrated as a lawyer. And it doesn't just prevent in the second amendment. As we talk about Trump, you start seeing lawyers like Trump's lawyer, Eastman, who tries to manipulate very common sense words that like, you know, like the vice president will counter the votes. And somehow that means to an Eastman, well, it's not actually count the votes that subject to a statutory scheme whereby the president can actually provide his separate slate of electors.

And then you have other lawyers who basically go and they also look at the long go, oh, I think that's actually a great interpretation. Oh, and meanwhile, while they're doing that, they're allowing an authoritarian regime to come into power. So when you look at what the second amendment says, it literally says nothing about a personal right to bear arms directly. It doesn't say that. It says a well-regulated militia, comma, being necessary to the security of a free state, comma, the right of the people to keep in bear arms, comma, shall not be infringed. How in the world do you not read into the second amendment, the words, a well-regulated

militia being necessary to the security for every state? How do you just cross that out, ignore the history that when the founders were writing this, they were talking about a militia. They were talking about something akin to a national guard, something that it would keep the states having some power at some authority in case of federal overreach. How do you read this amendment to go? You know what? What this is also saying is that let's take away regulation, take away militia, take away the need for security of a free state.

Let's just say the right of the people to keep in bare arms shall not be infringed under no circumstances. There shall be no regulation. There shall be no anything despite having those words in it, you know, and that's where you have these jurists, people who think they're fucking smart, read these things and go, oh, what they really meant was what they really meant. It literally says, I know what they meant. was what they really meant. It literally says, I know what they meant. It says, well, regulated militia. It's the words. It's right there in front of

me. Only because this is a tennis match. And I got to hit the ball back over the net. Yes. I agree with all of that. And you know, my position about the provision, Scalia doesn't agree with you and looking back at and how did he get there? It's not like Alito pulled the abortion decision out of his backside and that's being kind. At least Scalia looked at things like the second amendment versions that were on state constitutions or colony constitutions leading into the creation of the US Constitution to see if the well-regulated militia means a well-regulated gun ownership. You have to admit, though, those are two slightly different concepts regulating your militia and how that's going to be regulated and it doesn't say a well-regulated gun ownership.

It says, well-regulated militia. So, look, he had the opening to uncoople it and say that was just an introductory sentence that does not define the right that was being made. I'm making the argument. I didn't say I agree with it. I'm just telling our listeners what is the argument from an intellectual integrity standpoint. But you know that better my position is the opposite that if they wanted this right, they were okay. The founding fathers would this right be regulated. They didn't want an unruly rebel class out there after we created states, who could just do an insurrection and take down the government carrying whatever weapon that they chose. So I doubt if you were able to exume the bodies of the founding fathers or all the sails and ask them,

you know, is this what you meant? I'm sure they'd say, no, you can regulate the guns and the size and shape of them and how they're carried. That, you know, and no, what is it? AR-15, dude? No, we never, you never see our weapons, our weapons, you know, I had to put a You never see our weapons, our weapons. I had to put a ball and powder with a musket. No, no, regulate. But this is the argument that we have with the Bible. What would Jesus think? And the problem is people like Alito

and the other right-wing supermajority on the Supreme Court, mold and bend and fold the Constitution to meet their policy and political ends. It's all reverse engineering. So does the matter. What is this? The words, banality of evil kind of come to mind because as Scalia starts, you know, splicing and, you know, things he's like some fucking wizard or something, oh, I got

the right word. And maybe that's an introductory paragraph. We have 18 year olds who are mentally ill or sick, terrorist 18 year olds, whatever, taking guns and just going into get buying AR 15s without any whatsoever, you know, regulation and on their 18th birthday, they go and they just are shooting up schools with AR 15s, weapons designed to kill as many people as possible quickly. And this isn't an issue of like, you know, do I believe people should have guns short? Yeah, go, go hunt, go have a handgun in your house. Do what you need to do to protect you. Do I think someone should have an AR 15

and 18 year old, you know, who just turns 18 should get an AR 15 and buy all the ammunition. Well, no, that's the stupidest thing in the world. Why? Why would you see this video on HBO where the underage kid he goes in and he tries to buy porn and cigarettes and a bunch of things and he gets rejected from all of that. Absolutely. No, and he gets laughed at. Then he goes to the gun show to buy the gun. They're like, well, here you go. And he walks out, you know, he walks out with the gun. But I don't think that, you know, normal regular gun should be taken away from people. And I think people should have guns, just not AR 15s or weapons of like, of mass death like that. It's wild. Stay on that. Stay on that point, you make, because it's a really,

really good one. I know you know, it's a really good one. When this country had a crisis in drunk driving deaths at the hands of young young drivers, 18-year-olds, you know, immature, malformed mind yet drivers, what did we do as a nation? Well, we did one thing. One, we added seatbelts, and the car industry was against that. one, we added seatbelts and the car industry was against that. Then we required airbags and the car industry, i.e. the gun manufacturing industry in our scenario, is against that. But we found the political will to do it nonetheless. Then we raised the drinking age. When I was a kid, just off to college, the drinking age in most states was 18. It got bumped the year I went to college, it's 21. There's a reason for that.

It's because we did not want to link things like driving with alcohol. We wanted distance in age and maturity. Why don't we want that with an AR-15 or a Bush master or any kind of semi-automatic or automatic weapon? Why don't we want to uncouple the kid that just got out of school that's still smarting from whatever abuse he took at the hands of his classmates because that's all these kids, right?

The Columbine kids, the killer, the coward killer in Buffalo, the coward killer in the elementary school in Usvalde, they are fresh off of their own formative year high school experience. And now it's payback and retribution because they can go egg Don by social media, egg Don by the gaming community that they're on, they go and buy that weapon and it is sold to them lawfully. And then places like Texas take it one step further. You can't buy a handgun,

but you can buy something that's characterized and misclassified as a hunting gun, and that can be an AR-15. So the kid could not have bought a handgun in Texas pen, but he could buy a weapon of mass destruction that he used, and we know the timeline now in Usfall D, and that 40-minute gap between the time the police broke in, finally, the federal officers,

the border patrol broke in and stormed that room. He had 40 minutes, three magazines, three clips, and he killed everyone in that room, except for I think one or two, everyone. And he was able to buy that lawfully in the state of Texas because Governor Abbott signed a law to make Texas a second amendment sanctuary. Do you remember that then? Yeah, he made it a and then he deep and then he wants to blame it on mental health, but then defund mental health programs in the state.

And so by their own, by the way, I do not blame this on mental illness. I blame this on, you know, rampant guns and these people are terrorists. You shouldn't have guns in the freaking first place. But even if you accept the argument that these are mentally ill people, then mentally people are getting these guns. You know, based on your laws, if that's the argument that they're, you know, if that's the argument that they're making, and both in Buffalo and in Texas, these were 18 year olds, 18 year olds who got these weapons, basically right upon turning the age of 18 or hearts and prayers, and not just that, but our work goes out to the families of you, Volody. And we're not just going to talk about it.

Embuffalo. Embuffalo. Embuffalo. Two weeks ago. Harren horrific to think that that was two weeks ago. And already there's been another mass shooting that in many ways, eclipses it in the minds of, of the nation, which it should, and it's just, it's horrible and horrific. Want to talk about Trump right now, Trump big losses. I mean, we, you, you did a funny tweet, Popeye, where you, what, you, what, we, we did a funny back and forth where you were like, you know, another great legal, I have a prediction. Donald Trump loses the federal

lawsuit against Latisha, James trying to stop her investigation into him for his inflating of all his valuations and all his other conduct. This is the civil investigation that she's in charge of. And I was like, look, to be fair on that one, it's fairly easy to predict Trump's going to lose these really stupid lawsuits that he files, like that other ridiculous lawsuit. I forget what it was even about. Remember, he sued like 80 people like in Hillary Clinton, everyone. It's pending in the Southern District of Florida in front of Judge Middlebrook's. He's going to lose that 80 times. And so we're going to get 80 W's in our predictions

that Trump is gonna lose. Cause literally, has he even served that thing yet? Because my prediction is he doesn't want to serve it cause he's gonna lose. And if he expects Alina Haba, whoever his lawyer is, that she's gonna do 80 opposition to all. Oh and four. That she's on.

I mean, it's just the worst. Popeyes take us through. These, it's just the worst pop-up take us through these There's these two things that happen kind of a day apart from each other right and watch the comment denominator Ben You're gonna this is here. You can do a promotion of one of our podcasts the comment denominator in both cases is Trump's an idiot and Michael Cohen Trump's an idiot and Michael Cohen. Oh, good. Michael, I just gave you a softball to promote Mayacolpa. Michael Cohen and his testimony is the key to the analysis

of both the Northern District of New York judge who we predicted spot on. That this was going to happen. Judge Sanis, who just dismissed on Friday in a 43 page ruling, which I posted on the legal AF Twitter community feed, finding where Trump and the Trump organization argued that Latisha James and the New York Attorney General civil case was brought in bad faith to harass him as no legal merit. And that a federal judge should step in the middle of a state civil proceeding, which is already being supervised by a state trial judge and judge Ergoron, but under a doctrine called the younger abstention doctrine, which you referenced earlier, the federal court should

step in and take Latisha James off the case and dismiss and stop the civil investigation of whether Trump and the Trump organization and the kids inflated and deflated asset valuation in order to line their pockets. The judge said in that one, where it's the Michael Cohen connection there, she said, I see the timeline that you've laid out in your complaint. And she repeats it in her 43 page decision. She takes whatever Trump says as true for the purposes of emotion to dismiss, which is the proper standard and federal court and in state court. And she says, I get it.

She was elected in November, but she does in November of 2018, but she doesn't start the prosecution for four months later in March of 2019. And what is the trigger event that Judge says? It wasn't her animus towards Donald Trump, even though she campaigned saying, if I'm elected the new sheriff in town, I'm going after Trump and the Trump organization. The trigger judge Santa said in the Northern District of New York was Michael Cohen's testimony in February of 2019 in which he talked about under oath for which he also went to jail, not the testimony, but for his own crimes.

And it was subsequently released that there was asset inflation and deflation commonplace at the Trump organization, inflation in order to get loans, deflation in order to save on taxes. It was that testimony that a month later, the attorney general brought her or opened her civil investigation. And so the judge said, I don't see anything wrong with that at all. And their argument, Alina Habba, Owen for Alina Habba, she'll be oh in a career with Trump by the time this is all done,

was that there is a bad faith exception to the younger doctrine. And the bad faith exception says that generally, the younger doctrine says generally a federal court will not interfere with an ongoing state investigation or proceeding at all. And that is a view of states' rights and comedy and federal versus states as outlined in the U.S. Constitution and the supremacy clause and what's reserved to the states and all of that in our structure that we learned in first year in civil civics class in high school or elementary school. But there is an exception. And the exception is if the civil proceeding has been brought in bad faith to harass or has been brought in bad faith because there's no reasonable likelihood of success.

And it was simply brought, you know, to kind of drive somebody crazy or ask them, then a federal judge can intervene and stop it. So their argument was, yes, look at all of Latisha James' comments about going after me and bringing me down. And that's bad faith. Alina Haba in her email after she lost, she said, oh, if this isn't bad faith, I don't know what is. This is a lawyer who's never tried a younger abstention doctrine case in her life, but you know, she's now she's the great scholar on the issue.

But in any event, the judge said, no, the thing that lit the fuse for the investigation is Michael Cohen's testimony. Now why is that important? Because when we go to the next ruling, which is the appellate court that we predicted that sits above the judge Ergaran, who is supervising the state level, Latisha James's investigation, which is the first department court of the first department appellate court in New York, which I'm a member of, that's who admitted me into the bar 30 years ago. They are the first level appeal court.

The highest court, as we've talked about in the past, in New York is the court of appeals for New York. So the first department sided with Judge Ergoron in a 3-0 vote and cited again the Michael Cohen testimony and saying that the judge Erdogan has the power to order the Trump, the Trumpers, the Trump kids Trump to sit for a civil deposition, which we'll talk about in a minute, what's going to happen next, because the investigation is a prop is proper. They rejected all of the same arguments that were raised at the federal level about the impropriety of the investigation, the alleged harassing element

of the investigation. And again, two different courts not working together, work with different clerks and different, different body of law, different body of facts concluded the same thing. and different, different body of law, different body of facts concluded the same thing. That if Latisha James did not follow the lead that Michael Cohen's testimony provided about the inflation and deflation fraudulent leave assets, she would have committed a dereliction of duty. She is a press, well, in this case, she's not a prosecutor. She is a civil attorney general who has the power and the obligation to investigate matters of civil fraud. You have a witness who has testified under oath that this happened in the organization. And the courts are like, how can

she not investigate that? It would be a dereliction of duty if she didn't. And so based on the Michael Cohen testimony, we have federal court that dismisses once and for all the Trump case to try to get Latisha James off off of him. That will then go up to the second circuit ultimately. And we have the second highest level of Pellacourt in New York who said that they have to sit the kids and Trump have to sit for deposition and he'll probably take some sort of appeal to the court of appeals. And he's going to lose there. The court of appeals is going to order these people to sit for a deposition. It's probably going to happen in the next 90 days. And the second circuit is going to, I predict, is going to confirm and affirm judge Sanis' decision that Leticia James did absolutely

nothing wrong and that the federal court can't interfere with her investigation. So let's fast track. So what happens Ben when he sits for that deposition because I've seen people tweeting about the application of the Fifth Amendment in a civil setting, what will ultimately happen? I think ultimately he will. I think he's gonna answer the questions.

He'll say a lot of things that he doesn't know. He's gonna say other people handle it and then they'll all kind of say that and he'll say he's not really, you know, he's not really sure. Do you think he'll take the fifth? I don't, I mean, I don't think that he'll take the fifth. Well, let's talk about that. In a civil setting, if you take the fifth amendment in a civil case, but you would have an adverse inference against you, you'd lose the civil case by taking the fifth amendment in the civil case. So which is the one that he's more worried about?

Because in every filing that he's made, he says that this is really, let's hear James's attorney general investigation, is really a criminal investigation, masquerading as a civil investigation, because she's working so closely with the Manhattan DA's office, who is doing a criminal investigation. That's been rejected both on the federal side and on the state side. But my question to you is this Ben, which is the one that he's more worried about, losing A, what effectively is a money case only and being found to be a fraud.

And he's been found to be a fraud in the past already. And his other business dealings, including by Latisha James, Attorney General related to the Trump foundation and that kind of thing. Is he worried about that or is he worried about the Manhattan DA or other criminal prosecutions for which whatever he says in the civil case here could be used against them there? Because if he's worried more about criminal than money, I think he takes the fifth amendment more than you're predicting.

Yeah, I think he's worried more about criminal, but I think I mean, it's clearly worried more about criminal. It's not even a close call. But I just I can't, it'll be interesting to see I can't imagine him take the fifth. I think he'll give kind of double speak answers and just say he doesn't recall. He can't recall. And they would take attorney-client privilege objections, they'll object on all those grounds and then try to drag this out another few years based on the objections. I think that's what they'll probably do.

They'll make pointless objections, they'll go to the court, they'll try to get motions to compel him to answer. They'll then try to appeal all of those. But we'll see how that goes. But Michael Popock on this Memorial Day, I want to say thank you so much for spending the time with me and with the legal AFers.

Out there, everybody go to store.mitustouch.com. store.mitustouch.com. We got great gear on their store.mitustouch.com. Make sure you check it out. And we'll see you next time on the next Legal AF Pope-Pock. It's always great spending time with you at doing this. Yeah, it's tough stuff. It's tough week, but we got to break it down

for people so that they understand them. It's a highlight of my week to be able to do this with you and with the minus muddy and the Legal AF first. Absolutely. We'll see everybody next time on the next legal AF Ben, my cell is Michael Popeok. If it's the weekend, it's legal AF breaking down the key legal issues for you

in ways you can understand. See you next time on legal AF. Shout out to the Midas Smitty. you