Legal AF by MeidasTouch - Trump OVERPOWERED by Courts and Prosecutors READY TO GO

Episode Date: December 10, 2023

Trial attorneys Ben Meiselas and Michael Popok are back with a new episode of the weekend edition of the LegalAF podcast. On this episode, they debate Special Counsel Jack Smith’s final trial preparation for the Trump trial in March, including introducing evidence to the jury of Trump’s prior bad acts; the DC Court of Appeals’ historic ruling re-gagging Trump and comments that the Trump trial should not be delayed; the criminal prosecution of fake electors around the country with the help of Trump’s own lawyer; the Colorado Supreme Court’s likely ruling on whether Trump should be on or off the ballot in November, and and so much more from the intersection of law, politics and justice. DEALS FROM OUR SPONSORS! Aura Frames: Visit https://Auraframes.com/LegalAF and get $30 off their best-selling frames with promo code LEGALAF Mosh: Try Mosh today and use LEGALAF to save 20% plus free shipping at https://moshlife.com/LEGALAF Betterhelp: This is sponsored by BetterHelp. Give online therapy a try at https://BetterHelp.com/LEGALAF today to get 10% off your first month and get on your way to being your best self! SUPPORT THE SHOW: Shop NEW LEGAL AF Merch at: https://store.meidastouch.com Join us on Patreon: https://patreon.com/meidastouch Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Learn more about your ad choices. Visit megaphone.fm/adchoices

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Kamlincom call 1866-531-2600 or visit connectcentario.ca Let's get into the weeds, Michael Popock. Federal Rule of Evidence 404B. Is invoked by Special Counsel Jack Smith in a new filing. Joing Donald Trump's Common Plan and Scheme. Joing Donald Trump's intent this in the Washington, D.C. Federal Criminal Case set for trial in March of 2024. And by now, you probably all heard, unless you're reading

the New York Times where it was buried on page 22, that the DC Circuit Court of Appeals largely affirmed federal judge Tanya Chutkin's gag order in the DC Federal Criminal case. But let's look at page 48 in that gag order opinion by the DC circuit court of appeals, which may hold the most powerful line of all that the gag order issue had to be addressed immediately, given that the trial date was right around the corner. So it sounds like to us here at legal a F that this DC circuit court of appeals is sending a signal that they want to keep this trial on track for March of 2024 or at least shortly thereafter this as Donald Trump filed a motion to stay or pause the entire case in Washington, DC, in conjunction with his appeal of Judge Tanya Chutkin's order,

denying his motion to dismiss the indictment on absolute presidential immunity grounds. Donald Trump cited the recent DC Circuit Court of Appeals decision that we covered here on legal AF, which held that Donald Trump does not have absolute presidential immunity in a civil case as the basis for requesting a stay or halt of the DC criminal case. Huh, we will talk about that. Also, we're gonna talk about how things are cooking in other states.

Nevada, Wisconsin, Arizona, Michigan and others where Donald Trump's co-conspirators are either getting indicted under investigation or admitting in civil settlements to their crimes in connection with the 2020 election. settlements to their crimes in connection with the 2020 election. And last, we'll go to Colorado where that 14th Amendment section 3 disqualification case was argued before the Colorado Supreme Court. And Trump's lawyer essentially argued there are no limits, no qualifications of who can run for the presidency. In other words, essentially arguing for a dictatorship and then admitted, I'm just making this stuff up. Aren't we all just making this stuff up? No, we are talking about the law and the Constitution. Also, this follows

other briefing from Donald Trump's lawyers to the Supreme Court in Colorado where they argued Donald Trump could not be an officer and cannot be disqualified because he never took the oath of office. He did take the oath of office and it is horrifying that that is an argument that they are making and they're putting it right there in their motions. I'm Ben Myselis, joined by Michael Popak, who is traveling today, thus not the room you're used to seeing him in,

but it is great to have him here for this edition of Legal AF. Michael Popak, how are you doing, sir? I'm doing great, Ben. You know, I like about this show today. It just shows us that the fate of our democracy is firmly in the hands of a series of DC Court of Appeals battles, which are gonna make

their rulings in 2024. I don't wanna be anywhere else, but in the DC, in those courts of appeals, hopefully their decisions that we're gonna follow off this show are gonna save the March trial date against Donald Trump that's also going to follow off this show are going to save the March trial date against Donald Trump. That's also important to the electorate to understand whether they're voting for a convicted criminal or not come November to restore the rule of law. Another thing they'll have to do and to keep our justice system from letting Trump spin us out of control as part of backfill

attorney generals around the country and prosecutors around the country and civil litigants around the country use what's at their disposal, civil courts, criminal courts, indictments, lawsuits to hold Donald Trump and those that followed him to the brink of overthrow of this country hold them accountable. Well, look what's happening across the country. We're on the one hand. You have attorney generals, district attorneys and prosecutors who are part of the pro-democracy community holding traitorous individuals accountable.

And then on the right wing, MAGA prosecutorial side, we see what's happening, for example, in the state of Texas, where they are suing women who are trying to seek reproductive care based on birth abnormalities and preventing women from getting that reproductive care, going all the way to kind of MAGA dominated right wing Supreme courts to stop that we're seeing that now in Texas. We're seeing that in other right wing states and you know we at the

Midas Touch Network did a video about two years ago where we showed a mother and her daughter in this hypothetical situation. We actually did it around 2020 trying to cross a border and the police stopping the mother and the daughter as the implication was she was getting reproductive care and basically arresting the daughter and questioning the daughter right there. When we put that out in 2020, we were told this was fear mongering, why are you doing this? Might as touch. This is never going to happen. It is happening right now in the state of Texas. And although that was not one of the topics I wanted to address that on the outset and show that contrast right there

about how prosecutorial discretion is and isn't being exercise, Michael Popack. But let's get right into rule 404B of the federal rules of evidence. And federal rule of evidence 404 deals with character evidence and the propensity of a criminal defendant to act consistently with prior bad character. In other words, trying to say, just because somebody is bad and has done bad stuff in the past, this is a bad person. The federal rules of evidence say, you really can't use character evidence

as the prosecutor unless the defendant opens up the door for that to show that somebody's acting consistent with having just a bad character unless you're using it for another purpose to show a common plan and scheme, to show the intent of a criminal defendant, to show their knowledge or notice. And so if you're going to introduce evidence in a federal criminal case or civil federal case as well, where it could be construed as inadmissible character evidence, you have to give advance notice to the court under Rule 404b that you are trying to seek the admission of this evidence for other

purposes that would make it admissible. So special counsel Jack Smith is saying, look, there's all this conduct from Donald Trump dating back more than a decade at this point for purposes of this case, where Donald Trump acted consistent with criminal schemes to deny elections, to defraud people. And here is why it's going to be critical in this case. So let's take a look at what Trump did in 2012. Let's take a look at what he was saying in 2016. Let's take a look at what he was saying before the 2020 election.

Let's look at what he was doing after the 2020 election, paling around with the proud boys and saying all of these positive things about these terrorist groups whose leaders have already been convicted, saying he's going to pardon them, making songs with them in the J6th choir praising their conduct. So on the one hand, Donald Trump wants to distance himself from these people for purposes of the case, but he praises them at all of the events and all of the traveling fascist circus rallies that he does. And as we've said before here on legal AF, every time Donald Trump does those speeches, does those interviews, he's

creating a body of evidence where he has the right to remain silent, but he was not exercising that and he has created this body of evidence that Jack Smith wants to admit. Popok, talk to us about the 404B motion. Yeah, thanks for bringing that was perfect. That was a perfect explanation of the intricacies of role 404. And some people who tuning in late or haven't watched our hoticks are like, why are we spending so much time on this? That's because we're at the moment in trial preparation Even even though it seems like March is far away. It isn't the calendar is gonna change to January any minute now And as trial lawyers, we know it takes you know four months five months six months to prep for trial properly

And there are deadlines that Judge Chuckkin has set milestones that have to be met from now until March that both sides have to comply with and filings that have to be made and deadlines related to it. One of the filings that needs to be made was if the prosecutor was planning to use what you've eloquently described as 404B evidence. Evidence not to show the prior bad act. It means the person has a propensity to do it again, because that's an improper use of it. But to show it to the prior bad act, some historical piece of evidence about the person's

conduct is relevant and should be presented to the jury, not to prejudice them, but in order to address an element of the crime, or in this case, to show that there was no mistake that there was, as you said, common plan. There was, there was a, these are elements of the conspiracy and intent because somebody does, in other words, Donald Trump just didn't just wake up in the morning or just before the election, let's say in the beginning of 2020, and have the great idea that I'm going to declare that there was voter fraud.

I'm going to attack the use of mail-in and absentee ballots. I'm going to, without any back, without any support, I'm going to cling to power and not agree to the peaceful transition of power. I'm going to attack election workers and elected officials. I'm going to cause riots or participate in them and then celebrate those people. He didn't just come up with that idea. In September, the jury needs to hear that he has been plotting this for a long, long time that there are elements of Jan 6th as far back of 2012

and I would argue even further than that, this may not be the last of Jack Smith's 404B notices that he's providing. And the way this works is you tell the judge and the other side, what are the bad acts for the past that you want to play, right? The best of the bad acts for the jury. And then the other side gets to argue, no, it's too prejudicial. A, what we call the, uh, probative value, which is the value about proving a certain fact, true or false, the probative value is outweighed by the prejudicial value,

or substantially outweighed by the prejudicial value. Another 404, 403 balancing that happens in that section of the evidence code. And so they'll be, they'll have this fight in public, on the public docket, as reported here, on legal AF and on our hot tics, about what the judge is gonna do. Now, now let's get, let's look under the hood as to what Jack Smith, we touched on it,

what Jack Smith wants to tell the jury, what evidence they wanna present to the jury, what videos they wanna run in front of the jury. Okay, so there's a bunch of them, but it breaks down into some quick buckets. Donald Trump's been talking about voter fraud, bad ballots, software and hardware, flipping votes from Democrats or Republican Democrats

as far back as Obama Romney. And there is evidence of that, in clips of that where he suggested in 2012, this is going to sound familiar. And that's what Jack Smith's point is. It is familiar because it's part of his same playbook. He claimed that there was software hardware or election fraud that flipped Romney votes votes to Obama. And that's how Obama got elected. Not that Obama won overwhelmingly in two elections back to back, but that it was, you know, there had to be something nefarious for us to have

elected the first black man, a black person as president in Trump's world, right? So that harmonizes synthesizes with what he did, of course, and took it to the max, took it to the MAGA in 2020. So you got that, you know, for those members of the jury's that think, oh, that's the first time I ever hurt Donald Trump, not agreed to the peaceful transition of power. I think he just came up with that because he really believed in that fraud.

Wrong. Let's roll, literally, let's roll the video in front of the jury of 2016 debate with Hillary Clinton in which in response to a question from Chris Wallace, the moderator, Donald Trump refused on national television to agree to the peaceful transfer of power to recognize the legitimate winner and to be a graceful loser to which Hillary Clinton said that she was horrified to be on the same stage with somebody that would express that opinion that he would not agree to the pre-sful transfer of power. Cut to a September 2020. This is now two months before the election, White House press conference, where in response

to a question from a reporter, this is after the Black Lives Matter summer, right? We had some issues in a number of cities related to protests. And with that, fresh on everybody's mind, the reporter said, with blood in the streets, with rioting in the streets, will you commit that in two months' time, if you are the loser of the election, that you will agree to the peaceful transfer of power? Tell the American people, look him in the eye and tell him that. And he said, no, I'll have to see. I'm not sure. And then attack the ballots.

Ballots that hadn't even been used yet. He said, well, the ballots, the ballots, if we get rid of the ballots, we won't have to talk about a transition. We'll talk about a continuation, meaning he'll never leave office. So even before the ballots were sent out, the mail-in and absentee ballots, which the states were using because of Donald Trump's poor response to COVID. And the fact that people didn't want to wait in line with their fellow

Americans during a pandemic, and this was the alternative to allow them to preserve their right to vote. No, the ballots, we got to suppress the, what he said is, what he's saying is we got to suppress the ballots. If we suppress the vote, I'll win. Think about that. And so, Jack Smith wants a jury to know that statement was made even before he woke up on the morning of November, whatever, and realized that he had lost the election. And then another example of that, using violence as a cover to cling to power is not just Jan 6, even though it was Jan 6, and that's part of the indictment, but it goes back as far

as election night in Detroit, where a currently unidentified, although I don't know why they keep not outing the person, it's Boris Epstein. It's obvious that it is Boris Epstein. It is an unindicted Coke and Spiritor, and there's only one of them that's also considered a political consultant, and his name is Boris Epstein. And he is an inside fixer currently for Donald Trump and shows up at every major event in Donald Trump's legal life.

It is a rain mints, the E. Jean Carroll case. He's at every table or in every room. I told people he's like a mean spirited forest cup. He's everywhere. So he is named as a person that tried to try to use a Republican Goon Squad, a MAGA Goon Squad to both flood an election office that was counting votes when it looked like it was going south for Trump in Detroit of all places, which of course it was going to go south for Trump in Detroit based on their

historical voting patterns. But in any event, he flooded them and sent in all of these untrained poll watchers to do nothing more than try to come up the works while he promoted having a riot in the streets in order to use that as covered to delay the vote counting. Sound familiar? Sounds exactly like what they did on Jan 6th, using the violence of the attack on our capital

to try to delay the vote count of the sort of of the electoral votes. So these are all major examples. Others others may Ruby Freeman is there about attacking the voter, sorry, the election workers who are doing the vote count and the Jan 6, as you said, Ben, and supporting the Jan 6 and Syracianists instead of calling them out for what they were, which is criminals and insurrectionists. But this is the kind of stuff that will, in a good way for the prosecution, blow the mind of the jury.

And that's what the judge has to balance here, which is this stuff, which is not exactly evidence from the indictment itself, but about past bad behavior. She's going to have to balance through her gatekeeping function. How much of this comes into this jury? Because of course, it's a reversible error appeal issue if she gets it wrong. So here's my question to you, Ben. Of those categories, those broad categories of things that he's identified with Chuck Ginn, assuming she's still balancing things while we'll talk about the

The appeal issue in a minute the stay issue Do you think she lets it all in or are which parts of this do you think she says? You know what? I don't think you need that particularly to go to the jury stick to your stick to your facts in your case everything temporally within the relevant time period will be in and kind of post the time period in my view. I think that she will exclude the 2012 comments and the mid-Romney comments and the 2016 comments and she'll say in her order, my opinion, if Trump and his lawyers open the door

and make some type of statement like they've never made comments like this before, he's always supported free and fair elections. If they make any arguments like that, then all of that can be let in. But I think that will, if I was the judge, I mean, I'd want to let it all in, but I think if you apply the rule of evidence and you were to do a balancing test, I think that gets excluded. I think everything leading up to the insurrection, leading up to the 2020 election, and all of Donald Trump's conduct post that gets included. What do you think, Popo?

Yeah, I think I like the razor that you're using. And we'll talk more on this podcast about balancing acts and balancing balancing tests that courts and appellate courts have to use with competing interests. We'll talk about it. We talk about the gag order coming up about the first amendment versus the sixth amendment and the right to speak freely except when you're a criminal defendant and when you have to worry about the fair administration of justice. So that's what judges get paid to do, what we're talking about.

I think the scalpel or the razor that you just developed for her is right. She's not gonna let all of it in because she wants a clean trial because the conviction is one thing, if they're able to meet their burden on the prosecution side, and given the very limited knowledge that we have about the wealth of evidence,

let me make that clear for this podcast because we don't we don't blow smoke or sunshine. We only know generally what is in what is in file documents attached to file documents in the case, referenced in the indictment, and then things that we can reasonably with good conscience speculate about based on how we piece together the reporting into our analysis. That is not even the tip of the iceberg. That is like that is a pencil eraser on the top of an iceberg, an amount of evidence that nobody, no legal pundit knows exactly what's in that tractor

trailer of information about to be dumped, that was dumped on Donald Trump and will be used at least a portion of it in front of a jury. So just what we know, there's a tremendous amount of evidence against Donald Trump. So you don't need to gild the lilies, so to speak, on all of these things and invite reversible error. Put on your case, a number of these things are relevant. As you said, they link temporally to the things that are in the indictment, get your conviction if you're able to do it and try to preserve your case from a reversal on appeal. You know, and Donald Trump, though, knows who will be the most damaging witnesses against

him. That's why he's attacking them and intimidating him and that's why you need a gag order to be in place so that he stops threatening and trying to intimidate the key witnesses and fortunately the DC circuit court of appeals and a very deliberative sophisticated ruling about 68 pages in length, came to the conclusion after doing the appropriate balancing of interest, the weighty First Amendment interests, but also the need for solemnity and solicitude and dignity and order in a judicial process and applying the Supreme Court precedent in a case called

Gentile to the facts right here came to the conclusion that by and large federal judge Tanya Chutkin's gag order should remain in place. There's a few areas where the gag order is not in place, but by and large judge Chutkin's gag order has now been reimposed and affirmed by the DC Circuit Court of Appeals. I give you this final concluding words from the order by the three judge panel who all joined into this decision. Quote, we do not allow such an order lightly. Mr. Trump is a former president and current candidate for the presidency,

and there is a strong public interest in what he has to say. But Mr. Trump is also an indicted criminal defendant, and he must stand trial in a courtroom under the same procedures that govern all other criminal defendants. That is what the rule of law means. And then buried in page 48 where the DC Circuit Court of Appeals says, why it needs to address this now, why it didn't have a long briefing schedule, it says the following, in this case, the general election is almost a year away and will long postate the trial in this case. And so while Donald Trump tries to talk about all the stuff with the election, we got to deal with this case, which is going to trial very, very soon.

And the issue that Donald Trump is now bringing separately to the DC Circuit Court of Appeals to try to stay and stop the proceedings in the district court while the DC Circuit Court of Appeals has yet to hear the briefing and that is not addressed that yet. They are signaling here in that statement on page 48 that their understanding and expectation is that this case is going to trial soon in Washington, DC. I took it one step further on that. We'll talk about it after we take a break. But obviously, let me leave it on this. I think it's even more of a message on page 47, 48,

and we'll put it up later. And I did a hot take on this. I let off with it. As it buried in there is something really important. I think it's a message to the next appellate panel that's currently considering the immunity issue and whether this trial gets derailed because of an appeal related to whether Trump had presidential immunity for

the criminal conduct he's been charged with. I think that's a signal to them because it's a random selection, another three judges, that this trial needs to happen before November. It is important as a policy of the justice system. And I think that was a messaging to them. Could one or more of them end up on the random panel, maybe, but it's unlikely. And so this is now precedent. This US versus Trump thing is now precedent with Judge Millett's decision. And we go from there. Let's talk about that more. Let's take our first quick break of the day. Do you remember your first holiday ever? Probably not, but I bet your parents do, and they have the pictures to prove it. Probably a lot of pictures to prove it. But even if they have

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plus free shipping on your first six count trial pack. That's 20% off plus free shipping on your first six count trial pack, which includes all six mouthwatering flavors, M-O-S-H-L-I-F-E.com slash legal AF. So the gag order affirmed mostly in all with all respects by the DC Circuit Court of Appeals, one would think that that is a major monumental thing. think that that is a major monumental thing in American history, not just for the day or for the week and the strong language used and the findings adopted by the DC Circuit Court of Appeals, is something that you would think would be etched in history yet.

So we were preparing for the show, Michael Popak, you pointed out, you said, Ben, did you know what page this was on in the New York Times? And I was like, I don't know. I'm assuming it's not the cover because you're asking me the question in that way. So I said, I don't know, the second or the third and you said, no, Ben, it was buried on page 22,

buried on page 22. buried on page 22. I want to do York, in New York, the New York edition of the New York Times. It's I want to just share with you just some of the portions of this ruling that are so historic and why it's so important that we cover it here. This is one of the findings that was made and adopted by the DC Circuit Court of Appeals. Mr. Trump's documented pattern of speech and its demonstrated real-time, real-world consequences pose a significant and imminent threat to the functioning of the criminal trial process. I want you to think about that.

Let me just give you the main conclusion of the order right here. It says the following. The order of the District Court Judge Chutkin is affirmed to the extended prohibits all parties and their council from making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding. The order is also affirmed to the extended prohibits all parties and their council from making or directing others to make public statements about one, council in this case other than

the special council members of the court staff and council staff or three the family members of any council or staff member of those statements are made with the intent to materially interfere with or to cause others to materially interfere with counsel or counsel's staff work in this criminal case or with the knowledge that such interference is highly likely to result. We vacate the order to the extended cover speech beyond those specified categories and then the order goes through all of the threats that Donald Trump has been making to former vice president Pence and calling Mark Meadows a weakling and talking about executing general milley attacking other witnesses. And so, ghost through all of that, ghost through the findings by Judge Chuck and ultimately

reaches that conclusion. So, I think they're allowing Donald Trump to attack the special council and the judge, so long as those attacks are not criminal in nature, but as it relates to all of those other categories and most specifically the witnesses and witness intimidation, Donald Trump's expressly precluded from that and then family members of the and court staff and and family members of the special council. And then of course we talked about popok, the other indication that the DC circuit thought it needed to issue this order right now because they believe and apparently are sending a signal that they want this case to go to trial before the election in 2024. What else do you make of this order?

Yeah. And just to be, as we're always fair and honest. So this is the headline. It's on page A16. A16, I'm sorry, for those that think that matters. And even the headline, I don't know if this is just me talking out loud with you, Ben. I don't know if this is a reflection of media fatigue, with covering and analyzing and drilling down on all of Donald Trump's criminal cases and civil cases.

I have no other explanation editorially why this would end up on page 16 and check that and check the headline court narrows gag order on Trump in election case. That was like written by the Trump campaign. It should be in a historic first, a pellet court, gag's Donald Trump based on a series of facts developed by the trial judge that he tried to topple democracy. I mean, this is what we're left with. And that's why I think that is. I mean, this is what we're left with. And that's why I think that is,

I don't even know what that is. I would say it's shocking, but again, we've created legal AF and this whole network because exactly that type of pro-fascism reporting and frankly, buying into the right wing propaganda. It's almost like they're, you know, they've got post-traumatic Trump disorder, and they're afraid of the

bashing that will follow. Look, I get it. Institutions like New York Times are under attack right now by lots of people related to free speech and other protest movements that are going on around the country. That was silly. So just a couple of small things. You had really all the major things that needed to be hit. And then you and I both did hot takes.

You did one with Karen. I did one on my own kind of going through the whole 63 pages. But a couple of things that I took away from it. One is tremendous pat on the back by the appellate court for Judge Chutkin. It's an unusual call out. You don't usually see it in an appellate court because Judge Chuckkin. It's an unusual call out, you don't usually see it in an appellate court because they knew they were gonna, they knew they were gonna pair her back a bit surgically

from what she did. They said, you almost got it exactly right, which is good. And you have a really tough case and you're doing a great job. It was almost like a shout out to Judge Chuckkin towards the end of the order. And the way they paired it back was interesting. I agree with you that it's both narrower, but also has

now baked into it a test and a balance that has to be performed by Judge Chuck and about intent related to the witnesses. That is just going to create, it's another test issue that's going to create a little bit of an issue. I would have liked them to have been a little bit clearer on it. But they said at the front, look, there is, we agree with Donald Trump in one way that there are first amendment rights of a presidential candidate. He has to be able to respond.

He's got millions of followers and, as they like to point out, millions of detractors that want to hear from him. One way or the other to be able to hear what he has to say, however, there is a limit. They're setting this standard so that it will be cited by other courts around the country now and in the future and by the US Supreme Court until they ruled something else. This is the law of the land now and it relates these kind of this balancing test, this extension of the case, you know, that you talked about involving the Nevada bar, Gentile. They said, look, we have to balance first amendment fundamental rights against the rights of a trial judge to control the justice system and make sure that the trial is tried in a courtroom

and not on the streets in a circus-like environment. And so Donald Trump, they chastised the lawyer for Donald Trump who argued at that appellate hearing. They said, he knows and Donald Trump knows no limits. This is no surprise. No is no limits. Doesn't think there should be any situation where Trump's speech should be constrained in any way, and that's ridiculous. They basically said, they also said,

you got a number of our doctrines wrong. You know, the Donald Trump's lawyers tried to argue the only way that you can gag our guy is if there's a clear and present danger to something really terrible happening. And just as she had done Judge Millette in the in the oral argument, it ended up because she wrote the opinion and baked into the opinion where she said, no, it's prophylactic. We don't need to wait to see somebody get murdered because of his speech.

That's the purpose of having a gag in advance. And you're getting the clear and present danger thing wrong. They also said, you got, and this is, I'm glad because a number of these principles, his lawyers, John Loro, Chris Keiss, Todd Blanch for Donald Trump, they like to bring these same arguments and trot them out, cut and paste in all these different places. The gag order issue in New York that's still pending, uh, technically on the appeal and here in other places. And that is the Heckler's veto.

We've talked about the Heckler's veto now for three shows running. The Heckler's veto, he claims there's a Heckler's veto. Heckler's veto is not what he's doing and they reminded him in the order you got the Heckler's veto part wrong Heckler's veto is if somebody like when Obama was doing the state of the union and that idiot from the South Who's a congressman yelled out you lie? Okay, that's a Heckler's veto, but that's not what we're talking about here Donald Trump is not the heckler in this scenario because of the reaction from his public.

It's when the public drowns out. It's got it completely backwards, which is good. And now there's a DC case for precedent on the books that completely takes the rug out from under them on this heckler's veto thing, which we keep seeing over and over again in every filing that gets made.

So I also like the fact that they dispatched Donald Trump's, and now we have an appellate decision, as I said at the top of the show, we finally have an appellate decision that addresses a number of these tropes that he keeps these tired old saws that he keeps running out there to try to argue his case. So on balance, I like the fact that they said the First Amendment remains secure, but there are limits and there's a difference between a criminal participant, an indicted defendant, participant in the criminal justice system, and just a stranger to the proceedings. And this is how we think it should have been balanced, and Judge Chuck can almost got

it exactly right. And then as we said, before we took our first break, as a messaging to their brethren in the DC Circuit Court, because there's going to be another three judge panel in the next day or so that's going to get selected because they have to get put in place and decide the briefing schedule for the immunity motion to dismiss that was denied by Judge Chutkin. Yes, there's going to be briefing that's going on between now and Tuesday, starting tomorrow night into Tuesday with the lawyers for Donald Trump, the lawyers for the Department of Justice, over whether there should be a stay to allow the appellacore to make the decision.

But ultimately, it's going to end up at the foot of a pellet panel. And this panel, Judge Millette leading, is telling that panel, right? This is like the ghost of Christmas future, but like not that far in the future. This trial has to happen quickly because the way they got into it, and I'll leave it on this, the way they got into it in the order that we've been describing for the last 20 minutes, is that they also have to look at whether there is a least bricked remedy that they can use in lieu of a gag to accomplish the same thing. And so Donald Trump had suggested, I got an idea, put the trial off until after the election.

There is a novel proposal that's only been made five times by Donald Trump and rejected each time, and they said, we can't do that. That is not a solution for the problem it would actually benefit, perversely, somebody in Donald Trump's position, who all he has to do is go around bashing participants in the election in the criminal justice system, and the benefit for that is he gets a delay in his trial. We can't allow that. This trial needs to happen now. And that has got to resonate with the next three that are chosen, and they're their historic

and momentous decision that they're gonna make as to whether Judge Chuck and God heard decision right that at the indictment stage, there is no presidential immunity that overcomes the conduct that has been charged the indictment stage, there is no presidential immunity that overcomes the conduct that has been charged the indictment and let's get to the jury in March. My, are we gonna talk about that today? We're talking about that. That's what we do here.

No, I mean, as a segment, are we doing that one? Which one? Sorry, we're doing the appeal of the gag order and chuck and briefing, right? Because I don't want to see it. Right, right, right now, let's get into it and what we're doing the appeal the gag order chuck and briefing right right right right right now. Let's get into it And what we're doing where's the smooth segue on legal a f right? Thank you. So absolutely we should we should definitely get into it. But we're seeing is that Trump's

Dangerous nonsense being overpowered by very skilled jurists who stand for law and order, but also really give due consideration to the serious interests, serious interest of the first amendment weighed against Donald Trump's behavior, causing real imminent threat to witnesses and to court staff and to people on special counsel, Jack Smith's team. I want to go and talk about the Donald Trump's notice of appeal and also related motion for a stay, both filed on December 7th of 2023 to the DC Circuit Court of Appeals that just made that ruling. Donald Trump is appealing Judge Tanya Chetkin's denial of his motion to dismiss the indictment on the assertion he argued

of absolute presidential immunity. And you'll recall Judge Tanya Chetkin said very specifically, the structure, the text, and the history of the Constitution does not support absolute presidential immunity in criminal cases. The entire basis of the Constitution was a reaction to corrupt kings. And as she said, Donald Trump and presidents and not kings, Donald Trump is not the president. A former president cannot assert absolute presidential immunity in criminal cases. The same time that decision was reached, let's not forget that the DC Circuit Court of Appeals

had been sitting on a decision reached by Judge Amit Mehta, another federal judge, where Judge Mehta over a year and a half ago had denied Donald Trump's motion to dismiss civil lawsuits for monetary damages on the basis of absolute presidential immunity. And so the DC Circuit Court of Appeals, a case called Blasting Game versus Trump on December 1, 2023 rejected Donald Trump's claim to absolute presidential immunity in a civil case, saying that while there is absolute presidential immunity in civil cases per the Nixon v. Fitzgerald case, Donald Trump's conduct on January 6th

and related there too, was in connection with election activity, which is not within the province of Article 2 commander and chief presidential power. It is election activity. And so I mention all of that to say that Donald Trump has now appealing, he's filed an appeal to Judge Chutkin's denial of absolute presidential immunity in a criminal case, which would layer on it these kind of two areas

of depriving Donald Trump rightfully so of any claim to presidential absolute immunity. One, Judge Chutkin's view that this is a criminal case, and former president criminal case equals no absolute presidential immunity. And then also you layer on that or below wherever you want to put it in your analysis, the December 1st DC Circuit Court of Appeals case, that Donald Trump's conduct was in connection with an election, and therefore it doesn't constitute absolute presidential immunity, even if you apply that doctrine

in a civil context or perhaps in a criminal context. In Donald Trump's notice of appeal and motion to stay, he tries to cite the blasting game case, which held he doesn't have presidential immunity by the DZ Circuit Court circuit quarter fields as a basis for seeking a Stay of all proceedings and he is basically saying right here to judge Tonia Chukkin look at what the DC circuit quarter of appeals said in blasting game They said that you can't get to merit space discovery and you can't have the proceedings take place until they issue an order

and you can't have the proceedings take place until they issue an order. Popo, that's not exactly what they said in the blasting game case. Donald Trump also cites this other case, a Supreme Court case called Coinbase versus Bielski, 2023 case back in June. That case did stay district court proceedings in an issue where the arbitrability of a contract was denied.

So that said, in a case involving arbitration where a district court denies arbitration, the district court proceedings should be halted until the DC Circuit Court of Appeals rules on arbitrability. So that's not in this context here where a DC circuit court of appeals has Look the DC circuit court of appeals has acknowledged the doctrine of arbitrability as has the supreme court when it comes to absolute Presidential immunity you have a situation now where the DC circuit of appeal says Trump doesn't have it in this Situation so it's very different than arbitration under in my opinion. But Pope, break down this notice of appeal. Break down if you can, the request for a stay. Donald Trump was saying here that he's gonna proceed

based on his understanding that he doesn't have to participate in the proceedings anymore, the pretrial motions, the defense disclosures, and the seat behind hearings and jury selection. He's is like I'm not going to participate in that and then judge chugging issued an order right away saying i'm doing expedited briefing you need to respond by this date about whether or not there should be a stay i'll hear from you i predict she denies that oh yeah i yeah we're we're in agreement on that so let me let me see if i can

break it down and and and do it in some sort of sequence here. So the we knew when we talked about it on legal a afflod that when Donald Trump filed this fuselot of five and six different motions motion to dismiss and motion to quash the indictment and motion for prosecutorial abuse emotion and this motion and that motion all fired late in the game months, months, nine months after he should have brought it in order to time it so that it would have maximum impact and destructive impact potentially on the March 4th, March 5th, whatever it is trial date setting for the trial. That's why

I did it. That's why I did it. That's why I did it so late. None of these issues were based on the discovery or documents that Jack Smith produced to him. So he didn't have to wait for it. He could have done it at the beginning of the case, but he wanted to time it till the very end so that if it got up on appeal, the appeal could could move March. And for Donald Trump, who's where he was playing a game of inches, the distance between March and November, right? He's just trying to close that gap anyway.

It can a day here, a week there, a week there, a month here, and suddenly you're in October. And then maybe you can get another extension and get it over. And now you're the voters are voting for you and you can try to stop the Prosecution in its tracks and that's what we're watching just to be clear You know, this is this is the Dakota ring we want everybody to have about what they're watching and so Chuck in has been judge Chuck in has done exactly what we thought she's done She's methodically gone through all of the motions and in very expeditious She moves at a velocity

that we're not familiar with, at least not people that have been following her, the parallel world of Aline Cannon in Mar-a-Lago land. But for Chutkin, she briefs quickly, she requires briefing quickly, and she rules quickly. And so the issue now is there's two basic pieces of paper that were both filed at the beginning of the week. One was a notice of appeal. It's a very simple document. It's actually a page long. And it just says that Donald Trump was appealing the motion

to dismiss that was denied on a muni and a presidential immunity grounds. That has a special quality that we'll admit to, we'll concede, because when you're talking about immunity, whether the president, ex-president has or doesn't have it, it's a fundamental issue that goes to the jurisdiction of the trial court to continue with the case. Has to be decided sort of expeditiously,

especially when you're facing a March trial date. Forget the fact that he filed it so late. He filed it late, but he filed it on time in the sense of he's not going to be barred from filing such motions as late as they are. But now we're dealing with it. We're dealing with it now effectively in December and January for a March trial date. So the appellate court, that's one, he then has to immediately ask, ask request, the trial judge, to stay her proceedings. Meaning, don't make any more decisions, don't make any more rulings. All the deadlines get a pin in them,

all the milestone markers. We stop, right? We come into suspended animation in the trial, while the appellate court gets its act together, briefs, and makes a ruling. You got to start with the trial judge. So they went to the trial judge, judge check it and they asked for her to stop everything at the moment that they filed a notice of appeal. And we want to have a decision in seven days. And she said, I'll do you one better. I'll order full briefing in five. And you'll get my end of my prediction as as yours is she's going to. So Sunday, she's ordered the Department of Justice to oppose the motion to stay. That's this coming. That's tomorrow. Tuesday, which is the 12th,

while Donald Trump is still on the stand in the civil broadcast in New York, that's flying again, his lawyers are going to be feverishly scrambling to meet a 5 p.m. deadline to file their reply brief because they get two briefs because they're the move it. And then she's going to rule or call or a argument. She can rule. She's a federal judge.

She's allowed to do that. Could be just hours after the full briefing. She could ask for a quick hearing on Wednesday, which we'll report on. And then we're going to get a ruling by Wednesday or Thursday, which is that week. And her ruling, I agree with you, is going to be denied because she's going to find, I believe, as do you, I think, that the appeal is, I don't want to say frivolous, but is not likely that Donald Trump will win on appeal to the DC Circuit Court, to the DC Court of Appeals for a number of very good reasons. One, he's wrong on the precedent, including Blazingham, whatever it's called, that just came out earlier in the week that was cited by the judge in this one, which talks about basically the world that not everything that a president does is covered with presidential

and cloaked with presidential immunity. Whereas they said in that case, a first term president trying to win a second term, not everything they do during that period is presidential. Some of it is admittedly campaign related. We don't see the role on Jan 6th of Donald Trump, quap president. We see him as Donald Trump first term guy trying to stay in office for a second term. And we're not going to extend the outer boundaries of presidential immunity that far in a civil liability matter. And that analysis got baked into judge

Chutkin's analysis, running through all the lines of cases and the Constitution and the purpose behind the legislative history behind all of these provisions to conclude rightly that there is for the conduct that's been charged in the indictment. There is no, could never be presidential immunity at this stage. Now could the facts be further developed, even even the blashing games case said, developed the facts more at the trial level, but we don't see it now, and we're certainly not going to stop the case from proceeding at all. So denied, but they did punt it to the trial court to allow these facts to be continued to be developed because something

could happen to trial. I guess change their minds or change the trial judge's minds judge Judge Mata. Same thing may happen here where no, we're not dismissing the indictment at this stage on presidential immunity. Here's where we think the box is for presidential immunity. You can try to develop facts, try to put it on a trial, make your motion again in the public record, and maybe come back up to us again. But right now, I don't see it. That's what she's going to say in denying the motion to stay, not because she's got it out for Donald Trump or she's the granddaughter of a Marxist or she's a Democrat. It's because he's wrong on the law and the facts. And so she'll rule that and then he'll have to run to the appellate panel. Now there was a lot of, I don't want to call it, misreporting, sounds harsh.

There was a lot of quick reporting that suggested that, oh my God, the sky is falling. The appellate court has set a briefing schedule and not even a briefing schedule, has set a time for Donald Trump to file the record in the case so far out in the appeal that it'll totally screw up March trial, not exactly. That is as we talked about it internally. That is a clerk-generated, auto-generated event calendar that says, you know, in the normal case, you're not dealing with an ex-president that probably tried to overthrow the Constitution.

You would, okay, you would, well, maybe right before Christmas, you can file your papers and bring your record over. Well, yeah, we're not in that world. And so once the panel is actually selected randomly and is in place, right, in panel, so to speak, they will get together and make a decision. I'm sure on the encouragement of Jack Smith to do this quickly and to have a quick briefing schedule. We have seen on Midas Touch, on Legal AF, on shows, me and you, Ben and with Karen, we

have seen when they want to, the DC Court of Appeals move with tremendous velocity and make decisions related to Jan 6 6 quickly with briefing schedules that take took our breath away when they want to drag their feet they know how to drag their feet to that's why blashing game took so long like two years before they finally issued their ruling but that's not going to happen here not with a trial not with the order that just came out that we talked about from another palette panel basically signaling you know like your hairs on fire, let's go.

We have a trial of a guy that's going to be up for election in November. And so by the way, that's not election interference. That's just the justice system doing its job. And so that's what we're going to see. I believe early this week, we're going to see the panel make a, in order, either suicide on day about briefing on their own, or they're going to wait for something like Jackson with the ask for an emergency expedited briefing schedule given the fact the trial is in March a trial that this last ballot panel that looked at it said yeah we got to keep the wheels on the train here for various other reasons and because as we've always said I'll leave it on

this the public has a place at the table in our system of justice, the speedy trial act and things that get public trials are not just for the defendant and the prosecution. It's for the people. As, and this is throughout, this is threaded throughout the opinion we just talked about with Judge Millett, the people have a place at the table to see things in the public about the trials that matter. And that's what we need the DC courts of appeals at all their different panels. That's what we need them to do at this moment in history.

And look, the December 1st DC Circuit Court of Appeals holding in blasting game. In my opinion does render Donald Trump's appeal frivolous or to borrow a term that was embodied in Blasting Game. On the outer edges of being very close to being frivolous here, Blasting Game reached the conclusion that Donald Trump was not entitled to absolute presidential immunity in a civil case because his conduct related to elections. And that's not within Article 2. You can't get more clearer than that. Oh, wait, you can. Dredge Ton, you chucking one step farther and said, you know what though? Not even that, the entire doctrine of absolute presidential immunity does not apply to former presidents in criminal cases. And she acknowledged, look, I understand why this doctrine

applied in the past in civil cases, in the nicks and cases, in the Clinton cases, and other related cases. But those same considerations about monetary damages and president or former president based on conduct during their term worrying about being sued for monetary damages. That is very, very different than when we're dealing with the issue of crimes being committed. So I expect special counsel Jack Smith to make a comment like this borders on frivolous because of the recent decision in blasting game, but we will see and we will keep you posted. I do want to talk about what's going on in Nevada, what's going on in Arizona, what's going

on in Wisconsin, where these fake electors are either being indicted or they are admitting to their crimes, a lot going on there, and then we'll go briefly and talk about what happened in the Colorado Supreme Court where Donald Trump's lawyers were arguing that former presidents or presidents or people running for the presidency basically have the powers of a dictator. There are no limits. Oh yeah, and they argued that Donald Trump never took the oath of a dictator. There are no limits. Oh, yeah, and they argued that Donald Trump never took the oath of office that and more when we come

back from our last quick break of the show. This show is sponsored by BetterHelp. Gift giving around the holiday season can be a bit stressful, especially if you're a people pleaser like somebody I know. But here's the thing, whether or not your family gives gifts during the holidays, you get to define how you give to yourself. And the holidays are a great time to do that. So whether it's by starting therapy, going easier on yourself during the tough moments, or treating yourself to a day of complete rest, remember to give yourself some love this holiday season. I've personally benefited from therapy.

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That's better H-E-L-P.com slash legal AF. We are back live on legal AF. Shout out to all of our pro-democracy sponsors, especially as everyone's thinking about gifts for this holiday season in the description below on the YouTube page and on the podcast You can learn more about the great discount codes for all those pro-democracy sponsors who help support this show Let's talk about what happened in Nevada and Wisconsin We know that there's also criminal investigations and other activity taking place in Arizona and indictments in Michigan, a lot going on here.

And prosecutors are really beginning to, I mean, beginning to, I think, show the fortitude that was expected of them as the statute of limitations is approaching and there's some put up or shut up moments with them. So Popak, take us across the country with some of the updates here as we're seeing now fake electors confessing as we're seeing those who aren't being indicted in some states. What's up here? Yeah, like we're watching, as we've said before, we're watching a criminal justice system and a civil justice system in the hands of attorney generals, prosecutors and civil litigants,

straining to try to map law onto Donald Trump's conduct and those that supported him, including the fake electors. And that's where we're watching the cleanup here in 23 and 24. Some of the attorney generals in Arizona, Nevada, Wisconsin, Michigan were a little bit delayed because they waited patiently to see what would happen with the JAN-6 committee and their work. And then Jack Smith being appointed special counsel and they sort of laid back. They didn't have to. There's no reason under their state laws. They couldn't have done things parallel, but out of respect, I think not wanting to be big-footed by the JAN-6 Committee or by

Jack Smith. They decided to lay back. But as soon as it was apparent, once we saw the contours of the indictment coming out of Georgia, which is a sprawling indictment that involves a lot of the battleground states that we're going to talk about here. And what Jack Smith did in a more narrow surgical, or another word for our show today, surgical approach to the same problem, right? Different ways to solve for the same problem of Donald Trump. We're watching it all writ large here in these various battleground states. Once they saw in the indictment from Jack Smith, four counts, just Trump, a lot of unnamed co-conspirators, fake electors mentioned as a pressure campaign, but not really the heart

of the indictment. And then it's only so far the Faudi Willis that she's gone pretty far can do from Georgia. She can't do better in Michigan, Wisconsin, you know, Arizona, and the like than they can do themselves as the attorney generals of those states. So we reported earlier in the summer about, okay, Arizona is up and running. New York, you know, the attorney general for Arizona is looking into the fake electors primarily. And the difference is that they're approached. And I think they're all modeling a little bit after each other, the blueprint here, whether it's Arizona, Nevada, Wisconsin, Michigan.

It's a similar approach, which is, let's go after the fake electors. Let's go after the elected officials that were co-opted by Donald Trump and followed their fearless leader into this morass, rather than the broader case of going after Rudy Giuliani, Donald Trump, Sidney Powell and all of that. And they've now had the benefit even though they started six, eight months ago, indictments are just starting to come out. First one out of the box is that six fake electors, all the fake electors in Nevada, including people that were at the very top of the food chain for the GOP for the Maga Republican Party in Nevada, including people that were at the very top of the food chain for the GOP, for the Maga Republican Party in Nevada, including one woman who was a delegate to the Republican

National Committee have been indicted in all of that in Nevada. Now, why? Why is it just now? Because they were waiting around to see if the dam would break and they'd get some good evidence of people that participated in low and behold, because all these pieces fit together. They're all working together, not literally, but they're all watching each other. Fawni Willis in Fulton County, Georgia,

tip of a hat, Chef's Kiss, was able to get a number of Trump lawyers to plead guilty to crimes including felonies like Ken Chesbro who along with Johnny Smith is the architect of the fake electors scheme. He as we reported two weeks ago got permission from Judge McAfee in Georgia to go on a whistle stop tour of different states that had fake electors and talked to people like prosecutors and attorney generals and testify before grand juries. And that's what he did. And the first stop on the whistle stop tour was Nevada. And then days later, an indictment came out

against the people there. And then similarly, he's cooperating with Michigan, he's cooperating with Wisconsin. So he's cooperating with the Department of Justice and Jack Smith. Now, I saw it interesting as I was reading right next to the article that we talked about, A16, the court now is the gag word of the New York Times added article about fake electors face charges with planner as a witness.

That's also not important to the New York Times. I'm going to send them a better help gift certificate about their problem with Trump. Why this stuff ends up buried in the paper. But here, they said that the lawyers for Chesbro to continue to try to protect him said, oh, well, the reason he pled guilty is not because the electors, the elector use is, is per se, unconstitutional or fraudulent. It's because the ones that he participated in in Georgia didn't have the legend on the certificate that said, these are only to be used if a lawsuit is successful. And these electors, therefore, become the real electors. We shouldn't have broken the glass and taken out the emergency pill here.

And that's why he pled guilty in Georgia because he had to because he was involved with that and the certificate was wrong. Yeah, right. That is not what he's telling these people in the secret grand juries. And it's powerful evidence against Donald Trump and the fake electors when you have the person who came up with the entire scheme, who then implemented the entire scheme around the country, help recruit the fake electors, guide them on when they should vote, how they should vote, what they should say, what the certificates should look like, and then

coordinate it along with others to collect the fake electors certificates, send them to the National Archive and use them in the halls of Congress to pressure Mike Pence and have them recognized. When that guy testifies, all these dominoes start to fall in quick succession. So we've got the indictment in Nevada. Arizona, not far behind. I'm sure there'll be the indictment of those people there as well. Michigan as well. And Wisconsin had a very unique approach to this. The attorney general's and the law enforcement people are still investigating the fake electors. But there's a group of regular citizens that filed a civil lawsuit

against all 10 Wisconsin fake electors, all of them, and sued them. And in order to settle the case, they entered into a settlement agreement. And in the settlement agreement, which we had our hands on, and I did a hot take on it, in the settlement agreement, they said, first and foremost, Joe Biden won the election. That was my favorite concession that they had to admit to, Joe Biden won the election. I don't know what we were doing when Joe Biden won the election. That's my favorite concession that they had to admit to Joe Biden won the election. I don't know what we were doing when Joe Biden won the election. That's one. Two, we will never be a Trump fake collector or real collector ever again.

Never. Two, that's two, three. We will be good boys and girls and boys, girls and girls. We will continue to cooperate with the federal prosecutors mentioned by name and the federal prosecutors and other investigations related to our conduct. Yes, we will. to cooperate with the federal prosecutors mentioned by name and the federal prosecutors and other investigations related to our conduct. Yes, we will. We'll do that too.

And we will never claim any kind of election fraud or that there was anything wrong with the integrity of the election in 2020 ever again. So help us God. Sign on the dotted line. And that and there we are. And that is now what they've agreed to to settle their case, making all those statements and public statements and admissions. That doesn't mean they're free and clear from being prosecuted.

I mean, it's a factor in their defense or in terms of mercy on the court, but they could easily be prosecuted. We've seen many examples of people that are sort of cooperating with Jack Smith, who were still being prosecuted by attorney generals or prosecutors in their state capacity. Fony Willis is still going strong against Mark Meadows when we think Mark Meadows hasn't kind of deal, but had a limited immunity deal at least with Jack Smith. And that kind of mismatch that we're watching that looks really messy to people who don't follow our justice system closely is a function of we have the interlay of the dozen often

match of a state court system, a federal court system, the role of prosecutors and attorney generals and local crime, federal prosecutors for federal crime, it constitutional issues, and then civil cases federal and state overlaid on top of that. And people are like, wow, it's messy. Yeah, it's messy. We're 50 states. We're a union.

We're supposed to be. But this was some of the, we're watching as the seams, the seams of the compromise that was made to put this country together in our system of federalism. And that's what we're watching. It's in a way, if it all works the way you and I and Karen think it's going to work, man, it'll be a beautiful outcome. It is horrifying to watch. It's like watching somebody on a tightrope without a net waiting for them to fall in any

minute. But if we pull this off as a country, as a justice system with all these constituent parts, then we should pat ourselves on the back to the justice system and the system of justice in our country held, even against the tremendous pressure campaign by Donald Trump. It's like watching a surgery, mid-surgery, once a patient's cut open, and you've got the

camera angle kind of looking at all the internal organs and the blood and all of that and not seeing it patched up. We're in that stage and it's so important that we collectively have the kind of understanding of civics of our judicial system about what's going on here. And that's why you and I are very critical of the fourth estate or what used to be called the fourth estate when New York Times puts these things on page A16 or A22. That should be front page news. This involves what's more important than the survival of our democracy. And like this should be front page news, Michael Pope, that Donald Trump's lawyers are putting

it in writing. They're arguing in their brief that Donald Trump did not take an oath to quote support the Constitution of the United States. That is in the summary of argument to the Colorado Supreme Court, then doubling and tripling down on that Donald Trump's lawyer went in front of the Colorado Supreme Court and argued that the Confederate president, Jefferson Davis basically would have been able to run for president and that the Democratic Party could conceivably nominate Obama for a third term that there really aren't limitations at all put on people when it comes to the presidency because Donald

Trump and Trump's lawyer argued a president is not an officer and doesn't take the oath to support the Constitution, so those limitations don't apply. How absurd and dangerous of an argument can you be? Can you get? Here's what the oath of office says for the presidency. Quote, I do solemnly swear or affirm that I will faithfully execute the office of president of the United States and will to the best of my ability preserve protect and defend the Constitution of the United States. So to argue that number one, a president who takes an oath to execute the office of the presidency is not an officer is utterly absurd and even

making that argument is totally in bad faith and to argue that that oath that I just read does not encompass an oath to quote support the Constitution of the United States is complete and utter garbage. And it should be front page news that Donald Trump's lawyer made that argument before the Colorado Supreme Court. It should be front page news that Donald Trump's lawyer argued that there are no limits, the Jefferson Davis example, the third term example. Those are red alerts.

And just to remind everybody, the lower trial court found that Donald Trump was an insurrectionist, engaged in an insurrection for purpose of the 14th Amendment Section 3. But based on this tortured analysis, found that he was not an officer within the meaning of the 14th Amendment Section 3, which states that no person shall be a senator representative in Congress or a lector of president and vice president or hold any office, civil or military under the United States who having previously taken an oath to support the Constitution. So I'll have engaged an insurrection or rebellion. The judge said because Trump's, because the presidency is not specifically mentioned in section 3, but

Pope, as you pointed out, the catch all is or hold any office. You take the oath of office that I just read. I mean, that's where people get very frustrated would be putting it lightly when it comes to how people manipulate law and language, but it is important that we make very clear how law, how language is being manipulated for these nefarious purposes. So people, the legal aephers, the mightest mighty mighty everybody can be armed with the knowledge to know when they're being gas-lighted. And that's why I wanted to close with just talking very briefly about what went down in

Colorado and just arm you with, that's the oath of office. This is what the 14th Amendment Section 3 says. And how and why this is not repeatedly front page news just goes to show you unfortunately how legacy media is is not doing its job and how and why it's so important that everybody watching this share this with people tell friends co-workers family members subscribe to this channel and let's just read it together. Let's just read what these things say and let's show you what the people are saying.

Popoq, I want to throw it to you for your analysis. Yeah. And a shout out to Legacy Media in other ways. We're not here to suggest that there's nothing good that comes out of what we refer to as legacy media. There's plenty of stories and analysis that I get or pick up in places like the Guardian or Bloomberg Law or different places because they've got intrepid reporters that are not responsible for what editorial page it ends up on of their paper, and are out there trying to break news.

Might as touch now, is able to break news because it's got people focused on these issues. But we rely on the news feed, so to speak, that comes from these kind of media, legacy media, original media. But that's not the criticism we're making, not that they don't serve a useful purpose.

It's that in certain ways, but whether it's on the publisher side or the editorial side that they are abdicated in their responsibility to bring to the surface and the way they prioritize things in their newspaper or on their feed, on their social media feed matters. And that's why we have, we think an open lane to do what we do. Colorado, I still head scratcher for me as to why, I mean,

I know why we're talking about it, but like why, why we have to talk about this particular thing. First of all, I'd be embarrassed if I were Donald Trump to argue his primary argument that you can't get me on this one, because I didn't take the right oath to support the Constitution. I'd be embarrassed to make that argument, but nothing in Paris is there's no every time I think we hit rock bottom Donald Trump and his lawyers start to dig and go beyond that rock bottom. So nothing surprises me. So, hey, I would never make the argument because it's silly. It's also silly and wrong headed from a legislative history standpoint. The reason that the trial judge got it wrong, which is why we're here.

She got so much right in that decision, but got it fundamentally wrong at that last moment. On the one inch line, she did not score the touchdown and fumbled and fumbled it out of bounds, fortunately, for the appellate court to pick it up, is because her analysis was, well, I looked at all the legislative history and there was an earlier draft of the 14th Amendment Section 3, and that had the president, and then they took it out. So they must have taken it out for a reason.

They just don't want the president. They don't want it to apply to a president. What? They took it out, and the next draft that they used to adopt added for the first time the catch all language that expanded the article 14, sorry, 14th Amendment Section 3 to all people who take a president, who all people who take an oath on office like the president to support the FENC, whatever you want to call your relationship with, the Constitution is, it all boils down

to the Miriam Webster definition of support. For the president, it's support plus. It's not support minus. It's more than support. Commander-in-Chief, Defend, Preserve, Protect, those are the things you can do in your office. Those are the trappings of your office. Everybody else, support.

It's all support at the end of the day. And that's what the briefing to the Colorado Supreme Court said. So it was sort of a ridiculous hair splitting, how many angels dance on the head of a pin type analysis. And she just got it wrong. I mean, there's another way to put it. So we knew the only issue that was framed

for the Colorado Supreme Court was because she already ruled that he was an insurrectionist. He did engage an insurrection rebellion against the Constitution. It's just that she said that doesn't apply to him, that particular provision of the Constitution. So that's the argument. The thing that I found troubling about, and you did a good report on it, and I watched it, with the live feed of the Colorado oral

argument, Colorado Supreme Court oral argument, is that they seem to be stepping the bucket again on an issue that somebody like Michael Ludwig, the lion of the Federalist Society judges of all things in a piece that he did about a week or two earlier, said, the lawyers and the judges are getting all of this wrong. The sentence in the, that you read out loud, man, in the, in the 14th amendment, is not engage in insurrection or rebellion against the United States, which would then have you start debating what happened on Jan 6th and was it an insurrection and were there pitch forks and how many people died, how many weapons were in their backpacks? That's not what it says.

It says against the same and the same is referring to the Constitution. So the proper reading of that sentence is to engage in rebellion or insurrection against the Constitution. And his argument, which is right, is that Donald Trump engaged in that type of insurrection or rebellion against the Constitution when he refused the peaceful transfer of power and every step of the way. Not Jan 6th particularly. There was just a lot of like oral argument about knives and weapons and backpacks and I like, this is exactly the rabbit hole. They were not supposed to go down. They should be focused on the Constitution and his constitutional duties.

The only thing I found was interesting. I don't know if you caught this, Ben, in the New Yorker magazine, they had a fascinating piece about Jefferson Davis and the trial of Jefferson Davis, and the author they are posited and it's a good thought experiment. If they had been successful in the trial against Jefferson Davis and having convicted him and a judge against him, we would be less squeamish as the people today about doing it against Donald Trump. Because Donald Trump is the first one in our history because of his bad acts. He's the first president.

Well, I mean, those would argue that Jefferson Davis didn't cover himself in glory into parting the union and becoming the first president of the Confederacy, but I put them both up on the Mount Rushmore of insurrectionist traders in my own view, as people know. But if we had been successful as a country to convict and find judgment against Jefferson Davis, we'd be let squeamish today about it. But there's no doubt, and this was in the legislative history that's at the core of this argument. There's no doubt that the people in real-time contemporaneous with Jefferson Davis, the trader, said that the 14th Amendment section three would

apply to him and should apply to him. So if we were to apply to him, how could it not apply to Donald Trump if he engaged in a similar act against the Constitution? I hope that the Supreme Court of Colorado gets it right on this particular issue. It's the last stop on the train related to it. I don't think there's a Supreme Court, US Supreme Court way to handle this, although I wanna hear your view on that.

But it's, we're on a knife sedge here with how this decision comes out. I didn't take a lot of confidence about how this panel, this August panel of Colorado Supreme Court justice is gonna rule this most important issue, having now watched Minnesota and Michigan at their highest levels punt on the issue and basically take themselves out of the running for making a decision in time for the November

election. I mean, if you go and look at Donald Trump's brief, it would seem to be an insurrection against the same refer to the Constitution by saying he did not take an oath to support the Constitution of the United States. I mean, again, I don't want to lose sight that that's actually in his briefing papers. And to your point, Popok, no court here on this issue wants to be the first. The important thing to also kind of reflect upon though is the courage of like Judge Tanya Chutkin in the in the DC federal case, the DC circuit and the balancing of like when Donald Trump is

trying to argue that imminent harm and imminent threat, clear and present danger for him to be gagged, basically requires somebody to be killed, right? And Judge Chukkin rejects that the DC Circuit Court of Appeals rejects that the clear and present danger balancing test requires that there be not, like someone actually getting killed. And I just think similarly, with all of these courts not wanting to be the first and trying to parse, oh, as an insurrection, this time frame and how many hours makes an insurrection.

And whatever their excuses are to try to avoid, you know, engage in kind of constitutional avoidance at this stage. The problem is, is that there is a clear and imminent threat to our democracy at this very moment. And courts need to meet this moment, even on issues that are novel. And I don't have to think it's okay for courts to try to punt it and parse words and gaslight us. But I also think it is important for an educated population or to let the courts know, to let the fourth estate know,

to let the world know how we feel about this. We all need to be armed with the data and information because the same way these courts are sometimes reacting to what they believe to be the pressure that could be directed their way by the want to be authoritarian, and authoritarianism and fascism really relies on this public perception of strength even when it's not there. The silent majority of Americans who support our democracies, support normalcy, who truly support the constitution not in some performative way, but in the real authentic way of life, that silent majority can be overpowered by these voices of relentless voices of fascism

and disinformation. And that's the point that we're on now in the law when it comes to messaging in general, when you have legacy media want to cover everything like, why do people feel the economy is not doing good when it's better than it's ever been before under traditional metrics? Well, why are you reporting on the counterintuitive way that people feel and create this kind of self-fulfilling feedback loop versus actually just reporting on what the facts are, that GDP rose 5.2% in the third quarter, that unemployment ticked down to 3.7%, that gas prices are down, that America has the fastest growing GDP of all G7 nations.

We just got to focus on the facts and be guided by the facts and not these kind of manipulated disinfo's trying to invoke feelings before factual analysis and data. And that's what we're committed to be doing here at Legal AF. Some of the analysis, when I gave you my first amendment analysis in the balancing test or when I gave you some of my perspective on these, you may disagree with it, you know, I mean, and that's perfectly okay, but let's lead with the data and that's what we're committed to doing here on legal AF. So Michael Popak, I know you're traveling. So I want to thank you for being able to

do this on your travel schedule. I want to thank all the legal a efforts. I want to remind everybody that are the links to our pro-democracy sponsors are in the description with the codes as well, the discount codes. You can go to patreon.com slash might as touch to support our independent journalism here. Go to store.mightestouch.com for all of the legal a f legal a f gear 100% union made 100% made in the USA rock that legal a f gear or get it as a gift for a friend or family member or someone that you know for this holiday season at store.mitustouch.com.

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