Legal AF by MeidasTouch - Trump PANICS as CRIMINAL TRIAL Approaches

Episode Date: March 14, 2024

Defense attorney Michael Popok & former prosecutor Karen Friedman Agnifilo are back with a new episode of the midweek edition of the Legal AF pod. On this episode, they debate: what the Georgia criminal judge’s dismissal of certain Trump criminal counts but not the underlying “overt acts” means and the prosecutors’s next steps; the “merits” of Trump’s latest attempt to delay the March 25 NY criminal trial with new defenses and immunity arguments; updates in the Trump Mar a Lago prosecution including a new mystery witness and long time confident of Trump providing bombshell new testimony about Trump’s use of deception to hide boxes from the government; Special Counsel Robert Hur’s Congressional hearing performance; and so much more at the intersection of law, politics and justice. DEALS FROM OUR SPONSORS! AG1: Try AG1 and get a FREE 1-year supply of Vitamin D3+K2 AND 5 free AG1 Travel Packs with your first purchase exclusively at https://drinkAG1.com/LEGALAF EarthBreeze: Subscribe to Earth Breeze today and save 40% at https://EarthBreeze.com/LEGALAF Reel Paper: Head to https://REELPAPER.com/LEGALAF and sign up for a subscription using code LEGALAF at checkout, and automatically get 30% off your first order and FREE SHIPPING! Lomi: Visit https://Lomi.com/LEGALAF and use code LEGALAF and checkout to save $50! 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

Welcome to the midweek edition of Legal AF. These are the things you need to know at the intersection of law, politics and justice. The Manhattan DA is getting ready, along I presume with the defense, for a March 25th jury selection and trial in the Stormy Daniels business record fraud hush money cover-up case. I'm going to come up with a shorter version of the title of that trial. But as expected and anticipated, Donald Trump has thrown a couple of attempted monkey wrenches into the works. One, a motion to dismiss based on immunity, even though he wasn't president yet. He was just candidate Trump running against Hillary Clinton when all these bad things

went down. And of course, he wants to find a way to, if he can't beat Michael Cohen, to use Michael Cohen and try to argue some sort of advice of counsel, but not really advice of counsel defense. Well, I want to hear about it all from my favorite former prosecutor, my colleague, Karen Freeman, and Nick Nifilo. Speaking of prosecutors, we were waiting for an order from criminal judge Scott McAfee down in Georgia, and we got one. It just wasn't the one we expected. We thought we were gonna get the order, and we still will probably later this week, about whether he was gonna disqualify Fonny Willis and her, I almost said boyfriend, and her friend who she works

with named Nathan Wade as prosecutors and maybe dismissed the indictment. Well, that didn't come out, but we did get an order, a very short one, a very powerful one and impactful on the scope of the trial that dismisses six counts of the indictment and two counts particularly of the indictment against Donald Trump, but leaves intact the other 35 counts of the indictment, including the major overarching sort of the driver of the indictment, which is the racketeering influence and corrupt organization or what we call RICO account. And all of the predicate or overt acts are still there, including the famous phone call that Donald Trump made along with Mark Meadows to the Secretary of State of Georgia. But the count that related to the phone call that Donald Trump made along with Mark Meadows to the Secretary of State of Georgia.

But the count that related to the phone call, the standalone criminal count, has now, for now, been dismissed. We'll talk about what the next steps would be for Fonny Willis and whether this order coming out now is a good thing for Fonny Willis, a bad thing for Fonny Willis in terms of her staying on the case, or neutral. We'll talk all about it when we get to that segment. And then we got to talk about Mar-a-Lago and new developments down there.

Bombshell, we got a witness who decided he wasn't gonna wait around to decide, you know, to figure out whether Judge Cannon was gonna release his name to the media. He decided to go to the media himself and go to CNN employee number five Who had been in the indictment? we weren't sure who that was but we do know who that person is now and they've all they've testified that not only were they a close close confidant employee of Donald Trump, but they

Moved unknowingly at least classified documents in and out of Mar-a-Lago loaded them into planes for Donald Trump maybe even containing nuclear secrets and of course there's also motion practice that Judge Cannon is gonna have to consider at an oral argument later this week we'll discuss that as well and then we'd be remiss if we didn't at least end the podcast talking about special counsel Robert Herr and his how do I put this nicely performance at the congressional oversight committee, where he had to defend, I guess, his statements in his report that he didn't

exonerate Joe Biden, he found Joe Biden did a number of things really wrong with his handling of classified documents. Of course, it did rise to the level of criminal deception used by Donald Trump, but he had to defend himself. Or was he used as a maga pawn and puppet? We're going to talk about it. We knew this was coming when we saw the report.

We knew there was going to be an appearance in front of Congress, and we knew people like Matt Gaetz were going to be an appearance in front of Congress. And we knew people like Matt Gates were going to be leading the questioning. We'll break it all down here on the midweek edition of Legal AF with two of hopefully your favorite anchors or two of your favorite anchors on Legal AF. I'm going to tell Ben you said that. No, two of your favorite. It's like, you know, there's only three of us. No, I'm kidding. Karen Freeman, Nick Nipelow, Michael Popak. Karen, how are you feeling, first of all? Much better. So I have a little coughilo, and Michael Popok. Karen, how are you feeling, first of all?

Much better. I still have a little cough, but I feel much better. Thank you. Good. And for those that tune in late or don't realize it, the wires and gates on the back of the window that Karen is operating from today does not indicate that crime has run amok in New York and look how she has to live. No, somebody wrote this in a chat once look how she has to live. Just to live with great grates, metal gates and grates

on her windows. And everybody was like, she's on the set of law and order where she's a legal advisor. And that is part of the set. Yes, this is part of the set. This is Lieutenant Kate Dixon's office. So it's the police station. It's played by Cameron Mannheim, who's one of the most interesting, lovely people I've ever met.

We chatted before on set and I learned a real interesting fun fact about her. She is fluent in American Sign Language and she became fluent in American Sign Language because she was walking down the street one day in her private capacity and she saw a horrific car crash and someone was injured and the police were trying to talk to the person and didn't realize that the person was deaf and she knew a few signs so she was able to translate. She actually went to the hospital and helped translate to be able to get the family's information, to notify the family, tell them that the person was okay.

She was so frustrated by her own limitations because she was not fluent that she went to school and became fluent in sign language and was a sign language interpreter actually for hospitals and courts, et cetera. She's completely fluent in American Sign Language. And I think that's so amazing and so excellent. She's an advocate for the deaf community and a real ally. So I'm honored to be in her office where she plays this amazing woman police lieutenant. There's many, there's many reasons I love living and working in New York. Stories like that is up there.

Just to end the bookend, I had a situation in front of our law firm here. We're in Murray Hill in New York, for those that know the neighborhood. And we had somebody that had some sort of seizure in front of our office last year, late last year, and ended up in the middle of the street seizing. Our staff ran out to help.

My paralegal office administrator was first on the scene. And while we were, and I came later, and while we were around this person trying to help them, having called the medical to come, ambulance at all to come, a car stopped and a person came over to also help. And that person was in full clown makeup and a wig, which made for a very surreal scene when the guy woke up

to see this clown person standing. But that's only in New York. I thought to myself, they're helpful, but this is also like a Fellini film. So that's what it's like living in New York. But I'm glad you're speaking of New York, good segue there, thank you. Thank you for that.

My Madam Prosecutor, let's talk about the Manhattan DA and everything that's happened since last midweek and last week in the case, particularly two things. One, you and Ben did a nice hot take on, which is the inevitable, as Ben predicted, the inevitable, let's try immunity here and try to get my 2016, when I was a candidate, conduct dismissed at the last minute and get the case dismissed at the last minute with the, we're in New York State courts here. So it would be the first department of the Appellate

Division right here in New York and Manhattan, and then up to the Court of Appeals, the highest court in New York State practice, and then other motions that are coming fast and furious by Trump's obviously panicked lawyers led by Todd Blanch and Susan Necklis to try to derail the case. With the preface that you're not on the case, you weren't on the case, you don't have any inside knowledge about the case, but 30 years in the office, of course, you picked up a couple of things. So tell us, tell our audience how you've envisioned what they're currently doing. Is it timely? Are they allowed to do this? And what do you think the end result's going to be on either the,

I relied on Michael Cohen for everything and for defense, and my indictment should be dismissed because I became president later. To quote my friend Michael Popok, let's unpack this question that you ask here. So we're on the eve of trial. And as we've been discussing on numerous Legal AF takes and podcasts, we've all been trying to determine how is Trump going to try and derail this case? How is he going to delay this case? Because we know he doesn't want to go to trial in this case or any of his cases. And as you rightly point out, Ben said, as soon as the Supreme Court on February 28th came down

with their agreement or decision to agree to hear the presidential immunity claim in the Washington, D.C. case, Ben said, that's going to be it. He's going to use the presidential immunity to say why he should be able to delay this case as well. And he waited two weeks to bring this. He could have done it right away, but two weeks in the world of law and order is an eternity when everything happens in one hour. But two weeks in the criminal justice system, which is quite slow, is actually not waiting that long. In this case, I would say it is a little bit on the eve of trial, but it's not totally unreasonable. And he's going to say that's why I couldn't have done it before because that's what's

new. What's new is that the Supreme Court granted cert. They're going to be addressing this issue about whether there's presidential immunity for a criminal prosecution of a sitting president, or I should say a former president, but for actions while he was sitting president. Some of this happened in 2017 in the Alvin Bragg case. And so he's asking, he's saying, look, if there's very important, this very issue that goes to the heart of this case, whether or not I can be prosecuted is right before the Supreme Court or, and we're going to have oral arguments April 25th. And they, it's on an expedited schedule. So they should be able to, they're going to be rendering a decision soon. So Judge Mershine,

let's wait for this. And so although I don't agree with it in any way, shape or form, and I'll explain why in a second, it's not one of his completely frivolous motions. This one has, unfortunately, some substantive merit. It's not sanctionable because it would be if it was completely frivolous, but it definitely pissed Judge Mershon off that he would make such a substantive- How do you know that? How do you know it pissed him off? Because he ordered, he rendered a,

he basically gave an order, a one-page court order that said essentially, hey guys, substantive motions closed February 22nd. You, uh, you should have done it by then. It's not like this presidential immunity issue was, is new. The issue has always been there. The only thing that's new is the Supreme court's hearing the case, but PS, he didn't say this in the order, but the PS, you withdrew your presidential immunity

claim over a year ago when you tried to remove the case in front of Judge Hellerstein. If you remember, Trump tried to get the case removed to federal court and drew Judge Hellerstein in the Southern District of New York. And during that removal proceeding, he lost ultimately because Hellerstein said this had nothing to do with your presidency. This was all

personal. And he withdrew. Trump withdrew, thus waived and is collaterally stopped from bringing up presidential immunity. And so I think Judge Mershon is going to ultimately say, you withdrew that and you're barred from it. But who knows what the Supremes will do because it's a very heavily weighted right wing MAGA Supreme Court, frankly. So who knows what they're going to do. But that's the one thing that could potentially derail this case. When we were discussing this way back when, and we were all taking bets on what's his delay tactic

going to be. I landed on, this to me was so ridiculous because even if the president, even if there is presidential immunity for official acts for things that you did while you're president, even though I don't think that's the way the law will come down, this was all personal. And Trump has said many times this was personal. It's only now that he's trying to make this official and presidential, right? This was, this was something he paid his personal lawyer back at and reimbursed him for paying off a personal person, you know,

Stormy Daniels, who he had sex with, he entered false entries into his personal Donald Trump business records. He wrote personal checks. I mean, yeah, he happened to be president at the time, but that doesn't make it a presidential act in any way. So this one of all the cases, I think even if there is presidential immunity, it won't apply here. But the question is, will it delay the case?

And that's what he's trying to do. And that's what I think Judge Mershon is going to try to stop him from doing. But we'll see. And look, his arguments in this motion were his old tired, recycled presidential immunity arguments that he has made in every other filing. The only difference is he had to go through many mental

and legal gymnastics to try to find a hook of how is sleeping with a porn star writing your personal checks to your personal lawyer and making false entries in your personal business, the Trump organization, in order to hide and obfuscate the payments so that no one would know that your purpose of doing it is so that this information doesn't get out into the presidential election.

So first blush, it's your personal stuff. Second blush, it's candidate Trump, not President Trump. And so how was he going to make a hook to say this was presidential and part of his presidency? And that's where I think the motion really strained any sense of credulity, because he basically said, Oh, well, I tweeted about it when I was president and the Twitter account was the official account of the United States presidency. Oh, and yes, I made statements that and those are tweets, by the way, that the prosecutor has indicated that they want

to use in their case in the trial. And he also said, also they said, the prosecutor said, a part of our evidence is we want to use statements that were made to reporters. And so he's and his response is yes, but I was answering as president of the United States. And this was the press corps, you know, the White House press corps. And so I was answering all their questions. So that makes it presidential. So it's sort of a ridiculous argument,

even though the concept of presidential immunity is not. But this is a delay tactic. This is not a tactic to try and substantively win, because you can't substantively win. It's a delay tactic. And so far, Trump is one of the luckiest people I've ever met in my life. I don't know how he keeps drawing judges like Judge Cannon,

how he keeps the Fonny Willis thing, how did he step into that mess? How did he get the Tonya Chutkin case, the Washington, DC case to get indefinitely delayed essentially is whatever. And then now this. So it's just, he's very lucky. Hopefully this case will go. but yeah, that's where we are with this. Right. There'll be full briefing on it. He'll take an appeal. It'll go to the first department. He'll lose at the first department. It'll go to the court of appeals for New York. He won't win at the court of appeals from New York. The question is whether it's going to delay the trial and whether there's going to be an automatic stay like it was for Judge

Chutkin because he raised presidential immunity. I don't see it here. I don't think it's going to be stayed. I don't think he's going to get an emergency stay from a duty judge justice that happens to be down in Madison Avenue at the first department court. And so, you know, it was a way for him to sort of take all the little elements of the prosecutor's case and try to spin it to his advantage. Are you going to use Michael Cohen or I'll use Michael Cohen? You're going to use election interference as your second crime for the felony? Then I'm going to use it as that I have immunity. I think at the end of the day, I don't see at all Mershon, the first level appeal or the court of appeals of New York, delaying the case to see what happens with the rest of the country and the world with

the Supreme Court's ultimate decision in May or June about whether Donald Trump or any occupant of the White House has immunity for criminal conduct while in office. I think where the Supreme Court is focused based on the way they framed that either a former president can't use the presidential immunity or they find that even if he could, things that are outside his official acts, which is really everything that's been alleged in the indictment in the DC election interference case would not be covered by any type of stretched immunity here, then there'd be zero impact. You don't have to wait around to see the results of a Supreme Court decision if it doesn't go to the heart of the indictment in your particular case.

And other than the fact that Donald Trump is on the other side of the V as a criminal defendant, there's really nothing else that would allow him to trigger. And as you properly pointed out, and as Judge Hellerstein noted, he waived and as Judge Mershon noted in his own order, he waived presidential immunity in the case. He had other types of immunity. He had other types of sort of structural, sovereign type arguments, but supremacy clause types arguments, but the one he's raising now has been waived.

So this should be a relatively easy thing. We move forward to the 25th. Let me get your view on trying to use Michael Cohen or an advice of counsel. And the judge being, the judge of course is the gatekeeper to keep out any harebrained defenses that don't have any support in the law or the facts and keep them away from the impressionable minds of a jury.

Jurors don't do this for a living. They're not legal scholars. They're everybody off the street that wants to do their civic duty and they're trained for that case and they're given the law related to that case. But you don't allow defenses just to come in and throw it up against the wall and hope that it'll stick if it doesn't have merit in the law and of course if the facts don't bear it out. So as the gatekeeper, what does Murchon do with this? Well, we're not going to use the advice of counsel and the classic advice of counsel, but we're going to mention that he relied on Michael Cohen in terms of structuring

these acts that form the basis of the indictment. What do you think Murchon does with that? So two things I think are happening in the DA's office right now. Number one, I would imagine again, without any inside information, that they are looking through their evidence and seeing how much do we really need these tweets and these conversations with the, you know, these statements made to the press that Trump is complaining about that's making, that he's saying is making him immune because if they can live without it, if I were them, I would say, you know what, I don't need this anyway. I don't need this evidence anyway, just to move the case along and not have it be derailed because look, you know, a trial is better. Having an imperfect trial is better than having no trial. So that's one thing

that's happening in the DA's office. And the other thing is what you just talked about is how are they going to deal with this advice of counsel question that they I'm sure are talking about. And that's a more complicated one because in New York and New York state cases, and that's all I'm talking about right now, not other states, not civil, not federal. It's very permissible when it comes to defenses because defendants have a lot of rights and they have the right to present whatever defense they want in a sense. It has to be legal and lawful. Certain defenses require notice ahead of time. If you're going to want to serve an alibi notice, if that alibi was known to you, if it comes up mid trial, that's one thing.

But if this alibi was known to you in the beginning and you were just hiding it to ambush the prosecutor, that would not be allowed. You have to give notice to give the prosecutor an opportunity to investigate and see if it actually happened. Another one that you have to give notice of is if you're going to try to be not guilty by reason of insanity, because that is a statutory right that would then trigger the prosecution's right to examine you and have you examined by doctors and experts, et cetera. So that is something you can't ambush or surprise the prosecution with and you would be precluded from that kind of defense. But squishier defenses, right, that you don't have to serve notice of, those defendants are pretty much permitted to give almost at any time because don't forget, the prosecution has the burden of proof and has the burden to prove the case beyond a reasonable

doubt. The defense can just sit there and do nothing. They don't have to open, they don't have to cross-examine witnesses. They don't have to put on a defense. And if they don't want to reveal what their defense is that they're going to be putting on, because they want to see how the evidence comes in and they want to just do that at the end and just say, okay, I was thinking of going with one defense, but I saw that the evidence came in differently. So now I'm going to scrap that and go with a different defense. They can do that mid trial whenever they want. And the question will be, does the advice of counsel doctrine or defense, meaning I was in good faith relying on Michael Cohen, I gave him all the facts, right? And he gave me an opinion that this was okay. And I was relying on him for this and therefore I should be, you know, I should not be guilty.

Will that be allowed as a defense? I think that defense will backfire here because it's not advice of counsel. They were co-conspirators in a crime. Michael Clone actually was prosecuted and pled guilty for that. You can't hide behind advice of counsel in order to preclude, you can't hide behind it to absolve yourself of responsibility. They were co-conspirators. They were criminal partners. And so I do think that's going to backfire if he tries to go that way. So we'll see how that plays out. I don't know if they've thought that, if the defense has actually thought that through because I really do think

they have to be careful there. Yeah. So we'll continue to follow everything that happens to be now on the 25th of March. For right now, it's all full steam ahead as far as I'm concerned to pick a jury on the 25th of March and Donald Trump can try all of his other things to try to delay, uh, Chuckin DC election interference case, which still has a shot, um, of being tried before the, uh, November 5th election, depending upon when the Supreme Court gets around after the April 25th, last day, last moment, last slot oral argument, um, when they actually issue their order. It won't be any later than June, but any earlier than that, of course, would help Judge Shetkin's ability to add another 89 days of prep onto Donald Trump's prep time,

which is where he was left at the moment. She stayed the case and get the case tried somewhere in the middle to late summer. As we look at things coming up next on the podcast, we'll talk about what's going on in Georgia. By now, I would have thought Judge McAfee, who is like Judge Cannon, a novice on the bench, has only been on the bench for a short amount of time. This is, of course, his biggest case he's ever handled. He's only been on the bench for a short time. He was so recently appointed that he's actually up for retention vote, kind of an election, down ballot from

Donald Trump come November 5th, as is Fonny Willis. I mean, law and politics often collide in strange ways. And he made a ruling not to set the case for trial, but still making decisions about whether any aspect of the indictment will be dismissed or go forward. And we'll talk about that. We'll talk about Mar-a-Lago and analyze what's happening there with new bombshell witness who's decided to step out of the shadows,

not wait around to see what Judge Cannon can and can't do next. But as we've given an interview to CNN, we'll talk about that and other motions that are up for grabs with Judge Cannon there. And then lastly, we'll talk about Robert Herr, special counsel appointed to get to the bottom, I guess, of what Joe Biden did with his several boxes of confidential classified documents that went out the door with him when he left the vice presidency. So this is all between

vice presidency and presidency. And if any of that violated any criminal laws and his testimony before Congress related to that. We'll get to all that. We got an amazing group of sponsors in 2024 here on the Midas Touch Network and on Legal AF and we've got a word from them coming up now. And now it's time for a brief lesson on the history of toilet paper.

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Thank you for that sponsor. We're back and I wanna talk about Georgia. So we were expecting that Judge McAfee today, tomorrow, Friday was going to rule on the issue of motion of disqualify that had been brought by Mike Roman and all the other defendants to get rid of Fonny Willis and Nathan Wade because they were or are in some sort of relationship, whether that started before the indictment, during the indictment, or after the indictment of Donald Trump, and whether there's an actual conflict of interest

or some other standard that he may use to dismiss her from the case. That's the order I thought we were gonna get. Instead, we woke up today to an order in which the judge, in nine pages or less, decided that six out of the 41 original counts of the indictment, including two against Donald Trump, didn't survive what's

called a demurrer or basically a motion to dismiss under Georgia procedural law. Not because the 100 page indictment, which we all have our dog-eared copies of here, not because it didn't have enough detail, it just didn't have enough detail, apparently related to one aspect of the standalone crimes against Donald Trump, particularly his phone call as alleged to Brad Raffensperger, Gene Sperling and others with Mark Meadows to try to find 11,785 votes to overturn the will of the people and make Donald Trump the winner in Georgia. That act, what we call an overt act towards the furtherance of a crime, which is at the

heart of the conspiracy, which is the framework, the driver for this indictment, but along with the conspiracy count that is still alive and kicking, along with 35 other counts, including the others against Donald Trump, there was also a couple of standalone counts by themselves for crimes committed based on that phone call and that behavior. Those as of right now have been kicked by the judge subject to some other conduct and behavior that Fonny Willis or whoever the prosecutor is can use to try to save them should she or whoever is the prosecutor feel the need to. What I wanted to do having now sort of frame that. So the headline is, all of the overt acts, including those related to the telephone call remain in the indictment, can be put on as evidence in front of the jury as part of the

conspiracy and some of the other claims or counts in the indictment. It's just when they were going to get to the point of instructing the jury about these other additional crimes for that particular act separate and apart from the conspiracy count. As of right now, the prosecutor wouldn't be able to put on that, have the jury instructed on that, or have the jury find those counts. Look, there's a reason an indictment comes down with lots of counts. I don't want to say it's overcharged, but there's 41 counts in here. It's a lot of counts. She only needs one to put the guy in jail. She proves Rico, the guy's going to jail, a guy named Trump for a long, long time. Now, having said that, there is, and I'll turn it over to Karen, our favorite former prosecutor, to talk about her view of it from an indictment standpoint, from a result

standpoint. But rather than have sort of a holy crap moment, like, oh, crap, some of the indictment got dismissed. They really wanted to focus on what did happen and what could happen next and what has been invited to happen next by the judge. And what will now go down in history is the famous footnote eight that I'll

let Karen talk more about. Karen, what do you think? So this was interesting because so far I have been impressed with Judge McAfee so far And I think a lot of people were a little bit skeptical because he's so junior and so green as a judge And he's been a decent judge so far in this case as a judge, and he's been a decent judge so far in this case, even though he's obviously a Republican appointee, et cetera. And he's made some pretty fair rulings up until the Fonny Willis Disqualification hearing. There, I think his inexperience really showed because he let the hearing become very undisciplined, out of control, and had a lot of irrelevant information come out and at the same time have almost none of the relevant,

potentially disqualifying information to come in. So that was the first kind of raise one eyebrow about Judge McAfee. And then this decision, I think, is raising the second eyebrow. I just disagree with his decision, but let's talk about it a little bit and talk about what he says and what he does.

So essentially, Trump and Giuliani, just to put it, kind of give context, used to be facing 13 charges each. Now they're only facing 10 charges each. It also reduced the number of charges for some other defendants, Meadows, Eastman in particular. This decision dismissing six of the counts doesn't weaken the case in any way. And the evidence still gets to come in of, so one of the substantive counts that was dismissed was about this famous call to Brad Raffensperger, the find me the, you know, whatever number of votes it was, a call. So that substantive charge is no longer a charge, but it is an overt act in the Rico case.

So it still will come in, the evidence will come in. But what he found was that six of the counts had to be dismissed because they were overly broad and too vague and that indictments are really for the purposes of double jeopardy in particular, need to put defendant on notice of what they're being charged with and what they're going to be convicted of so that someday in the future, you can't be tried again for the same conduct. Now I think it's very clear that this is specific. I don't agree with his interpretation here. And five of the six charges that he dismissed have to do charges

about violating the oath of office. Right. It was five five violations of oath of office plus the famous phone call. And the reason he found this lack of particularity or specificity that he claims did not inform the defense of the sufficient detail of what they were doing was they didn't mention which oath of office they were required to take. They didn't or which, you know, was it the state or federal oath of office, you know, when you swear and say, I promise to it's kind of like the Trump defense. Oh, I didn't, you know, I wasn't swearing to uphold the Constitution. It's just ridiculous, right? Which which oath to take. But then he said, Okay, but but the indictment does say which oath, okay, it does say that it was the federal and state oath that it was both, right?

So the indictment does specify it. But what he says is, but they don't say which term in the oath he is alleged to violate. And the reason I think it's wrong is they're not charged with violating the oath of office. They're charged with solicitation, right? They're trying to solicit someone to violate their oath. They're trying to get them to violate their oath. I'm sure they weren't, you know, the thing that bothers me about that is it's kind of like what's happening in the Bragg case, this argument that, you know, well, we don't know which crime, you know, the bump up to falsifying a business records requires there to be an intent to commit a crime there and which crime, which crime, which crime.

We don't know what's in the person's brain. We don't know which crime you were going to commit necessarily. We think it was either tax fraud or election violation. We know it was you were trying to commit a crime, but I can't tell you was it this one or that one, right? I'm not in your head. And the same thing with solicitation. You're trying to get them to violate their oath of office. And if I'm the person soliciting you to try to get you to violate your oath of office and by putting in fake electoral votes, right? I don't care if you violate the, I promise to uphold the constitution and do it, or whichever one you feel more comfortable, Mr. Criminal. If you feel more comfortable saying, OK, I'm going to violate the state constitution instead of the federal constitution,

I'll take it. Right. I don't care which oath of office you violate. Just I want you to violate an oath of office. And so you're trying to get them to do that. That's very different than proving that he did it. And because if you are going to charge someone with doing something, you have to prove that. But if you're trying to get them to commit a crime, right, and you don't care, you're

sort of agnostic if it's this one or that one or the other one, you just want the result, right? And to get to the result, you have to violate one of those oaths of office. Then to me, that's enough. But McAfee doesn't basically doesn't allow that. And so I just don't get it. I don't really, really get it. Anyway, so he he basically also talks about how you know, he just he uses the word generic, you know, that that to say you're violating your oath of office, that that's just too generic. Okay, I don't know.

That's where you feel like you're in bizarro mago world. Everybody knows what that is. And I don't think that's vague or going to implicate double jeopardy because one day you could be prosecuted for the same conduct for violating a different constitutional oath. I mean, it just makes no sense to me.

Let's do it a different way. Let's do it a different way, I agree with you. Let's do it a different way. Theft of honor service, which is another type of crime. Or when the reason that Donald Trump called Brad Raffensperger is not because he was citizen Raffensperger. He called Brad Raffensperger because he's the Secretary of State of the state of Georgia with power and authority over certain electoral functions of the state of Georgia with power and authority over certain electoral functions of the state, including certifying the election. He didn't just call a random person, he's going to go to the fold phone book and go, I'll call this guy and complain.

Call the person that held an office, who took an oath of office as they all have to, to uphold the integrity of the office. I mean, you can go through, you know, for Scott McAfee to say, there's so many things in the US Constitution, how are they supposed to know which ones they're... Okay. The oath of office is a concept of fair and honest service, a public service. And when you're trying to corrupt that, as has been adequately alleged in a hundred pages of the indictment, including 161 overt acts, I think you can put two and two together and that's fair notice for due process purposes to the criminal defendant. What do you think, what did you think particularly Karen? Let me just talk

about footnote eight, so as we wrap up this particular provision. So in the footnote, the judge anticipated and invited that there would be further litigation over this issue. He gave the prosecutor, whoever that may be, two choices. They can, within six months from the date of the order, which is six months from today, they can try to get a superseding indictment in Georgia, I assume by re-empaneling, although he says future grand jurors. Yeah, okay. Let's see, barring future, even if the statute of limitations has expired, the state receives

a six-month extension from the date of this order to resubmit the case to a grand jury. Oh and he's also, it's interesting, he also said in there that those grand jurors may not be publicly accessible as to their identity, which is interesting because he does know what happened with the last set of grand jurors under Georgia law, which required them to sign the indictment. And that indictment got out and they all got doxxed by MAGA and by Trumpers. He's basically saying, I got you on this one. You want to re-get a superseding indictment within the next six months? And you get it?

And you clear up this couple of issues that I think you have with this element of the crime, then I may actually grant the, or whoever would grant it, the permission to redact the name so the grand jurors don't worry about that. If she doesn't want to do that, he's also giving her the right with an immediate certification on his end to take an appeal to, which I assume would go to one level of appeal over Atlanta and Fulton County, and then up to the Georgia Supreme Court. So he knows that she's not gonna be happy with us.

The question I have for you as well is gonna be, is whether this means anything. Should we take anything from the fact that he did not dismiss the entire indictment despite the fact they asked for that in the motion to disqualify Phony Willis? Not doing that apparently. And should we take anything, any comfort, cold or otherwise, from this order to expect something one way or the other on tomorrow or Friday about Fonny Willis's continued

involvement in this case? What do you think? You know, I've been asking my friends, what do they think? What what tea leaves do they read from this? What does it mean? Right. What is he going to? Dismiss is he gonna remove the case? Why would he have done this if he's gonna remove the case? Why would he have not done this, you know, so I honestly don't know this one. This one perplexes me a little bit I think it's a good idea I think it's good that he's still doing this, that he's still making rulings about this case

with Fonny Willis. I think in my head, I wanna believe that if he was going to disqualify her, he would wait until a different prosecutor was on the case and then do this, or maybe he's just trying to wrap all this up. But if he's already made a determination that she's not qualified, that there's a conflict of interest,

how could he be making rulings about her case? I don't know. I'm trying to read the tea leaves, but I'll be honest. I don't know here. I really don't know. I'm a little worried, having gone down the rabbit hole, of watching almost the entirety of those conflict of interest hearings, that they clearly did not establish a conflict of interest. They just didn't meet their burden. However, the judge was very

interested in the concept of when there's an appearance of a conflict of interest that sometimes can be disqualifying as much as an actual conflict. And there is an appearance of conflict of interest here, because the MAGA right wing Republicans and the defendants and frankly, Judge McAfee, by allowing in all this extraneous, ridiculous evidence about a consensual adult relationship, and all the other stuff we had to hear about that he could find an appearance of a conflict. So that is the only thing that worries me having watched the hearings. What happens here though next if she does not get disqualified? I think she has a few choices, right? She can either go back into the grand jury

and supersede the indictment, shouldn't take very long, should happen actually quite quickly, but then that'll reset the whole motion practice. It definitely delays things because then they get to make motions on the new indictment and they get to review it and it know it just it just delays things. Or the other thing she does is she lets it go and just says fine I don't care I'll just I still get to use the evidence so I don't have these substantive charges.

Or the third thing is she could appeal it and again that would just delay things I think if she appealed you know I don't know I think the law is clear that he's wrong. I shouldn't say the law is clear I think there is a chance that he's wrong and so I think the law is clear that he's wrong. I shouldn't say the law is clear. I think there is a chance that he's wrong And so I think she has a chance of winning But so who knows what she's gonna do but those I think are her are her main choices and I'm sure they are Trying to determine right now exactly which way to go here Yep, and we're gonna watch it all right here. So We're gonna talk next about Robert Her, special counsel.

We're fair on Legal AF. We don't blow smoke or sunshine. If the Democratic president has a problem with classified documents not the same as Donald Trump, we'll talk about it. We've talked about it in hot takes. We'll talk about it. We've talked about it in hot takes. We've talked about it here on Legal AF. And as expected after he issued his report in which he went out of his way gratuitously, Robert

Hurd talked about the mental state or memory state of our president and as a reason, one of the reasons why he's not indicting, of course, that was going to be front and center and used and stretched and used by MAGA. It looked like almost willing Robert Herr, I want to get your opinion when we come back Karen, almost willing Robert Herr to participate in a kind of very unsavory way with the suggestions that were being placed in his mouth by people like Matt Gaetz. Well, you know, was the president being truthful when he said about the report the following? He said, well, it's not consistent with our findings. That's a lie, right? Yes, that's a lie. I mean, he didn't, I mean, the fact that he participated in this unseemly political theater in this way,

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So use earthbreeze.com slash legalaf. Right. We're back. We're going to talk about Robert Herr. We've had, I'll frame it. I want to talk about Judge Ludic who I interviewed recently He's becoming a semi regular legal AF which I

Appreciate and respect greatly because he's from the opposite side of the political spectrum always has been But you know in the way we do interviews whether it's your interviews that you've been doing or mine or ones have been have been doing We try to pull from across the political spectrum. We're not gatekeeping. We're not going, oh no, there's no litmus test here. Oh, you're not deep, deep blue. You're not progressive left. We're not interested. That's not true. We have to hear from all sides on the issues that sit at the intersection of law, politics, justice. And I had the pleasure of talking to Judge Lutig about the Robert Herr report just as it had come out. And that's the report for those that are just joining us late or didn't follow the story. After a year of investigation, the best Robert

Herr could come up with was there was a bunch of boxes in the garage in Delaware. There were a few files in a filing cabinet in Joe Biden's bedroom and a couple of other things that he thinks were mishandled. And in the course of interviewing, a willing participant in the interview process and Joe Biden, the opposite of the deceptive tactics that have been used by the former president Trump, the deception, the hiding of the documents. What we're going to talk about when we get to the Mar-a-Lago clip, the movement of the boxes at direction of Donald Trump, the attempt to hide the security footage, the instruction to lawyers to make top secret classified documents, poof, disappear before they were turned over or instead of turning them over to the National

Archive or to the Department of Justice or turn them over pursuant to grand jury subpoenas or search warrants authorized by magistrate judges. That's different than Joe Biden in packing up and leaving kept his diaries of written notes that he took in his conversations with the president at the time, Barack Obama, similar to what Ronald Reagan had done, I think they all had done some version of that, and took some other documents that he thought was important for posterity's purposes. And if he ever got around to writing a book, that's the worst you can say about Joe Biden. Is it proper handling of classified top secret

information? Probably not. Does it rise to the level of criminality with all of the willfulness that is required? No. And I think Robert Hurt could have said that in his report without having to go further to say that the president in his interviews came off as being having failing memory and on key issues. He didn't say senile, he didn't say dementia, but he came close about his interactions with the president in his voluntary interviews that were given, some of which were given during the start of a war between Hamas and Israel when the president, I'm sure, was otherwise occupied. And then in very personal discussions about the loss of Joe Biden's son, Bo Biden,

who, you know, I guess no parent has a favorite child, but let's be frank, Bo Biden was Joe Biden's favorite child. And he thought that was the one that was gonna be the president of the United States. And so that loss was tremendous after a series of loss in the Biden family life. And so that loss was tremendous after a series of loss in the Biden family life. And so that he got a couple of details wrong about that. I just think it was an unfair assessment of Joe Biden's candor and cooperation during that interview.

And it came up again during the quote unquote soft cross-examination, softball cross-examination by MAGA in Congress. Judge Ludig, who I alluded to, had his own comments when he heard about and read about what the special prosecutor had put in the written report. And we're going to play it now just to remind everybody where we were with that. And again, all I know is when I watched that 45 minutes, but I heard the most salient things. And in particular, there's, I guess, considerable discussion in this 315 page report, which again, in my view is an abuse of power,

pure and simple. But he goes on at length about the incumbent president's mental capacity in whatever contexts, all toward the end of concluding that Joe Biden should not be prosecuted. That's about as unseemly and an abuse, abuse of power, as I can imagine.

Now, your viewers should also know that I felt exactly the same way about the former FBI director, James Comey, when at the end of his investigation of the of Secretary Clinton, he did and said what he did. And then I thought it was very, it was very proper and astute political theater. This is going to be political theater.

Speaking of New York, in New Yorkers, what Representative Jerry Nadler did when he had her on there, because hers out there, right? He's out there with this position that he didn't have to take, as we just heard from Judge Ludwig, gratuitous commentary, where he became an amateur psychoanalytic expert about somebody's ability to recall and memory issues in contrast to what we saw up on the stage during

the State of the Union address with a fiery Joe Biden finally getting off the mat and firing back as he needed to. Jerry Nadler ran for her while he was sitting there, an amazing compilation of the other person that's running for the presidency, who's 78 years old, and his malaprops and inability to recall. Let's play that. Here, too, the record speaks for itself. One of the great memories of all time. James Webb.

I don't remember the names. I don't remember the name. Victor Orban. Did anyone ever hear of him? He's the leader of Turkey. By the way, they never report the crowd on January 6th. You know, Nikki Haley. Nikki Haley is in charge of security.

Three years lady, ladies and lady. How about that? Did you actually have a one-on-one with Comey? Not much. Not even that I remember. I like Biceros. We have languages coming into our country. We have nobody that even speaks those languages. They're truly foreign languages.

Nobody speaks them. Saudi Arabian Russia will repeat your call. I have a really good memory. Your next wife was a woman by the name of Marla Maples. That's right. Do you recall what years you were married to Ms. Maples? Um... It's called like up here and it's called memory and it's called other things.

So you don't remember saying you have one of the best memories? I don't remember that. And Putin, you know, has so little respect for Obama that he's starting to throw around the nuclear war today you heard that nuclear we have to win in November or we're not gonna have Pennsylvania they'll change the name I talked to Putin a lot did you ask him that I don't remember that I saw that this morning I don't remember asking him that question. I have a good memory and all that stuff like a great memory for 20 years they were fighting ISIS. I defeated ISIS in four weeks.

And we did with Obama. We won an election that everyone said couldn't be won. And I'm not cognitively, and you know what? When I am, you're going to enjoy it. You're going to be the first people. I know my people, you'll say, all right, Trump, you did a good job. Get the hell out of here. That's it. You'll say, all right, Trump, you did a good job. Get the hell out of here. That's it.

That is a man who is incapable of avoiding criminal liability, a man who is wholly unfit for office and who a man and a man who at the very least ought to think twice before accusing others of cognitive decline. All right, we're back. You read the report, you saw the testimony, you saw how it was used, and you saw the Democrats like Jamie Raskin and their Jerry Nadler

and the way that they cross-examined her. What did you make of her's use of that set of observations about Joe Biden? Was it necessary? Why was it in there? And what did you think happened with her in terms of covering himself with any glory during the congressional testimony? Look, the only person that we have to blame is ourselves for Robert Herr. You know, unfortunately, Merrick Garland has once again shown that he just doesn't realize

what game he's playing or the players who he's playing with. You know, Joe Biden is such a good person and such a well, nice, meaning person who wants to have everybody to try to work together and find compromise. But we don't live in that world anymore. And we don't live in that world now. But yet we still keep trying to play that game. And that's what Merrick Garland does over and over and over again. Why do I say that? Because they think somehow by putting in Robert Herr as the special counsel to investigate Joe Biden's handling of classified documents, just like when they had the special counsel, David Weiss, look at Hunter Biden, they're both Republicans, they're both Trump appointees.

And they think, oh, well, these are smart lawyers. If we put Republicans in here and they do the investigation, somehow that will bring legitimacy to the Republicans. No, it's like trying to have a conversation, a rational conversation with a psychopath. There's nothing you can do because the person is still the psychopath on the other end. And so why do we keep trying to play this game? It backfires every time and it's a train wreck, right? Whether it was Hunter Biden and now Joe Biden with these

two special councils. And these are just, it was a ridiculous Robert, this her special counsel was just, it was just a ridiculous, it was a ridiculous exercise in trying to make himself relevant. He did an investigation, he interviewed hundreds of witnesses he spent, I can't tell you how many taxpayer dollars to look into how, whether or not, whatever Joe Biden did by possessing some classified documents inadvertently by making a mistake was somehow equivalent to what President, former President Trump did when he took the documents. And then as we have now learned from Mr. Butler, who spoke to Kaitlin Collins on CNN that we're

going to talk about next, testified that on the same day that the DOJ and the FBI were coming to get the classified documents, that very same day, he was getting the car, the Cadillac Escalade, to move the bankers' boxes onto, to load it onto Trump's plane that he can take it to New Jersey. I mean, it's like, I swear to God, it's like a bad movie of a bunch of guys driving in these big SUVs. At one point they were talking about how Trump and his clown car family

showed up in one car and Mr. Butler had to put his luggage in his car. I mean, it's just ridiculous when you think about it as they're like piling like Beverly Hillbillies onto an airplane with all his stolen goods. Anyway, it's just so frustrating to me that somehow that is equivalent to Joe Biden having some inadvertent documents in his garage who then said,

okay, go ahead. Here they are. I didn't know I had them. I'm sorry I had them. I made a mistake. And, you know, intent for those people who didn't go to law school, intent is everything. Intent is the whole enchilada. Intent is what makes it the difference between a crime and an accident or a mistake. Okay? So the example I like to give is in a car crash, right? You have a car, it hits someone and kills them, right? Horrific. Well, you know, it's horrific no matter what.

And no matter what, it involves a driver, a car, and a dead body on the other end. Well, if the facts, if I add to those facts that the driver of that car was drunk and saw the person and said, you know what, I hate that person. I'm gonna go ram the car straight into them and kill them. Guess what that is? That's intentional murder.

If that same driver now was drunk and didn't see the person and was speeding and hit the person, that's manslaughter because that's reckless and they shouldn't have done that and they shouldn't have been drunk driving and speeding, but they didn't mean to kill the person, that's manslaughter because that's reckless and they shouldn't have done that and they shouldn't have been drunk driving and speeding, but they didn't mean to kill the person so it's not intentional murder, it's manslaughter. So let's say that same person was driving slowly, not drunk and not speeding and somebody jumped out in front of their car and was tragically killed and it couldn't be avoided. That's a tragic accident, not a crime at all.

Okay, so that's the difference right there. And it's all about you still have a person, a car, and a dead body, right? I'm sorry to be so graphic, but to me, that's the best way to describe this. And that's the difference between a crime and not a crime. You've got the same result, you've got the same people and the same actors, but intent is everything in the criminal justice system. Right? And so to compare the fact that two different ex presidents had classified documents in their possession and to not look at intent and to try to somehow make these the conduct equivalent is just disingenuous.

Okay. So let's talk about that. And so for her, for him to say Biden was not exonerated is just absurd, absolutely absurd. And that's what he tried to say. But that's all he had to say was there was no criminal intent. That's what a prosecutor would do, should do. And that's what's appropriate for them to do. And you know what, guess what? There's actual DOJ policies that govern this. You're not supposed to smear someone's, who you're not gonna charge with a crime. It's like important, not just because of Joe Biden,

but anybody, right? And as a prosecutor, you take that very seriously, that just the mere investigation, the mere accusation of something, even if you're ultimately acquitted, that could stain someone's reputation for the rest of their life. Oh, that guy, you know that he was charged with statutory,

you know, he was charged with statutory rape. Well, it turns out it was completely false and it was a lie, but he was still charged with it. You know, that can smear and stain someone's reputation for the rest of their life. So he actually had an obligation to come out and say he found no criminal intent, but instead, he decided to be partisan, frankly.

I don't know if he's auditioning for a future federal judgeship in a Trump presidency or what, but I think when he testified before Congress, I would describe that equally as either a trainwreck or a shit show, excuse my language. But whatever he thought he was doing backfired because he got it from both sides. Because you know why? He tried to have it both ways. And guess what? It wasn't enough because you can't. They aren't fair on the other side. They don't want the truth. They don't want facts. They just either you're part of their agenda or you're not.

And so they went after him as well because he didn't find there was a crime. Why? Because he couldn't. There is no crime. And so that's all he had to do. And he thought by throwing them a bone and repeating and parroting that same, you know, MAGA language that somehow Biden isn't fit for office. I mean, we all saw the State of the Union last week. I mean, he was incredible, right? He was absolutely incredible. Does he have a speech impediment because he's had a speech impediment his entire life. Yes, but he's incredible and he's brilliant and he's a good, honest person who doesn't try to pretend like he's something that he's not. And so whatever Mr. Her was, special counsel Her was trying to do, I think is backfired.

And he's just shown himself to be an illegitimate, just totally not coherent, fair special counsel, because it just, the facts did not bear anything out of what he was saying. And he put himself out there and stuck his, you know, you have to mind your own business, as my mom used to say, as a kid. I just am really appalled by what he did as a prosecutor and he's just politicizing prosecution. So that's what I think about Robert Herb. But I do blame Merrick Garland because, you know, that's number three thing that he did.

Number one was the Hunter Biden special counsel. Number two was this, but the original sin of Merrick Garland, I know you're looking at me like, why are you so fiery today and why are you so mad? I'm sorry, I have to calm down. But his original sin, Merrick Garland's original sin was not prosecuting,

not investigating January 6th from the get-go. And that's why we are where we are, because he's trying to be a nice, he's a nice person, but we can't, this is a war, we're at war. We're not, this is not a battle. Sorry. I like the piss and vinegar, Karen. We need to see more of that.

Not less. Look, from, just to be fair, I don't disagree with the Her report when it said that Joe Biden intentionally intended to retain certain documents so he could write a memoir. I'm sure that's true. That he intentionally intended to retain his personal diaries of notes he took

when he was in the West Wing and the Oval Office with President of the United States, Barack Obama. I believe he did. The other stuff that was sort of in his boxes that were packed up and not properly packed up, look, you have people that worked for him. I mean, yes, it looks like there's a little bit of fumbling and mishandling, but as you pointed out,

it has to rise the level of criminal intent. And that's where prosecutorial discretion comes in. And when you're writing a report to either recommend the indictment of then, what was then an outgoing vice president of the United States, now a sitting president of the United States, now a sitting president of the United States, or to exonerate him, it has to be one or the other. Then you have to be careful with your words and efficient with your prose and not set

yourself up unless you've invited it for some other reason to be used as a pawn by, as you said, Karen, the bad guys on the other side who don't care about facts. They just care about out of a 300 page report or whatever it was, you know, twisting, you know, well, not twisting, using a paragraph in there. He did not have to go so far as to say, another reason I won't bring the case is I don't think I could get the conviction with a jury because they would take pity on a then late 80 year old, because you'd have to wait till after the elect, after the this term to get the whole thing started, a late 80 year old person with failing memory in his

dotage. I'm like, really? You really had to go to that extreme to try to tie together your notes. I'm sorry that Robert Herr believed that he was the most important person in the room for the three-hour over two-day interview with the president of the United States during the start of a war and to take the Mr. Peabody way back machine to talk about all sorts of dates and deadlines and Joe Biden's life, including the death of his son and events around that. But he wasn't. Most important person in the room was the leader of the free world. And instant recall for somebody like that, regardless of age, can be difficult. I'm not sure Barack Obama would have passed the HUR test the way it's been described in the report.

It looks like a lot of gotcha, a lot of aha that doesn't go down to the basic concept of criminal intent, which is supposed to be the focus of the prosecutor's recommendation as to whether to prosecute or not. I think the Democrats did a good job. If they're going to get a gift of this type of hearing to use it to their advantage. Speaking of gifts, and the timing of them, somebody jumped out of the woodwork and decided he didn't want to wait around for Judge Cannon to decide whether his name was going to be released to the public. He decided to give

an interview to CNN himself. They have employee number five from the indictment who's decided to come forward and say, there he is there, say that he was involved with the movement of boxes. He didn't know exactly what they were, but he describes in vivid detail, moving them out of Mar-a-Lago at Donald Trump's direction, putting them in the SUVs, putting them in airplanes, going back and forth between Mar-a-Lago and Bedminster or New York. And all that came out, the timing of it, I think, is just exquisite. Right before the hearing, it's going to be this week, tomorrow in front of Judge Cannon about whether she's going to dismiss any aspects of the indictment

based on some of the arguments raised by Donald Trump and others about the appointment of Jack Smith and how his budget is being paid for, if that was properly done, and some other aspects, some vagueness aspects of the indictment they're claiming because well I had some type of security clearance when I left office. I had a acute clearance with the Energy Department. Also, there's a presidential records act law civilly. And so those two things create a vagueness in me about what I was allowed to do and not do. What does that have to do with the levels of deception and overt acts that are listed in the indictment and the use of the various employees at Mar-a-Lago to hide the documents from the government, from the National

Archive, from Donald Trump's own lawyers, and the counseling that went along with that. What does that have to do with anything? So Karen, what did you make of the testimony that's now come out on CNN? Take it from a prosecutor's standpoint about the strength of the case, impact on Judge Cannon. And what do you think Judge Cannon is going to do with our little crystal ball here off the hearing on Friday? Look, normally I would say witnesses shouldn't come out and go on TV, right? It would really bother me as a prosecutor. You don't want them out there.

He's not prepped, you don't know what he's gonna say. He can be cross-examined by his statements. But in this case, I give him a lot of credit. This was basically, he sees, this is just an average, regular person. He's not a lawyer, he's not a party to any of this. In fact, he was Walter, he was, Mr. Carlos de Oliveira's one of his best friends. He was a long term 20 year Trump employee. I mean, he's in the tent, he is in the, you know, he is in there, he is a very much a Trump person. Yet at the same time, he absolutely could not bear letting these facts not come out before

the election. He sees what everybody else is seeing, which is that this trial is never going to go before the election, that Eileen Cannon, Judge Cannon has absolutely no interest, even though she won't set a trial date and basically keeps that fake trial date on the calendar. But she hasn't ruled on half the motions that she's supposed to rule on. She hasn't ruled on her SIPA motions on what can happen with the classified documents. Obviously, if she rules against the government, they can appeal that. So that would take time. So she's just taking her sweet time on that and ruling on that. There's like half the motions that have been filed are still waiting to be decided

by her. And one in particular, the one that we're all waiting for to find out is the one that Jack Smith asked her to reconsider about revealing everybody's names because if she continues to require that, I'm sure Jack Smith will then finally move to have her recused and removed from the case because she's shown herself to be so impermissibly biased. But so he sees what the rest of us see, right? You don't have to be a lawyer or anybody else to see exactly what's happening. And he's like just a good Samaritan who says, look, it's time to come forward and let the voters see what they deserve to know.

And so I give him a ton of credit. He was only known to us as Trump employee number five before. And he came and he spoke to Caitlin Collins on CNN where I am a legal analyst. And, um, and he basically came out and said, first of all, it's not a witch hunt. Um, and look, these guys were my closest friends, Walter Nauta and Carlos de Oliveira and, um, and I was a 20 year employee and I unknowingly helped Walter 20-year employee and I unknowingly helped Waltine Nauta deliver boxes from Mar-a-Lago to his airplane in June of 2022, the very same day that Trump and his attorney were meeting with the Department of Justice at Mar-a-Lago about classified documents. I mean, the same day they were literally hiding them, moving them and secreting them away

from the Department of Justice, who was trying to get them back and maybe give Trump the benefit of the doubt that he maybe made a mistake the same way Joe Biden did. If he had just given this stuff back the way Joe Biden did, because it was an accident, and if he lied and said this was an accident, because we all know now that it wasn't, but if he had just done that and said, oops, I didn't realize that someone else packed up the boxes, we wouldn't be here. It's the fact that he tried to keep them and hide them and squirrel them away on his airplane. This is no different than any other criminal rushing and driving his car up in front of

his house and put the guns and the drugs and hide it, flush the drugs down the toilet and take the guns and the money and put it in the back of the trunk of the car and drive away before the police come. I saw this. My wife and I just watched again Goodfellas when they were trying to crack down on Rayleigh Caron. Yes, exactly. Exactly.

I know. I know. Exactly. And that's what this is. This is Goodfellas. But instead of drugs and guns what this is. This is good fellows. But instead of drugs and guns, this is classified documents. I mean, you can't make this up the same day, right? The very same day. I told, I used the metaphor analogy on one of my hot tags. It's not it's not the cookie jar. It's that you got your hand caught in the cookie jar. Joe Biden had

cookie jars. Trump had cookie jars, Pence had cookie jars, Obama, no Obama didn't have any classified documents. It's not that they have them, it's that they get caught with their hand in them and trying to hide them. Joe Biden didn't, her may not have liked the fact that he was, that he had memory issues, but he couldn't claim that Joe Biden wasn't forthright and open, it just opened completely transparent about what went down. The only reason that Kerr was able to conclude that Joe Biden intentionally kept his diaries

and intentionally kept certain a file of his about one aspect of the Obama administration policy that he disagreed with is it because Biden told him as opposed to this guy which is using all of his henchmen wittingly or unwittingly and lawyers and maintenance workers and ballet ballets and butlers to as you said to just you know try to hide the incriminating evidence from the government knocking on the front door. And then it's not even her how to say

that those two things aren't close. Whether any of this is resonating or vibrating with Judge Cannon, that is yet to be seen. The problem we're watching with our American justice system is that sometimes we have people in the positions of being the trier of fact or the judge in the black robe that aren't qualified by dint of their experience, their background, their temperament, or all three, to be making some of the most momentous decisions in our legal and political history.

I mean, we can't undermine, if the OJ Simpson trial was the trial of that century, then any of these trials of a former president for the first time, for criminal conduct, for the first time in our republic, pardon me, has to be up there. And who do we have making the decisions? Judge Chutkin, okay, 20 years on the bench, really seasoned, really experienced, firm

hand on the tiller, right? That's fine. We've got Judge Mershon, very well qualified, on the bench a long time in New York, very sophisticated. Judge Angoron, I don't think anybody, you might not like him, but you can't criticize his length of service or the sophistication of the cases that he's handled and how he handled those cases. Can't say the same thing for Judge Cannon, who was only on the bench six months, literally six months at the time she got the case. And most of that was during COVID, so she had very little in front of her in a sleepy

backwater division of the Southern District of Florida in federal court. And then you got Judge McAfee, who, yeah, I mean, on the day-to-day logistical stuff, we liked him. But frankly, he just got on the bench. This is his first major case. He had no other judicial experience. He's mid-30s, and we're watching. That's what we're watching.

So some people commentate, people in our chat and from around the globe that watch our show are often like, how did that happen? Why didn't you pick the most experienced, seasoned, sophisticated, and proper temperamented judges to be the judges for these cases? That's not how our system works. It's a random wheel. It lands where it lands, you know, unless you do a little federal court, in federal courts and state courts, some judge shopping, which is sort of coming to a close in federal court, fortunately. But that's it. And your Supreme Court is based on who you voted for for president

and who died or resigned or retired while that president is in office. Again, doesn't mean the rest of the world's always amazed. These are your two candidates for president. This is your Supreme Court. This is who you assigned to cases." And the answer to that is, yes, we're very messy as a constitutional republic. We really are. And we think that at the end of the day, jurors, because we have a tremendous jury process here, jurors literally take it off the street, selected to come in by an adversarial process, are going to reach the right decision in criminal and civil cases no matter how complicated and we're generally right about that. We want the Supreme Court, whoever is on there, to do what's right and consistent with America

and our values and our mores at a given time. and then those that are, that time can't change. There should be some fundamental rights that don't change depending upon who's got the numbers on the United States Supreme Court, like privacy, woman's right to choose, bodily autonomy, civil rights, and the like. That's what we believe. But then we see the disconnect, and especially when it's being filtered through people who frankly would be on nobody's short list. When the kids pick a team to play pick up basketball or baseball or whatever, and like, let's be frank, Judge Cannon would be picked last. Scott McAfee would be picked last for this type of like you got a major championship game. These are not the LeBron James and Steph Currys. These are lowlights maybe in 10 years,

15 years after they prove themselves. But this is our American justice system, right, wrong, or indifferent in all of its warts and all. You hear it from Karen as a former prosecutor, now in private practice. You hear it from me as a defense lawyer my whole, basically my whole career, although I've done a fair amount of plaintiffs work as well. But as people who have interacted with

and are officers of this court system. That's what we do here on Legal AF without blowing smoke or sunshine. I like the version that we had today of Karen I don't know what caused it she was coming off an illness. She's at the law and order set. I like this. This version of Karen. Oh, like it's like the football game fired up. Let's go. It's, it's partly that it's partly just, you know, I have to be honest, prepping for legal AF. I just it's getting hard to see the positive right, you know, sometimes it just gets very frustrating

that Donald Trump keeps getting so lucky, frankly, and that he keeps every no matter what we do and no matter what Everyone does he he gets people to do his bidding for him and it can just get really frustrating You know, I don't mind if we disagree I don't mind disagreeing with people but it has to be an honest disagreement, right? It has to be based on the same set of facts and and that's the problem when it comes to Donald Trump is we're not dealing with the same set of facts. And so it gets frustrating. So I apologize. I will try to rein it in and be less.

I don't apologize. That's the show. Well, I try, you know what? Yeah, but I wanna be more, look, it's important that people, I think it's important for people to formulate their own opinions, right? We give them the facts, we give them the information and they can formulate their own opinions, right? We give them the facts, we give them the information and they can formulate their own opinions, right? It's, it's who,

you know, who, who am I to tell anyone kind of anything other than... Your podcast host, that's who you are. I know, but I just, I think it's, I, I, all right, well, you got, you got what you got. This is the real me. Yeah. I mean, I, look, the point is I don't think people would tune in if we didn't take a position We we take what we think are reasonable analytic positions based on our positions, but I think today I was All right. I

Joke I joke when I do the legal AF after dark bumpers intros for those clips sometimes I I joke, I say, you like, you like shows led by lawyers at the intersection of law, politics and justice where they know what they're talking about. You've come to the right place. You know, we try not to be just empty suits talking heads, but we do have opinions and strong ones at that. Sometimes people comment, Polpac looks pissed today or something. I saw that today in a clip that's up now one of my hot takes. Pissed or not, I'm definitely intense.

Well, what's going on? We're not passive here. But we do try to provide, as you said, we do try to provide our unvarnished opinion, but supported by facts and explain it to you in a way that we think is right. Like all the headlines today, this is just to give you an example. All the headlines today on the Scott McAfee ruling on the motion to dismiss six counts of the indictment in Georgia were, victory for Trump,

six counts dismissed, setback for Fonny Willis or some version of that. And when you take the time as we do on this show to reread the indictment and my dog-eared copy and you get into the nitty gritty of the nine pages of the order and you look at the case law and you look at the footnote and you then take the plane up 5,000 feet

and look down and say, what is really going on here and what does it mean? You come out with a different presentation on purpose, but not because we're trying to shade it, not because we're trying to blow smoke or sunshine, it's just because we take the time to really get into it and then explain it to you. We're not about, as I joke with Judge Ludwig,

we're not about sound bites. If you want sound bites, this show would do terribly on TikTok. I mean, although we've had clips on TikTok, but our long format podcast that people are devoted to, our audience that we love and appreciate, who reach out to us in various ways and we tell them that every way that we can, it's not for everybody. It's not for the faint of heart. You're going to do an hour and 25 minutes, twice a week, of major legal and political issues, one place here on the Midas Touch Network. That's it. Everything else is going to be a three-minute, five-minute drive-by analysis by who knows what, except when Karen's on CNN. Who knows what? But here on this show, we decided we were

going to do the deep dive and see who was going to come with us. And that's why our audience, we were right, we built it and they did come and they come back week after week. And then in those hot take clips that we do along the way to kind of keep you up to speed during the day. So we've reached the end of another episode of Legal AF with my co-anchor, Karen Friedman-Ignifilo. We're gonna get together on Saturday, Ben, Mycelis, and me, and we'll pick up

for whatever happened from our live recording here forward. We'll probably pick up, for instance, just to anticipate Saturday. There's gonna be some new filings by the Manhattan DA's office in the Stormy Daniels trial case that we're going to be able to report on. There's going to be, I'm sure, pretty sure, Scott McAfee's, the judge's decision about whether Fonny Willis is going to be the prosecutor any longer. And we'll know the result, or at least the beginnings of the result, based on reporting

inside the courtroom of what Judge Cannon does in her courtroom on Friday with an early morning, 10 a.m. Eastern time hearing about some of the motions to dismiss that Donald Trump has ordered and Ben and I will pick up on there. And if it's really breaking, one or all three of us, we will jump on various hot takes between now and then. So until we come back together again for Legal AF and the various updates, we shout out to the Midas Mighty and to the Legal AFers.