Legal AF by MeidasTouch - Trump PUT IN HIS PLACE at Federal Trial and MORE

Episode Date: January 21, 2024

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/discuss: week 1 of the E Jean Carroll PUNITIVE damages case against Trump, with the Judge admonishing both Trump and his lawyer as E Jean and her damages expert take the stand; updates in the DC election interference case against Trump, as we await the the DC Court of Appeals immunity appeal ruling and Judge Chutkan denies Trump’s contempt motion against the Special Counsel; whether Judge Cannon is about to dismiss the Mar a Lago indictment as Trump pushes new and absurd legal theories; whether the Georgia election interference criminal case against Trump and his co conspirators is likely to be dismissed due to the DA’s relationship with her special prosecutor, and so much more from the intersection of law, politics and justice. DEALS FROM OUR SPONSORS! Miracle Made: Upgrade your sleep with Miracle Made! Go to https://TryMiracle.com/LEGALAF and use the code LEGALAF to claim your FREE 3 PIECE TOWEL SET and SAVE over 40% OFF. Beam: Get up to 40% off for a limited time when you go to https://shopbeam.com/LEGALAF and use code LEGALAF at checkout! 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! HumanN: Thanks to our sponsor HumanN! Get a free 30-day supply of SuperBeets heart chews and a FREE Full - Sized Bag of Tumeric Chews valued at $25 by going to http://legalafbeets.com SUPPORT THE SHOW: Shop NEW LEGAL AF Merch at: https://store.meidastouch.com Join us on Patreon: https://patreon.com/meidastouch Sign up for the MeidasTouch newsletter: https://meidastouch.com/newsletter 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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Call 1866 5313126-Hunter or visit connexontario.ca. Please play responsible. The week started with one of Donald Trump's lawyers, Joe Toccappina withdrawing as Donald Trump's lawyer from all of the cases that he was involved in. I mean, look, Toccappina was an actual trial lawyer who ruined his reputation

doing outlandish press appearances for Donald Trump, but a trial lawyer. Because then this week, we got to see someone who wasn't a trial lawyer, but who actually said that she believes that she is so pretty, that she can fake being smart. So I guess that's what she tried to do during this week's E. Jean Carroll defamation trial. She tried to fake it before the no-nonsense judge, federal judge, Lewis Kaplan. That was probably a big mistake. Alina Habba demonstrated incompetence. She was unlikeable. She couldn't do the most basic things at trial,

like introduce evidence, like show a witness, a document, establish a foundation. Heck, she didn't even know how to pre-mark exhibits and oh, don't get me started on her opening statement where she said that Eugene Carroll got what she wanted from Donald Trump. E. Jean Carroll wanted fame and Donald Trump gave it to her. We're going to break that down and more what went down during that first week of the defamation trial brought by, in the case

brought by E. Jean Carroll. Next, what's going on in the Washington, DC criminal case against Donald Trump that's being prosecuted by special counsel, Jack Smith? Well, federal judge, Tanya Chutkin, denied Donald Trump's motion for contempt sanctions against special counsel, Jack Smith. Trump was whining that Jack Smith and his team were filing documents in the docket while a stay was in place, even though Trump had no obligation to actually respond to those filings. And ultimately, Judge Chutkin said,

no contempt sanctions, but hey, special counsel Jack Smith, if it hurts Donald Trump's feelings that you're filing these documents, no need to file them, let's wait until the outcome of the appeal that is currently before the DC Circuit panel. We talked previously on legal AF about the oral arguments. No ruling as of the date of this

legal AF, but we expect one coming very, very, very imminently. We'll keep you posted. This is Donald Trump's frivolous appeal on the issue of absolute presidential immunity and what may be holding that up. What's up in Georgia in the Fulton County criminal RICO case against Donald Trump? Look, legal AF is not going too shy away from the accusations that are being made by Donald Trump's co-defendant and now being adopted by Trump and the other co-defendants, where they argue that Fulton County District Attorney Fawney Willis had an improper relationship with someone who's on her team, a special prosecutor on her team named Nathan Wade. And I think it's important that Michael Popak and I both give you our take here on Legal

AF. And finally, the Florida Federal Criminal case of Donald Trump's withholding of national defense information, Judge Eileen Cannon, still to this day has not made a substantive ruling. She keeps doing these like paperless scheduling orders, but she's going to have to make a ruling soon. I mean, there are so many motions and things before her now that are brought by the parties And this is what we've talked about how just like unorganized she is normally like judges would make ruling so that it doesn't all build up But she's got so many filings before her every one of them

She's likely to make a mistake. She's likely to make a mistake on, and then the parties I think are going to then, specifically Special Counsel Jack Smith, take out an interlocutory appeal eventually when that order is made. So that's on the docket in Legal AF, Michael Popak. How you doing? I'm doing fantastic. I binged watch the first season of Alina Habba, I'm doing fantastic. I binged watch the first season of Alina Habba, trying to learn how to be a federal trial lawyer in front of a jury. I'm fascinated by it. I can't wait for season two and it's renewal, which I think you'll have a couple of days next week. You and I, you and I have a lot to talk about there. And to hold another band of lawyers for Donald Trump, making a mess down in Mar-a-Lago. And of course, who can forget what's going on with the New York civil fraud case. And then you've got to talk about Fawney Willis. I think we will put it on the right perspective so people don't freak out thinking the indictment against Donald Trump is going to be dismissed because of any things she did off hours. I don't care where she grabbed a cocktail with one of the friends that she hired. I don't care whether that's here or in the Bahamas. I really don't care. And I don't think anybody

cares in terms of the indictment being ultimately dismissed or undermined in any way. It's Scott McAfee either. And so, you know, I think it's important that we talk about what are the allegations with Fawdie Willis and what do we think that's going to do with anything to undermine the indictment against Donald Trump in the 15 or so? Other people got a lot to talk about that. I'm really excited. So Popak, season one, was it horror? Was it comedy? Was it drama?

Was it, I guess we'll get into it all. I mean, I think genre. It was horror comedy. It's, it's, it's, it's hard to pull off, but it was bad. I just think it was a cringy reality show where people are basically put like in a deserted island and then have to fend for themselves and realize that they don't have the underlying skills to do so. Hunger games. He's the one that was taken out. Hunger games, that one that was taken out in the first second. Exactly. Exactly. Well, look, you know, look, we've talked about Joe

Takapina before, Donald Trump's trial lawyer in the previous Eugene Carroll case where Donald Trump was found liable for rape by a jury sexual abuse, but the judge has made clear that there's a technical Variation in New York, but it's the same thing as rape and defamation E. Jean Carroll was awarded back in May five million dollars Donald Trump is appealing that and by the way judge Kaplan And E. Jean Carroll's lawyers Roberta Kaplan no relation to judge Kaplan Both had complimented though

Joe Tacapina's trial skills. Joe Tacapina is a former prosecutor and was known as a pretty good trial lawyer, but not Alina Habba. We'll get there in a moment. But Joe Tacapina was never going to be the lawyer on this E. Jean Carroll defamation trial. He was only on the other E. Jean Carroll case, the appeal. And Takapeña was also the criminal defense lawyer in the Manhattan District Attorney case, which is still set for trial right now in March 25th. And we're going to, I'm sure, be talking more about that case in future legal AFs if the March trial date in the Washington D.C. federal criminal case appears that's going

to get pushed back but no surprises on that one getting pushed back based upon the appeal but Takapina also withdrew from the Manhattan District Attorney criminal case. So lots of people were saying you know was Takapina leaving because of a delay tactic? And I very quickly said, no, there's no delay. It wouldn't make sense that there would be a delay tactic because delay what? I mean, the Manhattan District Attorney criminal case isn't going to be delayed. Donald Trump has other representation like Susan Necklace there. And Takapina was not the lawyer on this case involving Donald Trump brought by Eugene Carroll. So it wouldn't delay this trial. But we now have,

I'll get your take on Takapina leaving Popak and then I'll let you jump right into day three or three days in the books in the Eugene Carroll defamation trial. There were so many procedural mistakes by Alina Habba, even before trial began, not asserting affirmative defenses, not disclosing experts on time, not challenging Eugene Carroll's experts on time. Donald Trump claiming that he wants to turn over, bring the dress into the other case, but never turning over

the DNA sample on time. Heck, Popak, even why this case, I think this should just be addressed quickly before tossing it to you, why this case is in federal court, E. Jean Carroll actually filed it in state court originally, and Donald Trump made the decision to remove it to federal court based on, first, a federal jurisdictional claim that the United States government should be substituted in instead of Donald Trump, and that failed. And then Trump basically became a resident of Florida, so there's something called diversity jurisdiction where a claim is more than $75,000.

And the parties are from different states. It goes to federal court. But Trump made that initial decision to bring the case to federal court to get the judge who he's now whining about. So I wanted to give that background, but talk to us about Takapina leaving and Popak jump right into Alina Habba's mistakes. What do you think of Eugene Carroll's testimony on direct exam? What do you think of the openings and where do we go next week where Trump claims he's

going to testify, which he always does and usually backs out. But what do you think will happen there? Break it all down for us. Yeah, I'll do it in reverse. This nine-person jury is going to rule for E. Jean Carroll for many reasons. When everybody, well, the lawyers stop talking and the jury is able to deliberate, they're going to award her a large sum of money, probably 10 million or north of $10 million, whatever Robbie Kaplan asked for, I think they're going to award her for a number of reasons.

One, as you alluded to, E. Jean Carroll, as she did in the first trial, is a heroine, is courageous, is a rape victim who tells her authentic story in a way that only she can. Sometimes it's tearful. Sometimes she has, she has maintained a sense of humor, which is remarkable, given what has happened to her, both being defamed, doxxed, attacked, the vitriol that's been directed her way,

the rhetoric that's been directed her way. You know, she's 80 years old. She had a career that was quite successful in New York. As a gossip columnist, then as an editor for Elle Magazine, and it's all in shreds because of an encounter she had with Donald Trump and her writing about it in an article. And then Donald Trump going off and not only defaming her both while he was president and after he was president.

This whole case is only about punitive damages. But as the judge has said in a prior order about a week ago, just before the trial, this case at its heart is about a rape of Eugene Carroll. And while he has gagged Donald Trump appropriately, blocked him from putting on any evidence to deny that he raped her, he is allowing because he said to Donald Trump when they were trying to preclude, for instance, the Access Hollywood tape from being played again. Well, what relevancy does it have?

Here, it's punitive damages. And Judge says, this case at heart is about a person who was raped, and we're not going to be able to get away from that. We're not going to get away from that. The jury is also, not only because of the facts and the law, completely on the side of E. Jean Carroll, in a way that I haven't seen in most cases. I mean, there's really not two sides here. There is. There's truth. There's facts, and then there's whatever Donald Trump and his lawyers are doing on the other side, which has nothing to do with any of that. Then the juries, and you and I have worked with juries a lot in our careers,

and I feel very protective over juries and the jury process. I cannot help but think that they have been insulted by Alina Hava They've been insulted by Donald Trump in the courtroom, which is the worst place to be insulting a jury before they deliberate we as Practitioners rightfully criticize what we observe For our audience as being poor trial skills and will you and I'll talk about it at length on this particular trial skills. And will you and I'll talk about it at life on this particular segment of it? And I want to put up something about her website, because if you looked at her, Alina Hobbes' website, you'd never hire her for a case like this based on her own representations of what she thinks her skills are. But when a jury sees the split screen of a skilled,

professional, sober, serious set of lawyers on the aging carol side led by Robbie Kaplan, Sean Crowley and the others. And they see Alina Habba and her eye rolling, her frustration, her, you know, the judge lecturing her about how to comport herself in court, how to be respectful in court. Don't call the judge, I never 32 years. I never called the judge sir It's either your honor or judge that I'm just usually your honor stand when the judge address you address the judge Stand when the jury enters the room. These are basics you learn this in moot court Competition your first or second year in law school and either she's doing it on purpose in order to get under the skin of Judge Kaplan

Which is one theory or she just doesn't know any better. But all that's doing for the jury is because that's all they have to do during the day from 9 to 4.30 is watch this television show. And they come away with thoughts and beliefs, and they're being insulted. And I think they feel they're being insulted by Alina Habba, who's not respecting their time and their commitment to their civic duty to render a decision here. When you show up for your job and you're not prepared,

it pisses off the other people in the room who have showed up for their job. That's one. Secondly, the acting out by Donald Trump, which started at the beginning of the jury selection, where he, in beginning of the jury selection, where he in to the in front of the jury while they were still being selected was jokey, you know, was was was the wrong level of hilarity about a solemn process related to a rape victim. You know, when the judge says to everybody, when he's trying to slim the herd a little bit

and get down to the group of jurors to be finally selected. And he said, who here thinks that Donald Trump, for instance, has been unfairly prosecuted or cases have been brought against him? And a couple of people in the jury veneer raised their hand and Donald Trump raised his hand, ha ha. The judge says, yeah, we know where you sit, put your hand down. But that only pisses off the jury and him speaking loudly so that the jury can hear

and criticizing E. Gene Carroll, his rape victim. It's not my opinion that she's a rape victim. This is a six-person jury already ruled that she was raped by Donald Trump as has the judge and the judge Has reminded the jury that day one when he instructed the jury about what this case was about and so for him in this federal case With a rape victim against him, right? Trying to get her justice for him to make jokes or to criticize her well now she's got her memory back Oh, this is all this is all lies. These are lies in ways that the jury can hear it. Right? You know, good on Shane Crowley and Robbie Kapler for calling that out. But the jury gets pissed off and annoyed at that because it looks like he is disrespecting in a misogynist way the victim of his rape again. And so, I don't know what they, I have, here's, I'll leave it on this, then I'll touch on Tech-O-Pita just for one second.

You've heard me say this before, Ben, off camera and hot takes. Donald Trump knows he's gonna lose this case. He's just getting his money's worth. He knows he's gonna stroke a check for 10 or 15 million to go along with the five million. He's already has to pay her. And he just thinks, you can't pay for this kind of of publicity in his MAGA world, in his MAGA world, him fighting with the judge, right? No, you're, you're, you don't have patience or you, you know,

like, you know, I know you want me to exclude you from this trial, Mr. Trump, because you can't control yourself. No, you can't control yourself. I mean, that's just playing to another audience has nothing to do with this courtroom. And he's gonna get his money's worth and his pound of flash on the way out, even if it means trampling over E. Jean Carroll's rights. And even if it means amping up the jury to stroke a big check.

Takapina, as I joke, just got behind a blast shelter because he knew this case was gonna go South quick. We knew he was gonna be gone. Even, I know in December, Trump made a comment about, Joe should've let me testify. That's bullshit. Donald Trump was never going to testify.

Joe Takapina told the judge that I have no control over my client in the first trial. I'm sorry, judge. You know who I represent. And that was not a decision made by Joe Takapina. It was either Boris Epstein and or Donald Trump made the decision for him not to testify, as if being in the courtroom is any better for him

Which it isn't the way he performs. So Takapina who? Didn't do well even though he knows what he's doing in a courtroom He did not do well in how he cross examined E. Jean Carroll And I think the jury made him pay for that and some other strategic decisions, but he he came into that case strategic decisions, but he came into that case 90 days before the trial. The two years prior to that were all the screw ups that you touched on, Ben, that Alina Hoppe had done in the first trial. The DNA evidence issue about the coat dress for Eugene Carroll excluded because of Alina Hoppe.

Experts excluded because of Alina Hoppe. The choice of venue, as you said, federal versus state, Alina Habba. And so he's left with this four-person shop in Bedminster, New Jersey, that's all that's willing to represent him in matters like this. And I'll leave it on this. When you look at Alina Habba's own website, she has a description of what she does for a living. First of all, they say they do insurance defense work.

And then insurance defense work means you do anything from slip and fall to products liability cases for insurance companies at very low hourly rates. And that kind of keeps your lights on, but it's not a firm you would go to to represent somebody like this in a matter like this. And more particularly, here's Alina Hobbes' description of her own trial skills from her own bio. So you think she wrote it. This must be the best that she wrote it, this must

be the best that she's got. Right. Okay. Here's what she wrote. Alina Habba is currently the managing partner of that law firm. Alina has experienced in many areas of litigation, including but not limited to corporate litigation, commercial litigation, family law, and construction related matters. And then she gives an example. She says she serves as lead counsel for numerous newsworthy cases, including a federal class action suit against a New Jersey nursing home accused of various negligent acts, including storing 17 bodies in a storage room during COVID, okay?

A civil lawsuit against the municipality for permitting the systematic rape, she says systemic rape, of numerous children perpetrated by a town employee, and she lists that case, it's ironic. And most recently, Trump versus Mary Trump and the New York Times, where she and her client just got sanctioned half a million dollars Because they shouldn't have brought that case under New York's anti slap statute, which was amended because of Donald Trump

That's the best that she's got so are we surprised and Donald Trump doesn't care I'm gonna leave it on that Donald Trump doesn't care who's representing him in these trials I'm going to leave it on that. Donald Trump doesn't care who's representing him in these trials. He just wants a good news show for him when he's campaigning in New Hampshire, Iowa, and on Super Tuesday. That's it. Look, Alina Habba's gotten paid close to $3 million from Donald Trump's Packs. One of the reasons Trump doesn't care and ain't coming out of his pocket, he's going

to the MAGA people asking for money and then giving it over to Alina Habba, also Alina Habba, in addition to her fees for about $3 million. You mentioned the New York Times case where I guess she had this idea, well, if we don't sue the New York Times for defamation, but we call it tortuous interference with contractual relations with Mary Trump and Mary Trump's deal. Then we can get around New York's law that basically says these types of suits are subject to an anti-slap statute and can be sanctionable. And very quickly with New York Times with good lawyers, tape said, look, your honor, she's trying to just do an end run around New York statute by calling

her case something else. But her case is clearly within the purview of the law that says this is an improper type of case to bring against a media company. And there, Lena Habba was sanctioned in the form of attorney's fees or Trump was under New York's anti-slap statute for pursuing a kind of patently frivolous case. And that was about $400,000, $500,000. And she was sanctioned in the other case before Judge Don Middlebrooks in the Southern District of Florida, about a million dollars for bringing a patently frivolous RICO case against Hillary Clinton and dozens of other defendants who all brought

a sanctions motion and it was granted. And then Alina Habba gave a speech basically bragging about being sanctioned before one of these right-wing groups called Turning Point. I just want to get a little granular with what went down in the trial, the E. Jean Carroll defamation trial. So, opening statements took place. Alina Habba's opening, she said that E. Jean Carroll got what she wanted. Donald Trump gave her fame. She's more famous than ever. She should be happy that Donald Trump did what he did to

her. Words to that effect. And the other thing Alina Habba said is that E. Jean Carroll was under a duty to mitigate her damages and go out there and try to somehow reduce the harm that Donald Trump caused her. And when E. Jean Carroll gave interviews with places, and one of the places that was actually mentioned in the trial was Midas Touch amongst New York Times and others was part of this case, that E. Jean Carroll was exacerbating her damages and not mitigating her damages was one of the arguments that was made there. The lawyers for E. Jean Carroll argued in their opening statements, ladies and gentlemen of the jury, as jury selection was taking place, Donald Trump was posting about E. Jean Carroll and further defaming her.

And 22 times while you were all being selected, ladies and gentlemen of the jury, Donald Trump was posting over and over and over again about E. Jean Carroll. And throughout the trial, Donald Trump's posted close to 60 or 70 times about E. Jean Carroll over and over and over again. He gave a press conference after one of the days of trial where he further defamed Eugene Carroll and so that's becoming real time evidence in the trial. I've never even seen that before where a case is taking place and the defendant is literally generating the evidence against them in real time post.

I want to show you this document and Eugene Carroll's lawyers are showing what Donald Trump is doing. And their opening theme was how much money is it going to take to make him stop? And you're going to have to assess that in punitive damages to make him stop tormenting his rape victim. Then you had Eugene Carroll take the stand, a very kind of workman-like direct exam by Eugene Carroll's lawyers, with Sean Crowley, who just kind of walked her through, and Eugene Carroll, you know, basically explained how everything was taken away from her. And then

even after she prevailed in the first trial, Donald Trump further defamed her. Then Alina Habba would just start like reading from like paper and like not even exhibits and that's when the court would be like, what are you reading from Miss? Like what are you doing Miss Habba? Is that an exhibit? And Alina Habba is like, I'm trying to get it in. And the judge would be like, what do you mean?

What are you trying to get in? Like what do you even talking about Miss Habba? I'm trying to get this document. Well show it to the witness, ask the witness if she recognizes the document, and then we can see if we can publish it before the jury. Have you seen this document? And then the judge would say, Ms. Habba, what document number is this? What are you talking about? Ms. Habba, did you pre-mark your exhibits because we need an exhibit? We need exhibit

numbers in federal trials. And then Alina Habba would be like, no. And then the judge would say, all right, let's take a break. Ms. Habba, please refresh your recollection on how to introduce evidence in a federal trial. We'll come back here at 3.30 or whatever it was. And that happened multiple times. Also, Alina Habba would do that thing that, you know, I think Judge Ngoran, who's a great judge, would just, and because that was also a bench trial, not a jury trial, the New York Attorney General civil fraud case, would let Alina Habba just kind of go on and on and on and kind of argue, but, you know, and just say things even after a ruling was made. You know, but here you would have Judge Lewis Kaplan say, Ms. Habba, sit down.

When I make a ruling that's final, you don't keep on talking. What part of sit down do you not understand? Sit down right now. And Alina Habba would say things like, well, I don't appreciate you talking to me like that. No one talks about it. Just sit down. And the judge would say it like that.

And that's what would, and then she would sit down. And Alina Habba would go, objection, objection. And the judge would say, in federal court, when you make an objection in my courtroom and all court, you stand up, you address the court, and you say objection. Well, one bit of clarification. One bit of clarification, all courts. I mean, keep saying federal court,

but every court you gotta mark your exhibits. Every court you have to stand up for the judge. Every court you have to make proper objections. They may be a little bit different But I know why you're emphasizing federal court because she has this is now the major leagues of court of court process And she's failing me. I mean look sometimes state court arbitrations, you know a little bit loosey-goosey I've had situations where you know a state court judge But but yes, you should as practice practice, always stand up, conduct yourself in a way that reflects respect for the court.

Then Popak, just going back what I said there as well, one of the things that Alina Habba told the jury is that a key element that E. Jean Carroll has failed to show is that she has failed to mitigate her damages as a rape victim. She has failed to then mitigate the constant defamation by Donald Trump. And then at the end of the proceedings on the third day, Judge Kaplan was like, can the parties please just submit like a letter brief to me because Alina Habba is suggesting that New York law requires a duty to mitigate

malicious defamatory statements. The judge says, I get in other contexts, there's a duty to mitigate damages. For example, if you are injured in a car accident, you go and you need treatment, you go and get treatment at a hospital. You can't just go home, develop an infection, and then never get treated and say, oh, now my damages are for all of this when you could mitigate. I'm giving that as a basic example of kind of tort law. But the judge was saying, that may make sense in those contexts, but here in a defamation case where you're intentionally defaming a rape victim, that doesn't seem like that would be the law. Ms. Habba, you're very confidently saying that's the law,

but I don't think it is. Popak, I want you to address that question. I know you're eager to, but we gotta take our first quick break. And when we come back, Popak will address whether or not there is a duty to mitigate intentional defamation in the state of New York and more. Let's just take our first quick break.

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to mitigate those damages. Is that really what the law is? So Popak first addressed that. And then next there was this other issue because Alina Habba then brought a motion for mistrial even though the judge denied Alina Habba bringing this motion for mistrial multiple times already in court and told her stop it I've already ruled to miss Habba Sit down

Do not sit down do not bring this motion for mistrial anymore. Alina Habba thought she had this Perry Mason moment during the cross-examination of E. Jean Carroll, where E. Jean Carroll basically said that she doesn't, every time some random person threatens her life or directs a death threat towards her, she doesn't save it sometimes. Like, if in her reply, someone says something disgusting to her, she'll delete it. Or if she gets an email that's threatening her life, she doesn't go, you know what? I need to put this on my wall. And then so Alina Habba, who doesn't understand what spoliation is and how spoliation really just has to be at the kind of core fundamental issues of the case

where somebody intentionally and maliciously is destroying documents to try to like defeat a key element in the case. And by the way, all of those issues would normally be fleshed out in the discovery process through motions not in trial. So Alina Habba made a motion for Ms. Triallenge. She's like, no, just sit down. So, Pope, those two issues, you can address them in either order. All right. I'm about to put them together. If Alina Habba, if Eugene Carroll, instead of hitting the delete button and getting rid of some of these tangential issues of people attacking her and calling her bad names and making her feel bad about herself if she had instead kept them and continued to look at them and dwell on them and it impacted her emotional health and Alina

Habba would be arguing that she didn't mitigate her damage because she should have erased them rather than continuing to look at them, which made her injuries worse. I'm just giving you what Alina Habba would say. So let me take the law that was incorrectly instructed to the jury by Alina Habba in her opening, that now the judge is gonna have to, I'm sure we're gonna get a ruling this weekend or on Monday before trial starts, the judge is gonna have to fix with what we call a curative instruction to the jury,

which is gonna go something like this. Do you remember in the opening statement when Ms. Habba stood up and told you that there was a duty to mitigate damages on behalf of the rape victim. In this case, the plaintiff, E. Gene Carroll, do you recall that? And they're going to nod because everybody nods when the judge asks them something and the judge is going to say, well, a couple of things I need to tell you. One, I am the law giver in this case.

That's what I get paid to do. And you were only to take my instruction about law and defenses and their application in the case. They'll go, thank you. And then secondly, this concept of mitigation of damage, suggesting that Ms. Carol had some obligation or burden to prove to you that she's found a way to lower the damages she's suffered emotional in others by on the hands of Mr. Trump is a misstatement of the law in the state of New York She does not have that burden. She does not have that obligation everything that Miss Abbas said to that regard should be completely

Disregarded because she was wrong. I'm not kidding There's gonna be a curative instruction like that and the jury is gonna be like me I knew that person didn't know what they were doing back to pissing off the jury when you're not professional while they're trying to do Their job and so well, how do we know that Alina? know what they were doing, back to pissing off the jury when you're not professional while they're trying to do their job. And so how do we know that Alina Hoppe is wrong? I mean, it's not just us, you know, having fun at her expense on the show. Although we do have a lot of fun at her expense. We've got a serious matter here with a lot of gravitas and a lot of, you know, solemnity

when you're talking about a rape victim. And so if you're going to look a federal judge in the eye and tell the judge that with confidence that you're right about a defense, then you better be right about a defense. Now, one of the things that Robbie Kaplan pointed out, the lawyer for Eugene Carroll, is that this was never raised before the trial. And that as the judge has already noted in the prior case, because remember, we had a prior case. Because remember, we had a prior trial. It's very rare in life that in the same year or the same one year, you know, one year period,

you have two trials of the same parties arising out of the same virtual incident at its core, which is a rape. That doesn't happen. But if you have the benefit of having that happen, then you better, you should learn from your mistakes in the first trial if you're the, in this case, the defense because you lost. And the plaintiff, of course, has improved their presentation of their case on the new angles that only relate to punitive damages. And, but Robbie Kaplan pointed out in her letter brief to the judge, judge, as you yourself have noted, quote, Trump has slow rolled his defenses, asserting or inventing a new one each time his prior effort has failed,

calling out that they never raised mitigation before so that it could have been litigated prior to trial without the jury being present, and certainly before the opening statements. I mean, that is what you and I and Karen reported on. Pardon me, in our hot takes in the month of December and January, all the motions being filed by E. Jane Carroll's lawyers

to try to preclude Donald Trump from testifying about certain things at trial, about to do a hot take on what I think Monday is going to look like with Donald Trump potentially testifying. But there's a series of orders from the judge, which has laid out what evidence is coming in, what evidence is not coming in, what can be mentioned in opening, what can't be mentioned. And then Alina Hobbett just came up with mitigation. And the reason she's wrong is that there's a case on the book since 1919 in New York, the place that she allegedly practices, called Den Norsse, which says an intentional tort, including defamation,

doesn't require the victim of that to mitigate. Because as Robbie Kaplan put it towards the end of her brief, she said, for instance, in assessing if there was a duty to mitigate, what would that duty be? The parties in the jury would have, would face, this is Robbie Kaplan on page four for brief,

would face profoundly confusing questions. In some cases, a duty to mitigate could conceivably require a defamation victim to remain silent. In other cases, it could conceivably require a defamation victim to speak publicly and to mitigate harm by disputing the defamatory statements, assessing in each case whether she's supposed to stay silent or she's supposed to speak out is just so confusing. It can't possibly be the law in the state of New York. And all E. Jean

Carroll did was to, in her way, to reclaim her dignity, was to refute the false lies about her that were being propagated by Donald Trump and her and his supporters, that she wasn't raped, that she was crazy, that she was doing it for the money, that it was a hoax that he didn't know her, that he wasn't hurt, she wasn't his type and everything else. And she's allowed to go on CNN or Midas Touch or MSNBC or wherever she wants or take out a billboard in the middle of Times Square and declare to the world that she was raped by Donald Trump. And she has the right to tell people that's not true or right. And that's the law.

And the fact that she does that doesn't mean she's increasing her notoriety or her celebrity to sell books, which is what Alina Habba's defense has been. And then on the issue of spoliation, again, screw ups by Alina Habba's defense has been. And then on the issue of spoliation, again, screw up spy Alina Habba. This case, some people might be thinking, isn't that issues as Ben said that should have been resolved before the trial started? Yes, we have a discovery period, it goes on for years, couple of years at least, depositions are taken,

including of E. Jean Carroll, documents are exchanged. And if you think that the other side is deficient in how they produce their documents or how they've maintained their documents or exchange, and if you think that the other side is deficient in how they produce their documents or how they've maintained their documents or retain them, there's a recourse for that. We do it all the time. I'm probably twice a week with some magistrate judge arguing about some deficiency in some case of mine on my side or fighting off a deficiency argument on their side about something in the case, but then it gets resolved. A magistrate judge in federal court makes a ruling about whether that document should have been obtained,

should have been produced, was responsive to any discovery request at all that was made by Alina Hava, I'm not even sure. That's even accurate. So the only way you can do an aha, perry mason moment in court and to say, you destroyed the key piece of evidence in the case, is if it is the key piece of evidence in the case is if it is the key piece of evidence in the case, that's one.

And secondly, if you asked for it and she had an obligation to retain it and she didn't and I'm not sure any of that is true about the missing. Oh, you didn't save every nasty text message or DM that was sent to you. Aha, mistrial. I mean, we're joking, but that was her brief. That the judge said, don't make any mistrial motions. I love your, I'm gonna use it. Sit down.

Don't make any mistrial motions during the trial. You wanna do something at the end of trial? You're gonna ask her, nope. While the case was dark on Friday, I think because of the weather, we had a little bit of a snowstorm here in New york. She lobbed in you made. You did a great hot take on it She lobbed in this this uh, uh, lina haba this letter brief with this q&a of The the spoliation of the text messages

I mean, it's not the key piece the key piece of evidence is donald trump raped her in a dressing room That's already been established in court twice and that he defamed her as the president of the United States from his bully pulpit. That's the main evidence. And on punitive damages, whether I retain the shitty text messages I got from people or I didn't, doesn't go to the measure of damages.

And it's not part of the expert testimony that the expert witness will testify to or has testified to for Eugene Carroll to support tens of millions of dollars of evidence. Sit down, Ms. Hava. And look, the reputational experts, they all testified already. And so the question's going to become, is Donald Trump going to testify? He has a long history of claiming that he's going to testify and then backs down and then blames some ruling or whines about it and then says that it's very unfair.

But we will keep you posted if we find out that he actually is going to testify. And just to show you the incompetence of Alina Habba and how she, going back to what I said in the intro, thinks, I guess, because she believes she's pretty, that she can fake smart, but I'll just give you an example of how that's very easy to just prove that you can't fake smart. There is no duty to mitigate because if you just read the case that Popak talked about, it literally just says that for defamation victims, victims of libel, there is no duty to mitigate like malicious defamatory statements. The same way there may be a duty to mitigate

if you are hit by a car, got into a car accident and you need to go to the hospital. Those are very different concepts in that case, even in 1919, where maybe there were still some horse and buggies around too, made that very, very, very clear. But Alina Habba also didn't say the words in the affirmative defense,

which is like a check the box kind of thing. We hereby assert as our 17th affirmative defense mitigation of damages. So as I was reading Alina Habba's letter, I looked at the answer, the amended answer first, and I said, I don't see anything here that talks about mitigation. And all you would have to say is, you know, defendant here by asserts mitigation as a defense if it was allowed to exist in the first place. But here is what Alina Habba

claims her assertion of mitigation was. Alina Habba goes here. Similarly, the 17th affirmative defense of Trump's amended answer states, quote, neither defendant nor the challenge statements, approximately caused any injury that the plaintiff allegedly suffered throughout the trial. When the defense has argued that Miss Carol failed to minimize the effect of any alleged defamation, the argument has largely been one of causation. And so the affirmative, I'm like, what'm like, what are you even talking about there? The affirmative defense that was asserted was that there's no causation, which is an absurd

affirmative defense to argue that Trump's statements didn't cause an injury. But that's what it is. It says nothing about mitigation in there. And you would have to just say mitigation the same way if you were going to assert absolute presidential immunity you would have to Assert that and she failed to do that as well. So for those reasons she ain't winning that and by the way these motions that she's filing are so frivolous They should be sanctionable in contrast to what happened in Washington DC where I guess Donald Trump's lawyers what happened in Washington, D.C., where I guess Donald Trump's lawyers wanted to say that by Jack Smith even filing documents on the federal docket in that Washington, D.C. criminal case, while Judge Tanya Chutkin, the federal judge presiding over that case, and just as a reminder, this is the case of Trump's effort to overthrow the results of the 2020 election, there's a stay

because Donald Trump is appealing to the D.C. Circuit Court of Appeals, the denial of the 2020 election. There's a stay because Donald Trump is appealing to the DC Circuit Court of Appeals. The denial of his motion to dismiss by Judge Tanya Chutkin in the district court of his claim of absolute presidential immunity, you know, by watching legal AF, there was oral argument as of this taping. There still is no ruling by the DC Circuit Court of Appeals. But Jack Smith, even while there's been what's called a stay that was issued by Judge Tanya Chutkin. I think it was debatable whether she should have even issued a stay in the first place, but I'm not going to go into that analysis.

Here I've done that in other videos. The stay pauses the proceedings, freezes the proceedings pending the outcome of the appeal. And special counsel, Jack Smith said, look, I get that I'm going to voluntarily file some documents about some witnesses, some motions and lemonade. Trump you have no obligation to respond to it, but I'm going to file this so that once we prevail in the DC circuit court of appeals, and they find there's no absolute presidential immunity. Let's get the show on the road and we can get started. And then Trump, you can respond to everything we filed. Trump's lawyers basically said, this is so burdensome to us. We don't want

these documents filed on the docket because the stay means that we shouldn't even be burdened by having to read these things, even though we don't have to read them. Just stop the filing, please. And you're turning the docket into a PR effort against Donald Trump by filing documents about the case or something like that. That's how the argument went.

And they said that Jack Smith should be held in contempt. So Pope Ockelos, what the DC, what Judge Chutkin ruled, what she hinted about on the trial date, and also not having a ruling yet from the DC Circuit Court of Appeals. I mean, if it doesn't drop next week, I thought it would happen before February 1. I frankly thought probably on Friday we would get a ruling from the DC Circuit Court of Appeals. So Monday, Tuesday, Wednesday, I would certainly expect it, but with each day that passes,

I think that signals that, you know, they're either writing a long opinion or there's not full agreement on that panel. I agree with all that. Let me pick up with that and back into the trial date. I was accused of one of my hot takes of burying the lead about the trial date because it was sort of buried within the order on the motion for contempt. Donald Trump seeking to have the book thrown at Jack Smith's team being found in contempt because of what was the contumaceous

conduct that, as you said, despite the fact that Judge had stayed the case pending the resolution of and getting a mandate back from the D.C. Court of Appeals, a whether presidential immunity applied to dismiss the indictment based on his alleged criminal conduct while president, that she made it clear what the parameters of that were, what the contours of a stay was. And she found that the Jack Smith team did not, by serving the other side with discovery, they don't, the Trump side have to look at, by putting things on the docket in motion practice that were not required by her and do not require a response by Donald Trump because the case has stayed at the moment.

A pin has been placed in the case. She's not gonna find contempt. And for clarity's sake, she said, let me make it clear. There's no bad faith by the prosecutors. I'm not implying that there is. I'm denying in part and granting in part the motion. I'll get to the granting in part in a minute. But in general, nothing that they did was wrong or improper.

It's not about required things. They can voluntarily do what they like, and Mr. Trump doesn't have to respond to that. However, she said, and this is where the trial court delay of trial thing comes in a collision course with the DC Court of Appeals, which you and I both think this train is a little bit late in arriving. I thought it was gonna be early last week,

not even late last week, and it's not, talk about that in a minute. But the judge said in her order, I thought that there was enough time when there were seven full months on the clock for Mr. Trump to prepare his defense. I'm paraphrasing here, but there isn't seven full months on the clock for Mr. Trump to prepare his defense. I'm paraphrasing here, but there isn't seven full months any longer because I put a pin in this a month ago,

and we're still waiting for the DC Court of Appeals to render their decision. And she didn't take the next step and say, and therefore the March trial date ain't happening, but she basically said the March 4 trial date is not happening, and that she's going to have to tack on this additional time because she's taken the position that seven months is enough but not six months and not five months. This is like the old joke from something about Mary, 10-minute abs, seven-minute abs. Seven months is barely enough, but she said it was enough. Six is not and five is not. And so she's going gonna have to tack on time. And she says, I don't think,

and then this is different than I even I said, I said, I thought they needed to be preparing just in case they lost. The federal judge actually said that she did not expect them to be preparing for trial at all or having any burden on them while the stay is in place. So when we get this fine,

and then on the granting of the slight granting to Donald Trump, sort of like ice and winter She said, you know on the motions that you're filing I love this because it's just gonna create more work for Donald Trump. Why don't you make a request? Why don't you ask me for permission to file the motion? Which means Jack Smith's gonna ask for permission and Donald Trump going to have to brief the issue about whether there should be permission, which is exactly what he doesn't want to do, which is he doesn't want to do any work in the case. But the judge says, do that, you know, I'll take a look at your motions. I'll decide whether

they're corollary kind of on the side of the appeal, if they're at the heart of the appeal, and I'll make so you do that. So it was like a win, but not really because Trump is going to have to be burdened now with litigating over each motion that Jack Smith wants to file and you know he's gonna do it. Now in terms of the DC Court of Appeals, you and I, I think came to the same kind of conclusion

back and forth in preparing for the show, which is my guess in yours is that Judge Pand who, you know, big hearts go out, we love Judge Pan for many, many reasons, and especially as masterfully as she conducted that hearing of the three Judge Panel. I don't think this is a problem of Judge Pan and Judge Childs, the two Biden appointees trying to reach a conclusion

about whether presidential immunity absolute, as they like to say on the Trump side, applies to dismiss the indictment of a criminal president in this case, an indicted or alleged criminal president. And what do you do about an alleged criminal president? I don't think it's those two. I think that it's Judge Henderson, who is the George W. Bush appointee. She was the one that wanted to delay the oral argument,

didn't agree on setting it as early as it was set. And she's the one that recently joined with a very small minority of four or five people on the DC Court of Appeals during an unbunked decision, which is all 12 members in this case of the DC Court of Appeals making a ruling about whether, for instance, Twitter should have been found in contempt and sanctioned because they wanted to tip off Donald Trump, which

violated a court order before they produced all of Donald Trump's Twitter account and DMs and unsent tweets and whatever to Jack Smith to be used in his indictment and his investigation, which he ultimately did use that issue the the the appeals court Said the Twitter was wrong It has to pay half a million dollars because they should have not delayed and dragged their feet and producing those documents And they didn't have a First Amendment right to tip off Donald Trump The they asked for a full panel hearing all the members that these court of appeals and four of them led by a by

I think a Trump appointee wrote a kind of a scathing dissent even though the unbunk majority approved the trial court's decision ultimately and said oh basically the Court of Appeals here doesn't really understand executive privilege and how presidential privilege works and which is weird to say since this is your day job as the. Court of Appeals is dealing with things related to government and the branches of government. And she joined that, Judge Henderson. So my gut is this is such a momentous decision that Pan would like to have a 3-0.

But I think at a certain point, you know time is against us here and Perfection can't be the enemy of the good enough And I think she's just gonna have to take her to one Write that opinion get childs to agree to it and that and let's get the decision done because we've got the Supreme Court and that process whether that takes a month three months or a week that has to get started But we can't start until you know, they get out of the they get out of the starting blocks with a decision at the DC Court of Appeals So Chuck and upheld again. I mean Chuck and will be upheld again Chuck Chuck in again Made the right decision and we're just waiting on and you and I are just we were carrying our microphones everywhere Waiting for the DC Court of Appeals to make this historic decision, which we are pretty confident is going to be that a criminal president

does not enjoy absolute immunity from future indictment after he leaves office or even when he's in office. Yeah. You know, and I think that one of the things also could be that they are writing a lengthy opinion. That's kind of one because they understand the magnitude of this decision. Number two, they could be grappling with whether they do the jurist rule on the issue of jurisdiction or go to the merits and they're kind of doing some research.

I think they want to get to the merits, but I think they're even kind of digging into the case law about if they don't have jurisdiction, can they still basically say under Midland asphalt that 1989 Supreme Court case we've been talking about here about interlocutory appeals have to be rooted in kind of the strict text of the Constitution or a statute that specifically provides for an interlocutory appeal and absolute presidential immunity. Those words don't strict textually appear in the Constitution or is there a statute. So, do you just reject jurisdiction and that's kind of it, even though there are these broader, more significant fundamental issues that they want to get at and can they get out there and use some sort of ancillary jurisdiction, which they talked about during oral argument,

to still get to the merits. And I think that's what's bogging them down. I mean, you figure your 10, 11 days out of that oral argument. And I expect a ruling to be very, very, very imminent, but we'll keep everybody posted there, which posted there, which means though that I think that Manhattan District Attorney case, March 25th becomes the first case to go to trial for the hush money payments Trump made to Pornstar and then put it on his books as legal fees. And it was a false business record, felonies that Trump can be convicted of. A very kind of

simple streamlined case to kind of put on and so we will Who do you think tries that case for Trump necklace Susan necklace and who else? Yeah, I'm well tachapine is not there. So it'll be it'll be Susan necklace and I forget there's one other lawyer on a team to Trump has good lawyers in that case But it's the same team though that represented the Trump. I think it's Blanche. Todd Blanche showed up with necklace at the arraignment. That's who I was thinking of.

Great call. You know, but, but it's pretty much the same team though. You know, you know, that was representing the Trump organization and people forget about this. The Trump organization was convicted of felonies last year. 17 counts, 17 felonies. You know, the chief financial officer played guilty. So that team had lost before Manhattan jury, but it seems like that one goes first.

We play out the remaining issues on the appeal of the Washington DC case. When a mandate finally issues, will the Supreme Court take it? You know, and that, you know, the Manhattan District Attorney case, you probably get a verdict. Jury selection is going to take a little bit of time there. But the case itself is fairly simple. So maybe, end of April, you'll get a verdict in the Manhattan District Attorney case. And then we see what's happening in May and June. We'll talk a little bit about Southern District of Florida Judge Cannon, who still is proceeding

with this farce that the trial before her is going to start on May 20th of 2024, which it's, we know it's not going to based on the mess of her docket. And then we still don't have a trial date in Georgia. But look, I think it's good news though, if you have the Manhattan case, you get a favorable ruling on absolute immunity rejecting it. Manhattan, Jack Smith, and then those two, you know, could have two felony convictions in the next six months. But things are moving quick. Let's take a quick break. When we get back, we're going to delve into a difficult topic right now, but we're not going to shy away from it here on legal AF. And that's this motion that was

filed by one of Donald Trump's co-defendants, Michael Roman, saying that Fulton County District Attorney Phony Willis is having an improper relationship that's tainting the process, improper relationship with one of the special prosecutors on her team, Nathan Wade, who's receiving taxpayer money in the form of the payments being made to him to be the special prosecutor on the team. I want to hear Popak's take. I'll give you my take. And I just think, look, on this show, one of the things that you all appreciate here is that we're not going to sugarcoat things. We're going to jump in and have difficult conversations here on legal AF. Take a quick break. This show is sponsored by BetterHelp.

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Double your potential with Super Beats heart chews. Get a free 30 day supply of Super Beats heart chews and a free full size bag of turmeric chews valued at 25 bucks by going to legalafbeats.com. Get this exclusive offer only at legalafbeats.com. Welcome back. We're live here on Legal AF. So let's get into this controversy in the Fulton County District Attorney criminal Rico case against Donald Trump and about 18 others. I think there have been four convictions already for people have pled guilty so certainly this team that has been assembled by Fulton County District Attorney phony will is. has been assembled by Fulton County District Attorney, Fony Willis, has been doing impeccable. Let's call that a stipulated fact. Not only in the state court criminal proceedings, but some of the best legal work I have seen in my life, full stop in the federal court proceedings.

I mean, Fony Willis is going against some of the top lawyers, federal practitioners who have thrown everything at her in the federal court in Georgia, in the 11th Circuit Court of Appeal, and Fonnie Willis' team has crushed it. They've won everything. So from a merits-based perspective, I don't know how you can look at the work that's been handled and saying there are unqualified people on Phony Willis' team, incompetent people, or people who don't deserve to be on the team. So, I think I want to start with what I believe is an undisputed fact right there. Then we have in this past week, Michael Roman, one of the co-defendants of Donald Trump, someone

who we know is cooperating with special counsel Jack Smith. And you think about Jack Smith's approach to this, right? Very surgical, not charging all these other people, listing some co-conspirators in the indictment of Trump, but not charging everybody. Because I think Jack Smith wanted to control it, contain it, be very surgical. Fawney Willis said, I'm not going to do that. If you are involved in this criminal conspiracy, you are now a criminal defendant in the RICO case.

So Michael Roman, a criminal defendant in the RICO case, he was involved in the fake elector scheme and helping assemble all of that, bring the ballot, bring the fake elector ballots. He was one of the people really involved in that. But he filed a motion. His lawyers apparently were tipped off that Fawni Willis was having a relationship, potentially a romantic relationship with one of these special prosecutors on her team, someone by the name of Nathan Wade. Now, Fawney Willis has both kind of in-house lawyers prosecuting the case, and she's brought

on some outside people from private practice who become what are referred to there, but the names can be different in different states, but these are special prosecutors, people who are hired from private practice who get paid by the municipality in this case, by the taxpayers in Fulton County to be a part of this team. So, Fawni Willis brought on a number of these special prosecutors. One of them is Nathan Wade. And so, what is being alleged is that Nathan Wade, one of the special prosecutors, is involved in a romantic relationship with

Fawnie Willis. The way this got unearthed was through a divorce proceeding between Nathan Wade and his ex-wife, where they had previously filed in the divorce court back even in 2021, that there were irreconcilable differences dating back to 2021. But as we all know, the family court, divorce court could get very, very, very nasty. And so some new filings were now made, Popak, a few years later, that are conspiciously timed with the motion that is being filed by Trump's co-defendant Michael Roman here for this improper relationship, tainting the process and therefore alleging that all of this should be dismissed. This filing in a parallel divorce proceeding that was pretty dormant, all things

considered, you know, for some time alleging this relationship with Fawnie Willis, requesting a deposition of Fawnie Willis in the divorce proceeding, which Fawnie Willis had to respond to. And I think it is an undisputed fact that we learned this from the divorce proceeding that Nathan Wade went on at least a few trips with Fawnie Willis that Nathan Wade paid for. But the question is that payment, since he's being paid from taxpayer money to be a special prosecutor, and to be clear, it's about $250 an hour. It's not an exorbitant fee. It's probably significantly less than what his rate would be practicing in private practice kind of drawing in theory a connection that

he's gotten all this money. And I think his firm has made a total of $750,000, him and his partner serving all this time as special prosecutor on this case. So it's not an insignificant money. But this idea was that improper relationship, these trips being taken, has that tainted the process and should the whole case be dismissed as a result? I wanna get your take. I hope I set that up with just the facts there and what I believe to be undisputed facts. I think it's also undisputed.

This is very messy now. And no matter what the outcome is, Judge McAfee is now going to be holding a hearing on it. And this has become a very messy situation, regardless of the outcome. And does, at least to me, feel somewhat like an unforced error in the sense of creating an appearance or perhaps not an appearance, but giving the defense something to rally behind when you were otherwise just crushing it and everybody is qualified and competent to be on this team, including Nathan Wade when you go through his background deserves to be there. But was it the best judgment of bringing someone on this team that you potentially were involved in a romantic

Relationship with knowing the stakes here So let me pause there and give it the most kind of objective treatment right there. Let me throw it to you Yeah, I mean I'm not gonna debate affairs of the heart heart and whether you should date somebody that you work with or not. But I am here to say that nothing that I've seen or I've read, that I've read in detail as have you, all the filings and the divorce proceeding. I never thought I'd have to go look at about the marriage that is they refer to it as irretrievably broken because of infidelity by the wife in cheating on Nathan Wade's with one of his best friends. That marriage was never being put back together again, nor does there need to be any proof of who he's dating or why he filed for a divorce when he took on the job with Fawni Willis because of that fact that all the parties agreed it was irretrievably broken.

And it looks like that, my view, the ex-wife is being a pawn of the Mike Romans of the world and by extension Donald Trump in conducting herself in her divorce proceeding in a way to both harm her husband and to undermine and interfere with the criminal prosecution. And Fonnie Willis lays it out in her filing, which she objected to an emergency deposition being taken of her as the district attorney. First of all, it's very rare that you're able to take a testimony from a person in an official capacity as high up as Fonnie Willis. And secondly, because the divorce, there's no issue in the case about why the parties have decided to go for divorce, meaning the affair of the ex-wife, that who Nathan Wade decided to start dating or not dating

after the fact doesn't matter. But more importantly, she laid out, Fonny Willis laid out a TikTok, a timeline on January 8th that tells the entire story. There's just a momentum in the narrative of the events on January 8th. Oh, so close to Jan 6th, right? So Jan 8th, the first thing that happens in the divorce proceeding is that the wife, for some reason, after two years moves to unseal all of the private things that she wanted sealed with Nathan Wade and her divorce.

That's weird. Secondly, she notices the deposition thereafter in the afternoon of Fawni Willis for a deposition in a matter. And then at four o'clock that same day, Mike Roman files his motion to disqualify claiming that there is an illicit affair going on between Fawni Willis and her special counsel, same side of the V, work in the same office. I don't know why this is not an HR matter, as Karen Friedman-Nicholoso eloquently put it on Wednesday's show, but somehow this undermines

the very validity and integrity of the prosecution, to which I respond, how? First of all, I wanna make it clear, because sometimes we use shorthand, even on this show where we take pride in not using shorthand even on this show where we take pride in not using shorthand and not assuming anything. Fonny Welles and the Fulton County District Attorney's Office did not indict Donald Trump.

Let me repeat, she did not indict Donald Trump. Prosecutors only indict when they use something called an information. When they use an indictment, it comes from a grand jury not just one grand jury There was a special purpose grand jury that was in place for seven months Put on dozens and dozens of witnesses and a very hard fought amount of witnesses were funny Well, it's had a pop out the federal court on numerous occasions to get certain witnesses to appear They recommended 20 people be indicted among them Donald Trump Then there was a four-month gap while her office

did more work, more investigation. That's what prosecutors do. They use prosecutorial discretion as to whether they're going to seek an indictment. They do the fact gathering and the investigation in order to present evidence to a grand jury, and the grand jury are the people that indict. So that's what happened. And the fact that Nathan Wade, who was brought in to supplement the existing team at Fulton County, at the Fulton County DA, first of all, is not unusual. I did a compare screen on one of my hot takes. A special counsel, Jack Smith, who we also think is doing an amazing job on this podcast, has spent $14 million.

I mean, a third of it has been for his security needs related to Donald Trump. But $7 or $8 million of it is for his case. Now, with all due respect to Jack Smith, he's got a four-count case against one defendant in DC, and he's got Mar-a-Lago, which you're gonna explain is on life support, mainly because of a judge that's down there, but he's got a simpler case. Phony Welles took on a much more sprawling indictment, 40 counts, 17 defendants,

sorry, criminal Rico spanning multiple battleground states, including Georgia, that's a harder case. The fact that her office only needed a million tops, a million dollars more to do a special purpose grand jury, a grand jury, an indictment. And then I want to give you her score. I want to give our audience her scorecard. She conducted a special purpose grand jury masterfully, a report resulted from it after putting on dozens and dozens of witnesses, including many against their will. She then regrouped and did a regular grand jury and got an indictment. She's had a fend off successfully dozens of motions, bail hearing and arraignment

hearings. She's already gotten four felony and misdemeanor convictions of of main people, including three lawyers for Donald Trump to turn state's evidence. She's won twice when people, no, three times when people claim to have federal removal powers to take their case out of Fulton County and over to federal court. She's won that at every level.

She's gotten dozens of cooperating witnesses and witnesses testimony. She's forced people like Mike Pence to testify after going through a series of litigation related to speech and debate clause. These are all the things that we admire as you pointed out at the top of the segment about her. And she did all of this for her budget and an extra million dollars. I mean, and that's one. Secondly, there is no allegation, this would shock me, that Fony Willis put on an expense,

expense on the Trump account, her trips off time to go to Napa Valley at a double tree hotel, I'm not making this up, or go on a cheap carnival cruise to the Bahamas for a weekend. And now if she had booked that to the Trump account with state dollars, I'd be like, oh, okay, that's not good. But the fact that Nathan Wade works for a living and his law firm received

revenue for him killing it as a, as a special prosecutor, one of three. And the fact that then his disposable income is however he pays himself and he decided to spend $3,000 or $4,000 taking a couple of trips, that in no way undermines the validity, the sanctity of the due process rights or rights to a fair trial by any of the defendants, including those named Trump or Mike Roman. It's just a way to embarrass, harass, give them something to talk about, put her through the ringer when they couldn't get rid of her at the statehouse level as a special, as a prosecutor. They're going to go after what they don't like

in this relationship. And I give Faudi Willis a lot of credit because she didn't just shirk away and slink away and act embarrassed because she's not. She took to the pulpit literally the day before Martin Luther King Day. And she told her authentic story about why she believes her judgment is being questioned, her professionalism is being questioned by hiring a person who was a former judge,

a former prosecutor, a defense lawyer, and has been hired around the state, including by white sheriffs, to represent them as special counsel. That's what this guy does, when he's as part of his practice. You and I have a practice. As part of Nathan Wade's practice,

he hires himself out as a special prosecutor, when prosecutors or others need somebody to investigate something or handle a matter. That's what he does for a living. And to have Ashley Merchant, the lawyer for Mike Roman, right, get on her high horse. And I looked her up too, okay, and her experience, which pales by comparison. She couldn't hold Nathan Wades joxtrap. Sorry. In terms of legal prowess, in terms of experience, right? She said, well, he's never tried a RICO case. I got news for Ashley Merchant. We've never had a criminal president like Donald Trump, right?

Nobody has ever tried a RICO case against a former president for interfering with an election in our entire history. So the fact that he doesn't have that on his resume, nobody has it on the resume, right? We have, but what does that mean? He's not a qualified member of the bar and a 20 year lawyer to former judge that can't handle a case.

I mean, come on, you know, Barbara Jones, who we like a lot, a white former federal judge, she's never been a monitor over a former president's business affairs before, but she was able to pull that off. But I'll end it at this, Ben. I agree with you the way you recited it. It is a bit of an unforced error. We've seen this one other time with Fawnie Willis, where she sponsored a fundraiser for somebody that was running against one of the people that she was potentially investigating and prosecuting on the GOP side, maybe that wasn't so great. But that, you know, the moment he joined,

he filed for divorce and they have some sort of after hours relationship and they're off time, who cares? I mean, and I'm not sure they would be doing this against anybody if it wasn't Fawney Willis, another strong black woman like Leticia James in New York against Donald Trump Mike Romans in a lot of trouble and if Mike Rome not because of this this Yes, because of this Mike Romans in a lot of trouble because of his role in interfering with the election and the fact that Ken Chesbro his co-conspirator is going to testify against him and already has begun to do exactly that Mike Romans also in trouble because if it's if Fawni Willis or another prosecutor figures out that he conspired with the ex-wife to undermine

the prosecution of this case by trying to undermine and slander Fawni Willis, he's got a new count of criminal conduct that he's gonna have to contend with. Look, there's clearly a double standard here in the attacks on Fulton County District Attorney Fony Willis. Yes. However, Fony Willis did run for district attorney in 2020 on the platform of, quote, integrity matters that she was going to clean up all of the kind of ethical lapses that she was going to clean up all of the kind of ethical lapses from her predecessor. And she specifically went out and talked about not being supportive of inter-work relationships that could distract from the office and duties and responsibilities of the district attorney.

There's videos of her saying that, there's statements of her saying that, and ultimately where I come down on this issue of law and order, I agree with you, Popak. There is no at this stage causal connection relating to any impropriety in this case at all, but it is in the able hands of Judge Scott McAfee, who I think has been doing a great job handling this case. And ultimately, if in a hearing now, because now, as I said, because of this unforced error, there has to be a hearing, we have to be talking about it, it is a distraction for sure, which is why you want to avoid distractions like this when possible. Judge McAfee will make a ruling.

I will respect that ruling regardless of what the ruling and outcome is. You're not going to hear anybody on Legal AF after Judge McAfee makes a ruling saying, fake ruling. That was a fake ruling. That's bogus. Judge McAfee conducts a hearing, follows the law, applies the law, evidence is introduced, there will be a ruling made and that takes place. You're not going to hear us in any way saying you know fake ruling, fake whatever, fake judge, it's all

unfair, it's a witch hunt, you know, it's all of these things. So we'll leave it at that and we hope that you've appreciated that we're going to confront issues like this, have difficult conversations, give you our views on it and we'll see where that goes. Finally, I do want to just talk very briefly about Judge Eileen Cannon. I say briefly because there still has not been any substantive order that she has issued in a SEPA case, Classified Information Procedure Act case. You would expect by now, with this case now pending for quite a long time, that the early SEPA deadlines would have triggered some sort of ruling on things like SEPA Section 4, where

the government presents classified documents that it wants to withhold, which it has been trying to do. But recall, it took what three to four months before Judge Kaden even entered the classified information procedures act protective order under CEPA section three. She just like kind of sat on it and asked for all this briefing and struck documents. It took like three or four months for that to happen. Then the documents were turned over. She set like her own SIPA hearings that don't even comport with what the statute actually said. She's having a SIPA pre-hearing that's taking place at the end of this month. Then she's going to hold

the actual SIPA hearing apparently in February where Donald Trump's asking for access to his lawyers to have access rather To these SEPA section for hearings to take a look at this classified information that the government wants to withhold under SEPA section for and replace it with some sort of summary where the statute makes clear that the defendant nor the defendant's lawyers can be at that hearing. It's the judge and its special counsel, Jack Smith, but Judge Cannon is at least considering or contemplating allowing Donald Trump's lawyers to show up so she wants to hold some pre-hearing rather

than just deny it. But to me, it's more delay. And when I say there's no substantive order, if she orders, yes, Donald Trump's lawyers can be there, then Jack Smith can take an appeal. That's a substantive order on the SIPA issue. And why under the Midland Asphalt Doctrine, going back to what we talked about, why an interlocutory appeal, an appeal before the trial's over can take place places because the statute

in its text allows for interlocutory review of decisions that relate to SIPA. But Judge Cannon will just say, paperless order, I'm going to schedule some pre-hearing, we'll push other dates back. That's not appealable at this stage. And that's kind of what she's been doing. But there's been all of these kind of documents that have been filed, you know, that have been filed now that she's going to have to make a ruling on some of these issues. Like one of the things that Donald Trump is just filed is a motion to compel Trump has asserted documents. Trump is asserting some kind of new theory. It's kind of like an analog to absolute immunity

when it comes to classified documents. In essence, now kind of arguing, and you can see the argument kind of play out in this motion too, compel that his authority to review classified documents and declassified documents exists in perpetuity, and so that he still had that authority even when he was no longer in office. So one of the things Trump is seeking to compel are all documents relating to that made up

concept to which special counsel Jack Smith responded, what? What are you even talking about? That's not even a thing. We've turned over millions of documents. We've gone above and beyond our obligations. And one of the other things Donald Trump wants and very mischievous how kind of Donald Trump frames this, Donald Trump said a motion for leave

to file a redacted brief, which you would think would mean to file that motion to compel and actually put the redactions in it. Trump saying, look, we want to protect the identities of things. But as Special Counsel Jack Smith pointed out, Trump is calling it a motion for leave to file the redacted briefing on the motion to compel. But what Trump is actually seeking to do is to disclose the identity of government

witnesses, which under a statute called the Jenks Act, doesn't have to be disclosed and frankly will never usually be disclosed ever until after a government's witness actually testifies a trial, obviously, exculpatory evidence under a case in doctrine called Brady in criminal cases and under a defendant's sixth amendment, all of that needs to be turned over to a criminal defendant promptly. But inculpatory evidence, evidence that would further lead to the conviction of the criminal defendant when it's janks material, which are these kind of government witness statements, informant types of statements, don't need to be turned over at a trial, a criminal trial until after that witness actually testifies at the criminal trial. Special Counsel Jack Smith has turned over the janks material earlier to try to, you know, move this case along promptly.

But what Trump has done in this motion to compel by coming up with this, that bizarre theory, I told you, that he can have this authority to classify or declassify in perpetuity. But what Trump is actually trying to do in there as well is to harass and threaten the government's witnesses by unredacting their names and making their names public so all of the MAGA people can threaten them, but Trump is calling it a redacted filing. Special Counsel Jack Smith responds, look, I'm good with transparency. I'm good with most of this stuff public, but this Janks material, the government witnesses and informants, that can't be disclosed right now.

And Trump was not requesting, this is what Jackson was saying, a redacted filing. He's requesting an unredacted filing, calling it a redacted filing to disclose information that is subject to our protective order. But because Judge Cannon has created such a mess of her docket, Popak, think about all of these complicated issues that are before her now and each of them could have been resolved promptly. Donald Trump's lawyers say they want to participate in CEPA section four. Deny.

That's what Judge Chutkin did. Why? Because this isn't a confusing issue. Every case, you cannot show up. Your criminal defense lawyers cannot be present in there. Move on to the next one. Now she has sub hearings and hearings on hearings and whether or not she should allow them to do it.

We're fighting over redacting or unredacting names of government witnesses, which would never be disclosed disclose and we haven't even got into the motions to dismiss the dispositive motions that are going to be filed she hasn't ruled on the motions to compel yet she hasn't put on her calendar cpa section five hearings which is an entire kind of a very detailed hearing procedure where a criminal defendant says that they want to put classified information into a case. The government can challenge it. There's a whole process and procedure of hearings to challenge that because the whole SEPA regime, if you will, the whole SEPA statute is to protect defendants from trying to blackmail or graymail the government and say, aha, we're going to disclose national defense information unless you dismiss the case against me. Aha, we're going to give the names of witnesses and we're going to harm and destroy the government unless you dismiss the case against us. So that's what CEPA tries to resolve that promptly. CEPA

Section 5 Disclosures by the criminal defendant hearings on that. Then, of course, you have Judge Cannon who's denied the government's request that Donald Trump disclose whether there's an advice of counsel defense, which should, oh, it's a matter of course, if you're going to do an advice of counsel defense and blame your lawyers to keep an organized trial, the defense has to disclose if they're going to blame their lawyers or prior lawyers for the reason why they broke the law. And then they wave attorney-client privilege, so that needs to become a part of discovery. And Judge Cannon said, I'm going to wait until after dispositive motions and motions

to dismiss to do that. And you know, Donald Trump's gonna come with all those frivolous motions that he brought before Judge Chutkin, which she summarily rejected and rightfully so. But here you have Judge Cannon who can't even read what SEPA section four says, what SEPA section five says. She doesn't know what the Janks act is apparently.

She doesn't know the difference between inculpatory or exculpatory evidence. It's basically to round out the show if you had Alina Habba as a judge. I mean, it's perhaps slightly better than that, but it would be like Donald Trump appointed Alina Habba in court. And Alina Habba was the one who was making rulings in important cases like this. How do you think the outcome is going to be in situations like that? The good news to all of this is that eventually, the Alina Habba of the Southern District of Florida, Judge Alina Cannon, is going to have to make a ruling and then Jack Smith can go to the 11th Circuit and say, look, 11th circuit, there have been errors after errors after errors and judge Canon does not know what she's doing.

Reverse her and we should consider removing her, which I think will happen once Canon actually rules, but she hasn't ruled yet. Now finally, let me tie this up with a neat bow though and why I think this is actually not a bad thing at this moment that Cannon is screwing up her own docket. There will be a time where an interlocutory appeal will be taken by special counsel Jack Smith before the 11th Circuit. That will then do the same thing that happened in Judge Chutkin's court. It will stay the proceedings before Judge Cannon paused. There will then be a briefing schedule before the 11th Circuit Court of Appeals. We will then go through that process. So I think the timing of all of this will actually be quite beneficial when this appeal to the 11th Circuit is eventually taken when Judge Cannon finally

makes a ruling because it's going to push back that May 20th, 2024 trial date. There's also a status conference, March 1, 2024, where Judge Cannon can move that trial date back. But I think Judge Cannon is so trying to protect Trump, she may still keep the trial date. But when she's reversed, it'll stay the proceedings there. I think by then we'll get the DC Circuit Court of Appeals decision. We're going to get what the Supreme Court's going to do on the issue of absolute presidential

immunity, whether they're even going to take the case, have oral argument. And so I think it creates the sequence where you have a Manhattan District attorney case go first. You then have the DC federal case against Trump for trying to overthrow the results of the 2020 election go next. And then I think you have Cannon's case gets kicked to 2025. And I think by that time Trump is a convicted felon, number one. And then I think in addition to being a convicted felon, I think that Cannon's errors are so egregious that Jack Smith feels comfortable and confident to ask for her removal from

the case from a basic level of kind of competence as well as constant errors. And there's some 11 circuit case law, which we analyzed from the outset that demonstrated that there's almost like a three strike rule in the 11 circuit, at least with this one judge who made three massive screw-ups on sentencing and the 11 circuit stepped in and was finally like, okay, we're removing this judge. It's going to a new case. So comprehensive overview right there. it's going to a new case. So comprehensive overview right there. I think I probably cannibalized the full topic there, Popak. So I'll give you just the last word generally about where we stand right now. And before you do that and give you the last word, I do want to tell everyone about an incredible new Midas Touch feature while we have this big audience here. It's the new Midas Touch newsletter, and

it's free to sign up for our newsletter. And you get all the updates from Midas Touch and people have been loving this new newsletter we've been sending out. So you just go to MidasTouch.com slash newsletter, MidasTouch.com slash newsletter, sign up, it's free and then you'll be getting emails from Midas Touch with breaking news updates and updates from the day. And it's a great way that we stay in touch with all of the Midas Mighty and legal AFers. Once again, after the show, go to MidasTouch.com slash newsletter and subscribe. Popak, I'll give you the final word of the show.

So Alec Baldwin in the indictment there. No, I'm kidding. So let me add one thing to the Mar-a-Lago thing. My most fascinating thing for me, that he's arguing that he has Q-level security clearance and that allowed him to both obstruct justice and to commit violations of the Espionage Act. Where does the Q come from?

Comes from, well, it comes from its own thing, but it's where QAnon comes from. And the person who's Q of QAnon and that rabbit hole of MAGA conspiracy theories that used to exist only on the dark web, but it's now been mainstreamed, that person, whoever that is supposedly had the same Q level energy department clearance as Donald Trump is claiming now.

Do I really think that Donald Trump thinks he had Q-level energy department classification that he knew he had that? And that gives him carte blanche to have retained and played hide the ball with federal judges, the Department of Justice, the National Archive, Jack Smith, Federal Magistrates, no, I do not. I just find it's remarkable that Donald Trump finds another way to blow a dog whistle to, and I'm sure there's a whole bunch of people that you and I don't associate with that are like

jumping up and down and doing all sorts of hand symbols because he said Q in all of that. And by the way, that's only, even if he had Q level energy department security clearance, it doesn't mean he had access. You still have to have a need to know that information and he'll have to justify that. They're trying to use that to argue

that it destroys his criminal mind or his mens rea and that's all the motion practice that you just talked about but look though to take away this has been a breathless episode the takeaway on this one I think is that in the beginning of 2024 first quarter of 2024 maybe in the second quarter of 2024 we are going to see the results writ large in courtrooms with juries with appellate courts and Supreme Court to serve justice on Donald Trump and to reestablish our criminal justice system as a proper foundation For our democratic republic. We've been waiting for this moment. We've been anticipating it. We've analyzed it

starting four years ago when you and I founded this show up till today. And the payoff is coming. And I think, you know, and we're here for it and thank God, our audience is here for it. And we can't appreciate that they're as part of their journey are on our journey at Legal AF. Popak, it's the best way to describe it right there. If you think about this as a football game, we're in the fourth quarter right now and for the next, you know, six to nine months, every day, every single day is going to be filled with massive material developments and will be by your side the entire time here. Make sure you're subscribed to the Midas Touch YouTube channel. We're less than 30,000 followers away as of this recording from hitting 2 million subs.

I think we can hit 2 million subs in the month of January. I'd love to do that. So please, if you can, if you're not subscribed, do so. If you're not subscribed to the Legal AF Audio podcast channel, what are you waiting for? It takes a minute to do probably less and it's very helpful to the growth of Legal AF. So even if you think, hey, I'm not going to listen to this on audio, I love the YouTube so much that even when I'm in the car or with my phone,

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legal AF shirts and gear. That's store.mitastouch.com, 100% union made, 100% made in the United States. Folks, thank you for watching. Legal AF, another good one. Popak, my favorite time of the week, or as I should say, tied for my favorite time of the week, because I do do this show in my living room, and people can hear me while I speak.

So it is tied. It is a tie for first. We want definitely tied for first. I'll leave it at that. Thank you, everybody, for watching Legal AFers. We appreciate you so, so much. Hit subscribe. Have a good one and shout out to the Midas Might.