Legal AF by MeidasTouch - Trump SQUIRMS LIKE A RAT as Cases MOVE FORWARD

Episode Date: February 11, 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: what we can expect from the Supreme Cour...t based on this week’s oral argument as to whether the Court will apply the 14th Amendment/Article 3 and ban Trump from the ballot and whether there is a “Grand Bargain” at foot to keep him on the ballot, but have the Supreme Court find that he does not have immunity from criminal prosecution; whether Judge Engoron will make an ethics and bar referral against Trump attorneys lead by Alina Habba arising out of Alan Weisselberg’s testimony in the NY Civil Fraud case, and how will the lawyers’ conduct and that of the witness impact the Court’s expected up to $500 million dollar judgment which could come as early as next week; whether the Supreme Court will allow Trump to appeal the DC Court of Appeals unanimous ruling that no president, including Trump, is above the criminal law, or just leave undisturbed the DC Court’s ruling that the DC Election Interference case should be tried before the election; the likelihood that Special Counsel Jack Smith will take Judge Cannon up on appeal and seek her removal based on her most recent misapplication of the law; the propriety of Special Counsel Robert Hur’s report clearing Biden and electing not to prosecute him, while attacking him personally, and so much more from the intersection of law, politics and justice. DEALS FROM OUR SPONSORS! Rhone: Head to and use code LEGALAF to save 20% off your entire order! Armra: Head to or enter promo code LEGALAF to receive 15% off your first order! Miracle Made: Upgrade your sleep with Miracle Made! Go to 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 and use code LEGALAF at checkout! SUPPORT THE SHOW: Shop NEW LEGAL AF Merch at: Join us on Patreon: Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: Legal AF: The PoliticsGirl Podcast: The Influence Continuum: Mea Culpa with Michael Cohen: The Weekend Show: Burn the Boats: Majority 54: Political Beatdown: Lights On with Jessica Denson: On Democracy with FP Wellman: Uncovered: Learn more about your ad choices. Visit

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Starting point is 00:01:41 call or text 988, a message from the government of Canada. This week we had oral arguments before the United States Supreme Court in the 14th Amendment, section three disqualification case against Donald Trump will break down everything that happened during the oral arguments and following the oral arguments where Donald Trump went out and said that indeed it was an insurrection on January 6th but he says
Starting point is 00:02:10 it was caused by Nancy Pelosi contradicting what his lawyer argued in court. We're also going to talk about how special counsel Jack Smith filed what appears to be a precursor to an appeal finally of Judge Eileen Cannon's ridiculous and unlawful orders in one of her most recent orders. She ordered that on the public docket, special counsel Jack Smith and the government release the names of all of the confidential witnesses, the confidential witness reports, FBI code name, Special Counsel Jack Smith explains that Judge Cannon, you use the wrong legal standard. And even if you use the right legal standard, there would be manifest injustice if you placed
Starting point is 00:02:59 the lives of confidential witnesses imperiled by your ruling. Also, Justice Arthur Ngoran and the New York Attorney General, Civil Fraud Case, sent a scathing series of emails to Donald Trump and Donald Trump's co-defendant lawyers in the case. This follows Trump's former CFO, Allen Weisselberg, purportedly being in negotiations for a plea agreement. There's Weisselberg right there on the feed for engaging in false statements during the New York Attorney General's civil fraud case itself. Justice Ngoran asked Trump's lawyers, Weisselberg's lawyers, do you know anything about this? Because under the New York laws of rules
Starting point is 00:03:46 of professional conduct, you as lawyers have an ethical obligation to bring that to the court's attention. Alina Habba's response is that her ethics counsel, Magistan for Make Adurnies Get Adurnies, her ethics counsel says she shouldn't respond to the inquiry, essentially contradicting what's in the New York rules
Starting point is 00:04:04 of professional responsibility for lawyers. Trump's other lawyer Cliff Robert went on to attack Justice Ngoran. Justice Ngoran was basically like, bet I'll take this all under advisement. I'm going to issue my ruling soon. My expectation, Michael Popak, is that we will get a very strong ruling from Justice Arthur Ngoran this week. Also, what's going on in the Washington, DC? criminal case after the DC Circuit Court of Appeals previously Also affirmed the ruling by the district court denying Donald Trump's absolute immunity argument We'll talk about all of this on legal AF and micellas Here's Michael Popak and Popak you had a big interview as well with Judge Ludig
Starting point is 00:04:49 That is going to be on our YouTube channel Tomorrow on Sunday at 1 p.m. Eastern time 10 Pacific. I'm excited to watch that You know what it's it's it's such a honor and a privilege to bring Michael Ludigan, Judge Ludigan, constitutional scholar, patriot, agnostic when it comes to the role of politics in our criminal justice and constitutional justice system. He just wants to get it right. And we were able to talk in a far-ranging interview that lasted about 45 to 50 minutes about the DC court of things we're going to talk about today. The DC court of appeals ruling on Tuesday that there's no immunity of a president for conduct he committed while he was president to dismiss a criminal indictment. Thursday's
Starting point is 00:05:37 Supreme Court oral argument on the 14th Amendment section 3 and whether this court is going to have the balls or the brass ones to make a decision based on the 14th Amendment Section 3 and whether this court is going to have the balls or the brass ones to make a decision based on the 14th Amendment's literal text or not, or they're going to punt the issue over to Congress, so to speak. And then we even touched on and have an exclusive about Judge Ludig's view of Robert Herr, the special counsel's 315-page report that is supposed to be one that exonerated Joe Biden, but in damning faint praise ended up blasting him in certain ways that the judge found to be completely inappropriate. And why don't we show that clip as just a teaser right here of your interview that we will be
Starting point is 00:06:23 showing in full tomorrow again right here on the Midas Touch YouTube channel. We'll also post it on the Legal AF podcast feed as well and you can check that out tomorrow at 1 Eastern 10 Pacific on Sunday. But let's take a look at Judge Ludig's view of the special counsel Robert Robert Herrs, very kind of inappropriate politicized report. Play this clip. Under the long established rules of the Department of Justice as to prosecutorial decisions, the prosecutor only and literally only
Starting point is 00:07:04 is to do either of two things, either indict the person that's been investigated or not indict the person. In both events, in both events, Michael, the prosecutor is to say nothing else for obvious reasons of critical importance to the United States of America and to the Department of Justice. It is especially an abuse of the prosecutorial power. The sacred prosecutorial power in the subject of the investigation will not be prosecuted. that drop back drop. That
Starting point is 00:08:31 your your viewers should understand the statements by this special council. In particular. And again, all I know is when what I watched that 45 minutes and but I heard the most salient things. And in particular, there's, I guess, considerable discussion in this 315 page report, which again, in my view, is an abuse of power,
Starting point is 00:09:04 pure and simple. But he goes on at length about the incumbent president's mental capacity in whatever contexts, all toward the end of concluding that Joe Biden should not be prosecuted. That's about as unseemly and an abuse, abuse of power, as I can imagine. And look, we care about law and order here on the Midas Touch Network on legal AF. And what you just heard right there is, here's what the law is, here's what the Department of Justice policy is, and when you try to
Starting point is 00:10:08 deviate from that, there could be well-recognized serious repercussions because now you have a written report from a political person, the special counsel Robert Her, which also contradicts what we know, what we see, what we hear, what we evaluate, and you have Robert Her essentially becoming like a doctor performing a physical, I mean, going beyond any prosecutorial role at all. And ultimately, the finding was that President Biden behaved the exact correct way that you are supposed to. And frankly, because this isn't a political issue, the same way former Vice President Pence behaved and others behaved and Reagan behaved when it comes to
Starting point is 00:11:05 the handling of documents, which is very different than Donald Trump, who stole the documents intentionally. They were requested back. He lied that they were returned. He tried to hide them. He had people literally conceal it even from his own lawyers. So a search warrant had to be executed. And then Trump was out there talking about the documents and showing war plans and other very sensitive
Starting point is 00:11:33 documents to people. So there's a big distinction there. And that's why we need to follow the facts. One of the things that you also talk about with retired judge Ludwig, which I'm excited for everybody to see, is his view on the 14th Amendment, Section 3, disqualification of Trump oral argument. He was very disappointed, would be putting it as an understatement in how the Supreme Court behaved and what the Supreme Court did. Michael Popock, it seems that the only judge or justice of the Supreme Court, rather, who was focused on the fact that the Supreme Court actually has a job to do and part of their job, yeah, I know it's hard, is to determine if somebody
Starting point is 00:12:22 engaged in an insurrection and how they should process the fact that this is an insurrection was Katanji Brown Jackson, a President Biden appointee. So if you wanna know about President Biden's instincts for hiring the right justice or bringing in the right justice, she was the only one really focused on this idea of, but isn't it our job to focus on an insurrection?
Starting point is 00:12:46 What's your definition, Trump's lawyer, of what an insurrection is? So let me play for you this clip because there were a lot of lowlights that I know you'll go over during this oral argument. Let me start off though with what I thought the highlight is, what I think all of the justices should have been focused on. This is Katanji Brown Jackson and here she is asking Trump's lawyer about Jonathan Mitchell's Trump's lawyer's name about what's your view of this? Was this an insurrection? Play this clip. Question. The Colorado Supreme Court concluded that the violent attempts of the petitioner supporters in this case to halt the count
Starting point is 00:13:27 on January 6th qualified as an insurrection as defined by section three and I read your opening brief to accept that those events counted as an insurrection but then your reply seemed to suggest that they were not so what is your position as to that? We never accepted or conceded in our opening brief that this was an insurrection. What we said in our opening brief was President Trump did not engage in any act that can plausibly be characterized as insurrection.
Starting point is 00:13:55 All right, so why would this not be an insur... What is your argument that it's not? Your reply brief says that it wasn't because I think you say it did not involve an organized attempt to overthrow the government. That's one of many reasons. But for an insurrection there needs to be an organized concerted effort to overthrow the government of the United States through violence. And this is a chaotic effort to overthrow the government is not an insurrection. We didn't concede that it's an effort to overthrow the government either justice Jackson, right? None of these criteria were met. This was a riot. It was not an insurrection
Starting point is 00:14:27 The events were shameful criminal violent all of those things, but did not qualify as insurrection as that term is used in section 3 Thank you. Because thanks. Thank you, Kyle You know when she said thank you because she got Trump's lawyer to say that it was shameful criminal and violent that was a concession that Trump's lawyer made there. And I think smartly, strategically there, but then said, I don't accept and concede that it was an insurrection. It was shameful, criminal, and violent. So then Trump goes out right after the oral argument. And here's what he says, play the clip. You heard and I watched and the one thing I'll say is they kept saying about what I said right after the insurrection.
Starting point is 00:15:10 Because I think it was an insurrection caused by Nancy Pelosi. Trump says it was an insurrection. I think it was an insurrection caused by Nancy Pelosi. I want to break all of this down, Popak. I want to hear your reaction this down, Popak. I want to hear your reaction to the oral argument first. Yeah, I think that in just following up with the Judge Ludwig interview, he was fearful that the court would take off ramps to make the decision that he believes constitutionally
Starting point is 00:15:40 the Supreme Court has to make, the only one it has to make, which is to apply the 14th Amendment, Section 3, and map it onto the conduct of Donald Trump, and then conclude, thumbs up or thumbs down, whether he is the type of insurrectionist that was anticipated by the framers and drafters of the 14th Amendment from the Civil War era. Judge Lutig's position as his mind is it is exactly that if we were to exhume the bodies of the framers and drafters of the 14th amendment from that period of our history, they would say what is the delay this is exactly the type of thing that we were looking for it's for the courts to decide it's for the states ultimately to ban but that's not what John Roberts ultimately led. And even the left wing, I was surprised by how quickly Roberts was able to get people to coalesce around the concept that he was pitching, which obviously had been discussed before because they so quickly rallied around
Starting point is 00:16:42 this position. Even when Mitchell himself, the lawyer for Trump, he himself didn't agree that these were appropriate exit ramps for his argument. There was something else going on up at the bench by way of the questioning. Roberts led, Chief Justice Roberts led by saying the 14th Amendment was enacted as a part of a series of amendments in order to stop Renegade states. Why would they have ever permitted a state to take somebody off the ballot and make that ultimate decision when the whole 14th Amendment is ultimately and the other amendments around it were all passed by the Civil War era in order to handle The breakaway states of the Confederacy. Why would they ever empower states?
Starting point is 00:17:26 And then everybody jumped on board with that. Kagan, who's on the left side of the spectrum, jumped in with, why should anyone state be able to determine the outcome of the election and disenfranchise other people? Disenfranchisement got picked up by Kavanaugh, who I thought was a vote that maybe could have been used by Roberts if he wasn't going to go down this. We don't want to touch this with a 10 foot
Starting point is 00:17:51 pole route, which is obviously what they wanted to do. Their off ramp was this is for Congress. Congress has to decide 14th Amendment Section 3 conduct and behavior. Kavanaugh said, aren't we disenfranchising all the rest of the state voters in other states if we allow this state to take it off the ballot? And Amy Coney Barrett, the same thing. Sotomayor, I thought if there's going to be two votes against this, seven to two-ish, it's going to be Katanji Brown-Jackson, who was the only person on that bench, as you noted, Ben, who was willing to take on that bench, as you noted, Ben, who was willing to take on the key issues
Starting point is 00:18:28 of the case that were framed in the briefing, which was, was this an insurrection? Is he the type of federal officer that takes the right kind of oath in order to have the 14th Amendment Section 3 applied to him? And it looks like they're gonna make a ruling if they make the ruling based on the oral argument
Starting point is 00:18:43 that forget about the other federal officers, a president of the United States of the 14th Amendment Section 3 cannot be removed from the ballot by an individual state. That has to be an issue not for the federal Article III judges or the United States Supreme Court to make, which is exactly what they're supposed to be empowered to do under our three co-equal branches of government and checks and balance, but that it goes back to Congress for Congress to decide. And that off-ramp is the one that Judge Ludig saw as illegitimate. On the questioning and the briefing, on the main case upon which the entire foundation
Starting point is 00:19:25 of Donald Trump's argument rests. This case that's referred to as the Griffith case. I thought right away, Judge Satyamayar had cornered him by saying it's not a Supreme Court precedent. And the judge that wrote Griffith's case when he got onto the United States Supreme Court took the exact opposite view about whether the 14th Amendment Section 3 is self-self-affecting. You can self-activate. You don't need another step in the process. And I thought he founded on that, or he at least conceded honorably, that if he loses on Griffith's case, he may
Starting point is 00:20:03 have lost his case. But that's not where everybody else went. They all went into states' rights and why are we touching this? We should let the federal side, which they didn't interpret as their power, but the power of the Congress. The most interesting weirdo discussion that that ensued because of this, everybody jumping on board with this, the state's rights issue, is that you got Kavanaugh asking the advocate, Mr. Mitchell, who'd, by the way, clerked for Judge Ludig back in the day when
Starting point is 00:20:40 he was a law clerk, I asked Mr. Mitchell, well, would your analysis be different if your candidate, if your client had been indicted for and convicted of insurrection? And he said, yes, except we think we have presidential immunity, which leads us to the other topics we'll be talking about today, which is very interesting because it's nowhere in the literal or original text of the 14th Amendment or its legislative history that there's a requirement for a trial, an indictment, a trial and a conviction on the count of insurrection. We all know that of the 91 or so felony counts
Starting point is 00:21:15 against Donald Trump, I've said worldwide, around the country, not one of them is for this crime of insurrection, things that are akin to it, of course. But that's not what the Constitution says. It says, engaged if the person engaged in insurrection or rebellion against the Constitution. And the question here is, who gets to determine who engaged? The Secretary of State of each state, state Supreme Courts, or what I would have thought, the federal courts,
Starting point is 00:21:46 Article III judges up to the United States Supreme Court. And so I agree with you. You and I were kibbutzing a little bit during the oral argument, and I now side with you. This is either going to be eight to one, nine to zero, or seven to two. But in favor of Donald Trump staying on the ballot and making bad law as I as as we've outlined it question for you Ben as we segue to the other section as well is is there a Grand bargain that's now been discussed which Judge Ludwig things is unsavory and should never happen But that the Supreme Court will give Donald Trump the ballot
Starting point is 00:22:22 But will take away his and will support the DC Court of Appeals one way or the other about he doesn't have presidential immunity to dismiss his indictment. Well, it was always my view, I said, on a technicality, even though I disagree with the technicality that the Supreme Court would find, that they would find a way to keep Trump on the ballot and not disqualify him, not affirm the decision by the Colorado Supreme Court, which would have disqualified Trump from the ballot in Colorado. So what we observed was, and what we listened to, and we had like 40,000 people concurrently watching live on the Midas Touch
Starting point is 00:23:05 network basically filling up two Madison Square gardens and I saw how many people were upset with the oral argument. I hope I at least prepared you for the fact that I thought on a technicality that's where the Supreme Court was going to go. I agree, Michael Popak, that I think it'll be either a 9 to 0, more likely an 8 to 1, or potentially a 7 to 2. But the Colorado case is going to be very confident. It will be the decision to disqualifying Trump. It will be reversed. Trump will be permitted to be on the ballot. And then we move to a whole separate case, a whole separate issue of the absolute presidential
Starting point is 00:23:46 immunity where Trump had until Monday to file a petition for certiori before the United States Supreme Court on that issue and then we'll determine if the Supreme Court even hears the DC circuit's decision affirming federal Judge Tonya Chutkin's denial of Trump's motion to dismiss on absolute presidential immunity grounds. And if they do, what is the timeframe within which they hold their oral arguments there? The disqualification oral argument, I think in early January or so, the Supreme Court basically set the oral argument for February. So it was about a month delay to the hearing. And then we'll see how long it takes them to issue a ruling.
Starting point is 00:24:32 So how will that impact the Washington DC federal criminal case? But there is an interesting point that I want to raise as well, which is when Donald Trump's lawyer conceded that what happened on January 6th was violent, was criminal, and shameful, that sounds like an opening brief that special counsel Jack Smith could write right back to the United States Supreme Court or in the trial brief in the Washington DC criminal case
Starting point is 00:25:06 That's actually why I think Donald Trump then went out and basically said no no no It wasn't that it was an insurrection caused by Nancy Pelosi and Again, so unhinged so deranged You don't really even see the media other than Midas touch network But then again, we're growing bigger than other their media outlets. So, you don't really even see the media other than Midas Touch Network. But then again, we're growing bigger than other media outlets. So when I talk about the media, I think we should bear that in mind. But you got Donald Trump saying that unhinged, those unhinged conspiracies that Nancy Pelosi
Starting point is 00:25:37 led the insurrection. I mean, that's very, very, very absurd. But when I go back, I want to give a little more of my take on the Supreme Court oral argument briefly. And then I want to get into some big developments in the New York Attorney General's civil fraud case before also that the Judge Eileen Caden, Southern District of Florida, Mar-a-Lago case. And then let's talk even a little bit more about what's going on in Washington, D.C. there in the criminal case and how that relates to the Manhattan District Attorney criminal case.
Starting point is 00:26:07 And all I can say is a lot is going to be happening. Every day is going to be filled with lots of information and there are going to be days that move the ball forward towards justice. There are days where we're going to be discouraged, but that's just part of the process. But what I can promise you is we're going to keep you accurately informed with data each step of the way. We'll be right back after our first quick break. Most clothes are uncomfortable or too tight or never actually the size you really are,
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Starting point is 00:30:10 for amplified defense as a whole food. There's no such thing as too much. We've worked out a special offer for my audience. Receive 15% off your first order. Go to slash legal AF or enter legal AF to get 15% off your first order. That's slash legal AF. So we're back live here on legal AF. Michael Popak, the 14th Amendment Section 3 argument,
Starting point is 00:30:39 I mean, to me is very simple. You just, I mean, if you are a textualist, if you are an originalist, if you're applying common sense, you just read the thing. And yet, just like with a lot of things, the Supreme Court will try to come up with any framework to justify their outcome and try to intellectualize it by calling it certain things. Oh, I'm a strict textualist when that benefits them. I'm an originalist. Okay, well, if you're an originalist and strict textualist and you read what this says, I mean, the 14th Amendment, Section 3 says, no person shall be a senator or
Starting point is 00:31:19 representative in Congress or a elector of president and vice president or hold any office, civil or military, under the United States, or under any state who having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof, but Congress may by a vote of two-thirds of each house remove such disability. Okay, so to me that very clearly means that it's self-executing.
Starting point is 00:31:55 There's a threshold finding that has to be, you know, that's made. Was there an insurrection? It happened. You know, a secretary of state just says, well, that's an insurrectionist the same way the Secretary of State goes that person doesn't have the age limits or that person isn't a citizen you make that Threshold assessment and it should be a relatively easy one because like the Supreme Court once said about obscenity You know it when you see it We should be able to see an insurrection and know it when we see it
Starting point is 00:32:21 But then Congress thereafter may remove the disability, not in the first instance, Congress makes the decision. Why would it say Congress may by a vote of two-thirds of each house remove such a disability, referring to someone being removed because they were involved in an insurrection if the threshold is Congress making the assessment of the first instance. That's circular and literally makes no sense at all. It's a very simple assessment. Did somebody engage in an insurrection against the same meaning against the Constitution? And if so, they're gone. And the point that the Supreme Court wanted to avoid was that there was an insurrection that
Starting point is 00:33:02 took place on January 6th that we all saw and observed and Republicans have politicized it made it just another political issue So the Supreme Court was talking about insurrection like it's just a topic like well What if the what if you don't agree with the president's immigration policy? What can Texas then disqualify you know president Biden? No, you couldn't because it's not an insurrection It's not overthrowing the United States government. That's not trying to overthrow the United States Constitution. Oh, we don't like someone's tax policy. We don't like the way they lead. Can they be thrown out? No, because it's not an insurrection. If you think that Trump engaged
Starting point is 00:33:41 in an insurrection Supreme Court, that's your duty. that's your job. The same way the right wing Supreme Court, you made assessments and took away women's reproductive rights and you said that that should be something that you believe that states ultimately can decide and that states can ban fully and you revoked that right. You remove women's freedom to reproductive rights. You should be able to make decisions here as well.
Starting point is 00:34:07 And then they go, well, here we don't want to make the decision right here and we'll find some way out. And to me, that was the elephant in the room, you know, and I would have liked and don't get me wrong. It was a hot bench that went full kind of attack mode at the lawyers for crew, representing the petitioners who were trying to disqualify Trump. I mean, they went hard at him. I saw the Gorsuch was saying and a bunch of others. I would have liked to have seen the lawyer candidly be a little more forceful and pushback because he wasn't going to win the argument and put the Supreme Court back on the spot and say, do your job. Respect know, respectfully, Justice Gorsuch, perhaps what you should be deciding is whether or not this is an insurrection.
Starting point is 00:34:52 If you're an originalist or a strict textualist, make the decision one way or the other. It is up to you. It's not up to some other, you know, imaginary illusory thing. So anyway, I wanted to give you my perspective on it, but I'm confident, unfortunately, that the Colorado case will be, the Colorado Supreme Court decision will be overturned. Popak, let's shift gears though
Starting point is 00:35:16 and talk about what's going on in New York. A lot of developments there, Justice Ngoran sent a email to the parties earlier in the week, wanting to know what's up with these reported criminal plea negotiations between Trump's former CFO, Allen Weisselberg, and the Manhattan District Attorney for lying in this case in the New York Attorney General's civil fraud case. And Ngoron's like, look, if my courtroom was a literal crime scene, you need to tell me about it consistent with ethical obligations. And as and I want to hear from the parties, how if at all, I should take this into consideration
Starting point is 00:36:02 in my final verdict that I'm going to be reaching soon. And I'd like to know if you're representing Allen Weisselberg, Alina Habba, which I guess she purports to represent him in the civil case, at least. Are you aware of this? Because if you are, you're suborning perjury and the New York rule of professional responsibility 3.3 requires that you provide me information if this is something that you're aware of. So what do you know? The New York Attorney General's office responded and said, Judge, here's how we can deal with this.
Starting point is 00:36:39 After you reach your judgment and find in favor of the state of New York for $370 million plus pre-judgment interest and other penalties through the robust, monetorship process afterwards with someone like a retired federal judge, Barbara Jones. As we uncover more, we don't need to keep going and having new lawsuits filed. You'll be empowered there to take surgical action each time we learn about these things. So that's how you should deal with it. Can you please issue your ruling now, Justice Sengora? That was the guidance by the New York Attorney General's Office in response there.
Starting point is 00:37:17 And then you had the response by Alina Habba, who's the lawyer for Weisselberg. And she's like, I don't really know anything about this. I'm just a civil attorney. I'm not his criminal attorney, so I don't know about this. And she goes, my ethics lawyer tells me I can't respond. And then Trump's other lawyer, Cliff Robert, and by the way, between Haba and Robert, they've been paid like $8 million or something like that.
Starting point is 00:37:43 Cliff Robert basically attacks the judge and says, how dare you use a New York Times article as evidence in this case that is wholly improper. So then in Goran had a respondent say, I'm not using it as evidence. I was simply asking, was a crime committed in my courtroom and consistent with your ethical obligations you were required to tell me. But if you don't want to tell me understood, we'll deal with that later. If it turns out he pleads guilty. But Popak, what do you expect to follow?
Starting point is 00:38:13 You expect this order is gonna hit this upcoming week? I kind of do. I mean, it will be happening the next two weeks. And what do you make of this email back and these emails back and forth? And it seems that Habba and Roberts have kind of put themselves in a very precarious ethical situation. And Justice Ngoran put them on notice
Starting point is 00:38:33 about what could happen if Weisselberg pleads guilty now. I think Habba and Robert are in it deep for an ethical violation. We'll talk about that in a minute. I want to go back one thing before we leave it because you and I didn't talk about it. I talked about it with Karen during the midweek. I'm not so I want to talk about one thing about the immunity thing because that had just happened on Tuesday. We're gonna find out on Monday what happens next with with Donald Trump. There's a chance the Supreme Court doesn't take that and we're gonna
Starting point is 00:39:04 talk about it at the end. It does not take the immunity issue. And if they don't take up the immunity issue, then we got a trial. We'll talk more about it at the end. And I'll share with you when we get there Judge Lutig's position about it, because he doesn't think they're going to take it up. And I want to share that with you. I think you covered it all, I think on the issue of the ethical issue.
Starting point is 00:39:23 The judge has the right to know whether he's been had, whether it's the trier of fact, the witness is lied in his courtroom. Now, the issue of whether Alan Weisselberg has lied has been something that's vexed prosecutors going back to the Southern District of New York and the prosecution that involved Michael Cohen on our network.
Starting point is 00:39:41 And whether Alan Weisselberg lied about, in the Stormy Daniels case, and lied about Michael Cohen's involvement. He was almost prosecuted by the federal prosecutors in the Southern District of New York back then because they thought he had lied to them. There was a theory that he lied then in order to cover up for Donald Trump. So the fact that he lied on the witness stand put on, yes, he was called as an adverse witness for the New York Attorney General in the civil fraud case, but he was really testifying to help Donald Trump. He's also a defendant in the case. And so for Alina Hava and Cliff Robert to say, we don't really know what's going on here, that is their, they are defending Allen Weisselberg in that case. He's a defendant in the
Starting point is 00:40:32 case as well. And so if they knew or should have known that what he said, for instance, about the size of the triplex apartment, whether it was tripled from 10,000 square feet to 100,000 square feet and therefore the value went from 50 million to 150 million on Donald Trump's balance sheet and therefore he cooked the books and lied to lenders to the Forbes magazine about his where his rank should be in the Forbes list of the richest people in the world and the like. list of the richest people in the world and the like. Forbes magazine reported in real time as the guy lied while he was in trial. It was a headline for Forbes magazine. And so we were not surprised that, you know, just for those that, that,
Starting point is 00:41:13 because we have a little bit of a unique situation here in New York, I practice in New York as people know. The New York attorney general has limited criminal powers. Doesn't have, she doesn't have, other states use their attorney general differently. Attorney General New York is primarily for civil enforcement matters and actions and powers. They're quite devastating. They can go all the way to what we're watching now at the far extreme, which is a corporate debt penalty, putting the people and the company out of its misery
Starting point is 00:41:42 and taking all of its money out of the corporate treasury to pay back to the people of the state of New York. Sure, that can happen, but they don't do the criminal side generally. That's a referral or an investigation that's made by the Manhattan District Attorney's Office if that thing happened in Manhattan in New York. And they opened up a investigation as to whether they had been lied to in their parallel investigation of the Trump Organization and Allen Weisselberg that ultimately led to the Stormy Daniels' indictment filing. But also, you're not allowed to commit perjury so publicly and not have the prosecutors do anything about it.
Starting point is 00:42:24 Now, if a judge knows that there's been perjury Or a lawyer knows at the time there can be a referral during the actual course of the of the court proceeding but that didn't happen here because the New York Attorney General didn't raise it and the lawyers and this is where you've come You've come up with Ben with the sub what we call sub-boring And this is where you've come up with Ben with what we call sub-burning SUB, like boy, sub-burning perjury, just means allowing perjurious testimony to stand uncorrected and not brought to the attention of the judge. And that's a crime and an ethical violation if you do it. I have been involved with cases, a case in particular, where it became clear that a witness, not my client, but that
Starting point is 00:43:06 a witness that I was relying on was not telling the truth and had deviated so far from their deposition testimony that they were verging into the world of mythical creatures and made up testimony. And I could, you cannot, as an ethical, of any bar and in New York in particular, you can't just sit idly by on your hands and just, you know, look down at your feet and like, go grab your snicker bar and all my, what you have to, you have to stand up at the appropriate point. There's a jury involved and has to be heard at the bench and has to have the jury dismissed. And if it's not a jury trial, you asked to be heard
Starting point is 00:43:45 and you might have to witness dismissed or put outside while you do it. And you say, judge is an officer of the court, I've got an issue with a testimony that was just presented and whether, and it's veracity. And the judge says, eh, okay. And then there's a breakout of an entry hearing about this issue and we determine
Starting point is 00:44:02 whether there's perjury or not. You just have to do that under your ethics. So for Alina Habba, you know, talk about gaslighting to say, I'm just too ethical to tell you the truth, your honor, is the exact opposite of what the rule requires. If she knew or should have known that Allen Isilberg was lying, and we knew that he was a liar on the stand and the judge could tell. And he said, I'm gonna evaluate Allen Weisselberg
Starting point is 00:44:25 but what I observed when he testified, he conveniently could not remember 100 times when a fact would be against stubbornly against Donald Trump. But he grew a brain and a memory when it was a fact that would help Donald Trump. So that was obvious. And the judge is the trier of fact and the evaluator of the credibility of witnesses.
Starting point is 00:44:44 He had already reached his I'm sure his decision about the credibility of Allen Weisselberg and his veracity And he was gonna write an opinion that way But how can the judge possibly ignore a front page New York Times article or any any article that said that that a key witness That had testified in front of him may have committed perjury So all he did was asked the lawyers for Donald Trump and for the New York Attorney General, what do you know about this? And should I have a hearing about it? And instead they use the opportunity, as you outlined, for Cliff
Starting point is 00:45:15 Robert to attack the judge, suggest that he was about to take what we call judicial notice of the New York Times article, which he was not doing. He didn't say he was going to do that and that he was going to automatically discredit Alan Weisselberg all of his testimony under a legal doctrine that says, if you were false about one thing, you've been false about it all. You don't get to pick and choose. Lie here, tell the truth there. We just discount your entire testimony.
Starting point is 00:45:41 And he didn't say he was about to apply that doctrine to Alan Weisselberg, based on a New York Times article. So he shoved back in his email, this is how we operate in New York, the fast-paced environment of the legal system in New York, judges email, and he emailed back and said, how dare you? I didn't ask you. You know, you always are, it's getting to be old for you to attack my impartiality. And for you to raise the issue about Michael Cohen, because they took the opportunity to say, there was a perjurer in the room. It was Michael Cohen exclamation mark. No citation to any evidence. These are just lawyer letters, Ben.
Starting point is 00:46:16 They didn't even have sworn testimony or affidavits or declarations to support anything that they were saying, which is, I don't, I'd say smart for them because that's one less problem that they have ethically, but they've got problems ethically. And what I said midweek was, if I'm the judge with all of these competing letters and the Cliff Robert and Alina Habba stepping into the bear trap with their head, not just both legs about the ethical issue that's been raised. And I get New York Attorney General is like, you knew he was a liar. Why, Soberg, Judge, just make your ruling already. Let's get to the $500 million part in the movie. I get that. But he's got a bigger issue as the judge. And I think,
Starting point is 00:46:57 if I'm him, I do a breakout evidentiary hearing to get sworn testimony from Robert, from Habba, from perhaps, maybe he takes the Fifth Amendment, but from Allen Weisselberg and from representatives of the Manhattan District Attorney's Office about this particular issue. Because it's important to the justice system and setting precedent, we cannot allow in a court system
Starting point is 00:47:25 people to just blithely lie to a judge and there be no repercussions except for like email campaign by lawyers who were involved. That just can't be it. And so I don't think it is. Separately, I don't think it delays his issuance of his letter, his judgment, sorry, which we expect any day now, probably next week, based on
Starting point is 00:47:48 timing that he's already identified. It's done. I think he's just that order is done and dusted. He was just getting to the bottom of this last issue. But separately, he can't be like, Well, I was issuing my judgment anyway. So who cares about Alan Weisselberg lying to me in court? I don't and the lawyer is allowing it. I don't think it ends here. And if from that hearing, the judge feels that Haba and or Robert, you see Chris Kaisa sort of
Starting point is 00:48:11 stayed out of this, has done something wrong. He, any judge can make a referral to the, to the, an ethics referral to whatever department of the appellate division these two are a member of and let them take it from there. You do see the behavior of the smarter lawyers, whether it was Chris Kice or Takapina, who jumped out at kind of the late but at a better time and Chris Kice not putting his name to any of these letters versus Habba and Cliff, Robert kind of,
Starting point is 00:48:46 damn the torpedoes full speed ahead, you know, locking arms with Trump in this ever-evolving criminality and total mess. And we're going to see a nuclear style order from Justice Arthur and Goron any day now. And what the New York Attorney General said in their response to one of the emails, which ultimately I think Justice and Goron is going to take is he'll probably drop in a footnote in his final decision something about, I'll take future action with Weisselberg. There's been reporting, but that's not something that I'll take judicial notice of now, but at a later time that could potentially impact an independent, you know, what the independent monitor recommends
Starting point is 00:49:30 and refers. He may order an investigation into that from an independent monitor. And to your point, Michael Popak, even after Justice Angoron issues this final verdict there is post judgment enforcement proceedings on the dissolution on the cancellation of the trump organization certificates. I'm the ban of trump from doing any real estate in new york and his adult kids don jr and eric from doing real estate in new york weisselberg, from being involved in real estate in New York. And if there's ongoing fraud that's committed an independent monitor, can very quickly flag to the judge, look what I see, there's a fake loan, let's look into it right away.
Starting point is 00:50:18 Justice and Gorin can hold a rapid hearing versus a whole new lawsuit that takes years to go through the system. That's why this order is going to be kind of equally damning and damaging for that robust, independent monitor and post-judgment relief in addition to the fact that there'll be a judgment probably in the amount of 370 million and when you add compounding pre-judgment interest that could get as high as $400 or $500 million. When we come back, I want to talk about Judge Eileen Cannon, her recent ruling and Special Counsel
Starting point is 00:50:53 Jack Smith, finally because Judge Cannon made a ruling, although it is still not fully like a substantive ruling. It's release information of confidential witnesses on the public docket. Special Counsel Jack Smith's teeing up for an appeal right there. And while it feels like weeks ago, Michael Popak, the DC Circuit Court of Appeals reached their decision affirming Judge Tonya Chutkin's ruling that Donald Trump does not have absolute presidential immunity. They made that on Tuesday. forming Judge Tonya Chutkin's ruling that Donald Trump does not have absolute presidential immunity. They made that on Tuesday. Doesn't that feel in our news cycle like that was weeks and weeks ago? They did that on Tuesday and they ordered that Donald Trump, if he's going
Starting point is 00:51:35 to file his petition for certiorari to the Supreme Court, do so by February 12th, by Monday, or else their mandate would issue and the case would proceed. I want to hear from you, Popak and more, but let's take our final quick break of the show. Did you know that your temperature at night can have one of the greatest impacts on your sleep quality? If you wake up too hot or too cold, I highly recommend you check out Miracle Maid's bedsheets. Inspired by NASA, Miracle Maid uses silver-infused fabrics and makes temperature-regulating bedding so you can sleep at the perfect temperature all night long.
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Starting point is 00:55:46 when I see a Karen ad on the weekend edition of Legal AF. And Karen really loves, like Karen loves those products as well. And Jordy's the one ultimately who vets them. As Brett was saying, we kind of live our whole day. You just, we either do it podcasts, we're doing hot takes, we're doing duets, and we're using our sponsors each and every day. Michael Popak, I was looking at it when I was speaking about the ruling by the DC Circuit Court of Appeals affirming the
Starting point is 00:56:22 ruling by District Court Judge Tanya Chutkin denying Donald Trump's motion to dismiss an absolute presidential immunity grounds. I was like thinking, I was like, this week, Legal AF, we cover what goes down in the week. I'm like, but wasn't that like, when did that happen? I'm like, oh, Tuesday. It happened on Tuesday. So, Popak, why don't you, you know, let's talk about, look, there's been a lot of coverage. We've done a lot of hot takes on, you know, on the fact that they found that the structure, text history of the Constitution does not support absolute presidential immunity and certainly doesn't as applied to Donald Trump. They use very strong language there as well about Donald Trump's conduct
Starting point is 00:57:05 being like completely against what the whole concept of the presidency is for, to take care, clause to ensure a peaceful transition of power. But, you know, one of the most important things, the dates and deadlines that they set for Trump knowing he's going to delay, where are we at now? Where do we go from here, Michael Popuck? Yeah, let me just, I'll do a very, very quick for those that didn't see the hot takes for the midweek, but very quick. There was a complete dismantling, as we expected, of all eight major arguments
Starting point is 00:57:36 raised by Donald Trump, including a finding by this panel, this three judge panel, which is how generally law gets made at the court of appeals level. Judge Pan, Judge Henderson, and Judge Childs. And we waited what we thought was in an inordinate amount of time, but in reality, in appeals one full month, even though when we're looking because we're looking at the trial calendar and the cascading effect of when this decision comes out and if there's going to be a Supreme Court involvement or not on it about presidential immunity, you know, it was meaningful to us and that's why we got impatient.
Starting point is 00:58:18 Reality is one month for such a momentous decision, arguably one of the most important decisions by a court of appeals in the last 200 years took some time. Let's be frank, took a minute. And they had to address all of the issues that we saw anticipated, that we anticipated from the listing of the oral argument. Do they have jurisdiction at this moment in time before the end of a case to decide the issue? They spent 10 pages of their decision just about whether they had jurisdiction or not. And so that was something that was driven by Judge Childs, like for instance, during the oral argument. Then they got into the whole issue about, you know, official conduct versus discretionary conduct, you
Starting point is 00:58:58 know, and discretionary conduct being usually beyond judicial review, only something that can be reviewed by the body politic in voting. You don't like the way your guy or that guy implemented something that the Congress has given or the Constitution has given, that president, the discretion to do, then you vote him out or you impeach him. But there's nothing short of that. You can't use the criminal justice system. Or does all of the things that Donald Trump just talked did, or in his indictment alleged, fall within his official conduct? And therefore, you know, are we going to set the rule here forevermore that a president in his official conduct, a non-discretionary can be indicted if that conduct crosses the barrier and triggers violations of Congress's federal criminal code, yes or no.
Starting point is 00:59:46 What's the law going to be? And they completely dismantled all the arguments by Donald Trump that you use the civil context analysis about this. You stretch to the furthest outer limits of the powers of a presidency and then only if you find it's out, they said we're not using that doctrine. That's not the right framework to use I mean look this is where the common theme here, especially we get the judge cannon is misapplication of standards To reverse engineer to get to the result that you want And so Donald Trump wanted to get to a certain result so he's the wrong standard and the judges on judges on the, it was unanimous, procurium decision, we don't know who exactly wrote
Starting point is 01:00:28 it, they all wrote it by this virtue. They said, no, you, that's the wrong standard. And that issue of official versus discretionary, that was probably led by Judge Henderson because that was her issue that she spent a lot of time with during the oral argument. And then kind of, I think, the overarching analysis, I think, was conducted by Judge Pan, who we were so impressed by in the way she handled herself for the oral argument. And that had to do with just getting right down to brass tacks. Does the structure of our separation of powers allow an unchecked Leviathan president to violate the criminal law of the of the set by Congress and not allow the executive branch through its Department of Justice or the
Starting point is 01:01:16 Judicial branch through the article three powers of judges to check and an out-of-control President who committed crimes while he was in office, yes or no. Sounds so simple in its essence, but it is the heart of the issue. And the answer, they answered that question. The answer is no, that the framers of the Constitution would never have allowed an out of control president without a check or balance,
Starting point is 01:01:44 and allow him to violate the Congress's law, which is criminal code in this case, and not be prosecuted by another branch, another wing of his executive branch, which is the Justice Department, nor have his behavior evaluated for possible criminal violation by the judiciary. No way.
Starting point is 01:02:06 And so we went from there. And then not only did they dispatch of all of the major arguments, mainly being separation of powers, and oh, you got to impeach them first. And they said that is a ridiculous argument. This is where Judge Pan was able to completely eviscerate John Sauer during the oral argument
Starting point is 01:02:24 on the now infamous SEAL Team 6 question. And her argument is, even you conceded that a president who committed crimes could be indicted criminally by the criminal justice system, you just think it has to go through an impeachment process first. Well, since we completely showed you why the impeachment process can't possibly be, your reading of it can't possibly be what the literal text of that language says, then since you agree with me that your guy can be indicted, you just think it has to go through an impeachment
Starting point is 01:02:58 process. We're just telling you it doesn't. And here's the reason why. And so once she did that, and then in a footnote, then they, they, they said that Trump conceded any First Amendment argument that he had, remember all his First Amendment tambourine shaking that Donald Trump likes to do at every hearing or every, every press conference, I had First Amendment right. This is all about my First Amendment. They said, you waived your First Amendment right argument And you waived your due process argument. So all we're talking about here
Starting point is 01:03:28 They did that in a little two-line a footnote So they not only completely adopted completely agree with Judge Chuckins ruling But they in there in the way that they wrote it and the foundation of it They have given now the Supreme Court a difficult decision to make. It'll start with Roberts because Chief Justice Roberts is the administrative circuit judge who sits over the DC circuit and he'll now have to figure out with his other eight, whether there's four votes to take this case up to the United States Supreme Court. If there aren't four votes, then they're going to leave undisturbed the D.C. Court of Appeals
Starting point is 01:04:10 decision and that's going to be the decision. The case gets back to Judge Chutkin quickly and she sets a hearing and then resets that trial for June, July, or August, whenever it's going to be, to giving Donald Trump some more time to prepare. Judge Ludig, in the interview that I do tomorrow, that you'll be airing tomorrow, he had two predictions. One, he doesn't think the Supreme Court's going to take this up, that they're going to just leave it alone and not take it up, because his fear is, if they do take it up,
Starting point is 01:04:42 this is the timing issue, that even though things can move quickly at the Supreme Court level, that it won't move quick enough to let the trial happen before the November election, and that's as big a sphere. You know, one of the things that we were discussing is, what is the DC Circuit Court of Appeals doing? Why is it taking them so long? Are they struggling with any issues? No, they just wanted to put together a very fulsome, detailed, meticulous order.
Starting point is 01:05:14 Then they also kind of, I think, recognize implicitly to Judge Tanya Chutkin. Sorry, that took an extra week, but we had to do our job. Here's what we're going to do. Donald Trump, you have now until February 12th, they gave a set deadline knowing that Donald Trump would try to seek to delay delay. You have until February 12th to bring your petition for certiorari before the Supreme Court or will issue our mandate to Judge Tanya Chutkin to continue starting back the proceedings which have been stayed since December.
Starting point is 01:05:48 And this DC panel, the Circuit Court of Appeal panel, also made clear that if Trump tries to petition the unbunked panel spelled E-N-Space-B-A-N-C, meaning the entire, all of the judges who comprised the DC Circuit Court of Appeals, that just merely petitioning that panel would not continue to stay their mandate. It would have to first be heard by an unbunked panel because what Trump would try to do is, well, first let me go to the unbunked panel and seek a delay there. Then when I lose there,
Starting point is 01:06:22 then I'll go to the Supreme Court and try to drag this out months and months and months. So merely petitioning for unbunked review will not stay the mandate. It will only be if the Supreme Court agrees to hear oral argument, will the mandate continue to be stayed until such time as the Supreme Court rules. So by giving Trump just that less than a week turnaround, in my view, it kind of makes up for that probably 10 days. It came in about 10 days later than I thought it was going to happen. I thought the latest, it would be February 1st. They put it out February 6th, but then they really adjusted that schedule to prevent Trump from having to leave. Can I mention one thing, though, Ben, to tie something back together again?
Starting point is 01:07:06 I now believe that one of the reasons that Robert Herr waited so long to issue his report, this new February surprise, is that he was waiting to see what would happen with the D.C. Court of Appeals because it came right on the heels of that because he mentions immunity in his discussion. And so I think that report was done based on reporting four, five, six months ago, including an interview with Joe Biden. So see how everything, one of the thematics on and on this show
Starting point is 01:07:35 is that things hinge on other things. And they've been waiting just as, just as I think the DC Court of Appeals hurried up to make sure that their order came out before Thursday's oral argument because they felt that had importance. So judges and prosecutors do look at the clock and the calendar and developments in other cases for their own case. Let's talk about what's going on before Judge Eileen Cannon in that case.
Starting point is 01:08:05 There's purportedly a trial date still for May of 2024, but we all know that that's completely a joke May 20th, 2024 will not that trial dates not going to happen. There's supposed to be a status conference March 1st of 2024 to kind of deal with, you know, where, where everybody is in this case. Trump also filed another motion to try to adjourn other kind of filing dates and deadlines that he should have filed things back in November, which Special Counsel Jack Smith called him out for. But what Donald Trump's trying to do in that case is a combination his whole strategy
Starting point is 01:08:46 You know knowing that he's got Judge Eileen Cannon who's complicit the strategy is gray male Threaten the Department of Justice that they will Basically take the classified information in the case and try to make it public to undermine National security unless the case is dismissed. And also threaten and intimidate witnesses who are subject not to necessarily the SEPA protective order, which deals with classified information, but some of the standard things that take place in federal criminal proceedings that are subject to the standard federal criminal protective order, which says that discovery materials and like that you have to turn over to a criminal defendant.
Starting point is 01:09:32 You usually have to turn over to a criminal defendant if it's exculpatory or there's certain time for when you have to turn it over if it's inculpatory. You could wait until the time of trial when it comes to a set of documents called Janks material. Trump wants to make that information public, like the identity of confidential witnesses and confidential witness reports with the government and FBI codenames, the types of things which form the very essence of why you have protective orders that are entered in these cases to keep the information confidential, meaning the defendant can see it, the prosecution can see it, but the public can't see it because it could jeopardize
Starting point is 01:10:16 other criminal investigations. It could result in stochastic terrorism where other people will then go after these witnesses, it could incite a criminal defendant to try to put someone's name out there and put a hit on people. So there's all of these reasons why you keep this information confidential under a protective order. The standard for keeping information confidential under a protective order when its discovery material turned over by the government to a criminal defendant is what's called a good cause standard. Is there good cause for the government to want to keep this information confidential?
Starting point is 01:10:57 And that's a fairly easy standard to meet. However, when it comes to filing things on the public docket, because there is this presumption of course that court proceedings are meant to be public, the same way if you were in a courtroom, the public docket has this kind of sacrosanct first amendment kind of view towards it. And so the issue there is it's a different standard than is there good cause to keep this information confidential? The standard is, is there a compelling governmental interest
Starting point is 01:11:36 that is narrowly tailored that overcomes a First Amendment presumption? So a compelling governmental interest is a harder standard to keep something confidential when it's on the public docket. So here's the scam, it's such an obvious one, and there's case law that protects against it. But here's the kind of, you know,
Starting point is 01:12:01 amateur lowbrow scam that Trump basically did. It's why I wanted to give you that framework so you can kind of amateur lowbrow scam that Trump basically did. It's why I wanted to give you that framework so you can kind of understand it. Trump goes, let me take all of this discovery material that I received, which is confidential under the Good Cause standard, which includes the names of all of the confidential witnesses in the case and FBI code names and confidential witness reports. What I will do, Trump says, or Trump's lawyer says, I'm going to file a frivolous motion to compel and just make up that the government hasn't turned over things, which they did
Starting point is 01:12:38 turn over. But why I'm really doing this is I want to attach as exhibits all of the witnesses, all the confidential government documents to throw it on the public docket. And then Trump goes, I'm going to argue that this should be released because the government has not shown a compelling government interest. Wink, wink, wink, Judge Eileen Cannon. So Donald Trump files the motion to compel, includes at first redacted copies of all the confidential witness stuff, and then tells Judge Eileen Cannon and Trump phrases it in a very mischievous way, mischievous way. way, mischievous way, he goes, I want to file redacted copies on the public docket. But what Trump really meant was to remove the redactions, as Special Counsel Jack Smith
Starting point is 01:13:32 pointed out, on all of this information of confidential informants, confidential witnesses, FBI code names. So Special Counsel Jack Smith responds to that and says, look, of course this stuff should remain confidential pursuant to the protective order. This really isn't a major issue. It should be very simple. Keep it confidential. Judge Eileen Cannon earlier in the week issues an order saying that Jack Smith, you did not meet the compelling government interest test. You did not show why your confidential witness lists, your FBI code names, why there is a compelling government interest to keep those witness lists, to keep the FBI code
Starting point is 01:14:21 names, to keep those confidential government reports secret from the public docket. Again, Trump has access to them, just like Jack Smith does, but keeping it outside of the public docket. And when I saw that ruling from Judge Cannon, I mean, it was horrifying. She's going to get somebody killed. And it should be so obvious that this information needs to be confidential. It's so rudimentary that you do not want to expose the names of confidential witnesses in the discovery process
Starting point is 01:14:52 who may not even be witnesses at the trial itself from public disclosure. It's so well known across the country. And by the way, some of the material that Jack Smith turned over earlier just to try to be meticulous and try to expedite the proceedings is material that the criminal defendant, it's called Jank's material, would never even get until after the confidential witness testified at the time of trial anyway, Jack Smith turned it over early to try to expedite the proceedings,
Starting point is 01:15:25 but because there was a protective order and Donald Trump says, I want to make that info public and Judge Eileen Cannon's like, yes, let's make it public. So Special Counsel Jack Smith filed this week on Thursday a motion for reconsideration, a precursor to an appeal of Judge Eileen Cannon's order and basically said Judge Cannon, you applied the wrong legal standard. Number one, it's not a compelling government interest to keep it confidential off the public docket. You have to apply the discovery standard just because Donald Trump takes the discovery and attaches
Starting point is 01:16:05 it to a frivolous motion to compel, doesn't convert those confidential documents into public documents that are subject to a compelling government interest test, your honor. It is still the good cause standard. So you applied a clearly erroneous standard by saying that the government failed to show a compelling government interest about why these documents should remain confidential. It should be a good cause standard, which we clearly meet that standard. And then Jack Smith cites the 11th Circuit case, which just says that in no uncertain terms. She didn't follow the most basic law. But then Jack Smith also says, you would also cause manifest injustice even if you
Starting point is 01:16:55 used a compelling interest test. There is a compelling interest here. The compelling interest, Judge Cannon, is you are going to get people killed if you disclose this information. And there have been many, many witnesses who have been threatened here and in other cases, and it is well recognized that a compelling government interest in general is protecting witness safety. So even though you have... The judge has been threatened.
Starting point is 01:17:23 There's a woman who just got sentenced to three years for threatening cannon in this case in Texas. Judge Chutkin. No, no, no. Judge Cannon has been there's a woman in Texas who just got sentenced to three years for attacking Cannon in the Mar-a-Lago case because she thinks she's siding with Trump. This is what Jack Smith was referring to when he said in his briefing, even your chamber and you have been threatened in this case. And so there you have Jack Smith saying, look, you're applying the wrong legal standards. You're making an egregious error on a very simple issue.
Starting point is 01:18:08 Popak, this is the type of mistake or intentionally malicious conduct by a judge. She's finally made a ruling. It still was not like a ruling on a substantive motion to dismiss her. I think it was still an odd ruling that she's like, yeah, make the confidential informants and witnesses public, but that's the kind of mistake or intentional malice that we've been waiting for that Jack Smith has been positioning for
Starting point is 01:18:37 where he can finally go to the 11th circuit and he's doing it the right way too by taking this another step to say, we're giving you another shot right here and Showing you how because he could have went to the 11th circuit directly Right, but wants to kind of lock it in that even when presented you're gonna do the wrong I thought it was a brilliant move by Jack Smith, but finally the walls are closing I agree the 11th circuit as you've noted in the past and I've referred to it in an hot-tick, as a lemon law, basically, if you screw up three times on substantive issues in a case, you may have disqualified yourself as being the presiding judge over a complicated
Starting point is 01:19:16 case. And we're watching now. She's already screwed up twice. She had two appeals and reversals before the case even reached the indictment phase when she tried to interfere Judge Cannon in the search warrant and the continued investigation of Donald Trump. And the judges, including the Chief Judge and the 11th Circuit Judge Pryor said, basically, what are you doing? You're not supposed to be involved. That's for the executive branch. You're a judge. Go look on the back of your door. Why are you interfering? And now we've reached the point,
Starting point is 01:19:50 even though there's been a lot of these one-line paperless orders and slow footing, a trial dates which are all within a discretion of a trial judge. But now you've got a fundamental misapprehension of law that matters. There is a reason, you know, and as you alluded to, as Jack Smith said in his papers, you're putting at risk 12 different witnesses for the government that are not supposed to be
Starting point is 01:20:16 known to anybody but the defense until the day of trial. It'll interfere with their testimony. It puts their life at risk. And you know this judge, and you know, alluding to without naming it by name, she's been threatened with an assassination on her with emails and text messages to her chambers. Judge Chutkin, as you referenced, has, every judge has. And they quote in the, I love when they quote Judge Reinhart, who's the magistrate judge who we've we don't talk about a lot He's almost been he's almost been assigned to the dustbins of history
Starting point is 01:20:50 But he is that really good sober appropriate mature federal magistrate judge under under Judge Canon who who addressed the entire search warrant issue Cannon who who addressed the entire search warrant issue Listening to the evidence a finding probable cause allowing the search warrant and ultimately being upheld He he quoted the very reasons why you you protect Witnesses in this case and potential witnesses janks material and grand jury secrecy And outlined all the ways that Donald Trump and the people around him have docs attacked and threaten witnesses and they just they just take a cut and paste
Starting point is 01:21:30 right out of Judge Reinhardt and stick it into the filing with Cannon. They've given her a chance she's put hit temporary pause recognizing that I don't know how she missed the wrong standard and yes That is an F at f up of epic proportions That is not only reversible error, but will get you in trouble with your bosses the 11th circuit I mean that's a big miss to say you needed to meet the standard of clear and convincing whatever it was instead of just the lower Good faith in asking for it And they even put her back on her own heels and said to the judge, you're the one. And we have operated on the assumption
Starting point is 01:22:10 that all of this is confidential because you signed a confidentiality order that required everybody to keep private names and rank and serial number of people. And now you're telling me that you're gonna disclose to the media 12 witnesses? I mean, what is going on? But fortunately for justice is where we end the U and I end up.
Starting point is 01:22:36 This is now one she if she screws up the motion for reconsideration. She's giving Donald Trump an opportunity to respond to the sort of full briefing on it. She screws that up and she doesn't reverse course and seal again or don't seal. He has a fast track ticket right to the 11th circuit and he probably has another one which you touched on and I know you'll be doing a hot take on it later, which is this whole issue of she's ordered him independently on a related issue to unseal a document by today. So if by today that doesn't happen He's got no choice But to do something about it probably at the 11th circuit or get relief somehow because he's not gonna be pretty
Starting point is 01:23:13 He's not gonna be sending over to Donald Trump this unredacted unsealed document Yeah, she ordered him to turn over in a sealed fashion Okay, a document that was submitted ex parte, meaning just to the court and under seal, meaning confidential from the public docket that involved threats against a witness. The reason that it was turned over in an ex parte fashion and not turned over to Trump is it really doesn't have anything specifically to do with this underlying case, but what it reflects is
Starting point is 01:23:49 when it comes to the manifest injustice part of special counsel Jack Smith's Motion for reconsideration is showing how a witness is being threatened and how there's a another United States Attorney's Office criminal investigation currently taking place. And potentially with the implications being is Donald Trump or one of the code defendants or someone who is an unindicted co-conspirator here involved in pushing these types of threats, which is that's one of the reasons why you'd want to submit it
Starting point is 01:24:28 Ex parte to the judge. Otherwise, look, if it is documents that have some relevance to the case, it should be turned over under a protective order to a criminal defendant, unless of course, it's really not related to the case or there could be a criminal investigation taking place into somebody who's involved in the case and that there's this additional need for it has nothing to do with this case. But look, Judge Cannon is clearly fumbling the ball. And one of the things she did though, fumbling would be putting it nicely. She required Trump to respond to the motion for reconsideration by, I think it was about February 23rd. So again, her dates and deadlines,
Starting point is 01:25:11 she's using the paperless orders as a way to push all of these dates and deadlines back, which I'll leave everybody with this thought while that is certainly frustrating and upsetting and this is an easy case, the documents case. Ultimately Judge Cannon is creating kind of ethical and judicial conundrums for herself that will have to be addressed sometime in the future, like anything where you try to ignore a small pain that grows into a bigger pain that grows into a big... Before you know it,
Starting point is 01:25:52 you ultimately have to address a ruling. She's compounding the problem instead of surgically dealing seriatim one by one with the issues as they arise so that will only eventually result in a cluster, you know what? The question is just when does that happen itself? Meanwhile, you have the Manhattan District Attorney case still scheduled for March 25th. We have the DC Circuit ruling, meaning the DC federal criminal case could start getting back into full swing. We'll see what the Supreme Court ultimately does or doesn't do there. And then we're looking at ultimately, potentially back-to-back criminal trials, back-to-back Trump being convicted of a felon, being convicted
Starting point is 01:26:48 as a felon multiple times, and then ultimately you have Judge Eileen Cannon, her case getting kind of pushed back to 2025 or later. And ultimately, at that time, with Trump being a convicted felon, I think special counsel Jack Smith can even take kind of more robust and aggressive actions against Judge Cannon at that time. It actually plays itself out in a better sequence if you were to have, you know, alternatively the Manhattan DA case and then DC or DC, then Manhattan DA, I'm perfectly fine with that, with Trump being hit with verdicts and judgments in the amount of over $500 million, half a billion dollars.
Starting point is 01:27:37 One comment on that before you leave, because we'll follow it closely on Legal AF and Minus, 15th of next week on Thursday, big red letter day for Donald Trump, we're gonna get a final hearing by Judge Mershan on when he's gonna actually set that. We vote Stormy Daniels, Manhattan District Attorney prosecution of Donald Trump. It's been on the books for the 24th,
Starting point is 01:28:02 but he set a hearing for next Thursday to really decide what to do. By that time, he may have spoken to Judge Chutkin. We'll know on Monday whether Donald Trump is taking the appeal to the Supreme Court. We'll know whether Roberts does a temporary administrative stay of the case on the D.C. Court of Appeals issue pending a full result or he just rejects it. He just rejects it and that's the data point that Judge Marshawn has. He may have already picked up the phone and spoken to Judge Jutkin
Starting point is 01:28:30 and we'll have to see how they've arranged the two trials that you've just talked about. Who is gonna go first? And we'll know more Thursday and that's also the day just to anticipate next week's show. That's also the day that Judge McAfee, if he holds his evidentiary hearing on whether to remove Fonny Willis and Nathan Wade as prosecutors and or dismiss the
Starting point is 01:28:51 indictment, he's going to hold it on Thursday. Everybody remember to check out Michael Popak's interview with Judge Ludig tomorrow morning, so Sunday morning at 1 Eastern, 10 AM Pacific right here on the Midas Touch YouTube channel. We'll also put the audio on the podcast feed later on Sunday or perhaps even Monday, but it'll drop on the podcast feed as well. I know you'll all enjoy greatly that very thorough interview. Make sure you subscribe to the Midas Touch newsletter, slash newsletter. It's free to subscribe to the Midas Touch newsletter. Also, make sure you subscribe to the YouTube
Starting point is 01:29:37 channel. Let's try to get to 3 million subscribers here on the YouTube channel before the summer. I think we can do it together, but we will see. Hang in there, stay calm. The wheels of justice are heading in the right direction. We're grateful for you. We're in this together. Democracy will prevail. Justice will prevail. We'll see you next time on Legal AF. Shout out to the Midas Mighty.

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