Legal AF by MeidasTouch - Trump VERY SCARED of RAPID Court Developments

Episode Date: January 4, 2024

Defense attorney Michael Popok & former prosecutor Karen Friedman Agnifilo are back with a new episode of the midweek edition of the Legal AF pod. On this episode, they debate what will happen next with: (1) Trump being banned from the ballot in various states, as the Supreme Court gets primed to review the 14th Amendment disqualification issues and who can disqualify Trump, and Trump files a petition to appeal the Maine decision; (2) the DC Court of Appeals as final briefs are filed by the Special Counsel and Trump before oral argument on whether Trump has absolute immunity from criminal prosecution; (3) the Biden Administration going to the Supreme Court to get razor wire cut a the Texas border, as the MAGA GOP begins impeachment proceedings against the Homeland Security Director and (4) Mark Meadows and his efforts to have the entire 11th Circuit rule on his attempt to move his Georgia Criminal case to federal court to then seek its dismissal, and so much more at the intersection of law, politics and justice. DEALS FROM OUR SPONSORS! Trust and Will: Get 10% off plus free shipping of your estate plan documents by visiting https://trustandwill.com/LEGALAF Rhone: Head to https://rhone.com/legalaf and use code LEGALAF to save 20% off your entire order! SUPPORT THE SHOW: Shop NEW LEGAL AF Merch at: https://store.meidastouch.com Join us on Patreon: https://patreon.com/meidastouch Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Learn more about your ad choices. Visit megaphone.fm/adchoices

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Gambling problem, go 1866-531-2600, or visit connectzontario.c. Please play responsibly. Welcome to the midweek edition of the Legal AF podcast only on the Midas Touch Network with Karen Friedman, Ignitvolo and me, Michael Popok. Today we dive into and debate one, all things Trump and immunity.

New briefs have been filed at the DC Court of Appeals gearing up for a January 9th oral argument, and perhaps Trump being in attendance will have to wait and see. As the United States Supreme Court stands on the sidelines for now, the entirety of the Department of Justice's criminal case against Trump scheduled for March hangs in the balance. That's all. Two, we're going to debate and discuss all things ballot banning with Trump finally getting around to appealing to the Supreme Court as to whether he is a federal officer, subject to being disqualified as a rebel and or an insurrectionist against

the Constitution, and even if he is, which branch of government decides legislative or judicial, while Trump also files a petition to appeal mains ballot banning as well. 3. Asking all the judges of an appellate court to reconsider a ruling of a three-judge merits panel in federal court is all the rage. Meadows, Mark Meadows, has asked the 12 members of the 11th Circuit to reconsider a decision that was written by the chief judge of that circuit that he cannot remove his Georgia criminal case to federal court as a ticket to seek its ultimate dismissal on what else immunity grounds, while Trump has lost in his bid to get the entire

second circuit court of appeals to reconsider whether he waived his immunity to stop the E. Jean Carroll defamation and puner of damage case, which is also scheduled for the next two weeks. What is an on-bunk request and how do you seek one? And if you can't get one or you lose, what happens next? Finally, we dive into immigration. With the Biden administration taking on Texas, the governor abdits efforts to interfere with federal immigration policy at the U.S. US Supreme Court as the Maga Congress

commences political theater by moving to impeach Homeland Security Director, Mallorca. All this and so much more only one place on the dial, legal AF on this might as touch YouTube station. There's Karen Friedman, Knifleau, She's in Florida. I'm in New York. I'm so glad to see one of my best friends and colleagues to start and kick off the New Year Karen. How are you? I'm good. Happy New Year. It's 2024. I can't believe this is our first midweek edition in 2024 and so much is going on, right? If we thought we were going to have a break and have a time to catch up and read those brief? If we thought we were going to have a break and have a time to catch up and read those briefs that we haven't been able to get a chance to really dive deep, nothing is slowing down. In fact, it's heating up in such a way that it's

you're almost playing whack-a-mole trying to keep track of everything. Yeah, I agree. And just to compliment you, and then we'll talk then there are very few shows on television or on YouTube where the people that are doing the legal analysis are actually practicing lawyers and not just commentators. As I say in some of my hot takes, the lawyers who know what they're talking about at the intersection of law politics and justice,

you've come to the right place. You are in a trial proceeding right now in Miami. I was in one two weeks ago in a civil matter and arbitration. I defy any of our competitors to have to firms two of their three co-anchors to have tried cases in the last 30 days. It's exhausting. It's exhausting to keep up and work. It's hard to work several full-time jobs, but it's fun, right? What else are we going to do with our time? Highlight of my day. And I've had a lot of highlights today. This is the highlight of my day. Always when I get together with you. Okay, let's dive into. Where are you going for a sprowpock?

What do you want to talk about first? I think I want to talk about Trump and immunity, of kind of not that there is a priority here, but I think that's the one people that are most interested in right now. I'm going to frame it and I'll kick it over to you. You've got the argument as I think ill conceived as it is, the Donald Trump can do any president according to Donald Trump,

as long as he's wearing the cloak of being president and has some sort of nexus with quote unquote, official duties of the president, can get away with murder. There's no other way to put it. I mean, I saw some writing today, including one of his former lawyers commenting to take Donald Trump not even to a ridiculous extension of his argument. His argument is that Joe Biden, currently the president, could kidnap Donald Trump and whisk him away to some layer and or do something bodily injury to him. And it's all okay, as long as there's some sort

of connective tissue between Donald Trump and the official actions of the president. That can't be the law. I don't wanna live, let me put it this way. I don't wanna live in a country in a constitutional republic where that is the law. And I don't think the justices of the DC Court of Appeals, nor the majority of the US Supreme Court

want to live in that world either. And so the way the issue's been framed now, we have a fully briefed issue. And when I say a fully briefed issue, a little breakout, we'll have a couple of breakout sessions of League of Legends law school tonight on a public practice. A fully briefed issue is the person who taking the appeal,

and that's Donald Trump. He lost at the trial level to Judge Chukkin. Judge Chukkin, the trial court judge, who was presiding over the case, the trial was going to, hopefully going to trial in March or sometime thereafter, on four conspiracy counts against Donald Trump only in the District of Columbia. She ruled on a motion to dismiss

that was filed by Donald Trump that he does not have any kind of absolute constitutional presidential immunity against the criminal indictment to have it dismissed before trial. No way, no, how? That is up on appeal because Donald Trump filed an appeal.

He gets because he's filing the appeal or anybody that files the appeal, they're known as the appellant, they get two briefs. And it might seem unfair, but that's the way it works. Whoever brings the motion or the appeal or anybody that files the appeal, they're known as the appellant, they get two briefs. And it might seem unfair, but that's the way it works. Whoever brings the motion or the appeal usually gets two briefs. The opening brief, the initial brief, whatever, the appellant's brief in this case, then there's a brief in the middle, which is the opposition paper. That's by the special counsel department of justice, and then you have, so that's the Apalee, the Apalee's brief. And then there's a reply brief. Now, that's all been briefed, except in the last week, we've had Jack Smith file the opposition brief. We'll talk about that. And Donald Trump file a laughable

I think something that could be stricken from the record if Jack Smith wanted to do that ridiculous reply brief. The reply brief, I'll start backwards. The reply brief, my Donald Trump, is not supposed to introduce new evidence. It's not supposed to introduce things that were in the record below. It's not supposed to introduce made up, fabricated, legal authority that Donald Trump himself posted on social media a day before he filed the brief,

yet cites it twice in the brief, aha, there's fraud in elections. And what is he site for that? Donald Trump on fraud in elections. A 32 page there it is. 32 page anonymously not signed piece of you know what that is has been come all of the allegations of voter fraud. He says are in there.

He says these are top election officials. They're so top election officials. None of them wanted to sign their name to this. And it's every debunked and rejected and investigated and rejected allegation of voter fraud out there. All stitched together one place. It's like if Mike Lindell, the pillow guy, Sydney Powell at her height and all the other crazy's got together and wrote a brief. And Donald Trump sited in his own, where his lawyers do, in their own reply paper. I'm going to make a declaration right here. I'm going to draw the line in the sand. Every, every allegation that Donald Trump makes in that brief, that there was voter fraud in the seven swing states or the battleground states has been completely debunked

and rejected by federal courts in 62 cases, state and federal by every secretary of state of every state that's evaluated in the seven battleground states. The FBI, the bureaus of investigation of every state that I'm gonna, that I've just talked about, the head of the cyber security and election integrity of the United States, the Department of Justice then under Donald Trump, all Donald Trump's own fraud experts that he hired as consultants and paid millions of dollars to all have rejected everything in that 32 pages.

But I have a question. I'm sorry, get it right into the third. Yeah, it finds its way into the reply paper that is the final word for Donald Trump. I think it pisses off the three judge panel that's going to be heard on January 9. I think it annoys them and demonstrates that the emperor, this case, Trump, as disgusting as this might sound, has no close. Well, especially now that we know those other facts about him. So I have a question though. How do lawyers like Todd Blanche and John Loro, who are,

who used to be, I mean, they're lawyers. They're not like Alina Habba or, you know, I mean, they're lawyers. They're not like Alina Haba or, you know, what's her name? Kim Crazy. For some reason, I'm blanking on her name when I put a bill. Yes, and he powell Rudy Giuliani. Yeah. Do you know what I'm saying? Like John Loro and Todd Blanche were respected lawyers. And even if you disagree with who they're representing, how could they lawyers and even if you disagree with who they're representing, how can they put that in the reply brief? And that's what the question I want you to sort of theorize about because you and I both have had difficult clients. We have had clients who have wanted us to do things that go against our ethics that we

won't do. And there are ways to do it, right? If you're forced to do it, you do it in a way that you're signaling that the client, you're not throwing them under the bus, but you're also sort of distancing yourself and disavowing, you're not adopting the crazy. What is your theory as to why John Laro and Todd Blanche

would include that ridiculous 30-something page set of non-facts. Self-created, self-fabricated, self-serving piece of self. Let me try it this way. I totally, it's a great question. I totally agree with you. I've been trying to watch these people that used to have a shred of dignity and professionalism and watch it all disappear and wonder why. Because you and I have fired clients, I know it. I know it without even asking you, I know that you have, who have asked you to do things that are unethical

or to take positions in the, in the filings or papers that you know to be untrue. First of all, you're an officer of the court. You are an officer of the court. I'm talking to you, Laura Blanche, Kice, forget Hava. You have an obligation to be forthright, diligent in your positions,

inform the court of countervailing arguments, even if they of course go against you, and the like. You took an oath, both when you became a member of the bar, and again, the member of the federal court or a pellet court, which you were in. The fact that you, because, well, I can tell you right off, Loro, the number one client in the firm right now,

generating dollars for Loro, is Donald Trump. Chris Keiss literally left a large major firm here in New York, no in Florida, to serve one client, Donald Trump. And he's gotten millions and millions of dollars in the last two years we know, it's been publicly reported. And Todd Blanche did the same thing. Todd Blanche left the major firm and opened up his shop with one client, Donald Trump. Now, they're either true believers, in other words, from a political magus standpoint, because I can't believe that the Donald Trump is so captivating and so magnetic that they just,

oh, whatever he says I'll do, it has to be the Almighty Book. It has to be that they are willing to sacrifice on the altar of greed, their professional ethics in order to make Donald Trump happy. Because you and I, if you and I in the middle of the night, write in a brief, got delivered to us from Donald Trump, right, from Boris Epstein, let's say, who works closely with Donald Trump and is the puppet master for some of these lawyers It says here you go. We just got it and that I you and I looked at it Well, let me see what this is. This might be good for let me take a look Okay, who wrote it? We can't we can't reveal that well, what's it based on the whole bunch of news articles and MAGA and And thrown in there for a good measure is a whole bunch of the Q&A stuff. And all of it's been rejected.

And what do you want me to do with it? I want you to cite it in the brief. You and I would go, no, F in way, you write it. I'm not, don't put my name on it. That's what lawyers do. They're a customer that's multiple lawyers. Like, don't put my name on that. Because by signing that brief,

you're saying that you're making a good faith legal argument. And you can be sanctioned by the court or referred to the bar. So I think it goes beyond pissing off the three judge panel, which they're going to piss off. I think it's going to be judgepan as the chief judge for the three judge panel. She's going to be pissed off by these citations and wait. You and I are going to be just biting our, you know, lips, with laughter watching the oral argument on this one. What's your theory? Why have they written, including new evidence, new non-evenants, making arguments, they shouldn't be making a reply brief, why are they doing that? Why do you think?

Well, so those are two different questions, right? I think they're just throwing the kitchen sink in there and everything else because they're not really playing to the audience of the appellate courts. They're just putting everything out there for the Supreme Court and for the court of public opinion, right? Because that's their ultimate, both ultimate audiences. They know they're going to the Supreme Court, and so they're getting it all out there now. And I think they're test driving certain arguments and seeing what works in the courts

and what doesn't, what works in the Court of Public Opinion and what doesn't, and then they can refine them when they get to the Supreme Court. I think at a certain point when you know you've lost already and you have nothing to lose, then you're not going to do anything other than just throw, I've been calling these Hail Mary approaches to practicing law where you just throw everything in and you go for it and you see how it works, you see what sticks. And I also think Donald Trump has a way of just repeating claims that are false and somehow they become true. And that's something I think about a lot

because when I talk to people who I'm either friendly with or family members who are on the right side of things, they will often spew these nuggets of facts, or I should say, facts with air quotes, that it's just recycling things that Trump is saying, and they don't do any analysis. They just sort of hear it over and over again and then they start hearing it from different people because then you get the Fox News people repeating the same thing and you get

the Tucker Carlson and Sean Hannity and and whoever else you you get out out there who start to rinse and repeat these ridiculous arguments and suddenly there's their facts. Well, people are saying them. So more than one person is saying them. So I think that's part of it, is this echo chamber of information,

and they're just all in. They've decided to go all in with Trump, because it otherwise makes no sense, because they've decided to go all in with Trump because it otherwise makes no sense because they've kind of decided that he's their guy and they're all in and hopefully he'll win and then anything that happened to them, they're tipped, their tic it is punched and they're golden, right?

Nothing will happen to them. So I think it's, yeah. I's yeah. I'm sure all the other lawyers like all the ones that have been died and are lost are law licenses felt the same way. I mean this this is not this is not the varsity. This is not the junior varsity This is like the freshman team. This is what's left of the lawyers that are willing to represent Donald Trump as I said in prior hot Texts there are amazing law firms in this country. Some of them even reach the level of the top 200. These are not, this is not the top of the class here.

All the lawyers that we've seen that have entered appearances here are, I'm sorry, they're just not at the Kremlin, the Kremlin, they don't match the lawyer in the Department of Justice side and they don't match the the jurisprudence or of the of the judges and their backgrounds and experience. It's a mismatch of epic proportion. I don't think, let me ask you something. I, I've always said this about the immunity argument and the argument is that they're under a series of cases, including one that came, I wanted you to talk about one that came out of the Manhattan District Attorney's Office, because if you had to just strip away all the cases, there's really three or four cases that all the parties are relying on in front of the District Court of Appeals. It's the

Clinton Paula Jones case, which is a civil case. It's the Nixon V Fitzgerald case, and it's the Trump versus Sivance case. They're all aiming, not for the DC Court of Appeals, but both Jack Smith and Donald Trump are aiming for a higher authority, and they're trying to find their fifth vote at the Supreme Court level. And Kavanaugh, who wrote a lot in the side vans, but I think really unbalanced against Donald Trump's position. There's snippets here and there if you take them out of context. It looks like maybe Kavanaugh would support establishing

a rule that there is absolute immunity for anybody that served in office against any crime that they have committed while they served in office, because that's what the framers of the Constitution wanted. But that's what they're aiming for. They're aiming for it. They're trying to collect votes. They need five votes at the Supreme Court level. And John Roberts is going to struggle to find his five votes to not establish that precedent

if they even decide to take the case. The easiest thing for the Supreme Court is to do is let the DC Court of Appeals make their ruling two or three days after the oral argument. It's a very good panel, Judge Pan knows what she's doing, so to such a child, the other one too, and they make their ruling. They're going to rule against Donald Trump. I mean, no spoiler alert here. They're ruling against Donald Trump.

If Donald Trump really believed he had, I'm going to do it this way, temporarily. If Donald Trump really believed he had a compelling argument, he would have raised it when the indictment came out against him by the grand jury because nothing in his motion papers or his appeal has anything to do with the documents and discovery produced by the government against them. It all has to do with the four corners of the face of the indictment. That indictment is a year old. If he wanted to actually have, and he thought he really had a great argument, you would have

done it the day after the indictment or a week later, not a year later. The reason you waited a year is because you know it's a BS argument, but you're using it to throw sand in the gears to avoid the March trial so you can get to the November election. That's it. If you and I represent a Donald Trump, God forbid, I don't even know what to cross because that's not my faith. But if you and I represent a Donald Trump God forbid, I don't even know what to cross because that's not my faith, but if you and I represented Donald Trump, you don't make an ex pop up. I can tell you that.

Whatever, whatever this is, I don't know what to do. I feel like Joe Biden, I love what Joe Biden uses his his his his faith, but we did, okay. We would look at the indictment. If we thought we had an immunity argument, you and I would file that within a month of the indictment. The reason he's waited till now is not because it just domed on the lawyers, they should get around them doing it or it took a year to research. Obviously, what they've written, this takes about an hour to research, it's because they know they're going to lose. And as you said, this is all being tried not in the court room where they know they're going to lose, but in the court of public opinion, public fundraising, and to try to get to the

election in November. This is just trying to get to the finish line and outrace all of these suits by Donald Trump to get to the note. That's why he's running. This guy didn't want to run for president the first time. The only reason he's running for president the second time is because he wants to avoid if he can a conviction or sentencing. That's it.

That's the only reason. Getting back to what you were saying though about this being a reply brief and you're only supposed to reply to the issues that Jack Smith raised in his opposition to your appeal. One of the, what I found most interesting about this, and I want you, if you can, speak to it, because I'm still trying to wrap my head around the argument, to be honest. You know, under the theory you open with your strongest argument, you want to kind of put your best foot forward, et cetera. I found it interesting that they opened on this reply brief with a totally new issue

that seems to have been missed by Jack Smith. It seems to have been missed by all the legal experts and people who are commenting. And I think it was raised in an amicus brief where they were talking about this case midland asphalt, which basically says that it has to do with whether or not they can do this interlocatory appeal. There's two ways to appeal, right? You get convicted and you appeal after the fact the way everybody else does, but there are a few issues that you can appeal midstream.

And essentially, Jack Smith all but conceded that you can, that this case will be stayed, we can press pause, and that we're gonna go forward. But I'm not sure, and I think that worried Trump. And so that's why they came out and they came out kind of arguing this brand new issue, that I'm not sure it is really 100% frivolous. I don't know, and I just wondered, how did everyone miss this argument, right?

And why not at least make it? I just thought it was sort of strange that Trump felt the need. Of course, he had to address it because it's in one of these amicus briefs, but seemed the fact that it was first, I thought was sort of interesting. Did you, do you make anything of that? Yeah, I do. Well, first of all, the DC Court of Appeals has told the parties, they need to be prepared to address at least two or three of the amicus brief, the friend of

the court that have been filed. One of them, one of them, my senior partner here at my law firm, Nicholas Rothstow signed off on. I'm proud of that. It's the article two argument that that. It's the article two argument that whether there's immunity or not, it certainly wouldn't be a president at the time interfering with the article two's peaceful transfer from one administration to the other. That wouldn't be the one that you would do. But the one you're talking about, I liked as well, that was raised by another series of lawyers including Ty Cobb that used to work for Donald Trump directly, in which they argued that when the framers of the Constitution wanted to immunize a federal officer, they knew how to pick up their quill pen and write it into the parchment.

They knew how to immunize by using the actual language that they wrote in. And they used as an example that there are basically only two actual immunities that stop a lawsuit in its stop a prosecution in its tracks at the indictment stage, even without trial. There's only two according to this analysis, right? I thought it was a good one. And so good that the Court of Appeals said, hmm, that's interesting. We want to hear about that.

It's very similar, Karen, if you remember, we'll talk about it later too, where the 11th Circuit in deciding whether federal removal was available to a former federal officer to take the case from Georgia State Court indictment to federal court for Mark Meadows and others, whether it applied to federal former federal officers, the operative word being former. No one had briefed that, no one had argued that. In fact, in 190 years,

there hadn't been any jurisprudence or precedent about whether it applies to a former federal officer. Not only did that become a key issue, it's the grounds upon which a chief judge prior in the Meadows case ruled. And they told the lawyers on either side to be prepared to talk about this former thing too. Now here. But aren't you surprised that Smith missed it? I don't know.

It might have to come from Ty Cobb. I mean, no offense to Ty Cobb. So, so we finished the argument and I'll come back to the myths. I agree. Yeah. The argument is there's only two types of immunity that are written into the constitution that stop an indictment and it's trucks. One is speech and debate, speech and debate clause immunity, which is you are a member of the House or Senate, and you're doing your job within the scope of your job.

You're not interfering with elections like Lindsey Graham, but you're doing your job, fact-finding, legislative work and reports and hearings and making laws. Whatever you do there, even if it would be a crime for somebody else, is not a crime for you. You get immunized because that's in the Constitution, specifically, specifically. That's one. And then there's, what's the second one? Do you remember the second one, Karen?

I'm doing off top of my head. There's a second one that'll come to me before. Separation of powers. It's at the separation? No, it's not separation of powers because that's one of the ones that are arguing here. It'll come to me. It's the second one. And that's one of the ones that are arguing here. It'll come to me. It's the second one. And that's it.

And the one that this made up presidential immunity, which is nowhere, I want to repeat this, nowhere in the Constitution. And you can take time out of this, better this show, and everybody can go read it. No where in the Constitution, it's not by accident. Is there a section called the president of the United States at the time will be immune from any civil or criminal action while he was in office, regardless. It's not in there. It comes from case made precedent that's been made about the separation of powers and the presidency and all of that. But that's where it comes from. It comes from the Supreme Court and other courts applying it, not because it's in there.

And that's the point of the brief you're talking about that was this Amicus brief, which is there's no even jurisdiction. I mean, on this particular issue, we shouldn't even be there. There is nothing to talk about. First of all, there's no interlocutorial appeal on this issue because you shouldn't be discussing this issue at the indictment stage. He should be tried. If he's convicted

and sentenced, we can go and figure out whether he had presidential immunity. Sort of a strange argument. Whether Jackson Smith, Mr. or not, or just in the course of you've only got X amount of pages to make your lead arguments. As you said, you prioritize your arguments. You don't throw every argument at that. And I'm assuming I could be wrong, but I have a lot of respect for Jack Smith in the office. They looked at the issue about where- Is it double jeopardy? Yes, it's double jeopardy.

Thank you, very good. So double jeopardy and speech and debate. I'm not gonna take credit. Someone in the chat just said it. I'm not gonna try to take credit. Who said in the chat would have called about- A few different people said it actually. They're the chat just said it. I'm not going to try to take credit. Who said it in the chat? What a problem. A few different people said it actually.

They're like, Popeye gets double jeopardy. So, hold on. Thank you. Yeah, I know. I love the live chat. I'm looking at it. I like it. Double-gathering.

That's awesome. I just couldn't. Let's see. I'm not so armed. Can you please see my notes if you can real. And I did a hot take on it, no less. All right. I'm a hot take on it, no less. All right. I'm no, I'm no storm, said it.

Good. And Vito Bartos said it. Yeah. Those are the two. What do we have for them? More show. That's what you get. All right.

So that's an argument. And the good news is that now it's been thrown at. And Donald Trump got the ability and his reply to address some of this, or they did a terrible job, because he got noticed, Jack Smith, or he wrote his brief. So Jack Smith didn't get the notice in time to incorporate it in his opposition paper, but he'll be ready.

The lawyers will be ready. And maybe the first thing out of the box is let's get to the issue of whether we have jurisdiction at all and whether this is a premature application of immunity. You and I are going to know right away, like, oh damn, that's where they're going, right away in the oral argument. Or, you know, they're just going to, because just to get everybody ready, because we're going to, you know, listen, we'll be cutting and pasting these clips from the audio as soon as we hear them and doing different hot takes and maybe the show on it. But just to get everybody ready to manage expectations, you got the three judge merits panel.

I think judge panel be in the middle as the chief judge is my prediction. Could be wrong. Could be judge a child's. We'll see. And they are going to hear the argument. Briefs have already been read. And they let the advocates get about five minutes at best out of their, or of whatever their presentation is.

And then the questions, the hot bench starts. This one, this one, this one, this one. You have to stop what you're doing. You got to answer the questions, and you may be never get back to your outline, but you have to have your outline as an advocate in your head about what points you need to accomplish in your 20 minutes. Maybe they give you an extra 10 minutes before you sit down. So you got to be as an advocate. I've done a pellet work as an advocate. You got to have like a little mental checklist. I got to get these four points out.

And hopefully you can do it like bouncing off of, well, that's a very interesting question, judge, judge, judge, child's just said and then you try to get back to your argument, you got to answer their question though. You can't ignore it. You got to answer their question. If you don't, they'll say, okay, that's not my question. Answer, and they get frustrated when you, because those are the things that matter to them. They've read the briefs. They're starting to form their opinion, but they want these fundamental things answered,

and they get crappy answers. And that's where I bank on Jack Smith's team outmatching Donald Trump's team. If they get crappy answers and only reinforces their belief that it's a crappy argument. If you can't stand in the well of the courtroom and effectively in straight faced with authority and with authorities, make the argument, you're only demonstrating to the panel. That's why when they get I can't wait Karen to when they get to the point of let's talk about this 32 page anonymous thing that you're client posted on social media two days ago and was inserted in the brief. Why do you think that's an appropriate thing to insert in a reply brief to the

to the DC court of appeals? We'd like to hear on that. I want to see how pissy they get about that, because they're getting abused. It's not fair. So look, what's your handicap about the oral argument? And where do you think they decide on immunity before it goes up, or if it goes up to the Supreme Court? I mean, I think there's no question

that they are going to rule there's no presidential immunity or they're going to say this is not in through I think this is an argument this there's no there's no midstream appeal there's no interlocatory appeal. I think there's a chance they say that this is just not appropriate go back down see if you get convicted and then you can appeal this issue after not appropriate. Go back down, see if you get convicted, and then you can appeal this issue after the fact. I mean, that's one possibility that they could do. But the other, if they decide not to do that, I think without a doubt they're going to rule that there is no prosecutorial, there's no presidential immunity because as you said, it's just a ridiculous, ridiculous

argument, right, to say that you basically can never be held accountable just like a judge, just like a, I mean, that he talks about separation of powers that the court can't sit in in judgment against, against a president and and prosecutor can't do it. He cites Marbury versus Madison, but I really just think that it's so clear that you know if you look at not just the Constitution but the Federalist papers, I think there's a Federalist paper that talks about the concept of a limited government and presidents or not kings, presidents or more like governors than kings.

And it just makes no sense that he would be given this absolute power to avoid prosecution. And he keeps calling it his official acts during his official duties. He somehow thinks that that makes him totally immune or somehow he's not going to be held accountable because he thinks they were official acts. But I think he loses there too. He was campaigning. He wasn't doing his job. But I really do think that it's a distinction without a difference, as they job. But I really do think that it's a distinction without a difference, as they say, because I don't think that even if you are doing your official job, I don't think it counts

as Jack Smith so beautifully listed in his opposition papers about all the parade of horribles that could happen, the bribe receiving from foreign governments, the selling nation's secrets, that whatever it is, you could be doing your job in committing crime at the same time, and to say that that, then because you're somehow above it all, you can get away with it. That would just open the door to presidents having absolutely no, there's just no recourse. And then, of course, the other

argument he makes is, yes, there is a rec recourse and that's called impeachment right and he says so if you were going to hold me accountable for something that I did it has to be done through impeachment first and that's that's the other argument he makes is this the impeachment judgment clause of in the constitution that says that you impeach someone you get convicted and then go to trial, he makes it seem like that has to happen in order to be prosecuted criminally. As opposed to, that's what happens for removal and then prosecution is what happens for the consequences. And so I think the various things that he's going to, that he's going to, he's going to cite, I think, really will fall flat.

And there was an amicus brief that was submitted by several conservative lawyers who, or conservative people, including Judge Michael Luddig, who's been very vocal and public public about that's the one you're talking about. Okay, you know, and I thought that was really compelling. So I compliment your partner on that on that because because you know, they basically said like the Constitution, first of all says nothing about presidential immunity the

way it does for Congress with a speech and debate clause, and therefore the courts can't invent one. And it says nothing about prosecution needing to be proceeded by the impeachment and conviction. And I thought it was just very compelling. It's worth reading, it's worth reading, I think, to kind of remind people about the limitations on Donald Trump. And these are from conservatives, right? This is not so you can read it. And it's really a strict reading of the law and the rule of law. And I thought that was very effective. And I think it will be effective to the Supreme Court.

I just, I think no matter what they think here, there's no way they can rule, the Supreme Court can rule that there's absolute presidential immunity. It's just, it's just, that cannot be the case. And so Trump is seeking to find some other hook, right? Or like, like this impeachment judgment clause thing, where you have to be impeached first before you can be prosecuted. And that's something the Supreme Court,

I could see them at least one or two of, probably two of them hanging their hat on, not the rest, because it's again, not in keeping with the law. But again, just looks all remind ourselves, and I just keep saying it over and over again, looks remind ourselves, this is all about delay, because this is a loser, these are loser arguments. There's no way, we're trying to, we're trying to make arguments and make sense of this because this is, this is not real law. This is not real loyering and that's why we're kind of struggling with it. That's why I'm always asking you, can you explain this? Because it's not like they're arguing real legal issues. They're like either making stuff up or they're twisting things.

And you know, when we get to the meadows that you talked about this, the meadows removal issue, when we get to that topic, that to me was the biggest example of lawyers twisting the law and bending the law. And gaslighting to use a word that we like to use a lot here, just by telling you that the law says one thing, when we all know, it means something else. And I thought that brief.

Did that over and over and over again. And that's what's happening here. But I think in the end, this is all about delay because they can't win on the merits. So Trump, as we always say, his end game is to never have a trial, never have to face the facts, never have to face a jury because he will lose. And so he's going to delay, he's going to try

and get elected where then he can dismiss the case when he's in charge of the Department of Justice or pardon himself or whatever it is. He has up his sleeve and be the dictator that he's promised everyone that he will be. That's his end game. And so he's looking at that prize. We're looking at, oh, is he going to win in the court of appeals? Is he going to win? He's looking at the ultimate goal. And he's going to give the Supreme Court anything they can hang their hat on, even temporarily, to give him the delay that he wants because he won't win substantively.

That's my feeling on this. Yeah. And a lot of his arguments are going to work in their laughable. that he wants because he won't win substantively. That's my feeling on this. Yeah, and I don't know if his arguments are gonna work and they're laughable, but we'll see what happens at the oral argument. But let's talk about giving out T-shirts to people that help the podcast hosts. Let's talk about the minus touchstore.com for the 2024.

I usually wait till the end of the show, but I think it's time. People are looking to fly their flag and show support for the show in one way or the other, and that's an opportunity to do it. And then we've reached that point in the show that I've come to love, which is the fact that we have sponsors that are pro-democracy and want to be with us for our ride. And here's a couple right now. By now you may know I recently got married.

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And we're back. It's time to find our corner office in Colorado and in Maine. And the ballot banning initiatives going on there. You got Maine Secretary of State because that's what means laws provide, taking Donald Trump off the ballot, staying your decision until there's a appeal through the main process. Colorado, four to three, a couple of weeks ago, through their process, found that Donald Trump was an insurrectionist that a rebel against the Constitution, applying their 14th amendment third article three rights, and banned him from the ballot subject to an appeal to the US Supreme Court.

Now we've got the appeal to the United States Supreme Court filed by all of the parties in Colorado, including just today Donald Trump, which means the issue of whether the 14th Amendment Article 3 says what it says in literal text, whether it applies to the president, whether the president is an officer under the laws of the United States, whether he took an oath that's the appropriate oath, as mentioned in the 14th Amendment at all, whether he can be banned from the ballot or he can actually run, win, and then be disqualified from office at some later time. Those are all the arguments that Donald Trump has raised and which branch, if any, it decides under the 14th Amendment, is it the states in our federalist system, through their secretaries of state? Is it the federal congress in something that has to be passed related to the 14th Amendment,

or is itself effectuating and self-activating, or can the courts do their job and interpret the Constitution the way they do every other law or statute These are all the framing for the issue up at the United States Supreme Court with turn it over you Karen Bring it home on Colorado Maine and the United States Supreme Court. Oh my god again. How do we even begin to keep track of it? so so we even begin to keep track of it, right? So, so Trump filed his appeal on the remain and for Colorado. In Maine, I'm just going to start with the main one. He said his grounds for appeal. I mean, the guy is just, he is who he is. And he clearly has the ear of his lawyers because you can hear his voice when he makes these arguments, right? Issue number one, the secretary of state is biased.

She's a biased decision maker who should have recused yourself. And otherwise failed to provide lawful due process. I mean, that's just, again, that's not a legal argument. And so, but that's such a Trump argument that he makes in every case that he has because he's the ultimate victim, right? And everybody's biased against him and that's always what it is. So that was his issue number one issue number two that the Secretary of State had no legal authority to do this. She made number three.

She made multiple errors of law and acted in an arbitrary and capricious manner. And number four, he'll be legally excluded as a result of her actions. And it's just a ridiculous filing with almost no legal analysis. It was actually even hard to read because it was so not lawyerly and

just sounded like Donald Trump scribbled his arguments on there. But the things that he keeps, the arguments that he keeps making are just head scratchers. This is again the gaslighting because any other place, he says he's never served as an officer of the United States, and he's never taken an oath to support the Constitution. I mean, what? Everybody listen to that. Hear that. He says he's never taken an oath to support the Constitution. I mean, what the heck?

I mean, the oath he does take looks just read it all together. He must take the following oath or affirmation. I do solemnly swear or affirm that I will faithfully execute the office of the president of the United States and will to the best of my ability preserve, protect and defend the Constitution of the United States. If that's not the oath to support the Constitution, I don't know what is. So that they could make that argument.

Again, this is where they try to say that up is down and the sky is purple because it just makes no sense. So that was his main, meaning the main MAIN, the state of Maine, that was his filing there. He also filed his cert petition in Colorado. Similar arguments, right? Says the Colorado Secretary of State, holding that Trump was disqualified from office, was an error the Colorado Secrets Supreme Court can't do this and he's made the same arguments again about not being an officer and I mean just it's the same old same old same old says that and he just wants to get to the Supreme Court

and get them to hear this and of of course, there were all sorts of other petitions, cert petitions for the Supreme Court. The organization crew who brought this to begin with, they submitted theirs as well and as well as others. And those were more cogent, I think, interesting legal arguments. And so they're the ones who will have done the legal briefing. I think that the Supreme Court will look at and rely upon. And I just don't know if the Supreme Court will rule on this. And I'd love to hear your thoughts, because the states that have now, Maine and Colorado,

have banned him essentially put a stay on it. They basically said, okay, we're going to put a stay, meaning we're going to let him be on the ballot until the Supreme Court rules, if Trump appeals, and of course he did appeal, or at least he's attempting to appeal. So what's to stop them from just not ruling? What's to stop them from just not ruling on it? He'll be on the ballot, see what happens and then go from there. So I think that that's one option that they could do. Another option is they will come out and say that you can't have kind of a hodgepodge of sometimes you're on the ballot, sometimes you're not in the same set of facts. Unlike things like age or or whether or not you've lived in the country for 14 years or your natural born citizen, those are qualifications that have to be the same in every single state.

have to be the same in every single state. And because there have been some states that have said he's on and said he's not, for different reasons, some procedural, some substantive, I do think that they will potentially take this and rule on it. But what do you think they're going to do? The Supremes? Yeah. But what do you think they're going to do? The Supreme? Yeah.

Well, they're between a rock and a hard place because states have under our federal system the right and the responsibility to govern ballots and the election process and polling and certification of elections. That's all state by state. It's not uniform. That's why somebody that votes in California has easy access to the ballot. Mail in voting, absentee voting, drop boxes, extended hours, early voting a month before the election. That's time place, but that's time place and manner stuff, which comes from the Constitution. This is qualifications, which is slightly different. Right, but okay.

So what, what, what point do you want me to make? I'll make whatever point you want. You go. I want to have a, come on, we have a dialogue here. I have a little bit of a hard time. I was giving big, hard, hard, hard, hard. I was given my hard, hard, hard, hard, hard. It's a hot, bad, hard, hard, hard, hard, hard. States and our federalist system have the right to determine things like, I believe, the

14th Amendment Article 3, because you have to start from the proposition that it doesn't require you to go back to Congress. There's nothing in 14th Amendment Article 3 that says, you know, when our founding fathers, framers wrote it, they didn't think it needed an owner's manual. They think it was clear. It says what it says. If the party engages an insurrection or rebellion against the Constitution, they are barred from office if they took an oath, if they were federal officer, they took an oath. You can quibble about who's a federal officer. I don't agree with the argument, but I understand the argument

that they're talking about civil servants and others below the president. The president is the government of the United States and there's others that serve under that. And so I kind of get some of the word play in their analysis of why the presidency is not an officer for the purposes of the 14th Amendment. And I sort of get their argument, although I totally disagree with it, based on the legislative

history leading into the passage of the 14th Amendment article 3 during Reconstruction period that it doesn't apply to the president. Oh, he's not listed. It lists a lot of people, but it doesn't list the president, right? Because the catch-all of any officer under the United States is enough. Question is fundamentally, who makes the decision as to whether the 14th Amendment, somebody is engaged on the 14th Amendment? It can't just be you and I in a podcast go, he engaged, he's off.

There has to be a process. And the question is, who's going to run that process? Is it going to be a process. And the question is, who's going to run that process? Is it going to be Congress? I see no role whatsoever in the legislative history or the language of the 14th Amendment for Congress to do anything once they passed that particular provision. If they want to take away somebody's disqualification, they can. They can vote. And even though it applies, they can, but that's the but that's the Congress's role there. So you've got to go to the States and the States, either through their court system or the federal

court system, have to then make a decision for who goes on the ballot, even in the case by Judge Gorsuch when he was on the 10th Circuit, Hassan, which they're going to rely on, says that the states decide the qualifications for presidential election, including whether Obama was supposed to be on the ballot or not or whether he was a, he was a secret Muslim born outside the country. Those are decisions for the secretaries of state or whatever their processes are.

And that patchwork system is just the way it is. And then that waterfall that comes down through the different rules and regulations of each state, because every state's different, every state has different statute, and not just time, place, and manner of voting. I'm talking about who can go on to the ballot. Even that is something that's ultimately decided at the state level, not the federal level. And that's just. Right. Even even even the main secretary of state said she determined that Chris Christie wasn't going to be on the ballot because he didn't get enough signatures on his petition.

No, Biden is not on the ballot in Rhode Island. Why? Right. And she cited that in her own thing, in her own falling. So if the Supreme Court is honest in its assessment of the legislative history and the textual, the text of the 14th Amendment, then they're going to find that it was appropriate for state, state by state to determine qualifications. And it doesn't go back to Congress as that's not what

the language of the agreement of the agreement of agreement of too much law today in my practice of the Constitution says. And since they claim to be at the Supreme Court, the right wing, originalists, textualists, we need to get to the bottom of what the framers really wanted with their dead hands from, you know, 1780 or 1870, whatever it is, then then it should go state by state state even if they don't like it. Now you're right. One of the ways to resolve it is to do hands off. And just say, you know what, it's a very interesting issue. We're not going to do this on an emergency basis.

It's not going to impact the 2024 election. We'll deal with it on our own timetable because they get to set their own timetable. We'll see everybody in June or July. And then it'll be too close to the election. They'll be like, yeah, we'll make law, but after and not related to Donald Trump, I think they let him go on the ballot to be frank. I think they don't find that he has immunity. And that's more important to me. If I had to choose one, I would say leave him on the ballots, but don't give him immunity. And let Jack Smith and Fault and Faudi Willis and everybody else try their cases

in a court of law with a jury. Okay, so because you have this weird, just photographic memory for all facts, it's just unbelievable to me. I can't remember, well, we know that the other immunity, but yes, besides that. Did he ever, did he ever argue for removal, Trump? Yes. So, so, so, answer the question. So if he argued for removal, then he had to, he had to, exactly. So how do you do that on the one hand? And then on the other hand other hand say I'm not a federal officer, right? Well, yes, and I like that argument, except he's going to argue that it's apples and oranges,

that he's dealing with the literal language of the federal removal statute from 180 years ago. And that one, he is federal officer, as found by every court that's looked at it, when judge, when the senior judge, whose name just blew out of my head, it was we did this over the summer when you and I were on holiday, we had a lot going on at that particular time. When the senior judge in New York, Southern District, ruled, no, was the Stormy Daniels of E. Jean Carroll. It was Stormy Daniels, sorry, I said E. Jean Carroll.

Yeah, it was Stormy Daniels. I remember actually because yeah, yeah, okay. I do remember that. Yeah. It's a different federal officer. You can use the term small F small O federal officer in one statute when you're talking about the Constitution and whether he is an officer under the laws of the United States. The question is, and this is a little bit of how many angels dance on the head of the pin, is the president, right, which is a, it's one of the three branches of government. It's the only one that only has one person in it.

He's got, you know, he's got things, the departments under him, but it's a one person department, a branch, nine person Supreme Court, one person president, and then the Congress and the House and the Senate. Is he under the laws of the United States as an officer or is he the United States government? And that is that existential discussion. He can't be because the one thing the framers decided to do was not to have a king right it was supposed to have three co equal Branches of government. I mean come on. You remember schoolhouse rock right when growing up

I mean that's how I look you it's so fundamental to who we are in the fabric Only a bill. Yes exactly. I mean, there's I mean, it's just kind of is what it is. And there's just no way. This is why people hate lawyers. I hate to say you can't. Somebody just wrote that in the chat. So we just wrote this parsing of words is why the average person doesn't like lawyers.

You know what? Whoever said that, I actually would give them credit. I didn't see that. It's true though, because you can't on the one hand argue that on the one hand, he's an officer and on the other hand, he's not. And that's just disingenuous. It is offensive, actually.

And he is not above the government. There are three branches of government that are separate but equal, co equal. And if there is anything that's fundamental to the founding of this country, it's that. And if they want to be strict construction, originalists and look back to the old timey days and see exactly what people meant, there is no way you could find anything other than that in my opinion. Yeah.

So, we're going to see, to answer another question that came up in the chat, what happens to Maine, if Supreme Court rules that the 14th Amendment doesn't apply to Donald Trump, he's not an officer, he didn't take the appropriate oath and or that the states can't make that decision, it has to go back to Congress in some way. Then that'll just put a pin, that'll just completely wipe out Maine and Colorado with rest, and the new law will be established by this United States Supreme Court led by John Roberts about whether who makes the decision. I'm going to make it sort of easy.

I don't think they're going to make the decision that the language in the 14th Amendment has no meaning whatsoever, and it was intended. It's the only provision in the Constitution we're supposed to ignore besides the one dealing with slavery which I think God we've written out of the Constitution. It has to have meaning. It has to be able to be implemented. The question for the Supreme Court is how do you implement it? Who implements it? And against whom is it implemented? And we're going to find all that out. If they've taken the case, so they've already decided, the question is timing. Are they going to do this on an expedited basis? So it's all decided before

ballots go out for the primaries. I doubt it. He's going to be on the primary ballot in Colorado and Maine and other places. And certainly he's going to be on the ballot Colorado and Maine and other places and certainly are easy going to be on the ballot for in the general election. Let's move to a breakout session here on legal AF law school of unbunk decisions. That term gets thrown around. It's another reason people hate lawyers. Why do they use Latin French and other things? Well, why? You know, that's because they could charge us a lot in law school. And we felt like we were getting, you know, when they started talking to us about Vaudere, or Vordyri when I was in North Carolina for law school.

Vordere is what we say. Or, yeah, they said Vordyri in the South, and which, you know, thank God I figured out from other people, that's not how you say it up in New York. In other things, what on what is on bunk? So you have an appellate process, right? Have you done on bunk before? Have you ever asked me?

I've never done, I've never done a pallet work. No, I'm a scrappy in the trenches trial layer. I'm the person you want on the ground, on trial, just cross examining, et cetera. That's my thing. Right, scrappy. They're all scrappy. When you find, I'm the one who's going to fight the facts.

You want to fight the law. That's smart. Those are for smarty pants lawyers. I've done a few. I mean, I like to keep my hand in advocacy. So I've done a few, but I haven't done on bunk. And what on bunk means means is whether it's, let's just say in federal system, it's just easier.

Every federal appeal, there's a merits panel of three people, and it's randomly selected. I mean, I'd seem random at times, but it's randomly selected. For instance, some people might be thinking, well, if it's random, how come Chief Judge William Prior keeps getting selected out of 12 people to be on the panel

dealing with anything related to Donald Trump, like Barra Lago or Mark Meadows. It just happens. It's just the way it is because all 12 don't have equal dockets. They might be swamped at another appeal. They got too many. This one has too little. And then that gets weighted in how the wheel spins in a science case. But a three-judge merits panel, not to be confused with an emergency panel that's not on

the merits that sometimes deals with procedural issues about whether there's going to be a fast track or emergency appeal at all. That's a separate panel, and then there's a three-judge panel. They make binding precedent. Those three judges out of the 12, they are that court of appeals for the purposes of that case. When they make a ruling, you don't say, like when we're citing it in a case, we don't say, well, just a random three judge panel of the ninth circuit said the following.

We say the ninth circuit's position on this is as follows. Until there's another three judge panel of the ninth circuit, and this is nothing else, that is the pronouncement of the ninth circuit, second circuit, 11th circuit, whatever circuit we're talking about. 99% of the time, when you lose or win, if you lose at the appellate level federally, you take your lumps, that's your appeal,

and if you don't like the results, you ask for reconsideration by that three-judge panel, which almost never gets granted, because it's very narrow grounds, or you've got to take a shot at filing a writ of certiorari. Pretty please request the United States Supreme Court, asking them to take a case and they take very few cases, very few. The chances of you getting into the Supreme Court is like winning the lottery. Now, if one of the things you can do, if you've lost, and you think you've got the grounds under rule 35 of the federal rules of the fellow procedure to ask for an on-bomb meaning, I don't like the three judges there. I think they misapplied the law of the Supreme Court, the United States Supreme Court. They misapplied law of this particular jurisdiction

of this circuit, or they just, this is just monumentally important stuff we're talking about here, like presidential immunity for instance, or otherwise, and it's gotta go to the full, all the judges of that particular circuit. For the 11th Circuit, for instance, there's 12 judges. The second circuit in New York, there's more.

I just forget how many exactly. And so you ask, you have to petition, a very short request, to have the entire group. And I've seen them, I have an argument, but you go, and there's just rows and rows of judges. It's like 12 judges. Now the majority of the sitting judges on the court of appeals have to actually grant your request. So, if there's 12 in the 11 circuit, 7 of the 12 have to say, yeah, I think it's really

important or I think there was a misapplication of the law and the like. And then if you get seven votes or the majority, then the full panel shows up, all the briefs go to them, all the arguments go to them, you make your argument to 12, 14, 15 people, and then it's like majority rules. So whatever it is, you got to win by one. If it's 12, you know, you got to go whatever it is, seven, five, or whatever, whatever the number has to be. So that's on bunk. Now, the reason we're talking about it at length, I'll turn it over you, Karen, is there's been two on bunk requests made. One, we

know the answer to the other one, we don't. One by Mark Meadows, former chief of staff, former federal officer who lost at the 11th Circuit, in an opinion written by the chief judge, William Prior, that said, as a former federal officer, he doesn't get federal removal to take his Georgia prosecution over to federal court. And Donald Trump didn't like the results when the three judge panel last month found against him in Alina Habba that he had waived his immunity back to immunity and could not have

the E. Jean Carroll, there we said her name, E. Jean Carroll case, defamation, punitive damages, round two, tried in two weeks because of presidential immunity. He wanted, he wanted the full on bonk panel of the second, the second circuit to hear the case. So why don't you take it from there? And then we can talk about what happens if you lose that, you know, these are the US Supreme Court. So Mark Meadows wants to appeal his removal. And so he brought in the big guns. He brought Paul Clement, who basically is one of the renowned right wing conservative Supreme Court litigators. I think he's argued over 100 cases in the Supreme Court. He was the United States solicitor general, which is the first is the federal lawyer who argues the government's position in the Supreme Court.

And so he's extremely smart. And he is known to defend or take the position of very conservative, conservative issues, such as the Second Amendment. He defends that a lot, and he also defended the ban on same sex marriage, which I think should tell you a lot about where he comes from. And so he's considered one of the, to argue in the Supreme Court and to be a really quality person to argue there, there is a very small stable of lawyers who are Supreme Court lit against. And Paul Clement is one of them. He, like I said, he happens to be a very conservative one,

but the fact that he was hired by meadows is, I think, kind of a big deal in shows. He has his sights on the Supreme Court, and he plans on going there, no matter what happens with this on-bomb request. The filing that he filed, though, I thought was shockingly ineffective and surprising for someone who practices at his level.

He was completely breathless and was spoke in hyperbole that was so strong that I was surprised he would he would argue that way. Because at a certain point when everything is the biggest deal and the worst thing you've ever heard, I just think that you lose credibility. And he knows that because he's obviously a lawyer who's been an appellate lawyer for a long time. But he would say things like, this is profoundly consequential. It's expectation defying. It defies text precedent and common sense. It's a nightmare scenario.

And before the cavalry of Congress is called into fix the statute, the full court should consider whether the heir or lay, instead in the panel's novel holding of a critical protection. Everything was just this like just really crazy language for somebody like him. Again, you'd expect that from an Alina Habbo or from Donald Trump or one of these extreme maga, my hair is on fire, kind of arguments.

But so he went all in with this. He basically said that he basically said in this argument that this is the bread and butter of federal remover. This removal, this was the chief of staff of the president who was working for the president at the time. Almost everything he did was at the White House. He was acting at the direction of and eating the president. And how is this not his job description?

And he said several times that this was the first court in 190 years to deny a federal forum to federal officers who are sued after they left office. That's one of his primary arguments that it doesn't apply, that it should apply to former officers. And he calls out Fannie Willis for missing that argument, just to say someone else who missed the argument, he, because because if you, if you recall, she didn't, she kind of all but conceded that he was, um, that it applies to former federal officers, because there's no doubt he was a federal

officer. Um, and so she didn't argue that it what didn't apply to former officers that came up after the fact and he kind of through he said this is so novel that she didn't even think of it. I kind of thought slightly differently that she No one thought of it because it just doesn't come up. It's not like he made it seem like no one has argued this in 190 years or no one has found this in 190 years. It's because the issues never come up. That's why it's not that they've been ruling one way for 190 years and this is the first time it's ruled a different way. And he just sort of, again, he was arguing up is down and that whole kind of what the gaslighting that they do.

And he basically said, you know, the Rizal Dettra of the federal officer removal statute is to provide a federal forum for immunity defenses such as this case. You know, he's just really overly exaggerated. He's not only got another problem. He's not going to have another problem. He's taken on Chief Justice William Prior. Yeah.

I mean, Judge William Prior. Yeah, I mean, you know, how much respect the other, there were three judges on the panel, so there are nine left. You know, how much respect the other nine have for Bill Prior and his decision making? And they're going to vote for an on-bond decision to learn the Chief Judge. Good luck. Yeah, no decision to turn the chief judge. Good luck. Yeah, no, that was the other thing. This was the other thing clearly.

He was criticizing the three judges. I mean, that's all he was doing was just criticizing those three judges the whole time. I think he's just this. He was playing to the audience of the Supreme Court. He does not care what the on-bond, he doesn't care what anyone says. The other thing that I thought was sort of interesting

was he, he does the kind of, I'm gonna take the weakest fact and argue it for myself, right? This is yet another reason why people hate lawyers because it's get total gaslighting, like the Hatch Act, right? Remember how we always said that the Hatch Act and they cited to the Hatch Act, right? The judge prior did, saying essentially that he violated the Hatch Act by doing this.

And he said, look, that's, that's, there's like, that, that, if anything, that means that he was an officer at the time. You have to be an officer, a federal officer to violate the Hatch Act, because if you're not a federal officer then doing your job, if you're doing something outside of your job and you're not working as your job, then you're not violating the hatch act. So he actually twisted that argument to say

the fact that he violated the hatch act means that he's an officer. Anyhow, I think, like I said, I think he really was, as you said, dicey in terms of how he was criticizing, criticizing Judge prior and the other two judges. I mean, even language that he used, like the panel stumbled into another circuit split. Like, it's just like unnecessary, just not kind, right, to these judges. And I just don't think his fellow judges are on the panel are going to look kindly to this. And, but I do think just again zooming out and going to the Supreme Court, which is the audience he's playing to, they wouldn't be insane to find that this case should be removed because the removal statute does require a very liberal reading of what the assertion is.

And if the defendant even asserts a plausible claim and a plausible defense, You're supposed to look at it in the light most favorable to them. I do think that the Supreme Court could say, you know what, this should be removed, but I don't think they would ever say that he was acting within this scope and therefore he's immune because that's what he's trying to do. And that's what I liked about Chief, Chief, a prior, a chief, Chief Judge, prior's comment. He said he didn't just punt the way Second Circuit did with finding waiver of immunity against the claims in E. Jean Carroll case.

They went further. I know you took, you, you understand you at a good argument like, why didn't they go further and say even if there was a waiver, the immunity wouldn't apply. I don't think they wanted to accidentally stumble in and use Paul Clement's visuals into another immunity decision while the DC Court of Appeals

was making their immunity decisions. But here, prior said, here's a quote from his decision, even if the former federal officer could use the federal removal statute to take his criminal prosecution from a state court, the federal court at bottom, quoting from prior, whatever the chief of staff's role with respect to state election administration, that role does not include altering valid election results in favor of a particular candidate. So there is no causal connection between Meadows official authority and is alleged participation in the conspiracy.

That's prior. He's Republican, by the way, for those who are wondering. He's old school, you know, bedrock Republican, not, not MAGA, but Republican. And so I see that losing. And they have a good, you know, sort of a wind at their back, the 11th Circuit to deny Unbunk, because why don't you tell our audience which is happened with E. Jean Carroll,

and the case where Donald Trump tried to get an Unbunk argument in front of the second circuit. D9. D9. D9. Trial. Yes, trial. We'll proceed. Yeah, unless he takes, and this is just to kind of bring it full circle, unless Donald Trump

is stupid enough to walk into a trap of his own making, which now having lost the second circuit. So he won't stop left on the train. The US Supreme Court, he'd have to ask the US Supreme Court right now while it's trying to decide criminal immunity, or ultimately will decide criminal immunity for Donald Trump, you know, let's say in the next two weeks, and as deciding whether he belongs in the ballot or not, and as deciding whether two of his four counts at the DC court of DC trial court level should be dismissed or not, because that's also up, whether all Jan 6th defendants were properly prosecuted under corruptly interfering with the official proceeding of Congress in trying to certify the election,

yes or no, two of us, Councillor Bass on that. While they're deciding that, he's just gonna lob in there. Hey, try this one. Did I have absolute presidential immunity while I was president to defame E. Jean Carroll, the woman that I've been a judge, to have raped?

Yes or no? I don't think even Donald Trump has the temerity to test that, given the rulings the DC Court of Appeals about like, Blasting Game and the rest that say, no, that you are so outside the outer parameters of whatever your job was that there's no way we're going to allow you to have immunity for that, not everything that you do while you happen to draw a paycheck or not as president

is cloaked with some sort of immunity. And I don't think even he wants to tempt fate while it's being litigated at the DC Court of Appeals level on the E. Jean Carroll case, which is just about, unfortunately, it's about vindication for her, but it's just about money for him. And he's already put up $5 million on the first time he lost to E. Jane Carol, although this one could be much, much larger into the 50 or 60 or 80 or $100 million to depending upon how geeked up that jury is by the evidence that's presented by friend of the podcast, Robbie Kaplan representing E. Jane Carol. Let's move to the last topic for tonight, which is we don't often talk about

immigration policy here. We're always trying to be at that intersection of law, politics, and justice. It's one of the reasons we're not talking about Jeffrey Epstein tonight or other people involved in that. It's not really quite what we do here on legal AF. There's certainly other places like the brothers podcast that might have touched. But for us, we want to focus on things that are at that really sweetly at that intersection. Immigration policy is important. It's important to the Biden administration and sometimes they have to go and run up to the United States Supreme Court when states like Texas and their governor decide that they're going to know they know better about federal immigration policy. Immigration policy is something that there is the states and their attempts to regulate in that area are preempted by federal law.

That's just the way it is. That's our federalist system. There are certain things like, you know, whether you need to have a seat belt in a car or the federal aviation administration about airplanes, travel and how safety is provided by them and all that. It's just a federal issue, right? People say that all that online don't make a federal issue out of this. There are just certain things that are a federal issue and there's a doctrine called federal

preemption, which asks the states from interfering in certain things. That's why states can't conduct their own foreign policy. That's something that's reserved for the president of the United States. And when they try that, or as Texas did, sue the United States of America, sue the federal government because they don't like certain immigration policy on their border on the Rio Grand. And they want to go install miles and miles of razor wire, which is inconsistent with the border patrol, because it makes it difficult to do their job when people are trapped between the razor wire and Mexico and one side in Texas, and they need to apprehend those people in order to process them. And they can't get through to

them because there's razor wire that was just installed by the state, that's a problem. When the states sue the federal government without permission, which is not allowed to try to enforce their own personal immigration problem, policy, that's a problem. And what do you do if you're the Biden administration, you file an emergency petition to the United States Supreme

Court and ask them to take review of whether governor Abbott and his attorney general have the right to conduct federal immigration policy or interfere with federal immigration policy. Yes or no. And the first stop on that train is Judge Alito, Justice Alito, because he's assigned to the fifth circuit and he decides on full briefing, which is going to come up next, whether up or down, he's going to send this off to the fifth circuit. And he decides on full briefing, which is gonna come up next, whether up or down, he's gonna send this off to the nine member, full nine member panel of justices to decide whether to take this appeal or not,

or he's gonna do something else. Why don't you pick it up from there and then round it out, KFA with the, that's going on. So there has to be some political performative art piece done by the Maga Republicans at the same time to distract from that. And that is in the form of speakers of the House running down to the border and impeachment proceeding starting against Secretary of Homeland Security, by Yorkers. What'd you pick it up from there?

So there's no doubt that our country was founded on immigration, right? Who amongst us is not somehow responsible for, if you can't think, they're immigrant, great grandparents or grandparents for risking everything coming to this country and starting a new life, right? That's, we have the, the statute of liberty, even famously basically says, give us your immigrants. It says a lot more than that, but we are a place of immigrants and, and it's what makes this country beautiful and wonderful and why everybody wants to come here. That being said, we have completely failed as a country in my opinion at passing

any sort of rational, any sort of rational immigration laws. And that's not a Democrat issue or a Republican issue. I would say every single administration, and because Congress passes laws, and the president will veto or sign them, this is not, you can't blame any president, you can't blame Joe Biden, you can't blame anybody, including even Donald Trump. But I also have to say I am sympathetic to the communities in New York as one including Chicago, New York, not just the border towns, who are overwhelmed by the amount of people who are coming here. It it's tragic, right? These are human beings, and these are human beings

who deserve better than what we can provide for them. And so it's a complete and utter failure of our country, in my opinion. This is just my opinion, and so I don't wanna, I will say that it's an opinion. But that said, as you so eloquently put it, it doesn't mean that the Texas governor Greg Abbott can then just throw up his hands and act lawlessness and inhumanely. Right? And look, I'm not a fan of Governor Abbott, I'm not, but I can

understand why the mayors of many cities and the governors of many states are extremely frustrated by the state of affairs because although you are 100% right, this has to be done by the federal government, federal government's not doing anything. It's not a Biden question. This is absolutely falls in Congress's lap as first and foremost, full stop. And even when it was 100% controlled by Democrats, including the presidency, they failed to do it. And same thing with Republicans, for whatever reason,

this is the one thing that we have not been able to do. And the victims are real human beings, right? with Republicans for whatever reason. This is the one thing that we have not been able to do. And the victims are real human beings, right? These are family members and people who are getting caught in razor wire at the border and or getting bust and dropped off in a city and the freezing cold without anything. And it's just to watch all this happen is really upsetting. And it's, I think, really terrible.

But at the same time, governor Abbott can't do what he's doing. And it's just wrong. And it'll be interesting to see what ends up happening. They are, the law is clear, right? It's unambiguous, it's clear that the border and the area, I think it's 25 miles of an international border is absolutely in the purview of the federal government. And so Governor Abbott just can't do what he's doing. And so I think the Supreme Court will do something about that.

But then you've got the House Republicans who are trying to impeach the secretary of Homeland Security, Mayorkas, because of how he's handled the border crisis. Well, it's your fault, Congress, for not passing a law or doing anything about it. But you're going after him, I mean, it's sort of ridiculous. And they said that they've had a committee on Homeland Security and they've done nearly a year investigation. And there's a bipartisan vote to refer him

to being peached, Some can be impeached. It's ridiculous. Again, it's political theater. Do something about it. Do something about what's going on at the border. Help these people and come up with a rational immigration policy where people can come here in an orderly way, be treated humanely.

Whatever the magic number is that we can ingest, right? You can't not have some people come in. You can't have everybody and you can't have nobody. So what is the number that we can handle at any given time? Figure it out and come up with a humane way to handle this issue, right? It's just a broken system completely. And for anyone to blame, Joe Biden, I think is just misplaced and just another political stunt and political theater and this impeachment is a joke.

And it's just taking away from them doing the job that they need to do for the American people. So we'll see, I mean, we'll see whether the Supreme Court rules on this quickly, but again, the law is so clear here that the Biden administration has to win. They just can't do it, right? They absolutely cannot put the razor wire down. It's just, it's kind of preposterous. So, yeah. that's the way.

They're going to impeach myorcus because the only need a simple majority. Marjorie Taylor-Creen has been pushing this issue from the very beginning. He doesn't qualify under the all presidents and cabinet members, civil officers, or impeach the same way. You have to show trees and bribery, high crimes, or misdemeanors. Then there's a definition of what is a high crime or misdemeanor. They may not agree with the Biden administration policy. They may not agree that, you know, Kamala didn't go down to the border by his president to go to the border, or whatever this political performance of act is. They may not agree with the with the fact that Mallorca's hands are tied because he's got very little

limited resources because this Maga Congress hasn't given enough money to Homeland Security and to all things related to immigration to implement policy. You have right now three million cases, three million cases, wending their way through the court system related to immigrant immigrants and immigration policy. It is overwhelmed our administrative court systems and our court systems. You don't have enough money for border patrol,

you don't have enough money allocated for getting countries around the border, including Mexico, to stop the the the the tide, stem the tide immigration flow from their side. And now that some of the policies of the Biden administration are taking effect, we're seeing a dramatic drop in the number of immigrants trying to cross the border, even in the last few months, because encouraging the Mexican government to do their thing, encouraging the Venezuelan government to do their thing has resulted. It's not just, just to be clear, it's not just people from Mexico trying to come through the border.

They're coming through the Mexican border from all different countries, including because it's sort of porous. But if you can help the governments on the other side, help do things for their citizens and their residents so they don't feel the need to break the law and try to come through these borders. That helps. So the numbers of drops substantially went from like 5,000 people at the border three weeks ago to 5,000 to 500 today. I mean, the numbers have been dramatic. That's not gonna stop as show theater for Donald Trump and to try to use immigration as a wedge issue for the election time and for these people to get reelected

for them and to, because they've abdicated their own responsibility as a legislative body to pass any laws that help Americans, this MAGA Congress, while it's busy trying to, you know, keep a speaker in their chair, has passed a total of 23 laws in almost two years. 23 laws for Americans. That's it. None of them dealing with immigration, because their purpose on this earth is apparently not to be a legislative body and to help Americans and to implement policy that you and I can debate

whether we like it or not. It's to pass no policy. It's to do impeachments. It's to go after the Biden administration, the Biden family, the cabinet members, to pardon me, to use immigration as a wedge issue while they don't pass proper immigration policy in bipartisan way with the House and the Senate while they don't fund immigration policy. So the me york is the secretary of the home and security can do his job. But they don't fund the court system appropriately so that the backlog of three million immigration cases can be resolved. What's the high crime and misdemeanor? They're going to accuse him of. Whatever they can type with their fingers. And they'll get a simple majority because they've got the majority in the House and they

will get an impeachment. It won't matter a wit and reality because the Senate, control of the Democrats won't convict him. But this is paybacks. This is distraction, misdirection, helping Trump creating an issue where there isn't one, and payback because we and we, we the people, we the people impeached Donald Trump twice for his bad acts and Mr. One. One of the last time a non-president was impeached. Do you call? There's one other cabinet member. There was a secretary of war that was impeached once,

one time. In our lifetime or? Yeah, like in the last 100 years. But he like, I think he took a bribe. Not our lifetime, by the way. You don't know how old I am. I think the guy took a bribe. I'll look it up later and I'll put it into something.

Yeah, it's just so odd. You only think of the president. You never think of... Wait, this just in from our intrepid producer, Secretary of War, William Bellnap, before 1865, Attorney General Harry, something or other, Secretary of Treasury, Andrew Mellon, was, wow, Andrew

Melon was impeached. Yeah. That's crazy. All right, there's been a bunch. I thought it was one. Oh, no, he said, uh, salty, salty. This, the topic is impeachment. Okay.

Don't, don't, you know, salty is doing great. He's trying to be helpful. Now, we should look at him. Yes. We don't know. I can't, we can't do hold on. He's telling me to hold on. He's looking for more. Anyway, it doesn't matter. No, no, but it's it is an interesting point, right? We want to be as people think of and I'm one of those by people. I mean me. People think of impeachment as to the president, but what we don't realize and think of it as applies to others as well, because it's all civil. There's some text in that one, Karen, that somebody could have used,

because it says the president, the vice president, or not other civil officers, or civil officers. So you look, when this agreed, when this agreement, I'm on my law practice today. When this constitution was drafted, even though the Supreme Court likes to say, there's meaning in every little curly queue of every little stroke that's in the constitution and they must have been consistent. And when they said one thing and used officer here

and they said officer under the United States here and they said civil officer here at all has meaning. I am not buying that. This was a group of men who got together in a Congress to put together the Constitution over, you know, over another hot summer. I think it was in Philadelphia. I'm not sure they were saying, well, one day, I don't think we're, you know, it's not like they had a search and find like on the computer.

Did we use civil officer everywhere or the same way? Because listen, they wrote the thing out and like by hand, and then it was like printed. So yeah, but yet today we're like, ah, in Article four, in Article two and Section three in clause 16, that's not how they wrote the effing thing far in my French continuing with our French theories tonight. It's not yet it's yet it's what it's what the this Talmudic approach you know this this ruminating and dovening mixing all of my all of my things tonight dovening over every comma and work. It's not the way it was written.

They were smart people. They gave us what's supposed to be the living constitution, not a brittle document that's rooted and anchored in the past, despite what the Maga Supreme Court thinks. But this whole thing about, well, if you look here and you look there, I don't think that's how it worked. But listen, who am I to be a constitutional scholar? I just

play one on YouTube. Let's see. According to salty, there has been no successful impeachments of any secretaries. That means no, no, no impeachments, no, no, no means no impeachment, no impeachment, no conspiracy. No, as of July 2020, only one cabinet secretary, William Belna, has actually been impeached. Right. Two of those resigned while impeachment proceedings were taken place. I think that's where we started. I said there was one person, there was a bit.

Yes. No, you did, you know, I'm telling you, you have this incredible, you did. You know, I'm telling you, you have this incredible incredible. Yeah, we got a we got a we got a creator in legal AF game show, but I just want to say one, I'm going to tell one more story. In 19 because you were talking about how writing things by hand and not having search, whatever, when I started at the Manhattan D.A.'s office, my very first job out of law school, it was 1992, and we had no computers. It was just, yes, they existed, but we were

at the Manhattan D.A.'s office, and it just didn't exist there yet. And so when you have to charge someone with a crime, you write a complaint, or when you charge someone, when you do motion practice, right, now we just type all the stuff out on computers. We used to have to handwrite it, okay, when we were, this was 1992, it wasn't that long ago. We would have to handwrite the complaints and then you send it back to a typing pool and they would type it up and then they would send it back and you would edit it. And if there were mistakes, they'd have to retype it again. I mean, literally, that's what we used to do.

We didn't have voicemail. And same thing with motion practice, we would hand right our motions and send them to typing. And so, and this isn't, we're not some small town, whatever, this is them in Hatton D.A.'s office not that long ago. So anyway, it's just funny to think of that that existed in my lifetime. And it came in handy because when, because of course we don't throw anything, we didn't throw anything away there because you just put everything in boxes and put it

somewhere. And so there were a few times when I was there that we'd have either a blackout, we've had a few blackouts. And we've also had Hurricane Sandy where we had to relocate because we were in Lower Manhattan. And both of those times, you can't shut down. You can't shut down. People get arrested. And there's a 24 hours before you can, where people have to be processed and, and, and,

arraigned. And so thankfully, we saved those, those hand-written complaints and we've, and some of us knew how to do it And so we literally Pulled them out and we were handwriting complaints by candlelight Inflation, yeah, you and I are appears. I think we're one year apart and um When I went to law school I didn't have a computer

I had exactly I had a typewriter in law school, okay, 91. Or when I started in 88. And my law professor, the writing professor, I was, you know, I'm a decent writer. Handed back one of my first assignments, and it was a much lower grade than I'd ever gotten in writing in my life. And he was like, well, what about this?

And like, I'm like, well, it's, he says, this is almost like a first draft. He goes, it is a first draft. I typed it. He goes, what do you mean? I typed it. I had paper next to me and I typed it. If I made a mistake, I had to use white out

or I had a startle over again, which discouraged me from editing my paper so I didn't want to startle over again. And he said, if you got a computer, your grade would go up like two points. And I said, really? So I ran out of got one of these giant max that took up like the, it was like this. It looked like two points. And I said, really? So I ran out of got one of these giant Macs that took up like the, it was like this.

It looked like it was. Don't you wish you still had it though? And you know what happened? I do. That's actually that Mac. If I could say, we're like tens of thousands of dollars. Yes, yes. But what's happened is because of computing,

because of 24-7, because of internet and AI and everything else. There is just as an expectation that you can generate 50 pages and cite everything in eight hours time. And before it was like, listen, if you were you were lucky to get your 20 pages out, you know, on your on your little fine onion paper that you filed on a blue back in the New York court system and you were, you were glad you did it. Now it's like the technology has created so much of a pressure on good lawyers like you and me and Ben and all that to go to the nth degree to look at everything up. And before I was like, where is the book? Oh, here, let's do the research in the book. Oh, and if you didn't find it, it wasn't like, did you use a electronic? No, because we weren't, we didn't have access to that. But,

but, but we do now and look at us now on YouTube. Or as Jeff Clark likes to call people on the minus touch network, like you and me and others, journal law, journal law podcast. I don't even know what that means, by the way. And I got news for Jeff Clark, if you watch the show, meet me at Camberto, I was like saying that, meet me at Camberto. Oh my God, KFA. KFA, KFA, you can't hold KFA's,

you know what, as a lawyer, okay? That you can't hold most of ours. I'll take you on any day, any time you name it in a courtroom, in legal filings and analysis, in legal argument. Name the place, Jeff Clark. That's it. Call you out. I'm not talking to bear. All right, whatever.

He's a bear? Anyway, we're bear. F that. Anyway, we're legal a F that. All right, we've reached the end of our mid, we're like giddy because it's the New Year of another, another fact filled edition of legal a F with your mid week co-hosts and co-anchors, Michael Pope, I can Karen, Freeman, Agnifalo. You know how to support us. It's being in the chat with us.

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Happy New Year everyone. Happy New Year. you