Legal AF by MeidasTouch - Trump’s NEW Lawyers SCREW THEMSELVES with Supreme Court

Episode Date: January 20, 2024

Trump’s new set of appeals lawyers have just filed a brief with the US Supreme Court arguing that if Trump isn’t left on the ballots even if an insurrectionist, “chaos and bedlam” will ensue. Michael Popok of Legal AF puts aside the dystopian threats of Trump’s legal team and picks apart their legal arguments as the Supreme Court gets ready for oral argument on 2/8. Thanks to HIMS! Start your free online visit today at https://hims.com/legalaf for your personalized ED treatment options. Visit https://meidastouch.com for more! 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

Bet on the NFL with FanDuel, official sportsbook partner of the NFL. Download the app today to see why we're North America's number one sportsbook, 19 plus and physically located in Ontario. Gambling problem call 1-866-531-2600 or visit ConnectsOntario.ca. This is Michael Popak, Legal AF. We are one step closer to the United States Supreme Court, making a decision about whether Donald Trump is an insurrectionist and engaged in rebellion under the 14th Amendment Section 3 and should be banned by various states, including Colorado and Maine,

from their ballot primary and for the general election in November. That oral argument is going to be on the 8th of February before the full United States Supreme Court. And now we're in the throes of briefing, filed briefs by both sides. And Donald Trump, who is the petitioner, or the appellant taking the appeal from the Colorado Supreme Court decision against him. In a case we call Trump versus Anderson has now filed his 53 page brief. And let me break it down for you right now on this hot tick.

So you understand the arguments. I'm gonna focus on the ones that I think are the most important and give you some sort of inside baseball knowledge so that you can make your own decisions and then we'll get the brief from Jack Smith in opposition a reply brief from Donald Trump and it will all time out just before the oral argument on the 8th of February which will not be in in video we won't be able to see the oral argument. The Supreme Court never does that. But I think given the historical importance

of this particular case, we will get the audio of their oral argument and we'll be able to report from there. Let's talk about their argument. Their argument is relatively straightforward. And we've covered it at length before, but one, it's that Donald Trump did not engage in insurrection or rebellion as that term is used under the 14th Amendment section three, which is the disqualification provision, which was put in by the drafters of this particular amendment after the Civil War in America during the Reconstruction period as a loyalty test

to keep out Confederate officers who had served the Confederacy, rebelled against the Union, rebelled against the United States from ever holding office again, unless Congress by two-thirds vote of the House and the Senate takes away the disqualification of the House and the Senate takes away the disqualifying, the disqualification of the person

and allows him to take his seat. So firstly, you've got the argument that they're raising that he did not engage in insurrection or rebellion. And that has to do with confusion about what is the insurrection or rebellion. I am from the Judge Michael Ludwig School that the insurrection is not the attack on the Capitol on Jan 6. That was just one tactic that was used. The strategy of insurrection or rebellion is the interference with the peaceful transfer of power and to violate the oath of office against the Constitution, Cause it's not an insurrection or rebellion against the United States, as that term is used in the constitution.

It's an insurrection or rebellion against the constitution. How do you rebel or insurect against a document, right? Our governing charter, you do that by refusing to peacefully transfer your power to Joe Biden, the rightful winner of the election. So there's too much focus in my view. And of course, I'm a student here of Michael Ludig, the well-respected Federalist Society,

former federal judge, Republican, who's come out against Donald Trump's legal strategies and legal thinking. So that's one, we'll talk more about that as I continue in the hot take. Secondly, they make the argument that the 14th Amendment, section three, is not applicable to the president of the United States,

that he's not an officer under the United States. He's not an officer of the United States, that he's separate and apart from that, that he is the United States, is not an officer under it, that the only thing that that applies to is to appointed officers, not elected officers like president and vice president.

That's another argument where they take pick and choose from historical references and legislative history, I think the wrong way to reach that conclusion. Similarly, they argue that the president doesn't take the right oath of office to have the 14th Amendment section three apply to him. He takes an oath and office to preserve, protect and defend the constitution, not to support the constitution.

And that difference for them indicates that the framers and the drafters of that section didn't intend it to apply to a president. Now let me stop right there. One of the reasons we're getting into all of this, what did they mean when they wrote that in the Constitution is because they didn't actually write the president and or vice president can be disqualified from the ballot

by engaging in insurrection or rebellion. They used more broader terms. They listed some officers, but then when it got to the catchall, they said any officer under or of the United States who swears that oath to support the Constitution can be disqualified here under. And that based on the legislative history that I'm familiar with and has been cited by the Jack Smith team in Colorado is sufficient to capture a president who is an insurrectionist

or commits rebellion against his constitutional oath. And you can see the legislative history of how they did that. They never saw, the framers of it never foresaw that Jefferson Davis, the president of the Confederacy, would be able to take office again or be on the ballot again. Then they argue, their third major argument in their brief is that Congress must do something in terms of disqualifying somebody from the ballot, that it's not self-affecting that provision. You have to go back to Congress. And of course, they're in control of MAGA Congress right now. So they think, oh, we're home free if that's the case. And that so

their position is that Congress has to do something. And a related argument is that the provision, the 14th Amendment, Section 3 doesn't ban you from the ballot. A Secretary of State from Colorado or other states can't ban someone from the ballot. It just makes it so the person is disqualified once elected from taking the office. Let me unpack that for a minute. It means that they can get elected and then it's up to Congress to decide by two thirds vote, whether the person can take office or not, whether their disability can be removed as an insurrectionist or participant in rebellion. That's another argument.

Um, and so with all of those in place, they then go through, you know, point by point, and I'm going to go through it myself and give you the two major points of their argument at the heart of their argument why I think they're ultimately going to lose. Let me first talk about who drafted this. Who's arguing this? Because it's a new set of lawyers. Why not? Donald Trump's latest set of lawyers. And I know this, at least the major part of this lawyers that are prosecuting this particular appeal, Harmeet Dillon from a law firm in California, a very well-respected person in Republican circles. She primarily only represents Republican interests.

She tried and failed to win the Republican National Committee chairmanship, tried to take it from Rona McDaniels, that failed. And now she's going back to being a practicing lawyer. It's almost always on the right wing, slash, maga slash Trump side, never on the other side. And I've done cases where she's been opposed to me for the Midas Touch Network. I mean, Dylan represented Marjorie Taylor Green when we had a case for

Midas Touch when Midas Touch was blocked from Marjorie Taylor Green's then Twitter account improperly, since she used it for official business and under First Amendment rights, she didn't have the right to do that. And we resolved that case with Ms. Dillon, but she's leading the charge here, along with Scott Gensler,

the former, one of the former attorney generals for Colorado, and their briefing. Now look, I've read their brief, I get it. I've got the arguments. Who's missing from the brief is brief as somebody like John Sorrow, who was the, who's, who's the lawyer or Sauer, who's the lawyer for Donald Trump in the immunity case. It's not the same guy that just argued a week or two ago in front of the DC court of appeals on immunity.

So Donald Trump is using different people for different appeals on different issues. I don't know if that's right, if I'm right, wrong or indifferent on that, but that's what he is doing. I thought that was a little interesting connection to the My His Touch network. Real talk, 52% of men over 40 experienced some form of ED between the ages of 40 and 70. Personally, all of my friends, once they hit 40, started using something to help, whether they admitted it in the locker room or not, because it's always been a taboo topic. Thankfully, HMS is changing that by providing affordable access to ED treatment all online. HMS is changing men's

health care by providing access to affordable and discreet sexual health treatments all from the comfort of your couch. HIMS provides access to clinically proven generic alternatives to Viagra and Cialis, up to 95% cheaper, with options as low as $2 per dose. The process is simple and 100% online, no uncomfortable doctor's visits. Answer a series of questions on their site and a medical provider will determine the right treatment option. If prescribed, your medication ships directly to you for free and in-discreet packaging. No insurance needed.

Pay one low price for your treatments, online visits, ongoing shipments, and provider messaging. HIMS has hundreds of thousands of trusted subscribers, so if ED is getting you down, it's time to change that. Start your free online visit today at hymns.com slash legalaf. That's H-I-M-S dot com slash legalaf for your personalized ED treatment options. hymns.com slash legalaf.

Prescriptions require an online consultation with a healthcare provider who will determine if appropriate. Restrictions apply. See website for details and important safety information. Subscription required. Price varies based on product and subscription. Now let me get into the brief itself

because I think that's very important and sort of give it to you. So on page 18 of the brief, which we're gonna put up on the screen as I fumble my way through this, my computer to find it. It says summary of argument, which is a required section of any Supreme Court brief. And what it says is the court one, the court, this is their lead argument. The court should reverse because President Trump is not subject to section

three. He's not an officer of the United States as that term is used under the constitution. He never swore an oath before he became president that could trigger Section Three. I'll talk about that here in detail. His second best argument for them is the court should also reverse because President Trump did not engage in insurrection. I love their leading argument is not that he's not an insurrectionist or didn't

commit rebellion against the Constitution. It, if that's their second best argument, as far as I'm concerned. And there, they're arguing that the insurrection, and I think wrongly here, is the attack on the Capitol and the speech on the ellipse that led to the attack on the Capitol. The insurrection and rebellion again against the Constitution is his failure to peacefully transfer power to Joe Biden and all of the elements and steps, tactics, and strategies used by Donald Trump to do that, one of which at the very end, won the last link in the chain, as the Jan 6 committee put it, it was the attack on the Capitol when all else felled. And we'll talk about that. Three, they say that the Congress has to create a remedial scheme to implement the 14th Amendment

Section 3. It's missing from the literal text, and therefore we have to go back to Congress to figure out what they want to do next in their currently, of course, in control of Congress. And then they also say that allowing secretaries of states to determine who's on the ballot or who off the ballot undermines the congressional, sorry, the constitutional requirement that the Congress determine who's eligible for the ballot for presidency, not individual states. And then they argue that this argument that it's 14th Amendment section three is not a ballot stripping provision. It's an office holding prevention provision. He can still be on the ballot, should be on the ballot, and then after there's an election, then it's up to Congress to decide whether they're going to allow

him to take the office or not. And so their first argument is the president is not an officer of the United States. And they go through entire analysis. Now, literally, he is an officer of the United States. But their argument is when you look at legislative history, that president and vice president is not included in officers of the United States is usually, usually a appointed person, part of the civil service body in the cabinet and that type of thing, and not an elected position. I don't think that squares with the legislative history, and I think you can pick out other places in the Constitution where that is not the case, to make it a broader application

when the framers were writing what they wrote. You can only use the literal text of what they wrote. Legislative history may be an aid if there's ambiguity, but without ambiguity, it applies to all officers. And since Donald Trump himself has called himself a federal officer when he tried to use removal statute to take a state prosecution case to federal court, I think he sort of sunk there.

We'll see what Jack Smith and how Jack Smith responds to that in their brief that's doing about a week. Then you have their argument that he didn't take the right oath. He took an oath concerning the constitution to defend it and preserve it and protect it, but he didn't take an oath to support it. And so whereas the Colorado Supreme Court said, it's the same thing here. He says, no, the framers of the 14th Amendment were signaling that they didn't want the president because it's the wrong oath.

I think that is how many angels dance on the head of a pin argument. And I think that fails as well. His oath is virtually the same as anybody else's oath. And therefore that can't be the argument. Let me turn to the argument that he did not engage in insurrection. That's on page 33 of his brief. And there again, it's a very narrow, too narrow focus on his role or speeches that he gave on the ellipse.

The Jan 6 committee report is very detailed. They were not just talking about what they say here. Listen to these words. President Trump's words that day called for peaceful and patriotic protests and respect for law and order. Does anybody having seen the ellipse speech or read the Jan 6 report believe that that's all that Donald Trump did that day? We know the tick tock leading into the Jan 6.

We know about the war room at the Willard Hotel, staff with Bannon and Flynn and Giuliani and others. We knew that this was their last stand, right? This was their last battle. This was their alamo to try to take back the presidency from the rightful winner, Joe Biden. He knew they were armed in the audience of his speech. He asked for the magnetometers and the metal detectors to be taken down. He pointed a fomented group that he wound up and called for them to fight like hell. And knowing they were armed, pointed them at his political enemies in the Capitol and set them loose. That's what happened. It's not about his First Amendment right to say that the election was stolen.

It's about all the things he did leading into that. And then the other arguments again, that they're just narrowly focused on the speech on the ellipse. And then they go on to say complete distortion of the record, the historical record that Trump also told his supporters on page 34 to remain peaceful and stay peaceful.

And he released a video and told him to go home. We all know of the, you know, the long periods of dereliction of duty as he sat in the dining room watching the Capitol burn, not doing anything. We've seen the speeches and the changes in the speeches that he was supposed to give. He was supposed to give it earlier. We know about the text messages from around the Republican and MAGA world, you know, telling the president,

including his own children to tell them to go home and to stop the attack and he didn't do it. Instead, he wanted Mike Pence hanged. He called them the P word. He said he was ineffectual, that Mike Pence should have never let this happen and the like. So the fact finding attack is also wrong after the one week long trial in Denver and the results of that.

And then they go on to say, because they're focused again, that that is the insurrection. And again, I'm going to pause it here. And I think the United States Supreme Court will have it framed for them by Jack Smith. The insurrection and rebellion is not against the capital. It's against the Constitution. And it's all the things that Donald Trump did to try to interfere with the peaceful transfer of power. The fake electors, the using the voter fraud to whip up his supporters, the pressure campaign on Mike Pence, right? The meetings with the lawyers in his oval office to talk about seizing voting machines and using the

military against the United States electorate, you know, to declare martial law and use the insurrection act, that is, among other things, the rebellion and insurrection against the constitution, not this narrow thing. And I think Jack Smith's gonna call out that as well. And then they end with on page 38 through 40, that, well, that language seems interesting in the constitution, this is my summary,

but you gotta go back to Congress. Congress has to pass seems interesting in the Constitution. This is my summary, but you got to go back to Congress. Congress has to pass appropriate legislation in this area. And then their related argument is that Donald Trump needs to be on the ballot, that that's not a ballot stripping provision, that's an office holding disqualification provision, and that that's going to be resolved one way or the other, thumbs up or thumbs down by a two-thirds vote of Congress, but you can't have them off the ballot because that disenfranchises tens of

millions of people. Now we're going to see what Jack Smith does in his response, which is going to be coming up very, very soon. We'll continue to follow it and give you this kind of hard hitting analysis or not blowing smoke or sunshine. We're just giving you the facts based on our legal experience, arguing cases in courtrooms, just like the ones that we're talking about. And we do it on legal AF. Yes, the title is exactly what you think. It sits at the intersection of law, politics, and justice. So you don't have to. And we do it on Wednesdays and Saturdays with

our full hour long curated podcasts called Legal AF. And then on hot takes, the leaders of Legal AF do it like this right here. Don't change that dial. The Midas Touch Network. Every hour, every hour, we talk about it all. Supreme Court decisions, abortion decisions, women's right to choose, civil rights, immigration, immigration rights, anything that ends up in the courtrooms and the courthouses involving Donald Trump and his civil and criminal woes,

because it's important that we pull, you know, the scales off everybody's eyes. And we explore right here with lawyers who know what they're talking about this particular set of historical facts. If you like what I'm doing, leave me a thumbs up and a comment. It helps keep me on the air. It helps keep the lights on on the Midas Touch Network. So until my next hot take, until my next legal AF, this is Michael Popak reporting.