Legal AF by MeidasTouch - Will any Dems OBJECT to Trump under ELECTORAL COUNT ACT?
Episode Date: December 30, 2024It’s time again for Popok to go to the blackboard to take a hard look at new calls to use the Electoral Count Act to have 20 percent of House and Senate members lodge an objection to Trump’s elect...oral college votes to have Kamala win the presidency after all. Does the 14th Amendment allow it, and will this MAGA Supreme Court find that unless Congress acts to declare Trump an insurrectionist, all 14th Amendment attacks are useless? Popok explains. Trust & Will: Get 10% off plus free shipping of your estate plan documents by visiting https://trustandwill.com/LEGALAF 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 MissTrial: https://meidasnews.com/tag/miss-trial 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 On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Coalition of the Sane: https://meidasnews.com/tag/coalition-of-the-sane Learn more about your ad choices. Visit megaphone.fm/adchoices
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What happens if 20% of the House and 20% of the Senate
decide to try to reject electoral votes for Donald Trump
because he was an insurrectionist?
And could that lead to Kamala
Harris becoming the president? Even if it couldn't, is it worth the price of admission
for Democrats to lead that charge under the 14th Amendment? I'm Michael Popak. Yes,
you're on the Midas Touch Network and Legal AF. There's new writings going on. I just read an article on The Hill written by a couple
of former Yale law school editors-in-chief back, I don't know, about 50 years ago,
who also clerked for the United States Supreme Court about 50 years ago, who wrote an article.
I wanted to break it down for you because there's so much going on in the YouTube verse about the 14th Amendment and a
likely outcome. I've always focused on a likely outcome and not on magical thinking, but I do
want to explore this issue under the Electoral College Count, the Count Act, which empowers
Congress and solely Congress, not the Supreme Court, not any other branch of government,
to count the electoral votes on January 6th and certify them. There is a mechanism under the Electoral Count Act as amended in 2021
for an objection. And the grounds for the objection, as argued by these two scholars,
these two authors, is that if you have, that Congress can reject particularly any vote that is not regularly
given. That's a term of art, not regularly given. One way to interpret that is if you're
voting for an insurrectionist or somebody that's been a judge to be that, it's not regularly given.
Now, whatever I'm going to tell you now, I'm going
to have to overlay on top of it the decision over the summer in the Supreme Court ruling of what we
call Anderson, the Colorado case, about an insurrectionist on the ballot or an insurrectionist
being voted. Of course, we have a different set of facts now because that insurrectionist has been elected and voted
by the people. So the question here fundamentally that's been asked is can the language of the
Count Act about not regularly given be used to deny someone who's been declared somehow to be
an insurrectionist by Congress of getting that electoral vote in their tally,
yes or no? And what's the mechanism behind that? The mechanism can be used. I'm not here to say
that if 20% of the Democrats in the House and the Senate get together, I think it could be a
different 20%, and they decide to object to the electoral count by arguing that Donald Trump's an insurrectionist,
that it was proven to be an insurrectionist both by his impeachment but not conviction
in the second impeachment trial in which the House impeached him for his role in inciting
an insurrection using the word insurrection.
And then a later a five-day trial in Colorado in which Donald Trump participated, put on evidence, evidence was taken by the trial
judge. It was affirmed by a close vote at the Colorado Supreme Court, and there they ruled that
he was an insurrectionist and should be banned from the Colorado ballot, which brought us to
the Anderson decision. So the mechanics are there.
So I started the hot take with,
should 20% of the Democrats in the House and the Senate
object to the Electoral College vote,
at least as a moral objection,
even though it may not, and let's be frank,
won't lead to enough of the majority of the House and the Senate
to confirm that or affirm that
to take Donald Trump's electoral votes away from him
and declare Kamala Harris to be the president.
Is there a moral value to doing that?
Yeah, I'm not gonna debate that, sure.
If I was in the House, I may lead the charge
and get up there and say, and try to get 20% of my votes, which is like 42, 43 other
voters that come along and declare that, you know, and shave off a lot of the votes for Donald Trump
and try to declare Kamala Harris the winner. But then you need, in order for that to happen, even if
you get over, was he properly declared to be an insurrectionist? And if you get over the fundamental question coming out of the Anderson decision, which
is is section three, Article 14, sorry, the 14th Amendment section three, is that self-effectuating,
activating, or does it need a new law of Congress to be established, a new process of Congress
to be established, not for disability
removal, as some people have argued, but to actually implement Section 3. Because whether
you call it dicta or you call it the holding of the decision in the summer, and I know that
difference matters, there's a debate which has not been resolved by the United States Supreme Court as to whether
there needs to be another action taken by Congress in order to declare someone an insurrectionist.
There is no debate that the Constitution and the ruling in Colorado says that in order
to remove a disability from somebody, the insurrectionist label has to be done through
an act of Congress.
But the question is under section three and section five of the 14th Amendment, whether
Congress needs to take another step and pass another law or mechanism in order for that
to happen, or is it just self-actuating? I have all these people, I've heard all these
people on YouTube say, he's an insurrectionist. I can see it with my own eyes.
He's, I can read.
I can read, I heard somebody say.
I can read.
I can read too.
I can also read the Supreme Court decision and I also see the cards in front of me about
the Supreme Court.
Did the majority of the Supreme Court say in their holding that under Section 3 and
Section 5 of the 14th, that Congress has to act
before an insurrectionist is banned or barred from taking office, that is one legitimate way
to read it. There's no other way to talk about the language in the Anderson decision for the
summer in which the Supreme Court majority says section five and Congress's role in implementation
is a critical component
of the 14th Amendment.
I don't know how else you read that.
You'd have to read it out of your analysis in order to say, I can read the 14th Amendment,
it should apply.
Now, you also have to get over the hurdle about sort of the findings against Donald
Trump.
I think we can all agree it can't just to be a poll
Like let's take a poll to decide whether Donald Trump was an insurrectionist. I think we'd win that poll maybe 52 58 59 60%
We'd probably win that poll but that can't be a poll
So is it a court declaration?
Is it an impeachment process? We have one court declaration, effectively.
The Colorado state court lawyer, sorry, judge who ruled after hearing five days of evidence
that he was an insurrectionist, Donald Trump was an insurrectionist.
We have that.
Went up to the Colorado Supreme Court in a closely divided decision.
They affirmed.
We got that.
Do we have a federal judge saying he was an insurrectionist?
It's not about the Constitution.
No.
Do we have the United States Supreme Court ultimately declaring Donald Trump to be an
insurrectionist?
No.
Do we have an impeachment of Donald Trump on a count involving insurrection?
Yes.
Second impeachment trial.
Insurrection, the incitement of insurrection.
Do we have a conviction of Donald Trump for insurrection? A conviction
at the Senate level in the impeachment process? No. So you have some yeses and you have some
noes. Okay? Doesn't change the fact that the Electoral College Act, Count Act, and I can
read that too, says what it says, which is 20%. Can object. Then it goes where? Goes to a full vote,
majority wins, House and Senate. As to whether that objection properly lodged at the 20% level
makes those votes canceled because a majority agreed. I think we can all agree,
speaking of agreement, on this particular hot take, that we're not going to see a majority of the House, right? Some huge number of the House
in majority, which is primarily controlled by Republicans, side for it. And we're certainly
not going to see 67 in the Senate side for it, right? We're not going to see any numbers close to that.
We'll probably see 51 or 52 in the Senate, 15 votes short at least to affirm that objection.
And in the House, the numbers could be a little bit closer, but still won't get us to double
majority that we need in the House and the Senate.
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And so I guess what I was trying to say in this hot take for those that are out there is that I can read and I have a legal background and I'm pretty skilled at
constitutional analysis and constitutional scholars may not all agree but we can agree
to a legitimate set of facts. You have the right to your own opinion, you don't have the right to
your own facts. Fact, Donald Trump was convicted if you will or that's the wrong word, fact, he was found by a
Colorado trial judge, affirmed by the Colorado Supreme Court of having committed insurrection.
That's fact. Fact, he was impeached but not convicted of incitement of insurrection. Fact,
he was not judged by a federal judge or appellate judge, a federal appellate judge to be an
insurrectionist. Fact. The United States Supreme Court did not find Donald Trump to be an insurrectionist.
Fact. It can't be enough that we just take a poll about what we think and feel about what
happened on Jan 6 and everybody knows what I think and feel about Donald Trump's behavior on
Jan 6, he's an insurrectionist. But that can't be enough. Fact. There was a ruling at the United
States Supreme Court level about the 14th Amendment Section 3 and its disqualification clause,
at least as it related to state ballots and the ability to ban federal officers and presidential
candidates from state ballots. Fact. There was a ruling,
a majority ruling that primarily benefited Donald Trump. Fact. As part of that, the majority,
six to three majority on that, I'm sorry, I keep saying six to three, nine zero, nine zero majority,
I was thinking of the immunity decision, the 9-0 Colorado Anderson case.
The majority, I mean there was a bunch of opinions that were written, but the heart
of the case is that a state cannot, through a finding of insurrection, through a trial
court level or otherwise, take a federal presidential candidate off the ballot.
But in doing so, they also, as part of what some people refer to as dicta,
or some people refer to as part of the underpinnings of the decision, also pointed to Section 5. And
I think based on that, there is a majority consensus, if it was pushed to them, that Congress has to act not only to remove a disability, but also to bar an insurrectionist
who is a president through the Electoral College count or to be seated as president or to be
entitled to an inauguration. And that is the emphasis in Anderson on Section 5 and the
obligation or the power of Congress to act to implement 14th Amendment Section 3 fact.
How you see that as dicta or as holding as they said in the majority, the critical role of section
five in the 14th Amendment Section 3 analysis, it exists. And then what I'm doing in shorthand at
least, because how much time can we spend on a hot take, is to tell you that it is likely,
more likely than not, high probability that this United States Supreme Court has currently
constituted would find based on the Anderson decision that the Congress has to take one more step,
has to take an act not just to remove disability but to bar a president of the United States
who has been voted that way by a majority of the people from taking office.
That it's not just going to be done sort of cavalierly or casually.
That it's a big deal. We may not agree with the
votes. I want to get to the bottom of where 9 million people went from the Biden vote
and why 20 million people decided to sit on the sidelines of our democracy.
That's for another day and another hot take, but that happened. And if you have the votes
and you have the electoral college and the votes have happened,
for a Congress to say that the will of the people and the voting that's happened is going
to be overruled, right?
We talk about it in terms of disenfranchisement on this network.
That's a big deal.
And this Supreme Court is going to require for that big deal that there be an act of Congress,
an establishment of a procedure to remove him,
to remove that candidate,
even if you get through this electoral college vote.
Now, you can avoid all of that,
except that there will be a Supreme Court challenge
if the 20% vote to object to the electoral college count,
but they can only object on two grounds, right? And one of them is the one I'm talking about,
which is that the vote was not regularly given. Because unless, if the vote was regularly given
and it arrives, it's got to be counted. So you could see where even if they win that vote,
somehow got their
majority decision, the Supreme Court would say, no, that you violated the Electoral Count Act
because you've made a decision about the regularness, the regularity of that vote given
that's improper under the way we interpret insurrection and 14th Amendment. So we're back to the 14th
Amendment, Section 3 and Section 5, all over again. I'm trying to outline this because there,
when you, let me tell you straight, when you shorthand this, when you try to do this analysis
in sound bites in one minute and two minutes and three minutes being led by people who are not skilled in this area
It leads to a lot of what's the word my grandmother would have used it just leads to a mess
It's just a mess. I have friends in Miami who would refer to it as it's just mango and rice
It's just a mess and I'm trying to make it less messy
By going through the things that we can all agree
to as we get to the analysis. At the end, it's an analysis and it's a projection and a prediction
about what the United States Supreme Court is going to do with the toolbox that I've been given.
Yes, I agree to that. And I may not have full agreement out there in law pundit world on YouTube, but that's okay. I've never been
one to march to the beat of somebody else's drum, right? But I want you to understand
how we got there because it's so easy to hear the criticism, right? Oh, Pol Pot can't read.
Oh, Ohmightestouch can't read 14.3. They can't read. Oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, you the equation and how it comes out to a certain way. If you want to solve for that equation in a different way that is honest in its thinking,
in the integrity of its thought, there's the blackboard.
But we're going to do it our way here because this is what we believe in.
I think somebody's telling me to do that.
Does anybody really think I want Donald Trump to be inaugurated and I wouldn't be working morning,
noon, and night the way I already am to deny him that seat if it were possible.
Who believes that?
Having watched me for four and a half years on this network, nobody.
But I'm not here to sell ratings or to get more views or to get more subscriptions. We'd like that.
Independent analysis and commentary on independent channels is important right now, I believe.
But that's not why I went to the blackboard, to explain the 14th Amendment, Section 3,
Section 5, all of the different cases, all of the different pieces of this puzzle,
and then try to put it together the best way that I know how.
That's why I'm here. I'm Michael Popak. This is The Legal AF and Midas Touch channels.
You can follow me. I'll do stuff like this on all different topics over a 45-minute spread on Tuesday nights on Midas Touch called Popak Live.
I even take questions, and I give you answers in my commentary,
my opinion, my analysis. Wednesdays and Saturdays, Legal AF, the podcast on this YouTube channel
from MidasTouch and then on all podcast platforms of your choice. And then again,
we've got a new Legal AF YouTube channel we call Legal AF MTN. Go over there,
help us build that as well so it's durable and lasting on the other side of the inauguration.
I'm Michael Popak and I'm reporting. In collaboration with the Midas Touch
Network, we just launched the Legal AF YouTube channel. Help us build this pro-democracy channel
where I'll be curating the top stories,
the intersection of law and politics.
Go to YouTube now and free subscribe at Legal AF MTN.
That's at Legal AF MTN.