The MeidasTouch Podcast - Special Edition: MeidasTouch Presents 'Legal AF', Episode 11

Episode Date: June 6, 2021

On Episode 11 of LegalAF (#LAF), MeidasTouch’s Sunday law and politics podcast, hosts MT founder and civil rights lawyer, Ben Meiselas and national trial lawyer and strategist, Michael Popok, provide a sobering analysis of a California federal judge’s decision to overturn California’s 30-year old ban on assault weapons citing the overriding considerations of the Second Amendment (while comparing AR-15s to swiss army knives and Ford pickup trucks) and predict what the Supreme Court will likely do about it in a future term. Speaking of 30-year precedent going out the window, next the Legal Analysis Friends look at Coney Barrett’s first majority opinion scrapping the 1986 Computer Fraud and Abuse Act criminalizing most database breaches and why the composition of which justices joined together to make up the 6-3 majority is so bizarre. And on the topic of here today, possibly gone tomorrow, the Legal AF duo discuss the likely decision this week by SCOTUS to revisit next term (and possibly overturn) the use of affirmative action in higher education to create diverse student bodies.  Next up, Ben and Popok take a hard look at former National Security Adviser Michael Flynn and why his recent statements made at the Q-Anon convention (?!?) calling for the violent overthrow of the US government is not only a federal crime, but should lead to his court-martial and loss of his military pension to boot. No #LAF episode would be complete without a look at Former 45’s current legal troubles, this time his being sued along with Don Jr., Rudy and Rep. Mo Brooks by members of Congress, including Rep. Eric Swalwell, for violation of the KKK Act for inciting the January 6th insurrection. Ben and Michael also don’t pull any punches and share their jaundiced view of Trump’s efforts to argue that he enjoys “absolute immunity” from a civil suit since “it happened” while he was President. While they're at it, the #LAF hosts scratch their collective heads as to why on earth Rep. Mo Brooks would try to dodge the process server trying to serve him with the suit, as if that’s a good thing to do. To round out this hard-hitting, action-packed episode, Ben and Michael discuss if Matt Gaetz will also be hit with obstruction of justice charges for interfering with the federal investigation into his having sex with minors, and whether before he assumed the post, Postmaster General DeJoy committed federal election law crimes by illegally funneling money through his then employees to political candidates. And in a special “crossover” segment, the MeidasTouch Brothers visit #LegalAF and interview Matthew Modine running for the president of the labor union representing over 160,000 actors, artists, influencers, models and other media professionals, along with his running mate Joely Fisher, running for secretary treasurer. --- Send in a voice message: https://anchor.fm/meidastouch/message Support this podcast: https://anchor.fm/meidastouch/support Learn more about your ad choices. Visit megaphone.fm/adchoices

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If you have questions or concerns about your gambling or someone close to you, please contact Connex Ontario at 1-866-531-2600 to speak to an advisor free of charge. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Welcome to the Midas Touch Legal AF podcast. If it's Sunday, it is Legal AF. I am loving the new Sunday time. I've said that on the last podcast. I was skeptical on the podcast before that. But Legal AF is crushing it Sunday. I am Ben Micellis of Geragos and Geragos with me is Michael Popak of Zumpano, Patricius and Popak.

We are your Legal AF enablers. And for the next hour or so, we have a jam-packed schedule of dissecting legal cases. And as we dissect, we teach you about the legal issues at play. And ultimately, at the end of the day, we discuss how our law can help us save democracy. Michael Popock, how are you doing today? I'm doing really great, Ben. And you and I talked about our lineup for today, and some of it was even suggested by some of our followers. So we're going to dive right in because we got a lot to cover this week. No doubt about it. And at the end of our podcast, we have a very special interview with Matthew

Modine and Jolie Fisher. Matthew's running for president of the union SAG-AFTRA, the Screen Actors Guild Union. They're going to be talking about important labor issues surrounding the Screen Actors Guild. And so that will be at the end of the podcast. We hope you will check out that interview. But of course, first, we want to get right into the law. Let me take you to the sunny state of California where the weather is in the mid 80s as we're recording this podcast. But the beautiful weather doesn't necessarily translate to beautiful court rulings in the state, especially in San Diego. A San Diego federal judge from the California Southern District Federal Court overturned California's ban

on assault weapons. And worse yet, in this ruling, this particular judge likened AR-15s to Swiss Army knives. We're going to talk about this federal judge in more detail, but the judge's name is U.S. District Judge Roger Benitez, started off as a magistrate, was appointed as a federal judge in around 2003, 2004 by President George W. Bush. I think there was some sense when this particular case was assigned to this judge based on prior rulings that he would rule in the most horrific way possible, overturning a ban that has been incredibly helpful in our state since it was enacted in 1989. But I think the writing was on the walls with this particular judge who in 2019 granted summary judgment in a lawsuit against California's ban on large capacity magazines.

That was appealed to the Ninth Circuit, which actually affirmed Benitez's granting of summary judgment. But actually, fairly recently, as recent as February 25th of 2021, the Ninth Circuit agreed to hear what's called en banc, a large panel of the Ninth Circuit judges to review the two-to-one decision. And so I think with that backdrop, Popak, tell us what's going on here. Yeah. So look, you laid it out well. You joke a little bit with me about some of my Miami, Florida roots. California has come up with a really horrendous overturn of the Assault Weapons Control Act that's been on your state's books since 1989. And I read the 94-page decision that he generated. He is obviously in every fiber of his being, because you can tell in the way he wrote,

in every fiber of this judge's being, he is a Second Amendment protector above all other amendments of our Bill of Rights. How do I know that? The line in the decision that got the most press that we just talked about was him comparing AR-15s as commonplace as the Swiss Army knife. But if you read a little bit deeper into the 94 pages, he actually said it's the equivalent of Ford's 150 pickup truck. That there are probably more, in his view, assault weapons in America. This is sad if true, by the way, that there are more or double the amount of assault weapons in America as there are of the top-selling pickup truck in America. He actually says in the opinion, just to show you how cavalier he is about human carnage that results from assault weapons. He actually says every time you're on the road

and you see a Ford, you know, F-150, think about two assault rifles that exist in America. What he doesn't acknowledge in 94 pages is that every major mass killing in the last 20 years has been at the hands of an AR-15 in some lunatic's right or left hand. And just to remind our listeners, I'm talking about the mass shootings in Las Vegas, at the Pulse nightclub in Orlando, at Sandy Hook Elementary School, at Stoneman Douglas School, every one of these, an AR-15 was used. And one of the fathers, who's the leading gun control advocate, one of the fathers of the victims at Stoneman Douglas, put it best. He said, if this AR-15 is the equivalent of a Swiss army knife, my child would still be alive, because how many people can you stab with a Swiss army knife? The problem with this judge is he's fallen in love and picked and chosen from certain precedent

of the United States Supreme Court and particularly DC versus Heller, a 2008 Second Amendment case, which did set a new standard. It did once and for all tell all circuit courts, including the one in California, that the right to bear arms is not a right of the states. It's an individual right, both based in the right to have a militia, which you and I have talked about in past analysis of the Second Amendment, and in personal self-defense. This judge has sort of smushed that together and said, well, the AR-15 is perfect for both. It's perfect for home defense, and it's perfect for homeland defense. And it is so commonplace in America, this is his justification in his Second Amendment analysis, that it is so

commonplace in America that an AR-15 sits in somebody's gun cabinet, that therefore the court and the Second Amendment should recognize it and allow it to be in everybody's household and not be a violation of the Second Amendment, and it's a violation of the Second Amendment, if you ban it. What he's ignoring is the actual language and text of D.C. versus Heller, where even that Supreme Court back in 2008 recognized that it does not grant an unlimited right to have any weapon of choice for any purpose and have it be OK under the Second Amendment. high count magazines that this judge has already ruled is also okay, is just the type of thing that the founding fathers who had flint and muskets as their weapon of choice would find appalling, and not what they intended by the Second Amendment. And then, Ben, just to turn it back to you, what happened to the Federalists, who are these people who say they're conservatives on the court, who say they're Federalists, who say you have to look at the literal text of the U.S. Constitution

and what the founding fathers intended. How can they justify an AR-15, which would never have been within the ken or the transom of the mind of a founding father, to justify it under the Second Amendment? And so we've broken down the language under the Second Amendment. And so we've broken down the language of the Second Amendment. And what's always intriguing are people like Judge Benitez, when they usually interpret other cases, they are always talking about how you have to be very strict, you know, strict interpretation. Every single word has a meaning, you know, and you must, you know, dissect every single word. When you read the second amendment, it says, a well-regulated militia, comma, being necessary to the security of a free state,

the right of the people to keep and bear arms shall not be infringed. And the words that they clearly do not give any credence to. And this is when we talk about Judge Benitez is not pro-Second Amendment. Judge Benitez is pro-interpretation of Second Amendment that leads to mass deaths in the United States. That's the interpretation of the Second Amendment that he ascribes to. Because when you read it, a well-regulated militia. Well, the word regulated is literally in the Second Amendment,

even if we read out the word militia. Also, it being necessary to the security of a free state, the right of the people to keep and bear arms. The word regulated literally is one of the only places within the Constitution that you actually have the word regulation in there. And then I read it right. The framers didn't say a horde of vigilantes armed on the streets is is is appropriate in order to guard against, you know, tyranny in this country. That's not what it says. And then if we look at the words, particularly of the ruling, and then I want to move on to some perhaps legal lessons that we could glean here of what's next. Here's some language that's actually written by a federal district court judge. Like the Swiss Army knife, the popular AR-15

rifle is a perfect combination of home defense weapon and homeland defense equipment. Firearms deemed necessary, deemed as assault weapons are fairly ordinary, popular, modern rifles. Also in the ruling, the judge criticized the media, writing, quote, One is to be forgiven if one is persuaded by news media and others that the nation is awash with murderous AR-15 assault rifles. The facts, however, do not support this hyperbole and facts matter. But according to 2019 FBI data, the handgun that was the most commonly used, and Popak, you said this, in murders accounted for 6,368 victims in 2019 alone. We see these school shootings every single day. It's like when we talk about COVID, the way these GQP members talk about death is as, it's not really all that bad, you know, like death's the worst thing possible. And when we look at 7,000 victims of AR-15s of handguns.

That's pretty bad statistics. I don't know what would persuade this judge, but I know that I wake up every single day in this country to another mass shooting. Here's my problem, and I totally agree with you. Here's my problem also with Benitez. He's full of hot air. Let me break it down as far as I, and for our listeners, because I want to manage expectations. Under

D.C. versus Heller and the current constitution of the United States Supreme Court, we are not going to have handguns banned in America. It is going to always be, for the foreseeable future, a Second Amendment right for a person to have a handgun for self-defense or other purposes. Period. End stop. We can argue about it until the cows come home. That's going to be the Second Amendment for as long as you and I are both alive. But here's the problem. Benitez goes on to say, an AR-15, as you just quoted, is the perfect weapon for home protection. I have never, in my adult life, heard even an anecdote of a situation where someone has protected their home, their castle, as we like to call it in the legal profession, with an AR-15 when they were attacked or robbed or otherwise. I've heard

plenty of handguns. I've heard somebody pulled a handgun out of their nightstand. I've heard, you know, in a church, you know, a church security officer or in a bank, somebody pulled out their handgun and maybe was able to return fire. I have never, and I defy Judge Benitez to give me one example where somebody under attack in his own home went to his gun cabinet and pulled out an AR-15 with his family and shot dead the perpetrator. You know why I've never heard of it? Because it's never happened. And he's using that as a justification to say that the assault weapon ban in California, which he loves to say predates the 2008 D.C. versus Heller Supreme Court decision and therefore must be wrong. But he he's completely wrong. So, Ben, let's go to where this case goes next, because I know that's what you want our listeners to know.

So now it gets appealed. Basically, what the judge issued was what's called a permanent injunction. An injunction means a judicial order stopping something from taking place. And this is stopping the insult ban in California from being enforced. So now this gets appealed to the Ninth Circuit. The way our federal court system is structured, you have district courts, you have circuit courts as the next level of appeals. They review what the district court does, and then you have the Supreme Court. So this goes in front of a Ninth Circuit. Remember earlier, I talked about that other case, the case involving a summary judgment on large capacity magazines, that goes in front of a panel that's often randomly selected of Ninth Circuit judges. These are appeal judges that have

three members who sit on the panel. I don't want to overcomplicate it or confuse it, but sometimes there are arrangements where judges who are from different circuits or even sometimes district court judges for very limited purposes can sit on these Ninth Circuit or these circuit panels. It's kind of a way for judges to get different experience and to travel, and they kind of have their own little world there where they do those things. But anyway, you go in front of that panel. And by the way, you could have three judges who look at the law the same way Roger Benitez looks at the law. You can get a panel of three judges who look at the world the opposite way Roger Benitez looks at it. And then you can have some mix of it. And so ultimately, that randomness sometimes determines what the ruling is going to be. And I know you listening, that kind of sounds, well, it's kind of a crazy case. And all summary judgment means is that Benitez is basically saying that one side won and it doesn't even need to go in front of a jury.

Right. As a matter of law. Correct. And there he's basically saying, I'm saying that the California ban on large capacity magazines as a matter of law is unlawful. A jury doesn't even need to hear it. And that's what's basically being appealed. But then you can do after you have the panel, the three person panel, then it goes to an en banc hearing. But it's a petition that's made to the entire Ninth Circuit. And this is any circuit. The Ninth Circuit just

happens to be the circuit that encompasses California and other states on the West Coast. They have to agree to hear it en banc, which is very rare for a circuit to hear something en banc. Ben, how many do you have? What do you have? 18, 20? What do you have? What would be the en banc? It's a large panel around that size out here. And ultimately, they rule on it. And then depending on their ruling on a I don't want to say fast track. It's going to be a year and a half or so before it's it's ready to go. And it's it's primed for a Supreme Court review, which, of course, they have to decide to take it at the Supreme Court level. We're going to talk about a case of affirmative action that you and I are pretty confident that at the June 10th Supreme Court conference, they're going to decide to pull up for the next term, which starts in October. To recall or to remind our listeners and followers, we're in Supreme Court season. It only runs for a period of time and the summer ends it.

So we're coming up where we're not going to be hearing any more Supreme Court decisions. You and I probably have one or two more episodes where we will report on Supreme Court developments. And then there's going to be a summer hiatus for the Supreme Court until the fall. Then we'll pick up again with whatever the cases are decided for the fall. So it's not going to be this fall for this assault weapons ban to be decided by a Supreme Court. It's probably going to be the fall of the following year that you and I will talk about this. And I'm into it. Let's jump right into that, you know, that one, which is the Supreme Court considering taking up a major challenge to affirmative action. The Supreme Court is going to consider in their private meetings that they

hold to determine if it is a case that they will eventually hear. They're going to be considering taking up the challenge to Harvard's use of racial criteria in its admissions process, which could tee up a landmark showdown over affirmative action in higher education. This particular case arose from a conservative-backed group. Again, I hate the labels conservative because I think at this point, people used to call themselves conservative at this point. I think I'm more conservative than they are because I want to conserve our democracy, and I don't believe in insurrections. But a group called the Students for Fair Admissions. Basically,

these are contrived groups that are created by people on the road. There are no students involved in that organization. It's an organization that's created purely to generate litigation, to challenge laws to get in front of the Supreme Court. When you have this whole cycle of groups that help kind of fund the process by which the confirmation process, they fund literally, that are pro the certain judges. These are the same groups, though, that back these litigations that make their way from, you know, a made up student group or a contrived student group. And they and these groups take it, file the cases in the district court like we just discussed, then file it in the circuit courts, which you now know what that process is like. Whether there's en banc hearings or not is a question that's left up to that

circuit if they hear it. But regardless, then the rulings are appealed to the Supreme Court to get the judges who these groups help select and put in their positions to hear their cases. You know, you got to give the GQP credit, though, and this really doesn't exist on the left. They are really good at rigging the system. And they had a plan 30 years ago and 40 years ago even. How could they install their judges to basically overturn all of the laws? They were playing a long-term game. And when we look at these types of cases, this was part of the plan that they had in the 80s.

The Federalist Society, which was created in the 80s and 90s, when I was actually in law school in the 90s, the Federalist Society came in. There is no democratic equivalent, the Federalist Society came in. There is no democratic equivalent of the Federalist Society. We have the ACLU, we have public interest groups and public justice groups, but we don't have the Federalist Society, which is a cradle to grave. You know, I know you hate using the word conservative, Republican, right-wing Republican, from law student to judge to justice feeder system. They get them when they're young. They get them when they're in college. They push them through law school. They get them onto the bench as justices and judges, and then they get them elevated to the Supreme Court. And you're right. They played a 30 and 40 year long game. And then

they had people like Mitch McConnell, who were there to reap the benefits of all this work, all this preparatory work. But it's what you're teaching, what Midas touched, I hopefully, is alerting your listeners and followers to and is teaching them, is that democracy is a long game. It's not a short game. It's not about what you and I are doing and your brothers are doing in 2021. It's about what we're doing now that's going to pay dividends and reap dividends by focus and concentration from now

for the next five, 10, 15, and 30 year cycle. And if we don't- Here's the thing, Michael, you're so right because they were on the other side. And this is why it's an important moment. They were sneaky for the last 30, 40 years. They hit it, they hit it. And they did a good job hiding it

and just methodically and quietly doing this. Then you have Trump come in and he's just like, fuck it. Here's who I am. I fucking hate democracy. You hate democracy? Join my team at the end of the day. Insurrection? We're for it. Fuck you, Democrats. That's what they are. So you see it now. Like the trick is out and we see it. And which side are you on? So on the case that we're talking about, and just to make a finer point here, because it's even more nefarious as far as I'm concerned, there is no students for fair admissions trying to get Asian Americans to be better represented at Harvard University, which is what the thin veneer of their case says. It's a guy named Edward Blum, B-L-U-M, who is a self-proclaimed neocon conservative. Con is the real word there. He is not a lawyer, but again, I want to manage expectations. This guy, whatever organization that he are the bedrock of democracy and democratic politics and policies, including affirmative action. And he has won four out of six. So we should not take lightly his ability to get to a Supreme Court that is receptive to conservative right wing values and have them overturn 30, 40, 50 years of principle.

The affirmative action case law, including 2003's Grutter versus Bollinger, which allows any university to use as part of their selection process diversity to have a diverse student body, because that is a good thing in higher education, not a bad thing. Everybody being various shades of white is not a great thing when you go to university. Having people from different socioeconomic and racial and gender backgrounds and sexual backgrounds is a good thing. And that's what the Harvards of the world are doing when they select their classes. But you're going to have a Supreme Court, which we know which way it leans right now, six to three, that he thinks, Blum thinks, he's going to be able to get affirmative action overturned, and universities are not going to be able to balance

their student body with Blacks, Asian Americans, Latino, etc. We're going to be left with white and Asian Americans at Ivy League schools, and then Ivy League judges. And this is the biofeedback ecosystem, Ben, that you just described, that would be the wet dream of the right wing of Federalists. And look, we make lots of predictions here. I think by now our listeners of Midas Touch, Legal AF, know our predictions are accurate and sometimes our predictions. I don't want to be accurate, but, you know, when I predict good things last podcast, I predicted Trump is going to be indicted in 2021. I stand by that. I give myself a two month cushion, you know, with holidays.

So if it's February or March of 2022, I'll buy myself a cushion. But I have no doubt, I have no doubt based on the current posture that that is absolutely going to take place, but also based on the current composition of the Supreme Court, based on the attention, based on the fact that just the fact that we're talking about this tells me that this was leaked. There's an agenda behind it. I have absolutely no doubt this will be taken up. I have absolutely no doubt that the case that you just mentioned, the Bollinger case, is going to be overturned. And I have no doubt that having any analysis of diversity in an admissions process will be completely banned, period. That's what's going to happen. I know you're saying,

why? You're so cynical. Nope, nope, nope. I'm just telling you right now, mark the tape, that is going to happen. And that is a kind of footstep, though, into larger unfortunate things that could happen if we don't guard our democracy. If you sat out that last election, not this past one with Biden, I know you voted for Biden, but the one before that because Hillary Clinton wasn't your perfect candidate. Here's here it is, folks. Here's what happened, whether it's you or your friend. We talked about this before. Here's what happened. But let's you or your friend, we talked about this before. Here's what happened. But let's be clear. Some really bad things are going to happen.

But fortunately, the federal courts, at the very least, were protectors of our democracy. I was very nervous when the Trump cases, the bullshit Trump cases alleging bullshit election fraud that never took place. I was worried. I saw some of these judges. We are very, very fortunate, though, that I think the judges were caught off guard. Now the Republican GQPs, they're coalescing around ways to legitimize anti-democracy with their voter suppression bills to allow these judges to root their rulings in legislation that's being passed by these GQP legislatures and are creating things that are very problematic. Let's pivot for a second, Popak, to real crazy shit. The ex-national security advisor of the United States, Michael Flynn, I refuse to call

this man a general because he's an absolutely a disgrace to our nation, but he was an ex-national security advisor. He was pardoned in the pardon spree by Trump after Trump lost the election. He was asked a question at a GQP convention if a coup like the one in Myanmar which is consistent with a lot of language coming out with the former guy talking about being reinstated in August. We need to take this seriously, folks. This is treason. And these are people who are openly talking about a coup. It is not funny. And the fact that there is a political party, the GQP, who coalesces around this, who supports this behavior, who refuses to investigate the insurrection,

who doesn't condemn this, what we have to protect and what we still can protect. I feel bad after that last segment is having America be overturned by complete fascism. The Flynn who let's, let's, let's downsize him. He was a Lieutenant General at best. And he's a crackpot. As we've seen, unfortunately, he has the heat, the ear,

he literally appeared at a QAnon convention, the fact that they're so mainstream that they can have a convention and they're not just, you know, some crazy people on the dark web should be an alert. They charge real money for it. It's like a thousand dollars to attend. You can buy tickets. I mean, there were, there were waiters and servers serving them cocktails. I mean, this, they should be in the sewers of America operating on the darkest of dark web.

They shouldn't be at a convention center or whatever in Texas with Flynn addressing them. And his recent attempt, I don't know if you saw this, Ben, a couple of days ago, he realized he probably had violated what you and I referred to as the Smith Act, which was passed in 1940 during the height of World War II against people who were advocating for the violent overthrow of America, which is, as our followers suspect, a crime, a federal crime that puts you in jail for a long, long time. That's what he did. He said, oh, no, the media has mangled my words again. I didn't say that a coup like what happened in Myanmar should happen here. I said that it shouldn't happen here. There is no one that has listened to that video. And I commend people that follow Midas Touch and Legal AF to go and find the video. It's online. We'll post it again. I'm sure Midas Touch will post it again. And listen carefully to his words. His new walk back of this makes zero sense. He realized he was in deep crap, that he had just advocated for the violent overthrow of the government. And now he's got two problems, well, major two problems. One, as a retired member of the military, he is still

subject to the Code of Military Justice. He also draws a pension from the federal government as being a former military person, and his pardon didn't really affect that. What the government could do now, led by Biden, is they could recall him to service. They could court-martial him using the courts of military justice, which we've never talked about, I don't think, on Legal AF, but we'll do a quick primer here. The military and all of its branches are subject not to the regular federal criminal law and civil law that regular lay citizens, civilians, are subject to. They have their own court system. They have their own code of justice. They have their own judges, and they have their own code of justice. They have their own judges and they have their own

lawyers. And the lawyers are with the judge advocate general's office for those people that watch TV. There was a show called JAG, J-A-G, and that showed the life of a lawyer who works with the military and works on behalf of military personnel or being convicted of a crime or being defended for that. And judges are in that process as well. What is the purpose of court-martialing him? Because he loses pension. That's one.

Secondly, on the non-military justice side, on the regular civilian justice side, the guy committed treason, sedition, and a violation of the Smith Act, and should go to jail. And I'm hoping that this Department of Justice is going to prosecute him. Look, when an average citizen, crazy but average, makes a threat against the president or the vice president and says, I want to blank the president, and it's picked up by one of our surveillance operations, and the Secret Service and the FBI show up at his house, that person is likely to go to jail

for having threatened the president or the vice president or some other elected official's life. And unfortunately, it happens more frequently than people give it credit for. It happens at least half a dozen times a year. It just happened recently with President Biden. Why is this any different when Michael Flynn, who was only pardoned for his bad past acts, he doesn't have a free, like in Monopoly, get out of jail free card forever, that anything he does in the future that's criminal, he's not going to be prosecuted for. He is. So it's early. I know our fans and our followers get a little frustrated with how the wheels of justice move.

But he should be prosecuted for what just happened. Scales of justice do move slow as well. If you think about a scale, like unless you put like a brick on it, the scales do move. The scales do move slow. And so we'll keep everybody apprised of what's going on with Flynn. And it's just, again, every time you see his outrageous and egregious behavior, the fact that for a certain period of time, he was the head of all of our national security apparatus and that he's literally wants to destroy our country is something that is just completely terrifying that that even existed. But thankfully, we are past that process. But again, no complacency whatsoever. I'll tell you someone who's not being complacent right now. It's Representative Eric Swalwell is the plaintiff in a lawsuit against enablers of the insurrection, including Donald Trump, including Don Trump Jr., others who spoke at the insurrection,

one of those people being Representative Mo Brooks. Well, when you file a lawsuit, one of the documents that it goes with the lawsuit is something called a summons. And the summons alerts the person who's being sued in the lawsuit that they need to show up and they need to respond in a specific time. The response dates are different depending whether you're in federal court or state court. That response time could be as short as 21 days, 30 days, sometimes for government officials, it could be 60 days. It depends on the statute in the specific jurisdiction, but you have to respond. But when you file the lawsuit,

you have to actually serve the person. So you often, those listening probably have seen the TV shows or movies where a process server goes, you've been served and they hand them the documents. That's sometimes how it works. But oftentimes in litigation with sophisticated parties that are represented by lawyers, the state judge that you are just trying to dodge the process server. People realize that you exist and that you're going to be sued eventually. But here, yeah. Anyway, one thing. When I've had in civil cases, when I've had lawyers on the other side who haven't agreed to accept service of process for their clients and make me or you go through the hoops of having to get them served, why they want to do that, I have no idea. It's an embarrassing situation.

You can serve people when they're having dinner with their friends and family. Birthday parties, weddings. Why would you make you and me do that? So I use an example because I love pop culture references. I used to be a big NYPD Blue fan. And I said, I don't get this. You want me to get like Sipowitz and put him in a van with a box of donuts and a carton of cigarettes and have him sit on your on your client's house until he comes out and then serve him? I don't. Why do you want me to do that?

And usually they go, you're right. I'll accept service. But look, we just did it. You and I did it in the Marjorie Taylor Greene case. Your office handled service of process of an elected official in the House of Representatives, and you were able to effectuate service. We did, and we had our process servers

just go into the Capitol building. I think there, Marjorie Taylor Greene had reached out to the general council for all of the House of Representatives because we got a call from the general council saying you can give it to us and we'll effectuate service on it. So you should tell Swalwell that you know how to get somebody served in the Capitol and give him some tips. I mean, just going there, as crazy as Marjorie Taylor Greene is, I think she still realized, I don't want to have somebody coming up to me and waiting outside of my house. But this is exactly what Mo Brooks is doing. But at the end of the day, Mo Brooks, if you think you're innocent,

if you think that you're not liable, go ahead and file your motion to dismiss. And you're going to you're going to have to do that eventually. So it just makes no sense. What a coward. Total, total coward. And then the judge and you're pissing the judge off. Because do you think do you think the judge here, which is a meat meta, do you you think Judge Mehta really wants to deal with an adult House of Representatives member who is dodging service of process? That's the way you want to, if you're his defense lawyer, that's the way you want to start out your defense of this individual?

No, you know, and look, you know, that just, there's different types of obstruction, right? There's actual criminal obstruction, which we'll talk about in a bit, you know, and then there's just being a jerk in a litigation and just being, I guess, the informal colloquial term of obstructing and just making things more difficult than they need to be. And, you know, I find when I'm in front of a federal judge particularly, but also a state court judge, if you're experienced counsel and you're representing clients who are professionals,

who feel they're innocent, there's no need to engage in tricks and stupid juvenile behavior. That's often indicia to people who have been in this industry of guilt, of trying to hide and conceal things. And ultimately, it's an interesting practice that you and I have. Oftentimes, the higher level the cases that, uh, it's like a good boxer. Uh, when, when two good boxers go into the ring, um, versus two fighters who are just like street fighters, like professional boxers, they're not throwing, you know, punches wildly and looking crazy,

right? They're jabbing, they're looking like, let me find the weakness. And they understand there are 12 rounds or 10 rounds, depending on the match, and they have respect for their opponent and they go by usually norms and rules. But when you see a street fight or people at a bar fight, they're looking crazy. And it's the same kind of thing in law. And at a high level, good lawyers don't want to make each other's lives more difficult than they need to be. You understand the process, you understand the facts, you understand ultimately where this is all going to end and you treat each other with respect. But sometimes in our profession, even on big cases, we'll get like crazy lawyers on the other side who just want to make everything difficult.

And it's like, listen, it's your weekend also. It's your Friday night also. You have a family. I've got a family. So you want to do jerky things with me. I'm going to do jerky things with you. Or crazy out of control clients that lawyers can't even start to control. You and I have had that, too.

We've had those experiences. What's up, Midas Mighty? Thank you for making the Midas Touch merch store one of the, if not the, most popular destination for pro-democracy merch from t-shirts to mugs, and of course, the best-selling Vaxxed wristbands. I can't wait to be out in town getting coffee, getting dinner, whatever it is, and seeing people rocking their wristbands. These wristbands are amazing because it's an easy way to let people know that you've been vaxxed and are following CDC guidelines. They say Midas Touch right there on them. You know what we like to call them? The perfect GQP repellent. That's exactly what they are, Brett, because it lets people know, to your point, that one, you're vaxxed, you're making a

safe community for the folks around you. And two, maybe even more importantly, right up there, you're not a Fox News watcher. That's what these wristbands let people know. And let's be real. It's just a matter of respect, right? We're all going out. A lot of people are going to be kind of uneasy being around other people after being locked in for a while. And it's an easy way to just let your neighbors know, let your friends know, let your overworked barista know that, hey, I followed the guidelines. I'm vaxxed. You don't have to worry about me. We're all in this together. And so you can get your vaxxed wristbands at store.midastouch.com. If you're still masking up, you can get your

vaxxed and relaxed masks at midastouch.com. We got all vaxxed and relaxed gears. We got koozies, which are going to be great for summer. I'm excited for summer right now with the Midas Touch merch. And I've seen people showing us photos that they're receiving their tank tops and everything. So go check out store.midastouch.com. Get your pro democracy gear today. That's store.midastouch.com. Speaking of out of control clients that lawyers can't control, I would think Donald Trump and Donald Trump Jr. You know, fit to that criteria. And one of the arguments, you know, look to Trump and Don Jr.'s credit, they've at least accepted service of the lawsuit by Eric Swalwell. You know, they've made their arguments. And in that in the same case that we're talking about with Bo Brooks and the argument made by Donald Trump is that he is completely immune as the president of the United States from any liability associated with his speech on January 6th. And his argument is, my speech was in furtherance of my duties as a United States president, and therefore I can't be held responsible whatsoever. And there's an interesting

line of case law regarding presidential immunity here. And Popak, what do you think about Donald Trump's claim here about he's totally immune? Yeah. And let me just back up a bit, because we dropped the needle a little bit deeper in the record than maybe our listeners would have liked. Just to remind them, Swalwell's lawsuit is and there's a couple of other members of the House of Representatives that joined because they were they have standing to bring the suit because they were the victims, if you will, one of the victims, if you will, of the January 6th insurrection, hiding under their desks within the Capitol, fearing for their lives. They brought a suit under the 1871 Federal Civil Rights Act, which is also known as the KKK Act, obviously for obvious reasons, to support the 14th Amendment of Equal Protection. So that's the basic charges. And it all has to do, as you just said, Ben, with Trump, Mo Brooks, Don Jr., Giuliani, and others that were in that park who incited the mob. Mo Brooks said,

we're kicking ass and we're taking names. Go out there and get them like he was some sort of Newt Rockne in the football locker room halftime trying to gin up his players to go out and smash the other team. We know what Trump said, which was go get them and pointed to the Capitol and I'll be there with you. And then he immediately walked in the opposite direction to the White House as they ran to the Capitol to join up with all the other crazies that were there to break in and attack the Capitol, leading to five deaths, 450 arrests have resulted so far from that. And then these elected officials are trying to say, and the president, the former president in particular,

I'm immune. It was part of my job. And so the line of cases, Ben, that you're talking about, really there's two poles. There's Nixon versus Fitzgerald involving President Nixon on one side, and then there's Jones versus Clinton, which is Paula Jones and Bill Clinton. On the Nixon versus Fitzgerald case, that was a civil servant who claimed that he was fired by Nixon in retaliation for something that he did while Nixon was still president. And what the Supreme Court said way back in the 70s in that case is that most things that a president does while he is in office are immune from civil suit. You can't sue him for having done something and exercised his duties or exercised his conduct as the President of the United States, even if you disagree with what he did, even if he, in the case of Nixon, you know, with Watergate, you know,

taped the Democratic, taped his adversaries, wiretapped his adversaries, broke into the Democratic National Committee at Watergate Hotel and all of that. You can't sue him for that. But they did say that if it goes to the outer perimeter of his duties and goes beyond that outer perimeter, whatever that outer perimeter is, he is not that president does not enjoy absolute immunity. They left it sort of dot, dot, dot for another day to decide what is the outer boundaries, the outer perimeter of the president's duties to decide whether he'll be subjected to civil liability for things he did while in office. So then Jones versus Clinton tried to put a little, you know, bit of a line in the sand about what is the outer boundary, because Clinton tried to argue a little, you know, bit of a line in the sand about what is the outer boundary, because Clinton tried to argue under Nixon versus Fitzgerald, that he can't be held liable for

sexually harassing or making comments or defaming Paula Jones, you know, whatever, whatever it was in that particular moment, when he had all these issues that we now know about through the Whitewater investigation and otherwise. And the Supreme Court said, no, Bill, you don't have immunity for that. That is the outer boundaries. That's not official conduct. That is kind of unofficial extracurricular conduct that you were doing in the White House, for which you do not enjoy absolute immunity. So we have those two extremes. And what Trump is trying to say is, it doesn't matter what I was doing, what I was really doing, and this is his words, not mine, what I was really doing was I was just

asking Mike Pence and the Republican members of Congress to not certify the election, because I believe the big lie, which I was promoting. And that's just the normal part of being president. I get to talk about certification of elections and that's all within my absolute immunity. To which the lawyers for Swalwell and others are saying, no effing way. That is inciting a riot by perpetrating and promulgating the big lie is so outside the outer boundaries or perimeters that even under Nixon versus Fitzgerald's precedent, you are civilly liable here under the KKK Act for the five deaths and all the other bad things that happened on that day. What do you think happened with that? You know, I think the let me let me answer the question by kind of not answering it, which is I think the problem is going to be regardless of what the district court rules, as we just discussed, and now our

listeners know all about the appeals process. Undoubtedly, whatever the ruling is going to be, it's going to be appealed to the circuit court, and it's going to be appealed to the Supreme Court, and ultimately, based on the current composition of the Supreme Court. I can tell you what the district court's going to do. I need to delve deeper into the specific judge, but I think that inciting an insurrection would be on the outer bounds and would be something that would subject somebody to a civil lawsuit. That's not in the president's job description. That's not in the president's job description to incite a riot and to incite an insurrection. But I do see how a current Supreme Court, based on its composition, could rule and accept the argument by the president that when I'm giving speeches and when I'm riling people up, that's a function of the president. I wasn't physically at the Capitol building doing the riot, which you could hold me responsible for.

But if you were to hold a president for the, this is what the court would say, for unintended consequences of speech, that it creates a difficult precedent for other presidents. And by the way, I completely disagree with what I just said, but doesn't that sound exactly like something that Justice Thomas would say? Well, I agree with you, but let me take it this way. Let me run something by you and see what your reaction is. Presidents, when they sit in office, are not only the leaders of the executive branch and have constitutional powers under the U.S. Constitution, but they are also the head of their party, in this case, the Republican Party. And simultaneously with running the government, they also fundraise, conduct rallies, in this case of Trump, every week, and do all sorts of things wearing the other hat of being the head, in this case of that party, and trying to run for re-election, whether

it starts on the second day in office, which it did for Trump, or later in a term, which is normal for a president. Normally you don't start running for office again the second day in office. Trump did. When Trump is at rallies, Ben, when he was in office and he used taxpayer dollars to fly on Air Force One and spend $5 million or $10 million of taxpayer dollars to go do a rally in Wyoming or Texas or Ohio or wherever he was, is he within his job description of the boundaries of the president at that moment? And anything he says enjoys absolute immunity? Or is he just a creature of politics at that moment? And he does not enjoy qualified immunity for the things that happen in that arena. What do you think? I think it gets into a deeper discussion of the Hatch Act,

which was supposed to create a firewall between those two things, the president's executive powers and the president being a politician. But you have Donald Trump who held the presidential convention, the Republican convention, and his speech at the White House. In the Rose Garden. At the Rose Garden, which would be the most egregious, conceivable violation of the Hatch Act.

And you have the entire Republican Party that was supportive of it. I mean, again, that's why they're the anti-democracy party. That's Hitler Mussolini level propaganda bullshit right there. They all went. They all got covid. If you remember, it was a big super spreader event. It was the first time in I don't even know modern history. I think it's the first time in American history that a sitting president conducted a political rally while in office on the grounds of the White House in the Rose Garden. Completely gave me the chills watching that because it was so akin to, you know, all that behavior of dictators. But to answer your question, Pope, I think that's the right argument. You

posed it as a question, but that would be outside of his scope. That's him as the fascist cheerleader. That's him as the politician for which he should be held accountable. I made is where this, to me, that would probably be five for, I think Justice Roberts would side in favor of democracy on that one. It wouldn't be the 6-3, but I still think that the votes are not there in the Supreme Court. I agree with you on that count. I agree. And Roberts, the thing that our followers and listeners will have to watch is, is Roberts able on occasion to drag Gorsuch over as well to ensure that there's a, you know, a six to three the other way on some of that in the past, not on every issue that's important to me or to you or to our listeners, but he has shown that if it's going to be the Roberts court and not the Coney Barrett court or the Gorsuch court, he's going to have to do that and be a statesman and be the, if he wants this to be the Roberts court and that be his legacy, he's going to have to step up and make those kinds of decisions and be persuasive behind those closed doors of that chamber. Hobak, we often talk about the Supreme Court in very binary terms, that there are a certain number of judges who are Republican appointees who vote a certain way and a certain number of judges who are Democratic, big D Democratic appointees who vote a certain way. But there are some unique

examples that we should point out to our listeners where that is not always the case. And one of them was this past week in a case called Van Buren versus the United States, where the Supreme Court, an interesting 6-3 decision, where it involved an unusual lineup, the court's three Trump appointees, all the newest justices, joined with the court's three liberal justices to reject the justices interpretation of a particular statute that involves accessing cyber databases. It's an interesting, it's an interesting kind of case with that's somewhat convoluted, but Popak, can you break it down for us in some basic terms with this. Yeah. And I don't think just so we can we can signal this to our listeners and followers. I don't think we're ever going to see in this in the next term or in the immediate future, a voting lineup six to three in which it's Coney Barrett, Neil Gorsuch, Brett Kavanaugh, Sotomayor, Kagan, and Breyer agreeing in a case. I mean,

it would have to be an esoteric issue of cybersecurity and computer crime in order to bring that strange group together in one voting block, which is what you alluded to. It's crazy. But I want to give a little bit of a longer view for the listeners. There are situations where Republican presidents have chosen Supreme Court justices, and those Supreme Court justices, once they're on there with a lifetime appointment, they stop being Republican appointments or appointees, and they start being the appropriate jurists who have democracy and patriotism at their core that they should be. So, you know, you and I know William Brennan, for which there is a center named after him at NYU, the Brennan Center, was a Republican appointee. You know, Brennan wrote some of the most, for you and me, liberal decisions that ever came out of the Supreme Court that go to some of

our most fundamental rights. David Souter, who was appointed by Bush I, who came off the New Hampshire Supreme Court, they all thought, oh, he'll be great. He'll be a real conservative. He ended up siding with the liberal bloc. The problem with what you and I talked about earlier in the podcast is with the advent of the Federalist Society, it's almost going to be impossible for someone to get on there and flip their allegiance. They are being pressure tested and pressurized before they even get selected. They have to pass a Federalist Society litmus test. They have to genuflect to the altar of all of these crazy conservatives, starting with Ted Cruz all the way down the line. of a Coney Barrett growing into her role and becoming more liberal, and I mean that in a positive sense, as time goes on, is almost nil. So here we see a unique situation that this group got together, but it doesn't mean that Coney Barrett is now going to side with Sotomayor on anything else that's important to our listeners, followers. It just means when it comes to federal cybercrime, they were able to get together and rule in the majority. And therefore, we have

an overturn, meaning prosecutors, federal prosecutors are not going to be able to use the federal cybercrime law, which is the 1986 Computer Fraud and Abuse Act to prosecute crime any longer. That was put on the books in 86. Again, back to pop culture. There was a movie with a very young Matthew Broderick. It was called War Games, where he accidentally cracked into or hacked into a database and almost started an international nuclear war. And that scared the crap out of elected officials who, I guess, go to the movies and they decided, well, we got to do something about that. And we have to do something about people who in an unauthorized way use computer databases against other people or access computer databases or computers. And that should be a federal crime. Before that, federal prosecutors used good old

fashion mail and wire fraud against, that's all they really had in their arsenal, against people that committed computer crime. I'm not talking about child pornography, computer crime. That's different. And that's covered by a whole different set of statutes. This is people who tap into computer crime. I'm not talking about child pornography computer crime. That's different, and that's covered by a whole different set of statutes. This is people who tap into databases that they shouldn't be rooting around in and therefore have committed a crime. And what Coney Barrett, writing for her first majority opinion, said, joined by the other people we mentioned, is that we don't want to criminalize any kind of database breach. If it's a real crime, use mail and wire fraud. We think this goes too far. It's going to criminalize

the commonplace. If somebody accidentally accesses their Twitter account or social media account when they're at work and it violates a policy, that shouldn't be a federal crime. So we're going to take it off the books. And they did, which means the Congress, if they care, the current Congress, is going to have to rewrite the statute in order to have it survive this overturned by the Supreme Court, right, with knowing that it was now found to be unconstitutional, the elements of it. They're going to have to either revise it and rewrite it and pass it again, which the Democrats can do because they're in control at least for another year and a half. Or, and in the meantime, the federal prosecutors who want to go after cybercrime are going to have

to use what's already been on the books for a hundred years, which is mail and wire fraud. It's interesting because I think it's the right result legally. But when you actually break down the specific case, you're kind of like, well, in that particular case, you know, I get what was wrong here. So the Van Buren versus United States case involved a former police officer who was convicted by a jury of violating this law because what he did was searched a license plate database in exchange for a bribe as part of an FBI sting operation. And so there,

as it was applied, he had access to the database because of his position, but he shouldn't have accessed it by taking bribes to give away people's license plates. So you have a law enforcement officer who abused their power, and it appears the law was appropriately applied to punish him there. But the problem is, and this is why a lot of whistleblower groups were warning that the CFAA, this particular law, could invite retaliation against any whistleblower who had access to a database and used it appropriately. They do often. Whistleblowers often download material from their employer or from wherever they work. And it's technically a violation of company policy. And in this case, and that's the fear, it's technically a violation of this federal cybercrime. And then how do you protect the whistleblower?

So a lot of amicus briefs, which are friends of the court briefs, they're not actually parties to the case, but they have a position of stakeholders in this law, in this policy that you just talked about, submitted briefs in addition to the briefs of the parties that all of the Supreme Court read. And it was an interesting, you know, politics makes strange bedfellows. And a lot of these groups sort of got together that you would think, wow, I can't believe they're agreeing on this. But it's as you laid out. Now, I don't want the listeners to think and the followers to think, wow, that guy's not, he didn't commit a crime. He probably committed some other crime. There's theft of honest services crime. There's mail fraud. There's wire fraud. There's RICO. There's a bunch of other things over the course of legal AF university. You and I will have the occasion to talk about. It's just not going to be, at least for the moment until it's rewritten. It's not going to be this cyber crime that's been on the books since 1986. No doubt. And let's go from that crime to another two more criminal

investigations as we close out our Legal AF podcast. But again, remember, we have the bonus interview for those who want to stay after and listen to the great interview of Mr. Modine and Joe Lee, I recommend you listen to it. But let's talk about Matt Gaetz and Louis DeJoy, both under investigation. Matt Gaetz, we know about his investigation for a lot of things that you'll talk about, Popak, involving sex with minors, but also obstruction is what I want to focus here. We know Gates, of course, is under investigation for having sex and transporting minors for the purpose of having sex with them across state lines. And in addition, though, there's an investigation for obstruction. And in a lot of

these cases, you've heard the expression, the cover-up sometime is worse than the crime. Here, I don't think the cover-up is worse than the crime. It's a heinous underlying crime he's accused of, but he can be convicted of trying to cover up the crime, which itself is a crime. And then Louis DeJoy, the horrible postmaster general who literally tried to destroy the post office to have Donald Trump be installed as a dictator, is under a criminal investigation for having his employees and forcing his employees in his private company to donate to Republican candidates and then reimbursing those employees with bonuses and other payments, essentially violating the limits on contributions. Popak. Yeah. So let's start with Gates. There's a federal statute. There's a state's equivalent of this, but we're talking federal prosecution. So we'll stay with federal statutes. 18 United States Code Section 1503,

what you and I colloquially call the obstruction of justice statute, says that someone cannot through intimidation or influence, try to obstruct or impede or influence the due administration of justice. And that covers a whole multitude of sins. In this case, the allegation is that Gates got on the phone with a potential witness. It was either the underage woman who he forced to have sex and raped, or it's a friend of hers who was, you know, in a consultation with Greenberg, who's already a felon, who's already a convicted felon based on his plea deal, that he tried to influence her testimony in her participating in the investigation with the FBI and other agencies that are investigating

this crime. You are not allowed, if you're the subject or target of the criminal investigation, you are not allowed to witness tamper or to get on the phone with somebody who may be providing information and cooperating with an investigation to try to scare them, influence them, impede or obstruct them in any way as the wheels of justice continue to turn against you. You have to sit on your hands and sit on the sidelines and put tape over your mouth and let the prosecutors and investigators do their job without undue influence. And if Gates is guilty of this, that alone, even if he didn't get, this is back to what you just said, it may not be the crime, it may be the cover-up. Now look, you and I believe he, based on what we've heard and what

we've read, he committed the crime. But if he didn't commit the crime, but he's worried that his defense isn't going to hold up or, you know, you know, he, he wants to, he wants to rig the system because he doesn't want to go through the criminal justice system. And he wants to, he wants to influence the outcome by getting on the phone and trying to browbeat this poor person, this poor woman into, into not testifying against him.

That right there is a crime in and of itself punishable by prison. And so, look, there's many different ways. There's many different roads to prison for somebody like this. They can't help themselves. Somebody like Gates cannot help themselves. You and I have seen it in criminal defense work. They think they're the smartest person in the room. They think that they have the master plan that they've hatched, that no one will ever figure out. And they're the smartest person in the room. They think that they have the master plan that they've hatched that no one will ever figure out. And they're usually almost always too smart by half. And their plan is terrible. It's so easily facile and easily debunked. And then they panic, continuing to think, if I just keep talking, if I just keep talking enough, I'll get my way out of this. So let me get on the phone with the witness and I'll talk her out of it. Wrong, federal crime, 18 U.S.C. 1503, obstruction of justice. That's where he's going. And every time you and I pick up the newspaper or read online, he's done something else boneheaded that's going to land him in prison. Whenever I think about him, you know, I think about Jonah Ryan from Veep. And he's like a he's like a QAnon embodiment of Jonah Ryan.

I love that. Trump, I think Trump put Veep out of business because the level of corruption, you can't make a parody when you have a horrific parody in the office. And Popak, tell us a bit about DeJoy. So Louis DeJoy, I never thought there could be a postmaster general who could make the post office worse in terms of its delivery of service, but he found a way to do it. Now, again, and let me pause right here. There are some people who you just don't ever want to even know about. And if you know about them, there's a big problem. And with the Trump administration, there were so many officials that you just started learning about because normally they're just supposed to sign their fucking name and that's supposed to be the end of their job. Yet they

just totally perverted what they're supposed to be doing. I've never really talked about postmaster generals before the Trump administration. I couldn't name one if you spotted me their first name and most of the letters of their last name other than Detroit. I could not name for you any prior postmaster generals except maybe Benjamin Franklin, who I think, hopefully I'm not wrong and I'm not going to get corrected, who I think was the first United States postmaster general. Other than Ben Franklin, I can't name another one. Or the head of the General Services Administration. Oh, yeah. Remember name another one. Or the head of the General Services Administration. Oh yeah, remember her? Yeah, right. Remember. So tell us what's going on with DeJoy.

So Louis DeJoy, before he became, you know, basically just bought his way into a political appointment as Postmaster General. And just to clear up any misconceptions, it's basically sort of like a lifetime appointment, at least for a term. And even if there's a change in the presidency under civil service law, Biden can't get rid of him. He can lean on him. He can do all sorts of things to try to convince him that it's time to go. And Biden's done that successfully with some other commissions and committees to get rid of all these last minute midnight appointments by Trump of all his Republican buddies to the National Endowment for the Arts and the Kennedy Center, all this late night, look it up if you're

interested. Literally in the closing and waning days of the Trump administration, he started packing all of these civil organizations with his acolytes and his sycophants, and Louis DeJoy being one of them. Louis DeJoy used to run a business called, I don't even know what it does. It sounds like a made-up thing from Warner Brothers or from a movie, New Breed Logistics. It just sounds nefarious, whatever it was. But whatever it was, it also contributed, or its employees contributed, you know, millions of dollars, at least a couple of million dollars over a period of time to Republican candidates of DeJoy's choosing. So let's just break down campaign finance law for our listeners in the couple of waning minutes of our broadcast, our podcast.

Employees are allowed to donate money. Corporations are not allowed to donate directly to candidates. We talked a lot about case law and Citizens United, but that does not allow a corporation to make a direct payment to an elected official's campaign. It allows the corporation to donate to a political action committee or donate in other ways, but not directly. It can't be A to B. An individual, like an employee of the company, can and often does make contributions. Sometimes, like when I worked for a company, I made contributions. I had to disclose them, but I made contributions. My boss didn't tell me who to contribute to. I told him who I contributed to in disclosure, but I'm allowed to make direct

contributions as an individual to a political candidate. Here's the murky thing, and here's what DeJoy is being investigated for as a crime. There's three potential crimes that he's committed under federal criminal election law. One is called masking. The other one's called funneling. The other one's called coercion. They're all about the same thing. Masking means you are forcing your employees to donate money to candidates and campaigns of your choice as the owner of the company. They're using their money, at least on the surface, to make the contribution. Their checkbook is being used. But then you're giving them bonuses or other compensation behind the

scenes to reimburse them for the contribution. So you are masking the fact that the company is really making the contribution by doing it through the straw man of the employee. Funneling is the same thing. You're funneling corporate cash through the employee to end up in the coffers of the political party or the political candidate of your choice. And coercion is you're forcing the employee to do that. You're not just saying, to be clear, a company can say, I support Donald Trump. Our company supports Donald Trump. Donald Trump is good for our industry and our company. They can say that. And they can even go further and say, I, the chairman of my company, would like you, fill in the blank, you know, staff person, rank person, CEO, whatever, to donate to this candidate. But then you have the

right to say, no, I don't want to do that. And you can't be retaliated against. So coercion is threats that if you don't participate in this scheme, where I'm going to give you my money in a bonus, you're going to use it to pay the candidate so that I can avoid and circumvent federal election law, you know, that's a crime. And that's what DeJoy is being investigated over. The main problem is, to pick up with lessons from prior LAF law school additions, is that there's a statute of limitations. And the statute of limitations is five years. And some, at least some, of what happened here when he was at New Creek Logistics was six years ago. So some of what he did, while it was a crime, it may be time barred

for the prosecutors who are investigating to bring the crime. If it isn't, they got to hurry because again, unless they get a tolling agreement, which we talked about last week, to stop the clock with the defense, they're going to have to file the charges relatively quickly, either by information or indictment, and then go from there. This is bad stuff. It could have him lose his job, but the prosecutors are going to have to get this case together quickly under the clock that's ticking with statute of limitations. One of the other implications, too, outside of criminal impact could also be administrative impact. And if indeed he's engaged in conduct of moral turpitude or criminal activity, perhaps even if it's time barred, it could justify a for-cause termination, which is one of the ways

to terminate a civil servant. So we will look out for that. But I think we've said it all on this incredible Sunday edition, our standard time of Legal AF. Popak, thank you as always for your incredible legal analysis. We want to thank all of our listeners for tuning in to Midas Touch Legal AF podcast. And we're going to now bring in a very special bonus edition with the brothers who have all interviewed Matthew Modine and Jolie Fisher, who are running for SAG-AFTRA president and secretary treasurer. And so we hope you'll still listen to that interview, learn a lot about unions and learn a lot about SAG-AFTRA and what they're doing for the Screen Actors Guild members. Popak, thanks for joining. Oh, it's my pleasure. One last shout out. We have one of our

Midas Mighty, who is having his first jury trial, apparently on Monday, and he wrote, he tweeted about Legal AF that he listens to you and I for encouragement to get sort of geeked up and excited and confident about his first jury trial. And I told him in a tweet back, you always remember your first and that the fact that you and I, Ben, give him confidence to go and kick some backside on Monday in court brings great joy to both you and I.

Absolutely. And good luck. And thank you for listening to this week's Legal AF. We are joined by Matthew Modine, who is running for president of SAG-AFTRA as the leader of Membership First, the union's opposition party, and Jolie Fisher, a former national board member who is running for secretary treasurer as his running mate. Jolie and Matthew, welcome to the Midas Touch podcast. Thank you so much. I should also mention your incredible backgrounds as well as entertainers. Matthew is an actor, filmmaker, activist known for his roles in Full Metal Jacket, one of my favorite movies growing up, Dark Knight Rises, one of my favorite movies growing up as well, and plays Dr. Martin Brenner on Stranger Things. And Jolie Fisher is an actor and activist who

rose to fame with her role on the ABC sitcom Ellen. Very accomplished people. And you have the time to run for office. Matthew, on another note here, I don't even know if you know this, but we've actually been hanging out this whole pandemic. So you and me, any given Sunday and Dark Knight Rises has been my go-to every night after I finished the crazy news cycle to decompress. So it's not really a question. I just wanted to say thank you for hanging out with me each night. It's a really good show.

Any Given Sunday is a crazy movie, isn't it? It's a wild one. It's a wild one. It's a wild movie. And Jolie, I love your Twitter presence. I love your stance that you take on the political landscape at large. And I think there's someone very specific who you talk about frequently that I think it's important to address. And that's Marjorie Taylor Greene. Just because of how dangerous she is becoming

here. Can you just give us your thoughts on Marjorie Taylor Greene and what you think she means to the modern day Republican Party? I mean, I think you'd have to censor me a little bit if I actually started. It's an unfiltered podcast. We could do it. Oh, that's right. I forgot where the fuck I was. We don't want to get you in trouble with the guild now, but. No, no, no. Those ladies are outrageous. I don't know how that happened. Boebert and Green. Like I like what? Where did they come. How does that happen? I mean, I know how it happened. It is dangerous. And I think we need to be conscious of where that party's going. They're kooky and crazy and all that. But like you said, we need to watch out for them. They're

mixing it up. They are coming together. They're coalescing. There was an insurrection on the Capitol. We're living in such dark times, but it's always been under the surface, always, right? And the last president just scratched it and cracked it open and let them all erupt out into the world. What he represented and how everybody allowed, oh, he's just, he does things the way he does them. Well, we don't we as Americans, we don't do things like that. And I think it just it brought to the surface what's always been under there. And it's ugly and it's dangerous. And what do we do?

Well, you know, I know what Batman would do. And Matthew Modine thinks being of the Dark Knight Rises, there's actually a lot of parallels. It would be like, you know, the Joker or a kind of Batman evil movie character taking over and truly opening up and unleashing this hidden craziness that exists like a virus, you know, like the actual pandemic deeply lurking in our society was deep seated mental illness, deep woe, QAnon conspiracy. And, you know, like the evil villain, Trump ripped the scab open and the crazies have come flooded out from the basements onto the street. And Matt, the parallels between the movies you're in and this are staggering. That's why Jeff Bezos just spent what almost $15 billion buying the studio. He and others understand the power of this entertainment industry. It's power to influence, it's power to corrupt, it's power to alter the way that people think

about things. I studied acting in New York City with Stella Adler, who was part of the group theater and the theater that she grew up with part of the group theater. And the theater that she grew up with was all political theater. The theater was a place to tell stories that reflected life and the political landscape of those people that were living them in those times. She said to me that if you, like in this podcast, come into people's homes. If you're broadcast onto a television screen, if you stand on a stage, or if you're on a motion picture screen, and people are watching you bigger than life, that the things that you do and the things that you say will have an impact upon their lives. And we saw during the Second World War, how film was used as a tool of propaganda,

from the Lenny Riffenstahl movies to the war bond movies to get people to purchase bonds, that the motion picture industry was involved to get people to go and go fight in the war and buy bonds and be heroic. It is a powerful tool of influence. Tell our listeners who may not know what SAG-AFTRA is. What is SAG-AFTRA and why is this election important? Well, first of all, I want to say that I think we were just sitting around one day and said, we want to be in charge. Absolutely not. Said no one ever. It started, we lived through this extraordinary time, all of us together, and we huddled together and we looked at each other across these screens. And I think that was, I started learning. I started learning about SAG-AFTRA more than I already did and how our

union represents actors, not just actors, but stunt performers, background performers, recording artists, broadcasters, dancers, puppeteers. I mean, the list goes on. We have a very wide range of people that we serve at the union or that the union serves us. Right. So the reason why I feel like I want to be in leadership is I feel like the studios and our employers participate and profit at such a huge, huge level. negotiate contracts on our behalf that have gotten lesser and lesser. They're showing us what we as actors and all the rest of that group that I told you about what we're worth by going into a negotiation and chipping away at Matthew and I were part of Legacy SAG, which was before we merged with AFTRA. And we used to be so proud of what our union meant to us and what it meant to have a SAG card. And it meant healthcare, which is the biggest debacle that happened in this past year, is our health plan imploded in a major way due to trustees that didn't tell us what was

happening to our healthcare plan. We're going through a lot of growing pains in the merge of these two unions, but we are a big family. And Matthew and I saw a place that was being neglected, you know, where our leadership is not protecting us and not going into these negotiations with us at the forefront. We hear these acronyms SAG-AFTRA. You mentioned the merger of two great unions. It's the merger of SAG, the Screen Actors Guild, and AFTRA, the American Federation

of Television and Radio Artists. And SAG-AFTRA represents 160,000 film, television, actors, journalists, radio personalities, you name it. Explain to me why SAG-AFTRA, just at its most basic level, is needed in the entertainment industry. You know, there's no way to talk about this in simple terms without applying some sense of philosophy to why do we have unions. If we go back in time to the founding of the Screen Actors Guild or any guild across the United States, whether it's the International Auto Workers or our sister unions, the Writers Guild of America, the Directors Guild of America. There was a time for us actors, performers, when the studios controlled everything and actors were hired on contracts. And we were essentially traded like

baseball cards amongst the studios. Mary Pickford and Douglas Fairbanks and Charlie Chaplin, they saw how powerful they were as artists and weren't being really financially rewarded for the work that they did. So they decided to create their own studio called United Artists. And from that firmament of creating and taking power into your own grasp, there was a group of people who decided to create a guild to bring artists together to be able to give protections and be able to create a health fund and a pension fund and be able to create safety on film sets so that we could look out for one another and empower us. And over time, we started to negotiate for participation in the films, you know, to receive residuals so that we would also be rewarded rather than just the employers

being the beneficiaries of the work that we do. Now, you mentioned there's 160,000 members in the Screen Actors Guild, which is extraordinary. It's one of the largest entertainment unions in the world. But we have a tremendous largest entertainment unions in the world, but we have a tremendous amount of unemployment and the average actor makes nothing. Those lucky few actors make enough money to be able to afford to go have another job so that they have two jobs to be able to pay the rent and buy groceries and maybe raise a family. So what is the purpose of a guild? It's to create a safe home for performers where they can, if they're lucky, be able to contribute to a health plan,

to contribute to a pension plan and have safe working environments for them to work at. That's the goal of the union. And just as it's the goal with other unions. I think from the outside looking in, like this is inside baseball a bit, right? So, but from the outside looking in, like this is inside baseball a bit, right? So, but from the outside looking in, what I would want people to know

is it's not like actors whining about not making enough money, but it's also that we should have protocols in place that are written into our contracts regarding nudity. I say, nobody wants to see me take my clothes off on screen anymore, but I want to protect young actresses and actors coming into the business where you're put on a set on a show like Westworld where they're like, OK, everybody stripped down. And it's like, whoa, oh, I didn't know. Do I get a robe? Do I you know, are you going to double my body? with sexual harassment and shenanigans going on on sets. And they failed to put protocols in place that were contractually obligated

for fear that maybe there's retaliation from producers or they'd be blacklisted in some way. And that really would have cost them nothing. And protection for stunt performers and dancers who are being corralled in parking lots and not being given water in some cases or being asked to rehearse something ahead of time on camera and then come in and perform it on the wrong kind of surface.

I mean, that's very dangerous. A stunt person's career is not as long as everybody else's. You know, there are dangers that we need contractual obligations that are written in. Streaming services have obviously revolutionized the landscape. You know, used to you had TV shows that have 10, 15 seasons if it's a huge hit with multiple episodes. And now you have limited series. How is your team, your electoral slate responding to streaming services and representing your union in these difficult and tough negotiations with streamers. And I should also mention with the agencies, you know, oftentimes that have these existing relationships with streamers while also representing writers at the same time. We're in this era where it's not new media, it's now media. It's not the future. It's happening

right now. Streaming is completely taking over. I mean, network television, they're not letting shows really run for a whole season by just grabbing them off. And everybody has a streaming platform. Their profits are skyrocketing because of this. It's extraordinary the amount of money that they're making. And they're saying, oh, well, we don't really know residuals are going away. Well, what do you mean by that? That's crazy. Yeah. My, my wife actually does participations. That's what she does. She audits participations on behalf of actors, on behalf of producers, on behalf of creators. And one of the things that she's noticed and that that industry is completely afraid of is the fact that with the move to

streaming participations in many ways are going away. And for those listening, participations are the residuals that Jolie's talking about. So it's, you know, people, the creatives in a project have a share in the project. So when something sold to syndication, or if there are DVD sales or video on demand sales, the creatives would normally get a percentage of that. But now that it's all going to the streaming platforms, that's kind of gone away now that everyone's just paying a simple flat fee for all the content that they get. So is there a way to solve this participations issue? Is that something that we're just going to have to get used to? That's a thing of the past? How do we deal with that? Having spent several years with this administration, with this leader, with this departing NED, they lead the union from a

position of fear. They have never gone into the negotiation with a strike authorization. Now, just for your listeners that don't know what a strike authorization is, it doesn't mean that you want to strike. It means that you are willing to strike if the people that you are negotiating with aren't going to negotiate in good faith. That's like going into a boxing ring with Mike Tyson with your hands tied behind your back. You're just not going to have a chance in hell of winning. And the president of the union has said to the members, stop fighting for residuals. They are going away.

For this administration in 2020 to be saying to the members, stop fighting for residuals, they're going away. For this administration in 2020 to be saying to the members, stop fighting for residuals, they're going away. The only way that they're going away is if we give them away. Sometimes an actor, that's all that they make in a year, is residuals from guest spots on TV shows that rerun and rerun and rerun. And we pray for some of those sometimes to get us through tough times. They used to count to qualify us for insurance. And if they go away, people don't survive. Moving on from the politics of the unions to the politics of America, what do you guys think the role is of actors to speak out about injustice and to be activists in the current time that we're in,

where in my opinion, democracy is currently hanging in the balance? Where do you see actors' role in this landscape? I think it's so interesting when people don't want to hear what we have to say. You know, I was very vocal in the past couple of years about where I stood. And if you check my Twitter, you can see that very plain and simple. I think it's the same thing as saying, well, oh, doctors, they don't know what they're talking about in politics, right? I think that we have a responsibility. We're part of humanity.

We're allowed to have an opinion about how we feel about things. Sometimes we have a platform on which to do it. And I think you can come and say, Oh, I saw that lady on TV. She made me laugh. What is she talking about? Oh, I agree. Or I don't agree with her. If you're talking about people that want to shut us up, I disagree. In Harper Lee's book, To Kill a Mockingbird, her protagonist Atticus Finch says that you never truly understand another person till you get inside their skin and move around in it. That's what we do as performers. We get inside the skin of different kinds of people. And in order to do that, you have to open up your mind and try to understand the person from their point

of view, from their perspective. And that's a unique profession. Performers like myself have had the opportunity to travel around the world and spend time in countries like India and Japan and Africa and Morocco and all over Europe. This gives you a unique perspective on the world. You know, if you imagine that you come into the world kind of like a horse with blinders on, that each time you play a different character, each time you get the opportunity, the privilege to travel to those other countries and hear different perspectives and see how different governments run and how different people live and how they think. That each of those trips open up your blinders and give you greater peripheral vision and greater understanding of the suffering that exists throughout the world. I'm very fortunate and

blessed to have been able to work with such incredible artists who've opened up my eyes and opened up my heart and my consciousness and the way that I think about the world. I'm now at an age where I see where I've come from and I know where I'm going. At the end is something that is inevitable. There's a book that I encourage everybody every chance I get to read by Marcus Aurelius called The Meditations. What he says in that book is that you should learn to die while you're living. That as soon as you accept the inevitability of death is when you become conscious of this moment of being present. And you can't help but become a better person,

a kinder person, a more forgiving person. We all face the same destiny. So why make your life miserable? Why make life miserable for other people? Why not try to help other people, give them a hand up and help us all get through this thing with some fun and some laughter? That's really beautiful. That's amazing. And I think that's what frames SAG-AFTRA. When you think about what SAG-AFTRA does and means though, you're right. I mean, in many ways, it's just so enlightening to talk about the entertainment industry really is its own kind of nuclear energy. It could be harnessed for happiness and joy, you know, or it can be harnessed for evil and bad and depravity. You think about Ronald Reagan's,

you think about Arnold Schwarzenegger's, you think about Donald Trump. We've had so many major leaders come from TV, television and movies. And it's not just unique to here. I mean, we think about the Ukrainian President Zelensky. He was a TV guy from Ukraine. That's how he came to power. And so when you think about the union and the protections, in many ways, the members you represent and the culture that you're trying to make better and improve truly has international ramifications and diplomatic ramifications more than you think. So I hate to put that pressure on you, but there you go. We need both of you to save the world. It is a microcosm. Our little democratic society that goes on within the union really feels at times a lot like what's happening in the country. There are factions there shouldn't be. We all

should be working together. But there's something that Matthew said about Jeff Bezos and buying the studio. And I just want to remind everybody that Jeff Bezos now owns the outtakes from The Apprentice. Just want to let everybody know that. Now he's got control of all those tapes. I hope that Jeff Bezos does the right thing, but we'll leave it at that. So please tell us when the election is for those members who are listening,

who are voting members, what do they do? There's 160,000 of them. You have to be paid up in your dues to vote. And the ballots go out the 1st of August. And I think they remain out for 30 days. We want everybody to get their votes in. That's another problem is that there is really low voter turnout. So we want to like Stacey Abrams the shit out of this

and have people actually exercise their right to vote and have their voice be heard. So they're going to have these ballots for a month. We have a marathon now for the next three months to keep the word out that we're running on this truth and transparency to know your union, know our plan and decide your future. And I like that Stacey Abrams the shit out of it is now is now a term. I like it. Hashtag. It's a hashtag. Stay free, Abrams the shit out of it, which means go and vote. I want to thank both of you, Matthew Modine, Jolie Fisher. Thank you for joining us on the Midas Touch podcast. We appreciate you both. Thank you, Ben. Thanks, guys. Legal AF podcast. I thought that was interesting to

share with you what Jolie and what Matthew had to say. I think it's definitely getting into the weeds a bit about how unions interact. But look, whether it's SAG-AFTRA, whether it's the longshore men and women unions out there, whether it is school teacher unions and steel worker unions, unions play a very important role in the law. And on future Midas Touch Legal AFs, we will also get into the grievance procedures around unions and discuss more about those processes and administrative processes. I want to thank everybody for listening to Midas Touch Legal AF. I want to remind you all that Michael and I are practicing attorneys. We're here and ready and willing, able to help you on your legal cases. If you or a friend or someone you know has been injured in an accident, whether it be a car accident,

a catastrophic injury, whether it involves sexual assault, whether it involves sexual harassment at the workplace or wherever, whether it involves a wrongful employment termination, a breach of agreements. If you have a case and you want to know what to do, please send me an email at ben at garrigos.com. That's B-E-N at G-E-R-A-G-O-S.com. Again, my email is ben at G-E-R-A-G-O-S.com. I am here to look at your case and let you know what I think the next steps are. And we've been doing that, gotten literally hundreds of inquiries, and I think we've responded to each and every one of them. Thank you again for listening to Midas Touch Legal AF. We will see you same time, same place next Sunday.