The MeidasTouch Podcast - Special Edition: MeidasTouch Presents 'Legal AF', Episode 13

Episode Date: June 20, 2021

On a “Baker’s Dozen” Episode 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, first explore the House Judiciary's decision to open an investigation into the Former’s misuse of subpoena power against the media, Apple, and Democratic leaders. Next up, the Legal AF analysts drill down on 3 new SCOTUS decisions: (1) 9-0, affecting LGBTQ+ foster parent rights, (2) 8-1, addressing child slavery lawsuits against Nestlé under the Alien Tort Statute of 1789 (ATS); and (3) a 7-2 decision crafted by Justice Breyer confirming the constitutionality of Obamacare once and for all. Speaking of Breyer, Ben and Michael give their views on the growing #RetireBreyer movement seeking to have him step down before the midterms to given Biden a guaranteed SCOTUS pick. Walrus-alert: Ben and Popok discuss the DOJ’s decision to end both the criminal and civil cases against former National Security Advisor John Bolton for publishing a memoir which the Former did not like. Easter egg alert: Popok slips in a Hamilton: The Musical reference. Rounding out the podcast, the Analysis Friends discuss Biden’s decision to protect transgender and gay students under Title IX from discrimination and retaliation in higher education in response to 20 states attempting to ban transgender students from competing in sport. And no #LAF pod would be complete without Ben and Popok discussing some gun-toting political candidate, in this case the white St. Louis Republican attorneys who brandished guns and AR-15s when peaceful #BLM protestors marched past their wealthy enclave, and the husband’s decision to now run for the US Senate. Finally, and for added fun, Ben, perhaps listening too intently to a “supersonic dog siren,” forgets momentarily just which legal podcast he is actually hosting, prompting Popok to ask if Ben’s law partner (and host of another legal podcast) is renting space in Ben’s head. --- 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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Visit BetMGM.com for terms and conditions. 19 plus to wager. Ontario only. Please gamble responsibly. If you have questions or concerns about your gambling or someone close to you, Welcome to the Midas Touch Podcast. Legal. A-F-B-A stands for analysis. M-B-F stands for friends. Ben Mycelis of Garagos and Garagos joined by Michael Popak of Zupano, Patricius and Popak. Michael, Popak, how are you doing this weekend? I am doing terrific. We're recording from a remote location again. Popak on the move.

We are coast to coast, cover to cover with all the legal info fit to podcast. I love it. And Popak, you know, there is a little bit of an internal feud brewing. You know, my law partner, Mark Arragos, who clearly listens to the Legal AF podcast. He threw in a little line the other day, which he said to me in connection with the very positive result he did on one of our cases. He made a comment. He goes, so next time, Ben, you say that Legal AF is the number one podcast. You may want to think again, because Mark is the host of the Reasonable Doubt legal podcast. And I think Mark was taking it a little to heart that we're saying we're the

number one legal podcast in the country. So I'm competitive. I'm going to have Brett when he does the edit. If Mark doesn't do a promo for Legal AF in his podcast, we're going to blur out what you just said about Reasonable Doubt. There's no doubt. You should listen to Reasonable Doubt podcast. My hope is that Mark's Reasonable Doubt podcast will tell listeners to come here as well. You know, it's an interesting dynamic over at Reasonable Doubt Podcast because you have Mark, who is a lifelong liberal, although his views don't always necessarily

align there. But he's been a big Democratic donor, big supporter, as far as I've always known, Mark. But he does it with Adam Carolla, who has different views and where they agree or disagree on certain issues is interesting. And it's always an interesting legal discussion. Yeah. But that's Reasonable Doubt podcast. We are Legal AF. We are unabashedly Democrats on this show.

Popak and me, we tend to agree on most issues. Sometimes we disagree on things, but ultimately our side's pro-democracy. So there's really not a lot to disagree with. And talking about pro-democracy, Popak, let's get right into it with an update from what we talked about on the last podcast as we now start to learn about more illegality and secret subpoenas being issued by the Trump DOJ. Of course, we told our listeners, you really shouldn't call the DOJ by the name of a president because it's supposed to be independent and pursue independent investigations. But when it comes to the Trump DOJ, the name is

apt because Trump used it to attack his political opponents. And of course, we learned that secret subpoenas were issued with respect to media targets and to congressional targets, political enemies. Let's just be clear what it is of Donald Trump. And now with the DOJ being independent, with Biden as president, there is an inspector general investigation going on, an internal investigation, in other words. There's also a House investigation going on now with the House Judiciary Committee. And then there's a question if the Senate will be doing an investigation. But the Senate is being blocked by Mitch McConnell. No surprise there. Popak, what's going on here? Yeah, I think you just laid out all of the

different places that this is going to end up in that we're going to be talking about. Jerry Nadler, who heads the committee that's important here, looking at the judiciary, has decided that he has the right as the chair of that committee, controlled by the Democrats, to open up an investigation as to the use by Trump of what we refer to as an enemy's list in a Nixonian fashion to go after Apple, New York Times, HuffPo, Washington Post, even his own lawyer. I mean, we've also seen Don McGahn has been, his records were secretly subpoenaed along with his family. And to find out if that was done in a way that only despots use that power, which is to try to attack enemies in the dark, in secret. Look, let me make it clear

for our listeners. Presidents have used the subpoena power in the past, even Democrat ones, to go after certain people. They have. It's just the way that Trump did it and has done it, and clearly only going against people that got under his skin or that he thought leaked information or that he thought were were anti America first or whatever his whatever his doctrine was fascism I think his doctrine ultimately was fascism and going after enemies. And the American first bullshit was all about how do we support white supremacy? That's what that was about. And he took the term America first from white supremacists in the 1920s and the 1930s that used it in marches and all sorts of really anti-American approaches. But the question has got to be,

if this president, ex-president, went against Eric Swalwell, who I know has been a guest on the Midas Touch Show, Adam Schiff, the House Intelligence Committee member, Barr and Sessions are going to be called before Nadler's committee, the Judiciary Committee, to testify, whether they do or they don't.

And I'm sure at the end of the day, they're going to give some sort of testimony, or they're going to be subpoenaed by that committee and compelled to give testimony about what really went down at the end of the day. And of course, that's in the House. As you alluded to in the Senate, Mitch McConnell, without hearing a bit of evidence, has already drawn a line in the House. As you alluded to in the Senate, Mitch McConnell, without hearing a bit of evidence, has already drawn a line in the sand and said, oh, I don't think we should have a House investigation. There's enough investigations going on. Let's let the DOJ do its thing with Inspector General. And Merrick Garland's already come out as the Attorney General and said he's going to get to the bottom of it. Why do we need the House doing it? It'll just be politicized.

Because that's why the House has a committee that's called the House Judiciary Committee. And this is part of their jurisdiction. And back to what you and I have talked about, really, now we're in episode 13. I think it's been a thread that's just been run through all the episodes. This democracy has to reestablish the guardrails

that the last president trampled over. Biden talks about build back better. We got to build back better constitutional guardrails and other protections so that this never happens again. Not that I'm worried about Trump getting reelected. I think the chance of that happening is about as high as you and I becoming the next Pope. But there'll be another egomaniac dictator, fascist, that says, well, look at the Trump playbook. Let's go even further. And we can't allow that to happen.

We've got to reclaim our democracy and all of the institutional guardrails, checks and balances that were once in place that got ignored by a feckless Congress and a president who was out of control. No doubt about that. And let's break down these three different places where these investigations are emanating from. And let's start with when we talk about an inspector general and people hear these words, office inspector general that's basically a generic term

that's used for the oversight division of different federal or state agencies in these case federal agencies that are supposed to be kind of independent but embedded in the agency to investigate wrongdoing within the entity itself and And so one of the things, though, that happened during the Trump administration was that there was a purge of inspector generals generally. And so it was incredibly dangerous. And one of the elements when we talk about Trump's fascist tendencies are really his full embrace of fascists and the types of things that he was doing to dismantle democratic institutions. Well, there is this historical precedent of having inspector generals call out internal wrongdoing. Look, these individuals, because they worked at executive branches, they still ultimately served at the request of the president who could fire them at the end of the day. But presidents wouldn't dare usually fire inspector generals unless they went totally rogue and engaged in misconduct.

Trump would fire all of these inspector generals or a ton of inspector generals simply for doing what they were supposed to do, which was investigating wrongdoing. So there's a litany of inspector generals from the secretary, from the state secretary, this department secretary of state secretary general being fired. And there's a whole long list of state department inspector generals, other inspector generals being fired by the Trump administration. Popak, I mean, that's not normal conduct, is it? No, no. Last time we saw something like that was, again, not to keep harping back on Nixon, but it was Nixon and all of his midnight firings and midnight raids when Justice Department and inspector generals wouldn't do his bidding. It is it is a scary moment. It was really the canary in the coal mine moment for me when Trump started to fire people in the office of the inspector general and at these various brass to start firing the very watchdogs who are installed to, you know, oversee and make sure corrupt and root out corruption. But but this again, he he know he knew new bound. He knew no boundaries.

And we now have to you and I, your audience, our audience, the Midas mighty and all people that love liberal democracy and want to see it resuscitated under this administration, have to reinstall and strengthen. One of the things Biden should be doing, if he hasn't done it already, is by executive order or otherwise, and the power of the budget is to make these inspector generals more robust, more muscular, give them more money in order to hold people in power accountable. And Biden doesn't appear to me to be somebody that's scared of doing that. He's willing to have his own feet held to the fire. But for me, when that first happened, Ben, I was like, uh-oh. That was like an uh-oh moment for me. You know, on the one hand, he's calling the press the enemy of the people. And on the one hand, he's calling the press the enemy of the people.

And on the other hand, he's firing all of the internal watchdog inspectors, internal investigators against his administration. And so that's the inspector generals. We then have in the House, the House Judiciary Committee, which is chaired by Chairman Gerald Nadler, Congressman Nadler. And because of the composition of the House, it's not like an evenly split situation that you have in the Senate. So Chairman Nadler, Congressman Nadler, you know, could start issuing subpoenas and could start probing and conducting this investigation. And that is what's beginning to take place there. And then in the Senate, though, where we have this split, you would need the support of at least based on the rules, one Republican that's part of this Judiciary Committee to start authorizing that there be subpoenas, that there start being this investigation.

And it shouldn't shock us knowing what we know. This was a group of Republicans that blocked an investigation into the insurrection against our democracy. So it shouldn't be shocking that the Senate Republicans are moving to block the inquiry into Trump's Department of Justice's data seizure. And yet again, it's just as a lawyer, as a student of the law, as a practitioner, it's just so disconcerting to see people who are so accomplished, you know, entitled, maybe not in actual practice, though, who are supposed to be moving the law forward with basic things such as potential illegal subpoenas. We're not even asking them to cast judgment. We're asking them, at the very least, utilize the powers that you have.

One of your mandates is one of your main mandates when you're in the Senate is to conduct investigations, to have oversight, to have hearings and to totally just discard that on issues like unlawful data searches, investigating the insurrection. It's just disturbing as a lawyer. Yeah. Yeah. Look, the days of senators taking their job as statesmen and not their politics and their party first are over. Whether we ever recover from that, I don't know. But if you go back in time in the 70s and 80s republicans and democrats often crossed the aisle um you had daniel patrick moynihan you had tip o'neill you had other statesmen that joined together in gangs of 10 or 15 or 20 or 30 and just passed policy that was appropriate for the good of the country it's over the senate in the hands of mcconnell is just the good of the country. It's over. The Senate in the hands of McConnell

is just an organ of the GOP. It's just an extension of the GOP. It's completely symmetrical. There's no gap. They will not allow their party to do any, the senators, to do anything that they think has a political consequence that's against their ability to, in this case, win the midterms in 2024. But for people that are new to politics and new to litigated politics, the way you and I talk about it, go back in history. There were times in recent history where people shed and put aside their partisan politics and ruled for the good of the country. We just have not seen that in the last 10 years. Now, moving to Article 3, to our judicial branch, I want to talk about some Supreme Court rulings, Popak. I want to begin by talking about this case involving a Philly foster care case.

The case, I believe, is called, was it, it's Fulton. Fulton versus Skulldell. Yeah. Fulton versus Skulldell. And it's a unanimous ruling that seemed to, that didn't seem it did support uh the right of a of an organization under the guise of its kind of religious mandates i mean frankly to discriminate um in the selection and foster care by excluding lgbtq parents from adopting children. And there was a unanimous decision that was reached by the Supreme Court. And we talked about in past episodes how rare it is for there to be

unanimous decisions. But ultimately, you know, siding with the First Amendment and the free exercise clause therein, which protects a person's right to freely exercise their religion. And the Supreme Court here saying that that free exercise clause here, I mean, truly trumps the claim by the city, in this case, Philadelphia, that this was discrimination against LGBTQ plus parents. So how does this happen, Popak? How is it unanimous? I mean, even though we've talked about the court being split six, you know, at this point, six, three, with six being Republican appointees, three being Democratic appointees or have become essentially Democratic appointees? How does this happen?

It happened because Chief Justice Roberts, who wrote the opinion, wanted to find a way to get a majority, in this case, a unanimous decision on the most narrow grounds he could think of without touching the third rail of the precedent from 1990 of Employment Division v. Smith. In that case, which is still the law and has not been overturned by this new case, if a law is found to be neutral and generally applicable on its face, there won't be religious exceptions. Roberts was worried about the court, frankly, the way you and I are worried about the court in the hands of Gorsuch, Coney Barrett, and Kavanaugh, and Alito and Thomas, that they would find a way, mischief would be made, and they'd find a way to use this case to attack Employment Division versus Smith. I think fearing that and not wanting to overturn that precedent, which would have dire consequences for the LGBTQ community and others, he found a narrow path.

And the narrow path is a little hyper-technical, but let me see if I can describe it. The city of Philadelphia has an anti-discrimination set of laws on its books. The question in the case was whether the anti-discrimination laws somehow would fit under the Employment Division versus Smith, but he didn't want to touch that. So he looked to an exception that was in the text of the Philadelphia local laws. It gave the city the right to grant exceptions to the anti-discrimination law on its books, the municipal law on its books. And what Roberts tried to do is say,

since you have this discretionary exception, we're going to find that since you reserve for yourself that power, that that violates the First Amendment and the free exercise provision. And he got all of the justices to join on that. I think the liberal justices were afraid that if they didn't join in on that, and you and I don't know what was going on behind the scenes in caucuses and conferences and other opinions that might have been circulated in draft. And I'm sure Alito was circulating something in draft that was much more dire to the to the gay community and the LGBTQ community. And so I think I'm guessing I think it scared the crap out of some of the liberal justices. And they said, all right, this is the way we're going to uphold or find that law

actually violates the First Amendment. Okay, I'll sign on to that, because they're afraid of what would have happened had it gone another way. So that's why on its face, all the headlines were like, blow to LGBTQ foster parent community, terrible case nine zero. But when you really look under the hood, I think it was a way for Roberts not to have this be as devastating as people have suggested that it is. Which is interesting because it still fairly is devastating. I mean, there are 440,000 children who are in foster care right now across the United States who are looking for a home. And basically what this religious institution was saying is that even though these children need and want to find a home where they could be loved,

that simply because someone is a member of the LGBTQ plus community, that they don't have the right because the religious expression gives the religious group the right to discriminate on religious grounds against the LGBTQ plus community. And I get that there was a nuanced analysis here that didn't attack the right to discriminate, but attack more surgically the underlying law and whether it was a neutral law or not a neutral law in terms of its effect. But at the end of the day, what it does, like when you really break it down, are kids who deserve to be in a loving family aren't going to get to be in a loving family. And what was saved here was, I guess, an overall view of allowing just straight up discrimination to take place at Run Rampant.

Well, I'll do it in two ways. One, I totally agree with you. It is no doubt that in the city of Philadelphia, the city of brotherly love, that Catholic members of the LGBTQ community are not going to be able to go to Catholic social services and foster care child. That is the impact of what just happened. However, I believe that there is a way for the city of Philadelphia. I don't know its current government. I don't know who's in control there. It's usually Democrat. I think they could probably fix their law. And their anti-discrimination, their local anti-discrimination law, now being given the guidance from the Supreme Court, and find a way to thread the needle. Remove the discretion from the anti-discrimination law. Don't allow any

exceptions. And they might be able to, we might be back up two years from now talking about Catholic services versus Philadelphia part two. And it's interesting as we talk about some of the nuance here, you know, sometimes the Supreme Court, well, it's important to know this about the Supreme Court. The Supreme Court doesn't hear cases and hear evidence for the first time. The only evidence that ever comes before them is evidence that is put before the trial court. In this case, it's a district court. In some cases, you could hear a case at a state court level that can find in a very surgical way, very narrow ways to dispose of a case or to address certain aspects of the case.

There are entire cases that could be based on some complex dispute that takes place, right? But all the Supreme Court really cares about is a very narrow, maybe jurisdictional issue. They don't care who's even necessarily right or wrong in the underlying dispute with two people who may be going at it or two groups or multiple groups suing each other. And the Supreme Court at a very scalpel level may say look the one issue we want to address here is the issue of standing and we're going to talk about that in a little bit too but i want to talk about just kind of one of those examples as well which was a jurisdictional issue that dealt with a topic that is incredibly distressing incredibly um you know you know you know just it it forces us to grapple with kind of just multinational corporations and what their responsibilities are especially

american multinational corporations and i remember when this case was filed popak it was this case against nestle um also against cargill but Nestle is what stood out because obviously we know all the Nestle candies and chocolate bars and all the things that that, you know, that's Nestle. But the accusation was these lawsuit against Nestle for supporting slavery, supporting slave labor in foreign countries by importing those products here and facilitating basically slave trade. I never thought we would say next on Legal AF, child slavery, pro or con? And, you know, right. And at the end of the day, you can all be that everybody should be against child slavery. But at the end of the day, the headline, though, reads Supreme Court throws out child slavery lawsuit against Nestle. a jurisdictional issue and could American companies be sued in America because of certain dealings that they have internationally? And this happens a lot. And there are times, of course, where American companies that interact internationally that are based in America can be sued here. You know, here, the plaintiffs,

though, were the victims, ultimately, of slave labor. They were the slaves and the family of the slaves who were abroad. And they were coming into American courts, not in their own jurisdiction, but suing the American corporations nestle and others here and it was interesting popat because you know i believe there before this reached the supreme court and correct me if i'm wrong i thought that the court of appeals was saying that there may be an angle based on the your ninth circuit you're right out here in California. Your Ninth Circuit allowed the case to continue and didn't have a problem with standing. But I don't want to interrupt your thought. Yeah, but then the Supreme Court ruled 8-1. where the court seemed to reach a significant supermajority or exceeding a supermajority consensus that this lawsuit should not proceed.

So, Popak, what happened in this case? Yeah, this this case has a lot of interesting optics going on. We'll talk about the eight one. We'll talk about who wrote the majority decision. And we're going to talk. We're going to give our get ready legal AF law students, we're going to be talking about the alien tort statute, the ATS from 1789, which is what was at issue here. So this was the plaintiffs were a group originally, they're adults now, but they originally were child slave labor in West Africa, in Mali, who were employed, no, that's the wrong word, enslaved by manufacturers and growers that traced their self back to Nestle. And the lawsuit argued that Nestle

and Cargill, which is another ag business, big ag business, had control over decision making and knew or should have known that child slave labor in West Africa was being used for their ultimate product and delivery of their product. And so that all sounds terrible. Like, why isn't that a lawsuit? And it probably is or is in West Africa. Question is, can that lawsuit, even though the U.S. companies, these multinational companies based in the U.S., like Nestle, whether that can be brought into a federal court here in the United States. And the hook, the jurisdictional hook that the plaintiffs tried to use was the alien

tort statute, which it has been used successfully for atrocities and violations of international law forever. There are many individuals and governments that are brought to task here in the United States, foreign governments, foreign agents, military officers, and the others, who committed torture, slavery, and other atrocities on the international level, offending international sensibility and various foreign treaties and international treaties who were then hailed into court in the United States and under what's called the ATS, that's okay. But the Supreme Court has in a number of decisions over the last 20 years put limits on which defendants can be brought into a tort statute or the ATS. Even if all those facts are true, you can't sue them here in the United States. They already ruled three years ago that you can't use the ATS to sue a foreign company in the United States under that. So what are you left with?

Well, you're left with military officers, people that tortured, individuals acting under color of law, rogue governments. They can still all be sued. So it has that sort of very narrow, but you're proceed, you know, all the way up. And the Supreme Court said, you know what, you shouldn't have done that. That case should have been ended at the trial level on a motion to dismiss. And the other optic that I referenced before is, and I'll just throw it out there, not only is it eight to one, but Thomas is writing the decision. So, I mean, I don't know why Thomas was picked, but it is strange. We have a West African set of plaintiffs and you have really the only black justice writing the decision. So many signals were being sent here. Many optics were being established for a decision that on its face, as you said, looks incredibly bad and almost pro-child slavery. Yeah. And to be fair and to be clear, you know, Nestle has denied the underlying allegations. But obviously, you know, from those who have studied the region

and are aware of the seriousness and severity of the problem, it is clearly something systemic that takes place. And whether there's that correlation with Nestle or not. Nestle did dispute it. But one of the things we see with these Supreme Court rulings also are conceptually recognizing that if you allow this lawsuit to proceed, then what would follow it? And if you play it to some of its logical conclusions, everything that's made, whether it's a car, whether it's a building, no matter what the type of product is, it comes from various elements across the globe in an increasingly flat world where all of our economies are interconnected. And so the question that could arise, though, is if a certain company in America for its tire, you know, has to get certain things from an area that may be engaged in this conduct, would Ford be sued? And would you have lawsuits that are rampant?

Now, there are ways to deal with this and there are common sense limitations that could be played. So one of the questions are, should our judiciary be drawing these bright lines? But I definitely think that these are considerations that are made when these rulings are made and they're not made in a vacuum. What's up, Midas Mighty? Have you been to store.midastouch.com yet? We got a great sale going on for you right now. And it's going through Sunday, June 20th, 2021 father's day weekend. We're offering 15% off select merch. Jordy, what's the code? Pineapple, pineapple, pineapple, pineapple, pineapple, pineapple, pineapple. Use the code pineapple and on select merch, and you get 15 off the merch we got some great stuff in there

really excited for you to check it out you can get your vax wristbands your pride wristbands your vax and relax masks and koozies and the be mighty button pack for 15 off just use code pineapple at checkout at store.midastouch.com and get your official Midas Touch gear today. Moving from that lawsuit and that Supreme Court decision to one that I was certainly incredibly happy with the result. And I have to admit, I had no clue what the Supreme Court was going to do here. And I tend to think the worst whenever there is an Obamacare challenge in front of this Supreme Court. But in a recent decision, Obamacare survived yet another challenge with the Supreme Court rejecting the latest GOP lawsuit. And this decision saves insurance for 31 million Americans. And look, when I say rejects the latest GOP lawsuit, I'm not injecting the partisanship in here just because I'm a Democrat. This was literally a lawsuit that was filed by Republicans and by

Republican leadership trying to utilize when Donald Trump removed penalties associated with the mandate in Obamacare, where these Republican state leaders basically wanted to say, well, now if there's no penalty, the entire Obamacare should go out the window. And Pope, I'll let you break it down with a little more legal nuance than that. But at the end of the day, though, what these Republican leaders were fighting for so hard. And what they didn't prevail on, though, is if the Supreme Court ruled the other way, effective immediately, 31 million Americans would have lost their health care. That's what that's I mean, the havoc that that would create, the chaos that that would create.

And it's like at the end of the day, come up with your own. If you have a better plan than Obamacare, which Americans overwhelmingly support, and even Republicans support it, they don't like calling it Obamacare, but overwhelmingly support the healthcare that they're getting and they're receiving. It's like they've never even come up with a plan. Remember Trump saying, I'm coming up with my health plan. Just like infrastructure, I'm coming up with my health plan i'm coming just like infrastructure i'm coming up with my plan never came up with it but they wanted to steal health care from 31 million americans yeah yeah but in fact before i launch into a little bit of analysis on it back to your point i i don't want to leave the impression that trump removed the tax mandate and

and by executive order reduce it to zero. And that led the Republican governors to jump up and down and say, aha, that was all done in coordination. They convinced Trump that if he, with his pen, if he reduced the mandate, because their interpretation of what Roberts had done to save Obamacare when he was first, when he first became the chief justice, when Obama was in office, that the foundation they believed for and for all the votes with a linchpin of the case in favor of Obamacare was that if there was a mandate that people either get insurance or have to pay a tax, that because the government has the power to tax and has the power through interstate commerce to regulate, therefore there could be a national health care plan like the Affordable Care Act, which is now known as Obamacare. And the Republicans became like myopically focused that if we ever were able to pull that linchpin and take away that mandate,

that tax, the whole thing would fall like a house of cards. They really believe this. This was, this was the, in the ether, this was in their echo chamber when they got together. And, you know, this is the fantasy world, the magical thinking that they thought about. So they got Trump because he's a stooge for this kind of thing to with his pen, eliminate or lower. He couldn't eliminate it completely because that he'd have to do by legislation. So he lowered it to zero. So if you didn't get Obamacare or you'd be penalized with a zero tax. And that's where the Republicans said, aha, zero tax is no tax at all. And we have standing, back to standing,

we have standing our 20 states to say that Obamacare is constitutionally infirmed and should be eliminated. And the greatest thing that happened because people have listened to you and I and they know our politics are meshed with our constitutional analysis, is that not only did Obamacare survive, but every time it gets

challenged, the vote count in its favor goes up. We're now up to seven to two. Before it was like holding on five to four when Roberts came up with it, you know, back in 08, 09, 10. Now we're up to seven to two. And Coney Barrett, which is the one that you and I were most worried about, she was as skeptical as the rest of them. Basically, back to this narrow grounds that Supreme Court sometimes like to use to exercise their power. They said, you know what, you 20 states, if you're being taxed zero, you have no injury. And if you have no injury, you've come here for at best an advisory opinion and we don't give out advisory opinions. Sorry, there's the door. That was the ruling. And it all turns on zero, even though zero means no injury. No injury means no lawsuit, means no standing and you're out. So I thought it was a very creative way for for the justices to. And Breyer wrote this. We're going to talk about Breyer in a minute.

Eighty two year old Justice Breyer wrote the decision, but he got look, he got seven to two. I thought Alito's comment was the most telling because there's no more conservative on that, or I know you hate that term, there's no more right-wing Republican on that bench than Sam Alito. And Sam Alito actually framed it this way. He said, this was part three of the Obamacare trilogy. Well, a trilogy suggests that there's only three and that we're done with them. So I think even he has put the nail in the coffin signaling to the rest of the kind of right wing nut jobs, don't come back here attacking Obamacare. It is firmly enmeshed into our society, the way Social Security is, the way Medicare is, the way the student loan program is. People depend on it. 10% of America

relies on it for their health care coverage. Goodbye. I don't think we're going to nobody prevented Trump from coming up with the plan that he claimed was better other than himself because he's an idiot. And he's waiting. And a year after his administration ended, we're still waiting for his plan. Yeah. And there's one thing you mentioned there, though, I want to talk about. I want to talk about Justice Stephen Breyer, though, who wrote that 7-2 opinion, you mentioned that he is 82 years old. He was appointed by Bill Clinton. In this past week, legal scholars published a letter calling for him Supreme Court justice that's nominated by President Biden, which I believe him, you know, at the same time, Democrats want to play all nice and vestiges like filibusters to prevent the will of overwhelming majority of people on all of these issues that we've discussed

from getting passed. But you have Mitch McConnell saying, look, I will never allow you to nominate a Supreme Court judge president, even though that's your role. And even though I sent it, we have an obligation to confirm your nominations. I'm not going to do that the same way we did it with Obama. And so because of Breyer's age and because the current composition right now are six Republican appointees to three Democratic appointees, the question becomes, God forbid, something happens in there and there's not a Democratic president in the future, we can't lose another Democratic appointee. It's so crucial. And because Breyer is now 82, let's appoint someone who's young. Late 40s, early 50s is usually the age where someone can sit for many, many, many years. And so, Popak, do you think Stephen Breyer should retire from the Supreme Court? Yeah, let me see how I come out on this. I'm going to hear it as I say it, because I'm a little bit of two minds.

I think at the end, I think I am in favor of him retiring, not because he doesn't do good work. He does. He just wrote a tremendous opinion, which means that he didn't just get picked to write the opinion to save Obamacare again, but his force of intellect and his persuasiveness in the chamber was so effective that he got the votes and wrote the opinion. And so that can't be understated. However, we just went through in our recent lifetime, Justice Kennedy, Anthony Kennedy, who was Republican or Republican appointed, but over time became the leading centrist on the Supreme Court. It was known not as the Roberts Court. It was known as the Kennedy Court because even though he was an associate justice and not the chief justice, he, in all pivotal

decisions over a 20-year period, was in the majority. So the New York Times often does and other online news agencies often do a review at the end of the year of all the votes that were taken and how the votes were cast and who cast them. And year after year after year, Kennedy, and he reveled in being the centrist and being the last vote in the important five to four decisions of our lifetime. And so when he decided to resign, at the end of the day, even though he's a centrist, he's a Republican. And so he decided in his 80s or late 70s,, to retire, if he was going to retire, while his party that nominated him was in power, gave Trump a pick. That pick became Brett Kavanaugh.

So we went from centrist Kennedy, who I could live with and you could live with, because on major issues, he did what was right for the country. And he's been replaced by Brett Kavanaugh. Okay, say no more. Now we've swung hard right. My fear, your fear, which is well established. And McConnell's, like you said, has said, if in 2024, which is only the midterms, it's not even like the last six months or a year, he keeps shifting on his doctrine. His doctrine used to be, I'm not going to allow Merrick Garland to become a Supreme Court justice because we're in the last year going into an

election of an outgoing president, which is written nowhere. Okay, we're like, well, that's effed up, but we'll deal with it. Then Coney Barrett came up and Coney Barrett became, oh no, somebody dies six weeks to go before an election and we're in control of the Senate. No, no. We're going to shove that that justice through. So, OK, now he said, because, you know, he's been anything that he's done has met with no resistance, which is which is a Democratic problem, by the way. He said, okay, now I'm just announcing right now, if we take back the Senate in 2024 with two years left on the clock for Biden and anybody dies or retires in that period

while we're in control, Biden is not getting a pick, which is unprecedented and unheard of. So look, he's already drawn that line in the sand. I think as a patriot, I think Breyer should retire soon before the midterms and allow Biden to have a pick to replace him. That's going to be a left of center justice, because if he doesn't and and Biden doesn't get reelected and the Senate is not in control, we're going to have a 7-2 right-wing panel. And right now, I mean, the 6-3 is fairly entrenched where, you know,

for every ruling, though, that saves Obamacare, you're going to see and we've talked about, you know, in the past, you know, some really, really, really difficult, bad rulings to stomach. And we've talked about what's coming on the horizon. We talked about the challenges to Roe v. Wade. We've talked about gun legislation. We've talked about a number of issues which the Supreme Court's not following their past precedent. And so we're going to obviously keep you updated on what's going on there. But I mean, at some point, it's going to become almost impossible to turn back the time here. Now, I want to talk about switching gears back from Article 3. Now, let's go back to the executive branch. Let's talk about the DOJ, which was the subject of last weekend's legal AF.

The DOJ now has dropped its criminal probe and its civil lawsuit against John Bolton over Bolton's book about Donald Trump. It was interesting when Bolton was appointed. Bolton was critical of Trump, but then he seemed to kowtow to Trump. He was appointed national security advisor. I mean, Bolton was really a, when I started agreeing with Bolton also on issues, that was kind of one of those moments too, where you were like, wow, I never thought in a million years there could be such a president that's so fucked up that I'm agreeing with a walrus. I'm agreeing with John Bolton about, you know, his about, you know, on certain political issues. And Bolton released a book where Bolton was basically saying and confirming everything that, you know, that we that we knew that Trump was doing. But to hear someone so inside, someone so high up saying it, that basically Trump was engaged in quid pro quo, whether it came to

Ukraine. Basically, everything Trump did was a quid pro quo with foreign governments to try to keep himself in power, breaking virtually every law. And Trump turned, as we've talked about in the past, the DOJ into his own law firm, both criminally trying to have Bolton investigated for leaking on Trump's mind, talking about state secrets that shouldn't have been in a book. Although in my own view, even though the criminal probe piece of it has come under more scrutiny, whether Bolton should or shouldn't have released the information, Bolton was talking about illegal conduct that the Trump administration was getting into.

To me, there's no state secrets over the president engaged in illegal quid pro quos with foreign governments. And then Trump also had his DOJ sue Bolton civilly as like a violation of confidentiality. Well, the new DOJs ended the criminal investigation, ended the civil lawsuit. What this basically means is that, one, Bolton is not going to be criminally charged with anything. Bolton can keep the proceeds as well from the advance and the money he's made from the book.

But, Pope, what's going on? No, I think you just hit the nail on the head. I found the most fascinating thing about Bolton's memoir is he named it after the song in Hamilton that Aaron Burr sings, which is the room where it happens. Aaron Burr famously having shot and killed a president in an assassination over in New Jersey. So, you know, that title alone should have sent shivers down the spine of Trump that that was going to be the title of the memoir. But, you know, this is more of the cleanup that you and I have talked about that the Biden presidency and the Department of Justice is doing. Sometimes they're siding with things that they think they have to about presidential power, particularly that Trump, the Trump DOJ, as you referred to it, was prosecuting those cases. But I think, you know, look, Merrick Garland has a long list of cases that are still in progress that the Trump DOJ

commenced. And he's got to make a decision, yay or nay, whether the Department of Justice is going to continue it or drop it. And this is one of those cases that they were like, we're dropping these cases. We are not, you know, last week we talked about the Carol defamation case about a woman who claims that she was sexually assaulted and raped by Trump. And, you know, I know a lot of our followers and listeners were sort of troubled by the fact the Department of Justice is going to maintain that case and argue that it should be dismissed under eventually under absolute immunity for the president or a president. But here they said, you know what, we're not going after John Bolton and his memoir payout from his publisher. We've got bigger priorities here.

And the judge had already let the book go forward. You know, there's a concept, which we'll talk about when we have more time in First Amendment law about prior restraint. The judge had already allowed the book had been published and distributed. The judge was not going to stop it or called a prior restraint order, which they almost never do in a media case or First Amendment case. So having said that, you know, really, you're going to make John Bolton a criminal because he published truth in his memoir. It's a terrible place to be. But you're right. I never thought that I would side with, I always thought he looked like Captain Kangaroo because I grew up in that era. But I never thought I'd side with Bolton. But he was totally a patriot when it came to Trump. He got the hell out of Dodge when the wheels came off. He wrote the memoir. He's along with the guy that was the general, the general, the colonel who was the chief of staff. I mean, all those people

that thought, there are going to be books written about a group of people in the cabinet who who thought about exercising the 25th Amendment to remove an incompetent President Trump. Those books are going to start coming off the shelves over the next couple of years because there was enough scuttlebutt that there were they needed a majority of the cabinet to do that. They probably didn't have the majority of the cabinet, especially a cabinet packed with all of Trump's buddies and McConnell's wife. But, you know, I think there's going to be memoirs that they had at least four or five people that were on board to try to remove Trump before his first term even got started. And when I talked about calling him a walrus, that actually was an excerpt from the book, The Room Where It Happened. When questioned about his approach on mitigating climate change on ecosystems, while Bolton was in the room,

Trump remarked, look at Bolton's mustache. Every walrus is jealous of that thing. It looks like a polar bear died on his face. That was actually printed in the book. That was the president of the United States right there. Switching gears, though, from this Bolton walrus gate over to Biden administration extending Title IX protections to transgender students. Popak, one of the things that you and I have done together and separately is we litigate Title IX cases. If you can briefly maybe explain to our listeners what Title IX is, and with this news that Biden has extended Title IX protections to transgender students, what are the implications of that? Thanks, Ben. Yeah, we have a Title IX case going on right now together.

So Title IX was passed in the 70s and protects athletes, students, anyone that has a connection to a university from discrimination and retaliation. A lot of times people refer to it because they're talking about what used to be women's sports being improperly maligned, not given enough budget, not given equal time with the men's sports. That's some of that, but it goes further and it really protects against all discrimination and retaliation in higher education through the statute that we refer to colloquially as as Title IX. And Trump, as part of his, you know, terrible nefarious plan to undermine transgender and gay rights in America, with the stroke of his pen, did a number of things against transgender rights. One of it was to have Betsy DeVos, who was then the Secretary of Education, go through and find ways to effectively not protect transgender individuals from discrimination, retaliation. A population that cries out for and calls for what I would think would be the most robust

protection has now been left without a net, without a safety net, without a government standing by it under the Trump administration. So now the Biden administration has come out and its secretary of education, basically being ordered by Biden, has reestablished that transgender athletes will be protected under Title IX from discrimination and retaliation. And it's not in a vacuum or just an esoteric theory. There are, I think, 20 states that are currently considering banning primarily transgender girls from competing as females with other people that were born genetically female in sport. And so with those on the books, federal government had to do something. What they've done is step in

and said, no, you can't do that. If someone's gone through gender assignment operations and is transgender, you're going to have to let that person compete, that girl compete in lacrosse or in track and field or in gymnastics or whatever, or whatever the sport is, at least in America, they're going to have to do that. And so that is an amazing accomplishment and one that, you know, Republicans like to rub our noses in it when they say elections have consequences. But when we win, they should also. And we should go back to the liberal democratic society that we had before Trump got in office. And you and I have a case that we're doing related to Title IX that's very important as well. No, absolutely. And I'm glad that Biden is enacting common sense legislation to protect the transgender community and education consistent with the protections afforded in the workplace.

And the fact that a major piece of the Trump agenda was to remove that right. One of the kind of ongoing dog whistles or supersonic dog horns, if you will, that the Republican Party feeds in terms of red meat to its base is to use the transgender community and discriminating against the transgender community as a major focal point of its policies and as a major thing that it stands against. The Republicans, as we talked about, they stand for taking away your health care. They stand for taking away rights. And we talked about it before when it comes to in the foster care case i mean imagine depriving the the fight is how do we deprive a community of children who could be

aligned with a community of loving and caring parents from the lgbtq plus community how do we separate them similarly how do we separate families at the border? It's all about separation. And that's why I like, you know, that's why I'm a Democrat at the end of the day. You know, and I hate when Democrats try to tear each other down. We're the party in our policies of uniting and bringing people together. And that needs to be ingrained in our policies of uniting and bringing people together and that needs to be ingrained in our dna also kind of sticking together and bringing people together and fighting for people as as a political party and not fracturing because ultimately what we stand for is how do we give people human rights how do we treat people with dignity how do we make the law work for everybody um and

this is just one example of that yeah the republicans have for national office have always been a wedge politics party they have to win on wedge issues whether it was gay marriage gays in the military um or or something. It was always wedge. And now they've converted wedge, just to prove your point, because I've been doing a lot of reading about how the Republicans are trying to reclaim the House and the Senate in the midterms, which seem like they're a long time away, but they're not. People, as you can see, are already making policy decisions based on the midterms. And what the Republicans have latched on to, at least at present, is that this is going to be a campaign,

a midterm election campaign about crisis. Democrats wouldn't run on that. So it's crisis at the border, crisis in foreign policy, crisis in supply chain, crisis in COVID. Everything is a crisis. And then they come in. This is like the old, you and I talk about it in the past. It's like the old fireman who's also an arsonist. He starts the fire and then he comes in and claims, hey, I just saved the family from the burning building. And the Republicans are doing that now. By the way, to our Republican friends, everything is not a crisis. Well, and at the end of the day, they they they it's like the old expression about throwing mud against the wall and seeing where it sticks. Every day they come up with something new, whether it goes from, you know, Dr. Seuss, whether it comes from, I mean, it's, it is, it's always a contrived,

you know, problems that, you know, that, that they, that they create, but where Democrats have to be is we have to uplift other Democrats. We have to, we have to make the law work for everybody and where they take advantage, where the GQP Republicans take advantage, is that Democrats are very unforgiving of other Democrats and very not about building coalitions. And so the Republicans can seize on that, take advantage of that fracture as they stay together, whereas Democrats need to look at the end of the day. I think that we we have to be able to speak to people who may disagree with us. I think at its core, people are in want to embrace other people when you get out of one on one level and you start to know people, but we can't always just condemn individuals who may at first not fully embrace our ideology. Anyway, I can go on that rant forever. I'll save that for the Midas Touch podcast. But talking about the type of people who are running for office,

the type of people who are going to be representative of who the GQP, why Democrats need to stand together. I'll use the legal side to make my political point here, though, which is that St. Louis couple, Mark and Patricia McCloskey, who had the, she had a handgun. He had what looked like an AR-15 style assault weapon in front of their home as peaceful protesters. And that's what it was. It was peaceful protesters who were walking past their house on a peaceful march. These nutjobs took their guns and pointed it at the peaceful protesters. Lawyer nutjobs. protesters lawyer nudge ups these are educated lawyers brandishing these assault weapons and pointing it at peaceful protesters who were passing their residence simply because they

thought that these people shouldn't even be in their neighborhoods there was no video of them encroaching on the stairs or doing anything that we saw on January 6th with the insurrection. These are people walking on the streets, as was their constitutional right, protesting the systemic oppression in the wake of the George Floyd murder, who, by the way, it was a murder. The police officers were convicted of murder, and we had every right to be mad as hell at the systemic injustices which led to that murder of George Floyd. And these individuals, these nutjobs had AR-15s pointed at primarily black protesters. I looked at these images again in these stories, Popak. I mean, these were crazy images of what these

McCloskeys were doing, pointing these guns. But at the end of the day, they pled to kind of a nothing misdemeanor. They had a fine. They had to turn in their $750 fine or something. They had to turn in their weapons and their weapons got destroyed. The McCloskeys, they wanted to donate their 15s to charity, they said. The judge wouldn't allow them to donate that to charity in order that those weapons be destroyed. But the McCloskeys, after getting the misdemeanor, basically go to the courthouse steps. They state, I'd do it again. And they try to make a political statement that they had every right to do that. And by the way, the McCloskeys are people now who are held by the Republican Party as conquering heroes.

These are the representatives of these are the face of the GQP 2022 campaign. The husband filed to run for the U.S. Senate from Missouri. And he's the leading candidate. He's the leading candidate. These are people who are asked to speak at the Republican convention. These are people who go around the country who speak as leaders of the Republican Party. And it's because the image of them pointing guns at black and brown people. That's what it comes down to. And that's the imagery of what Republicans want their base to see. These are the types of people who we support. You can line up and I know Midas Touch has or will. You can line up in any given election season. How many candidates brandish weapons in their ads, the ads that they

at the end, they say, I approve of this ad lineup. And it's more than I care to talk about. But there are dozens and dozens of campaign ads at any given election season, where one of the candidates is brandishing a weapon, he's firing or she's firing a gun, a handgun. They're at a gun range. They're firing an AK-47 with a long rifle, whatever. 99.9% of those candidates are Republican. They think that's their image. They think that's their brand. It's some sort of cowboy party. And, you know, they try to grab away from me and my patriotic and democratic ideals, my American flag. And Democrats have to reclaim that. We have to reclaim the flag. And we have to we have to call them out. Places like Midas Touch has to call out and just show all these crazy ads where people try to act like they're cowboys and sharpshooters.

And at a time when we have 250 mass shootings since the beginning of the year, it is, for me, it is morally bankrupt for a party such as the Republican Party. And I have my own views of the Second Amendment, which we won't talk about here overall. However, we have a party that's morally bankrupt and has decided that in the face of children being shot, serial killings, mass shootings, and the like, that they think it's appropriate to gin up their base by firing weapons in ads. I mean, it's really disgusting. We just had a shooting yesterday in New York where gangland style, a guy jumped off a scooter, jumped over to two children on the sidewalk, two children, to get to the victim and shoot the victim while he was straddling the two children with his legs. Now, fortunately, the children are now psychologically traumatized because there was a gunman standing over them firing at another human being.

But this just happened on the streets of New York. And at the same time, some idiot in Alaska or Alabama or Georgia or Texas is going to fire a weapon in their political ad. You know, and because this is this happened in St. Louis, Missouri, it reminds me, you know, we had a guest on the Midas Touch podcast, Jason Kander, who was a Democratic secretary of state, someone whose name has been talked about as potential future presidential candidate. He's an incredible speaker.

He was an incredible guest, but he talked about how the Republican Party thinks it's patriotic to wrap themselves in the American flag outfits and then go in with those outfits and commit an insurrection against our government and claim they're patriotic because they use the flag to destroy our government and claim they're patriotic because they use the flag to destroy our government and destroy our institutions but at the end of the day it makes a great point there um that the law is incredibly important um because if we lose the sensibilities and the protections of our democratic institutions um what our checks and balances and our system was built on and what our system sought to protect are the challenges that we're confronting. I was buoyed. I was

excited. I was nervous. A whole host of emotions, but I'm proud that our institutions just barely, just barely held up in the face of total annihilations. But at the end of the day, our institutions like the boxer who managed to survive the ninth round, but they're going in to the 10th round and they see a bruised and battered democracy is what the Republicans see. And the Republicans see that democracy that's ready to be taken down. The same way Hitler saw institutions being ready to take down after failed coup attempts in Germany. I say this in stark and scary terms, but that's how the Republicans are viewing our democratic institutions because they see that if democratic institutions prevail, their party, this imagery of white people pulling guns out at black and brown people, that's not okay. That's not acceptable. They want to preserve a world where that is acceptable.

They want to preserve a world where the McCloskeys don't get a misdemeanor, where the McCloskeys are held as heroes. That's what they're fighting for as a Republican party. And that's why we fight every week here on reasonable here on legal AF. I was about to say reasonable. That is not what they fight for. See marks in my head. That's what we fight for here every day on legal. Yeah. That's what we fight here every day on, you know, every week on Legal AF. And I'll make this as my way to deal with that. Past one. I want to leave no reasonable doubt that our democracy will be safe and secure. I want to make sure that that is ultimately protected, Popak. And so I thank you again for joining us here. What were you going to say, Popak?

I was going to say, Ben, blink if Mark has made you mention his show so many times on our show. Well, you know, I wanted to get the reference of Jason Kander. And as we were talking, I wanted to see who went after Jason Kander as the Secretary of State. And so I have this image on my computer pulled up right now of Jay Ashcroft's face just staring me on his Wikipedia profile, and it's haunting. And so that will be my excuse of forgetting where I was at this exact moment. But let me tell this to our listeners out there as well. I hope you enjoyed this episode of Legal AF. And look, there's been a lot of people who have called Popak and I, who we've helped out. I mean, I have a number of clients that have come from Legal AF who have legal issues and people who say whether it was a personal injury, accident, a catastrophic injury, a wrongful death, a sexual harassment style case.

We've gotten a ton of calls, breach of contract, founder cases where founders of corporations who have been deprived of millions of dollars have called us. But high level, multimillion dollar, big ticket cases. We've gotten calls from and Popak and I are representing people as a result of Legal AF and for you calling. So you can reach out, you can email Popak and I. We'll get back to you. We always get back to you. We can't always say we're going to handle your case. That may not be a case that we can handle, but we'll do our best to look into the issues if there is indeed a case and whether it's us or somebody at our firm. So feel free to reach out to me at ben at garagos.com, ben at garagos.com, ben at garagos.com. And Popak, what's your email address for those listening out there? Mine's easy. It's mpopak, P-O-P-O-K, Z-P, that's ZzebraPPeterLaw.com.

Thank you for listening to this week's Legal AF. We'll see you same time, same place next week. If it's Sunday, it's Legal AF. Shout out to the Midas Mike.