The MeidasTouch Podcast - Special Edition: MeidasTouch Presents 'Legal AF', Episode 5 with Guest Alexandra Kazarian

Episode Date: April 21, 2021

On Episode 5 of Legal AF, MeidasTouch’s weekly law and politics podcast, Legal AF, hosts MT founder and civil rights lawyer Ben Meiselas and national trial lawyer and strategist, Michael Popok, analyze the jury’s verdict to convict Chauvin on all 3 counts for the murder of George Floyd, and with special guest criminal defense lawyer Alexandra Kazarian, discuss Minnesota’s sentencing guidelines and predict the length of Chauvin’s sentence. Next up, the “Analysis Friends” take a deep dive into Liberty University’s suit against Jerry Falwell, Jr. to claw back the $10 million it paid him because he failed to disclose that he, his wife, and a Miami Beach pool attendant (you can’t make this stuff up), were having a threesome.  Returning to the world of criminals, the Legal AF dynamic duo (and with apologies to the Sopranos) tackle the recent inadvertent disclosure by the Justice Department that it had reached its first plea deal with an “Oathkeeper” who attacked the Capitol on January 6th, who in return for turning in his friends and cohorts, won an all-expense paid trip to 3 years in jail and the witness protection program. To round out the episode, Ben and Michael learn to “count to 5” and take a hard look at SCOTUS’s 2010 Citizens United decision allowing for unlimited corporate and PAC money to flood our election system under the First Amendment, and whether there are 5 votes on the current Court willing to allow donations to be made in secret in the new Koch Brothers-backed suit, Americans for Prosperity Foundation v. Rodriguez. Special “easter egg” alert: Ben uses the word “sperm” in the context of our high-brow Supreme Court analysis and Michael takes the bait! --- 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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That is legal analysis. Friends with Ben Mycelis from Giragos and Giragos and Michael Popak from Zupano, Patricius and Popak. Michael Popak, how are you doing this afternoon? I'm doing great, Ben. We better get right into it. We got a lot to talk about. A lot to talk about today. So the

breaking news, of course, was the Derek Chauvin trial who murdered George Floyd. He was now convicted of murder today. Any surprises there, Popak? No, not really. I think as people that follow and listen to us know, I was predicting a second degree murder conviction based on the weight of the evidence that was presented. I thought it was devastating in favor of the prosecution and against the defense, especially the medical examiner walking through the timeline of how effectively Chauvin crushed Floyd to death under the weight of his body for nine solid minutes. And I don't think there was a dry eye in the House when that was being described, and I'm sure it affected this jury of 12 individuals, six of which were people of color and six of which were white. And they returned the verdict in a just for our listeners in rapid And we heard, oh, the verdict's back. I mean, you and I both looked at each other like that. That's got to be pro-prosecution, and the defendant is going down. We should talk through that for a second. So for people out

there, they hear, you know, the jury reached a swift verdict. Michael, why would a swift verdict, a quick verdict in this case after really less than a day of deliberations? There were some deliberations on day one, a total cumulative deliberations of 10 hours. Why would that short deliberation period signify to a legal observer with a keen eye for how these things play out? Why would that demonstrate that it was likely the jury was going to find guilt? Sure, sure. And I've done about 30 jury trials, so I've good experience. Jury science teaches us that juries make up their mind in the opening statements. In the opening statements weeks ago, they start forming their decision and they're sort of just waiting for the evidence to

come in and waiting for the lawyers to stop talking so they can render their decision. Now, the judge tells a jury, especially a criminal jury, they're to keep an open mind and listen to all of the evidence that's presented and don't start forming opinions. But these are human beings. And these human beings, although they can't talk to each other during the process, I mean, they have chit chat over lunch, but they are not allowed to deliberate or discuss quickly in a complicated case like this, where evidence, forensic evidence is presented, witness testimony, police experts, for them to come back so quickly means that they quickly in their own minds had formed a decision early on in this case that Chauvin was guilty of murder. And then it was just a matter of sitting in a room for the first time, really, and talking among the 12 of them, right? It's 12 people. And they do sort of an initial poll

in the beginning. Let's find out how much deliberating we have to do. Who here right now thinks would vote for guilty of one of the three charges? And so right after they pick the jury for person, which happens right away, they go right into this process. The fact that they came back so quickly just demonstrates to me that the jury very early on had made a decision in their own mind. And then as soon as they got together with their peers said, let's move to the charges and look at the actual instructions by the judge as to what these counts for murder and for manslaughter, what are the elements of these counts, and does the facts and the evidence that we heard fit those elements? They concluded quickly that it did, and they voted to convict on all three counts.

Correct. And so the counts were charges of second degree unintentional murder, third degree murder, and second degree manslaughter. Had the jury deliberated longer, that may have told us that there was somebody holding out. In order to convict, you have to have a unanimous jury. All 12 have to find for each of the counts that they're guilty on, that there was indeed guilt. And so observers would start looking if it starts lasting multiple days, that even one single juror that holds out can actually create a hung jury and cause an entire new trial to have to take place if there is a hung jury. And it depends on the context. This would be the type of case, if there was a hung jury, that the prosecution would retry. But sometimes in other cases that are less high profile, where there is a hung jury, that often leads to deals between the prosecutor and the defense,

or sometimes even depending on how close it is hung, how close it is if it's 12 to a 6-6 split. That often determines sometimes whether a prosecutor will drop the charges. But of course, it was not hung in this case. It was a unanimous verdict on those counts. And there was just this line, Michael, I'm sure you remember, it's a line that's going to go down as just being this legendary line in legal history where the prosecution stated, you were told, for example, that Mr. Floyd died, that he died because his heart was too big. You heard testimony on that, the prosecutor said. And now having seen all the evidence and having heard all of the evidence, you know the truth. And the truth of the matter is that the reason George Floyd is dead is because the defendant, Mr. Chauvin's heart, was too small. And I just think that line will encapsulate this trial. Great, great, great line from just trial geeks like you and I. It was a perfect,

it was the perfect phrase to drive home for a jury. I'm sure the prosecution felt very good about their case as each day progressed. When you're in the courtroom like you and I, you spend a lot of time observing the jury. And I'm sure they felt from body language and from facial expressions that their case was resonating with that jury. And they drove it home like a dagger into this case with that immortal line. And in contrast, you've got the defense. Look, the best they're trying for is a hung jury, as you described.

They knew they were never, in their wildest imagination, going to get an acquittal. But they looked at that jury and said, in effect, this was the paraphrase, forget about the video showing nine minutes of my client sitting and strangulating and crushing the life out of Mr. Floyd. Forget that nine minutes.

But look at the other 16 minutes that happened before that. And that just went over like a lead balloon. That is not, remember, this jury, we talk about the nine minutes, you and I, and our listeners think about nine minutes. But I want our listeners to go after this broadcast, this podcast, look at their watch and sit and stare at it for nine minutes. Because that's how long this jury watched a video with the officer crushing the life out of Mr. Floyd for nine minutes. It's almost unbearable to watch. And that jury did it. And for the defense to come up at the end and say, forget the nine minutes, let's look at the 16 minutes before that, that went over like a dead cat bounce.

So after the guilty verdict, bail was revoked for Derek Chauvin, who's now 45 years old. He was placed in handcuffs and remanded into custody, meaning he was sent to jail. Now we go into the sentencing phase. And I understand for the sentencing phase, Derek Chauvin waived jury trial or waived a jury over sentencing. So that means the judge is going to be the person who interprets the sentencing guidelines. Now, Chauvin could face up to 40 years in prison for second degree murder, up to 25 years for third degree murder, and up to 10 years for manslaughter. But Minnesota has what's called sentencing guidelines that recommend about 12 and a half years in prison for each of the murder charges and about four years for the manslaughter charge. In this case, the state has asked for a tougher sentence than the guidelines, but that

will ultimately be up to the judge. The sentencing is set for eight weeks from now. And so while today justice was served, we do have to look to what will happen in eight weeks, because if those sentencing guidelines are indeed followed, and we're talking about somewhere in the 12 and a half to 15 year range. I think you're going to see lots of people from black and brown communities who were, you know, purportedly caught shoplifting or, you know, who were purportedly found with marijuana, who were serving 10, 20, 30, 40, 50 life sentences on occasion. So what do you think ultimately is going to happen in sentencing, Michael? What should we look for here? And to drive that last point home, there's an African-American woman who's serving five years because she accidentally voted in the wrong precinct. And, you know, if that crime was committed, the one that Chauvin is convicted of in New York, he'd get closer to 30 to 40 years. So the disparate nature of state by state sentencing, which is what we have in our country, I want to manage the

expectations of our listeners, because they're already probably shocked that the sentencing guidelines in Minnesota are 12 to 15 years or 12 and a half years. And just to be clear, because the conviction, even though it's on three counts, the two murder counts and the one manslaughter count, because it's really the same crime with three different counts, it is more likely that the judge is going to sentence him to what's called concurrent sentencing, meaning he serves all sentences at the same time, not consecutive. So he's not going to get 12 plus 12 plus four. if they go by the guidelines, he's going to get 12 and a half for all three crimes. Now, what Ben has just outlined is you're allowed, if you're the judge and if the prosecution

seeks it, to do what's called an aggravating increase or enhancement to the guideline number to drive it up. In order to do that, and one of our very astute followers on Twitter asked me and you, what are the Blakey factors? Because it was mentioned by the judge at the very end. And they asked me what that was. So let me bring it out now for the kind of inside baseball geeks that follow us. In 2004, the Supreme Court of the United States, in an opinion called Blakey, said in effect that if you're going to increase over-sentencing guidelines someone's sentence, and you're going to use factors to do that, except for the factor of prior conviction, if you're going to use any other factor to enhance the sentence, to increase the sentence, you have to do it by way of a jury decision, unless that jury function has been waived by

the defendant. As Ben noted, for whatever reason, the defense decided early on to waive having the jury also be involved with sentencing, probably because they thought they were going to lose and they didn't want that same jury also deciding, well, we really hate the guy. Let's ratchet up the sentencing to some 40, 50, 100 year sentence. I'd rather take my chances and have a second bite at the apple with a judge. So they waived it. So the Blakey factors, well, they'll be analyzed only by the judge and sentencing, not by that same jury being brought back to determine if the heinousness of the crime, which it is heinous, if what happened here to send a message to the rest of the community and the society and the police at large, that this is not to be tolerated, that this is not to be allowed for the future. And this person's sentence should reflect that.

I'm looking at multiples of 12 years to be proposed by the prosecution and ultimately imposed by this judge. Yeah. And I think that the jury, based on how quick they came back, if they were the ones determining sentencing, I think there would have been a significant sentence that probably looks like the max of 40 years or 40 plus years. I think we will just put a pin in it for now and see what this judge is going to do. But I do think it will be somewhere between 12 and a half and 20, as opposed to more than 20, would be my prediction, just based on some of the motions that the judge was ruling on. It's hard to read the tea leaves of where he stands, but the fuss he made over the statements by Congresswoman Waters, to me, I think brought

this a little bit out of proportion, considering that we had a past president who would literally comment on every single case that was out there. And I don't think that the Maxine Waters, kind of a bit of a Streisand effect. I don't think those comments during the case is a helpful thing to do in any shape or form. But I think there's some Streisand effect to it of now giving it more attention than it actually got to create the issue in the first place. And so it was just odd for the judge to comment on it, but that just is one of the reasons that I think that hearing how the judge ruled on that, that may lead to a different sentencing result than what may be. I would normally agree with you. And here we're trying

to read the tea leaves for our listeners. I think it'll be higher. I think the prosecution is going to ask for close to the 40, given the grievous nature of what happened. And I think the judge, although I agree with you, I thought he went way overboard and opened an avenue for appeal that I think you and I are going to talk about in future shows for Maxine Waters' comments about protesting in the streets, depending upon the result. I don't think that impacted the jury at all. This jury was not sequestered just for the listeners. This jury was allowed to go home at night. They weren't held up in a hotel. That's done on rare occasions. But they were instructed not to listen to the media and not to listen to the press and not go on the internet and do research. So hopefully, usually jurors are pretty good about that. But the reason I think it might be higher, Ben, what you can leave it on this is that I don't know if you watched the actual television broadcast and the judge reading the verdict.

Did you see that? I did. He looked I'm just watching another human being. And I've seen hundreds of judges up on the bench, he looked relieved that the jury came back with a three count conviction. I mean, I don't want to say he was, you know, he wasn't going to do cartwheels, but he looked relieved that they came back with that. Not only because I think it jived with his own,

you know, judges make their own, they reach their own conclusions, even though they're not the ultimate trier of fact in a jury trial, the jury is. That's why you stand when the jury enters the room, because they are the judge, in, he's going to be handling sentencing. So he's paying attention. My gut is it's going to be higher. It's not going to be 12 and a half. It may not be 40. He might be more like 25 or 30. But that's something for all of us to keep an eye on. And, you know, in two months time, we'll have we'll have a podcast on that issue. Well, I like it. And we're going to admit now into the room, Alexandra Kazarian, perfect timing. I'd love to get her take. Let's welcome Alexandra Kazarian. Alexandra is a lawyer at my law firm. She specializes in criminal law. Michael and I dabble in criminal law and do the research, but day in and day out,

Alexandra Kazarian is in the court. She's currently in her car right now, spending a few minutes with us. Alexandra Kazarian, welcome to Midas Touch Podcast Legal AF. Thank you so much. It's so good to be back. Good to have you. And she said, great to be back early on when we started Midas Touch, one of the very first videos, in addition to the video with Michael Popak, was a video of Alexandra Kazarian. And we were talking about a COVID outbreak that was happening very early on. Like this could have been early April or late March and ensuing riots that were taking place, I think, in L.A. County, if my memory serves me correct. They were in the jail. Yeah, no, I remember that very, very vividly.

We're talking and we're concluding our thoughts on the Chauvin verdict. What are your thoughts, Alexandra? You know, I've been on a couple interviews today and everybody's asking me as a criminal defense attorney, do I think that the jury got it right? And, you know, our fearless leader, Mark, yesterday was making fun of me because I watched the closing argument and I said, you know, I honestly think this might be a not guilty. Because I think they really, really brought up some really great points. And it put a little doubt in my mind. But in the end, I think that there really was just an overwhelming amount of evidence against the presumption of innocence. So I think that the verdict was right. I think it was just. And I think it's going to be interesting to see what the judge does with the sentence. It's important to note, and as we give you different perspectives, you know, and for Alexandra Kazarian to get to that point, she's a criminal defense lawyer by

trade, you know, looking into the evidence code sections, the specific jury instructions, ultimately determining that there was indeed guilt, but truly grappling with the evidence, which is a significant part, and not jumping to conclusions, but really hearing how the evidence plays out. We were talking, Alexandra, about sentencing, and you weren't on, so you don't know my view of where I think sentencing is going to go or where Popak's view of where the sentencing is going to go. Where do you think ultimately the sentencing that's going to be recommended and implemented in this case? Well, I don't think that the sentencing stacks and looking at it i think that because all three incidents come from the same act i think that the sentence you know people keep reporting that it's

going to be a 40-year maximum but i think that it's really around 15 or 18 um so i think if if the math ends up bringing it down to below a 20-year maximum sentence. I imagine that the judge is going to give him that, the maximum. If enhancements do get stacked and they do take it above like a 30-ish level, if that's something that's possible, I think then the judge is probably going to contemplate all of his years of good service as a police officer. In my experience, when law enforcement officers get sentenced after conviction, judges tend to give them, you know, good,

they give them credit for good times served as a law abiding law enforcement officer. So if it's, if it's, if the sentencing range is possible above 30, I think that he'd catch a little bit of a break probably. But if it, if it really is, if he's maxed out around 15, 18 years, I think he's going to get it all. How is that ultimately determined? How is the stack ultimately determined or not? Cause we've seen obviously that 40 year number. How do we know if it's, if it fully stacks up as an 18-year max or a 40-year max, and who makes that decision? The elements of the crimes, well, if it's one single act charged in three different ways, then that one act can only be punished one time. And here, I think it's just one act. I think it's the unreasonable force being applied, which is really the main factor. That's the act. And what the intent was

behind it was argued, but the act itself is putting his knee on his neck and causing the death. And I think that one act can only be punished once. And I think the highest maximum possible is that 15 or 18 year. So if it's more than one act, if it's, if it's an assault, because you shot two, it's two counts of assault because you took a gun and you shot two different people. Or if you shot once and two people were in that range, that can actually be stacked. But if it's one act charged three different ways, you can't stack it. So it would be so. Hey, Alex, it's Michael. So it would be. Hey there. It would be concurrent sentencing, not consecutive. Right.

Yeah, it's there's a in California, we have penal code section 654. So you can you can sentence him to whatever you want on each one of them, but they're all going to merge. So it's symbolic, he can be sentenced on each one separately. But, but it won't even be concurrent. It's actually, they merge all together and then the highest one takes over. Alex, let me ask you a follow-up question, Ben, just one second with Alex. You said that above a certain number, you think the judge may give him, I'm paraphrasing, may give him a break for his years of unblemished police service, which I agree with in the normal circumstance. But given sort of the heinous nature of what happened and the backdrop of everything that we've seen, the message that you're trying to send, also that this won't be tolerated.

Yes, it's punitive, obviously. But if you're trying to send the message to law enforcement that this is not going to be tolerated and you're going to be sentenced to sort of the top end if it happens again, and that's a messaging that the judge is appropriately sending, do you think he's still going to say, well, having said that, you know, Shevin never had a problem before. I'm not sure that's true, by the way. I think he did have a couple of problems before. But do you think that's going to come into place or the weight of this historic moment is going to suck the air out of the room and make the judge put his foot to the floor and give him the higher sentence? I think it's a really dangerous proposition for judges to make examples out of defendants.

I don't I don't think that that's appropriate. But I do fear that every single judge thinks about that. How is my face going to look on the front page tomorrow when I put this sentence out there? So I do think that that's going to be a factor. I don't think it should be a factor, but I definitely think that with the public outcry, with the fact that this jury didn't really take a lot of time before they decided that this was egregious conduct, I think that the judge is going to feel very comfortable thinking that society wants him to give the maximum. And if he's still inclined, there's nothing stopping him from doing that. I don't think there's going to be a big outcry from policing and saying, well, hold on.

He had 10 years as a good officer. Were you able to see the TV of the TV broadcast of the judge reading the verdict? I was, yeah. He looked, he looked relieved. He did. I, that was exactly what I was looking at. I was looking at his face.

And as soon as I saw his face, when he read that, I thought, Oh, this is fine. It's not going to be a problem. Alexandra Kazarian. Thank you so much for joining the Midas Touch podcast. We hope you will come back as a regular guest and enjoy the rest of your day. Anytime. Hopefully not from my car next time. Well, thank you. Sounded great from the car. Michael Popak, moving on to the next topic of the day, we have the Liberty University lawsuit against its former president, Jerry Falwell Jr.

We learned about a year ago or so, I think, that there was this generous payout package of about ten10.5 million. But in this new lawsuit, Liberty University is essentially claiming that when Falwell was negotiating that severance pay, he was really breaching his fiduciary obligations because he was not disclosing to the university all the shit he was dealing with and all of the malfeasance he had engaged in. And so essentially he entered into, it's basically when you break down what this lawsuit is, is, you know, it's really fraudulent inducement. You know, we would not have entered into a severance agreement with you or given you a golden parachute on good terms, had you not disclosed from us material facts that you were ultimately, all of the things you were doing against the university was going to harm our reputation. We were going to determine that

you were bad for business, possibly breaking the law, and we never would have entered this agreement. So that's the case filed by Liberty University against Jerry Falwell Jr. Of course, Jerry Falwell Jr. was one of the very first of this group of evangelical, so-called evangelicals, because the evangelicals I know do not believe that Donald Trump's sexual abuse of women and his conduct aligns with the values of Christianity. But Jerry Falwell, you know, brought Trump in to speak at Liberty University. He was one of Trump's buddies. He reached this agreement. And of course, we now know over the course of the last year, all of this malfeasance that's now come out that he didn't disclose at the time he entered into the severance agreement. So what do you think about this

lawsuit, Popak? Yeah, this one is fascinating. I call this one the Miami pool boy case, because just to bring our listeners up to speed, Falwell disclosed a year ago himself in his own media statement and in his own lawsuit against Liberty University, the evangelical Christian college that his father founded, the former now deceased Jerry Falwell, he disclosed that he was basically, I'm going to use a term that I've only picked up in the media, that he was a throuple, that he wasn't a couple, that his wife had an affair with literally a pool boy at the Fountain Blue Hotel in Miami Beach that they met, that they made investments with, and that I believe he also disclosed or it came out that he liked to watch, that Jerry Falwell Jr. liked to watch his wife and this pool boy, cabana boy, do whatever they were doing. He disclosed all of this, I guess,

to try to get ahead of the story in his own press release. He also disclosed it in allegations of a lawsuit that he brought against Liberty. Well, Liberty turned around and using those two statements against Jerry Falwell Jr. said, just as you outlined it, Ben, that we would never have entered into that $10 million separation package with you if we had known that you were either being extorted by the pool boy and or that you and your wife were in this illicit affair that is completely against, and this is paraphrasing from their lawsuit, the Christian values and the liberty way that the entire university is built on. But they actually took special delight, if you read the complaint that was filed in Lynchburg, Virginia State Court, if you read it, they actually take special delight in the complaint to say, we're just quoting your own words, Jerry Falwell Jr.

You put it in your own press releases, and that's the basis for our suit. And Ben, one day we'll talk on the podcast in the future about securities law and securities law litigation. And securities fraud is very similar to how they framed this lawsuit. We would not have, the securities fraud cases are, we would not have invested, we would not have bought that stock had we known that all sorts of shenanigans were going on in your accounting program or that you had violated the law somewhere or you were bribing officials in foreign countries in order to do your business. We would not have done that. They're saying the same thing. They're saying we wouldn't, we would have given you zero.

You would have owed us money. We want our $10 million back because you not only violated your fiduciary duty by entering into this illicit affair with the pool boy from Miami, but you've harmed us and our brand, our Christian brand, as a result. This is going to be called a representation amongst corporations. You put what's called a representation and warranty that you've abided by the laws, that you don't know of any malfeasance that you've been engaged in. You're under no investigation. You've engaged in no prior conduct that could materially embarrass or harm your counterpart in the deal. And you put these representations and warranties in the agreement. The broader, the better for the party that you represent to make the other party sign on to these representations and warranties, you can have a direct and obvious breach of contract based on the strict language of the contract. Now, obviously, if there's something called fraud in the inducement or fraud generally, you don't necessarily need to spell that out

in the contract, but you have to show the fraudulent intent going into the contract itself and a course of dealing that was intended to defraud you. There's also a contractual doctrine called the implied covenant of good faith and fair dealing that in contracts in general, this doctrine recognizes that parties don't necessarily always come up with the most precise language in the world, but basically don't be an asshole in the contract and totally do the opposite of what the intent is, is basically a breach of implied warranties in the contract. I agree with you with one clarification. You still have to tie what's called the implied covenant of good faith and fair dealing to an expressed provision in the contract. It's not a free-floating concept, although I do like the way you put it. It is a commandment, thou shall not F with my contracting party. But you still have to tie it to section 22 of the contract. In doing what you were supposed to do, you violated an additional

implied duty of good faith and fair dealing. So I don't want to leave the listeners with the impression that it's sort of a standalone provision that doesn't tie back to an actual provision in the contract. It's up to lawyers like you that doesn't tie back to an actual provision in the contract. It's a tie. It's up to lawyers like you and I creatively to tie those two things together. Absolutely. Now going from a criminal case to a civil lawsuit, back to a criminal case, there was a oath keeper. It's what they call themselves, an oath keeper. It's an insurrectionist, a fascist, one of these individuals who, a white supremacist is probably a better name for who these people are. One of the insurrectionists who invaded the Capitol building on January 6th,

pleaded guilty last week to charges in connection with storming the U.S. Capitol. In his plea deal, this individual by the name of John Schaefer acknowledged that on January 6th, he was among the first people to force their way through police lines and into the Capitol. And he was acknowledged, he acknowledged that he was wearing a tactical vest and was carrying bear spray as he did so. And he used the bear spray. I guess the question becomes here, this was the first person to plead guilty. I think we're going to see the domino effect now of many other pleas like this. I mean, there's significant time, a maximum sentence of 20 years to 10 years. This specific plea agreement under the sentencing guidelines is for about three and a half to four years. I think that these individuals should definitely be charged with

more than three and a half to four years for invading the Capitol building. But what's going on right now strategically is the prosecution, the federal prosecutors are making some sweetheart deals early on to see who's going to take it to rat out the others and to point fingers at the others. And so right now, if you want to take the three and a half to four year deal, you're going to have to point the finger at others. And trust me, those prosecutors are out there telling people right now, your window is about to be closed. And so if you don't come back to me in a set period of time, we're going to prosecute you to the fullest extent of the law. And that 20 year plus sentence is what we're looking at.

Yeah, this John Schaefer, there's a lot of interesting things about this Oathkeeper case. First of all, you and I were not supposed to know about this plea deal as quickly as we did. I don't know if you followed this. On April the 5th, the Justice Department was supposed to have filed on the docket,

the federal docket, the plea deal, but it was supposed to be sealed so that we wouldn't know about it. It was inadvertently somebody, some junior Justice Department attorney, I hope that person is still there, but that some junior attorney hit the wrong button when they filed it, and it was unsealed. And so the whole world knew on April 5th about this sweetheart plea deal for John Schaefer, which you and I probably wouldn't have known about, if at all, probably for another year. But just to put it in perspective, for those that were big Sopranos fans, this is like when Adriana was picked up by the FBI, and they tried to squeeze her to get to Tony Soprano. So that's John Schaefer. He's being given the three year deal, not because he didn't do anything terrible. I mean, he sprayed chemicals on law enforcement during the Capitol attack. But the reason he was given a plea of only interfering with the Congress's job of counting the election results and being someplace

he shouldn't have been, which is inside the Capitol and not something more severe, like the other 300 people are going to be charged with, is because he is a major cooperating witness. He's going to bring down this Oath Keepers group. And for those, I don't know if you've caught 60 Minutes this past weekend, they had an interview of the Arizona chapter of the Oath Keepers. And they basically admitted on national television that current law enforcement is working with the Oath Keepers to provide them training and probably were involved, which we already knew, and were involved with the attack on the Capitol. But this John Schaefer, just to round it out, he's not only getting the sweetheart deal, I don't know if you caught this, they're

recommending, because he's probably asked for it, they're going to put him in the witness protection program. They're going to change his identity and they're going to move him somewhere because they're worried about what the Oath Keepers could do and the other Proud Boys and all the rest of these, I'll use another phrase, Meshuggah white supremacist groups out there. Was the Meshuggah connection because his name was Schaefer? Yeah, yes. So they're going to put him who knows where in some, you know, Arizona golf community somewhere. But look, he could be the beginning, as you said, to the unraveling of all this. If he turns on the Oath beginning, as you said, to the unraveling of all this. If he turns on the Oath Keepers, you're going to see them being convicted of 30 years,

50 years of hard labor and Leavenworth making big rocks into little rocks, which is exactly where they belong. This has nothing to do with what you're just saying, but it strikes me as a point to bring it up. I've been watching recently on, and it probably has some legal point that we'll flesh out right now. I've been watching on Netflix, the El Chapo show on Univision. And I was, you know, I commented to my girlfriend who is first generation and she's from Mexico, you know, and I was like, the Mexican government, you know, literally worked hand in hand with all of these drug cartels. Like they knew what was going on. Like Chapo was their partner. I'm like, how crazy is that, that that was going on, that was going on there, you know? And, and she said to me without, you know, without a pause,

well, yeah, maybe it's not drug cartels per se in the United States, but the business cartels and the way they work with Donald Trump and they work hand in hand with the GQP, you know, the same way the Oatkeepers are working with the police department and the law, you know, and law enforcement. I mean, that level of collusion between the illegality of the government that, you know, in Mexico, the cartels are obviously more outwardly violent, you know, with what they're doing. But in fact, what the corporations are doing here, although maybe you don't see the violence in the streets, the collusion is causing mass death, whether it's through corruption in pharmaceutical companies and collusion or, you know, the denial of science,

the way we deal with climate change. You know, it just struck me as I've been looking for a time to bring that analogy up somewhere because I thought it was so profound and whether that deserves to go there or not. But when you talked about the relationship between Oath Keepers and the police department, it's just like that is. I mean, if Trump had his way, we would basically look like, you know, ironically, like the cartels linked with the Mexican government. That's what he wants. And oligarchs in Russia. I mean, not to get too deep in the weeds here, but look, Eisenhower in his farewell address talked about the dangers of the military industrial complex in America. And we're talking about the 1950s. I mean, the old line that you and I learned in grade school still goes on, which was, as goes General Motors, so goes America. There's a reason for that. You know,

when you have a constitutional democracy that's grafted on top of a capitalist structure, and we're going to talk about next, or soon, we're going to talk about the role of corporations and First Amendment rights. But that close relationship that your girlfriend noted that goes on with cartels, that's no different than the military-industrial complex. It's no different than the outsized role of corporate America on domestic policy and foreign policy. Which is a great transition to that point, which is on April 26th, the Supreme Court is going to hear a major case that could fundamentally alter the court's approach to laws requiring political organizations to disclose their donors. This was a great article in Vox that talked about the history of Citizens United and this new case, which may be Citizens United on steroids.

See, Citizens United pretty much dismantled a lot of the reform out there on campaign finance reform that existed. You had, what was it, McCain-Feingold, and you had a number of other initiatives to clamp down on corporate influence in politics and to permit more disclosure of donors so that there wouldn't be dark money. Citizens United came in and basically created mechanisms through political action committees and other ways where corporations could come in and be treated as people, but also make unlimited expenditures to certain organizations like Super PACs or PACs and other groups, and make significant donations to politicians. But Citizens United at that time still allowed the federal government to come in and to create disclosure requirements. Of course, there were end runs around it.

This is what we call dark money. And there are some ways for groups to either hide behind shell companies or other LLCs and figure out ways not to disclose their identity. Opposite is minus touch. Exactly. We go above and beyond to be transparent in every one of the donors and donations we have and list them all. But this new case, which is called Americans for Prosperity Foundation versus Rodriguez, really threatens to upend it. And it's a conservative group that's trying to, and again, I always correct myself whenever I say conservative, because I don't think these groups are conservative. I think I'm far more conservative

than them. So every time I catch myself, I'm going to put a nickel in the jar and punish myself. But in Americans Prosperity Foundation versus Rodriguez, the basic goal is for GQP members to find ways not to disclose corporate donors. And they're doing this in a very kind of nefarious way that maybe you want to talk about. That's actually utilizing arguments of where organizations do not want to disclose maybe their charitable contributions to protect their identity for fear of being attacked and fear of violence and having to give their address. But they're trying to take those laws that are meant to protect, specifically protected classes that are looking to donate, but they're trying to use those laws and to transplant it here to protect corporations from having to disclose their identities in political donations. Do I have that about right? Yeah, you do. So let's put a

finer point on it. The lawsuit Americans for Prosity Foundation, is led by the Koch brothers, which is a rabid right wing, tremendously wealthy set of Republican donors. They've been out there forever. They've been trying to influence successfully have influenced elections forever. And what they want- So these lawsuits, though, I think you should mention too, they're very planned out methodical lawsuits. There's almost a whole corporation built around a lawsuit like this. And these groups like the Koch brothers think,

you know, they plan out which specific court should I file it in? Who should be my plaintiff? We should, which group should we create to be the front of this lawsuit? And their plan is working hand in hand with groups like the Federalist Society and helping to push these judges onto the Supreme Court and into positions of power on federal courts of appeals. They look to see where they can have the best reception with these cases. And they put

these cases all across the country. So just because this one is one that basically got through, this is a horrible example, and I just apologize in advance for giving it. But this case is like the sperm that found its egg. And this one made its way through the system and arrived at the Supreme Court. But there are lots of other ones that are always trying to find that egg to be fertilized by the corrupt Supreme Court. Yeah, yeah, I'm not going to continue with that metaphor. But I will, I will say not only do the Koch brothers are behind this case and other cases, as Ben's described, as you've described. But they use their own overly archly conservative law firm filled with Federalist Society lawyers called the Thomas More firm, the Thomas More Society, which ends up being the lawyer of choice for the Koch brothers. But let's bring a finer point to it. So in 2010, with a vastly different

composition of the U.S. Supreme Court, four members that were there are no longer there. They've been replaced with very conservative members of the court, decided that corporations have First Amendment rights, rights of free speech. And the way they can express themselves is to have no limit to the amount of money they can pump into the political and electoral system, which has led to some terrible results, super PACs that raise billions and billions of dollars, really unaccounted for, and just pump it into candidates and issues and policies. And we've had to fight back. I mean, you know, Midas Touch has a PAC. They're raising money to fight back against this dark money that's out there. The difference is

Midas reveals its donors because it can. Now, the one thing that was left standing, as bad as the 2010 Citizens United decision was from pumping big dollars into the election system, the electoral system, the one thing that even all of the judges, but one, eight judges, even the conservative one said was okay, was regulations that required, the federal regulations that required that donors not be anonymous, that they have to be disclosed as part of the dollars that these big packs were donating. And the way that this Americans for Prosperity case, which is going to be heard in oral argument on April 26th, and then we'll have-

The sperm. That sperm case. Sorry, you got me to say it. On April 26th, in an oral argument, what's going to be argued there is, and this is what really gets my goat, as you alluded to, is that they're going to use laws that were made primarily by African American political organizations like the NAACP in the 1950s against Jim Crow law to their white

privileged conservative advantage. So in the 1950s and 1960s, the U.S. Supreme Court was sort of unanimous that you could keep hidden donors from your legitimate organization if you had a legitimate fear that if you outed them, if you told people who they were, there could be violent revolt against them. They could die for having donated to your organization. So if you donate to the NAACP, we will have to disclose your contributions. The Ku Klux Klan will come and kill you. We'll give the information to the Ku Klux Klan.

So the NAACP and others say it is important to keep our donor list confidential to protect their safety. Right. And so that is what the Koch brothers in this case are trying to use to their advantage. And by the way, the crazy thing about that case, I want to say, was it was NAACP versus Alabama. And Alabama wanted to specifically force the NAACP to release it. I mean, how sick is that? So specifically, the Ku Klux Klan could kill it. Yeah, to kill and quash the NAACP at a time when the whole organization was fearing for its life. So I want to make this clear for our listeners. The specific issue that is going to be before the court on the 26th of April is the following. California, where Ben sits and operates, has a law in the books

that says that if a charity or political organization takes in donors, it has to reveal those donors not to the public, to the attorney general only of the state of California, so that if they have to, in the future, investigate fraud by that charity, they know where to look. Let me make it clear. It is not a law in California that donors to that kind of charity are disclosed to the public so it ends up in the newspaper or on Tucker Carlson. It's not. It is a law that they have to disclose it to the public so it ends up in the newspaper or on Tucker Carlson. It's not. It is a law that they have to disclose it to the attorney general only. And the Koch brothers are now going to use that to try to get at least five votes on this current Supreme Court. And let's do the math on our fingers. That means Alito, Kavanaugh, Thomas, Gorsuch, Coney Barrett,

maybe they get Roberts, although I doubt it. And that's your five. Can you count to five? Then you have a new decision. And if the new decision is the court says, not only do we not like the law in California that says that an attorney general can get the names of the donors, we think that all donors should be allowed to be anonymous donating to this dark pool of money. And that's the fear that you and I and people that are of our political persuasion are afraid of, that the current Supreme Court is going to run amok and they're going to make mischief out of this, what could be a narrowly decided decision about California's attorney general disclosure law. And here's

some of the arguments that this Thomas More Law Center makes. They claim, well, if a corporation makes this contribution, they have to do it anonymously out of the speculative fear that ISIS could get their information and then ISIS could attack them. And so that's part of the argument that they're trying to twist from the NAACP ruling to this. And look, we know with those Supreme Court justices that you listed that 5-4 right there, if it was up to them, you know, they would have corporations and all the dark money as possible that went into, to go into elections. I mean, a lot of that's what funds these cases to begin with. That's what funds the Federalist Society. And that's what funds this whole, you know, corporate takeover of the United States, which goes back to my

girlfriend's point. And we come full circle with, you know, the Supreme Court that Trump put in there, you know, really is the Supreme Court that's pro American corporate cartels at the end of the day. Let me turn this back to the QDP and the Republicans. How then I'm going to this is a rhetorical question, but one maybe, Ben, you can you can you can give your opinion on our answer. If the Supreme Court, the current Supreme Court, finds that not only is unlimited money in elections through corporations a proper expression of the First Amendment, but that the donors that make up charitable and other political organizations can be kept anonymous, how are we to police foreign money, which is unconstitutional? It's unconstitutional for foreign nations to impact or attempt to impact our elections, Russian money, Chinese money, fill in the blank money. How do you police that then if corporations don't have to disclose who their donors are or

PACs don't? So what's to stop the Putins of the world through a couple of shell companies from stroking a large check to make sure that their chosen candidate, their Manchurian candidate, is elected? How do you police that? And the answer is, it was rhetorical. The answer is that you can't police that. But that's when you take all of these doctrines espoused by the GQP to its logical conclusion. And it doesn't even have to be many steps to get to the logical conclusion. It's not like this huge leap. They're destructive to the fabric the logical conclusion. It's not like this huge leap. They're destructive to the fabric of this country. They're destructive to themselves. They're destructive

to the safety. And it's like, even with corporations, the corporations are still made up of individuals. And those individuals don't always stay in those corporations for their entire life. Very frequently, they move on to different corporations, yet we espouse the corporate oftentimes over the safety and respect for the dignity of the human and forget that the corporation is just run by people. And that's one of the weirdest things in my world when I have these cases and I have litigations, when I make deals, when you meet the people, people are usually good when you really get to know what their motivations are. But you put people together and have a corporate interest and they do things that are against people. And it's oversimplifying it to conclude after some very thorough legal analysis.

You know, and I'm not trying to sound like a stoner right now to conclude people are good and corporations are bad, man. But at the end of the day, sometimes law is so simple. Sometimes we overcomplicate these issues. And at the end of the day, we want laws that help people. We want, we don't want to be anti-human. So I will leave everybody out with that. It's, to continue my pop culture sub-references,

you almost sounded like Charlton Heston in Soylent Green when he discovers that the crackers that he's eating are made from people. It's people! It's people! That's what this show's about. It's about people. The show's about people. The show's about the Midas Mighty.

The Midas Mighty out there showing Popock just a ton of love. Can we get Popock, please? At least 10,000 Twitter followers. Please. Let's get this man past 10,000 Twitter followers. This was a great episode of Midas Touch Legal AF podcast. We covered a lot. We appreciate your support in making this one of the top legal podcasts in the United States, in the world. We greatly appreciate and appreciate your support. That was such a Trumpism. When Trump would do the words wrong, he would say both words and act like the one words. I appreciate and appreciate your support. And we'll be back same time next week. Ben Mycelis, Michael Popak, signing off.

Shout out to the Midas Mighty.