The MeidasTouch Podcast - Special Edition: MeidasTouch Presents 'Legal AF', Episode 8

Episode Date: May 12, 2021

On this week’s episode of Legal AF (#8), MeidasTouch’s weekly law and politics podcast, hosts MT founder and civil rights lawyer, Ben Meiselas and national trial lawyer and strategist, Michael Popok, examine Tuesday’s ruling by a Texas Federal Bankruptcy Court judge that the NRA made a “bad faith” bankruptcy filing and could not reorganize just to escape the NY Attorney General’s criminal investigation. As an added bonus, Ben and Michael discuss the flaws in the NRA’s trial lawyers’ decision to allow its client to be fileted during a 11-day trial proving just how corrupt the NRA and its leadership is, while strengthening the future criminal case brought by the NY AG. Next up, Ben a/k/a “Hooded Justice” and Michael “Velvet Hammer” Popok, take on the legality (and weirdness) of Trump using Mar-a-Lago as his personal home by arguing that he is an “employee” of the club, like the guy who cuts the shrubs or mows the grass. Speaking of insanity, the “Analysis Friends” examine whether this year’s “twinkie” defense —“Foxmania” — will allow a Capitol insurrectionist to avoid jail time (spoiler alert—the answer is “no”). The podcast then turns serious with an analysis of the wrongful death suit brought by the family of Ashli Babbitt, the former Air Force veteran turned Q-Anon terrorist who was shot by Capitol Police before she could lead her angry lynch mob into the House Chamber to kill members of Congress. The hosts then have a brief discussion of possible ways for Congress to limit the jurisdiction of SCOTUS to prevent it from overturning pro-democracy voting rights legislation, without upending the 3 co-equal branches of government.  Finally, and in a speed round, Ben and Popok give the Legal AF university “students” what they crave—a tutorial on civil procedure, our state and federal court system, the equitable and legal power of the courts, and the differences between torts, breach of contract, and crimes. - --- 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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please contact Connex Ontario at 1-866-531-2600 to speak to an advisor free of charge. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Welcome to the Midas Touch podcast. Legal AF, as you know, the A stands for analysis and the F stands for friends is what it stands for. You all know that by now. It's certainly not what you thought it was. Ben Micell is here of Garagos and Garagos, Michael Popak of Zupano, Patricius and Popak, coast to coast, Ben on the West, Michael on the East, breaking down all of the legal cases and giving you a free legal education. However, the legal advice and the free legal education is not, I should probably give a legal disclaimer that we are not actually giving you legal advice, but we hope that we are empowering you to understand certain complicated areas of law in digestible manners. We thank you

so much for your feedback. Obviously, we try to respond to as many comments as we can and integrate your feedback into our new podcasts. Michael Popock, how are you doing today? I'm doing great. We actually have a new hashtag that some of the Midas Mighty have given us. They're calling this podcast hashtag LAF, laugh, as opposed to legal AF. So I like it. So let's have a laugh. I like that. Let's get into laugh. When do we drop these podcasts? Laugh Wednesday morning. All right, let's talk about the first topic. We brought this up on the last few podcasts we've talked about. And if you're listening, you know, the coverage that we've given to this issue, the NRA, the National Rifle Association filed a bullshit bankruptcy petition to try to get away from dissolution proceedings taking place in New York. That's brought by the New York AG,

Letitia James. They filed this bankruptcy proceeding in Texas, hoping to establish jurisdiction in Texas. Popak and myself explained to you that this should never have been a bankruptcy petition in the first place. Most significantly, the NRA was not a bankrupted organization. There was an 11-day or so trial. What we've learned in that 11-day trial is the NRA chairman, LaPierre, Wayne LaPierre, he was living the most lavish, grifting lifestyle off the NRA dime with boats in the Bahamas and homes everywhere and lavish spending. But today we have a ruling that we were waiting for, as you know, if you were listening to the last podcast about whether or not the NRA could indeed file a Chapter 11 bankruptcy petition and proceed under such or whether it was a fraudulent

petition. After an 11-day trial, after some weeks, a written order came out today. Popak, what is the written order? Judge Harlan Hale, I love that name. That's like right out of Central Casting. He ruled today, as you and I anticipated, that the petition was a bad faith filing by the NRA. And the judge boiled it down this way.

You are not to use the bankruptcy code to avoid a regulatory enforcement scheme, in this case, the New York Attorney General, that you don't like. You only come to the bankruptcy court and ask for the strong and robust powers of a bankruptcy judge. In fact, as you and I have said offline, there is probably no more powerful federal judge than a bankruptcy judge. But with great power comes great responsibility. And the judge said, you're not gonna come here just to get out from under the criminal investigation

that's going on in New York, unless you're a bankrupt, wrong use of the bankruptcy code. And he went one step further, bad faith. But the weirdest thing about this strategy, if you want to call it that, I really call it walking legal malpractice by the lawyers representing LaPierre, is that if they thought they were just going to file the petition and get away with a two-hour hearing, they were in for a rude awakening. This judge conducted an 11-day evidentiary hearing trial with witness testimony, including LaPierre for a few days, that laid bare all of the shenanigans and fraudulent activity of LaPierre and the organization, which is perfect for Letitia James in New York to use in her ongoing investigation.

So they were never going to win this. They had to just sit there for 11 days and provide their adversary, in this case, the New York attorney general, with all of this amazing stuff that it would have taken them months or years to develop and got called fraudulent bankrupt filers. I don't know who came up with this, this crack pipe idea, but it was lame brain to begin with. And the federal judge, bankruptcy judge has found it to be so. The U.S. bankruptcy judge, Harlan Howe, described the testimony from Wayne LaPierre as, quote, incredibly cringy and described all of the kind of fraudulent machinations that LaPierre attempted to bring this include bring this bankruptcy petition, including not consulting even his NRA board in filing the petition. I mean, there are a board of the old lawyers for the NRA were not consulted.

Yeah, I mean, and that is beyond rare if that even takes place at all. I mean, to me, that borders on not just bad faith, but borders on, you know, in essence, kind of criminality in terms of what LaPierre was trying to hide. But in trying to kind of hide from the New York Attorney General Letitia James case in New York, he ended up just laying out the case for her in Texas by going through all of the fraud that they committed. You know, when you think about legal cases, there's a lot of things you need to think through as a lawyer giving a client advice. You have to know the law. You have to know the facts. But you also are being consulted five, 10, 15 moves ahead to determine how am I going to get this case ultimately in front of whoever the trier of fact is and how am I going to prevail? It is always shocking to me in our profession, Michael, how many lawyers do not even

think two or three steps ahead. And they're constantly going from one step to the next step and not thinking through all of these repercussions. There's a saying early on in my career that an opposing counsel said in a cross complaint to another opposing counsel, he said, you should, you better recognize the law of holes than the other lawyers. What's the law of holes? He goes, stop digging. And I've always kind of took that as sage advice when I was a young attorney, seeing two older attorneys go after each other like that.

But the law of holes, which is stop digging and making the problem worse and worse and worse, certainly holds true here. So what happens next? The New York case is going to proceed. Letitia James has more evidence than ever. And Wayne LaPierre, who was not able to get his bankruptcy petition granted, is now going to be faced with a host of existential litigation against him for his bad faith conduct. Look, the NRA, if it were a legitimate organization that cared about the fiduciary duties and responsibilities of the members of the board

and its executive director based on the testimony that was given over 11 days, should immediately remove LaPierre from his executive position and should, all of the board should resign and they should, you know, lay themselves at the mercy of Tish James in New York. That's what a legitimate organization would do once all of these things were laid bare in a courtroom, in a bankruptcy courtroom. But we know the NRA is not a legitimate organization and they will just say, well, they just shrug their shoulders. Well, that's interesting that our executive director did all these bad things without authority,

without approval, and they'll just go on, which will only, you know, everything they do that is counter to their responsibilities as fiduciaries, only strengthens the New York Attorney General's hand in her suit. It's like one of those fingertip handcuffs where they just keep pulling and pulling and pulling, and the thing just gets tighter and tighter and tighter around their neck. And we're back to the law of holes. No doubt about it. Speaking of the law of holes, we have Donald Trump, who is the law of being an asshole and being a law of being just a horrible human being who was a disgraced Mar-a-Lago in Florida. There was many of our listeners, you know, probably heard, wait a minute, I thought that

there was some consent decree in 1993 involving Trump. Didn't we hear that Donald Trump is not allowed to be living in Mar-a-Lago. Our listeners are so sophisticated that they know about 1993 declarations of use in Palm Beach County, Florida. That's what I love about our audience. They are high IQ audience for legal AF, but they follow the facts. And so they may be confused knowing those facts, believing that Donald Trump couldn't live there. Why is he still living there? Why is he permitted to be at Mar-a-Lago when we thought that he was not entitled

to be a resident based on this 1993 consent decree? And I just want to say this as a practical matter, it's just the weirdest thing ever that he is in this resort, that this is just what he does with his time, not like live in a home or an apartment, but want to live on a resort with other people who are paying exorbitant rates just for access to him and kind of a crowded, disgusting, dilapidated Mar-a-Lago of what it's become purely because he just needs adulation of people and he needs people to validate him by coming. So he has to live in a hotel basically and refuses and refuses to leave. So Popak, you have experience at a municipal level serving as county counsel for specific cases.

First, explain to everybody what that role is, how a private attorney can sometimes be appointed as a county counsel representing town attorneys or municipalities for certain purposes. or municipalities for certain purposes? And what is happening here with the town attorney saying that Trump can still reside at Mar-a-Lago so long as he is a bona fide employee? Here's where I get to crack my knuckles like a concert pianist. I never thought you and I would be talking

about municipal government law, which in a prior life in Miami at a law firm I was at, my law firm specialized in representing towns and villages and cities just like Palm Beach and served, I've served as at least the acting for a night or two city or town attorney in various cities in South Florida, not this one in particular, but I have a pretty good handle on, you know, municipal government law. So most towns like the town of Palm Beach, which is on an island in South Florida, have to have by their charter a chief legal officer. That person is usually called the town attorney, the city attorney, the village attorney, depends on how that particular municipality is organized. If the town is large enough, they have an in-house

person do that role and they're appointed by charter and they're paid like an employee. And every two weeks or so, there's a town or village or city meeting, town attorney sits up on the dais, he prepares the agenda package, makes sure that the elected officials follow the charter, which is the constitution of the particular city, in their voting, in the resolutions that they pass, and in their land use and zoning decisions, which touches on this Mar-a-Lago issue. And sometimes the town is small enough that it has an outside private lawyer serve in that role. It's a sort of a prestigious position. People bid for it. You actually, you know, you actually bid, submit a bid,

and the town decides whether they're going to select you for a period of time and sign a contract with you. And then that lawyer sits every week or two weeks with the town or village council, the elected officials, advises the staff, advises the city manager or the city executive, advises the land use and zoning board and the like. Now let's bring it forward to Mar-a-Lago. In 1993, when Trump purchased,

which was then a dilapidated single family residence, now a dilapidated resort, the town was concerned about what the use was going to be. referred to as a declaration of use agreement, which is in land use and zoning parlance, it is a covenant between the owner of the property, and in this case, the town, that governs and controls the use of the property forevermore. It's recorded. It's recorded like a deed with the city clerk, and whoever buys the property is subject to it unless they get relief from it by petitioning that city council. This one said you can use it as a private club. You can have certain accommodations on it, some of which you can advertise, some of which you can't. But there was no, in the declaration itself, there was no restriction per se, and I've looked at it, at Trump living on the property. He never said he was going to live on the property,

but there was no restriction per se. So now that he's living there as the winter ex-White House, I mean, you know, he was there for hundreds and hundreds of days while he was in office. But now that he lives there in the winter, not in the summer, in the summer, in fact, he just left supposedly a day ago. He just flew to his other golf course country club in Bedminster, New Jersey, where he's now going to live for the summer. You know, as Ben said, he likes to live along with a lot of people that he pays that salute him when he walks through the front door, usually wearing some sort of uniform.

But that begs the question, if he's an employee of the Mar-a-Lago, which is what the town attorney has declared in his reading, well, if he's an employee and he gets paid, he's allowed to live there like he's the caretaker of the golf course or something, you know, like Caddyshack. He and Melania, I guess, are now employed by the club. Then the town attorney has said he doesn't see it as violating that declaration of use because if he violated the declaration of use, the whole Mar-a-Lago country club community comes crashing down and he'd have to leave. So it looks like he's fine with being called an employee. I guess the desk of the former Donald Trump, which is on his new website, I guess that desk sometimes resides in Mar-a-Lago until they ship it to Bedminster. It's sort of silly, but if he screws this up, he's going to lose the right to have Mar-a-Lago be a country club. And since Donald Trump doesn't like to live anywhere unless other people pay for it, I think, you know, he's trying hard to find a way

for he and Melania to have a home within the country club. You may recall that Mar-a-Lago racked up over 78 health and safety violations in the three years preceding 2017. Thereafter, it was cited for multiple other health and safety violations, including for mall, improper parasite destruction, cockroaches, and other health and safety violations. And of course, you recall that Mar-a-Lago was shut down not too long ago for various COVID outbreaks that took place on the Mar-a-Lago property. I think that it was a warning sign when an individual is unable to even keep up with the most basic health and safety requirements of where he lives required that he agree that Trump signed this himself. And it's actually a three way agreement between the town, Donald Trump and Mar-a-Lago Inc. gender or age discrimination, either in the membership or, you know, the way he operated it. And I bet you that's not true. I bet you there has been discrimination in terms of the membership there, who they've allowed in and who they haven't allowed in. And I'm sure, you know, if we dig hard

enough, we're going to find discrimination and other things that have happened with women, sexual orientation, race, national origin, and other things. Remember, while he was in office, he did a little spring cleaning of his own and got rid of a lot of undocumented aliens and illegals, so to speak, undocumented people who were working as landscapers and in the kitchen and all sorts of other things, you know, as only the president of the United States can do, which is to have, you know, undocumented people working in his organization. Undoubtedly, Trump just sitting and stewing in Bedminster right now, watching Fox and Newsmax and OAN on loop, which brings us to our next topic.

One of the defenses that are being raised by the terrorist insurrectionists who stormed the Capitol on January 6th is a new and novel defense that I've never heard of before called quote, and this is what the lawyer is calling it. It's bullshit and it's a stupid label, but it does speak to a truth, but it's not a legitimate defense in my opinion, or I think most legal observers opinions called quote, Fox mania. And this particular individual, this criminal defendant, his name is Anthony Antonio. After he was laid off for about six months during COVID preceding the insurrection. He was sitting in his house and according to his attorney, watching nothing but Fox News,

spewing these ridiculous conspiracy theories over and over again before he decided to take action. A number of interesting things at this particular court hearing regarding Anthony Antonio. First, Antonio's lawyer, one of the things that he's claiming is Antonio didn't really do anything like that bad and that he should wait until like some of the real bad actors go first. But one of the things that he's accused of doing is climbing the scaffolding outside of the Capitol, entering the building through a broken window, obtaining a riot shield and a gas mask, threatening police and squirting water. And Officer Michael Fanon, the police officer who was dragged down a set of stairs by rioters and repeatedly tased and beaten. And of course, Officer Fanon's been on TV recently speaking out against Trump and everyone

spreading the big lie about the big lie and saying, I was there. Stop saying that these people were good Americans or nice people. These people literally tried to kill me. And in fact, here, Anthony Antonio did say that when he looked in the eyes of Officer Fanon, he saw death. He saw someone who was scared of his life. Another interesting thing that happened during this hearing is that another Capitol insurrectionist who was part of this Zoom hearing, that's how these hearings are taking place right now someone named landon copeland um he began just interrupting um and basically saying how dare the lawyer anybody here disparage donald day donald j trump how dare you no one can disparage him and

basically um that individual landed copeland was ordered now to have a mental competency hearing. And it goes to this issue. These are mentally unstable criminals who suffer significantly from mental illness, but that doesn't prevent them or should shield them in any way from being held accountable for any of this. But this bizarre echo chamber of Fox and OAN leading to this just fantasy world that doesn't exist is just it's just so dangerous for our country. I think one of the things that this particular defendant said as he was storming the Capitol was, this is in one video captured on police body worn camera, Antonio shouted at officers, you want war? We got war. 1776 all over again as he's wearing a three percenter outfit. And then his attorney goes,

this guy wasn't really even that bad of an insurrectionist. And so what do you think here, Popak? Is Fox mania a legitimate defense? No. And if it was or Fox itis, I think they called it, too, then Donald J. Trump should have used it as his defense. Look, let's unpack it a little bit for our listeners. Why are we talking about defenses in criminal law? Because there is a concept, a fundamental concept in criminal law, which is that the person who acts has to act with criminal intent. We call it mens rea. And if you can, if it's a defense lawyer, if you can successfully defeat men's Rhea and show that the person did not act with depraved heart or criminal intent, black heart, black mind,

whatever you want to call it, then you might be able to get them off from the crime that he's being convicted of, or you can convince the jury or the judge that he didn't have the requisite mental state. So this judge, this lawyer came up with the Foxmania defense and shout out to your brother Jordy, because he posted this a couple of days ago and said, Popak, take this down, which is what we're doing now. So some of your listeners may recall about 30 years ago or more, the Twinkie defense. In a murder case, the lawyer actually said that his client was so intoxicated by snack food, in this case Twinkies, that he could not have formed the requisite mental intent to be a criminal. That went down in flames. That person was convicted. But it was interesting

30 years ago on early television, early cable and all, to watch the defense being presented in court. This is never going to work. The federal magistrate judge in District of Columbia who heard it was completely nonplussed by this. And this guy is going to be convicted, unless he cooperates. He's going to go to jail for a long, long time. And to say, the thing that I find so shocking and so repulsive is when we get to the next story that we're going to talk about and analyze Ashley Babbitt and her family suing amazingly for wrongful death for what she did. All of these thousands of people that stormed the Capitol all contributed to this unhinged, fomented, stampede, mindless, blood-curdling stampede to try to find elected officials,

hang them, draw them, quarter them, and kill them if they had found them. I have no doubt, and nobody that was there has any doubt, that if these people had broken- Really terrorists. Terrorists had broken through the last line of defense, which is what we're going to talk about next with Ashley Babbitt, and gotten their way into the inner chamber, not after all the elected officials had safely gotten out by way of the Capitol police, but before we be talking about the murder, the assassination of dozens of elected officials in this country. That would be so shocking and so numbing to this country. So for a lawyer to say that there are degrees

of venality, there are degrees of criminality, far as I'm concerned, they all contributed to this giant soup that led to the insurrection on the Capitol. And if this guy was in the vicinity of the officer who was repeatedly beaten, tased, suffered a heart attack and almost died, and he did have interaction with him, he's just as bad, as far as I'm concerned, as the person who broke through the window inside the House chamber and almost made it all the way to Speaker Pelosi's podium. In many ways, we have two big lies that I think are taking place. The first big lie that the election was stolen and that there was election fraud and that Donald Trump won. That's kind of the big lie, number one. But I think we

also need to frame the insurrection as the big lie, too, because what Republicans who pride themselves on law and order and they say it and they claim it, but it's all a bunch of bullshit because they enabled and aided a terrorist attack against the United States. And now they want to claim whether it's by Fox mania or Donald Trump saying, actually, the people there were friendly and they were actually, you know, just protesting and exercising their First Amendment rights. The danger of undoing what took place on January 6th is equally, if not even more dangerous than the first big lie that the election was stolen because what the message is being sent and which is kind of counterintuitive to our entire law studies. And I could imagine being

in law school, just looking at this and saying, wait a minute, why am I studying law at the end of the day? If laws don't matter to one political party who legitimately does not give a shit about application of the law, about precedent, about standards, about holding all people accountable. They don't believe in anything. They're nihilists who don't believe in anything. They believed in the law when the law upheld white supremacy, when the law upheld their vision and view

of what they believe the United States of America is. Now that law is being extended to provide equal rights to all communities and that people are recognizing the importance of loving their neighbor as America becomes more and more diverse, the Republican position basically is, damn the law. The law is whatever we say the law is. And at the end of the day, we can have an insurrection and then basically still support the leader of that insurrection. The GQP, the Republican Party, is the party of terrorists. Listen, thank God and thank the electorate that they voted in Biden and the new Justice Department, because heaven help us, if Trump had gotten a second term, if this insurrection had happened on his watch for some reason or something like it,

and these people were not prosecuted to the fullest extent of the law and sent away to Leavenworth, as I've said before, to make big rocks into little rocks for the rest of their life or something akin to it, this would just be a license to do this whenever they felt like it. We can never let, as our society, as a democracy, what happened on January 6th cannot happen again. We can never forget. And the only way that will happen is we have to root out these evildoers. We have to root out these terrorists and we have to prosecute them. Because if we steps will make their way up the front steps. And people will think they're watching, unfortunately, an episode of 24 or something when the whole Capitol is blown apart with everybody inside of it, at least every Democrat

inside of it. And ultimately, that's what leadership is about. And leadership in support of a democracy should be bipartisan. The fact that you have 25 to 30% of Americans who may harbor vile, disgusting, racist views, conspiracy theories, support death cults and cult-like behavior, what it takes our leaders in a bipartisan support to say, we don't support terrorists in the United States of America. What we support is democracy. We support supporting people's health, supporting our economy, you know, not this crazy idiocracy that is the Trump administration. But I digress. I want to talk now. I have a new name. Wait, wait, I have a new name for you. What? In case this video makes the light of day. Ben is wearing an outfit and I'm now going to

give you a new name. And shout out to the Watchmen, which is a favorite show of mine. You are now Hooded Justice. I like being called Hooded Justice. My actual legal nickname, which I'm not sure if I shared before, was called Young Jedi when I first started, given to me by a lawyer named Sean Macias in the first trial, who was very proud to give me that nickname. And one of the funny stories about being called Young Jedi is that when I was about five years old, I have, and I had then particularly for a five-year-old, very big eyes. And back then my ears were so gigantic and my head hadn't grown into my ears. So when I went to day camp, they were giving names and Star Wars names, and I was nicknamed Yoda. And I didn't know what that meant, but I

was so proud of the name Yoda and they would call me Yoda. And then I watched Star Wars and I saw what Yoda looked like. And I remember the five-year-old version of me started crying hysterically when Yoda was not exactly a good looking character in the Star Wars. But it is funny that from being called Yoda at the age of five to young Jedi and now Hooded Justice, lawyers, I like Hooded Justice and lawyers will give each other nicknames the same way athletes do from time to time and other professions from time to time, because we deal with a lot of difficult and serious, you know, issues. And sometimes you need to just get through the day. So having some fun and having some self-deprecating humor. I've been called the velvet hammer, the velvet hammer. I like the velvet hammer. So Velvet Hammer, break down for me what Ashley Babbitt is filing. She's filing a, or she claims to be filing.

Her family. Wrongful, her family. Yeah, she's dead. Her family is going to be filing a wrongful death lawsuit. Babbitt was shot and killed. She was one of the insurrectionists who broke in. She was actually seen like breaking into the lower chamber where I think the vice president was located and where the what's the House representative, where Nancy Pelosi's office was and where other top congressional leaders, the Speaker of the House's office was, where the majority leader, they all have some of their offices. And I'm not sure if they're still there, but I used to work on the Hill and they have the caucus rooms and like a lot of them, the higher level Congress members have their offices in this area. She was 30 feet from the House chamber in the Speaker's lobby. Yeah, and so she broke through the glass. You see the video of her kind of climbing through.

She was the first person in the mob to try to jump through. And there was an agent who was dressed in a suit. And as she was climbing over, shot her in the face. And it was caught on video. She passed shortly thereafter. Obviously, you know, it's never making light of loss of life, no matter what is, you know, it's something that nobody should ever do, but certainly recognizing that there are repercussions and accountability for actions like this. And again, this is always what the Republicans always want to say if a black or brown or non-white man, woman gets shot and killed for not stopping immediately in a traffic stop or not turning over the ID

right away or not stopping right away and stopping a few feet away so that they can be in the light. You always hear from the Republicans, they should have complied. They should have complied. And the retort is always back to that. You don't get to kill someone. You don't get to play judge, jury, or an executioner because they didn't show you their license. Or even if they engaged in a petty crime of taking bubble gum from a store or selling a cigarette. One of the interesting stats, Michael, that I've been looking into in some of the other work and research that I do, it has nothing to do with what we're talking about, but about 95 to 96% of all police interactions tend to involve either minor offenses or total no offenses at all. And there's only about 2% of all police interactions that actually involves somebody who's engaged in some violent

behavior. Yet we have a policing system where we stop minor insignificant in the grand scheme of things, crimes with machine guns and guns and militarized weapons. Which has been allowed by a series of decisions by the Supreme Court of the United States, leading to an overzealous use of stop techniques by police, leading to death for Black and brown people. And fortunately, it all goes back to the Supreme Court. Yeah. And one of the things the courts have used sometimes to justify dismissing cases is that underlying unlawful conduct is sometimes grounds under a, you know, legally as the, I disagree with the law, to shoot, to kill, or to engage in force in certain situations. And so specifically here, what the family is saying in this Ashley Babbitt case and what Babbitt supporters and what the GQP, they treat an insurrection against the country as such a minor inconvenience to the United States of America.

Instead of the terrorist attack that it is. And you go, well, it's so hypocritical that they have one view about the person who doesn't turn over their license in the first 10 seconds of a police encounter that that person can be shot and killed, according to Republicans. But here they have a different view. It is hypocritical because they're hypocrites. They're making it up as they go along. It's total and absolute bullshit. Popak, I believe that this case is going absolutely nowhere. There is no basis whatsoever, in my view, to file a wrongful death lawsuit when the decedent was a terrorist insurrectionist who was joined by other terrorist insurrectionists to kill politicians who then got stopped while she was intruding on our sacred

constitutional halls. Yeah, we talked about this, I think, at episode one or two, actually. I took the same view as you did, which is the Capitol Police officer. Let's set the stage. And for our listeners who are interested, about two months ago, the New York Times did basically a centerfold overlay of the timeline that led to Ashley Babbitt being shot by the Capitol Police, step by step, moment by moment, really from the moment she entered illegally the Capitol to the moment where she was shot and beyond. So if you're interested, look at that breakdown.

But what became clear to me when I looked at that in the accompanying video that's in the interactive piece online is that first of all, the mob had overwhelmed and overrun the Capitol Police. We all know that. As we know from other reporting and even the hearing, the audio, the cops on the ground were telling their supervisors and calling for the National Guard and saying, we've lost

the line. We've lost the line, meaning we can't hold them back any longer because you're talking about thousands, hundreds and hundreds and hundreds, almost thousands of terrorists against, you know, basically a handful of Capitol Police. It was even, that was even more acute in this particular location, which we've identified

as the House chamber and the Speaker's lobby, because the only thing that separated a mob of 20 people, including Ashley Babbitt, and elected officials who were still in the chamber, I want to make that clear, they had not yet been able to be cleared out of the chamber. So at the moment when Ashley Babbitt was shot by the Capitol Police officer, in a moment that I believe is a moment of heroism that should be celebrated and not him being sued for, the Capitol Police being sued for wrongful death, at that very moment, which is what matters, as we learn moments matter, as we just saw in the Chauvin trial with George Floyd. Moments matter. In that particular moment in time, if they had broken through, if that angry mob,

mindless mob of 20 people led by Ashley Babbitt, a former Air Force veteran, had broken through that particular line, they would have made it into the chamber with elected officials present, and God help us at that moment. And that's what's going through the mind of the two or three, and that's all there were, Capitol Police that were in that particular hallway, 30 feet away from the chamber, when Ashley Babbitt made the decision, her own assumption of risk, she made the decision to break the glass of the wooden door and begin to climb through it in order to open the door to let the mob through. And that police officer who has one duty and one duty only, it's not to protect the building. It's not to protect

the paintings and the statues and the flag and everything else. The Capitol Police have one duty and obligation, protect the elected officials and staff of the United States government. And he pulled out that weapon and knowing he had no backup, that he had no other police with him, other than I think he had one or two fellow police officers also stationed in that 30 foot, that 30 foot location. This was their Waterloo. This was their. 1776 or whatever they're saying. This was the cops 1776. They allow Ashley Babbitt and her 20 marauding mobsters to break through. And we have assassinations and death of elected officials,ain and simple, no other way to put it.

So he pulls out his service revolver. He fires one shot. Ashley Babbitt falls to the ground dead. And you know what? That mob did not break through. That mob did not get their way. Time was bought to allow the elected officials to safely escape from the chamber and to now have that, the leader of that mob, in effect, at least that mob, that segment of the mob in that moment, to have a wrongful death suit. I found it shocking that her lawyer is quoted as saying, well, she was a former veteran. I'm sure she would have complied with an order to stand down.

Has he seen the video? She was climbing through the window along with 20 other people with murderous cries and yells to do nothing but to cause grievous bodily injury to whoever she found. And he thinks that if the cops said, stand back, stand down, that she would have, he's insane. Not sure if you read this article in Switching Gears for a Second, Popak, I guess Switching Gears fairly abruptly for a second, Popak, about Florida's new restrictive voting bill. And similar to all these restrictive voting bills that are all based on big lie number one, that there was rampant voter fraud in the election, which wasn't, which is

just used as a way to discriminate against non-white voters and limit their ability to have access to the polls. But it was an interesting, a Loyola law professor, Jessica Levinson. Loyola is actually where my law partner, Mark Garagos, went to law school. Loyola is not too far away from where our office is downtown. But Jessica Levinson proposed a novel concept, first identifying the fear that a conservative Supreme Court, which essentially tilts, and I hate the word conservative. So every time I catch myself say the word conservative, I don't view these people as conservative. So I got to call myself out, call yourself out when you say conservative against crazy people. But this radical right court after the death of Ruth Bader Ginsburg is six to three in favor of the radical right, whose agenda is to strip away our rights and discriminate against non-white people and hold up

a white supremacy kind of hegemonic structure. You do have Chief Justice John Roberts, who sometimes in trying to bring some civility to this court is siding with the left or with, you know, I think kind of the normal jurisprudence judges. But with the passing of Ruth Bader Ginsburg, it's hard to overrule the 6-3. And so oftentimes it'll either be 6-3 in favor of radical right or 5-4 in favor of radical right. So Jessica Levinson basically talks about in this piece how there's Article 3 of the Constitution. Article 3 of the United States Constitution establishes the judicial branch, the judges, the federal judiciary in our system. But she points out that there is in Article 3 ways to exclude or remove certain items, certain jurisdictional areas that the court can rule on is basically the premise. I would, and she thinks that Congress can be able to pass legislation signed by the president

that can remove or exclude certain areas, certain jurisdictional areas like voting rights, so that the federal judiciary or the Supreme Court would not be permitted to rule on those specific areas. That's basically the premise. I think there's kind of two flaws in it, but I'm open to your view, Popak. When you really delve into the law in this area, there was a case recently, a 2016 case called Bank Markazi versus Peterson, which appeared to somewhat minimize the impact of a earlier court decision, which basically said that the separation of powers prevent Congress from, you know, doing that. And of course, going back to one of the most famous of all Supreme Court decisions, Marbury versus Madison. My favorite. That's my favorite.

Love Marbury versus Madison. It's establishing the separation of powers and the importance of separation of powers. So I do think legally Congress doing that would be infirm, unfortunately. And then I just think as a practical matter, given the layout of Congress right now, given the Joe Manchins, the cinemas from Arizona, I just don't think Democrats have the vote to structurally change the Supreme Court's jurisdiction. Yeah, I mean, I liked it as an esoteric concept. You've pointed out all of the practical flaws in it. The other one is that you don't know what's going to happen tomorrow. And if you establish the precedent and where this is coming from for those, you know, and one of the things I like about, I love many things about our listening audience, but one of the things I really like about them, and we see it in the tweets that come out the day of the episode drops, is that they don't want us to dumb so that they understand it. So you went off on appropriately on the article three of the constitution

that establishes the federal judiciary. The language that this law professor is talking about is some language in there about the ability of Congress to effectively regulate jurisdiction. And she ponders whether that allows them to, let's say they pass a bill, in this case, Senate Bill 1, which is the Voter Rights Act, the new Voter Rights Act, which if passed, will completely overturn and veto all of the individual state efforts like Texas, like Georgia and Florida at voter suppression. She questions whether they could also add language in the bill itself, in the law itself

that not only says this is the law of the land, but Supreme Court, we are stripping you of your jurisdiction to decide that this law is or is not constitutional. A, I agree with you. I don't think there's the votes for it. B, I'm worried that if we establish this precedent, that in the future, when we don't hold Congress, we're really going to be screwed as Democrats, as real and true liberals and believers in the democratic process. because it could be, you live by this, you know, you live by the sword, you die by the sword, and it could be used against

us. And Lord knows the Republicans are great at turnabout as fair play and using those very things against us. Woe be us if McConnell gets a hold of a similar precedent and uses it against us. So while I like it in concept, and I think she's probably right, there may be the ability to thread the needle and allow the Congress in certain limited circumstances to tell the Supreme Court what they can and can't do from a jurisdictional standpoint. I think it's, I think it establishes, unfortunately, a dangerous, dangerous precedent in the times that we live in. And I don't think I'm ready to cross that Rubicon. I don't disagree with you there. And so we'll put a pin in that. And we'll, of course, continue to follow Supreme Court rulings on future episodes

of Midas Touch Legal AF and continue to explain to you the dynamics that are taking place in the court. I think it's helpful to conclude the show, Popak, not by talking about lithium, which was one of the topics, whether the EPA- We're not doing lithium strip mining? We're not going to do lithium strip mining, but I think we conclude, this is an audible at the last minute. I think we conclude the shows by giving some practical legal lessons and we take a step back and help explain people see things maybe in a more simplistic way. Today, we talked about criminal cases like the individual who was using Fox mania as a criminal defense. We also talked about civil cases where somebody, a family of somebody who died is suing in civil court. Your relief is money at the end of the day as a plaintiff. Yes, there are cases

where you can get what's called an injunction, which can be to stop or to compel the other side to do something. But really, at the end of the day, civil court is money court. And when I do jury selection in civil cases, that's one of the things I want to talk to the jury about candidly. Like, are you okay with the concept that the way you're going to vote is by awarding one side money? And are you okay with that? Yeah. And before we leave civil side, just to round it out, except for places like Delaware Chancery Court, which we'll talk about on another episode, which governs corporate conduct. Our court system as compared and

contrasted to, let's say, overseas in London, other places, our judges sit as both courts of law and as courts of equity, meaning as Ben just described, as a court of law, it can, or the jury can, award money damages. It also sits as a court of equity, meaning it can do those non-monetary things to redress some injury or grievance. You can call it an injunction, a mandatory injunction to prevent something or to cause somebody to do something. So our courts are sort of unique in the world because you don't have to go knock on the door of a court of equity to get equity or another court down the street to get justice in law in money damages. The same judge, same jury system can do both equity and law in our civil system.

And so when we talk about civil cases, you may know civil cases as personal injury cases. Somebody gets injured and then they sue the party that injured him. Another type of civil case is a breach of contract case. Parties enter into a contract. One party claims the other side didn't hold up their bargain, or the other side argues that maybe the contract didn't even exist. So there's a breach of contract. You may have heard of defamation cases where one side argues that you've disparaged their reputation in a way that meets certain standards that rise to the level of what's called defamation. There are cases for wrongful death, which is kind of like a, not kind of like, it's a personal injury resulting in the

death of an individual. Now you're into torts. Now we're into torts. One of the things when we talk about personal injury is we talk about negligence, and we can talk about professional negligence, medical malpractice, legal malpractice. These are all kind of civil cases. And of course, there are also civil rights claims and civil rights actions. For both criminal and civil, we have a federal court system, and we have a state court system. And there are certain standards and certain types of cases, depending on whether the certain standards are met, that may fall under state law or may fall under federal law. I'm not going to go deeply into that now, but federal courts and state courts oftentimes do, I mean, not oftentimes, you know, do different things. Federal judges, their appointments are always for life. So the district court judge, the federal court of appeals and the Supreme Court,

unless they are impeached, have full job security. And the state court judges are either appointed or elected and serve terms, but different states have different rules regarding the length of those terms and how long judges can sit for and whether there is life tenure or not in certain states for higher elevated courts like state Supreme Courts. It gets sometimes extra confusing though, because sometimes like in New York and not to throw off our listeners, the Supreme Court is the lower court and the Court of Appeals is the higher court, which is a strange thing to think about. The state Supreme Court is the lower court in New York. But these are just names that are given in different states have different rules.

Most states, right on that, most states call their civil state court trial court a superior court. That's general. New York is unique because it likes to be really maddening and confusing. And it calls its lowest level trial court its supreme court and reserves the highest level appellate court where you take the appeal in the state, which most states call their Supreme Court. So California Supreme Court, Nevada Supreme Court, Texas Supreme Court, New York calls that the court of appeals. In civil courts, the standard generally is if you're the one suing, you have to prove your case by what's called a preponderance of evidence. So basically 51 to 49. If you break the tie, if you view it as this is one of the things we tell juries when we're giving closing statements, if you think of a scale of justice and it just tilts slightly more in favor of one party, in this case, the party

suing or the other party, then the party where that scale tilts, even if it's just so, so ever slightly. Yeah, the way we did it, Hooded Justice, continue with our nobiclature today, is the way we describe it to juries is you have a scale of literally have a scale of justice picture a scale. You have a brick on one side and equally weighted brick on the other. So a brick on one side of the scale and it tilts ever so slight. A brick on both sides and one weighs more than the other. If that evidence just slightly favors one side, that side's the winner. Now, on the criminal case, the standard, and these are criminal cases, are theft and larceny and

murder and assault and all of the typical things you would associate as crimes. And there it's up for the government to determine beyond a reasonable doubt is the standard. And you have to get a unanimous jury. If there's just one juror who finds that there could be doubt or reasonable doubt, then that would be what's called a hung jury. And you don't get a conviction as a prosecutor. Popak, you doing OK with those? Great. Hooded justice.

I almost broke our unbeaten one take streak for the podcast. I'm glad you pitched in with the whole scale and justice and all of that. Thank you. I'm sure our listeners loved having their ears coughed into by you. It just makes you it just makes you and them closer. It makes you closer. The velvet hammer is a human being that can sometimes get a coughing attack and all of that. And I thought we're just going to celebrate the fact that Hooded Justice got his second

Moderna shot today. I thought that was good. Yeah. That's why I'm dressed as Hooded Justice today, because it was a rough sleep last night with Moderna 2 yesterday afternoon. I'm coming on the other side of it now, but last night was a combination of like feeling super hot and super cold and a ton of chills. And today wasn't the easiest day, but I feel good now. You were on your way to being vaxxed and relaxed. Midas Touch merch, which I will plug Midas Touch merch to close the show. We have vaxxed and relaxed t-shirts and masks and a bunch of great Midas Touch gear. We have Club Democracy gear. Go to MidasTouch.com. Google the Midas Touch store. The Midas Touch merch is really flying off the shelves and people

love the Midas Touch merch. I got a notice that we were in the 1% of 1% of the way our store is set up of all of the other stores. I mean, people are really loving this merch and we appreciate your support. I also want to plug myself and Popak during these episodes. I like to always give as much outreach as I can to you, the listener, and let you know that we talked about those civil cases and criminal cases. My law partner and partners do criminal law. I don't do criminal law. I do civil law. I do catastrophic personal injury cases. I represent victims of sexual abuse. I've sued the Catholic church. I've sued schools. I've sued institutions, corporations for individuals who have been discriminating against or sexually

harassed or sexually abused as an area. I do large breach of contract places. I represent founders of companies who have been screwed over and don't get their percentage of equity that they were promised when these deals become very big. You can contact me, Ben at Geragos.com, B-E-N at G-E-R-A-G-O-S.com. If you or a friend have a court case or think you may have a court case, give me a shout, Ben at Geragos.com, G-E-R-A-G-O-S.com. And I will directly get in touch with you or make sure I have a lawyer reach out to hear about your potential case. Popak? You might get it too for cases that Ben and I do together. And then you get Hooded Justice and Velvet Hammer for one of your cases. So I have a very similar

practice to use some of the teachings that we did today. I've got a business tort litigation trial practice where I represent business people and others who have breached a contract or other types of business torts against each other in state and federal court and arbitration. I've got a sort of high profile employment practice where I represent individuals and management in employment related matters, including discrimination, harassment, and the like. I represent people in financial services industry, which is one of my past lives. And I represent people like Ben does in complicated,

sophisticated cases that raise national importance, including civil liberties. And that's where Zampano, Patricius, and Popak, my firm, often join forces with Garragas and Garragas and Ben Maisalis and his partners. And we do interesting and exciting things, some of which we talk about on hashtag laugh, which is, I guess, one of the new names for our podcast. Well, we always appreciate your support. Midas Touch Laugh Legal AF is not possible without you. Your comments are incredible. I wasn't feeling great today and I figured I got to go through. I got to persevere and do the podcast today.

It was very important to me to keep the consistency of the show, although a lot of people told me I should just get some sleep today. But it was great spending the day with you. It's always great to have these legal conversations. We hope you left more educated on the law than when you came in. And this is Ben Mycelis and Michael Popak from Legal AF signing off. Thank you so much for listening. Thanks, Ben.