Legal AF by MeidasTouch - Appeals Court CALLS SOS Hearing after Trump FILING

Episode Date: September 9, 2024

In a new order, the Second Circuit Court of Appeals has set an emergency hearing and assigned a new 3 judge panel to decide whether Trump gets to drag his state court criminal conviction to federal court or whether Judge Hellerstein telling Trump to stay on state court was right all along. Michael Popok who practices regularly before the 2nd Circuit breaks down the intersection of state and federal court and appeals and explains what’s likely to happen next. Head to https://ProlonLife.com/LEGALAF to get 15% off their 5-day nutrition program. Visit https://meidastouch.com for more! Join the Legal AF Patreon: https://Patreon.com/LegalAF Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af MissTrial: https://meidasnews.com/tag/miss-trial The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Coalition of the Sane: https://meidasnews.com/tag/coalition-of-the-sane Learn more about your ad choices. Visit megaphone.fm/adchoices

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Let me catch you up on what's going on with Donald Trump his sentencing in New York and his attempt to remove the case to federal Court and get the Second Circuit Court of Appeals involved I'm gonna mesh the two things together The Second Circuit Court of Appeals just made a decision about which panel of the three-judge panel is going to make a decision ultimately about whether Donald Trump's case stays or goes from state or federal court. I'm going to talk about that in a minute. There is still a motion for administrative or other stay of Judge Hellerstein's decision to not allow the case to be removed, to keep the case in state court. At the same time, the other wheel of justice that's spinning is

you've got the state court judge responsible for the sentencing of Donald Trump and to enter the judgment against Donald Trump since he was convicted of his 34-account felony convictions by a 12-0 vote of a jury in state court in New York. You got the state court judge saying, you know what, for right now, with everything that's going on and the election so near and the immunity decision that I still have to render, I'm going to take the pressure off everybody. I'm not going to sentence until after the election.

Now, I'll do a separate hot take on that. We'll pick it up with Legal AF on Saturday. I had thought that he would at least sentence, let the American people know what the results are before they go to the polls, and then stay the sentence, stop the sentence from going forward, not have Donald Trump report for incarceration, in other words, and then allow him to take the appeal. But nope, Judge Mershon, I don't know if it's because he's been so abused by Donald Trump for the last year and a half, but has decided that the discretion is the better part of valor

and that he's going to stay it. That doesn't mean the issues related to stay and removal, which sounds similar, but are different in federal court, are over. They're not. So let me dive into the federal side. I'll touch on the state side and I promise I will wrap it all together before this hot take is over. Okay. Let's start with why we're in federal court and where we are in federal court. Donald Trump has been trying to hijack the case, take it away from the state court

judge for the last two years. And in his last ditch effort to avoid sentencing and to try to get a lateral pass and take it out of state court over to federal court so that he has a direct shot to the United States Supreme Court on the federal side. For those that are following at home, we've got two systems of justice in this country, and sometimes they overlap. One's our state court system, one's our federal court system. Both have criminal cases, both have civil cases. It just depends on if you have an ability, a ticket, to get into which courtroom, which courthouse. Donald Trump has been prosecuted for state crime

by a state prosecutor in state court. That's what happens 99% of the time. In rare occasions, you may have the grounds to take your case before you've been convicted over to federal court. Donald Trump tried that, It failed. His appeal was dismissed by him over a year ago. His major argument is, I was a federal officer. I was employee badge number one for the federal government as the president of the United States at the time.

And everything I did related to Stormy Daniels and the hush money bribery, election interference, cover-up through Michael Cohen, trying not to talk in shorthand here, was all part of my job description. It was all part of my color of my federal office. And therefore I am entitled to federal officer removal, which is a provision of the statutes that allow for in unique, narrow circumstances,

former or current federal officers that take their case over to federal court. Usually that's done before you're arraigned, before you're convicted, and certainly before your sentence, but not in Donald Trump's case. So he tried it at the last minute. Judge Hellerstein, the senior judge assigned to the matter for the Southern District of New York, sitting in Manhattan, was having none of it. We've already reported on the Midas Touch Network. I've done hot takes. We've done mid-week additions of Legal AF on this. The Judge Hellerstein took literally one look at the papers and said at first, totally procedurally wrong. You need to ask my permission under the statute if you're going to file so late a notice of removal,

because the notice of removal is late. You had to have done it before you were arraigned in criminal court and certainly before conviction and you're late Therefore you got to ask my permission pretty please and he denied it They filed the motion asking for pretty please permission and Judge Hellerstein said no summary summary denial I don't even he didn't even it was so Poorly drafted by Donald Trump's lawyers that Judge Hellerstein didn't even need the Manhattan DA to weigh in. I don't even need your brief, stay right there. I got this, we don't need an evidentiary hearing.

I did that already a year ago. And for the same reasons, on the same grounds, with no new information and no new good faith reason, I am denying the motion to let you file a notice of removal. Now why is all this fighting about removal? Because that piece of paper in my world is very powerful. It has superpowers. It divests the jurisdiction of the state court judge at the time that it's filed, except under certain circumstances, and vests it in the federal judge,

or at least they have concurrent jurisdiction at the same time, which is not a great place to be if you're the prosecutor trying to defend your conviction. The judge says, it's like a hot potato. I don't want jurisdiction. Back to Judge Mershon, the judge who's waiting patiently to sentence Donald Trump, we thought on the 18th of September, but now we learned earlier before this hot take that the Judge Mershon is going to put a pin in it and he's going to postpone the sentencing until after November 5th. Okay. That doesn't mean the removal issue is over because Donald Trump doesn't just want to get out from under sentencing. He wants to try to get out from under the whole conviction, and he wants to do that argument in front of a federal judge, a federal appellate court, and then the United States Supreme Court. That's why he wants to jump the tracks,

jump the rails, and get over to federal court. This is how he's doing it. Did it wrong the first time. Filed a notice of removal that was invalid and dead on arrival. Filed a motion to file a notice of removal and that was denied by the federal judge for effectively the second time. He took an appeal to the Second Circuit Court of Appeals, which sits in Manhattan over all things federal and New York. At the same time, asked for a stay, two types of stay, an administrative stay, meaning a temporary administrative stay for a very short period of time to give all the parties time to brief it and all that because he just wants to delay, delay, delay. Then he asked for a broader stay because he's arguing to the appellate court that Judge Hellerstein is wrong, that Judge Hellerstein is wrong, the trial judge. And now the Second Circuit has kind of woken up, I guess, having figured out that Judge Murchon

has taken the heat off of everybody by postponing the sentencing. The issue of whether this matter right now belongs in federal court is for the federal courts to decide. And that's still up for grabs. We now have a new panel, three judge panel of the second circuit that's been assigned to this case. And they're gonna take it up at least at an initial status conference or hearing on the 10th of September.

Put it down on your calendar, circle it in red ink. We will follow it here and cover it here. And if there's an oral argument, we will get audio recordings of it here on the Midas Touch Network and on Legal AF. Forget everything you know about fasting. Prolon by El Nutra is the only patented fasting mimicking diet that combines the benefits

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were trying to get Donald Trump's tax returns for obvious reasons. Let's put a pin in that. She's going to be the presiding judge though because she's the chief judge of the Second Circuit randomly assigned to this case, but she's going to take on some fire because she's got two Democratic appointed judges and wait till you hear who they are. One of them is Myrna Perez. Myrna Perez was a Biden appointee. She was never a judge. Sometimes at the appellate court, you'd think they'd come up from the trial court level, sometimes they don't. Sometimes they come from private practice or public service. Myrna Perez was the director of voting rights, the Voting Rights Institute at the Brennan Center for Justice. That's named after one of the justices of the Supreme Court, Brennan, William Brennan. And this is a democratic progressive organization

for which she was the director of a voting rights project. In fact, she wrote an article that she had to defend herself during the Senate confirmation in which the article's premise was that the GOP, the Republicans, are making elections less free. So you see where her mind is at. It was a tough fight to get her approved. Chuck Schumer got her through and got her confirmed and she is on the Second Circuit and that is Judge Perez. The third one is Allison Nathan. Now, Allison Nathan is only the second openly gay federal judge in America. Allison Nathan was an Obama appointee, but more important for what I'm about to analyze is that she was the

special assistant to President Obama and she was an associate White House counsel for President Obama. So she knows a thing or two about presidents, White House, and how things operate. So you got Allison Nathan, who just by dint of her reputation, her experience, and her body of work I think this panel is going to look to for a lot of the White House presidential issues on federal officer, federal color of law argument. You've got Myrna Perez in the middle, who's a progressive Democrat who used to head up voting rights projects for the Brennan Center. And then you've got the outlier, which is the chief judge of the Second Circuit, Deborah Ann Livingston, who in her dissent, argued that Donald Trump should not be forced to turn over his tax returns to the House unless there was more information obtained at the trial court level. She was concerned that there wasn't

a sufficient separation of powers argument that was analyzed and she thought that they were all going to get in trouble with the United States Supreme Court if that case was taken up on appeal. She wasn't exactly right on that, but you can see where her mindset is at. Livingston versus Perez versus Nathan is kind of the sub story here when they take up this case on the 10th of September having been assigned it randomly at the Second Circuit. What's the issue that's before them? The issue is going to be whether there should, I think it's two issues, whether there should be an administrative stay. We call, you know, there's a merits panel and then there is a sort of this other kind of

panel. A merits panel gets to the merits of the removal argument. This panel looks to me like they're gonna be doing the stay and whether there should be an administrative stay for more briefing for the merits panel to ultimately hear and adjudicate the whole thing. Although they may decide that it's so intertwined the two issues of whether Donald Trump is entitled to a stay of the order by Judge Hellerstein, sending the case directly back to Judge Morchand for sentencing.

They may say, you know what, we'll be the merits panel and they'll sort of combine the two things. We'll know more on the 10th. But I think the panel makeup is not ultimately great for Donald Trump. I think this is a fair panel, an impartial panel, a judicious panel, a hardworking panel, but it doesn't necessarily mean it's going to lean in Donald Trump's favor. And I could easily see just because Deborah Ann Livingston once did Donald Trump a solid, this could go 2-1 against Donald Trump. The question for me is whether they're going to be the merits panel or they're only going to be the stay administrative panel. We're going to know more on the 10th of September. We're going to be the merits panel or they're only going to be the stay administrative panel. We're going to know more on the 10th of September. We're going to report back on that. We've had a lot of news this week. So tune into Legal AF. Find out what 40 million people a month

already know that we're the home in place for that crossroads of law and politics. And we analyze it and cover it just like this. Lot to cover this week. We've got Judge Chutkin, who looked the lawyers and Donald Trump in the eye and said, I don't care that he's the candidate for presidency or the presidential election calendar. He's a defendant, a criminal defendant in a four count felony count criminal conviction. And I'm going to do a fast paced docket, a briefing to hear why this case shouldn't go to trial and immunity and how we get the immunity issue that's already been decided once by the Supreme Court back to the Supreme Court if necessary on an

expedited basis. Sort of matches some prior analysis that I had done on another hot take. We had that going on. Then you've got what's happening in New York with Judge Murchon saying, I don't know, uncle, I'm going to postpone the sentencing rather than sentence you, sentence you and then adjudicate or stay the issue, allow for an appeal. I'm just going to stay it. Not a total surprise, frankly, because the Manhattan DA's office took no position. If the Manhattan DA's office said, no, sentence him, judge, you know what to do. You have to sentence him. Might've been a different story, but the Manhattan DA for its own political reasons decided to stay neutral and agnostic, let the judge make his own decision. So he had no pressure from the prosecutor. He has the law

that requires him to judiciously and expeditiously sentence somebody who's been convicted. He got the defendant who's saying, don't sentence me right now. I'm running for president. And so at the end, and he's got a second circuit argument about whether they're going to stay what he's about to do. So he said, you know what? I'm going to stay it on my own. Now you've got a full understanding of what happened at the federal level, what happened at the state level, how the trial courts intersect and intervene, how the appellate courts get

involved and the end result and what we have to look forward to on the 10th of September with this three-judge panel of the Second Circuit, which we will follow. Legal AF, Wednesdays and Saturdays at 8 p.m. Eastern Time. Can you see that? That's our album cover. Tune in. Join us. You can watch us live record and then we do live chat like the anchors get on and do live chat. That's fun. And you can pick us up wherever you get your audio podcast from. Just look for that album cover Legal AF and there will be. So until my next hot take, until my next Legal AF, this is Michael Popak reporting.

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