Legal AF by MeidasTouch - Social Media v 1A, Sussmann Acquitted & Navarro faces the Grand Jury

Episode Date: June 2, 2022

The midweek edition of LegalAF x MeidasTouch, the top-rated podcast covering law and politics, is anchored by national trial attorney and strategist, Michael Popok and former prosecutor and leading criminal defense attorney Karen Friedman Agnifilo. On this week’s episode, Popok and KFA analyze and provide commentary about: 1. The Supreme Court’s surprising 5-4 decision against a Texas law that prevents social media companies from “de-platforming” for violation of “terms of service,” and from removing offensive content. 2. A federal criminal grand jury sitting in DC subpoenaing Peter Navarro--the first member of Trump’s inner most circle to testify and produce document. 3. A big loss by Trump’s “special counsel” John Durham in a federal jury trial against Democratic political powerhouse attorney Michael Sussmann Remember to subscribe to ALL the Meidas Media Podcasts: MeidasTouch: https://pod.link/1510240831 Legal AF: https://pod.link/1580828595 The PoliticsGirl Podcast: https://pod.link/1595408601 The Influence Continuum: https://pod.link/1603773245 Kremlin File: https://pod.link/1575837599 Mea Culpa with Michael Cohen: https://pod.link/1530639447 The Weekend Show: https://pod.link/1612691018 The Tony Michaels Podcast: https://pod.link/1561049560 Zoomed In: https://pod.link/1580828633 Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the midweek edition of Legal AF with your co-anchors Michael Popock and Karen Friedman at Diffalo. We're going to do three top stories today ripped from the intersection of law and politics. First, Karen and I are going to discuss the Supreme Court's recent decision this week on a five to four basis to stop a law in Texas that would have required social media platforms to put on their platform, offensive subject matter and viewpoints

that don't fit with their platforms ideals, like KKK, QAnon, gun violence and the like. So that's one good thing the Supreme Court has done in a long, long while. And we'll talk about it. Secondly, we'll talk about the case of Peter Navarro, former economist, White House advisor, and potentially someone going to jail. He's already been found and contempt by the Jan 6th committee. And now he's been brought before one of several grand juries that are in panel in the district

of Columbia by the Department of Justice to hear all things related to the attempted overthrow of this government and January 6th. And lastly, we're going to talk about the speaking of Trump. We're going to talk about John Durham, a special prosecutor who has spent millions of taxpayer dollars and wasted three years of time to put on one trial against one lawyer on one count in the District of Columbia and having lost that trial. And we'll talk about that as well. So we got three very, very interesting, supremely timely. All these things happen in the last 72 hours and Karen and I are here to break it down. Karen, are you? I'm good. How are you? I'm doing great. I sat on my back side for 17 hours straight

yesterday trying to get three federal briefs out the door for a client, which we were successful, but it definitely tested my stamina. I'm getting told for this. Can't we do full-time podcasting? Yeah, well, maybe. We'll see. Maybe. All right. Let's find out.

Exactly. Let's start with an interesting case. And an interest showing you how certain political views and views on the first amendment sometimes create strange bedfellows. I thought the same thing about this case. Because we had, you're rarely going to hear on legal AFS, ever talk about a situation where at the Supreme Court level, a liberal justice, Justice Kagan, sided with the conservatives, although she lost in a five to four decision in a case called

net choice versus Paxton. Let me set the stage for it. In September of this past year, Texas, where else, passed the law, which is known as House Bill or HB20, which required two things of social media platforms of a certain size. When you hear social media platforms of a certain size. When you hear social media platforms of a certain size, think Facebook, think Twitter. It required them to do two things. One, it's put it mildly for now, unique viewpoints.

How do you read that? That means if you're the KKK, if you're a racist, if you're QAnon, if you're a neo-Nazi, or if you want to talk about gun violence and how to perpetuate gun violence, Texas's law would require the social media platforms to have those views on those platforms. We've talked about in the past how that's a first amendment issue, but that's not a first amendment issue for the people who hold those views. That's a first amendment issue for the private companies that by the Texas law would have been required to have on their platforms video audio and other media that they don't want on their platform. It would have stopped them from taking that content down and the law would have stopped them

from what's called de-platforming, which is exactly what it sounds like. If a user violates the terms of service, Twitter and Facebook, etc. Right now, those platforms can take them off, take those abusers off the platform and cancel them. That's how Trump got removed from Twitter. So Texas and Florida tried the exact same thing, put in their HB 20, the law, a D, an anti-D platforming provision that would have stopped that. So how do we get, and then I'll turn it over to Karen about the Supreme Court? The case starts in the Western District of Texas in a federal court. That judge who sits on the more democratic side of the aisle decides that that law violates

the First Amendment rights of the social media platforms and issues and injunction to stop the enforcement or the attorney general of that state, Paxton from enforcing that law. Well, the other side, Paxtonxton didn't like that result. So we took it to, we talk about the fifth circuit all the time, the fifth circuit quarter of appeals, setting a New Orleans covering Texas. And at the fifth circuit, no surprise, Paxton and Texas get a favorable result. The fifth circuit says the trial judge was wrong and issues a stay of the injunctions. Now we're like layered on here.

Staying an injunction means that the law would be enforceable if the fifth circuit had its way. So net scape and the other social media platforms, they don't like that result. So they take an emergency appeal to the justice for the Supremes that is responsible for the Fifth Circuit. And that happens to be Justice Alito. So all Fifth Circuit emergency appeals get assigned to Justice Alito. He has two choices.

He can either make the decision himself, thumb up or thumb down whether the Fifth Circuit was right, or he can refer the issue to the full panel, the full Supreme Court for a decision. And a little bit surprisingly, Elito said, you know what, I don't want to do this myself, although I could, I'm going to turn it over to the full nine member, nine justice Supreme Court. So there was full briefing there. And a ruling came down on Thursday. That was a five to four decision by the US Supreme Court. And in favor of the original trial judge stopping the law from going into effect, meaning,

as of right now, right, the Supreme Court has sided with the social media platforms against the state of Texas and the enforcement of HB20. What did you think about all of that? And the strange bedfellows we opened this thing with Karen. Yeah, look, I'll be honest, I had to reread this about three times to even understand it because it is so complicated to try to understand that you're sort of what you're blocking and who's not what blocking and the bedfellows kept confusing me because I didn't understand how it is that it wasn't only that that Kagan sided with Alito Thomas and Gorsuch,

but the majority that ultimately ruled in favor of Google and Facebook and Meta and Instagram, that had Brett Kavanaugh, Amy Coney Barrett and Justice Roberts. So in addition to Briar and so to my art, it was just a strange, it wasn't, this didn't break down between sort of conservative and liberal lines. And it also just, I think like I said, made strange bedfellows in the sense that you would, even if it did break down that way, you would imagine that the conservatives would side

with Texas and the liberals would side with the social media companies, but it didn't break down that way at all. And I think it's just gonna be interesting to see where this goes. I don't think we've heard the end of it. I think that this is a, I think this is going to be an interesting case that's going to test what the limits of free speech are vis-à-vis the internet. Because on the one hand, you have people saying the internet is the modern day time square, where free speech and free voices need to be kind of allowed. And you

can't prevent that in this country. There's a right to free speech. And if this really is the town square of today, then I think it's going to be very difficult to keep places like Texas from passing laws that say, look, you got to allow viewpoints because think about it. It's not like they're saying meadow or Instagram or Twitter that you must create speech or say something that you don't like. What they're saying is you can't censor others free speech from saying what they want. And I think when you kind of think about the fact that there's a broad case law and statutory law out there, something called the Communications Decency Act, which is a federal law that basically

says, if you're an internet provider, you can't be held liable for things like defamation. That basically they're not that they cannot be held liable for anything, because they're not the people speaking. They're literally just the platform. I think that's going to come into play here ultimately, because they're not the speakers. They're not the ones providing content. It's not their voice.

And I do think ultimately there's a possibility that it's going to go more in the direction of this is sort of a free speech and you're infringing on others free speech by not allowing them to be in the modern day sort of public square. But we'll see, you know, it's hard to know where this is going to end up. But like I said, I had to read this several times because I didn't

understand the positions of the justices. That's why people come to legal AF so they can let us read it three times. We can explain it to them. Here's the problems that I see in the future. Kagan did not write an opinion. Alito wrote a fairly lengthy descent of about five or six pages joined by Gorsuch and Thomas. Thomas is itching to overturn and find section 230 and its provisions providing immunity from suit, civil suit to the social media platforms unconstitutional and to overturn it. He said it in past the sense.

He's just waiting for the right case and see if he has the votes to do it. So, even though this case involves the ability of a private, and let's not lose sight of the fact, I know we like to talk about, well, this has become the public square and the town square. Well, it's a private company. It's a private company. They're not even a utility unless you're going to convert them into and maybe that's where this goes. You know, even though you private companies operate our electrical grid, they operate our nuclear

power plants. They operate our water and gas lines. There is a quasi-governmental component to that because they're given a right to do that and a license to do that, if you will, and therefore utilities are sometimes analyzed under a different standard than your normal private company. If the Supreme Court is going to start viewing private social media platforms owned by shareholders owned by private citizens if Elon Musk as his because now you're forcing them against their business model, their ethos, their values, to have on their platform and be the home for the web.

Now the web then becomes, there's no more dark web and web. It's just dark web. And if that, I'm not in favor of that. Now it's interesting to see where Kagan ends up because she did not write an opinion But what have cited because of where she voted would have cited with the Texas law at least now until the full merits are Decided on briefing You know soon. This is this is not the last stop on the train for this case This is a preliminary stop subject to them deciding, the Supreme Court deciding whether

to take this case up in the next term to decide issues like the application of Section 230, whether Internet, social media providers and platforms are the equivalent of utilities and therefore can be regulated in a certain way, the regular private platforms can't be. I hope they don't take it to that extreme because I don't want to be on, frankly, on Facebook or Twitter or YouTube or the rest of them, if they're also going to be the home for, not just divergent viewpoints, dangerous and city-est few points. I don't want the kid that walked into youvaldy to have the ability to not just go into the dark web to find information about how New Zealand's mass

killing happened and which weapon he should use and how to assemble or disassemble his weapon. I'd rather him find that in the hinterlands, the dark corner of the web, and not be able to go click on YouTube to find it because YouTube has decided to take that kind of information down. I know it's first amendment issues, but as long as the private companies, I seriously do not have a problem with it. We're going to follow this. We're going to follow this more. Let's move on into the January 6th overthrow of the country, which is in all the news. We've been following it for over a year. And now we've got Peter Navarro, who everybody knows because he loves being on all the Sunday morning shows and all the, and all the news, Max's and Fox news is he, he was by training before he sort of went, you know, round the bend. He was an economist and Harvard

trained economist had been a Democrat earlier in his career, became a Republican and then a die hard Trumper. Trump brings him into the White House as an advisor, even gives him the some major economic levers that the White House does in charge of puts Peter Navarro in charge of that. I saw Peter Navarro commenting about COVID as an economist and giving medical advice on television. He's basically a shill to do what that did, whatever Trump asked him to do. And the Gen 6 committee asked him a year ago, almost a year ago, to come before the committee and give testimony. He refused. He was found in contempt by the House.

It was referred to the Department of Justice, U.S. Attorney's Office in the District of Columbia, where it currently sits. In the interim, we now learn from Peter DeVaro himself, who yesterday filed a lawsuit, this sounds familiar, against the Department of Justice, the US Attorney's Office, the District of Columbia, Nancy Pelosi and the Jan 6th Committee, claiming what else that the Jan 6th Committee is a hoax that it has no power, that it is invalid,

the subpoenas against him, and to have the whole investigation against him thrown out. that it has no power that it is invalid. The subpoenas against him and to have the whole investigation against him thrown out where if we heard that before, Trump tried the exact same thing and lost last week in the Northern District of New York in front of Judge Sain, Sanis or Sainz. So this is right out of that playbook. Why does it matter?

Because we learned something new from Navarro, who's now been, according to him, had the two FBI agents knock on his door over the long weekend and serve him with a grand jury subpoena, criminal grand jury subpoena, for the District of Columbia. What did we learn that was new in this new information? Well, he says that it's a different grand jury than other grand juries that we know the Department

of Justice has going into the January 6th, January 6th, insurrection. You know, don't forget there's a grand jury that's been bringing cases against, I think, 800 different insurrectionists that people sort of going into the capital. There's also a grand jury that has been circling around and issuing subpoenas circling around the lawyers, like Rudy Giuliani. And now we've got what he says is a different grand jury here. So what does that mean? What is that? When we talk about it as lay people or on the street or at a cocktail party, we say, Oh, the grand jury. Grand jury is issuing subpoenas. How about a matter that's so complex that it requires multiple grand juries? What does that tell you as former prosecutor? Well, there's just a lot of moving parts really. So there's two different

kinds of grand juries. There's the regular grand jury that sits and here's regular cases and they usually sit for a period of time, maybe for a month, and they sit either on every morning, five days a week or every afternoon, whatever it is, there's a set period of time and they hear just kind of whatever comes in, whether it's a gun case or drug case, whatever. But then sometimes if a prosecutor has a matter

that they think is gonna be a long-term investigation, where they, it's going to be complicated, they want to issue lots of subpoenas, and it's going to take more than that one sort of month period of time to be doing this. They will in panel what's known and what's called a special grand jury. And the special grand jury is usually, you ask permission from a court to create this grand jury, and they sit for a period of time, sometimes six months, sometimes longer. And that special grand jury is in panel to hear a particular special case. And what this tells me is that is, there is potentially a special grand jury here. But of course, this is just from the words of Navarro. there's potentially a special grand jury here.

But of course, this is just from the words of Navarro. So I don't know that that has been in panel to hear this particular matter and this particular case. And Navarro here is claiming executive privilege and only Trump can decide whether or not he can testify and whether he has to comply with this. As you said, we've sort of heard this speech before. And, you know, Navarro is, we know he was held, he was found in contempt of Congress,

and Congress referred that to the Department of Justice, which is an appropriate referral, an appropriate criminal referral, and the Department of Justice is looking into that, and looking into whether to hold him in contempt, and he's arguing executive privilege here. So, Peter Navarro is a very interesting cat. First of all, he's going to be representing himself in the lawsuit that he's got. Yeah, I saw that. We call that pro-say, I call that insane. He says he's qualified to do that because he's written for some law, law, law articles.

He's written in the past. That's apparently in his mic, qualifies him to, to litigate as a first chair trial lawyer a federal case that he's brought. Even if he's the best trial lawyer, there is, you know, what they say about doctors, right? I mean, or lawyers who have the, who represent themselves, they have a fool for a client. I'm self-exactly. It's just right. So, so he, so that's, so that's one. Secondly, he's got a, because he didn't go to law school and he's never tried to. He's got a, he's not tethered to reality

or he doesn't let facts and law get the way of an argument. So he says things like Trump alone holds the executive privilege, not Biden, and only Trump can release me. So the prosecutor in DC should be negotiating with Trump about my appearance. That's not how executive privilege works. We've got a body of case law and about five other cases in the last year that have said that that have confirmed that the current sitting president holds the executive privilege. And that executive privilege has been waived by the current sitting president.

And it's not a floating privilege that goes out the door on Jen, you know, the day after the new president has sworn in that goes out the door with the ex president who gets to hold executive privilege. It's not like attorney client privilege. Attorney client privilege I sort of get if Navara was an attorney, but he's an economist. So there's no economist president privilege that he can assert. So he's left with the executive privilege. The executive privilege is kind of transitory. If you're in office, you get to have it. If you're out of office, you don't have it anymore. That's what all that, that's the boil down of that. So he's wrong on that. Secondly, he keeps using this phrase, which, which burns my ass because he, you know, he

got it from like television, but he keeps using it constantly and his press releases. And in his, in his media tax, he says, um, this new subpoena from the Grand Jury is just the continuation of the one from Gen 6 committee, and that's fruit of the poisonous tree. All right, so why don't you explain to our listeners and followers what is the fruit of the poisonous tree doctrine, and then I'll explain why this isn't it. So the fruit of the poisonous tree doctrine means that you can't, if you illegally do something as law enforcement, you can't then continue that illegality. It continues on if the tree itself is poisoned. So, for example, if you knock down someone's door without a search warrant and you were supposed to have a search warrant and you go in but let's say you find

something illegal in there You would argue it's fruit of the poison is tree because you weren't allowed in there in the in the first place Yeah, everything that comes off the illegal act Is going to be suppressed and not ultimately brought into evidence, even though that individual piece of evidence might have been sort of lawfully obtained, if it came off the root or the trunk of a poisonous act, that's the fruit of the poisonous tree, right? So for him, I guess, the fruit of the poisonous tree is the... Yeah, what's the poisonous tree here? Oh, he thinks the Gen 6 committee is illegal.

He thinks it's invalid, illegal and rogue, and they don't have the power. And there's only been about 10, 10 different cases, including at the Supreme Court level that says that they have valid powers. You may not like their powers, but they have valid powers and a valid policy reason to exist. And so for him, it all comes back to that. Why is why do we even give a crap about Peter Navarro, this sort of wacky, you know, absent-minded professor type because just to remind everyone in case they didn't know it, he was an architect of the fake elector scandal. He was the architect of trying to use, along with John Eastman, Mike Pence to overthrow the election to overthrow

this government. He created what he's referred to in a book, I guess, a vanity press book he published himself as the Green Bay sweep, which would have been led by a quarterback. It's a football term. In this case, Mike Pence. So it all kind of was Mike Pence is going to working with these state legislatures are going to overturn the will of the people because they're not going to send the appropriate electors

and the vote counting that needed to happen on on on Jan 6th to to Washington. And so this was Navarro's, you know, monkey wrench against the machine of democracy that he was one of the leaders of. And also, you know, one of the crazies that Trump surrounded himself with in his little kitchen cabinet of crazies to bolster Trump's position in his own thought process that there was a fraud in the election, that the election can be overturned, that you don't have to let the popular vote or the electoral vote even matter. You just let these crazies at the, you find other crazies at the state level, and you all join together.

And suddenly Trump gets to stay in office. This is, this is the group of people that Trump surrounded himself with. He had lawyers that told him all this and blew that, all that smoke up his ass. He had advisors. And why does this Department of Justice, this is a matter because it's one of the first ones. Department of Justice, Sipina matter because it's one of the first ones actually the first one for somebody in the inner inner circle The most inner circle of Trump in the White House who has gotten a criminal Sipina to go sit in a chair in front of a federal prosecutor You know and a grand jury and testify now. Here's the question

Can he take the fifth when he's asked to testify about his role in January 6th? And if he can, what is the implication of that? I mean, this is really this whole entire grand jury subpoena has to do with his contempt of Congress. It has to do with whether he has to give testimony before Congress, right? And whether I'm not sure it's, I don't think it's linked. I don't think it's only that. Because they, they indicted Bannon without a grand jury. I think, I thought they did an information. Maybe they did a grand jury, but they didn't have Bannon testify at his own grand jury before the end of the day.

Right. Because he can take the fifth look., he can take the fifth on both of those. Yeah, absolutely. In state court, for example, if you testify, you automatically get immunity in New York state court, I should say you get immunity, that's not the case here in federal court. So yes, he can absolutely take the fifth. So that's what he's gonna do.

He's gonna go there, they have asked him to, all communications with Donald Trump. That's interesting. And also other documents related to his role in this green base sweep architecture. And I'm sure he won't bring documents. And I'm sure he will take the fifth in some way. Well, the fifth only applies to his testimony. It doesn't apply to him having to produce documents. So this is a dual subpoena. It's both a personal appearance subpoena as well as a subpoena just as tech and which is Latin for, you know, produce, you have to produce certain documents, including communications here. Yeah, you're right. Sometimes the documents are found to be testimonial and the fifth does apply, but generally you're right. The documents are not found to be testimonial and the fifth does apply. But generally, you're right, the documents are not going to be found to be, um, the documents are going to have to be provided.

And if, and what, what happens if, let's talk about it? He doesn't, he shows up empty handed, hat in hand. Okay. I'm taking the fifth to most questions. The jury, the grand jury will do what it does. It will probably indict him. Um, and he, and he doesn't bring any documents. What is the next step then for the prosecutor

and the judge overseeing the grand jury? Yeah, so you go to the prosecutor, we'll go to the judge and bring a motion to compel. And the judge will order him to produce certain documents or not, but if the judge does order, then they'll litigate the motion to compel. And ultimately, a judge will order him to produce whatever the judge deems

is relevant and appropriate. And if he doesn't, then he will be held in contempt of not just of Congress, but of court. And that's a whole different ball game, you know, and there's, there's, as we've discussed in prior legal, legal a, legal a, you know, there's two different kinds of contempt, right? There's civil and then there's criminal and civil contempt is to try to require the person to, to bring the documents and to try to require

compliance with the subpoena and criminal contempt is you just aren't listening and so I'm putting you in jail. So there's different avenues that are available to the court and to the prosecutor, but this is going to continue and we'll see how it goes. We're going to have to build a whole new wing at the Federal Detention Center for all of these Trump accolades and nutbags because all of them think going to jail, apparently, in the name of this cause is a good thing. And they're all gonna be cellmates and orange

or whatever the current color of jumpsuits and cell detention said blue, whatever it is. And he better bring us toothbrush because he's gonna be going with federal marshals if he does not ultimately produce the documents that are required. The federal grand jury and prosecutors are no joke and nothing to and nothing to play with. And if you think Benny Thompson and Jamie Raskin and the rest, you can just sort of thumb your nose at them and flout their authority. Try that at the federal grand jury and prosecutorial level.

You know, and good luck. Let's move on. Speaking of prosecutors, this is what a special prosecutor. Let's move on to what happened with the former US attorney for Connecticut, John Durham, we'll add a little bit of experience with. I'm not shocked that he lost his only jury trial. And I'll tell that story as we move forward. John Durham was chosen in 2019, the beginning of 2019 by then, Attorney General Barr, to conduct an investigation.

He was not yet appointed a special prosecutor. He still worked as a prosecutor under William Barr. So he didn't have the special powers and special job security that comes with being a special counsel. So for a full 17 months, he just ran around trying to figure out whether the Russia Trump connection was a hoax or not.

And of course, that's what Trump wanted Barr to do. And that's what Barr wanted Durham to do. And that's what Bar wanted Durham to do. So he appointed this guy, came out of whatever retirement as a former prosecutor to take the job. He runs around for like 15 months. And now we're coming close to the election. Meaning if Trump loses and Durham was not appointed a special prosecutor, what used to be called an independent council by all with or under under the statute that provides for that.

Like Mueller. Like Mueller. He could get removed by the new president. So Barr wanting to stop that suddenly elevated John Durham who hadn done diddly for 16 months into a special prosecutor, special counsel, and with all new powers. And as I said, job security, to investigate whether the FBI led investigation under, you know, really started with Obama at the end of Obama against Trump was an improper use of the FBI resources and improper investigation and all of that. Here's the problem that Barrow always had

and Durham did too and Durham made the devil's bargain of becoming special special counsel. There is an office of inspector general for every department of the of the US government and a state government and the inspector general which is supposed to be an independent watchdog for that agency, in this case, the FBI did a 500 page investigative report that cleared the FBI of any wrongdoing related to how they conducted their investigation of the FBI Trump link. That was he was already clear. They're they're cleared the whole department. Barton liked the report. So he shit on it. And he had Durham before he became special prosecutor,

crap on the report as well. Why? Because you know, Durham's about to be a point at special prosecutor to go find that there was an improper investigation by the FBI. I didn't need this office of Inspector General report out there that said there wasn't. So they turned and fired on this poor, independent civil servant inspector general. It was only doing his job and clearing the FBI. Why is all this matter? Because Durham now special counsel has to justify millions of dollars of resources and taxpayer dollars spent for a one trial on one count against one attorney of no less Michael Sussman in in the district of Columbia.

And what is the one count? It's that Michael Sussman who was a very well known and well, well considered and with a very high reputation, good reputation as sort of the lawyer for all political parties and democratic political parties. I got a thing. He went in to the FBI and met with a friend, literally a friend. It was a friend. The friend happened to be the general counsel for the FBI. And he says, I got a tip. I got a tip. You might read it in the paper sooner rather than later. I don't want you to be surprised. But there's a link I want to talk to you about. And the counsel is named happen to be Jim Baker, not that Jim Baker, another Jim Baker. So sure, Michael, come on in. Let's have a chat about whatever

you want to talk about. So Michael Susman leaves his law firm in Washington, travels down the street and goes and meets with Jim Baker and lays out for Jim Baker a case about a link between a bank in Russia, a Moscow bank name Alpha Bank and the Trump organization that there seems to be some computer traffic going on back and forth between this bank, which is linked to Putin and Donald Trump. And the FBI is already doing their investigation about Trump and Russia links to begin with in 2016. Now, everybody knows the Michael Susman represents some very high profile and powerful political figures. At the time he went to go meet the general counsel.

Everybody knows in Washington, on K Street, and then all the other alphabet streets, the Michael Susman and Perkins Co-ewardy works, represent Clintons, represent Democratic Party, and other people like that. And he also represents other. He has a client base. He represents a lot of different people.

This is not a shock that he represented them. The question was, was he representing the Clinton foundation or the Clinton organization, the Clinton campaign and the Democratic Party? What he went and had a meeting with his buddy, the general counsel for the FBI and he gave him the tip because he's allowed to give tips. The quality of the tip was not the prosecution.

The prosecution was that the allegation that Michael Sussman lied, lied under, not even under oath, he lied because he didn't tell the FBI General Council that he was there on behalf of a client. And Michael Sussman said, I wasn't there on behalf of a client. And Michael Susman said, I wasn't there on behalf of a client. I was there as citizen Susman to prevent, to present a tip to him, not, I didn't, not because I was working for any, any particular person. John Durham, who has supposed to have prosecutorial discretion, he listened to the facts in this case and said, I'm going to bring this to a jury trial. He listened to the facts in this case and said, I'm going to bring this to a jury trial. Really?

Okay. So they literally took this poor man, took his reputation and ripped it to shreds, right? Cause they don't care. And prosecuted him for lying to his friend, the general counsel. And then there was a jury in what happened there, Karen. They acquitted it in what six hours. I mean, this is the case. Over two days. Yeah, this case was a nothing at what happened there, Karen. They equated it in what six hours. I mean, this is the case.

The over two days. Yeah, this case is a nothing burger from the start. I mean, you know, it's, as you said, it's, you can't, it wasn't a lie under oath, but you, you still can't lie to the FBI, but it also has to be material for it to be criminal. Material means it has to be important, right? It has to be something important.

It's not the kind of lie of, you know, do I look, does this dress make me look fat? You know, it's not that kind of a lie. It's the kind of lie that it really matters. And I think this really kind of fails the materiality test for two reasons. Number one, you know, anybody who is, has ever worked with the FBI knows that the FBI looks at every tip with skepticism.

I mean, everybody has a motive, right? There's always a reason someone's coming in. And so they never just sort of take what someone says and they don't test it and they don't look at it. So the idea that they would not have looked at this skeptically, that this was material, this omission of who he was representing, it almost doesn't matter. And a really simple Google search would show you who this guy's clients are and who Susman's clients are and who he represents. He wasn't just, this isn't some lawyer who represented some client that no one's ever heard of and it turns out that's where it's coming from.

He represented Hillary Clinton and the, you know, Democratic National Committee. I mean, this was the go-to lawyer. Of course, he has, he's always going to be viewed as somebody who's coming with that, with that sort of potential bias or bent, you know. So, for him to then come, you know, and it's also possible that he had two motives. You know, maybe it was partly because he cares about Hillary Clinton and the Democrats winning, and that he also cared just to give them a tip, because he's a concerned citizen. I mean, so to me, this never passed the lie or materiality test. You would never have prosecuted this case. I just, I would never have prosecuted this case. It never made any sense that this was going forward. the lie or materiality test. You would never have prosecuted this case. I would never have prosecuted this case.

It never made any sense that this was going forward except for what you said, that this is clearly John Durham trying to justify his existence. I mean, this was such a humiliation, I think, for that special prosecutor and for that investigation. Because I think there was three cases that have come out of this. one that he's taking credit for

that apparently didn't even come out of his investigation that pled guilty. And then this one that is now his big huge trial, that's a smackdown acquittal. Yeah, I liked what you said. I thought it was very, very good inside knowledge about the FBI, always having a John Dysfew whenever they get a tip about the agenda of the person that's

providing it to them. I mean, unless the Pope calls them, but even the Pope has an agenda. When they make a phone call, not to equate Michael Sussman with the Pope at all. Any investor, but any investigator, that's what you do. You kick the tires, you test it, you corroborate it, you find out, is there something there? What killed the trial for the prosecution, apparently from my review, is that Baker, which should have been their key witness, because he was the person to whom the tip was made. He is the person upon which the entire one count prosecution is premised.

His testimony was not great for the prosecution. First of all, his memory apparently is terrible. Listen, I'm pushing whatever. But he said, I can't recall 116 times on the stand. That doesn't give a jury a big feeling of credibility necessarily that, oh, the hundreds, you can't remember 116 things, but the thing you remember really clearly is this one. And even on the thing that he was supposed to remember, really, really clearly, he actually

helped Michael Susman because he said that Michael Susman also gave him, this is a little bit troubling from a media, first amendment, confidential sources standpoint, but apparently Michael Susman also told the general counsel of the FBI, which reporter, which news reporter was going to run a story about this link between alpha

bank and Trump and citizen assessment. The patriot didn't want the story to run necessarily if it was going to interfere with the investigation by the FBI because a lot of times as you know, Karen, the investigators and the FBI don't want the reporters running around out there at the start, especially at the start of an investigation. And the general council said, thank you very much. And partly said, thank you very much. And actually was able to reach the reporter and kill the story. Why is that important? It goes back to your dual motive observation. The Clinton campaign wanted the story to run in real time in the newspaper because that would have been their October surprise in 2016 that Hillary could have used on the campaign trail against Trump.

So, Jaram, if he's, I'm sorry, uh, assessment, if he's working for Hillary, if that was the theory, he did the opposite of what was right for the campaign because he actually had the story killed. Hillary probably wanted to kill Susman when she found out about that. I wanted that story to get out. It's exactly the thing that would have helped me.

But instead, Susman said, hey, listen, I'm going to give you a heads up so that the FBI doesn't get interfered with by the media. Go call this reporter and kill the get interfered with by the media. Go call this reporter and kill the story. That's not the actions. I assume the jury concluded of a man or a person or a lawyer who's secretly working on behalf of an undisclosed client because it's not in their interest.

The jury, including the jury for person who was interviewed on the way out, was very un, let's just put it this way, it was very unkind to Mr. Durham and his team in saying what a waste of time and money was this prosecution. I know there's all these people in the Twitter verse because I've seen it that have said, I'm reading the transcripts every day, I can't believe the jury didn't convict, they're usually on the Republican side. Of course, Fox News, the New York Post ran a editorial, I don't know who writes the editorials for the New York Post about how corrupt the jury was because the judge allowed one person from 10 years ago donated to the Clinton campaign to serve on the jury. No, you're only supposed to have a jury of Republicans.

I mean, this thought process and now the talking point at Fox, which is a, a democratic, a, a Clinton leaning jury today, not surprisingly found against John Durham's very strong case. I got bad news for them. Durham is notorious for having had poor prosecutorial discretion. I was involved with a case that will remain nameless, in which John Durham in his office thought they would make new law in the area of, inside, I'll say, insider trading for now. And they went down in flames in front of the jury. So it's not surprise me that John Durham

didn't know which battle to pick and decided to bring this case three days before the statute of limitations, the five year statute of limitations was about to run. It's like, can you imagine the mad scramble in the prosecutor's office? Like, how do files, what are we, God, anything, seismic, go, go, indict Sussman. They go to a grand jury, no less, because as we got? Anything? Suspension go, go indict Susman.

They go to a grand jury no less. Because as we've joked in the past, you could get a grand jury to indict a ham sandwich and they got an indictment, great. And then, you know, and now Michael Susman, who's in his 60s has to kind of resurrect his entire career because, you know, for the last year, he's been pilloried in the press.

It's unfair to him. It's unfair to the taxpayer. It's unfair to the court system. And it couldn't have happened to a nicer prosecutor for John Turum. Yeah, the thing is I read a quote that is similar to something we've said many, many times on the show, which was politics is no substitute for evidence and politics has no place in our system of justice. And I very much agree with that sentiment and that quote. And that's what's great about our jury system is no matter what the political motives are

of people doing whatever they're doing, at least the jury system has to keep you honest because at the end of the day, it's really evidence that controls and it's the jury of your peers that will decide, you are a fate. I just hope this type of prosecution or persecution, it's really a political persecution.

I just hope this doesn't chill other people who wanna come forward and give tips to the FBI because our national security depends on that. It depends on people who come across and stumble across stuff that really could jeopardize national security. And frankly, if Donald Trump was having secret conversations with, you know, a Putin bank, that clearly

would have national security implications. So, you know, he came forward, I think, as a well-meaning, concerned person who may have come across it because of who he represented. But I don't think that was his motive. And I hope this doesn't, I hope this doesn't chill future tipsters to come forward, because I do think that that would be a shame. That's why I love the midweek edition of legal AF because especially when I see a lineup filled with criminal cases, criminal political cases, I know we're going to get that kind of nuanced analysis and observations. And it comes from 20 years of being a prosecutor in the Manhattan DA's office.

So thank you for bringing that forward. 30 years. How many years? 30. Did I listen? I'm your buddy and your anchor. 20 plus. 20 plus years of the prosecutors.

I'm not trying to under my, I'm 30 plus in private. No, I think I appreciate that you don't want to out me in my age But it's like popoq looks like her father. How can they be close in age? I don't know. I mean, I just you know, I grew the beard after the pandemic and everybody thinks I'm I always wanted to have you know what I was younger and I used to try cases Um, I go against people with more gray hair than me. And I'd be like, God, I wish I just had a little bit more gray hair because it'll give me that kind of gravitas in front of the jury or the judge. Now I got more than I need. I'm happy to share. I do want to say

speaking of my father, he watches the show every week and he's a huge fan of of this show. So hi, dad. Yeah. And happy Father's Day. It early to all the fathers and people that are, you know, close to their families and and and and bring that kind of leadership and fatherhood to their families. That's really, really important at this time of the year. We've reached the end of legal a F will will come back next week, shout out to the mightest mighty and the legal a Fors signing off Michael Popok and Karen Friedman Agniphala.