Legal AF by MeidasTouch - Top Legal Experts REACT to most important legal news of the week - Legal AF 7/23/22

Episode Date: July 24, 2022

Anchored by MT founder and civil rights lawyer, Ben Meiselas and national trial lawyer and strategist, Michael Popok, the top-rated news analysis podcast LegalAF x MeidasTouch is back for another hard-hitting look in “real time” at this week’s most consequential developments at the intersection of law and politics. On this episode, Ben and Popok analyze & discuss: 1. The 8th Session of the Jan6 Committee Hearing including the 187 minutes of Trump purposeful inaction and whether that constitutes a “dereliction of duty” as Commander and Chief, and just how close is the DOJ to a criminal prosecution of Trump. 2. DA Fani Willis’ own day in court over the Fulton County (Atlanta) Georgia Special Grand Jury investigation of Trump, Graham, Giuliani and others as she goes after the 16 “fake” electors and others, and what the presiding judge had to say about it all. 3. Giuliani’s failure to appear at a New York order to show cause hearing leading to him being ordered to testify before Willis’ special grand jury in early August. 4. The conviction of Steve Bannon on both counts of contempt of Congress, his upcoming sentencing and likely appeal, and what happens next. 5. Musk’s first loss in front of the Delaware Chancery Court in his efforts to wriggle out of buying Twitter, with the full trial now set to happen in just 90 days. 6. SCOTUS’ latest efforts to dismantle Biden’s change in immigration policy away from Trump’s rules, refusing to stay a Texas federal judge’s decision that Homeland Security Secretary’s memo prioritizing which illegal immigrants should be arrested and deported over others, is “arbitrary and capricious.” 7. Trump’s latest go-to lawyers, Alina Habba, and her own legal problems as her law firm and she are sued by a former Black paralegal based on an alleged hostile work environment led by Habba purportedly using the N-word as she sang loudly to rap music, and her using the N word against NYAG Leticia James around the office. DEALS FROM OUR SPONSORS:  https://feals.com/LegalAF NEW MEIDAS MERCH: "Don't Coup It Tee": https://store.meidastouch.com/product... 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

Guilty, guilty, insurrectionist and seditionist Steve Bannon is guilty of contempt of Congress in federal court in Washington, D.C. and if that's not blockbuster enough, well we're going to talk about the blockbuster prime time January 6th, committee hearings, this past Thursday, which was the mic drop that our democracy needed. Boy oh boy, did our democracy need that. But our democracy is continually under threat, continually under attack from Trump, Trump's insurrectionists and from Trump's radical, extreme judges, he was able to appoint.

When he was president in just this past week, the radical right Supreme Court refused to intervene and stop a radical right, Trump appointee, federal judge, who intervened and directed President Biden, and the Department of Homeland Security that you can't prioritize as part of your immigration policy that dangerous and violent individuals

who unlawfully enter this country should be deported first. That was actually what a federal judge said in the Supreme Court refused to intervene. This week, as we predicted as well, Twitter had a huge victory in the Delaware Chanceree Court over Elon Musk and his failed whatever you want to call it. Manipulation, fake attempts to buy Twitter,

we will break down what happened in Delaware Chanceree Court. And we also learned this week that 16 fake electors from Georgia are now critical targets of Fawni Willis defaulted in County District Attorney's Criminal Investigation into Trump election interference and other news to report from Georgia. And speaking of Trump while we're on the topic, we should talk about his personal lawyer, Alina Haba, who was just sued this week by her assistant, one of her employees for racial discrimination. The most consequential legal news of the week when our democracy is on the line, you turn to one destination. That is legal. AF Ben Myselfist

and Michael Popak, Michael Popak, how are you doing this weekend? You ready for a wrap up of some blockbuster legal news? Tip of the hat to you, Ben. We're going to continue with hat summer. Ben, Michael, even longer than that. One point of clarification on Twitter, Ben is not wearing a sombrero. Ben is wearing a cowboy style hat just to be just to be clear. That's not a somrero. Is it?

Absolutely. Don't if you really want to dig deep into these sombrero cowboys distinction. They're basically the same thing, but let me be clear. This is a sombrero that I purchased. I purchased it in cacula. One other point I want to make about this some rarer that I purchased in Cacula two hours from Guadalajaro. And I was there this past month is I'm an Arizona right now. It's the background. I'm staying in a hotel room. But I wore this hat to an actual formal court ordered ninth circuit mediation.

I wore this exact hat there. And everyone was a little bit surprised. The lawyers haven't yet fully. My law partners, the associates, they're not fully, they embraced the legal AF style, the new pop-okian and my cellist hat wear. But it took them a few minutes to get used to, but let's get used to ban and being guilty, guilty, guilty, like this editionist insurrectionist. He is Michael Popak. We said it here on the last legal IF that we said, this is going to be an open and shut case. The government's case is going to be a fairly easy one for them to put on. They're going to call witnesses who just literally sent this

Zepena to Steve Bannon because everybody remember what this trial was about. The January 6th committee gave a Zepena saying, you need to show up on such and such a date. Steve Bannon did not attempt to negotiate. He objected. He said that, well, I am a podcaster. So therefore I deserve executive privilege and all these other

privilege. I'm not even going to show up. No attempts to cooperate. And so the January 6th committee after Steve Bannon refused to show up, he missed the date. They attempted again, after Bannon didn't show up, they referred it to the Department of Justice, because he can't just not show up when you receive Sipinas, the Department of Justice prosecuted. So this case was about contempt of Congress to counts one, then and not showing up to testify to, then and not turning over documents. So the trial was a fairly basic trial. Government called up its witnesses.

Hey, witness number one, which was the person who issued this subpoena lawyer for the January 6th committee. Hey, did you write this subpoena? Yes, did you put the data on it? Yes, did you send it to banan? Yes, did he show up? No, it was basically the direct examination there put on one other witness who basically said the same thing. I'm banan didn't testify. Oh boy, banan said, Pope, I'm going to give everybody hell this trial. I'm going to give everybody hell. But like the little snowflake, he is bad and doesn't testify. Uh, jury took about three hours to deliberate downbound and bad and guilty on both counts. Each count carries with it the minimum of 30 days in jail, a maximum of one year. So because there are two counts,

you can serve two years, sentencing is October 21st, Ben and Ken, of course, appeal. He will be appealing. But Popo, what do you make of the trial, the outcome, his prospects, and then appeal, what do you think's going on here? This lived by the Popok rule that juries that are ready to rule very quickly in a case, they just wait for instruction and then lunch, and then they ruled against him on both counts. I think that the banan always knew that he was going to lose this. They put up a very paper defense, called no witnesses, cross-examine their way through their defense only.

And the closing statement, closing argument, focused on whether Benny Thompson actually signed the subpoena or not on his handwriting, which is sort of a weak defense, they have preserved for appeal their fundamental issue, which is whether the judge is ruling at a 1962 precedent of US versus Likari or Likavoli, which said that there was no advice of counsel defense to a contempt of Congress charge, whether that is good law or not. Judge said it was. Judge Nichols said it was and precluded them from putting on that defense. Of course, they also wanted to put on the other, the other defense of executive privilege, which I don't think they're going to win on appeal. So, Bannon's playing

the long game here. First of all, in the upside down world that he and the others occupy, this is a badge of honor. He got convicted. He didn't, he didn't, he didn't cave. He didn't settle. So in that world, the podcasting Republican right wing world, that's a badge of honor, just like it is from Michael Flynn and others. In the appeal, they will argue that the judge got the defense of council ruling wrong that he should have been able to argue that to the jury to defeat willfulness and intent. And that appeal is going to happen after sentencing, which you mentioned is in October. The sentencing here, I mean, I would think, what do you think, Ben, three to six months?

Well, here's the thing that we have to wait. The judge judge Carl Nichols is a Trump appointee. And while Judge Nichols adopted the precedent from the case you mentioned Popeyes was 1961, you said 1962, but who's counted Popeyes? The case was Likovoli versus United States involving a gangster. Likovoli was a mobster who wouldn't testify. And so that's actually the precedent here. And what Nichols said was, I'm gonna follow the lick of Voli precedent

because it is binding DC Circuit precedent. But he did question whether that precedent should actually be the law, basically saying to the United States Supreme Court, you may want to revisit this issue. I mention all of that because I think those are things we need to keep in mind, because Bannon is going to appeal. I think the appeal, the ruling will be affirmed by the

... What do you think the sentence is going to be? I said three to six months, what does you think? Oh, I think probably around that. I think it'll be on the lower. I think it'll tend to be probably on the lower. And here's why, here's what they can consider though. I think if Bannon was not a total criminal piece of crap that he is, and it

was a first time offense, it would be a different consideration. One of the things that the judge has to consider here is that Bannon was already pardoned and pardoned implied his guilt based on the bill, the wall scam, the fraud that Bannon was previously involved in. So Bannon already has a record by him being pardoned by Trump. It implies his guilt and judge Carl Nichols. We know he follows precedent and he takes the position seriously because he followed Lick of Oli. That's why I think that three to six month range is probably accurate. Whereas the initial instinct of a Trump to point, he would probably be a downward departure

to even less than that. But I think we probably have about six months, three months for each account. But I think that- I think the biggest problem that it had from the beginning was not some, there were two subpoenas, one for testimony, one for documents, hence the two counts of the conviction.

I think his harder problem was the documents. The testimony he should have just went in. Not act like the subpoenas you phrased it last time, Ben, as an invitation to bargain with the Congress over the deadlines. If he just got in and taken the Fifth Amendment, they would have been sorted out in the court system, ultimately. The documents presents a harder problem. Because we know from the Jan 6th Committee that there are tons of documents

that they've gotten their hands on, including about the Willard Hotel, the strategy meetings in the bunker involving ban in Jan 5, on Jan 6. And there's a very limited application, as you and I've talked about in the past podcast, to the Fifth Amendment to document production. It's still applicable if it's deemed to be testimonial based on a line of cases that we've talked about in the past, including web hub, US versus web hub, but it's very limited.

So he probably, I assume he had a cache of documents and notes and other things that he was really worried about turning over and not having a fifth amendment privilege. And then he was going to take the hit on the testimonial side. But look, the long game here as you've outlined, I've outlined, he's going to take the appeal to the DC, uh, court of appeals. He's going to then get it up to the Supreme Court where we know and we'll talk later about Supreme Court rulings. There is a very favorable, uh, majority that's waiting for that appeal to come up into declare whether that type of contempt of

Congress case is going to stick or not for the future. So he's playing it in the meantime. He's out on, he's out. He's not going to be put in jail for this. He wasn't put in jail pretrial. He's not going to be put in jail now after sentencing. He'll be out for the next year during the appeal. And then, you know, listen, this, whatever's going to happen, this particular Jan 6th committee, you know, kind of goes potentially by the wayside January 2023. And he's playing that and a receptive Supreme Court waiting for the appeal. It's interesting that the precedent, right, was this 1961 case, Lick of Oly, which involved the gangster, which involved the mobster,

because when it oftentimes comes to contempt of Congress, the mafia doesn't want to testify. They want to destroy their records. And it's really no different when we think about what the Trump administration is in many ways You could basically Interpose Trump for lick of Oli because Trump is a mobster and that is how they operate So we learn from this January 6th prime time hearing a Step-by-step of what took place during these 187 minutes. And the term

dereliction of duty, dereliction of duty is used over and over again. And it's not that just Trump failed to act. It's that he chose specifically not to act when he knew what was going on. And that is the willful, their, their election of duty. And during that period of time, Michael, the 187 minutes, too, we have all of the records deleted and things being shredded. And that's where we're seeing the kind of the buffer where everyone's clamping up in Trump's inner circle was what took place during that time period, the Mark Meadows piece, right? The Bannon's, the Trump, you know, and all those people, the Flynn, all those people who you see the Eastman, taking the fifth, taking the the fifth because what we've seen very clearly with the January 6th committee is that when Trump's baseless and bogus efforts failed every step of

the way to do is coup of the Department of Justice and try to overthrow the real Department of Justice officials with idiot Moran Jeff Clark who had never even done a criminal investigation. They picked some low level guy to put on DOJ letterhead to try to claim that the election is a fraud. By the way, Jeff Clark is under a disciplinary investigation by the DC bar to take away his legal license. Not only do Trump's lawyers lose their cases and get sanctioned in court, most of them have lost their legal licenses or are under investigation to lose their cases and get sanctioned in court. Most of them have lost their legal licenses or are under investigation to lose their legal license. So after that failed, after Trump pressuring and

extorting legislature's failed, he turns the mob on the Capitol building to stop the count to allow these fake electors to ultimately be the ones that were counted Trump view to two that he was going to show up like some Napoleonic figure walk up March up through the Capitol building, move over Mike Pence. I am the dictator. That was the plan. That's what he wanted to do. And we know that from the January 6th hearing we had star witnesses Sarah Matthews and Matt

Pattinger who testified over 17.7 million people at least watch this on TV that does not include, of course, the individuals who saw this streaming might as touch network was one of the top destinations on our YouTube for where people watched it. We got close to 200,000 people who watched it alone, which would make us actually one of the top cable destinations. If we have a cable network, maybe we should do a cable network. Maybe we're planning that right now, Pope, I don't know. Maybe I'll reveal those plans on the brother podcast, but there are a few moments that I want to talk about Pope, and I want to get your insight as well into this dereliction of duty.

You know, we see those outtakes, right? I remember the outtakes of Trump from one seven, the next day struggling to make his speech. But there's two ways to look at it. There's one way to look at it. I like looking at it this way. And I think both are accurate, are accurate. He struggles to make the speech because he's an idiot. And he has trouble pronouncing words.

And he says he can't see the words. And he doesn't know how to pronounce the word yesterday. And he goes, yesterday is a big word for me. I'm struggling with the word yesterday. Yeah, Trump's a moron. He's an idiot. And his idiocracy, fortunately, is one of the reasons the insurrection failed because he's an idiot. But there is in nefarious nature to what he said yesterday.

And I want everyone to pay attention specifically to the word yesterday and why he struggled to say that because when you look at what he said he was talking about the heinous attacks yesterday and what was in his brain was that if he just use the word heinous attacks, he could keep manipulating his base and people to believe the attacks were actually Trump's own bullshit about how the election was stolen from him, the attack on him by connecting it to yesterday, one six, Trump was connecting it to the actual insurrection itself, which he didn't want to do because then he would be blaming himself and he would be taking responsibility for the attack that took place yesterday. That's why he didn't want to say the word yesterday.

It's the same reason why he didn't want to say the election is over. He was okay, enough to say, well, it's been certified after the insurrection failed, but he would not say the election is over. So you take that Pope, you take the tweet, he did the night before on January 6th, right after the insurrection, where he goes, this is what happens when people try to steal the election. And you hear about him being there for 187 minutes and you talk about Sarah Matthews, you said, look, it was my job as the deputy press secretary to defend him.

I can't defend the indefensible, right there. I can't defend the indefensible. Something needs to happen. And then you have this Matt Pottinger who's a deputy national security advisor. I mean, he's a top level security official in the White House talking about how Trump's actions not only were a domestic threat, but emboldened our enemies and further narratives against our democracy. Those are some of my takeaways, Popeye. What were some of your big takeaways? You, thanks Ben, you start with who they selected to prosecute. It's not the final day of the Gen 6 hearings. They're going to be reconvening in September. There's so much new information and data that the JAN-6 committee has accumulated even in the last weeks, even in the last days,

that what they thought was going to be the final crescendo, final closing argument, we're going to see more in September, probably right up until the midterms, I'm sure. In this particular day eight, they've chose two people with a military background, two people who were effectively were lieutenant colonels in their respective armed forces. You have Representative Luria, who was a commander in the Navy, and you had Kinzinger, who was a lieutenant colonel in the Air Force. And you also, we had a lot of brass up there because Matt Pottenger back in the day was in Afghanistan and he was a major in Afghanistan.

And Keith Kelly was a general, Lieutenant General, and he was Pence's national security advisor. Why did they choose so much brass to be up on that podium and at that witness boxes? Because they wanted to talk about exactly what you just said, the dereliction of duty of the commander in chief. And who better to do it than Republicans who served, at least on the witness side, who served this country, nobly, at time of war for many of them, commenting back on their fellow Republican, a feckless Donald Trump.

The power of that presentation for me, about the 187 days, whereas you said he didn't just do nothing. He actively did other things other than quell the siege that was being laid on the Capitol, while he sat in the dining room, watching, literally watching Fox News, which we always thought he did. And instead of tweeting at the exact moment that all of his inner circle observed by Sarah Matthews, a deputy press secretary, a served by Matt Pottinger, the highest ranking person to resign on Jan 6, the deputy national security advisor. The reason that they ultimately said we've had enough of Donald Trump, and we're walking out the door with our, whatever's left of our own dignity and reputation in Tatters held high, we're going to walk door with our, whatever's left of our own dignity and reputation in

Tatters held high. We're going to walk out that door. It's because at two o'clock, as the siege was laid on the Capitol, as it was clear from the video evidence that there was violence, that there were deaths, that there were Capitol police being attacked, that this was a war, a war zone. What did the president do when told, get on national television, put a stop to this. Only you can control the mob. They only answer to you, something he acknowledged when he said, take down the magnetometers. These are my people.

I don't care if they're armed. They're not going to harm me. He knows he had control over them. Instead of doing that, he tweets, talk about gasoline on the fire of Sarah Matthew, said, he tweets about Mike Pence doing doing the right thing and stopping the trans, the peaceful transfer of power at the right exact wrong moment for him to have done that when he could have put down the insurrection by taking to this. He didn't have to go down there. But get on national television and call off the dogs. He doesn't do that. Sarah Matthews and Matt Pottenger at that moment decide to leave the administration to walk out the door

because of that two o'clock tweet. What he, what doesn't he do at two o'clock? He doesn't call out the national guard. Now I know on social truth media, whatever the F, it's called. He said, Oh, no, it's not all true. Nancy Pelosi, I told her weeks before I have the National Guard there, that's a lie. That's a lie for which none of the millions of pages of documents and witnesses that a thousand witnesses have been interviewed have been able to corroborate because it's not true. Instead, he waited until 4.30, two hours after the Pence tweet, while

the, you know, right in the, in the scrum of the attack to give the order on the national guard, that left almost, almost three hours at the Capitol, Capitol police waging a battle, outgunned, outmaned against these armed insurrectionists. That is Trump's legacy. That is the stain as as a, as a, as a, Kinsinger said, Kinsinger said, that's the stain on Trump. Now, the question is been from your perspective after eight sessions, after seeing the best of the evidence to date, the best of the witnesses today, including Pat Sipalone again. Do you think a criminal case has been made for the Department of Justice to take up the mantle and prosecute Donald Trump?

The direct answer is yes, absolutely and unequivocally. You know, Popo, I was reading an article and the headline, it was from the Guardian, and the headline is, house panel showed Trump conspired to seize the election. But was it illegal? Yes, okay, When someone conspired to seize the election that is illegal. It's interesting, but is it illegal, Ben? I mean, what kind of headline is that? That is absolutely 100%. Illegal to seize the election.

And it's illegal at every level of what he did, not just on January 6th. I know we focus specifically on the day because it reached a crescendo that day, crescendo that day, but he's doing it now. What's illegal? I mean, there was news and we heard from this feckless, you know, cowardice, ridiculous, assembly speaker from Wisconsin, this Republican speaker who was interviewed. I was walking and he was walking around

a bunch of people, he was walking in his neighborhood, the house during this interview, and he was asked, hey, is Donald Trump? When was the last time you heard from Trump? He was like, oh, he gave me a call last week. And what did he say to you last week? Well, he wanted me to overturn the results of the election, and I told him that we had a disagreement about the constitution. And I said, I respected his views. And he, but he told me that I needed to overturn it. But we had a difference of opinion.

That was about it. It's like, wait a minute. He called you, bombshell. What are we talking about here, people? Donald Trump called you last week and told you in 2022 in July to overturn the results of a 2020 election. And you view that as, I respected his opinion. I mean, these Republicans are like one of the things

this January six committees exposed is other than Cheney and Kinziger. And this is what Liz Cheney said at the end about, at the end of her speech, she goes, you know, you have all these 50, 60, 70 year old men hiding behind executive privilege as you have the Cassidy Hutchinson's and you have the Sarah Matthews. And look, you have the Matt Pottingers and you have other people who did come forward. But, you know, even when you heard from like the speaker from Arizona, or some of these Republicans,

who's now been censured by his own party for having given proper effect for this. I mean, Arizona now, so when people go, they're calling Rusty, I mean, people in Arizona though, and it is a purple state. And most of, I haven't really seen or, I mean, I met people who identified previously as conservative, who now are independent, who think what's going on is absolutely batshit

insane. You know, so that's, you know, so that's just people who I've interacted here. They go the fact that rusty bowers is as Republican as again, rustyy Bowers believes God gave the founders directly the Constitution to read and Rusty Bowers is viewed as a rhino radical lefty because anyone who's not a fascist in their mind is a rhino or a radical. He said after his testimony that he would still vote for Trump. I mean, it's that he doesn't I don't think he said he got censured and he got censored by his own party for, But it goes to their cow, but like this is one of the things January 6 has exposed an addition to the fact of all the crimes that Trump committed like

Do all you have to do to get a Republican to do something is just act a little mean to them Like could I just bully my way in the Republican party to become the president by just being an asshole? You know, you're gonna do that. You're gonna I go you're gonna do this for me bully my way in the Republican party to become the president by just being an asshole. And you'll be a top guy. You're going to do that. You're going to, I go, you're going to do this for me. You're going to do it. And you're going to shut up and you're going to do it.

And you know what, their response would probably be, Pope, oh, well, if you say in meanly like that, I guess I got to do it. I guess I got to do it. That's basically what they, well, well, they all, and just to prove your point, DeSantis does the exact same thing to the legislature in Florida. He's tougher than they are. He's meaner than they are.

His bully pulpit works better than theirs. And they go, okay, throw out the maps, okay. Throw out the sex education books. So, don't inoculate our children. Okay. I guess we gotta do it because they're being mean because he's being mean to us. I mean, that's one of the things that exposed to, but, but, but pop up.

I mean, I do appreciate and go into your question. I do appreciate the way Merrick as a lawyer, as the way Merrick Garland is handling the investigation because he's handling it quietly, professionally, he's climbing the ladder. And I know we've always talked about that on this podcast. Would I like Merrick Garland to move quicker? Apps of Freak and Lutely, yes. But is this the biggest investigation in the history of the Department of Justice? Is it the most high profile in the history of the Department of Justice and any mistake any little thing like Pope I can I we're going to be talking about what's going on in Georgia right now where there actually was something raised as I look

I'm a big phony Willis fan as well, but as we talk later in this episode about what's going on with phony Willis You know, there was something about Fony Willis, who was, you know, was, was, was supporting a political opponent of someone that was subpoenaed. And it created an appearance of a conflict of interest and almost derailed that investigation. And so you see how careful can I give you one, one more comparison that proves your point on this show and you and I offline We think Latisha James Tish James is doing a great job in New York for a civil investigation

Just to remind everybody she started that a long time ago She is not yet brought charges related to her civil investigation and they're still trying to get the deposition testimony, which was postponed because Ivana Trump died in an accidental death right up actually the day, the day before the test will be so it's be given. But as, so, and as well as she's doing and preparing her case, she's not ready to bring charges. And yet even, you know, I know the Jan 6th committee, for instance, Ben is leaning on the Department of Justice, Luria, Laura, when she was on, on one of the Sunday talk shows or just after the eighth, I think just after the eighth session said, well, I hope to God, the Department

of Justice is looking at this and bringing criminal charges. Look, this is an airtight investigation that's being done. At the end, when the game is over, the scoreboard is done. We draw a line under it. We can judge Merrick Garland as being an effective attorney general or not and exercising his prosecutorial discretion. But in the middle of it, I think we're not doing him just as no pun intended or anybody else that's a line prosecutor on the FBI or investigators into the case, let them develop their case. The timing of it will be when the, when the case is ready to present to a grand jury and to indict first time in our nation's history, a former president.

And you know who also, you know, you mentioned Tish James, you know, who also hasn't been prosecuted, Trump yet. Funny Willis. She hasn't. Right. who also hasn't prosecuted Trump yet? Funny Willis, she hasn't. The process there is they have a special grand jury, which makes a recommendation, and then the recommendation goes to an actual grand jury, and only after the actual grand jury would there be,

an indictment, and there, the judge who's appointed to oversee the special grand jury in Fulton County, Georgia, has said, I also wanna make sure there's separation between the election and between, you know, when indictments could potentially happen, and I'm going to oversee that. I do also wanna talk about the Michael,

this briefly, you know, we talked about it at Nazim, but when that DOJ memo came out, and it was a generic DOJ memo from May of 2022 and the purpose of the memo sent every election year. The names are changed when there's by every attorney general. It's every attorney general. And I know it must be kind of triggering to see Bill Barr's name in it, but he was the attorney general previously, who instituted the previous policy. And you can go, well, the previous policy required approval of Bill Barr.

But one of the criticisms, if you assume that is as true. But one of the criticisms of Bill Barr was that Bill Barr was hyper bill bar was hyper political and hyper partisan and made decisions outside of the prosecutorial discretion that you would like. So the argument doesn't even hold because well, then wouldn't you want that decision to rest in a partisan way if your goal is solely to make sure that prosecutions are pursued. So like if you took it, you can say, well, what's good for the goose is also good for democracy.

And I'm going to use that same, you know, power to make sure we fight for democracy. But that's not what this memo was or is. It's a generic memo that sent every election season because there are lots of attorney generals, AUSA's across assistant U.S. attorneys, across the country. And it's just reminding them, hey, if you're going to do a prosecution and it involves, it could be a member of Congress. It could be whoever. Just let your boss know. Let your boss know. Let your boss know. Let your boss know. It's a let your boss know.

memo. And you and I pointed it out that I right away pop up to people because everyone was like, Marik, Arlen's the worst Marik, Arlen's the worst. And look, I want it's frustrating. I want Trump to be prosecuted so badly. He deserves it. Trust me. He deserves it. He is, he is a threat. He is a menace to society. He is discussed. So I feel it. I feel it. But we can't in pursuit of justice, you know, snatch defeat from the jaws of victory. You know, we can't be the cause because of our defeatist and doomsday attitude that we let the other side win.

Yeah. Look, on the memo, not to keep beating the dead horse, but that memo, two things, two quick observations. One, it stops things like the director of the FBI, James Comey, standing up in front of a podium just before an election to make, to say he's opening an investigation against the candidate, in this case, Hillary Clinton, that we all, I think we all agree that was a bad thing. And that probably was one of the things that led to her defeat, a memo like that stop memo like this stops it. And I give, I give credit

to, uh, to Merrick Arland for mentioning the name of the prior just prior attorney general because it inoculates him for many attacks that he's that he Merrick Garland is being political ignoring the entire chapter of Bill Barr because you didn't like him or you thought he was a hack which we all do. It doesn't get you anywhere. If you're continuing a policy from the prior unimpeded guy or person in Bill Bart, you mentioned him as a continuity. Okay. And so I was all right with Merrick Garland doing that. It would be weird if he said, I am going to reinstate Eric Holder or a Loretta

Lynch's memo from 10 years ago. That would be weird. It's not weird if you believe that a rule of law, not man, and a rule of, and a process which Merrick Carlin does, and you say, you know what, there was one good memo that I agree with that bill bar picked up from other Democrats, I'm going to continue it. And again, I saw all sorts of things as that you want to, oh, it's going to stop. If anybody announces that there are a candidate, there's no, there's not going to be a criminal prosecution investigation. No, it just says if you're a line prosecutor, if it's below the president, you go to your US attorney.

And if you're, if it's a presidential candidate, go see the big boss in the department of justice for final approval. That's all. And I'm sure Merrick Garland will sign off on it if the evidence supports the prosecution. And Merrick Arlen said that. I mean, the next day he gave or two days later, the next day, whatever it was, he gave an interview where he was asked those questions and he was asked it again. He's like, look, how many times do you want me to say it? I will prosecute him. I will prosecute him. There's nothing about his status as being a former president or running for president that

would prevent me. No one is above the law. How many times do you want me to say it? And one thing about Biden, too, I could say many things about Biden, I was reflecting on this last night just with how incredibly impressive Biden's work with our allies has been and his work with Ukraine has been against Russia and what he's exposed with Putin and Russia. And even as kind of momentum has ebbed and flowed, his stick to itiveness, his continuing

to provide weapons to stop a global war and to expose Russia and allowing Ukraine. I just spoke to Ben Hodges, who ran our armies efforts previously in Europe and worked with Ukraine. And he told me about all the advances that were being made there. But the point I'm making though is that Biden hires really, really good people. And Merrick Garland has a history of being like the top prosecutor that we really have in the United States. Here we're all, we're all these people. When Merrick Garland was denied his rightful seat on the Supreme Court, we were all, we were all up in arms. Merrick Garland, he's amazing. The prosecutor for the Oklahoma City bombing.

He's a guy that we want there. Oh, it's a terrible thing. It's a shonder as we would say in our religion. Now the guys, yeah, he's the LeBron James of prosecutors. He's a hack. Why has it he brought the case yet? Because we don't live in a society like North Korea or China or Russia Poor Brittany Griner is is under this this environment where it's a fate a complete that the opposition leader or whatever is gonna

Be prosecuted after he leaves power We I believe then you do too in a rule of law Not men. This is not dependent on Merrick Garland. This is dependent on process. And everyone's saying, well, and even talking heads that are, you know, on podcasts, not ours. We'll say things like, well, I don't know. There's no evidence that there's even a grid jury where they're even looking at these things. And the chance six committee is leaning on the Department of justice, let them do their job that they were paid to do as professionals, not hacks and let them come out.

And that one, yeah, go ahead. Go ahead. You know, let them deliver the indictment. And if they don't, then on a future podcast, podcast number two hundred and twelve for legal AF, we can criticize Merrick Garland. Then in the face of all the evidence that was in front of him. He didn't have the will to act, but I'm not ready to issue that indictment of Merrick Garland just. Yeah. Yeah.

You know, and Trump gives his speeches now when he does these ridiculous, you know, insurrection always the silent and say the silent kind of tours that he does. He goes, we need quick, we need quick trials, quick trials. We need quick trials like they do in China, quick trials. We don't do quick trials here. We do democratic democracy trials. We have the actual rule of law here. And Popak speaking of the rule of law that we need to talk about what the Supreme Court did this past week. You know, this effort by the Supreme Court relates to steps taken by a US district court judge, a Trump appointee by the name of Drew Tipton from the Southern District of Texas. And Drew Tipton said in a ruling about a month or so ago, two months ago,

he said that this September 2021 memo by Department of Homeland Security had Alejandro Mayorcus, that Department of Homeland Security Secretary Alejandro Mayorcus's September 2021 memo which directed immigration officials, ice, to focus on arresting immigrants who were deemed to threaten public safety or national security and migrants who recently crossed a U.S. border illegally should be prioritized over other individuals who arrived here unlawfully, but who are not threatening public safety or national security.

And migrants, now I've read this guideline, this memo, and it literally is just a guideline. And this just goes to show you the efforts that are being taken by the radical right to undermine the president Biden in issues that impact our national security, international relations, and areas that are within the province of the president. Because you look at this September 30th, 2021 memo, and it says to ICE, it says to the US Customs and Border Protection and ICE and others. This memo is providing you guidance

for the apprehension and removal of non-citizens. It begins by saying, I'm grateful for the work that you perform. We stand strongly behind our US emigrations and customs enforcement. We appreciate the work that you're doing. It talks about the fact that there are 11 million undocumented or otherwise removable non-citizens in the United States, but it says we don't have the resources. It's true to apprehend every single one of these non-citizens. So in exercising

our discretion, we're guided by the fact that a number of the undocumented workers are contributing members of our communities. These could be people who fought against COVID, who lead our congregations of faith, who teach our children, who do back breaking farm work to help deliver food to our table and contribute to this country in meaningful ways. But we need to exercise our discretion of people who are threatening Americans well being first. So those who threaten national security and public safety, and it gives a list of factors about you should focus on the gravity of offense,

of the conviction, and the sentence imposed, the nature and the degree of harm, of the criminality of individuals who are here unlawfully. The sophistication, does it involve firearms or dangerous weapons? These are the types of factors that they want ice to factor in of where the resources happen. So what happened, Popak was the state of Ohio through Republicans there and Montana, I think one other state. They filed a lawsuit first in Cincinnati.

They won in Cincinnati, but it was overturned what they won was to stop this guidance from being implemented, basically hamstring Biden from having any immigration policy is ultimately what this order is, but the six circuit disagreed in the six circuits said, no, you know, you can't do that. That's a Biden decision. He's the president. So the six circuit knocked that down. So what do these radical right Republicans do?

Let's just pick another court, which court should we bring it in? Hey, state of Texas and Louisiana. Why don't you bring it in the Southern district of Texas? Cause we've got a lot of Trump appointees there. They drew a Trump appointee right there and the Trump appointee says, I am banning this guidance from being filed, followed. And why do they want a ban at though? Because they want him to arrest everybody. And, I'm practically, they don't, don't pry out, they're going to claim, oh, well, we think

that there's a better way to get more dangerous criminals off the street, but they want the productive members of society who are here to be prioritized the same as the dangerous criminals, but they really want to do is just throw this all into disarray. Yeah, so it gets, so it gets gets appeal to the fifth circuit. The fifth circuit says, oh, we're not gonna stop it, but we'll wait till it gets to us on regular appeal. So because this is now implemented and it has these nationwide implications, the Department of Justice appeals to the Supreme Court and the Supreme Court says, look,

we will hear this on our regular calendar in December, even though we've used our, what do they call a popock? The shadow docket, the shadow docket. We even though we've used the shadow docket before to screw over democracy and all these other times. In this occasion, let's just not let the president have any ability, over say, to even give guidance over his immigration policy until we hear

this in December. Supreme Court's going to hear it in December, but that's the basic setup of this thing. Popeye. Yeah. And it's a setup. It's a setup. They wanted to get through tips in the judge that the Trump appointee because he's ruled against the Biden administration and immigration before. So he's a soft spot for them. They were hoping that would draw him and they did. And then, of course, the fifth circuit. We've talked about at length in prior 20 prior podcasts about the fifth circuit being basically anti-biden. If they get the right combination of three judges on the panel, which they do. And again, I think it's, it's all a charade. The Republicans don't have any interest in different

or stronger or more humane immigration policy. All they have is they want to be able to attack Biden and the Biden administration and its policies by throwing as you referred to us like a monkey wrench and creating havoc in chaos so that Biden can't accomplish his goals. There is nothing wrong with an administration and a department head in this case, Secretary of New York is issuing a memo about how to properly allocate scarce resources. They've already lowered the number of deportations out of ice, not because the Biden administration is like deporting less numerically. It's because of the other policy that they were not able to alleviate, which is now the ICE is able to instantly eject people

and let them wait on the other side in the dangerous country they're coming from and not and not have the safety of being in America during that process. It's of that lowers implicitly the America during that process. It's at that lowers implicitly the number of deportations. But the Republicans are a party that doesn't have any moral center, and they don't have any answers or plans for the overhaul of immigration as a policy in this country. And therefore, they're just left with taking potshots at the Biden administration. The interesting sort of strange bedfellows is that four justices would have taken up the case for an immediate appeal. And yes, it was so

to my or Katanji Brown-Jackson in her first decision, participating in her first decision as a new Supreme Court justice and Elena Kagan, but Amy Coney Barrett joined them. So we had the four women of the Supreme Court joined together to say, let's hear it now, but they are outvoted five to four by the five white guys. And so what we have is now a chaotic immigration policy. You actually had tipped it. I'm going to leave it on this one, Ben. They actually had tipped and say that Mallorca says issuing the memo was arbitrary and capricious exercise of administrative power that it violates congressional intent. And therefore, go back to the drawing board. You can't do any emergency applications related to

related to immigration policy. And this hamper's in the present environment, Biden's ability, I want to just manage expectations here, Biden's ability through executive order, through administrative policy making, memos from his department heads is severely limited in the post-Trump judicial world because of so many unfriendly judicial appointments at the federal level and ultimately circuits like the fifth and the Supreme Court. So people are saying like an abortion executive executive orders issue as many as the problem is these are doomed to failure mainly because of the federal judges that Trump was able to appoint in the circuits where these cases and these executive orders of being challenged. And Biden did issue the executive orders you talk about the abortion cases.

Biden did issue an executive order, for example, with hospitals that you have to provide emergency care to individuals who require emergency care, two individuals who require emergency care. And if that care and the standard of care requires an abortion, you have to provide as well, um, medication that could be related to abortion and you can't not provide that medication under federal rules and under federal law. And what happens immediately? Texas files a lawsuit just like the one they just did that we just talked about on immigration saying that Biden and the administration does not even have the ability to give guidance to its agencies to enforce these rules or to even encourage high-assailant questions. I want to ask you a question. And this is serious one.

I just thought of it. Do you think the founding fathers thought when they set up the federal system and the state federal system and the judiciary for the federal system and the Supreme Court and all of this? Do you ever think that they would envision that a couple of states would join together, find the weak underbelly of a federal circuit, file a case there to a fast track it to a Supreme Court. Do you think that's what they had in mind? Since we always said Supreme Court and Clarence Thomas and others love to talk about what was in the mind of the founding fathers. Do you think

this exploitation of the the seams in the federal system, these political seams, the political system at the judiciary level was anticipated by the founding fathers. And what would they have said about it? The founding fathers were very worried actually about the situation that we have now. And the founding fathers consistently talked about as by the way did Abraham Lincoln that the biggest threat to our country was actually not our foreign adversaries, but like a Trump-like figure who would emerge, a demagogue that would emerge.

And so a lot of the protections that were trying to be put in place were to check that from happening. But what they certainly didn't think through and what they certainly didn't protect, you know, think through, is that some of those checks could actually be used and co-opted, and weaponized, and weaponized by the demagogue, where the people who are part of it assume that because people are self interested sometimes, that if you clash self interest against self interest, you can check that through kind of just the natural conflict. But going back to the beginning of our podcast, I think that they would be

thinking about the cowardice, the obsequiousness of these Republicans, you know, that they could be members of Congress or members, you know, in the state house, and they don't even want to protect their own positions. They don't even want to protect their own power and their own platforms because we're supposed to have checks and balances. But what happens when one of the checks like the Republicans right now, I don't know if you saw this Pope Popeye, during the January 6th hearing, the House Republicans were live tweeting and criticizing Sarah Matthews as basically being a Rhino lefty without realizing Sarah Matthews. Sarah Matthews works for them. Currently, Sarah Matthews is on the Congressional Committee for Environmental, whatever.

She works for the Republicans. Just look over. She's over there getting lunch. But they, but that to me is something the founding father and no, my Pope, I also think though the founding fathers would not think, wow, you know, hundreds of years from now, rather than look at the existence of these circumstances that are impacting the nation, then, we, that the nation is actually going to focus of what we cannot even conceive of the future world is going to be. And when I talk to people about it, I try to break down what the Supreme Court is doing

in a nutshell and how they're doing it. And the way I like to describe it is really in the 70s, 80s, 90s, you know, when we talk about the progress being made from the Supreme Court, even though you had a very divided Supreme courts and right leaning Supreme courts or whatever, we focused at least on the effect. How did something affect something? Like how did this action affect us today? Because we live in today and we don't live in a fantasy world. So let's look at the circumstances and try to balance them and figure out what is right for them. You can go through all of the issues. And now the Supreme Court said, no, no, no.

All of those affect style tests, trash them. What we need to focus on is the historical views and what our founding fathers would have done if they were around today. But we are going to interpose our radical right wing version of that narrative on today. I want to make one the right narrative. Yeah, I totally agree with that. And I want to give one other comment that we haven't talked about.

I want to get your view. Put on your continued constitutional professor hat. I've read the Federalist papers as have you, which were written by at least three of the founding fathers commenting on their view of society and the role of government. So that's a, that's a in real time expression of where the founding, some of the founding fathers were. There is nowhere in the legislative history, because there wasn't really legislative history, when they, when they brought forward the congressional history, when they brought forward the congressional papers,

when they brought forward the Constitution, the Bill of Rights, you have to rely on personal notes, personal diaries, note-taking, speeches that were given at the time. I am not aware of one where they said, and in the future, when you interpret this document that we have brought forth for this great nation, you're always to refer to what we were thinking back in 1780 blank. And if you can't find it there, then you're stuck with the language as written.

Where is that in any, where do the founding fathers talking to the future, ever tell the future America, the future Supreme Court? Yeah, God are a liar. Well, we were thinking at the time. Otherwise, no, they called it a living document for a reason Because they didn't want the brittleness of the Constitution Founded in the 1780s to not survive their own demise And the only way you can do that is to let it grow with the times. Am I making sense? I think you're making so much sense.

And look, and I think one of the, you know, federalist papers too, you know, it was even referred to by Alexander Hamilton as being a living constitution. I mean, there are references to it actually, you know, that Republicans have killed the living constitution. Yeah. And that needs to be kept up with the times. I mean, so anyway, I think you're making complete sense, Pope, I do want to talk about something though that does not make any sense at all.

And that is Elon Musk's position in the Delaware court of going down. He's going down fast. He's going down fast. I mean, he must be under a lot, a lot of stress, but you know, Popok, when I'm under a lot of stress, you know what I do, right? Feels, it takes feels, I take feels CBD isn't about what you feel. It's about what you don't feel stress anxiety and pain and this podcast is brought to you by our great partner CBD feels.

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It's hassle free. It's delivered directly to your door. CBD naturally helps reduce stress, anxiety, pain and sleeplessness. There's no hangover or addiction, which is something that I specifically like about it. You know, Pope, I'm doing these podcasts because sometimes podcasts, I'm flying Arizona. I got court cases. I'm doing nonprofit, I got a lot of things going on. And so for me, just putting those little drops into my tongue and feeling good. That's why I'm feeling good today, Pope, so I just place a few drops under my tongue. I feel the difference within minutes. And the thing to remember about CBD is finding the right dose is important and everyone's

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shipping. I'm a good negotiator for the mightest mighty to get us that 50% off. That's feels.com F E A L S dot com slash legal AF to become a member and get that 50% off. Ben my cell is negotiated for you automatically taking off your first order with free shipping, feels.com slash legal a app. You got to do is put that cowboy hat on and negotiate with feels and get people that great CBD feels.com slash legal a f pop. Just tell me what's going on in Twitter. I'm not even going to get the intro. You tell me you tell me. Oh, he's he's a musk is going down and going down fast. So the chancellor of the Delaware Supreme Court, that we, that Delaware Chance Record, that we talked about last week, Kathleen McCormick was having none of Elon Musk's lawyer's

argument that the trial should be put off until February. And there's no, it's preposterous. This is how we let off in his, in his open judges, preposterous to, to propose that this, this case, go to trial in three months. She interrupted him and said, it's not preposterous. We do it all the time. He said, but judge, you had a case that took a year, they actually quoted a case where the judge took a year, two problems with that, that, uh, precedent that they were citing.

One, when she ultimately ruled, she ruled against the Elon Musk in the case and forced the acquisition to go forward for hundreds of millions of dollars. That's one, two, she said, yeah, it took a year because of COVID and we were limited. Speaking of COVID, judge McCormick or chancellor McCormick had COVID and had it like Benny Thompson and our president and had to do the hearing by Zoom. And so that didn't go well for them. They argued for February arguing their law from argued, we have to go through all the bot data, the BOT data. There's there's terabytes of a judge. And the other side, led by Wachtel said, they don't have to go through the bot data because they don't have a due diligence,

a contract right in their contract. They have to close the bot data as a smoke screen, as a red herring. Let's get to the trial in September. The judge also had managed, I think that's putting it kindly, the lawyer for Elon Musk and said, you are underestimating the ability of this court to handle complicated M&A issues on a fast track. You know, when you got the judges, dander up and they're going to go after you for one stopping you in the middle of your, your pitch about the preposterousness of the speed

at which he's going to try the case and her ability to comprehend complicated matters and kind of a moment of man's explaining. That's going rough for you. And the judge says October, so she didn't do September, but she didn't do February. The other reason that the Twitter side is so insistent and the judges agreed with them on having a fast trial date is because of the negative overhang or shadow

that's been cast an accidental threat that's been cast over Twitter because of this agreement and this lawsuit. The judge commented on it that she feels it's almost an existential, existential threat for Twitter if she doesn't move this case quickly to trial. The other side also reference the debt financing commitments have a date in the agreement. He has until, I think it's April, I think I think it's April to get his financing in place, which is not a lot of time. And they didn't want a trial and then the ultimate appeal to go over the deadline he has to get his financing in place or to have that expire so that he has no ability to close because they

think that's his game. Let's stretch this thing out. Oh, by loss my banks. I lost my capital stack as you like to say Ben, I can't close on it. Sorry. And so she's like, she's not having it. She's like, we're going to have a full, I think six day or five day trial in a September, in October.

If there's an appeal, there'll be plenty of time to have the appeal ruled on before any of his debt financing goes out the window. I think this bodes terribly for the musk position. I think you have a judge that has already ruled once to have a major multi million dollar merger go forward. The other side even cited it. She's taking this very seriously, but she understands as a business court that to protect the company and its shareholders, which as you and I said would be their ultimate goal, the ultimate goal, not protecting Elon Musk. And they're not talking about the billion dollar break up fee. She's talking about am I going to order the full $44 million, $44 billion acquisition or not? That's what's at stake. Nobody's talking about the billion dollar break up fee. That's what they're talking about. So I think then based on this ruling

and then the market responded to the ruling. First, the market, the shares went up five and a half percent on Twitter after the judge made this ruling. It's still down almost $15 a share from the high of 5420, but look, Twitter just announced almost on the same day that they missed their revenue targets by a lot. They missed their growth targets by a lot. Blaming Musk is the sparragement of the company and is refusal to close on time. This is having real world impact on the public shareholders of Twitter. So one point I want to make and then kind of a broader tactical question that gets asked. So the way I think about what the argument was is here was Elon Musk's lawyers argument. They said Twitter wants to continue to shroud in secrecy the number of bot accounts

and they failed to provide the information that must have. So we need a delay. And the response from Twitter was nothing in the merger agreement turns on that question and the judge sided with Twitter. So nothing in the merger agreement turns on that question. Essentially, that means that Elon Musk has lost the case before the case has even been trying to know. Because if she's not giving discovery on that issue exactly to your point, she doesn't think that's an issue that's relevant to the case. Exactly.

And it isn't relevant to the case because Elon Musk waived due diligence on issues like that prior to the merger agreement. And while there is some level of diligence that exists, of course, in good faith within a completion of the merger agreement, the merger agreement does not hinge upon these body counts in any way as a material breach and to undo a merger agreement with the facts here has almost never, ever, ever been done in the history of Delaware Transory except on the most egregious the facts which just don't come close to existing here. So people say, but why Ben? Why Michael Popok? Why is Twitter though? We don't want Elon Musk to buy the company. So Boise Twitter, the remedy would be

that Elon Musk has to buy it, but don't we not want him to buy it? Well, here's the thing that Twitter realizes. Elon Musk can't buy it. He actually can't afford it. Was one of the reasons he wanted to pull out and you may go, oh, but Elon Musk is worth $200 billion. Ben, you're an idiot. He doesn't, he can afford it. No, no, no, I'm not an idiot. Let me explain to you just because Elon Musk is worth $200 billion on paper. It doesn't mean he has $200 billion in cash. His money is based on the value of his Tesla stock. And he can't just liquidate his Tesla holdings one because you're not allowed

to as a controlling share all like that. Just dumb all your shares on the market. It's pursuing to a specific plan and rules and regulations. But even if you did, you'd crash the stock and the value of your shares would be nothing. And then you have to he's loaning money to himself against his Tesla shares. And so who's going to loan him the money? So what one more factor before you move on. money to himself against his Tesla shares. And so who's going to loan him the money? So what one more one more factor before you move on, he liquidated 75% of his Bitcoin holding,

crashing the Bitcoin. Everyone was wondering, why is Bitcoin crashing? Because Elon Musk sold 75% of of Tesla's Bitcoin holding, which was a lot in order to get cash in the door to use for whatever purpose. So Elon Musk crashed the Bitcoin market. Elon Musk is crashing Twitter and you got a judge standing in the middle of all this. Oh, it's absolutely, absolutely. But what Twitter wants to do is they want to put themselves in the best position of the maximum leverage here, whether that is to ensure it get a settlement or to force Elon Musk to pay $45 billion to have someone

else come in and to try to pay the money. But it's negotiating from a position of strength because if you just start with the one billion, you're capped at that. But here the exposure to Elon is $45 billion, you know, $54 billion, right? $45, $44 billion at $54.20. So $44, $45 billion of exposures better than one. So that's what he did to this is this is something I found odd. There was speculation from a strategic standpoint on your point of strategy that Elon Musk lawyers, which are pretty aggressive, I've dealt with them myself, would have filed a counter suit prior to the hearing in order to kind of amp it up, have counterclaims at least present

on the bench when the judge was going to issue her ruling to maybe give them a monkey wrench to extend the case until February. They couldn't even get their act together to file a counter suit, probably because there's not one in good faith, but they, that's something that you and I maybe would have done if we had the misfortune of representing Elon Musk just to throw, judge, look at our claims. This is a complicated case. It needs more discovery. We can't just have a trial.

They didn't even do that. They don't have a lot of arguments. And Elon Musk is probably the client from hell here. And he has not given them any good facts to really work with. Talking about them any good facts, you know, to really work with. Talking about those facts and facts to work with, Michael Popeye, let's talk about the facts that Fony Willis has in Fulton County, 16 electors.

Those are the amount of electors that exist in the state of Georgia, but the fake electors, the electors who had the cloak and dagger meeting in the Georgia Capitol building, who appoint after knowing that Trump lost after Trump lost all of his lawsuits after after the results were certified after Raffensberger, the Secretary of State made it very clear after there was no evidence presented whatsoever, zero evidence of any fraud that could ever change the election of the outcome of the election. These 16 traders, these 16 seditionists met, appointed themselves as electors and as the overall part of the Trump coup plan submitted themselves to the National Archivists to then submit to be counted on January 6th. Because the idea was when the coup takes place, we're going to count the fake electors and

replace the real electors with the fake electors. That was the coup, one of the main tenants of the coup plan. And so, Von Willis has been aggressively pursuing this investigation in Georgia. You know, it's notable too, Popoq, that what she's pursuing there could and should be pursued in all the other states that I think we know about, you know, where we've had, you know, these fake electors. And some of the states, there's a bit of a nuance in terms of the Georgia fake electors really going all in on it, you know, on the criminality. But this stems from there was a motion to quash filed by 11 of the 16 fake electors saying that they shouldn't have to testify now that they're

targets. They shouldn't be paraded. They called it a march of frogs. Frog marched is a frog march. Georgia thing. A frog march. I got a I got a my, uh, frog, that's their perp walk. It's, I guess in Georgia and the, in the Fulton County, it's a, it's a frog marched. So they said, we don't want to be frog marched into the grand jury when we're just going to have to plead the fifth because we're targets. That's how that came out. The day we're targets.

Pope, what's going on there? Telling the little Johnny and some issues there, though the day we're targets. Popeye, what's going on there? Telling a little bit. Well, Johnny. Yeah. And some issues there, though, that were raised. The close call we're funny almost, you know, she got called out by the judges overseeing it, but it wasn't a great look. Funny. I'm just doing great.

Except this was the first hearing and it was really a two-part hearing. You had the motion to quash the subpoena by 11 out of 16 fake electors. Whereas one headline I liked read, fake electors facing real criminal charges. But you also had a motion to disqualify Fawni Willis and her office, Allah, what Trump had done in New York, a candidate for Lieutenant Governor of the state, who who Fony Willis supported the Democratic challenger moved to disqualify because Fony Willis held a fundraiser exercising her first amendment rights as a fellow Democrat. Her candidate of choice is facing a primary challenge Democrat to Democrat and she held the fundraiser.

Unfortunately, this was her first big hearing in front of Judge Robert McBernie, a double Harvard judge in Fulton County who's supervising the special grand jury who allowed her, approved her request for the special grand jury is ultimately the judge over the process. He was a former assistant district attorney in the Fulton County office before Fawni Willis. He was a former assistant US attorney for that county, a very credible person. This was the first time Fawni Willis's office and Fawni was in front of him related to these various types of motions. And the judge did say two things to sort of signal to Fawni to kind of tone it down a bit. One, he commented that although she is a technically the legal

advisor to the special grand jury, not a prosecutor in that in that role, he did not really like the fact that she had taken to national media on a regular basis to talk about the case. He said, my special advisor to the grand jury has taken to national media on a regular basis. That's a signal to Fawney to kind of tone down her media presentations. Secondly, he said point blank, using a cocktail party analogy. What would people think at a cocktail party about the special, the prosecutor, the lead prosecutor for the county, holding a fundraiser for the opponent who is also in the crosshairs as a target of a criminal investigation.

He used words like, what were you thinking moment? Bad optics moment, but he didn't go so far as to either to qualify the office or Fony Willis from, we haven't got his ruling yet, but at least orally during the hearing, he doesn't seem to be inclined as of yet to take Fony off of prosecuting that particular Bert Jones as a, as a defendant. He's not going to disqualify the tire office from doing the prosecution, but we have to wait to see then we'll probably talk about it next week. What he finally does about Bert Jones's target letter and testimony before the grand jury. But it was interesting to hear him also remind everybody, and we haven't really talked about

the process this way, that it is him as the judge supervising the special grand jury, not Fawni Willis. That's going to make the decision about first, he gets the report before anybody from the grand jury. And secondly, the release of that report is not based on what Fony wants. It's based on what the judge wants to do. And he's already said, I'm not going to make this political. If it gets too close, this is another warning to Fony Willis. If it gets too close to the midterm election season, I'm going to withhold the report. So it's not the impact

the election. So this is already July. November is the election. She better hurry up because if there's not a big time interval, as the judge would like to say, between the report being issued by the special grand jury and the timing of the election, he's going to put it in an embargo in his desk drawer and not release it until after the midterm, so they don't have an impact on Bert Jones on others. I thought that was very interesting, Ben. His, his kind of reasserting his role in the process, reminding Fannie Willis that she's a legal advisor. And I don't want to see you as on TV as much

or holding fun razors for opponents of people that you're targeting. Yeah, you know, so one of the things for disqualification, or the disqualification of her would have to be an actual conflict, versus the appearance of a conflict or the appearance of impropriety. And here while he mentioned the appearance just doesn't look good, it's a bad look that

you're holding this fundraiser at the same time of the prosecution. Just don't hold the fundraiser and do the prosecution. It's not an actual conflict and these things happen, but it's just not a good look given the profile of it. So I think that is, you know, why she won't ultimately be disqualified. But you see a little bit of a contrast though, Popo. And I, by the way, I think Fonney's doing good. And I think Merrick Garland's doing good. But I think there is a contrast in style that is worth kind of pointing out because as the Fonney Willis investigation has accelerated.

And as she's done this incredible job, there is gonna be a lot more media attention there that wasn't there before. And someone like America Ireland who has had the media spotlight there before, in some of the most high profile prosecutions, it is not easy to like deflect that and to grapple with that with the height of a prosecution of this magnitude. And when you fly very close to the sun sometimes, you got to be careful of how close to the

sun you come. And that's kind of what the judge was saying here too, which was like, this is a serious prosecution. And there is a level of media relations that comes with that. But you don't want the media piece of it to overtake the justice piece of it. And that's an important part that needs to be considered. I think as we look in Fulton County, because look, that could pump us up as podcasters, as analysts, as people on social media, as people in the town square having the discussion. You know, we want the cheese may.

You know, we want the gas, we want to know that, but sometimes it's important to say, look, let them pursue it quietly. Let's get through it. Let's get it done. And then we can have the public display at the right time. I think I agree with, I agree with everything you said. I think I think the judge did the right thing to get her to tone it down a little bit, focus her efforts on what's in the grand jury room, not so much doing press conferences about and giving media interviews about she's not political. She's going to take where the facts are. You know what? Don't go on television and talk about that. Just

do do your work. I think she took a little more of a page out of Tish James's book than Merrick Arlen's book, but the problem is Tish James is civilly investigating, not criminally investigating. And as you said, you and I, you and I have been talking about Fannie Willis for eight months, nine months. We, we've been talking about her so long we finally figured out how to pronounce her name because in the beginning it was like Fannie Willis in Fulton County. Like we got it now. But now the cleague lights of national and international media have descended on Fulton County DA office and the judge has to worry about the sanctity of the special grand jury process and that it not

get inadvertently compromised by somebody who sort of doesn't color within the lines. I'm okay with what he did. I don't think she gets disqualified, even with Bert Jones. And I think this moves forward towards a report and recommendation. We now know goes to the judge for the ultimate decision, whether there's going to be an indictment of President Trump. We didn't talk about Giuliani.

This one's easy. The now disbarred New York former New York bar member, Rudy Giuliani, decided not to appear in front of a New York judge on an order to show cause in New York state Supreme Court's trial level court to answer for the subpoena that Fawni Willis brought to New York because Giuliani lives in New York. So where's subpoena only has power with them, maybe a hundred miles of Fulton County? You got to go to a judge in the state where the person resides and convince them to issue the subpoena or the warrant or whatever it is.

In this case, she went to a judge Farber and in Manhattan and said, bring Rudy Giuliani before you to answer for my subpoena. The judge said a hearing date of July 13th, that date came and went and Rudy Giuliani just refused to appear. So he's not only in contempt, but potentially of court in New York. And as of the taping of the podcast on Saturday, I have not seen any reports that Rudy Giuliani has filed anything in federal or state court in Georgia. So he has an August 9 ninth appearance before the grand jury. And

if he doesn't appear, they'll move. I assume in Georgia for criminal contempt of the grand jury process there, much like the Jan 6th Committee in Bannon. And we'll see how far Rudy Giuliani wants to take his efforts to become ban and sellmate. It's such a great point though, bringing up ban and Giuliani like that. I mean, you know, it's an easy connection to make is their bolts edition is trader insurrectionists and and more uns. Although, you know, ban and a bit more calculated than the nested Giuliani's, but it's the same kind of playbook. And this is why why why we do this podcast, like why it's so important to talk about the law and the legal system, because these fascists, these traders, these

people who are anti-democracy, they fear the courtroom when facts, when objectivity, when the truth comes before a jury. And you have to make these arguments one way or the other and people get to look at you and you have to follow a process and a procedure. They don't want that whatsoever. So what does ban and do? He just goes on his podcast and rails about, I'm gonna give him hell and I'm gonna to do this and I'm going to do that.

But you were a chicken shit in court. In court, you had the opportunity to testify. You had the opportunity to tell your side. You could have got up there and you could have said, Oh, the January 6th committee, this, the January 6th committee, that I was negotiating with them. This was the, the, the, the, you could have said all of that, but you chickened out because that is what you do. It's the same thing, you know, with Giuliani, you're not even gonna show up in the courts. You can't even appear at a real hearing that's actually under-road. So you hold fake hearings and hotel lobbies, and it's all a big charade because

they don't have the facts. They don't have the evidence. And one of the things circling back to the January 6th committee, you know, is you had 70 cases in federal courtrooms across the country and you lost every single one of them. Bill and 70. You know, they technically, they technically won one, which was a procedural issue, which didn't even help them in Pennsylvania, but it had nothing to do with any underlying evidence or anything about voter fraud. It just had to do with the procedure of how counting to place, but it was

not a substantive, you know, thing, but it was not a substantive thing. But it was, here's the thing. All you had to do is show evidence in a valid declaration of any of these claims that you're making. And they could not. And they go, oh, well, some of them were thrown out for standing. Sure, some of them were thrown out for standing. Most of them were decided because you had no evidence, but not having standing is even worse than

not having the evidence, not having standing means you're so wrong that you're not even the right person to even step into the courtroom in the first place to make the argument. You know, Republicans act like this standing argument was that the courts acted unfair to them. But guess what? The New York Jets don't get to play in Madison Square Garden. Okay. That's good.

By the way, maybe if they had chosen lawyers like closer to the Mount Rushmore of the legal elite instead of who they chose to prosecute their cases, maybe they'd get things like standing right, the right courtroom right, the relief right, and the evidence presentation right. But back to your point, they can't get the evidence presentation right,

because there is no evidence. I wanna say one thing that we've said before, but just to reiterate, there's always fraud in every election. Every election since time immemorial from when we had paper ballots and those big bulky machines when I first voted in 1980s something where you flipped a switch in the curtain closed and it was like a mechanical ballot all the way through the electronic voting, there is always a degree of fraud in an election. a degree of fraud in an election. It usually historically amounts to point O2 or less percent. It's people voting in the wrong precinct. It's a little bit of dead people voting. It's a little bit of

a little bit of Martin Meadows and a little bit of Martin Meadows voting twice. Yeah, yeah, it's a little bit of I submitted an absentee ballot and I went and voted on election day. It always happens. But because of the numbers that vote in a national election, totaling hundreds of millions of people, it doesn't statistically matter or change an election. It was never going to overcome the seven million popular vote that Biden won by or the electoral vote state by state. So we're not here to say that it was a perfect election. It was a fraud.

But here's the thing. A fraud for election. Right. Every single, it's not, it's not a political, I mean, normally I've seen when these cases have happened almost all of them in the small fraction of cases where people vote in the wrong place or all of that intentionally. It's Republicans, but that's what I've seen in this election that it's been its Republicans like what Mark Meadows did voting in North Carolina.

But there will be a small fraction, like you said, and everything. But here the question is, this is Ben Ginsburg, who is the legal titan for, you know, who's the Republican lawyer who's the Republican legal titan. Republican legal titan. And he said, look, you know, when we deal with these fraud cases, itan for, you know, who's the Republican lawyer who's the Republican legal titan. Republican legal titan. Republican legal titan. He said, look, you know, when we deal with these fraud cases, it's about specific areas with specific findings where it could actually change the election. And none of that happened here in Popeyes. One last point, which is a nice transition to this Alina Haba thing, though, is that the firms that were the bigger firms that had any self-respect, like they, if they wouldn't lose their legal license, because we still have our legal system,

they were afraid, they weren't courageous, these big firms. I'm not going to give them credit for being courageous. They were afraid they would lose their legal licenses, and they were right to be afraid, because all of the idiot Trump lawyers who went in and lied to the court have lost their legal licenses or have been sanctioned severely or under investigation. That's why they didn't do it. If they could get away with it, these greedy people would get it, would do it. A lot of them, not all of them. There's some really good ones out there. So I don't want to characterize it. The good ones know who they are.

I think maybe they do or maybe the bad ones, you know, I think they're good ones, but they're not. So probably that as well. But they at least knew not to proceed. That's why Trump got all of these other lawyers who are now under these investigations and being disbarred. And now you have Alina Haba is just one of Trump's lawyers who she files these ridiculous things in court.

I mean, ridiculous documents. I mean, and I think Trump uses her, I mean, her office is right next to Trump's golf course, you know, she loses everything that she files and embarrassing fashion, which is why Trump, I think likes to use her though, because she'll still file whatever it'll serve his purposes. And so we've talked about all of the different cases, whether it's the Tish James stuff

that she files where Trump was held in contempt. You know, she sent demand letters to a Pulitzer to asking that they withdraw the award from the Washington Post for giving them a Pulitzer prize asking that they withdraw the award from the Washington Post for giving them a Pulitzer prize for investigating Trump and threatening to sue them, like literally just like the worst lawyer ever. You know, and now she's been sued for employment discrimination. The boss from hell is what one paper above the law website is calling Alina Habba. And the allegations from this employee was that Alina Habba created this highly racist, toxic environment

that Alina Habba would blast hip-hop music and use all of the slurs that were in the hip hop music and would blast the hip hop music and would kind of belt these words out loud right before the hearings that she would go into. And as above the law says, perfectly normal conduct for lawyers, I mean, obviously being facetious. And then I'm going to go into the comments that are alleged what we could drop yeah no i no i was wait a minute this thing's in there besides using the n word out loud in in wrapping to tmx and little way in another is we have a black parallel

plaintiff who followed leanah oba from one firm to another in oba was at another firm she had her i guess her made it her maiden name, Ayet, and then moved on with another colleague of hers and found that a firm went out and reached out to this plane F to join her and bed Mr. New Jersey at this small firm that she set up. Everything's going great except this black woman paralegal

takes offense to Lena Haba and her partner, blasting rap music, singing the N word to get themselves pumped up for court proceedings and otherwise. Note to Lena Haba, it's not working. You've lost every court proceeding, maybe you should try a different tactic. She also, when she was confronted by the plaintiff

about the hostile work environment because Lena Haba called her on the carpet and said, you don't seem happy around the office anymore. Is it the cases you're assigned to? She said, well, she finally screwed up enough courage to tell her, I really find it offensive when you order fried chicken for a lunch and you tell me you're doing it because of me.

Or you use the N word and Lena Habba rather than saying, hey, you're right, that's inappropriate. I'll make changes. Please don't sue me. And I'll change my ways. She said, your Lena Hava said to her, you're making me uncomfortable that you're not comfortable in this law office. And your job as a paralegal is to make me feel more comfortable. And I'm a fellow minority. You know, the old, you know, I can't be racist. I have black people as friends. I'm an Arab American and, and, and I, and I can't be racist. And they also, the plaintiff said, Jor, I don't like the fact that you called Latisha James that black be word frequently in this office. And she said, well, that wasn't for your ears. You weren't

supposed to have heard that. So I think they have a very good case. I think they have three counts in New Jersey Superior Court in Sussex County under the New Jersey discrimination laws. They've got two other counts for emotional distress and punitive damages. I assume there was a demand letter before this case went out to try to settle the case voluntarily. I assume that that was rejected by Alina Haba, who wants her day in court. And how she and her partner and her law firm are going to get it. Popak, popak, popak with the great summary. Popak, did you see the moment in the January 6th hearing where Josh Holly, yeah, and

everybody was like laughing at him for running a, for running away from the insurrection that he inspired. Did you know popok that might as touch made a shirt? Don't coup it. Oh my God. I have to do it. Let's show it salty. Show it.

Yeah, we're showing it right now. Go to store. MidasTouch.com. You can get, we made the shirt like literally right after it and have an introduction and already some deliveries are being made. Did you see Carol? Did you see Carol Maloney's tweet right off of that? Oh, it was great. The representative leading Democrat out of New York. She had a great one shot split screen tweet. I think I, I think I retweeted it. Left side was Hawley, Fist Up, Solidarity, the Jan 6 people, and the other side was him,

that grainy shot of him running, and on the left side it said, so, and the right side said, reap. And that sort of summed it up. He was, he was high-legging it out the back. That looked a scary, one of the scariest things that we didn't talk about tonight. Maybe you guys talked about on the brothers podcast was, was this got so, I know the Republicans and the right wingers who are not following this Jan 6, or think it's a kangaroo cord, or it's not changing their mind.

They think, oh, there was, there was not a violent overthrow. Secret service, for Vice President Pence were saying goodbye to their loved ones because they thought they would die in the line of service, protecting the Vice President. Secret service thought they were going to die on that day. What does that tell you about the melee of the siege that was laid on the Capitol, led by and promoted by the president. Well, Popeye, in terms of you saying the first up, Popeye, are you lifting right now and do you lift because?

I'm a picker. No, your arms when you're gun show when you were doing that, the arms were looking pretty big. Are you? I think the might is mighty one. No, are you lifting? What's your? I have a routine.

My same exercise regime since I was in college. What is that? I work out by three days a week. It will kind of work out. The people want to know I talk to you offline about my special. Oh, so that will will will will feel for their on the news. It was definitely good.

But pop up the editorial page of the New York post though says. Oh, yeah, that, yeah, that they wrote one and they said, as a matter of principle, as a matter of character, Trump has proven himself unworthy to be this country's chief executive again. So sentiment is moving there. They have their own. Wait, wait, wait, don't, don't leave yet. Rupert Mardock owns the New York Post every day since last January, the New York Post has has had an article above the fold, the old time he speak about newspapers, above

anything related to positive news about Joe Biden or the economy or the Gen 6 committee, about Hunter Biden and his laptop. Every day, you can look it up every day since last January, that paper's editorial board just said, Trump is not fit to serve an office again. Popeye, I find it funny that you're keeping your workout routine secret. From, it's a whole funny concept. It's a whole funny delving into your mind.

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