Legal AF by MeidasTouch - Top Legal Experts REACT to most important legal news of the week - Legal AF 8/6/22

Episode Date: August 7, 2022

Legal AF host Ben Meiselas is joined by midweek host Karen Friedman Agnifolo with Michael Popok on a vacation break. But the law doesn’t stop for Popok! Sorry Popokian! Meiselas and Agnifolo are in the house and discuss (1) the Alex Jones trial and verdict, (2) Lindsey Graham’s efforts to try and quash the subpoena from the Fulton County special grand jury citing the speech and debate clause, (3) the DOJ lawsuit against the state of Idaho for depriving women of emergency abortion care at hospitals, (4) the criminal trial against terrorist Stewart Rhodes, (5) updates on the New York Attorney General civil investigation into Trump, and (6) the Department of Justice investigation into January 6. DEALS FROM OUR SPONSORS: AG1: https://athleticgreens.com/LegalAF 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 Learn more about your ad choices. Visit megaphone.fm/adchoices

A verdict against Alex Jones in the defamation trial out in Austin. 4.1 million dollars in compensatory damages and 45.2 million dollars in punitive damages. We discussed the trial and will explain the verdict. Also, Senator Lindsey Graham continues to fight the Zapinas in front of the special grand jury in Fulton County. This time citing the speech and debate clause as the reason why he can't testify in Fony Willis' investigation into 2020 election interference in her state. Also the Department of Justice files a motion in the federal criminal seditious conspiracy case against terrorist Stewart Rhodes, the leader of the terrorist organization, the oath

keepers asking the judge to exclude any claims by Rhodes and the oath keepers that they were following the lawful orders of Trump also the Department of Justice brings a blockbuster lawsuit against the state of Idaho for its total abortion ban in which will likely be the first of a number of these lawsuits brought by the DOJ against states that are even preventing women from getting emergency care in emergency rooms with their total abortion ban. Finally, Ivanka and Don Jr. are deposed. In connection with New York Attorney General Tish, James's civil investigation end. The Department of Justice we learn is in contact with Donald Trump's lawyers in connection

with the Grand jury and panel in Washington DC investigating election interference and the January 6th insurrection. The most consequential legal news of the week Ben Myceles joined by Karen Friedman Nifalo filling in for Michael Popok on this week's blockbuster edition of Legal AFA Wedding Edition. In fact, our younger brother, Jority, is getting married.

This week I'm in Pittsburgh, where I am taping this, but I'm glad to be joined by Karen, Friedman Nifalo, Karen. How are you doing today? It's great to see you again. This week I'm in Pittsburgh where I am taping this but I'm glad to be joined by Karen freeming Nifalo Karen how are you doing today? It's great to be here. Thanks for having me I'm in upstate New York today where it's gonna be close to a hundred degrees and almost a hundred percent humidity

So it's it's quite hot Well, I got to tell you what was incredible and what is the DOJ investigation into Trump is heating up. As all these investigations are heating up, it was so great the Wednesday episode that you hosted with Donia Perry, a former SDNY top federal prosecutor there to have your insight as a top state prosecutor and to have Donia's insight as a top state prosecutor and to have Donia's insight as a top federal prosecutor. And she wrote that Brookings Institute report that laid out

the claims against Donald Trump before the January 6 committee convened. So to have both of your perspectives there was incredible. I would tell everybody to listen to it. But thanks for hosting that. It was really great. Yeah, it was great to have Ron. I really thought that was a special episode.

And just to get her perspective and her insight was fantastic. And I have a lot of hope that the DOJ is finally moving forward. And hopefully we'll see charges against Trump at some point. That's what I really like about Legal AF. The show in general too is bringing people this perspective from actual prosecutors who Handle these types of cases. I mean at the SDNY These were the issues that would have come before her and as a state prosecutor These are the issues that would be before you I want to talk about now the verdict against Alex Jones in the defamation trial out of Travis County, which is in Austin, Texas.

He was being sued for defamation. He was, um, he was already found reliable in the first phase of the trial because he didn't turn over documents. He engaged in all those games that we kind of saw him playing during the damages phase and the judge after he really didn't produce all of the records and didn't follow the court rules. Just said, okay, if you're not going to follow the court rules, you're going to be held responsible. So he was held liable and responsible for defaming families, particularly in Travis County.

It was one family, but there's going to be a number of other child's cases that are going to be following this in Connecticut. But there's one family alleged that Alex Jones would lie and about that they were actors and that this was all a fake and that Sandy Hook didn't really happen and that their child didn't really die in the horrible massacre out in Connecticut, out in Newton, and horrible, horrible stuff like that. And so a lot of people now were tuning in because this was the damages phase of the trial. And in the damages phase of the trial, it's what it says. The only thing that would be decided is how much money would Alex Jones have to pay this

family for defaming them and lying about the Sandy Hook massacre and lying that They weren't really that their child didn't really dies heinous and horrific as it is to even talk about So a number of things happen I mean, you know that were fairly dramatic, you know in this damages case because normally Karen in a damages trial Really you're not litigating the underlying facts of the case, whether someone did something or didn't do something. So people want to think about, you know, the Johnny Depp trial and all of that testimony back and forth about who did what.

In a damages phase, though, it's already established that the person was liable and responsible. So the question really was, well, how much money should you have to pay to the plaintiff because you already found responsible and liable? But this pretty much, this had more drama than I expected, right? When it turned out that Alex Jones's lawyer reportedly inadvertently turned over all of his text messages for two years to the lawyer for the plaintiff. And remember, Alex Jones had previously claimed that he didn't have these text messages. They didn't exist. There was no messages about Sandy Hook, but the lawyer got those text messages at Alex Jones when he was being cross-examined. So this is your Perry Mason moment of reference to the TV show of course for all our young legal

affers out there and cross examined Alex Jones about these text messages. It turns out because Alex Jones was also heavily involved in the January 6th insurrection. He was one of the big peddlers of the big lie of big Trump supporter and all the Trump election fraud stuff that was taking place in January 6th. The January 6th Committee subpoenaed those text messages. So a lot of drama there. And then we get to the verdict. And the verdict was a 4.1 million in compensatory damages and a $45.2 million in punitive damages

right there. And so I want to discuss Karen first off before I go in and I could explain the Texas caps and what compensatory damage are because I think there's a lot of confusion about that aspect. Let me kind of turn it to you, Karen. Just to ask you, what were your overall thoughts about this trial? Then I'll go break down the caps. So I think it was sort of very interesting for many reasons, this phase of the trial, because you know, a lot of people don't know that trials are broken up into these various phases, as you suggested.

You know, there's the liability phase and then there's the damages phase. And you know, that you watch TV and you see how trials are portrayed on TV and everything sort of happens at once. And so I think this was a very interesting phase of the trial because the plaintiff here, the parents of this kid Jesse Lewis, the parents, Neil Haslin and Scarlett Lewis, they actually got to speak directly to Alex Jones and really tell him what his horrible words meant to them and how it destroyed their life. And I think all the news reports are suggesting that that was a very cathartic for those parents to be able to face him in court and talk directly to him. And so I thought that was really a powerful part of this trial.

And I'm glad that they had an opportunity to talk to him directly and tell him what his words did to their life. Now, of course, I don't think it means anything to him because he's a horrible person. And, you know, he, I don't think he, one bit pain and suffering that he causes. But I still think for them, it could have been a very cathartic moment. I mean, this mom, Jessie's mom, Scarlet Lewis, is an extraordinary woman. She's turned this tragedy that happened to her family into a national movement where she, in schools, all over, first of all, she's forgiven the shooter of this crime, which I find extraordinary,

how she could do such a thing. But then she thinks that the root cause of these school shootings is that we alienate people and we don't teach love and acceptance. And so she's put together this foundation and this program where she goes all over the country and she tries to teach love and acceptance, to hope to prevent the next school shooting, to hope that, you know, people aren't bullied in school or won't feel the need to do things like this and to treat mental illness for what it is. So the fact that she could have somebody who cares so deeply in talking about these issues,

the fact that she'd have the opportunity to face Alex Jones and tell him what he has done, I imagine was an incredibly powerful moment for her. And so I'm happy in addition to the the monetary damages that this family is going to receive, that they also was able to actually speak directly to Alex Jones who was sitting in the courtroom, because you don't always get that right, you don't always get that opportunity that had to have proven cathartic in some way, you know, to be able to do something in that regard. So I found that part of the trial really powerful. The other thing though, of course, was that sensational parimason moment that you talked about, you know, this accidental turning over a text message. And that's a head scratcher to me. First of all, you know, how does that happen? You know, what do you mean? Like, how do you

accidentally turn over things that you, that you aren't supposed to, or that you're trying not to turn over? So of course, that makes me wonder, was this nefarious in some way? You know, was this really an accident? You know, like, like, you know, so, and at first, I thought, oh, great, you know, he, Alex Jones lied. He said these text messages didn't exist and they actually did exist. And now maybe he can be prosecuted for a perjury or contempt of court or something. But he's, you know, he's slippery enough, of course. And he said something like, you know, oh, you know, I, I, I, I, it's not that I said, I didn't have text messages. It's that I searched, you know, you know, first of all, I turned everything over to my lawyers, which we now know because the lawyers turned it over. So now it's no longer his his responsibility because he says, I don't know what my lawyers turned over and didn't turn over. I gave everything over. So, you know, he's going to slip out of that. The lawyers now the question is, will they be in trouble for lying and saying,

oh, we searched, you know, our emails to see if there was anything about Sandy Hook, but there wasn't anything. And so, that's going to be, I think, an interesting piece of this to follow to see if they can be, if they're going to be held accountable for that. But you know, you wonder, was this somehow there, because you know, Alex Jones is entire tactics so far in all of these trials and there have been other matters where he's defaulted, et cetera. It's all about, you know, it's all about trying to, you know, trying to make it so that he's evading, being going to court, or somehow he's trying to delay things, or he's trying to screw things up in court.

So there's a part of me that wonders, was this some ploy to show that his lawyers, you know, like, were they hoping for a mistrial in the middle of the trial to say, oh, we just got these, you know, and, and, you know, we were supposed to get these before trial. So we must now get an adjournment or we must have a mistrial. I don't know. Was that their ploy interning it over? Hoping that the plaintiff's lawyer would ask for that rather than instead use it as a parameason moment.

I don't know. I would love to hear what your thoughts are on that, on whether this was an accident or some kind of ploy again to disrupt and delay the trial. I don't know. What do you think about that? I don't think it was a ploy to disrupt or delay. And I'll explain to you why. They were the reason why Alex Jones defaulted is because he wasn't turning over the records and documents in the underlying case to begin with. And so whether you produce or don't produce those documents in the second phase, the

punishment in many ways was already dulled out. The punishment was he lost the case as a result of not turning over those records. So turning them over in the second phase, whether you want to call them as employer, why would they be inadvertent? They were turning over troves of records because in the second phase, they were trying to prove that Alex Jones was actually not worth a lot of money and they were just trying to do a document dump on them before the punitive damages phase to try to reduce the damages. So I do think generally they were just turning over literally every piece of paper that could possibly exist. Just to try to kind of swamp the plaintiff's lawyers with all this documentation.

And I don't think they cared whether or not they turned over these records or not, because the penalty was already dulled out. The penalty was the defaulted judgment and that they already lost. Now arguably, if they're now turning these records over for the first time, you know, there could they argue, well, you know, now that these for the first time, you know, there could they argue well, you know, now that these records exist, maybe we shouldn't have been found, you know, to be in default, maybe the appropriate thing

was a monetary sanction of, you know, the type of monetary sanction for legal aeifers that Donald Trump was hit with when he was in turning over his records in the Tisch James civil investigation where the court was finding him each day, he was interning over his records in the Tish James civil investigation where the court was finding him each day. He didn't turn over the records, but there in New York, the court didn't say, well, we're already finding you liable and responsible for everything you're being potentially accused of. So there's that potential angle, but the penalty was dished out

in the sense that he had the lost, but you raise an important point that these phases of trial. So I want to geek out a little bit, explain people the various phases of a trial. I'm going to break it down to the most simplistic term. So in a civil trial, and this is a very simplistic way of thinking about it, there would be three phases of the of the trial. There would be the liability phase, right, whether the person was liable. In a civil case, it's not guilty or not guilty. That's a criminal case. In civil, you are liable, you are responsible for the wrongs that you are being accused of in civil court or you're not. So there's a liability phase.

Then you go to a damages phase. Okay. You've now been held, if you haven't been held responsible, you win the cases, the defendant. You don't have to go to the next phase. And there's the damages phase. How much money, because civil is all about money, not criminal courts, not about guilt. You don't get in jail in civil cases. How much money do you have to then pay the plaintiff for what you did wrong to the plaintiff? Now, that could be car accidents, it could be defamation, it could be breach of contract, it could be a business dispute. These are all types of civil cases. So how much money? And then within the damages,

there are economic damages and there are non-economic damages and economic damages refer to like out of pocket expenses. So in an employment case, it's lost salary in a car accident case or a personal injury case. What the didn't show up at work, how much salary did you lose? What were your medical bills? What were your expenses? Those are your out of pocket costs are your economic damages. How much real money did you lose as a result of the wrong that the defendant committed and there's non economic damages, which is emotional distress damages pain and suffering is what that's often called and pain and suffering. There's no formula about how we jury decides pain and suffering, but they hear the facts,

they hear the evidence, and they usually ascribe some number to that based on how this has impacted the plaintiff in the case. And then for specifically egregious cases, you can get to the next phase, which is punitive damages. And punitive damages have really nothing to do with how much the plaintiff was hurt, how much like actual damages the plaintiff suffered, punitive damages are purely to punish the defendant in a case and to deter that conduct again in the future. And so with punitive damages, the courts have held over time. There are kind of constitutional

limits of how much punitive damages can be awarded. It's usually a single digit multiple of your underlying damages from the damages phase. So if in a damages case, you were awarded a million dollars, just say it was half a million dollars in economic damages, half a million dollars and non-economic damages That equals one million dollars what the Supreme Court has said is under our constitutional limits of basic due process a Defendant really can't get hit or can't be responsible for more than like nine times That at the highest at the constitutional limits. But remember in our federalist system, there's kind of these constitutional limits, but states can also have their own limits as well. And under this banner of what's called tort reform, which is a major thing

that was pushed in the past and continues to be pushed though, predominantly by Republicans who basically say, look, these trial lawyers are out of touch and they're just attacking businesses and they're getting these huge verdicts. We need to stop it. There are often caps that are placed and these are caps that are often placed on the non-economic damages, the pain and suffering style damages and caps that are on the punitive damages to reduce it. So what are these tort reformed at doing the end? At the end, what tort reform does is it reduces the amount of money plaintiffs can recover in cases

when they file lawsuits against defendants. So using all of that knowledge that we just learned right there, let's talk about the Alex Jones case. So remember, he didn't turn over his records in the first phase of the trial, which meant he was already found responsible. The jury didn't even have to hear about whether Alex Jones defamed or didn't defame these families. He was already found responsible. Deformation was already proven before they even stepped into court because of his conduct. So then we got to the damages phase.

And in the damages phase, the jury awarded $4.1 million in what's the compensatory damages. Remember, those are economic and non-economic damages. If you go and you hear the verdict, it was a weird thing because the judge when she was reading the verdict didn't really read what the questions were in the verdict form. The judge just basically said for question 1a, the jury finds 50,000 for question 1b, the jury finds 75,000 or 500,000. Rather than say for economic damages, the jury fountains this for future economic damages, the jury fountains this, for future economic damages, the jury finds this. So it was unclear a little bit when you heard the judge what was the economic damage and

the non economic damage, but given when she was going to 2B and 3, those are usually the non economic damage questions, because usually one is economic. So I think what we could assume is from that $4.1 million compensatory. Most of that was non economic damages. The pain and suffering that the family's experience because of Alex Jones's defamation. So then we go to the punitive damages phase, the jury awarded $45.2 million. Well, the juries are not allowed to know what the caps are. That's for the judge. So if states institute their own caps on punitive damages and lower it, the juries aren't even allowed to know the constitutional cap that I told you, which is usually more than what the state cap is that nine times number. So the jury has no clue what that was when they awarded 45.2 million. But in Texas, there is a punitive damages cap. And the punitive damages cap is if the whatever the economic damages are punitive damages can be two times the economic damages, plus a maximum of $750,000 for the non-economic damages. So if the jury had awarded $2 million from that $4.1 million as economic damages, that

$45.2 million punitive damages could be reduced to two times the 2 million or 4 million. But because here Karen, it looks like mostly all of the damages were non-economic pain and suffering damages, the maximum you can have is a $750,000 cap for the non-economic damages when you're deciding punitive damages. So 4.1 million in compensatory damages representing mostly pain and suffering. Plus, what likely will be $750,000 for both of the plaintiffs, because that's the cap. So that's the maximum that I see.

For each. Each. Is it for plaintiff would be the cap for the non economic damages. And that's because that's a Texas law. That's something that Greg Abbott and the Republicans push through. So that 45.2 based on the analysis I gave you will likely be reduced at the end to 1.25 million dollars. So I know that's a very wordy explanation. will likely be reduced at the end to $1.25 million. So I know that's a very wordy explanation,

but I think we walk people through there. What it is and how simple. No, I think it's really interesting. I think it's really interesting and important to understand because when the jury awards $45 million in punitive damages, they're clearly sending a message, right? That we don't like you Alex Jones, we want to punish you because that's a lot of money, but it's really nothing

more than a message because, as you said, there are these caps. I have a question for you. In a case like this, when you say there was a liability phase to the trial, there really wasn't a liability phase to the trial, right? There was no trial, you know, he defaulted, correct. And the judge found him liable, is that correct? Yeah, that's correct. So the jury, yeah.

The jury didn't even have to hear any of that stuff. So normally, my question is to you, in normal cases where the jury does hear a liability phase, right? They hear an opening argument, they hear the facts, the damages part of the trials probably limited to this is how much my medical bills were, etc. But in a case like this where the jury didn't get the opportunity to see a trial, right, to prove the case, in that how much of the trial where you talk about what it meant to you and how bad it was, you know, how much of that can you do in the damages phase?

Is it like a mini trial within a damages? Is it sort of like the main trial that they never got to have in the damages phase of the trial? Usually, no. I mean, usually the damage his phase would literally just be kind of speaking, you know, in the case that you gave in the personal injury case, you know, you would have to talk about though how bad the injury has impacted you. You will necessarily be talking about the injury. You can't ignore that the injury took place

when you're explaining how much the injury hurt me and how much the injury impacted me. But you don't have to say, look, this person was responsible, they did it wrong. Like defamation, you have to prove that the statement was false. It was done with, you know, in certain cases, you know, either negligence or recklessness or intent

depending on whether you're a public figure, you know, and the cases, you know, either negligence or erectlessness or intent, depending on whether you're a public figure, you know, and the elements of defamation. You don't need to prove that. We were defamed. This is what they said. This is how it hurt us. So you are going to be talking about the defamation, the actual active defamation itself. And normally in a normal trial, it's usually not split up. Usually, you'll have the liability and damages because they're usually intertwined or talked about together, but sometimes in like a really complex case, where there's a complex issue on liability,

and then maybe sometimes the damages is so significant like you'll need 25 experts to talk about the damages or not even 25 just a lot of experts in it super costly. The judge may bifurcate or you know the case and say okay, I want to hear liability first because the jury doesn't need to spend three weeks hearing from 20 experts on damages until we establish first liability. Let's set that aside as a separate phase, give the jury some rest, or even potentially bring in a whole nother jury just

to hear damages. And so it's interesting, it's complex, but for purposes of the Alex Jones case, know that they didn't even have to, they didn't even have to talk about liability at all, which is rare. Usually a party doesn't default. They participate in their case. They were just talking about damages. And then the cap on the punitive damages in Texas means that, you know, based on the analysis that I just gave you, because the 4.1 million in compensatory is mostly emotional distress

aka non economic damages. That means that the 750,000 portion of the punitive damages cap would do here. Did you hear that somebody donated eight million dollars and Bitcoin to him during this trial is to help pay for this? Isn't that disgusting? Two Alex Jones? Yeah. Yeah. I for this. Isn't that disgusting? Two Alex Jones? Yeah, I read that. I read that, I couldn't believe it.

I have one other question for you on this case. So we've heard that the January 6 committee wants to get a hold of these text messages that were turned over this trove of text messages. What are your thoughts? Do you think they can get them? If they can. If they can.

So do you think they can? Yeah. Look, the record should have been turned out. They're not privileged records, number one. So they're not like a turni-clined privilege records. And how do I know that? Well, during the actual trial of the Alex Jones case, what the lawyer for the victim's family, what the plaintiffs lawyer said was, we had notified Alex Jones lawyer

of the potential in advertent transmission of these records. And we let them know if they want to go through these records. And maybe there is a privilege claim, let us know. And they never even responded to us about that. So any privilege claim that these are like lawyer messages, all of that would have been waived when, you know, and there really isn't any attorney client, but there's no privilege over these records. I'm sure the January 6th committee has it already. They don't even need to subpoena. I mean, the plaintiffs lawyer can give these records to anybody. The plaintiffs lawyer can publish them publicly right now, I think, to the world. I don't believe

this is, yeah, this is going to be, I think, I think these text messages are going to be at what what the Republicans were hoping, you know, Hunter Biden's laptop would be, you know, it's going to be the gift that keeps on giving just to have two years worth of Alex Jones' text messages with everything in there. If it's really what they're just purporting it to be. Wow. I saw someone mention it, and I want to talk about this Lindsey Graham and some of the other DOJ efforts, but you know, I saw someone mention, and I want to talk about this Lindsey Graham and some of the other DOJ efforts, but I saw one comment, I think it was on Twitter. That basically said, at least Alex Jones saved his text messages compared to the, compared to people that we're seeing within the secret service with the DOJ investigation there,

seeing the secretary of Homeland Security, having his messages deleted. So at least Alex Jones' message is exist. And I saw another comment like, you know, the Republicans were talking about a subset of Hillary Clinton's emails that were deleted. Yet literally, the Republicans in Trump deleted every single message ever in existence, you know, and they're the worst deletors. And so the biggest projection artists in the world, and they're the worst the leaders. And so the biggest

projection artists in the world and speaking about the biggest projection artists, we'd be remissively didn't talk about these corrupt GOP backers and enablers of Trump like Senator Lindsey Graham. Karen, can you talk a little

bit about what's going on in Fulton County with this grand jury and Senator Lindsey Graham is has filed a motion with federal court within Georgia, basically invoking the speech and debate clause of the United States Constitution and basically saying members of Congress, senators, Congress persons are immune from having to testify and participate in proceedings under the speech and debate clause. And Fawne is saying, that's great if it's speech and debate in the House, but engaging in criminal acts in my state

is not speech and debate, Senator Lindsey Graham. That's the fight that's going on in Georgia. Senator Lindsey Graham does not want to testify before this grand jury in Fulton County. Yeah, so this is related to, as we all know, there's a special grand jury that has been assembled in Fulton County to in Georgia by D. A. Fonney Willis to receive evidence and write a report not not to decide whether or not charges will be brought, but to, it's a special grand jury proceeding that's being overseen by a judge, and it's to determine what happened when Trump called on January 2nd to Secretary of State Brad Rathensberger and said, find me 11,780 votes. and said, find me 11,780 votes. And that's basically what this grand jury's about. And so it turns out that Lindsey Graham and others

were also involved in this effort to find these votes. And we know that Graham made at least two phone calls to Brad Raffinsberger and members of his staff and in connection with this. And so he received a subpoena that was issued in July, I think July 26 to appear before this special grand jury in Georgia and to testify on August 23rd. So he went to he wants to be heard in federal court though because he's a federal legislator. He does not want to have to appear before the lowly Fulton County Superior Court judge who's overseeing

the grand jury. So he goes to federal court and at least he agreed to go to federal court in Atlanta, not necessarily in South Carolina. And basically he's claiming a sovereign immunity. He's claiming that he, that he is, you know, basically that when he made the calls, he was legislatively fact-finding to help inform his vote on whether or not to certify the election. I mean, that is such BS.

I can't even believe that that doesn't even pass the smell test. Oh, yes, I was just legislatively fact-finding because I wanted to know how to vote, you know, on whether or not to certify this election. And so, you know, but he's saying that because of that, because I was acting in my capacity as a legislator, the speech and debate clause of Article 1 of the Constitution applies to me. And this speech and debate clause is part of the Constitution. And it's basically, it was created when the Constitution was

created so that members of Congress can do their job and that they can speak freely when they're debating and talking about legislation or trying to determine what to do with legislation. And that decisions can't be politically motivated and they can't be sued if they're in good faith doing their job. It also applies to their aides if they're acting on their behalf. But there's just no way to say that this was part of that. And US Congressman Jodi Heist had a similar objection and tried to kind of say the same thing and that was already rejected by a federal judge. So I think this is going to be, I don't think this has any legs, I think this is going to be rejected

and I think he's going to be ordered to testify. And the other thing, by the way, is the speech and debate clause talks about whether or not you can either criminally prosecute a member of Congress or whether they can be sued civilly for their actions. The Fanny Willis says, I'm not doing either of these Lindsey Graham, you're just a witness. I'm just subpoenaing you as a witness before the grand jury. So the speech and debate clause doesn't even apply. So that's also interesting and will be an interesting fact to see how that plays out. But I think he loses this one. Yeah, to that point, what's the expression of hit dog will holler? And the speech or debate clause of the United States Constitution has found an article

one, section six clause one. And in pertinentart states that the United States senators and representatives, quote, shall in all cases accept treason, felony and breach of the peace be privileged from arrest during their attendance at the session of their respective houses and in going to and returning from the same. And for any speech or debate in either house, they shall not be questioned in any other place. And so you read that and you go, what does that have to do with anything that we just talked about? And I don't disagree with you. It's just one of the things over time that you read the statute itself.

And it seems to be pretty clear that what they're talking about is when they're speaking on the house, but when they're speaking on the floor of the Senate, but courts over time and our Supreme Court over time and its infinite wisdom has evolved that doctrine. And there was a seminal Supreme Court case called the Gravel versus the United States in 1972, which further defined the protected activities and says, in so far as the clauses construed to reach other matters, they must be an integral part of the deliberative and communicative process by which members participate in committee and house proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either house.

So that term, the integral part of the deliberative and communicative process is what's often talked about. And that's what Lindsey Graham is saying here that my conversations with Rapinsberger were quote integral part of the deliberative and community process. And you heard from Karen right there, why that's totally an utter bullshit. And I don't think Lindsey Graham is going to win this argument at all. But nonetheless, it is an argument that he's advancing, but also helpful for you to see what the clause was in the constitution, how it's been interpreted, and how it is now being manipulated in a case where Trump and people like Lindsey Graham were trying to overthrow our democracy, trying to overthrow the constitution that they now claim protects them, which is a total

and utter crap. But we bring it to your attention here on legal AF moving on to we bring it to your attention here on legal a f moving on to seditious conspiracy case against steward roads taking place in federal court and dc set for trial end of September it's been moved back a few times but looks like the trial will definitely be taking place next month and so one of the things that takes place as we bring you through the phases of a trial is lots of action, Karen, write, pretrial, as a prosecutor, lots of motions are filed to try to decide what evidence can and can't come in based on the rules of evidence. And what's filed before a trial takes place are things that are called motion and limonase, which basically just means motion to exclude, bring to the judge attention.

Hey, one of the parties is going to try to introduce things, judge that we think they shouldn't be allowed to introduce because it would be prejudicial, it would corrupt the process, they'd be deceiving the jury, We wouldn't get to, you know, they wouldn't be following the law And that's what is taking place here with the DOJ saying, look judge and it's judge met up and DC judge as we head to this trial In September we want you to know that we think one of the arguments that the oath keepers are going to try to make and Stuart Rhodes in this case is that they were following the lawful orders of a president, but judge these were in lawful orders. These were unlawful orders. The president had no right to make these claims, make these orders.

So they can't rely on the fact that Trump told them, hey, you know, go, you know, go and do this, which they may try to, you know, act like they were following the orders of Trump to try to confuse the jury. Karen, what do you think about this? Yeah, that they made two, two arguments during this hearing. The first of all, they also wanted to postpone it again saying, there's no way they can get a fair trial. There's too much, too much attention being, you know,

with the January six hearings that we're not gonna be able to get a fair jury, that the jurors are gonna be watching this on TV and it's all, it's inflamed, et cetera, et cetera. And this judge said, you know, look, the case has already been delayed twice. We've already had 10 trials this year involving this matter. And we've had no problem finding jurors.

So the judge you can tell is moving this case along and moving it forward. And as you said, some of the other motions in lemonade or to exclude was also these bogus defenses that they're trying to assert. The public authority and trapment defense, which is related to entrapment by a stop-all defense, you know, this sort of honest, you know, I honestly thought that, you know, I was doing

this and at the at the be-be-hest of the government or in cooperation with the government, you know, I relied on a government official. It's interesting though, because you listen to that gentleman, Mr. Ares, who testified for the Jan 6th Committee, and he genuinely relied on, he listened to his president. He said, come to the Capitol. So I came to the Capitol. He said, come to whatever. Like, and when he told me to stop, I stopped. And so it's on the one hand, I find it fundamentally unfair

that all these people who did rely on the president are getting prosecuted, but not the president. I have no problem with it once Trump gets prosecuted. But all these people are saying, I relied on him. No, they don't have that defense, because it's not true. president. I have no problem with it once Trump gets prosecuted. But you know, these, all these people are saying I relied on him. No, they don't have that defense because it's not true. And they, they, and so the judge was right to exclude it. But it just also underscores to me why Trump absolutely has to be prosecuted for this because he is responsible. He is responsible for, for making these people believe that they could do this and by conspiring

with them all to do this. So, I think the trials just moving forward and they're streamlining it and they're not allowing them to make these extraneous arguments that have no place in the dump along in this trial. And we'll see hopefully, hopefully, we'll have another four convictions after these guys go to trial. And just think about it in normal times. Nothing's normal anymore. Trying a group of terrorists who try to overthrow our government with seditious conspiracy would be one of the most high profile, resource

intensive aspects of what our justice department would do and focus on. That case and the swing of things with all the things our justice department has to do now is kind of a footnote. I mean, it just goes to show you really the expansive nature of Merrick Arland's investigations and Merrick Arland's work. And you know, as someone who can chew gum and and walk and talk and prosecute at the same time. I mean, at the same time, Merrick Arland and the DOJ are in court with the oath keepers like let's not forget the multifaceted nature of what they're doing.

They have 800 other cases that are taking place from January 6th, about 400 of which they've already got convictions on either have been sentenced or awaiting sentence. The other 400 are in the queue that they will be prosecuting. The same time Merrick Arlin this week gives a press conference about Breonna Taylor and that he's going in that the DOJ is prosecuting the officers in Louisville, Kentucky, who are involved in that unlawful search and seizure and killing and murder of Breonna Taylor there. Since there was no accountability at the state level, you have the federal government doing

that and stepping in and making sure there's accountability. There, what Merrick Arlenowe, he says, no one is above the law. And at the same time, you have Merrick Arlen and the DOJ doing things like filing critical and vital federal lawsuits against states like the state and Idaho that has a total abortion ban.

That was a great segue, by the way. But it's true. People have to understand the breadth of what Merrick Garland is doing. And you can see it when you really discuss it in those terms. And you have them really enforcing federal law. this is so sad. You think about it. Like in Idaho, the way the Idaho total abortion ban is being applied. Women who show up at the emergency room who could die are being turned away if the standard of care required by the doctor if the standard of care required by the doctor would be an abortion in a situation like that because the doctor says, I'm going to get criminally prosecuted if I follow the standard of care you show up and require emergency

correct care in the form of an abortion. So we're not going to perform it leading a woman to die or putting a woman's health and life in serious, serious jeopardy. And so that's what this lawsuit is, this Department of Justice lawsuit is all about that I wanna talk about. But before talking about it, I do wanna mention that this podcast is brought to you

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a try Karen. So let's talk about this case out and that the DOJ just filed. I mean, pretty horrific that the DOJ even has to file it in the first place. You know, Merrick Garland upon filing it gave a press conference and said in the day since the Dobbs decision, there's been widespread reports of delays and denials of treatment to pregnant women experienced medical emergencies. Today, the Justice Department's message is clear, it does not matter what state a hospital subject to the federal law, EMT, ALA, and Tallah operates in. If a patient comes into the emergency room with medical emergency, jeopardizing the patient's life or health, the hospital must provide the treatment necessary to stabilize the patient. And then the Idaho governor, Republican Brad Little, he comes out and justifies in a statement not allowing women to use the emergency room in these situations and says, our nation's

highest court return the issue of abortion to the states to regulate end of story and accused the Justice Department of interfering with Idaho's quote pro life stance. It doesn't seem very pro life to be allowing the woman who show up to the emergency room to die when they need a standard of diving in to a little bit of detail because there are people who will say yes, but the Idaho law does provide for abortion in two instances. Number one, when it's required to save the woman's life. And number two, in cases where there's incest, and they reported it to some kind of authority, some kind of government authority, and you have to show proof, like show your piece of paper

that you reported it. And so for the piece, so there's a lot of people who will say, come on, So there's a lot of people who will say, come on, all of you people on the left, you're exaggerating, Marik Arlen's exaggerating, this does provide, this clearly has an exception for saving a woman's life. And I think because there is that view, it's quite in this leading, and I think it's important that we dive into this in into some detail. So the Emergency Medical Treatment and Labor Act that you talk about is basically, says any hospital that receives Medicare funds must provide necessary treatment to a patient who arrives in the emergency room with an emergency. And sometimes, you know, there's basically there's two sections to that. There's saving someone's life, but there's also medically stabilizing someone. So you could arrive

in a, to an emergency room, and the abortion might not be necessary at that moment to save the woman's life, but it might become necessary to stabilize her. So she doesn't have lifelong medical consequences because they don't perform this abortion. Now, I'm not a doctor, obviously. And so I can't really talk in detail about what are the various medical conditions that you could come into the emergency room with and what the health consequences could be. But you can imagine a scenario where a woman is having an ectopic pregnancy where the embryo is implanted outside the womb or where there is preeclampsia or where they're having a miscarriage and there's some kind of septic infection or a hemorrhage or something. And in that moment, the woman's not

going to die, but she could go into liver failure or she could go into septic shock or she could, who knows, there could be so many complications that happen that could have lifelong consequences, health consequences on her and on the baby. And then maybe later, her life's in danger, and then they can perform the abortion. But at that point, it's too late because they already have these severe permanent medical problems

that have happened to her. So it doesn't allow a doctor to treat them and to stabilize them in that situation. The other problem with this law that I see is it places this as an affirmative defense. And so I think that is critical to why this lawsuit by Mara Garland has to, it is so important and it's so powerful. So, so let me just describe what an affirmative defense is. So this law makes it a criminal felony to perform an abortion period full stop any abortion. So it's a crime, it's a crime in the state of Idaho. And so what happens is if this is allowed to go into effect on August 25th, is that any

doctor, her performs any abortion for any reason, will be criminally prosecuted, will be arrested and prosecuted. And then it is on them, it is their burden to show. So if you know, if you know in a criminal prosecution, the burden relies wholly on the government. So the burden of proof is 100% on the prosecution. A defendant can sit there at the table, be prosecuted and never utter a word. They don't have to give an opening. They don't have to present evidence. They don't have to testify against them. They don't have to give a summation. They don't have to do anything. And they can still be found not guilty because if the prosecution

doesn't meet their burden to prove that case beyond a reasonable doubt, the only time in the law in in criminal prosecution, that there is a burden on the defense, is when there are these things called affirmative defenses. So, and that's what this does. This puts an affirmative defense on every doctor who performs an abortion to sit at a trial and to have to prove that by a preponderance of the evidence

that they were somehow allowed to perform this abortion so that they were justified. So it just a common affirmative defense that everyone's heard of is self-defense, right? So I shot someone, I get prosecuted, you know, so I get prosecuted if I say yes, but I was allowed to, you know, because they were coming at me and they were, they had a gun pointed at me. That's an affirmative defense that I have to now prove that I was justified to do that. So every single time a doctor has, uh, performs an abortion, even to save someone's life.

Even in the case of incest, they can and will be prosecuted. They will sit at a table as a criminal defendant and they will have to prove they will have to provide evidence that that they were that they were that the woman's life was in danger and And I don't know of any other time where a doctor has to sit there and talk to 12 jurors who aren't doctors and tell them have to justify to them No, her life was in danger, no wasn't in danger. I made a mistake.

I didn't make a mistake. What doctor is ever going to make that call? What doctors ever going to put themselves in that position? And think about this, the irony of all of this is let's say the doctor said, I'm not going to make that call. I don't want to risk it. What if I'm wrong? What if, you know, what if my medical opinion is not perfect? And I was wrong. So I'm not going to do it.

And then she dies or something bad happens. Now the doctor is going to be sued for malpractice for not doing it. I mean, it just puts doctors in this horrible position. This is a terrible law. And it's, it's, it's going to chill. It's going to basically put many, many, many, many people's lives in danger. And so it's a very important case. And thank God the Justice Department is bringing it. And Karen, when we see a lot of state legislatures having these discussions and the radical right extremist usually male Republicans who are talking about these bills that have similar implications and import I was watching some of the debate recently that was taking place in Indiana for example and know you'd have

And you'd have women legislatures, democratic women legislators come up and ask the males questions, where it was obvious that at the most basic level, no science, no understanding of female anatomy, like no understanding whatsoever was even being thought through the process, other than a man wanting to control the women and when kind of cross-examined during this debate, you know, the men would say these horrific things like, well, we all have to die sometimes, so sorry, you know, and just responses like that, and you would would go what in the world is going on here

But I am at least somewhat encouraged by what took place in of all places, Kansas Where there was a vote that was taking place whether or not to there's a constitutional right in Kansas to have an abortion And one of the things that the right wing wanted to have was an amendment to the Constitution to remove that constitutional right because they wanted to ban it there. And overwhelmingly when this was put to the voters, put to the people by almost double digits, Kansas voters on a bipartisan basis said government, just get out of our bodies, like get out of our bedrooms that get out of our medical offices Just stay out. We can decide with our doctors. I don't need people like Greg Abbott I don't need people like Ron DeSantis making the decision about whether it's a medical emergency for me

I'm gonna make that decision of the family and with is, what those voters resoundingly said in Kansas. So, if you put these votes actually to the people, they will overwhelmingly do an in Kansas. It's one of the ultimate ironies of what the state's rights argument ultimately is, is that, well, if we take it away as a federal right and we make it a state's right, the will of the people is going to be reflected. But quite the right, the will of the people is going to be reflected. But quite the contrary, the will of the people is not being reflected. The will of the people overwhelmingly is what Roe v. Wade was, not at all what the states and these radical right extremist states are ultimately doing.

And then finally, Karen just wanted to talk about what's going on in your state of New York? You had Ivanka and Don Jr. were deposed in New York. And we now learn that the DOJ is also in contact with Trump's lawyers. They're heating up their investigation there. What can you tell us about some of the intensifying investigations both in New York with Ivanka and Don Jr. and with the federal level. Yeah, well, it's clear they're all heating up. It's CNN reported that the New York Attorney General, Tish James, who has both a civil and a criminal related criminal case going, investigation going, that Ivanka and Don Jr. actually sat

for depositions. I think Ivanka was on Wednesday of this week, and Don Jr. was on Thursday. They were fighting about it for months and months and months, but they finally didn't. They were also reporting that unlike Eric, the third son, they didn't take the fifth. Also, Alan Weiselberg, who, I think is the chief operating officer of the Trump org, he took the fifth as well, but Ivanka and Don Jr. didn't. So I found that a little head scratching, you know, I wonder what they said. And why would some of them take the fifth? And others not, is it because Eric's guilty of something

and so he's taking the fifth? And, or he believes he is, but Ivanka and Don Jr. don't think they are, or is it some kind of strategic, we have nothing to hide, we did nothing wrong, new tactic that the Trumpumps are starting to employ. So I think it's sort of interesting and we'll see where this leads and whether other information leaks out about what they said and what went on.

But look, in a civil case, which is different than a criminal case, a jury can draw an adverse inference when someone takes the fifth. So maybe that's the strategic difference and why they're saying we have nothing to hide. You know, I don't know. What are your thoughts on it that they're suddenly now, you know, suddenly cooperating? They think they're smarter than they are, number one. And then number two, they both want to run for political office and they both have, I don't think Eric does. So I think they both realize that taking the fifth would prevent them from entering, you know, whatever, Ivanka from entering good society again or whatever she wants to do. And then I think Don Jr wants to run a nose that pleading the fifth would, you know, be be a death knell for him because he's been out there saying if you plead the fifth that means you're guilty like he's actually has statements out there where he said words to those effect.

And then we also learn Karen that the feds are in touch also a report that the feds are in touch with Trump's lawyers and the out of the grand, you know, out of the activity taking place in the grand jury in Washington DC, it seems very clear that Trump is clearly a target of the investigation and they are moving in the direction of indictment although we'll see what happens, but every step they're taking and You know even recently calling, you know speaking. And you know, even recently calling, you know, Cyloney calling, Philbin, all of the top, you know, the deputy counsel, the top counsel, all the main, you don't get much more aggressive as a

DOJ than bringing in the person's top lawyers to testify. And then that was this week alone, Chipelone and Philbin. And then that was this week alone, Chippellone and Philbin. And then the week before that, you had vice president, vice president, Pence's chief of staff and top lawyer. So they're moving in that direction. They're moving in that direction. I think it's ultimately going to come down to, does Merrick Garland want to go down in history as prosecute being the first Attorney General, you know, Marik Garland and Joe Biden as the first Department of Justice to prosecute, criminally prosecute, former president. And that's

I think the big question that they're wrestling with. I think that Joe Biden came to the table initially saying, looks all, looks healed the country. He's very conciliatory. And I think he was, he brought Mara Garland as his attorney general who I think feels very similarly and was very hesitant and reticent to bring a criminal investee, even begin a criminal investigation into Trump, despite the mountains of evidence that was out there that he is guilty of so many federal crimes related to January 6th and trying to disrupt the democratic process. But I think the January 6th and trying to disrupt the democratic process. But I think the January 6th Committee really gets

a significant credit for interviewing over 1,000 people gathering the necessary evidence, doing the work. I mean, really the hours and hours and hours and hours of work that was put into investigating what happened, really something that the Department of Justice should have been doing. But neither here nor there, they really put in the work to do this significant investigation and then to present it to the American people in a way that is so clear that a crime has occurred, that Trump is responsible, and this is the evidence that you would need to bring a criminal prosecution against him. And so they've just done this pain

staking, methodical presentation to not only change the hearts and minds of the country, but to also, at this point, it would be shaming the Department of Justice if they do nothing, because it can't be clearer that somebody, Trump, needs to be held accountable. And I say, it's not just Trump, but others as well, need to be held responsible for, you know, for what they did and these actions on January 6. So that's what's happening. Hopefully, Biden and Garland will absolutely do what it takes. And yes, OK, be the first to do it.

I know it's a big step, but I think it's the right thing to do. I think it has to happen. I think it will happen, but we will keep everyone updated. Lots of big news developments, certainly on the horizon on future legal A.Fs, but so great to have you, Karen, on this wedding weekend for Jordi Mycelas, the Midas brother is getting married, Jordi Mycelas wedding, and I always love having you fill in Karen for Michael Popak and love your midweek show that you host. It's great having you as a host there and I'm looking forward to more of those midweeks.

Thanks for joining me this weekend. Thanks for having me. Make sure you send pictures. I want to see everybody. I want to see the brothers all dressed up. We will absolutely send pictures and want to thank everybody. And want to see the brothers all dressed up. We will absolutely send pictures and send. Yeah, send Jordy my love and everybody else's love. I'm sure everybody who's a huge, huge fan of the brothers podcast and, you know,

of this show are just absolutely so thrilled for him. And so congrats to you and your family and to Jordy. And it's just really, I love weddings and I love love. So I love things like that. I'm really excited for you guys. Thanks, Karen. And thank you to the Midas Mighty. Thanks everybody for listening and watching.

We'll see you next time on LegalA. I have special thanks to our sponsor Athletic Greens. You should definitely go and check out Athletletacreens.com slash legal AF that's athletic greens dot com slash legal AF. See you next time on legal AF by Midas Touch. Shout out to the Midas Mighty. you