Legal AF by MeidasTouch - Trump REEKS of DESPERATION in ALL HIS CASES

Episode Date: December 28, 2023

Defense attorney Michael Popok & former prosecutor Karen Friedman Agnifilo are back with a new episode of the midweek edition of the Legal AF pod. On this episode, they debate what will happen next: in Trump’s appeal as to whether he has “presidential immunity” from criminal prosecution, as the Supreme Court casts a watchful eye; Special Counsel Jack Smith’s latest explosive filing in a case that is “technically” stayed, to respond to Trump’s violent antics, and to prevent Trump from turning the courtroom for the March trial into a mockery; state courts around the country struggling to apply the “disqualification” provision of the 14th Amendment to ban Trump from the ballot, as the Supreme Court, again, looms; the increased threat levels against judges of every stripe, and other public servants in our system of justice and how it can be stopped before it’s too late, and so much more at the intersection of law, politics, and justice. DEALS FROM OUR SPONSORS! Miracle Made: Upgrade your sleep with Miracle Made! Go to https://TryMiracle.com/LEGALAF and use the code LEGALAF to claim your FREE 3 PIECE TOWEL SET and SAVE over 40% OFF. SUPPORT THE SHOW: Shop NEW LEGAL AF Merch at: https://store.meidastouch.com Join us on Patreon: https://patreon.com/meidastouch Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Learn more about your ad choices. Visit megaphone.fm/adchoices

Es ist unglaublich schwer, sauer auf Tom zu sein. Wenn der anfängt zu lachen, kann ich einfach nicht ernst bleiben. Das verrückte Lachen hat er von Mama. Und die gesunden Zähne hat er von der AOK Rindernpfalz-Saland. Wechselt jetzt in die Familienstark gekasse und sichert euch noch mehr gesunde Extras über 1.700 Euro jährlich. Zum Beispiel 100 Euro mit dem AOK-Zahnkonto. AOK-Gesundheit erleben jetzt mehr erfahren auf Gärmgesund.de The trains can pass at any time on the tracks. Remember to follow all traffic signals. Be careful along our tracks, and only make left turns where it's safe to do so.

Be alert, be aware, and stay safe. Welcome to the midweek edition of the Legal AF Podcast. I'm Michael Pope-Pock and I'm joined as always by Karen Friedman Agnipola. I can tell we haven't rehearsed that this morning other set this evening. So, Karen, we're gonna try something a little bit differently.

We're gonna do it like Jane Pauley Sunday Morning style. Oh, wait a minute, we've got, I love our show. In the of it. Pets walk by and they're all welcome here on legal AF. Is that a long introduction and everybody kind of, uh, strumming their fingers waiting for me to stop talking. So we get right to the content. We're gonna get right to the content. I'm gonna tell you the four things we're gonna talk about today. I'm then I'm gonna do a little kippit sing with my friend and colleague Karen and then we're going to go right into the show. We're going to talk about the Trump immunity issue, big eye, the immunity word, and we have it in two places. One in the district of Columbia, Court of Appeals with a three-judge panel. I'm going to

be holding oral argument on the 8th of January, and I believe they're going to be ruling within 72 hours of that on a high-speed train right to the US Supreme Court. So we're going to talk about everything related to that. If it gets to the Supreme Court, why is Clarence Thomas presiding over this case as one of the nine votes? Should he recuse himself?

We're going to talk about that today also. Then, unfortunately, we have to return to the subject of Donald Trump's violent rhetoric and its impact on judges, family of judges, law clerks, FBI agents, and prosecutors, and death threats. So, we're going to have to talk about death threats. Unfortunately, now, on the Colorado Supreme Court, justices, they did their civic duty and worked hard and labored under a lot of pressure to come up with the ruling that they came up with, which is that Donald Trump is banned from the ballot and the primary ballot and the presidential election general election ballot in Colorado.

Subject two, a Supreme Court appeal that will happen will know one way or the other once it gets started on the fourth of January And then I want to talk about with my favorite favorite resident former prosecutor the strength of Jack Smith's case in the District of Columbia Because we sometimes get caught up following all events related to Donald Trump and others at the intersection of law politics and just a sort of like a stock market. It's up, it's down, it's left, it's right. We sometimes lose sight of what's happening and what the presentation of the evidence inside of a courtroom, witnesses being paraded

in front of a wrapped jury. What that's gonna look like and what we think that's gonna look like for Jack Smith's case and we've got some better understanding of that both because Jack Smith just filed something in court today that's really, really important buried in 22 pages. We're going to talk about the little nuggets like we're sifting for gold that we were able to find inside of that filing.

And then have Karen give us a good expan expan, expound, sorry on what we believe that evidence in the quality of that evidence is going to look like in his case. And then lastly, we need to talk about what is the likelihood that Donald Trump will be banned and barred at all on the ballots across America as states like Colorado and now Michigan weigh in, awaiting the US Supreme Court ultimate decision on the matter of whether ultimately the fundamental question is whether under the Constitution, 14th Amendment, Section 3, whether that's self-affectuating, self-activating, where we have to go somewhere else for that.

And if we have to go to courts, then let's get on with it. If we have to go back to Congress, and Congress has to make a decision about whether Donald Trump is disqualified under the 14th Amendment. We know that's never happening between now and the 2024 election because even though the Maga Congress cannot and will not, it doesn't want to pass any laws that help real Americans. The tally in that count, they've passed 23 bills in almost two years, 23 bills. For those that don't know, if that's a little or a lot, it's a little. It just means that they don't care about America or Americans,

all they care about is allowing Donald Trump to use the Magahouse to do his bidding to run interference against all the criminal prosecutions against him, and they're not getting a darn thing done otherwise. So we know the MAGA Congress isn't going to help out. So it has to stay, hopefully, in the court system. That's all going to be decided by the US Supreme Court. That's our lineup for today. And now it's time for me to bring back Karen Friedman to the flow and talk about the holidays and family and all the things that we like that go on in the world. How are you? Where are you, by the way? I am in upstate New York and I'm great. Having a nice time upstate with my family during this slow-ish week, it's not completely slow, but slow or weak, then usual.

Are you with your whole family? I am. I am. It's really nice. Yeah. How about you? How was your holiday? It's going great. My wife's family is unfortunately, most of them are still in Eastern Europe and they're not able to come out. We got them out around my wedding time and we're going to be able to get her mother and my her niece, my niece now, out for in January to celebrate some other things that are going on in our life. We're going to lay, we're going to stay close to home though.

We're going to stay in the New York area for through New years. But you're right. It's always been historically, at least in our field in law, a slower Christmas New years. But I never, it's funny. I never took it as a vacation because it was already slow at work. So I didn't want to waste that. I wanted to go another time.

And so we're going to take a holiday, I think, in February. But I just to let people know, I was trying a case until two days before Christmas. I was in trial, and a funny story on that one. I was in trial in arbitration with a client of mine, large client of mine. And we were arbitrators don't care. They want to get paid.

And so they have no problem with the week before Christmas, going through a trial, which we did. First week, second week is going to be some time in January. And as I was coming in to the, the huge office building, you know it, Karen, right near Grand Central Station, to go to the AAA, which was handling the arbitration, there was a very nice gentleman that worked in security and as a door, no security for the building, I would say.

And I needed some help to get my team in with all our boxes. So I needed the side door opened. And so I asked them to help us. Anyway, over and I made a joke about, oh, these are my people, please let my people in and he left. And then when I got back to the side in desk, he said, he's like a don on him. And I had my client next to me and he goes. And then when he got, when I got back the sign in desk, he said, oh, he's like a don on him. And I had my client next to me and he goes, I know you. I love what you do. I watch it all. And I was like, and my client had no idea that I do legal AF

as my side gig. And he was so excited. And I was so excited that he was so excited to meet me in person because we don't do that. We don't do this for that. But when we're able to meet people that we have touched in some way, it just is so heartwarming for everybody involved, including me and him. And then the next day when I checked back in, because I was tied up so I was working 16 hour days for the trial. And so my hot take production dropped. And he said to me, as I walked in the second day, you know, oh you back for your trial

I go, yes, I am good to see you again, and he goes, you know, you're falling back I haven't seen a lot of your new hot takes lately. I go right because I'm doing the law thing right now and trying a case Anyway, whenever you and I and Ben and others can actually interact with, and not just, you know, we get our fair amount of messaging and emails and things, but when we can actually meet somebody that's on our shared journey, it's such an honor and we're so thrilled to do. I know it's happened to you too recently, and I just wanted to share that. And so shout out to the nice gentleman who I met in the building. I was on a, I was at one of my side hustles where I, you know, I worked for a long

order and I'm on set with them and I, I'm, I have a lot of fun over there. Anyway, I had this really nice lady come up to me and say, Hey, do you ever watch League of Legends? You look just like that woman on there. I was like, that's me. Does that have fun? Yeah. One day you should have shocked her. I look nothing like that woman. A walk away and a half. No, it is a lot of fun. But that, listen, okay, that's who we are. That's how we got here. And we're really, I think it's just another way of telling people who tune in for

a part of our audience that we are, we can't communicate enough how thrilled we are to be doing what we're doing and that people are along in their journey, they're with us on our journey. We really appreciate everybody here all the legal A.F.ers and the Midas mighty. I'll do it up front instead of at the end, there we are. So let's get over to Things that matter in addition to that which is the appeal

The immunity issue The law based on the briefing that you've read the kind of the handicap the likelihood We think the Trump's gonna prevail on that at the DC court of appeals level and then we know the loser of that that at the DC Court of Appeals level. And then we know the loser of that ruling is going to take a fast track up the US Supreme Court. And the US Supreme Court is ready willing and able, I think to make a relatively quick decision. Let me give the timeline and I'll turn it over to you for what you've picked up from reading the briefing and the panel that's in place already for the DC Court of Appeals and your belief on that. So just to bring everybody up to speed and get us all on the same page,

Judge Chutkin, which seems like a lifetime ago, but was just several weeks ago, ruled against Donald Trump and denied his motion to dismiss on the grounds of absolute presidential immunity. His argument in a nutshell is twofold. One, because I was president at the time, nothing in the indictment can I be charged with as a crime, I can't be criminally indicted for anything that happened

while I happened to be the occupant of the White House. I mean, I'm not simplifying it, that's the argument. Based on, I think, a distortion of the precedent that he's precedent that he's citing and then his second follow on argument related is i was already tried in congress by the impeachment process in the house that i wasn't convicted in the senate you can't try me again it's double jeopardy

uh... meaning you can't be just tried twice for the same and so that is the issue as framed uh... jack smith uh... after the appeal was taken to the DC Court of Appeals by Donald Trump and kind of sat around for a day or two, Jack Smith tried to expedite it, followed two pieces of paper, US Supreme Court, and with the DC Court of Appeals. Ask both of them to both take, you know, of course, take the appeal for the DC Court of Appeals, urge the Supreme Court to leapfrog over

the DC Court of Appeals and take the case directly on a appeal, which is quite unusual, but the circumstances here are quite unusual, and ask both of them to consider doing whatever they're going to do on a high velocity track, really, really quickly. We can talk about when, after you're done, your analysis, why I think Jack did that. And I think we've gone over in detail. I think he was pressuring the DC Court if it feels to do something quickly

and calling Donald Trump's bluff about, yeah, you want your Court, if you want your Supreme Court, you think you got all the votes? I'm gonna take you right there right now. And because I wanna keep the March trial date as that red letter radioactive date on the calendar, I wanna keep it. And so a lot of things we're gonna talk about today, Karen,

is about Jack Smith doing things to keep that date sacrosect, keep it in place, and things that he has to do in order to do that. So, Supreme Court ruled relatively quickly after some briefing, nah, we're gonna wait for the normal appeal to come up from the DC Court of Appeals. That's the way we like it.

We like the solicitor general to be involved, and we don't wanna special counsel special counsels a little bit sticky. Let's just wait. And the in response, the DC Court of Appeals said, we're doing this fast, fast briefing through Christmas, briefs are in. And we're going to set an oral argument for January the 8th. And then, and then no rule within 72 hours of that, I believe. I want to get your view on that. And the loser, probably Trump, is going to take an appeal to the Supreme Court, Jack Smith will ask the Supreme Court to move quickly. And the Supreme Court can move as quickly or as slowly as they like.

They made the decision in Bush versus Gore in 72 hours, full briefing or a argument in decision, picked the president then, or they could do it on a normal track for six to eight months. 72 hours full briefing or a argument in decision picked the president then or Make it do it on a normal track for six to eight months. So somewhere between 72 hours and six and eight months The Supreme Court is gonna make a decision about whether Donald Trump's indictment should be dismissed for immunity grounds That's my sort of big picture turn it over to you for some deep digging and analysis into those various events It's like the Supreme Court said they don't want to allow Jack Smith to jump over the DC circuit and get a ruling from them quickly, even though they want to go to,

he wants to keep the trial date in March, as you said, because any delay here risks this trial never going. This is, as I think it was Maggie Haberman who said on CNN, Trump's, they're playing a game of inches. Any adjournment he can get closer and closer to the election makes it more complicated to try him. He can't be on trial on election day, for example, right? That would just be really complicated, right? He could be elected president potentially, God forbid, and what then incarcerated. I mean, the American people have to know the result of this election before they go to the ballot box in November, or there's just no way the Department of Justice will risk being on trial

with him during an election. There's all these Department of Justice regulations or just internal rules about affecting an election. I mean, don't forget that's what got Jim Comey in trouble, because he came out and said that he was, he was, there was a Department of Justice investigation into Hillary Clinton right before the election. And there are some who will say that could have cost her the election.

So there really is this rule or this policy, I guess it's better way of putting it about getting about interfering with or getting too close to the election. And so every week that goes by, you get close to, for example, the Judge Mershan trial that's supposed to start the Alvin Bragg Stormy Daniels election interference case is supposed to start March 24th. So let's say there's a three week adjournment and in that case starts and then that case goes on for a couple of weeks or months and then what, right, then you bump into, you bump into the Mar-a-Lago documents case.

So they're really playing a game of inches to try and get this delayed. And so the fact that the Supreme Court did not fast track this and take it, the victory that people are saying for Trump isn't that somehow substantively, they ruled that this shouldn't go faster, that there is no presidential immunity, et cetera. It's the victory, if there is one, is that he's got them to delay. And it's more of a chance that he can delay the March trial. So what will be very interesting, I think, will be when the DC Circuit, who I agree,

is going to go very, very quickly. And absolutely, I would say shut this down and say there is no presidential immunity because that is just a loser of an argument. I mean 100% on the merits I think there's no chance they will find that there's absolute presidential immunity even for official acts by the way, which is what Trump is arguing. Trump's entire argument is that he should have presidential immunity, criminal immunity for official acts. He's talking about the official acts because that bumps into and is similar to the civil immunity. There's this outer perimeter, and if he's doing job, a job that is within

his official acts, even not the core official acts, but towards the outer perimeter of what his official acts are, as long as it's within the outer perimeter, then he is immune from civil suit. And similar with removal, right, The removal law that taught that various individuals have tried to get the Fannie Willis case removed from State Court into federal court. It all has to do with were you acting under the color of your job to get removed? And then if so, can you get prosecuted?

So that's why he is saying, he was acting, he was doing his official acts. But I still think that ultimately the courts are going to hold, even the Supreme Court is going to hold that there is no immunity from criminal prosecution, period, full stop, because what then he could, he could, let's say he is doing his official acts, right? Let's say he is, he is talking to foreign governments and let's say he allows himself to get braved by a foreign government. What is he going to say?

No, I was talking to them as an official act. You can't prosecute me. You absolutely can. His second argument though is if you do want to prosecute me, you have to the only way you can do it is by going to by impeaching him in the house and then convicting him in the Senate because there's this impeachment judgment clause in the 14th Amendment that specifically talks about specifically talks about how that would work. And so, you know, the ultimate issue is that whether or not we can get to the Supreme Court and then what will the Supreme Court do.

And what I think is very even more interesting is, you know, Donald Trump's argument about to Jack Smith saying this shouldn't go fast. Remember, because don't forget Jack Smith went to the Supreme Court and said, move fast, move fast, move fast. And then Trump was like, oh no, slow down. This requires you to take time and to, and to ruminate and, and, and cogitate and think about these really important issues. And we shouldn't rush this. This shouldn't be rush, rush, rush, because he wants to lay. But I think it'll be really ironic,

because if the DC circuit says no presidential immunity in a matter of weeks, I think they're going to rule within days of oral argument, which I think is what January 9th, is that oral arguments? It's sometime in early January. And they're going to rule in a matter of, it's the 8th. Yeah, they're're gonna rule in a matter of, it's the eighth. Yeah, they're gonna rule in a matter of minutes, days, right?

And then let's say they lift the stay. Cause right now there's a stay saying, they cannot, that judge Chutkin cannot proceed and cannot even do things like motion practice and cannot do things like making pretrial decisions that the trial is paused, all of it, even the pretrial stuff. And-

Well, they can do the motion practice. They just, Jack and file. They just Trump can have to respond. Correct, correct. But, and exactly. So, which is what Jack is doing. He is filing his motion practice, but it's still, and Trump's objecting to it,

saying I shouldn't even be bothered with this. It's stayed, but Jack's doing it anyway. Anyhow, the, what was I gonna say about that? I now totally lost my turn. Sorry, I need to be a little too long. No, no, no, it's not at all. But the point, my point, oh, what I was going to say was if the DC circuit

rules against Trump and says, you're not immune from criminal prosecution, that's preposterous. Of course, you can still be held accountable criminally. Then they lift the stay, guess who's going to run to the Supreme Court and beg them to go fast because he's not going to want to go to trial, March 4th. And that's where he's going to say, no, you've got to do this, right? He's going to, he's going to demand a speedy. He's going to say, you've, you've got to take this fast and you've got to stop it. So, so that's what I think is going to happen. I think he's going to, he, he shot himself slightly in the foot by saying to go slow because I think he's going to then beg them to rush. That, that's my thought on that.

Yeah, I, I, I like the way you've outlined all that. We'll get to it when we get there later. But Jackson Smith is certainly taking advantage of the fact that while the case has stayed, the clerk's office, where you do your filing electronically, remains open. The case's docket is alive, and he can file whatever he wants. That's what he's doing, because it gives him a great advantage. He doesn't want to and will not respond to Donald Trump's mean tweets as people like to call those things. You know, sending the special prosecutor to hell, to rot, and all those other lovely Christmas

statements. He won't respond there. He's not going to post something on the Department of Justice website or the Special Counsel website, a letter, an open letter to Donald Trump. He's not going to hold a press conference unless he has to. And he's not going to do social media. So what does he have? He's got one outlet, which is consistent with everything that he said about how he's going to handle this case and everything that's consistent with how Judge Chuck can says she's going to handle this case, which is he's going to do is litigating inside of a courtroom and not outside of a courtroom,

not on the courtroom steps, not on the hallway of a courtroom, inside of a courtroom, big wood paneled room, that's going to be eventually filled with jerseh and a judge. And that's right. So he figured out early on that while the case is state, he's going to do everything he has to do, chop and wood and stacking it from now until the trial date to keep the case on schedule. We would expect nothing less.

He would never give up the opportunity to respond to Donald Trump's mean tweets with actually meaner and more effective legal filings because that's what he's doing now. He's like, you don't have to respond. You're right, the case is state, but the docket is open. And I'm gonna continue to file what I need to file, motions to stop you from making certain arguments in court when the trial resumes. Documents related to witnesses that I believe

I'm gonna be putting on, requests for this decision making at the appropriate time, not now, from the judge. And I want the, and then it becomes a one-sided conversation because Trump has already said, I'm not even gonna look at that docket. I, I, the case is stayed. And true, you don't have to respond to it.

The clock is not running under the rules of criminal procedure for when you have to respond to motions. Judge has a set of briefing schedule because the case is stayed, but it doesn't mean that on the public docket for everyone to read, including on hot takes over here on the legal AF network, that might have touched network, it doesn't mean he's going to stop doing that, and it would be weird if he did, because if this pin is pulled on the stay, in other words, the case is immediately reactivated,

because of the ruling by the DC Court of Appeals and or the Supreme Court refusing to grant an additional stay. Jack Smith's got to be ready. And then all of these motions that he's piled up to three, four, five motions, the clock is going to start ticking and an briefing schedule is going to have to be set. And it will be fast. You know, the judge will be like, all right, you know, the case is restarted now. We're in the beginning of February, trial in March.

You have one week to brief everything, Mr. Trump, and we're going to have oral argument in the middle of February. That's it. And then all these issues, which some of these do get decided in trials, very close to the date of the trial, because they don't go to any, I want to make this clear. No, nothing in the motion practice by Donald Trump, nothing, including the motion he made to dismiss for lack of an application of presidential immunity. None of it goes to the several railroad cars filled with data and discovery that he was

given. These are all fundamental constitutional precepts, having nothing to do with how many boxes Donald Trump has to look through in order to prepare for his case. And if they're making the mistake, let me warn people get upset, they're like, don't tell them anything, Bobock.

Believe me, they're not watching the show. If Donald Trump's lawyers are just sitting around, twiddling their thumbs and literally taking the stay at its word, and they're not doing any work to prepare for that trial, then if they think that the trial judge is going to let them off the hook for not being prepared, when the trial is reset or reestablished for that original date, good luck. You better be looking in the boxes. You better be preparing your witnesses. This case is going to trial in March, maybe the end of March,

but going to trial in March, April. Because the timeline here will move very, very quickly. I believe, could be wrong. Sounds like you believe it too. Certainly within 72 hours, that DC quarter of appeals is going to make their ruling, and I think it's going to be against Donald Trump. Because look at the precedent it would set.

If they said something else, sure, you're indicted for doing a whole bunch of terrible things against democracy and committing crimes and trying to interfere with, according to the new filing that was just received by the DC Court of Appeals, an abacus brief, a friend of the court brief by by a five different Republican administrations and their senior officials have filed a brief. My partner, Nick Rostow, is one of those people who signed that brief. And their argument is, there are many things that maybe you could find immunity for, but a former president, or in this case a one term president, trying to interfere with

Article 2 of the Constitution about the only presidency this Constitution Republic has ever known. One term, transition of power, all embedded within Article 2, the Second Amendment, sorry, yeah, the Second Amendment, Yes, of the Constitution. That's it. That has to be a crime. That has to be something that would be indictable because think of what would happen in the world if we gave license to the next Trump or Trump not to leave office.

How about this? How about the Constitution says two terms only for a president? Donald Trump doesn't want to leave after two terms, let's say. He wants to stay. He wants to put himself up for election again. He doesn't care what the Constitution says. Is that okay? Where's that a crime? And so we got to get straight in this country through the Supreme Court, ultimately, what's a crime when it comes to a person trying to cling to power? You can't say that clinging to power was just another way to try to enforce our election laws.

So, Alton, can we put up the social media post by Donald Trump, where he's trying to make his argument to the public? I wasn't campaigning, which is a hat-jacked violation and outside what he was supposed to be doing as president. The election was over. I was just doing my job as president to investigate a rigged install in election, right?

The proof is voluminous and irrefutable. We know that's a lie. And therefore I'm entitled to a mutiny. I did nothing wrong. Stop the witch hunt now. Trump 2024. I added the Trump 2024. That, I made it clear in a hot take today.

That barely works in the crazy outside world of fundraising and trying to run interference to get yourself elected. I'll tell you where it doesn't work. In a court of law where you have to bring forth evidence that's tied to a defense that defeats the charges against you in front of a jury and a judge. You can't say, well, I don't really have much to say, but I do have this social media posting that I did and isn't it? Adusy, I'm gonna hand it out. I made copies for all the jury. Here we, that doesn't, I don't know what, what world

he resides in, but it's not planet earth. And it's not our justice system. So the sooner the Supreme Court gets the case, which let's say if I do the math properly, by the 12th of January, there'll be, there'll be an appeal and emergency application by the 13th or 14th, hopefully the Supreme Court takes this seriously the way they did Bush versus Gore as the president. Within a week, they make a decision and keep this case on track for March. If they want to look at the issue at another time and don't stay the case, that's okay too. He could appeal after he's convicted like every other day.

Exactly. And that could be. That's a very good point you're hitting. The nail that's hitting there with that hammer of yours, Karen, is that they could just buy procedural. They could just say, it's very, very interesting. I think we want a full briefing on this. Maybe sometime in the summer, we'll get around for an oral argument.

Oh, no, we're not staying anything. I mean, seriously, that's very... I'll wrap it up. We could at that. There's two other wrinkles I just want to throw into this, your analysis, which is the Supreme Court is not potentially going to be looking just at this case. They are looking at all the cases that they may or may not be before them, right? So the immunity case, right? Then there's the Fisher case that has to do

with the obstruction of an official proceeding statute that that's the one where two of the charges that Jack Smith charged Trump with, two of the four, is obstruction of an official proceeding. And that's the charge that all of the four is obstruction of an official proceeding. And that's the charge that all of the defendants who were convicted of January 6th related charges, the thousand of them. Most of them were charged with that.

And there's one out of, I think, 14 or 15 Washington DC district court judges who but thinks that it was judge Carl Nichol who said that that charge is not appropriate for the January 6th conduct. He was overturned by the DC circuit, but that's the Supreme Court's going to look at that as well. And so they might say, look, there's that issue involving this case too. And then of course, there's the Colorado 14th Amendment case. There's the Meadows Georgia removal cases, the Chuck and Gag order cases. All of these related, if you want to even call it, that cases. I mean, the two that I think are mostly applied are the immunity and whether the statute

applies to Trump. And so I think that could potentially complicate things for the timing. Because who knows how the Supreme Court is going to handle that. And then of course there's the question of will Judge Thomas, will Clarence Thomas recuse himself from this and all of those cases. And that's a whole other discussion that I'm going to make. Let's do that. Let's do the Clarence Thomas discussion. But, and we'll also pick up again with Jack Smith's case, the quality of the evidence of the case,

what we learn from his filing the motion in lim just today and the eight or nine different categories that he is seeking to have a resolved and advanced of a jury even being in the room. I want to talk about that with you. I want to talk about Colorado decision, now the aftermath of it with Trump's rhetoric and doxing of them, the four justices of the Colorado Supreme Court who ruled not only that he was an insurrectionist or committed insurrection or rebellion against the Constitution, but also that the, under the unique laws of Colorado, the Colorado Secretary of State at the power to bar ban him from the ballot.

And then, Minnes Michigan's decision through the Supreme Court today about what it's doing with its unique set of laws about who gets to be on the ballot or not on a certain time period. And then, of course, the death threats that have been brought out against the Colorado Supreme Court justice. We're going to talk about all that. And whether Clarence Thomas should be presiding over anything related to Donald Trump, given his wife's stated positions as a, she's just barely not a Gen 6 insurrectionist defendant herself. But first, one of my favorite high points of any podcast with Karen Friedman, Nick Niflo, a word from our sponsors. Did you know that your temperature at night can have one of the greatest impacts on your

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Miracle is so confident in their product, it's back to the 30 day money back guarantee. So if you aren't 100% satisfied, you'll get a full refund. Upgrade your sleep with Miracle Made. Go to trymiracle.com, slash legal AF, and use the code legal AF to claim your free three-piece towel set, and save over 40% off. Again, that's trymiracle.com, slash legal AF to treat yourself, a a friend or loved one this holiday season. Welcome back to my this touches legal a f mid week. Let's pick up with Clarence Thomas for a minute. Then I want to go right right into your prosecutorial lens about the strength of Jack

Smith's case and what we've learned from the filing of the motion to eliminate today about some of the aspects of that case, to the naked eye, to the non-violent lens to eye, people might have missed. So, I was sorry, Clarence Thomas. Clarence Thomas, as we reported all summer, has a lot of problems. It has a lot of ethical, conflicted problems. Yes, the US Supreme Court, because of Clarence Thomas and others, has decided to pass some sort of code of conduct or ethical canons for Supreme Court justices that have tightened the screws on how their finances are reported.

That's not even what I'm talking about. I'm talking about the fact that it is well known from the Jan 6th investigation of the Jan 6th Committee. And through what we've learned about Jack Smith's own investigation, that Jenny Thomas was an active participant in the attempt for Donald Trump to stay in power and to try to interfere with the peaceful transfer. There's no other way to put it. There are dozens and dozens reaching up to the hundreds of e-texts and emails from Jenny Thomas who was on the board and or founded a series of MAGA right-wing foundations and public interest groups who have business regularly before the

Supreme Court, who file Amicus friend of the court briefs regularly in front of in cases where her husband presides and who encouraged many, many people and congressional people like a congressman like Scott Perry and others to do everything they could to stop the peaceful transfer of power. I mean, there's no other way to read any of her text, but she gave a unsworn interview, not a deposition to the Gen 6 committee. But we all know that although I'm definitely, I am definitely an adherent to the view, which is expressed in the ethics rules as well, generally, that you are not responsible for the activities or the sins of your spouse.

You're not. And I'm not claiming that, but they've crossed that line. I'm not trying to make Clarence Thomas responsible entirely. But when Jenny Thomas forget about the big guy references entirely. But when Jenny Thomas forget about the big guy references in 100 Biden's text messages, she regularly talks about her husband and the third person whenever she was talking to other people about Jan 6th, you know, and almost suggesting that she knew what the result would be when it got up to the Supreme Court. Now, on Donald Trump issues, Clarence Thomas, like Sam Alito, they have been outliers. They generally are in the dissent. It's usually the both of them. And the other seven members of the United States Supreme Court running every political stripe from MAGA to liberal Democrat votes against them, right? In the seven majority and usually against Donald Trump

on Donald Trump issues, you know? But we can see from the dissents and some of the opinions that are written in dissent that Clarence Thomas, you know, doesn't see anything wrong with Donald Trump having held on to all of his papers, presidential or otherwise after he left office, refusing to turn them over. He would have ruled against the Mar-a-Lago subpoena or search warrant. I'm sure if had he been given the chance. And so we know that he is a reliable, bend over, backward supporter

of Donald Trump, and that his wife is tainted and radioactive on these particular issues. And I'll leave it on this and turn it over to you for the analysis. The Republicans in the Magah had no problem of pressuring Kataji Brown-Jackson when she was being confirmed, knowing that a case involving affirmative action at her alma mater, Harvard was on the docket to get her to commit under oath that she would recuse herself if she was selected and voted upon from anything involving Harvard because she went there. What about Clarence Thomas?

And what about Clarence Thomas being conflicted because of his wife's active role in the Jan 6th attempt to overthrow our democracy? Karen, what do you think about Clarence Thomas? Stay, go. We should recuse. Somebody should make a motion. What do you think should happen here? Sorry.

I think he absolutely has to recuse himself. I mean, that's the problem is this is a self-affectuating thing. This is something that the judge has to decide him or herself and they just pass this code of ethics that Basically, they have to recuse themselves from any proceeding where their impartiality might be reasonably questioned and This could happen if there's a personal bias or prejudice concerning a party or personal knowledge of disputed facts or evidentiary facts And that's all from the code of conduct that I was just reading. But it also says, or knows that their spouse has any interest that could be affected substantially by the outcome of the proceeding or where their spouse is likely to be a material witness

in the proceeding. Look, his wife was a prominent member of this organization that led the StoP the Steel Movement and culminated on January 6th, and she also was involved in pressuring the Arizona legislator and the fake electors. She was all embroiled in that whole thing in Arizona, and she was also very involved in texting with meadows, so she could be a witness, right? Like, say meadows is cooperating. And he says, yeah, Ginny Thomas was text messaging me

to implore me to help overturn the election results. And she could be someone they're going to call at trial. So at the Jansk's at the Jack Smith trial, right, in front of Judge Shuttkin. So there's no way that he can stay on this case. He has to recuse himself. And again, if you if you look at the this ethical canon, it says if there's a question of impartiality, right, not just where it's like it's like the impureance of impartiality or the appearance of impropriety and clearly here, he's he absolutely has at least the appearance of a problem because of his wife. And so I just think that he should and must recuse himself from from this and other cases. And like I said,

she could be a witness in these proceedings. That alone is enough to get him to recuse him. And we do know that in October, he recused himself from considering John Eastman's appeal. Now, he didn't say why. But if you remember, John Eastman was his law clerk or law secretary, but clearly this is even closer,

this is his wife. And so I just think, look, the ethics code allows him to make this decision. And if he doesn't recuse himself from this, it really will tarnish and blemish whatever decision that is made because he can't be impartial with his wife as embroiled in this as she is. And I don't think it's just this case. I think it's all the other cases that I just mentioned that I that I think the Supreme Court is going to also be considering, right? The gag order, the Meadows removal, the Colorado 14th Amendment case potentially, and then this, whether obstruction of an official proceeding counts as a statute that can be utilized in this context, right?

And trying to stop Mike Pence to, from certifying the election. So, I do think he has to recuse himself both because he's actually conflicted, but also there's this appearance of it as well. Having said that, the reality is he won't. He's had other things where we thought he was gonna recuse himself,

including with matters where his wife had her organizations filed an amicus brief in front of the bench that was accepted. We'll see. There's not much that John Roberts can do is the chief judge. He's just trying to hold on here. His legacy in Tatters because of decisions like the Dodd decision, taking away a constitutional right for a woman to choose an overturning row versus Wade. But now he wasn't on the court in 2000, John Roberts seems like he's been on the court forever, but he wasn't there during

Bush versus court. Now his moment is his moment in the sun. Now is his moment in history. See what he can cobble together in terms of a majority. Can he count to five? Can he keep two of the counts that are against Donald Trump in place that for obstruction of an official proceeding? Or is that going to be ripped away and there's only going to be two counts against Donald Trump in place that for obstruction of an official proceeding. Or is that going to be ripped away and there's only going to be two counts against Donald Trump at the time of the trial? Can he do things with timing to delay having to worry about impacting this particular person, but rather the institution of the presidency? And that you do by saying, yeah, we're not going to say anything.

We'll see you down the road. Good luck. Let us know how the trial turns out. He could try to be broke. He could be negotiating and brokering that. I think that the immunity issue is a dead loser. I don't care how many votes are in the Supreme Court. I think that loses and not by a little. I don't think that's a five to four decision. I think that is a seven to two decision, six to three at worst, in favor of judge ultimately of judge Chutkin and the DC Court of Appeals and against Donald Trump.

I think that the, unless there's horse trading going on, which there may be, I think that the, the count for obstruction of an official proceeding was properly charged. And it's not an example of overcharging bioprosecure at all. And I think that should also stay and not, and not potentially open the jails to the release of 300

Jan 6th defendants who have all either been convicted by trial or pled guilty to that count. I don't think that is good policy for the future or as to use Clarence Thomas's own words. Current events don't matter. He's playing a longer game of history. Okay, well then I don't care about Trump in current events. I care about the longer game of history then. And if you look at the original text of the 14th Amendment, then he should be banned and barred. And Colorado was right. We'll see what the Supreme Court does with that one. It's a test case. But I think there, if I was predicting all of this on a board, right, like you're like in Vegas

and you're trying to bet on sports that day, I think it's, I bet that the Supreme Court was going to find somehow that the 14th Amendment doesn't say what it says and that you have to go through some sort of congressional process as a political question and not through the court system. I think they keep in place the obstruction of an official

proceeding count, however, applied to both Donald Trump and 300 other JAN-6 insurrectionists or defendants. And I think on the issue of presidential immunity, I think they find that they don't wanna set the precedent that anybody can do anything they want as long as they happen to be drawn to paycheck as the president that day, and it's all just okay. The only way you can fix that is with an impeachment process. I don't think that's the law that they're going to make for the future for the next Donald

Trump. He'll get that one on the ballot. He'll get the B on the ballot, which is probably not a bad thing. Joe Biden's going to win. Let's win. Ference Square in all 50 states. But then, Donald Trump will lose because the institution of the presidency needs him to lose

in order to preserve it. What do you think? Let me get your odds that we'll move on to the strength of the case for Jack Smith in the District of Columbia. Odds on what? On Colorado? Well, with the three things I just said,

the Colorado case, whether or what what how the rule how they're going to rule in terms of whether it's a political question or it's something that was properly properly can be adjudicated by a court. The second is whether the obstruction of an official proceeding is a proper count to be applied to the acts on Jan 6th and the third is presidential immunity. So for those three things, how do you think they rule? Presidential immunity, absolutely not presidential immunity.

Abstruction of an official proceeding. I think that's a little trickier. Colorado, he's bad. So, he loses the immunity argument. He wins Colorado and goes back on the ballot. You and I are, you and I are allowing completely. And now the third, the third, I think it could go either way. I don't know which is your way. I think the law clearly it applies. Whether he can, they can get enough votes is the other question. And I still have hope that the Supreme Court is a legitimate court and that they will follow the law and not

just do Donald Trump's bidding. And so, and I do think the Chief Justice wants to keep the legitimacy of the court. And so therefore, I do believe ultimately, I would say they will find that it sticks. That Carl Nichol was wrong, and they will allow that to stand ultimately. But I'm not as confident. Like, I'm 100% on one, 100% on the other, and this one, I'm more likely than not. It's more of a preponderance of the evidence than a beyond a reasonable doubt, prediction. We have complete alignment between the podcast host

and legal AF, and we'll salty, I feel like I'm in court. Mark the record, mark this point in the podcast. We're going to roll it back once we see over the next month or two what the ultimate results are. But let's go to some place that you are eminently qualified, eminently comfortable talk about prosecutors and strength of case. I'm not sure you did your hot take yet on this, but I know you're going to tell me about what you've picked up from, you know, take the lead on the motion and limine filing and then back it into what you think it means for the stack of evidence that Jack Smith has in his back

pocket against Donald Trump in the DC election interference case when we get there in March. So Jack Smith filed a motion and limine, which just a motion in limine is a Latin term for, it's just a pretrial motion. And essentially, he filed it and then dropped a footnote, footnote one that says, basically, we know that the court has said that there's no deadlines and that it's held in a bay in small defendant appeals, his denial, et cetera, but we're doing it anyway just so the court and the defendant has noticed of but we're doing it anyway just so the court and the defendant has noticed of what we're doing and that's how they're filing a bunch of things and this is one of the

pretrial ones. And it was basically, it was an interesting motion that basically is about saying that these are the things that Donald Trump can't talk about at trial. And that's the overarching theme of this motion in lemonade. It's basically reminding everybody of what's admissible, what's relevant to evidence, and things that are irrelevant shouldn't be allowed to come in. And it's very common for a trial lawyer to do these pretrial motions or these motions in lemonade, both sides do them. And it's things that you know might come out or that the other side has talked about,

and you want to make sure there's a ruling to know whether or not it can come out. And even as a prosecutor sometimes you'll even make a motion in lemonade on your own topics, things that you want to bring out, but that you know could potentially be objectionable. You want a ruling ahead of time because what you don't want is the court to then either say that you committed reversible error or that somehow the LZU in front of a jury, that's never a good thing. This is all about things that Jack Smith wants Trump to be prevented from talking about. And so he lists them all out.

I think most of them will be in Jack Smith's favor. There's a couple that I think the judge will reserve on in case Trump opens the door and might allow in. And so essentially what the gist of this motion was that Trump shouldn't be allowed to turn the courtroom into a kind of place where he just specifies and grandstands and talks about politics and does all the things that he did in front of Judge and Goron in New York

when he testified in the civil fraud case. That was in front of just a judge, not a jury. And so he gave the judge their gave Trump a lot of leeway to talk about things that were inappropriate, inadmissible, had nothing to do with the case and just let them let them talk. But in front of a jury, you have to be much more careful and you cannot allow evidence that bears no relevance to any elements of the crime that are charged or to any of the affirmative defenses to those crimes. And that's essentially what relevant evidence or irrelevant evidence is.

So, relevant evidence has to do with the case, the charge, or one of your defenses. And it's anything that tends to make a fact more or less provable or probable, and it's to help the jury understand what it is. But there are certain exclusions to relevant evidence. So one is if the probative value is substantially outweighed by the danger of prejudice or confusing the issues or misleading the jury or delaying things or wasting time or needlessly presenting cumulative evidence. And these are all things that were discussed in this motion. And so, so, Jack Smith is just saying,

look, the court has to, look, let's keep him on a short leash because he will prejudice things. He will confuse the issues. He will mislead the jury and seek delay, waste time, et cetera. And instead focus on your core function, court, and maintain order in the courtroom. And that's what the court is supposed to do.

And so the categories of things that Jack Smith has requested that Trump not be allowed to do and things that he's made clear in either filings or speeches or whatever, social media truths or tweets or whatever they are. These are all things that Trump has talked about or said. So Jack Smith has a good faith basis for making this argument in advance. And he says number one, selective, the fact that you think that this was,

you were selectively or vindictively prosecuted and that this is about politics. And Jack Smith is saying that should not come in. That has nothing to do with this case. That's a question of law. And the court is the one, the only one who decides questions of law, the jury decides questions of fact. The only thing that's appropriate for the jury is to apply the facts to the law. The law that the judge says is the law and the judge will instruct the jury on the law. And that's the only thing for the jury to decide. They don't get to decide a. What the law is, in order they get to decide the sentence, which is very different than

civil court, where the jury gets to decide damages and how much money and whether there's punitive damages, which are a punishment. But in criminal law, there is absolutely no place for the jury to have anything to do with. They're not even allowed to consider what could happen to a defendant. And so, so, the Jack Smith said, can't talk about that this has been dictative or selective prosecution. I think the Chutkin will rule in favor of Jack Smith and keep that up. Number two, that the trial will interfere with his political activities and somehow make it so that he can't run for office or be president.

That's something that is also has nothing to do with his guilt or innocence. So I think Chutkin will keep that out. Number three, issues related to the government's investigation and the indictment. I don't know what he could, what issues he could raise. That's one where I do think the judge might reserve and see whether there's a door opening of some sort of that makes it so that it's the investigation, something about the investigation is relevant in the guilt or innocence. I could see, I could see cross-examining an FBI agent and somehow, it's somehow calling into question their objectivity and their investigation could go to their credibility. So I could see that being something that the judge reserves on.

Another one was investigative misconduct or coordination with the Biden administration. And that's an empty allegation that has no basis in fact. I don't think there's a good faith basis to say that. And so I think the judge will keep that out. And the other categories were things like that he's immune from prosecution. Again, that's what's before the Supreme Court, so that's not for the jury to decide. So that's a presidential immunity question, so I think Chutkin will keep that out. Also that his statements were protected by the First Amendment. That's another question of law that I think that Judge Chutkin will, again, prohibit him from doing.

I do think, and then, of course, you know, whatever the consequences could be of meaning a sentence. I think that's also going to be kept at. You can't do it. Where I do think it gets a little dicey and where Jack Smith requested the judge to rule. And I say dicey meaning, I don't think it's so clearly will be ruled in favor of Jack Smith. I think this she could reserve her decision on this and potentially if the door is opened to this information. I think that perhaps that could come in.

And one of them has to do with, Jack Smith frames it as exclude irrelevant and prejudicial evidence regarding January 6 such as blaming others like law enforcement, military agency preparation and responses to January 6. IE, people didn't do their job, the people who are in charge of security trying to shift the blame to law enforcement. I think it's going to be hard to keep that out, just practically speaking, because it's about January 6th and if Trump testifies, he's going to want to go into, I mean, I'm sure Jack Smith's going to ask him why he didn't call in the troops, right? Part of cross examination will be what he didn't do for those hours, and that he didn't

stop anyone from doing anything. That potentially could open the door to him saying, well, that I thought that the police were involved and or or or taking care of the I don't know. I'm just trying I just think that that's one where a door could open. And then and then they also, they also talk about things that would cause undue confusion for the jury, the things that are collateral they wanna keep out. And so I do think that that stuff will be kept out, but I do worry a little bit about,

like I said, the January 6 stuff. So I do think that some will be kept out. But the harder question is going to be if Trump testifies how you control him and how you stop him, right? He's going to say what he wants to say and he's going to be very hard to control as we know. And they're going to have to be tough on him and stop him because ultimately the remedy if he doesn't listen is to strike his testimony and that again is very dicey. It's hard to control a defendant, but Jack Smith who has tried many, many, many cases.

If anyone can do it, it's certainly him. To weave it into the second point that you are talking about is about the strength of Jack Smith's case. And there was a CBS correspondent, Robert Costa, who reported this week that he has multiple sources saying that Smith's case is sprawling, right? That is this huge sprawling case against Trump much more than previously thought. I did a hot take on it.

I'm not sure we've released it yet. And what I said in the hot take was, was anyone who's surprised by that, then just to me doesn't know about prosecution. I mean, this is an absolute sprawling sweeping case that you don't need sources or anyone to talk about or to tell anyone about, because we know that this is sprawling,

just because of the indictment, right? The indictment itself is very long and has a lot of a chock full of information in their number one. Number two, we have a preview of a lot of the evidence from the Jan 6th Select Committee when they had their hearings. And number three, we know that Jack Smith, because he's a prosecutor, has subpoena power

and can ask the court for search warrants. So he has powers that Congress does not or did not, the Jan the select committee did not. So anywhere they were limited, all Jack Smith had to do was hand over a grand jury subpoena or do a search warrant and he can get that information. So it's going to be incredibly powerful. It's going to be a ton of uh ton of evidence against Trump and he's going to have people who he has flipped that we don't even know about.

Because don't forget there were all these unindicted co-conspirators. And for all we know, some of them and others have flipped. And Costa's sources have said that there are key eyewitnesses who will testify who are in the Oval Office with Trump. So those are people who are literally in the room where it happened and he will have gotten phone records, memos and other social media.

We know because of filings that he's going to put in phone records, they have Trump's phone, they have drafts of tweets and DMs and social media, et cetera. There's going to be so much evidence. There's not going to be a stone left unturned. And so this is and will be no one should be surprised that this is a sprawling sweeping prosecution that will have left

no stone unturned. Yeah, so let me put a little meat on that. Let's just do it by weeks. I don't know what week they're gonna put these people on. You could have an entire week devoted to the following category and people that we know are gonna be brought in. You have an entire week of elected officials,

including Mike Pence, who is gonna testify against Donald Trump ultimately, whether he wants to or not. And in favor of Jack Smith's indictment, you have other elected officials who were the target of the Jan 6th insurrection, who belly crawled their way to safety, mainly on the Democratic side, but some on the Republican side that will be subpoenaed to testify and will testify. So you've got electing election officials.

Then you've got a half a week of fake electors who are cooperating with the Department of Justice who will testify against Donald Trump. Then you have two weeks at least of just a parade of lawyers that used to work for Donald Trump, some of which are indicted and or convicted criminals. You've got Sidney Powell, who not only was in all the wrong rooms or all the right rooms of the wrong moments of related to a martial law being considered to be invoked or in the Insurrection Act by Donald Trump to cling to power, the suspension of the Constitution,

the use of the military to seize voting machines. That's Sydney power. The person who is at the core of 60 failed lawsuits, Ken Chesbro, we know is going to testify, will testify. It convicted felon now in Georgia, but who's cooperating with Jack Smith and others about being the architect of the fake Electroscape and how it was used by Donald Trump to click into power Jenna Ellis the same thing the bag man or bag woman for Rudy Giuliani and all of these crazy theories. So you got that whole group then you got the group of White House lawyers many of which who have lost their all of these crazy theories. So you've got that whole group. Then you've got the group of White House lawyers,

many of which who have lost their attorney client privilege has already been stripped away from them or stripped away from Donald Trump by the, then Chief Judge of the court of the DC Circuit Court, which was either Barrel Howell for three quarters of the time were Jeb Boesberg now. And that includes Pat Sipollone White House Council, Eric Hirschman, Deputy White House Council,

they'll all testify. Then you have Department of Justice officials in the Trump administration parading in to testify in front of the jury. Just think about the momentum that Jack Smith's gonna have as the door, that creaky door in the back of the courtroom opens and closes every time for one of these witnesses. Vice President of the United States, former representative, current representatives of Congress, White House Council, Department of Justice, the Attorney General, at the time

for the United States, Bill Barr is going to testify. Jeffrey Rosen, the acting Attorney General, Richard Donaue, the acting attorney general or I'm gonna testify ultimately against Donald Trump then you got these other lower light Lower light lawyers. I'm still on lawyers right now and DOJ officials. I mean like week three already You've got you know Christina Bob who will be dragged kicking and screaming in Evan Corcoran Yes, he was the lawyer that got stripped originally of his attorney client, very much turned over 50 pages of single space notes. He is a little bit more and more a loggo than Gen 6, but he knows about stuff related to Gen 6.

So you've got that whole group coming in. And so just elected officials, election officials, which I've left out. How about the speakers of the House and the people in the state houses of the various places, the battleground states that receive phone calls directly from Donald Trump overlapping with the Georgia prosecution? What about Gene Spurling from Georgia? What about Brad Raffinsberger, the Secretary of State there, the Secretary of State and the other battleground states, the Speaker of the House of Arizona, Rusty Bauer? I mean, this, I could just name drop for the next hour and a half, the second half of legal AF, and I wouldn't be done yet.

That is how high, I mean, if you stack these witnesses like Cordwood from bottom to top to use an inappropriate phrase by Trump's lawyers, it would go above the Washington Monument and I in witnesses. And I haven't even talked about one page of documentary evidence, emails, signal messages, WhatsApp, video messages, proposed presidential resolutions, legal memoranda. I mean, and the list goes on. And against that, you have, can you put it back up salty? Against everything I just listed, you have trumps,

social media posting, immunity did nothing wrong, stop the witch hunt. Thank you. None of that on the scale. Look, I understand the scales of justice are start and equipoys on the day of the trial. They're lined up like this. And I understand that the prosecutors, well keeps prosecutors up at night like Karen,

is that they have to prove something beyond a reasonable doubt But I also understand the scales are scales and that there has to be evidence on one side Right, and then there has to be something to counterbalance that in terms of counter evidence to at least create a reasonable doubt in a jurors mind In order to win if your Donald Trump and I just don't see Unless you're gonna have what Jack Smith is worried about, which is jury nullification or some sort of compromised verdict, where the jury ignores completely on the way

to the evidence in the room and the instructions of law by the judge and just says, I like Donald Trump. That's jury nullification. You're nullifying the process. The dynamic. There's no way this is, there's no way this isn't a quiddle, no way. This is either a conviction or a hung jury, because right one juror can hang it. You could always see it.

Yeah, I know. But my point is I don't even see the, unless it's showing a jury nullified, I don't see how there's a hung jury based on the evidence that will be presented in the room against his defense. That because by time he gets to trial, just to kind of bring it full circle from our podcast, immunity will be off the table. He won't be able to argue presidential immunity.

He won't be able to argue, oh, if you vote against me, I'm going to lose the election or probably many of these things that he's arguing now will not defences. And if this is the box, the filter that Jack Smith is properly pushing this case through, what is a defense and the evidence that supports it and what is just bullshit rhetoric that's going to be used to try to confuse and distract the jury.

And you've got the judge as the gatekeeper on this filter to make sure that only things that are legitimately defenses. And I wanna make that clear here. I am not trying to strip Donald Trump away from legitimate defenses that he may have to put into courtroom. He's got legitimate defenses supported by evidence. God love him, that's our justice system.

Presumed innocent, let's go. I love him. That's our justice system presumed innocent. Let's go I like that But this rest of this stuff and as I said in a hot tick that I think is running now the Argument that there's been proscitorial misconduct sufficient to have the indictment dismissed You know where that's never been addressed in a filing by Donald Trump to dismiss the indictment because he knows he doesn't have the evidence to approve that there's prosecutorial misconduct. So he's been free loading and free riding on that argument in social media on on copy,

on cupcake interviews with right wing, maga and social media and argument that will never survive and see the light of day inside of a courtroom. That there has been prosecutorial misconduct sufficient to a halfting indictment dismiss. Because if there was, I'd be the first person in line with a giant sign that said dismiss Trump's indictment. There's been prosecutorial misconduct, but that hasn't happened. That's not the motion. And so that is what, with this giant scalpel that Jack Smith's trying to clear all this out.

So when it goes to trial in March, only proper evidence on both sides and witness testimony is presented to the jury under the watchful eye of Tonya Chalkin. That's, but that's why I agree with you. And that's why Trump doesn't want this to go to trial. That's why Delay is the end game, because he has no defense. He has nothing that it's a mountain of evidence,

crushing evidence against him. And his only hope is to get one juror that's going to be a Trojan horse and sneak its way in to the jury pool and lie during Bordier and not be fair and null horse and sneak its way in to the jury pool and lie during Bordier and not be fair and nullify and do his bidding because there is no defense. So let me ask you a question as a prosecutor, a former prosecutor. Let's occupy a world that I hope is not a fantasy world where Donald Trump is denied the immunity defense, emotion like this for Jack Smith is granted in large part.

And Donald Trump has the rise or fall now, facing down the barrel of the March trial date, now knowing that he can't make any of these arguments, he's not gonna take the stand, and now he's got it like you said, just hope for the mercy of one person who's gonna ignore the evidence of the law and hang the jury at best, but not get an acquittal. Do you then at that point, what all hope is lost?

Your Donald Trump, do you try to cut a deal? And if you jackson, do you cut a deal? No and no. There is no deal to be cut on either side. This is a all or nothing Hail Mary. That's why. So, I think Donald Trump testifies at trial. Okay. He has no choice. He has to. He has to. So, I'm paid to see that. In fact, we'll do it here on the minus touch now.

He has to testify. He has no choice. There's, he is going to have his vice president, his lawyers, his closest advisors and confidant are all going to come out and basically point the finger at him. He's not going to be able to testify the way he did in front of Judge Angoran, where you just eat speechify in a federal court with Judge Chargent. He's going to try. He's going to try. Look, you would say the rules, he doesn't think they rules apply to him. He's going to try. Look, you would say the same, the rules, he doesn't think they were rules applied to him. He can hold a baseball bat. He can post a picture of a baseball bat

next to DA Bragg's head and so call for death and destruction and nothing happens to him. Not in a federal court during a criminal trial. He'll just be tried in abstentia. He'll be gagged and bound and taken from the courtroom. If that was, if that was any other defendant, it would, but I have yet to see him be treated by any judge like any other defendant. He is allowed to get away with murder. And so let's see, let he will absolutely testify. He will push the boundaries. He'll get warned, but he'll get it out.

Mark this transcript. So he's, well, that assumes a trial happens. I know. And so I am not convinced that Clarence Thomas' Supreme Court isn't going to try and do his bidding by just having it not go. But you also said that if you were Jack Smith, you wouldn't cut the deal. Why would you put the country through a trial? And if there was a deal to be had in which jail time and some lower sentence was obtained, why wouldn't you do that? Well, I mean, that's assuming he's going to plead guilty. No, I'm saying. But you said it. You said in the same breath. No, no. I wouldn't cut the deal. If I was, Jack Smith, I wouldn't I wouldn't ask for a deal if I was, if I was,

because I don't think there's a deal. What deal is there? Right? What deal? What does he plead to? One count felony home confi mitt six months in jail. And he admits to trying to steal the election and one out felony. You know, I think no, I would he has to the the American people need a need this as much as anybody else. And we need to prove this case beyond a reasonable doubt.

The evidence has to come out to me unless he admits to, if you were to admit to all the effects and the indictment, then, and it's more counts, obstruction of an official proceeding. But it's not just the counts. It's the allocation, meaning what he'd have to admit to would have to be the facts in the indictment. If he admits that he knew he didn't win, that he was trying to steal the election, that he was pressuring, that he put in the false slates of electors, that he was pressuring Mike Pence, that he, I mean, don't forget the allegations in there are that he knew he

lost, but he was stealing the election from the country. If he admits to all of that and actually admits it, not just in court for a plea, but because this is why I wouldn't accept it if I was Jack Smith and not put the country through it, because Donald Trump's the kind of guy who even if he were to allocate it in court, he'd walk outside of court and say,

oh, I just did that so I wouldn't have to go to jail or prison, I didn't do it. They were railroading me. I said what of court and say, oh, I just did that. So I wouldn't have to go to jail or prison. I didn't do it. They were railroading me. I had to do I said what I had to say he would never admit it outside of court and his followers would believe it and no way no effing way. I want him a jury of his peers to to hear the evidence and and stand up and say and say and stand up and say, and say, when in law and order, the famous line that they say at the end has the jury reached a verdict and the four persons stand up and says,

we have your honor. And the judge says, in the people of, here, so in the United States of America versus Donald J. Trump, how do you find the defendant as to count one? And they will stand up and say, we find the defendant guilty. And they'll say guilty four times. And then they'll go around and they'll pull the whole jury.

And each one will say, is that your verdict? Yes, it is. Is that your verdict? Yes, it is. And you know what? And then they put the handcuffs on him and they take them out the back. I love it. I agree. I accept I don't agree. I'm going to cause a kerfuffle on the chat.

Because otherwise he's going to walk outside of course and say something different. It's not going to help the, I have a different position. It's not going to help the Republic to put Donald Trump through a trial and have a four count conviction. And no, no guarantees that that's going to happen. no guarantees that's going to happen. I think it's going to happen. I've outlined the evidence why I think it would happen. But in the fog of war of a trial, there's always two trials. The one that you want to put on in your head and the one you actually put on during a trial

with live human beings who are in the room that have that. There's three trials. There's three trials. Not just two. All right. And the one, what's the third one? The one you wish you'd put on. The one you wish you put on, right?

That's what we say. That's my opening statement. That's right, there's always three of them. There's always three summations. That's what I always say. The one you intended to give, the one you actually gave, and then the one you wished you gave. And there's a reason that I'm one of the few people, maybe,

that thinks that Gerald Ford did the right thing by partnering Nixon to not put the country through a Nixon impeachment process and or a conviction process. I'm not sure it would have done anything at all to heal the country. At the end of the day, unless you believe, I'm not, I mean, you were talking as a third person, unless you believe that our country is irrevocably divided, never to be united in any way, shape and form on any kind of issue whatsoever.

There's no healing process necessary because there's nothing to heal. This is the way we are. This is the way we will be going forward just as quickly as we were that way of 30, 40 years ago. We are now. It'll never return to something that resembles a unified union again. Then you're right. Then you don't have to do anything to not to end the long national nightmare that is Donald Trump and don't cut the deal. But I know you have a follow-up. Just because if Donald Trump went on Tucker Carlson and said to all you people, to the millions of people who have followed me to the end of the earth, I lied to you. Are you not saying that?

Well, I'm just saying, if he says I lied to you and I, it's time to come together, I've tried to steal an election, I know I lost, if he said that and then walked into court and said I'm gonna plead guilty and we're gonna heal the country, but he's not gonna do that. And so I don't see how not trying this case, how that helps at all, because I think he goes out

and he does that. So what if you lose? What if you lose? What if he's either hung and then you cut a deal or somehow, some way, there is an acquittal? Then what? Then that is what it is. I mean, that's the thing.

There are some that plea bargaining is and you cut a deal when for for various reasons and and when you decide whether to off making offer and and plea bargain and it's for many reasons and it could be because there's some kind of the defendant deserves it because maybe he is somebody who didn't have any opportunities or was abused as a child or you know there's many reasons why you feel sorry for a defendant and say okay I'm going to make an offer. Or it could be because the case isn't very strong or it could be because the victims I don't want to put them through it and be cross-examined and that's a reason to give a plea bargain. Here, you don't have any of those reasons. There's nothing sympathetic about Donald Trump. He doesn't deserve a break.

In any way, in my opinion, in this case, he's got four open and criminal indictments. And his entire life is. What did like that? His entire life, his entire business, he's a fraud. He raped E. Jean Carroll. He, I mean, the man to me, his character, he deserves the maximum sentence to be in trouble. We don't have any victims that we have to worry

about putting them through this, right? Buggies says hello and didn't want to miss. Didn't want to miss making an appearance on the podcast. Lillie was here earlier. And, you know, the fact of the matter is, at the end of the day, at a certain point, there's just, there's no problem with the evidence. Yes, there might be a, there's always a risk. There's no guarantees.

You could lose, but that's not, sometimes you just have to go to trial and let the chips fall where they may. And to me, this is one of those, one of those, one of those times. Well, let's turn to Boogie. Boogie, what's your, for those only listen to us. It's like he somehow knows that I'm podcasting

and then he positions himself perfectly. He just looked at the camera. But you saw that, right? I didn't do that. I didn't call him over. He's responding to my voice or yours? Boogie. All right. Well, boogie's off doing something else. Let's let's you may have convinced me. Well, I'm going to talk to you about it offline. Let's let's go on to Colorado and do a quick hit there on last week on the

19th of Colorado Supreme Court, unanimously, here's I'm gonna do it a different way. You unanimously, all seven members of the Colorado Supreme Court agreed with the lower court trial courts decision and findings of fact that Donald Trump was an insurrectionist and committed insurrection or rebellion against the Constitution.

The debate that the rub, the reason it came out for three was not on the facts. It was on the procedure. It was on weather based on that. Colorado Supreme Court and the Secretary of State had the power to ban Donald Trump for the ballot or whether it was a political question or one that should be better left to either Congress or if in a court system through an adjudication of Donald Trump as an insurrectionist or as someone who committed rebellion because he's not been charged with those things.

So that was that's the fight, right? That is the perfect uh... distinction for donald trump to say uh... all those terrible for ridiculous liberal left wing justices all the justices is not a judge in calirato starting with the trial court judge so and and her on to it eight eight judges believe the donald trump did the things that uh... were developed in the trial uh... leading up to Jan 6th and beyond.

Only dispute was over whether it's a political question that should only be with Congress or whether Donald Trump needed to actually be tried and convicted of something akin to insurrection or rebellion before the 14th Amendment applied. That happened there. Donald Trump then went on social media and attacked and posted the photo and doxed the Supreme Court members that he didn't like the four of them. And then they got mercilessly attacked, violently attacked and threatened with assassinations. So badly that the FBI is intervened and Lisa Monaco, the number two in the Department

of Justice, has gone on television. I did a hot take on it in which she said, in just this week alone, one week in life of the Department of Justice and the FBI, they are investigating assassination threats against more than two, I think it's three presidential candidates, one, a member of the United States Supreme Court, four Colorado Supreme Court justices. This sounds like some sort of perverse Christmas Carol. And it's not going to end with a partridge in a paratroor either. And the like, that's one week presidential candidate Supreme Court Justice's FBI agents and the like. So talk to talk to this issue of Donald Trump's acting out and

real world impact. You've been in situations where you've had death threats among you and your staff related to cases that you've handled. So, you have an empathetic way to present this information. Yeah, I have a very strong opinion on this. I disagree with the people who say that it comes with the territory of your prosecutor, Jack Smith can get threatened. And yeah, it is true. He does have 24, seven taxpayer funded security now as a result. But I don't think it comes with the territory.

And, you know, at the end of the day, we are not going to have politicians, police officers, prosecutors, and judges of any quality whatsoever, because who in their right mind is going to sign up for those jobs where you don't get paid as much as you could get paid in the private sector. Why would you do that if you're going to have to get your home address put on on, you know, on television or social media or wherever he puts all this stuff and publicize it and doxies people and your family gets harassed and you get harassed and criticized and death threats. I mean, it's not fun. It is not, it is, it's more than not fun. It's actually terrifying. I was,

for a couple of years, I worked in the homicide investigation unit at the Manhattan DA's office, which was a basically we investigated the violent gangs in the 90s. And you know, back then, it was crime was very different than it is now. And it was these really, really violent street gangs. And my husband was doing something similar at the US Attorney's Office and then we would get actual death threats where we'd have to have at one point we had I'll never forget we had police cars that were stationed outside of my children's elementary school and my mother-in-law's house had a Molotov cocktail thrown on her front lawn and we were getting horrific death threats and all sorts of things and it's not, it's actually terrifying and it's, it's not,

you know, I left that unit. I said, I don't want to do this work, it wasn't for me and I actually believe it or not went into child abuse cases because I felt that was extremely rewarding and I loved doing that work. And you didn't have to have the problem that you have with these death threat cases. It's not right. It's not right for court staff or judges. I mean, these are normal regular people. Every judge in the Colorado Supreme Court who is getting death threats is just a regular person who is a public servant and they are interpreting the law as best as they can and as best as they know how.

And to have to have heinous, horrific comments that people are saying that is echoing words that Trump, I think that Trump uses. When he says things like poisoning the blood and thugs, etc. He's agitating people in a way that is radicalizing, I think, his base. The threats to Jews are up, the threats to the Arab Americans are up ever since Trump has been using this kind of rhetoric. And the death threats that the Colorado Supreme Court justices are talking about, these fringe websites are talking about beheading judges. There was one comment that something about slam dunk

a judges baby into a trash can. And, you know, just really, I think there was also a pro Trump forum called the Donald that had a post from a supporter that bragged about his own involvement in the insurrection on January 6th and was arrested and said that this will all end when we kill these efforts, you know, these, the effort. And this isn't normal. And it shouldn't be normalized and it shouldn't come with the job description. It's just not right.

Otherwise, you're just gonna have good people say, it's not worth it. And then you're gonna be left with people who aren't the quality of people that you want making judgments over people's lives, in my opinion. And so I just think at the end of people that you want making judgments over people's lives, in my opinion. And so I just think at the end of the day, you know, and Goron, because he was sued personally in New York, then submitted a filing that Jack Smith used, that was a transcript.

It was like a 270 page transcript, single space, of all the threats that came in as a result of Donald Trump and what he said about Judge Engoron and Judge Engoron's Lawsir secretary. And somehow we just think that that's okay. Somehow we just, we as a society have just said, you know, we can't be, he can't be gagged. He has a First Amendment right to do this. I mean, God forbid something happens and somebody gets hurt. That's when everybody's going to suddenly say,

you know what, enough is enough. But in the meantime, now somehow we all just accept it. And I refuse to accept it. I don't think it's okay. And I don't think it's okay, even for Jack Smith, for his family, for judges. I don't think they, they should, you shouldn't be allowed to threaten them. And I

do think that I think it's atrocious and appalling. Yeah, I didn't think there would be anybody better position than you to talk about that as passionate as you do. I can talk about it, but not from the vantage point that you have it, but I totally agree with your point that's not what people sign up for. They're doing their civic duty, They're doing their, they're doing the, they're doing God's work in a lowly paid job to bring justice and enforce our justice system and make sure that it runs appropriately. And they didn't sign up to be attacked mercilessly and doxed and be threatened. We've had, I'll just end it on this, we've had enough instances in America of judges opening up their doors and being shot, their family members being shot and killed.

We just had it recently with a federal judge opening up your mailbox and finding a white powder or an explosive device. This happens very more regularly than we like to admit in this country of judges, state judges, federal judges, district attorneys, prosecutors, defense attorneys, and the like. They are, you know, we are, we are a members of you and I and Ben, we're members of a proud profession, but we're ones. They're also because of what we do and what we talk about that have a target on our back and it shouldn't be there.

And it's not right. I talked about in a hot take that Judge Chutkin who who jogs. This is part of her persona. She's an athlete, a dancer by training. She has to have federal marshals jog with her and escort her to and from the courthouse and get her home safely. Fahny Willis' team, where armored vests and are armed and sheriff's department escorts them. Same thing for the head of the Department of Public Safety in New York, who assesses

the threats against judges and their staff. I wish we didn't live in this kind of world where there's such a lack of respect for anybody that we wouldn't have to worry about putting them in harm's way. We got a congressional candidate in Colorado who just announced as part of his platform, a former military veteran, that he believes that the four justices doing their civic duty and wearing a black robe in Colorado and voted against in a way, Donald Trump or four democracy. It's another way to look for it.

They should be tried and hanged for treason. This is the rhetoric that leads, once you light a match, that leads to a result that we can't recover from. And at every level. I don't want U.S. Supreme Court justices threatened with violence, either, even the ones that are magged or on the wrong side of the aisle from me. I don't want any of that. Neither is Karen, neither is Ben. We just have to continue to do what's civil, even in a criminal process, we have to do what's right, we have to do what's just, we have to do what's civil, even in a criminal process, we have to do what's right, we have to do

what's just, we have to do what's part of our social contract and our constitution, and keep your hands off your neighbors. I mean, this is something you were told in nursery school in kindergarten. Keep your hands to yourself. You got something to say, exercise your first amendment right appropriately and at the appropriate place. Short of that, drop your weapons, stop throwing your hands around because it's only gonna get somebody killed and you put into the prison for a long, long time or worse, depending upon what state you're in and what you do.

And that's what we have to continue to enforce. And we'll do it. I think by shining the light and teaching about our criminal justice system, our civil justice system through the lens of how to handle a problem like Donald Trump, I think it's important. And so we'll continue to bring it to you in additions like this midweek edition of Legal AF.

We'll do it again on Saturday where I'm drawing by bed myself. There'll be a whole new group of stories. I am sure at the intersection of law politics and justice that we'll do it again on Saturday, where I'm joining by bed myself. There'll be a whole new group of stories. I am sure at the intersection of law politics and justice that we'll cover will continue to, we follow stories as they go along. And then we report our analysis of news stories. And you know, it's interesting. I was watching a documentary late last night, Karen, of Mike Wallace, the famous intrepid reporter for 60 minutes about his history.

Chris Wallace happens to be his son, but Mike Wallace, sort of defined guerrilla journalism and the Gacha interview, just tenacious. And he was interviewing, or a lot of Falacci, the Italian journalist, and she had a great comment about her job, not that we're journalists, we're legal and political analysts at best. But, but it sort of smacks, it runs up alongside people that are doing daily journalism that we admire. And she said that he said, what do you do? What do you define journalism? She said, I'm not a journalist. And then she

took a long, this is the 70s, she took a long track of a cigarette. She said, I'm a historian. He says, he's in Mike Wallace, he said, you're not a historian, just I am a historian. I just report the history in real time. And that's the best to be in a story. And so I think we're historians because in real time and trying to give perspective, we're talking about these important legal and political issues. And then we do it all again, you know, rinse and repeat all again next Saturday. If you like what we're doing, there's a lot of ways to support us and all it has to do with your fingers and not your wallet. One thing you can do with your fingers is you can hit the thumbs up sign on this particular

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Those were the different ways to help us. Karen, I love this holiday season, but more importantly, I love it with you and your family. I was one of the lucky ones that got the photo of Karen and her family in Christmas pajamas. Yes, we do the matching pajamas. We've been doing it for years. I'm not over it yet.

I'm still not over how we've seen that. Yeah, well's we all do it. The best part though is seeing how the family's growing and changing over the years and we've how we've added spouses and grandchildren and you know my our beloved dog is no longer one of our beloved dogs is no longer with us but we always have matching for the dogs too. So you're gonna you're gonna to paraphrase jaws you're gonna need a bigger staircase soon at the rate your family is growing with your addition of your lovely grandchild and so we reach the end of another edition of the Midas Touch Legal AF podcast bit week and so until

our next episode till our next series of hot takes by the leaders of Legal AF, Karen Friedman, Knifelo, Ben, my cell is me. We'll see you next week. And on Saturday with Ben, it's Michael Popak, Karen Friedman, Knifelo, shout out to the Midas Mighty and the Legal AFers. you