Legal AF by MeidasTouch - Trump’s Trial Plans BACKFIRE in HIS FACE

Episode Date: May 12, 2024

Ben Meiselas and Michael Popok are back with a new episode of the weekend edition of the Legal AF podcast. On this episode, they debate/discuss: the impact of Stormy’s testimony on Trump’s criminal jury; the impact of and need for Michael Cohen’s testimony against Trump; how the prosecutors should handle the issue of former CFO now two time felon Allen Weisselberg and whether they should make him testify against Trump while he’s already in jail for perjury; the Special Counsel’s possible next steps to reassign Judge Cannon because of how she had mishandled the espionage and obstruction criminal case; the likelihood that the Supreme Court will intervene to save Trump coup plotter from prison time, and so much more at the intersection of law and politics. Join the Legal AF Patreon: https://Patreon.com/LegalAF Thanks to our sponsors: Neo Plants: Go to https://neoplants.com/LEGALAF to get your 7th pouch of Power Drops free of charge at checkout (note: you must use this link for the discount to apply - look out for the free product that will be automatically added to your cart). Thanks to Neoplants for sponsoring today’s video!
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Daniels took the stand. Then there was, of course, the cross-examination by Donald Trump's lawyer of Stormy Daniels, which I think was wholly ineffective. What an impressive person actually she was and how kind of just weakened, how much did that cross exam backfire? I wanna talk about that. If you want any indication about how the trial is going for Donald Trump,

his lawyers moved multiple times for mistrials to which Justice Murchon said, "'I want to be very clear here. First and foremost, y'all are not objecting, Trump lawyers, when you are supposed to be objecting. It's not my job to do your job. Also, your entire defense, for reasons that are unclear, is premised on the fact that absolutely nothing here

happened at all. It's not a nuanced defense. You're saying that Trump never did anything with Stormy Daniels, that she's a liar. You're saying that the phone calls never happened, that they're butt dials or pocket dials. You're saying everything that we've seen is made up. So y'all are opening up the door for people

to try to demonstrate that all of these things are happening, are true. Mistrial denied. Also Donald Trump's lawyers requested that they be able to attack Stormy Daniels after her testimony, to which Justice Marchand was like, why would I, what are you talking about? Like, why would I ever let you do that?

In addition to Stormy Daniels testifying, and of course she was a blockbuster witness, you know, and then the week before you had Hope Hicks and Keith Davidson, and the week before that, you had David Pecker, but Popak, what I want to chat with you about too, is I think some of these custodian of records, whether it's the AT&T exec or the Verizon records keeper

or the paralegal from the district attorney's office who are going through Donald Trump's tweets, who are going through the phone logs, who are going through the videos of Trump. I think those witnesses are actually even more important and they've even been more devastating than some of these bombshell witnesses, because this is a document based case. And I think Trump's strategy of forcing the district attorney to call custodian of records

because Trump's not authenticating his own words is just further showing the jury that Trump's just someone who can't be trusted on anything. I wanna get your take on that. And of course, we've got Michael Cohen who will be testifying in this upcoming week. So we should preview that, what you expect to happen there. And the cross exam of Stormy Daniels,

I think gave a small window into the type of cross exam. We'll see when Cohen takes the stand. Then we should talk about Judge Eileen Cannon finally doing what you and I said she was going to do now, although she delayed it and delayed it, I guess, trying to play chicken with special counsel, Jack Smith, to see if he was going to make any move first or she waited until the last possible minute.

So this week, she finally moved the trial date, like 10 days before the trial, which just from a judicial management standpoint of your docket is just completely unheard of. When it comes to Judge Cannon, everything is like a first, but not in a good way. The first judge to do this, the first time she's did this, the first time she's done this. And I saw an excellent analysis, which is that she's basically got this judicial analysis paralysis of she knows she wants to help Donald Trump, but she's not smart enough to even do it in

the right way. So her orders just come out botched and unintelligent, but you and I will go through it. The trial date now in the Mar-a-Lago document case is indefinitely postponed. We don't know when it's gonna be. She set this like detailed scheduling order of all these other dates, which should have been set a year ago.

And even like her detailed order, she never complies with her own dates and deadlines. What a mess of an order. What a mess of a judge. You and I will break it down. And then finally, Steve Bannon lost his appeal before the DC Circuit Court of Appeals on his refusal to show up to a lawfully issued subpoena

by Congress by the January 6th committee. The Federal Appeals Court in Washington DC in a unanimous ruling ruled against Steve Bannon on his appeal of contempt charges. So Steve Bannon will finally be seeing inside prison cell very, very shortly. I've been my cellist joined by Michael Popak. This is Legal AF.

We're in the eye of the storm right now, Popak, in terms of this trial and playing on the stormy analogy. We like weather on this. You're particularly the meteorologist of the network about predicting events. What I like, just taking a step back for a minute and bringing the plane up 10,000 feet. What I like about the New York criminal trial of Donald Trump is that it is educating not just our audience, but sort of the world about how our criminal justice system is supposed to run in the competent hands of a judge like Mershon with lawyers who know what they're doing and I mean the lawyers for the prosecution. And just as the OJ trial, we're kind of on the wake of OJ's death, just as the OJ trial sort of educated an entire group of worldwide citizens and Americans particularly about how, I'm not saying how it should work, but how one aspect of our criminal justice system worked for the people that were kind of being raised up in the 90s. This is doing it again. We're

contributing in our own way, but you're able to see, even though it's not videotaped or audiotaped through our coverage and the coverage of other people that we trust and that we follow ourselves about the minutiae that matters in a case like this. And you touched on it, Ben, when you said, I think where you were going, or that we'll talk about it in more detail when we get to the segment, is that, yes, the Stormy Daniels thing, of course, is just must watch TV in terms of scintillating testimony, edge of your seat, white knuckle for Donald Trump testimony. But that's not how he gets convicted.

He gets convicted off of these lower level records custodians and administrative assistants and executive assistants that he, we've never heard of, we'll never hear of again, but have now gone in front of that jury to show the 11 checks, the 12 business entries, the emails, the text chain, the Random House publisher reading aloud from his books. That is the overwhelming amount of evidence. Here's some of the checks here that are going to convict Donald Trump. Stormy Daniels not only held her own, and we'll talk about it in our segment, but she counterpunched so effectively.

I mean, I've always had a lot of respect for Stormy. I saw the documentary came away all with a renewed level of respect for her on her being able to tell the story. But what she did overnight, whether through great lawyering and being represented or just because she is who she is, her counterpunching of Susan Necklis should be taught in law school about how you handle

being cross-examined by an opposition because she was the master in that. She was the cat, not the mouse in that. We'll talk about the impact of the jury on that type of thing. But my initial point to get back to it is the reason that the public has a place at the table when it comes to our criminal justice system, and they have almost equal rights as the defendant, as the state of prosecution, is because we don't do star chambers in this country. We're't do, you know, we're not Russia, we're not North Korea, we don't put people in cages and then tell them what their sentence is going to be. We do everything out in the open and in public. And I'm so appreciative of what people are watching,

mainly because, and we'll contrast it later with Judge Cannon, how Mershon is handling all of the intricacies, pretrial practice, motion practice during the trial, the gag order, which you will talk about, the violation of the gag order, the money motions for mistrial. People are getting a real education with this trial, and I think in a positive way. So let's break this down into four sections as we talk about the developments in the criminal trial.

Section one, let's talk about the so-called big witnesses of the week, Stormy Daniels and Madeline Westerhout. Although Madeline I think was a more minor, but Stormy Daniels occupying, if there was going to be a pie chart of those big witnesses, 95% Stormy, 5% West Root. Then I want to talk briefly about a missing chair. Where is Allen Weisselberg? Where, he's in prison. Where is Keith Schiller, Donald Trump's bodyguard? And will they be testifying? What efforts are made to get them to testify. There was a lot of discussion about Weisselberg's testimony and whether certain Weisselberg documents can come in absent his testimony.

So over this weekend, I can assure you that the district attorney's office is speaking to the wardens at Rikers and trying to determine communications and open contact lines with Weisselberg. That's the second topic. Then I want to talk about the minor witnesses with a major impact in terms of the text messages and the phone logs and the checks and all of that stuff. And then I want to finally, topic four, talk about what we expect to happen next week.

That's our framework right now, keeping this organized. So let's start off with big witnesses. And Popak, you talked about how the cross exam of Stormy Daniels should be taught in law school, or how Stormy Daniels handled it. Right. From a witness perspective. How not to do a cross examination because in a cross of someone like Stormy, where frankly, Susan Necklis was intellectually outmatched by Stormy Daniels,

Stormy was much smarter. Also the truth and facts was on Stormy's side. And three, Susan Necklis, because of her client, had a tough job though. She had to prove that something that clearly happened, clearly happened, didn't happen. So you had this strange thing happening on the cross exam where Susan Necklis would say things to Stormy Daniels like, so let me get this straight Ms. Daniels, you produced 150 adult films, correct? Yeah. And you acted in over 150 films, correct?

Yeah. So you make up stories about topics in adult films, just like you made up the topic of Donald Trump. And it's like, what? And then Stormy Daniels like, what? And then the other area of the cross exam was like, you told Anderson Cooper that you were having dinner with Donald Trump, is it that correct?

Yeah, and how long were you there? Three hours, did you eat dinner? No, we never eat. So you're lying. So you didn't eat dinner and you told Anderson Cooper you were eating dinner. And then Stormy's like, I could say we were going to have dinner. I just never ate. Like what petty points to try to be making in front of- 20 years ago. So let me throw it to you, Popak, Stormy. I thought her direct, she starts off a little nervous, Stormy speaking fast, she was a little shaky, truthful, but not her kind of normal confident self,

but got out all the facts that needed to get out. Then on the cross, you then had not only questions like that, but also opening up the door for Stormy to talk about real specific things that happened between her and Donald. And then it also opened it up for the redirect, where they were able to show Stormy the posts that Donald Trump's been making about her, where he calls her horse face. And also for them to show Stormy the lawsuits back and forth between Stormy and Trump from 2018 to 2020, where Trump and Cohen both admit in declarations and

legal documents that the payments at issue were reimbursed because Trump was trying to enforce the NDA. Trump admitted in 2018 and 2019 that he was the signatory to the non-disclosure agreement and made reimbursement payments to Cohen in order to sue Stormy and silence her. But in the court documents, when he did that, he had to admit that these were reimbursement payments to Cohen, which then Stormy could authenticate. So those were my big takeaways, but let me throw to you, Popak. Yeah. And just as a teachable moment, there's the direct examination, which is the prosecutors in

this case putting on what could have been a hostile witness, but they didn't treat it as a hostile witness. And she gave, as we detailed in depth at the Midas Touch Network Legal AF, narrative responses that, for me, even though she was, as you said, a little bit nervous, a little bit shaky in the beginning, she got stronger, she went on. But what her hyper detail did, was for me, and for I think, the jury was make her story very authentic and true. It tracked what she's been... These events happened 20 years ago, 18 years ago, but she's been talking about them and writing about them and doing documentaries about them.

So her story is not really wavered despite Susan Necklis and Todd Blantz standing up at some point when the jury was out saying, oh she it's a mistrial, she's just changed her entire story about whether there was dinner or not or whether, I mean such picky things that even the jury would think that is not undermining Stormy Daniels main, the main thrust of her testimony. In fact, the hyper detail about the bodyguard out in front of the door and him being in silk pajamas and her rolling up a magazine and smacking him on his backside because he was, I always said naughty, because he was obnoxious. And he acted much better after she did that. And on all of that, that's somebody telling the truth,

because you can't remember lies like that. They're so ingrained in your brain. So that was good. I think on balance, it was a bad day for Donald Trump during Stormy's direct. It got a lot worse because of the way that Susan Necklis handled her cross. I think it's for two reasons. One main one that you pointed out, Donald Trump had his hand up his

backside and was manipulating where he wanted Susan Necklis to go. I think she compromised her own independent judgment about how to handle that kind of witness because she had a trump upper ass and inner ear, like an ear worm. And so you could tell the approach was, my approach is that Stormy Daniels is a lying woman who lies. That's the best I can come up with. And I'm gonna use everything I can

to try every which way and from every angle to get her to admit that what her story is, is not true and that she lied. All that did because it is true and it's not a lie. And there's enough documentary evidence and consistent evidence of Stormy Daniels to make it out. And the reason Donald Trump bought, let me try it again. The reason that Donald Trump could not stop Stormy Daniels from talking in detail about their interaction

is because as you said at the top of the segment, their defense was a complete denial, like he did with E. Jean Carroll, about having any relationship with her other than the photos, photographic evidence, and that it's all a lie. It's the E. Jean Carroll approach. And we know that failed for him twice to the tune of $100 million in front of two federal juries just six months to a year and a half ago. So why they thought that would be more effective now, I don't know. That the woman is lying, I didn't have sex with her, that may help you at home with Melania, but that's not working in the courtroom as a cross-examination technique. And instead, you know, just to point out the comment

you made as a perfect example, when Susan Necklis said, and I knew where she was going, but she was so heavy-handed about it and so ham-fisted about it that, of course, it backfired when you're dealing with Stormy Daniels. She said, as you said, she said, you're a you make porn movies, right? So you make movies about fake storylines and fake sex. And that allowed Stormy Daniels, who could never have anticipated that question. That way, on the fly to come back with, first of all, the sex in the pornos are real, just like the sex with your client was real in the hotel that room. Boom, mic drop. I mean, Susan Necklis walked into that because of the approach that she had from the very beginning. On the other thing that I don't think anybody could have anticipated, as much as

the prosecutors worked, I assume with Stormy Daniels, to get her ready for her testimony, the final question in redirect, and just as a little teachable moment for our audience here, starts with direct. Then there's the opportunity to cross-examine. Usually it has to be to the scope of the direct exam. You can't go into new topics when you have the witness on cross. Then there's a redirect, the party that had the witness originally gets to kind of go back into those same issues and clean up some matters. And then there may be a recross, it depends if the judge allows it or what's come up. In redirect, they ended the exam very powerfully, but I'm not sure that that was how they thought it was going to go. They said to her, Stormy Daniels at the end,

Miss Daniels, was your experience with Donald Trump a net negative or a net positive? And at that moment she burst into tears and she said a net negative. And she was like tearing up and crying in front of the jury at that moment. Now smartly, the prosecutor stopped asking questions. When you get, you're always looking for a high

point to end your exam on. You and I do it all the time, especially in front of a jury. That was the high point. She might've had a few more questions to ask her, but that was the place to draw the line and sit down. And so that's what I meant when I said they'll teach this both on how to prepare a witness for the cross-examination Counterpunch and what Susan necklace did wrong because they're so geeked up and and Donald Trump has his legal team Wired so tight about what they can and can't do and how they have to please him That it is it is it is corrupting their judgment about how to run this case.

For all the years before, Todd Blanch was considered to be a very reputable lawyer who knew what he was doing in a courtroom. He's so bad now that the judge basically yelled at both of them and said to Necklace and Blanch, you have very little credibility in my courtroom. That's not a great thing for an advocate to hear. And I'm not sure Mershon has said that to people of this caliber before, but that's because the other counsel in the room is Donald Trump.

So on balance, you could, if I'm the prosecution team, and you had told me this is how Stormy Daniels testimony all the way to the end was gonna go, I in advance I would say I will take that in a heartbeat. That was a very good Stormy Daniels for them. And now as we talk in the fourth segment about Cohen, they're gonna hope for the same thing with Michael Cohen. I think it is, I don't give a lot of A pluses in my law class, but truly her testimony was an A plus. Look, you can tell how it really got, I mean, the Trump lawyers knew how damaging it was.

They demanded a mistrial, and in their mistrial motion hearing, Justice Mershon said, you know, I, as the judge at certain points, cut off certain lines of questioning, because I just thought it was perhaps veering a little too much into the gratuitous details. By the way, Karen Friedman Agnifilo said that she thinks that all the gratuitous details needed to come in because, you know, Donald Trump she thinks that all the gratuitous details needed to come in

because you know, Donald Trump's denying that it took place. If Trump wasn't denying that it took place, then if he stipulated that it happened, then very little of it should come in. But can I interrupt for a minute? I want to ask you something on that. Why don't you, um, don't you think the better angle for Trump, but it would have gotten him in trouble with Melania and the rest of his followers is to say that he had the sex outside the marriage and then defend the rest of the case.

Once he made the decision that he felt he had to deny, doesn't that then put them off on the wrong foot for all of the way to defend this case? Look, you and I are not giving him advice because it is already too late for that. It's already picked. So I know a lot of- It's picked. He can't, he can't unring the bell right now. So the fact that Popak and I are giving these hypotheticals, we're not, I

want to be clear when people are like, you're giving him advice and your help. We are not. He can't unring that bell that is ringing very loud. His most obvious defense though would have been, look, yes, I did that. Yes, I did that. And then I, and then I wanted to reimburse Cohen. And then at the very end of all of this, we miscategorized it as a legal expense and it was a mistake. Absolutely.

I'm sorry. Not a crime. We screwed it up. It should have been done. If there was a hush money payments box, or this was my first time running, I didn't even think I was going to win the election. I didn't know a lot about campaign finance. That's right. At the end of the day, we just mischaracterized what it was, but we had to reimburse Cohen. So we called it what it was.

That to me is actually a very credible, normal defense. And then people look at it and go, you know, what do you categorize it as? But he's gone with, she's a liar, he's a liar, they're a liar. Everything's happening. You can't believe anything. It's all a fake. And all that does is show his intent because he's still lying about it. He's still trying to cover it up because it shows he was trying to interfere with the results.

The reason I asked you that, I'll just leave it on this. I know we're going to go to an ad break soon. The reason I asked you that is I was just leave it on this. I know we're going to go to an ad break soon. The reason I asked you that is I was sitting down with one of my colleagues and I said to them, whenever we have a case in this office, you always have to understand what the winning strategy is at any moment in the case.

It may shift, facts may develop, discovery may develop, but if I ask one of my associates, take them out for lunch and I say, what is the winning strategy for the case that we're talking about? They better know the answer to that. And the winning strategy that you and I just mapped out, that may have been a winning strategy. The one that they're employing in the courtroom right now, where the cake is already baked, is not a winning strategy to try to get one person to believe there's some sort of doubt and hang that

jury. That's not a winning strategy for Donald Trump. Because he's a criminal, because he did it, because he's still trying to cover it up, because he believes that if he admits to what he did, that that would have an impact in the election. It's quite specifically the issue in the case on full display. And with these cases, criminal cases, that evolve like this in the trial, they become these kind of living, breathing creatures

and the jury can actually see what's going on in real time. When we get back though, I wanna talk about where's Weisselberg? We know where he is physically, but is he gonna be showing up? By the way, I'm not buying what the prosecutor is saying about his non-disclosure agreement being a prohibitive factor. So it's not that I'm going to agree with the prosecution and everything. You're going to hear me when I go back disagree with what the prosecutor

is saying. And then I want to talk about some of the other witnesses who have been testifying. Then let's look to next week. I I wanna remind everybody about the thriving Patreon community, P-A-T-R-E-O-N.com slash legal AF. You see Michael Popak quite literally raising the roof there. There's nothing better than Popak and I like to do than geek out in our mock law school class that we've created with almost 3000 members of our law school class at patreon.com slash legal AF.

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Look, we don't have outside investors. One of the way we build this independent platform through those pro democracy sponsors, so check out those products and services. I think you will love them. All right. Michael Popock, towards the end of the criminal trial proceedings last week, week four, day 15, the prosecution after the jury left talked about wanting to introduce his evidence, Alan

Weisselberg's severance agreement that has non-disclosure language and non-despairment language. And the prosecution said, look, he's not here, he's not present, we want to introduce this evidence. The judge, Justice Marchand, said, well, where is he? To which the prosecution said, well, he just pled guilty again to felony perjury. He's literally serving a prison sentence right now at Rikers.

So, and then the judge said, well, have you subpoenaed him? Have you called him? To which the prosecution says, no, we haven't yet. And the judge said, why? And the prosecution said, well, I haven't yet. And the judge said, why? And the prosecution said, well, I'm not even sure we could. There's a non-disparagement and a non-disclosure within the severance.

You know, and the judge said basically, maybe try to reach out and we'll figure out if he's going to invoke his fifth amendment against self-incrimination. If he's able to show up, if you can coordinate his transport. I think he's an important witness. Let me just leave that there for now,

because I think with all of the notes and his handwritten notes and emails and things that have been authenticated, we've already tied this case to Trump and Trump's knowledge. But Weisselberg is a little bit of, I could see someone say, well, where was Weisselberg? Why isn't he here? Just having that question.

I don't think it's necessary, but I can see a juror being like, but where was he? I don't think it's dispositive. I don't think it matters, but I can see somebody saying that. The other person is Keith Schiller, who's Donald Trump's bodyguard, the one who brought Stormy Daniels to Donald Trump's room, who's Donald Trump's bodyguard, the one who

brought Stormy Daniels to Donald Trump's room, who's always been by Trump's side, who while Trump was in the White House, Westerhout, Madeline Westerhout, who was Trump's executive assistant who got fired for talking crap, I think about Tiffany, or she talked about how one of the things Trump would do is use his bodyguard to receive mail so that it didn't go through the White House and that Schiller would get some of these checks for Donald Trump to sign when they didn't want it going through White House security protocols. So Schiller could corroborate those facts.

From what I understand, people can't locate Schiller right now, or he's kind of not making himself easy to access, but Schiller's less important to me for the prosecution calling him. Then, then I think he's, you get a missing person instruction on the defense side. If they don't call Schiller because of Trump's relationship to Schiller, but this whole Weisselberg thing, I find odd because Popak, you and I practice civil law and throughout my career was always my understanding. Any non-disparagement or non-disclosure agreement always gives way to a lawful subpoena and a court order testimony. You can't tell a private contract

that has non-disparagement language or non-disclosures can always be overridden by a judge. There's ways to deal with that, whether the documents are handled under seal, they're marked confidential before there's a trial, but often even when there's a trial, the court orders that it becomes public. And, you know, usually in these agreements, there's an obligation that if you are

subpoenaed by a lawful court process, it would be a breach if you just showed up and didn't notify the other side and then started breaching the non-disclosure. But the proper protocol, this is standard practice and I wanna get your take, in our practice that if you were subject to a non-disclosure or a non-disparagement and you were ordered to appear somewhere by the court that you think could violate it, you give the other side notice,

so they have an opportunity to object and then you bring it before the court and you say, I'm under an NDA or I'm under a non-despairment, I'd like to testify but I have to be compelled, the other side objects, then you can be compelled to testify. So private, to me, I don't buy what the district, I just don't, I don't buy what the district attorney's saying

that they truly thought, they're smart people. These are top lawyers, so I'm sorry, I'm just not buying. I thought their excuse was lame. I'm just being totally blunt to say that a non-disclosure or non-disparagement is why they didn't want to call Weisselberg. So that's my analysis on that one. Well, let me back up. I have a slightly different take. On Weisselberg, I totally agree with you that I've always thought he was a key witness. And just to remind people, sometimes you and I talk with Karen, we talk in shorthand, we've been doing this for so long, but we try to be respectful that the audience may not know

exactly what we're talking about, who we're talking about. So let me back up just a little bit. Allen Weisselberg, 50 year plus chief financial officer, twice convicted felon, worked for Donald Trump's father, and then Donald Trump. He was the money man along with Jeff McConney, the controller within the Trump Organization. When money moved in the Trump Organization, it moved through Allen Weisselberg. Sure, Donald Trump would sign off on it. And as we know from his books, and from his micromanagement style, there wasn't a paperclip that was purchased that Donald Trump didn't know about, including the payments up to $400,000 plus to Michael Cohen to also gross up the payments to him so that the phony invoices that Michael Cohen sent with the knowledge, so they weren't defrauding

anybody with the knowledge of Trump, to repay him for the Stormy Daniels outlay did not end up as income that Michael would have to pay taxes on without being reimbursed for that as well. Jeff McConney testified as the controller. He'd never in his life seen the Trump organization pay somebody's taxes, if you will, in giving them extra money, which also indicates as we joked about last week, Michael Cohen was so rogue that he got a bonus for the work that he gave, that he worked that he did. Weisselberg, his handwriting is on all of the major documents that make up the 34 count indictment. Let's remember we have a 34 count indictment. We have 11 checks, 11 invoices, and 12 ledger entries. And that all passed through Allen Weisselberg. Now Michael Cohen will testify about his interactions

with Allen Weisselberg. McConey, the disgraced controller, also testified about it. But you're exactly right. There's an empty chair in the room, and if you're prosecutors, I didn't think you wanted the jury to wonder where Allen Weisselberg was, unless you were also to give them some sort of instruction, which you never could, that he's in jail for having lied in the attorney general case down

the street that got Donald Trump a judge to $465 million in a fraud case. But when we reported on the plea deal for Alan Weisselberg, same Manhattan prosecutor's office, we reported, I remember having a conversation with Karen, our colleague at our midweek, that there was at least reporting that the deal was that they would give him this, they would recommend the sentence, I think it's four or five extra months, in Rikers Island for the two counts felony conviction for lying, perjury, but that they would not seek to put him on the stand during the Manhattan DA. And we speculated at that time,

even though that was disappointing to me, I said, well, he's so radioactive that my original thought that he's gonna be in a very tight leash for the prosecution and he'll get on and get off in a way that he's never done before and tell the truth finally now that he's been convicted again. That sort of went by the wayside when I heard, oh, there's a deal that he's not going to testify. So I've always had a working theory that he wasn't testifying because that's what we were sort of told at the time when the plea deal was cut.

Then this came up the other day, yesterday or so, about they, Josh Steinglas representing the prosecutor's office, arguing that they want to bring in the settlement agreement. We also reported on the settlement agreement because it came up in the New York attorney general's case that Eric Trump negotiated on behalf of his father a severance package for to separate but friendly separate Alan Weisselberg, the CFO from the company and pay him $2 million. So the $2 million, the reason that this is an issue is that there's language that Eric Trump put in there for Donald that said that if he cooperated with, not just disclosed, if he cooperated in any trial against Donald Trump, that he could lose the $2 million and that it was paid in parts in installment plan to keep him on the straight and

narrow. And this is a guy whose entire financial life is tied to the Trump family. Whatever he's had in his life, apartments and cars and tuition paid for his grandkids and all of that, that all came from the largesse of Donald Trump. He doesn't have like extra money on the side from a side gig. There was no side gig. So he's very beholden to Donald Trump, even going to jail for him now effectively twice because he could have flipped on Donald Trump a long time ago and not gone to jail, but he needs the money.

So having said that, I've said in a hot take, I think it's going up to the day or the next day or so that that provision is not only, um, should be able to be voided by a subpoena by a trial judge in a criminal case, but it's, it's void as it's not, it's unenforceable as against public policy and it's unconscionable. And if, and if he testifies because he subpoenaed to testify and put on that stand by the criminal judge and Donald Trump's family,

Trump tries to take back any part of his $2 million, I take that case for Allen Weisselberg to get his money because I don't think that's an enforceable provision in a contract under New York law. Well, what Josh Steinglass said in the reporting that we've seen in response to Judge Murchon's questioning, he said, it is a futile exercise to put Allen Weisselberg on because he's likely to take the Fifth Amendment and not testify.

That indicated to Judge Murchon, who's very smart and sophisticated in criminal matters, well, how do you know? Have you had a conversation with him? What about, as often federal judges do, have you offered him immunity? Perhaps if you offer him immunity, he will testify because he won't have to worry about the Fifth Amendment Privilege or it won't be properly asserted, and he'll have to testify. Why don't we do this, Murchand said? Why don't we bring Weisselberg back and without the jury present do this teachable moment here. It's usually called

a voir dire. Let's do a voir dire of what his testimony would look like without the jury present and let's see if he's going to assert the Fifth Amendment because if he isn't, Meshad is inclined to say, you know, you're not going to bring in his settlement agreement to try to explain his absence when you're not properly, as you said Ben, we're not buying this story that that's the reason you're not putting him on. So I'm glad that Mershon is putting the prosecutor's feet to the fire on this. What I think is going to happen is they're going to bring him in, they're going to talk to him over the weekend, they're going to say, we're either going to give you immunity,

which so you won't be able to put up your Fifth Amendment privilege, and then they're going to have to make a decision whether they're going to put him on or not. And if they're not gonna put him on, I don't think Rashaan's gonna let them explain it away, wallpaper over it, by waving around the separation agreement. If they want to put him on, it's gonna be a little bit of a white-knuckle act for the prosecutors, because you don't know. Every time Allen Weisselberg has taken the stand, he has lied and or bent over backwards to benefit Donald Trump, either by not remembering something, misremembering something, or out

and out lying. And despite the fact that he's spending months and months and months of his seniorhood in jail. So what's going to happen now? Suddenly now, because he's serving time again, he's going to tell the truth. I think you got to leave him off the stand. If they really feel that he's that difficult of a witness, I don't think you screw up your case by bringing him on. You'll have to explain Allen Weisselberg's absence another way.

Yeah. Allen Weisselberg has demonstrated that if you call him to the stand, he will that if you call him to the stand, he will lie over and over again in favor of Donald Trump. You will then charge him with perjury. He will then take a plea, and then he will go and be in Rikers, and he will do his time, and then he will come out, and then he will lie again. I mean, he is so inside the Trump bubble that there, you know, and so it is a risky witness to put up knowing that who knows what Weisselberg Weisselberg will lie. You wouldn't put it in a musket.

Weisselberg doesn't care. If you were Josh, I'd be glad to go to Riker's. You wouldn't do it, right? You wouldn't, based on this, right? Would you put Weisselberg on at this moment? It's a real, it's a really good question. I'm not trying to, you know, I'm not trying, I truly don't know. I mean, I don't know.

I mean, on the one hand, why, if you're not going to bring him in, why though do what the prosecution did? Again, this didn't happen in the presence of the jury. You had to have known the same way we talked about in the cross-exam of Stormy that kind of opened the door for her to give some more specifics. If the prosecution's going to, if you're going to want to start to introduce Weisselberg stuff, I think Justice Mershon was, was right and correct to push back and say, have you reached out?

Have you offered immunity? Have you done all those things? Why I don't know is because I truly don't know what he's going to say. And there doesn't seem to have been, you know, in a criminal case, unlike the civil case, I don't have a transcript. I don't know what he's locked into saying.

And so that's the piece of it where- You, let's just do it this way. You could, if you're gonna do this high wire act without a net, you could do, we talked about scope of direct before, you could do a very limited 10 question thing for Alan Weisselberg. The checks are in, the ledgers are in, everything with his name is in. You do a couple of those, you do the separation

agreement, and you like you sit the F down. And then they've got to keep their cross to that narrow scope. And then you got to hope they don't try to call him back out in their own case in chief when it turns to the defense case in about two weeks. Yeah, but you know, would it be within these – for those watching, too, a teachable moment, you have to keep the cross within the scope of the direct. But if you ask about the checks, could you argue that the scope of the cross is a question like, you know, would Weisselberg basically throw himself under the bus and spend the rest of it, you know, go, you know what, it was all me, it's all my fault,

I did it. Which is what he did in the tax case. He did exactly that in the tax case. However, if he did it in this case, the question would be, why would you then cover it up if, and this is where Trump screwed it up with his defense, if what you're saying never even happened, if there was no stormy interaction, if this was all a lie, then Weisselberg saying it was all him, doesn't make sense the same way it would make sense if Trump admitted that the underlying

conduct took place, but he was worried about it, then it would be an easier assist for Weisselberg to simply say, I wanted to protect him, I screwed up, but there's nothing to protect him from if nothing ever happened. But it creates the second shooter, right, for the jury to think that maybe there's an argument that he's not the right defendant in the case. So those are all of the issues floating around. Which brings us, though, finally, though, to Cohen testifying next week.

And I'll kind of combine categories three and four into one category here for time purposes, which is we've seen a lot of corroborating documents of everything that Cohen said before, including we've heard Donald Trump on video praising Cohen. We've seen tweets by Donald Trump saying how Cohen's a respected lawyer. He's known Cohen his whole life, how Cohen's a great person. We've heard Donald Trump on video saying that, I don't know any of these women, I know nothing about them. We've seen posts of Donald Trump then attacking Cohen

and saying that Cohen didn't, you know, that Paul Manafort didn't break the way Cohen broke. You know, and so all of those documents came in. And then there was a moment where there were, there was a custodian of records. I think it was the AT&T custodian of records, by the way, that's what we call in the legal profession, someone who testifies on behalf of a company. They're often called custodians, custodial witnesses, because they're the ones who validate the records.

Like their job at AT&T isn't I'm a custodian like their job is there an exec VP or whatever their position is but they're viewed as Custodial witnesses so they basically testified between communications between Cohen and Trump what that are shown on phone logs You know, you know, you don't see what specifically was said, but you see phone calls were made back and forth between Cohen and Trump, Cohen and Weisselberg, Weisselberg, I mean, yeah, Cohen and Weisselberg, Cohen and McConnie, Davidson and Trump, all these, I mean, Davidson and Weisselberg,

Weisselberg in the White House. And then Trump's lawyer on cross exam was like, have you heard of butt dials? Have you heard of pocket dials? And so it's possible that these were pocket dials, right? So like, and the witness is like, look, I'm reading you the logs that these calls took place. I don't know if they were pocket dial.

I can't tell you the content of the call, but this phone number called this phone number at this time. But the fact that Trump's lawyers are going with butt dials and the pocket dial defense, I mean, to me, it's just a stupid defense. It's a bad defense to make in this case that the calls never happened, the storming never happened, none of it ever happened, but that's where they're going.

When we come back from our last quick ad break, Popak, I want you to talk about that and what you expect next week from Michael Cohen. I wanna remind everyone, patreon.com slash legal AF. If you ever wanted to sit in a law class, Professor Popak or myself, we have about 3000 people who are in our class right now. It's a pretty big class.

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Head to tryfume.com. That's T-R-Y-F-U-M.com and use code LegalAF or scan the QR code on the screen to get a free gift with your order today. Welcome back to LegalAF and my cellist, Michael Popak, where we last left off. We're still talking about the criminal trial. Popok, Michael Cohen's gonna be testifying next week.

A lot of witnesses have corroborated already what we would expect Cohen to testify to. What do you think's gonna happen? Yeah, so far this case has gone exactly to the playbook that you and I thought it would. It's all about conditioning the jury to get ready for the testimony of Michael Cohen. I mean, a lot of the witnesses were put on in advance of Michael Cohen to get the jury ready for Michael Cohen's testimony, to bolster it, if you will, in advance.

His credibility, the more people not named Michael Cohen, and the more documents that are not necessarily Michael Cohen's, that the jury has shown in advance of Michael Cohen that prove his facts, that check the box on those facts, the better. And that is what we've been watching. That's why there's been so many inside witnesses, the executive assistants, the accounts payable people, the people responsible for Donald Trump's Rolodex, you know, his telephone contact list, these outside custodians of record that we just talked about at these various companies. The reason, and David Pecker starting it all off as the roadmap witness, what seems to

be a lifetime ago, but was only two and a half weeks ago, is getting ready for the arrival of Michael Cohen. Because there's only three people that were involved in what the prosecutors looked the jury in the eye in their opening and they told them what this case was about. The Trump Tower conspiracy, the TTC. There's only three. It's David Pecker, Michael Cohen, Donald Trump. They've heard from Pecker. They're never going to hear from Trump unless you and I are just totally wrong about Donald Trump

taking the stand. But they got to hear from Michael Cohen. I mean, talk about empty chair. Michael Cohen didn't testify. And that's, I think, the reason that it took a while for Alvin Bragg, the prosecutor of the Manhattan DA, to get right with the case because he had to get right with Michael as a testifying witness. You and I and Karen have talked about, there's an instruction in criminal law that talks about if somebody has lied before, then a jury can be given an instruction that if they're lying, then they're lying now. There has to be certain factors in place related to that. And so Michael has, he's got some baggage that needs to be unpacked in front of the jury.

To socialize Michael in front of the jury in advance to anticipate it, a little bit of preemptive. Josh Stein glass and Matt Colangelo in the opening did that. And then of course, the entirety, if you will, of the substance of the opening for Trump was to attack Michael Cohen. So the jury's ready. If they didn't know who Michael Cohen was before, they certainly know now, having seen all 34 documents that have some version of his name on it that are relevant to this case, they've heard already by other witnesses not named Michael Cohen

of what the exact conspiracy hatched in Trump Tower was. That Michael would form a shell company, limited liability company for the sole purpose of paying off Stormy Daniels and anybody else they found in the future. He did it moments after a conversation involving Donald Trump and David Pecker. That Michael would go and use his own resources

because the National Enquirer already got burnt by Donald Trump once and laying out the money for Karen McDougall and that they weren't going to do it again. So Donald Trump had to have somebody else do it. They decided it shouldn't come out of the Trump Organization directly. So Michael said, I'll do it. And so he went to his bank at First Republic. He took out a home equity loan and he took any paid Stormy Daniels through this shell company, which matches completely so far. The this surreptitious recording that Michael made of his conversations with Donald Trump about doing exactly this.

That's why Donald Trump is dead between that and the tweet that he sent out about my lawyer, the Michael Cohen, entered into an agreement and I paid him for legal services, basically admitting to the whole thing, is going to be with the final nail in his coffin. But Michael has to testify and will that he sent in what effectively is phony invoices, but that didn't defraud anybody because the Trump organization was waiting for the invoices to come in. They wanted them to read for legal services rendered Michael Cohen's law firm when that was not true and

that they paid it over time because Donald Trump is cheap. Let's be honest. Donald Trump is cheap. You could have stroke one check for the gross up amount plus a bonus to Michael for $400,000 plus, they'd be done with it. But no, they had to do it in $75,000 increments or whatever it was, and to pay Michael back. And then somebody had to calculate how much to overpay Michael to cover his taxes, Michael will talk about.

I didn't want to get stuck with this phantom or fake income because it wasn't income for legal services rendered. It was to repay me for laying out the money to Stormy Daniels. So I told them they have to gross it up and so cut to Jeff McConney and Alan Weisselberg's notes that figure out exactly what the gross up payment should be to go to Michael. And then Michael gets repaid, he turns the money over, Michael talks about on testimony that the negotiations he has with Keith Davison, who's already testified to the jury about Stormy Daniels, and Michael's gonna talk and tell the jury,

in his voice, as only he can under oath, that at some point, Donald Trump told Michael Cohen, let's not pay her at all. I may win this thing without having to cover this up. And so can we just delay it and if I make it to the White House, we won't pay her at all, which is the heart of the election interference case. It means it has nothing to do with Melania and trying to, as Susan Necklis has been trying to pull out of, pull out the, like she's pulling teeth from any witness she can find, but he cared about his family, doesn't he?

It's about his family, right? He was embarrassed because of his family. Like, I don't know about all that, Susan, but I do know that he wasn't gonna pay the poor woman if he could get away with it and still win the election. And only when Keith Davison testified that he drew a line in the sand and said, F this, I'm going to the press tomorrow, Keith Davidson testified that he drew a line in the sand and said, F this, I'm going to the press tomorrow, that they finally had a payer days before the election. Otherwise, Donald Trump wasn't going to. The only one who can tell that part of the story is not even David Peckers, not even Keith Davidson. It's only one Michael Cohen,

but they did the right thing. You and I said, he's not going to be the first witness, Michael. He's not even going to be the last witness. And maybe he may be the penultimate witness now, as far as we can see for the prosecution. But he is now surfing. He's got a lot of wind at his sail, Michael does, in terms of testimony. He knows, and he's been prepared by the prosecutors, by his own counsel. He knows what the cross-examination is going to look like about his past and some convictions. But the good news for Michael is Michael can talk a lot about, yeah, I went to jail for something that was criminal that that guy over there did. And that's not right. Michael has a very compelling story for the jury

about it. If he was convicted of crimes that were unrelated to his employment by Donald Trump, that would be different. Well, you hijacked the car. There's nothing to do with that. Everything Michael had a problem with fundamentally had to do with him getting prosecuted and convicted for the election fraud that involved the Stormy Daniels affair. So he has a very compelling story to take. So and the I saw one joke in a New York paper leading into tonight's podcast that said, and I'll leave it on this and turn it back to you that that the judge, you know, listen, Mershon is I have so much respect for him and how he's handling this. But Todd Blanch, because that's all he does right now, he's like a Pop-Tart, pops out of a toaster every once in a while. I assume he's doing Michael

Cohen. That's the rumor that Karen told us. We'll have to see. He can't do worse than Susan Necklis did with Stormy Daniels. But he pops up and says, Judge, Michael Cohen is wearing a t-shirt with Trump behind bars on TikTok. Can you make him stop? Now, look, this judge has already said he's not going to gag Donald Trump to not go after a witness if the witness doesn't really need protecting, suggesting that you're not going to be able to use the gag order as a sword and a shield. We're not going to gag Donald Trump and then everybody that doesn't really need protecting attacks him. So he's always had that little balance there,

but he said to Josh Steinglas, tell Mr. Cohen for me from the bench that I would like him to stop commenting about Donald Trump between now and the time he testifies and tell him it's from the judge. Because Stein glass kind of threw up his hands a little bit and said, well, I've tried, we tell all the witnesses not to do it. They're not subject to the gag order. They've got first amendment rights. We're doing the best we can. So Murchon did the best he could. I mean, he can't order. He's a witness. He's not a defendant in the matter,

but he said, tell him from the judge, I'd like him to stop. And so he's done what he can to kind of insulate that. But this all comes to an end, Ben, on Monday or Tuesday, whenever Michael takes the stand. And this trial is rapidly coming to an end. It looks like they say there's only one other witness after Michael. Then they're going to, presumably, maybe there's some documents have to come in presumably the Weisselberg issue will get resolved

So maybe now with a dark day Wednesday were into Thursday But when the prosecution is gonna rest and now you're gonna have to make a decision if like what witnesses you call? end of next week beginning of the following week from the defense side And then you got to make that ultimate decision about Donald Trump's testimony. That a rebuttal case for the prosecution. And then the jury gets this whole thing and probably the next two weeks. Let me say this because I'm very friendly with Michael Cohen. About four weeks ago, Michael Cohen committed to not talking about Donald Trump. Michael Cohen committed to not talking about Donald Trump

on our shows together, and he's met that commitment. All of our shows have focused on other topics. I've asked him how he's doing, like, are you doing well? But we've talked about everything else. I did see on that TikTok that he wore the shirt. That's the shirt for his, that's like his podcast shirt. But let me be very clear too. Like, you know, Donald Trump has like Janine Pirro show up in court.

Then Donald Trump, you know, says to like Janine Pirro, I wanna, you know, it's been reported that, you know, she's, he says, come here, I've got to tell you something. Then Jeanine Pirro goes on Hannity that night. Donald Trump posts, watch Jeanine Pirro on Hannity. And then she goes and starts attacking witnesses. Donald Trump has his spokesperson go on and attack the witnesses. Trump brings the people into the court to get around the gag order, which to me is still a violation, directing others to do it is a violation that I think needs to be brought up.

And then these individuals are not protected by secret service. These individuals do not have security guards. Their lives are put at jeopardy. As Stormy Daniels said when she testified, it's a net negative to have been affiliated with Trump. Same thing for Cohen. It is a net negative in his life. Look, Donald Trump can grift off of his Mr. and Mrs. Magadony and sell them NFT cards. Then Trump doesn't have to pay taxes on that because it's political action committee money,

which is a ridiculous concept in and of itself. But Cohen wasn't born a billionaire. Stormy Daniels wasn't born a billionaire. People have to live and survive and pay bills and do things and interact after Trump destroys your life and these people destroy your life. So I like to think about it a little bit from a human perspective and one of empathy as well. Like when Stormy Daniels is saying, like I have to pay bills, like they don't want to be testifying at cases like this. You think this is where they want to spend their days

in court and congressional testimonies having to testify like this. They have to pay lawyers to help them navigate these cases, which are hundreds of thousands of dollars. I want to think about the human element. One of the things I like about political beatdown and the shows I do with Cohen is you get to see Michael Cohen as a person. You get to see his vulnerabilities and who he is as a human being. I want to talk now briefly about two other things. I spoke a lot about the trial. First quickly, Judge Cannon. She finally did Michael Popak what you and I thought she was going to do. She's indefinitely postponed the trial. There was a hearing back on March

1st that was supposed to address the trial date. And she had indicated on March 1st that she was going to move the trial. Jack Smith requested July of this year. Donald Trump requested never. And Judge Cannon seemed to be indicating that she was going to go with never. And, but then March passed, there was no order. April passed, and then she oddly included a deadline for like SEPA section five disclosures.

That's where the criminal defendant in a case involving classified information discloses the type of documents that they want to introduce at trial. So it was odd that she was moving the trial, but that included a pre-trial date for SEPA Section 5, which by the way, Jack Smith told her to set SEPA Section 5 back nine months ago. And remember Judge Cannon previously on a motion for reconsideration on a different topic about whether or not she could disclose confidential informants and confidential FBI information. Remember she complained that Jack Smith

did not educate her enough on the law about not disclosing confidential informants, which by the way he did. But then when Jack Smith educated her on the law of SIPA, which she didn't know, but I get it's her first SIPA case ever. And SIPA, if you're not familiar with it, I mean, you should open up a book and read about it.

But nine months ago, Jack Smith was like, hey, you should set a SIPA section five deadline. That's what all judges do early on in SIPA cases. She denied that. Then she held a March 1st hearing to review the trial date, said she was gonna move the trial, didn't, waited until April, then set the SEPA section five deadline in May as though we were going to trial when we knew

trial was not going to happen. Then Trump asked, we can't do the SEPA section five deadlines. So then she paused the SEPA section five deadlines, but she didn't yet move the trial. And then this week she indefinitely postponed the trial and then issued the scheduling order, which is like unnecessarily detailed, um, but like oddly detailed the thing, and then she never meets her details. Like it's one thing if you're detailed oriented and then you follow through on the details, she'll come up with all of these like specific dates that are actually not often in scheduling

orders. And then she'll never meet those dates and deadlines. And then she said, basically, I'm indefinitely postponing the trial date. Folks, this is a case that should have taken no longer than nine months to go to trial at most. Most of these facts are undisputed. And it just goes to show you the problems that arise when you have judges like Judge Cannon. Honestly, the way Judge Cannon is like a judge would be like if Alina

Haba was a judge and I wanted to give Judge Cannon at first somewhat of the benefit of the doubt, even though she completely butchered the other Trump case that was before her, got overruled twice by the 11th Circuit Court of Appeals. But it would literally be in my view, if you had Alina Habba or even Tom Fitton, who's not even a lawyer, who wears tight shirts as a judge, like you would get these types of rulings. These rulings are not thoughtful, they're internally contradictory, they're late.

And if a student took a class on national security law and was asked to draft orders, she would get an F if she was a student. As a judge, it's just absolutely, it's pitiful, it's shameful, and she brings disgrace not only on herself, but she brings disgrace on other judges there who are great judges by acting that way.

And that shouldn't be the case. It's really unfortunate. Jack Smith doesn't have a lot of options to appeal because judges have a lot of discretion when it comes to scheduling. Popak previously laid out factors though where if a judge is mishandling a case, you could still potentially go to the 11th Circuit by showing kind of systemic mishandling perhaps. But, you know, the one thing this opens the door for, which is what's going to happen with the DC case, which is there before the Supreme Court. But I think the Supreme Court's gonna wait

until late May, mid-June before making a ruling there. The right-wing justices there are gonna drag that out as far as possible. But folks, you see what's at stake. You see what's at stake. Presidents nominate, the Senate confirms, judges. That's the process that we have here. And so for those who thought, presidents nominate, the Senate confirms judges. That's the process that we have here.

And so for those who thought, ah, you know, let's shake the system back in 2016. And I don't know about Hillary Clinton. Well, this is what you get. This is the outcome of shaking the system. You get Judge Cannon's, you get Justice Kavanaugh's and Amy Coney Barrett's and Justice Gorsuch's, and you get a right-wing Supreme Court that overthrows Roe v. Wade.

You've got states monitoring women's pregnancies. That's the world you get. And so it just shows the stakes here. Polpac, I wanted to cover that topic. I want you to cover what's going on in the world of Steve Bannon. Yeah, cannon to Bannon. Let's talk about it. See, Bannon is one step closer to serving four months for obstructing Congress twice when he refused to both testify and provide documents to the Jan six committee, a legitimate committee of Congress. There is a body of law in the DC Court of Appeals that has never

been overturned from 1962 or so called Likavoli named after a case there, basically sets out that if you, the willfulness requirement that if you refuse to, you don't have a proper defense to comply with the subpoenas, you have committed a crime. And there's only two ways that a precedent as Judge Garcia, who I was very impressed by, Brad Garcia, a Biden appointee, but had argued 20 or 30 cases before the DC Court of Appeals and the United States Supreme Court before, even though he's relatively young, I think he's a potential short-lister for Biden in the second term for Supreme Court. It's hard to believe, first Latino on the DC Court of Appeals, he pointed out there's only two ways, and neither of which apply here. One, the United States Supreme Court

in the intervening 50, 60 years says something differently than they ever have. Or there's an en banc, meaning the entirety of the DC Court of Appeals makes a ruling that reverses liquefying, and that hadn't happened either. So that is, it's a stubborn little thing to have a piece of precedent that's completely against you in a district court, as Steve Bannon just found out, and you can't just will it away or wave your hand around or your brief around and hope it

doesn't apply to you. David Shine is the lawyer for Steve Bannon, was the lawyer for Donald Trump in one of his impeachment hearings. I don't think he covered himself in any great glory and what Brad Garcia, the judge pointed out is that you're relying on the executive privilege, but your evidence for that is an inconclusive letter from one of Donald Trump's lawyers to you, Justin Clark, in which Justin said to you, you some, some of what you may be required to testify about and or produce may some be subject to the privilege.

Didn't tell him what, it didn't order him not to and Trump never intervened to assert the privilege on behalf of Bannon. Remember, Bannon was only in the White House for a short amount of time as a senior advisor well years before Jan 6th and all the Jan 6th committee is investigating is Jan 6th and things leading up to it. That's not my fault and I, you talked a little bit about real life knowing Michael, my wife

and I as people know we're in DC two weeks ago for a personal trip just to see the city and we stopped to go to the bathroom at the Willard Hotel, which is where the war room was led by Bannon and Mike Flynn and Rudy Giuliani, where they set up shop in order to coordinate what was happening on Jan 6 to try to stop the peaceful transfer of power. You and I in our audience didn't put Steve Bannon in that room after he had left office, after he'd left the West Wing, he did. And as a citizen Bannon, podcaster at best.

And so the reason people are frustrated, the point I wanna make on the hot, I'm gonna hot take, I'm gonna hot take role. The point that the takeaway here is the following. Judge Nichols, Carl Nichols, a long as I'm being consistent, a Trump appointee who actually had a good reputation before he got on the bench, uh, down, down in DC for the firms, he, I think he worked for Williams and Connolly. He, despite the liquor volley precedent that I just talked about, he thought that there was enough

issues here about the application of potential immunity defenses, maybe reliance on advice of counsel defenses, and because the sentencing that he gave him was so short, four months, he's let him for almost a year and a half, almost two years be out and not have to report and serve. He would have already served the time. He'd be a year and a half beyond it. It's taking us that long. This is 2022 when it starts, 2024 now. So that's why he's been able to podcast incessantly and attack everything and everybody and attack the case. But now the moment of truth. This three-judge panel unanimously ruled, led by Judge Garcia, that Likavoli applies, that he willfully violated both of those subpoenas, so he's two-count loser,

and confirmed and affirmed his felony conviction by the jury and ultimately the sentencing of the four months by Judge Nichols. And even when they got to the counsel part, they said, I don't know, you know, even that seems pretty weak that you were relying on counsel, that that's in good faith. Now, what Bannon tried to do is create new law. He wanted to argue that bad faith and good faith are a component of the elements of the crime. He's trying to argue he had good faith because Justin Clark, the lawyer for Trump, told them he may have some immunity issues or privilege issues. I don't think any of that actually shows good faith, but he's trying to graft onto the law this heightened requirement of showing bad faith on the part. And the judge said,

no, that's why Congress invented the word willful. We're not adding another, a topple willful. We're not adding bad faith and good faith. That's not really in the criminal code that way, and we're not going to make that now. So what's the next step? He's still out. He'll try an appeal, I assume, to the full en banc, all of the just judges of the DC Court of Appeals, but he's got to get like 11 people to agree with that, and he's not going to. So they're going to reject the en banc, I'm sure, because there's not enough votes to think that anything's interesting or wrong about what Judge Garcia for the three judge panel already did. We know those three judges are voting against an en banc ruling. And so he's not going to get en banc. And then we got to see, you and I, it's always

white knuckle, my phrase for today, to see what the United States Supreme Court does. First stop on that train is going to be an interlock, a writ of certiorari appeal and an emergency stay so he doesn't have to go to jail, report to jail, to the United States Supreme Court through Chief Justice Roberts who sits over the DC Court of Appeals as the duty judge, if you will, and then Roberts is going to decide it on his own, which is the shadow docket, which he's allowed to do, reject it, done, or he turns it over to the full nine where we know mischief will happen. And the question is, is there a right-wing majority to overturn like a volley to undermine the power of Congress, another branch,

to issue subpoenas that have teeth in them or not. Generally, the Supreme Court stays out of political questions and things that impinge on the powers of a co-equal branch of government. This MAGA right-wing, your guess is as good as mine as to whether they're going to think it's interesting enough to, because in order to do it though, they'd have to completely rip away a 60-year precedent. But this Supreme Court is very good at ripping away 60-year precedents. I mean, the Dobbs decision taking away a woman's constitutional right to choose and have bodily autonomy, they didn't have any problem with that. So this is even less than that. But we'll have to see that. But that's the next step. So

in the meantime, he stays out, he podcasts, but at some point soon, either the Supreme Court stays the conviction or he has to report to the bureaus of prisons and the presiding Judge Nichols to have him go to prison and start the four-month sentence. – You know, recently with Peter Navarro, who was also held in contempt of Congress and was convicted, he went to the Supreme Court, perhaps a slightly different issue, but then directly on point with Likovoli, as he just mentioned. But the Supreme Court there denied his emergency petitions, multiple emergency petitions. I expect, I think that Bannon's gonna be reporting

to prison pretty soon. I agree with you. But we will keep you posted and we'll leave it on that note, Bannon reporting to prison pretty soon. Check out our Patreon, patreon.com slash legal AF. If you ever wanted to attend law school classes or law school style classes with Professor Popock and myself.

We've got about 3000 students who have already signed up in our law school style course, patreon.com slash legal AF. I think you will enjoy it, patrion.com slash legal AF. Thank you to our pro democracy sponsors I want to remind everybody in the description below on the youtube and on the podcast There are discount codes for all of our sponsors We really love their products and their services and uh, jordy does a really good job negotiating the discount codes that he thinks you will all like and will benefit from so check it out and it helps our show as well and you get some great stuff there with some great discounts as well. Legal AF, it's going to be a busy and historic week indeed. Michael Popok, you and I will be covering it each and every step of the way.

And on a personal note, a bit of a historic week for me as well with the wedding coming up next weekend and you'll have a special guest host filling in as well. Thank you everybody for watching. Shout out to the Legal AFers and shout out to the MidasMina.