Episode Transcript
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0:01
Has it only been a week? This
0:04
is the midweek edition of
0:06
Legal AF. We do it
0:08
one place on the Midas
0:10
Touch network exclusively. And
0:12
we got to talk about at least three major
0:14
topics today that will take up the bulk of
0:17
our time, along with anything else that my esteemed
0:19
colleague and I, Karen Freeman-Ickdiflow, can come up with
0:21
one. We're going to talk about
0:23
Judge Mershan, who is, you know, who's going to
0:26
have to make a solemn monic decision soon about
0:29
whether and how to sentence
0:31
Donald Trump for a 34-count felony
0:33
conviction related to business record fraud
0:35
in the state of New York. And
0:38
in the interim, as we expected, he
0:40
made a major decision about the gag
0:43
order, the double gag order, in
0:45
advance of the debate. And
0:47
we have his five-page ruling, which I thought,
0:50
again, was solemn monic and
0:52
mature in how he handled it. Exactly
0:55
the opposite of what
0:57
MAGA and the world of
0:59
MAGA tells their listeners and followers
1:01
is the judge's temperament. And
1:04
we're going to break it all down, and
1:06
then we're going to find out as Karen
1:08
and I debate this, whether she's on the
1:11
Norm Eisen School of Sentencing, or she's on
1:13
My World or something in between. And
1:15
that's what always makes for a great
1:18
podcast. So we'll do all things Judge
1:20
Mershan. Then we got Judge Cannon. Judge
1:22
Cannon went from-she's like
1:25
a crocodile in the
1:27
Everglades as you're riding by
1:29
or an alligator. And they're
1:31
just really sleepy until they reach
1:33
up and bite your leg off. And
1:35
she went from sleepy to really aggressive
1:38
in both scheduling hearings.
1:41
She just had round two of another
1:44
half-day hearing in Fort Pierce. And she
1:47
is-yes, she's giving as good as she can
1:49
get. And she's taken
1:51
on Emil Bove, fresh off his
1:53
34-count conviction of his client in
1:56
New York, arguing for the Trump
1:58
side. and
2:02
taking on a couple of different
2:04
prosecutors. But it's become like canon
2:08
versus the prosecutors, which
2:10
is never a good place. And I wanna hear
2:12
Karen's opinion, of course, but I've been in a
2:14
situation where I've thought, and I won't name names,
2:17
I've thought the judge was
2:19
a little off-kilter and not making good
2:21
decisions and maybe not even that bright, but
2:23
you can't let the judge know it. And
2:26
we're gonna talk about the demeanor
2:28
of some of the prosecutors who
2:30
have gotten sideways with Judge Cannon
2:32
and whether that's a good thing,
2:35
a bad thing, or a neutral, agnostic
2:37
thing, as she decides whether she's gonna
2:39
suppress all of the evidence that
2:41
was obtained during the search
2:43
warrant execution, because maybe the search warrant
2:45
was faulty. The execution
2:47
was faulty, the chain of custody was
2:49
faulty. I mean, you name it, Donald
2:51
Trump's throwing everything at the wall to
2:54
see if anything will stick. Is she
2:56
buying any of that argument? Is she
2:58
buying any of the argument that was
3:00
done the other day about whether the
3:03
independent, well, he's not independent, the special
3:05
counsel is too independent from the Department
3:07
of Justice, that's a new one, and
3:10
therefore, and his funding is not properly
3:12
supervised by Congress, and therefore, the judge
3:14
should just pull the plug on
3:17
the special counsel and find that he
3:19
was improperly delegated to his authority and
3:21
his funding. We'll talk about
3:23
all of that. And then it's
3:26
drop day for the United States Supreme
3:28
Court. They're spoon-feeding us
3:30
their decisions as they hold back
3:33
the two that we're waiting on, which
3:35
is the immunity, whether Donald Trump has
3:37
it or not, for any aspect of
3:39
the Jan 6th insurrection or his attempt
3:41
to cling to power, and whether he's
3:43
gonna be charged with four counts or
3:45
two counts, or along with 300 other
3:48
Jan 6 defendants. We've got
3:51
some idea from some decisions rendered
3:53
by somebody like Gorsuch about
3:56
what might be coming, but more importantly, instead
3:58
of getting those decisions, got
4:00
one that's another screw
4:03
up by acknowledged by the United States
4:05
Supreme Court in accidentally
4:07
posting a ruling, this one turned
4:10
out to be decent, about abortion
4:12
and EMTALA, the Emergency Medical and
4:14
Labor Procedures Act thing, about
4:18
whether it overrides in
4:21
Idaho what looks
4:23
to be an absolute ban on abortion
4:25
or not. We've got an accidental posting
4:27
of the decision almost to the day
4:30
of the DOBS decision, which had
4:35
itself had been leaked several months earlier,
4:37
which took away a woman's right to
4:39
choose. What is it with
4:41
this court and abortion and its
4:43
IT department? We're just going
4:45
to have to talk about what the
4:47
ruling is there, which seems
4:50
to be actually a decent ruling for
4:52
once and a weird combination of
4:55
Supreme Court justices joining together. Some
4:58
other decisions that have come out in favor of the
5:00
Biden administration, including the one in
5:03
which lower courts had said,
5:05
oh, the Biden administration was
5:07
pressuring social media companies to
5:09
deplatform people and to deplatform
5:12
unfavorable viewpoint, first amendment expression
5:15
and the Supreme Court, including a
5:17
grouping here again of liberals
5:20
joining with right wing MAGA to
5:22
give a win to the Biden
5:24
administration. We'll talk about that
5:26
as well. I want to hear Karen's
5:29
view. We're seeing some
5:31
of the Supreme Court justices sort of
5:33
right on time starting to spread their
5:36
wings and I'm looking at you, Amy
5:38
Coney Barrett, because all of a sudden
5:40
she went from, well, she doesn't participate
5:42
much in oral arguments and she's rarely
5:44
in a dissent. All of a sudden
5:46
she is, this term in the last
5:49
gasp of the term is
5:51
coming into her own good, bad or indifferent. We'll talk
5:53
about what that means. It's about right. It
5:55
usually takes a Supreme Court justice a number of
5:57
years, unless you're Kenton G Brown Jackson. where
6:00
she like day one was active, right in
6:02
dissents and concurrences, but most of them wait
6:04
two or three years and we're going to
6:06
talk about what we may be seeing with
6:08
Amy Coney Barrett and what we may be
6:10
seeing with Gorsuch and what it
6:13
means for the future of decision making on
6:15
the United States Supreme Court. But
6:18
that's what we're doing midweek and then later
6:20
at the end of the week, Ben and
6:22
I will pick up with the rest of
6:24
the dribs and drabs release of the United
6:27
States Supreme Court decisions and we may have
6:29
a filing which I think is due in
6:31
the sentencing issue related to Judge Rashad will
6:33
pick up all that on Saturday. But Karen,
6:36
wow, just three topics picking
6:39
up, you know, just this is why
6:41
we this is why we do the midweek. You
6:43
know, Ben and I used to do like 12 or
6:46
14 topics and it was like it's
6:48
too much. We need help
6:51
and we need another great person
6:53
on this network. Oh, look, there
6:55
she is. Karen, there she
6:57
is. Talk
7:00
about bearing the lead. Okay. Yes,
7:02
these are all great things that
7:04
are happening, but even much
7:06
bigger than all of that is you are 48
7:08
hours into being big poppy. Your daddy.
7:16
There's Francesca. We had a baby on
7:18
Monday. We
7:20
brought a little girl into this world,
7:22
which we are. I can't even tell
7:24
you. I'm going to cry during this
7:26
podcast. Oh, there's our release today. That
7:29
was today from a shout out to
7:31
Morgan Stanley Children's Hospital up
7:33
in up in the Heights up in
7:35
in Fort Washington. What an amazing group
7:37
of people and dedicated health
7:40
care providers and nurses, doctors
7:42
and staff. I mean, it was just and
7:45
I mean, it was our first
7:47
experience, but an amazing experience. Thanks
7:49
for thanks for letting me show
7:51
Francesca Madeline Popock. I
7:54
know somebody wrote in one of the social media
7:56
posts. Why didn't you call her like something like
7:58
AF like Anna Francesca? like nah, we're not going
8:01
that far. I love
8:03
the network. It's just, she's so beautiful
8:05
and you have such a beautiful
8:07
family. And the fact that you're
8:09
here today after just this just
8:11
happening less than 48 hours ago
8:14
or about 48 hours ago is just a
8:16
testament to you and your
8:18
beautiful wife and your beautiful daughter and
8:21
just welcome Francesca to the family. And
8:23
from now on, you're gonna be big
8:25
poppy to me. Yeah,
8:27
and you're aunt KFA. You've been
8:29
tremendously loving and supportive and appreciative
8:32
and it's been a big help with my,
8:34
from the beginning, we won't
8:36
go into those details about
8:38
it all and they're all paying dividends. Now I
8:40
had one funny intersection,
8:43
not of law and politics, but of
8:46
labor, the labor, the
8:48
birth of the daughter and the show. So
8:51
we're with this great
8:54
Cathy, shout out to Cathy. We had a great
8:56
doctor, Dr. Fiorelli, love her. And
9:00
our birthing nurse was a woman who
9:02
was a traveling nurse from Chicago area
9:05
who had retired and then became a traveling
9:07
nurse, effectively to travel, but she had
9:09
been a professor of nursing and all that. So this was
9:11
like the creme de
9:13
la creme of a nurse. And she,
9:16
like just moments before,
9:18
we're about to go into the push
9:20
phase. She said, oh, your
9:23
wife told me about your show. I'm
9:25
sure my husband who, you know, listens
9:28
to all these YouTube things, what's the name of your
9:31
show? And like during a break in the action, she
9:33
actually phoned her husband and she, and
9:35
he's like, which one is it Ben or Michael? She
9:38
said, it's Michael. Oh my God. I know,
9:40
you know, it was just a weird moment.
9:43
And then it was like, okay, let's
9:45
start pushing. But
9:48
we're here now. All
9:51
right, so listen, let's
9:54
jump right in that I really appreciate and
9:56
I appreciate everybody in the legal life world
9:58
and the Midas touch world. who
10:00
have been so overwhelmingly loving and supportive
10:02
of it. We're not going to make
10:04
the whole podcast about this, but I
10:06
do appreciate it. But how can I
10:08
miss a show? I joked with Ben
10:10
on Saturday that like my daughter already
10:12
has exquisite timing arriving after Saturday and
10:14
before Wednesday. And then I can't like
10:16
not show up. So here we are.
10:18
And I do have a supportive wife.
10:21
All right. Let's talk about Judge Rashawn, your
10:23
old stomping grounds, the Manhattan DA. And it
10:25
basically came down. Let's do the gag order
10:27
first. It basically came down to those
10:30
three components of the gag order. One
10:32
was about jurors. Don't go
10:34
after jurors. It seems ridiculous that we
10:36
have to have a gag order that
10:38
says that. Don't go after jurors. Don't
10:40
go after certain elements of the criminal
10:42
justice system. The judge's
10:44
staff, but not the judge
10:47
and family. The DA's the
10:49
lawyers working for the DA's office on
10:52
the case, but not the actual Manhattan
10:54
DA. This was very, very surgically made
10:56
and created by the judge. And
11:01
that's two. What's the third one, Karen? Two
11:03
is Judge, jury. I mean, we
11:05
said we did jurors. We did the
11:08
oh, the judge and the staff and
11:10
the family members and
11:12
family members. Right. And so the witness
11:14
and witness. Right. All right. Oh,
11:16
thank you. That was the major one that
11:18
was missing. Sorry, that's where the brain I
11:21
do already have baby brain and witnesses in
11:23
the case. You know, the case is over,
11:25
but Donald Trump is now a convicted felon.
11:27
And there's appeals and they're still sentencing. And
11:29
so there's still some need for a gag
11:31
order. Your old office pushed for, yeah, we're
11:34
all right with not going out. I think
11:36
they were OK with the the
11:39
witnesses, right? Yes,
11:42
yeah, they were fine. They were fine with the
11:44
witnesses. I mean, look, the law, the law. Take
11:46
it from there. Go over what they were OK with and
11:49
then what the judge ultimately did. And I can read a
11:51
little bit from the order to. Yeah,
11:53
so so look, they
11:55
had to follow the law and
11:57
the law clearly shows that it's
11:59
about protecting. the integrity of the
12:01
proceeding. And the proceeding is
12:03
over with respect to the witnesses and the
12:05
jurors. And the judge was clearly pained by
12:08
this. He did not want to have to
12:10
lift it with respect to the jurors, but
12:12
he felt he had no choice given the
12:14
fact that the trial and the part about
12:16
protecting the integrity of the
12:19
proceedings are over. But he did say
12:21
that there's still a sentencing. And so
12:23
that part when it comes to staff
12:26
and family members and prosecutors who are
12:28
not the Manhattan DA and who's not
12:30
Judge Marchand, that's fair game. And so
12:33
for, you know, for that, that can
12:35
still remain as a gag order. So
12:37
he had to lift it as to
12:40
the jurors and the, and
12:42
the witnesses. So, so Michael
12:44
Cohen, Stormy Daniels, and,
12:48
and, and, you know, he was, you
12:50
could tell he was reticent about the
12:52
jurors and having to lift it, you
12:54
know, with respect to them because of
12:56
the law. He said, he said it
12:59
would be this, this court's strong
13:01
preference to extend those protections, but he
13:04
felt the law required him to drop
13:06
the restrictions. So you could tell he
13:08
was conflicted about the juror
13:11
part of it. But, you know, the witnesses,
13:13
he's always said that because Michael Cohen is
13:15
so vocal about speaking about Donald
13:17
Trump, that, that that could be an area
13:20
where he would lift the gag order and
13:22
now that he's no longer a witness. And,
13:24
and Stormy Daniels, her response to, to this
13:27
was quite dignified. I have to say, and
13:29
really lovely, where she just basically said, I
13:31
respect the judge, I respect the process. And
13:34
it is what it is. You know,
13:36
she, she, she wasn't, for example, coming out and
13:38
calling him names the way he calls her names
13:41
like horse face, but so
13:43
that's where we are. And the gag order
13:45
will remain as to the prosecutors and their
13:47
families and the, and the court staff until
13:50
the sentencing July 11th. This
13:52
one's going to have an on that one. This one's going to
13:54
have an impact, not just on the debate now
13:56
that Donald Trump is freed up within those
13:58
limits. have an impact on
14:01
what and we'll talk about it next, but
14:03
I'll just tease it in Mar-a-Lago
14:05
because the
14:08
government, the Department of Justice is arguing that
14:11
Donald Trump's arguments that the FBI
14:13
was trying to assassinate Donald Trump
14:16
because they properly brought their
14:18
guns with them to Mar-a-Lago while Donald Trump
14:20
was in New Jersey. That
14:24
actually put a target on the back of the FBI
14:27
and knowing his followers
14:29
and cult followers and the
14:31
violent rhetoric that usually triggers
14:33
something to happen that puts
14:35
people in harm's way. But
14:38
the judge, you know, we're gonna talk
14:40
about it next in the gag order, is not
14:42
only gonna, has asked, you know, for some
14:45
briefing about the gag orders in other places,
14:47
this ruling is gonna put some wind at
14:49
the sale of the Trump people to try
14:51
to convince the judge that they should lift
14:54
the gag order or not impose a gag
14:56
order or further gag order in
14:58
Mar-a-Lago. There's other problems with Mar-a-Lago, but this
15:00
gag order, but it was the right thing to
15:02
do. I mean, the judge, my favorite part
15:04
of the decision and order, the
15:07
DNO, the judge of Michonne just did in
15:09
New York, is in his recitation of how
15:11
we got here, including
15:13
that he, you know, has
15:15
won all the major issues at the appellate
15:17
division, which is his bosses at the appellate
15:19
court, even though Donald Trump and his minions
15:21
like to run around saying, oh, he keeps
15:24
losing at the appellate division, you know, the
15:26
judge keeps getting reversed, he never gets reversed.
15:28
And that has not happened here at all.
15:30
And the judge reminded that of the recitation.
15:32
But then when he gets to the date
15:34
order of things, my favorite part is when,
15:36
and he has to write this, it just,
15:38
but it just, I'm sure drives Donald Trump's
15:41
people up the wall and batty. He says
15:43
on page three on May 30th, 2024, defendant,
15:46
that's it. Defendant was convicted of
15:48
34 counts of falsifying business
15:50
records in the first degree in violation
15:52
of penal law, one 75.10 after
15:55
a trial by jury thereafter, the jury was discharged
15:57
and the case was adjourned to July
15:59
11th. 7-11, very unlucky
16:02
date for Donald Trump for sentencing. He
16:04
has to say it, but anytime you can put Donald Trump in his
16:06
place and remind him that he's just the convict or
16:10
will be soon in a judge convict is
16:12
great for me. And the judge did exactly
16:14
what you would expect, a proper
16:17
sober, as you said, applying the law
16:19
type of judge to do, which
16:21
totally turns on its head all of the counter arguments by
16:27
the minions that he's, oh, he, you know,
16:29
if I hear Elise Stefanik say this one
16:32
more time, his daughter, his daughter
16:35
works for Democrats. Okay.
16:37
He got sanctioned for, you
16:40
know, this is the house resolution. He got
16:42
sanctioned Judge Marchon because he gave $15 to
16:44
Joe Biden. He
16:46
got a warning letter along with a million other judges
16:49
that they don't, you know, the judicial ethics board doesn't
16:51
like any donations at all. So don't do it again,
16:53
but it was like $15, you
16:56
know, and all this other stuff. There's nothing in
16:59
Judge Marchon's record on
17:01
the bench for over 15 years, his
17:03
prior history as a prosecutor, how he
17:05
handled other cases before he got assigned
17:07
this case, how he handled
17:10
another case involving Donald Trump, the rulings
17:12
that he made as they were affirmed
17:14
by the appellate court that says that
17:16
he is anything other than a judge
17:19
with a proper temperament making appropriate decisions that
17:21
will not be reversed on appeal. It will
17:24
not end up at the United States Supreme
17:26
Court. I mean, we'll talk about that when
17:28
we get to the Supreme Court today, but
17:30
there's a lot of fear mongering because
17:33
it's distracting, because it sucks
17:37
the air out of the room of what
17:39
should be talked about by MAGA right on
17:41
cue when Donald Trump pushes a button that
17:43
the Supreme Court should intervene after
17:45
the conviction. And
17:48
with Congress is asking, MAGA Congress
17:50
is asking, it's not happening. Supreme
17:53
Court is on summer vacation and they're
17:55
not getting back together again to
17:57
talk about a garden variety criminal case about a
17:59
guy who wasn't even. president at the time he
18:01
was convicted. Oh, all right. Let's
18:04
talk about sentencing. Karen, you lead on sentencing.
18:06
Norm Eissen, who's a close friend of yours,
18:08
you've had him on your your I said
18:10
your award winning, it will be your your
18:13
hard hitting,
18:16
rating grabbing, amazing new
18:18
show called Miss Trial. Thank you, salty right
18:21
on click right on click. Thank you. Miss
18:23
trial with you and Donia Perry and Kathleen Rice. Have
18:27
you had you I don't have had them on
18:30
there, but I know you did an interview of
18:32
Norm Eissen. And I know you respect him greatly
18:34
as do I, he's got a whole thing out
18:36
on just security about, you
18:38
know, analyzing all the cases that
18:40
he thinks fall into the bucket
18:42
of a classy felony similar to
18:45
business record fraud. And
18:47
what happened in terms
18:49
of sentencing and jail time, and sort
18:51
of argues that the judge should impose
18:53
jail time. I don't know if that's
18:55
one year, six months, four months, five
18:57
days, but some sort of jail time.
18:59
Where do you fall along the spectrum
19:01
as we as we move into it,
19:03
we're going to see briefing soon, we're
19:05
going to know what the probation department
19:08
is recommended. But where does KFA fall
19:10
on this continuum? You
19:13
know, it's funny, I'm usually very decisive. And
19:15
I'm very clear. And
19:17
I don't change my mind very often when
19:19
it comes to things like this. But I
19:21
have an evolution when it comes to the Donald
19:24
Trump sentencing, I went for a
19:26
period of time where I thought, you know,
19:28
what Donald Trump should get is a some
19:31
kind of it's called the conditional discharge.
19:34
And which means you get certain conditions, it's
19:36
and the conditions I would impose on him,
19:39
in my head, what I thought would be
19:41
some sort of community service, like picking up
19:43
trash on the subway, because a
19:46
fine doesn't mean anything to him. probation
19:49
would do nothing for him. And so that's what
19:51
I'd want to see him do, I'd want to
19:53
see him do something that's really not fun for
19:55
him, like maybe 100 hours or 500 hours or
19:59
something like that of of community
20:01
service. So that's what I originally
20:03
thought because probation makes no sense
20:05
supervising him where he shows up
20:07
at a kiosk and all
20:09
the probation things made no sense. And
20:11
I didn't think logistically Jill, how would that
20:14
work? And so as a result, I kind
20:16
of, I defaulted to this
20:18
community service. But then when Norm Eisen
20:20
who did a study of
20:24
every single case of
20:27
class E felony falsifying business records, he
20:29
surveyed the state because this is not
20:31
unlike what Donald Trump likes to say
20:33
that this never been done before,
20:35
never been charged before, first time, no
20:39
one's ever seen anything like it. He
20:42
makes these ridiculous pronouncements. And that's
20:45
actually not true. Falsifying business
20:47
records in the first degree is
20:49
a very common charge that is
20:51
prosecuted regularly. And it's
20:54
a classy felony, which means there's a wide
20:56
range of sentencing options for a judge on
20:58
the low end. It could be nothing, it
21:00
could be probation, it could be a conditional
21:03
discharge, as I said. And
21:06
on the high end, it could be an indeterminate
21:08
sentence of one and a third to four years,
21:10
which means he can serve up to four years
21:13
per charge and they could run
21:15
consecutive. They would all eventually merge
21:17
to 20 years total as the
21:19
total he could do. But
21:21
he did a survey of all
21:24
of the cases in New York State because
21:26
there are a lot where this is the
21:29
charge and looked at similarly
21:31
situated defendants. And when you look at
21:34
people who have been sentenced to prison, which is
21:36
somewhere between, I'd say, 10
21:39
and 30% of the
21:41
people, of the individuals who
21:43
are charged with this exact crime. So the
21:45
vast majority do not get jail, right? Or
21:48
do not get prison, they get something less
21:50
of that. But there's around 25% who do.
21:54
And the question is, who are those people
21:57
and why do they get jail time? And
21:59
when you... look at those cases
22:01
and you see who actually
22:03
has received jail as a
22:05
sentence, there is no
22:08
doubt in my mind that Donald Trump deserves
22:10
prison, okay? He deserves it and he deserves
22:12
it in spades. Again, if you're going to
22:14
treat him like everybody else, if you're going
22:16
to treat him like somebody who
22:18
committed the crimes that he committed that
22:22
was convicted of 34 counts of
22:25
trying to steal an election, right? That's
22:27
what the jury had to find beyond
22:29
a reasonable doubt. That was one of
22:31
the elements of the crime. The means
22:33
and methods of how they did it
22:35
is what they could differ on, right?
22:37
It could be through the
22:39
three different charges. It could be through state election
22:42
crimes. It could be through federal
22:44
election crimes. It could be through
22:46
falsifying business records. It could be
22:48
through tax methods. Like the
22:51
means and methods is what he said is
22:53
what the law allows you to have a
22:55
general criminal intent. But here you had to
22:57
have it for an unlawful purpose. And
23:00
here they had to find beyond a reasonable
23:03
doubt that it was election interference. And so
23:05
because that is what they did and
23:08
because that was a requirement here and
23:10
that's what the jury found, how
23:13
does it get any more serious than that? Because
23:15
guess what? He stole it. He
23:17
won by what, 80,000 votes
23:19
in three swing states. What if this
23:21
was the thing that got him to
23:24
win that election
23:27
in 2016? If
23:29
that's the case, it doesn't get more
23:31
serious than that. He's the guy who
23:34
does deserve the prison time. And that's
23:36
why we are all bending over backwards
23:38
to try to come up with some
23:40
other sentence for him. He should get
23:42
prison without a doubt. It is as
23:44
serious as it gets. He's convicted a
23:47
full slate, 34 counts.
23:50
And on top of that, he was held in contempt
23:52
10 times for violating
23:54
this judge's orders 10 times.
23:57
I've never in 30 years of prosecuting. had
23:59
a defendant held in contempt. It's not a common
24:01
thing. This is not something that judges do every
24:03
day. In fact, I was talking to a retired
24:06
judge friend of mine today who told me
24:08
in all his years on the bench, and he
24:10
was on the bench for decades, he
24:13
has never held someone in contempt. It
24:16
is not a common thing. This is a
24:18
defendant who just
24:20
blatantly violates the law. The rules don't
24:22
apply to him. He's convicted by a
24:25
jury that he chose, okay? He
24:29
was adjudicated a rapist by
24:31
Judge Kaplan and
24:33
a jury in that court. He
24:35
was adjudicated a fraud to
24:37
committed business fraud in state
24:39
court in Judge Angoron's courtroom.
24:43
This is a man who has a
24:45
record like no other. And
24:47
as far as I'm concerned, if I was a judge
24:49
and he stood before me, I
24:51
would sentence him to the maximum.
24:54
However, it's called stay the sentence.
24:56
I would press pause on the
24:58
sentence pending appeal. And
25:00
I would say, because look, it's
25:03
a reality that there's an election and
25:05
it is what it is. And there's
25:07
something called federalism and
25:10
there's a federal election and
25:13
article to dictate the
25:15
presidency. And I'm not sure state court, I'm
25:17
not sure a state judge can sentence, can
25:20
put him in jail if he wins the
25:22
election and becomes president. And
25:24
so I do think I would
25:26
stay, there are some
25:28
appellate issues. I don't think he'll win, but there are.
25:30
So I would stay the sentence pending appeal. If he
25:32
wins, it is what it is. If he loses, guess
25:34
what? Bring your toothbrush, you're going
25:37
in. I agree with you.
25:39
It's sort of similar to what I've said before.
25:41
I think he's gonna impose some sort of incarceration,
25:43
maybe have these other components to it. He's gonna
25:45
suspend it or hold it in advance until the
25:48
appeal is over, which will get
25:50
him over the November election. So he's not
25:52
gonna be able to be legitimately accused of
25:54
election interference. I
25:56
don't know, I've always thought it was somewhere between six
25:58
months and a year. and
26:02
how they do it, whether it's home confinement,
26:07
an army base, something
26:09
that's constructed uniquely for
26:11
him because the Secret Service has
26:13
to be by his side. But
26:16
I don't think he's gonna give him a
26:18
pass. Well, I would normally, anybody that got
26:20
convicted of 34 felony counts with the record
26:23
this guy had and 10 violations
26:25
of my gag order, I
26:27
would just let him walk out the front door. I mean,
26:29
that's not what Norm Eisen's research says. He
26:31
wouldn't do that. And
26:33
I don't think it falls into that continuum
26:36
of the ones that Norm had that
26:38
listed like one day in jail, five days in
26:40
jail. I think it's
26:42
further down. You know, like the
26:45
female executive that stole $50,000 from
26:48
her employer and then
26:50
falsified an invoice as a result got like five
26:54
months or a year. I mean,
26:56
if that's the standard, or
27:00
the exemplar, I think he should get a
27:02
year or more, even
27:04
as a first time offender, but do all the other things
27:06
that you just said. If
27:09
he doesn't have to report or
27:11
it's abated until the
27:13
appeal process, which we could take over
27:15
a year in New York, it's not
27:18
gonna be expedited. And if everything goes
27:20
the way we think it's gonna go, he's gonna be
27:22
a two time loser for the office. He's not gonna
27:24
win in November and
27:26
he's gonna shrink back down to size
27:29
as a guy who lost twice after
27:32
serving one term as president,
27:34
having been twice impeached, 51
27:36
times convicted and a
27:39
judge to be a sex offender. And he'll hopefully
27:41
crawl back under the rock that
27:43
he crawled out under and go be a Florida
27:45
man, not our Florida man, not
27:48
the Florida lawyer guy. I
27:51
think that's just what's gonna happen. It's gonna be
27:53
the incredible shrinking Donald Trump because
27:56
he's gonna lose and that's
27:58
gonna be it. I mean, the MAGA movie. will
28:00
live on, unfortunately, as will
28:02
all of his handiwork, all
28:05
the devils play things related
28:07
to his Supreme Court and all of
28:09
that. But I agree
28:12
with you on that. So
28:14
why don't we, we're going to talk about Mar-a-Lago and
28:16
what some of the rulings, you know, it's like a
28:18
cascade effect with some of the rulings
28:21
that are being made by Judge Rashawn, how
28:23
they're getting picked up down at Mar-a-Lago with
28:25
Judge Cannon, who's holding her own bizarre hearings
28:27
with, again, just to remind everybody, or for
28:29
those that are new to this, she has
28:31
not set a trial. She's
28:34
just cogitating and analyzing
28:36
her navel and all
28:38
sorts of things, but she's not getting a
28:40
case on the docket for trial, which is
28:42
what really matters in
28:44
terms of our public justice system. And we'll talk about
28:46
how the Supreme Court is spoon-feeding
28:49
us the remainder of
28:51
the last 12 decisions until
28:54
they give us, apparently, on the
28:57
very last day of when, in July, before they
28:59
go off on summer vacation, they're going to tell
29:01
us what we really want
29:03
to hear is whether Donald Trump's D.C. election interference
29:05
case in front of Judge Jutkin has a snowball's
29:07
chance in hell of getting back up before the
29:10
election or not. I mean, yes, they
29:13
have to issue these other decisions, but like,
29:16
you know, and God forbid when we get an IT mistake,
29:19
apparently, and they posted early a decision
29:21
about abortion and reproductive rights, why can't
29:23
they do that for the immunity decision?
29:25
Although I'm almost not want to see
29:27
the immunity decision. We'll talk about all
29:30
of that and so much more with
29:32
Karen Freeman, Nick Fiello and me, Michael
29:34
Popock, in the Midweek Edition of Legal
29:37
AF. But we've got a great group
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going to be Cy Vance. That's a
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Vance said, and we had to do it
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mistrial for those that love Karen.
35:37
For those that love Karen and me, it's
35:40
the midweek edition of Legal AF. You're
35:42
here right now. Let's talk about Judge
35:44
Cannon in Mar-a-Lago.
35:47
How did she ever get this case? Ben
35:50
and I reported, or we talked about on Saturday,
35:52
you know, the new reporting that's out
35:54
there of the Judge Altenaga, as I
35:56
anticipated, as the Chief Judge made a couple
35:58
of phone calls. over to Cannon
36:00
early on and said, you know, it's not a good look.
36:03
You got reversed twice by the
36:05
11th Circuit, even before the indictment came out. Maybe
36:07
you don't want to handle this case. And
36:09
another judge, which I, if I was a betting man, I
36:11
think is judgmental Brooks and the
36:14
senior judge in West Palm Beach, who
36:16
also said, maybe you want
36:18
to give it to a more seasoned judge. And nope, no,
36:20
I'm going to do it. I'm
36:22
going to handle it. Somebody tried to criticize
36:25
me and say, Pope walk, you can't get your math
36:27
right. She's been a judge longer than
36:29
two years. I didn't say she was a judge for
36:31
two years. I said she had been a judge for
36:33
a short amount of time at the time that the,
36:36
and COVID happened and she had very little trial experience,
36:38
not that she was only, that she's only been
36:40
a judge for two years. I know who appointed
36:42
her. It was Donald Trump. And that was back
36:44
in 2020. However, we're here now. She's
36:48
holding hold head is holding day
36:50
two of her hearings on
36:53
suppression. I'll just map it out and
36:55
then I'll turn it over to our
36:57
resident former prosecutor. You got
36:59
a search warrant, which by the
37:02
way, the last time
37:04
we heard from poor magistrate judge
37:06
Reinhardt in Fort Lauderdale
37:08
was when he issued the search
37:10
warrant. Normally to
37:13
people understand in federal court,
37:15
in criminal practice, the
37:18
magistrate does a lot of heavy
37:20
lifting related to discovery, motion
37:22
practice, things related to the
37:24
search warrant and the like. But I
37:26
don't know if like, because his ruling
37:29
ultimately got upheld by the 11th circuit
37:31
and hers didn't, she put
37:33
him in an ice box and hasn't let
37:35
him out since and makes all,
37:37
and just has just decided it's just so important.
37:39
She's, she is the article three judge is going
37:42
to make all the decisions in the case, which
37:44
is really weird by the way. And, and it,
37:46
and it, and it gets her going
37:48
in the wrong direction, you know,
37:50
and then she has no help from them or the court or
37:52
the court that can help her out in these things. So
37:55
many times when you and I are talking
37:57
about judge Cannon, we should really be talking about magistrate
37:59
judge Reinhardt. We're not. And that's part of
38:01
the problem. And it's frustrating now to the
38:03
prosecutors. Let me just
38:05
give the prosecutor's frustration, get your view
38:07
on that and what's going on with
38:10
the search warrant suppression hearing. So
38:12
you've got all these hearings going on about
38:14
the evidence that was obtained
38:16
by the Department of Justice and the
38:19
Special Counsel, sorry, including
38:21
the 34 documents. That
38:24
seems to be a number that Donald
38:26
Trump has problems with. The 34, 38
38:29
total documents that are
38:33
the top secret classified documents that are at
38:35
the heart of the indictment. And
38:38
the search warrant which was prepared
38:40
by the Department of Justice, ultimately
38:43
signed off by magistrate judge Reinhardt,
38:45
specified where at Mar-a-Lago they had
38:47
reasonable belief, probable cause to believe
38:49
there were documents related to
38:51
a crime located. And
38:54
Emil Boveh, who did an okay job,
38:56
although they lost terribly with Manhattan DAs
38:58
against the Manhattan DA, he's been arguing
39:00
for Trump about, oh my God, they
39:02
went into the personal
39:05
bedroom of Barron and they
39:07
went into all these other
39:09
areas. And it was for the subpoena, the
39:11
search warrant was too broad and you couldn't
39:13
follow it. The judge is like, I don't
39:15
know what you're talking about. And
39:18
Judge Cannon was like, I think this
39:20
was about as reasonably
39:22
articulated as the locations
39:25
as possible. And it seems like they
39:27
colored within the lines when they executed
39:29
on the search warrant. And
39:31
the fact that you're complaining about they looked in
39:33
a bedroom, they didn't find anything there. So there's
39:35
nothing to suppress. In other words, they didn't go
39:37
outside the lines of the
39:39
search warrant and then find things they're
39:42
trying to use here. Even Judge Cannon
39:44
knew that is probably what's required for
39:46
suppression. Oh, we found it under Barron's
39:49
mattress. Okay, well, then we'll have an
39:51
argument and discussion about whether they should have been in
39:53
Barron's room or not. But when you
39:55
tell me they were in other rooms, they didn't find anything.
39:58
That seems like you're barking.
40:00
up the wrong tree even
40:02
for Judge Cannon. And we all know
40:06
here on Legal A.F. and otherwise that they
40:09
found things in weird places you
40:11
wouldn't think because they
40:13
were tipped off that they were there like in
40:15
the ballroom and in the bathroom
40:17
and in dining rooms
40:19
spilling out onto the floor. Well,
40:23
look, I love Salty, found pictures right
40:25
there. I mean, yeah, and as the
40:27
judge even said to Bovee, she
40:30
said it's not like it's a regular like 3,000
40:32
square foot single family house. This
40:34
is like a 50,000 square
40:37
foot resort and
40:40
he's hiding documents everywhere. That was the probable
40:42
cause. So she does, she hasn't issued any
40:44
rulings yet. You know, she's notorious for that.
40:46
She's like, we never have anything. You notice
40:48
when we do segments, we talk about real
40:50
judges that know what they're doing. We throw
40:52
up orders. We never have that really
40:54
with Judge Cannon because we got no order to throw up.
40:57
But we, so we get where she's
40:59
leaning. And then there's
41:03
this back and forth that
41:05
seems to have taken a turn with
41:07
the prosecutors who seem really frustrated with
41:09
her. You know,
41:11
she got into it again, Karen, with
41:14
Jim Hart, with Jim Harbach, who was
41:16
one of the, Dave Harbach was one
41:18
of the lead prosecutors. She's gotten into
41:20
it before with others. She
41:22
called him snippy. She counseled, she
41:25
warned him that he wasn't being,
41:27
he wasn't exercising proper decorum. She
41:29
wasn't treating her properly in the
41:31
courtroom. He was cutting off her
41:34
questions and she went and tolerated
41:36
it. And she basically said at one point, and if
41:38
you can't handle this hearing, there's other
41:40
people on your team that I'm sure can. And he
41:42
kind of woke up on that. But talk about it.
41:45
Have you ever gotten slightly sideways with a judge? But
41:47
talk about where you think she's
41:49
going with suppression and then this sort
41:51
of bad blood that appears to have
41:53
developed between the prosecutors and Judge Cannon,
41:55
whether it matters at all, or whether
41:57
the appellate court's just waiting for a
44:00
What she is doing is she is making, I
44:02
think she's smart. I don't think she's stupid and
44:04
I don't think she's inexperienced. I think she's extremely
44:06
smart and I think she is not ruling
44:10
on things and just holding them in abeyance
44:12
and pushing them out because if you don't
44:14
rule, you can't be appealed. So there's nothing
44:16
Jack Smith can appeal and go
44:19
and try to get her reversed or even get
44:21
her removed off the case. And
44:23
all they're doing is delay, delay,
44:25
delay, postpone, hope that he
44:28
wins the election and then
44:30
you'll see whatever the reward is that
44:33
she is going to get because she
44:35
is clearly auditioning for some other role.
44:37
And I don't say that lightly. I
44:40
don't say that about judges lightly, but
44:42
there is nothing about what she is doing that
44:44
resembles the practice of law as I know it.
44:47
And I say that in the context of what
44:49
you just asked and the questions you're asking because
44:51
she just held three days of hearings
44:54
on things that are head
44:56
scratching, that there should have never been
44:58
a hearing about that have
45:00
no basis remotely
45:03
in the law. It was almost like
45:05
an intellectual exercise. And to answer your
45:07
question, have I ever
45:09
become intemperate in court
45:12
and lost my cool in court?
45:14
It is very rare. Usually
45:17
when you do it, it's deliberate because
45:19
it's a tactic. You
45:22
don't wanna lose control, but
45:24
with Judge Cannon, I can totally
45:27
understand given how she
45:29
has behaved and ruled and conducted
45:31
herself. In this
45:33
case, why the prosecutors
45:35
here would lose their
45:38
mind because unbelievable. I
45:42
mean, just unbelievable. For example,
45:45
we had hearings on whether or
45:47
not the special counsel is appropriate. Just
45:50
the fact that the appointment of a
45:52
special counsel, the special counsel law, the
45:55
fact that this is a law that
45:57
exists, passed by Congress, we've
45:59
had... States
56:00
again. But you know, he
56:02
promised, Bork promised Congress
56:04
that he would appoint a special
56:07
prosecutor. That was the name. There
56:10
was no nothing on the books of the
56:12
DOJ, nothing in the code of federal regulation.
56:14
And the Congress was like, okay, and
56:17
he appointed Leon Jaworski and Leon Jaworski
56:19
ended up prosecuting and convicting a number
56:21
of people in and around Richard Nixon,
56:23
including the then Attorney General and
56:25
he had a budget and the budget came from the Department
56:27
of Justice and nobody said anything about it. And the Supreme
56:29
Court at the time in 1974 said
56:32
recognize the validity of a special prosecutor
56:35
being appointed by the Department of Justice
56:37
and enforced his subpoenas and his subpoena
56:39
power to turn over the now
56:41
infamous Nixon tapes. That was special
56:43
prosecutor, which is sort of sort of a
56:46
version of what we have now, but
56:48
even more informal. And that was fine
56:50
with with the Supreme Court. Then you
56:52
had the independent counsel through Congress, then
56:54
that got removed. And you had the
56:56
creation of the
56:58
special counsel, not prosecutor
57:02
created as it's a creature of
57:04
the Department of Justice. And then
57:06
ultimately the code of federal regulation,
57:08
which is adopted by Congress, and
57:10
we do have the congressional input
57:12
there, which outlines when, when
57:14
a special counsel will be appointed
57:17
or should be appointed by the Attorney
57:19
General and who it answers to, and
57:21
how it answers to it and the
57:23
oversight and then the Attorney General at
57:25
the time has oversight over him by
57:27
the leading ranking members of the House
57:29
and Senate Judiciary Committee about whether he's
57:32
going to accept or reject the
57:34
recommendations of the special
57:37
prosecutors, special counsel and there's funding
57:39
that comes from that. All
57:42
of that is like settled law, as far as
57:44
I'm concerned, received wisdom,
57:46
call it what you will. But as
57:48
you pointed out, Karen, to alien candidates,
57:50
all like this is fascinating. How
57:53
much money this is, this was the
57:55
last term, how much money is being
57:57
spent Mr. Prosecutor on this problem? What
57:59
is to
1:02:00
do this with you every week and
1:02:02
that you give so much time to
1:02:04
everybody is just, it's
1:02:06
fascinating, it is interesting and
1:02:09
I learned so much being with you. So
1:02:12
I'm just being way actually. I
1:02:14
don't take compliments that well,
1:02:16
but I love you at the bottom of
1:02:18
my heart and I really do appreciate that. And
1:02:22
you know how I feel about you. If people
1:02:24
don't know, I
1:02:26
had a choice to do this show with
1:02:28
many, many, many, many people. But
1:02:31
after one deep conversation with Karen leaning
1:02:33
up against the side of a building.
1:02:36
Well, I'm also bossy. Yeah,
1:02:39
no, that wasn't bossy. I didn't boss
1:02:41
me into it. I wanted to do
1:02:43
it. Yeah, I will. I'm just
1:02:45
saying though. Yeah, I appreciate it. I know what
1:02:48
I have, I know what I bring to the
1:02:50
table, but what you have is just, believe
1:02:52
me, it is incredible. That just blows me
1:02:55
away. And you do that a lot about
1:02:57
a lot of different things, not just about
1:02:59
a few things. We got to lean into
1:03:01
our competitive advantages and that's what I got.
1:03:03
And I really, I really do really appreciate
1:03:05
you. Yeah, it's pretty great. So we're gonna
1:03:08
see how much more Popox got to offer
1:03:10
today. We're gonna talk
1:03:12
about what dropped with the United States Supreme
1:03:14
Court and what shouldn't have dropped, but apparently
1:03:16
did to the point where the
1:03:19
actual Supreme Court had
1:03:21
to acknowledge that the
1:03:24
IT department had inadvertently posted
1:03:26
a full blown decision, this
1:03:28
one kind of in favor,
1:03:32
thank God, of reproductive rights and a woman's right
1:03:34
to choose in a way at least, but
1:03:37
should not have been posted today and did. And then
1:03:39
Bloomberg Law or Bloomberg News picked it up and then
1:03:41
you and I get to talk about it. And it's
1:03:43
like eerie. It's almost
1:03:45
to the day of
1:03:47
when the Dobbs decision dropped and you
1:03:50
and I have our own unique connection
1:03:52
to the Dobbs decision because the
1:03:54
day that you and I interviewed, it seems like
1:03:56
a lifetime ago, but it was two years ago,
1:03:59
you and I had. and
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for details. My favorite
1:10:03
part of the Smalls commercial was that, I
1:10:06
don't know if you did it intentionally or
1:10:08
it was subliminal, but you actually started whispering
1:10:10
about you being a cat person as if
1:10:12
Boogie could hear you. You
1:10:14
know, so the thing is, well, first of all,
1:10:17
I'm an animal person, okay? I love animals. I
1:10:19
have dogs, I have cats, I have chickens, that
1:10:21
we have horses. I mean, you know, we have
1:10:23
goats. We actually have, I have all
1:10:25
of those animals. I love animals. I've always been
1:10:27
an animal person. But deep down,
1:10:29
I'm a cat person. I just am. And
1:10:32
I love the dogs, whatever. But I, you
1:10:34
know, I partly whisper it because, you know,
1:10:36
women in particular get judged for being cat people.
1:10:38
Oh, is that why you did that? Oh, that,
1:10:40
oh, I see where you're going. It's only as
1:10:42
I'm getting older. Oh, the cat lady. All right,
1:10:44
I see where you're going. Yeah, exactly. So it's
1:10:46
only that I'm getting older that I'm more confident
1:10:49
to admit that I am a cat person, but
1:10:51
I do love cats. And let me tell you
1:10:53
something. This cat food, and I'm
1:10:55
not saying it, it's crack. You
1:10:57
might as well call it kitty crack. My
1:11:01
cat goes in
1:11:03
the stream for it. It
1:11:05
is absolutely the cat. My cat
1:11:08
loves it. It's incredible. It's actually
1:11:10
incredible. I am sold. So we
1:11:12
had a similar thing in
1:11:14
the marriage. We had the union of
1:11:17
a dog and a cat when we
1:11:19
got together. Natasha had Chanel, which
1:11:21
I never in 50 years plus had a
1:11:24
good experience with a cat. Starting
1:11:26
with my grandmother who had, this
1:11:29
is stuff I'm politically incorrect. My grandmother who
1:11:31
smoked two packs of Paul Mall a day
1:11:33
had a cat named Smokey that was black.
1:11:36
And the first time I put my hand out as
1:11:38
a three-year-old, I got slashed. I
1:11:40
think every other cat I ever had experience
1:11:42
with, I got somehow got ripped or, but
1:11:44
wait a minute, not Chanel. So
1:11:46
Chanel and I, it's my best cat experience ever.
1:11:49
And then I had a dog at the time we passed. And now
1:11:51
we've got, of course, we have Lily. And
1:11:54
we made it work, but that was our first
1:11:56
attempt at joining a family together. It was literally
1:11:58
cat and dog. And
1:12:01
I get you and I like it. I
1:12:03
love this and I love our sponsors. I
1:12:05
use Nom Nom for Lily. And she like,
1:12:07
that Nom Nom face thing, she loves when
1:12:10
I get that little bag out that with
1:12:12
her, it looks like real food. We left
1:12:14
it out one day and I was like,
1:12:16
honey, what did you make? She's
1:12:19
like, no, that's the dog food. I
1:12:22
would never, to be honest, I wouldn't
1:12:24
promote these products if I didn't believe in them. No, no,
1:12:26
no. We use them all. Before
1:12:28
we actually do these commercials, they
1:12:30
send it to us, we try
1:12:32
them out. And they're actually fairly
1:12:34
amazing, but the cat in particular
1:12:36
was, I didn't expect it
1:12:39
to be that like incredibly,
1:12:41
the cat absolutely loves the cat. But I've never had
1:12:44
a bad experience with a cat. I've never had a
1:12:46
cat that's a loop. I've never had a cat scratch
1:12:48
me. I've never had any of that. My cats are
1:12:50
all, I've had cats my whole life and they've all
1:12:52
just been pretty amazing. Hey,
1:12:55
Smalls, no extra charge for the extended ad
1:12:58
read today. Let's move on
1:13:01
to SCOTUS. SCOTUS,
1:13:03
we got dropped, another dropped, someone else
1:13:05
dropped. Every day you and I shuttered
1:13:08
a look at our text message chain to see
1:13:10
what our producers have sent us that's dropped. We
1:13:13
got a couple of decisions today, two official,
1:13:15
one unofficial. Let's start with the unofficial because
1:13:18
that one's more interesting. Idaho,
1:13:20
in a case called Moyle versus the
1:13:22
United States and Idaho versus the United States. Almost
1:13:26
a virtual ban on abortion in Idaho. And
1:13:29
we've been teasing, I hate that word. We've
1:13:31
been talking about and anticipating this decision for
1:13:33
a long, long time here on Legal AF.
1:13:35
Ben and I have been talking about it,
1:13:38
you and I, I've been talking about it
1:13:40
in hot takes. What
1:13:42
are they gonna do when the Biden
1:13:45
administration smartly used an existing law
1:13:47
in the books under Medicare called
1:13:49
M.Tala, the emergency abortions, a
1:13:52
law, to
1:13:54
try to override and
1:13:56
require that when medical
1:13:58
necessity When
1:14:00
medical necessity and the life of the mother is
1:14:04
in jeopardy unless there's
1:14:06
an abortion that an abortion is given
1:14:08
in federally funded hospitals. Regardless
1:14:11
of whatever the MAGA
1:14:13
was able to pass or
1:14:15
what law from the 1880s or 70s was triggered by
1:14:22
the repeal of Roe versus Wade.
1:14:25
We're talking about the life of a mother
1:14:27
in labor and
1:14:30
an abortion being a medically necessary thing. So
1:14:37
the Supreme Court got it and
1:14:40
we've been waiting to see it. Now, assuming
1:14:43
that this holds, we've
1:14:45
got a decision that six to three and
1:14:48
a very interesting grouping of six to three with
1:14:50
lots of concurrences and basically a
1:14:52
per, not basically, it looks like it's gonna be
1:14:54
a per curium decision of the entire court with
1:14:56
no author but then a whole bunch of per
1:14:58
curiums. You can see the lineup. So
1:15:01
it's gonna be Kagan and Sotomayor, Katanji
1:15:03
Brown Jackson, of course, in
1:15:05
favor of Emtala requiring even in
1:15:07
a state like Idaho with a
1:15:09
virtual ban on abortion that a
1:15:11
doctor give an abortion when it
1:15:13
is medically necessary to do that
1:15:16
consistent with the law, the federal
1:15:18
law. Thank Joe Biden for
1:15:20
this. This is his way having
1:15:22
been dealt a terrible hand by
1:15:25
the United States Supreme Court trying
1:15:27
to figure out a way to
1:15:29
support women, try
1:15:31
to make them less of a second-class citizen in
1:15:34
this country when it comes to reproductive health at
1:15:36
the hands of MAG and the Republicans and they
1:15:38
already are doing it through executive orders. And
1:15:41
then he just unleashed his
1:15:44
administrative law team at
1:15:47
every department to literally to comb
1:15:50
the books of their current existing
1:15:52
federal regulations to find ways to
1:15:55
support women and the right to
1:15:57
an abortion under existing federal law. And one
1:15:59
of... them, a major one was Emtala. So
1:16:04
you've got Kagan, Sotomayor, Katanji Brown Jackson,
1:16:06
but Amy Coney Barrett, she the mother
1:16:08
of eight children, apparently
1:16:11
has joined this as well to
1:16:13
allow abortion
1:16:15
in times of medical necessity,
1:16:17
along with Kavanaugh and Roberts.
1:16:19
So that's the lineup. And
1:16:22
then a weird new little
1:16:25
grouping that has arisen in a number
1:16:27
of cases now of Thomas
1:16:29
Alito and Gorsuch against it.
1:16:32
And Alito saying it's never been a
1:16:34
medically necessary thing for an abortion to
1:16:36
save a woman. I don't I mean,
1:16:38
not only is he a white guy
1:16:40
that apparently doesn't have any children, making
1:16:43
decisions about women, which is always consternating,
1:16:46
but where's he get a science
1:16:48
from? And I thought we weren't
1:16:50
supposed to go to science with
1:16:52
judges making science. I thought that
1:16:54
was their whole problem with Roe
1:16:57
versus Wade, judges making scientific decisions
1:16:59
and medical decisions. Right? There's
1:17:01
a federal law on the books, it
1:17:03
either does or does not apply when a
1:17:05
woman's in need. And
1:17:08
so but of course, you can always count on Alito
1:17:10
and Thomas, but now Gorsuch, and he's
1:17:12
done it a couple of times now sides with
1:17:14
them. So
1:17:16
that's Emtala. Why
1:17:19
don't you, you know, tell me where you think
1:17:23
from the leak forward, what do you think it
1:17:25
means from a reproductive rights standpoint?
1:17:28
And if this decision holds, and then
1:17:31
why don't you take the decision
1:17:33
that just came out about you want to take
1:17:35
the decision on social media, or another win for
1:17:37
the Biden administration? We'll
1:17:40
divide it up that way. Whatever you want.
1:17:44
Look, the abortion leak,
1:17:46
you know, every the my
1:17:49
friends who are Supreme
1:17:51
Court appellate
1:17:55
lawyers and kind of nerds, if
1:17:57
you will, they say this This
1:18:00
was just a glitch. It was an accident. It was
1:18:02
a technical glitch. It was not a leak. I
1:18:05
don't know, not to be a conspiracy theorist,
1:18:07
but I don't believe in coincidences.
1:18:10
The only two times that's ever happened
1:18:12
were the two abortion decisions ever. I
1:18:14
mean, it just seems a little too
1:18:16
convenient, but whatever, maybe it is.
1:18:20
Maybe it is just sort of a glitch or
1:18:22
an accident. What upset me about this decision is
1:18:26
it's a victory sort
1:18:28
of. It's a good headline, but it's
1:18:30
not a victory. It's kicking the can
1:18:32
down the road. They issued
1:18:34
a dig is what they call it, which means it
1:18:37
was dismissed as improvidently granted,
1:18:40
meaning that's what it stands for,
1:18:42
right? They call them a
1:18:44
dig, and that's what the Supreme Court nerds call it. They
1:18:47
don't issue them very often. It's usually one
1:18:49
line, and it means, oh, we granted cert
1:18:51
and we shouldn't have. This is not a
1:18:53
case that we should have granted cert because
1:18:56
these people didn't have standing, right?
1:18:58
The few states and the individuals
1:19:00
who sued didn't have standing. So
1:19:02
we're gonna send it back down,
1:19:05
and you guys can kind of develop
1:19:07
the record more, and we'll see if
1:19:09
someone bubbles up that does have standing.
1:19:12
And guess what? That'll be after the election, right?
1:19:15
This is, to me, this is going
1:19:17
to be an absolute, and again, I
1:19:19
sound like a conspiracy theorist, and
1:19:22
I am absolutely giving my opinion right
1:19:24
now as opposed to when I read
1:19:27
decisions, and I'll tell people what they actually
1:19:30
say. This is my opinion, so
1:19:32
take it for what it's worth. It
1:19:35
absolutely feels like this was, they
1:19:38
know, the MAGA people know that this
1:19:41
isn't going well for them,
1:19:43
that women's, the abortion issue,
1:19:46
and
1:19:49
all the women's rights issues that
1:19:52
are happening, whether it's IVF, et cetera,
1:19:54
not going well, women are gonna show
1:19:56
up to vote soon. So
1:19:58
let's, you know, let's... We're not
1:20:00
gonna rule on the merits here. We're
1:20:03
gonna just kind of kick the can down the road.
1:20:06
But it's coming, it's absolutely coming. They
1:20:09
absolutely do not believe in
1:20:12
abortion for medical
1:20:15
necessity. It only has to be
1:20:17
for the woman's life. And doctors
1:20:19
were on TV today saying essentially,
1:20:21
what's happening is women are coming
1:20:23
in. They
1:20:25
are saying that they'll be a healthcare
1:20:27
issue, a
1:20:30
child that has an issue that
1:20:32
will cause them to
1:20:37
die in utero. But we'll wait for
1:20:39
that and we'll have to wait until
1:20:42
you go into sepsis before we can
1:20:44
intervene because that's when it becomes technically
1:20:46
necessary for you. And so
1:20:48
what do they do? They have to send these women out
1:20:50
of state to states where they can get the medical care
1:20:52
that they want. So I think it's an outrageous, it's
1:20:55
outrageous in my opinion. I
1:20:58
don't think it's a victory. I
1:21:00
think it's just, you know, it's kicking
1:21:02
the can down the road and we'll see what
1:21:04
happens. We'll
1:21:07
see what happens. Someone called it
1:21:09
an ominous punt, which is what
1:21:11
I think it sounds like. Really,
1:21:14
this decision, this fake leak that
1:21:17
was a glitch that I think was
1:21:19
very intentional or
1:21:21
just a nice coincidence is not
1:21:23
great news. It's temporarily good news.
1:21:27
The case you wanted to talk
1:21:29
about was Murthy. It's
1:21:32
a M-R-T-H-Y. And
1:21:36
it basically was a six to
1:21:38
three opinion where
1:21:40
Alito Thomas and Gorsuch, this group that
1:21:43
you commented on is coming
1:21:45
together as
1:21:50
a dissenting group. And
1:21:52
they essentially said there was no first
1:21:55
amendment violation in the Biden
1:21:57
administration asking social
1:22:00
media companies to
1:22:02
flagging misinformation for them on
1:22:04
either COVID or the election
1:22:06
denials. And basically, there
1:22:09
was a term that people are using. It's
1:22:11
called job boning. I don't even really understand
1:22:13
what it means, but it's
1:22:15
a term that is being thrown
1:22:18
out there as
1:22:21
the thing that the Biden
1:22:23
administration was being accused of
1:22:25
doing, that apparently they weren't
1:22:27
allowed to, they weren't
1:22:29
allowed to, the
1:22:33
argument was that they weren't allowed to
1:22:37
tell social media companies like
1:22:39
Facebook, etc. And there were
1:22:42
two states and five social
1:22:44
media users that sued the
1:22:46
executive branch claiming that there
1:22:49
was pressure for censorship. And
1:22:54
essentially, the Supreme Court said
1:22:58
that it's
1:23:01
okay, basically, and that this
1:23:03
is not First Amendment. So it was a
1:23:05
weird ruling that kind
1:23:10
of left the door open for
1:23:13
them to sue again, down the
1:23:15
road. But
1:23:17
again, it's kind of another, another, this
1:23:19
is another one where they said there
1:23:21
was no standing, right, that there was
1:23:23
no case in controversy. So, so
1:23:26
I don't know, they're, these
1:23:28
aren't really substantive rulings. It's kind
1:23:30
of, they're kind of these, these
1:23:32
half fake rulings that the Supreme
1:23:34
Court is saying, on procedural grounds,
1:23:36
we're not going to, I'm not
1:23:38
going to rule on these things
1:23:40
so that, you
1:23:43
know, so that, so that I
1:23:46
don't, we don't get criticized is what
1:23:48
I think is happening. But they're not really
1:23:51
ruling on substantive things are ruling on procedural,
1:23:54
procedural grounds, which has the effect
1:23:56
of leaving these things in place.
1:23:58
Yeah, all they need is a
1:24:00
so is some somebody whose actual
1:24:02
social media posting was banned by
1:24:04
a platform which they
1:24:06
will then argue is because of
1:24:09
pressure by the Biden administration. And
1:24:11
then they'll have standing and then I don't know exactly
1:24:14
what will happen on the merits. I know from
1:24:16
the oral argument in this Murthy
1:24:18
case, Murthy's our US Surgeon General,
1:24:21
he got enjoined along with some others
1:24:24
because he was going after
1:24:27
fake COVID and fake health
1:24:31
information that was being misinformation that
1:24:33
was being put on the internet
1:24:35
by internet trolls, Russia, China, MAGA,
1:24:37
you know, all the
1:24:42
us and killing people. And
1:24:45
that sounds like a bad thing. It sounds
1:24:47
like something the Surgeon General should be against. I
1:24:49
mean, the Surgeon General just came out with a
1:24:51
proposal to, you know, and through the
1:24:53
FDA to have social media have like warning labels
1:24:55
on it and have children
1:24:57
be banned from it almost like
1:25:00
it's a carcinogen, like
1:25:02
a mental carcinogen. And, you
1:25:04
know, the way the MAGA and our
1:25:07
Russian and Chinese trolls
1:25:10
who are masters of disinformation
1:25:12
and brainwashing
1:25:14
in order to pit Americans one
1:25:17
against the other and put
1:25:19
us at each other's throat. So they're doing a great job
1:25:22
with that, by the way. Shout out to the
1:25:24
Russians and the Chinese who have
1:25:26
figured out a way to activate and
1:25:29
mislead great
1:25:31
swaths of our country, including people,
1:25:34
Karen, and your family and my family. But
1:25:39
it'll just come back another day when there's
1:25:41
somebody with proper standing. That's why I didn't
1:25:43
get that excited about the
1:25:46
decision, you know, the last medicated
1:25:49
abortion decision about misopryfte,
1:25:51
mis-myphopristo, I got it
1:25:53
right. And
1:25:55
they're like, we're like, oh, you know, the headline and
1:25:57
everybody had was like, nine zero, like nine zero on
1:25:59
state. It was just because this
1:26:02
group of doctors never prescribed
1:26:04
it, didn't treat anybody that
1:26:06
had been harmed by it, and therefore
1:26:08
didn't have standing. Or as Brett Kavanaugh
1:26:11
put it in his, so
1:26:14
bluntly in his decision, what's
1:26:17
it to you? You've got to get over
1:26:19
the, at least the what's it to you standard
1:26:21
of standing, or you don't get into the courtroom.
1:26:24
I thought that was like a New
1:26:27
Yorker taxi driver. You're
1:26:29
like, you're talking to me. What's it to you? You
1:26:32
know, but it's like the bare level, the
1:26:34
bare minimum of what you need in order
1:26:36
to have a ticket to the courthouse. I
1:26:38
mean, we're not supposed to have, unless you're
1:26:40
in Judge Cannon's chambers or courtroom, you're not
1:26:42
supposed to be a complete stranger to the
1:26:44
case and then be able to argue about
1:26:46
it in a court of law. That's not
1:26:48
our adversarial process at
1:26:50
all, despite the existence of
1:26:53
amicus briefs. So and there
1:26:55
was another decision on bribery, which sort of refined
1:26:58
what bribes people can take that are
1:27:00
in federal office that'll pass muster and
1:27:03
sort of delegating it to the local
1:27:05
and state officials to figure out how
1:27:07
much is too much when you reward
1:27:10
a federal officer or state officer for
1:27:12
take, you know, for something to pass,
1:27:14
passing a legislation or something. I'm sorry,
1:27:17
I'm old school. I don't think civil
1:27:19
servants or people who are in an
1:27:21
elected position in order to avoid public
1:27:24
corruption should take anything. But you know,
1:27:26
this Supreme Court's always finding ways to
1:27:28
backhandedly help Donald Trump and his presidency
1:27:32
of kleptocracy. And
1:27:34
Clarence Thomas. I mean, seriously, right? Exactly.
1:27:38
It's consistent with Clarence Thomas taking
1:27:41
scads and gifts, right? You
1:27:46
and I should get such a gift. You ever
1:27:49
gotten a gift of an all expense paid vacation
1:27:51
abroad in Europe and all the finest hotels and
1:27:53
air? No, that's called a client who
1:27:56
pays you to go handle a case in that
1:27:58
country or whatever. Yeah, no, I mean, look. It's
1:28:00
essentially this case was about, is it a bribe?
1:28:03
Is it a quid pro quo? Am
1:28:05
I giving you something because I want something
1:28:07
in the future in return? But it's OK,
1:28:09
though, after you've already made your decision and
1:28:11
done something as a public official, if you
1:28:13
want to get a gift later, if someone
1:28:15
wants to give you a gift, that's a
1:28:18
gratuity. That's not a bribe. And that's what
1:28:20
they essentially said. And I couldn't help but
1:28:22
think, oh, OK, this was Clarence Thomas saying,
1:28:24
hey, what are they
1:28:26
going to do? Start saying that I'm being bribed by all
1:28:28
these all expense paid vacations that
1:28:30
we're all getting? I mean, it's absurd.
1:28:32
It's absolutely absurd. Public corruption is a
1:28:34
big deal and is a big problem.
1:28:36
We got two major public corruption cases
1:28:38
going on in my home state right
1:28:40
now in New Jersey. Menendez,
1:28:43
who got caught with his
1:28:45
pants down and over
1:28:47
the closet door containing gold
1:28:51
bricks, containing gold bars. Yeah,
1:28:56
that is then wife. And
1:28:59
he got, for helping an
1:29:01
Egyptian businessman get the halal
1:29:04
certification rights for
1:29:06
everything going overseas in the military,
1:29:08
a tremendously lucrative thing for which
1:29:10
the Menendez family got a Mercedes
1:29:13
and gold bars and everything else.
1:29:15
And we got another major former
1:29:17
executive in
1:29:21
government in New Jersey who's basically
1:29:24
taken bribes to approve real estate
1:29:26
development rights and other things
1:29:28
like that. And public corruption is a big deal. And
1:29:31
those that practice, Jack Smith,
1:29:35
years before he worked with you, but when he
1:29:37
was with the feds, he worked
1:29:39
in public corruption. And that's usually
1:29:41
a ticket for advancement within
1:29:43
the Department of Justice. I
1:29:46
don't know about the Manhattan DA's office, but
1:29:49
the public corruption unit and those
1:29:51
that headed, that puts
1:29:53
you on the kind of the glide path
1:29:55
for a lot of success if you're talented
1:29:58
as both a front line. a
1:30:01
line prosecutor the way that Jack Smith is and
1:30:03
as a sort of administrator and somebody that can
1:30:05
put teams together and make them work efficiently. And
1:30:07
you were both of those things. Of course, when
1:30:09
you were at the Manhattan DA's office, as was
1:30:12
Cy Vance, who's going to be your guest this
1:30:14
week on mistrial. Yeah.
1:30:16
Karen Freeman, Igniflow and Daniel
1:30:18
Berry, Kathleen Rice. So, and
1:30:20
people always ask, how do
1:30:22
we support progressive
1:30:26
pro-democracy legal shows
1:30:28
that happen to be on the Midas Touch Network or
1:30:30
on the Midas Touch Network, not by accident. And
1:30:33
there's lots of different ways. One
1:30:35
of them is we have different
1:30:38
shows and ways that we contribute. I
1:30:40
love doing hot takes. Karen developed
1:30:43
a new podcast and
1:30:45
you know, support us there. Watch us on those
1:30:47
things, chat, thumbs up,
1:30:49
comments, follow us wherever
1:30:52
we go within the network.
1:30:54
That's helpful. Karen writes a lot, for instance,
1:30:57
on the Midas Touch website. I
1:30:59
do less writing and more hot takes. We
1:31:02
all do things that we're comfortable with and
1:31:04
in our ways and our unique ways of
1:31:07
contributing. Watching the
1:31:09
show, being in here, we have
1:31:11
a loyal audience. It's amazing. It's
1:31:13
grown. We get anywhere between 14,000
1:31:15
and 20,000. Just watching us do
1:31:18
the podcast. And then, of course,
1:31:20
watching the episode. We do it
1:31:22
here, Midas Touch, free subscribe, help
1:31:24
them get to their 3 million
1:31:27
number before the November election.
1:31:29
We're building this network with our own hands,
1:31:31
as we like to say. No outside investors.
1:31:33
Nobody censors us. They couldn't
1:31:35
censor. They don't know what I'm going to say. They don't know what Karen's
1:31:38
going to say. I don't even know what I'm going
1:31:40
to say at any given moment. So they
1:31:42
couldn't possibly censor us. But we're unplugged. We're
1:31:46
unfiltered. We're unhinged sometimes. But
1:31:48
we're here and
1:31:50
we're doing our best on
1:31:52
this network. So we also have the audio version.
1:31:55
Some people on the audio
1:31:57
version don't know we have a video version and vice
1:31:59
versa. I've been... been told that by Brett and
1:32:01
others on the network. Some people don't even know
1:32:03
we have a live version on YouTube. We have
1:32:05
a live version on YouTube. And
1:32:07
some people like to receive their information that way, and
1:32:10
I get it. Some people know I'm
1:32:12
in a car. I can't watch things, but I'm a
1:32:14
podcaster. So we're on every major podcast platform out there.
1:32:16
Very easy to find any of the podcasts that we've
1:32:18
talked about. And you can go back and forth, and
1:32:21
you can subscribe. It's all free and like all of
1:32:23
that. We've got sponsors.
1:32:26
And it's not just like listening to the sponsors.
1:32:28
If you're interested in the products, and we
1:32:31
support them, and we try them, and we
1:32:33
talk about them, then we've
1:32:35
always arranged and negotiated some great deals
1:32:37
to give you the opportunity to get
1:32:40
these products. And that, of course, helps us. As you
1:32:42
can imagine, it's a circle of life. We
1:32:44
have sponsors. They sell products. They come back.
1:32:47
And we're able to keep this whole thing going,
1:32:50
because we don't have any outside investors. And
1:32:52
then we've got a Patreon that Ben
1:32:54
and I created, where we're sort of
1:32:57
at the intersection of law and politics.
1:32:59
And we're doing the law part for
1:33:01
people that want to geek out and nerd out on the
1:33:03
law, but non-lawyers. Although we've got a fair amount of lawyers
1:33:05
that are on there, too, where people that
1:33:07
wanted to go to law school and all of
1:33:09
that. And we do videos weekly. We
1:33:12
do duets. We just did an hour-long
1:33:14
live chat, Zoom, Ben and me, where
1:33:16
you got to ask questions. And we
1:33:18
answered them in real time. And that
1:33:20
was amazing. And then we
1:33:22
do tutorials. Ben just did one on
1:33:24
the Supreme Court. He's going to do two more versions
1:33:26
of that. I've
1:33:29
done it on procedural and constitutional,
1:33:31
criminal, and civil issues from a
1:33:33
practitioner standpoint. But again, the target
1:33:35
audience is the same as our
1:33:37
target audience for this podcast, which
1:33:39
is just really smart, educated, interested,
1:33:41
invested people. You
1:33:43
don't need a legal background, although we
1:33:45
do have. It's amazing. We do have
1:33:48
a fair amount of lawyers that do
1:33:50
like the show. So that's patreon.com/legalaf, patreon.com/legalaf.
1:33:52
And if you come in at any
1:33:54
level, the entry level is membership. Or
1:33:57
yeah, it's $10 a month. And
1:34:00
you'll get a lot of, I promise you, you'll
1:34:02
get a lot of value from that. We had
1:34:04
about 58 videos already up there that
1:34:06
we've developed over the last several months, uh,
1:34:09
patreon.com/legal AF. And then we've
1:34:11
got a store where you
1:34:13
can fly the flag of
1:34:15
legal AF store diet dot
1:34:17
Midas touch.com with for
1:34:20
all our latest gear, t-shirts that partially
1:34:22
was designed by Karen free
1:34:24
fitting inflow and all different shapes and
1:34:26
sizes there and colors. And that's another
1:34:29
way to, um, to support the show.
1:34:31
So sometimes
1:34:33
our personal life bleeds in to the
1:34:35
show and Karen's had some amazing events
1:34:37
that have happened over the last year.
1:34:40
Um, this is now with Francesca. We
1:34:42
figured out, I was talking to Jordy
1:34:45
earlier, earlier today. This, this will be
1:34:47
by when Ben has his baby in
1:34:49
three with his lovely wife, Sochie in
1:34:51
about three months, it will be the
1:34:53
third Midas baby in 2024. Amazing.
1:34:58
Jordy went first, then me and then
1:35:00
Ben like boom, boom, boom. And,
1:35:03
uh, that's, and the love and support that
1:35:05
we have has made this,
1:35:07
uh, all of it possible. Karen's
1:35:09
had some amazing events in her life
1:35:11
and we've all had some bad events that have happened during
1:35:13
the year, but we feel like we can, uh, we
1:35:16
were honest with our audience, we're authentic with our audience and we're
1:35:18
going to share with you where we are, when we are. And,
1:35:21
uh, we might be in amazing moods. We may be covering
1:35:24
up something else in our life
1:35:26
that we, but this keeps us going. And
1:35:28
there's a reason I, I got
1:35:30
permission to come on the show tonight from
1:35:32
my wife who's just that right next door.
1:35:35
Uh, because it matters and it's meaningful in
1:35:37
it. And I want to be here and
1:35:40
I know Karen has, has gone through heaven
1:35:42
and earth and, and been in places that
1:35:44
you guys didn't even know that she was
1:35:46
doing the show from, and it's just a
1:35:48
level of commitment and professionalism that I think
1:35:50
is unparalleled on YouTube. Um, but we
1:35:52
do it for the legal efforts and the Midas mighty
1:35:55
right. Karen. Absolutely. Absolutely. It's
1:35:57
nothing more important and nothing more worth
1:35:59
it.
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