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- [00:00]
Karen Friedman Agnifolo
Quick pause. Something useful for you.
- [00:02]
Michael Popach
Love fishing.
- [00:03]
Karen Friedman Agnifolo
TikTok isn't just for young people.
- [00:05]
Michael Popach
It's full of real tips. Better knots, better baits, better catches.
- [00:09]
Karen Friedman Agnifolo
Quick videos from people who actually fish. Download TikTok now.
- [00:15]
Michael Popach
Whether you're solving murders during breakfast, cracking
- [00:18]
Karen Friedman Agnifolo
cold cases on your commute, or playing amateur detective at bedtime, Amazon Music's got millions of podcast episodes waiting. Just download the Amazon Music app and start listening to your favorite true crime podcasts and ad free included with Prime.
- [00:36]
Michael Popach
Welcome to the midweek edition of Legal af. We don't blow smoke or sunshine. And when things go well for the democracy and against Donald Trump, we're here for it. And this is a terrible day. We could just do an entire podcast of just today against Donald Trump in every way, shape and form. We're going to kick it off talking about birthright citizenship. Donald Trump said history today, made history today. First sitting president to ever sit in an oral argument first sitting president to ever storm out of an oral argument that he knew was not going well for him. When the MAGA Republicans took turns treating John Sauer like a giant jurisprudential pinata about the 14th Amendment and what it literally says, it was not a hard oral argument. We were a little concerned that the Supreme Court took it up at all. But it comes down to four big pieces of paper. An 1898 Supreme Court case, 1868amendment to the Constitution, a 1940 statute, and a 1952 reenactment of the statute. That's it. You can tap dance all you want for two hours, John Sauer, which you tried to do, but you can't outrun logic and gaps in your reasoning that were pointed out by the rightest of right wing on the, on the Supreme Court. Now in watching the oral argument today and it's up for everybody to listen to on Legal AF YouTube channel under Live I said now I think they were doing it in order to embarrass Donald Trump to his face before I was like, oh no, they're taking the case. No, nothing good will come out of this. I don't know about that. We'll get into more detail when, when we get to that. Then yesterday, last 24 hours, a federal judge named Richard Leon put a big red tag on the ballroom, the Royal Ballroom project, as I like to call it, at the, at the White House and, and did a stop work order just as I thought he would do and said, you are not to build this. You have violated the law. Congress needs to approve funding and, or, and, or approve you doing any of this major reconstruction, renovation of the White House. It'd be no different if Donald Trump in the middle of the night tried to knock over the people's house, knock it down, and then say, what am I going to do? Got to build a new one. Yeah. No, okay. And I love Judge Leon for a number of reasons. And one of my favorites is how he punctuated his order, his memorandum opinion with 18 exclamation marks and half a dozen eye rolling, please, sometimes combined please, exclamation mark. And yes, there's been an appeal already and Donald Trump has already misstated what the order allows and has revealed national secrets about how they're planning to secure the presidency. But we'll leave that for the segment then. Because he knew he was having a bad news cycle, Donald Trump decided he was finally, he had to sign some piece of paper about mail in ballots, about voting. Remember, he threatened us, he threatened the democracy with I'm going to re, I'm going upside, I'm going to turn upside down everything you know about elections. I'm going to take them over. I'm going to sign an order about citizenship papers and IDs and passports and all. No. It came down to something equally stupid and easily refutable in federal court. It's this, the post office. Good news, everybody. The post office is taking over in deciding who gets a mail in ballot. Yes, the postal service, the one you can barely rely on to deliver your junk mail, is now going to decide whether you are eligible to vote and withhold your ballot if they decide you're not. With reference to Social Security Administration records, millions of people's mail in ballots are at risk. States rights are at risk. We'll cover mail in ballots and why there's already lawsuits being filed to oppose that. Well, in time for the midterm elections. And then again, this is all last 24 hours. Judge Mehta, who at one time was the chief judge as a, as a judge there in the D.C. federal court, he is allowing a group of Metropolitan Police and Capitol Police officers and others, including in Congress, to continue with a lawsuit against Donald Trump for him being him having incited, based on the allegations of the complaint, an insurrection and attack that caused them harm on January 6, primarily focused on the Ellipse speech. A case, yes. Has been kicking around for, oh, these past six years or five years or so. But now it's on its way to trial, subject to some appeals. We'll talk about another fine day for the democracy. Another fine day to be joined by my partner, Karen Friedman, Ignipolo. Hi, Karen.
- [05:33]
Karen Friedman Agnifolo
Hi, Popo. So good to see you, as always.
- [05:36]
Michael Popach
You are. To you too. And for those of our audience that celebrate. Happy Passover.
- [05:42]
Karen Friedman Agnifolo
Happy Passover. I don't, I don't, I don't, I don't know how, I don't know how to say that.
- [05:49]
Michael Popach
Believe that for another time. All right, so let's put, let's put, let's do the politics part of law and politics here on Legal af. Terrible, terrible poll numbers. I left that out. Came out in the last 24 hours. CNN reporting that two thirds of America, including a fair number of Republicans, have rejected Donald Trump's presidency, called it a failure, says he does, he's not in touch with their needs, his economic policies, or if I'm talking about two thirds, including him. And just since January, think about this. Before the Iran war, just since January, he's lost double digit point totals with Republicans with Republicans under 45 in every major category that matter about his handling of the economy, inflation, the Iran war, global affairs, immigrant, immigrant rights, all terrible. There it is. And does that have the minuses on there, too? Yeah, I mean, the approval rating, I've seen it as low as 33%. This is a, this is the CNN poll. There's another poll that has it as 33%. This is the lowest he's ever been. But even among the gop, he's shedding support. And that entire coalition that he built to get elected on what Representative Jamie Raskin told me in an interview a couple days ago was this predatory slogan of America first, which was never meant to accomplish anything, but then to get Donald Trump elected, that, that coalition of like Hispanics and over performing with the black vote and over performing with the women vote and over performing with the independent vote is all gone. It's all gone up in flames. And now he's left, apparently, Karen, with his only two trusted advisors, Susie Wiles, the chief of staff and his wife Melania, who are consulting with him about his immigration policy and telling him he has, they have to put an end to it, including maybe Stephen Miller's career. What are you sensing from the public that no Kingsday march, another 9 million people hit the streets. We're talking about 20% of the electorate is hitting the streets against Donald Trump in advance of it. I'm sure you were bopping around New York or someplace for that. What are you seeing out in America?
- [07:56]
Karen Friedman Agnifolo
Yeah, I mean, look, I have some friends who identify as Republicans and who voted for Donald Trump and even they are saying essentially a couple of things. First of all, the whole Iran war, I think, has really made people ask and question. This is not what I voted for. The whole reason I voted for Donald Trump was because this promise of no more foreign wars, these endless wars, Iraq, Afghanistan. I mean, people have lived through these wars that are quite expensive, and they're looking at their own situation or their kids situation and saying, if we have a billion dollars, if I'm paying taxes and we have so much money from my taxes that I think are too high and I don't want to be paying, but if we have so much money from that, I don't want it going to be a billion dollars a day to fund this war that really has nothing to do with us and is not something I wanted. I'd rather people, for example, have health care or affordable health care or food or lower prices, and it's making gas prices go up, housing prices are still high. And I think people are just really frustrated that we are spending billions and billions and billions of dollars to be in this war. And then he's going out and spending billions of dollars on all of his vanity projects, whether it's to rebrand the Trump Kennedy center or the East Wing of the White House or put up another monument, whatever it is. It just. He's really lost touch with what people who did vote for him wanted. And he's really losing touch with a lot of people who think, okay, you said you were gonna deport people who are committing crimes, but what about the hard workers who my company relies on? I need them. I need them to work in my factory or be on my farm or whatever it is. So he's losing a lot of people who voted for because he advertised one thing, but he's delivering something completely different. That's what I'm seeing. Of course, there's still these hardcore MAGA people who will always follow him, but there's a lot of people who are just completely disillusioned by this that I'm hearing that I didn't hear before.
- [10:14]
Michael Popach
Yeah, I agree with you. I had lunch with an old friend of mine yesterday who is a moderate Democrat, and he had an interesting. Without outing him, he had an interesting perspective. He hates Donald Trump and everything about him. However, he is willing, more than I thought, to acknowledge some quote unquote of the good things that Donald Trump has done, like he's in favor of what we've done already in Iran. I say, well, what is the out? What's the exit strategy? I don't understand how we were supposed to take over 90 million people. And from his point of view, it was like, well, we got rid of the missiles and the nukes and the Navy, and that's good enough for me. And nobody else had the balls to do it. So it's interesting. He's not a Trump supporter. He's not going to vote, you know, Republican at the midterms or. But he, he's still, there's still this, this group out there that likes certain parts of what they've done. And the part that we have to be concerned about is that when you're the party out of power like the Democrats, there's a limit to what you can do. Thank God they come on our show and Midas and, and you know, we get to talk to senators and Congress people all the time, but they're not making legislation to help people because they're not in power. And there's only so many nasty letters and subpoenas and oversight hearings and shadow hearings that you can run at the end of the day. That's why even in the polling, 65% of the people don't want to, aren't happy with the Democrats either. But that's really just a function of the Democrats are doing anything because they're not able to in our system of government other than try to hem in and pin back Donald Trump. I think the, the polling is amazing, but it has to be analyzed and turned into policy pronouncements, a Contract with America by the Democrats in order to be really, really successful. Otherwise it just becomes a pox at all your houses. I don't want. And we're going to have Another problem with 3, 8, 10, 20 million people sitting out the next election.
- [12:01]
Karen Friedman Agnifolo
But what about, so what would your friends say? What is it about the Iran war? Now, I'm really curious about this. What is it about the.
- [12:08]
Michael Popach
He's a huge Israel supporter, so anything that, that, that degrades Iran is a plus. By the way, as I've said, I am not against the concept of getting rid of Iran, if that was possible, with well thought out coalition building strategy, combination of diplomacy, sanctions and the rest. But this is a fiasco and I'm not willing to give him any credit. The other person gives him credit, I don't want to speak for him, but gives him credit because it's like, well, at least the Navy's gone.
- [12:43]
Karen Friedman Agnifolo
But Iran's not the only power regime, whatever country that has nuclear weapons. Why Iran? Why not Russia? Why not China? Why not North Korea? Why are we focusing on them? And the answer you answered it is because of Israel, but again.
- [13:01]
Michael Popach
And they're beatable. They're beatable. I don't think we want to take on the Russians or the Chinese, but
- [13:05]
Karen Friedman Agnifolo
it just, to me seems really not necessarily in our interest and certainly not worth the expense and the human toll it's taking on, the lives that will be lost and are lost. And like you said, there's no exit strategy. So what, we're going to be in this forever? I mean, Iran seems dug in, right?
- [13:24]
Michael Popach
Oh, yeah. Oh, yeah. This war is over when they say it's over. Or they're just going to make Donald Trump keep shape shifting and morphing before our very eyes in terms of what a victory looks like, it was regime change. No, forget that. That's not going to work. It'll be Strait of Hormuz under our control. Well, that's not happening. Forget that one. We'll do. The Navy will. We'll bomb the shit out of the Navy. And the nuclear reactors? I thought we did that already. At least the nuclear reactors part. And, you know, and then he's just using it as a foil to go after our allies once again. Marco Rubio will have to rethink NATO and our involvement because they're not coming to a pointless, you know, illogically planned war. And we want them to. It's like, you know, I really don't understand why you think you can violate other countries sovereignties. You picked the fight with Iran. Good for you. You didn't do coalition building or diplomacy on the in. Good for you. And then you want our allies to bail you out, both with oil production and release. And militarily, it's not fair. It's not fair to our allies. It makes us look weak and stupid. We're not stronger around the world based on what people are watching because Donald Trump's in charge. I remember when Trump got elected or people voted for him. I had friends that were Republican that told me, you know what I like about Donald Trump? Like what? On a world stage, he's so erratic that people don't know what he's going to do next. And so I'm like, that's not a strategy. That's Lethal Weapon, okay? That's Mel Gibson. Like, oh, he's the crazy cop. You don't know what he's gonna do. Now, that's a buddy movie, okay? That's not how you run the most powerful country in the world and the leading democracy, okay? Like, you don't know what he's gonna do next either. That's what I tell them, let alone. And he doesn't know what he's gonna do next either. And that erraticness actually weakens America in our allies eyes. Many of them are watching on our show today. We have 138 countries or more that, that, that support legal AAF have been with us from the very, very beginning. But let, let's, let's take a time out here unless you want to drill, make another point on Iran, go to birthright citizenship.
- [15:27]
Karen Friedman Agnifolo
Yeah, no, I just, I think what you said is, is a really important point. Just that people are losing even his supporters, his lack of credibility, the fact that he changes and lies to people's faces. People see that and I think that really makes us weaker in so many ways.
- [15:46]
Michael Popach
Oh yeah. And like today. So, you know, switching gears to the Supreme Court, I mean he, he might have thought it was there was a tough guy move, a mob move, mobster move to come and be the first sitting president to ever go to a Supreme Court oral argument. But now he's also the first sitting president to ever get embarrassed to his face by his Supreme Court, including those that he appointed. And I don't know how that makes him look stronger as he trot, as he strolls back Pennsylvania Avenue to the White House. I think it makes him look incredibly feckless and weak. And who are his advisors? Susie Wiles? Melania, who is letting him out, who sat in a room and said, yes, good idea, boss, you should go to the Supreme Court. He knew it was going to go terrible for him. He's been bashing the refs for the last three weeks, ever since he stopped doing it about tariffs. He knew his argument was a dead bang loser. That's why his tell is all those social media posts. And yet he was going to go to have them do it to their face.
- [16:44]
Karen Friedman Agnifolo
Yeah, and then he stormed out after what, 13 minutes or something?
- [16:47]
Michael Popach
50 minutes after they got into the argument and after he saw that Roberts and Amy Coney Barrett were against him. In fact, let's talk about what happened today and break it down. And how do we get here? So we, you and I were concerned, along with Ben that they were even taking this case because why do we need this case? The 14th Amendment says a person who is born in or naturalized in the United States, subject to the jurisdiction thereof is a citizen. Period. It was then codified in 1940. Same exact language in Title 8 in 1952. Same exact language. See, countries like ours are always struggling with identity, always struggling with existential issues about who's a citizen. Especially a country that stole its country from another group of people. We're always debating who's a citizen. McKinley. President McKinley did it, too. Let's redefine you born in Puerto Rico, Guam. No, you're not going to be a citizen. We don't want that. Let's cut that out. So presidents like Donald Trump are always trying to redefine who's a citizen, but it creates a terrible us against them scenario in the United States. I'm a citizen. Well, how are you? How are you a citizen? Are you naturalized? Oh, you're not the same as me. I was born here. Six generations were born here. Or I'm the daughter or son of the American Revolution or whatever bullshit people want to sell themselves about what makes them more of an American than their neighbor. We don't want to live in that society. So the 14th Amendment says what it says, says all persons a person. It's always broadly interpreted. Reaffirmed in 1898 by the case of the Chinese baby who grew up to leave the country, born here and was denied entry again. And he said, I'm an American citizen. They said, no, your parents are Chinese. They said, no, I'm an American citizen, born in San Francisco. And it went up to the Supreme Court. And that led to a funny moment which we'll play in a moment between Cecilia Wong, who's the. Was the advocate for the American Civil Liberties Union, who's of course with us on legal I have YouTube channel, and she was the advocate for the case. There's only two advocates, her and John Sauer, in which in fact, let's play the moment where Brett Kavanaugh says to Cecilia Wong, if we agree with you that the, that the Quan ARC case from 1898 is the dispositive case, this is over pretty quickly, isn't it? I mean, it's a very short decision, isn't it? And she just paused for a second. Well, let's play it. Play the clip in your opening that if we agree with you on how to read Wong Kim Arc, then you win.
- [19:16]
Karen Friedman Agnifolo
So that could be a. If we did agree with you on
- [19:20]
Michael Popach
Wong Kim Mark, that could be just a short opinion, right? That says the better reading is respondents reading government doesn't ask us to overrule Affirmed. That's that then. I love that moment. You know, it's the brevity is the soul of wit. You know, just sit. I've done it as an advocate. Just the answer is yes. That yes was 30 years in the making for Cecilia in Saying that having the courage just to say yes. And that case came up Again, Karen, that 1898 case that you and I have been talking about for a year and a half came up again, but not in a good way for John Sauer, the Attorney General, the Solicitor General, former Trump criminal appellate lawyer, in a question from Gorsuch, another vote that he needs in order to support Trump's position to count to five. Let's play Gorsuch and Sauer about the same case when it comes up. I'm just working within your argument for a moment. Today you can point to laws against immigration that are much more restrictive than they were in 18. We really didn't have laws like that we do today until maybe 1880. So if somebody showed up here in 1868 and established domicile, that was perfectly fine without respect to any immigration laws, there they were. And so why wouldn't we, even if we were to apply your own test, come to the conclusion that the fact that someone might be illegal is immaterial. I would first cite Wong Kim Ark on that point because Wong Kamark says you're. Well, I'm not sure how much you want to rely on Wong Kim Art, but that state, there is a statement in there. It says, so long as when you hear your supposed to be your friend say, I'm not sure you want to rely on that case on the, on the heels of it. Let me play one more, then I'll get your, your, your view of what, of what happened during the two hours. And this is probably around the moment where Donald Trump buttoned his jacket, his long red tie and stormed out of the room. And this is for those that haven't been there and I've taken the tour and I've also sat for oral argument. There haven't argued oral argument, but I've, I've watched it. You know, you got the velvet red curtains. It's not that huge of a room. People think it's much bigger than it is. The bench is relatively close to you. So if you're sitting in the first row like Donald Trump was, you're pretty close to the action. I mean, Donald Trump's comfortable for being in rooms like that because he's an indicted convicted felon and he's, he's been in courtrooms before. But this was the moment for me early on when it was like I call it on one of my hot takes, the Weekend at Bernie moment. This is the moment when John Sauer died in terms of his argument and nobody told him this is John Sauer and Chief Justice Roberts as Sauer tries to make an argument about the modern world and 8 billion people just a flight away from being a United States citizen. Mess. Their interpretation has made a mess of the provision. Well, it certainly wasn't a problem in the 19th century. No, but of course, we're in a new world now, as Justice Alito pointed out to where 8 billion people are one plane ride away from having a, a child who's a U.S. citizen.
- [22:28]
Karen Friedman Agnifolo
Well, it's a new world.
- [22:29]
Michael Popach
It's the same constitution it is. And done. He's about as dead as fried chicken as Senator John Kennedy said in Louisiana about Kristi Noem. I mean, for me, that was the. You had the Chief justice going, you know, it's the same old constit. Nobody was buying his argument. Forget five votes. I don't know how he gets three votes. What did you make of it today?
- [22:51]
Karen Friedman Agnifolo
Yeah, I mean, look, it was very interesting. It was a history lesson. It was going back to some of our worst times as a country when black people and slaves didn't have the same rights as the rest of us. And frankly, it was very interesting to listen to from that perspective. But I just didn't. I don't see even John Sauer, I don't, I don't even know how much he believes what he was trying to argue because it just, the whole position makes no sense. And you know, and it came out through a lot of examples. Right? Like, so, okay, John Sauer was saying it turns on domicile. Is this your house? Is this where you reside? Is this. Where is this? Is this your home? Is this where you intend to live permanently? And the justices were like, yeah, but the 14th Amendment doesn't talk about the parents domicile. It talks about the child's citizenship. And so how are we supposed to determine that? And how do you deal with that? So what if. Is it the mom has to be a US Citizen or has to be legally here and domiciled here? Or what about the father? Or what about both of them? Or how do you determine that logically? And so what happens between the time of birth and the time that you figure this out and what are you going to do? Take depositions of pregnant women to find out what, what your intention is to be. Are you intending to stay here? They talked a lot about.
- [24:21]
Michael Popach
Well, on that one. So you don't think, people don't think Karen just pulled that out of thin air. Let's play Katanji Brown Jackson on that exact point, you will still Get.
- [24:31]
Karen Friedman Agnifolo
No, I'm transparent. I'm just talking about the particulars.
- [24:33]
Michael Popach
Because now you say your rule turns on whether the person intended to stay in the United States.
- [24:37]
Karen Friedman Agnifolo
And I think Justice Barrett brought this up. So we. Bringing pregnant women in for deposit positions.
- [24:43]
Michael Popach
What.
- [24:43]
Karen Friedman Agnifolo
What are we doing to figure this out?
- [24:45]
Michael Popach
No, as I pointed out earlier, the executive order turns on lawfulness of status. So if you. If you. If you give birth to a baby in the hospital right now, it gets the birth certificate in the system. There's a computer system.
- [24:56]
Karen Friedman Agnifolo
So there's no opportunity.
- [24:57]
Michael Popach
There's apparently no opportunity then for the
- [24:59]
Karen Friedman Agnifolo
person to prove or to say that
- [25:02]
Michael Popach
they actually intended to stay in the United. Absolutely not. The opposite is true. Their opportunity to dispute. If they think. Think they were wrongly denied, which would only happen in a tiny minority of cases after the fact, directly addressing that guy after the fact, after their baby has been denied citizenship, then we can go through the process and the way that. I mean, I'm summarizing because I'm not an expert. Computers. But there's a computer program that currently automatically generates a Social Security number. SSA says, look, a Social Security number. Non citizens can have them if they work authorization. So it doesn't prove citizenship. We'll give you a Social Security number provided that there's. The system automatically checks the immigration status of the parents, which there are robust databases for. And then it appears no different to the vast majority of birthing parents.
- [25:41]
Karen Friedman Agnifolo
Thank you.
- [25:42]
Michael Popach
Picturing delivery rooms attached to conference rooms where depositions will be held for mothers who've just given birth. That's. That's what I think is our next Chief Justice. If the Democrats get back in office and Roberts retires or whatever. I think Tanji Brown Jackson is the next Chief justice of the United States. What do you think?
- [26:02]
Karen Friedman Agnifolo
Well, I don't know about that, but she was great. I mean, you know, but there's some more interesting.
- [26:07]
Michael Popach
Wait, why did you run that over? So why isn't she going to be the next Chief Justice?
- [26:11]
Karen Friedman Agnifolo
Because. I don't know.
- [26:11]
Michael Popach
I mean, we both don't know. I'm making my opinion.
- [26:15]
Karen Friedman Agnifolo
I know.
- [26:17]
Michael Popach
Who do you want? Sotomayor.
- [26:19]
Karen Friedman Agnifolo
Yeah. I was going to say, I would probably guess Sotomayor, but she's 75. Yeah, but I think Katanji Brown Jackson is a little, like. She's alone a lot. Right. She's sort of. She'll be the dissenter where Kagan and Sotomayor will concur or she seems to be the furthest. Not necessarily a consensus builder as much as Sotomayor, in my opinion, seems to be, I'm not sure about that.
- [26:51]
Michael Popach
I mean, she dissented two days ago, 8 to 1 on the conversion therapy case. But she's generally, it's the block of three with Sotomayor and cake and cake and sort of is not. I mean, she's not writing as prolifically as she used to. I love Sotomayor. I'm just looking at a 72, 73 year old justice, and we're talking about three years from now. She'd be almost 80 years old. I don't think she's the right candidate. I don't think a Democrat would skip over the current group to bring which they he could or she could to bring in a new Supreme Court justice. The only reason I'm talking about it is people like to talk about the future. And what does that look like if there's midterms and a change in the presidency? And I do want to talk about that.
- [27:32]
Karen Friedman Agnifolo
Yeah. You know, just, just to wrap up a couple other sort of practical things that they talked about today. You know, Amy Coney Barrett was saying, what about, they call them foundlings, babies who are abandoned after birth. Right. And whose parents are unknown. What do you do with those babies? I mean, they were really concerned about the just children and being without country, being without sovereignty because of this question of their parents. And, you know, it's just part of the 14th Amendment, not just talks about where you were born, but also subject to the laws of, you know, subject to the laws or the jurisdiction of the United States. And I think a really important point is the only people who aren't subject to the laws of the United States are a very, very small number of people, such as diplomats. Right. And when I was a prosecutor, we had to deal with this where a diplomat would be accused of a crime and even arrested for a crime. And we had to release them. We had to literally release them and send them, give them to their country, because they are not subject to the laws of the United States. But whether you're documented or undocumented, whether you are here as a, as a tourist or you are here as a visitor, you are subject to the laws of the United States. You will be prosecuted if you commit a crime, you'll get a traffic ticket. If you're speeding, you are subject to the, you have to obey the laws of the United States of America. So you are subject to the laws here. And I think that that's where this is ultimately going to fall is a combination of our Constitution that applies to Everybody. Right. The Fourth Amendment search and seizure applies to everyone, not citizens. And if our Constitution applies to everyone, then our Constitution applies to everyone, including the 14th Amendment, which is very clear about where you're born. If you're born here, you are a citizen of this country. And that is what our country was founded on. It's based on the English common law that also has birthright citizenship. Trump, who tweeted out that we're the only country in the world who doesn't have that, is wrong. At least 30 countries also have birthright citizenship. So he's just plain wrong. And so I do think that any way you skin this cat, whether it's looking at historical precedent, whether looking at the text of the Constitution, whether you're looking at English common law and what this was based on, whether you look at the five or so statutes that have been codified in the following years about citizenship, I do think, ultimately, I don't know how they're going to rule, whether they just rule on statutory grounds or constitutional grounds. But no matter how they rule, I do think that Trump is going to lose bigly, as he would say in this particular case.
- [30:23]
Michael Popach
Yeah. And he's, then he'll attack the Supreme Court justices. And, and I guess the thing we'll, we'll wrap this section with is I don't want people to think that because we're getting a few major wins like tariffs and birthright citizenship, it sort of makes up for all of the bad rulings that this activist bench, led by John Roberts and the right wingers, have done to us this term. And in past terms, you know, Trump's batting.900 in shadow docket cases. Now, some of the merit cases are, of course, going in our way. We'll have to see where the final numbers shake out as this term ends in June when they drop this birthright citizenship opinion sometime before they leave for vacation. But we're going to get a crappy voting rights case result, we're going to get a crappy mail in ballots result, we may get a good Federal Reserve independence ruling. But, you know, this administration had no problem with Donald Trump completely reshaping for the worse the relationship between the American people and the federal government, between federal workers and the federal government, between federal funding and the states and grants and programs and that type of thing and its impact on the economy. And that's all because of the Supreme Court. So while we're, you know, slightly elated by a Trump, especially to his face, being so resoundingly rejected, part of me thinks maybe they wanted. They're glad he was there and they took this case for a reason, because they didn't really have to. They could have just rejected the appeal and said, you know, the 1898 precedent stands. We don't really have anything new or novel to say about that. But, you know, Trump kept, kept pushing. This was the linchpin of his administration, linchpin of his immigration policies. He needs to be heard on it.
- [32:04]
Karen Friedman Agnifolo
So that, where do you, where do you think, where do you think Thomas falls?
- [32:09]
Michael Popach
Well, he led off with the Dred Scott question. We were like, well, that's appropriate. A descendant of slaves is going to ask a question about one of the most notorious heinous decisions by the Supreme Court. Although it didn't really go any. I mean, it was interesting. He raised it, but it didn't really go anywhere. So he's hanging in the room kind of thing. I don't know. I think this is 7 to 2. I think Alito and Thomas are just so dug in to support anything that Trump says it's very hard for them now. I mean, those, you know, when you start seeing eight to ones and nine zeros, it's on something that like Trump wanted that the moderates were willing to go along with, like conversion therapy not being banned in certain states. I don't know. I think it's seven to two. Let's just do the count. Katanji Brown, Jackson, Sotomayor, Kagan against the policy, Roberts against, Gorsuch against Barrett, Amy Coney, Barrett against. And the, and then I thought going in, I was like, well, Kavanaugh is a free radical based on the way he handled the questions. I think it's seven, I think it's seven to two. Maybe one of the two could surprise me and slide over and make it eight to one. But under no scenario is there a world where Donald Trump can get to five, can count to five. Because he'd have to, he'd have to get three out of the four of Gorsuch, Kavanaugh, Amy, Cody, Barrett and Roberts. And he's not going to get three out of the four. I'm not even sure he gets one out of the four. And so, and we'll know that at the end of June. Now there's lots of other lawsuits that will involve the Supreme Court, including Donald Trump's mail in ballot thing we'll talk about after our break. But that was a tremendous setback, no matter how you put it, for the Trump administration, as was what we'll be talking about after our break, which is in the ballroom, his royal ballroom. We'll talk about mail in ballots. Judge Mehta allowing finally after five years, a case to move forward about civil damages against Donald Trump. In particular, we'll give you a quick update on something that happened as we were coming on the air with Judge Randy Moss ruling in favor of NPR and PBS against the Trump administration. Maybe if we have time, Karen can talk about her favorite story about Kristi Noem's husband and some dress up games. Now we know why she's no longer in the administration. Hopefully he won't go the way of Cricket the dog. We'll just leave it at that. There's so many different ways to support what we do here on Legal af. I got great new news. New news. New news is in this podcast and my podcast the Intersection are both up for Webby Awards. Last year, Midas's Midas Brothers podcast won the Webby Award, I think for like the best podcast of all time. This one is mine. The Intersection is for best new podcast in news. And the Legal AF with us is up for podcast in news. We made it out of thousands and thousands and thousands of submissions. We had to put together a whole, real, whole thing. We made it to the final five finalists in both categories. And there's two components to it. There's the popular vote. There's a popular award like a People's Choice Award, and then there's the committee award. I really would want. I don't know about you, Carrick. I'd be more elated if we won the People Choice Award totally than some committee. I mean, sorry, committee. I mean, don't take us out of the running, but I really would like to see. So, so here's how it works. Two week campaign ending the 16th or 17th of April, and you literally vote. And we put the links below and you can vote for both or one or the other, whatever you want to do. It'll tell you what the current vote totals are by percentage or by percentage. Right now, Legal AF and the Intersection are both leading their categories. I think we both have over 50%, so. But we need your help. We got two weeks we're competing against these other great podcasts and we need your help. And then if we win, I get to see Karen in New York in May.
- [36:02]
Karen Friedman Agnifolo
How fun would that be?
- [36:04]
Michael Popach
Fun. And other ways, of course, to support what we do. There's an ecosystem that we built here@legal af. It, it's, it's, it, it. The backbone of it, of course, is this podcast, which Karen, I forgot to wish you a happy birthday anniversary. It's six years since Ben and I started Legal Roundup. Five years since we lost. We launched Legal AF so it sort of mirrors the podcast the Midas World five and six years and that's this month.
- [36:31]
Karen Friedman Agnifolo
Wow.
- [36:32]
Michael Popach
So we got that the Legal AF YouTube channel which is going to cross 1.1 million subscribers very very soon. A dozen videos every day. We had the live stream today of the oral argument. The Supreme Court we'll get a hundred thousand will probably be the number one or number two live stream for that particular oral argument out there because people are starting to rely on that channel for that. Some great interviews in the last few days. Jamie Raskin Deputy Director Immigration Project for the American Civil Liberties Union before birthright citizenship. I'm bringing on Attorney General Jay Jones of Virginia to talk about the mail in ballots litigation that the attorneys general are going to be leading, you know and, and, and others and others. And then we've got Legal AF sub stack one begets the next a whole nother universe parallel to the YouTube channel where so it's. There's an overlap but there's some people that live on substack for us and for other reasons and we got 10 pieces of content that go up every day. I just did a lot. I do a live every day usually around noon and we get a thousand or two thousand people to join us and then watch that video. It's really, really fascinating. And then we've got our pro democracy sponsors that Jordy myself put together with me and Karen and Ben and we're going to take a break for them right now. Deleteme makes it easy, quick and safe to remove your personal data online at a time when surveillance and data breaches are common enough to make everyone vulnerable. Look as someone with an active online presence, privacy is really important to me. There's just too much personal information floating around online and I don't have time to track it all down myself. Deleteme does all the hard work of wiping you and your family's personal information from data broker websites. Delete Me isn't just a one time service. 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So go to mackweldon.com and get 20% off your first order of $125 or more with promo code legal A F that's M A C K W E L D O N.com code legal AF welcome back to Midas Touch and legal AF. I'm Michael Popach with Karen Friedman Agnifolo. If the Birthright Citizenship Oral argument wasn't enough to make you giddy than Judge Leon's decision in the ballroom will. I said, watch out. I've been involved in construction cases where judges have ordered a tear down of a building. And just because Donald Trump was continuing to, like, you know, build out that hole and try to bring up the ballroom and get approvals from these groups that he controls doesn't mean that Judge Leon, who I knew had been sitting on a preliminary injunction by the National Trust since early March. And I knew Leon, it's funny, I don't know if he watches the show. So we know some judges do by extension. But I said a couple days ago and in email that there's a vote on Thursday, tomorrow by the National Trust controlled by Donald Trump to approve these plans. It's the last stop. But of course, Trump's ignoring Congress. And I was like, Judge Leon, it's time to issue your, your opinion. And right on cue, yesterday he dropped his 30. His. I love his writing. He dropped his 35 page memorandum opinion filled with exclamation, 18 exclamation marks. Karen, you ever seen a judge use XT and, and the word please with exclamation mark after ridiculous arguments, you can, you can almost hear the eye rolling within his opinion. And what he come, what he came down to is the following, effectively what we always knew. The current occupant of the White House is just the temporary occupant who is a guardian for the property, for the people and for future generations, that the real landlord of all federal property that holds the keys is the Congress. And that just because you take in private money doesn't mean you can circumvent the role of Congress in approving massive construction projects. It'd be no different than if Donald Trump wanted to take a bulldozer or a wrecking ball and tear down the entire White House to put up a condominium with his name on it because, oops, I'm the current occupant. What's the difference? And Judge Leon in his order, methodically crossed off the list all the arguments by Donald Trump. Well, there's a statute that allows me to make repairs. Well, this is not a repair and you still have to go back for authority and authorization. He even pointed out, Karen, that in 2019, the first Donald Trump needed to replace a fence took him nine months. He had to get congressional approval. So he knows when he has to get congressional approval. He just didn't want to do it here. And so the statutes that are about remodeling and, you know, that's about like wallpaper. That's about painting, that's not about tearing down. Now, Donald Trump's tried to flip the script and say that, that the giant hole of the foundation is really also going to house major national security. Like a bunker. Now, there's already a bunker. I'm not outing national security here. There's already a bunker. There's the Presidential Executive Operating center, the piac that's under the White House in a bunker since the 1950s. It's like the panic room for the President. It's where the Situation Room is off of it. That's always been there. And there's. We have bunkers all over the place. We've got, you know, Raven Mountain, where the Department of Defense will go live if there's a nuclear holocaust, God forbid. And then there's another one on the border of Virginia and Maryland and Pennsylvania, which is where all civil command will go. And Trump now, because somebody whispered in his ear, Stephen Miller, that the more he talks about national security issues and security issues, then, then judges back off and give him a lot of power. So now he literally said, Karen, that the ballroom is not a ballroom, a grandiose thing with 1500 people to go dancing and do state dinners. Oh, no, it's really, we should see it like a shed that sits over a very elaborate security system that's being built under there. And Judge Leon had something to say about the security of the site, while he's ordered that there be no vertical construction. Right, yeah.
- [45:35]
Karen Friedman Agnifolo
No, he wasn't having it at all. This ridiculous argument. And he basically said, look, A, you don't have statutory authority to do a project of this scale on your own, and B, it doesn't belong to you. This belongs to future generations of first families. It belongs to the people. And you're just the steward of the White House currently, but you're not the owner. And he was very clear about that. And he says, look, you're not allowed to demolish the east Wing of the White House, which he did already, and replace it with a 90,000 square foot ballroom. And Trump tried to say, well, I don't need to get congressional approval because it's being privately funded. And Judge Leon took that argument head on and said, just because you have put together, I think he called it a Rube Goldberg way of getting money put in for this ballroom. It doesn't take away the fact that you need to get congressional approval. This is not an alteration. It's too expensive, expansive, and it's just not happening. And so, you know, he just Shot it straight down. And you know, he said, look, there's historical practice. The White House has been renovated before, but you always have to go to Congress. And that's how you do it. You're not allowed to just do it on your own. You know, the thing that be in my bonnet in this case is the fact that Trump tore down the East Wing and just put a wrecking ball to it. I mean, there's such, it was beautiful building with a lot of history and there was just no effort to preserve any of it or to preserve it even elsewhere. Right. Give it to others who want to display or have a piece of history or a piece of the White House. He just took a wrecking ball to it and now is putting up this huge, this entire giant ballroom that up until this week, the architectural plans had a staircase to nowhere and was so clearly ill conceived and ill thought out. Much like going into Iran. He just, he takes, he bombs first and then comes up with a plan later. And that's what he's doing here. He took a wrecking ball to the East Wing and now they're scrambling to come up with a plan. And the judges are saying, no, you don't just get to do that. And I think Trump has figured that out, which is why he does things this way. He creates. He does this in so many areas where he destroys first because he knows he's going to be stopped because he knows what he's doing is illegal. And so if he destroys first, then you can't just leave it like that. Right. You have to be allowed to do something. Because if he hadn't asked permission, Congress wasn't necessarily going to do this or give him authorization. Who knows, maybe they would, maybe they wouldn't, but it certainly wouldn't happen as quickly. And I'm glad to see that the courts and judges are putting a stop to his lawless behavior. Even if it's something just like putting up, you know, destroying our White House and putting up a garish ballroom. I'm glad to see that they're saying, no, the rules apply to you too. And that's what I think Judge Leon made very clear here. Yeah.
- [48:47]
Michael Popach
And I think if Donald Trump, and I've seen the clip of Donald Trump saying, oh, I don't think it's that bad because he said, for national security purposes, we can continue to construct. That's not what the order says says. What the order says is you have a big giant hole and if you need to secure the hole and the construction site, you know, so that people can't like jump on the tarp and end up in the White House. Go ahead. But he, but he made it clear in, in a footnote, right. In the order that there is to be no vertical construction, no improvement of the site. Secure the site. Sure. Improve the site. No. So Donald Trump, you know, either because he can't read or because he, he purposely misinterprets it for the American public, which makes him look weak again, said in a while he was signing the, on the mail in ballots and a bunch of other things that he was signing. He said, oh, I, I think I can continue to build. We're building this with, you know, drones, drones and bulletproof glass. He starts outing national security secrets about how they're built, how they're building the, the building. That's not the point of the order. Now the judge gave him a stay to give him time to give Trump time to go. And they've already appealed to the D.C. federal Court of Appeals and will there's a notice of appeal. I'm sure he's going to be seeking a stay there. We'll see. It's really going to turn on which judges end up on the panel, the three judge panel. If any of the Trumpers get out there, like Katsis or Rao, they'll be, if there's two of them on there, God forbid on the panel there'll be a stay. If there's not, and it's like your normal panel, you know, like Millet and Pan and, and a few of the others, then I think he's not going to get his stay. And if he wants to lob another hand grenade into the United States Supreme Court and argue, I gotta build my ballroom now, even Judge Leon says I'm not here. You have a. Here, I'll read it. Exclamation marks and pleases and all. Conclusion, page 34. Where does this leave us? Unfortunately for defendants, unless and until Congress blesses this project, construction has to stop, exclamation mark. But here is the good news. It's not too late for Congress to authorize the continued construction of the project. The President may go at any time to Congress to obtain express authority to construct a ballroom or to do so with or without private fund, or do do so with private funds. See, his position is you're going to do with private funds. You still have to have congressional oversight over the project and approval. Indeed, Congress, Judge Leon wrote, may even choose to appropriate funds for the ballroom or decide some other funding scheme is acceptable. They need to bless it. Either way. Congress will thereby retain its authority over the nation's property and its oversight over government spending. The national trust, that's the plaintiff, its interest or constitution, its constitutional interest in lawful process will be vindicated and the American people will benefit from the branches of government exercising their constitutionally prescribed roles. I love his last line. Not a bad outcome, that exclamation mark.
- [52:00]
Karen Friedman Agnifolo
I agree. And the crazy thing is the Republicans control Congress, so there should be. I don't see why they can't get this passed. I mean, just go, go do it the right way now.
- [52:12]
Michael Popach
It's a terrible, terrible scar on the Capitol. It's, it dwarfs the other side, the east, the West Wing. It blocks the view of the White House to the Capitol, which is exactly what the, the architect for the, for D.C. i think a guy named Le Petit, what he envisioned which you know, to symbolize the co. Equal branches of government and checks and balances. No, forget it. Now it's just a giant ballroom. You know, it's, it's, it's a White House attached to a giant ballroom instead of the other way around. Now we can fix certain things in the future. Let's be frank. Many of the things that Donald Trump is putting up, we're going to be taking down it. But what a waste of time and money to have to do it. Chisel off all those, all those letters off the Kennedy center, you know, trash all his dollars with his signature on it, you know, tear down the Arc de Triomphe or whatever he's building or if it hasn't been built yet, you know, give back the Air Force One from, to Kuwait. I mean it's gonna be a lot of work that I think the American people are gonna be in favor of in getting rid of the scar tissue that Donald Trump is generating while he's a short term president. It.
- [53:24]
Karen Friedman Agnifolo
I agree.
- [53:25]
Michael Popach
I think so.
- [53:26]
Karen Friedman Agnifolo
What a waste.
- [53:27]
Michael Popach
But what a waste of money. But you know, no more waste than Donald Trump. I don't know if you saw the stats coming out that tax receipts from corporations based on the big tax cuts in the big, big beautiful bill, $70 billion less tax receipts from companies. Companies are paying $70 billion led by Meta. I think they're paying like 20 billion less based on the big beautiful bill. You know, that's not helping you and me to lose that $70 billion tax receipts. You know, Donald Trump just gave $1 billion to a French company to stop, to stop them from building a wind turbine project that they, that was approved because Donald Trump doesn't believe in alternate Energy because he's in the back pocket of big coal and big oil.
- [54:09]
Karen Friedman Agnifolo
I mean, imagine paying a billion dollars for something that you're not going to get, for something you're not going to see. You're basically paying someone to not do work. We were going to get a wind turbine that was going to produce electricity. That's what the billion dollars. That's what the money was spent on. And he's going to pay a billion dollars to not get that. I mean, it's just so wasteful.
- [54:29]
Michael Popach
So, yeah, I mean, he'll say, well, I'm getting 16 billion in TikTok money for the. You know, he'll have all sorts of. You know, all sorts of. While, you know, while we came on the air. Elon Musk, who's effectively in charge of the securities and Exchange Commission these days, he just announced he's going IPO initial public offering to take SpaceX public. They think it'll be the largest public offering in history at $80 billion, 90% of which is going to go into Elon Musk's pocket.
- [54:58]
Karen Friedman Agnifolo
Wow. Incredible.
- [55:00]
Michael Popach
Talk about a return on your investment. He put up $250 million of his money to buy a presidency, and look what he gets in return. Yeah, billions in contracts and an $80 billion IPO. Know, just totally crazy. But, but the ballroom case is a good one. And everything that's wrong fundamentally about the Trump administration, I think is embodied in the Golden Royal Ballroom. So any setbacks to it, I think is a good thing for democracy. One quick thing before we take our our last break. As we came on the air, ran Randall Moss. Randy Moss, the other one, not the football player who's a longtime federal judge in D.C. has ruled in favor of both, both National Public Radio and Public Broadcasting Systems, pbs. And that the funding cuts by Donald Trump, you know, the ones he brags about. I'm reshaping the landscape of media. It was ultravare's against the Administrative Procedures Act. And just like a separate judge reinstated Voice of America and said everything that what's her Face Lake, Carrie Lake did, was illegal, illicit and unconstitutional. They got to fix it. You know, you have yet another judge standing up for the democracy and for free speech because that's the only reason PBS and NPR were being canned, because Donald Trump didn't like the editorial slant. I didn't even know they had a slant. I'm sure if you really listened. But, like, does Terry grow? Like, I don't even know what Terry Gross's politics are or any of the shows and that's, that's probably a good thing, but that's a good decision. I'll do a deeper dive on that on the Legal AF YouTube channel. But we've got on this holiday edition of Legal AF YouTube channel so many ways to support what we do. We got the YouTube channel for legal AF, a dozen videos every day, every day, seven days a week at the intersection of law and politics and, and the rest. That's. If you want to become a subscriber there, that helps us. We want to get to 1.1 million over the weekend. We're so, so close. Legal AF substack, whole nother universe you should go check out. We got another eight or nine pieces there in Commentary, live reporting. I literally do a live show at lunchtime and get a couple thousand people to join me there on breaking news. Become a member on Substack. And then we're up for the Webbies. Yes, yes. I'd like to thank. To make my mother. You've got the Webby Award for the best podcast, People's Choice version for us. I think, I think we're up for both awards. Intersection, Best new podcast in news. We made it to the final five. And the Legal AF for best podcast in news made it to the final five. Voting is open for two weeks. Free voting. The links are below. With your help, we'll take the coveted People's Choice version of the Webby Awards for both podcasts. And then I get to see Karen in New York for the award ceremony, which would be fantastic.
- [58:03]
Karen Friedman Agnifolo
That would be amazing.
- [58:04]
Michael Popach
That would be amazing. And then of course, we've got our pro Democracy sponsors and here's another word from them. Can we talk about the most underrated organ in your body? Your liver. It's doing more than 500 functions every day, filtering unwanted elements, supporting digestion and helping with energy. So giving it daily support. It just makes sense. Dose for your liver is a clinically backed liver health supplement. This isn't just another capsule or powder. Dose is a liquid supplement taken in a daily 2 ounce shot and it tastes like fresh squeezed orange juice. Dose cleanses the liver of unwanted stressors that's slowing your liver down and promotes daily liver function so your liver can do its job. Zero sugar, zero junk, zero calories. Your liver is your body's filter, handling energy production, digestion, fat metabolism and vitamin storage. When you drink dose daily, you're going to reduce sluggishness, get rid of those midday crashes, support your metabolism and even aid your daily digestion. Plus, it's got real results with two double blind placebo controlled studies showing its positive impact on liver enzyme levels. Ready to give your liver the support it deserves? Head to dosedaily co/legal AF or enter legal AF to get 35% off your first subscription. Your body does so much for you. Let's do something for it that's D O S E D a I l y.co legal af for 35% off your first month subscription this is something I wish more people talked about sooner and it runs in my family. High blood pressure. It doesn't always feel urgent, but it affects half of all adults and it's the number one risk factor for mortality. It doesn't hurt, it doesn't warn you. It just quietly builds over time. By March New Year, momentum fades. Life gets busy, but blood pressure doesn't take a season off. That's why I've been learning about 120 life, a once a day functional drink made with ingredients that help support healthy blood pressure. It's not a pill, not a stimulant, and not some trendy wellness gimmick. It tastes great, it's refreshing, and it's made from a blend of super fruit juices with a powdered version that has just one gram of sugar. This isn't guesswork. Grab a home blood pressure monitor, drink 120 life daily and check your numbers. Many people see improvement in as little as two weeks. Go to 120life.com that's 120-life.com and use my code legalif for 20% off. Try it risk free for two weeks. If your blood pressure doesn't come down, you get a full refund. Go to 120life.com and use the code legalif to save 20%. Don't wait until next month. Nothing to lose except high blood pressure numbers. Go to 120life.com and use my code legal AF for 20% off. These statements have not been approved by the Food and Drug Administration. This product is not intended to diagnose, treat, cure or prevent any disease. Welcome back to Legal af, the podcast. Let's dive into mail in ballots. Donald Trump's been jumping up and down, stamping his feet, throwing food from his high chair about voting since he got elected and wants to make it hard on Democrats and Independents to vote. So he's threatened the Senate about the Save Act. Save act is dead. Save act requiring you to show citizenship papers with your legal name on it in order to vote as opposed to just signing a penalty of perjury declaration is not going to pass the Senate it because the Democrats have successfully blocked it with the filibuster and there's not 60 votes to approve it. So no amount of Donald Trump threatening people, I'm going to primary you. I'm going to run against you. First of all, people don't think a Trump endorsement is worth the paper it's written on any longer. The Democrats have won 31 races where they flip the seats of Republicans red to blue, including in Donald Trump's front yard, backyard and home state in the last three weeks. And that is not. So his endorsement is not really worth, you know, worth much. And they know it. So that's not going to happen. So Donald Trump threatened us, remember, about three weeks ago, Karen, he said, I'm going to issue an executive order, federalize the national elections against the Constitution, which provides that states, not the federal government, run federal elections for good reasons. Another check and balance by our founding fathers who did not trust the newly created federal government. And many of the states were big states rights states like on the Virginia, and I'm Maryland and I'm North Carolina and all those and all. I know I'm using voices for states, but I did
- [62:45]
Karen Friedman Agnifolo
crack me up.
- [62:47]
Michael Popach
They were like, we don't want a federal government. And so it was hard to get them in the first place. So certainly letting them run their own election was not something they were happy about either. And so that's why that's not what the Constitution says. But Trump. So what did Trump come out with? Oh, what can I do? Well, two weeks ago, the Supreme Court looked like it's going to side with him on mail in ballots to the extent that there's not going to be a grace period anymore that states were giving for the receipt of mail in ballots that were postmarked by the election day. Some states gave five business days or three days or whatever it was. And I don't think the Supreme Court's going to go for it. I think they're going to say, you can do mail in ballots, but you got to get them in. So they should. If they don't show up on election Day, they ain't getting counted. And then Donald Trump took it one step further. He said, I got a better idea. I put the Postal Service in charge along with the Social Security Administration. What could go wrong when you put those two groups together? So what was your take on his new proclamation, his new executive order, and what attorneys general and other interest groups are doing already to challenge it in court?
- [63:50]
Karen Friedman Agnifolo
I mean, first of all, this whole thing just is so ridiculous. I Mean, you know, when you think about it, you're going to trust a list created by Social Security and the post office to determine whether you can vote or not. It's just, it's got so many flaws. I mean, with identity theft and other issues, you know, there are people out there who are using other people's Social Security numbers. And besides, you know, we know that that system is not for foolproof. And so that, that just seems like something that doesn't appear to be. It's going to take away a lot of people's eligibility, not because of substantive reasons, but because of reasons that are not within their control. And how are they going to fix it? How are they going to follow up? How are they going to challenge it? Right, that, that it just has a whole, a whole logistical problem there, number one. Number two, the irony is because Trump just voted by mail, right? So it applies to, doesn't apply to me, but it applies to thee. That's his whole thing. And you would think that he wouldn't do that because it's just a bad look. But mail in ballots is a practical thing that a lot of people avail themselves of like him. And so I do think that it doesn't make any sense whatsoever. And frankly, if he controls the post office, who's to say he doesn't just sort of say, hey, why don't you slow, you know, don't deliver the things that look like ballots, right. Cause he wants him to have barcodes and special envelopes and all of that. You know, I don't trust him to encourage the postal service to make sure that even if people get them in on time, that they get delivered on time. So because he's so against mail in ballots. And so the whole system, I think, is very flawed. And you know, lots of experts and election officials say that this order is unconstitutional because as we all know, states, not the president, runs elections. That's actually in the Constitution, right. That the states get to come up with the time, place and manner of the elections and manner, meaning how they're done. And so this is not something that is supposed to be up to the President. This is something that the states are supposed to do. So I think it's going to be ruled unconstitutional. It's also getting very close to the midterms right to do something like this. And how would they logistically even do something like this without interfering with people's rights to vote? And so I think it's got a lot of problems. But of course, we know that states are, if they haven't already, they plan on filing lawsuits, and that's what they're going to do because this is something that's squarely in the control of the state. So, you know, we just heard, you know, a couple a week ago, the Supreme Court, you know, we listened to oral arguments. We covered it on Legal A. I've heard the case of Watson versus the Republican National Committee about whether states can count mail in ballots that are postmarked by Election Day, but arrived afterwards. So I think that's going to be really, I think it's gonna, I think that's going to have a big impact on how things go. But if the court rules against the Mississippi case, in that case, states might be barred from counting ballots that arrive after Election Day, even if they were mailed on time. So there's just a lot that's up in the air right now. And I think the one thing the Supreme Court didn't love is that different states have different rules and that Election Day means something. And what is Election Day? But I think the thing that, that Trump is not going to be allowed to do, which is to nationalize or federalize or control, control this. So it'll be really, you know, really interesting to see how this goes. But the sad thing, the scary thing, is just one more example of Donald Trump trying to take away people's right to vote. And so, you know, I'm not going to vote by mail. I don't want there to be any chance that my vote doesn't be counted. Counted, you know, so I'm going to show up, I'm going to go to my polling place. But, you know, there's a lot of places that can't handle the influx of people who are, they're used to, states are set up in a way that they're used to having a certain amount of people show up and a certain amount of people go by mail because some, some people don't live near polling places. Right. Some people live 100 miles away in
- [68:30]
Michael Popach
rural areas, able to wait in line or.
- [68:34]
Karen Friedman Agnifolo
Exactly. Or that. Exactly. There's so many reasons why people do it. And states for the midterms have already, they already have their election workers and their volunteers, and they already have spaces reserved at various polling places. And all of this takes a long time to organize. And so if they change up the rules now, I worry that polling places aren't going to be able to handle it or people aren't going to be able to logistically do what needs to be done to get there.
- [69:06]
Michael Popach
Donald Trump thrives On chaos. He wants the chaos that he can point to chaos and counting and balloting and certifying. You know, this, this is an, or this is a group where Stephen Miller and others, you know, According to the Jan6Committee reports, when there was reports of rioting outside of counting centers in Detroit, they were like, good, take advantage of the riots. Like, so this is how the Republicans feel. They need the, the dirty tricks they need to use to get elected. I've been interviewing all 24 of the Democratic attorneys general and they're all in the next day or so going to be filing a lawsuit, at least 20 of them, against the Trump administration on what he just signed yesterday. Here's Nick Brown, the Washington state attorney general, in a quote, pardon me, also reminding us of the success of these attorneys general. It's no surprise that the same man that claims he won the 2020 election and advances nonsense conspiracy theories now wants total control over elections. But he has no authority here, a fact already reaffirmed by the courts in this administration's ongoing attacks on the right to vote. In January, we successfully overturned a previous executive order by the president attempting to usurp the role of the states in Congresses and elect in Congress and elections. The law is on our side. There's nothing to support the election denier in chief's voter fraud claims. And we are once again proud, prepared to defend the rights of his state and every of the 24 attorneys general that are Democrat, everyone has issued a statement almost identical to that one. And they are working, if we listen closely, we can hear the wood being sawed. They are working feverishly to get that lawsuit. I wouldn't be shocked if it gets filed on Friday or if not before. And I'm going to have Attorney General Jay Jones from Virginia join me to talk about it. I'll have Rob Bonta come on and talk to me about it. And I've got, I've got the Colorado attorney general who's also going to be joining this week to talk about that and some other things. So I feel pretty good about the strength of the argument in opposition to Donald Trump of that of the Constitution. The role of the states that is preeminent. It's not, it's not, not co extensive. It's not the states and, or the, the executive branch. Executive branch has no role whatsoever. And speaking of no role whatsoever, let's bring, let's round out our show with Judge Maida's ruling in favor of the Jan6 civil damages case against Donald Trump. Now, it's hard to Believe we're still talking about this case, but it's gone. It's been like a yo, yo. It's going up and down to various appellate courts. Some things Donald Trump's appealed, some things he hasn't appealed. We've gotten rulings four years ago from the D.C. district Appellate Court in a case called Blasingham, which we talked about three and a half years ago. Then we had the criminal immunity decision. This is going to allow us to talk to our audience about the difference between civil lawsuit immunity and something called the Westfall act and criminal immunity, which is Trump versus the United States. And we're only talking about a civil case here. They're suing for damages for all the emotional and physical suffering of this group of people, Met police, Capitol Police, members of Congress, staff and the rest. Judge Maida has been very, very thoughtful about this case. But now we're at the moment of truth, because Donald Trump filed a motion for summary judgment, which, in effect, Judge Maida has denied. It all has to do with Donald Trump's speech on the Ellipse, in which, according to the plaintiffs, it incited violence. We all know it did. He wound them up knowing that they were armed. He was told that they were armed and dangerous. He said, they're not dangerous against me. They're my people. Drop the magnetometers, let everybody in. And then he whipped like a weapon. He wound them up and fomented them, and then he pointed them at the Capitol and he said, I'll be there with you. We gotta fight, fight, fight. I'll see you there. And they said, yeah. And then he went in the opposite direction of the White House and sat while his followers burnt down the Capitol,
- [73:20]
Karen Friedman Agnifolo
throwing ketchup at the wall.
- [73:22]
Michael Popach
Throwing ketchup at the wall of the dining room for those derelict. Those derelict hours. So the focus on for Donald Trump, his argument was federal employee doing a federal job. I get what's called Westfall immunity, which is official act immunity for civil cases. You can't sue me. I was just doing my job. And you define the job stretched to its outer boundaries, and there's a case called Westfall, and that's why it's called Westfall immunity. And if Westfall immunity applies, then the Department of Justice and the United States of America step in. They say, he's out, we're in, we're sovereign, and you can't sue us. That's how that works. The other argument that Trump made besides Westfall immunity ends the case, is that he's got a First Amendment right. That it. So there's a First Amendment element to this hate speech, this insightful inciting a riot speech. Leave that. Let's leave that for a minute. And then the third argument that Trump made is that I was just doing my, this is more of the Westfall immunity. I, I was, I was, I'm not, I wasn't candidate in chief. I was, I was commander in chief and I was giving instructions to Mike Pence certify that election. And I was communicating with the people something of a great national importance. And I get to do that on the Ellipse. And it was an official White House event, which it wasn't, and therefore I'm covered. Right. And Judge Ma broke it down. He said on First Amendment, Karen, they, he certified it to go up on appeal. He found the First Amendment doesn't apply, but he understands it's an important issue. So it's going to go up to the appellate court on the application of, of the immunity, official conduct immunity. He said there are many things that Trump did that day that are outside the outer boundaries of official conduct immunity. He doesn't get to, because he was campaigner in chief, because he had no role in counting the ballots or anything like that. And the fact that he mentioned Mike Pence doesn't convert it into something else. And so. And on West Fall, he denied the Department of Justice in the US and their opportunity to come in and replace Donald Trump as the party to end the case. So First Amendment will go up on appeal, but the case now moves forward towards a trial subject to a ruling on First Amendment. I think this ends up back at the United States Supreme Court, don't you?
- [75:47]
Karen Friedman Agnifolo
Yeah, of course. I mean, this is their opportunity to talk about immunity again. Right. If they want, you know, because Trump could appeal the other two issues. Right. And in other words, if Judge Mehta only certified one of the issues, Trump could try to appeal the other two issues as well and send the whole thing up to get the court. Whether they allow that or not is a whole other story. But I think that this is something that ends up in the Supreme Court where they will talk about whether there's civil immunity and what the First Amendment means and whether or not this was part of his official acts. And, you know, immunity is tricky because they granted him such vast immunity in the criminal context, but were silent as to the civil context. And so it'll be interesting to see how they analyze this, especially now that they see what a monster that Trump versus United States and giving him this wide criminal immunity has created. If they have buyer's remorse, this will be an opportunity for them to not only fix that, but they can clarify what they could say. This is not official criminal immunity, because it's different, because in that case, these things are immune. They could clarify and rein themselves in a little bit, even though it would be considered dicta, because that's not the issue here. And here they could address this question about civil immunity as well as the First Amendment right and whether or not this was speech versus not all speech is protected by the First Amendment right when it becomes conduct. Like what Trump did when he didn't just say, I believe this, and this is how I, this is what I think he actually engaged in conduct. His speech, speech went from just pure speech over to conduct when, as you said, he sort of pointed and shot and it was like loaded a gun and shot it towards the Capitol by sending armed followers to the Capitol and directing them to do what they did. Right. And so I think he loses even on all of those grounds, even in this Supreme Court. That would be my prediction.
- [78:12]
Michael Popach
Oh, I totally agree with you. I don't think that there's any appetite even for the Supreme Court to give him civil liability, having already given him criminal defense, criminal immunity. I think that they're, they may find that it's a horse of a different color on civil damages, which does not implicate liberty interests. But like you said, it's another opportunity for them to get under the hood and start monkeying around under their hood there, you know, with immunity decisions and maybe roll back parts of it that wouldn't be bad. And if they're having any second thought about how Trump has interpreted his immunity and how it's empowered him, this, this might be a good opportunity. Interesting. I don't really know why. I'll dig in for the next time around. But it's interesting that Trump never appealed the Blossingham decision. So it is, as Judge Maida pointed out, is the prevailing law in the federal courts in D.C. which, which defined and set up a test for when a president or somebody can be sued for civil damages even. And it was done before the immunity decision, but even under the immunity decision, it, you know, as they smartly pointed out, Judge Mehta pointed out, it doesn't impact his analysis. He has to follow blasing him. But I'd love to find out why Trump didn't appeal blasing him up to the United States Supreme Court. We knew he didn't do it at the time, but I don't if they just lost track or they made a strategic decision that that was a. They've taken loser arguments the Supreme Court before. I just, I would like to know, you have, do you have any speculation as to why they didn't appeal that?
- [79:49]
Karen Friedman Agnifolo
I can't pretend to understand why this administration does does what it does. So no, I don't want to speculate at all about that.
- [79:56]
Michael Popach
Yeah, agreed. Agreed. That's our whole show speculating. I'm glad our audience is here. Happy, happy Passover for those that celebrate that we had a fantastic show. Hopefully you found it fascinating. A marriage of a TED Talk in a law school class come to life with Karen Freeman McNiffalo and Michael Popak. Thank you for being such fervent supporters of all that we do here for the five, six years we've been on the air. Webby Awards vote below for the Intersection and Legal af. Voting closes in two weeks. We're in the top one right now for both awards for top podcast. With your help we will, we will prove victorious and on Legal AF YouTube channel. Now is a great time to become a member and vote grow us to get to 1.1 million subscribers. Legal AF substack, exact same thing and of course support for this podcast. You can find it wherever you get your audio podcast from. We're always in the top 50, 75 or so of audio podcast. We're in the top anywhere between the top 20 to 50 in video YouTube podcasts week in, week out. All because of the support of our audience and we appreciate each and every one of you and love to have you and love and love being your podcast commentators. Karen, last word on this holiday Wednesday.
- [81:18]
Karen Friedman Agnifolo
Happy Passover, Happy Easter and Happy holidays to everybody. This is a really, really big solemn time that a lot of people celebrate a lot of traditions and holidays. So I just want to wish everyone a wonderful time with your family, with your loved ones. And just thank you so much for joining us every week and getting us to where we are. It's just so great to be here.
- [81:46]
Michael Popach
Absolutely. Thank you all for being here. Shout out to the Midas Mighty and the Legal AA efforts. Ryan Reynolds here from Mint Mobile. I don't know if you knew this, but anyone can get the same Premium Wireless for $15 a month plan that I've been enjoying. It's not just for celebrities. So do like I did and have one of your assistant's assistants switch you to Mint Mobile today. I'm told it's super easy to do@mintmobile.com
- [82:17]
Karen Friedman Agnifolo
Switch upfront payment of $45 for 3 month plan equivalent to $15 per month required intro rate first 3 months only, then full price plan options available, taxes and fees, extra fee, full terms@mintmobile.com.