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- [00:00]
Commercial Narrator
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- [01:03]
Michael Popak
You're on the midweek edition of Legal AF top rated law and politics podcast in America. That's all because of you and our fervent audience and support. We do our part expressing our First Amendment rights on this side of the microphone and try to protect your First Amendment right to be heard as well. Got a long list of things we've curated for you today on this full length podcasts with Karen Friedman, Agniphalo and Michael Popak. All things National Guard We've got an interesting, really almost a message from the majority of the 29 judges of the 9th Circuit. Just hours before Judge Immergut in Oregon started her trial about whether to have a permanent block of Donald Trump's use of the military on domestic soil or use of the National Guard in Portland, the ninth Circuit gave her a little bit of wind at her sail with a ruling yesterday. Trial started today with some, with some just eye popping testimony, particularly federal officers. And this will tie into a Supreme Court order from today that was very interesting about the 7th Circuit for the 7th Circuit case. But federal officers working for ICE firing their weapons at local law enforcement, you're not, I mean this is, I mean you're not supposed to fire pepper balls and tear gas at local law enforcement that are trying to handle the situation on the ground and then claim it's totally out of control. And that was the first day of testimony with Judge Immergut. Talk about the ninth Circuit. And we have to talk about the seventh Circuit which covers Illinois because the supreme court after about 10 days finally figured out we need more briefing because there was an appeal of the 7th Circuit's decision that Donald Trump could not mobilize the the National Guard in Illinois on the streets of Chicago, nor use the statute that allows for it. What we call 12,406. They took an appeal, went up through Amy Coney Barrett, got referred over to the full court and we've been waiting around. In fact, I start all my hot takes now or any kind of like podcast like the Intersection where I talk about the National Guard. Like, any minute now, I might be jumping on Substack live and telling you that the order from the Supreme Court has come out and it has a cascade effect through all these other cases. And I was thinking they were writing, writing, writing, working on dissents. And we're no, they still need somebody needs an answer to a question. And we'll talk about what the question is, why it's so bizarre and how it could impact the cases at the ninth Circuit. Lindsay Halligan, the novice prosecutor. See, I love having Karen on with me as the as as co host today, as always, because she's a real prosecutor in real life. She was a real prosecutor in real life, not this insta prosecutor. Just add water in Lindsay Halligan and she's doing things. I'm sure when Karen takes over, I'm sure there's things that she's never even just I. Her eyebrows would float off her head. Karen, I mean about the things that Lindsey Halligan has done on the record conversations through a signal disappearing app with a reporter about a, about a live case that's gotten her into trouble and several motions and lawsuits brewing over it. And while all that's going on, there's like a case, there's a criminal case where two defendants named former FBI Director Comey and New York Attorney General present Letitia James, have filed motions to get rid of Lindsey Allegan because she was illegally appointed. Those motions are being considered by a South Carolina judge. Judge Curry will tell you why in a minute. And Judge Curry issues an order in which in one paragraph, I think it just, it just, let's just put it this way, it changed the weather in the room inside of the Department of Justice. And Lindsey Halligan should not be sleeping well at night after. After what Judge Curry has ordered be be presented to her chambers by Monday. Interested yet? I'd be. I know the story and suddenly I'm very interested in that story. As other courts and really every court that has looked at the issue, every court that has looked at the issue has rejected Donald Trump illegally naming U.S. attorneys or interim U.S. attorneys or second interim U.S. attorneys. We have the Middle District of Pennsylvania bouncing Alina Haba up at the Third Circuit, waiting on that decision, that's not going to go well for Alina Hava, California federal judge, bouncing the US Attorney there, bouncing the US Attorney in Nevada that Donald Trump appointed. And now all eyes are on Lindsey Halligan. The dam is broken, everybody. We'll talk about what happens next. Then we've been. It's not, it's not. The headline should not be Donald Trump late night appeals his 34 count felony conviction in New York. We knew that was coming. They've been talking about that for the last six months. And I read the brief. There's nothing in it. It's all shop worn, hackneyed arguments that have been, have been argued and rejected before. But we're talking about the law firm that brought the suit. And I want to hear from Karen, who's been on, I'm sure through her office, the same office, Manhattan district attorney's office, when she was there, been on the other side of appeals. And we'll talk about what she sees in the appeal, including the judge. Judge Rashawn should have recused himself because his daughter has a job. This is 2025, everybody. Wives and daughters work, just not in MAGA world. And we'll talk about the appeal and let's, let's get it. God. I watch Ben do a lot of his inter, a lot of his podcasts now, whether it's with me or Michael Cohen, it's always the same. There's a lot to talk about. Let's jump right in. But you and I like to do a little bit of a kibbutz, a little bit of a wind up and all that. How are you? Let's start with that.
- [06:56]
Karen Friedman Agniphalo
I'm great. I'm great. My mother just moved across country and she's now living in New York, which is wonderful. And so I'm you. Yeah. So it's all good.
- [07:05]
Michael Popak
It's all good. Are we gonna see appearances of Grandmama sometime on the show?
- [07:10]
Karen Friedman Agniphalo
We're not gonna see grandmama on the show, but she is here and it's wonderful having my mother here.
- [07:15]
Michael Popak
So I bet, I bet. And you know, I lost my mom, so anytime you could be that close to your family.
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Karen Friedman Agniphalo
Exactly.
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Michael Popak
What, what a, what a joy.
- [07:22]
Karen Friedman Agniphalo
And I love that, you know, she's Grandmama. That is, that is what everyone calls her.
- [07:27]
Michael Popak
Just doxed your mother.
- [07:29]
Karen Friedman Agniphalo
Okay.
- [07:30]
Michael Popak
My own way. All right, so let's get into the 9th Circuit because it's a can opener that gets us into a lot of different discussions about Donald Trump's abuse of power, his violation of sovereign rights and states rights. And this is all about. This is shorthand, and I don't like to use shorthand because we never know who's joined us. Hopefully, new people have also joined the legal AF community here, Donald Trump, to embarrass and flex his muscle against blue states. Apparently, they're the only ones where crime is going on. Nothing's going on in Alabama. Nothing's going on in Mississippi. Nothing's going on in Texas. It's just going on in blue states, everybody, if you can believe that.
- [08:08]
Karen Friedman Agniphalo
Blue cities in red states, like Memphis or like what? Like Memphis. Blue cities in red states.
- [08:14]
Michael Popak
Highest murder capital of the world, I think, is Memphis right now. Yeah, exactly. Ignore that. Just go after the political critics of Donald Trump. JB Pritzker in Illinois, Gavin Newsom in California. Let's take on Kathy Hochul in New York. Let's threaten to go after Josh Shapiro in, in Pennsylvania. What do these people have in common? Oh, I don't know. The color of my shirt. They're all blue, maybe. So in order to do the extraordinary thing, because this is an extraordinary thing for a president to commandeer the state militia, the National Guard, and put them on the streets of a city, he has to follow the strictures and the requirements of a statute, 10 USC 124 06, which says you can do it, but there's got to be a foreign invasion or. Forget that. There's no, there's no argument. We haven't been invaded by Venezuela or any other country. Not that, not the last time I looked. Now you're left with the other components of it, which is there's a rebellion. And Donald Trump's like, yes, there's a rebellion. I saw it on TV. Smoke, flashbacks, pepper ball sprays, 20 people dressed like chickens. There's a rebellion. All right. They're really not arguing rebellion, even though they keep talking about it. It's rebellion or the third component, the third requirement, which is that there be. And this is where the Supreme Court seems to be focused on their new order today. The president, with the use of his regular forces, cannot execute the laws that he is constitutionally sworn to uphold. And what does that mean? Meaning with his regular, with regular forces. Now, look, his regular forces are obviously ICE and Customs and Border Patrol and all these badge wearing, gun wearing, you know, riot gear wearing, pa Pepper ball shooting, tear gas shooting troops. There's also local law enforcement because the Posse Comitatus act and other provisions by our founders and framers say you're not allowed to use for domestic law enforcement purposes, the military. So you got that problem Kind of Posse Combata friction. And what we're watching on the streets is not a law enforcement or police that are outnumbered or overwhelmed by First Amendment protesters, some of which can get violent at a moment, but they know how to handle that. Listen, you and I were in New York during not, I don't want to call it Black Lives Matter because that suggests that the legitimate Black Lives Matter movement was violent. It wasn't. There were people that got, who used it as a front to loot and do other destruction. And the police were trying to deal with it, sometimes successfully, sometimes not so successfully. But there are techniques and I'm sure you're familiar with them in your former days as a prosecutor about how you handle civil disobedience. That gets that, that runs amok, that runs into a little violent moment. And so, but that's not where you then, oh, I get to take over your National Guard and put them on the, on the streets of, and violate your sovereignty in the 10th Amendment. So two cases broke out, really three, Oregon, California and Illinois. Oregon and California happened to be under the same appellate court, the ninth Circuit sitting in San Francisco. And I've had the pleasure, although I lost, I had the pleasure of arguing before the ninth Circuit in San Francisco in that courthouse. And as we've talked about, you know, this is like a TED Talk meets a law school class on legal af. Some people are five years into their, into their degree program. It's like a PhD at this point. Most justice at the appellate level is done by three judge panels. And you know, that's what you get. And you don't get upset. You get a three judge panel ruling and you're done. 99.9% of all appellate rulings are three judge panels. They're not on bonk the way the Supreme Court is, meaning all the judges, except you get to request in circumstances under certain conditions to have the entirety of the, of the panel of the judges of that circuit hear your case. Instead that throws out and vacates the lower the original three judge panel decision and leaves it in the hands of some other large, much larger group. Some circuits, it's like the entirety of the thing. And other circuits have their own rules. In the 11th Circuit, 29 judges, a third of them are trumpers. If a majority looks at the decision of the three judge panel and says, yeah, I'm not sure they got that right. Because if they got it right, they'd be like, yeah, I may not be exactly the way I would have analyzed it. That's close enough. But when they look 15 out of 29 apparently or more just voted yesterday, the day before the trial that this judge or the judge in Oregon is trying. Judge Imbergut said, yeah, we want to, yeah, we don't like the decision of the two Trumpers and the Clinton appointee and we want to do it with a larger group. So now there's going to be an 11 judge on bug panel, 10 randomly selected, including from the group of the three that just voted, that just issued their decision on October 20th. And the chief judge, they get together, new briefing, new oral argument. What happens to the prior decision? They vacated it today with an order, meaning they tossed it, which reverts back to the judge, Judge Immergot's temporary restraining order. There's two of them and we got a trial today. So take it from there. Karen, talk about what you've, what you, what you've picked up from the ninth Circuit's decision en banc today to toss the prior decision and what it means for Judge Immergut and then we can tie it to the Supreme Court weird decision today for additional briefing.
- [14:08]
Karen Friedman Agniphalo
I mean, clearly, you know, you said it perfectly that they want to hear more information. They don't like that what the three judges did. And so they want full briefing for this panel and they're going to rule on this substantively. I think they realize the gravity of what's going on here and they want and they know that they're making law for the rest of the country. And so I think they realize the importance of this. And what's happening also in Illinois. Right. We're going to talk about that what's happening in Illinois. And it's going to the Supreme Court. And you've got the issue basically it's clearly going to the Supreme Court who's going to rule on these issues and they're going to look very carefully at them because not only is the United States military and National Guard being turned on the civilians and the citizens of this country, which you're not supposed to do, obviously it's clearly political and going just to blue states, as you said. So I think they realize the moment they're in, this is not just about this case, it's about this issue and it's so important. And so I think they're taking it very seriously by doing this en banc ruling. And I think they're going to be very thoughtful about this and brief it in a way that's, that's helpful for both the lower court judges, but also the Supreme Court where I Think they see this inevitably going or at least one of these cases inevitably going.
- [15:25]
Michael Popak
So let's turn from there to. We'll tie it back to the seventh Circuit in a minute. Let's talk about Judge Immergut. She's got to be feeling pretty good starting her trial today because the within hours of the start of the trial. The. Because, you know, I've never been a judge but I've hung around with enough of them. They are human beings. They don't like to be reversed or blocked, especially when they are, are doing their level best with tremendous rigor to get it right at a trial court level. And she's known to get it right. She's not somebody that gets reversed. She's a Trump appointee, former U.S. attorney for Portland, former assistant U.S. attorney from LA. She doesn't like to get it wrong. And she got b, you know, she got her hands slapped, her knuckles wrapped by the three judge panel.
- [16:15]
Karen Friedman Agniphalo
And why don't you explain, you explain to people why there's a trial at the same time as an appeal. They're the same issue, but separate issues. Right. So why don't you explain because that might be confusing for some people while since this is being, this very issue is being appealed in a way, how is there also a trial going on there?
- [16:32]
Michael Popak
There's two ways appeals can happen. Either at the end of a case where there's nothing else to do for the trial judge and that is generally when appeals are taken. That said, that's just you've exhausted your, at the trial level, all that you can do and you take it up on appeal. So there's nothing for the trial court to do, but then to sit back and see what happens to their ultimate ruling or the jury's ruling or whatever. Then there's something called an interlocutory appeal or an emergency interlocutory appeal, which is during the ongoing proceedings. At the trial court level. There's an issue that needs to be taken up at the, at the appellate level. Either the first level appeal, which is the district court, sorry, the circuit court for the, where the federal court sits, or all the way up to the United States Supreme Court. There's only two levels of appeal in the United States. You go your circuit, you know, they're numbered 1 through 11, or you go to the. And, or you go to the United States Supreme Court. If they'll let you. If that's interlocutory, there's still stuff going on below, especially if they're taking it up on a temporary restraining order because along the continuum of stays, you start with, like, the lowest form of stay is the administrative stay, which lasts for hours or a day or two. The judge is like, I got this in the middle of the night. Nobody do anything. I'm staying it for now. See you tomorrow morning. Okay. Next level is temporary restraining order. Next level above that is preliminary injunction. The next level above that at the end of a trial is permanent injunction. And they have similar factors. It's really temporal, like when in the case, you're having this. So right now, because the appellate decision about her temporary restraining order has been stayed awaiting a future briefing and a future ruling by the appellate court, she has no. She has no opposite opinion by her bosses. She now continues as she had scheduled last month. She scheduled this last month to have a trial and evidentiary hearing, three days about the next level of injunction, preliminary injunction. Sometimes you go right to permanent injunction. Like, all right, there's no facts in dispute. Let's just end this case. But she's doing preliminary injunction while her temporary restraining order issue continues to be litigated at the appellate level.
- [18:50]
Karen Friedman Agniphalo
Now, can the record she develops under this trial be used to supplement the. The. What's going on with her temporary restraining order appeal? I mean, it's just interesting to have these things going on at the same time. It's. It's very confusing because there will be more facts developed in the record.
- [19:07]
Michael Popak
You. You. Yeah, you. You would think that justice would demand that. It's hard to supplement your record because this. The appellate court is not a trier of fact. They're supposed to get a cold record that's at that moment in snapshot in time in order to make their ruling. Even if things happen after now, there is a way to open the record and supplement it. It's hard. Pellet lawyers that are good know how to do it. So it's not something you can bank on, but it's something that could happen. But you also could get inconsistent results. She could rule on Thursday, Monday to Friday or Monday. She could rule preliminary injunction. And then the ruling that comes out of the 9th Circuit about her temporary restraining orders, though, would effectively vacate her preliminary injunction finding. Because if they find that her thought process was wrong, if they find that her findings were wrong, and even though she's made new findings, I think you'd have to take another appeal. I don't think the appeal that's going on right now, which is why, frankly, you don't. Appellate courts, and even the Supreme Court does not like temporary restraining order appeals because they understand there's another step. Usually they argue there's no jurisdiction. Like, we'll just wait. What are you, what are you. You're doing your trial in three days from now. Do the trial. John Roberts has said that in prior rulings as the chief justice, he's like, I know everybody's rushing in here all breathless about temporary restraining order, but my understanding is you're doing a trial in four days. Just come back in four days. So, you know, as we said before, the appellate courts reverse engineer all the time. Oh, we don't want to hear the case. We don't have jurisdiction. Oh, we want to hear the case. Oh, we have jurisdiction when it comes to Trump.
- [20:47]
Karen Friedman Agniphalo
They will reverse engineer to get the result they want.
- [20:49]
Michael Popak
They bend over backwards like the two Trumpers that just ruled on October 20th against Judge Immergut. They could have said it's a little premature. Why don't we let the judge continue to develop the record to your point, Karen, and come back. No, no, we have to make a ruling in favor of Donald Trump right now because. Because why? Because the chicken is out of control on the streets of Portland. I don't really, I don't get, I'm not trying to be an ass about it. And there is, you know, I've used video. There is stuff going on in the streets and there are a lot of it is the feds, you know, using flashbags and, and smoke and tear gas. And then Donald Trump looks at it and he goes, oh, my God, the city's on fire. Yeah, the city's on fire because your feds are firing military grade riot projectiles at cops and others on the street.
- [21:34]
Karen Friedman Agniphalo
So true.
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Michael Popak
Yeah. So we're going to see what happens with that. So what's. So she's litigating, she's adjudicating this in the shadow of her bosses at the 9th Circuit. But she's got to be feeling pretty good, right, Kare, that like at least half of the 29 said, yeah, I don't think they got that right. We're going to do this all over again.
- [21:52]
Karen Friedman Agniphalo
Yeah, yeah, exactly. I mean, of course the Supreme Court is, I mean, you feel good temporarily, but you still got to get past the Supreme Court.
- [22:01]
Michael Popak
Yeah, it's like, it's like you party, then you get the hangover. So the seventh Circuit, right, The seventh Circuit, like the ninth Circuit blocked, at least originally blocked Donald Trump and said, you know what, you can commandeer them, you can mobilize them, but you can't deploy them. You can't put them on the streets. And that was one judge. And a second judge, Judge Ellis, which I'll let you touch on, made another ruling about stop attacking journalists, First Amendment protesters and the members of the clergy in the streets with your riot missiles and gear and pepper spray. The fact that she even had to write that order is ridiculous. That got appealed. The one about the troops on the streets of Portland of Illinois got appealed to the Supreme Court, like almost two weeks ago. So why don't you pick up with that? What the Supreme Court has a new order just came out like as we were, as we're on the air. And then we can tie it together with Judge Ellis, what she ordered the Border Patrol guy to do, why they didn't like it.
- [23:00]
Karen Friedman Agniphalo
Yeah. So it's interesting, right? The Supreme Court literally just came out with this rule, this clarification question from Justice Barrett that basically said the parties are directed to file supplemental letter briefs addressing the following question, whether the term, quote, regular forces refers to the regular forces of the United States military, and if so, how that interpretation affects the operation of 10 United States code 12406 sub 3. The briefs aren't to exceed 15 pages. I mean, so it's essentially what she's basically saying is that's the question that they're struggling with and that's what they want to look at. Right? Is because again, as we've talked about in many, many, many episodes, you can't turn the military on United States citizens. And I think she's grappling, I don't know, but it seems like they're grappling with whether the National Guard is the same as the Marines or the Navy or the army, and whether that counts and that's part of it. I don't know if they're trying to thread the needle here for Donald Trump to say, yeah, of course you can't, you can't, you know, the Posse Comitatus act or, you know, all the various, you know, 12406 everything doesn't allow Trump to call federal service members and units into this into, against, you know, the, against civilians, unless there's a rebellion or a danger of a rebellion. All the things that they have to show, they can't just do that. And I wonder if that's how they're going to be too cute by half and say, oh, well, it's the National Guard. They're not really regular forces. I don't know. What do you make of that question?
- [24:37]
Michael Popak
Popa? I, I thought it was a dumb question, to be honest with you. I can't believe they're hung up about this. Because if you read the section three, which is what they seem to be hung up about, the PR that the they have. This has to be a finding that the president is unable with the regular forces to execute the laws of the United States. Then he can call into federal service members and units the National Guard.
- [25:04]
Karen Friedman Agniphalo
So you think they're referring to like, ice?
- [25:06]
Michael Popak
Yeah, because how could it be the military? Because that would violate the Posse Comitatus Act. So you have to, like, thread the needle between the friction of the Posse Comitatus act, which says, no, President, you can't turn the gun turrets, the military against Americans on soil for domestic law enforcement purposes. It has to be. No my ICE and Border Patrol. And I also think, frankly, regular forces would in effect include. Is my argument, local law enforcement?
- [25:38]
Karen Friedman Agniphalo
Yeah, it's an interesting question, because why.
- [25:40]
Michael Popak
Remove the cops who are familiar with the streets of Portland? It's not their first riot. It's not their first, you know, parade that got out of control. I mean, Lord knows, you know how many. I was going to use a very New York insider reference. You know, how many times the Puerto Rican Day parade got out of control in New York or the Irish or the St. Patrick's Day parade. You know, they know what they're doing on the streets. I think regular, for me, I would interpret it, and I think they're gonna have to go back to old timey times and look at what happened and when this thing was passed in the early 1800s or so and say, I think it's. I. I've tried my federal forces. I've used local law enforcement who are helping, although they're shooting at local law enforcement. So that's hard for them to help. And I still can't control it. And I can't use the military. So bring in the National Guard. That's the way I would interpret it.
- [26:29]
Karen Friedman Agniphalo
Well, you can. You can. Well, you can already. You're probably right. Now that you say that out loud, I mean, came out before the podcast. So, you know, but it's interesting because you can just see what they're already trying to do. They're gonna say. They're going to say, oh, well, of course, the regular local law enforcement say that they've got it under control because those are Democrats who allow for lawless, you know, these lawless riots, et cetera. But you've got ice who we'll say through Kristi Noem, will come out and say, no, we need this. We can't get it done without It. And you can see them saying, well, we defer to the president. Right. We defer that he has to take care of the laws are faithfully executed. He has to be able to enforce the law. And they're saying they can't. And so they're allowed to do this to protect federal property and will defer to them on the ground. I mean, it's interesting because so many judges have come out and said that the facts on the ground just don't match what you're saying, and they have no basis in reality. So it'll just be interesting to see what they do and whether they are going to defer to the president and what he's saying. Yeah, I'm cynical because I think the Supreme Court is just looking for ways to rule in favor of Donald Trump.
- [27:41]
Michael Popak
Absolutely. I can't believe that's the thing that's hanging them up. But we'll have to see how it sorts out. If they ask for briefing, it'll go through November before Thanksgiving. In the meantime.
- [27:49]
Karen Friedman Agniphalo
Well, it makes sense because they can't claim there's an insurrection. They can't claim that there's a rebellion. They can't claim any of those things. So really, all they can hang their hat on is, look, they're trying to enforce the laws, right? Ice, they're trying to deport people. And he's trying to do it, and he's saying, I can't do it without extra. Because. Because there's protesters outside of the ICE facilities in chicken suits.
- [28:12]
Michael Popak
And I like them to stop cutting the legs out from under federal judges who are making the record. Because, you know, like, it was so easy for the three, the two Trumpers in the Ninth Circuit to, To say, well, why can't. Even though he sent in the troops in September, why can't he look back to June? I'm like, because by time he sent in the troops in September, there was nothing going on but 20 people standing out and loitering out in front of ice. Maybe there was an issue in June, but why do you get to backdate June when you're making the decision in September? They were like, well, temporarily. I'm like, oh, here we go. So I'm tired of appellate judges. You know, you, I'm sure you've heard this phrase before. Maybe you've used it, you know, with black robe disease, you know, at the, at the appellate level, looking down their nose at federal judges who are just doing the job, the hard work of developing the facts on the ground and applying the law to the Facts and then them just going, who? You know, let's. Last year there was a, there was somebody, A car was set on fire. Okay, what's it have to do with this year? What does it have to do with the date he sent in the troops? I don't understand any of it.
- [29:20]
Karen Friedman Agniphalo
I don't either. I don't either.
- [29:21]
Michael Popak
Yeah, so we're gonna, we're trying to make sense of it all. That's one of our goals here on, on Legal af. Glad everybody's here with us. We're on the midweek edition. The, the podcast, five years in the making, has been doing outstand because of the support of our audience. We're, I think we're the number one law and politics podcast. I'm not, I'm not just saying that. I mean in terms of the rankings and the rankings are important and the subscriber base is important for, like Midas and for legal AF. YouTube, it's not just, oh, I want to get to a million. It's because that number that those magic numbers make give us the credibility that we need to exist, to survive, to thrive, to bring on contributors, to bring on interviews. Next month, I'm interviewing 11 attorneys general of the United States at a meeting. You got me into that room as the audience because of what Legal AF has become as a brand, as, as a reliable contributor to the conversation in America. In giving honest commentary. It's not just me, Karen and Ben and like in a garage talk, you know, talking over coffee. So it's because people want to come on the show. When I reach out to Anna Bauer the day that her article publishes about her interaction with Lindsey Halligan, she comes on the show because of the vibrancy of our community, because of the size of our audience, because of the legitimacy of what we do. Because you have a First Amendment right to hear our honest commentary and we have a First Amendment right to tell it to you. It's just all under attack. And so the way to support that is the way that you're doing it. Listen to us on audio. Let people know about the audio versions of the Legal AF podcast we could use in the hummingbird world of Consequences, we could use a few more listens over on the podcast side, a few more reviews, a few more five stars to help us prop us up in the top rankings for Apple and Spotify and all of that. That's for sure. YouTube Live. Absolutely. Then we chop this episode up into smaller versions, bite sized versions, and send them out across the universe of Midas and Legal af so you can consume them at your own rate, your own pace. So that's important. And leaving comments here then. Legal AF, YouTube. We're about to crack 900,000 this weekend. We're about to crack a million. If it kills me, it kills salty before the end of the year. And that's again, that's a badge of honor that we then use to bring on. I'm going to be interviewing Governor Shapiro in the next couple of days. I just interviewed yesterday and it's going up sometime, hopefully today. Rob Bonta, the Attorney General, about the new lawsuit to save 44 million people who are gonna starve to death because Donald Trump cut off $8 billion worth of welfare and SNAP and food stamps funding. In fact, I think it's up competing with us right now. I think it's up on Midas right now. But I'm only able, and those contributors are only able to get those, those people because you're a subscriber for free. No paywall. No, no, no. We have no corporate parent, thank God, we wouldn't be on the air. No corporate parent would let us do what we're doing. So become a subscriber. And then we got Legal AF substack, which is, you know, people are like, how do you pay the bills, Pop? How do you have all these editors, these people you mentioned do all the videos? How do you get people in the middle of the night to jump on and do and do the interviews with you? Yeah, we have a team and they get paid. And, and so for $6.77 a month you can become a paid member. And now you're a card carrying member of the legal AF community. And then the last layer is we've got our sponsors who a lot of them have been with us for like the last five years. Some are new, some are new tonight, some have been with us for a while. And here's a word from our sponsors.
- [33:08]
Karen Friedman Agniphalo
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- [34:57]
Michael Popak
You know my cat Chanel. She recently decided that the new plant on my desk is her personal jungle gym. Every time I walk by, I find her perched on top, knock and leaves over like it's her full time job. I love spending time with her. That's why I order Smalls Cat Food. Fresh protein rich meals that support cat health and happiness. This podcast is sponsored by Smalls. Listeners know Chanel simply cannot live without Smalls for a limited time. Get 60% off your first order plus free shipping when you head to smalls.com legalaf smalls Cat food is protein packed recipes made with preservative free ingredients you'll find in your own fridge and it's delivered right to your door. That's why cats.com named Smalls their best Overall cat food. Starting with Smalls is easy. Just share info about your cat's diet, health and food preferences. Then Smalls puts together a personalized sampler for your cat. No more guessing between random brands at the store. Chanel's favorite flavor is chicken and Turkey feast and honestly, she prefers Smalls way more than her previous cat food. Look, I did a little taste test. No, not that kind. Two bowls side by side and she went straight for Smalls. Since switching, Chanel has had fewer hair balls, more balanced energy, a healthier weight, softer fur, and a less stinky litter box. Still not a believer. Forbes ranked Smalls the best overall cat food. And buzzfeed said, my cats went completely ballistic for this stuff. What are you waiting for? Give your cat the food she deserves for a limited time because you are a legal AF listener. Get 60% off your first order plus free shipping when you head to smalls.com legalif one last time. That's 60% off your first order plus free shipping@smalls.com legal af all right, welcome back to legal A F. Let's go to Lindsey Halligan. Karen, fellow prosecutor, like, I'm not sure that you know. And Lindsay, putting them. First of all, as I've said internally, I should never have ever had to hear what or who a Lindsay Halligan was in my entire life. Like, there are plenty of sort of fender bender insurance defense lawyers that I'm sure are great, but I don't need to know who they are. I don't need to know who they are at the highest levels of the Department of Justice prosecuting cases well, well above their head. Like taking on the former FBI Director and U.S. attorney from Manhattan and the New York attorney general. I mean, this is not like, you know, I want you to talk about how you trained prosecutors and how you were trained as a prosecutor. Like, on day one, did they hand you the file and say, go indict Donald Trump or some equivalent to that? Or did you work your way up to it? And the reason I'm going to turn it over to you. So Lindsey Allegan's in trouble. We got another signal gate where she used a disappearing messaging app on federal records to commute. Pardon me. I got excited to communicate with a reporter, Annabelle, which has led to a new brewing lawsuit about her use of a disappearing app on federal records, a motion for gag order about her going to the press. And then we've got this motion to disqualify. Two of them have been consolidated and sent off to South Carolina with Judge Curry. And she issued a new bombshell. I mean, there's more packed into one paragraph than I have it here from Judge Curry. I was like, oh, this is going to rock their world. Catch a prosecutor to prosecutor. Catch every. I love trolling. Karen, catch us up on Lindsey Halligan.
- [38:44]
Karen Friedman Agniphalo
I mean, I would say being a prosecutor is most Analogous to being a surgeon, because you literally have someone's life in your hands. You are given this awesome power that you can take away somebody's liberty and you can put them in jail. I mean, obviously the judge is the one who does it, but you're advocating for it, you're filing documents about it, you're presenting evidence about it. It one of the most awesome powers that any human can have. And so you have to exercise that power gingerly, with humility. And you have to learn a lot. It's not like you just jump in and like a computer can do it and you say, oh, Michael Popak did something. Okay, I'm just going to plug this information into the computer and spit it out and then we process him. No, this takes judgment. It takes experience. In the same way that you wouldn't just drop someone who just got out of medical school into surgery, or you wouldn't get someone who's a trained podiatrist to now suddenly become a neurosurgeon and do brain surgery. And that's essentially what they did with Lindsey Halligan. Never been a prosecutor, never been trained to be a prosecutor. And frankly, she didn't even go through the normal training you would go through when you became a prosecutor. She was like an insurance lawyer or something. And they appointed her. And the next day she was in the grand jury presenting one of the most important cases, Frankly, a former U.S. attorney, former FBI Director, and also the Attorney General of the State of New York. And so she is not qualified to be a prosecutor. Let's just put that aside. And frankly, we know that not because of anything I'm saying, but because so many career prosecutors resigned in protest because of the fact that she was appointed and that she brought this case. And so she's got a lot of problems there. These career prosecutors have the training, have the experience, have the judgment, have cut their teeth on much more, not such complicated cases or less serious cases. And you know, when I was first a prosecutor, they train you on first of all, you go through long training and you learn everything. And you learn not just the nuts and bolts, but you also learn about how important this power, this awe inspiring power that you have and how you have to use it gingerly because you have to have the appropriate judgment to be given that power to ask to take away someone's liberty. But I did like shoplifting cases. My first trial, one of my first trials was a guy, we called it a token sucking case. This is how long ago it was. New York City subways, they used to have These little tokens, now they have Metro cards and they're getting rid of those. Now you just do it with your computer, I mean, with your device, your cell phone. But they had these little New York City tokens. They were the size of a coin. And you put them in and you go through and people would sit there and literally suck the tokens out and steal them and, and sell them. And I prosecuted one of those. I mean, it was, you know, that's how you learn how to be a prosecutor. You do lower level cases where you learn where the stakes aren't that high, they're not that complicated. And you learn how to, where to stand in court and what to say and how to say it. And you learn to, if you learn to have compassion and to have, you know, where you should give people chances, and you learn how to make those judgment calls. So she doesn't have any of that and she's way in over her head. Aside from that, she's unlawfully appointed, right? I think she's going to get tossed, just like the California US Attorney and just like the Nevada US Attorney who have been unlawfully appointed because Trump is trying to cram them in, in a way that he's not permitted to. So I don't know what's gonna happen to those indictments as a result. But she doesn't have the experience, she doesn't have the judgment. I think it's gonna come back to haunt her. She got the indictments, great. But can she keep the indictments? Can she keep the cases going? Can she get conviction? Can she get the judge to rule in her favor? Can she sustain appeal? She's got many hurdles, but she got the indictment. That's not so hard to do. And I think she's got big, big problems ahead in addition to what you were just talking about, which is one of the things that shows she has, doesn't have the experience is she's using signal to send messages to Anna Bauer, who is a reporter that you interviewed and did a great interview of Popak, to discuss prosecutions. You're not allowed to do that. But on top of that, she has them set to disappearing mode, which again, you're required to preserve public record, especially.
- [43:21]
Michael Popak
Start talking about disappearing mode for a prosecutor.
- [43:24]
Karen Friedman Agniphalo
I mean, it's just crazy. You have to keep a record of all these things for the very reason that there is going to be an appeal, for the very reason that you are given this. And I can't emphasize enough how enormous this power is that you are given. Little old me I'm nobody. I'm just a person, right? Given this authority, this power, I had to swear an oath to the constitution of the state of New York to be and being appointed an assistant district attorney. And it's drilled into you that you are given this incredible power that you have to exercise with incredible judgment, incredible integrity, ethics. And she just doesn't have any of that.
- [44:06]
Michael Popak
What are you saying, Karen? That in the three hours that she became a federal prosecutor, having never been one, that was not inculcated, those values were not instilled in her. As Donald Trump swore her in and then told her to go get the indictment the next day, they forgot that part.
- [44:25]
Karen Friedman Agniphalo
I mean, just the fact that she had to be the one to go into the grand jury. She could have been sworn in as U.S. attorney and said, you know what? Okay, I'm the U.S. attorney, I'm gonna give you Assistant United States Attorney Jane Smith. You go in, who has the experience, you know how to present a case of the grand jury. You do it. She couldn't get a single prosecutor in that office to do it. No one would do it but her. That's highly unusual to have the United States Attorney be the only one in the grand jury to be the one to present the case because. Not because they don't. You know, again, I'm not. I'm sure if we look, you'll find other cases that U.S. attorneys have presented, but not because no one else would. That is highly unusual, highly suspect, and I think should send major, major red alarms, alarm bells off because this case has no merit and it just was done in a way that doesn't pass the smell test. So it's just nuts.
- [45:16]
Michael Popak
Judge Curry, who's a senior status judge in South Carolina who got referred the case outside of Virginia, Eastern District because of potential conflict with the judges there over the appointment of the future U.S. attorney if Halligan is bounced. She issued an order and listen to this. She not only doesn't refer to Lindsey Halligan by name nor by title, but here's what she did, here's what she said. She said, basically, I'm handling the motion to disqualify, which has to do with a statutory interpretation of undisputed facts about how Lindsey Halligan got the job. This she could do on briefing, let alone not really needing new evidence. But here's the no. The judge says no, no, no. I'm not going to rely on media reports about what happened in the grand jury room. Here's what she wants the the government is directed to submit on Monday at 5 o' clock for her review in her chambers all documents relating to the indictment signers participation. She's now been. Halligan's now been reduced to the indictment signer in the grand jury proceedings along with complete grand jury transcripts in camera review is appropriate because there's a grand jury proceeding and I got to keep it secret.
- [46:27]
Karen Friedman Agniphalo
It.
- [46:28]
Michael Popak
So there's been a lot of like, speculation. Why does she need that? Is she setting up Lindsay Halligan? I have a theory. It has to do with remedy. It has to do with. She doesn't need the grand jury, just need the confirmation that Lindsay Halligan by herself handled the indictment process. Although we don't really know what happened behind closed doors, we saw more than one person go in. I think she was there with Meg Cleary, who since got fired and others she doesn't quite know. I think she wants to be. All right, gotcha. You did. You did the presentation. Because what the parties are asking for, Comey and, and Letitia, what they're asking for is to have the indictment bounced along with Halligan. So if she didn't really do it, is there a way, even though she signed the indictment, is there a way to. To preserve the indictment if she bounces Halligan? But that's my theory. What do you think? What do you make of Judge Curry's out of the blue order from today?
- [47:28]
Karen Friedman Agniphalo
I think it's an interesting question because when the U.S. attorney in Los Angeles and Nevada were both deemed by judges to be unlawfully appointed, the cases that were indicted while they were United States Attorney were not dismissed. But I believe when we learn more, it will be because those were presented by Assistant United States Attorneys and that it doesn't really matter in some ways who the U.S. attorney was. I mean, AUSAS or Assistant United States Attorneys, just so everybody knows, often most of the time, work there for five years, 10 years across administrations. It is not a political. Typically it's never been a political job where it matters what political party you're in. Nobody knows what political party you belong to. It's only the United States Attorney. I think there's 90 of them across the United States that are appointed by the president. And so those are partisan and they have to be confirmed by the Senate. And so. But the AUSAs, it's not a political job. It never has been. It doesn't matter. You prosecute Democrats and Republicans alike. It doesn't really matter who's in office. If you commit a crime, you commit a crime. So the fact again, that There were other AUSAs that presented the cases in LA and in Nevada, I think could be one of the reasons why those indictments were not dismissed. Halligan is the one who presented these cases on her own. She not only. And when I say presented the case, means she went into the grand jury, she spoke to the grand jurors. When you present a case to the grand jury, you call a witness, the witness swears to tell the truth, they testify and you ask them questions and they have to give you enough answers that you make out probable cause, a reasonable cause to believe or probable cause to believe that a crime has occurred. And you have to make out all the elements of the crime. You don't have to tell them every single thing that's ever happened, just enough for they call it a prima facie case that a crime occurred and the elements are met. And then you ask them to vote on an indictment on certain charges and then you present that to them. And she presented three charges. They rejected one and came back with two others with the two of the three that she presented. So that's why I think she wants to know this information because again, it's unusual that the AUSA is in the office. The career prosecutors, the ones with experience, aren't the ones who presented the case. She presented the case herself as she is not just the US Attorney, but also the AUSA prosecuting the case. If she wasn't validly appointed, she's not allowed. She has no authority, she has no power. She can't go into the grand jury and seek an indictment. That means the indictment is dismissed. Now that has serious ramifications for Jim Comey because the statute of limitations was about to run and that's I think the next day. So if that case gets dismissed, I don't think they can bring that case again. Attorney General Letitia James is a different story because I'm not sure when her statute of limitations runs or ran, but that one potentially, if the judge does determine the same thing and dismisses it without prejudice, that can then just be re indicted by somebody else. Now the question is, will the judge dismiss it with prejudice so that you can't do that without prejudice or not dismiss it at all and say it's like California and, or, and Nevada, even though the United States Attorney is invalidly appointed, not going to dismiss the indictment. So we don't know what's going to happen.
- [51:10]
Michael Popak
Look, those two indictments are a piece of crap and they should be superseded with a superseding indictment anyway. But this goes to the heart of the matter. Is Lindsey Halligan appropriately appointed or not. And then we'll let the chips fall where they may about the various indictments or abilities or ability to prosecute them. But you're right, what you said at the top of the segment, which is no self respecting career prosecutor, how sad is it that she heads an office where no one from the Eastern District of Virginia, no career prosecutor that's left, they fired many of them, will stand side by side with her on any of these cases. She had to reach out to some prosecutor in Missouri for the Letitia James case and some prosecutor in North Carolina to go before the Eastern District of Virginia judges. And to answer the question that came up in the chat, that Curry, Judge Curry's only handling the motion to disqualify everything else in the case is Judge Nakmanoff for James Comey, a Biden appointee, and Judge Walker, another Biden appointee for Letitia James. Let's move on, Karen, to the Trump appeal.
- [52:14]
Karen Friedman Agniphalo
Before you move on, can we just say one, speaking of U.S. attorneys getting fired, did you hear about the U.S. attorneys getting Fired over the sentencing memo for Jan.6, the Jan6 person, did you hear about that?
- [52:26]
Michael Popak
Yeah. So why don't you, why don't you tell the audience about it quickly. We might end up trimming something towards the end. Go ahead.
- [52:33]
Karen Friedman Agniphalo
Talking too much. But I just find this appalling. Absolutely appalling.
- [52:37]
Michael Popak
Frame it.
- [52:37]
Karen Friedman Agniphalo
There was a January 6th insurrectionist rioter, whatever you want to call them, one of the Jan Sixers got clemency or pardoned by Trump and then shows up at Obama's house with a gun and was prosecuted and convicted. And when the case was about to be sentenced, the career prosecutors, they did a sentencing memo, which you're supposed to do in all these cases, and described the conduct and described that there was this individual who was outside President Obama's home with guns. And what they essentially said was that what ended up happening was they were put on leave because they referred to January 6th as mob riot, which it was, by the way. And they referred to it. They referred to it correctly. And I guess you're not allowed to do that anymore. I guess you're supposed to celebrate the Jan6Mob rioters and call them patriots or whatever else. But it's just atrocious what is happening at the Department of Justice now. And that these two career prosecutors, who I'm sure are very good, because that's what prosecutors have always been with the Department of Justice. It used to be one of the most coveted, high, prestigious jobs you could have with an excellent training and produced great people that they are now put on leave because they were doing their job by calling what January 6th was a mop riot.
- [54:07]
Michael Popak
The hollowing out of the Department of Justice continues with the Trump administration. Five thousand people fire, people suspended and transferred for doing their jobs as objective civil servants, nonpartisan civil servants. The next president, hopefully with a D next to his name or her name, is going to have a lot of work to do to restore people's confidence in the Department of Justice and the rule of law. And that's just but one example. When we come back from our next quick break, we'll talk about the Trump appeal. And I want to get up from the perspective of Karen Freeman ignympholo, who worked for the Manhattan DA's office, not on that particular case, about appeals in general, about, about this particular appeal and, and the handicapping as to whether he's going to win this appeal or not. Many ways to support Legal AF that we talked about at the top of the show. All important, become a member of our subscriber base on the Midas Touch network and on Legal AF, the YouTube channel, as we make our march towards 1 million. Those are the keys on a keychain that allow me and others to open door doors, to bring on people onboard, people, contributors, newsmakers, interviews, judges, former judges, governors, attorneys general, and the like. That's how you can help. We have no outside investors. We have no paywall. Become a member of the Legal AF community on the YouTube channel. Legal AF sub stack. Same thing, except there's a paid option which helps, frankly, pay for the independent, honest commentary and journalism that we do on Legal AF every day, at every hour. So think about becoming a paid member. I kept the price low. I think some people in my world and our world are charging $5 a week. We're charging $6 a month. But we'll overwhelm you with content over there as well. And then we've got our sponsors. And here's a word from our sponsors. 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And as always, please enjoy responsibly welcome back. We're in the home stretch of the Midas Touch Legal AF podcast and you know, we try to keep it fresh and keep it up to date, you know, in real life. 7th Circuit has blocked, as we, as we are recording, as we're doing this live podcast has blocked the decision by Judge Ellis, which she made the last 24 hours to force the head of the Customs and border Patrol, who she doesn't believe to come into court every day at 5:30 and give a, give a live report. I thought that was a little bit extreme. There's other ways to do that like filing a written report every day or somebody that he, that is subordinate to him. And the 7th Circuit said, yeah, you're not doing that. So we'll continue to follow. But this is just an example of judges, Karen. Right. Struggling to use every tool in their toolbox against an ever shifting landscape and a tilted playing field by the Supreme Court, which then they're asked to try to rein in what they obviously see as an out of control precedent.
- [60:06]
Karen Friedman Agniphalo
Well, you can't blame them. I mean the judge, you know, the judge has to come to work every day and drive through Chicago and sees that there is nothing going on the way justifying what they're saying. I mean she's not, you're not supposed to, you're supposed to just look at the record and what's in front of you. But you can't help. You can't help but common sense and see what the facts on the ground are. And so I'm sure she's very frustrated by this fact and is wants to have them there to justify this extraordinary.
- [60:35]
Michael Popak
Thing that's happening and the reporting that they are abusing her order. She has a temporary restraining order in place that stops them from using military grade riot gear and riot weaponry against civilian population without certain safeguards, including keeping their body cams on. And she's gotten information. They're not turning their body cams on. Oh, the shutdown. We don't have the body cams. Okay. She's not buying any of it. That's the problem when you've lost credibility. You know this as a prosecutor, as me, as a lawyer, if you lose, if you lose your credibility with the court, you have nothing. You have nothing. Nothing is believable. You are unbelievable. You're incredible and uncredible. And that's where the Department of Justice finds itself with the Trump administration. All right, let's turn to the appeal of the 34 felony count conviction presided over by Judge Merchan. We Call it the original election interference case where Donald Trump paid through a series of conspirators money to people like Stormy Daniels to hush her up about affairs or sex that he had outside of his marriage while he's running for office in 2016. And a jury of 12 peers of Donald Trump unanimously found that the prosecutors had carried their weighty burden of beyond a reasonable doubt and convicted him. Now, the issue there is that there had to be sort of a business record fraud, which they proved in how he cooked the books related to it and how he paid Michael Cohen to pay Stormy Daniels through other, other connectors. And there needed to be in furtherance of another crime. And that second crime was sort of a little bit up for grabs. Was it a federal election crime, a state election crime? But you know that whatever the, whatever the New York law allowed, that's what the judge instructed the jury about. And they found a second crime, the reason for the first crime, which made it go from a misdemeanor to a felony. Then there were the attacks over Judge Marshan and all that. I'm sure you've had an opportunity to look at the appellate brief, talk about the first department appellate, the first department appellate division court, the appeal, this kind of appeal coming off a trial like this and what, and handicap, what do you think is going to happen next?
- [62:50]
Karen Friedman Agniphalo
Yeah. So as you explained earlier, there's different kinds of appeals. This is the kind of appeal that happens after trial after a conviction if the sentence was entered, even though the sentence was an unconditional discharge, which essentially at the time that Trump was sentenced, he had already won the presidency. And the judge realized at that point a state court judge was not going to be permitted to put any restriction or anything on a President of the United States, whether even a community service or anything. He would have absolutely no authority, probation, nothing. And so he was smart to just sentence him to an unconditional discharge, meaning he's just a convicted felon without any sentence. And so at the end of that, that means the case is over. And at the end of that he has a certain amount of time to appeal the case and which he just did. It took quite a while because the conviction was over a year ago. It was a year and a half ago now. And he submitted this 96 page appeal by Sullivan and Cromwell, which is a big law firm that I know you have a lot. You, you have excellent. I heard what you fact that they're representing him. So I'll let you talk about them and I'll just talk about the appeal but he has that great law firm. And the appeal essentially is he's appealed five separate issues, essentially. Some of them, I think, have no merit whatsoever and are bogus and aren't going to go anywhere and are just kind of the same old same old that he's been arguing all along. There's a couple, though, that I think are substantive and are the issues that have always, always been the issues in the case and that we've always known were going to have to be heavily briefed and, and kind of heavily weighed in the courts. So the five issues are essentially federal election law counts, not state election law. Therefore, you couldn't have brought this case to make it a felony, number one. Number two, that the judge improperly allowed the jurors to consider official presidential acts, which, which the Supreme Court said he was immune from. I think that's probably the most substantive issue, frankly. Number three, that the Merchan erred when he told, made an error when he told the jury that it did not have to agree on the unlawful means to which he violated the state election law. Again, that's another, I think, the substantive issue here, another one that they never established that Trump had the intent to defraud, which I think clearly they established that, that Merchan should have recused himself because he donated literally $20, not an exaggeration, once, to a Democratic cause and because his daughter also has a job that works for Democratic elected or potential people running for office. So that one, I think, has no merit. But I think that the ones that, the only ones that I think are kind of substantive is this one of. Because if you remember, the indictment came down, talked about a bunch of things and accused him of a bunch of things. And then the Supreme Court came out with Trump v. US in the middle of it all and basically declared this presidential immunity, this new doctrine. And so the case had to be changed, and the prosecution only presented evidence that they thought were not, did not cross the line into presidential immunity. Actually, I got that wrong. The case was tried, and then Trump v. US Came in, and then they had to brief this issue. And so the judge had to rule on whether or not anything that came in, in the trial violated Trump versus United States. And that was an issue that was, that was heavily litigated. And essentially what the judge held was that that's not the case. That because this was when he was running for office, and just because he was writing checks while he was president, it doesn't matter. He was doing it for this personal reason, that he was running for office. And this is his personal mistress and his personal lawyer who was falsifying business records. And so it didn't cross over into presidential immunity. Now, where it's slightly tricky is I think, Hope Hicks, when Hope Hicks testified, and I happened to be in the courtroom when she testified, she was a White House employee at the time, and she. At the time that she was a White House employee when she testified. Not when she testified, but what she testified about was when she was a White House employee and she testified about how, when she was working for the White House, he basically said something like, good thing that all of that, the Stormy Daniels stuff didn't come out before. Before the election, because that would have, you know, that would have tanked us, essentially. And honestly, I think was the thing that. That put the nail in the coffin that this was absolutely a election, you know, election fraud. And I was there. It was like. You could have heard a pin drop. It was absolutely like a Perry Mason moment. It was that powerful. She was crying. You could tell. She could tell that she was about to sink him. Him. And that was the only thing that worries me, that because she was a White House employee at the time and he was president and they were communicating, yes, it wasn't about being president. It wasn't about presidential duties. But that was the only gray area that I think we'll have to see how that goes and whether the court finds, A, that that is evidence that should not have come in because of presidential immunity, and B, if even if it did, was that harmless error. So that's one substantive issue. And I think the only other substantive issue in this case that I think is just. We'll see how they go. Has to do with this issue about which crime did he commit? Because as you said, it's a misdemeanor to falsify business records, but it bumps it up to a felony if it was with the intent to commit another crime. And they don't have to really. They don't have to really agree on that. And so the question is, you know, which crime it is, and as long as it was a crime, and what will they find? You know, would the court say, no, you had to all agree on one crime. And it's an interesting question. And there is authority in New York law for this type of analysis. So burglary, for example. Burglary is a petit larceny, you know, just a misdemeanor larceny, except if you enter and remain somewhere with the intent to commit a crime therein. And the question is, which crime? And Prosecutors don't have to prove which crime because most of the time you don't know if he gets caught before he commits the crime. For example, you have no idea what he was going to do when he was in there.
- [69:56]
Michael Popak
So what do you do? You lay out it could have been rape, it could have been. There's a safe there that they were going to get. You just lay that out as possible choices.
- [70:04]
Karen Friedman Agniphalo
You can, or. Yeah, exactly, exactly, exactly. Right. And they don't have to agree. They don't even, they just have to, they just have to specify that it was to commit a crime therein. And so there is precedent for this type of crime. You know, in New York. We'll see what they decide. But those to me are the two, the two issues that I think are the most substantive.
- [70:28]
Michael Popak
Well, I think what the best thing to do is let's see who the three judge panel is or the five judge panel for the first department and then you and I can kind of kibitz about. Do you think they're going to win on this or win on that if they're going to overturn the conviction? Let's just remember this. He wasn't the president at the time. He wasn't the president at the time he was convicted, and he wasn't the president at the time that he was doing all these bad things for which he was convicted. So this isn't about Trump as president. I know that the lawyers for Sullivan and Cromwell, and I'll leave that for another day. The commentary there, I have a hot take up on that. You know, they're all, this is about the president. It's not about the presidency. It's about a human being who was not president at the time, who did bad things and was caught and was convicted. And I, I think they lose on the merchant. I do, I do agree with you. The only sort of interesting reversible error issue that they raised is the Hope Hicks issue for you happened to be in the court that day. But we'll have to see. You know, this is a different panel than what hers, the fraud case brought by Letitia James that we just got the ruling on, which is like, well, we'll find fraud to let it go up to the Court of Appeals. But we don't like the number. Okay. But this will be a different panel, so might be some overlap to it. Once you and I know who the panelists are, and I'm sure the whole. They'll hold oral argument on this, it's not going to be an immediate thing. It's going to be. It took them over a year to make the decision on fraud, let alone overturning this conviction. This is going to be. We're in this for the long haul, but then again, we're on legal aid. We're in for everything in the long haul. We do. We have short term memory, we have long term memory, we have legacy memory. We bring it all together on Legal A. We're glad everybody's here with us together again on Wednesday. We have another show on Saturday that I do with Ben Mysalis. We've got the hot takes that the contributors for Legal AF, including myself do on Midas Touch on Legal AF. It ends up being 40 videos a week and all of that. And we're just glad that you're here. That's how you support us, being here with us, leaving comments, coming over to the audio, leaving five star reviews and comments there, shifting back and forth, becoming Legal AF YouTube subscribers, becoming Legal AF, Legal AF substack subscribers and paid subscribers and supporting our sponsors. That's what keeps People are like, where are the why? It's like a magic trick. Where are the wires? There are no wires. That's what keeps us on the air. That's what keeps the lights on. That's what keeps this confident commentary, this honest commentary coming to you the way you want it. And if you enjoy it, then you want to support us. That's the way to support us. Karen, last word.
- [73:05]
Karen Friedman Agniphalo
You know, I hope everyone who's in the path of Hurricane Melissa is safe and doing okay and I always think of people who are struggling. If you're listening to this, people are thinking about you and I hope you get help soon.
- [73:22]
Michael Popak
Absolutely. And thank you for joining us on Legal A. Until our next episode, shout out to the Midas Mighty and the Legal Aers. Morning Zoe Got donuts.
- [73:40]
Karen Friedman Agniphalo
Jeff Bridges, why are you still living above our garage?
- [73:43]
Michael Popak
Well, I dig the mattress and I want to be in a T Mobile commercial like you teach me. So Dana.
- [73:49]
Karen Friedman Agniphalo
Oh no, I'm not really prepared. I couldn't possibly at t mobile get the new iPhone 17 Pro on them. It's designed to be the most powerful iPhone yet and has the ultimate pro camera system.
- [74:01]
Michael Popak
Wow, impressive. Let me try. T Mobile is the best place to get iPhone 17 Pro because they've got the best network.
- [74:09]
Karen Friedman Agniphalo
Nice. Jeffrey, you heard them.
- [74:11]
Michael Popak
T Mobile is the best best place to get the new iPhone 17 Pro on us with eligible traded in any condition. So what are we having for launch?
- [74:19]
Karen Friedman Agniphalo
Dude, my work here is done.
- [74:21]
Michael Popak
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