Lisa Graves (2:15)

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Karen Friedman Agnipolo (2:20)

Welcome to the midweek edition of Legal AF. I'm Karen Friedman Agnipolo and Michael Popak is busy today. He is interviewing many Democratic attorneys general and so he's town and we have the wonderful Lisa Graves who is stepping in as a co host. The first time we've had Lisa on here as a midweek co host. Lisa is an author. She just wrote a novel or a book I should say about the Supreme Court and the Chief Justice John Roberts. And she also has a podcast on the Legal AF YouTube channel. And you have to go over there. We're almost at a million subscribers. So if you're not a subscriber to that channel, please subscribe. Lisa also has an incredible resume. You look her up. She's advised all three branches of the federal government. She's a true legal scholar. And there's no one I can think of better to sit in for Michael Popak today than Lisa. Lisa, welcome to Legal af. We're so happy to have you here.

Lisa Graves (3:22)

Oh, thank you so much, Karen. It's nice to be on the midweek show with you and happy to stand in or try to stand in for Popoc. And there's lots happening. So I'm sure we have a lot to talk about.

Karen Friedman Agnipolo (3:32)

There's so many things happening. It's so hard, the fact that we that on our list of things to talk about this week are still the Jeffrey Epstein files. You would think that would be over by now, but it's not. There's so much to talk about there. This bills that have now passed both houses and is going to go to the president's desk to release the files should not give anyone any comfort that we're going to see anything close, close to resembling the files. And we'll explain why. There's so many loopholes in this bill that I think and they've set it up perfectly, Trump and the administration have set it up perfectly with these loopholes that this is like Swiss cheese, there's so many holes in it. So I'm very suspicious as to whether we're going to see any of these files or certainly any of the ones that we all care about. So we're going to talk about that today. We're also going to talk about big news coming out of the Jim Comey case in Virginia. There was a hearing today and as, as we, as I've often said or people I've worked with has often said shots fired in, in the case, I mean, real bomb, bombshell stuff coming out of there that I can't, I've never seen as a prosecutor. I, I've been a prosecutor most my career and I haven't seen some of the stuff that's going on there. I think that indictment, that case is on life support at this point. And we're going to talk about the ins and outs of that. It's not, in my opinion, when this case dismiss gets dismissed. It's not if this case gets dismissed. It's when and on what grounds there's just so many irregularities and we're just seeing more of them just today, hot off the presses. We're also going to talk about Letitia James, the New York attorney general who's under indictment, also in in Virginia and another case that is also on life support. And there's all kinds of stuff coming out about that case. And we're going to talk about that because again, I can't believe these things are still in the news. You'd think they'd be old news by now, but they keep making more and more news because what's going on at this Department of Justice is just really irregular to say the least. And judges are taking notice, and not just Democrat judges, Republican and Trump appointed judges as well. We're also going to talk about this new ruling in Texas blocking the new congressional redistricting maps, saying that basically they were created improperly on racial grounds, which you're not allowed to do. And so there's a lot of confusion in Texas for the midterm elections because we're in the middle of the 30 day period for when candidates are supposed to declare their candidacy. So that is also a complete chaos in Texas about what's going to happen there. So we're going to talk about those and anything else that we feel like talking about that comes up. Right, Lisa?

Lisa Graves (6:18)

Yep, that's right.

Karen Friedman Agnipolo (6:19)

That's right. So did I butcher your, your resume, by the way? Just start tell us a little about yourself. I'm sure people would love to hear because you have such an incredible, incredible career and background. I want people to know who they're listening to when they hear your perspective because it really is a legal scholars perspective.

Lisa Graves (6:40)

Oh, gosh. Well, that is so nice you to say I lead, I help lead court accountability. I co founded that with Alex Aronson a few years ago. But I also lead True North Research, which is a research group that focuses on the courts and on public policy and sort of mapping key parts of the infrastructure that has been trying to regress the law. And I just wrote a book without Precedent, which is about John Roberts and how much damage he has done to our Constitution and to our rights. And in some ways, the zeitgeist is catching up to me. I first started writing this book a couple of years ago, or at least thinking about it in 2022. And I really wanted people to understand that he's not this fair umpire just calling balls and strikes that he said he was going to be. And I say that because I was actually the chief counsel for nominations for the Senate Judiciary Committee when he was first nominated actually the second time he was nominated to the D.C. circuit and confirmed the D.C. circuit before he was nominated then and named to the U.S. supreme Court. And before that I'd worked on judicial nominations and criminal and civil justice policy at the Department of just when I was deputy assistant attorney General in the Office of Legal Policy. And I also had a brief stint over at the US courts as the deputy chief of the Article 3 judges division, dealing with all the lifetime appointed judges. And in between all that, or I suppose after those three sets of work for the federal government, I also have been working in the nonprofit sector on national security issues, on federal and state policy, including on election issues and more. I'm just delighted to be on the midweek show with you, Karen, and happy to be here and happy to have a chance to talk to this part of the Midas Touch Legal AF audience.

Karen Friedman Agnipolo (8:27)

Yeah, well, Lisa is definitely when you talk about people who were in the room where it happens, Lisa was in the rooms where it all happened. So when you're getting information from Lisa, it's really something to listen to. So I look forward to discussing these issues with you, Lisa, and hearing what you have to say and whether they look as crazy to you as they do to me. So, like, start with with Epstein, the the gift that keeps on giving, or I should say the case that won't go away. It just constantly it's in the news and it's this issue that is really bipartisan, strangely, you know, it's causing people in the MAGA world to stand up for women and children and sexual assault victims. And there are people who are crossing lines to try to do the right thing here. And I don't know if their motive is to do the right thing. I'd like to think it is, or if it's they see the writing on the wall that their constituencies are asking them to hold people accountable. This is not a left or right issue. This is an issue that involves everyone. And as a result, they have pressured this they put so much pressure on that we've been talking about it for months to release the files. And there was this bill in Congress in the House that has been lingering and was needed one more vote to get passed. And there was a Representative Grijalva who was just elected in I think she's from Arizona, she's out west, and she was just elected. And Mike Johnson refused to confirm her and swear her in to take the oath of office so that she could be the 218th vote, which is what they needed to release, to have this be released and be passed in the House. And of course, Trump comes out and says the House can do whatever they want. I don't care. Which I guess is, is in MAGA world, the best you're going to get from Donald Trump, who's been doing everything he can to prevent these files from being released. And so it actually passed the House almost unanimously. There was one lone Republican holdout who voted against it, but everyone else finally crossed over when they got the bless of their leader, Donald Trump. And in the Senate, it has passed and it's going to go to the President soon to be released. But there are loopholes in this that are crazy because let's now focus on what the President said. What did Trump say? He said the House can have whatever they're legally entitled to. Okay, that's a far cry from open the files and give them everything. And of course, the bills have exceptions. What are these exceptions? The con, the Department of Justice, Pam Bondi can refuse to release material if it would, quote, jeopardize an active federal investigation or ongoing prosecution. Well, what just happened? Last week, Trump ordered Pam Bondi to investigate certain Democrats. Right. Who, who was it that, that they said? Bill Clinton, one of the mega donors, Reid Hoffman, former Treasury Secretary and Harvard President Larry Summers, who just stepped down at Harvard, and other Democrats. No, Republicans, of course. And meanwhile, this is coming, this is after Pam Bondi has said over and over and over again there is no, we've looked at the file. There is no list. I've looked at the file extensively. There are no leads to pursue. There's nothing to investigate. But now they can say we have active investigations. And if this is an active investigation into Bill Clinton and Reid Hoffman and others, then the Department of Justice, justice can say, well, we can't release many of the files because they are active investigations. So other evidence, other information could be blocked from grand jury secrecy. There's the Federal Rule 6E which covers grand jury secrecy. A lot of material would have been subpoenaed through a grand jury subpoena process. So you're going to see. I suspect this is just a prediction, but I suspect because we've been covering these issues in this administration a lot, that some stuff is going to be held back under those, under, under that kind of 6e or grand jury secrecy. There's also some of the files that also says you can't release anything that contains sensitive victim information or pornography, you know, anything that would constitute a clearly unwanted invasion of personal privacy or depicts or contains child sexual abuse. And so again, this is a sexual assault case. So that's probably most of the evidence. And, and the thing that irks me the most, Lisa, is that the bill has no teeth to enforce it. Because even if they issue a subpoena, even if Congress issues a subpoena and the DOJ refuses to produce this material, what is Congress's normal remedy? It's to issue a referral to the Department of Justice to bring contempt proceedings. Well, what are they going to do? Refer it to Pam Bondi to prosecute Pam Bondi? Of course, that's never going to happen and won't happen. So there's no teeth to it. So this gives Donald Trump the ability to say, look, we've said we're released the files, we're doing everything we can, we're following the law. And to, it's, it's, I don't know, to me, it's all smoke and mirrors. But what is your take on all of this, Lisa?

Lisa Graves (14:04)

Well, that was a really powerful recitation of the loophole, and I so appreciate that, Karen. You know, I, I have a bunch of thoughts. So one is, first of all, I think we have to celebrate victories when they happen, and it is a victory that this petition has been adopted by the House and that the Senate has gone along with it. I mean, that is a victory, especially because when you think about the fact that Mike Johnson, in service of Trump, literally shut the House down in order to avoid the possibility of having that last vote, that, or that last person signing on with the petition. That was Adelita Grijalva. He refused to swear in for weeks. She won that election to replace her father as a representative for part of Arizona back in September. So here it is, mid November, and that's how afraid they were. That's how afraid this administration has been of there being enough signatures on that petition. And just last week we saw reporting that Donald Trump tried to pressure Lauren Boebert to get herself off of that petition. She, along with Marjorie Taylor Greene and Nancy Mace, had joined in that 100% Democrats joining in saying, let's release this material. This is really important material. It involves very serious crimes. And yet the Republicans were trying to block that and the president was trying to block that. But once it became clear as the shutdown, or at least the official part of the shutdown ended, that Congress was going to come back into session and Grijalva was going to be finally sworn in, which is a separate issue, a separate episode that Michael and I did with the Representative elect about how outrageous it was for her not to be sworn in while other people had been sworn in, while Congress was in pro forma session or out of official session. This was nothing more than an attempt to try to keep the Epstein files secret. So, as you point out, in the chess game that Donald Trump is playing with Pam Bondi, his former defense attorney who now helms the Department of Justice and is being paid by us, in my view, to act like she continues to be his defense attorney, last week, as it was clear that the Democrats, plus some of these, this handful of Republicans, would stand by and insist that this petition to get this evidence out be voted on. Then Trump orders Bondi to investigate, to investigate the matter, even though, as you point out previously, Bondi has claimed there's nothing to investigate here. There's no crimes, there's nothing to pursue. And in fact, that's been her party line since she reversed positions from earlier this year in which she claims she was doing a thorough review. And she had, there was an interview in which she suggested that she had a client list on the corner of her desk and she was reviewing everything. Then we learned in the spring that she had told. We learned that this spring she told Donald Trump his name appears numerous times in the files. And then suddenly the attorney General Bondi and her team were saying, nothing to see here, just move along. Meanwhile, the victims have come together, the survivors have come together in a number of press conferences and videos and outreach to say we deserve our day in court. We deserve to have these people, not just Epstein, not just Ghislaine Maxwell, but anyone involved, held accountable, at least publicly accountable, even if they cannot be charged. And so it is a victory. But that fact that Trump last week again exerted inappropriate influence on the Department of Justice to command basically his person, his loyalist at the helm of the department to open an investigation that then does open these assertions that they cannot and they will not release this material or significant portions of it, purportedly because they're actually going to be investigating criminal activity, but as you point out, again, only in a partisan way, not investigating the man at the top, the man who was named in a separate set of emails that was released just the past week or so by House Democrats, where a Wall Street Journal analysis showed that of the more than 2,000 emails that were part of just this portion of materials from the Epstein estate, Donald Trump was mentioned more than 1,500 times more than anybody else, any other outside figure. And the number of mentions of Donald Trump increased over time, and those are a number of communications between Epstein and Maxwell and others. And so, you know, there's a lot of smoke here. Donald Trump has denied any wrongdoing, and yet he has done everything he could until he could no longer prevail to stop that vote from happening. And so it really is significant.

Karen Friedman Agnipolo (19:02)

Yeah. And just to tell people these things don't happen by coincidence. Right. Of course, Donald Trump knew and saw these draft bills and saw that there was this exception for ongoing investigations. And of course, that's why they said, okay, let's open some investigations into certain Democrats. I mean, this is all done by design. He knew the writing was on the wall and that these bills were going to get passed and had to make sure that there were these open investigations, which is just crazy to me. I just can't even believe this is happening. And this is the world we're in. And meanwhile, there is a person who was convicted after trial, Ghislaine Maxwell, of sex trafficking. She was part of this conspiracy and this sex trafficking ring that existed. She has been convicted and meanwhile she's being moved to better, kind of a better prison and been given this, you know, special treatment. It's the opposite of holding people accountable. Right, that's, that's what I can't believe also. And she was given the softball interview by Todd Blanche who says he didn't have these emails, which is another head scratcher. Right. How is it that he didn't have this or, or did they have it and not look at it and not ask her follow up on things that were clearly just not factual? I mean, it's just, it's just really strange to me how things are happening and really unfair.

Lisa Graves (20:28)

It is extraordinary. And the only way it makes sense is, is from my perspective is to realize that you have one former defense attorney for Trump, Pam Bondi, at the helm of the Justice Department. You have another former defense attorney for Donald Trump, Todd Blanche, as the deputy Attorney General, and really orchestrating a so called interview, in essence to try to solicit information to exonerate Trump and then have that be the predicate for moving her from a federal prison that she was duly sentenced to for the serious crime she was convicted of by, by a jury and sentenced to, by a judge moved to sort of a Club Fed situation where new reports indicate she's getting, purportedly getting takeout food and special privileges as a prelude perhaps to her sentence being commuted by Donald Trump or being pardoned. When the reality is that these new emails that came out this past week, this again is not Part of the set that. I mean, it's part of the set, but it's not the whole set. In essence, that was part of the investigation. You have a situation where she was talking about what Donald Trump knew with Jeff Epstein before. Before his death, and there were communications back and forth between them. And those statements are not consistent at all with this assertions that were made in that conversation that was recorded by Blanche in order to basically justify this intervention. So, Todd Blanche, in my view, is not behaving like a deputy attorney. The deputy attorney general has traditionally behaved, nor is Pam Bonney, nor is this president, because as you know from your time as a federal prosecutor, this whole thing is irregular. This whole thing stinks. The idea that a president of the United States would be involved in directing the prosecutions of his enemies, directing, in essence, that he himself not be subject to that investigation by specifying who gets investigated and meanwhile, in the previous weeks, trying to intervene in stopping materials from being shared with the public. Now, there are, as you point out, limitations on what can be shared under traditional prosecutorial practices. But this whole situation we've seen unfold over the past several months is one that has never happened before in the United States. And we have a president who has been, you know, has been embroiled in a number of controversies around Jeffrey Epstein. And we have a. Just. That has not appointed a special counsel, someone independent, to look at any of these matters. Instead, we have people who've been close to Donald Trump playing a significant role in trying to steer what's going to happen, and we're going to see that unfolding over the. Over the months ahead. So, like you said, Karen, at the beginning, you know, it's. It's hard to believe that we're still hearing about the Epstein files, but we are. And I would say it's shocking just because this is so abnormal. And it is just some of the most serious crimes you could possibly have investigated. Sex trafficking of minor. Of young girls, of teenagers. And then you have this overlay, culturally. Sorry about that. You have this overlay culturally, where you have this just repulsive claim by Megyn Kelly that somehow teenagers don't count for trafficking. Well, that's not what the law says. And that's not what the law says that Ghislaine Maxwell was actually convicted of.

Karen Friedman Agnipolo (23:50)

Yeah, exactly. I mean, she was convicted by a jury. So there she had a trial. By who? A prosecutor who did a great job, who was well regarded, well respected, but was fired by Trump.

Lisa Graves (24:02)

Why?

Karen Friedman Agnipolo (24:03)

Because her last name is Comey, which is also Bananas because everybody respected her and respects her. She's an excellent lawyer. So she's the one who prosecuted and convicted Ghislaine Maxwell. So anyway, it's just very bizarre and oh, and also, just to clarify, Lisa, we don't know each other very well. I was never a federal prosecutor. I was only a state prosecutor. You shouldn't say only.

Lisa Graves (24:27)

I misspoke. Thank you for clarifying.

Karen Friedman Agnipolo (24:29)

No, no, no, I want to take back, I misspoke again when I said only a state court prosecutor. I'm very proud of my state court prosecution background.

Lisa Graves (24:38)

I actually worked at the DA's office in my county when I was in college. I assisted the victim witness coordinator and worked in support of four of the district attorney and three assistant district attorneys. So I know that that work courts on an array of criminal conduct is so important for public safety, so important for the well being of people in our community. So thank you for your service.

Karen Friedman Agnipolo (25:01)

Well, okay, so that's where we are with Jeffrey Epstein. I think, I suspect we're going to be talking about it for weeks to come just because of all the stuff that's going on. But more importantly, it's really important that people understand exactly what's happening and exactly what's not happening. And that's what Legal AF is all about. Because you turn on the news or you read something on social media and you think, oh well, they released the files, there's nothing to see here. And it's really things aren't exactly how they seem. And that, that's why Legal AF was created five years ago so that we can try to tell people what the actual facts are and people can make their own mind up and they can form their own opinions and we try to be as factual as possible and if we're giving our opinion, we'll say it's our opinion. Like when I said this is all smoke and mirrors, that's clearly my opinion. But those are the facts, those are what the statute says and this is what's going to happen and what's not going to happen. And so stay tuned and we'll, we'll come back to Epstein again and again, I'm sure, because as I think this is just the tip of the iceberg because the more we see the worse this situation gets and the more this reaches the highest levels, the most powerful people. And it's really just kind of disgusting, in my opinion. So we have reached the point where we're going to take our first AD break. But first I want to tell everyone that if, again, if you haven't subscribed to the Legal AF Midas Touch MTN Legal AF MTN YouTube channel, please do so. Also, the Legal AF sub stack is something else where you can get a lot of information, including if you want to read some of the legal filings and of course Midas Touch as well, which is really the thing that started this all. And and we are here because we have these wonderful sponsors that have chosen us. They've chosen to sponsor us, they know what we're about and we couldn't keep the lights on without them. So let's take our first break.

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Karen Friedman Agnipolo (30:12)

We're back and let's talk about James Comey, the former Southern District of New York United States Attorney, the former director of the FBI, and I would say Donald Trump's number one arch enemy. James Comey has been indicted in the Eastern District of Virginia, also known as the rocket docket, as some people would say, on two counts, a false statement to Congress and obstructing congressional proceeding related to testimony in 2020. And the case is really facing some significant procedural and constitutional challenges, particularly around how the grand jury was used. There's a magistrate judge and a federal judge, and the federal judge is the judge who oversees the case. But the magistrate judge is, is like a judge who kind of does some of the procedural things, rules on motions, hold hearings, that sort of thing. And that's the case in most federal cases. So when we talk about the magistrate judge or the federal judge, sometimes it becomes hard to keep track of. But it's Magistrate Judge William Fitzpatrick and the district judge is Nakmanoff. I think I'm pronouncing that. Okay. Anyway, there's been a series of motions that have been made by, by Jim Comey's attorney, Pat Fitzgerald, who was the United States Attorney in Chicago and a longtime friend of Jim Comey and also a highly respected lawyer. I mean, somebody that is like a prosecutor's prosecutor. Everybody who knows of him really respects his work and he's done some of the Most important work legal work as a prosecutor. And he is representing Jim Comey. So some of the motions they brought, number one, is that Lindsey Halligan, who was the United States attorney, who appointed, who, who indicted. Indicted Jim Comey was illegally appointed. That the way she was appointed was, was just not within the law. And if you remember, and again, we've talked about this numerous times, but just to catch everybody up, in case you don't follow these things as closely as we do, there was every, every president gets to pick their United States attorneys, and they have to be confirmed by the Senate and, or voted on by district judges. And Trump appointed Eric Siebert, who is a Republican respected lawyer, and he was the United States attorney. When Trump said indict James. Jim. Jim Comey or James Comey, Eric Siebert basically said, there's no case here. We don't have probable cause to, to make an arrest, and certainly we can't bring this case beyond a reasonable doubt. So depending on whose version you believe he was, he either resigned or was fired. And Lindsey Halligan, who has no prosecutorial experience, apparently she's like an insurance lawyer or something, never been in a grand jury before, never prosecuted a case before, flies in and indicts Jim Comey right away and brings this case despite the fact that line prosecutors in the office all refused to do this case. They all said there's no case here. No one would assign their name to it. No one would get involved. And we're learning now, no one would go into the grand jury with her to indict this case. So she went in by herself, presented her first and her first case to the grand jury, and apparently she has bungled it. She presented three charges and the grand jury, we believe, and we don't know because this is part of the issue. We don't, we haven't seen or, or the judge says he hasn't seen the full grand jury transcripts. There were three charges that were voted on, and they voted on two. They rejected one. And then when they went to court later that afternoon to present it to the court, Lindsey Halligan handed up those two indictments, one that had all three and one that had two. And the judge looked at them and said, I can't reconcile these. And so there's something going on here. This is fishy, right? This doesn't make sense. And so that's being litigated. That's being litigated about what went on in the grand jury. The other thing that's being litigated is how she was appointed. Can Donald Trump just fly in someone from out of town essentially and appoint her as prosecutor? Well, James Comey and Letitia James, who we'll talk about next, are both claiming that her appointment was not valid, that essentially presidents get one shot, you get one nomination within 120 day period. And if the 120 day period expires, because that's what the statute says, then the way you become United States Attorney is you either get voted on by the district court judges or he has to appoint someone else. But then they can't be acting. They have to be confirmed by the time by the Senate. So in other words, you can only be acting United States attorney for this 120 day period. So that's being litigated, but that is actually that portion of it's being litigated in another district outside of Virginia, and that's being handled by Judge Curry outside of Virginia. Why? Because the judges in Virginia are the ones who voted to install Eric siebert when his 120 days expired. And so Eric Siebert never made it to the Senate. Right. For, for confirmation. So the judges stepped in and they, what they did was they voted that he can be A validly appointed U.S. attorney past the 120 days. And so all of those judges that voted on him are conflicted out, essentially. And it had to be transferred to another jurisdiction. So that's also going on in parallel. And then you've got, I mean, there's so many issues going on with the Comey case. And today there was a hearing on this grand jury issue. But, Lisa, I've talked for too long. Why don't you take it from here on what's going on with the Comey case?

Lisa Graves (36:14)

Yes. I mean, this is another instance where you have someone who was acting previously as a criminal defense attorney for Donald Trump in this instance, although she had no experience in the field. What happened was that Lindsey Halligan met Trump down at Mar A Lago and became part of the team that was there assisting him as he was being investigated and charged with crimes for his retention of secret information, top secret information, information that was, you know, for four eyes only, for our, our most sensitive information that was being stored in a bathroom and other locations at Mar A Lago. So here we have someone who in essence, inserted herself into the Trump sphere, became a defense attorney for Trump, was rewarded when he was sworn in this January as an assistant secretary, staff secretary within the White House. And then when Eric Siebert said, there's no probable cause here, we can't we can't indict. We're not going to be able to convict James Comey on this. The claims that have been made. Then we had Trump basically hand pick, hand pick Lindsey Halligan, who, as you point out, her actual experience was kind of in a small time sort of insurance caseload, not in criminal prosecution or defense. And so then she walks in basically in the week after, after Trump tweeted or direct messaged Pam Bondi saying we're running out of time to basically prosecute my enemies. And then suddenly there's Halligan ready to do it. And as you point out, she has presented materials that are irregular, that are not consistent to the court. And the hearing today was really shocking, actually, the revelations that have come out, including the fact that the allegation, is that she presented a prejudicial vision or view of the law to the jury, the grand jury. One of the things. The second thing, as you point out, are these differences between what is the official indictment, what did they actually indict on and what did they not when she signed her signature to things that weren't accurate, weren't true, which is also a very serious issue. You can't just sign as a prosecutor an indictment that actually wasn't the indictment that the grand jury handed down. And then on top of that, you have this, this situation where in the hearing today there was a discussion of her just sharing some information with the foreman of the jury, not even the whole grand jury. And so this whole case might get kicked out. And that's just the procedural irregularities that we know of based on the discovery and investigation, in essence, or the examination, just to this point of this case. But it's also the case that there could be other irregularities because as you point out, those grand jury transcripts are typically not public. But I don't think the court has had a chance to examine the full set of those transcripts, what she actually said in full, and to whom and who was there. So that's another area for potential discovery and potential examination by the court. And then on top of that, you have this extraordinary circumstance where, as you point out, under federal law, because the Senate has an advice and consent role in our Constitution, if you're going to be appointed as the top prosecutor for a jurisdiction, you have to ultimately be confirmed to that position by the United States Senate, the consent of the Senate, or you can only serve for a very limited period. And that statute's been on the books for a long time. There was a brief break in that, where that provision was in Essence, rescinded for maybe a year or so, maybe a year or two. And then it was put back into place. Because if you do not have that requirement that the person who's serving as U.S. attorney either be confirmed by the Senate or by approved by the court for a limited period, you could have people put into these really powerful prosecutorial roles who are completely unfit, unsuited, untrained, malicious prosecutors wielding the power of the federal government to target, to selectively prosecute people, which, in my personal opinion, is what we're seeing happen right now with Halligan. Now, Pam Bondi, after she signed off on Halligan supposedly being the acting U.S. attorney, which is how these documents are signed, that Halligan is signing this grand jury indictment of Comey and Letitia as if she really is the acting Attorney General, because she actually could not even be the acting attorney general under U.S. law. That was unlawful on its face. Then you had two things happen. One thing was there was a claim by some right wingers that, oh, the president can just do whatever he wants, the statute's invalid, it's unconstitutional, even though it's been followed assiduously for decades. And two, Pam Bonney then issued a statement saying, well, she's not really the U.S. attorney, she's just a special attorney. And so these are valid, but she can't necessarily just like, remake the grand jury process to overcome that procedural error. And in both of these cases, the Letitia James case and the Comey case, these are cases where the career prosecutors and even the previous political appointees, people who are not anti Trump people, they were people who had, you know, in the case of Eric Siebert, he was someone who was in that acting role. They said that there was not sufficient evidence, in their view, either to warrant an indictment or to secure a prosecution. And so what does that mean for ordinary people? That means that the power of law enforcement, the power to put someone in jeopardy of losing their liberty, the power to hold someone, to hail them into court, have them undergo the expense of obtaining their own criminal defense attorneys, have them and their family facing the severe emotional stress of facing a potential criminal trial, this is happening with all of these irregularities because the power of the United States Department of Justice is not being wielded in order to advance justice. In my opinion, it's being wielded to advance a retribution agenda by Donald Trump. And in fact, during the campaign last year and previously, he has talked about getting retribution on his enemies. And this is prime example of the misuse of the power of the federal government to go after people that Donald Trump doesn't like or who have actually pursued him based on the existing actual law in terms of Donald Trump's behavior and in some instances, successfully. And so this is not the first, these are not the first two we're going to see coming out of this administration. But what's happened here is an illustration of just how in some ways incompetent but also retributive, in my view, these actions are.

Karen Friedman Agnipolo (43:18)

Yeah. Which is one of the other motions that Comey is bringing, which is vindictive and selective prosecution. Right. That this is a vindictive prosecution, that she only went in to prosecute him and that everybody else said, we're not all the line prosecutors and, and the career prosecutors all said, there's nothing here. We're not bringing this case. And that's, I think, also an area that's going to be potentially devastating to the case. I mean, I think it's gonna, there's a very vindictive prosecution's, a very, very, very high bar. And in fact, I, I don't even know of any. I can't think of any. In my, my experience as a prosecutor in 30 years, I can't think of a successful, a success, a successful vindictive prosecution motion that, that was brought because there's this presumption of regularity where you basically presume that people who work for the government are doing their jobs and, and, you know, they're not out to, to get you. You know, you're not the boogeyman. But here you kind of have all the evidence in plain sight, right? You've got, you've got Eric Siebert, the U.S. attorney, resigning. You've got all the other attorneys in the office refusing to bring this case. You've got Donald Trump tweeting or whatever it was, to truthing to Pam Bondi, you know, that famous one, Pam, you know, Lindsey Halligan likes you kind of thing. You know, indict Comey. I mean, it's just, it's just, it's all there. The fact that the way the grand jury was presented so sloppily and, and it might even be fatally, as, as you point out, just because of these irregularities. I mean, what came out today in the hearing was that the full grand jury didn't even get to vote on this final, the second indictment that was finally filed. It was just presented to the foreperson. That's why the judge kept saying, where are these missing grand jury minutes? Because I don't see the grand jury minutes of the grand jury Voting on this second indictment, because, remember, the first indictment, they didn't. They rejected. They rejected one count. And so that's why there were these two indictments. And so the one that was ultimately filed, the judge says, I don't see the minutes. And they said, today, well, there aren't any minutes because it wasn't to the grand jury. It was just to the foreperson. So will that be fatal to. To the grand jury, to this indictment? Who knows? And then there's so. And then there's the vindictive prosecution. But there's. There's so many other issues in this case that are being brought, including should the defense get to see the grand jury minutes. Right. That's also being ruled on. And the Department of Justice is.

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Is.

Karen Friedman Agnipolo (45:49)

Is fighting that. And. And asked Judge Nachmanoff to stay. To put a stay. That was the magistrate judge said, release it to the defense. Judge Nakmanoff said, we're gonna. We're gonna brief this. Let's hold off and see. So. So we're waiting on that. But there's also this issue of whether attorney client privilege material was used improperly in the grand jury, because the Dan Richmond, who is the individual in question, I can't remember they called it person number one, or however they referred to him in the indictment. But it's this individual, Dan Richmond, who both worked for the Department of Justice for a period of time and also didn't work for the Department of Justice for a period of time, and Comey, and was Comey's advisor as a lawyer, and this material would be privileged. And it's looking like they didn't put any procedural safeguards in place to filter out the privileged communications when he was advising Comey. And that has to be done. And again, if that was improperly used in the grand jury, that's going to be the subject of potentially this, you know, of. Of. Of throwing out this indictment. So there's so many issues here, including the fact that if you just look at the substance, Forget all the procedural things, if you look at the substance of what's being claimed that he lied about, it was very. I think this is the weakest case I've ever seen of a perjury or a lying case. I mean, there's no way. The question that was asked was so not clearly asked, and the response was not. It doesn't seem like it was enough, I think, to bring this case beyond a reasonable doubt. That's just my opinion. I think this case is weak on so many grounds, but especially substantively, just Given the fact that. Of the case.

Lisa Graves (47:42)

Yeah, really, it's something where, you know. So as someone who has worked in the Senate and then observed a lot of hearings, for example, in the Senate, I have seen a lot of statements that I think would be violations of 18 USC 1001, which is the provision about lying, you know, lying to Congress or lying to the. Lying under oath. And they're often not prosecuted. It is. When I first started working the Senate, I was sort of shocked in part because there had previously been an effort to impeach a president overlying under oath that was unsuccessful ultimately, in the. In the Senate trial. But the question of. On the substance. I really hear what you're saying, Karen, and I. And I agree with you. My opinion is that it's an extraordinarily weak case against James Comey. And also, like you said, it is the notion of vindictive prosecution is typically super hard to prove, except for when you have evidence like this, because there is. There should be no presumption of regularity that, like, a presumption is something that can be rebutted. And I think it has been fully rebutted by the evidence we've seen from Trump's own mouth or tweets or truths or whatever they want to call these, you know, these utterances of his. Maybe they're excited.

Karen Friedman Agnipolo (48:58)

I call them screeds.

Lisa Graves (48:59)

Screeds. You know, so there's that. But also, I think that when you look at the cases as they've been described in both of these instances there, it looks as though there's substantial, you know, substantial reasons to discount the assertions being made by the government and that the. The information has been presented in a very slanted way, including Letitia James and the mortgage and, you know, her niece staying at the. At the house that she purchased. Like, it really is. It really is. It's, like, strung together with, like, string and spit and Scotch tape or something. It's just, these are very weak charges, but that doesn't mean that they're not serious in the sense of the. The stress on the people who are being targeted by Trump and his minions. And I also think that this is a scenario where if this is allowed to continue, like, if the courts do not say, push these back, then I think it's going to get worse. There are going to be more and more of these types of activities. But for Comey, because there was a statute of limitations deadline, a clock was ticking, if the indictment is, you know, is invalid, then I don't think they get a chance to go again and try to re indictment on the basis of the assertions that Halligan made to perhaps the four person only.

Karen Friedman Agnipolo (50:17)

Yeah, that's. We'll see what happens. I mean, part of me wants this to go to a jury and have 12 people agree that there is no case here and acquit him just so that he, I mean, this is the Eastern District of Virginia, you know, this is not a bright blue state, if you will. And I'd love to just see that because that, that will, that would really take the thunder out of Trump, who, of course, if this gets dismissed on a, he'll call it a technicality from a liberal judge kind of thing, you know, that like he, like he attacks judges. But I don't see this even getting to a jury because it has so many, so many issues. So we'll see pivoting to Letitia James, the New York Attorney General, who is. And the reason we're grouping them together is both because there is a lot going on there as well or stuff going on there as well, but also because it's part of the same vindictive prosecution that is happening in the Eastern District of Virginia. Same prosecutor, same court, not, you know, same district court area and you know, same kind of, same kind of retribution that Trump is bringing against his enemies. And Letitia James was indicted on one count of bank fraud and one count of making false statements to a financial institution, as you said, because she characterized, she, she, they claim the allegations are that she misrepresented the use of a property in Norfolk, Virginia, that she said it was a second home, not an investment rental property on her loan applications. And so therefore she got slightly more favorable terms and, and saved I think a total of $18,000 over the course of the lifespan of this, have this mortgage. I'm thinking to myself, does everyone, I mean, do you really know the difference between a second home and an investment property? You know, it's. Can be both. But putting that aside for a minute, you know, but Attorney General James, she filed a motion last week and asked the court to dismiss the case with prejudice. So it can't be brought again on the grounds of vindictive prosecution, similar to Jim Comey and saying it was politically motivated and that it was stemming, you know, it was a retribution against her because she prosecuted or she brought the civil case, the civil fraud case against Trump when that he went to trial here in New York that we all got to cover extensively. And but a filing that just came out by James's defense team revealed that senior investigators at Fannie Mae found that there was no evidence of mortgage fraud by her in their internal review. And so it really a not only raises the question of do they have enough evidence, but also this is Brady material, right? Like that's going to come out. That's like evidence. Brady material is, is basically evidence that tends to exculpate a defendant. That shows you didn't do it. And the fact that senior fraud investigators at Fannie Mae believe there was no clear evidence that she committed mortgage fraud. And this, this legal filing basically says that there's certainly that. That Fannie Mae said that the case was, quote, certainly not clear and convincing evidence of fraud. Clear and convincing evidence is, is a legal standard. That's a much lower threshold than beyond a reasonable doubt, which is what criminal prosecutions require. And I just reminded myself of something, by the way, that I want to say in the Comey case, the grand jury minutes, and I don't mean to pivot from James, but this is too important. It's very similar. Lindsey Halligan in the grand jury said in the Comey case two things that are actually wrong. She basically said that Jim Comey will testify in his own defense and he can tell you, you know, basically said that he will tell you what happened or deny what happened, which is not true. The Fifth Amendment protects people in criminal cases and he doesn't have to testify. The burdens solely rest with the prosec. And she also essentially shifted the burden. And the prosecution has this burden beyond a reasonable doubt. The defense has no burden. And the defense has a Fifth Amendment right not to testify, actually, and doesn't have to say anything. So she misinformed them of that. And she also said, oh, well, we have other evidence, or you can consider other evidence outside what's been presented to in the grand jury also inappropriate. And I think it's going to get dismissed for those reasons alone. But back to James again, this is a different standard. Beyond a reasonable doubt is a very, very high burden and high standard. And if Fannie Mae didn't even think they had the clear and convincing standard, I don't know how they're going to get beyond a reasonable doubt. So that's just crazy stuff going on in the James case.

Lisa Graves (55:16)

Yes, that's exactly right. And you know, I think I'm so glad that you raised that point about the Comey situation, because the prosecutor can't basically shift the burden to the defendant and suggest to the grand jury that, oh, well, he'll have a chance to prove otherwise or that he'll testify because like you said, he's not required to testify at all. The Burden is entirely 100% on the government. And similarly, the other point you made as well, about the substantive legal standard, but for James, that Brady material, like, for people who don't follow criminal procedure as closely, that's a situation where under both the Federal Rules of criminal procedure and the case law related to it, if there's information that exonerates a person or could be seen as exculpatory to that person, the government is absolutely compelled to give that over to the defendant, to the person who's been charged with a crime, and that becomes material that then can be introduced to the jury to have a basis for finding of not guilty, for saying that they did not prove this case beyond a reasonable doubt. And here, like you said, clear and convincing is a lower standard. And those seasoned investigators within Fannie Mae said there just was not sufficient evidence to even reach that threshold. And when you look at the reporting around this case, what you see is that perhaps a couple times she rented out or some very limited period she rented out the, the, the home, but that her niece was staying there for, you know, some significant period. So there's, it's not even clear that she was using it as some sort of investment property versus a family property that, that occasionally got rented out. And like you point out, she's attested in essence, or at least the defense is the assertion is that the paper that the, that the indictment is hinging on wasn't even a paper that was submitted to get approval of the loan. It was a secondary set of documents. And so it's not even clear that the bank even relied on that one piece of paper. So all of this is super flimsy, and at least it appears super flimsy to me and I think to a lot of other people. But again, goes to how much the people who are loyalist to Trump are grasping at straws, how desperate they are to appease him, to use the criminal prosecution power in this way to target people who were just doing their jobs in the case of Letitia James, to be pursuing what was actually an enormous, enormous amount of fraud, dollar wise, in terms of Trump's actual misrepresentation of the size of the properties that he was speaking with the banks about. Those were material, material misrepresentations over many years of substantial amounts, amounts of money that he was doing purposely and in fact, in some of the material that was introduced in that trial, and you may know this better than me from following it on a more daily basis. It was an extraordinary. Trump benefited enormously from those misrepresentations, those material misrepresentations by the Trump Organization, and that were consistent, at least as the evidence was presented to the jury in that case, with his whole approach to basically exaggerating, exaggerating, exaggerating. And you can't do that under federal law or state. Pardon me, under state law, as well as under federal law. And so the jury did find against Donald Trump, did find him liable. And obviously that case has been contested on appeal. But, but Letitia James was not pursuing a picayune, penny ante sort of suit of whatever the amount of rent she may have received from Airbnb or something. This was a substantial fraud that Trump was initially found to have committed in order to have substantial gain for himself. And now we're at the point in this American society where we have a president who has been and was properly indicted by grand juries, federal grand juries, and state grand juries based on evidence that he committed crimes or violated, you know, state or federal crimes. And now he wants to get vengeance on those public officials who were just doing their job.

Karen Friedman Agnipolo (59:56)

Yeah, that, that case in front of Judge Arthur Angoron was a bench trial here in New York that we followed very closely. And you are 100% right, Lisa. The evidence there was just so astounding of the amount of fraud, not just dollar amount, but the number of times these misrepresentations happened about what property, what it is to get. I mean, the same property would have different values. Defending. If you're trying to get a loan or a tax rate. Right. If you're trying to get a loan, you're going to inflate the value. If you're going to try to get, you know, you're going to decrease the value if you want to pay lower taxes. I mean, it was just black and white. And that was a case that there was so much there, and that was a really, really intense trial that we followed pretty closely here in New York. But this is an $18,000 checking the wrong box, potentially even if she checked the wrong box. But the fact that you've got senior people saying there's nothing there, and he's bringing it anyway. Again, another perfect example of vindictive prosecution and a substantively very weak case. So we'll see. We're going to keep people posted on both of these cases because a lot's going on and going on in real time. And the reason, one of the reasons this is all going on in real time is because The Eastern District of Virginia is a rocket docket and they both said they want trials in January, so they're on this really accelerated schedule. So we'll keep everybody posted on what's going on. And we're going to take our second ad break, our last ad break. Again, our amazing sponsors, and we couldn't do this without them. And you, the Midas Touch and Legal AF community, who we are just so incredibly lucky that there are people who come week after week, day after day to the Midas Touch network to listen to what we have to say. And the more times you watch us and the more times you listen to us, various algorithms go up and that helps us and it helps us get sponsors who help us keep the lights on. So we appreciate all the support and all the engagement and it's frankly why we do what we do. So take our next quick ad break before we talk about what's going on in Texas. Are you like me when the holidays are coming and you have to go to work and then go to a party and you're like, what do I do? How do I put my makeup on? And getting ready always feels like such a hassle. And carrying your makeup with you, you don't want it to look too heavy, et cetera. And there's this brand new product that I love. It's called Jones Road and here we have it. It is this incredible product that I carry with me and it's got these three different colors in it that you can use as foundation, you can use as blush, you can use as eyeshadow. It doesn't feel heavy, it feels great. And I'm so happy to have it. It fits in my purse perfectly. And it's kind of a minimalist makeup brand that I like because I want it to be. I don't want heavy, cakey makeup. I don't like that look. And so every formula has clean, skin loving ingredients. And so I really am a fan and like to use it like I said, and carry it with me so I can use it throughout the day. So they've just launched their first most giftable and exclusive holiday collection yet. These five limited edition edition kits in the collection are trios like like this that include a new holiday shades, products and packaging. Whether you're gifting or getting ready for holiday parties, these curated sets take the guesswork out of your makeup routine. Don't miss out. The sets won't be here for long and once they're gone, they're gone. All Jones Road beauty products are actually good for your skin. They look and feel natural, like you're not wearing any makeup at all. And they create that natural no makeup look which I really like. So their best seller is Miracle Balm, the ultimate makeup skincare hybrid product that gives a natur glow. It's a true multitasker and can be used as a tint, a blush, a bronzer highlight on the lips. It can replace almost all the products in your makeup bag and it's the perfect go to when you're rushing from work to a holiday dinner or need to just look pulled together for a podcast or another party. So this holiday season, simplify your routine with makeup that's clean, strategic and multifunctional. From November 18th to December 1st, Jones Road is doing their first ever Black Friday sale. Go to JonesRoadBeauty.com to get up to 20% off site wide. That's JonesRoadBeauty.com for up to 20% off your entire order. They'll ask you where you heard about them. You have to say legal AF and you will get your 20% off. So thank you for sponsoring us Jones Road and I hope you try their products.

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Karen Friedman Agnipolo (66:25)

We'Re going to talk about a new ruling in Texas blocking congressional maps by a Trump judge nonetheless, who blocked these congressional maps. So very, very interesting stuff going on. So look, there's this kind of gambit going on across the country of redistricting. California just had a proposition that passed in order to redistrict and get more congressional seats, and that came largely as a result of what Texas did. And, and Texas basically redistricted, but you're not allowed to do it on racial grounds or that can't be the primary motivator. And there's this statute, the little pesky statute called the Voting Rights act that essentially lays that out. And states generally have a lot of leeway to decide the time, place and manner of elections and how it goes on because that's what it says in the Constitution, right, in federal elections. And so they get to set up their congressional districts. And this term gerrymandering. And you know, there's all sorts of these, these, these maps that they draw are really crazy and unfair in so many ways. They, they're politically motivated. They are done in ways, each party does it in ways to gain an advantage. But all of that's okay. Believe it or not, you're allowed to do that. What you're not allowed to do is make the primary motivation be race. And on November 18, which was yesterday, a three judge panel in El Paso, Texas issued a preliminary junction. In other words, blocking this Texas redistricting map that they were going to get as many as five new seats. I believe it was passed in mid-2025 by the Texas legislature and the governor, Greg Abbott, signed it in August. And it was explicitly designed to give Republicans as many as five extra houses seats in the midterm elections coming up. And the court found substantial evidence that the map was racially gerrymandered, meaning the state lawmakers manipulated these district lines with race as a predominant factor, not just partisanship. In my mind, it's all unfair. But I'm telling you what the law is. I don't think you should be able to do it for partisanship reasons either. I think it should actually be fair and represent people, but that that's for another day. So basically their decision emphasized that politics played a role, but it was much more than just politics and that the court then therefore has to use the 2021 map. Now Texas usually does this every 10 years when they do the census, which makes sense, right? Because you do a census, then you see what the state is made up of and you make changes as appropriate. But they did this midstream five years out to try to gain more seats during the midterms because they're trying to maintain their hold in the House. And so it's going to be interesting what's going to happen next because it's unclear. We're in the middle of this 30 day period in Texas where candidates have to declare their candidacy when they're running for office and some people might not know which one, which seat they're trying to go for. And if the is it the 2021 map, is it the this 2025 map? And so everything is chaotic there. And I learned something today and maybe you know more about this, Lisa, but this was not handled by a district court because it's an election voting rights thing. It was handled by a three judge panel made up of two district court judges and one appellate judge. And then it's going to go to the Supreme Court after that. So I found this to be sort of an interesting, an interesting situation we find ourselves in, especially in Texas. What are your thoughts on this?

Lisa Graves (70:21)

Well, this is, it is a good development from the standpoint of representation. But we saw a response immediately from Pam Bondi saying that they're confident that they're going to prevail before the Supreme Court because the Roberts court has, has acted with such hostility toward the Voting Rights Act. In fact, I have a whole chapter on voting rights in my book and I'm going to show my book for a second if you'll bear with me. I have a whole chapter on it because voting in America is inextricably, has inextricably been tied to race and in fact limiting the power of black voters in particular and trying to dilute the votes of black Americans. That's the origin obviously of the Voting Rights act, that landmark law that was was passed in 1965 based on the blood, sweat and tears of a multi decade movement to secure what the 14th and ultimately the 15th amendment sought to make real, which was the right of black Americans to vote and to not have their votes diminished, not have their votes disregarded, not be able to register to vote, not have them counted. And so this question of how are these maps created? Are they created in a way that is intended to dilute the vote of minorities, where you have a white legislature trying to use its power to dilute minority representation. That's at the heart of what the Voting Rights act was designed to prevent and what this section, Section two, the Voting Rights act, was designed to prevent. And in fact, this section, section 2, that is the section that governs these claims about maps. Maps is the very section that John Roberts targeted when he was first in the Reagan administration as a special assistant to the Attorney General, trying to block Congress back then from considering the effect of changes in maps on representation. And so the Supreme Court right now, separate from this Texas case, is considering, considering basically ruling the Voting Rights act unconstitutional in places where the statute and the case law has said that you have to ensure that there's minority representation, a minority majority district in a particular state, particularly in these Southern states, in order to make sure that people's votes are not diluted, that black Americans votes are not diluted, and also by extension, that Latino votes are not diluted by a white majority. Cutting up the maps, packing and cracking these districts in order to maximize the white representation, in essence, and limit the power of people in racial communities to have their to be represented in our American legislature. Because, as you know, America is a republic, a democratic republic, and we have, we're supposed to have representative government. I agree with you on that broader point. I think maps should be proportionate. We should not have situations like in North Carolina where you have, you know, a nearly 50, 50 state when it comes to statewide races, like for the governor or the attorney general. And yet the, the legislature has been gerrymandered in such a way that they can have like a super majority of the representations to Congress. And we, and we're seeing that right now. Similarly, in the case that the court, the Supreme Court is hearing in the Calais case involving Louisiana, where Louisiana has one third of the population, Louisiana is black, and yet the white legislature cut. The jurisdictions have five white majority districts and one black majority district. And that's the case that, that's the case that's currently being considered. Sorry about that. The Texas case, like you said, these three judge panels, which are how the law works in the voting rights cases, to evaluate a change in the map. This is so, so it's such an important decision, and I think it's the right decision on the merits, on the law, based on the evidence as it's been described. But the Fact is, is that it's only recently that states have been involved in these irregular mid decade redistricting. As you point out, for most of American history, when you have a census, then you have a map redrawing and then those maps hold until the next census where the maps are redrawn based on changes in population. But here you have a President Donald Trump, who is so worried about losing that majority control in the House of Representatives that he has been trying to direct Republican members of his party to change the maps midstream mid decade in order to limit Democratic representation, limit and enhance the ability of him to remain in control of the House of Representatives. And Texas took this action, as you point out. And California's proposition was only as a response. California never would have put forward that proposition if Texas had not tried to basically pre rig the 2026 midterms. And Trump has asked other states to do the same. Missouri, North Carolina, Ohio and other places. And so this is extraordinary. We already have a US House of Representatives where in the 2022 election, those midterms when Biden was president, this Supreme Court already allowed maps in Alabama that were in violation of the Voting Rights act to go forward because they said it was too close to the election to have corrected maps. This was in February of 2022. And so the only reason the Republicans ended up with a majority that stopped really had the effect of stopping that January 6th investigation and stopping Biden's legislative agenda is because the court had already allowed that to happen. Then they subsequently said, no, no, no, Alabama, for the next election, you're going to have to redraw the maps to be consistent with the Voting Rights Act. And then they decided now to take up this case to say, well, maybe we're not going to even apply the Voting Rights Act. And in essence, I just want to, I don't want to miss this point because this was a two to one decision in Texas. It's going to go up to the Supreme Court. As you point out, people are registering to run for office right now. The deadline, I think, is December 9th. So it's like two weeks away, two and a half weeks away to register for where you're going to run. And then the primaries are in the spring. But the House minority leader in Texas, Gene Wu, he represents Houston. And this is one of the districts that has been targeted by the Republicans in ways to try to crack minority voting, he said. And it's just so well put, he said a federal court just stopped one of the most brazen attempts to steal our democracy that Texas has ever seen. And he goes on to say Greg Abbott and his Republican cronies tried to silence Texans voices to placate Donald Trump, but now they've delivered him absolutely nothing because the way they did these maps, as the two to one judge panel found was racially based, was focused on a racial gerrymander which still under federal law, and I would say under the Constitution is illegal.

Karen Friedman Agnipolo (77:35)

There was a dissenter that had some pretty wild and crazy dissenting language in this case. Jerry Smith is his name. Judge Jerry Smith and and this is Kyle Cheney posted these on X from the dissent and it basically the main winners from Judge Brown's opinion, which is the main opinion here that that found this to be illegal, says the main winners from Judge Brown's opinion are George Soros and Gavin Newsom. The obvious losers are the people of Texas and the rule of law. I dissent in the interest of time. This dissent is admittedly disjointed. Usually in dissenting from an opinion of this length, I would spend more days refining and reorganizing the dissent for purposes of impact and reliability. But that approach is not reasonably possible here because these two judges have not allowed it. The resulting dissent is far from a literary masterpiece. If, however, there were a Nobel Prize for fiction, Judge Brown's opinion would be a prime candidate. Judge Brown could have saved himself and the readers a lot of time and effort by merely stating the following. I just don't like what the legislature did here. It was unnecessary and it seems unfair to disadvantaged voters. I need to step in to make sure wiser heads prevail over the nakedly partisan. I mean it goes on and on. And he says, In 37 years as a federal judge, I've served on hundreds of three judge panels. This is the most blatant exercise of judicial activism I've ever witnessed. There's an old joke. What's the difference between God and a federal district judge? Answer, God doesn't think he's a federal judge. Or a different version of that joke. An angel rushes to the head of the heavenly host and says, we have a problem. God has delusions of grandeur. The head angel calmly replies, what makes you say that? And the first angel whispers, he's wearing his robe and keeps imagining he's a federal judge. Only this time it isn't funny. Now I have never read dissent that is anything remotely like that in it or that basically says I'm being rushed and so I'm disorganized. It just astounding what's going On. I mean, it's like the, the world that I have practiced in in the last 35 years and the world that exists right now is just. I don't recognize it in terms of the legal world, I'll tell you that. It's a very, very odd descent with some incredibly colorful language. So, yeah, this will go to the Supreme Court.

Lisa Graves (79:58)

Yeah. I mean, Jerry Smith is, has been on the bench for a long time, but I have never read a scent like that. It's almost like someone dictated it, you know, over drink. It really is sort of a reckless, you know, joke filled opinion. It's unbelievable.

Karen Friedman Agnipolo (80:15)

And he names George Soros and Gavin Newsom.

Lisa Graves (80:18)

Yeah, yeah. I mean, and then he has the audacity to claim that it's the. It's the majority that is off the rails. You know, the fact is, is that, you know, this. It just shows in some ways how much some of the MAGA world or Republicans who become more the MAGA world are just steeped in this disinformation sphere. The idea that, that George Soros would be named at all in a dissent in this case involving the rights of Texans to make sure that they have representation is extraordinary. The fact that he would try to claim that this is some sort of victory for Newsom, it's absurd. This opinion, the majority opinion in this case, was written by a judge appointed to the bench by Donald Trump himself.

Karen Friedman Agnipolo (81:04)

Exactly.

Lisa Graves (81:05)

So this idea and the politicization of it that Judge Smith injects in his dissent, it is another sign of the way in which Donald Trump has fractured not just American society, but also the American judiciary. And some members of the judiciary, in essence, to act like they have got to be fighting some sort of cultural war rather than actually applying the law. And when you look at what happened in Texas, it's not just that this was a case, you know, crying out because it's unfair, it's that it violated in the, in the determination, the factual and legal determination of the two judges in that majority. It violated longstanding existing law to construct these maps this way. And the fact is that this is a real issue. And if this court, the U.S. supreme Court, ultimately sides with the Texas legislature and puts these maps back in place, and if this Supreme Court ultimately strikes down as unconstitutional or blocks the ability of judges to enforce the limitations on dilution of the vote, we're going to see not just five seats in Texas, but we could see additional seats in Texas being remapped. That could also reduce the representation of Latinos in Texas despite the growing Latino population. In that state. And in fact, there's a recent analysis by Fair Maps Action that talks about how if the U.S. supreme Court were to strike down the Voting Rights act protections that have long existed against the kind of vote dilution that was found in this case in Texas, that the Republicans could gain at least 19 seats and possibly more, which would secure the Republican Party, in essence, a near permanent majority in the United States House of Representatives, despite actually representing a minority of American people. Because the effect of these games with MAPS is to allow an inappropriate, an illegal, illegitimate sort of minority rule in a country where we're supposed to be defined by, in part by having majority rule along with the protections and the Bill of Rights. And so the stakes could not be higher. The fact is that most of the time in recent history, the past few decades, during midterm elections, the party in power, the party in the presidency, usually loses some seats because people are dissatisfied with the status quo. And so usually there's a gain by the opposing party in the midterms. Not always, but usually that happens. And Trump is trying to fight off those headwinds. In addition to the fact that he himself is at his most unpopular in all the recent polling because his policies have been so extreme and erratic and disruptive. And in fact, I would say, in my opinion, his policies have also been, you know, unconstitutional and in violation of a number of statutes and regulations and rules in all sorts of places in ways that have just been really horrifying and, in fact, terrifying for a lot of people in America to see the rule of law so disregarded in so many ways by this president. So he really is fighting an uphill battle to try to bend and break the rules with the help of some of these legislatures in order to preserve a Congress that won't investigate him, that will not be a check in the system, checks and balances against him. And my personal view is, boy, we need checks and balances more than ever. Especially because this Roberts court, as I write about in my book, John Roberts, orchestrated the counter constitutional grant of immunity from criminal prosecution that didn't just, in essence, pardon Trump retroactively, but swept him back into power and has basically empowered him to believe that there are almost no limits on his power. And this power grab, this effort to get Texas to rewrite its map in 2025, halfway through the decade, just for his power. That rigging is just so dangerous to the fundamental functioning of our democracy.

Karen Friedman Agnipolo (85:23)

Well, the. The entire. The entire MAGA majority seems to just be doing Trump's bidding for him and essentially everything he's trying to do, they're green lighting, it seems. So we do need those checks more than ever because we certainly don't have them.

Lisa Graves (85:39)

Yeah, that's my view. That's my opinion, too.

Karen Friedman Agnipolo (85:41)

Yeah. All right. Well, Lisa, we reached the end of another episode of the midweek edition of Legal af. I can't thank you enough for joining and for giving your perspective. It's really interesting to hear what you're saying about Roberts, and I look forward to reading your book because I remember when he was first appointed, I actually went to the Supreme Court and watched him and I thought, oh, he's kind of, he just didn't seem this way. He seemed like respectable and respectful and I had hope for him. And this is just so disappointing where we are today. So the Supreme Court's lost a lot of legitimacy amongst a lot of people. And, and I think I don't know how we come back from this. So who knows? Maybe they'll, maybe they'll, maybe they'll, you know, maybe they'll increase the size of the court. Right. I mean, it's a lot of our.

Lisa Graves (86:33)

There are a lot of reforms that I think we have to have on the table to talk about what's happened to this court and how it's lost its way.

Karen Friedman Agnipolo (86:39)

Yeah, it really has lost its way. But you know who hasn't lost its way? The American people.

Lisa Graves (86:43)

Yes.

Karen Friedman Agnipolo (86:43)

I really have faith in people. The more I just, I see what's happening all across the country where people are coming together and whether it's through protests or voting or making their voices heard and being part of this amazing community and, and we're all here together and we got to keep fighting because this isn't going to be the way it's going to be forever. It can't be. So, Lisa, thank you. Thank you, thank you for joining. And thank you again, everybody, for joining us this week. And we look forward to seeing you on Saturday with Ben Meiselas and Michael Popak and again with me and Michael Popak next Wednesday. Thank you so much, everybody, and have a great night.

Lisa Graves (87:24)

Night.

Karen Friedman Agnipolo (87:29)

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