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- [00:01]
Michael Popak
This episode is brought to you by Shopify. Upgrade your business with Shopify, home of the number one checkout on the planet. Shop pay boosts conversions up to 50%, meaning fewer carts going abandoned and more sales going cha ching. So if you're into growing your business, get a commerce platform that's ready to sell wherever your customers are. Visit shopify.com to upgrade your selling today. This episode is brought to you by Progressive Insurance. Fiscally responsible financial geniuses, monetary magicians. These are things people say about drivers who switch their car insurance to Progressive and save hundreds. Visit progressive.com to see if you could save Progressive Casualty Insurance Company and affiliates. Potential savings will vary. Not available in all states or situations. It's Truck month with the Ford crew. Sam, do you know what these trucks have in common?
- [00:55]
Karen Freeman Agnifilo
They are all Ford trucks and and they're built Ford tough.
- [00:59]
Michael Popak
Also true, but specifically they're Ford F series trucks. The best selling trucks in America for 40 years.
- [01:04]
Karen Freeman Agnifilo
48 years. We should celebrate a month long event, a truckload of value across the entire lineup of four trucks. Sam, that's called truck month already, isn't it?
- [01:15]
Michael Popak
Yeah, it is. Based on 1977-2024 Cy Industry reported both of sales. It's the midweek edition of Legal af, your favorite law and politics podcast Wednesdays with Karen Freeman, Nick Nifolo and Michael Popak. Where do we start? I guess we'll start with whatever they called 140 minute long fake State of the Union address last night. But more particularly we'll focus on the intersection of flawed politics, like when Donald Trump blew the doors off of most of the cases involving Doge. There's about a dozen of them because he finally said what everybody knows, that Elon Musk runs Doge. Duh. But the Department of Justice has been taking counter positions on that until now. And then we got that weird moment when Donald Trump entered the arena, entered the chambers and did like a fist bump little belly pat of Chief Justice Roberts who looked very uncomfortable. Talk about things that were said there. And Amy Coney Barrett who's getting like flamed roasted by MAGA because they don't like the fact that she like turned away and didn't look at him and didn't want to participate in this in this charade. And right into from off of that we'll go right into the United States Supreme Court because we got two rulings back to back one today in a 5 to 4 decision, the majority of the Supreme Court with Robertson, Amy Coney Barrett in the majority basically said that the $2 billion in humanitarian aid needs to be sent out, upholding a order of Judge Ali in the District of Columbia. A shocking blow to the Trump administration with a scathing dissent by who else? Sam Alito, writing on behalf of Gorsuch, Kavanaugh and Thomas, which he said he was stunned, stunned by the majority's decision. I was stunned by the dissent. We'll cover it with my colleague, Karen Freeman Igniflo. And that, you know, they, they give with one hand. They take, they take away with another. We got a new ruling the day before yesterday by the United States Supreme Court that basically said it's okay to have raw sewage pouring into your water supply and gutting many, many aspects that we have come to hold dear and keep us healthy and safe with our Clean Water Act. We'll talk about why, as one satirical X account referred to it, why do we have to drink poop water? Why is the Supreme Court okay with that? I bet you they're all their water spiltered, by the way. So we got that kind of back to back bookends on the United States Supreme Court as Donald Trump starts to try sort of to walk back some of his most extreme positions about firing certain workers, while at the same time, we got two back to back rulings, one by Judge Amy Berman Jackson, the other by Judge Rudy Contreras in the District of Columbia. On two sides of the same coin about our Civil Service pro Civil Service program. One side being the Office of Special Counsel headed by Hampton Dellinger, a Biden appointee. The other, Kathy Harris, I think her name is Kathy Harris. The head of the Merit Protection Service Board, who is also a Biden appointee. Both got canned. When you fire the very watchdogs that are responsible for stopping illegal firings of federal workers in retaliation for partisan reasons, and you fire them, you might end up in court. Yeah. Might get a permanent injunction issued against you. And we're going to talk about how those cases were played out. What was the basis of those cases? One of Karen's favorite precedents, Humphrey's executor. We're gonna. We're gonna talk about it. I know you love that case. I saw you talk about it. And on its way to the United States Supreme Court. And I think that's gonna be our show. Well, good night, everybody. Hi, Karen. How you doing?
- [05:09]
Karen Freeman Agnifilo
Hello. I'm good. How are you?
- [05:11]
Michael Popak
I'm doing fantastic. Tell me about what's going on in your life with all your lovely children and your lovely husband and all that, all that fun stuff. We Never really get to dive into.
- [05:19]
Karen Freeman Agnifilo
Oh, yeah. Well, my husband, you know, he's. He's been on trial and out of town, so I barely see him these days. But hopefully I'll see him again soon. And everyone's good. Thank you for asking. How about you? How's. How are things? I see you in a short sleeve, short sleeve shirt.
- [05:36]
Michael Popak
It's cold in here. Yeah, yeah, yeah. We move. My wife and I move south with our. With our baby daughter. Everybody's thriving and appreciate you asking. And this is. Yes, the new podcast studio for Popoc Media Enterprises, or whatever we're calling it.
- [05:52]
Karen Freeman Agnifilo
Is that a dartboard behind you?
- [05:55]
Michael Popak
Yes. Because, you know, that's funny. I shifted my computer and it wasn't on camera before, so I. Let's. I have to just make a confession. I was a dart hustler in college. Really? Yes. I played on the Metropolitan Dart League at nyu, which was not made up of college students. It was made up of semi alcoholic guys in Irish pubs all around Manhattan, by the way.
- [06:18]
Karen Freeman Agnifilo
This is like breaking news.
- [06:19]
Michael Popak
This is breaking news.
- [06:20]
Karen Freeman Agnifilo
This is like, you know, I bet you'd ever discussed this in one of your. In one of your Patreons or anything else. This is. This is a big deal. Like, people are learning. A dart. What?
- [06:32]
Michael Popak
It was the Metro. It still exists. It's the Metropolitan. The Metropolitan Dart League. Like a bowling league in Manhattan. We went from Irish pub to Irish pub on Tuesday nights. And I even had a. A fake name. A fake. There's a group of people in New York. Thank you. There's a few people in New York that know me not by Michael, Mike, or Popak. They know me by Vic. Vic. That was my dart name.
- [06:58]
Karen Freeman Agnifilo
Why do you have a dart name?
- [07:00]
Michael Popak
Because there were so many Mikes and Michaels that when we used to sign up on the dart. On the. On the list to be next, they would yell out, mike in an Irish pub. Do you know how many people turn their head Vic? No, I came up with Vic, which was an inside joke with some friends of mine from college, and I was Vic. So to this day, I will run into somebody from that era and I'll put my hand out and go, michael or Mike. And they'll go, no, that's not your name. I go, vic. I go, yeah, Vic. You're Vic.
- [07:27]
Karen Freeman Agnifilo
And so wait, what is it called? The Dart Shark.
- [07:30]
Michael Popak
No, I don't know. What. No, he's saying I was a dart shark.
- [07:33]
Karen Freeman Agnifilo
Oh, God, hilarious.
- [07:35]
Michael Popak
No, we played for some money. It was like a dollar. You know, we were in college I barely could afford the falafel stand around the corner from the college. You know, I was poor.
- [07:45]
Karen Freeman Agnifilo
That's a really, that's, that's an amazing little story. I always. Yeah, exactly. Salty. I always knew you were a hustler.
- [07:52]
Michael Popak
So when I'm, when I'm blowing off steam before, between videos, I have, this is regulation and I have the exact same spot I'm supposed to stand and I just throw darts, you know, to kind of. So if you ever hear me on a phone conversation here, that's what's going on.
- [08:10]
Karen Freeman Agnifilo
Yeah. You're going to have to show off your, your skills one time. Cool.
- [08:15]
Michael Popak
Not so much darts. Starts. All right, well, we've, we've bored our audience long enough. Let's turn to our first topic. And, and everybody that wanted to see the joint address to Congress that Donald Trump did has seen it, or they've seen the Midas touch versions of it, or the. But let's try to turn it right to the things that matter in the courts of law. Like what did you make of Donald Trump? Couldn't help himself. And I'm sure his Department of Justice was slapping their collective foreheads when he had Elon Musk stand up, stand up and say, there he is, the head of, the head of Doge. Given the conflicting positions that have been taken in the 12 different cases, and the judge is getting really pissed off and on the verge of various contempts about what is Doge, who is Doge? Who runs Doge, who's the administrator of Doge? You have the press secretary, you know, just a week ago, saying, you hounds. Why do you keep asking me? We've told you, it's this 53 year old woman in Tennessee that's in Mexico right now on vacation. She's the head of Doge, not Eli, don't look at Elon Musk. And now we know it's what we've always known. He's running the Office of Personal Management. He's running everything. He's stopping payments, he's firing people. What did you make of it? And what did you make of what's happening next in the courtrooms based on that revelation that, that confession?
- [09:39]
Karen Freeman Agnifilo
Yeah, I mean, look, last night's, whatever you want to call it, speech rally, whatever it is, was, was just stunning to watch, frankly. I actually watched it in reverse. I watched the response by Senator Slotkin first. And just because timing wise, I wasn't, I wasn't available at the time that the speech was given. And boy, is she impressive. What an incredible background she has, too, that she was in the CIA, that she's a public servant, that she's from Michigan, and she's from a place where both she, as a Democrat won and Trump won as a Republican. Her perspective was great, her delivery was great. And frankly, she just looks like the future of the Democratic Party. But in addition to her as being impressive, I really like what she had to say. It was quite. It was common sense, it made sense. And I couldn't wait to then see what Trump said, just to kind of juxtapose it. And that's like a clown show. And it would be funny, except it's sad because it's obviously messing with our entire country. And it's just really unbelievable how much the rule of law no longer matters, the truth no longer matters. And it was, you know, and how he used so many props, that is people, children with brain cancer, et cetera, to try and make his points. It was really just a really unpleasant, difficult thing to watch. But as you said, one of the hardest things to watch is just the blatant disregard for how in court filings, they say one thing, but last night, he says to the American people, to everybody, that Elon Musk is the head of Doge. There it is right there. He says he's the head of Doge, and there he's standing up, everyone's applauding, telling him he's doing a great job. I mean, that's exactly what was happening. And the reason that's stunning is. Let me just frame this issue a little bit for people so they understand. So the Supreme Court makes it very clear from cases, right? Case law that's interpreted that people who serve in a, quote, continuing position in government and exercise significant authority on behalf of the United States must be appointed consistent with the Constitution's Appointments clause, okay? Because there's an Appointments Clause in the Constitution, and it basically, it's part of Article 2, and it essentially sets forth two ways you can appoint officers of the United States. There's principal officers, okay? Those are people who report directly to the President. They must be nominated by the president, and they're subject to the advice and consent of the Senate. That's in the Constitution for inferior officers. The Constitution allows Congress to give that power to the President alone, so that meaning they don't have to have Senate confirmation, okay? That person can just basically be hired by the head of the department or by the President or the courts of law. And so is Musk an inferior officer or is he a principal officer? And that's obviously Very important as to whether or not he has to be Senate confirmed, about whether he has the authority to do the things that he's doing, whether he has to have hearings and financial disclosures and all the things that any principal officer has to have. And what they said in court was basically that. And this is in front of Judge Chutkan, what they said in court on the, you know, sworn statement, on the record. You're an officer of the court. Oh, no, no, nothing to see here. He doesn't work for Doge. He's not head of Doge, you know, nothing like that. But then to have him say in public to everyone, to the American people that he is the head of Doge, it's just inconsistent. And Judge Chutkan has reminded the Trump lawyers that there has to be candor to the court essentially saying, don't lie, but he's lying. And it's just the ultimate gaslighting. Right. He says, oh, I didn't say that. I didn't mean that. Oh, but I'm, you know, but then he says something else. This is, this is blatant. And I think, I think the plaintiffs are going to have a field day with this. I mean, they're going to run into court. I think one already has run into court. Yeah, yeah, exactly. To basically say, look, this is what it is. And I just want to point out one little irony, which is Eileen Cannon said Jack Smith was illegally appointed because he was a principal officer. Right. And he didn't have the advice and consent of the Senate and therefore dismissed. You know, basically said he was. He had too much authority, too much power, reported directly to the President. All that was a principal officer. And therefore he had to be appointed and confirmed by the Senate. If that applied to Jack Smith, MAGA is just being absolutely disingenuous, applying a different standard to Jack Smith than to Elon Musk. It's just outright blatant for MAGA to hold on the one hand that Jack Smith was improperly appointed because of this principal officer appointments, but not Elon Musk. They just, they're not honest. They're just dishonest brokers and interpret the law and facts as it suits them in there. And we know that. Right. That's how it's been. But to me, that was the starkest example of that.
- [15:11]
Michael Popak
Yeah. In fact, that night, that's a very, very good synthesis of inconsistencies in position taking that should, that should end up undermining the Trump DOJ in court. Judges already, as I've said, getting fed up. They want depositions, they want sworn statements. They're granting limited discovery on these particular issues because they'll be able to, you know, federal judges are. And, and the, and the adversarial, litigated process, litigation process is very good at a number of things. And one of them is get the bottom of facts and get evidence provided to courts. And they can do it through compelled discovery and depositions and ordered things that judges, that, that this is what judges get paid to do. So if there's a fact to be ferreted out, it's going to get ferreted out. So this whole shell game that, that the Trump administration has been playing and intentionally keeping their Department of Justice attorneys beleaguered as they may be, complaining about being overworked and underpaid and having had a day off since January 20th because there's 95 cases, not my f. Fault, not my problem. You know, they purposely keep the DOJ in the dark so they have plausible, increasingly implausible deniability about what is the relationship between Doge, the Doge Service, Elon Musk, the Doge Administrator, the Office of Personnel Management, who's got their fingers in the pie in terms of hitting the stop button on funding, who's killing the checks, who's firing the people. I mean, we are 45 plus days into this administration, or as I like to call it, the American Hostage Crisis, and judges can't get a straight answer out of anybody. One judge referred to it as so opaque, he can't even figure it out. And then Donald Trump, much to the chagrin, I'm sure, of a forehead slapping Carolyn Levett, the press secretary, who said, why you hounds in the media? Why do you ask me questions? Why do you require me to answer? I don't know. You're the press secretary. That's what your job is. That's the taxpayers pay you to do. Know the answers to things that keep her in the dark, or in the stupid, as I like to refer to it. And then, and then she says, all right, I'll tell you who it is. It's not Elon Musk, or I won't tell you from this podium. That was my favorite. I'm not gonna. I know. I thought I was in the fifth grade. I know, but I'm not gonna tell you, okay? That's not how that works in court, Caroline. But Carolyn Levette has already screwed up the Trump administration already once over, over funding issues when she did that improvident social media posting where she said, no, no, no, we didn't you know, we didn't reverse course on the president's executive order. We did it on the memo about funding. And every judge jumped on it and said, see, they didn't reverse course exactly. Injunction granted. And so that night, Karen, last night at about 9:50 at night or so, within minutes, one of the cases filed a judge additional new evidence with the exact, from the YouTube and the quote and the pointing and the whole thing in a case involving certain types of federal contractors and workers.
- [18:33]
Karen Freeman Agnifilo
So we got, can you imagine if one of us applied to a federal judge like that? We'd get, we'd get Rule 11 sanctioned in two seconds.
- [18:40]
Michael Popak
I get, I mean, found in contempt, within sanctions.
- [18:43]
Karen Freeman Agnifilo
We'd be like, we'd be disbarred. Seriously, like lying to the court. This is not, this is not a political campaign where you basically politicians are somehow expected to lie and exaggerate and well, it's just politics in court. Even though it's an adversarial process, you have a duty obviously to be completely honest. I mean, you know, it's, you're, it's just unbelievable to me. But the thing is, they say the quiet, the MAGA says the quiet parts out loud.
- [19:11]
Michael Popak
What do you think's gonna happen? Let's just play this out one more before we, before we kind of tease our next topics and go to our break. What do you think is going to happen when invariably, inevitably, a federal judge allows or orders Elon Musk for deposition? Now, now here's where the rubber meets the road, right? The Trump administration is saying he's a special purpose government employee working for the executive branch. He's a executive branch advisor, just like Anita Hill. Anita Hill, Anita Dunn was for Joe Biden. That's all nothing to see here. And they're going to try to put up executive privilege, right, and stop that, that, that deposition. And then we're going to be in front of the Supreme Court. What do you think happens there?
- [19:56]
Karen Freeman Agnifilo
I think two things are going to happen. I think exactly what you just played out, right? That, that they're going to cite executive privilege, that he can't be called or to testify. That's number one. I think the other thing that's going to happen is the lower courts are all going to rule that it's clear that he's a principal officer and that he should be appointed with the advice and consent of the Senate. And then let's see what Supreme Court does, right? I mean that, that's the big question is there's, because there's no court question in my mind about what's happening, about the facts here and about what needs to happen. But it's just, will the Supreme Court, you know, the Supreme Court has been doing his bidding for so long. At a certain point, when are they going to rein him in? There will be a point where they will rein him in. They have to rein him in. I think. I can't imagine that they're going to allow Donald Trump to run roughshod over the laws of this country only because, not because they care, but because they would be worried about making new law that could then allow a Democrat to do the exact same thing. I mean, really.
- [20:59]
Michael Popak
Yeah, that's the thing that, that I don't even understand. I understand what you just said is perfectly right. The, the fact that Donald Trump is a short timer and a short tracker and as a short time horizon. I get it. And they want to do maximum destruction between the relationship between, pardon me, the government, the American people, as they can, and reshaping the government in the two years they probably have until midterms and we get the House and the Senate back. But I don't get why they want to empower the future Democratic president. And there will be one. I don't know if it's, I'm hoping it'll be in the next go around. Maybe it's two go arounds from now, but there will be a Democratic president. And why do they want to give him all these superpowers out of the United States Supreme Court? That part I never understood. That's always what has kept the Senate in check. The Senate in line is, is because they're worried. Well, you know, it's good for the goose, is good for the gander. And if we, you know, we don't want that for the next guy. But that doesn't seem to be a consideration. Why do you think that is?
- [21:59]
Karen Freeman Agnifilo
Well, I, because I don't think anyone ever thought Donald Trump or anyone would go as far and as extreme and as lawless as he has. I think everyone thought there are certain unspoken rules that, that we just don't do and that we don't say. You know, people call them norms and he's broken every norm. And I think they're going to see that and I think eventually they will rein him in because it's just outrageous what he's doing and what he has done. And you know, frankly, a lot of what he does is very performative. Right. All these executive orders and you know, with his dramatic kind of, I'm gonna here's this. Here's that. I'm renaming this, I'm renaming that. I mean, it's very performative and that's kind of the way he does things, and not as substantive, but these substantive things that he's doing. He's gonna be I think eventually reigned in. I can't imagine that he's going to get away with everything.
- [22:48]
Michael Popak
Well, we'll have the opportunity to see if the court is starting to do that when we come back from our first commercial break because we've got we're going to talk about the United States Supreme Court in a bombshell new ruling today, what it means and what it doesn't mean. What just happened at the Supreme Court related to a funding cut off by Donald Trump, a major one for humanitarian aid around the country and for US Aid. But we're gonna take our first commercial break. It is the way there are many ways to support Legal AF and the Midas Touch Network, the number one YouTube channel in the world. I love saying that. My Midas Touch podcast at Brothers Podcast number one. I think we're still in the number in the top 10 as legal af. That's a reflection of our, the unique audience that we have, the community that's been built, how they're energized and activated and didn't, and didn't run away and didn't run away and hide after November 5, but redoubled and are here for it. And we're here for them. We appreciate all of them. Hit the subscribe button. We're going to move towards 5 million for Midas Touch. We're going to move the odometer is going to go over a half a million in the next day or two for Legal AF before its six month birthday, which is a remarkable testament to what this community is all about. So there's all those different ways. So why don't we take our first commercial break. We come back, we'll talk about the United States Supreme Court and all that good stuff. So let's take our break. Feeling your best starts with the right products. And for me that means Via and I'm proud to have them sponsoring this episode for me. I just adore their Zen CBD sleep gummies that are THC free. It's just the right way to maximize my sleeping and restful nights without knocking me out should my baby daughter need me asap. If you haven't tried them yet, you're seriously missing out. 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Go to tryarmra.com legal AF or enter legal AF to get 15 off your first order. That's T R Y A R M R A dot com legal A F. Welcome back. Well, we were we right before the commercial break. Karen, you were talking about reigning in Donald Trump and his administration. Well, we've got a new ruling from the United States Supreme Court when after you and I are kind of kicking around a little bit, I'll read from it. And Department of State vs AIDS Vaccine advocacy Coalition. We reported, I certainly did a couple of hot takes on it, that there was a case before Judge Ali, not to be confused with Judge ali Khan, another D.C. federal judge. Judge Ali, Canadian, a Canadian lawyer and a U.S. citizen and a federal judge appointed by Biden, one of the younger judges, but very, very good and very smart, had a case before him in which he had to determine whether any aspect of the 30 or 40 billion dollars worth of US aid that was cut off overnight immediately, without any concern or consideration for the ramifications around the world, whether that would stand or not. He particularly looked at a subcategory of funding that represents $2 billion or worth of services and goods already provided. So these are contractors that were just looking to get paid for stuff they already did. Now we know what Donald Trump's relationship is with contractors who need to get paid because there's a trail of broken tears and unpaid bills when Donald Trump was in private real estate development. And so I'm not surprised that that was the group that tried to get screwed. They ran in and said, hey, we got to get paid. These are, you know, we're shoestring organizations. We're not rolling in cashier. And after a temporary restraining order hearing and briefing, the judge gave the Trump administration a couple of weeks to turn on the spigot and get the $2 billion out the door, finding it was arbitrary and capricious. It was illegal, it was unconstitutional under separation of powers, and it needed to be done forthwith. Donald Trump didn't do a darn thing about it. And a couple weeks went by and the plaintiff's lawyers let the judge know the money hasn't been turned on, hasn't been paid. While there was other reporting about Elon Musk's Doge Bros. Going in behind the Scenes to countermand instructions to make payment and just unchecking boxes so that people weren't getting paid, even though Marco Rubio, the Secretary of State, said they had to be paid. So all of that came back to Judge Ali. Judge Ali got annoyed. Judge Ali gave them three days to turn on the payments or he'd find them in contempt. And that was last Tuesday at midnight. It didn't happen because the Trump administration ran ultimately to the United States Supreme Court. Justice Roberts entered an administrative stay just for a short amount of time to allow fuller briefing. Not full briefing, but full briefing. Friday there was a brief that was filed by the AIDS Vaccine Advocacy Coalition. Can you think of an organization that needs our humanitarian money more than the AIDS Vaccine Advocacy Coalition? And after seeing the brief, they got together as a nine judge panel and they, they took a vote and five votes came out in a surprising way. Karen, take it from there. What was the five, how did the five rule? What's the new ruling and what did Alito do? And if you need me to do it, I'll do some reading from it.
- [31:40]
Karen Freeman Agnifilo
Yeah, I mean, look, they ruled against Trump and the Trump administration, which was surprising. It just. Justice Roberts and Amy Coney Barrett sided with the three more leaning liberal judges. By the way, speaking of Justice Roberts, what was up with Donald Trump thanking him last night and saying he'll never forget right in front of the American people? Thanking him for what? I mean, we can only imagine. But they sided against the Trump administration, which was pretty stunning loss. Right? Basically saying, no, you can't do that. You can't just in this disorganized, disordered, really irresponsible way, just not pay people for work that they've already done, work that's been appropriated by Congress. Right. And it's just ridiculous. I mean, look, there's, there's lots of other money that, that this doesn't involve. This just involves $2 billion. But it essentially said, no, you, you just, it sent it back to just Judge Ali, the district court judge, to say, okay, Judge Ali, you originally gave a deadline of 11:59p a week ago that this money had to be paid. Obviously that has passed because we gave it administrative stay while we considered this in lightning speed over the course of the weekend and said, so please do a schedule that, you know, clarify and basically come up with a reasonable schedule that the government can meet. Don't, don't make something that they can't do, but also get these people paid. This money has been appropriated by Congress and it's been Spent already. You have to pay your bills. It's outrageous. So it was a good thing. It seems slightly ridiculous that our United States Supreme Court has to deal with these emergency applications. It's almost like they're the advisory board to the President of the United States. I mean, normally the Supreme Court, which gets, you know, these numbers better than me, but gets many, many, many, many writs of certiorari. People who want to go to the court and they see what they see. Maybe 80 cases, they hear maybe 80 cases a year, something like that.
- [33:55]
Michael Popak
It's only up to 60 under this last 10 years.
- [33:58]
Karen Freeman Agnifilo
Yes, there you go. 60 cases a year. And, and, but I think we're going to see that this year. It's probably going to be very highly weighted and having the Trump administration being on one side of that V and they're going to take many of those cases and it takes away from frankly, other issues and other plaintiffs and defendants who want to have their cases heard by the Supreme Court because they only have a limited bandwidth. So it's just shocking to me that whether or not you pay your contractors has to go to the Supreme Court of the United States. I mean, it's kind of a waste and ridiculous because what they're doing is clearly lawless. So it was sent back down to Judge Ellie, who's going to have to determine when this gets paid and these people will get paid. But this isn't going away. There's still billions of doll in USAID funds that have been appropriated by Congress and impounded by Donald Trump and Elon Musk saying not to pay it. And so this is going to keep trickling and trickling up.
- [34:59]
Michael Popak
Yeah. So we also have sort of how the lineup is going to work going forward. We've got the Pro President Article 2 Imperial Unified President, unitary president model people, which is Kavanaugh, Gorsuch, Alito and Thomas. And then, you know, I posited just the other day on a hot take I did on Legal AF YouTube channel about how where is Amy Coney Barrett and Justice Roberts going to be in all this? Because if, you know, where's that flag going to be in the tug of war if Amy Coney Barrett, which she just demonstrated, is going to be the true swing vote. She's going to be, even though she's right, right of center, at least she's towards the center, she could side and be the fifth vote for many, many of these things. As long as Roberts comes along, you can't count on Calvino Gorsuch. You certainly can't count on Alito and Thomas. So Alito writes a scathing attack on the majority. I'll just read you two paragraphs from it. Now. Again, he spent a considerable amount of time taking Judge Ali out to the woodshed. Unfortunately, when you're a Supreme Court justice, you need five people to take somebody out to the woodshed, and he only had four. So it sort of fell on deaf ears, like his self aggrandizing, his rogue. I'm like, what are you even talking about? He properly analyzed separation powers, the Administrative Procedures Act. But for Alito and for that wing of the alt right wing of the Supreme Court, it's all about what about the Supremacy Clause. The president is all knowing and all powerful and infallible. I'm like, are we talking about the Pope or the President? What's going on here? And anything about funding that $2 billion, we'll never get it back. Right. Because it was properly paid out pursuant to an analysis by a federal judge who issued a temporary restraining order. And just to be clear on what the ruling was, before I get to this, two paragraphs in Alito's dissent, which was joined by the others, the other, the other three, which is important for the future. That's why I want to talk about it, is what Ali has been sort of instructed to do. He'll keep his five votes. But they told him how with like a wink, they said, you know what, you got your preliminary injunction hearing going on next. You know the deadline that you already set past. So you can set another deadline. But you need to give the administration kind of enough time to implement whatever your rules are and do it off your preliminary injunction ruling. And then if you do it that way, you'll have five votes to support you. If you don't, you see, you see the crazies next to us. That's sort of how I read the majority. Now, here's what Alito wrote. I'll just read you the one that everybody's quoting. And then the other paragraph that I think is actually who are relevant to what's going on here. It's the way he framed the issue, this straw man framing which led inexorably to his attack. Does a single district judge who likely lacks jurisdiction have the unchecked power to compel the government of the United States to pay out and probably lose forever $2 billion of taxpayer or 2 billion of taxpayer dollars? The answer to that question is emphatic no, but a majority of this court apparently thinks otherwise. I'm stunned. That's Alito now in the lab right now. First of all, he doesn't lack jurisdiction because of the supremacy clause, you know, and that's what about the impoundment, the illegal impoundment of funds that were already allocated by another branch of Congress. Now, here's what he says in the last page or second to last page on page eight today. This is Alito. Again, the court makes a most unfortunate misstep that rewards an act of judicial hubris and imposes a $2 billion penalty on American taxpayers. I'm sorry. American taxpayers are probably in favor of paying their legitimate debts. The district court has made plain its frustration with the government and respondents raise serious concerns about non payment. But the relief ordered is quite simply too extreme a response. A federal court has many tools to address a party's supposed nonfeasance. Self aggrandizement of its jurisdiction is not one of them. I would chart a different path than the court does today. I must respectfully dissent. Now, what that means is in the future when anything has to do with Supreme Court power, we're going to watch this exact same struggle where two sides go to their respective quarters. You know, Katanji, Brown, Jackson, Kagan and Sotomayor to the left, Alito, Thomas, Kavanaugh and Gorsuch to the far right, leaving the middle four in the center, whatever's left of it, to Roberts, who's unreliable, and Amy Coney Barrett. Now, Amy Coney Barrett's not even enough because if she joins with the other three, we lose six to four on these issues. Got to get Roberts. You can't count on Kavanaugh, you can't count on the rest. So you got to really aim for Amy Coney Barrett. It's going to be the Amy Coney Barrett court. And that's what worries Maga. That's why I wasn't shocked to see them starting to cannibalize and eat their own. About Donald Trump needs to make sure this time around federal judges are picked. Stream vetting, no dei, no missteps. We can't pick Amy Kami Barrett. Did anybody know she has adopted children from Haiti? Like, there's no better way to ensure that Amy Coni Barrett is going to side against Donald Trump than to attack her Haitian adopted children. Keep going. And they were like, see how she treated the president during the rally? I mean, the joint session of Congress, you know, and I don't think the fist bump, pat on the shoulder thing where the very uncomfortable looking Roberts helped him because as soon as that was over, they issued the issue this morning that this. And, you know, it was already done, the decision against Donald Trump on a major funding issue. So that, you know, that's not. I know that. That false bravado. You got, you got my back, I got yours, you know.
- [41:03]
Karen Freeman Agnifilo
Yeah. Look, Justice Thomas is a dishonest person, in my opinion. Amy Coney Barrett is. I think she's a Republican. She believes, she's a conservative. She is very white, right wing, but she doesn't appear to be dishonest. She, I think, honestly believes in certain positions, but she also believes in the rule of law. And. Whereas I think the others, Some of the others. And I think Roberts to a less. To an extent as well, but I think his is more motivated by the court wanting the court to seem legitimate. You know, it's his court. He's the Chief justice, and he wants, doesn't want to lose credibility of the, of the Supreme Court. And so that's why I think the two of them tend to be the swings. The other four are just, you know, I think, I think, I think Thomas is, I don't, I don't want to say anything more, but I think he's, he's probably the worst. Annalito is a close second. I mean, they're just, they will vote for MAGA anytime. It doesn't matter what the law is.
- [42:08]
Michael Popak
Yeah. Court Accountability Action. Our colleagues and contributors over on the Legal AF YouTube channel do a great job talking about corruption at the federal court level and up to the United States Supreme Court level and have done a number of exposes about Sam Alito. You should see what he does abroad when he hangs out with the monarchist. Monarchist, European Euro trash rich people who he parties with all summer and what his beliefs are. And this is not anti religion, especially on Ash Wednesday, but they come from a papist Catholic monarchist background in Europe, and he's a fanboy of that whole thought process. So for him to have a pope king as president is sort of a natural extension of his belief system. What you're, what I agree with, I totally agree with you on Amy Coney Barrett. She's not ideological that way. She's just your classic kind of Republican. She's sort of, you know, if, if, If Sandra Day O'Connor was around today, she'd probably be a lot like Amy Coney Barrett because she'd be more right of herself than she was, you know, and we're just gonna have to live with that. And I think if you're an advocate at the Supreme Court, you got to aim for Amy Coney Barrett, if you have any hope as the swing, if you have any hope of, of, of prevailing. So we got that going for us. I always feel sometimes I get a little despondent during our own, our own reporting. But I think, I think it means that it's going to be a case by case basis that we're going to see how the Supreme Court, sometimes we're going to be, yay. Robertsoni Barrett did the right thing. And sometimes we're going to be like, what do you mean? They sided with the other, the other three. And it's just going to be, and it's going to be very hard to see a path or a rhyme or a reason or a pattern. There's going to be like, well, wait a minute, like, like today we talk about this, tomorrow there'll be almost exactly identical case, but they'll find some factual issue to give one to make a makeup for Donald Trump. And you and I are left scrambling. We try to make sense of it all. Let's turn to the other Supreme Court decision. Speaking of crap, let's talk about pooping our water supply. So we knew, right? We knew when the Supreme Court got there, all their votes together and Donald Trump was in, that there was going to be an assault on the Environmental Protection Agency. We knew it when they got rid of the Chevron decision, which, which credited experts in the field, in the various agencies with their initial interpretations of regulations. Now you've got Donald Trump, who's announced to the world in executive orders that only he and he alone, along with Pam Bondi, can make any, any interpretation of any regulation in any agency. You have to run it by the president. How's that going to work exactly? He can barely do his day job. How is he going to start looking at federal interpretations of guidelines? So, and then the judges have to do it because they're not going to be able to rely at all on agency. So we said, okay, that's going to hollow out the Environmental Protection Agency and clean water and clean air are going to be under attack. I never knew the clean water and clean air, Karen, were partisan, that it was a Democrat or Republican thing. I just thought it was a not dying thing, being healthy thing. But no, no, they always find a way to make it partisan. So the Supreme Court had a case brought by San Francisco, of all places, which apparently doesn't care about what is in their drinking water. And they were arguing about certain types of permits that and the EPA coming in and doing kind of blanket prove to us that you don't have poop in your water. Prove to us that what you're doing doesn't have the end effect of having raw sewage dump into the water supply for clean water purposes. People didn't like that. They wanted, I don't know, case specific things. What did talk about the Supreme Court decision and what did you make of the ruling and this court's approach to the environment?
- [45:59]
Karen Freeman Agnifilo
I mean this is the biggest head scratcher I can imagine. But you know, frankly, every environmental or scientific ruling shocks me that that's political. Science should not be political, period. End of story. And you could say all you want that you're pro small government. There's too much government. I don't want government. But there's a couple things you want government for and one of them is clean water. You don't want raw sewage in your water. That is something all Democrats and most Republicans should agree on. Right? There's certain things that you think government should be able to regulate. It's a no brainer. Waste and poop in your water. I mean, talk about the decline of civilization. That would be the end of our civilization, right? If people got sick because they couldn't drink clean water. That's just so fundamental to what a government function is. And so this decision was just a complete head scratcher for me. I just couldn't believe that this is how they came down and this is what they said. And essentially what they said in a 5 to 4 decision is that when you're looking at a permit, you can't consider the effects of the permit. I mean, that's essentially what they said, that you're looking at the effects as opposed to the actual permit. But again, what's the point of a permit if it's not to consider the effects? All permits are like that, right? You get a permit to put up a building in New York City, they're looking at safety. It's all about the building not falling down or catching fire or whatever. That's the whole point of a permit. There's no other reason for it. So I found this decision to just be crazy, outrageous and so flawed in so many ways. And look, they gave some, you know, well, the, the government has plenty of ways that they can check and ensure clean water. And so there's no reason they, they need to go to the permitting process. But that just seems to be, I think, inefficient and just, just in the, in the realm of this is insanity. That, that's what I thought.
- [47:59]
Michael Popak
Our friends at simplified SCOTUS on, on X. This is the way they summarize, city and county of San Francisco versus EPA and the decision, EPA's position, can you guys please meet the standards for water quality? We need you to test it and be below the limit of pollutants or we will find you $10 billion. You can't dump sewage. And then city and county. You literally cannot make me test the water. Like I'm following all of the rules you have. Just sometimes the poop kind of slips in the water and when we dump it, like we have a lot of water to deal with, you know, so poop just gets in it. And the Supreme Court says literally poop water happens. It's not in section blah blah blah of the Clean Water act that you can test the poop amount. You have to trust, trust the poop purification process. So eat or should I say drink shit. Epa, Alito. I love that. I'm going to invite them on legal layup to have their own weekly hot take a simplified scotus. I like that a lot. We're going to simplify a lot of, a lot of different things. We come back particularly I love the eat shit. I like each drink shit. Epa. We're going to talk, speak about eating shit. We're going to talk about Manhattan DA still having to fight off Donald Trump about a 34 count felony conviction and where the appeal of that is going to take place. We're not even, we're not even talking about the merits of an appeal. We're talking about which courthouse the appeal is going to be heard in because of Donald. Because of course, Donald Trump wants to have his appeal ultimately heard by his fist bump and buddy John Roberts. And we're going to see what the 2nd Circuit has to say about that with a new final brief that was filed by Donald Trump's new lawyers. Attention, attention. Donald Trump has gotten new lawyers. Big law is no longer finding Donald Trump to be radioactive. And they've decided they're going to make a lot of money, get back into business of representing Donald Trump. How convenient. So Sullivan and Cromwell affirm that Karen and I know well from our days in New York has decided to represent the President of the United States in their brief. I don't think it makes the brief any better or their legal arguments any better. We're gonna cover all of that. But first, another word from our pro democracy sponsors. Look, let me tell you, if there's a surefire way to wake up feeling fresh after a night of drinking, it's with pre alcohol zbiotics, pre alcohol probiotic drinks, probably Drink is the world's first genetically engineered probiotic. It was invented by PhD scientists to tackle rough mornings after drinking. And here's how it works. When you drink, alcohol gets converted into a toxic byproduct in the gut. It's this byproduct, not dehydration, that's to blame for your rough next day. Pre alcohol produces an enzyme to break this byproduct down. Just remember to make Pre Alcohol your first drink of the night. Drink responsibly and you'll feel your best tomorrow. So I first gave Pre Alcohol a try when I was celebrating our relocation and unpacking the last of the 150 moving boxes. I drank it before my first scotch and soda and you wouldn't believe how on top of my game I felt the very next morning. This March Madness. Don't let anything sideline your celebrations. Grab Pre Alcohol before before you go out and be ready to cheer on your team all day and night long. Go to ZBiotics.com LegalAF to learn more and get 15% off your first order when you use Legal AF at checkout. ZBiotics is back with a 100% money back guarantee. So if you're unsatisfied for any reason, they'll refund your money, no questions asked. Remember to head to zbiotics.com legalaf and use the code legal af at checkout for 15% off.
- [51:51]
Karen Freeman Agnifilo
This episode of legal af is brought to you by one skin, one of my favorite sponsors and one of my favorite products that I use every single day in my skincare routine. I had no idea how transformative using something like One Skin can be. And you just, you use it, it's easy and it's just like a cream or lotion that you put on your face. That's where I use it. And there's a big difference. People notice, people tell me all the time that I look younger than my age. I'm 58 years old, I'm a grandmother. And I think one of the reasons that people think I look younger is because of my skin. And it's because of the routine that I do every single day that includes one skin that has a proprietary OS1 peptide, which is a peptide that switches off the damaged senescent skin cells that cause lines, wrinkles, and that thin crepey skin that you get with age. So it's this amazing product. It is founded by and led by an all woman team of skin longevity scientists and it's backed by extensive lab and clinical data to validate their efficacy and safety for all skin types. But I like no matter how much it's proven scientifically to me, the fact that people, people notice and notice a difference and comment that is to me the best endorsement of one skin and this product, it's just fantastic. And it's the world's first skin longevity company focusing on the cellular aspects of aging. So it keeps your skin looking and acting younger for a longer period of time. And so for a limited time you can try it with 15% off using code Legalaf at Oneskin Co Co. There's no M at the end. That's 15% off. OneSkin Co with code legal AF and after your purchase they'll ask you where you heard about them. Please support our show and tell them that we sent you.
- [53:46]
Michael Popak
Welcome back. Hit the blue. I don't think it's blue. I don't know. I keep saying that. Hit the subscribe button on Midas Touch helping get 5 million. Come on over to Legal AF, the YouTube channel where we sit at the intersection of law and politics on a daily basis. Six, eight videos a day. Karen Freeman, Agniphilo often there. Dina Dahl, Sean Wu, Court Accountability Action and their contributors every day, every way at Legal AF and help us turn the odometer to 500,000 people. All right, I'll turn it over to you. Why don't you catch everybody up in case they, you know, like, like Rip Van Winkle, they forgot what happened with the 34 count felony conviction from your old office. And then what is this new fight and what do you think the Second Circuit's going to do about it? And then the U.S. supreme Court when they finally get it?
- [54:33]
Karen Freeman Agnifilo
So just to remind everyone, since the beginning of the Manhattan DA case, the Trump and his lawyers have tried to, quote, remove the case to federal court. That's a term of art removal. And there's a statute, a federal statute that says that you can remove a federal officer to Federal Court. It's 28 United States Code 1442 A1. And it essentially says you, a federal officer can remove any prosecution relating to, it's like relating to any act under the color of federal office. And so they've been trying to get the Manhattan DA case to the Supreme Court through this removal process several times. And they were shot down several times. I think it was twice at least. And they basically said, no, there's nothing about this. You weren't at the time that you paid that, that the false business entries were made in the ledger about paying off your porn star through your lawyer and lying about what you were doing in order to hide the information from the American people during the presidential campaign, that was entirely personal. And so that was not presidential. And that had nothing to do with being president. And so that's why they did not allow removal previously. So then what happened was went to trial, he was convicted all 34 counts. And then during that time, after he was convicted, United States versus Trump was decision that came down by the United States Supreme Court. That is the famous now presidential immunity ruling. There was a lot of litigation, post verdict, talking about the case and the trial and saying in light of that ruling, the conviction should be reversed, saying that certain evidence came in that was should not have come in because of that ruling. And so there was a lot of litigation about that that delayed the sentence. And it delayed the sentence until after the election and after Donald Trump was elected president. And he was sentenced to an unconditional discharge, which means there's zero conditions. It's just over. A judgment is entered. There's no jail, there's no fine, there's no probation, there's no community service. There's literally nothing. No restrictions. It's called an unconditional discharge. It just means your sentence is final and the judgment is entered and you are officially a convicted felon. And so what happened was they still now want to remove the case to federal court and go through this appellate process. Just side note for a second, parenthetically, Popak, I thought one of the arguments they were making before is you can't prosecute a sitting president because he's too distracted. He can't possibly defend himself. It would be too distracting. And, and that's one of the reasons that the Office of Legal Counsel at the White House has always held that the Department of Justice cannot prosecute a sitting president or can't, because it's not appropriate. Okay, if that's the case, why does he have the right to appeal during this time? It seems like it should be if you can't do anything. I mean, that's why Judge Chutkan's case was put on pause, if you recall when that case was still around, because it was one of these, you know, this. One of the things that Trump has argued over and over and over again is that you is that you pause these things. But I just want to parenthetically point out that it suits him. When it suits him, he certainly isn't too busy or too distracted to focus on an appellate process. So getting back to the appeal, what they're doing is they're basically going to the Second Circuit, which is the federal appellate court, they're not going through the state court appellate process, which is what they're supposed to do. They're supposed to appeal to the intermediate court in New York, the state court, the appellate division, first Department, and then after that, it goes to the New York's highest court, which is called the Court of appeals. And that's how normal cases get appealed in when you're convicted of a state crime in New York. What they did, however, is they went to the Second Circuit, which is the appellate term of the federal courts. And what they're saying is the case should have been removed. Again, it should have been in federal court. It should have never been in state court to begin with. They're regurgitating the same argument, but what they're adding is we couldn't have made this argument before because United States versus Trump didn't exist, setting this precedent of presidential immunity at the time that we made our previous removal arguments. And therefore, now that there's new case law and new precedent, we want this to be removed to federal court. And if they get to remove it to federal court, they will have to find that a federal defense was implicated and that he was a federal officer. So that's what it would require to remove it to federal court. And once they do that, I think that opens the door for the Supreme Court to reverse the case under US V. Trump. It just, it invites it. So I don't think the 2nd Circuit is going to allow that or hold that finding. What will the Supreme Court do if they don't make that finding? That's a. To anybody, you know, we'll see what they do. I think they uphold this conviction. I think this was entirely personal conduct. I don't think the evidence that came in, the very limited evidence that came in, that, that might have been, that might not be permitted under U.S. v. Trump. Certain of Hope Hicks's testimony, some of Michael Cohen's testimony, perhaps, I think that any court will find that was harmless error in the face of all the overwhelming evidence of Donald Trump's guilt. So I think. But again, I still believe in the rule of law and the truth, I think. So maybe I'm optimistic, but I think the Supreme Court will ultimately uphold this. But again, who the heck knows at this point?
- [61:02]
Michael Popak
No, I agree with you. I think it gets upheld. I think originally. God, it's been so long. Now it's almost two years in May that. Judge Hellerstein. I was on holiday. You were on holiday. Remember, we did that reporting. Judge Hellerstein made The right decision and finding the federal officer removed approval was not, was not present in a, no pun intended, in a cover up of a private affair. And there was no arguable colorable federal presidential conduct that was being implicated. Just because Michael Cohen testified about stuff on the, on the Myus Dutch podcast or on Legal AF and in court about, oh, he might have gotten some consultation from Jeff Sessions, the attorney general, about whether there was an election law violation. I mean, this is so minor. Yes, there is an aspect of the immunity decision that goes to immunity based on evidence or evidential immunity, but that's not the way you should apply it here. When the almost the entirety of the conspiracy that was the subject of the conviction was done while he was candidate Trump and not President Trump, the reason he did the conspiracy, or what your old office referred to in court as the Trump Tower conspiracy, was to become president. It was the first example of election interference. And so all of that happened, the fact that after it, the payoff happened before he was president, the payback of the money, a couple of checks got cut while he was president. But that doesn't mean anything. And that shouldn't implicate federal officer remover, nor does it give him a federal defense. So again, this whole fight is not over the substance of what happened. It's not the appeal that it will eventually see. The judge was biased. Oh, the judge's daughter works for Democratic causes. Oh, the judge donated $50 to the Democrats. Oh, the judge let in evidence that they shouldn't have let in. Oh, there was reversible error. Okay, you know what? I'll take on that fight. It's not about that. It's about which appellate court is going to decide this. The, the second Circuit ultimately, which is the same court they're applied. The appeal is up in front of which is the Manhattan or New York Appellate court on the way to the feds at the Supreme Court level. Or is it going to be the first department Appellate Division in Manhattan, which is just to keep it, keep it straight is the state Appellate court and then the court of appeals in New York, the highest court in New York, the Appellate Division, First Department. Are you a member of the Appellate Division First Department. Is that where you were sworn in? Yep, exactly. In the ceremonial courtroom. Very lovely. A moment with my parents which I remember well in lovely courthouse. I've been there a lot. It's right down the street from my old office. But the it's either them who's sitting. Remember, remind everybody so they don't Forget there's a 450 million dollar civil fraud case against Donald Trump. And we're still waiting, it's been like eight months. We're still waiting for the ruling by the Appellate Division, that particular court about how much of that judgment that was found by Judge Engoron is going to survive against Donald Trump. That's for another day, but that's the court and then up to the Court of Appeals. The reason Donald Trump is fighting so hard to get the federal court for his appeal, even though he didn't get sentenced to anything by Judge Merchan, is he wants to get a fast track to the United States Supreme Court so that he and his, you know, fist bumping buddy John Roberts can figure out the fuller extent of the immunity decision from last July. And you know, I think he's got, if he's got legitimate arguments about reversible error in a garden variety criminal trial in New York where 90 jury convicted him, he's got his appellate remedies for that. He's got his due process for that. And it's called the Appellate Division, first Department and then the Court of Appeals. And he doesn't have to go to federal court, make a big federal case out of this just because he happened to get elected again, you know, in this last election. And that's what, that's what the fight is all over. We'll continue to follow. That was the last brief. I expect that the 2nd Circuit is going to hold oral argument. It'll probably be on audio. We'll be able to report on it again here on Midas Touch and unlegal af. Karen, anything else on that?
- [65:16]
Karen Freeman Agnifilo
No, I'm. That, that covers it. That covers it.
- [65:19]
Michael Popak
Well, okay. All right. Well, let's go to the last part, the last segment on the show which is going to be this fight that's going on with Donald Trump firing workers through Elon Musk, through Doge, through the Office of Personnel Management. It's all come to the head, all come to a head when Donald Trump has decided as part of getting all the executive agencies, regardless of whether they're bipartisan, regardless of whether they're independent as created by Congress, getting them under his greasy thumb and saying, I need to control all my executives, all my executive branches are my executive agencies. And two in particular are particularly disturbing because they head the entire civil service program that was reformed by Congress, bipartisan under Jimmy Carter in 1976. And that civil Service reform act created the Merit Service Protection Board, which is a three person board which can't have more than two people in the same party, which has seven year terms and overlapping terms to keep it bipartisan and keep it independent and keep it free from bipartisan attack. And they're responsible for making sure the federal workers aren't attacked because of their partisan bipartisan presidents and fired. And the person responsible for making sure that didn't happen got fired by Donald Trump, the watchdog. Same thing with Hampton Dellinger, who was also appointed by Joe Biden to a five year term as the Office of Special Counsel, which is not what it sounds like. It's a little known agency that's sort of very inward looking, very internal, that protects federal workers from getting blasted by an incoming president. And he got blasted by the incoming president. So two different judges took a look at it. Amy Berman Jackson, on behalf of Hampton Dellinger and for the Mayor Protection Service Board, Rudy Contreras. And we have two summary judgments, meaning the trial is over, and two losses for the Trump administration on their way to the United States Supreme Court. You want to synthesize those things together and then move it forward to the Supremes.
- [67:23]
Karen Freeman Agnifilo
I mean, look, it's essentially what they're essentially doing is as you put it, I think in a hot take. It's just fascinating to me that they're doing the very thing. It's just so ironic. They're doing the very thing. These agencies were created to prevent this just firing for no reason, for partisan political reasons. I mean, that's the whole point was of creating some of these positions was so that they are not political, so that they are not these political appointments subject to the whim of whether whoever is in office. And it's just shocking to me. They're just so blatant about it. As I said, they do all the quiet stuff out loud. And essentially here what happened was the judges put them people back into their jobs, into their positions. Hampton Dillinger is back being the head of the Office of Special Counsel and he's the one as well as the 5,000 probationary employees that were fired without cause, without reason. And it's a big win. It's a big win for law and order, frankly. It's a big win for the government and for people who depend on their jobs that they have and for those of us who depend on the people who do those jobs, like making sure there's no poop in our water. I mean that's who does that kind of stuff, right, is civil servants. They're the ones who go out and keep us safe in so many different ways that we don't necessarily even know about and we take for granted. I mean, just think about the luxury of being able to turn on a faucet and drink water and not even think about it and knowing that it's safe and knowing that you're not going to get sick from it. That's all because of the government. That's all because of civil servants. That is not because out of the goodness of the heart of capitalism and companies that want to make money. And so what's happening is these jobs have been saved for now. And I think ultimately the Supreme Court is going to hear these cases. And we know because of what we've been talking about, there's for people who are, who are going to be for Trump. And let's see what Roberts will do like see what Amy Coney Barrett will do. And we'll see, we'll see what they end up doing. But for the rule of law so far, the lower courts, they're not being partisan, they're upholding what the law is. And so, you know, I think that's a good thing.
- [69:56]
Michael Popak
Yeah, I agree. And I think the analysis that were used, they were spookily similar. I mean, Rudy Contreras had the benefit of reading Amy Berman Jackson's the day before, but their two orders were very, very, very similar almost in page length. And analysis comes down to two cases. The two cases you and I talked about, Humphreys executor case from 1935 involving I believe Hoover, you know, who's Donald Trump is rapidly emulating as a president, as a failed president before our very eyes, in which it was ruled that a board like the Federal Trade Commission, you can't just fire the head of the Federal Trade Commission, which was set up by Congress to be an independent bipartisan board. If Congress set it up with a four cause firing. See Donald Trump's argument is you can't ever put four cause firing. I get to independently fire whoever I want that's in the executive branch. Otherwise you've impinged and infringed on my executive power and it violates the separation of powers. So that's what he's arguing. He's arguing that it's unconstitutional to make him work with people that he doesn't want to work with in the executive branch, regardless of how great they are at their job. And everybody, for instance, the Merit Protection Service Board person, everybody admits that she is fantastic at her job for the American people. She took like a several thousand case backlog and she got rid of 99% of it in just the two years that she was there. Like she's really good at her job. That's the sad part. That's the dirty secret of what Donald Trump and Elon Musk are doing. They're firing people who are really, really good at their job. That we've spent a lot of taxpayer dollars over a number of years to train to learn how to be a very good civil servant, a very good technical expert in the department or agency that they're in. And we just fired them like they were yesterday's trash because of Donald Trump, never to be replaced. These people will never come back into government and we just lost their expert expertise. I know that Alina Haba likes to say we're probably not qualified for their job. If anybody knows about not being qualified for a job, it would be Alina Haba.
- [72:01]
Karen Freeman Agnifilo
Yeah, she's an expert in that. I agree.
- [72:03]
Michael Popak
Yeah, yeah. Seriously. So you've got, you've got the. Can Congress create independent bipartisan boards and require that the people get fired from them only for cause, for doing bad things? Yes or no. And the Humphreys executor case is on point and even though it's from 1935, it's still the dispositive case. And then there was a later case called the Sellous Law case that came out in 2020 that based itself on that and said almost the same thing on the flip side, describing which federal agencies have the administrators or the heads or the board members exert so much executive power that the President should be able to fire them. That's different. That's different than we have here. We're in the FTC Hoover period, not in the cellular law firm period, which is this other case. And so I, this is going to be a decision now as you, as you teed it up for the United States Supreme Court about whether they're going to reign in an out of control president having created a imbalanced, you know, having destroyed the careful balance of power and co. Equal branches of government and checks and balance system. Are they going to take any measure to try to reinstall it? I don't know. Are you a. Let's see if I can. I can't find it quick enough. Are you a New York Magazine fan, Karen?
- [73:28]
Karen Freeman Agnifilo
I think they, you know, am I a New York magazine fan?
- [73:34]
Michael Popak
Do you subscribe?
- [73:36]
Karen Freeman Agnifilo
I don't.
- [73:36]
Michael Popak
Okay. So they do a lot of amazing covers and one of the covers that they just did was the framers and the founders of the Constitution being shown the door by Elon Musk holding that little box that you get when you have to, when you get fired from a job. So it's like, it's like the people that wrote the Constitution being shown the door. And I'm like, that's exactly what's going on right now. You know, the quickest way for people to take what we're, what we're talking about, what we're teaching about, is to take it into the streets after we're speaking truth to each other and get ready for the midterm elections. That's the binary choice. That's where we get to throw the bastards out and run them out on a rail. Give me back the Congress and the Senate, and I assure you Donald Trump will be impeached, convicted and removed. So if you don't like what's going on, we need to band together. Because if the Democrats had the House, even if we had the Senate, we would be drafting articles of impeachment or getting them created. Donald Trump would have been impeached already based on many of the things that he's done as an abuse of power. That's what the framers and the founders wanted to happen. What they didn't envision is that a president would get swept into office on a phony populist message supported by a do nothing and completely spineless Congress and bootlickers for that same president. And if they did envision that that would happen and what that would do to the checks and balances, then they thought the Supreme Court would be the final savior. And having failing all of that, then the American people get to take back their government at the midterm. And that's sort of where we're left. We're left to this twilight between the Supreme Court doing its job and we see how difficult that's been, and the American people who are, who own our government, sending the rest of these nutty, crazy, unpatriotic people packing. And that's what we'll continue to call for right here as we watch this failing presidency. Karen, we've reached the end of the show. Many ways to support us before we get there. Let's do. We haven't done final word in a long time. Final word, final messaging. What do you got?
- [75:51]
Karen Freeman Agnifilo
Wow. Final word. I didn't even think about that today. Look, last night was hard to watch, so I'm still recovering from it. It was hard to watch. It's hard to see where our country, how far we've come. But I'm also just heartened by the growth of the fact that the Midas touch that the Brothers podcast is number one. I think people, there's still a lot of really good people out there who want to hear the truth, who believe in our beliefs and our fundamental core belief and the fact that we are growing. We're over 4.2 million subscribers on the Midas Touch Network. That legal AF has the following that it has, frankly, and the support that it has is people who really still. It just makes me feel like hope is not lost, that there are still many, many, many, many people, hopefully the majority of people who care about the same shared values that we talk about here, namely truth, the rule of law and our democratic ways. So I'm feeling good today because of that and I appreciate being able to spend every Wednesday with all the people who watch this show religiously. My dad in particular. Hi Dad. I know he always looks forward to this every Wednesday. And it's just great to see you, Popak.
- [77:09]
Michael Popak
You too. Certainly one of my favorite humans. Besides my dartboard, I do have something that keeps me honest and and striving every day for our Midas Mighty and our Legal A effers. I found it in the package in our move Sydney. One of our, one of our editors was like where's your little Ruth Bader Ginsburg? And her, with that finger pointed at me say that, that, that reminds me of why we do this. And if I ever, if I ever flag with my enthusiasm during a hot take or something, I look over at it and it scares the crap out of me to do the right thing for justice. And I think that's what we're doing here. Support the Midas Touch network. Boom. Hit the subscribe button. And don't Forget about Legal AF, the YouTube channel. We could use a little love today as well as we push our way over 500,000 on our way to a million. I like to get there in the, in the nine month, ten month period. Just. It's not ego, it's the algorithm. The bigger we are, the more your voice is heard and the more content providers we can bring on on there at the intersection of law and politics. I can't think of a hotter intersection, hotter corner right now than those things. A more important one. Continue to follow everything here on Legal layout the Midas Dutch network Saturday we've got our Saturday show with my co founder Ben Meisellis. And then we've got hot takes about every hour at the Intersection. If not on the Midas Touch network then over on Legal af. So until next Wednesday with Karen and me, this Saturday with Ben Mysellis and me. Legal AF Signing off. Shout out the Midas Mighty.
- [78:46]
Karen Freeman Agnifilo
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