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- [00:00]
Michael Popak
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- [00:46]
Karen Friedman Agniphalo
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- [01:18]
Michael Popak
Welcome to the midweek edition of Legal AF the podcast at the intersection of law and politics. I'm Michael Popak. I'm joined with with my regular co anchor Karen Friedman Agniphalo and we sit at the intersection of law and politics so that you don't have to at least not every hour, every day. We do it here on the Midas Touch network and today's curated topics. Karen, I think we need to touch on Judge Zinnis and how she's handling the Abrego Garcia case and the fact that in particular she is getting one step closer. I think she's on the, I think it's 11:59 and midnight when it strikes is going to be contempt. In the, in the Abrego Garcia case, she's had it with the Trump administration and the game playing, she's had it with her them violating her orders. She's done it properly. She's waited a month and a half to two months to give the other side, the Abrego Garcia side, time to put together their motion to develop their discovery. But now she's given them a week from today to file their motion. She could well Be not the first judge, but the second judge to find this administration in contempt of court. And then we in continuing our sort of profiles in courage here, people fighting back. You've got the mayor of Newark, New Jersey, shout out to New Jersey, proud New Jerseyan son of New Jersey. And the largest city in New Jersey is Newark and its mayor, Mayor Baraka, is running for governor. He's on the short list of people, the Democratic Party who would run for president. But Alina Haba, as political henchman for Donald Trump, forgot that she was the head of the office of the Department of justice there. The U.S. attorney's Office for New Jersey decided to make political mincemeat out of Mayor Baraka, arresting him, putting his hands behind his back, cuffing him and taking him away, when all he was doing is heading down to the immigration detention center that had been built and is operated in Newark along with members of Congress. And after she, just after a, she decided to dismiss the trespass case and was excoriated by a federal magistrate in doing so, because having even brought the charges, finally, Mayor Baraka is fighting back and filed a new lawsuit for Fourth Amendment violations and defamation against Alina Haba. Cases mainly against Alina Haba and a guy named Ricky Patel, some sort of officer with the Homeland, with Homeland Security. Trump is on. Moving on. We'll be talking about Trump's losing streak. It's epic. It's historic. 96% of the cases that have been filed against this administration, he has lost. I'm talking this term, we're talking a couple of hundred cases while he's batting about 50, 50 at the United States Supreme Court and every other court. He's on an epic losing streak and it is annoying him and he's getting frustrated and he's lashing out at the Federalist Society and Leonard Leo and people in his own administration and the Supreme Court. But the reason that he's losing has nothing to do with left wing activist Marxist judges. It has to do with the fact that he is his, his lesson that he learned from the immunity decision is that he could get away with murder almost. And we've just been lurching from one constitutional crisis to the other since the start of his administration. And the only thing that stands between us and utter chaos and tyranny are the federal judges who are doing God's work, you know, to mix, to mix up my concepts here of church and state. They are doing God's work to hold Donald Trump accountable. But he doesn't like it. So we're going to pick up with what it means. And the trend lines as the United States Supreme Court starts picking cases for its next term. We had some we're still waiting on about 10 or 15 major decisions out of the United States Supreme Court, including about nationwide injunctions and indirectly. But they did issue a couple of interesting, peculiar rulings in the area of gun rights, which I think have been misinterpreted by most of the mainstream media. We'll try to sort it out here on Legal AF and then look at a new case on voting rights that the Supreme Court decided to take up in its list for the new term starting in October. Sounds like it's a long time away, but between now and October, this Supreme Court, Karen, is going to be very, very busy with emergency applications and rulings and maybe a hearing or two, which would be quite unusual. But I could see it happening before they come back. Let's bring in Karen. Karen, hi.
- [06:10]
Charles Barkley
Sorry, I had to find the mute button.
- [06:11]
Michael Popak
Sorry.
- [06:11]
Charles Barkley
Hi, Popak. Great to see you. How are you?
- [06:14]
Michael Popak
I'm doing great. Thank you very much. I still try to get my eyesight lined up with my camera. I have a new setup here in my office, but we'll get that straight. Looks like I'm not looking at you, but I really am. One of the things before we came on the air I was kind of taking a look at is I don't know if you've been following law firms that are being penalized by major corporations because they they agreed to settle with Donald Trump. There's at least 14 firms that got together and said, well, we better settle because we don't want to be attacked and rip away all of our profits per partner. And they ran the gamut. I mean, I worked at one of those firms in particular, and they gave Donald Trump over a billion billion of free legal service. Now, I haven't heard much about how that's going, in other words, what cases they're handling for Donald Trump or those in his inner circle. I have heard about people leaving, including Rachel Cohen, who's going to start doing some work for Legal AF very, very soon, associates that had conviction and courage and decided to give up their careers rather than stay in firms like that. But what I have heard is about 14 at least major companies taking business away. And I'm talking about hundreds of millions of dollars of business like the Microsoft's, the oracles, the McDonald's, taking major business away from those law firms. And it's being led not only by general counsels. And I've worked as an in house general counsel for a major company and was their deputy head of litigation. I get how that office directs legal services, but, but by women general counsels. And it's the revenge of the women general counsels and others that support them that I find most fascinating. Did you catch that reporting lately coming out of the Wall Street Journal?
- [08:00]
Charles Barkley
It's so interesting, right? It's so interesting how some people are responding to this. There are some law firms that caved, frankly, there's no other word for it. They caved to Trump's administration going after them. And the reason I say they caved is because all the ones that are fighting back have won because this is illegal to do what he's trying to do and target these, these law firms. And so they caved thinking, oh, it's better for business. But it's interesting to see that maybe not, maybe it's not better for business.
- [08:31]
Michael Popak
Yeah, absolutely. I mean, one example that was in the Wall Street Journal is Latham and Watkins. That I know that I know people there. I know head of litigation there, he's a friend of mine. But, but they, they have lost the Microsoft book of business because of this. Yeah, because Microsoft wants a fighter. They have antitrust cases against the government and they don't want to. Look, look, this is all, this was all presciently predicted by Judge Beryl Howe when she wrote one of the four decisions about the firms that you mentioned. Right. Perkins, Coy, Sussman, Godfrey, Jenner and Block and Wilmerhale. When she wrote one of them, she said in a footnote, and then I amplified it in attic. She said, why would you ever, I'm paraphrasing. Why would you ever, as a client want to hire one of these law firms? That's settled. They have an obligation of zealous advocacy. They have an ethical obligation. How do you know that they're defending your interest and prosecuting your interest as opposed to looking over their shoulder about trying to appease Donald Trump. Why would you ever go to a firm like that? And that was a month and a half ago. And now you're getting like Brooke Cuccinella, who is at a restaurant you and I go to all the time. We're in New York, unfortunately for these rubber circuit meetings at Cipriani's. And she said at Cipriani's and she represent, and she's the general counsel in house for Citadel, Ken Griffin's company. And she said out loud, I'm not going to work with any of those firms. I want a fighter. I want A firm that's going to fight. And so there. And Latham said the same thing and immediately directed work away from them. And Sullivan and Cromwell is in big trouble too because their head, their, their chairman, if you will, because you and I did reporting on this, that Sullivan and Cromwell suddenly showed up and started representing Donald Trump in the appeal of the 34 felony count conviction out of your old office in Manhattan. We were like Sullivan and Cromwell, I mean, what is going on there? But there's a guy, Rob Giafra, who is the head of that firm but also like. And he started signing his name to these pleadings. Turns out for the Wall Street Journal reporting that he also brokered the deal with Paul Weiss, the first one in to pay $40 million in free legal services, followed by 100 million and 150 million and another 150 million do by all the other firms. But he brokered that deal and it almost tore his law firm apart. And to appease them, speaking of appeasement, he said to them out loud, according to the Wall Street Journal, don't worry. I think that the executive orders against these law firms are unconstitutional and they won't be upheld by courts. So don't worry about it. Well then why are you representing Donald Trump in an appeal and why are you brokering a deal to lead Paul Weiss to the slaughter if you don't think ultimately is that good counsel, if you were representative, shouldn't you say fight this?
- [11:12]
Charles Barkley
Well, cuz he got how many, you hundred, you know, how many billion dollars in free legal services on behalf of Donald Trump. So I mean that, that's why.
- [11:20]
Michael Popak
Yeah. And that. And now, now they're. Yeah. So I just thought that was very, very interesting as we were, as we were coming on, on the air. But let's move to Judge Zitis. I mean we are big fans here. You, me, legal AF in general. I don't know why I'm so far from my microphone. I'm sorry. It's like, it's like a new rig and I'm learning my way. We like Judge Zinnis a lot. Not just because she's Democratic. Appointed judge in Maryland, because she's, she has an intestinal fortitude. She's got a strong judicial brain. She is, you know, she's expert in her jurisprudence and we like the way she runs a courtroom. And if you don't believe us, it's the only thing lately that the Supreme Court agreed on that she was right. 9 0. I mean I joked on a hot take, you can't get the supreme court to agree on their suite, their sweet greens order, let alone nine, including maga, agreeing that she was right about the Abrego Garcia case in the way she's administrating his habeas corpus rights, his due process rights, his Fifth Amendment rights in her courtroom. And this is the case, as everybody will remember, or I'll remind people new to the show. Donald Trump listening to Stephen Miller invokes the Alien Enemies act to start removing people and deporting people without due process. Two hundred and fifty of them are shackled, put on a plane in the middle of the night and sent to. Sent to El Salvador, of all places. And one of them was named Armando Abrego Garcia. But he should not have been on that plane as admitted by the Justice Department because he had in his back pocket, almost literally an order from a federal judge, an immigration judge that said he could not be removed and sent to El Salvador because he could die. And ICE knew that just came out in the record and nevertheless not on an admitted this wasn't an error, said, yeah, we don't care what that says. Get on the plane. And it was only because his wife saw him in a video being unloaded from the C130 or whatever in El Salvador that we even kind of knew about it. He just didn't come home for dinner. He's a married guy with two kids, married to an American citizen in Maryland. And no, for those that write sometimes in the chat, he doesn't have MS.13 tattooed on his fingers. That was a deep fake AI. And if you don't believe that, go watch Mountainhead on HBO on Max, and you'll know what I'm talking about. I don't know why I'm plugging something that doesn't pay me to plug it, but okay, it's a show I'm watching. I thought people might be interested. So you've got that. And that event of sending people without due process to El Salvador kind of spawned two lawsuits. Two cases, one presided over originally by Judge Jeb Boasberg in D.C. and one with Zinnis. Boasberg handled everybody not named Abraco Garcia and issued. He's the one that came up with the first contempt order where the probable cause to find criminal contempt because they didn't ground the planes and turn them around after he ordered them to do so, they tried to instead ferry them away, ferret them away in the middle of the night to get away from federal jurisdiction. And that's a problem. The other case that came out of it filed by the ACLU is the Abrego Garcia case filed in Maryland, where he lives. And she ordered, as we now know, famously, this will go down in the legal textbook. She ordered that the Trump administration facilitate his release from the jail in El Salvador. And now we're off and running in the odyssey. That's now four months in the making, the guy still sitting in jail despite the Supreme Court affirming her 90 and telling her, Keep doing what you're doing. You do you, including getting to the bottom of the facts and get reporting from the Trump administration, who have refused for the last four months and have only taunted her about, about what they're doing, if anything, which is nothing, to get Abrego Garcia back. And she warned them last week that you are on the precipice of being found in contempt and you haven't turned over a darn thing. I feel like a cat. And you're, you're using a ball of yarn to try to snatch it away from me. So why don't you pick up from there, Karen, and talk about the new orders we just got today out of Judge Zinnis against the Trump administration.
- [15:40]
Charles Barkley
I mean, she is going to hold someone in contempt of court. That's what I think is going to happen. She is just fed up and enough that they are not answering any of her questions. They're refusing to talk to her. They're refusing to give her any information that she's asking for. And I think she's getting fed up with all of this. I think she is absolutely saying, look, you know, this is ridiculous and I'm not standing for it anymore, and I'm going to hold you. I'm guessing she's going to say, I'm going to hold you in contempt. But the couple of things that she did do is in federal court, if you want to file a motion and ask for sanctions, and that's something you can do if somebody, if you feel, if you're a party and you feel that the other side is doing something that's deserving of a sanction, a sanction is a kind of a really big deal. I've never had one against me. And it's a very big deal to ask for a sanction against a lawyer or against a party of the other side. And so you ask permission of a federal judge, and she granted the permission for them to file a motion for sanctions against, for Abrego Garcia to file this motion for sanctions against the Trump administration because she is basically signaling that they deserve it. Yes, you can do it, because this is outrageous. At a certain point, when you realize you're being jerked around, she realizes she's being jerked around. And not only do their answers keep changing, they won't provide answers. But when they do, their reasons for not providing answers, they're always kind of changing, shifting in their seats and acting squirrelly. But they have no problem providing information, either on social media or in the news or making public statements. They just won't say anything in court. And I think she's getting fed up with it. That and the fact that they're not acting in good faith. Whether it's that. We talked about this a couple weeks ago, that New York Times article about Abrego Garcia being ordered to come back to facilitate his return, right? They took it with red marker, basically xing it all out and saying, not coming back, never coming back. Like, really just almost obnoxiously, like a child kind of taunting the court that they're gonna. They're gonna. And then tweet that out. Right? They're gonna taunt the court that, no, we're not doing anything you tell us to do. But then they come to court and pretend like they're, you know, pretend like.
- [18:04]
Unknown Speaker
They'Re arguing the law.
- [18:05]
Charles Barkley
So she. She is a human who lives out in the world, not just in her courtroom. So she is able to read the paper, read social media. She sees what they're saying on, you know, on tv, everywhere else except in her courtroom. And she's had enough, right? They've absolutely had enough. Everyone from Marco Rubio saying they're not going to tell the judge anything. And so I think she's going to let them file their motion for sanctions, potentially grant it, potentially hold them in contempt. And she's also saying that they don't automatically get to put everything under seal because the Trump administration pretends like, oh, you know, national security, everything's secret, this and that. And she's not saying, no, everything's publicly filed, but she's starting to publicly allow certain things to be publicly filed. And I think we're going to start seeing more of what's been going on here, rather than being this. This secrecy, you know, being. Have it cloaked in this veil of secrecy, which is what. It's what the Trump administration would like it to be done. And frankly, this is a human being's life on the line. Right. Abrego Garcia is, as you said, he's not found to be an MS.13 member. In fact, he was here legally, and in fact, he was in the process of going through immigration proceedings. And an immigration judge specifically found that he could not be sent to El Salvador because he was at risk of being harmed there, he thought in fear of his life. And so as a result, he was granted, granted legal status to be here while he continued his immigration process. He got married to a US Citizen, he had business here, he had children here. So he was lawfully here. So it's just outrageous that he's been there now, you said four months. They are not making any effort to bring him back, and they're frankly making a mockery of our federal court system. So I think that the whole process is playing itself out. I think we're going to start seeing some very stern from. Some, some stern rulings, frankly.
- [20:08]
Michael Popak
Yeah, I agree. She's given them a week from today to file their motion. She's given Donald Trump a week after that. I mean, federal judges, just to have a little teachable moment here. Federal judges have inherent authority to find people in contempt. Lawyers generally call it contumious conduct. Some people slip and call it contemptuous. That's different. But. It's different in the real world. But contumacious conduct, they have inherent authority that's granted to them as a federal judge. And then on top of that, they have under Rule 37 on the Civil side, other ways to exercise their sanctions. So federal judges always have the ability to do these things. That's why I find the, the, this fight over the language in the bill, the big beautiful abomination bill that was passed by the House and is struggling in the Senate for Donald Trump, where they buried like page 550 of the Thousand pages that nobody read this provision that says, hey, if you're a federal judge and you get federal funding and you don't issue and you don't require a bond for an injunction before you issue it and we violate that bond, you can't find us in contempt. Yeah, I don't think that's how that works. Even, even if you can't, the judge has to be able, through inherent authority, manage that courtroom. And Congress can't cross over the line of separation of powers and tell them how to do that. Congress can do a lot of things. There's a lot of intersection between the Article 3 branch and the Article 1 branch when it comes to checks and balance. Congress is the funder, Congress is the purse strings. Congress is the lawmaker. So law Congress approves rules of civil criminal procedure after they've been sort of gone over, usually by a panel of judges and lawyers. And they can make changes in statute of limitations and the actual substantive law. I mean I had a case first time, hopefully last time in my career where I had a case A, it wasn't a class action, but it was a multi district litigation representing kind of mom and pop bookkeepers and accountants and financial services people. They were putting together these loan packages under the COVID loans and big banks weren't paying their fair share of the fee for them to assemble these documents which was provided for in the statute. We had a great case related to that. And to get these people paid hundreds of millions of dollars that they were entitled to, that the big banks were holding onto until the big banks lobbied Congress and literally got a law passed, but almost by name that killed our case. I was like, well it took an act of Congress to kill the case. We know we had merit, but that. And they're allowed and they can do that. They can get entities, they can take liability away from them like the tobacco industry and the gun industry. But what they can't do is tell a federal judge how to run their courtroom. It would be the equivalent of Alina Haba, Todd Blanche or, or, or Pam Bondi sitting in the back of the courtroom as the judge is making Willie's going cut. No, that doesn't work. Here's how you're going to do it. That's not how that works. And so that is going to fail because of this inherent, ultimately because of inherent authority. And there's no way the Supreme Court, if it ever gets around to it, would ever support that. But look, you know, listen, you got to give Donald Trump an A for effort. I mean he's, he's trying every which way to remove any guardrail against his rogue behavior. It's all gas and no brakes for this administration and no brains or morals either. And that's been the major problem, right Karen?
- [24:01]
Charles Barkley
Yeah, completely. There's no ethics, there's no morals, there's no checks and balances. There's no belief in our system of checks and balances. It's all headed towards this unitary executive, this all powerful king like presidency, which is what he wants. He doesn't want checks and balances. He doesn't want there to be a separation of powers. He wants to be all powerful and that's, you know, he's not even pretending. So that's his, what he's trying to accomplish here.
- [24:28]
Michael Popak
Yeah. And thank God for judges like Judge Zinnis. Let's move on to another profile of courage. We've got Ross Baraka, who I like a lot. I'm following him out of Newark. He's running for governor. He's one of the people. I'm not sure he gets governor, but he's running for governor of New Jersey. And he's on a short list of people that might be interested in running for the presidency in 2028. One of the leader, you know, he's on our deep bench of Democratic leaders for the presidency that matter. And of course, Alina Haba knew that and Donald Trump knew that. And the reason that Donald Trump put Alina Haba into that cushy position, she's not qualified to handle. Having never been a federal court practitioner ever in her life, nor clerk for a federal judge, nor, nor any of that other than her close personal relationship with Donald Trump and being his criminal defense lawyer and his chief shilling, she's a political hack of the first order and a hatchet person of the first order. And that's why he put her in that plum role to go after all of his Democratic rivals. And she doesn't, speaking of like you said before, you know, he doesn't hide it. She doesn't hide it. She, she, she says it on her, she still runs her personal social media where she talks about going after Cory Booker and the governor of New Jersey, all Democrats, for no good reason other than the fact she doesn't like the color of their party. You know, where that was going, at least for Cory Booker. And she did the same thing then. She, she, since she was never trained in the Department of Justice, doesn't understand, nor has she read the Department of Justice manual. She doesn't understand what it's proper and improper for a prosecutor to do. You do, having spent 30 years as a prosecutor in the state courts. She never did and never will and doesn't want to. So she brought all of these charges. You and I have been talking about the member of Congress who's still indicted by her and, and Mayor Baraka, all because in April, three members of Congress and the mayor went down to Newark, New Jersey, where he's the mayor, to go do what they're supposed to do under the law, which is to inspect the immigration detention center that's operated by a private company that gave money to Donald Trump. So it's a private prison. And they went down to go inspect it. And the crowds were outside seething over it. And the private guards that run that, that detention center saw Mayor Baraka and invited him in, that's almost undisputed, to try to quell the, the crowd. And he was there and then Department of Homeland Security showed up, obviously under directions of both Pam Bondi and Kristi Noem and I'm sure, Alina Haba. And they wanted them. They wanted the imagery of a strong black male leader being taken away with handcuffs, and they got it. And before he was even arraigned, before he was in his criminal complaint was even up and running, she was already. Molina Hobb was already on her social media talking about corruption of. Of. Of Baraka and the fact that no one's above the law and all this other stuff. And then she did the same thing in Fox News interviews with CNN and the rest. There's a little problem with that. Twelve days later, she dismissed the trespass claims against him, although she kept it against the other member of Congress. And she's still facing those couple accounts. And when she got brought before Judge Espinosa, a magistrate judge in New Jersey, he spent a considerable amount of time with her there, chastising her and saying, and I'll paraphrase Karen, you have to do better. Your office requires you to do better. You are a prosecutor. You are not a private political hack any longer. Those are my words. And the fact that you rush to prosecute, you're not supposed to follow public clamor or political leanings. You're supposed to do it because it's right under the Department of Justice manual. And you failed. And you must do better. As he. Then. He didn't have to do any of that. He could have just accepted the dismissal and said good day, but he wasn't going to do that. And that was an invitation, if not that he needed it, for Baraka's lawyers to file their. Their suit. You have a unique perspective as a former prosecutor and. And prosecutorial discretion, and why that's important in our society, because the power that you yield. Why don't you take it from there? And then we'll talk about the claims that have been brought by Mayor Baraka.
- [28:56]
Charles Barkley
Yeah. Well, this case is somewhat stunning to me because this case was not dismissed because of prosecutorial discretion. This case was dismissed because they had no legal basis to bring it in the first place. Right. And I've prosecuted many, many cases involving big scrums of lots of people, like members of Congress, mayors, et cetera, who show up at protests. Right. That happens in all the time. This is not unique. That is part of their job. In fact, in this particular instance, the members of Congress showed up to this detention facility, which is a private prison, by the way, that is being used to hold these. These detainees before deportation, they showed up to inspect, which is part of their job. They're actually. They're actually supposed to do that. And they showed up, as did the mayor of Newark, because this is in the city of Newark. They were in a place where the members of Congress were in a place on the other side of the fence. So inside the fence, and the mayor was outside the fence, and just with the protesters. Now, one of the employees actually invited the mayor onto the other side of the fence to try to stop and quell any unrest, to try to calm people. And meanwhile, the members of Congress were just being held there for over an hour. They weren't being put inside the facility. So a lot was going on. The mayor, and the reason that's significant, and the facts are significant, is he was invited onto the property. And so as a result, you can't charge someone. You can't invite someone onto private property and then charge them with trespass. So the case had to be dismissed, ultimately, because it had no merit. It was legally, he wasn't guilty of the crime. Now, the reason I bring up my past prosecutorial experience is we would have never arrested someone like a mayor or a member of Congress or something like that in a case that like this, where it is so complicated because so much was going on, there were so many people there was pushing. It wasn't like one person did this and another person did that. These kinds of cases, you have to review all the video, talk to witnesses. You have to really put some work into it, normal investigative. Investigative work, see if the facts actually meet the elements of the crime, and then decide whether or not to charge. In this particular instance, they decided to charge first because this was a political show and a political spectacle. There was no reason to arrest this guy right then and there. He wasn't a risk to flee the jurisdiction. He's the mayor of Newark. He wasn't any danger to others. You didn't have to put him in for a. What Alina Haba admitted herself was a, quote, petty crime, because it was. It was misdemeanor trespass. So once they stopped their political stunt and actually looked at the facts of the case, they decided, we have to dismiss this case. And so we will dismiss this case. You know, I'm sure they say it's in our discretion and all that kind of stuff, but no, they did it because substantively, they didn't have the facts, did not constitute a crime. But they weren't satisfied. They still wanted to arrest a. I mean, I hate to say this out loud, but A person of color, you know, that's what it certainly seems like. They then arrest the congresswoman, LaMonica McIver, who they say she's charged with assault. I've watched that video over and over and over again. I don't see an assault, but maybe there's other videos from other angles, I don't know. But they are charging a member of Congress with assaulting law enforcement. So they just want to go after somebody, and they're going to make a statement here one way or another. It's like, very interesting to me. The Trump administration, they go and do the thing. In all instances, they go and they kind of. They do the thing that's illegal, frankly. And then once they are told it's illegal, they double down and do it even more. It's like they can't. They want to just keep pushing and keep pushing. I like how you said it. All gas and no brakes. Because that's what they're doing. And they're doing it here, too.
- [32:53]
Michael Popak
We've got a new ruling that we'll talk about after our first break that just came out with Judge Boasberg. Back to the Zinnis immigration issue that we. That we started. And we'll also talk about Trump's losing streak. And this is part of it. We could pick up with it right there with another new ruling against him certifying a class of people that were sent to different places. And then what is the Supreme Court going to do about all these things? Karen got two new gun. Gun cases that came out about AR15s and the like. But I'm not as encouraged as some people might be given what Justice Kavanaugh said, not in a dissent, but in a statement. And we'll cover. We'll cover all of that. But first we got to. What's the phrase they use? We got to pay the bills. So there's a number of ways that we continue to knit together this fellowship, this, this group of amazing, fervent supporters of Midas Touch and Legal af. We do it here on Midas Touch, on our legal. I have podcast, which is the number one. All because of you. The number one law and politics podcast in the YouTube top 100 of their podcast rankings, weekly rankings. And we're proud of that as we continue to move that forward. We're on all the podcast platforms as well, audio podcast platforms, to be frank. We could use a few more downloads of the audio, as we like to say, in house. That would help us continue to stay in the top 50 or so of podcasts. In the news arena because these things matter. Because it signals to everybody, including on our side, that you're enjoying this content. It keeps the lights on and it brings our advertisers together. It just, it's just, just. It's just something that's very, very important. We've got other ways, all for free, really, that you can support what we do here and the type of reporting and analysis that we do over on Legal AF, the YouTube channel Legal AFMTN. We're about to hit 700,000 subscribers. We've got a dozen amazing contributors. Along with myself, we got a new podcast, it's called It's Complicated with Asha and Renato. Along with Court accountability action and court of History. It's just an amazing, all inclusive one stop shop for things law and politics over on Legal AF, the YouTube channel. We then take things that you and I, Karen, will be talking about today, like the orders with Judge Zinnis or the new one with Judge Boasberg, and we post them on LegalAF substack with analysis, of course, come over to Legal AF substack. If it's related to the Supreme Court, we call it SCOTUS af. If it's filing something or an order coming out of another court, we call it Filings af. And then we've got some amazing writing going on there, including with contributors and guests, people that we interview all together on Legal af, the substack. So those are all the ways to support us. And then we've got this group of hand picked curated sponsors. Jordi spends a lot of time with the brothers putting it together. What I like about our sponsors is not only the products because we try them and we're like, yeah, we like this one. Now I don't like that one. So that I like, but I do. What I appreciate is they're trying to talk to our audience and they know what our point of view is and they don't and cannot control what we're going to say. Look, you and I don't even know what we're going to say, let alone them. There's. And just to be clear, other than some cleanup when we have it for video where there's no editing, there's no, it's all in just while, you know, if I cough or so maybe we take that out. But there's no edit. Nobody says, oh, well, I don't like that comment you just made. Take that out. We'll lose, we'll lose sponsors. Nobody ever says that here because we would do it. We wouldn't do it we think too highly of ourselves, but more importantly of our audience. We would never do that. So this is a group that we like a lot. And here's our first break. 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As I said at the top, not knowing that was going to happen today, that decision by Stephen Miller and Donald Trump to use the Alien Enemies act to scoop up people and send them without due process rights, even notice, to El Salvador. A series of Supreme Court decisions put a stop to that. Not just the Abrego Garcia case, but other decisions coming off of the petitions for writ of habeas corpus, including at one o' clock in the morning about a month and a half ago. So now if you're synthesizing all of the Supreme Court decisions that have come out with Trump's name on it in precedent, the extent it's precedent at this level in the last several months, it is. You may use the Alien Enemies act until we get around to telling you you can't. But while you do, you must give rid of habeas corpus rights under the Fifth Amendment. You must give them proper notice. You must give them time to get in front of a federal judge. And the federal judge will then ensure that those due process rights are abided by. And you must do that all on this side of that body of water, in other words, in the United States. And if they're already there, then that's what courts are grappling with. How do you get them back? And Judge Boasberg just issued a ruling which we have been waiting for for quite some time in which he said, hey, you know those 250 people that went to seekat that maximum security prison gulag in El Salvador in a pay to play scheme by Donald Trump. Yeah. The group that I said shouldn't go there and I ordered them not to go there. And I ordered you to ground the planes and turn the planes back around. Yeah. I'm now certifying them as a class. All those people who were subject to the Alien Enemies act, who were sent away from federal jurisdiction, who are now sitting in El Salvador. Yeah. They're now a class and they can prosecute their rights here in front of me in D.C. and he's got, he is the judge we talked earlier, Karen about Judge Zinnis about to rule on a motion for contempt. But let's not forget that Judge Boasberg was the first judge to find probable cause for criminal contempt. In a related matter to the one I just described, it's only on hold because the D.C. court of Appeals put his ruling on hold for now. But, you know, he's not a judge to be trifled with. He's close to the many of the Supreme Court justices. He was the roommate for Justice Kavanaugh in law school. He is considered to be. He was a Democratic appointee, but he was also a Republican appointee. He's considered to be very honorable, very middle of the road. He's the kind of guy that would be on the United States Supreme Court through Biden or through a future Democratic judge president. And he's friends with Chief Justice Roberts. In fact, Roberts came to his aid indirectly when Roberts issued that now infamous or famous statement where he said, don't call for the impeachment, President Trump of judges, just appeal them. And that was really a direct result of the bashing that Boasberg was taking. And let's talk about Trump's losing streak, even at the Supreme Court. Have you seen the stats on the 200 plus cases and the more than almost 70 injunctions on, on the losing streak?
- [43:01]
Charles Barkley
Yeah, I saw that. I think it was a Stanford professor who put some data together which was fascinating, that showed that Trump has lost shocking 96% of rulings in federal court just this month. Right. And this professor said he's lost 72% of rulings by Republican appointed judges and 80% of rulings by Democratic appointed judges, which essentially means everybody's ruling against him. It's crazy. I mean, it was a great study and it's really interesting. And Trump is just basically lawless and he doesn't care whether it's lawful or not. I guess my question to you, Popak, which I've asked us before, why doesn't he try to do things lawfully? He's just like, no, no, seriously, like the thing with, with, with all these deportations, he could do it in a way that is lawful and accomplish the same thing, whether it's giving them some due process or having Congress pass a law or like, why doesn't whatever he wants to do, he controls both houses of Congress. Just pass the laws that you want instead of these ridiculous executive orders and get your stuff done that way. I'll never understand why it is that if he really wanted to do these things and win, he could, but he Hasn't.
- [44:19]
Michael Popak
Well, I got two answers to that. One is it's like telling the scorpion to stop stinging the frog. That's not going to happen. And the second is he can't Congress, no matter that it's in his control, can't move with the velocity and the ferocity at which Donald Trump wants to operate. He could never get, he issued 150 plus executive orders. He could never get 150 plus laws passed in Congress to match the executive orders, especially on some of the topics that he's raised. So he has to operate by way of executive order in order to pay his debts with those that bought this president, bought and paid for this president. He owes a lot of debt.
- [45:03]
Charles Barkley
But don't they want results or do they just want these executive orders and, you know, this blustering and, you know, tough guy and he gets shot down. Ultimately, they don't care. They don't really want results. They just want the, they're getting results.
- [45:16]
Michael Popak
Until they, until the they time is on their side. I'll give you an example. We can, we can touch on it as well. When the Dobbs decision came out, taking away a woman's right to choose, first time in history, a right constitutionally granted by the Supreme Court was taken away by a later Supreme Court, taking away a woman's right to choose. Of course, in the, in Roe vs. Wade, Joe Biden and Kamala Harris scrambled to try to figure out in federal agency law, statutes and the like how they could salvage something of reproductive rights for women. And one of the main ways they did was to look at federal funding for Medicare and Medicaid and hospitals and say, all right, well, we have the Emergency Medical Treatment and Labor act, which we call emtala. And why don't we put guidance in EMTALA that says that if you, doctor, you know, implementing your Hippocratic oath, if the woman, if the life of the mother is in danger and abortion is the answer, you are to give her an abortion regardless of the federal, whether it's a constitutional right or not a constitutional right. Now, the 23 red states all got upset about that. Oh, and there was a challenge to the United States Supreme Court that sort of punted on the issue and sent it back to the states to sort of figure out EMTALA as emergency care when a woman's pregnant and the life of the mother is in danger. A trumped up, no pun intended, Catholic doctor group got together, Catholic doctors for who knows what. It's artificially made. They're not a real, I mean they're really, I assume they're really Catholic, but they're not, they're not a real group. They got together, they filed a suit in the middle district of Tennessee recently in which they wanted to challenge Joe Biden Biden administration's guidelines about EMTALA and to say that EMTALA and allowing abortion conflicted with their religious rights, whatever it was. But they had a coordinated and orchestrated attack against women with the Trump administration because yesterday he sent out new guidelines to the doctors telling them no, the prior guidelines are wrong. You are not to use an abortion to save the life of a mother. That's not your ability, especially in states where it is illegal under Dobbs in the state. And you are to abide by the state. Whatever. You're right. And right on cue, after the American Civil Liberties Union on behalf of another group of doctors intervened in the case, they dismissed the case because they didn't want to make bad law. And they got what they wanted because they got an executive order or guidelines out of the Trump administration because they're happy to play the long game. They're like the Putins of the world. They're willing to play. We'll worry about next year, next year we'll worry about 2027 and 2027. And if the executive order gets overturned by we'll count on the Supreme Court because we're doing 50, 50 there, then we'll, then we'll go to MAGA Congress, because they just couldn't, you couldn't pass this many bills given the close narrow margins in the House, a little bit bigger in the Senate. But in the House it's so narrow that Hakeem Jeffries is basically the co speaker of the House. Yes, the big beautiful abomination of a, of a budget bill got passed, but that's a heavy lift and you couldn't do that 150 more times. So this was their plan. This is their Project 2025. This is pages out of Project 2025. This is issue executive orders, use the power of the executive orders until you're told to stop by some, keep going until the Supreme Court tells you to stop. And even then, and what we've now watched with this losing streak is Donald Trump attacking the Federalist Society. Talk about biting the hand that fed you.
- [49:06]
Charles Barkley
Yeah, what's up with that?
- [49:08]
Michael Popak
That's it. Because they, the conservatives who are embedded within MAGA are now attacking Donald Trump and some of his picks. Like they don't want Emil Bovet, Emile Beauvais to be the third Circuit Judge, they think he's unqualified, both temperament wise and otherwise, that he's a political hack and they don't want to see him. And they wrote a whole thing in the National Review about it that pissed off Donald Trump. And also he's, he's blaming the loot. He can't, he doesn't want to blame the losing streak on what you said, which is that he's, he's lawless and that he's taking a totally nonsensical and upside down positions that are easily refuted under the case law. Although he wins, you know, he also wins occasionally, including at the Supreme Court. He can't blame that or his legal guidance around him or Stephen Miller, who's not a lawyer but plays one on the White House, in the White House. So he's got to blame the judges. And to blame the judges because everybody would say, well, you nominated them, you picked them. Are you saying you picked radical judges? Oh, no, not me. I was, they were hand delivered to me. I outsourced that to Leonard Leo, the shadowy figure. I don't even think he's an American. That's what, that's. The guy actually said.
- [50:19]
Charles Barkley
So what happens? Are they going to turn on him? I mean, or are they going to change? But, but in the long game, like, is this going to help? Is this that. That's my question. Because he, I think he's really starting to. I always think this cross, cross a cross a red line, but he never seems to. Right. I mean, I, I am loving the. Elon Musk is finally waking up and seeing what a disaster this whole situation.
- [50:44]
Michael Popak
Is it an abomination.
- [50:45]
Charles Barkley
I know, I know.
- [50:47]
Michael Popak
Plus there's new reporting. We were going back and forth on another chain about apparently Musk. We already had reporting that Musk got into almost a shoving match with Boris Epstein before they went into the White House. Then Marco Rubio almost came to blows. Apparently Scott Bessant, of all people, the Treasury Secretary got, according to reporting in the Daily Mail, which is kind of 50, 50 there, he got shoved by Musk during an argument. This is what's going. That's why this is the leakiest presidency I've ever seen. And they can't control it. And the more they can try to control it, the leakier it gets. And these are all things that help us. I always like to have a positive note. These are things that help us get ready for the midterms. And now is the time to make sure your mail in ballot's going to work, that you complied with, especially if you're in a red state, that you comply with all of the new rules and regulations for voting, that you work on voter registration, that you work against voter suppression, because that is our number one. You want to know what your sledgehammer is in your tool bag as a voter and as a legal a effort, it's that it's voting and working towards voting because midterms are notoriously low turnout affairs. It's the super voter. It's the one that and a lot of that's Trump. But who's more motivated to go to the polls maga who's have an independence, who are having major misgivings and second thoughts about the Trump administration or the Democrats who are watching this fascist play, you know, play out. And we, and this is the only way we can do it, return the House and the Senate to the Democrats, Democrats both to stop federal judges from being appointed that are outside the mainstream, stop Supreme Court justices that he'll ultimately be allowed to appoint if, if required by giving us back the Senate and set us up, set up the Democrats for the 2028 presidential election. This is about as simple a formula as we, you and I can talk about. That's it.
- [52:44]
Charles Barkley
I think people should try to vote in person because it's the mail in ballots that continuously get criticized by maga. And so we have to take any room for them to complain. I really, I think obviously if you can't go in person, don't. But I, I think I'm going to go in person, that's for sure.
- [53:03]
Michael Popak
Yeah. And, and when we come back from, from our second break, we'll talk about a case that the Supreme Court took up to look at whether a state law that on the books allows, as long as they're postmarked the day of the election, the ballot to show up, plus 12 out, 12 days out. Whether that is constitutional or not, I guess is the right way to put it. Even though states are allowed, that's one of the things they're empowered to do, which is determine how they're going to comply with federal law and how they're going to run federal elections. That's a state issue, not a federal issue. But there are constitutional implications. And I am always concerned and I get like an itchy feeling when the Supreme Court's the Supreme Court starts taking cases like this about what they're going to do. There's a series of cases about because Donald Trump's again, if the vote's not it, if you don't mail in vote, it doesn't show up the day of the election, it shouldn't count. That's the Republican suppression movement at play. And when I see a case get to the Supreme Court, it always gives me a lot of concerns. And then we'll also talk about the two gun cases, one coming out of Maryland, the other one coming out of Rhode island, which on their face, you know, I was cheering it. I was like, all right, well, at least for now, they supported Maryland's block of AR15s and Rhode Island's block of High bag, high capacity magazines. But there's something afoot and I want to talk about it with you, Karen, and we'll, we'll touch on all that and so much more here. You're here on, pardon me, Legal af where that came from. Camera. You're on Legal AF at the midweek with Karen Freeman, Nickniffalo and Michael Popak. We've got some amazing sponsors and ways to support us. Go over to Legal AF the YouTube, hit the subscribe button. Come over to Legal AF the Substack and hit the subscribe button there as well to get all your reminders. We got a Patreon that's still going strong. Come over to Patreon for Legal af and these are all the ways and listening to our audio, downloading our audio, listening to our video, downloading our video and helping us grow or by its complete word of mouth. We don't have a marketing department. Like, what are we? We have no market. We are the marketing department. And so we really appreciate you being here. Some from the very, very beginning, like Day Dirt and some just joined us tonight. But we appreciate each and every one of you because you all contribute to this amazing audience that we have. So let's take another break, Karen, and when we come back, we'll talk. We'll finish up with the Supreme Court. Are you sick of drinking your calories? Of waking up hungover? Having some drinks can be fun, but I'm glad I found an alternative that lets me feel great in the moment and the next morning. Out of Office Gummies from Sol I've used Sol's out of Office Gummies and what stands out is how they offer a pleasant, mild buzz without any of the downsides of alcohol. No hangovers, no added calories, and no interference with my workout routine or focus. It's an excellent option for anyone looking to maintain wellness while still enjoying social moments. Sol is a wellness brand that believes feeling good should be both accessible and enjoyable. Their hemp derived THC and CBD products are thoughtfully Crafted to enhance mood and promote relaxation, the out of Office Gummies, their best seller, provide a gentle, relaxing buzz that supports creativity and calm. These gummies come in four different strengths so you can easily find the right dose to suit your mood, from a light micro dose to a fully lit experience. All of Sole's products are made with organically farmed USA grown hemp and are vegan, gluten free and low in sugar, ensuring you know exactly what you're putting into your body. Bring on the good vibes and treat yourself to SOUL today. Right now, Soul is offering my audience 30% off your entire order. Go to getsol.com and use code legalaf that's get soul.com promo code legal af for 30% off.
- [56:55]
Unknown Speaker
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- [57:18]
Charles Barkley
The best part?
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Unknown Speaker
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- [57:54]
Charles Barkley
But that's not all.
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- [58:59]
Charles Barkley
Peptide which targets the accumulation of these.
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Unknown Speaker
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- [59:06]
Charles Barkley
So I'm a big fan.
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Unknown Speaker
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- [59:36]
Charles Barkley
Oneskin.
- [59:36]
Michael Popak
Welcome back to the midweek edition of Legal AF Care. Let's round it out with the Supreme Court. They're trying to go on holiday but and get everything issued before the end of June. They're running late primary with issuing their orders primarily because of all these emergency applications that they're entertaining that could fix that by stop entertaining them. But they, you know, they, they never saw an emergency application they didn't like and they keep taking them but it's delaying them from issuing these 30, 40, 50, 100 page decisions that we're used to just, just as a reminder or, or new, new knowledge for people, you know, we have tens of thousands of cases, state and federal that happen every year. A very small percentage, very, very, almost infinitesimal end up at the United States Supreme Court. They only take about, it seems like more but they only take about 60 or 70 cases for full blown decision making.
- [60:31]
Charles Barkley
I mean that's out of 7 or 8,000.
- [60:35]
Michael Popak
Yeah.
- [60:35]
Charles Barkley
Applications they take or 80.
- [60:38]
Michael Popak
Oh yeah. Even when they get there. But there's tens of thousands of lawsuits in the country. So by the time it gets there it seems like more because you know, there's other things like making decisions by not making decisions like refusing to take up a case, refusing to block a case. So if you add in maybe we make it a couple of hundred lawsuits that they weigh in on during a given year, as you said, against 8 or 9,000, 7 or 8,000 that are actually filed by so justice in this country at the federal level primarily and at state court is done at federal appellate courts. If it gets there trial court levels and state supreme courts or the equivalent of lower level appellate courts in states. That's where justice is done on some key constitutional issues or something, where the Supreme Court now run by the MAGA side, are trying to make new law. You'll see a couple more cases taken, but that's it. And so they owe us a lot of written orders and we're waiting on pins and needles on some of them and we just, and, and so end of June, hopefully they'll have them all out. That's the plan anyway. Then they all go away. The Republicans all go to these, you know, used to be Federalist Society paid junkets. That's the weird thing about the whole thing because every one of those maga, right, are federalists. They all go to the George Mason, Anthony and Scalia School of Law supported by Leonard Leo. And they go on these junkets and hunting trips and fishing trips and Europe trips and golf trips paid for by MAGA money, by Federalist Society money. They do that all summer and they do some writing and speech giving and all of that. And then they come back, you know, in September to get ready for the first Monday in October, which is the start of the new term. Along the way, this is going to be a busy summer because we're already up to, in, what are we up to now? Almost five months of the Trump administration and we already have 17 or 18, let's say 20 emergency applications. So four a month, that's going to be unabated. We're going to have four a month through the summer, another 12 or so that they're going to have to decide on, generally without oral argument. That's the problem with emergency applications, as the judges have often said in their own decisions. It short circuits their process. It puts a skeletal record in front of them without improper, with improper briefing or insufficient briefing, no oral argument and no time to deliberate. And that's why we get these paragraphs where the dissents, the concurrences are longer than the opinion. And so we had one of those or two of those in Rhode island about high capacity magazines, you know, the thing that feeds into weapons, that fires off lots of bullets. And then we had a same day ruling by the, by the court. And it looks to be to me 7 to 2 on both, which is very, very interesting. What did you make of the Maryland AR15 block? For now, Kavanaugh's statement. And then, you know, we just touch on the Rhode island matter as well.
- [63:48]
Charles Barkley
Yeah, I mean there's, there's a lot going on in the Supreme Court. Right. You've got the BOAST versus Illinois State Board of Elections case that they are going to take up, which has to do with election officials who, who want to be able to count mail in ballots that are received two weeks after election Day, after as, as long as they're postmarked. But Boast is a member of Congress and Boast, along with a couple of elect from Illinois are challenging that, saying you can't do that. You can't make a law in Illinois that says that it has to be by that date. And I think it's going to be very interesting to hear where the court stands on this because as you said earlier, it's really up to the states to determine the time, place and manner of federal elections. It's actually a doctrine written in the First Amendment. It basically says that governments can regulate the when and the where and the how of expressive activity, but not the content of the speech as well. So it'll be really interesting to see. I mean, I've always interpreted that to mean that it's really. States get to determine that completely.
- [65:07]
Unknown Speaker
Right.
- [65:07]
Charles Barkley
And so if they want to be able to have mail in ballots, as long as they're postmarked by a certain day, as long as they are received by a certain day, et cetera, that that should be perfectly fine. And in fact, that's what's been going on all across the country for decades. You've got military people overseas who are doing mail in ballots. You've got students who are in school in other states who do mail in ballots. You get all kinds of individuals for whatever reason, people who live in red states who are afraid to go to a voting poll, they would prefer a mail in ballot. I mean, there's many reasons why someone might want to do it that way or vice versa. You live in a blue state and you want to vote. I mean, there could be many reasons why someone, someone just does or you know, whatever, you're unable to actually go in person for any any particular reason. You could have a physical reason, et cetera. So it'll be interesting to see what they do with this and why they're taking up this case. But this is going to have huge implications for elections going forward potentially on whether states can regulate this because for whatever reason, mail in ballots have typically been gone blue. And that has been. That's why this is so on the radar of MAGA and Trump, because it's the mail in ballots that tend to be more Democrat voters and less Republican voters. And so it's hard to call elections on election Day because some elections that are close, might go look like they're going red, but they haven't counted the mail in ballots yet. So this is sort of a bee in the bonnet of MAGA and something that they would love to be able to be able to chip away at frankly and get the Supreme Court to rule in their favor. Now the question I have for you, Popak, is do you think the court here is going to rule on the merits or on just the issue of standing? Because I know the issue in the lower court was whether or not the Congressman boast had standing to bring and challenge this suit. And that was the issue that they ruled on on appeal. Or are they going to resolve the bigger question about mail in ballots? What are your thoughts on that?
- [67:27]
Michael Popak
Well, it's a good question. I mean the fifth Circuit Court of Appeals and Judge Ho and Oldham have been pushing for the Supreme Court to make a ruling in their favor. The way they see the law that would deny the ability to have mail in ballots come in after certainly that far out after the actual election. Remember, this is the postmark date that matters. This means the voter's intent is clear. They voted. It's in the envelope. The envelope is marked the day of the election or before it just shows up late. I mean does anybody really trust the U.S. postal Service, especially in the hands of Donald Trump and the Trump supporters. And so that this was a reflection of that in rural areas and mail issues, mail gets stuck in a sorter, gets stuck in a bag at that letter office and you and your right to vote has been compromised or undermined. Part of me thinks they're taking the case because they want to say even in the case of a 12 day out deadline, we're okay with it as long as the voter's intent is clear and he voted effectively by envelope before the election. It just so if they get rid of it on standing ground, they don't want to touch the issue and they're ultimately okay with the plus 12 at least in terms of the voting if they.
- [68:44]
Charles Barkley
But then why take the case? Right?
- [68:47]
Michael Popak
Yeah, well that's a good question. I mean sometimes they take the case even when standing is poor to signal to the rest of the world that they want a better case brought to them. Which brings us right that, that we're, they're not go, they're not going to overlook standing because it, it, it's important to them that there be article three standing for somebody.
- [69:08]
Charles Barkley
Why don't you explain what standing is for everybody?
- [69:10]
Michael Popak
Yeah, well, in order for a before for you to Prove to a court that there's a live case or controversy because they don't make advisory opinions. Like, hey, I wonder if I'd like to get an opinion from a judge about this. If I dispute with my neighbor, you know, or the neighbor across the street, like, well, how are you impacted by that? Well, no, I'm just curious. Well, the courts don't do that. They don't scratch your curiosity itch. There has to be what's called, and this is a term of art, a live case or controversy. And one of the ways to ensure that there's a live case or controversy that it's not an advisory opinion is to ensure that the people before them have standing or the plaintiff has standing in particular to prosecute the case. Their, they have unique injuries. They have a unique claim against them, whether it's a constitutional breach or it's a breach of contract or it's a tort, a defamation, personal injury, whatever it is, that they're not so attenuated. They're not such a drive by plaintiff that they don't have the ability to properly bring this live case or controversy in front of a judge. He has to have, he or she has to have in front of them, them two competing parties in our adversarial system of government, both advocating. And then when the, when their judge rules that there be a real result. That's why you also need the party, you need all necessary and indispensable parties in front of the judge. Because if he's about to, if he or she's about to make a ruling that's going to impact somebody's rights, they need to be in front of the court. That's another kind of flip side of, flip coin of the, of the standing issue. And it's a way procedurally for courts who, especially the Supreme Court, which considers itself a court of limited jurisdiction to, as you said, to take those 9,000 cases and get it down to like the 60 or 70 they're going to rule on. A lot of the times they just, they do it by way of standing. They're like, well, it's interesting what you're bringing up, but you're the wrong party to bring that up. Because if, and we know you're the wrong party because if we rule in your favor, while it may be a declaration of rights, they're not your rights. We want, because the underlying theory is the person who's really being injured and has unique injuries is going to be the best person in our adversarial process with their lawyers. To advocate for the position. Because if you're just sort of weak kneed about it because it's like. Well, it's not really my issue. It's really like, you know, like, like the NOISY NEIGHBOR that's 16 blocks away. You know, the neighbor next to them that's the one that cares about the ban in the backyard. Yeah. You could hear it down the street. But is it really your. Are you really going to be vociferously prosecuting your case? Unless you are, if you're the neighbor next door. And that's sort of that standing issue. So we'll have to see. I, I don't know enough about it from the briefing standpoint. I think there may be a split vote about how to resolve this particular case, but often cases come back around. Let, let's, you know, I let off with the, I don't want to confuse people. We let off with the gun issue. We quickly jumped to the ballot issue on the gun issue. What did you make of Kavanaugh's statement which kind of dovetails with our standing issue about. Or having a live case or controversy in front of him about whether AR15s are going to be protected by the Second Amendment or not?
- [72:26]
Charles Barkley
Yeah, I mean, this was a weird one because I didn't know Supreme Court justices issued statements like that. I thought they either give a concurring opinion or a dissenting opinion, or they join the majority opinion. I didn't know there's something called a statement. And what. The, what, what impact does that have? Right. Why. Why is that? I don't know. It just seemed weird. I, I've seen them make statements from the bench to, but to put a written statement, that's part of the decision, I just haven't seen that before, but I thought that was kind of interesting. But what, what essentially this case is about. It's. Maryland has a law on the, on the heels of the Sandy Hook terrible shooting in, in Connecticut, Maryland passed a law a year later essentially saying AR15s that are illegal. We're banning AR15s and any automatic semiautomatic rifle can't have more than 10 rounds in their magazine. Right. And a majority of the judges just all said, essentially, we're not taking the case, we're not going to hear it, and didn't give a reason. Which was interesting, though, because as you said, there was this statement that was given that essentially said, well, Thomas dissented, basically, of course, because Thomas has to dissent. But I thought it was weird that Alito and Gorsuch didn't join Thomas's dissent, although they did say they would have heard the case. Like, it's just weird, you know. And Thomas's dissent essentially said, I would not wait to decide whether the government can ban the most popular rifle in America. He wrote, that question is of critical importance to tens of millions of law abiding AR15 owners throughout the country. We've avoided deciding it for a full decade and I doubt we would sit idly by if lower courts were to so subvert our precedents involving any other constitutional right. He wrote, until we are vigilant in enforcing it, the right to bear arms will remain a second class right. So we all know based on that pithy, essentially one paragraph or two paragraph dissent, that where he, where he falls, right, he wants to take up the case and say, sure, go ahead, anyone can carry an AR15, you know, and basically, basically anoint themselves as a militaristic, you know, a military grade weapon themselves. I mean, it's just he thinks the right to bear arms means anyone should be able to own an AR15 and that states should not be able to regulate that. Which is clear. But it was weird that Alito and Gorsuch didn't join that. Instead they said, we would have heard the case but didn't give a reason why they didn't join the dissent. And Kavanaugh issued the statement. And Kavanaugh could have been the swing vote. Right. And making it so that they did take up the case, but instead issued a statement saying, this is a significant issue and we want to take it up soon, but I want more cases, more lower court cases to interpret this issue. And I don't know if he was looking for there to be a conflict in the circuits or if he just wanted more lower court case law to have bubbled up and more courts to consider all the issues before the Supreme Court takes it up. So that's where that was.
- [75:39]
Michael Popak
Yeah. Kavanaugh basically said and signaled that when the case returns to the Supreme Court, he said, either this next term or the one after it, they're going to rule that AR15s, which are in the hands of millions of Americans, unfortunately, has crossed the threshold of being, not being a military armament. See, all the courts like Rhode island and Massachusetts, they take the position that the AR15 is the equivalent of an M16, which is a military grade weapon. And the courts have been clear, including the Supreme Court, that you don't have a second amendment right to have military grade weaponry. But you hear Thomas and Kavanaugh Saying, no, an AR15 is a sporting weapon, even though it's the one that's used mostly in mass shootings, including in schools. And Kavanaugh basically inviting the next case. He said there are at least six cases percolating through other federal courts and appellate courts that will make their way to the Supreme Court. His position is, I would take it up now, and that's Thomas's position. And. And if they do, the question is, do they have five votes? Can they count the five? They can count the four. Kavanaugh, Gorsuch, Alito, and. And Thomas, that's for sure. But to make AR15s a. To make it declared a. A bearable weapon, right to bear arms, a bearable weapon under the Second Amendment and protected by the Second Amendment because they always go back. The reason that Thomas, of course, dissented is because he wrote the leading decision, the Bruin decision out of New York, finding a personal Second Amendment right, and the only way that right could be regulated by the states is if you go back to old timey times in the 1700s and early 1800s, and you find an historical antecedent, an analog for that, then if you find the match, then you could go, oh, all right. They kept it out of the hands of the criminally insane. Oh, okay. But if, you know, if not just despite the fact that women were not full citizens, despite the fact that black Americans were not full citizens and often both treated as chattel, as property, we're still going back to beyond the wild, Wild west for gun control. And so Kavanaugh is going to find an AR15 to be able to be owned and not outlawed. He keeps pointing to the 15 million or whatever people it is that have AR15s, and the question is Roberts and Amy Coney Barrett. Amy Coney Barrett. If it was a religious issue, I'd say we're sunk. If it were a reproductive issue, I'd say crap. But guns, she hasn't been. That she sided with, with the majority about the Second Amendment, but AR15s, I don't know. We'll see. Certainly didn't side with him this time. She could have given him. She could have given him a vote. And Roberts. Roberts is like a weathervane, like whatever he thinks is politically expedient at the time the case comes around, depending upon what happened before and what's going to happen in the future. That's where Flip Flopper Roberts is going to be because he has no. He's lost his. His moral compass, if he ever had one, and he's just struggling to try to hold on to some. Some vestige of legacy and just. He's just making it worse. He's just making it worse. So that. That's what I think is going to happen there.
- [79:14]
Charles Barkley
But you know what I recently learned, Popo, speaking of women becoming full citizens and being treated like property, et cetera, and I had no idea, do you know, that women couldn't carry cred, couldn't have a credit card until 1974.
- [79:27]
Michael Popak
In their own name. In their own name. Yeah.
- [79:29]
Charles Barkley
Yeah.
- [79:30]
Michael Popak
Even if they worked.
- [79:31]
Charles Barkley
Yeah. Like that. That was like I was a human at that time. Like, I was. I was. I was. You know, it's just crazy to think that it wasn't that long ago when a lot of these things happened and are still happening in certain. In certain other areas. But the fact that, that, that, that was not that long ago. It's just crazy to me.
- [79:51]
Michael Popak
Well, think about when we were kids and you got an invitation for something in the mail for a mitzvah or a wedding, and it would, if they were being really Emily Post formal, it would say, for my mother, Mrs. Morton H. Popock, not Mrs. Gloria Popak, it would say Mrs. Morton H. Or my wife would be Mrs. Michael Popak.
- [80:15]
Charles Barkley
Let me tell you something that still happens today that is not as unusual as you think in this whole world of, you know, traditional wives. Traditional. You know, there's a whole movement, and that is still very much done today.
- [80:29]
Michael Popak
Yeah, I mean, I, that was so par. I wouldn't even have blinked on that when I saw that in the mailbox. And today, if I saw that in the mailbox, I'm like, is Emily Post still pushing that? Is that. I mean, it's one thing, you know, you can have your own internal discussions with your, Your bride or your, your, your. Your. Whoever you're engaged to about if anybody's taking anybody's name, that's fair game. Today my wife decided on her own, no pressure from me, that she wanted to take the Popoc last name. That was her choice. I honored it. If she told me she didn't, I'd honor that, too.
- [81:01]
Charles Barkley
Well, I wanted the same last name as my kids, so, yeah, I'm sure.
- [81:05]
Michael Popak
That went into it. But it's also, you know, speaking as a person who supports women, not as a woman. It's weird that the woman gives up, you know, a name she's been known by her entire life. You know, some. Most women, a lot of women have close relations with their fathers and, and, you know, yet now society sort of encourages them to take another name or as you said to support the family or whatever, but the guy. But the guys rarely do that. It happens, but the men rarely do that.
- [81:32]
Charles Barkley
I don't know. I. Nobody. I mean, I love my father more than anything. Like, nobody can love their father as much as I love my father. So. But for me, you know, at the time, I thought, what's so great about my last name that was. Came from the same sexist tradition, you know what I mean? Like, and. And so. And I thought, you know, you growing up, it's like, oh, can I go play at the Popo? You know, at the Popox, or you want to have dinner with. You know, I didn't want to be the only one in the family who. Who didn't have the name. You know, I wanted our house to have a name. So I was very proudly.
- [82:07]
Michael Popak
I have a close friend, she's a lawyer. Won't name her here, though. She's a lawyer in the Midwest. Phenomenal trial or. And for years, I knew she was married, and she had a kind of a unique last name I'd never heard before. And I thought it was Greek, or I thought it was this or I thought it was that. And one day over a couple of cocktails at the end of a trial day, I said, we got to talking, and she said, oh, that. That's not anybody's. That's not my husband's last name. I said, whose last name? It's not mine either. I said, who's that? Said, we picked it out of the dictionary. That was a name that we chose.
- [82:41]
Charles Barkley
I know a few people have done.
- [82:42]
Michael Popak
That, christen our marriage. So they both took a new name. Yeah.
- [82:47]
Charles Barkley
Yeah. I love that. I wish I had been that creative.
- [82:50]
Michael Popak
Yeah. And I like that a lot. I don't know how we got there, but we're there. And I'm glad. I'm glad we are. I'm glad everybody's with us here on Legal af. That's where I know you might have tuned in late and said, what is happening over there? This is. We've known each other for years. This is what happens.
- [83:07]
Charles Barkley
Oh, you mean we're still recording? I thought we were just having a conversation.
- [83:12]
Michael Popak
I went to. I went to New York recently. I was trying to get together with a couple of people during a very short window of time, and one of them is a fellow podcaster with this Michael Cohen. And I texted him, and I said, hey, Mike, I'm in town if you want to grab a drink or something and stay in Midtown. We're like, where he lives and he got back to me kind of late. We kind of missed my window of when I had time, time. And he sent me a certain chastising text message. Hey, what happened? You blew me off, you know, as only Michael would, would say. And I said, yeah, you missed my window, but I'm coming back. And I just, that's. I tell that story because it's no joke that whether it's the Mycellis brothers and Karen and me and, and Michael Cohen and we, this, we are very collegial and downright friendly and friends on this network. And I think it shows in the reporting, in our love and affection that we give to our audience, in the love and affection that we get back from our audience. And that's all we're trying to do. We're trying to just continue to grow and expand that and give people a place where they, a safe space where they can feel comfortable to both hear unmitigated information without smoke or sunshine. But also in comments and when we have the commentary in the comments here, feel, you know, we have a troll here and there, but feel safe about talking aloud and saying these things out loud to understand them as you debate these issues around the kitchen table in the public square. If you want to do social media, good luck to you and all that. So it's important. That's really what we've built here. And we do appreciate everybody for being here. Karen. We've reached that time of the show that everybody loves. Karen Freeman. Agniflo. Karen gets the last word.
- [85:01]
Charles Barkley
Yeah, it's, it's great to be here. And I love Wednesdays. I love being with everybody here@legal af. And I'm going to start doing more of Hot Takes Popoc. I'm. I promise you that. I know, I know. I said that last week and I am going to do more this week.
- [85:18]
Michael Popak
Good, good. No, you did them. We just had a technical glitch. Glitch. A little snafu. But we are going to onboard you. I assure you, if I have to come there and record you myself, we will get you on.
- [85:32]
Charles Barkley
No worries. It's all good.
- [85:34]
Michael Popak
All right. And thank you all for being here. Michael popa, Carol Freeman, Ignitfolo midweek edition of Legal AF. Shout out to the Midas Mighty and the Legal AFers.