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- [00:01]
Michael Popak
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. Welcome to the midweek edition of Legal AF and I'm so pleased to be joined by our guest anchor for today, Rachel Cohen, sitting in for Karen Friedman, Agniphila, who's who's busy with some of her court cases today. Rachel Cohen, you may recognize from many, many places, one in particular, her leading the charge as a human guardrail against this administration and against big law when they her law firm bent the knee and was one of the early settlers with Donald Trump paying hundreds of millions of dollars of free legal services. And Rachel Cohen was a young associate and said I've had enough. And not only have I had enough, but organized around it and then, and then took that to political activism and, and is leading the charge there. And we're so pleased to have Rachel because she's on Legal AF now with her podcast partner, Tierra Mack, who is a state senator in Rhode island in a new playlist podcast that we like to call, or they like to call the Pragmatic Optimists. Rachel, thank you for co anchoring Legal AF with me today.
- [01:36]
Rachel Cohen
Thank you so much for having me. It's a great opportunity and as you know, there's so much happening to discuss and I just hope that 45 minutes is enough.
- [01:46]
Michael Popak
Well, we'll see, we'll see how long it goes. You know, you and I are doing this high wire act without a net. We're gonna, we're gonna do it together. We did. There is a great introductory introductory video that's up right now in the Legal AF YouTube channel introducing you and Tiara Tiara to the, to the channel. It's up actually right now. So anybody that's interested, come on over to Legal, a YouTube channel. Subscribe there and take a look at that video explaining exactly the point of view is going to be for Rachel. But you're a lawyer by training. You practiced for a couple years in the corporate world. But now tell everybody, let's do the origin story here a little bit. And just to give everybody an update, we're going to talk today about things like a former Jan Sixer, former FBI agent who was in the middle of a trial when he got pardoned, who stormed the Capitol, broke through into the Senate and yelled f them and kill the police at various times. He's now working for Pam Bondi and Ed Martin in the weaponization subcommittee or committee of the Department of Justice. We'll talk about that. Alina Haba, who we all thought was only going to serve the 120 days or so as the Acting Interim U.S. attorney for New Jersey, but apparently Donald Trump is feeling his feeling it's and he wants to try to shove her in and get her confirmed as the permanent U.S. attorney in New Jersey. So we'll touch on that. Judge Moss, Randy Moss in D.C. has issued what is the first certification of a class action with an injunction attached to it, coming in the wake of Friday's Supreme Court decision which told federal judges, well, if you're going to find that the Trump administration has violated the Administrative Procedures act or law or abuse of power, you can't use generally, you can't use a nationwide injunction. You got to do it by class action and a temporary restraining order or injunction. All right. Well, that's exactly what we have. And some good news coming out of a Supreme Court, just not the Supreme Court. With Wisconsin in a 4 to 3 vote of their Supreme Court, the tiebreaker, obviously Justice Protostewitz voted that Wisconsin women have the right to reproductive rights and control over their own bodies, including making the decision about abortion and ripping away 174-year-old anti abortion statute off the books and declaring, no, that's not the law in Wisconsin. So some good news coming out of Wisconsin, a Supreme Court race. Rachel, as you may know, that Elon Musk and Donald Trump try to steal by pumping $20 million in to try to turn that state or the Supreme Court red didn't happen. And now we see it's already paying dividends. Rachel Cohen, welcome to the anchor seat.
- [04:50]
Rachel Cohen
Thanks so much for having me. I think that there's lots of relevant kind of background for both me and Tiara, who you referenced and who's co hosting pragmatic optimists with me in today's lineup. Because I think that no, number one, this kind of weaponization of the legal system is the overarching reason that I decided to resign from Scadden. And the one thing, this is not a good move for someone who would love to be invited back as a co anchor, but I actually resigned before my law firm bent the knee. And the reason that I always correct people on that is just because I like to make sure that we all know that the Trump playbook is overwhelmingly predictable. And so the organizing and the resignation and everything else that I engaged in was before Scadden had entered into their deal that promises $100 million in free legal services to the Trump administration. It was in response to a different law firm, Paul Weiss, offering up the first, quote, unquote, settlement to the Trump administration of $40 million in free legal services, along with a number of other concessions. And I was able to resign feeling quite confident that I would be proven right very quickly. And eight days later, Scadden entered into this agreement with the Trump administration because this authoritarian playbook, this weaponization of the judiciary, is so tired and so often played. And I think that kind of, I guess the, the Trump administration, with this January 6th rioter now joining the weaponization Committee and Alina Haba, I think that the Trump administration is misunderstanding and appointing people that are pro weaponization of the judiciary, right. To these kinds of committees and these positions of power because they know what a powerful tool it is, which is why it's so important that we're on here breaking things down for people and kind of explaining that they may be acting like they can do these things, but many of much of the time they actually cannot. Which I think brings us to kind of that asylum ruling today. And then last but not least, I must again plug State Senator Tiara Mack, a personal friend for many years, because one of the things that we really want to focus on is the fact that there's a lot of good news that can come out of states and localities when we make sure that we are showing up to state and local elections and not letting those elections be bought. There's a reason Elon Musk poured so much money into that race, and it's because this is now where many of the fights for our rights are going to take place. And it's been fantastic to see that Wisconsin came out on the correct side.
- [07:32]
Michael Popak
Yeah, well, I'm glad you, I mean, yeah, I shorthanded it because I always had thought that you resigned because of but you, it's even better because you saw the writing on the wall and that Scadden was not taking a position. And maybe, I don't know, I'm not trying to breach confidences, but maybe heard some things internally and didn't see the leadership there standing up. I, as people know, I started my career at Scadden Arps and I had senior people now semi retired or retired. But we're in senior leadership at Scatten and know that I came out before you and I even met and did some scathing hot take videos against Scadden particularly and then the other 14 firms too. And one of them wrote me, which will remain nameless, and said, do you want to talk about it? Do you want to know what? I said? No, I don't need to talk about it. I don't need to know the nitty gritty of what happened. It's obvious what happened. I read the memos and things that have leaked. I don't need another story. And I have friends at Paul Weiss at senior leadership positions, you know, and they, you know, they, they had the template, the $45 million template. And then, you know, that was cheap compared to Wilkie Far and Skadden Arps and all the rest of the question. Let me ask you a question about that because you're probably following it even much closer than I am. Long as we're on that topic, $1 billion of pro bono legal services was the headline. But I haven't heard a peep about any of the law firms representing any of the right wing MAGA or the, or the administration to start consuming any of those pro bono hours. What have you heard?
- [09:05]
Rachel Cohen
They're definitely trying. And some of it is kind of whispers that comes back to me from people within Skadden, and those are, I'm not going to come onto a YouTube video or, excuse me, a YouTube channel and legal podcast and say, just believe me on this, because if I can't tell you verifiable stuff externally, we'll save it. But there is verifiable kind of examples of Greta Van Susteren, I don't know if you remember her old Fox News days, tweeting directly about how Scadden hasn't been supporting a veteran that she sent to them. And there was a New York Times article that I believe broke that some of the people that have been sent have connections to January 6th. Right. And we're seeing people who are, are sent to these law firms, and the law firms are kind of giving the Trump administration the runaround and we'll see how long they're actually able to do that for.
- [09:58]
Michael Popak
There was, but even that story, and I'm old enough to remember Greta Van Sestern on CNN covering O.J. simpson. Okay. That's how that's, that's where she got her start. But even that anecdote, yeah, we're always about speaking truth and we're always about no, no smoke or sunshine. And we try to get our facts right. But even that anecdote proves my point. There's very little reporting out there about any of the, of cashing it on, cashing in on any of the chips of the billion dollars.
- [10:29]
Rachel Cohen
I think that. And listen, if you talk to people that are still at these firms, the line that they're constantly giving is this was actually a great deal because they're never going to be able to cash in. And I do think that if there's one thing that corporate lawyers are really, really good at, it is giving people the runaround and over billing. Right.
- [10:48]
Michael Popak
They may be, they may have exhausted their billion already.
- [10:51]
Rachel Cohen
They're running the clock as long as possible. And they're running those timers, too, I'm sure, as they do so. But they're we, we've seen the Trump administration kind of signpost where it would like to see. And I don't again, to not allow any sunshine here. Greta's not in the Trump administration. But something that I point people to is there was another kind of executive order issued related to requiring firms or requesting firms or setting up a fund using the firms to have those attorneys defend police officers accused of misconduct and to have the DOJ kind of work with them on that because there's so much difficulty, understandably, getting attorneys to take those cases. And I think that ultimately the people in the firms are saying we're just going to give them the run around for forever. But I think that that is very optimistic and rooted in a notion of the Trump administration as being very stupid. Right. Like, these firms think that they are so much smarter than the Trump administration that eventually he's just going to forget that they owe him a billion dollars worth of legal services and that that excuse is, is going to run up, is going to run out, and the Trump administration is going to pen them on something. And the firms are either going to have to take those things on or they are going to have to fight with the administration about what the terms of those agreements were. And they've proven themselves pretty unwilling to do that. So I think that in the next couple of months, we might see more as people have to actually file into cases. But this is, as you know, they can kind of run people out by saying, well, they haven't cleared conflicts. We're not. I heard rumors that something that was being used often was they're asking us to do work in jurisdictions where we're not barred. And so we're not going to get local counsel in that. They're going to run out of that eventually.
- [12:43]
Michael Popak
Yeah. And Stephen Miller, who, who is an evil person, but is, is smart, he's tracking, he was tracking and is tracking all of the pro bono hours. And I think you're right. Whether they brought him in on the tow tariff policy, there are going to be plenty of opportunities in the next 18 months, two to three years to cash in those chips. And you know, the law firms that are, you know, who have, who have signed on the dotted line, who have been chastised by federal judges like Beryl Howell, who, you know, in her rulings about Perkins Coy, one of the four firms that didn't settle, you know, the honorable law firms that did the right thing. She said, and I paraphrase that you should not have settled with the Trump administration when you were on the receiving end of the attacks. You should have ran to federal judges for protection. And if you're a client of one of these firms, how can you ever trust these law firms to be your zealous advocate when they've settled, especially if you're before the federal government when they are appeasing the federal government that you need representation in front of. How could you ever trust them? And law and clients have left those firms.
- [14:00]
Rachel Cohen
They have, especially clients who are seeking kind of litigation support. I do think, and I hate to come in and be a pessimist when I am trying to promote pragmatic optimists, but I think that something that I feel very deeply in my bones, I got a lot of kind of outreach from reporters saying now that all of the firms that have challenged the Trump administration in court are winning. Do you think that changes things? And I think it's really important that we note that Paul Weiss entered into their agreement with the Trump administration after Perkins Coie had already won a temporary restraining order from Judge Howell. And so I think that these firms know that they win if they fight in court. And that feels very nefarious to me because it makes clear that they are playing some kind of different game. And I think other people have pointed out correctly that the firms that were the most likely to fold to the Trump administration have large amounts of kind of merger and acquisition work or other corporate work. And those things often require government approval. They often require kind of collaboration with the government, especially if you're doing cross border stuff. And I think that they are betting on a different game. You know, like, I think that they're playing very differently and they're betting on a much longer game. That terrifies me a bit because it feels like they are tacitly acknowledging that the Trump administration is going to be one that does not respect the guardrails of the law. And I think that that in turn makes it even more embarrassing, abhorrent and cowardly that they were willing to enter into agreements that let him do that.
- [15:40]
Michael Popak
Well, when I left law school and the world divided, you know, it's. It's. You're either a litigator or you're a transactional lawyer. I mean, I'm being rough about the division.
- [15:48]
Rachel Cohen
Yeah.
- [15:49]
Michael Popak
You went into corporate law, though. Now I know you're more involved on the litigation side, because you have to be in order to be on the. At the forefront of this resistance. But the litigation, what's the common denominator of the firms? The four of the four major firms that went to court and won, they're driven and run by trial lawyers and litigators and the other firms. I was a litigator within a major corporate firm, Scadden Arp. I worked at Sidley and Austin also. And litigators are a service department for the corporate mergers and acquisitions and transactional and private equity and hedge fund transactional lawyers in there. And they have the books of business of 30, 40, 50, $100 million. And the litigators are seen as a necessary evil. They don't run these firms. And those are the firms. Huh?
- [16:37]
Rachel Cohen
That's going to be what aggravates the people at Scadden. That you said more than anything else that we've said on this call. But it's true.
- [16:44]
Michael Popak
Yeah, true. It was true in 91, and it's true in 2025. And that is. That is not that. That's one of the reasons I left Skadden was to go to a firm that respected its litigators more than it did. And I worked in the. The elite white collar criminal department. I was in general civil litigation also. But I was in. When. When the new white collar group was formed, and I was one of the first. I think I was the youngest associate in that group. So I had a little bit of a different experience than maybe you certainly did 25 years later, 30 years later in Chicago as a corporate associate. Why don't we roll that in after the break? And to talk about this, Ed Martin led weaponization committee, Jared Wise being appointed to it, the rewriting of history to make January 6th be a day in the park like you went to Disney instead of the brutal medieval attack on human beings in the cradle of our democracy. We can also talk about Alina Haba and maybe what your thinking is as to why Donald Trump went from no, I'll never probably make her the permanent U.S. attorney to what he's seen now in her role and what he thinks about his ability to get all the Republican votes behind her to confirm her in the Senate, although her confirmation hearing will be required watching on the Midas Touch Network and Legal A because it will be a disaster for her doesn't mean she doesn't have the votes. I want to hear what you're doing. Your thoughts are on that. And then we'll return to the court system. We've got Judge Moss's really the first injunction with a certified class. There's a bunch of judges considering it in birthright citizenship, but they haven't gotten there yet. But Judge Moss has about Donald Trump's attempt to rip out the Immigration and Naturalization act and replace it with an executive order about asylum seekers at the southern border. And then the Wisconsin Supreme Court case that made everybody's heart sing over here, that declared invalid a law that's been on the books in Wisconsin and never really repealed for 174 years, that banned the right for a woman to have an abortion. And the liberal Supreme Court made a difference today. And we're going to talk about that as well. I have Rachel, don't adjust that dial. I've got Rachel Cohen on here standing in for Karen Friedman, Agnipolo. Rachel is just joined us on Legal AF and on the YouTube channel there. There we go. That's a way to help support us. Free subscribe to Legal AF and you'll find content from a dozen different contributors that I curate, including Rachel Cohen, our latest contributor, who's joined with and will be joined with Tayara Mack, who's a representative, sorry, a senator from Rhode Island. They've worked together in the past and they're going to do an amazing job of just not identifying the issues and the problems, but talking to our audience about what they can do at the local, state and federal level to make that difference, which I think is going to be our audience vibrates on that frequency. And I think that's going to be very, very successful when you guys join other ways to support what we do here legally. After YouTube channel, come on over and free subscribe there. Midas Touch. Subscribe to Midas Touch. We've got this podcast which is doing great. I mean, we started it. Ben and I started it five years ago. It was like the two of us talking to each other with like 20 of our friends. That's how it started. And now, you know, the YouTube's last rankings, we're in the top 50 of all YouTube podcasts, number one in law and politics. But let's be frank. 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So Jordy from the Brothers curates these, these sponsors. We try them out, we like them. If you got the disposable income, and this is a product that you find interesting, we've negotiated some great discounts for. So now here's a word from our sponsors. You know, sometimes the news is so wild these days, it makes me just want to crawl under a blanket with my cat. Honestly, there are so many similarities between Chanel and the news cycle. Unpredictable, a little chaotic, but somehow comforting. Now, while I can't fix all the craziness in the world, there's one thing I can absolutely control, what I feed Chanel. And that's thanks to our sponsor, Smalls. This podcast is sponsored by Smalls. If you listen to this show, you already know my cat cannot live without smalls. To get 60 60% off your first order, plus free shipping, head to smalls.com and use our promo code, LEGAL AF, but only for a limited time. 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Let's talk about this news that hit the wire that Jared Lane Wise, a former FBI agent who was in the middle of a trial when Trump pardoned him and the jury had not yet returned a verdict, but was one of the guys that broke through the doors, wandered around in the Senate for nine or ten minutes, but along the way confronted law enforcement, yelled to have the police killed, said to the crowd to whip them into a frenzy to go F them and kill them, and said, you're an embarrassment to law enforcement when he got in their faces. And he has now been rehabilitated by Pam Bondi, who's put him alongside Ed Martin. Why don't you talk about Rachel, this weaponization committee and Ed Martin, who we were thrilled when pressure campaign and the Senate let it be known they weren't going to confirm him to be the U.S. attorney for Washington. That's why we have Jeanine Pirro. But he might be able to do a lot of damage running around with this weaponization committee in an unconfirmed position. Why don't you tell our audience about it?
- [27:10]
Rachel Cohen
Absolutely. And I think that it also kind of goes together with just who all the Trump administration is willing to put forth in the first place. I know that we're going to talk a little bit about Alina Haba in a second, but I think that those concepts even go together. Emil Beauvais and just Ed Martin should never have been nominated for anything in the first place, let alone now brought into this position that does not require him to be confirmed by the Senate. Because when we platform these people who are really presenting this kind of alternate history and alternate reality about what's happening and what's against the law and what is unacceptable in American democracy, that's how we end up with then January 6th rioters being employed by them. And I think that all I can think of when I think about the January 6th kind of pardons and the total rewrite of history is the way that it was so challenging historically in the American south and beyond to get convictions for people who had committed hate crimes against people of color because the sheriffs and the juries and everyone else was protecting them and pretending that, yes, we enforce the law and we can say that we enforce the law, but then vanishing as soon as there was a need to enforce the law against people who held power or were working towards the outcome that, that those sheriffs wanted in that case, obviously a racial hierarchy. But I think now we're seeing Donald Trump very obviously signal to people that, I think about it too, with the payouts to the, the family of Ashley Babbitt is, we're signaling you can break the law so long as it is in furtherance of the Trump agenda, and then you can be punished for breaking the law when you have not actually broken any law at all, so long as the Trump administration doesn't like what you're doing. And so I think that Ed Martin kind of just opening the, the Pandora's box of him getting to imprint his own ideology, or really the ideology of people like Trump and Stephen Miller onto the Department of Justice and the, the federal notion of broadly is really terrifying because there's a lot of guardrails in the American system that only exist when people are operating in good faith.
- [29:37]
Michael Popak
Yeah. So, I mean, look, the, the good news is that we were able to deny Martin the role of the U.S. attorney. He was already Elon Musk henchman trying to do investigations. We know he could do a lot of damage as the U.S. attorney so far. Jeanine Pirro, although she's obscenely unqualified for the position, hasn't really doesn't seem to be hell bent on being Donald Trump's political hack in that role yet. But he can do a lot of damage in this weaponization committee. And now you can see the types of people that he's putting around the table. With the permission of Pam Bondi, this is just the continued rewriting of history in order for Donald Trump to be able to continue to say out loud that the election was stolen from him. And they're gonna be investigating Joe Biden and the how the election was stolen. And, you know, in order to do that, then you have to absolve all of your minions that took your clarion call and the discontent you fomented and turned it in to a violent attack, an insurrectionist attack on the Capitol. But you have to continue to kind of, you know, oh, what a tangled web we, we, we got to keep rewriting and revising and, well, if I didn't do anything wrong and there was a big steal and these people that attacked, they didn't do anything wrong, then I have to pardon them. And if I pardon them, then I can put them on blue ribbon panels to talk about the weaponization. Here we go. This is the whole chicken and the egg all over again.
- [31:03]
Rachel Cohen
And it also becomes almost that 1984 of they contradict themselves. And I think we've seen that and even the fallout with Elon and Trump in that fight. Right. Like it just changes what the rules even are and whose side we're supposed to automatically be on at any given moment. But.
- [31:21]
Michael Popak
So let's turn to Alina Haba for a moment. So Alina Haba, parking lot lawyer, literally, who worked near the golf course in Bedminster, found a way to worm her way into the inner circle of Donald Trump by handling a couple of his employment matters, one of which was ethically challenged at best. And she had to settle a case related to it. She herself has said that her main role as the U.S. attorney is she's admitted that it's to be a political hack to try to turn New Jersey red. I'm a born and bred New Jersey person and there's been no major investigations about crime that have been announced in New Jersey. All it is is her going after the political enemies of Donald Trump. She's indicted and arrested Representative McIver, who's pled not guilty about being at an observation point at a federal detention immigration center, Delaney hall in New Jersey, along with the mayor of Newark, along with other elected officials. She's been indicted the mayor of Mayor Baraka, who is a political enemy of Donald Trump and is on the short list of people who may run for the 2028 presidential election. He was arrested, indicted or had a criminal charge against him. And then that was dropped. And that was so bad that a magistrate, federal magistrate judge had to excoriate Alina Haba in court and say you need to do better because your office can't use indictments and arrest and the threats of it for political gain. That is in violation of the Department of Justice manual. That's in violation of your ethical duties. She's been hit with a New Jersey bar complaint about not only filing criminal charges against Baraka and arresting him and doing a perp walk of him and the same thing with McIver, but threatening to do that and opening a criminal investigation for leverage against two time Democratic Governor Murphy and their attorney General Plotkin. And that's all she's been doing. So she's going to answer for those and of course, all the terrible things she did as the one of the criminal lawyers for Donald Trump. How do you think she's going, what do you make of Donald Trump doubling down on Alina Haba and trying to slide her through because he thinks he has the votes in the Senate? And what should the Senate Democrats do in terms of the confirmation hearing, including about Emil Bovey, who's. They're taking a break on that confirmation hearing, too. I don't want to lose sight on that because he's, he's obscenely unqualified to be a 3rd Circuit Court of Appeals lifetime appointed judge.
- [34:14]
Rachel Cohen
Absolutely. And I'm sure that you've covered it, but I haven't been able to listen in the last week or so. I'm sure that you have seen at least the whistleblower letter about Emil Beauvais telling people within the Department of Justice that they might need to just say fuck the court if there's a court order that hobbles kind of implementation of the Trump administration's mass deportation agenda. I think that all of those things are really indicative of the fact that the Trump administration is trying to see what it can get away with. That's how I felt this entire kind of Trump 2.0. Because something that was pointed out to me so early on in this administration is that there are often things that the Trump administration could do legally or could at least pretend it's doing legally that they choose to just do in a blatantly illegal way. I think the deportations of people over judges orders are deeply indicative of that. But I, I want to come back to what you pointed out about Alina Haba when she speaking said, you know, hopefully I can play a role as us any, as US Attorney in the kind of aim of turning New Jersey red. Alina Hoppett does not need to say that. No one is, you know, pointing a gun to her head, saying all the intrusive thoughts and nefarious schemes. Now you have to say them out loud. She's saying it because they're blatantly making it a priority to kind of show that there are no guardrails on them. That you can say the thing I helped in looking into filing New Jersey in personal capacity, filing New Jersey bar complaints against Alina Haba, and put together an explainer of how people who are even not attorneys can file that. Because sometimes I think it feels like we're just screaming into the ether. And if I'm going to scream into the ether, let me scream into the ether to the New Jersey bar. But I think that when we were doing that, something that really stood out to me in terms of how those bar complaints function is that it's very, very challenging to file a complaint for, you know, a political prosecution unless the prosecutor has said something like, I hope I can play a role in turning New Jersey red. And then a month later gone and arrested two prominent Democrats. And I think that that is one of the, the most concerning things to me and to your question about what I think Senate Democrats should do, they should do everything that they are already doing in terms of, you know, blocking and protesting these appointments. But I also would like to see from more federal level electeds an acknowledgement that we are so far outside the bounds of the normal. And I would like to see some actions on the Democrats side that kind of bear that out. And I don't know exactly what that looks like, but I think that there's many ideas. And I've been glad to see Democrats stepping up congressional oversights, visit oversight visits to various ICE detention facilities, because Representative McIver was exercising her. It's a kind of privilege of the office to engage in oversight visits of ICE facilities to make sure that people's human rights are not being violated. And the Trump administration is also trying to force people to only do visits if they've been given a certain amount of notice. Right. To only do visits on certain days. And that's not how any of this works. And I think that it's important that Democrats continue to show up to those visits and broadcast them as much as possible. I'd like to see them bringing various news crews with them. I'd like to see them on the floor. I can't say refusing to follow necessarily rules or order, but I think that we are being a little bit handicapped when we do not acknowledge just how, just how outside the kind of rules the GOP is playing, because they will go on and just say that aloud constantly to their supporters and also just put it out onto the Internet. And I think that we need to be bringing top amounts of attention to that at all times, or Democrats need to be bringing those to, to the, the forefront. I'd love to see someone show up to an Emil Beauvais hearing in a shirt that says, might just have to say fuck the court. Emil Beauvais. I don't think that we're gonna see that, but maybe I'll wear that on one of the incoming appoint people to the court like that.
- [38:56]
Michael Popak
Now, by the way, adding, you already is paying dividends in the merchandise area. Jordi Mysalis, attention, please. We have a tremendous idea.
- [39:06]
Rachel Cohen
I want to see it like on the Michael Scott sign, like Fuck the court. Emil beauvais, Legal AF Absolutely.
- [39:12]
Michael Popak
Well, and then, and then when Adam Schiff, Senator Adam Schiff said, and I've done this in cross examinations, when Adam Schiff said, did you say in the March hearing, as reported by Erez Revenue, the whistle blower, did you tell them that they should just tell courts to go F themselves and go tell. And he says, I can't recall. And if so, when I've done that, I've been like, I'll put that down. I'll put you down for a yes. That sounds like a yeah, that sounds like a yes.
- [39:39]
Rachel Cohen
If you're not sure if you said people just have to say you to the court order.
- [39:45]
Michael Popak
Right. I use that phrase a lot for different institutions, so I can't remember that particular one. But they should just do what Michael Cohen did, one of our fellow podcasters here on Midas Dutch, when he was being cross examined in the, in one of the Trump cases. And Todd Blanche, who's now our number two in the Department of Justice, went through a series of things from podcasts including Midas Dutch, including Likal af, that Michael had said about Trump. Michael had a great line that cracked the jury up. I had a New York Times reporter who did a whole article about the trial and he did. Michael said he would read it out loud. Did you call him a shit stain? This, that, the other thing Michael just looked at the jury and said, sounds like something I would say.
- [40:28]
Rachel Cohen
Listen, I appreciate the honesty, right?
- [40:30]
Michael Popak
Like I can't recall, but that sounds like me.
- [40:33]
Rachel Cohen
It's giving very. I smoked, but I did not inhale. But you wanted to port people over judges orders.
- [40:40]
Michael Popak
Exactly. Well, now you're seeing a little bit of a taste of this brand of, of pragmatic optimists that Rachel Cohen, along with her podcast partner Tiara Mack are going to be bringing to the Legal AF YouTube channel. One of the, one of the reasons that I sort of picked up Rachel to be with me today and sitting in for Karen Freeman, Nicknifalo is, is to continue to bring these amazing points of view. It's not generational. I don't want anybody. Oh, he brought a generation. Whatever. Your generation is.
- [41:11]
Rachel Cohen
Millennial.
- [41:12]
Michael Popak
Thank you. Alpha. I heard Alpha. My daughter's Alpha. I think that's the next, the next one, which is great.
- [41:17]
Rachel Cohen
Oh yeah, we're starting all over. We're back.
- [41:18]
Michael Popak
Yeah, right. We're back. We're back batted around. We're back. The top of the order. It's not that. It's, it's, it's you, as I said in one of my introductions for your shows, I said, you know, she speaks to all generations. It's just, it's just, you know, you just have a, a voice that needs to be heard on a regular basis. And I'm glad you're here for it. And there's a lot of ways to support what Rachel's doing, what what all the other contributors are doing on Legal AF. We've got Legal, a YouTube channel which is going to cross the seven. The odometer is going to roll to 700,000 in the next day or so. We need some help there to continue to grow that pro democracy channel. And it's cheap, it's easy, it's free. Just hit the free subscribe button. We don't have anything behind a paywall, but this demonstrates that you want and you need this kind of content at the intersection of law and politics. And we set up a whole channel. Just as Rachel was very appreciate about her decision to lead Big Law before her firm bent the knee, we decided we needed this channel before the election. And so in September, before November, when we saw some writing on the wall that we were not happy with, we said we better get this channel up and running because this is going to be a break the glass moment. And, and I've been so thrilled to have contributors like you joined. So we've got Legal AF there, Legal AF the substack, another place free subscribe. We're posted everything there. If it relates to Supreme Court, it's SCOTUS af. If it relates to court cases, like we'll talk about today, it's Filings af. I do a morning af. You see the pattern, you see the theme here? Okay, Legal AF the substack is another. We got Patreon for the Legal AF community, which is, it's like a law school class. It's like a law school meets TED Talk meets whatever we're doing here on Legal AF on the Patreon for mix for some exclusive content there as well. These are the ways that you can support us. The podcast always needs your love. To be frank, you're here, you're watching us. We get 8, 10, 12, 15,000 people watching us. A lot of people don't realize that we are not only on YouTube, we're on audio podcasts. I can't tell you how many people I bump into. They're like, they're audio podcast people. They're like, wait, you guys are on YouTube. We can see what you look like. Or the YouTubers who are like, wait, there's an audio podcast. Yeah. Yes. And so go back and forth between the two rank and rate us and five star review us on the audio podcast. Wherever you get your audio podcast from, that's another amazing way to support what we're doing. And then we've got these sponsors and they're handpicked by Midas Touch, the Midas Touch Brothers Legal A efforts for us, for our audience. And they want to speak to this group. They know what we're all about and that's why they're here. It's not in spite of it, it's because of it. And we're thrilled to have them. And many of them have been with us almost from the very, very start. So here's a word from our next set of sponsors. Deleteme makes it easy, quick and safe to remove your personal data online at a time when surveillance and data breaches are common enough to make everyone vulnerable. As someone who covers legal and political news events for a living, I'm well aware of how exposed our personal information is. From data brokers to sketchy websites, it's all out there. And that's why I use Delete Me. Deleteme does all the hard work for you. You just sign up, let them know what personal info you want deleted, and their experts handle the rest. They continuously monitor and remove your data from hundreds of data broker websites so your info stays off the grid and they don't just do it once. Deleteme keeps working for you, sending personalized privacy reports so you know exactly what was found and removed. Take control of your data and keep your private life private by signing up for Deleteme now at a special discount for our listeners. Get 20% off your delete me plan when you go to JoinDeleteMe.com legal af and use promo code legalif at checkout. The only way to get 20 off is to go to JoinDeleteMe.com legalif and enter code legalif at checkout. That's JoinDeleteMe.com legal af code legal af.
- [45:24]
C
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- [48:05]
Michael Popak
Welcome back to Legal AF at the midweek, Michael Popak joined by the guest anchor today, Rachel Cohen. And thank you to our Pro Democracy sponsors. Rachel, we're in the home stretch of our podcast. Thank you so much for agreeing at the last minute to help us out here. Good way to introduce you to our audience on a regular basis. And as I said before, Rachel will be on with or without her podcast partner, and vice versa. Tiara Mack with a new Playlist podcast that we are, or they're calling Pragmatic Optimists. And I think after watching her for the last 45 minutes, you understand why they have called it that, where we're not just kind of the grim reaper here. Oh, another bad thing happened today in the Trump administration. In the world of constitutional rights, we're talking about what you can do about it. So let's talk about, you know, human guardrails in the form of federal judges. We've got Judge Moss in D.C. who listened closely to last Friday's Supreme Court decision about, well, I can't use a nationwide injunction, or maybe I can if there's states involved. It was a little bit of, a little bit murky, murky aspect of that decision, but I certainly can use a class action and an injunction. And this was about the southern border and Donald Trump declaring that anybody that came over the southern border illegally would never be able to apply for asylum, even though that's not what the asylum statute says. And Donald Trump just decided through executive order to just throw over the entire game board and come up with his own rules because he keeps calling everything an emergency and everything an invasion. Why don't you talk about what Judge Moss just did and then what are the ramifications of that for federal judges as a blueprint?
- [49:45]
Rachel Cohen
I mean, I'm feeling incredibly optimistic about what Judge Moss did in this decision because it's not so much that he reached the right decision, because it's I, while, as you've alluded to previously, was a finance associate, in my former life, I did a lot of immigration work. It's something that I've always been extremely passionate about. And while the executive has plenary power, which means just a lot of disproportionate authority when it comes to immigration, there are still statutes that govern how people can seek asylum. And that's what Judge Moss ultimately ruled on, was that you can't just say, we don't have to follow the asylum procedure anymore because we have the ina, the Immigration and Naturalization act, which outlines how asylum works. And you can't come in and decide, well, okay, that's pretty cumbersome. So I just don't want to do it that way. And instead, I, I don't want to follow the ina. And also, any attorney will tell you that relying on international law is always going to be a little bit of a challenging path forward in argument. But Something like the Convention Against Torture is grounded in international law and international responsibilities that the United States has to not deport people to countries where the standard is it's more likely than not that they will torture if they are deported to those countries. And so all of that to say, I really appreciated that the judge focused on the fact that the Trump administration is working as hard as it can to just throw out process and procedure and jump to the end. It's that same idea of you have a legal way of doing this. Many of the people, though not all that they have deported over judges orders, were likely deportable if that kind of full legal process had been able to play out. But the Trump administration is rushing and rushing and rushing, and I struggle to believe that it is for any reason other than not wanting checks on their power. And I think that that's a very dangerous path to go down. And so I know that people will often kind of make exceptions or point to really law abiding migrants as to the people that it's bad that we're deporting without process. But I think that Judge Moss's decision cuts to the heart of what the real underlying issue is, which is, no matter what it is you may or may not have done, if you do not have process to present your case, the government can say whatever you've done, they can say you're deportable, they can say you've committed a crime and then just act however they would like. And so I think that the big takeaway that I have from kind of a rights preservation and preservation of asylum perspective is that. And the second kind of procedural takeaway which you've alluded to is that Judge Moss responded very quickly to the decision that we saw come out in CASA last week from the Supreme Court related to birthright citizenship. Because that was ultimately a very procedural decision, Right? Saying that it didn't say anything about birthright citizenship, really. It instead focused on this nationwide injunction or universal injunction that lower courts have been using to block unconstitutional or illegal Trump actions, when those actions are likely to result in irreparable harm to people as they are rolled out and litigated. And so I think that one of the. It's a tough line to walk when all of us were talking about the CASA decision last week and over the weekend, because this is pragmatic optimism at play. I never want to act as though things are, you know, hunky Dory and Pollyanna and oh, actually it was a procedural decision. And so it's not a problem at all that. It's very, very scary what we see unfolding, particularly aimed at migration in the United States right now. But it is important to be specific about what the CASA decision, the birthright citizenship decision actually did and its impacts, and that they are restricted to that kind of universal injunction decision because there are so many people who are terrified that they might no longer be citizens or that there are impacts related to their citizenship that have not been borne out. And even yet again, not trying to say that people shouldn't be frightened, but it's important that people know that they do, at least in theory, still have these rights and privileges. And I think that we Samuel Alito, Justice Alito, I think in a footnote, pointed out that there's this big class action workarounds that judge that judges can use to issue injunctions that will functionally operate very similarly to nationwide or universal injunctions if they cover everyone that is potentially impacted. And I'm very heartened to see Judge Moss already putting that into action because contrary to what the Supreme Court wants you to believe, it's actually completely normal and a feature of our justice system that lower court judges are able to block federal action from implementation when it is likely unconstitutional. So I don't know, kind of if there's more that you want to say on especially that injunction point or other kind of takeaways judges.
- [55:07]
Michael Popak
Yeah. Well, I think it was Kavanaugh because Kavanaugh was the one that said, just use a class action and a, and a preliminary injunction. It's the equivalent of a national injunction, a nationwide injunction. Alito is the one that said, oh, we don't want abuse in class actions. We had to keep a close eye on those federal judges because he's always the grim reaper, right? Oh, no, I think we're watching this play out. Judge Boardman has a case on birthright citizenship. She had actually turned to the to Mr. Rosenberg for the Department of Justice and say, I just want to ask a question. I've set a timeline for when I'm going to consider the class certification and the ultimate merits ruling about birthright citizenship and preliminary injunction, which is timed out to be through July 27th. Are you going to be removing babies born in the United States and sending them outside of the United States while I'm making my decision? And he said, no. But of course, the judge doesn't believe them. She said, put it in writing. So the next day, yesterday they filed their one page piece of paper, which gave nobody comfort. It didn't say all they had to write was, we Understand the court's concern. You know, we know what we've done in the past. However, when it comes to the babies, we're not going to do anything until this court rules. They didn't say that.
- [56:22]
Rachel Cohen
Well, I mean, even if they did. And here's the pragmatic piece.
- [56:27]
Michael Popak
Yeah.
- [56:27]
Rachel Cohen
If you read the Romini, the whistleblower kind of letter, I certainly wouldn't trust that piece of paper. But don't let me cut you off.
- [56:35]
Michael Popak
Absolutely. Absolutely. So she's gonna have to probably speed up things here, you know, certify class, even provisionally, get that injunction going. These are the things you have to do. While Judge DeBose up in Massachusetts found a way around, you know, listen, everybody's reading and trying to learn what the parameters, the lines they need to color within because of the CASA decision. And she came up with, I'm going to issue a nation. I'm going to issue an injunction to stop the destruction of the Department of Health and Human Services. I'm not going to call it a nationwide injunction, but I got 19 states in front of me, and there's enough of an argument that if they didn't answer the question, if states, multiple states, are the plaintiff, does the court have the ability to issue an injunction that is, in effect nationwide without running afoul of the CASA decision? And she just said, because if you don't take that, if you. If. Then what you. What you are left with would be the following dystopic world. A federal judge can see a constitutional violation, an abuse of power by Donald Trump, can declare it, but then can't do anything about it while it's on appeal. Can't stop it, can't stay it, can't enjoin it. It has to get to the United States Supreme Court with just a declaration while the Supreme Court declares the law of the land and decides. But think of all the human harm that's happening in between for months or years. So how can you take away the equitable inherent authority of a federal judge to stop something by just calling it through a feat of alchemy, a nationwide injunction. See, that's a problem.
- [58:22]
Rachel Cohen
Oh, big time. Yeah. And I think that it's so necessary and heartening to see people coming up with creative solutions, because as I've. I think as has probably come through, that is very much the GOP is coming up with creative harms. And so we do have to come back and meet that with arguments that are a little bit outside of the box so that we can kind of run the clock Here, even if all we do is delay things from implementation, hopefully that's not the case. But even if it is, that is real necessary mitigation that needs to be done for people that are being harmed today, for babies that are being born today. And I think that, I mean, I'm certainly not bard in Wisconsin, but when I was reading the decision related to the Wisconsin abortion law, I was struck by how maybe not creative, but I thought that the legal argument used was novel, at least to me. And they admitted, you know, this hasn't been used too terribly often, but I do think it's a good segue into that.
- [59:24]
Michael Popak
Yeah, take it from there. 4 to 3 decision led by liberals. Supreme Court Justice Proto Sewitz, who's been on the Midas Dutch network, ran on a platform very open. Yeah, I'm going to be for women's rights, reproductive rights and abortion rights. She got elected and the case came up. We also, the liberals, the moderates, won the seat that will. She didn't vote on it. Justice Collins. She didn't vote on it, but she will continue the 4 to 3 majority through 2028. But talk about what Wisconsin did with this inherent repealing concept from a law in the books from 174 years ago ago.
- [60:05]
Rachel Cohen
Yeah, so we have this law in the books that's banning abortion functionally from as you said, I think it's 1849. And they there were all of these legal arguments that were put forth. And I don't know how this works in other states or if there is an analog in other states, but at least in Wisconsin, they ruled that the legislation that has been enacted in the interim related to regulation of abortion and in some cases criminalization of abortion in more limited circumstances and everything else that that functionally repeals. That is a legislative. I'm looking for the exact implied repeal of the the law on the books that got rid, that banned abortion. And that is a fascinating legal argument that kind of allowed them to root in Wisconsin case law, this implied repeal because there had been so many. It's, it's similar in some ways, I think, to almost a preemption argument, which is where the federal law kind of crowds out state law and something you go with the federal law to really oversimplify and distill that down. But their argument is that the number of other regulations and laws and statutes and even, you know, in some cases criminal statutes related to abortion in or their opinion rather related to abortion in the state of Wisconsin are an implied repeal of the overarching criminalization of Abortion. And so they're holding it to be just a fetuside statute. So functionally criminalizing the non consensual termination of someone's pregnancy. I don't know if you've seen stuff like that before, it was new to me. But I also have not worked extensively on state law issues.
- [61:58]
Michael Popak
Well, listen, all these springing statutes, you know, many of the Republican states as, because they've been, they've been trying to get Roe versus Wade repealed for so long that they already had on the books. Well we, a lot of our states have these old timey anti abortion, anti women issues statutes on the books. So we'll, we'll just pass a law, it's easier that says if Roe vs Wade is ever repealed, boom, these statutes spring back to life. And you know, we're like, oh, these submarine issues, right? As soon as they got the Dobbs decision, these springing statutes popped up in a lot of different places, including in Wisconsin. Fortunately in Wisconsin, so the argument goes, the state legislature in the last 50 years has regulated abortion but allowed it to continue through the point of viability of the fetus. And so that was the major argument. Like well that may have been 1849 before the Civil War. However, recognizing that they were effectively repealing that thing, they have just been regulating it and allowing it in Wisconsin. So yeah, I think it was the, I mean there was a lot of different with the trial judge had used a whole different analysis to reach her conclusion on it. But I think this is the right one and, and frankly it is the final word. This is the United. Sorry, this is the Wisconsin Supreme Court. Four to three. That's it. You don't get another shot, you don't get another declaration. That is the law of Wisconsin as long as the liberals are in the majority, which they are through 2028, hopefully for Beyond. And this is the type of work that state. Look, just to remind people in case they don't know or tell them if they don't know it, many supreme courts in the United in states are elected positions. Even if they're appointed by the governor or a panel, there's retention votes that come up. Many state court trial level positions are also elected. And so I know a lot of people go into the election booth and they're like, I don't know any of these people on here. But we, you know, we don't have that luxury anymore. Like we don't know these. And we'll help, you know, we'll help, we'll get material up, we'll direct you so that you get information about who's who. You're not just guessing off of names. But election, pardon me, election and judges matter, not just at the federal level with, with the Supreme Court, but at the state level where a lot of this hard work of protecting democracy is happening. Right, Rachel?
- [64:35]
Rachel Cohen
Very much so. And I think that it's important to remember that a lot of those kind of, at least in states where I've lived, like Ohio, that have elected, elected judges, excuse me, there is no party designation next to those people on the ballots. And so it's important that you do your research in advance and that you have in fact gotten a sample ballot or looked into things from people that you trust. And I think that it's also just a nice way to wrap all the way around because what brought Tiara and I together originally was when I was living in Rhode Island. I was an educator there for four years and we were working on Rhode island similarly had kind of this springing abortion criminalization statute and we were working on repeal of it and constantly told that it wasn't actually that important that we get it repealed, that Roe wasn't going anywhere. This is back in 2017, 2018. And so that was ultimately successful. But something that I really like about the Wisconsin kind of reasoning here is that I don't know if there are other immediately apparent kind of high risk areas that those judges were thinking of, but this is an argument that they can use in future if other longstanding precedents are repealed at the federal level that the Wisconsin legislator has legislature has legislated around. And that's heartening. And again, just a creative strategy that definitely rooted in law. They've used it before. There's many citations. But I think it's, it's forward thinking about where we need to be, kind of shoring up defenses.
- [66:13]
Michael Popak
Sorry about that. Absolutely. Thank you, Rachel Cohen, for being a good sport and joining as a anchor today on the midweek edition of Legal af. Got some great news while we came on the air today. The new legal, the new podcast rankings for this week are out for YouTube and Legal AF climbed to number 22 of all podcasts, not just law and politics, just all podcasts. Brothers are at number two. We're at number 22, our highest ranking yet. And I'm sure with the addition of people and talent like you, we're only going to climb even higher. There's so many ways to support. Right. Are you glad? Aren't you glad today? You're like the luckiest.
- [66:52]
Rachel Cohen
I'm in at the ground floor Popa. Well, floor five. I don't want to take that when you've been doing all this work.
- [66:58]
Michael Popak
I think you came in at floor 22. But we're gonna, we're gonna, we're gonna get to number one. And that's really a reflection. And we have a deep and abiding love and respect for our audience who have been with us through thick and through thin, through it all in this community joining together and vibrating at the same frequency. I see comments in my hot takes and on shows like this where people say thank you for making me feel better. And that's one of the things here, is speaking truth to each other, understanding that this is a fellowship, this is a community, you're not alone. And giving you direction and calls to action about what you can do moving forward. And the way to support us because we got bills to pay, so to speak. It likes to keep on since we're completely independent with no outside investors is. It's simple. Everything's free. It's free. Subscribe nothing's behind a paywall on Midas. Touch on Legal AF, the YouTube channel. Download the podcast for Legal AF. That helps on the audio side. We could use some more downloads, some more five star reviews over there. We're doing great on YouTube, but we'll do better with organic growth. Let people know about our YouTube. Let's, let's use 22 as the floor, not the ceiling for our rankings on the podcast, on the YouTube for podcasting. And then we got the substack for Legal af. Of course we've got the Patreon for Legal af. Of course I'm gonna drive my producer crazy. We've got the, we've got the Popoc Pro, the popo firms off. Forget that one. We got the Legal AF YouTube channel where it's a home for a lot of, a lot of amazing contributors including now Rachel, Rachel Cohen and Tiara Mack. So until the Saturday edition, we're gonna have to figure out Saturday edition, Rachel, because I'm traveling. It is the day after the 4th of July. We'll make something happen. I'm sure something will happen. You might get another call.
- [68:53]
Rachel Cohen
I'm around. It's usually a little earlier in the morning if it's a Saturday, but yeah, we'll see.
- [68:58]
Michael Popak
I might be able to do a live with Ben. That'll be fun. But in any event, thank you to our audience for your passion and your, and your fervent support of what we're doing here. We got your back, but we know you have ours. So until our next edition of Legal AF or any contribution related to Legal af, I've got Rachel Cohen and this is Michael Popak. Shout out to the Midas Mighty and the Legal A effervers.
- [69:30]
Rachel Cohen
This summer, Instacart is bringing back your favorites from 1999 with prices from 1999. That means 90s prices on juice pouches that ought to be respected, 90s prices on boxed Mac and cheese, and 90s prices on ham, cheese and cracker lunches. Enjoy all those throwbacks and more at throwback prices only through Instacart. $4.72 maximum discount per $10 of eligible items. Limit three offers per order. Expiration September 5 while supplies last. Discount based on CPI comparison.
- [70:06]
Michael Popak
Trip planner by Expedia.
- [70:09]
Rachel Cohen
You were made to have strong opinions about sand. We were made to help you and your friends find a place on the beach with a pool and a marina and a waterfall and a soaking tub. Expedia made to travel.