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- [00:01]
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- [00:29]
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- [00:54]
Michael Popak
Representing Donald Trump in his criminal matters must be vogue again because we've got some new appellate lawyers from a top flight firm filing a new brief on behalf of Donald Trump with the 2nd Circuit Court of Appeals, which covers New York, about his 34 count felony conviction. But it should end up being the same result. The filing has been made directly to the Second Circuit and it's asking the Second Circuit to reverse the lower court's decision to to keep the state conviction and keep the state appeal in the state court system and not bring it over to the federal court system just because there was a couple of pieces of stray evidence, some of which related to the Midas Touch podcast and Michael Cohen and Legal AF that was presented to the jury. I'm Michael Popo. Let's get to it here on Midas Touch Network. Here's the new filing, the new lawyers, let's start there. I always find that interesting. Remember that all of Donald Trump's criminal lawyers were sucked into the administration and sucked into the executive branch and are now serving in the Department of Justice or the Solicitor General's office. So he lost those lawyers. And originally in the first round of representation, Donald Trump had a hard time finding any legitimate law firms to represent him. I guess now that he's the president of the United States, those firms are all not as gun shy about representing Donald Trump. One of them is Sullivan and Cromwell, a firm I know well, I've opposed and beaten in New York and its lawyers in both Washington and New York, they've now come forward. We refer to them in New York as a white shoe firm because they're one of these silk stocking elite firms. I guess they had their ethicist and their management committee get together and say, sure, we'll represent the President now. All right, well, it doesn't change the arguments. I just thought it was interesting that top firms are now on the right wing side coming into cases in favor of Donald Trump. So now let's turn to the merits of the case. So what happened is this to just to bring everybody up to speed, we had a trial In New York, 34 count felony conviction. A nine member jury convicted Donald Trump nine zero for violating business record law. And in furtherance of a second crime in this case, a federal election crime in the hush money cover up related to payments made to Stormy Daniels to stop her story from going public while he was a candidate for office against Hillary Clinton in the 2018 campaign. That brings us current. The judge was Judge Marshawn. He presided, they convicted the judge, held off on sentencing, waiting to see what would happen with the United States Supreme Court in their immunity decision. We know what happened there. I'll talk about that in a minute and how it backs up under this appeal. In addition, we had an election. So there were, there were numerous delays lasting several months apiece until right after the election. But before the inauguration. Judge Bershon ended up sentencing Donald Trump, but not to jail time and sort of wrapped it up that way. Now Donald Trump wants to bring an appeal, but he doesn't want to bring it in the state appeal courts, which would be the first Department appellate division of which I'm a member, where another of his cases is currently pending on the civil fraud matter. Remember that 400 and little, that little issue of a $450 million fraud conducted over 10 years? That's, that's up with the same state appellate panel that Donald Trump wants to avoid? They haven't ruled yet. I expect them to cut some or half of that judgment down to size. But Donald Trump wants to be in the feds because he wants a fast track to the United States Supreme Court, who he sees as helping him. In fact, speaking of the United States Supreme Court, did you catch on the joint session address last night as Donald Trump was entering the room, his little fist bump or whatever that was supposed to be with Chief Justice John Roberts, in which Chief Justice John Roberts had to have heard Donald Trump say, you know, I won't forget you. I got you. Let's run the clip.
- [05:01]
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Thank you again. Thank you again.
- [05:03]
Michael Popak
Don't forget. So good.
- [05:05]
Amazon Music Ad
That's good.
- [05:06]
Michael Popak
So good, sir. Remember those days when the Supreme Court, when a Democrat was a president, said they weren't even going to go to these kinds of things because they didn't want to be political. Now Chief Justice Roberts is doing high fives with President Trump as he enters the room that does not fill me with a lot of confidence about their being fair and impartial when they get this case again. Now the reason we're here is because in last July, in the immunity decision that was written by that same guy, the fist bumping president guy, Chief Justice Roberts, he effectively gave Donald Trump two types of immunity. Or any President, but really Donald Trump two types of immunity. One is immunity for official conduct or core constitutional conduct under Article 2 of the Constitution, absolute immune. Then there's the presumption of immunity bucket for things that happened at the outer boundaries of his official conduct. And then there's also what we call evidential immunity which came out of that same case, which is if a in doing the prosecution or the case against the guy that was or is President, you can't use any element of his official conduct against him.
- [06:23]
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- [08:21]
Michael Popak
And Donald Trump now argues in his Second Circuit brief that that during the trial there were three different discrete pieces of evidence when he was wearing his president hat that should not have gone to the jury. One, Michael Cohen testifying about certain things, fellow podcaster here, including that Donald Trump may have sought advice from the then Attorney general, Jeff Sessions, that was his first attorney general, about whether he committed an election law violation while he was running for office. I don't see how that's a presidential act, asking the attorney general about a private affair, a private transaction that happened while he was candidate, not a president, but that came into evidence. Some conversations with Hope Hicks came into evidence, the White House press secretary at the time and some other testimony about Michael Cohen. Now we know from the kind of the original motion practice and submissions that they also did not like Michael Cohen making comments against the press president at on the Midas Touch podcast, on Michael Cohen's podcast on Legal af, they cited all of that. It was very surreal that we became part of the record, if you will, for this ultimate appeal. Now they're arguing that under the removal statute, we're really focused on a very specific removal statute, that if there is any colorable act relating to a presidential conduct and there's a federal defense available to the, to that person, that officer, the federal officer, boom, then he gets to remove it, no matter the timing of it, even though the trial is over at any time. Problem with that argument is I've read through now this 40 page brief. I see very little credible argument that there is a colorable argument that what Donald Trump was talking to Jeff Sessions about or Hope Hicks about or Michael Cohen about that went to the jury, that any of that was colorably related to his being the President of the United States as opposed to what Judge Hellerstein, the lower court judge, referred to it as a private affair, literally with Stormy Daniels. And so I think they've got, they don't get over the first prong, which is lack of colorable federal connection, federal office connection. And I don't really see their federal defense. You have to have a federal defense as well in order to remove and their federal defense is, oh, the Federal Election Commission and the Federal Election Commission act preempts any kind of state prosecution. I don't see that generally it's a civil matter. You, the courts have found that you could have a state court crime, a state crime in furtherance of a federal crime. I really don't see how there's a federal defense here at all. So I would be surprised as a federal court practitioner, one who appears kind of regularly before the Second Circuit, I would be surprised if this three judge panel that will ultimately be assigned to this matter and we'll know who that is soon, but there'll be oral argument on this matter soon and we'll report on it here on the Midas Dutch network. I would be surprised if they find that there's a removal so late in the game so filed so far after the sentencing. And on these grounds, I just don't see them saying, sure, take the case back to us on the second Circuit. We'll do your appeal. But if he loses at the second Circuit, which I believe he will, his lawyers will then file an emergency application with the United States Supreme Court and we'll have to see what fist bumper Chief Justice Roberts, which that gave me no confidence whatsoever. I mean, you know, we've had the upside down flags of insurrection being filed by Judge Alito, Justice Alito, we got this little scene going on there and so we'll have to see what the United States Supreme Court does. What's the worst case scenario? The case ends up in a 2nd Circuit appeal on all aspects of what happened during that trial and then up to the United States Supreme Court. I guess that could happen. I mean, there's many different roads to the Supreme Court now that Donald Trump is president and we'll continue to follow them all. I think the takeaway here is we've got major firms who have decided it's okay to get back into bed with Donald Trump again. We've got Midas Touch and Legal. I have being cited in the record again. And We've got the 2nd Circuit sitting on a decision after an oral argument that'll be coming up soon about whether this whole 34 count felony conviction on appeal should go to a federal court, the second Circuit or should go back to the first Department Appellate Division in Manhattan, which is a state appellate court. I'll follow it all right here on the Midas Touch Network. Follow me. Michael Popak, Legal AF Wednesdays and Saturdays at 8:00pm Eastern Time. And then wherever you get your podcast from, I have a new show called Popoc Live on Tuesday nights on the Midas Touch Network 8pm as well. And then Legal AF the YouTube channel. Legal AF MTN. Help us continue our march to 500,000. We should get there this weekend, but with your help. Until my next reporting, I'm Michael Popak.
- [13:31]
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- [13:55]
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