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- [00:01]
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Michael Popak
No one saw that coming except for me, baby.
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- [01:31]
Michael Popak
One of the most conservative Republican Federalist judges writes thus scathing opinion, using the soaring rhetoric we come to expect from Judge Wilkinson on the 4th Circuit to tear down Donald Trump and at the same time implore him to comply with the Constitution as it relates to trying to send people to foreign prisons without due process. We have to listen, and I don't want it to get lost in the news cycle. It was earth shattering. The earth for me moved yesterday in a positive way. It's not just the series of bro podcasters who are now having second thoughts about having supported Donald Trump. It's not just the legion of MAGA supporters who own small businesses and other businesses who are together in chorus exclaiming, this is not what we voted for. Why did I vote for this effing guy or things of that nature. This is now the crack, the fissure that we've been waiting for, frankly, this is federal judges that are unassailable. Judge Wilkinson, Harvey Wilkinson. Been on the bench since 1984, placed there by Ronald Reagan, of all people. If you built a Mount Rushmore of federal appellate judges on the conservative right wing side, Wilkinson would be carved there along, I believe, with J. Michael Ludig, who's been on this show before. And when I read this seven page decision, so powerful what you can say, and this is what I tell my law, the people that work with me. You don't need 50 pages. You got seven pages. It was such a scathing rebuke, but yet with soaring language which hit right at the Constitution by a constitutional scholar who has written books in order to encourage judges to restrain themselves in our democracy. He doesn't want ideology on the bench. He wrote a whole book to prevent that. To hear Wilkinson, as soon as I read it, I was like, this is Wilkinson. It was a little bit unclear because it was a joint decision opinion of three people about Armando Abrego Garcia. But it's obviously Wilkinson. It's now been identified as Wilkinson. I'm going to cover it right here on Midas Touched Legal af because it's that important. Let's turn to the the issues. Forget the names. I don't care whether the guy's name Armando Abrego Garcia, Kilmer, Armando Abrego Garcia. It goes well beyond him. I'm sure the person in Brown versus the Board of Education was a very interesting person, but the principles of the case are what matter. Right? You know, Roe versus Wade, interesting people, I am sure. But the principles are what mattered there. And so strip away the names and strip away all the facts about whether he's got a marriage that's on the rocks or whether he is or is not a criminal. It doesn't matter. This is about due process. This is about our constitutional guarantees of Fifth Amendment privilege. This is about notice and constitutional safeguards for everyone. That was at one point on U.S. soil. And this is a chilling comment that I don't want to have lost. I did a whole hot take on Legal AF about this. But listen to this point that Wilkinson writes about observing the grinding effect of the Trump administration grinding against the judiciary in a way that lessens both because he's so out of control. The essence of the case has to do with the government's asserting a right to stash away residents of this country in foreign prisons without the semblance of due process. That is the foundation of our constitutional order. Judge Wilkinson writes on page, on page two of his order. Further, it claims in essence that because it has rid itself of custody that there's nothing that can be done. Judge Wilkinson writes This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear. But buried in this decision is something where Judge Wilkinson went out of his way not only to support the lower level trial judge, a very fine and respected judge, as they called her, Judge Paula Zinnis in Maryland, who now has the glory and the honor of having been affirmed twice by the Fourth Circuit Court of Appeals in the last two weeks. And so that's six votes there and nine zero at the United States Supreme Court for how she's handling the ordering in the Abrego Garcia case. Right. So you've got, you know, 21 votes in favor, none opposed to how she's handling the case. He says, listen to this, because this is the one that sort of got lost a little bit in the shuffle about Wilkinson going out of his way to say, I've read about Donald Trump in the Oval Office effectively claiming when he had the petty dictator of El Salvador next to him Bukele, he said, oh well, we're going to consider sending U.S. citizens who commit crimes and, you know, use a baseball bat against old ladies and throw people downstairs or whatever, whatever it is. And listen. That was not lost on Judge Wilkinson because here's what he said about that. This is on page five. The Executive. The President possesses enormous powers to prosecute and to deport. But with powers come restraints. If today the Executive claims the right to deport without due process and it's in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home? And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies? The threat, if not the actuality, would always be present. And the Executive's obligation to take care that the laws be faithfully executed would lose its meaning. From, from Article 2, Section 3. There are times in our history when federal judges and Supreme Court judges stepped forward. Sotomayor anticipated this very lawlessness when she dissented in the immunity decision from two Julys ago, which granted Donald Trump not only immunity from criminal prosecution for most of what he had done, but effectively gave him carte blanche to run this presidency in a lawless fashion. And we all looked at it. We said, kudos to Sotomayor, she got it exactly right. And here we have Wilkinson, who's unassailable, although he will be assailed by the by maga and by Donald Trump and those around him. You can't claim that Wilkinson is a leftist, an activist, a Marxist, corrupt. This is a lion of the bench, well respected by Democrats and Republicans alike. His background Two things about his background which explain the soaring poetry of his language and the power of it with our baby daughter approaching her one year birthday this summer, where did the time go? My wife and I are very focused on her time horizon and mine and that means thinking deeply about life insurance for my wife and me to make sure our daughter's future is protected. Protect your family by securing their future with life insurance from policygenius policygenius makes finding and buying life insurance simple and ensures your loved ones have a financial safety net they can use to cover debts and routine expenses or even invest that money to earn interest over time. With policygenius, you can find life insurance policies that start at just $292 per year for 1 million of coverage. 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He not only clerked on the United States Supreme Court for one of the justices there and wrote a book about it when he was in his 20s. He's a prolific writer, analyzer, constitutional scholar. He also served in the Department of Justice as the Deputy Assistant Attorney General in the Civil Rights Division. So civil rights matter to him. The Constitution matters to him. But let me look at Wilkinson even deeper. He's written a series of books, and one in particular about 20 years ago, was called the Cosmic Constitutional why Americans Are Losing Their Inalienable Right to Self Governance. That's an interesting title. I'm sure it's sold a few books. But what does it mean? He was and is against judicial activism, which means judges using ideology to decide cases and to impose their ideology. Like Petty legislators on the rest of America and the public from the bench. He believes, he's an institutionalist. He believes in the role of the federal judiciary is not to make law, but to interpret existing law or for the good faith extension of it. And his book was all about not allowing judges to use their ideology to undermine self governance and, and our democratic participation. Yeah, he was against all that ideology theory. He was about, and this is his phrase, judicial humility. Judicial humility. Be humble in the work that you're doing as a judge and that will set you on the right course to allow the American people to have what they need in order to run our democracy. So when you have a judge like this who's not an activist, he's actually written books just to anticipate the attacks on him. He's written books about the need for judicial humility and restraint. And for him to write these seven pages is even more meaningful. And I'm sure when the three judges got together, Wilkinson, King and Thacker, they deferred to Wilkinson to write their thoughts down. Now we've read. Let me just read you a, a couple of points that will go down in history, I am sure, as the proper call at this moment in history. I've talked about Judge Kofador, who's a federal judge, senior status in San Francisco, who enjoined Donald Trump the very first injunction, and there's now 60 of them, came in January, five days into the administration about birthright citizenship, which is now gonna be heard by the United States Supreme Court on September 15, on May 15 in an oral argument. But he said in the reason I need to rule against Donald Trump now and not have any fear of doing so, because he's wrong about trying to rip away 14th Amendment constitutional protections for citizenship when you're born on the soil is because we don't want to live in a, in a world where history looks back and says, where were the judges? Where were the lawyers during that period? Well, how is he so out of control? And obviously Wilkinson heard his, heard the call from Judge Cawthra back in January and is answering right now. He says on page four of his, of his order, the government is obviously frustrated and displeased with the rulings of the court. He says, let one thing be clear, court rulings are not above criticism. Criticism keeps us on our toes and helps us do a better job. But then he says, criticism is need not be stilled, but active obstruction or defiance is barred. And that's what Donald Trump is doing. Active obstruction and defiance of the federal courts, and if you don't like it, then you you go and you appeal, he says at the bottom of page four, the executive is inherently focused upon ends, the judiciary much more so upon means. Ends are bestowed on the executive by electoral outcomes. You know Donald Trump's constant the discussion of his seven battleground state wins and mandate means are entrusted to all of the government, but most especially to the judiciary. Related to the Constitution itself, he then says on page five, we'll respect you and your Article two powers, but you, for the good of our society and our country and our constitutional republic, need to respect us and at the in our article 3 Powers. Here's what he says about that on the bottom of page five. The basic difference between the branches mandate a serious effort at mutual respect. The respect that courts must accord the executive must be reciprocated by the executive's respect for the courts. Too often today this has not been the case, as calls for impeachment of judges for decisions that the executive disfavors and exhortations to disregard court orders sadly illustrate, he says on page six. Now that the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around. This is the institutionalist of Wilkinson speaking about judicial humility, but also humility in all the branches. The executive will lose much from a public perception of its lawlessness and all of its attendant contagions. The judiciary will lose much from the constant intimations of its illegitimacy, to which, by dent of custom and detachment, we can only sparingly reply. The Executive may succeed in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and Law in Time will sign its epitaph these and he actually cites the Brown versus the Board of Education and Eisenhower, whose personal opinion was it's not time to desegregate the schools, but I'm going to abide by what the United States Supreme Court has just said to try to get Donald Trump, the gentle brethren and the executive branch, as Wilkinson calls him because he's a gentleman, to do the right thing. We know the Trump administration, led by Donald Trump is not going to do the right thing. And we're going to have a constant, as we said at the top of this administration after the election, daily lurching from one constitutional crisis to the other. All we can do is continue to talk to each other about it right here on the Midas Touch Network. Take a moment. Hit the free subscribe button. And then I got a personal plea. Come on over to Legal AF, the YouTube channel. Hit the subscribe button there. As we continue to grow that channel, we're growing that channel at a rate of about 70 to 80,000 subscribers every month. That is a testament to two things. The content that we're providing, but more, more importantly, what you're receiving and the audience's enthusiasm for it. So I ask for you, it's not a beg yet. I ask you to hit the subscribe button. As we continue to grow that pro democracy channel in collaboration with the Midas Touch network And then Legal AF the podcast. Legal AF the podcast. Number 10 in the world. Hard to believe. We're moving up the charts. We want to get closer. We want Midas touch and legal AF to be 1, 2 in the charts. And we want to pass a bunch of Maga bro pods along the way. We want. We can do it with your help. I'm asking for your help. Until my next reporting, I'm Michael Popak. In collaboration with the Midas Touch Network, we just launched the Legal AF YouTube channel. Help us build this pro democracy channel where I'll be curating the top stories, the intersection of law and politics. Go to YouTube now and free subscribe @legalafmtn. That's egalafmtn.