Legal AF - 4/1/2026

22:15Popok:You know, you've got the velvet red curtains. It's not that huge of a room. People think it's much bigger than it is. The bench is relatively close to you. So if you're sitting in the first row like Donald Trump was, you're pretty close to the action. I mean, Donald Trump's comfortable for being in rooms like that because he's an indicted convicted felon. He's been in courtrooms before. But this was the moment for me early on when it was like I call it on one of my hot takes, the weekend of Bernie moment. This is the moment when John Sauer died in terms of his argument and nobody told him. This is John Sauer and Chief Justice Roberts as Sauer tries to make an argument about the modern world and 8 billion people just a flight away from being a United States citizen.

22:59KFA:Their interpretation has made a mess of the provision.

23:01Popok:Well, it certainly wasn't a problem in the 19th century. No, but of course, we're in a new world now, as Justice Alito pointed out to, where 8 billion people are one plane ride away from having a child who's a U.S. citizen.

23:13KFA:Well, it's a new world. It's the same Constitution.

23:16Popok:It is. Done. He's about as dead as fried chicken, as Senator John Kennedy said in Louisiana about Christy Gnome. I mean, for me, that was the—you get the chief justice going, you know, it's the same old Constitution. Nobody was buying his argument. Forget five votes. I don't know how he gets three votes. What did you make of it today?

23:36KFA:Yeah, I mean, look, it was very interesting. It was a history lesson. It was going back to some of our worst times as a country when Black people and slaves didn't have the same rights as the rest of us. And frankly, it was very interesting to listen to from that perspective. but I just didn't, I don't see even John Sauer. I don't, I don't even know how much he believes what he was trying to argue because it just, the, the whole position makes no sense. And, you know, and it came out through a lot of examples, right? Like, so, okay, he, John Sauer was saying it turns on domicile. Is this your house?

24:17KFA:Is this where you reside? Is this where, is this, is this your home? Is this where you intend to live permanently? And, and the justices we're like, yeah, but the 14th Amendment doesn't talk about the parent's domicile. It talks about the child's citizenship. And so how are we supposed to determine that? And how do you deal with that? So what if, is it the mom has to be a U.S. citizen or has to be legally here and domiciled here? Or what about the father? Or what about both of them? Or how do you determine that logically? And so what happens between the time of birth and the time that you figure this out?

24:57KFA:And what are you going to do? Take depositions of pregnant women to find out what your intention is? Are you intending to stay here? They talked a lot about, well, what about...

25:06Popok:On that one, so you don't think, people don't think Karen just pulled that out of thin air. Let's play Ketanji Brown-Jackson on that exact point.

25:14KFA:You will still get it. No, not transparent. I'm just talking about the particulars. Because now you say your rule turns on whether the person intended to stay in the United States. And I think Justice Barrett brought this up. So we're bringing pregnant women in for depositions. What are we doing to figure this out? Now, as I pointed out earlier, the executive order turns on lawfulness of status. So if you give birth to a baby in the hospital right now, it gets the birth certificate in the system. There's a computer system. So there's no opportunity, there's apparently no opportunity then for the person to prove or to say that they actually intended to stay in the United States.

25:49Popok:Absolutely not. The opposite is true. Their opportunity to dispute if they think they were wrongly denied, which would only happen in a tiny minority of cases, is directly addressing that guidance. After the fact. After their baby has been denied citizenship, then we can go through the process. And the way that, I mean, I'm summarizing because I'm not an expert at computers, but there's a computer program that currently automatically generates a social security number. SSA says, look, a social security number, non-citizens can have them if they work authorization.

26:12KFA:So it has improved citizenship.

26:13Popok:We'll give you a social security number, provided that the system automatically checks the immigration status of the parents, which there are robust databases for. And then it appears no different to the vast majority of birthing parents. Thank you. Picturing delivery rooms attached to conference rooms where depositions will be held for mothers who've just given birth. If that's that's what I think is our next chief justice. If the Democrats get back in office and Roberts retires or whatever, I think it's on G. Brown Jackson is the next chief justice of the United States. What do you think?

26:47KFA:Well, I don't know about that, but she was great. I mean, you know, but there's some more interesting.

26:52Popok:Why did you run that over? So why isn't she going to be the next chief justice?

26:55KFA:Because I don't know.

26:56Popok:I mean, we both don't know. I'm making my opinion.

27:00KFA:I know.

27:02Popok:Who do you want? Sotomayor?

27:03KFA:Yeah, I was going to say, I would probably guess Sotomayor.

27:06Popok:But she's 75.

27:08KFA:Yeah, but I think, I think Hitanji Brown Jackson is a little, like she, she is alone a lot, right? She's, she's sort of, she'll be the, the, the dissenter where, you know, where Kagan and Sotomayor will concur. or she seems to be the furthest, you know, not necessarily a consensus builder as much as Sotomayor, in my opinion, seems to be.

27:35Popok:I'm not sure about that. I mean, she dissented two days ago, eight to one, on the conversion therapy case. But she's generally, it's the block of three with Sotomayor and Kagan. Kagan sort of is not, I mean, she's not writing as prolifically as she used to. I love Sotomayor. I'm just looking at a 72, 73-year-old justice. And we're talking about three years from now. She'll be almost 80 years old. I don't think she's the right candidate. I don't think a Democrat would skip over the current group to bring, which he could or she could, to bring in a new Supreme Court justice. The only reason I'm talking about it is people like to talk about the future.

28:11Popok:And what does that look like if there's midterms and a change in the presidency? And I do want to talk about that.

28:17KFA:Yeah. Yeah. You know, just, just to wrap up a couple of other sort of practical things that, that they talked about today, you know, Amy Coney Barrett was saying, what about, they call them foundlings, babies who are abandoned after birth, right. And whose parents are unknown. What do you do with, with those babies? I mean, they were really concerned about the, the, the just children and, and, and being without country, being without sovereignty because of this question of their parents. And, you know, it's, it's just, it, part of the 14th amendment, not just talks about where you, where you were born, but also subject to the laws of, you know, subject to the laws or the jurisdiction of the United States.

28:57KFA:And, and I think a really important point is the only people who aren't subject to the laws of the United States are a very, very small number of people, such as diplomats, right? And, and when I was a prosecutor, we had to deal with this, where a diplomat would be accused of a crime and even arrested for a crime, and we had to release them. We had to literally release them and send them, give them to their country because they are not subject to the laws of the United States. But whether you're documented or undocumented, whether you are here as a tourist or you are here as a visitor, you are subject to the laws of the United States.

29:37KFA:You will be prosecuted if you commit a crime. You'll get a traffic ticket if you're speeding. You are subject to the, you have to obey the laws of the United States of America. So you are subject to the laws here. And I think that that's where this is ultimately going to, to fall is a combination of, of our constitution that applies to everybody, right? The fourth amendment search and seizure applies to everyone, not just citizens. And, and if, if our constitution applies to everyone, then our constitution applies to everyone, including the 14th amendment, which is very clear about where you're born.

30:11KFA:If you're born here, you are a citizen of this country. And that is what our country was founded on. It's based on the English common law that also has birthright citizenship. Trump, who tweeted out that we're the only country in the world who doesn't have that is wrong. At least 30 countries also have birthright citizenship. So he's just plain wrong. And so I do think that any way you skin this cat, whether it's looking at historical precedent, whether looking at the text of the Constitution, whether you're looking at English common law and what this was based on, whether you look at the five or so statutes that have been codified in the following years about citizenship, I do think ultimately, I don't know how they're going to rule, whether they just rule on statutory grounds or constitutional grounds.

31:00KFA:But no matter how they rule, I do think Trump is going to lose bigly, as he would say, in this particular case.

31:07Popok:Yeah, it'll attack the Supreme Court justices. And I guess the thing we'll wrap this section with is I don't want people to think that because we're getting a few major wins like tariffs and birthright citizenship, it sort of makes up for all of the bad rulings that this activist bench led by John Roberts and the right wingers have done to us in the term and in past terms. You know, Trump's batting 900 in shadow docket cases. Now, some of the merit cases are, of course, going in our way. We'll have to see where the final numbers shake out as this term ends in June when they drop this birthright citizenship opinion sometime before they leave for vacation.

31:50Popok:but we're going to get a crappy voting rights case result. We're going to get a crappy mail-in ballots result. We may get a good federal reserve independence ruling. But, you know, this administration had no problem with Donald Trump completely reshaping for the worse the relationship between the American people and the federal government, between federal workers and the federal government, between federal funding and the states and grants and programs and that of thing and its impact on the economy and that's all because of the supreme court so while we're you know slightly elated by a trump especially to his face being so resoundingly rejected uh part of me thinks that maybe they wanted they're glad he was there and they took this case for a reason because they didn't really have to they could have just rejected the appeal and said you know the 1898 precedent stands we don't really have anything new or novel to say about that but you know trump kept pushing.

32:44Popok:This was the lynchpin of his administration, lynchpin of his immigration policies. He needs to be heard on it.

32:49KFA:Where do you think Thomas falls?

32:54Popok:Well, he led off with the Dred Scott question. We were like, well, that's appropriate. A descendant of slaves is going to ask a question about one of the most notorious, heinous decisions by the Supreme Court. Although it didn't really go anywhere. I mean, it was interesting he raised it, but it didn't really go anywhere. It's always hanging in the room kind of thing. I don't know. I think this is seven to two. I think Alito and Thomas are just so dug in to support anything that Trump says. It's very hard for them. Now, I mean, those, you know, when you start seeing eight to ones and nine zeros, it's on something that like Trump wanted that the moderates were willing to go along with, like conversion therapy, not being banned in certain states.

33:36Popok:I don't know. I think it's seven to two. Let's just do the count. Ketanji Brown-Jackson, Sotomayor-Kagan against the policy, Roberts against, Gorsuch against, Amy Coney Barrett against. And then I thought going in, I was like, well, Kavanaugh is a free radical based on the way he handled the questions. I think it's seven to two. Maybe one of the two could surprise me and slide over and make it eight to one. But under no scenario is there a world where Donald Trump can get to five, can count to five. Because he'd have to get three out of the four of Gorsuch, Kavanaugh, Amy Coney Barrett, and Roberts.

34:16Popok:And he's not going to get three out of the four. I'm not even sure he gets one out of the four. And we'll know that at the end of June. Now, there's lots of other lawsuits that will involve the Supreme Court, including Donald Trump's mail-in ballot thing we'll talk about after our break. But that was a tremendous setback, no matter how you put it, for the Trump administration, as was what we'll be talking about after our break, which is in the ballroom, his royal ballroom. We'll talk about mail-in ballots, Judge Mehta allowing finally after five years a case to move forward about civil damages against Donald Trump in particular.

34:50Popok:We'll give you a quick update on something that happened as we were coming on the air with Judge Randy Moss ruling in favor of NPR and PBS against the Trump administration. Maybe if we have time, Karen can talk about her favorite story about Kristi Noem's husband and some dress up games. Now we know why she's no longer in the administration. Hopefully he won't go the way of cricket. The dog. We'll just leave it at that. There's so many different ways to support what we do here on Legal AF. I've got great new news, new news, new news is in. This podcast and my podcast, The Intersection, are both up for Webby Awards.

35:28Popok:Last year, Midas Brothers podcast won the Webby Award, I think, for like the best podcast of all time. This one is mine. The Intersection is for best new podcast in news. And the Legal AF with us is up for podcast in news. We made it out of thousands and thousands and thousands of submissions. We had to put together a whole reel, a whole thing. We made it to the final five finalists in both categories. And there's two components to it. There's the popular vote. There's a popular award, like a People's Choice Award. And then there's the committee award. I really would want, I don't know about you, Karen.

36:04Popok:I'd be more elated if we won the People's Choice Award. Totally. Than some committee. I mean, sorry, committee. I mean, don't take us out of the running. But I really would like to say, so here's how it works. Two-week campaign. ending the 16th or 17th of April, and you literally vote, and we put the links below, and you can vote for both or one or the other, whatever you want to do. It'll tell you what the current vote totals are by percentage. Right now, Legal AF and The Intersection are both leading their categories. I think we both have over 50%. But we need your help. We got two weeks. We're competing against these other great podcasts, and we need your help.

36:43Popok:And then if we win, I get to see Karen in New York in May. How fun. That'd be fun. And other ways, of course, to support what we do. There's an ecosystem that we built here at Legal AF. The backbone of it, of course, is this podcast, which, Karen, I forgot to wish you a happy birthday anniversary. It's six years since Ben and I started Legal Roundup, five years since we launched Legal AF. So it sort of mirrors the podcast, the Midas world, five and six years. And that's this month. Wow. So we got that. The Legal AF YouTube channel, which is going to cross 1.1 million subscribers very, very soon.

37:23Popok:A dozen videos every day. We had the live stream today of the oral argument in the Supreme Court. We'll get 100 ,000. We'll probably be the number one or number two live stream for that particular oral argument out there because people are starting to rely on that channel for that. Some great interviews in the last few days. Jamie Raskin, Deputy Director, Immigration Project for the American Civil Liberties Union before Birthright Citizenship. I'm bringing on Attorney General Jay Jones of Virginia to talk about the mail-in ballots litigation that the attorneys general are going to be leading, you know, and others.

37:59Popok:and others. And then we've got Legal AF Substack, one begets the next, a whole nother universe parallel to the YouTube channel where there's an overlap, but there's some people that live on Substack for us and for other reasons. And we had 10 pieces of content that go up every day. I just did a lot. I do a live every day. We're usually around noon and we get a thousand or 2000 people to join us and then watch that video. It's really, really fascinating. And then we've got our pro-democracy sponsors that Jordi Micellis helps put together with me and Karen and Ben, and we're going to take a break for them right now.

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42:00Popok:That's M-A-C-K-W-E-L-D-O-N.com. Code LEGALAF. Welcome back to Midas Touch and Legal AF. I'm Michael Popak with Karen Friedman-Ignifolo. If the birthright citizenship oral argument wasn't enough to make you giddy, then Judge Leon's decision in the ballroom will. I said, watch out. I've been involved in construction cases where judges have ordered a tear down of a building. And just because Donald Trump was continuing to build out that hole and try to bring up the ballroom and get approvals from these groups that he controls doesn't mean that Judge Leon, who I knew had been sitting on a preliminary injunction by the National Trust since early March.

42:47Popok:And I knew Leon. It's funny. I don't know if he watches the show. We know some judges do. by extension, but I said a couple of days ago in an email that there's a vote on Thursday, tomorrow, by the National Trust, controlled by Donald Trump, to approve these plans. It's the last stop. Of course, Trump's ignoring Congress. And I was like, Judge Leon, it's time to issue your opinion. And right on cue, yesterday, he dropped his 30, I love his writing, he dropped his 35-page memorandum opinion filled with 18 exclamation marks. Karen, you ever seen a judge use XT and the word please with exclamation mark after ridiculous arguments?

43:29Popok:You can almost hear the eye rolling within his opinion. And what he came down to is the following, effectively, what we always knew. The current occupant of the White House is just a temporary occupant who's a guardian for the property, for the people, and for future generations. The real landlord of all federal property that holds the keys is the Congress. And that just because you take in private money doesn't mean you can circumvent the role of Congress in approving massive construction projects. It'd be no different than if he, Donald Trump, wanted to take a bulldozer or a breaking ball and tear down the entire White House to put up a condominium with his name on it because, oops, I'm the current occupant.

44:12Popok:What's the difference? And Judge Leon in his order methodically crossed off the list all the arguments by Donald Trump. Well, there's a statute that allows me to make repairs. Well, this is not a repair. And you still have to go back for authority and authorization. He even pointed out, Karen, that in 2019, the first Donald Trump needed to replace a fence. It took him nine months. He had to get congressional approval. So he knows when he has to get congressional approval. He just didn't want to do it here. And so the statutes that are about remodeling and, you know, that's about like wallpaper.

44:50Popok:That's about painting. That's not about tearing down. Now, Donald Trump's tried to flip the script and say that the giant hole of the foundation is really also going to house major national security, like a bunker. Now, there's already a bunker. I'm not outing national security here. There's already a bunker. There's the Presidential Executive Operating Center, the PEOC, that's under the White House in a bunker since the 1950s. It's like the panic room for the president. It's where the Situation Room is off of it. That's always been there. And we have bunkers all over the place. We've got, you know, Raven Mountain, where the Department of Defense will go live if there's a nuclear holocaust, God forbid.

45:30Popok:And then there's another one on the border of Virginia and Maryland and Pennsylvania, which is where all civil command will go. And Trump now, because somebody whispered in his ear, Stephen Miller, that the more he talks about national security issues and security issues, then judges back off and give him a lot of power. So now he literally said, Karen, that the ballroom is not a ballroom, a grandiose thing with 1 ,500 people to go dancing and do state dinners. Oh, no. It's really we should see it like a shed that sits over a very elaborate security system that's being built under there. And Judge Leon had something to say about the security of the site while he's ordered that there be no vertical construction, right?

46:19KFA:Yeah, no, he wasn't having it at all, this ridiculous argument. And he basically said, look, A, you don't have statutory authority to do a project of this scale on your own. And B, it doesn't belong to you. This belongs to future generations of first families. It belongs to the people. And you're just the steward of the White House currently, but you're not the owner. And he was very clear about that. And he says, look, you're not allowed to demolish the East Wing of the White House, which he did already, and replace it with a 90 ,000 square foot ballroom. And Trump tried to say, well, I don't need to get congressional approval because it's being privately funded.

46:57KFA:And Judge Leon took that argument head on and said, just because you have put together, I think he called it a Rube Goldberg, like way of getting money put in for this ballroom. It doesn't take away the fact that you need to get congressional approval. This is not an alteration. It's too expensive, and it's just not happening. And so, you know, he just shot it straight down. And, you know, he said, look, there's historical practice. The White House has been renovated before, but you always have to go to Congress, and that's how you do it. You're not allowed to just do it on your own. You know, the thing that be in my bonnet in this case is the fact that Trump tore down the East Wing and just put a wrecking ball to it.

47:44KFA:I mean, there's such this beautiful building with a lot of history. And there was just no effort to preserve any of it or to preserve it even elsewhere. Right. Give it to others who want to display or have a piece of history or a piece of of of the White House. He just took a wrecking ball to it and now is putting up this huge, this entire giant ballroom that up until this week, the architectural plans had a staircase to nowhere and was so clearly ill conceived and ill thought out, like much like going into Iran. He just he takes he bombs first and then comes up with a plan later. And that's what he's doing here.

48:25KFA:He took a wrecking ball to the East Wing, and now they're scrambling to come up with a plan. And the judges are saying, no, you don't just get to do that. And I think Trump has figured that out, which is why he does things this way. He creates, he does this in so many areas where he destroys first because he knows he's going to be stopped, because he knows what he's doing is illegal. And so if he destroys first, then you can't just leave it like that, right? You have to be allowed to do something. And so, because if he hadn't asked permission, right, Congress wasn't necessarily going to do this or give him authorization.

49:06I mean, who knows?

49:07KFA:Maybe they would. Maybe they wouldn't. But it certainly wouldn't happen as quickly. And and I'm glad to see that the courts and judges are putting a stop to his his lawless behavior, even if it's something just like putting up, you know, destroying our White House and putting up a garish ballroom. I'm glad to see that they're saying, no, the rules apply to you, too. And that's what I think Judge Leon made very clear here.

49:32Popok:Yeah, I think of Donald Trump and I've seen the clip of Donald Trump saying, oh, I don't think it's that bad because he said for national security purposes, we can continue to construct. That's not what the order says. What the order says is you have a big giant hole. And if you need to secure the hole and the construction site, you know, so that people can't like jump on the tarp and end up in the White House, go ahead. but he made it clear in a footnote right in the order that there is to be no vertical construction, no improvement of the site. Secure the site, sure. Improve the site, no. So Donald Trump, you know, either because he can't read or because he purposely misinterprets it for the American public, which makes him look weak again, said while he was signing on the mail-in ballots and a bunch of other things that he was signing.

50:19He said, oh, I think I can continue to build.

50:23Popok:We're building this with, you know, drones, drones and bulletproof glass. He starts outing national security secrets about how they're building the building. That's not the point of the order. Now, the judge gave them a stay to give them time, to give Trump time to go. And they've already appealed to the D.C. Federal Court of Appeals. And we'll, there's a notice of appeal. I'm sure he's going to be seeking a stay there. We'll see. It's really going to turn on which judges end up on the panel, the three-judge panel. If any of the Trumpers get out there, like Katzis or Rayo, if there's two of them on there, God forbid, on the panel, there'll be a stay.

51:05Popok:If there's not, and it's like your normal panel, you know, like Millett and Pan and a few of the others, then I think he's not going to get his stay. if he wants to lob another hand grenade into the United States Supreme Court and argue, I got to build my ballroom. Now, even Judge Leon says, I'm not, here, I'll read it. Exclamation marks and pleases it all. Conclusion, page 34. Where does this leave us? Unfortunately for defendants, unless and until Congress blesses this project, construction has to stop. Exclamation mark. But here is the good news. It's not too late for Congress to authorize the continued construction of the project.

51:49Popok:The president may go at any time to Congress to obtain express authority to construct a ballroom or to do so with or without private funds. See, his position is you're going to do it with private funds. You still have to have congressional oversight over the project and approval. Indeed, Congress, Judge Leon wrote, may even choose to appropriate funds for the ballroom or decide some other funding scheme is acceptable. They need to bless it. Either way, Congress will thereby retain its authority over the nation's property and its oversight over government spending. The National Trust, that's the plaintiff, its interest, its constitutional interest in lawful process will be vindicated.

52:29Popok:And the American people will benefit from the branches of government exercising their constitutionally prescribed roles. I love his last line. Not a bad outcome. That! I agree.

52:46KFA:And the crazy thing is the Republicans control Congress. So there should be, I don't see why they can't get this passed. I mean, just go do it the right way.

52:57Popok:Now, it's a terrible, terrible scar on the Capitol. It dwarfs the other side, the West Wing. It blocks the view of the White House to the Capitol, which is exactly what the architect for D.C., I think a guy named Le Petit, what he envisioned, which, you know, symbolized the co-equal branches of government and checks and balances. No, forget it. Now it's just a giant ballroom. You know, it's a White House attached to a giant ballroom instead of the other way around. Now we can fix certain things in the future. Let's be frank. Many of the things that Donald Trump is putting up, we're going to be taking down.

53:38Popok:But what a waste of time and money to have to do it. Chisel off all those letters off the Kennedy Center, you know, trash all his dollars with his signature on it, you know, tear down the Arc de Triomphe for whatever he's building, or if it hasn't been built yet. you know, give back the Air Force One to Kuwait. I mean, there's going to be a lot of work that I think the American people are going to be in favor of in getting rid of the scar tissue that Donald Trump is generating while he's a short-term president.

54:08KFA:I agree.

54:10Popok:I think so.

54:10KFA:What a waste of money.

54:11Popok:But what a waste of money. But, you know, no more waste than Donald Trump. I don't know if you saw the stats coming out that tax receipts from corporations based on the big tax cuts in the big, beautiful bill,$70 billion less tax receipts from companies. Companies are paying $70 billion led by Meta. I think they're paying like$20 billion less based on the big, beautiful bill. That's not helping you and me to lose that$70 billion tax receipts. Donald Trump just gave a billion dollars to a French company to stop them from building a wind turbine project that was approved because Donald Trump doesn't believe in alternate energy because he's in the back pocket of big coal and big oil.

54:54KFA:I mean, imagine paying a billion dollars for something that you're not going to get, for something you're not going to see. You're basically paying someone to not do work. We were going to get a wind turbine that was going to produce electricity. That's what the billion dollars, that's what the money was spent on. And he's going to pay a billion dollars to not get that. I mean, it's just so wasteful.

55:14Popok:So, yeah. I mean, he'll say, well, I'm getting 16 billion in TikTok money for the, you know, he'll have all sorts of, you know, all sorts of, while, you know, while we came on the air, Elon Musk, who's effectively in charge of the Securities and Exchange Commission these days, he just announced he's going IPO, initial public offering to take SpaceX public. They think it'll be the largest public offering in history at$80 billion, 90 % of which is going to go into Elon Musk's pocket. Wow.

55:43KFA:Incredible.

55:44Popok:Talk about a return on your investment. He put up$250 million of his money to buy a presidency, and look what he gets in return. Yeah. Billions in contracts and an$80 billion IPO. Just totally crazy. But the ballroom case is a good one. Everything that's wrong fundamentally about the Trump administration, I think, is embodied in the golden royal ballroom. So any setbacks to it, I think, is a good thing for democracy. One quick thing before we take our last break. As we came on the air, Randall Moss, Randy Moss, the other one, not the football player, who's a longtime federal judge in D.C., has ruled in favor of both National Public Radio and Public Broadcasting Systems, PBS, and that the funding cuts by Donald Trump, you know, the ones he brags about, I'm reshaping the landscape of media.

56:38Popok:Yeah. It was ultra varies against the Administrative Procedures Act. And just like a separate judge reinstated Voice of America and said everything that what's her face? Lake. Carrie Lake did was illegal, illicit and unconstitutional. They got to fix it. You know, you have yet another judge standing up for the democracy and for free speech, because that's the only reason PBS and NPR were being canned. because Donald Trump didn't like the editorial slant. I didn't even know they had a slant. I'm sure if you really listened, but like does Terry Gross, like I don't even know what Terry Gross' politics are or any of the shows.

57:16Popok:And that's probably a good thing, but that's a good decision. I'll do a deeper dive on that on the Legal AF YouTube channel. But we've got, on this holiday edition of Legal AF YouTube channel, so many ways to support what we do. We've got the YouTube channel for Legal AF, a dozen videos every day every day, seven days a week, at the intersection of law and politics and the rest. That's, if you wanna become a subscriber there, that helps us, we wanna get to 1.1 million over the weekend. We're so, so close. Legal AF Substack, whole nother universe you should go check out. We got another eight or nine pieces there in commentary, live reporting.

57:57Popok:I literally do a live show at lunchtime. You can get a couple thousand people to join me there on breaking news. become a member on Substack. And then we're up for the Webbys. Yes. Yes, I'd like to thank my mother. You've got the Webby Award for the Best Podcast. People's Choice version for us, I think. We're up for both awards. Intersection, Best New Podcast in News. We made it to the final five. And the Legal AF for Best Podcast in News. made it to the final five. Voting is open for two weeks. Free voting. The links are below. With your help, we'll take the coveted People's Choice version of the Webby Awards for both podcasts.

58:45Popok:And then I get to see Karen in New York for the award ceremony, which will be fantastic.

58:48KFA:That would be amazing.

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1:01:27Popok:Nothing to lose except high blood pressure numbers. Go to 120life.com and use my code Legal AF for 20 % off. These statements have not been approved by the Food and Drug Administration. This product is not intended to diagnose, treat, cure, or prevent any disease. Welcome back to Legal AF, the podcast. Let's dive into mail-in ballots. Donald Trump's been jumping up and down, stamping his feet, throwing food from his high chair about voting since he got elected and wants to make it hard on Democrats and independents to vote. So he's threatened the Senate about the SAVE Act. SAVE Act is dead. SAVE Act requiring you to show citizenship papers with your legal name on it in order to vote, as opposed to just signing a penalty of perjury declaration, is not going to pass the Senate because the Democrats have successfully blocked it with the filibuster, and there's not 60 votes to approve it.

1:02:26Popok:So no amount of Donald Trump threatening people, I'm going to primary you, I'm going to run against you. First of all, people don't think a Trump endorsement is worth the paper it's written on any longer. The Democrats have won 31 races where they flipped the seats of Republicans red to blue, including in Donald Trump's front yard, backyard, and home state in the last three weeks. And that is not, so his endorsement is not really worth, you know, worth much, and they know it. So that's not going to happen. So Donald Trump threatened us, remember about three weeks ago, Karen, he said, I'm going to issue an executive order of federalizing national elections against the Constitution, which provides that states, not the federal government, run federal elections for good reasons, another check and balance by our founding fathers who did not trust the newly created federal government.

1:03:17Popok:And many of the states were big states, right states, like I'm Virginia, and I'm Maryland, and I'm North Carolina, and all those, and all, I don't know, I'm using voices for states, but I did.

1:03:31Popok:They were like, we don't want a federal government. And so it was hard to get them in the first place. So certainly letting them run their own election was not something they were happy about either. And so that's why that's not what the Constitution says. But Trump, so what did Trump come out with? Oh, what can I do? Well, two weeks ago, the Supreme Court looked like it's going to side with him on mail-in ballots to the extent that there's not going to be a grace period anymore that states were giving for the receipt of mail-in ballots that were postmarked by the election day. Some states gave five business days or three days or whatever it was.

1:04:05Popok:And I don't think the Supreme Court's going to go for it. I think they're going to say, you can do mail-in ballots, but you've got to get them in. So if they don't show up on election day, they ain't getting counted. And then Donald Trump took it one step further. He said, I've got a better idea. I'll put the Postal Service in charge, along with the Social Security Administration. What could go wrong when you put those two groups together? So what was your take on his new proclamation, his new executive order, and what attorneys general and other interest groups are doing already to challenge it in court.

1:04:34KFA:I mean, first of all, this whole thing just is so ridiculous. I mean, you know, when you think about it, you're going to trust a list created by Social Security and the post office to determine whether you can vote or not. It's just, it's got so many flaws. I mean, you know, with identity theft and other issues, you know, there are people out there who are using other people's social security numbers. And besides, we know that that system is not foolproof. And so that just seems like something that doesn't appear to be, it's going to take away a lot of people's eligibility, not because of substantive reasons, but because of reasons that are not within their control.

1:05:21KFA:And how are they going to fix it? How are they going to follow up? How are they going to challenge it? Right. That, that is just has a whole, a whole logistical problem there. Number one, number two, the irony is Trump just voted by mail. Right. So it applies to, doesn't apply to me, but it applies to the, you know, that's his, his whole, his whole thing. And you would think that he wouldn't do that because it's just a bad look, but mail-in ballots is a practical thing that a lot of people avail themselves of and, And and like him. And so I do think that it's it's not it doesn't make any sense whatsoever.

1:05:57KFA:And frankly, if he controls the post office, who's to say he doesn't just sort of say, hey, why don't you slow? You know, don't deliver the things that look like ballots. Right. Because he wants them to have barcodes and special envelopes and all of that. You know, I don't trust him to to to encourage the Postal Service to make sure that even if people get them in on time, that they get delivered on time. So, because he's so against mail and ballots. And so, so the whole system I think is very flawed and, you know, lots of experts and election officials say that the order is, that this order is unconstitutional because as we all know, states, not the president runs elections.

1:06:40KFA:That's actually in the constitution, right? That the states get to come up with the time, place, and manner of the elections. And manner meaning how they're done. And so this is not something that is supposed to be up to the president. This is something that the states are supposed to do. So I think it's going to be ruled unconstitutional. It's also getting very close to the midterms, right, to do something like this. And how would they logistically even do something like this without interfering with people's rights to vote? And so I think it's got a lot of problems. But of course, we know that states are, if they haven't already, they plan on filing lawsuits.

1:07:20KFA:And that's what they're going to do, because this is something that's squarely in the control of the states. So, you know, it's, we just heard, you know, a week ago, the Supreme Court, you know, we listened to oral arguments, we covered it on Legal AF, heard the case of Watson versus the Republican National Committee about whether states can count mail-in ballots that are postmarked by Election Day but arrived afterwards. So I think that's going to be really, I think it's going to, I think that's going to have a big impact on how things go. But, you know, if the court rules against the Mississippi case, in that case, you know, states might be barred from counting ballots that arrive after Election Day, even if they were mailed on time.

1:08:06KFA:So, you know, there's just a lot that's up in the air right now. And I think the one thing the Supreme Court didn't love is that different states have different rules, right? And that election day means something. And what is election day? But I think the thing that Trump is not going to be allowed to do, which is to nationalize or federalize or control this. So it'll be really, you know, really interesting to see how this goes. But the sad thing, the scary thing is just one more example of Donald Trump trying to take away people's right to vote. And so, you know, I'm not going to vote by mail.

1:08:47KFA:I don't want there to be any chance that my vote doesn't be counted, isn't counted. You know, so I'm going to show up. I'm going to go to my polling place. But, you know, there's a lot of places that can't handle the influx of people who are they're used to. States are set up in a way that they're used to having a certain amount of people show up and a certain amount of people go by mail because some some people don't live near polling places. Right. Some people live 100 miles away in rural areas.

1:09:16Popok:They're obviously able to wait in line.

1:09:18KFA:Exactly. There's so many reasons why people do it. And states for the midterms have already, they already have their election workers and their volunteers, and they already have spaces reserved at various polling places. And all of this takes a long time to organize. And so if they change up the rules now, I worry that polling places aren't going to be able to handle it or people aren't going to be able to logistically do what needs to be done to get there. So Donald Trump thrives on chaos.

1:09:51Popok:Donald Trump thrives on chaos. He wants the chaos that he can point to. Chaos and counting and balloting and certifying. You know, this is a group where Stephen Miller and others, you know, according to the Jan 6th committee reports, when there was reports of rioting outside of counting centers in Detroit, they were like, good, take advantage of the riots. So this is how the Republicans feel they need the dirty tricks they need to use to get elected. I've been interviewing all 24 of the Democratic attorneys general, and they're all in the next day or so going to be filing a lawsuit, at least 20 of them, against the Trump administration on what he just signed yesterday.

1:10:36Popok:Here's Nick Brown, the Washington state attorney general, in a quote, pardon me, also reminding us of the success of these attorneys general. It's no surprise that the same man that claims he won the 2020 election and advances nonsense conspiracy theories now wants total control over elections. But he has no authority here. A fact already reaffirmed by the courts in this administration's ongoing attacks on the right to vote. In January, we successfully overturned a previous executive order by the president attempting to usurp the role of the states in Congress and elections. The law is on our side.

1:11:14Popok:There's nothing to support the election denier-in-chief's voter fraud claims. And we are once again prepared to defend the rights of his state. And every of the 24 attorneys general that are Democrat, everyone has issued a statement almost identical to that one. And they are working. If we listen closely, we can hear the wood being sawed. They are working feverishly to get that lawsuit. I wouldn't be shocked if it gets filed on Friday or if not before. And I'm going to have Attorney General Jay Jones from Virginia join me to talk about it. I'll have Rob Bonta come on and talk to me about it. And I've got the Colorado Attorney General who's also going to be joining this week to talk about that and some other things.

1:11:57Popok:So I feel pretty good about the strength of the argument in opposition to Donald Trump, of that of the Constitution, the role of the states that is preeminent. It's not coextensive. It's not the states and or the executive branch. The executive branch has no role whatsoever. And speaking of no role whatsoever, let's round out our show with Judge Mehta's ruling in favor of the Jan 6th civil damages case against Donald Trump. Now, it's hard to believe we're still talking about this case, but it's been like a yo-yo. It's going up and down to various appellate courts. Some things Donald Trump's appealed, some things he hasn't appealed.

1:12:36Popok:We've gotten rulings four years ago from the D.C. District Appellate Court in a case called Blasingham, which we talked about three and a half years ago. Then we had the criminal immunity decision. This is going to allow us to talk to our audience about the difference between civil lawsuit immunity and something called the Westfall Act and criminal immunity, which is Trump versus the United States. And we're only talking about a civil case here. They're suing for damages. for all the emotional and physical suffering of this group of people, Met Police, Capitol Police, members of Congress staff, and the rest.

1:13:13Popok:Judge Mehta has been very, very thoughtful about this case. But now we're at the moment of truth because Donald Trump filed a motion for summary judgment, which, in effect, Judge Mehta has denied. It all has to do with Donald Trump's speech on the ellipse, in which, according to the plaintiffs, it incited violence. We all know it did. He wound them up knowing that they were armed. He was told that they were armed and dangerous. He said, they're not dangerous against me. They're my people. Drop the magnetometers. Let everybody in. And then he whipped like a weapon. He wound them up and fomented them.

1:13:50Popok:And then he pointed them at the Capitol. And he said, I'll be there with you. We got to fight, fight, fight. I'll see you there. And they said, yeah. And then he went the opposite direction of the White House and sat while his followers burnt down the Capitol.

1:14:05KFA:Throwing ketchup at the wall.

1:14:07Popok:Throwing ketchup at the wall, the dining room for those derelict hours. So the focus for Donald Trump, his argument was, federal employee doing a federal job. I get what's called Westfall immunity, which is official act immunity for civil cases. You can't sue me. I was just doing my job. And you define the job stretch to its outer boundaries. And there's a case called Westfall, and that's why it's called Westfall Immunity. And if Westfall Immunity applies, then the Department of Justice of the United States of America step in. They say, he's out, we're in, we're sovereign, and you can't sue us.

1:14:43Popok:That's how that works. The other argument that Trump made besides Westfall immunity ends the case is that he's got a First Amendment right. So there's a First Amendment element to this hate speech, this insightful inciting a riot speech. Let's leave that for a minute. And then the third argument that Trump made is that I was just doing my – this is more of the Westfall immunity. I was – I'm not – I wasn't candidate in chief. I was commander in chief and I was giving instructions to Mike Pence, certify that election. And I was communicating with the people about something of a great national importance.

1:15:20Popok:And I get to do that on the ellipse. And it was an official White House event, which it wasn't. And therefore, I'm covered, right? And Judge Mehta broke it down. He said on First Amendment, Karen, he certified it to go up on appeal. He found the First Amendment doesn't apply, but he understands it's an important issue. So it's going to go up to the appellate court on the application of the immunity, official conduct immunity. He said there are many things that Trump did that day that are outside the outer boundaries of official conduct immunity. He doesn't get to because he was campaigner in chief because he had no role in counting the ballots or anything like that.

1:16:04Popok:And the fact that he mentioned Mike Pence doesn't convert it into something else. And so and on Westfall, he denied the Department of Justice in the U.S. and their opportunity to come in and replace Donald Trump as the party to end the case. So First Amendment will go up on appeal. But the case now moves forward towards towards a trial subject to a ruling on First Amendment. I think this ends up back at the United States Supreme Court, don't you?

1:16:32KFA:Yeah, of course. I mean, this is their opportunity to talk about immunity again. Right. If they want. You know, because Trump could appeal the other two issues, right? And in other words, if Judge Mehta only certified one of the issues, Trump could try to appeal the other two issues as well and send the whole thing up to get the court, whether they allow that or not is a whole other story. But I think that this is something that ends up in the Supreme Court where they will talk about whether there's civil immunity and what the First Amendment means and whether or not this was part of his official acts.

1:17:13KFA:And, you know, immunity is tricky because they granted him such vast immunity in the criminal context but were silent as to the civil context. And so it'll be interesting to see how they analyze this, especially now that they see what a monster that Trump versus the United States and giving him this wide criminal immunity has created. If they have buyer's remorse, this will be an opportunity for them to not only fix that, but they can clarify what they could say. You know, this is not like like like official criminal immunity. This because it's different because, you know, in that case, these things are immune.

1:17:56KFA:You know, they could clarify and sort of rein themselves in a little bit, even though it would be considered dicta because that's not the issue here. And here they could address this question about civil immunity as well as the First Amendment, right? And whether or not this was speech versus, you know, not all speech is protected by the First Amendment, right? when it becomes conduct, like what Trump did when he didn't just say, I believe this and this is how I, you know, this is what I think. He actually engaged in conduct. His speech went from just pure speech over to conduct when, as you said, he sort of pointed and shot and it was like a loaded a gun and shot it towards the Capitol by sending armed followers to the Capitol and directing them to do what they did, right?

1:18:47KFA:And so I think he loses even on all of those grounds, even in this Supreme Court. That would be my prediction.

1:18:57Popok:Oh, I totally agree with you. I don't think that there's any appetite, even for the Supreme Court, to give him civil liability, having already given him criminal defense, criminal immunity. I think that they may find that it's a horse of a different color on civil damages, which does not implicate liberty interests. But like you said, it's another opportunity for them to get under the hood and start monkeying around under there, you know, with immunity decisions and maybe roll back parts of it. That wouldn't be bad. And if they're having any second thought about how Trump has interpreted his immunity and how it's empowered him, this might be a good opportunity.

1:19:39Popok:Interesting. I don't really know why. I'll dig in for the next time around. But it's interesting that Trump never appealed the Blossingham decision. So it is, as Judge Mehta pointed out, is the prevailing law in the federal courts in D.C., which defined and set up a test for when a president or somebody can be sued for civil damages. even, and it was done before the immunity decision, but even under the immunity decision, it, you know, as they've smartly pointed out, Judge Mehta pointed out, it doesn't impact his analysis. He has to follow Blasingham, but I'd love to find out why Trump didn't appeal Blasingham up to the United States Supreme Court.

1:20:20Popok:We knew he didn't do it at the time, but I don't, if they just lost track or they made a strategic decision that that was a, they've taken loser arguments the Supreme Court before. I would like to know. Do you have any speculation as to why they didn't appeal that?

1:20:34KFA:I can't pretend to understand why this administration does what it does. So no, I don't want to speculate at all about that.

1:20:41Popok:Yeah. Agreed. Agreed. That's our whole show, speculating. I'm glad our audience is here. Happy Passover for those that celebrate that. We had a fantastic show. Hopefully you found it fascinating. A marriage of a TED Talk and a law school class come to life with Karen Freeman, Ignifolo and Michael Popak. Thank you for being such fervent supporters of all that we do here for the five slash six years we've been on the air. Webby Awards, vote below for the intersection and Legal AF voting closes in two weeks. We're in the top one right now for both awards for top podcasts. With your help, we will prove victorious.

1:21:23Popok:and on Legal AF YouTube channel. Now is a great time to become a member and vote, grow us to get to 1.1 million subscribers. Legal AF sub stack, exact same thing. And of course, support for this podcast. You can find it wherever you get your audio podcast from. We're always in the top 50, 75 or so of audio podcasts. We're in the top, anywhere between the top 20 to 50 in video, YouTube podcast, week in, week out, all because of the support of our audience. And we appreciate each and every one of you and love to have you and love and love being your podcast commentators. Karen, last word on this holiday Wednesday.

1:22:03KFA:Happy Passover. Happy Easter and happy holidays to everybody. This is a really, really big, solemn time that a lot of people celebrate a lot of traditions and holidays. days. So I just want to wish everyone a wonderful time with your family, with your loved ones, and just thank you so much for joining us every week and getting us to where we are. It's just so great to be here.

1:22:31Popok:Absolutely. Thank you all for being here. Shout out to the Midas Mighty and the Legal AFers.