Legal AF - 7/29/2026

23:19Popok:Now, it's kicked around a number of appellate courts. It's kicked around the Second Circuit Court of Appeals three times. It kicked around a court in the District of Columbia once. And Donald Trump's argument, I want to be clear here, is not that he didn't do it. His defense is not that he didn't sexually abuse E.G. and Carroll or that he didn't defame her. Or that there was an error in the evidence or the trial judge made an error related to a witness or an error concerning letting in certain evidence or not letting in certain evidence. He's not arguing that at all. He's arguing that he enjoys two types of immunity.

24:00Popok:He can get away with murder, or in this case, sexual abuse. And in a civil case, this is, let's all remember, this is a civil case, not a criminal case. In a civil case, that he doesn't have to pay her. In fact, he has two arguments. One, that he's a federal employee. He's badge number one. And therefore, he enjoys what we refer to as Westfall immunity. comes from a case which says that all federal employees working within the course and scope of their duties and responsibilities cannot be sued in their individual capacity nor pay damages because you're really suing the United States of America, a sovereign, which you can't do without its permission.

24:42Popok:And so what normally happens is you sue an employee of the federal government. The government makes a decision whether it's going to step in. The Department of Justice files a motion for substitution to come into the case, which eventually kills the case. Now, the Biden administration, when it was running the Department of Justice, declined to intervene in the case about Donald Trump's sexual abuse of E. Jean Carroll in 1996 in a dressing room at Bergdorf Goodman Department Store, about 200 yards away on Fifth Avenue from Trump Tower, when he bumped into E. Jean Carroll, who he knew, was based on testimony.

25:22Popok:And later, sometime later that afternoon, things turned dark and violent and sexually abusive, and she was sexually abused. Some would claim that she was raped. She would claim that she was raped at the time. The only reason it wasn't rape is because at the time, a victim needed to be able to testify with certainty that the penetration happened with penis. I can't put this any nicer. And if she closed her eyes, no surprise there, during the violent attack. So she couldn't handle that particular element. And therefore, the jury came back with the next level, which is sexual abuse. That's the reason.

26:05Popok:Today, it would be rape in the state of New York. They changed the law. So Donald Trump's not arguing I didn't do it. Donald Trump's not arguing. Other evidence was let in. It shouldn't have been. It's that I'm immune, that I'm a federal employee. I've got Westfall immunity. And the question is whether he was just doing his job when he defamed E. Jean Carroll. His argument is, I was just defending the presidency. This is really an attack on America. It's not an attack on America. The United States of America didn't sexually abuse E. Jean Carroll. You did. Donald Trump did. And so we're going to have to see if the United States Supreme Court wants to touch this with, pardon my French, a 10-foot pole or smaller, or whether they want to completely ignore it.

26:51They could just say pass. We're not going to comment on it. We think the lower courts got this right about the fact that he was outside the scope of his duties as the president of the United States, whether you analyze it as core constitutional functions, or the presidency's powers stretched to its outer boundaries. I think they're right about that.

27:12Popok:I think they should stay out of it. The second argument that Trump is making to try to block having to pay E. Jean Carroll in her lifetime is that the criminal immunity statute from 2024 or 2023 also means that he shouldn't, for the same policy concerns, he shouldn't be subject, or no president should be subject to a civil judgment because it'll impair their ability to do their job. That people won't be robust and full-throated about their presidency and their powers because they're looking over their shoulder at potential civil liability. See, it's different to say you're looking over your shoulder about whether you're going to be robust in your presidential powers because you're worried about a criminal case and going to jail.

28:00This is a civil case. I don't see the same policy concerns. And frankly, I don't see the United States Supreme Court finding those policy concerns either. So that's first argument. Second argument is related to that, which is he was acting in the course and scope of his duty, stretched to its outer boundaries. It's very similar to the earlier analysis.

28:23Popok:I don't think they want to revisit the immunity case this early, this soon. And the main defense to all of this, which will be briefed, is that Donald Trump and his lawyers waived immunity because they waited 12 months, 15 months, in many ways, after the verdict and after the judgment to try to assert it. I mean, let's be frank. Trump becomes president of the United States a second time. And the first thing he does is take over the Department of Justice and make them reverse course and offer to intervene and make a motion to intervene in the case to take Donald Trump out as a party and deny her, E.

29:09Popok:Jean Carroll, her dignity and her money. And the judge, Judge Kaplan, refused it and said it's too late. It's 15 months after the jury verdict. Just because you won the presidency doesn't mean you can come into my courtroom and now assert the immunity that was never asserted earlier. See, if you don't assert defenses, including immunity, you waive them. So he never asserted Westfall immunity until 15 months later. After jury verdict, there's no party that would be entitled to that type of immunity protection so late in the game. And then on the, that the criminal immunity ruling by the Supreme Court can be stretched to cover civil judgments, I think they lose on that as well.

29:57Popok:And that was never raised at the trial court level until months into the trial. Too late. Too late. It was done in post-judgment motions. And I think the Second Circuit got it right when they said, we're not going to hear the case because these motions, these immunity defenses were raised too late. And I think they're going to win on that. So the petition has been filed. We know that. But this is not going to get heard until the new term opens for the Supreme Court the first Monday in October. Probably going to be a November, December, January event, oral argument in January to March sometime, and a ruling in June.

30:40She's 83 years old. You know Trump's trying to wait her out and never let her see this money in her lifetime. It'll go to her state. But that's not the same thing as doing justice by the only person on planet Earth that was able to prove that Donald Trump sex abused them in a court of law. So we'll follow that very closely. We got developments related to FBI director James Comey. James Comey was indicted twice. First, his indictment was for lying to Congress five years ago. It was done by Lindsey Halligan, a disgraced prosecutor who was forced to resign after it was found that she was illegally appointed.

31:18Also, it was found that she abused James Comey's, the former FBI director's civil liberties and constitutional rights in the way she presented the case to the grand jury. And a judge dismissed her and dismissed his indictment and the indictment that was brought

31:38Popok:against Letitia James, the New York Attorney General. This all has to do with how harsh of a critic James Comey has been since he left being the FBI director. He's written books. He's been on talk shows. His daughter used to work in the Department of Justice. She prosecuted Ghislaine Maxwell. And Donald Trump's been livid, has been trying to get back at him ever since. That indictment got dismissed. So there's no way to bring that indictment again. They're out of time. So they looked around and they saw, oh, James Comey commented on social media about a picture somebody took in the form of seashells on a beach, 86-47, which means remove the president.

32:20Popok:Like remove the tuna salad from the menu. I worked in a diner. I know what 86 means. It doesn't mean assassinate the president or assassinate the chicken salad. It means remove it, which is what everybody's calling for. Now, there was already a federal judge concerning a group, an activist group in a park in Washington who was flying the flag of 8647. And the Park Service tried to pull their ticket to protest and their permit by saying that was a true threat against the president. The judge said it's not a true threat against the president. it? That is a phrase that's been around since the 1920s, came out of like soda jerks and luncheonettes and things like that.

33:06And that case helped James Comey because when he got indicted in the Eastern District of North Carolina, he was at his beach house when he posted that on

33:17Popok:social media or reposted it. This all comes down to whether him liking or commenting on somebody else's social media post about seashells on a beach constitutes a true threat against the life of the president. Those are the elements. And that's the case law. And so his lawyers, led by Patrick Fitzgerald, formerly the U.S. attorney in Chicago, let's remember James Comey before FBI director, was the prosecutor in the Southern District of New York, two top prosecutors leading this case. They argued with a motion to dismiss that as a matter of law, somebody posting or commenting on a photo of the phrase 8647 could not, as a matter of law, constitute a true threat against the President of the United States, and the indictment should be dismissed.

34:10Popok:That's their argument. I think it's a very good argument. They've got another motion in their back pocket. And that one is for vindictive prosecution. But they've smartly not yet filed that particular motion. I think they're going to get two bites of the apple. They're going to file this motion. They're going to fight hard in oral argument and otherwise in briefing to get it to be successful. It's the cleanest path to have the indictment dismissed outright as a matter of law. If they don't get the right result, they can take an appeal. That appeal would go to the Fourth Circuit Court of Appeals, which covers North Carolina.

34:45And then they can always file next the motion for vindictive prosecution or selective prosecution.

34:51Popok:I mean, that's going to be easy. It's harder because the law for vindictive prosecution, usually before the Trump administration, is very difficult to prove. But not when it's the Trump administration. Not when you have the President of the United States going after it with high vitriol and angry, violent language and rhetoric going after his political targets. And then the Department of Justice following suit. That collapse of the hierarchy of the Department of Justice plays into the hands of lawyers like Patrick Fitzgerald representing Comey because it's much easier now. It's a much shorter distance to travel to prove vindictive prosecution when you've got Trump as the chief law enforcement officer of his own Department of Justice calling the shots for people like Pam Bondi and Todd Blanche.

35:42And we already had one example, a successful motion to dismiss an indictment brought by a target of Donald Trump, Kilmer Abrego Garcia, where they successfully argued and got a motion to dismiss for vindictive prosecution granted. I mean, in the history of the Department of Justice, I don't know, that's happened two times in 100 years. But James Comey's got a very good argument. But you see, that's the reason he's waiting until the end to see what happens with the straighter, a little straighter shot, cleaner shot of trying to take it out by arguing that as a matter of law, it can't be considered a true threat.

36:18no one in their right mind, no reasonable person would interpret a seashells on a beach as being a true threat against the president's life or calling for it. It's ironic that Donald Trump cares about seashells on the beach and the Department of Justice seems to also, because they don't care a whit about things like the safety and lives of federal members of the judiciary, of federal judges, all the way up to the Supreme Court. They do nothing to denounce it.

36:47Popok:You never see Todd Blanche come out and denounce it. You never saw Pam Bondi do it. They actually enable their client, Donald Trump, to constantly attack and others in his administration to attack with vitriol, with violent rhetoric, federal judges, plain and simple, or state court judges. I'm going to have with me on a YouTube, a special YouTube video on Legal AF tomorrow, Judge Salas of New Jersey, whose own son was assassinated or was murdered when an attempted assassination against her went awry at her home. And now the depraved send pizzas to judges' homes in the name of her son. Did you hear me?

37:32Popok:Yeah. Yeah. And we're going to hear from Judge Salas tomorrow in my interview about the threats to the judiciary. We're going to hear from Judge Beth Bloom, who sits in the in the court where I practice in Miami, Southern District of Florida, and several other judges. Join me tomorrow for that exclusive briefing of current federal judges talking directly to our Legal AF audience. So many different ways to support what we do. Legal AF, the YouTube channel, come over there, become a free subscriber. It costs you nothing, but to us, it is, I can't even put a price on it. It is priceless what it does to support our channel.

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41:55Text LEGALAF to 64 ,000. Text LEGALAF to 64 ,000. One more time, that's LEGALAF to 64 ,000. Message and data rates may apply. See terms for details. Welcome back to Legal AF at the Midweek. I'm Michael Popok.

42:16Popok:I'd say I'm on vacation, but let's be frank, there's no rest for the weary. And there's certainly things we need to do to protect the rule of law. I'm here for you. And I appreciate, of course, my family for giving me the opportunity and the time to speak directly to you on podcasts like Legal AF. And thank you to our pro-democracy sponsors. Let's get into our final topic. The one that keeps our audience up at night and me up at night is our right to vote. What's being done to protect it? As Donald Trump continues his assault, especially on mail-in balloting. He's lost 18 times at the various federal court levels in his efforts to try to get voter data from the states, really blue states.

43:01Popok:Red states have just turned it over without, you know, they folded like a cheap card table. But the blue states are reminding the president that there is a separation of powers, that there is a constitutional provision that makes only two entities responsible or have a role in voting. One is the state's primary responsibility. And finally, Congress, if it decides to act. Conspicuous by its absence is any reference in the Constitution to the President of the United States as the executive branch having a role when it comes to voting. Executive talks about executing faithfully the laws of the United States created by Congress.

43:49Popok:Donald Trump's hell bent on being a legislator and taking advantage of a weak-kneed, do-nothing washrag of a Congress led by the Republicans. That'll change come the midterms with the vote. And Donald Trump knows that he's on a short time horizon and is trying everything he can to overturn the will of the people even before we vote. So in those 18 cases, he's 0 and 18 in obtaining voter data. Yet he's created somehow a voter confirmation or voter integrity database, error riddled, prone to making mistakes like telling people who are American citizens that they're not allowed to vote, naturalized or otherwise, created by the Department of Homeland Security and Social Security on orders of Donald Trump.

44:39Popok:And then they use that database to try to deny the right to vote. And they're doing it in conjunction with the Postal Service, arguing that the Postal Service answers to Donald Trump. Okay. So there's been a number of lawsuits about Donald Trump's instructions to the Postal Service to weaponize them. scary thought, by the way, a weaponized postal service. We'll leave it at that. But that they're going to decide, the postal service is going to decide, based on commands given to them by the president, which mail-in ballots they're going to deliver or withhold, and which mail-in ballots that may have been obtained directly from voting offices are not going to be delivered by the postal service to the election offices for counting.

45:28Popok:So there's been a series of cases about that. There's two, one at the First Circuit Court of Appeals coming out of a case ruling by Judge Talwani in Boston, one at the D.C. Court of Appeals. They kind of came out four days apart. And now the latest that I wanted to bring to your attention is a new emergency shadow docket, emergency writ, and motion for administrative stay brought by Donald Trump's former and current criminal defense lawyer and the Solicitor General of the United States, John Sauer, lobbed into the United States Supreme Court on their summer holiday to argue that Donald Trump is right, that he gets to control through executive order, mail-in ballots because he controls the post office.

46:15Popok:Like, what? Now, I said earlier tonight in this podcast that Donald Trump's on a mini losing streak at the Supreme Court. And he is. He lost birthright citizenship. And the time has passed for him to file a motion for reconsideration, although he bragged that he would. So no, he doesn't get to change the definition of who gets to be an American citizen born on U.S. soil that was enshrined in the 14th Amendment since our reconstruction period. He lost on his tariffs. I mean, he's trying to pop up with new tariffs that are probably equally as unconstitutional. But no, he doesn't get to use the Commerce Clause, which is resigned to Congress, or the International Economic Emergency Powers Act, IEPA, to set tariffs.

47:01Popok:So that got overturned. He lost when it came to E. Jean Carroll and her$5.6 million judgment. They refused to intervene to help him out of that. He lost in his attempts to try to undermine the Federal Reserve and destroy its independence by firing Lisa Cook and gaining control of the Federal Reserve. So he's got a little bit of a losing streak going. Now, he had a tremendous amount of wins in the last two years about immigration policy, a woman's right to choose, due process, and his ability to fire at will people in the executive branch, except at the Federal Reserve. Which brings us to mail-in balloting.

47:41Popok:He just lost a mail-in balloting case written by Amy Coney Barrett for the majority by trying to argue that all mail-in ballots have to be not only date stamped the day of the election, but counted on the day of the election and received. and they can't come in any day later. No grace periods. Well, that got shot down by the United States Supreme Court. So it's interesting when it comes to voting maps, how they draw maps to, in this case, give the Republicans a 10-seat advantage before we even run the midterm election. That's what happened. It's like going to a basketball game, looking up on the scoreboard before the game has even started and you're sitting in your seats and one team is up by 10 points.

48:24Popok:So that happened. And voting, yep, when it comes to the Voting Rights Act and the rights of Black and Brown and disadvantaged communities, the Voting Rights Act is dead. But that's different than how we vote. Election day stuff. Early voting. Election hours. How votes are counted. When they're counted. That is a sacrosanct, sacred right that's reserved and power reserved for our states. And so I'm not sure. In fact, I am reasonably confident, and I'll come back and tell you when I'm wrong, if I'm wrong, that the United States Supreme Court doesn't have five votes to let Donald Trump monkey around with mail-in ballots and use the Postal Service to deny the right to vote and to interfere with that sacred casting of a ballot and the election process.

49:18Popok:But we're going to find out a lot sooner than many people had thought, because this petition for an emergency stay, which will put this on a short-circuited track, there'll just be two briefs instead of three as in a normal appeal. There won't be an oral argument. We won't be able to televise or put up any of the live stream of an oral argument because there won't be one. And this will be decided on a kind of a temporary emergency basis in probably the next three to four weeks about whether Donald Trump, through executive order, can declare that mail-in ballots based on a database of his own creation, which is flawed, which is incomplete, can be used to deny your right to vote and take away your ballot and use the Postal Service to do it.

50:11Popok:along with whether he can cut off funding to states that don't comply with his SAVE Act. Here we go again. He can't get it in the legislature. He doesn't have the political will of the Senate. He can't get over the filibuster the Democrats are going to use to block any attempt to pass voter ID laws. We already have laws on the books that make it a crime to vote fraudulently or illegally. Why do we need more? A penalty of perjury signature and a vigorous prosecution seems to be enough for our forefathers and for everybody until Donald Trump got into office. So this issue is going to go to that court, to the Supreme Court.

50:57Popok:They've asked now, based on that petition, that in the next several days, and we'll report on it here on Legal AF on the YouTube channel and on Substack, that the opponents, the 23 attorneys general, file their reply brief. I think as soon as they do, I'll get somebody like Attorney General Rob Bonta of California, or Jay Jones of Virginia, or Mr. Weissman of Colorado, or we get the Arizona Attorney General on with us to brief our audience about what should happen at the United States Supreme Court. And then we're going to have to sit back and watch. That's the scary thing. And they could enter that administrative stay, turn it into a preliminary injunction, turn it into a stay pending the full appeal, which would change the rules of the road for this upcoming midterm, which is exactly what Donald Trump wants to happen.

51:56Popok:Now, see, there were two lower court, appellate court decisions that are in play as well. The first department sided with Judge Talwani and blocked that database, the use of that database and the misuse or abuse of the Postal Service to take away mail-in ballots. A D.C. appellate court, a couple of days later, they took a different position. They said it's too early to come into the court, right? Because they're very protective over their jurisdiction. They said, come back to us as soon as Donald Trump makes good on his threats to use the Postal Service. So in other words, that could be on an emergency basis like a month from now.

52:38Popok:So we got a weird decision from D.C., but probably consistent with appellate jurisdiction. And then this First Circuit appeal, which was an affirmation of Judge Talwani from Boston's decision. And that's what we're seeing up at the United States Supreme Court. We'll cover it right here on Legal AF, the podcast. We thank you for being such fervid supporters. Thank you for tolerating me doing things in the dark, keeping the content coming to you on Legal AF, the YouTube channel. There's an opportunity for you to free subscribe right now, it doesn't cost you a dime, but it means the world to us. Try to get us to two million subscribers before the midterm.

53:19That's our goal. With your help, we will get there. Come over to Legal AF Substack. Do the exact same thing.

53:25Popok:Become either a paid member, if you can swing it, or an unpaid member, a regular member, and that helps as well. Download the audio of this particular podcast. There's a QR code you can use to do it. We need more audio and we need five-star reviews and comments for the audio version. These are the things that go into a successful podcast and a successful YouTube universe that we've created, a fellowship that vibrates on the same frequency. And with your help, we will overcome this presidency and restore our democracy and our rule of law. And then finally, as people know, I formed a new firm dedicated to justice, dedicated to helping people in their most dire circumstances and needs, the Popak Firm.

54:12It's a new website. There's a QR code you can use to get yourself there and start your free consultation. If we take the case, we will staff it with people that I'm associated with throughout the country that are people who have recovered billions in dollars of recoveries. If you've been injured by the negligence of others in medical malpractice, an auto accident, God forbid, wrongful death, somebody's died, you or somebody in your family, come to the Popak firm. The consultation is absolutely free. And I'll see you. There's so much to talk about this Saturday with Ben Micellis on Legal AF, the podcast every day on Legal AF, the YouTube channel and on my live reports on Substack.

54:53Popok:So until my next report on what was supposed to be a holiday, Michael Popak. Shout out to the Midas Mighty and the Legal AFers.