Legal AF Full Episode - 10/29/2025

26:35So, you know, but it's interesting because you can just see what they're already trying to do. They're going to say, oh, well, of course, the regular local law enforcement say that they've got it under control because those are Democrats who allow for lawless, you know, these lawless riots, et cetera. But you've got ICE who will say through Kristi Noem will come out and say, no, we need this. We can't get it done without it. And you can see them saying, well, we defer to the president, right? We defer that he has to take care that the laws are faithfully executed. He has to be able to enforce the law.

27:10And they're saying they can't. And so they're allowed to do this to protect federal property and we'll defer to them on the ground. I mean, it's interesting because so many judges have come out and said that the facts on the ground just don't match what you're saying and they have no basis in reality. So it'll just be interesting to say to see what they do and whether they are going to defer to the president and what he's saying. Yeah, I'm cynical because I think the Supreme Court is just looking for ways to rule in favor of Donald Trump. Absolutely. I can't believe that's the thing that's hanging them up, but we'll have to see how it sorts out.

27:45They've asked for a briefing. It'll go through November before Thanksgiving. In the meantime. Well, it makes sense because they can't claim there's an insurrection. They can't claim that there's a rebellion. They can't claim any of those things. So really all they can hang their hat on is, look, they're trying to enforce the laws, right? ICE, they're trying to deport people and he's trying to do it. And he's saying, I can't do it without extra help because there's protesters outside of the ICE facilities in chicken suits. And I like them to stop cutting the legs out from under federal judges who are making the record because, you know, like it was so easy for the three, the two Trumpers in the Ninth Circuit to say, well, why can't, even though he sent in the troops in September, why can't he look back to June?

28:31I'm like, because by the time he sent in the troops in September, there was nothing going on but 20 people standing out and loitering out in front of ICE. Maybe there was an issue in June, but why do you get to backdate June when you're making the decision in September? They were like, well, temporarily. I'm like, oh, here we go. So I'm tired of appellate judges, you know, I'm sure you've heard this phrase before, maybe you've used it, you know, with black robe disease, you know, at the appellate level, looking down their nose at federal judges who are just doing the job, the hard work of developing the facts on the ground and applying the law to the facts.

29:07And then them just going, whew, you know, last year there was somebody, a car was set on fire. Okay, what does it have to do with this year? What does it have to do with the date he sent in the troops? I don't understand any of it. I don't either. I don't either. Yeah. So we're trying to make sense of it all. That's one of our goals here on Legal AF. I'm glad everybody's here with us. We're on the midweek edition. The podcast, Five Years in the Making, has been doing outstanding because of the support of our audience. I think we're the number one law and politics podcast. I'm not just saying that.

29:42I mean, in terms of the rankings. And the rankings are important, and the subscriber base is important for like Midas and for Legal AF YouTube. It's not just, oh, I want to get to a million. It's because that number, those magic numbers, give us the credibility that we need to exist, to survive, to thrive, to bring on contributors, to bring on interviews. Next month, I'm interviewing 11 attorneys general of the United States in a meeting. You got me into that room as the audience because of what Legal AF has become as a brand, as a reliable contributor to the conversation in America in giving honest commentary.

30:24It's not just me, Karen, and Ben in a garage talking over coffee. So it's because people want to come on the show. When I reach out to Anna Bauer the day that her article publishes about her interaction with Lindsay Halligan, she comes on the show because of the vibrancy of our community, because of the size of our audience, because of the legitimacy of what we do. because you have a First Amendment right to hear our honest commentary and we have a First Amendment right to tell it to you. It's just all under attack. And so the way to support that is the way that you're doing it. Listen to us on audio.

31:01Let people know about the audio versions of the Legal AF podcast. We could use in the hummingbird world of consequences, we could use a few more listens over on the podcast side, a few more reviews, a few more five stars to help us prop us up in the top rankings for Apple and Spotify and all of that. That's for sure. YouTube Live? Absolutely. Then we chop this episode up into smaller versions, bite-sized versions, and send them out across the universe of Midas and Legal AF so you can consume them at your own rate, your own pace. So that's important. And I'm leaving comments here. Then Legal AF YouTube.

31:39We're about to crack 900 ,000 this weekend. We're about to crack a million if it kills me. It kills Salty. before the end of the year. And that's, again, that's a badge of honor that we then use to bring on. I'm going to be interviewing Governor Shapiro in the next couple of days. I just interviewed yesterday, and it's going up sometime, hopefully today, Rob Bonta, the attorney general, about the new lawsuit to save 44 million people who are going to starve to death because Donald Trump cut off$8 billion worth of welfare and SNAP and food stamps funding. In fact, I think it's up competing with us right now.

32:15I think it's up on Midas right now. But I'm only able, and those contributors are only able to get those people because you're a subscriber for free. No paywall. No, we have no corporate parent. Thank God we wouldn't be on the air. No corporate parent would let us do what we're doing. So become a subscriber. And then we got Legal AF Substack, which is, you know, people are like, how do you pay the bills, Popok? How do you have all these editors, all these people you mentioned, do all the videos. How do you get people in the middle of the night to jump on and do the interviews with you? Yeah, we have a team and they get paid.

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34:53And after you purchase, they'll ask you where you heard about them and please support our show. Thank you, Jones Road. You know my cat Chanel? She recently decided that the new plant on my desk is her personal jungle gym. Every time I walk by, I find her perched on top, knock and leaves over like it's her full-time job. I love spending time with her. That's why I order Smalls cat food, fresh protein, rich meals that support cat health and happiness. This podcast is sponsored by Smalls. Listeners know Chanel simply cannot live without Smalls. For a limited time, get 60 % off your first order, plus free shipping when you head to smalls.com slash legal AF.

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36:44All right, welcome back. It's a legal AF. Let's go to Lindsay Halligan, Karen, fellow prosecutor. I'm not sure. Or, you know, and Lindsay putting them. First of all, as I've said internally, I should never have ever had to hear what or who a Lindsay Halligan was in my entire life. Like there are plenty of sort of fender bender insurance defense lawyers that I'm sure are great, but I don't need to know who they are. I don't need to know who they are at the highest levels of the Department of Justice prosecuting cases well, well above their head. like taking on the former FBI director and U.S. attorney for Manhattan and the New York attorney general.

37:31I mean, this is not like, you know, I want you to talk about how you trained prosecutors and how you were trained as a prosecutor. Like on day one, did they hand you the file and say, go indict Donald Trump or some equivalent to that? Or did you work your way up to it? And the reason I'm going to turn it over to you. So Lindsay Allegan's in trouble. We got another signal gate where she used a disappearing messaging app on federal records to commute. Pardon me. I got excited to communicate with a reporter, Anna Bauer, which has led to a new brewing lawsuit about her use of a disappearing app on federal records, a motion for gag order about her going to the press.

38:16and then we've got this motion to disqualify. Two of them have been consolidated and sent off to South Carolina with Judge Curry and she issued a new bombshell. I mean, there's more packed into one paragraph than I have it here from Judge Curry. I was like, oh, this is going to rock their world. Prosecutor to prosecutor, catch everyone. I love Charlie Karen. Catch us up on Lindsay Halligan. I mean, I would say being a prosecutor is most analogous to being a surgeon because you literally have someone's life in your hands. You are given this awesome power that you can take away somebody's liberty and you can put them in jail.

39:00I mean, obviously the judge is the one who does it, but you're advocating for it. You're filing documents about it. You're presenting evidence about it. It is one of the most awesome powers that any human can have. And so you have to exercise that power gingerly with humility and you have to learn a lot. It's not like you just jump in and like a computer can do it and you say, oh, Michael Popak did something. Okay, I'm just going to plug this information into the computer and spit it out and then we process him. No, this takes judgment. It takes experience in the same way that you wouldn't just drop someone who just got out of medical school into surgery.

39:40Or you wouldn't get someone who's a trained podiatrist to now suddenly become a neurosurgeon and do brain surgery. And that's essentially what they did with Lindsay Halligan. Never been a prosecutor, never been trained to be a prosecutor. And frankly, she didn't even go through the normal training you would go through when you became a prosecutor. She was like an insurance lawyer or something. And they appointed her. And the next day, she was in the grand jury presenting one of the most important cases, frankly, a former U.S. attorney, former FBI director, and also the current attorney general of the state of New York.

40:13And so she is not qualified to be a prosecutor. Let's just put that aside. And frankly, we know that not because of anything I'm saying, but because so many career prosecutors resigned in protest because of the fact that she was appointed and that she brought this case. And so she's got a lot of problems there. These career prosecutors have the training, have the experience, have the judgment, have cut their teeth on on much more not not such complicated cases or less serious cases. And, you know, when I was first a prosecutor, they train you on, first of all, you go through long training and you learn everything and you learn not just the nuts and bolts, but you also learn about how important this power, this awe-inspiring power that you have and how you have to use it gingerly because you have to have the appropriate judgment to be given that power to ask to take away someone's liberty.

41:06But I did like shoplifting cases. My first trial, one of my first trials was a guy, we called it a token sucking case. This is how long ago it was. New York City subways, they used to have these little tokens. Now they have Metro cards and they're getting rid of those. Now you just do it with your computer. I mean, with your device, your cell phone. But they had these little New York City tokens. They were the size of a coin. And you put them in and you go through and people would sit there and literally suck the tokens out and steal them and sell them. And I prosecuted one of those. I mean, it was, you know, that's how you learn how to be a prosecutor.

41:44You do lower level cases where you learn where the stakes aren't that high, they're not that complicated. And you learn how to, where to stand in court and what to say and how to say it. And you learn to, if you learn to have compassion and to have, you know, where you should give people chances and you learn how to make those judgment calls. So she doesn't have any of that. And she's way in over her head. Aside from that, she's unlawfully appointed, right? I think she's going to get tossed just like the California U.S. Attorney and just like the Nevada U.S. Attorney who have been unlawfully appointed because Trump is trying to cram them in, in a way that he's not permitted to.

42:27So I don't know what's going to happen to those indictments as a result, but she doesn't have the experience. She doesn't have the judgment. I think it's going to come back to haunt her. You know, she got the indictments. Great. But can she keep the indictments? Can she keep the cases going? Can she get a conviction? Can she get the judge to rule in her favor? Can she sustain appeal? She's got many hurdles, but she got the indictment. That's not so hard to do. And I think she's got big, big problems ahead. In addition to what you were just talking about, which is one of the things that shows she doesn't have the experience, is she's using Signal to send messages to Anna Bauer, who is a reporter that you interviewed and did a great interview of Popak, to discuss prosecutions.

43:10You're not allowed to do that. But on top of that, she has them set to disappearing mode, which again, you're required to preserve public record, especially as a prosecutor. Start talking about disappearing mode for a prosecutor. I mean, it's just crazy. You have to keep a record of all these things for the very reason that there is going to be an appeal, for the very reason that you are given this. And I can't emphasize enough how enormous this power is that you are given. Little old me. I'm nobody. I'm just a person, right? Given this authority, this power, I had to swear an oath to the Constitution of the state of New York to be and being appointed an assistant district attorney.

43:51and it's drilled into you that you are given this incredible power that you have to exercise with incredible judgment, incredible integrity, ethics, and she just doesn't have any of that. What are you saying, Karen, that in the three hours that she became a federal prosecutor, having never been one, that was not inculcated? Those values were not instilled in her as Donald Trump swore her in and then told her to go get the indictment the next day? They forgot that part? I mean, just the fact that she had to be the one to go into the grand jury. She could have been sworn in as U.S. attorney and said, you know what?

44:31Okay, I'm the U.S. attorney. I'm going to give you assistant United States attorney Jane Smith. You go in who has the experience. You know how to present a case to the grand jury. You do it. She couldn't get a single prosecutor in that office to do it. No one would do it but her. That's highly unusual to have the United States attorney be the only one in the grand jury to be the one to present the case. Because not because they don't, you know, again, I'm sure if we look, you'll find other cases that U.S. attorneys have presented, but not because no one else would. That is highly unusual, highly suspect.

45:02And I think should send major, major red alarms, alarm bells off because this case has no merit and it just was done in a way that doesn't pass the smell test. So it's just nuts. Judge Curry, who's a senior status judge in South Carolina who got referred to the case outside of Virginia Eastern District because of potential conflict with the judges there over the appointment of the future U.S. attorney if Halligan has bounced. She issued an order, and listen to this. She not only doesn't refer to Lindsey Halligan by name nor by title, but here's what she said. But she said, basically, I'm handling the motion to disqualify, which has to do with a statutory interpretation of undisputed facts about how Lindsey Halligan got the job.

45:48This she could do on briefing, let alone not really needing new evidence. But here's the note. The judge says, no, no, no, I'm not going to rely on media reports about what happened in the grand jury room. Here's what she wants. The government is directed to submit on Monday at five o 'clock for her review in her chambers, all documents relating to the indictment signers participation. Halligan's now been reduced to the indictment signer in the grand jury proceedings, along with complete grand jury transcripts. In-camera review is appropriate because there's a grand jury proceeding, and I've got to keep it secret.

46:28So there's been a lot of speculation. Why does she need that? Is she setting up Lindsay Halligan? I have a theory. It has to do with remedy. It has to do with she doesn't need the grand jury, doesn't need the confirmation that Lindsay Halligan, by herself, handled the indictment process. Although we don't really know what happened behind closed doors. We saw more than one person go in. I think she was there with Meg Cleary, who since got fired, and others. She doesn't quite know. I think she wants to be, all right, gotcha. You did the presentation. Because what the parties are asking for, Comey and Letitia, what they're asking for is to have the indictment bounced along with Halligan.

47:10So if she didn't really do it, is there a way, even though she signed the indictment, is there a way to preserve the indictment if she bounces Halligan? But that's my theory. What do you think, what do you make of Judge Curry's out of the blue order from today? I think it's an interesting question because when the U.S. attorney in Los Angeles and Nevada were both deemed by judges to be unlawfully appointed, the cases that were indicted while they were United States attorney were not dismissed. But I believe when we learn more, it will be because those were presented by assistant United States attorneys and that it doesn't really matter in some ways who the U.S.

47:57attorney was. I mean, AUSAs or assistant United States attorneys, just so everybody knows, often most of the time work there for five years, 10 years across administrations. It is not a political, typically, it's never been a political job where it matters what political party you're in. Nobody knows what political party you belong to. It's only the United States attorney. I think there's 90 of them across the United States that are present are appointed by the president. And so those are partisan and they have to be confirmed by the Senate. And so the AUSA is it's not a political job. It's never have.

48:37It never has been. It doesn't matter. You prosecute Democrats and Republicans alike. It doesn't really matter who's in office. If you commit a crime, you commit a crime. So the fact, again, that there were other AUSAs that presented the cases in L.A. and in Nevada, I think could be one of the reasons why those indictments were not dismissed. Halligan is the one who presented these cases on her own. She not only, and when I say presented the case, means she went into the grand jury. She spoke to the grand jurors. When you present a case to the grand jury, you call a witness. The witness swears to tell the truth.

49:14They testify and you ask them questions and they have to give you enough answers that you make out probable cause or reasonable cause to believe or probable cause to believe that a crime has occurred. And you have to make out all the elements of the crime. You don't have to tell them every single thing that's ever happened, just enough for, they call it a prima facie case, that a crime occurred and the elements are met. And then you ask them to vote on an indictment on certain charges, and then you present that to them. And she presented three charges. They rejected one and came back with two others, with the two of the three that she presented.

49:51So that's why I think she wants to know this information, because again, it's unusual that the AUSAs in the office, the career prosecutors, the ones with experience, aren't the ones who presented the case. She presented the case herself as she is the, not just the US attorney, but also the AUSA prosecuting the case. If she wasn't validly appointed, she's not allowed, she has no authority. She has no power. She can't go into the grand jury and seek an indictment. That means the indictment is dismissed. Now that has serious ramifications for Jim Comey because the statute of limitations was about to run.

50:28And that's, I think, the next day. So if that case gets dismissed, I don't think they can bring that case again. Attorney General Letitia James is a different story because I'm not sure when her statute of limitations runs or ran, but that one potentially, if the judge does determine the same thing and dismisses it without prejudice, that can then just be re-indicted by somebody else. Now, the question is, will the judge dismiss it with prejudice so that you can't do that without prejudice or not dismiss it at all and say it's like California and Nevada, even though the United States attorney is invalibly appointed, I'm not going to dismiss the indictment.

51:08So we don't know what's going to happen. Look, those two indictments are a piece of crap and they should be superseded with a superseding indictment anyway. But this goes to the heart of the matter. Is Lindsay Halligan appropriately appointed or not? And then we'll let the chips fall where they may about the various indictments or ability to prosecute them. But you're right, which is said at the top of the segment, which is no self-respecting career prosecutor. How sad is it that she heads an office where no one from the Eastern District of Virginia, no career prosecutor that's left, they fired many of them, will stand side by side with her on any of these cases.

51:45She had to reach out to some prosecutor in Missouri for the Letitia James case and some prosecutor in North Carolina to go before the Eastern District of Virginia judges. And to answer the question that came up in the chat, Judge Curry is only handling the motion to disqualify. Everything else in the case is Judge Nakmanoff for James Comey, a Biden appointee, and Judge Walker, another Biden appointee for Letitia James. Let's move on, Karen, to the Trump appeal. Before you move on, can we just say, speaking of U.S. attorneys getting fired, did you hear about the U.S. attorneys getting fired over the sentencing memo for the Jan 6th person?

52:26Did you hear about that? Yeah. So why don't you tell the audience about it quickly? We might end up trimming something towards the end. Go ahead. I'm talking too much, but I just find this appalling. Absolutely appalling. You could frame it. There was a January 6th insurrectionist, rioter, whatever you want to call them. One of the Jan Sixers got clemency or pardoned by Trump and then shows up at Obama's house with a gun and was prosecuted and convicted. And when the case was about to be sentenced, the career prosecutors They did a sentencing memo, which you're supposed to do in all these cases, and described the conduct and described that there was this individual who was outside President Obama's home with guns.

53:14And what they essentially said was that what ended up happening was they were put on leave because they referred to January 6th as mob riot, which it was, by the way. And they referred to it correctly. And I guess you're not allowed to do that anymore. I guess you're supposed to celebrate the Jan 6 mob rioters and call them patriots or whatever else. But it's just atrocious what is happening at the Department of Justice now. and that these two career prosecutors who I'm sure are very good because that's what prosecutors have always been with the Department of Justice. It used to be one of the most coveted, high prestigious jobs you could have with excellent training and produced great people that they are now put on leave because they were doing their job by calling what January 6th was a mob riot.

54:07The hollowing out of the Department of Justice continues with the Trump administration. 5 ,000 people fired, people suspended and transferred for doing their job as objective civil servants, nonpartisan civil servants. The next president, hopefully with a D next to his name or her name, is going to have a lot of work to do to restore people's confidence in the Department of Justice and the rule of law. And that's just but one example. When we come back from our next quick break, we'll talk about the Trump appeal. And I want to get it from the perspective of Karen Freeman-Nifolo, who worked for the Manhattan DA's office, not on that particular case, about appeals in general and about this particular appeal and the handicapping as to whether he's going to win this appeal or not.

54:52Many ways to support Legal AF that we talked about at the top of the show, all important. Become a member of our subscriber base on the Midas Touch Network and on Legal AF, the YouTube channel, as we make our march towards one million. Those are the keys on a key chain that allow me and others to open doors to bring on people, onboard people, contributors, newsmakers, interviews, judges, former judges, governors, attorneys general, and the like. That's how you can help. We have no outside investors. We have no paywall. Become a member of the Legal AF community on the YouTube channel. So Legal AF sub stack, same thing, except there's a paid option, which helps, frankly, pay for the independent, honest commentary and journalism that we do on Legal AF every day and every hour.

55:38So think about becoming a paid member. I kept the price low. I think some people in my world and our world are charging$5 a week. We're charging$6 a month. But we'll overwhelm you with content over there as well. And then we've got our sponsors. And here's a word from our sponsors. Delete Me makes it easy, quick, and safe to remove your personal data online at a time when surveillance and data breaches are common enough to make everyone vulnerable. As someone with an active online presence, privacy is really important to me. I've seen firsthand how easy it is for personal information to end up in places you'd never expect.

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59:01And as always, please enjoy responsibly. Welcome back. We're in the homestretch of the Midas Touch LEGAL AF podcast. And, you know, we try to keep it fresh and keep it up to date, you know, in real life. If Seventh Circuit has blocked, as we are recording, as we're doing this live podcast, has blocked the decision by Judge Ellis, which he made in the last 24 hours, to force the head of the Customs and Border Patrol, who she doesn't believe, to come into court every day at 530 and give a live report. I thought that was a little bit extreme. There's other ways to do that, like filing a written report every day or somebody that is subordinate to him.

59:44And the Seventh Circuit said, yeah, no, you're not doing that. So we'll continue to follow. But this is just an example of judges, Karen, right, struggling to use every tool in their toolbox against an ever-shifting landscape and a tilted playing field by the Supreme Court, which then they're asked to try to rein in what they obviously see as an out-of-control president. Well, you can't blame them. I mean, the judge, you know, the judge has to come to work every day and drive through Chicago and sees that there is nothing going on the way justifying what they're saying. I mean, she's not you're not supposed to you're supposed to just look at the record and what's in front of you.

1:00:23But you can't help you can't help with common sense and see what the facts on the ground are. And so I'm sure she's very frustrated by this fact and is wants to have them there to justify this extraordinary thing that's happening. And they're reporting that they are abusing her order. She has a temporary restraining order in place that stops them from using military-grade riot gear and riot weaponry against civilian population without certain safeguards, including keeping their body cams on. And she's gotten information. They're not turning their body cams on. Oh, the shutdown. We don't have the body cams.

1:00:57Okay. She's not buying any of it. That's the problem. When you've lost credibility, you know this as a prosecutor or me as a lawyer. If you lose your credibility with the court, you have nothing. You have nothing. Nothing is believable. You are unbelievable. You're incredible and uncredible. And that's where the Department of Justice finds itself with the Trump administration. All right, let's turn to the appeal of the 34 felony count conviction presided over by Judge Mershon. We call it the original election interference case where Donald Trump paid through a series of conspirators' money to people like Stormy Daniels to hush her up about affairs or sex that he had outside of his marriage while he was running for office in 2016.

1:01:44and a jury of 12 peers of Donald Trump unanimously found that the prosecutors had carried their weighty burden of beyond a reasonable doubt and convicted him. Now, the issue there is that there had to be sort of a business record fraud, which they proved in how he cooked the books related to it and how he paid Michael Cohen to pay Stormy Daniels through other connectors. And there needed to be in furtherance of another crime. And that second crime was sort of a little bit up for grabs. Was it a federal election crime, a state election crime? But whatever the New York law allowed, that's what the judge instructed the jury about.

1:02:26And they found a second crime, the reason for the first crime, which made it go from a misdemeanor to a felony. Then there were the attacks over Judge Rashawn and all of that. I'm sure you've had an opportunity to look at the appellate brief. Talk about the first department appellate, the first department appellate division, Court, the appeal, this kind of appeal coming off a trial like this and handicap, what do you think is going to happen next? Yeah, so as you explained earlier, there's different kinds of appeals. This is the kind of appeal that happens after trial, after a conviction. If the sentence was entered, even though the sentence was an unconditional discharge, which essentially at the time that Trump was sentenced, he had already won the presidency.

1:03:07and the judge realized at that point a state court judge was not going to be permitted to put any restriction or anything on a president of the United States, whether even a community service or anything, he would have absolutely no authority, probation, nothing. And so he was smart to just sentence him to an unconditional discharge, meaning he's just a convicted felon without any sentence. And so at the end of that, that means the case is over. And at the end of that, he has a certain amount of time to appeal the case, which he just did. It took quite a while because the conviction was over a year ago.

1:03:44It was a year and a half ago now. And he submitted this 96-page appeal by Sullivan and Cromwell, which is a big law firm that I know you have a lot. You have excellent. I heard what you said about the fact that they're representing him. So I'll let you talk about them and I'll just talk about the appeal. But he has that great law firm. and uh and the appeal essentially is he he's appealed five separate issues essentially some of them i think have no merit whatsoever and are bogus and aren't going to go anywhere and are just kind of the same old same old that he's been arguing all along there's a couple though that i think are substantive and is are the issues that have always been the issues in the case and that we've always known we're going to have to be heavily briefed and kind of heavily weighed in the courts.

1:04:37So the five issues are essentially federal election law counts, not state election law. Therefore, you couldn't have brought this case to make it a felony, number one. Number two, that the judge improperly allowed the jurors to consider official presidential acts, which the Supreme Court said he was immune from. I think that's probably the most substantive issue, frankly. Number three, that Mershon erred when he told, made an error when he told the jury that it did not have to agree on the unlawful means to which he violated the state election law. Again, that's another, I think, the substantive issue here.

1:05:20Another one that they never established that Trump had the intent to defraud, which I think clearly they established that and that Mershon should have recused himself because he donated literally $20, not an exaggeration, once to a democratic cause. And because his daughter also has a job that works for democratic elected or potential people running for office. So that one I think has no merit. But I think that the ones that the only ones that I think are kind of substantive is this one of, because if you remember, the indictment came down, talked about a bunch of things and accused him of a bunch of things.

1:06:00And then the Supreme Court came out with Trump v. U.S. in the middle of it all and basically declared this presidential immunity, this new doctrine. And so the case had to be changed and the prosecution only presented evidence that they thought did not cross the line into presidential immunity. Actually, I got that wrong. The case was tried and then Trump v. U.S. came in and then they had to brief this issue. And so the judge had to rule on whether or not anything that came in in the trial violated Trump versus United States. And that was an issue that was heavily litigated. And essentially what the judge held was that that's not the case, that because this was when he was running for office and just because he was writing checks while he was president, it doesn't matter.

1:06:59He was doing it for this personal reason that he was running for office. And this is his personal mistress and his personal lawyer who was falsifying business records. And so it didn't cross over into presidential immunity. Now, where it's slightly tricky is, I think, Hope Hicks. When Hope Hicks testified, and I happened to be in the courtroom when she testified, She was a White House employee at the time. And she at the time that that she was a White House employee when she testified, not when she testified, but what she testified about was when she was a White House employee. And she testified about how when she was working for the White House, he basically said something like, a good thing that all of that, the Stormy Daniels stuff didn't come out before the election because that would have tanked us essentially.

1:07:54And honestly, I think was the thing that put the nail in the coffin, that this was absolutely an election fraud. And I was there. It was like you could have heard a pin drop. It was absolutely like a Perry Mason moment. It was that powerful. She was crying. You could tell she could tell that she was about to sink him. and that was the only thing that worries me that because she was a white house employee at the time and he was president and they were communicating yes it wasn't about the being president wasn't about presidential duties but that was the only gray area that i think uh we'll have we'll have to see how that goes um and whether the the court finds a that that is evidence that should not have come in because of presidential immunity and b if it if even if it did was that harmless error So that's one substantive issue.

1:08:48And I think the only other substantive issue in this case that I think is just, we'll see how they go, has to do with this issue about which crime did he commit? Because as you said, it's a misdemeanor to falsify business records, but it bumps it up to a felony if it was with the intent to commit another crime. And they don't have to really agree on that. And so the question is, you know, which crime it is, and as long as it was a crime, and what will they find, you know, would the court say, no, you had to all agree on one crime? And it's an interesting question. And there is authority in New York law for this type of analysis.

1:09:33So burglary, for example. Burglary is a pettit larceny, just a misdemeanor larceny, except if you enter and remain somewhere with the intent to commit a crime they're in. And the question is which crime. Prosecutors don't have to prove which crime because most of the time you don't know. If he gets caught before he commits the crime, for example, you have no idea what he was going to do when he was in there. So what do you do? You lay out, it could have been rape. It could have been there's a safe there that they were going to get. You just lay that out as possible choices? You can or, yeah, exactly.

1:10:06Exactly right. And they don't have to agree. They don't even, they just have to, they just have to specify that it was to commit a crime they're in. And so there is precedent for this type of crime, you know, in New York. We'll see what they decide. But those to me are the two issues that I think are the most substantive. Well, I think what the best thing to do is let's see who the three-judge panel is, or the five-judge panel for the first department. And then you and I can kind of kibitz about, do you think they're going to win on this or win on that if they're going to overturn the conviction?

1:10:42Let's just remember this. He wasn't the president at the time. He wasn't the president at the time he was convicted, and he wasn't the president at the time that he was doing all these bad things for which he was convicted. So this isn't about Trump as president. And I know that the lawyers from Sullivan and Cromwell, and I'll leave that for another day, the commentary there. I have a hot take up on that. You know, they're, oh, this is about the presidency. It's not about the presidency. It's about a human being who was not president at the time, who did bad things, was caught, was convicted. And I think they lose on the Mershon.

1:11:14I do agree with you. The only sort of interesting reversible error issue that they raised is the Hope Hicks issue. You happened to be in the court that day. But we'll have to see. This is a different panel than what heard the fraud case brought by Letitia James that we just got the ruling on, which is like, well, we'll find fraud to let it go up to the Court of Appeals. But we don't like the number. Okay. But this will be a different panel. So there might be some overlap to it. Once you and I know who the panelists are, and I'm sure they'll hold oral argument on this, it's not going to be an immediate thing.

1:11:49It's going to be, it took them over a year to make the decision on fraud, let alone overturning this conviction. We're in this for the long haul. Then again, we're on Legal AF. We're in for everything in the long haul. We do. We have short-term memory. We have long-term memory. We have legacy memory. We bring it all together on Legal AF. We're glad everybody's here with us together again on Wednesday. We have another show on Saturday that I do with Ben Micellis. We've got the hot takes that the contributors for Legal AF, including myself, do on Midas Touch, on Legal AF. It ends up being 40 videos a week and all of that.

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1:12:58And if you enjoy it, then you want to support us. That's the way to support us. Karen, last word. you know I hope everyone who's in the path of Hurricane Melissa is safe and doing okay and I always think of people who are struggling if you're listening to this people are thinking about you and I hope you get help soon absolutely and thank you for joining us on Legal AF until our next episode shout out to the Midas Mighty and the Legal AFers

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