Legal AF Full Episode - 10/4/2025

29:11Ben Meiselas:Welcome back to Legal AF. Thank you to our sponsors. The discount codes are in the description below. Support our show by supporting our sponsors, and I think you'll really like our sponsors. We spend a lot of time vetting them and seeing which ones we think that you'll like and working on those discount codes for you. Popak, let's combine these next two topics together because I think they're related. The Eastern District of Virginia shit show, as you put it to me last night, another major resignation from one of their top terrorism prosecutors who's actually currently prosecuting the case against the individual who blew up at the Ahmed Karzai Air Force Base and killed 13 American soldiers who was extradited from Pakistan to the United States.

29:53Ben Meiselas:This guy is the this federal prosecutor, 20 years on the job, not a Democrat or Republican. He once had some association with Lisa Monaco, who Laura Loomer and the Trump world say, you know, if you're Lisa Monaco because she worked in the DOJ and, you know, in the DOJ investigated Donald Trump when she was there. You know, she saw Trump post. She she shouldn't be able to work at Microsoft. Microsoft, you need to fire Lisa Monaco. They just they just kind of ignored her. I think that's a trend now. If you stand up and just ignore the guy and fight back, you win. That's the whole story of this guy's life.

30:27Ben Meiselas:He bluffs and he threatens and he tries to bully you. And so many people fall for that shtick. Stand up. He's weak. He's pathetic. Anyway, I digress there. Eastern District of Virginia, Judge Boasberg admonishing Janine Pirro to her face. And then I think, Popak, you also connect that to what happened in the Middle District of Tennessee, where the Trump regime put their finger on the scale and intruded on the independence of the DOJ by making them prosecute Abrego Garcia when he returned to the United States for a 2022 traffic stop, where even the highway patrol officer didn't find any basis to arrest Abrego Garcia.

31:05Ben Meiselas:They charged Abrego with human trafficking. And then the Trump regime went out and made all of these false and defamatory statements about Abrego. They painted MS-13 on his knuckles. All of these things where the judge was like, you know, a vindictive prosecution is a hard showing to make because every criminal defendant thinks that the prosecutor is going after them because they're vindictive. So the threshold showing is high. If you make the showing, you get discovery on it. And that discovery can be brutal for the individual and behaving vindictively. And I think this may be foreshadowing what's going on with Comey.

31:42Ben Meiselas:So Popak, the challenge I'm throwing to you is weave that all together, my man. Weave it all together. I'm the big weaver. Thank you very much. All right. Let's start with Michael Ben Ari, who was the prosecutor whose departure, involuntary, has made us all less safe. Donald Trump is busy firing the best and the brightest in the Department of Justice, especially when it comes to national security and terrorism, leaving us all less safe. Eastern District of Virginia is probably one of the top three or four most prestigious had-been Department of Justice, sorry, federal districts in America, not only because it's one of the original created in 1789 when we created our federal court system, but because it's where the Pentagon and the CIA sit.

32:32And so it is the home of the terrorism cases. It's the home of the espionage cases. And you want, to paraphrase a few good men, you want Michael Ben-Ari, that prosecutor, to be on that wall. You need him on that wall. And he's no longer on that wall. And his departing shot, he was fired literally because a Laura Loomer-like social media influencer, I don't know what makes her an influencer. She has no background. She's not a journalist. She didn't break a story. She's just a MAGA mouthpiece for propaganda. And she posted something about him being part of the resistance at the Eastern District of Virginia when Halligan, Lindsay Halligan, became the insta-prosecutor with no prosecutor experience and was given the task by Donald Trump in the order to indict Comey at all cause.

33:28Now, There was a dozen or so prosecutors who put together a memo that advised her not to bring the prosecution because the case was weak and violated the Department of Justice manual. But Michael Ben Ari was not part of that. He was just doing his job, keeping us safe, prosecuting the Kabul bombing that you talked about and other matters and had been doing so for multiple presidents over a 20 year term. He gets fired. Maya, I think Snow is her last name, Sung, sorry, gets fired. She's right beneath him. The son-in-law of James Comey quits, who's also in that department in national security, quits the day of the indictment.

34:14and Lindsay Halligan has nobody to guide her, but it wouldn't have been Michael anyway, in her obtaining of the prosecution. I've raised a question that is yet to be answered. Why did they use Lindsay Halligan in the Eastern District of Virginia? Why didn't Janine Pirro bring it in D.C.? Why didn't Maine Justice bring it in D.C. if they cared so deeply about the case and thought it was such a good one? Because the testimony, although it was done by Zoom, from Eastern District of Virginia, was in the Senate. And so they could have done it in Washington, and yet they did not because they wanted to set her up as a patsy.

34:52They don't care about the indictment. They don't care that it's going to be successful. They just want the headlines. Indictment of former FBI director, and they're going to try to get as much mileage out of it as they can. Perp walk of FBI director. This indictment is, I'm surprised it's still here. It is not only weak on its face, deficient on its face, but the new developments in the Abrego Garcia case, I'll get to in a minute, on vindictive prosecution are being closely watched, I assure you, by Comey's lawyers, Pat Fitzgerald, the former U.S. attorney for Chicago. and he's going to use it as a knockout punch against the Department of Justice here.

35:34And the more Donald Trump realizes he's not going to have an indictment get sustained or stay around long, the more he rushes with high velocity to use social media to convict the person. And if I'm Pat Fitzgerald, I allow the perp walk. I don't fight off the perp walk. You can file motions and all sorts of things and say self-surrender. But, you know, Comey's a big strapping guy. Let him take the perp walk and let them use that video with their own video crew to support their future motion to dismiss for vindictive prosecution. Here's what Michael Benari wrote on the way out of being the Eastern District of Virginia head of national security.

36:16And in the middle of a prosecution that led to 13 American service people and over to over 100 Afghanis dying. He said justice for Americans killed and injured by our enemies should not be contingent on what someone in the Department of Justice sees in their social media feed that day. And then, of course, he's embarrassed for the Department of Justice as well. Eastern District of Virginia has lost four top people, starting with Eric Siebert, who resigned rather than bring the charges against Letitia James, which I guess, or James Comey, which was his test case. And he left, and we are a lesser of a nation as a result of that.

37:02Lindsay Halligan will now put all sorts of other meat puppets and crash test dummies into these various roles. And she's going to be way underwater very, very quickly. Eastern District of Virginia judges don't play. They are used to a high level of sophisticated legal proceedings and operations. And if they think that Judge Boasberg and the D.C. judges have not been kind to them, wait till they see what the Eastern District of Virginia on espionage and terrorism cases due to Lindsay Halligan. They're going to eat her alive and for lunch. So we've got the chaos that is Eastern District, including a future challenge, I'm sure, that is coming against Lindsay Halligan being appointed the way she was appointed, because there is a very good argument.

37:51It is violative of the statute under the Vacancy Reform Act and of the Constitution. And therefore, she is improperly the U.S. attorney for the Eastern District. And just like the Nevada U.S. attorney has been bounced by a federal judge and Alina Hava, although it's up on appeal, got bounced in New Jersey. Watch for the criminal defendants to file a motion as soon as Lindsay Halligan starts touching something like a new indictment down there. Now we have what everybody's sitting in the front row ringside seats for, which is one of the first vindictive prosecution motions being brought by a target of the Trump administration.

38:33We effectively have two out there right now, one that was filed by Representative MacGyver of New Jersey that has not yet been fully litigated, but the one that is not only moving very quickly, but to my interpretation of the order by Judge Crenshaw that just got issued last night, I think the Trump administration is going to have this indictment against Abrego Garcia for human smuggling. It's not trafficking, it's smuggling. Be dismissed for vindictive prosecution, which is another version of prosecutorial misconduct and abuse. Why do I say that? Because I know the headline on a lot of mainstream media was like, discovery ordered in Abrego Garcia.

39:12Not quite. there's already been a finding by the judge that Abrego Garcia has carried his burden to show that there is at least a reasonable argument that he has been the subject of vindictive prosecution and to win on that at a hearing, which will be coming in the future, that has now been ordered because the appellate courts of the district in which this judge operates have said, you've got to do an evidentiary hearing and you've got to allow discovery, meaning sworn statements under oath, meaning depositions. Get ready, Department of Justice. Get ready, Todd Blanche, because the number one piece of evidence that Judge Crenshaw said supports both actual vindictive prosecution, which is usually so difficult to prove.

40:03You've got to have like an email or a confession and a video on Fox in which the link between the prosecution being started in retaliation for somebody asserting their rights. And the linkage is so clear from Todd Blanche that the judge says in his order, which we posted up on Legal AF Substack, that this video clip not only supports actual vindictive prosecution, but at least It does what's called – I just blew out of my head. Give me a second. Presumptive vindictive prosecution, which is a lower standard but gets the dismissal of the indictment none the same. And when you're doing presumptive, you look at what a reasonable person looking at all the facts would conclude about whether this was retaliation for the exercise of some right, the due process constitutional right of Abrego Garcia in Maryland after he got sent to the torture prison of El Salvador in front of Judge Zinnes and won twice at the Fourth Circuit, multiple times with Judge Zinnes and 9-0 at the Supreme Court.

41:15Then the indictment comes out from a traffic stop during the Biden era that, as you said, didn't even result in a ticket for driving without a license. Let's play the clip. So we always bring the receipts on Legal AF and Midas Touch. We have the actual clip that the judge was referring to that he says shifts the burden to the government now to prove that it's not vindictive prosecution. Let's roll the clip. So this had nothing to do with Judge Boesberg's decision, which I thought was, you know, over the top Supreme Court saying, you know, you got to try to facilitate the return. So you're saying tonight that that the warning of possible contempt charges against administration officials, none of that had anything to do with the investigation.

42:04No, I mean, first of all, the Supreme Court stayed any contempt proceedings by Judge Boesberg. That case has been stayed. In this case, we had a judge in Maryland tell us that, oh, no, there's not any evidence that he's a member of MS-13. You had no right to deport him. And so we what should we do as a Department of Justice? What a judge is accusing us of doing something wrong. We have an obligation to everybody, including you, to investigate it. And that's exactly what we did. And so the reason why he was returned and the facilitation that brought him back here is not a judge. It's an arrest warrant issued by a grand jury from the Middle District of Tennessee, charging him with two counts of very serious charges involving nine years of smuggling aliens all over this country, from Texas to Maryland and other states.

42:51That's why he's back. And that's why the government of El Salvador agreed to bring him back because of a federal arrest warrant. Okay. So that's the clip. And the judge says, and I read cover to cover, of course, the 16 pages or so, that, and this is something that sort of got missed by the non-legal commentators. Burden shifting is a big deal. Let's do a little teachable legal AF law school moment here. Originally, when you file the motion, the burden is on you, on your defense to prove that it's more likely than not in this sort of circumstance that your motion should be successful, that that bad thing happened to you.

43:33The burden's on you. However, here, once the movement, in this case, Abrego Garcia and his lawyers, came forward with all of the attacks on Abrego Garcia by Christy Noem, by Pam Bondi, by Tom Holman, the bribery -accepting head of the border czar, by Donald Trump, as you alluded to earlier in the segment, and Todd Blanche particularly. particularly. Once that came in, the judge says, all right, burdens on you now, you, Department of Justice, you now have to prove to me on a more likely than not standard that you didn't vindictively prosecute. And he gave them two examples, which they'll never be able to come over that hurdle.

44:22One is like, if you came up with new evidence since the traffic stop about that matter, or it was impossible to prosecute for some reason at that time. If those are the examples, this is not the reason that they manufactured an indictment against Abrego Garcia. It was to retaliate against him being on a winning streak in front of Judge Zinnis, the Fourth Circuit, and the U.S. Supreme Court 9-0 for his defending his due process rights, not to be sent illegally to El Salvador over his multiple orders to stay in this country and work here legally. So I see this as a winner. Here's what's going to happen.

45:09There's going to be a hearing next week. Judge Crenshaw is going to set the parameters for the discovery and the depositions because he says it has to be sworn testimony that he's going to set a hearing, maybe October, November. And I think that indictment gets kicked. And that's great news to LaMonica MacGyver, representative from New Jersey, Letitia James, New York attorney general, Senator Adam Schiff, it could be Lisa Cook, certainly to James Comey, about how you effectively use the addictive prosecution as a way to defeat the Trump administration.

45:42Ben Meiselas:You know, I just am looking forward to what this discovery is going to look like. That federal judge out of the middle district of Tennessee was really smart, I think, in the way the order did not really divest the discretion that the judge has. If you dismissed it right away for vindictive prosecution, what would happen? Trump regime would immediately try to appeal it and they would try to rush to the Supreme Court. By making this factual finding in a very detailed way, and then ordering discovery, the judge is well within their discretion to do that. And what I think will probably happen is you're going to see all these people like Attorney General Blanche who's made public statements.

46:32Ben Meiselas:I mean, Donald Trump's made public statements. Pam Bondi has made public statements. In what world do they think that they are not susceptible to depositions and discovery here when they're out there saying all of these things about Debrego Garcia. Now you may say, but I've never heard other attorney generals or heads of FBI or deputy attorney generals getting deposed in vindictive prosecution cases. What are these just leftist judges who are doing that? No, it's criminal actors in the executive office behaving in ways that the FBI, the DOJ, a president has never behaved before. Attorney General Merrick Garland would not be out there making statements about, set aside Merrick Garland, go back.

47:19Ben Meiselas:Gonzalez, the George W. Bush attorney, go back to any attorney general. They don't make public statements about specific cases or even general cases. They're very circumspect in their interviews. They're not out there tweeting and posting because you make yourself susceptible to discovery in situations like this. And it's supposed to be independent. And then within the independence of the DOJ, the various districts are supposed to, they all report to main justice, but they're also supposed to act locally and in the interest and semi-autonomously, although obviously linked to the Department of Justice.

48:03Ben Meiselas:I want to point this out as well, which is what Stephen Miller posted earlier, you know, and this is what Miller is saying about judges. He goes, the Democrat party has filled our legal and judicial system with radicals who protect left-wing terrorists. This is a very real and dire crisis for our Republican form of government. As our editor-in-chief, Ron Filipkowski says, this seems like incitement of violence against judges. It doesn't seem like it. It is incitement to violence against judges. And this is Trump's main guy, Stephen Miller, a weirdo, a weirdo, as as as California Governor Gavin Newsom says, the guy, you know, with, you know, the guy in the armchair watching in the hotel room is what Governor Newsom, Governor Newsom actually wrote that and posted that.

49:01Ben Meiselas:So I'm just I'm just I'm just quoting. So this stuff is weird. It's deranged. It's weak. It's not the United States of America. There are George W. Bush judges, George H.W. Bush judges, Ronald Reagan judges, Trump judges, Obama judges, Biden judges at the district court level. I would say overwhelmingly, regardless of who's appointed you, they're ruling against Donald Trump at a very high rate. 93 percent. At the circuit court level, pretty much also affirming what the district court judges are doing. Certainly a less percentage, but still at a pretty high percentage. Slightly, maybe high 80s.

49:45Ben Meiselas:In the Supreme Court, different story. And this is why you've done multiple hot takes on what's happening there, where on a procedural basis, not even on substantive and merits on a procedural basis, the Supreme Court right wing justices have been stepping in and they've been saying we're going to stay or pause the lower courts ruling because we think that there will be irreparable harm to the United States presidency. if the district courts, whatever the order was, stays in place. So all the Supreme Court's been saying, which actually has a merits impact because if Trump's able to do the unlawful thing, by the time it reaches the Supreme Court, it's often moot.

50:30Ben Meiselas:The people are deported. The people die. The funds are removed. The agency's destroyed. So the Supreme Court right-wing fascists are trying to be cute. And they're like, well, we're not ruling on the merits. We're just doing procedure, but they know effectively it neuters the case because Trump has the time to then engage in the unlawful acts because the Supreme Court's pausing what the lower courts are doing. And that's the major issue right now that we're dealing with. If the Supreme Court didn't do that on certain key cases, then there would actually be some layer of level of accountability, but we have to face it.

51:04Ben Meiselas:We have an authoritarian right-wing fascist Supreme Court run by Six lunatics, by and large. And it pains me to say that as someone who went to Georgetown Law, who used to admire the Supreme Court, who thought this was once an august body. But you see across history lessons and across the world, Supreme Courts in other countries capitulating to authoritarian regimes for whatever reason. But they are arms of it. When we come back, I want to talk about what the Supreme Court's been doing. That's a good segue way there and more. Let's take our last quick break of the show. A reminder, make sure you subscribe to Michael Popak's YouTube channel.

51:44Ben Meiselas:That's the Legal AF YouTube channel. Okay, everybody subscribe there. Subscribe to the Substack, the Legal AF Substack. And if you or anyone you know has been injured in an auto accident, a trucking accident, you've been injured by the negligence of others, victim of sexual harassment or sexual assault, call Call 877-POPOC-AF or go to thepopocfirm.com, thepopocfirm.com or call 877-POPOC-AF for a free case consultation. Or if you or someone else you know has been injured, give Popoc a call. He's got lawyers across the country here to help, already helping many, many, many illegal AF listener and watcher with thousands of legal AF watchers and listeners having called.

52:25Ben Meiselas:Again, consultation's free. then they take the case on a contingency, meaning they don't recover unless you recover. Last quick break of the show, Homestretch coming up. We'll be right back after this last quick break. You know that nostalgic feeling of sitting at the breakfast table as a kid and pouring a giant bowl of cereal that just tasted amazing? Well, Magic Spoon has reinvented that feeling with cereal and treats that bring back the flavors you love, but in a way that actually fuels your day. Every serving of Magic Spoon's high-protein cereal packs 13 grams of protein, zero sugar, and four grams of net carbs.

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55:33Ben Meiselas:Welcome back to Legal AF. Great to see everybody again. Thank you to our sponsors. Discount codes in the description below. They help us help them and they're great products and great services. So check them out. All right, Michael Popak. Let's talk. I was I was mentioning how even Trump judges are ruling against Trump at the district court level because the stuff that he's doing is blatantly illegal over and over and over again, like blatantly like you couldn't write an easier con law question for first year law students about Trump's behavior. Is this constitutional or is it not constant? Basic, basic, basic, basic stuff.

56:12Ben Meiselas:But, you know, the Supreme Court is doing what it's doing. But let's talk about this Trump judge out in Oregon, how this judge got the case to begin with and what happened this week. And then let's talk about the opening term right now for the Supreme Court. And off to a bang, you can say, Michael Popak, off to a bang. So talk to us first about Oregon. So in Oregon, there was a very quick filing by the attorney general there and others. It's a governor who's also blue to stop the National Guard from rolling into Portland and other places. Now, look, I know people on the ground in Portland, in Oregon.

56:50I'm sure you do, too. It's been generally peaceful protests. It's been I don't want to I wouldn't call it a love protest, but certainly it's not marked with the type of violence or looting or other attacks on federal offices like we saw during some of the Black Lives Matter movement, not by the actual protesters in Black Lives Matter, but by those who are trying to take advantage of it, like Antifa and things like that. That's not what's happening in Portland. People may not like some of the encampments and a little bit of a laissez-faire attitude about how the streets look, but that's not the equivalent of we have a rebellion or insurrection on our hands in Portland to allow Donald Trump to federalize the National Guard and quote-unquote clean it up.

57:42Now, we know what Donald Trump is doing because he said it out loud during that cosplay of a military brass review at Quantico last week that you and I covered extensively, including saying, well, I think we're at war and we're at war with some of these states. And I think we should use the military to go after these states and use it as a training exercise for when the military goes after the enemy. I can tell you, I mean, the ones that are still in the military were sitting there stone faced. Veterans have come out and said, what the F was that in terms of being so demeaning to the military, so demeaning to women in the military and blacks in the military, that the consequences of that speech are still reverberating and will for quite some time within the rank and file and the command structure of the military in ways that Donald Trump and Hegseth, because they're too smart by half, could never have envisioned.

58:44And you're starting to hear the reporting by news wires that are dedicated to military affairs and the life of people and soldiers and things. So you got that going on. And so right off of that, you know, he goes into Portland, threatens to go to Chicago. It originally gets assigned to a judge who set a very fast briefing schedule so fast we were talking on our own text chain about when I should cover it. Should we wait now? wait for the hearing, when's the hearing, you know, that kind of thing. But it was going to be very fast. Then the Trump administration objected to the fact that the judge was married to a Democratic congressperson.

59:25And I don't know why he, to be frank, it's because of the obedience and obeying that, unfortunately, even the Democrats do. There was no good reason for the judge to step down. But having watched, you know, Judge Mershon and his family get bashed, you know, Judge Angoran and his family get bashed, Judge Chutkin and her family get bashed, you know, Judge Zinnis and her family get bashed. You know, this judge was like, you know what? I don't we don't need to give him that talking point. So I'm going to you know, I enjoy my other brethren here in the courthouse in Portland. So I'm going to let it go back and get and go on the wheel.

1:00:07It gets assigned to a Trump appointed judge. But if the Department of Justice was celebrating and high-fiving, I think that quickly got smacked out of their face when they got into the hearing. Now, she hasn't yet ruled, but the judge was none too kind. It was very hot in her bench comments about the Trump administration and the justification that they were using to federalize the National Guard in Portland. She lives in Portland. People that live there, like you live in California and I live in Florida, we experience it in real time and not the fictitious world, made up world for political points that Donald Trump lives in.

1:00:52I lived in New York for a long time. Donald Trump calls it a scary, violent place. He's watching too many 1970s television shows or those set in the 70s in New York. It's not any of those things. And Portland certainly isn't the crime-infested, out-of-control, violent. I mean, it's almost incoherent to argue or incongruous to argue that Portlanders, is that right? I think so, are violent. I mean, they're not. He doesn't like the fact that they're massing in front of ICE buildings. But the – and this is where the rubber is going to meet the road when we get to the Supreme Court. you are allowed to take to the streets and protest.

1:01:39You are allowed to be vocal in the public square. If it crosses over into inciting and violence, then that's where the First Amendment does not come to your rescue. But short of that, we want to feel uncomfortable in the public square with comments. You want to shout back, you shout back. The only violence that's happened is clashes between pro-Trump protesters and anti-Trump protesters, but ICE hasn't been involved. And these are the facts and the evidence that was put before the judge who lives a life in Portland and recognizes that this is a tremendous amount of overreach. We haven't yet, at the time we're on the air tonight, we haven't yet got the ruling.

1:02:22It may come any moment now. It may come on Monday. But I don't think this delay is to the Trump administration's benefit. I think there's going to be yet another decision consistent with what we saw with Judge Breyer, or what I call the revenge of the senior status judges against the Trump administration. I think it's going to be more like that than what I first heard was like, holy shit, it's recursive a lot on this episode. It's a Trump appointed judge. I wonder what's going to happen now. And to your point that you made at the top of the segment, it's actually a good thing because it takes away the talking point When she rules ultimately, hopefully against him, it'll end up in the same Ninth Circuit Court of Appeals, because that covers Oregon as well for those that are not in our world, as the Judge Breyer decisions about California.

1:03:13And there's already some teachings up there that I'm sure she's going to have to figure out what's precedent and what isn't. But that wasn't a great hearing for him as he tries to continue to use the military against the American people. We still got the posse comitatus ruling. And just to touch on one point, this really is an unsung, unheralded group of judges that are hanging on by their fingertips for as long as they can to issue rulings that maybe they think other judges who are younger than they are and aren't out maybe one day going to be retiring. The service that these senior status judges are doing to stay in office during this Trump administration can't be – we can't talk enough about it.

1:04:06We can't compliment them enough. The Judge Breyer's, right? We just got an amazing ruling from Judge Young in Massachusetts, a Reagan appointee. Breyer, I think he was a Clinton appointee. Judge Royce Lamperth in D.C., another Reagan appointee. The senior status judges in their late 70s and 80s are purposely staying in to defend democracy and the rule of law and to fight against the Stephen Millers, who think it's cute because he changed the name of the Democratic Party and he used the Republican Party in a different way in his statement, which is really an incitement to violence. But the Stephen Millers and them trying, they're trying to win this in the streets and we're winning in the courts.

1:04:56And that's important. Now, just to answer two quick questions that have come up. Staying in a senior status doesn't block Donald Trump from appointing new federal judges. Once they go senior status, it opens up a new spot. But they continue to take cases and they can take as many cases as they want. Some of these senior status judges are pretty much full time. And I don't think that's by accident right now. They're like, no, I don't want to go play golf or go fishing. I want to stay here and make decisions that other judges may be too timid to make at this important junction. And one thing I want to note at 11 months into this administration is how few federal judges are being confirmed or even nominated by Donald Trump because there aren't a lot of vacancies because a lot of judges are hanging on and they're not retiring early.

1:05:43And there's no openings for him right now. So some people might be thinking, how come Legal AF and Popak and Ben don't talk a lot about this judge and that judge because it's not going on. He's had a couple of, Trump's had a couple of appellate appointments to the Third Circuit Court of Appeals, one that got on already in Bovee. But there's not, there hasn't been this filling of federal judge positions, which is a good thing, because every minute that Trump is not filling one of these positions is a good event for the rule of law. And then you switch to the Supreme Court, where you said you're right about it.

1:06:19The batting average for democracy is about 90 to 93 percent at the lower court level against Donald Trump. But at the Supreme Court, it's over 84 percent winning percentage. And to answer the question that I had to do a little research for during our break, the Supreme Court and the other federal courts are open through the shutdown through October 17th because they found money. I love when these organizations find money. They found money in their accounting from fees that are because every time we file something, we got to put a check with it. They found enough money to pay everybody through the 17th.

1:06:56And then after that, they feel like they can stay open because they're an essential service under the Anti-Deficit Act line of cases. So there will be the first Monday in October and the first Supreme Court case's oral argument of the new term.

1:07:13So that is leading us. You want to talk about the new term?

1:07:18Ben Meiselas:Let's talk about the new term there, Michael Popak. I think you broke it down great, though. So if you can talk about, I mean, we're already seeing Ketanji Brown-Jackson and others, you know, call out this shadow docket behavior and what the Supreme Court's been doing. Let me toss it back to you, Popak. And if you can, hit for us the main highlights of what people can expect and what we've seen already. Yeah, great. So we've got Ketanji Brown Jackson, who is regularly writing dissenting opinions in the shadow docket cases. Just to do a little another teachable moment here, there's two ways that cases can get up to the Supreme Court for some sort of appellate ruling.

1:08:03One is the old-fashioned way that you and I learned about in law school. I didn't even know about the shadow docket in law school. It wasn't something we talked about because none of the cases in our casebook, I had books. You probably had an iPad, but I had a book. And in that casebook, the cases came from the old-fashioned way. You do a writ of certiorari. The court looks at it. If there's four votes to consider it and bring it up to the Supreme Court, they do it. Five votes to rule in somebody's favor. and you caucus and you decide and you list the case and you delist the case. And then there's three sets of briefs, maybe more.

1:08:38Then there's amicus or friends of the court briefs. Then there's an oral argument five or six months later. And then there's deliberation. And then there's opinions being circulated the old-fashioned way. Some are the majority. Then there's the dissent, the concurrences, the statements. You put it all together and you issue the opinion. And that is supposed to speak to the American people about the jurisprudential underpinnings, the logic of the case, the law that's being made or upheld or reversed, the new law that's being made. And then it's also there to guide federal judges below the Supreme Court about the next case and what's precedent.

1:09:16Now we've got a Supreme Court who literally says out loud, and I now have a new name for them, The MAGA 6, Amy Coney Barrett Roberts and the rest, they just come out loud and say, we don't think precedent is precedent. Clarence Thomas said out loud at Catholic University, among other things, he said, no, I don't think the precedent's gospel. I don't think I have to follow it. Sometimes the precedent's wrong. Okay, I'm glad we're not doing stare decisis and applying our precedent any longer. So that's the old-fashioned way. The way that undermines the credibility of the Supreme Court, if that's even possible now, given their current reputation, and does not provide proper guidance and leaves the lower courts twisting in the wind and ends up being a procedural – what appears there's a thin veneer of it's a procedural ruling only not on the merits, but it's really on the merits, is through the shadow docket, which is an emergency.

1:10:16An emergency application that's directed to one of the justices for that particular circuit, who then decides whether to make the ruling on their own or now they have their new habit, is they just refer it over to all nine to make a decision whether they're going to stay. It's usually on a stay, block a federal judge, lower court decision, appellate court decision that's probably against Donald Trump. And by blocking that decision, even though it's not on the merits, it really is because it takes the person out of a job like the National Labor Relations Board or the FTC or it defunds a program never to be restarted until the Democrats take power or it destroys the Department of Education or federal funding overseas or whatever it does, but only for a time.

1:11:09But a year from now, we'll come back and we'll look at the merits. A year from now, there's no program. A year from now is a year of human suffering. It's a year of women not having a certain right or immigrants being denied due process or voters being denied the ability to vote for the candidate of their choice in a district of their choice. And that's why these emergency rulings end up being an actual substantive ruling because it has that kind of impact. When you say under the Fourth Amendment in a one paragraph, we're going to grant the stay. When you say that therefore becomes new precedent, it's one paragraph.

1:11:45And when you rip effectively the Fourth Amendment against illegal search and seizure out of the Constitution and you do it in one paragraph, that's a problem. And it's a problem when you do it, when you give the president the spending power of Congress and give the president in the name of Trump a pocket rescission to be able to cut federal aid overseas, even though the Congress has allocated it because it's his foreign affairs powers infringement. And you do it in a paragraph. That's a problem. And so Ketanji Brown Jackson has been religiously writing dissents about the abuse of the shadow docket to effectively make major constitutional rulings on a short circuit, on a short track, without a proper record, without proper briefing, without the deliberative process that the Supreme Court is known for, and issue these rulings that change lives and change precedent.

1:12:47And if we thought, which I sort of did at the top of this administration, that these shadow dockets, because they keep saying, well, it's not an indication of where we're going to ultimately rule. It's just on the stay. If that's not precedent, we were like, is that really precedent? Oh, yeah, because Gorsuch and Kavanaugh have gone out of their way in concurrences to chastise federal judges like Judge Young up in Massachusetts, who said, well, I mean, I understand there was a funding case about the National Institute of Health and they allowed Trump to cut off the funding. But I'm over here like Department of Education or something else.

1:13:23And I think my facts are different. So I'm going to rule differently. Oh, no, you're being disobedient. You're not following the precedent of the Supreme Court. and all the judges are like, the precedent of the Supreme Court, this post-it note, that's what you want us to follow? Then give us the jurisprudence. Give us the facts. Give us the law. Give us the logic, the radio, the gravamen, and we'll apply it to our next case. And judges are fighting back, even though, for instance, even though Judge Young got chastised, it was like taken aback that he was being called defiant at the age of 80 as a Reagan appointee.

1:13:58Judge Lampert, who just issued a ruling against Carrie Lake and Voice of America, he repeated it. He said, I can't apply this precedent. This isn't precedent, this one paragraph. And I'm not going to allow the Trump administration to abuse and exploit these one paragraph rulings. So that's the two things that we're seeing. So to answer another question, does the emergency docket and emergency application stop when the new term happens? Is that just something that happens in the middle of the term? No. Emergency dockets happen during the term. So we're going to be talking on Legal AF and then I've got a show on Legal AF YouTube channel called Unprecedented that I do weekly with Dina Dahl where we look at the Supreme Court.

1:14:44there's going to be a mixed bag. It's going to be like, well, this is the regular docket, the 60 or 70 cases that they're going to take regularly, including the first case up on the docket, which is a case about transgender athletes. And there'll be emergency applications like right behind that. This job has now become 24-7 for the United States Supreme Court, and they're not doing well. I'm talking about the MAGA-6. Justice Kennedy, who used to be, We used to call it the Kennedy court because he was the swing vote, even though he was a moderate Republican. He ended up being in the majority more than any other.

1:15:20But he retired. He didn't stay on until he died. And he's come out now and said, what are we watching with the shadow docket? He's almost embarrassed by the Supreme Court. I just did an interview with one of our contributors on Legal AF, Lisa Graves, who just wrote an amazing new book, an expose of John Roberts and how John Roberts and the other five have hijacked our Constitution, which is now up on Legal AF YouTube channel. So, look, we've got cases that go to transgender rights that are coming up in the first several weeks. We've got cases about immigration rights. This is on the regular docket.

1:15:59We've got some voting rights. We've got some Second Amendment cases that are back. You know, another one about can a restaurant ban, now we're in trouble, can a restaurant put a notice that no guns are allowed? Well, you know what's going to happen there, Ben, on the Second Amendment. They're going to take a John Wayne movie and make it into a documentary. Oh, well, there used to be old timey times. You went into a saloon, you went up to the bar, you got a shot, you had a gun on your side. Oh, here we go. Second Amendment now. A restaurant, you're going to have to have guns in restaurants and bars.

1:16:32That doesn't sound like a great idea. You have that going on. You've got the major case for me that we're watching, but I already know the result, which is going to be the destruction of Humphreys' executor, which has been a firewall to protect executive agencies created by Congress. We've got that weirdo thing where Congress creates the agency, but the executive branch needs to execute on the agency. And the Supreme Court has said, well, it doesn't matter what Congress wanted. If they turn it over to the executive branch, he can fire at will and restructure that and he can put it out of business.

1:17:08We're all like, really? Yeah. Yeah, that's it. That's what you can do. Maybe not the Federal Reserve. We'll get back to the Federal Reserve in January. There's a big hearing now on Lisa Cook in January about whether she keeps her job on the Federal Reserve. So we got on the emergency docket. So you got all that going on. And then finally, the way they framed Humphrey's executor, which was the thing that said you can't fire except for for cause if Congress says so. They've said, should we be, this is the question presented, and this is why I know it's dead. Should Humphrey's executor be able to prevent or should it be able to impinge on the executive power under Article 2?

1:17:51I'm like, oh, okay. Why don't you just make the ruling now? Why do we have to waste time with the briefing and the case? Just make the ruling and tell us you want to destroy Humphrey's executor to let Donald Trump fire everybody but maybe the Federal Reserve. But these are the cases, three, four, five oral arguments a week, and I got great news for the audience. We're going to put up on the key ones that I'll curate. The top oral arguments are going to be up on Legal AF YouTube with commentary. We'll do sort of a pregame show and postgame show as they happen. So we'll be advertising those throughout the year.

1:18:26Ben Meiselas:There you have it. He weaved. He came. He weaved. He conquered is what I wanted to say. Michael Popak, appreciate everything you do. Legal AFers, great seeing all of you. And for those listening on audio, you know, it's great spending time with you as well. Everyone do me a favor, subscribe to Michael Popak's Substack. It's called Legal AF. Legal AF Substack is booming right now. So everybody make sure you subscribe there. Everybody subscribe as well to the Legal AF YouTube channel. Let's get that channel 1 million subscribers. Really want to get that 1 million subscribers before the end of the year.

1:19:04Ben Meiselas:Also, if you or anyone you know has been injured in a car accident, auto accident, been injured as the result of the negligence of others, victim of sexual assault or sexual harassment. You want a free consultation? Call 877-POPOC-AF or go to thepopocfirm.com. That's 877-POPOC-AF or go to thepopocfirm.com. Free consultation. Don't be shy. Seriously, I mean, it's Popoc's got lawyers across the country who will take a look at it. Um, and, uh, we, we, Popox representing, uh, a ton of our listeners and thousands have called that if there's no case, they tell you there's no case. Um, but they're really handling more catastrophic injuries.

1:19:47Ben Meiselas:So serious, serious types of injuries that require like surgeries or people, you know, have died in an accident. Those are the types of cases that Popox firm is handling. Want to thank all of our sponsors for keeping this show going. We really appreciate them. And most importantly, thank you all for continuing to get the message out, for holding the line, for resisting, for staying in this fight with us from day one. We're in this together. We ain't going anywhere. We're always going to be fighting by your side. So everybody hit subscribe to this channel as well. And we'll see you next time on the next Legal AF.

1:20:19Ben Meiselas:Shout out Midas Mighty and shout out Legal AFers.

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