Legal AF Full Episode - 11/18/2025

25:30And it's really just kind of disgusting, in my opinion.

25:33Lisa Graves:So we have reached the point where we're going to take our first ad break. But first, I want to tell everyone that, again, if you haven't subscribed to the Legal AF Midas Touch MTN, Legal AF MTN YouTube channel, please do so. Also, the Legal AF Substack is something else where you can get a lot of information, including if you want to read some of the legal filings. And, of course, Midas Touch as well, which is really the thing that started this all. and we are here because we have these wonderful sponsors that have chosen us. They've chosen to sponsor us. They know what we're about and we couldn't keep the lights on without them.

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29:29Lisa Graves:We're back and let's talk about James Comey, the former Southern District of New York, United States attorney, the former director of the FBI, and I would say Donald Trump's number one arch enemy. James Comey has been indicted in the Eastern District of Virginia, also known as the Rocket Docket, as some people would say, on two counts, a false statement to Congress and obstructing congressional proceeding related to testimony in 2020. And the case is really facing some significant procedural and constitutional challenges, particularly around how the grand jury was used. There's a magistrate judge and a federal judge.

30:09Lisa Graves:And the federal judge is the judge who oversees the case. But the magistrate judge is like a judge who kind of does some of the the procedural things, you know, rules on motions, hold hearings, that sort of thing. And that's the case in most federal cases. So when we talk about the magistrate judge or the federal judge, sometimes it becomes, you know, hard to keep track of, but it's magistrate judge William Fitzpatrick and the district judge is Nakmanoff. I think I'm pronouncing that okay. Anyway, so the magistrate, so there's been a series of motions that have been made by Jim Comey's attorney, Pat Fitzgerald, who was the United States attorney in Chicago and a longtime friend of Jim Comey and also a highly respected lawyer.

30:59Lisa Graves:I mean, somebody that is like a prosecutor's prosecutor. Everybody who knows of him really respects his work. And he's done some of the most important work, legal work as a prosecutor. And he is representing Jim Comey. So some of the motions they brought, number one, is that Lindsey Halligan, who was the United States attorney who appointed, who indicted Jim Comey, was illegally appointed, that the way she was appointed was just not within the law. And if you remember, and again, we've talked about this numerous times, but just to catch everybody up in case you don't follow these things as closely as we do, there was every every president gets to pick their United States attorneys and they have to be confirmed by the Senate and or voted on by district judges.

31:52Lisa Graves:and Trump appointed Eric Siebert, who is a Republican, respected lawyer, and he was the United States attorney. When Trump said indict Jim Comey or James Comey, Eric Siebert basically said, there's no case here. We don't have probable cause to make an arrest, and certainly we can't bring this case beyond a reasonable doubt. So depending on whose version you believe, he either resigned or was fired. And Lindsey Halligan, who has no prosecutorial experience, apparently she's like an insurance lawyer or something, never been in a grand jury before, never prosecuted a case before, flies in and indicts Jim Comey right away and brings this case despite the fact that line prosecutors in the office all refused to do this case.

32:43Lisa Graves:They all said there's no case here. No one would assign their name to it. No one would get involved. And we're learning now, no one would go into the grand jury with her to indict this case. So she went in by herself, presented her first case to the grand jury, and apparently she has bungled it. She presented three charges, and the grand jury, we believe, and we don't know because this is part of the issue, we haven't seen or the judge says he hasn't seen the full grand jury transcripts. There were three charges that were voted on, and they voted on two. They rejected one. And then when they went to court later that afternoon to present it to the court, Lindsey Halligan handed up those two indictments, one that had all three and one that had two.

33:33Lisa Graves:And the judge looked at them and said, I can't reconcile these. And so there's something going on here. This is fishy, right? This doesn't make sense. And so that's being litigated. That's being litigated about what went on in the grand jury. The other thing that's being litigated is how she was appointed. Can Donald Trump just fly in someone from out of town, essentially, and appoint her as prosecutor? Well, James Comey and Letitia James, who we'll talk about next, are both claiming that her appointment was not valid, that essentially presidents get one shot. You get one nomination within 120-day period.

34:11Lisa Graves:And if the 120-day period expires, because that's what the statute says, then the way you become a United States attorney is you either get voted on by the district court judges or he has to appoint someone else, but then they can't be acting. They have to be confirmed by the Senate. So in other words, you can only be acting United States attorney for this 120-day period. So that's being litigated. But that is actually that portion of it's being litigated in another district outside of Virginia, and that's being handled by Judge Curry outside of Virginia. Why? Because the judges in Virginia are the ones who voted to install Eric Siebert when his 120 days expired.

34:55Lisa Graves:And so Eric Siebert never made it to the Senate, right, for confirmation. So the judges stepped in, and what they did was they voted that he can be a validly appointed U.S. attorney past the 120 days. And so all of those judges that voted on him are conflicted out, essentially, and it had to be transferred to another jurisdiction. So that's also going on in parallel. And then you've got, I mean, there's so many issues going on with the Comey case. And today there was a hearing on this grand jury issue. But Lisa, I've talked for too long. Why don't you take it from here on what's going on with the Comey case?

35:32Yes. I mean, this is another instance where you have someone who was acting previously as a criminal defense attorney for Donald Trump. In this instance, Although she had no experience in the field, what happened was that Lindsey Halligan met Trump down at Mar-a-Lago and became part of the team that was there assisting him as he was being investigated and charged with crimes for his retention of secret information, top secret information, information that was for four eyes only for our most sensitive information that was being stored in a bathroom in other locations of Mar-a-Lago. So here we have someone who, in essence, inserted herself into the Trump sphere, became a defense attorney for Trump, was rewarded when he was sworn in this January as an assistant secretary, staff secretary within the White House.

36:23And then when Eric Siebert said, there's no probable cause here. We can't indict. We're not going to be able to convict James Comey on the claims that have been made. Then we had Trump basically handpick Lindsay Halligan, who, as you point out, her actual experience was kind of in a small-time sort of insurance caseload, not in criminal prosecution or defense. And so then she walks in basically in the week after Trump tweeted or direct messaged Pam Bondi saying, we're running out of time to basically prosecute my enemies. And then suddenly there's Halligan ready to do it. And as you point out, she has presented materials that are irregular, that are not consistent to the court.

37:17And the hearing today was really shocking, actually. the revelations that have come out, including the fact that she, the allegation is that she presented a prejudicial, you know, vision or view of the law to the jury, the grand jury, one of the things. The second thing, as you point out, are these differences between what is the official indictment, what did they actually indict on, and what did they not when she signed her signature to things that weren't accurate, weren't true, which is also a very serious issue. You can't just sign as a prosecutor an indictment that actually wasn't the indictment that the grand jury handed down.

37:53And then on top of that, you have this situation where in the hearing today, there was a discussion of her just sharing some information with the foreman of the jury, not even the whole grand jury. And so this whole case might get kicked out. And that's just the procedural irregularities that we know of based on the discovery and investigation, in essence, or the examination just to this point of this case. But it's also the case that there could be other irregularities, because as you point out, those grand jury transcripts are typically not public. But I don't think the court has had a chance to examine the full set of those transcripts, what she actually said in full and to whom and who was there.

38:33So that's another area for potential discovery and potential examination by the court. And then on top of that, you have this extraordinary circumstance where, as you point out, under federal law, because the Senate has an advice and consent role in our Constitution, if you're going to be appointed as a top prosecutor for a jurisdiction, you have to ultimately be confirmed to that position by the United States Senate, the consent of the Senate. or you can only serve for a very limited period. And that statute's been on the books for a long time. There was a brief break in that where that provision was in essence rescinded for maybe a year or so, maybe a year or two.

39:16And then it was put back into place because if you do not have that requirement that the person who's serving as U.S. attorney either be confirmed by the Senate or approved by the court for a limited period, you could have people put into these really powerful prosecutorial roles who are completely unfit, unsuited, untrained, malicious prosecutors wielding the power of the federal government to target, to selectively prosecute people, which in my personal opinion is what we're seeing happen right now with Halligan. Now, Pam Bondi, after she signed off on Halligan supposedly being the acting U.S.

39:56attorney, which is how these documents are signed, that Halligan is signing this grand jury indictment of Comey and Letitia as if she really is the acting attorney general, because she actually could not even be the acting attorney general under U.S. law. That was unlawful on its face. Then you had two things happen. One thing was there was a claim by some right-wingers that, oh, the president can just do whatever he wants, the statute's invalid, it's unconstitutional, even though it's been followed assiduously for decades. And two, Pam Bonney then issued a statement saying, well, she's not really the U.S.

40:34attorney, she's just a special attorney, and so these are valid. But she can't necessarily just remake the grand jury process to overcome that procedural error. And in both of these cases, the Letitia James case and the Comey case, these are cases where the career prosecutors and even the previous political appointees, people who are not anti-Trump people, they were people who had, you know, in the case of Eric Siebert, he was someone who was in that acting role. They said that there was not sufficient evidence in their view, either to warrant an indictment or to secure a prosecution. And so what does that mean for ordinary people?

41:12That means that the power of law enforcement, the power to put someone in jeopardy of losing their liberty, the power to hold someone to hail them into court, have them undergo the expense of attaining their own criminal defense attorneys, have them and their family, you know, facing the severe, you know, emotional stress of facing a potential criminal trial. You know, that this is happening with all of these irregularities because the power of the United States Department of Justice is not being wielded in order to advance justice. In my opinion, it's being wielded to advance a retribution agenda by Donald Trump.

41:51And in fact, during the campaign last year and previously, he has talked about getting retribution on his enemies. And this is a prime example of the misuse of the power of the federal government to go after people that Donald Trump doesn't like or who have actually pursued him based on the existing actual law in terms of Donald Trump's behavior. And in some instances, successfully. And so this is not the first, these are not the first two we're going to see coming out of this administration. But what's happened here is an illustration of just how in some ways incompetent, but also retributive, in my view, these actions are.

42:36Lisa Graves:Yeah, which is one of the other motions that Comey's bringing, which is vindictive and selective prosecution, right? That this is a vindictive prosecution that she only went in to prosecute him and that everybody else said we're not, all the line prosecutors and the career prosecutors all said there's nothing here, we're not bringing this case. And that's, I think, also an area that's going to be potentially devastating to the case. I mean, I think it's going to, there's a very, vindictive prosecution's a very, very, very high bar. And in fact, I don't even know of any, I can't think of any in my experience as a prosecutor in 30 years.

43:14Lisa Graves:I can't think of a successful, a successful vindictive prosecution motion that was brought. because there's this presumption of regularity where you basically presume that people who work for the government are doing their jobs and they're not out to get you. You're not the boogeyman. But here, you kind of have all the evidence in plain sight, right? You've got Eric Siebert, the US attorney, resigning. You've got all the other attorneys in the office refusing to bring this case. You've got Donald Trump tweeting, or whatever it was, to truthing. to Pam Bondi, you know, that famous one, Pam, you know, Lindsay Halligan likes you, kind of thing, you know, indict Comey.

43:58Lisa Graves:I mean, it's just, it's just, it's all there. The fact that the way the grand jury was presented so sloppily, and it might even be fatally, as you point out, just because of these irregularities. I mean, what came out today in the hearing was that the full grand jury didn't even get to vote on this final, the second indictment that was finally filed. It was just presented to the foreperson. That's why the judge kept saying, where are these missing grand jury minutes? Because I don't see the grand jury minutes of the grand jury voting on this second indictment. Because remember, the first indictment, they rejected one count.

44:36Lisa Graves:And so that's why there were these two indictments. And so the one that was ultimately filed, the judge says, I don't see the minutes. And they said today, well, there aren't any minutes because it wasn't to the grand jury. It was just to the foreperson. So will that be fatal to the grand jury, to this indictment? Who knows? And then there's the vindictive prosecution. But there's so many other issues in this case that are being brought, including should the defense get to see the grand jury minutes, right? That's also being ruled on, and the Department of Justice is fighting that and asked Judge Nakmonoff to put a stake.

45:14Lisa Graves:The magistrate judge said release it to the defense. Judge Nakmonoff said we're going to brief this. Let's hold off and see, so we're waiting on that. But there's also this issue of whether attorney-client privilege material was used improperly in the grand jury because Dan Richman, who is the individual in question – I can't remember if they called it person number one or however they referred to him in the indictment. But it's this individual, Dan Richman, who both worked for the Department of Justice for a period of time and also didn't work for the Department of Justice for a period of time and was Comey's advisor as a lawyer.

45:58Lisa Graves:And this material would be privileged. And it's looking like they didn't put any procedural safeguards in place to filter out the privileged communications when he was advising Comey. and that has to be done. And again, if that was improperly used in the grand jury, that's going to be the subject of potentially this, you know, of throwing out this indictment. So there's so many issues here, including the fact that if you just look at the substance, forget all the procedural things. If you look at the substance of what's being claimed that he lied about, it was very, I think this is the weakest case I've ever seen of a perjury or a lying case.

46:39Lisa Graves:I mean, there's no way that the question that was asked was so not clearly asked and the response was not it doesn't seem like it was enough I think to bring this case beyond a reasonable doubt that's just my opinion I think this case is weak on so many grounds but especially substantively just given the facts of the case yeah really it's something where you know so as someone who has worked in the senate and then observed a lot of hearings for example in the Senate, I have seen a lot of statements that I think would be violations of 18 U.S.C. 1001, which is the provision about lying, you know, lying to Congress or lying to the lying under oath.

47:21And and they're often not prosecuted. It is when I first started working in the Senate, I was sort of shocked, in part because there had previously been an effort to impeach a president over lying under oath that was unsuccessful ultimately in the in the Senate trial. But the question on the substance, I really hear what you're saying, Karen, and I agree with you. My opinion is that it's an extraordinarily weak case against James Comey. And also, like you said, the notion of vindictive prosecution is typically super hard to prove, except for when you have evidence like this, because there should be no presumption of regularity.

48:01A presumption is something that can be rebutted. And I think it has been fully rebutted by the evidence we've seen from Trump's own mouth or tweets or truths or whatever they want to call these, you know, these utterances of his. Maybe they're excited.

48:16Lisa Graves:I call them screeds. Screeds. You know, so there's that. But also, I think that when you look at the cases as they've been described in both of these instances, there it looks as though there's substantial, you know, substantial reasons to discount the assertions being made by the government and that the information has been presented in a very slanted way, including Letitia James and the mortgage and, you know, her niece staying at the house that she purchased. Like, it really is, it really is, it's like strung together with like string and spit and scotch tape or something. It's just, these are very weak charges, but that doesn't mean that they're not serious in the sense of the stress on the people who are being targeted by Trump and his minions.

49:00And I also think that this is a scenario where if this is allowed to continue, like if the courts do not say, you know, push these back, then I think it's going to get worse. There are going to be more and more of these types of activities. But for Comey, because there was a statute of limitations deadline, a clock was ticking. If the indictment is, you know, is invalid, then I don't think they get a chance to go again and try to re-indictment on the basis of the assertions that Halligan made to perhaps the four person only.

49:35Lisa Graves:Yeah, that's, we'll see what happens. I mean, part of me wants this to go to a jury and have 12 people agree that there is no case here and acquit him just so that he, I mean, this is the Eastern District of Virginia. You know, this is not a bright blue state, if you will. And I'd love to just see that because that that will that would really take the thunder out of Trump, who, of course, if this gets dismissed on a he'll call it a technicality from a liberal judge kind of thing, you know, like he like he attacks judges. But I don't see this even getting to a jury because it has so many, so many issues.

50:11Lisa Graves:So we'll see. Pivoting to Letitia James, the New York Attorney General, who is, and the reason we're grouping them together is both because there is a lot going on there as well, or stuff going on there as well, but also because it's part of the same vindictive prosecution that is happening in the Eastern District of Virginia. Same prosecutor, same court, same district court area, and same kind of retribution that Trump is bringing against his enemies. And Letitia James was indicted on one count of bank fraud and one count of making false statements to a financial institution, as you said, because she characterized, they claim, the allegations are that she misrepresented the use of a property in Norfolk, Virginia.

51:01Lisa Graves:that she said it was a second home, not an investment rental property on her loan applications. And so therefore she got slightly more favorable terms and saved, I think, a total of$18 ,000 over the course of the lifespan of this mortgage. I'm thinking to myself, does everyone, I mean, do you really know the difference between a second home and an investment property? You know, it can be both, but putting that aside for a minute, you know, but Attorney General James, she filed a motion last week and asked the court to dismiss the case with prejudice so it can't be brought again on the grounds of vindictive prosecution, similar to Jim Comey, and saying it was politically motivated and that it was stemming, you know, it was a retribution against her because she prosecuted or she brought the civil case the civil fraud case against trump when um that he went to trial here in new york that we all got to cover um extensively and um but a filing that just came out by james's defense team revealed that senior investigators at fannie mae found that there was no evidence of mortgage fraud by her in their internal review.

52:19Lisa Graves:And so it really, A, not only raises the question of do they have enough evidence, but also this is Brady material, right? Like that's going to come out. That's like evidence. Brady material is basically evidence that tends to exculpate a defendant that shows you didn't do it. And the fact that senior fraud investigators at Fannie Mae believe there was no clear evidence that she committed mortgage fraud. And this legal filing basically says that there's certainly, that Fannie Mae said that the case was quote, certainly not clear and convincing evidence of fraud. Clear and convincing evidence is a legal standard that's a much lower threshold than beyond a reasonable doubt, which is what criminal prosecutions require.

53:11Lisa Graves:And I just reminded myself of something, by the way, that I want to say in the Comey case, the grand jury minutes. And I don't mean to pivot from James, but this is too important. It's very similar. Lindsay Halligan in the grand jury said in the Comey case two things that are actually wrong. She basically said that Jim Comey will testify in his own defense and he can tell you, you know, basically said that he will tell you what happened or deny what happened, which is not true. The Fifth Amendment protects people in criminal cases and he doesn't have to testify. The burdens solely rest with the prosecution.

53:48Lisa Graves:And she also, you know, she essentially shifted the burden and the prosecution has this burden beyond a reasonable doubt. The defense has no burden and the defense has a Fifth Amendment right not to testify, actually, and doesn't have to say anything. So she misinformed them of that. And she also said, oh, well, we have other evidence, you know, or you can consider other evidence outside what's been presented to you in the grand jury, also inappropriate. And I think it's going to get dismissed for those reasons alone. But back to James, again, this is a different standard. Beyond a reasonable doubt is a very, very high burden and high standard.

54:24Lisa Graves:And if Fannie Mae didn't even think they had the clear and convincing standard, I don't know how they're going to get beyond a reasonable doubt. So that's just crazy stuff going on in the James case. Yes, that's exactly right. And, you know, I think I'm so glad that you raised that point about the Comey situation, because that's the prosecutor can't can't basically shift the burden to the defendant and suggest to the grand jury that, oh, well, he'll have a chance to, you know, prove otherwise or that he that he'll testify, because like you said, he's not required to testify at all. The burden is entirely 100 % on the government.

55:01And similarly, the other point you made as well about the substantive legal standard, but for James, that Brady material, for people who don't follow criminal procedure as closely, that's a situation where under both the federal rules of criminal procedure and the case law related to it, if there's information that exonerates a person or could be seen as exculpatory to that person, the government is absolutely compelled to give that over to the defendant, to the person who's been charged with a crime. And that becomes material that then can be introduced to the jury to have a basis for finding of not guilty, for saying that they did not prove this case beyond a reasonable doubt.

55:47And here, like you said, clearing convincing is a lower standard. And those seasoned investigators within Fannie Mae said there just was not sufficient evidence to even reach that threshold. And when you look at the reporting around this case, what you see is that perhaps a couple times she rented out, you know, or some very limited period she rented out the home, but that her niece was staying there for, you know, some significant period. So it's not even clear that she was using it as some sort of investment property versus a family property that occasionally got rented out. And like you point out, she's attested in essence, or at least the defense is, the assertion is that the paper that the indictment is hinging on wasn't even a paper that was submitted to get approval of the loan.

56:36It was, you know, a secondary set of documents. And so it wasn't it's not even clear that the bank even relied on that, you know, one piece of paper. So, you know, all of this is super flimsy and it's it's at least it appears super flimsy to me and I think to a lot of other to a lot of other people. But again, goes to how much the people who are loyalists to Trump are grasping at straws, how desperate they are to appease him, to use the criminal prosecution power in this way to target people who were just doing their jobs. In the case of Letitia James, you know, to be pursuing what was actually an enormous, enormous amount of fraud dollar wise in terms of Trump's actual misrepresentation of the size of the properties that he was speaking with the banks about.

57:25I mean, those were material, material misrepresentations over many years of substantial amounts, amounts of money that he was doing purposely. And in fact, in some of the material that was introduced in that trial, and you may know this better than me from following it on a more daily basis, it was an extraordinary, Trump benefited enormously from those misrepresentations, those material misrepresentations by the Trump organization, and that were consistent, at least as the evidence was presented to the jury in that case, with his whole approach to basically exaggerating, exaggerating, exaggerating.

58:01And you can't do that, you know, under federal law. And so, or state, pardon me, under state law as well as under federal law. And so the jury did find against Donald Trump, did find him liable. And obviously that case has been contested on appeal. But Letitia James, you know, was not pursuing a, you know, a picayune, you know, penny ante sort of suit of, you know, whatever the amount of rent she may have received from Airbnb or something. You know, whatever. This was a substantial, a substantial fraud that Trump was initially found to have committed in order to have substantial gain for himself.

58:46And now we're at the point in this American society where we have a president who has been and was properly indicted by grand juries, federal grand juries and state grand juries based on evidence that he committed crimes or violated, you know, state or federal crimes. And and now he wants to get vengeance on those public officials who were just doing their job.

59:13Lisa Graves:Yeah, that case in front of Judge Arthur Angoran was a bench trial here in New York that we followed very closely. And you are 100 % right, Lisa. The evidence there was just so astounding of the amount of fraud, not just dollar amount, but the number of times these misrepresentations happened about what property, what it is to get. I mean, the same property would have different values depending if you're trying to get a loan or a tax rate, right? If you're trying to get a loan, you're going to inflate the value. If you're going to try to get, you know, you're going to decrease the value if you want to pay lower taxes.

59:53Lisa Graves:I mean, it was just black and white. And that was a case that there was so much there. And that was a really, really intense trial that we followed pretty closely here in New York. But this is an$18 ,000 checking the wrong box, potentially, even if she checked the wrong box. But the fact that you've got senior people saying there's nothing there and he's bringing it anyway. Again, another perfect example of vindictive prosecution and a substantively very weak case. So we'll see. We're going to keep people posted on both of these cases because a lot's going on and going on in real time. And the reason one of the reasons are going on, this is all going on in real time is because the Eastern District of Virginia is a rocket docket.

1:00:38Lisa Graves:And they both said they want trials in January. So they're on this really accelerated schedule. So we'll keep everybody posted on what's going on. And we're going to take our second ad break, our last ad break. Again, our amazing sponsors. And we couldn't do this without them and you, the Midas Touch and Legal AF community, who we are just so incredibly lucky that there are people who come week after week, day after day to the Midas Touch network to listen to what we have to say. And the more times you watch us and the more times you listen to us, the various algorithms go up and that helps us.

1:01:16Lisa Graves:And it helps us get sponsors who help us keep the lights on. So we appreciate all the support and all the engagement. And it's frankly why we do what we do. So we'll take our next quick ad break before we talk about what's going on in Texas. You're like me when the holidays are coming and you have to go to work and then go to a party. And you're like, what do I do? How do I put my makeup on? And getting ready always feels like such a hassle and carrying your makeup with you. You don't want to look too heavy, et cetera. And there's this brand new product that I love. It's called Jones Road. And here we have it.

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1:05:42Lisa Graves:We're back and we're going to talk about a new ruling in Texas blocking congressional maps by a Trump judge, nonetheless, less who blocked these congressional maps. So very, very interesting stuff going on. So look, there's this kind of gambit going on across the country of redistricting. California just had a proposition that passed in order to redistrict and get more congressional seats. And that came largely as a result of what Texas did. And Texas basically redistricted, But you're not allowed to do it on racial grounds, or that can't be the primary motivator. And there's this statue, the little pesky statue called the Voting Rights Act that essentially lays that out.

1:06:29Lisa Graves:And states generally have a lot of leeway to decide the time, place, and manner of elections and how it goes on, because that's what it says in the Constitution, right, in federal elections. And so they get to set up their congressional districts and this term gerrymandering. And, you know, there's all sorts of these maps that they draw are really crazy and unfair in so many ways. They're politically motivated. They are done in ways, each party does it in ways to gain an advantage. But all of that's okay, believe it or not. You're allowed to do that. What you're not allowed to do is make the primary motivation be race.

1:07:10Lisa Graves:And on November 18th, which was yesterday, a three-judge panel in El Paso, Texas, issued a preliminary injunction. In other words, blocking this Texas redistricting map that they were going to get as many as five new seats, I believe. It was passed in mid-2025 by the Texas legislature, and the governor, Greg Abbott, signed it in August. And it was explicitly designed to give Republicans as many as five extra House seats in the midterm elections coming up. And the court found substantial evidence that the map was racially gerrymandered, meaning the state lawmakers manipulated these district lines with race as a predominant factor, not just partisanship.

1:07:53Lisa Graves:In my mind, it's all unfair, but I'm telling you what the law is. I don't think you should be able to do it for partisanship reasons either. I think it should actually be fair and represent people, but that's for another day. So basically their decision emphasized that politics played a role, but it was much more than just politics, and that the court then therefore has to use the 2021 map. Now, Texas usually does this every 10 years when they do the census, which makes sense, right? Because you do a census, then you see what the state is made up of, and you make changes as appropriate. But they did this midstream, five years out, to try to gain more seats during the midterms, because they're trying to maintain their hold in the House.

1:08:39Lisa Graves:And so it's gonna be interesting what's going to happen next, because it's unclear. We're in the middle of this 30-day period in Texas where candidates have to declare their candidacy when they're running for office. And some people might not know which seat they're trying to go for. And is it the 2021 map? Is it the 2025 map? And so everything is chaotic there. And I learned something today, and maybe you know more about this, Lisa, but this was not handled by a district court. Because it's an election voting rights thing, it was handled by a three judge panel made up of two district court judges and one appellate judge, and then it's going to go to the Supreme Court after that.

1:09:29Lisa Graves:So I found this to be sort of an interesting situation we find ourselves in, especially in Texas. What are your thoughts on this? Well, this is, it is a good development from the standpoint of representation, but we saw a response immediately from Pam Bondi saying that they're confident that they're going to prevail before the Supreme Court because the Roberts Court has acted with such hostility toward the Voting Rights Act. In fact, I have a whole chapter on voting rights in my book, and I'm going to show my book for a second if you'll bear with me. I have a whole chapter on it because voting in America has inextricably been tied to race and, in fact, limiting the power of Black voters in particular and trying to dilute the votes of of black Americans.

1:10:17That's the origin obviously of the Voting Rights Act, that landmark law that was passed in 1965 based on the blood, sweat, and tears of a multi-decade movement to secure what the 14th and ultimately the 15th Amendment sought to make real, which was the right of black Americans to vote and to not have their votes diminished, not have their votes disregarded, not be able to register to vote, not have them counted. And so this question of how are these maps created, are they created in a way that is intended to dilute the vote of minorities where you have a white legislature trying to use its power to dilute minority representation, that's at the heart of what the Voting Rights Act was designed to prevent and what this section, Section 2 of the Voting Rights Act was designed to prevent.

1:11:06And in fact, this section, Section 2, that is the section that governs these claims about maps is the very section that John Roberts targeted when he was first in the Reagan administration as a special assistant to the attorney general trying to block Congress back then from considering the effect of changes in maps on representation. And so the Supreme Court right now, separate from this Texas case, is considering basically ruling the Voting Rights Act unconstitutional in places where the statute and the case law has said that you have to ensure that there's minority representation, a minority majority district in a particular state, particularly in these southern states, in order to make sure that people's votes are not diluted, that Black Americans' votes are not diluted and also by extension that Latino votes are not diluted by a white majority cutting up the maps, packing and cracking these districts in order to maximize the white representation in essence and limit the power of people in racial communities to be represented in our American legislature.

1:12:23Because as you know, America is a republic, a democratic republic, and we're supposed to have representative government. I agree with you on that broader point. I think maps should be proportionate. We should not have situations like in North Carolina where you have a nearly 50-50 state when it comes to statewide races, like for the governor or the attorney general. And yet the legislature has been gerrymandered in such a way that they can have like a super majority of the representations to Congress. And we're seeing that right now. Similarly, in the case that the Supreme Court is hearing in the Calais case involving Louisiana, where one-third of the population in Louisiana is Black, and yet the white legislature cut the jurisdictions to have five white majority districts and one Black majority district.

1:13:11And that's the case that's currently being considered. Sorry about that. But the Texas case, like you said, these three judge panels, which are how the law works in the voting rights cases to evaluate a change in the map. This is so it's such an important decision. And I think it's the right decision on the merits on the law based on the evidence as it's been described. But the fact is, is that it's only recently that states have been involved in these irregular mid, you know, mid decade redistricting. As you point out, for most of American history, when you have a census, then you have a map redrawing and then those maps hold until the next census where the maps are redrawn based on changes in population.

1:13:53But here you have a president, Donald Trump, who is so worried about losing that majority control in the House of Representatives that he's been trying to direct Republican members of his party to change the maps midstream, mid decade in order to limit Democratic representation, limit and enhance the ability of him to remain in control of the House of Representatives. and Texas took this action, as you point out, and California's proposition was only as a response. California never would have put forward that proposition if Texas had not tried to basically pre-rig the 2026 midterms. And Trump has asked other states to do the same, Missouri, North Carolina, Ohio, and other places.

1:14:46And so this is extraordinary. We already have a U.S. House of Representatives where in the 2022 election, those midterms, when Biden was president, this Supreme Court already allowed maps in Alabama that were in violation of the Voting Rights Act to go forward because they said it was too close to the election to have corrected maps. This was in February of 2022. And so the only reason the Republicans ended up with a majority that stopped really had the effect of stopping that January 6 investigation and stopping Biden's legislative agenda is because the court had already allowed that to happen.

1:15:25Then they subsequently said, no, no, no, Alabama, for the next election, you're going to have to redraw the maps to be consistent with the Voting Rights Act. And then they decided now to take up this case to say, well, maybe we're not going to even apply the Voting Rights Act. And in essence, I just want to I don't want to miss this point because this was a two to one decision in Texas. It's going to go up to the Supreme Court. As you point out, people are registering to run for office right now. Now the deadline I think is December 9th. So it's like two weeks away, two and a half weeks away to register for where you're going to run.

1:15:58And then the primaries are in the spring. But the House Minority Leader in Texas, Gene Wu, he represents Houston. And this is one of the districts that has been targeted by the Republicans in ways to try to crack minority voting. He said, and it's just so well put, he said a federal court just stopped one of the most brazen attempts to steal our democracy that Texas has ever seen. And he goes on to say, Greg Abbott and his Republican cronies tried to silence Texans' voices to placate Donald Trump, but now they've delivered him absolutely nothing because the way they did these maps, as the two-to-one judge panel found, was racially based, was focused on a racial gerrymander, which still, under federal law, and I would say under the Constitution, is illegal.

1:16:52Lisa Graves:There was a dissenter that had some pretty wild and crazy dissenting language in this case. Jerry Smith is his name, Judge Jerry Smith. And this is Kyle Chaney posted these on X from the dissent. And basically, the main winners from Judge Brown's opinion, which is the main opinion here that found this to be illegal. It says, the main winners from Judge Brown's opinion are George Soros and Gavin Newsom. The obvious losers are the people of Texas and the rule of law. I dissent. In the interest of time, this dissent is admittedly disjointed. Usually in dissenting from an opinion of this length, I would spend more days refining and reorganizing the dissent for purposes of impact and reliability, but that approach is not reasonably possible here because these two judges have not allowed it.

1:17:47Lisa Graves:The resulting dissent is far from a literary masterpiece. If, however, there were a Nobel Prize for fiction, Judge Brown's opinion would be a prime candidate. Judge Brown could have saved himself and the readers a lot of time and effort by merely stating the following, I just don't like what the legislature did here. It was unnecessary, and it seems unfair to disadvantaged voters. I need to step in to make sure wiser heads prevail over the nakedly partisan. I mean, it goes on and on. And he says, in 37 years as a federal judge, I've served on hundreds of three judge panels. This is the most blatant exercise of judicial activism I've ever witnessed.

1:18:22Lisa Graves:There's an old joke. What's the difference between God and a federal district judge? Answer, God doesn't think he's a federal judge or a different version of that joke. An angel rushes to the head of the heavenly host and says, we have a problem. God has delusions of grandeur. The head angel calmly replies, what makes you say that? And the first angel whispers, he's wearing his robe and keeps imagining he's a federal judge. Only this time it isn't funny. Now, I have never read a dissent that has anything remotely like that in it or that basically says I'm being rushed and so I'm disorganized. Just astounding what's going on.

1:18:58Lisa Graves:I mean, it's like the world that I have practiced in in the last 35 years and the world that exists right now is just I don't recognize it in terms of the legal world. I'll tell you that. It's a very, very odd dissent with some incredibly colorful language. So this will go to the Supreme Court. Yeah, I mean, Jerry Smith has been on the bench for a long time, but I have never read an assent like that. It's almost like someone dictated it over a drink. It really is sort of a reckless, joke-filled opinion. And he names George Soros and Gavin Newsom? Yeah. Yeah. I mean, and then he has the audacity to claim that it's the it's the majority that is off the rails.

1:19:42You know, the fact is, is that, you know, this it just shows in some ways how much some of the some of the MAGA world or Republicans who become more of the MAGA world are just steeped in this disinformation sphere. The idea that George Soros would be named at all in a dissent in this case involving the rights of Texans to make sure that they have representation is extraordinary. The fact that he would try to claim that this is some sort of victory for Newsom. It's absurd. This opinion, the majority opinion of this case was written by a judge appointed to the bench by Donald Trump himself.

1:20:22Lisa Graves:Exactly. You know, so so like this idea and the politicization of it that that Judge Smith injects in his dissent, it is another sign of the way in which Donald Trump has fractured not just American society, but also the American judiciary and some members of the judiciary. in essence to act like they have got to be fighting some sort of cultural war rather than actually applying the law. And when you look at what happened in Texas, it's not just that this was a case, you know, crying out because it's unfair. It's that it violated in the determination, the factual and legal determination of the two judges in that majority, it violated longstanding existing law to construct these maps this way.

1:21:07And the fact is, is that this is a real issue. And if this court, the U.S. Supreme Court, ultimately sides with the Texas legislature and puts these maps back in place, and if this Supreme Court ultimately strikes down as unconstitutional or blocks the ability of judges to enforce the limitations on dilution of the vote, we're going to see not just five seats in Texas, But we could see additional seats in Texas being remapped that could also reduce the representation of Latinos in Texas, despite the growing Latino population in that state. And in fact, there's a recent analysis by Fair Maps Action that talks about how if the U.S.

1:21:55Supreme Court were to strike down the Voting Rights Act protections that have long existed against the kind of vote dilution that was found in this case in Texas, that the Republicans could gain at least 19 seats and possibly more, which would secure the Republican Party, in essence, a near permanent majority in the United States House of Representatives. despite actually representing a minority of American people, because the effect of these sort of these games with maps is to allow an inappropriate, a illegal, illegitimate sort of minority rule in a country where we're supposed to be defined by, in part, by having majority rule along with the protections of the Bill of Rights.

1:22:42And so the stakes could not be higher. The fact is, is that most of the time in recent history, the past few decades, during midterm elections, the party in power, the party in the presidency, usually loses some seats because people are dissatisfied with the status quo. And so usually there's a gain by the opposing party in the midterms. Not always, but usually that happens. And Trump is trying to fight off those headwinds. In addition to the fact that he himself is at his most unpopular in all the recent polling because his policies have been so extreme and erratic and disruptive. And in fact, I would say, in my opinion, his policies have also been, you know, unconstitutional and in violation of a number of statutes and regulations and rules in all sorts of places in ways that have just been really horrifying and in fact terrifying for a lot of people in America to see the rule of law so disregarded in so many ways by this president.

1:23:40So he really is fighting an uphill battle to try to bend and break the rules with the help of some of these legislatures in order to preserve a Congress that won't investigate him, that will not be a check in the system of checks and balances against him. And my personal view is, boy, we need checks and balances more than ever, especially because this Roberts court, as I write in my book, John Roberts orchestrated the counter constitutional grant of immunity from criminal prosecution, but didn't just, in essence, pardon Trump retroactively, but swept him back into power and has basically empowered him to believe that there are almost no limits on his power.

1:24:25And this power grab, this effort to get Texas to rewrite its maps in 2025, halfway through the decade, just for his power, that rigging is just so dangerous to the fundamental functioning of our democracy.

1:24:40Lisa Graves:Well, the entire MAGA majority seems to just be doing Trump's bidding for him and essentially everything he's trying to do, they're greenlighting, it seems. So we do need those checks more than ever because we certainly don't have them. Yeah, that's my view. That's my opinion, too. Yeah. All right. Well, Lisa, we've reached the end of another episode of the midweek edition of Legal AF. I can't thank you enough for joining and for giving your perspective. It's really interesting to hear what you're saying about Roberts. And I look forward to reading your book because I remember when he was first appointed, I actually went to the Supreme Court and watched him and I thought, oh, he's kind of, he just didn't seem this way.

1:25:26Lisa Graves:He seemed like respectable and respectful. and I had hope for him. And this is just so disappointing where we are today. So the Supreme Court's lost a lot of legitimacy amongst a lot of people. And I think, I don't know how we come back from this. So who knows? Maybe they'll increase the size of the court, right? I mean, it's - There are a lot of reforms. There are a lot of reforms that I think we have to have on the table to talk about what's happened to this court and how it's lost its way. Yeah, it really has lost its way. But you know who hasn't lost its way? The American people. I really have faith in people.

1:26:03The more I just I see what's happening all across the country where people are coming together and whether it's through protests or voting or making their voices heard and being part of this amazing community.

1:26:16Lisa Graves:And we're all here together and we got to keep fighting because this isn't going to be the way it's going to be forever. It can't be. So Lisa, thank you. Thank you. Thank you for joining. And thank you again, everybody for joining us this week. And we look forward to seeing you on Saturday with Ben Mizellis and Michael Popok. And again with me and Michael Popok next Wednesday. Thank you so much, everybody. Have a great night.

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1:27:06Lisa Graves:Upfront payment of$45 for three-month plan equivalent to$15 per month required. Intro rate first three months only, then full price plan options available. Taxes and fees extra. Default terms at mintmobile.com. Ryan Reynolds here from Mint Mobile. I don't know if you knew this, but anyone can get the same premium wireless for$15 a month plan that I've been enjoying. It's not just for celebrities. So do like I did and have one of your assistant's assistants switch you to Mint Mobile today. I'm told it's super easy to do at mintmobile.com slash switch. Upfront payment of$45 for three month plan equivalent to$15 per month required.

1:27:41Lisa Graves:Intro rate first three months only, then full price plan options available. Taxes and fees extra. Default terms at mintmobile.com.