Legal AF Full Episode - 11/8/2025

27:48Michael Popok:So besides the 10 videos a day, 12 different commentators, including myself, I usually do the first four videos. And then I start working in people like Adam Klasfeld, All Rise News, Civil Action, Court Accountability Action, Court of History. We're bringing on the ACLU. We have Democracy Forward. I think you're really going to enjoy everything we do there. We also have Legal AF Substack, whole nother universe, and a great way to support the show. For$6.77 a month, you become a paid member. You'll get exclusive content. You'll get the court filings that we post. You'll get the live videos that we do every day to keep you updated.

28:28Michael Popok:Legal AF Subsec is the way to become a full card-carrying member of Legal AF. Of course, we've got the Legal AF Podcast more than five years in the making, regularly in the top 20 of podcasts, regardless of their genre, on YouTube's weekly rankings. That's on you. That's because of you. We could use some more help on the audio version to keep us up in the top 50 under news for Apple Pod. Leave a comment in a five star review and all of that. These are the way to help the show. In addition, we've got our pro-democracy sponsors and here they are. Never wake up sweaty, freezing or just plain uncomfortable.

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32:09Head to veracityselfcare.com and use code LEGALAF for up to 45 % off your order. Once again, that's veracityselfcare.com. for up to 45 % off. Use promo code LEGALAF so they know I sent you. Welcome back. You're on LEGALAF, the podcast. I am Michael Popak.

32:28Michael Popok:I'm short one host today. Ben Mycelis is traveling with his family. Let's thank you to our pro-democracy sponsors and those that support LEGALAF, the YouTube channel, and LEGALAF, the Substack, along with our podcast. All right. Now, a lot of people woke up confused in our audience. And I like to pride myself in making sure that people aren't confused. I want them to at least understand without smoke or sunshine what has just happened with the snap payments and Ketanji Brown Jackson having entered a temporary stay. Because I saw a lot of chatter, a lot of chatter out there about how could she and why would she block?

33:06And she's undermining the poor and it's cold comfort to the poor and the impoverished. And I understand and I can empathize with all those feelings.

33:16Michael Popok:That's not quite what happened. And I think it's actually a smart move by Ketanji Brown Jackson. Let me explain it to you. So what happened is after two temporary restraining orders entered by Judge McConnell, the chief judge in Rhode Island, Trump, even though on one hand his Department of Justice was taking appeals and he was saying in social media that he was not going to feed the poor. Is this like shocking that it took a series of lawsuits to get Donald Trump to care about Americans? It's just fascinating. But even though he was saying all of that, all of that in the cyberspace, in real life, they were paying out the money.

34:00So I was happy to report at some point yesterday that$5 billion of the$8 billion total payment for November hit the electronic cards, the debit cards of 42 million Americans, giving them at least a

34:16Michael Popok:little bit more than half of what they were looking for. I mean, it's still 37 % short, and I wouldn't want to be 37 % short, but at least gives them something they can go to the supermarket now and take, you know, their 200 of their 350 or whatever it is and go shopping while we continue to fight over the$3 billion for the poor. And which is immoral. So that happened. Donald Trump then runs to the First Circuit, as we thought he would, asking the First Circuit, and he asked the trial court judge the same thing, to enter a stay to give them time to brief whether they should enter a preliminary injunction or a stay of the order, forcing them to pay the remaining$3 billion, whether they wanted a short stay in order to argue for a longer stay, I guess is the right way to put it.

35:13Michael Popok:And the First Circuit and Judge McConnell denied it, which means they were going to go to the Supreme Court. Now, they did not go to the Supreme Court on what we classically refer to as shadow or what we refer to as a classic shadow docket emergency injunction or emergency application. They didn't do that. they went and asked for the same thing that they asked the First Circuit for, which was a temporary administrative stay, the lowest level of stay, to give them time to brief the issue, to give First Circuit time to consider the issue. And they didn't say otherwise they're going to bring an emergency appeal.

35:53Michael Popok:They said or them filing a writ of certiorari, which is code word for a regular traditional appeal. So they were signaling how they planned to appeal. We're going to try to get a stay from the First Circuit. If we come back, we're not sure we're going to do an emergency application. And that sends a chill down our spine every time we hear emergency application, because that is generally going Donald Trump's way 86 % of the time at the Supreme Court with the MAGA 6. He didn't ask for that. I read it carefully. I read it several times. You can read it for yourself. It's up in Legal AF Substack. John Sauer, the Solicitor General for Trump, who's been his right-hand person, right-hand man for criminal appeals forever since he was a criminal defendant and convicted felon, he didn't ask for that.

36:49Michael Popok:So Ketanji Brown Jackson gets it. Why? Because she's the associate justice assigned to the First Circuit. And when you get a request for administrative stay, a hold the ring for a short period of time, hours or days, she's the first stop on the train for that circuit. And she issued her administrative stay for a short amount of time. And she said it to allow the First Circuit with quick dispatch to make its ruling, like in the next 24, 48 hours. Like I plan on updating you as early as tomorrow that the First Circuit has ruled on this issue already to give them time. And once they rule, then she'll sit back and watch to see in the chess match, this perverse chess match that's harming poor people, what Trump does next.

37:41Michael Popok:She also has eyes and ears. She can read. She knows that five out of the eight billion dollars already got released. And the fight now is over the remaining three billion, which Donald Trump doesn't want to have to pay. He's already undermined his positions in front of the Supreme Court, Trump has, because he paid the five billion already. It's hard for him to say, as in the other funding cases where the Supreme Court sided with him about cutting funding, where he didn't pay anything. Here he paid five out of eight, and now he's just fighting over the last three, which matters to one group, the impoverished, the below-poverty line Americans, and not so much to the government, except they say, well, we won't get the money back.

38:22Michael Popok:You know, that's a ridiculous attempt through make-weight to balance the equities here. And she sees that too. So she had to make a decision. She could have referred it to the full nine, but that would have given the MAGA six time to coalesce around opposition. She took it for herself. Smart. Let the first make their decision. Then see what Donald Trump does next. He's under tremendous political pressure. I outlined it for you at the top of this podcast tonight. He's under tremendous political pressure to stop abusing and exploiting the poor. Americans in red states, especially, or included. So he might just pay the$3 billion like he paid the$5 billion.

39:08Remember, he told Judge McConnell that he couldn't make even the$5 billion in payments because it was too complicated and difficult. They had to make tables and graphs and charts. They couldn't just do the math and send the money to the states and tell them just to whack off 37%. And then they made the payments within hours. So she doesn't believe them. So yes, it's outside the record, but she can read. So I know a lot of people said, no, make him pay the$3 billion. But if she denied it, they would have just filed an emergency appeal and asked for full review. She would have then been forced to send it, as is the custom of the Supreme Court.

39:53Now it's on the shadow docket. She's trying to avoid the shadow docket. She's trying to avoid all those funding decisions that the Supreme Court made in Donald Trump's favor over the spring and summer. and she did it deftly. So everybody was happy about Ketanji Brown-Jackson and they said she's brilliant and she's the conscience of the Supreme Court when she ruled in favor of transgender Americans and issued a scathing dissent when the Trump administration got the Supreme Court six to three this week also to force transgender people to mark on their passports gender incongruous markings, meaning their identity is female, but they're having to mark it as male because that was the gender assigned at birth.

40:36And now they think she's lost her mind and she's suddenly dumbed down?

40:41Michael Popok:No, let's give her more credit than that. And I think hopefully now I've explained why she did it. She actually boxed out the MAGA 6. She boxed out the Trump administration. She put pressure on the Trump administration politically to release the$3 billion. She put pressure on the First Circuit to issue its ruling. she gave the Heisman to Donald Trump on a delay to let political pressure build on him. And then if they do an emergency injunction or emergency application, which they said they weren't going to do as of right now, then she'll deal with that in the next 48 hours. That's the story about how we got here with Ketanji Brown-Jackson.

41:19Michael Popok:And that's why I was not up in arms. Although my initial knee-jerk reaction was like, no, not her we even had like a text chain in the Midas world we're like oh no the optics yeah I get it but once you get beneath the optics and you start reading which is what I think you uh support us to do here with our honest commentary it became a lot more apparent what she was doing she's playing a five level you know one of those Star Star Trek chess games that that Spock used to play on four boards. And the rest of us are playing like Parcheesi. So that's where we are with that. I wanted to lead off with Snap.

41:58Michael Popok:Then we've got, let me turn to the tariffs for a minute. And I spotted something, and it's gotten some traction now, I see it in reporting, about a major blunder that was made by John Sauer, the Solicitor General for the United States. He's Sounds like he gargled with a pot of bourbon and broken pavement. You know that guy? Now, I think he's got some sort of condition, so I'm not here to violate the ADA and say, but he is hard to listen to. I've got friends that have speech impediments that are successful trial lawyers. There's a famous lawyer in Miami who I'm very close with, have been in the past who has a stutter, and he's a magnificent trial advocate.

42:44So I'm not, you know, but he's hard to listen to.

42:48Michael Popok:And he also has this habit, which is not a medical condition, of trying to pack 50 pounds of potatoes into a 10-pound sack of argument. He almost is like he's getting paid by the word. Whatever could be said eloquently in 20 words, John Sauer says, well, 500 words. I could do it in 500 words, 1 ,000 words. And he double talks constantly. He sounds like a fast-talking, double-talking snake oil salesman, like used car salesman. And it's starting to grate. Talk about make America great again. It's starting to grate on members of the Supreme Court. You can tell by the oral argument. His major faux pas and blunder is he painted himself into a corner about tariffs aren't taxes, tariffs aren't revenue producing, because we all know that's a lie.

43:42And he put it in his brief. He put in his brief that it's raising revenue. He quoted Donald Trump extolling the virtues of tariffs to replace lost income and the trillions of dollars that came into the Treasury to help the American economy, just like Donald Trump did on Inauguration Day, talking about him creating a external revenue service to replace income tax by using tariffs as income-producing revenue reproducing. So let me play first for you the clip of John Sauer getting led down the primrose path and painted into a corner, to mix my metaphors there, mix my sayings, by, of all people,

44:27Michael Popok:Chief Justice John Roberts. Let's play the clip. But I mean, and I think this is a question for the other side as well. It's too facing. Yes, of course, tariffs and dealings with foreign powers, But the vehicle is imposition of taxes on Americans. And that has always been the core power of Congress. So to have the president's foreign affairs power trump that basic power for Congress seems to me to kind of at least neutralize between the two powers, the executive power and the legislative power. Let me say two things in response to that. First, the notion that the taxes are all borne by Americans and are not borne by foreign producers whose goods are imported is empirically, there's no basis for that in the record.

45:16It's actually a mixed... Well, who pays the tariffs? If a tariff is imposed on automobiles, who pays them? Typically, regardless of who the importer of record is, there'd be a contract that would go along the sort of line of transfer that would allocate the tariff. and there'd be different. Sometimes the foreign producer would pay them. Sometimes the importer would bear the cost. The importer could be an American, could be a foreign company. A lot of times it's a wholly owned American subsidiary of a foreign corporation. So it gets allocated. The empirical estimates range from like 30 % to 80 % of like how much is borne by American citizens.

45:50I mean, it's been suggested that the tariffs are responsible for a significant reduction in our deficit. I would say that's raising revenue domestically. There certainly is an incidental and collateral effect of the tariffs that they do raise revenue, But it's very important that they are regulatory tariffs, not revenue raising tariffs. And the way you can see this, I think, if you look at this policy. Revenue is incidental. It's policy and regulatory. Now, why does he keep saying that? Because the statute that he's relying on to try to steal Article I power from Congress talks about regulation and licenses.

46:24So he's got to try to fit this ridiculously triangle peg into a round hole about tariffs not be that tariffs are regulatory and or that they're licenses and that they're not revenue generating, that they're not taxes. And you see how well he did with that that ridiculous tap dance in front of a judge that should justice that should have been on his side, especially when the American people remember, things like Donald Trump on his inauguration talking about the external revenue service and raising money like taxes through tariffs. And as the justices reminded John Sauer, even though it was in his brief, that is solely the province of Congress, and it's non-delicable.

47:16They can't send it off to Trump, just like they can't, you know, the Article 3 can't allow Donald Trump to create his own court system. How would they like that? The executive branch has a court system now, an economic court created with the war powers and the foreign affair powers of the president, which this Supreme Court seems to love. Bends over backwards to give Donald Trump as many foreign affairs and Article 2 powers that they can find. How about if he sets up his own court? How would you like that competing with you on interpreting economic regulation related to foreign facing issues? I mean, that's the next step.

47:56They wouldn't like that. It's when it's their turf. They shouldn't like it when it's Congress's turf. And so they were reminded, Sauer was reminded time and time again, that it's the power to tax and to raise money has to go through the both chambers of Congress. by a majority and then signed by a president before people get bites taken out of their wallets. Not the president imposing a tariff that gets passed along as a tax to consumers. Let me play you the clip of Trump talking about the external revenue service, which completely undermines their argument that tariffs are only incidental revenue producers.

48:40Let's play the clip. Instead of taxing our citizens to enrich other countries, we will tariff and tax foreign countries to enrich our citizens.

48:56For this purpose, we are establishing the external revenue service to collect all tariffs, duties, and revenues. It will be massive amounts of money pouring into our treasury, coming from foreign sources. The American dream will soon be back and thriving like never before. Bad. Bad for him.

49:22Michael Popok:Let me just give you my overview. Amy Coney Barrett is not in favor. I don't think she's going to vote for the president having tariff power under the International Economic Emergency Powers Act, which was a limiting statute given to Jimmy Carter in 1977 to stop him from stealing power from Congress. Not one with his capacious superpowers for a president, which violates the non-delegation doctrine, violates the major questions doctrine created by the Roberts Court to kill Biden policies, which stands for the proposition that if it's a major issue, like giving the power of the tariff in tax to a president, it has to be expressly spelled out in a statute, not done by implication or word association or construction of a statute, that Congress doesn't hide an elephant in a mouse hole, if you know what I mean.

50:18And so if you read the statute, statutory construction, If you look at the meaning in Article 1 about the power to tax and to tariff being held by Congress, if you use the major questions doctrine, if you use the non-delegation doctrine, Donald Trump loses and should lose.

50:36Michael Popok:I think Amy Coney Barrett is over with Sotomayor, Kagan, and Ketanji Brown-Jackson. So we have four votes against Donald Trump's tariffs. We have three votes in favor. I think it's Alito, Thomas, and Kavanaugh. So that leaves Gorsuch and Roberts. By the questioning, it looks to me like Gorsuch is not going to give the president, a president, any president, the power to tax through tariff. He said things like it's a one-way ratchet. Congress could never get the power back. This goes back to taxation without representation with the Boston Tea Party. He wasn't buying that the tax, that the revenue isn't a tax or isn't revenue enhancing or revenue collecting.

51:24If he votes the way his questions were asked and him being dissatisfied with the answers, this should now be at least five to four. Roberts too, just on the major questions doctrine, should be five to four.

51:39Michael Popok:But we'll have to see. You can't trust this administration. You can't trust this Supreme Court. So we'll follow it. I think we'll get a ruling within three to six months. In the meantime, they're letting Donald Trump collect all the money. There was a chilling moment for the Trump administration, which I'm going to play for you now, when Amy Coney Barrett said to the advocates to tear down the tariffs, suppose we rule in your favor. How do we pay back the money? How does the Trump administration pay back the money? Sounds like it'd be a little bit messy, right? In fact, let me play that clip. And then if you win, tell me how the reimbursement process would work.

52:17Would it be a complete mess? I mean, you're saying before the government promised reimbursement and now you're saying, you know, well, that's rich. But how would this work? It seems to me like it could be a mess. So the first thing I'd say is that just underscores just how major a question this is, the very fact that you were dealing with this with quotas. There's no refund process to the tunes of billions of dollars or embargoes, but there is here. But for our case, the way it would work is, in this case, the government stipulated for the five plaintiffs that they would get the refunds. So for us, that's how it would work.

52:49Your question, I take it, is about everyone else. We don't have a class action or anything like that. With respect to everyone else, there's a whole specialized body of trade law. And 19 U.S.C. 1514 outlines all these administrative procedures. It's a very complicated thing. There's got to be an administrative protest. There was a harbor management case earlier that this court was involved with in the United States shoe in which, you know, the refund process took a long time. There were any number of claims and equitable relief. So it's difficult. Absolutely. We don't deny that it's difficult, but I think what this court has said in the McKesson case in 1990 is that serious economic dislocation isn't a reason to do something.

53:34Northern Pipeline, you guys stage your decision for a while in order to let the congressional process unfold. There may be a congressional process here as well. You may be able to also be that this court could limit its decision to prospective relief under the John Q. Hammonds case. So there's lots of possibilities. Well, she didn't care about it being messy when they ripped away for 50 years a woman's right to choose. And the havoc it played on women's health and autonomy and body autonomy. So now she's worried about how money is going to be transferred back. I don't know. They can either do it, refund.

54:12Michael Popok:You know, they haven't spent the money. Reallocate the money. Pay it back over time to the American people. Give it to them as a tax deduction. you know, refund by tax deduction, give it to them as a credit on their taxes so everybody gets it back. That's one way. You can make it prospective, although that doesn't help the businesses out of business right now, and only end it now, but let the government keep the money. But I don't know how the government keeps the money if their actions were unconstitutional. The only resort, the only way to fix it, the only remedy is to give the money back. But the fact that she even is worried about that should be concerning in keeping the Trump administration up at night.

54:52Michael Popok:And of course, they're whistling in the graveyard or past the graveyard because you've got, you know, Howard Lutnick, the Commerce Secretary, with a big Cheshire Cat smile, smiling on CNBC. We won! You heard it here first. We have won this. Is it possible we're all wrong? It's possible. I thought they lost the immunity argument. Although when you listen to it closely, the people that I've identified, like Gorsuch and Roberts, were siding with the president in those questionings. But we'll continue to follow that. I want to take on one more major topic, which I thought was interesting, which might give us a window into how this Supreme Court may rule on the issue, you know, as I manage expectations.

55:42Michael Popok:This week, the day after the tariffs, Supreme Court issued a 6-3 ruling against transgender people. Let me just put this into paraphrase others in the past, like Kanye West, which is ironic that I'm paraphrasing Kanye West, given my history of having cross-examined him within an inch of his life in a case. Donald Trump hates transgender Americans. Donald Trump hates transgender Americans. He's done everything he can to demean them, dehumanize them, push them to commit suicide and take away their rights. This is one of the most disadvantaged groups in America. It represents like 2 % or less of America.

56:32Michael Popok:It's probably even less than that. And yet Donald Trump, on day one, one of his hundred executive orders was to crush the hopes and dreams of the transgender American community. Operative word there, American. And so he pushed this State Department policy that changed 30 years of State Department policy to allow people to have on their passports either no gender identification, a photo, or have a gender identification that matched how they live their life, and not what gender was assigned to them at birth. And Joe Biden went one step further and he said you could have an X if you're binary or you don't consider yourself as having a gender, so to speak.

57:24Michael Popok:And Donald Trump removed all that. And now the State Department require with a new policy that you're as part of the identification on the passports because it's in the area of foreign affairs, back to the foreign affairs power that people have to list their gender at birth even though they're presenting as a woman or as a man or as binary or as whatever and the supreme court six to three MAGA voted for it and upheld it but also said we're not ruling on the merits but we are because we think Trump's could ultimately win. And in addition to that, this is necessary because Trump has ultimate foreign affairs facing power.

58:09And this deals with how we present ourselves to the global world. And he's got a

58:14Michael Popok:policy of there's only two genders in America. What happened to the disadvantaged? What happened to the underprivileged that the Supreme Court is supposed to protect? And Ketanji Brown Jackson, Yeah, the same person people are slightly mad at for her 48-hour stay.

58:33She had a scathing dissent.

58:35Michael Popok:And she said, and I paraphrase, the Supreme Court has forgotten its assignment when it gets an emergency application like this and when it's trying to weigh the balance of equities. And it's doing it the wrong way and it's the shadow docket all over again and it's wrong. and transgender Americans have rights that are not being properly balanced by the Supreme Court as they bend over backwards to support Donald Trump. And she dissents. Now, in there, though, I was a little bit troubled because it came out like a day after, literally a day after the tariff argument, where it was obvious to most observers that Donald Trump's side got shellacked.

59:14Michael Popok:And they started talking about Trump's foreign affairs power is robust, and he's able to declare whether you're a male or a female as a result of the foreign affairs power. And I sort of had an uh-oh gulp there for a moment, because what I don't want them to do is to say that even though IEPA, the International Economic Emergency Powers Act, doesn't say tariffs, they somehow read in with the foreign affairs power under Article 2 of the president, and they give them the power to tax. You know, how far are they going to stretch this foreign affairs power? I was a little concerned. It may have just been a bone they were throwing to the president.

59:56You know, like, well, we're not going to give you the tariffs, but you are going to be able to embarrass and shame transgender people on their passports. How's that? The fact that I even have to do an analysis of transgender people being maligned and undermined in America

1:00:11Michael Popok:to talk about tariffs just shows you how upside down world we are in with the United States Supreme Court. I mean, Ketanji Brown Jackson, in her dissent, reminds Americans that the suicidal ideation, ideation, the rate of suicide or taking your own life for people who are transgender, who are not allowed to identify or have to have the dissonance and the incongruity of having to identify themselves in a way different than they present themselves and they self-identify creates a tremendous uptick in people taking their own life. And people being assaulted and abused and physically assaulted at airports by the TSA.

1:00:55Invasive pat-downs. Drop your underwear where they're wearing gloves to do an exam, to embarrass people, to force people to out themselves as their gender at birth. But the fact that I have to talk about foreign affairs and the rights of transgender people, which this Supreme Court MAGA 6 puts on the same scale, is just disgusting. But I'm glad you're here to talk about all of it without some oak or sunshine. you're on Legal AF the podcast people might be thinking Popak is not letting Ben talk Popak's hogging the microphone again did I tune into the intersection his show on Tuesday nights on Midas Touch no Ben is traveling with his family and I offered to pitch in the way he would for me to do the show and keep it rolling we don't miss the show I don't know if anybody's noticed we've done the show for five years straight we're like the postal service

1:01:48Michael Popok:you know So through, I'm going to butcher this phrase, right? Through sleet and hail and rain and dark of night, nothing will stop us from delivering our legal AF commentary to you. We've never missed a show in five years. Two shows a week, five years straight, no day off. Ben might have missed a show. I might have been traveling. Karen might be traveling. We've had fill-ins. Ben did a show like this about three years ago by himself. I'm doing one now because of our devotion to our audience, to the Legal AFers, to the Midas Mighty, to the community that we've built. When I started, and I joke that I'm employee number four, so to speak, of Midas, three brothers and then me, we had 200 to 300 followers on a website.

1:02:40Now, Midas is about to hit 5.7 million. Legal AF YouTube, which is about a year old, is about to hit 1 million, go check now. Go check now on Legal AF YouTube and see if you're one of the 920 ,000. We're going to hit that 1 million if it kills me before, I don't know about Thanksgiving, but certainly, you want to make a birthday present. My birthday is December 2nd. How about for my birthday, we get a million subscribers on Legal AF YouTube with your help. That would be fantastic. So then we've got Legal AF Substack. If you want to become a full-fledged member and support and help fund what we do, we made it easy.

1:03:25Michael Popok:It's about$6.77 a month for unlimited content, effectively, on Legal AF Substack. Become a part of that community as well. And then we've got our pro-democracy sponsors, some of which have been with us from the very beginning, some of which just joined us recently, and maybe even tonight, who are here with us on tonight's podcast. And those are the ways to support us. Help us with the audio versions, Apple Pod and Spotify, leave five-star reviews. Watch us on YouTube, Wednesdays and Saturday nights. Help us stay in the top 20 or so of the YouTube weekly rankings for podcasts and top 50 or so. For news, I think we're the number one law and politics podcast in America.

1:04:11And that's all because of you. We appreciate each and every one of you. So let's have a commercial break now.

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1:07:01Their ultimate sampler pack includes all three. And right now, IQ Bar is offering our special podcast listeners 20 % off all IQ Bar products, including the sampler pack, plus free shipping to get your 20 % off, text Legal AF to 64 ,000. Text Legal AF to 64 ,000. That's Legal AF to 64 ,000. Message and data rates may apply. See terms for details. Welcome back to Legal AF the podcast.

1:07:33Michael Popok:No, I haven't hijacked the show. I'm Michael Popok. Ben Moiseleus is with his family traveling, and I offered to take over for tonight as he would do for me. We can't let the might is mighty and the Legal AFers now. We've never missed a show in five years. That's a streak that Luke Gehrig or Cal Ripken would be proud of, but we do it all for you. You motivate us to bring our brand of honest commentary to you. Our First Amendment rights won't be compromised and we won't let yours be either. Thank you for being here on Legal AF, the podcast. I want to end the show with two back-to-back orders by federal judges.

1:08:09Michael Popok:One Judge Ellis in Chicago, the other Judge Immergut in Oregon. Judge Immergut, a Trump appointee. Judge Ellis, a Biden appointee. They came to the same and right place for justice separately as one of the nine losses for Donald Trump and his Trump Department of Justice this week. Judge Ellis has been trying to protect First Amendment expression on the streets of Chicago for the last month. She's issued a series of orders, including temporary restraining orders, And now a preliminary injunction to stop the attack on the, wait for it, the clergy, First Amendment protesters, veterans, and the press who are protesting Donald, peacefully protesting primarily Donald Trump's depraved immigration policy.

1:08:58And she caught the government in a lie. In fact, she caught Greg Bovino, the head of Operation Midway Blitz for the Trump administration, lying under oath when he tried to justify violating her temporary restraining order not to use weapons of war, not to use military -grade riot gear, pepper balls, pepper spray, tear gas, non-lethal but very painful rubber bullets against First Amendment expression. and he lied and said that the reason he fired his weapon, his tear gas, was because he was hit with a rock. And then he had to admit under oath that he lied because there was video all over the place that showed that didn't happen.

1:09:46In fact, here is the clip of Bovino lying in his deposition and therefore to the judge under oath that she cited in her order. We have a name for this in our business in the legal profession. It's called perjury. And the lawyers for the Department of Justice are in trouble because they put him on. And that's called suborning perjury. Let's play the clip. Mr. Bovino, I want to talk with you next about another comment that you have made. You said on October 30 that from what you have seen, all of the uses of force by yourself and the men under your command have been more than exemplary, your words.

1:10:29You still stand by that? Yes. So when you tackled Scott Blackburn, as shown in the video marked for identification as Exhibit 8, that use of force on your part was more than exemplary? Objective form lacks foundation. As we talked earlier, that was not a use, a reportable use of force. I placed him under arrest. I didn't tackle him. I placed him under arrest.

1:10:55Michael Popok:Now, Judge Ellis, who started her 90-minute recitation from the bench of her order, started with Carl Sandburg's Lincoln, sorry, Carl Sandburg's Chicago poem and ended with and ended with one of our founding fathers in a letter, James Madison to, sorry, John Adams to Abigail Adams about the loss of liberty, which can never be recovered. And in between, she said the Trump administration's actions shock the conscience, and she issued her preliminary injunction. I defy, I dare the Trump administration to appeal that. The Seventh Circuit has already sided with one of her colleagues and has blocked the use of the National Guard on the streets of Chicago.

1:11:47Michael Popok:That issue is up at the Supreme Court. Even though Judge Ellis' decision now has not yet been appealed, I dare the Trump administration to try to defend lying members of the Custom and Border Patrol and federal security officers who are taking down and tackling people from behind, firing tear gas and pepper balls at the clergy and lying about it. I want them. I want that debate. And I'm glad that Judge Ellis stood up for what is right and what is moral and what is ethical in calling out the Trump administration and its depravity. and that which turned which now has me turned to judge immergut a trump appointee she's been trying for the last two months to keep donald trump from violating the constitution violating the 10th amendment violent violating sovereignty of states in how he rolled out the national guard sent california and texas troops into oregon to try to do an end run around her temporary restraining order.

1:12:57Well, we're beyond temporary restraining order. We're beyond preliminary injunction. We're up to permanent injunction, which means the case is over. Three-day trial. Last week, she took testimony. She heard testimony. And in a 106-page decision issued last night, on time, she declared that Donald Trump has unconstitutionally taken over the National Guard, the 200 members of the Oregon National Guard. He's violated the precepts and the principles of our Constitution set forth by our founders and our framers to prevent tyranny, to prevent an overgrown president from using a standing army against his people.

1:13:37She cited, too, the debate around our Constitution. And she reminded everybody that the power to send out the militia, the National Guard, is a power of Congress in Article 1 and in Section 8, and that that power was delegated but by statute limited in scope to the president under certain limited circumstances to let him be able to act in real time quickly. Insurrection, rebellion, inability to execute the federal laws using regular forces. Then and only then can you call for backup and try to take over and commandeer the National Guard of a state. And unless and until that ever happens, the National Guard, the state militia is under the control of the governor.

1:14:28That's part of our federalism. That was part of the compromise to get states to join the federal union, the government, a more perfect union. And so she said, there's no rebellion. There's no armed, organized insurrection. At best, it's people peacefully protesting. Yes, there were some flare-ups in June. But by the time Donald Trump sent the troops in in September, all the violence had been quelled by local police officers, local law enforcement, even local federal security officers, nobody in ICE. And this was a point that was made by Judge Immergut. No one in ICE, no federal security officer asked for the National Guard.

1:15:11And yet Donald Trump, to embarrass and troll the Democrats, the blue states, blue cities, and the brands and the governors and all of that, sent in the troops three months after, what, you know, three months after the cow left the barn, closed the door. And the judge cited to, in real life, evidence on the ground that did not support a rebellion finding, an insurrection finding, nor that ICE could not execute its laws to pick up, arrest, detain, process migrants. No examples of that. Most of the violence was protester against counter-protester. That's First Amendment expression. So Judge Imbergat issued her order, game over, permanent block.

1:16:00Now the Trump administration can take an appeal, but they have to know already that it may be a losing proposition because the Ninth Circuit, which sits over Oregon and California, already sided with Emmergut in their own way. Because when there was a three-judge panel that ruled against her, dominated by two Trump appointees, they reversed it. They vacated it. well, vacated it, to hear on a full 11-person en banc panel the case over again. But now we've moved beyond the temporary restraining orders. Those are now moot and dead, and Trump is going to abandon that appeal. We now move on if he's going to appeal Judge Imbergat's decision to stop the deployment of the National Guard on the streets of Portland, Oregon.

1:16:53Good luck. I think under these circumstances, the most three-judge panels of the Ninth Circuit will vote against Donald Trump. Now, we're still waiting for the Supreme Court to rule about when a president, and we're going to get proper, I guess, assume I'm going to get proper guidance, finally, from the Supreme Court on the Seventh Circuit case, which can be used in all the other cases. And there seem to be hung up because they asked for additional briefing at the Supreme Court about what regular forces mean. Because if we're in that world under 10 U.S.C. 12406, a statute of delegation to Trump, if we're in that world, then there has to be an inability for the president to execute federal law as the executive branch with regular forces.

1:17:46Now, are regular forces the military, the army, the standing army, the Marines, the Navy? Is that the armed forces? Is it that and federal security officers? Because there are federal security officers that guard buildings like ICE. Is it that combined with, you know, the Federal, you know, Border Patrol and Customs and Border Patrol and ICE? Is that it? Do you add in local law enforcement? And then and only then are you allowed to call for backup and take over and do the extraordinary thing and cross the divide that the founding fathers wanted us to have to protect us from tyranny and take over the state's militia and turn it on itself.

1:18:29That's for the Supreme Court to rule. I think that question they've asked to have further briefed on in the month of November spells trouble for the Trump administration. I don't think that's a good question for them to be asking if you're on the Trump side of the argument, but we'll continue to follow it all. Covered a lot here on Legal AF, even though I was solo, my first solo ride in five years. I mean, I got a show called The Intersection on Tuesday nights on Midas Touch, where I do commentary on things political and or legal. You can catch me there. If you want to know how to follow all things Legal AF, there's so many different ways to support what we do here.

1:19:10Legal AF, the podcast, started it all. I co-founded it with Ben Misalas more than five years ago. Never missed a show. I mean, we've never missed a show. Audio versions on Apple and Spotify. Leave a five-star review. Go back and forth between the video and the audio. And that helps us in the rankings. We're the number one law and politics podcast in America, and that's because of you. We also have to support and keep us on the air and keep us funded and fund this honest assessment and commentary, our First Amendment rights to be heard, your First Amendment right to hear us. Come over to Legal AF YouTube channel.

1:19:48Check now. See if you are a subscriber. If you're not, help us build to 1 million subscribers in just about a year. We're at 920 ,000 plus this weekend alone. And that's all because of you. No paywall, no outside investors. Become a member of Legal AF, the YouTube channel. And then, of course, we've got Legal AF, the Substack, where for, I think I kept it to less than$7 a month, not a week, for a fascinating content. Eight, nine pieces a day up on Substack, including live reporting. And then over on Legal AF, the YouTube channel. I got 12 contributors. We do 10 videos a day. First four are usually mine.

1:20:29And then we turn to Adam Klassfeld, All Rise News, and Sean Wilentz and Sidney Blumenthal, who are our resident historians on Court of History. And then Lisa Graves and Mike Sachs and Alex Aronson and others for Court Accountability Action about corruption in the federal court system. And then we've got, we're having Democracy Forward and Sky Perryman, who's got over 100 cases successful against the Trump administration. She comes on and briefs our audience on Democracy Forward. The American Civil Liberties Union is about to join us, hopefully in the next two or three weeks. This is the place you want to hang out at the intersection of law and politics, especially when you're dealing with a lawless, rogue Trump administration and Department of Justice.

1:21:13I'm glad you're here. Thank you to our sponsors. Thank you, first and foremost, to the Legal AFRs and the Midas Mighty. Catch us at the midweek with Karen Freeman-Ignifolo and me on the Midas Touch Network. And of course, I do about 40 videos a week between Midas Touch and Legal AF at the intersection of law and politics. I'm Michael Popok. Until my next report.

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