Legal AF Full Episode - 9/3/2025

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29:10Michael Popok:That's one year of the best bacon you'll ever taste, but only for a limited time. Spelled M-O-I-N-K, box.com slash legal AF. That's moinkbox.com slash legal AF. Welcome back to Legal AF, the podcast. We've got a speed round coming up because we've got to cover all the losses that Donald Trump and his administration have suffered in the last four days. Harvard, Posse Comitatus, Federal Trade Commission, and 600 children who were almost removed in the middle of the night without due process. Not even an adult on board the planes. We're going to cover it all right here. Thank you. Welcome back. And thank you for our pro-democracy sponsors and all the different ways we've gone over for you to support us.

29:55Kara, let's kick it off with Harvard and what happened there.

30:00Michael Popok:So Judge Burroughs, who's been on this case as a federal judge of Massachusetts for like five months now, we've already gone through and covered all of our temporary restraining orders, preliminary injunctions. And now we're going to talk about her summary judgment, which means game set match against the Trump administration for cutting$2.2 billion worth of research grants. I want to make sure everybody understands these are research grants to help the American people because Donald Trump under a, as the judge called it, a smokescreen of combating anti-Semitism decided they wanted to do a hostile takeover of Harvard.

30:39Michael Popok:Tell them who they can hire, who they can tenure, what they can teach, who they can admit in. And Harvard said, go legal AF yourself. I mean, in their own Harvard style. A lot of veritas, which is their motto. A lot of truth and stand up and fight. And led by a very courageous president and Alan Garber. And finally, after winning every round, it came time for the summary judgments. Trump administration filed summary judgments saying they should win. The Harvard said we should win on their end of their case is premised. Their case was premised on our First Amendment rights have been violated. Who we can hire, who we can fire, what we can teach.

31:25Michael Popok:They're being violated in retaliatory fashion and vindictive fashion by the Trump administration under the guise of anti-Semitism. What they really don't like is our commitment to diversity, equity, inclusion. They don't like what we teach. And they're claiming it's because we have a poor record of trying to handle anti-Semitism on campus, a lot of which happened after Hamas attacked Israel. And the judge took a look at all of this, Karen, right, and came up with her own conclusions in reinstating the grants. Why don't you take it from there? Look, she basically, well, she could have just ruled against the government and ruled in favor of Harvard.

32:06But she went on this very, very long description about why she was ruling what she was ruling in her decision. And I thought it was really powerful. She said, we have to fight against anti-Semitism and protect our rights, including the right of free speech. And neither goal should be sacrificed on the altar of the other. And so she basically said, look, the court's job is to step up and safeguard academic freedom and freedom of speech and ensure that important research is not improperly subjected to arbitrary and procedurally infirm grant terminations or risk the wrath of the government, no matter the cost.

32:44I mean, pretty powerful language in there. My favorite part of the decision was one of the footnotes. I always love footnotes. That's where you kind of get some really powerful language sometimes. She basically said, look, the court is mindful of the Supreme Court in certain other agreements that basically, certain other decisions, sorry, that basically says, look, the court is not free to defy the Supreme Court decisions and we're duty bound to respect the hierarchy of the federal court system. Okay, and she acknowledges that. But she says, consistent with these obligations, this court, like all district courts, are trying to follow the Supreme Court's ruling, no matter how misguided it may think that it is.

33:29And she said, the Supreme Court's recent emergency docket rulings regarding grant terminations have not been models of clarity, and have left many issues unresolved. She and this is she's sort of calling out this shadow docket, right? This because when you go on these emergency shadow docket rulings that the that the Trump presidency basically is is it's what's enabling the Trump presidency to do all these things that they're doing. What happens is they don't fully brief the issues. There's no oral argument. There's no presentation of both sides. And then there's no sort of decision. Right. There's no merits decision by the Supreme Court.

34:09Instead, they're getting these couple of paragraph rulings from the Supreme Court on issues that aren't fully briefed. And the problem with that, what she's saying is you're not giving any guidance to the district courts. And and and so we're trying to interpret this mess, the soupy mess that you're creating Supreme Court by making all these shadow docket rulings that are really not based in doctrinal law or precedent. So she kind of goes on to say that, you know, she talks about some of the recent grant decisions and grant termination cases and trying to make sense of them. But she says, given this, the court respectfully submits that it is unhelpful and unnecessary to criticize district courts for, quote, defying the Supreme Court when they are working to find the right answer in a rapidly evolving doctrinal landscape where they must grapple with both existing precedent and interim guidance from the Supreme Court that appears to set that precedent aside without much explanation or consensus.

35:09It was a that was a direct that was a direct message to the Supreme Court, basically saying you're not being helpful here. You got to give us some guidance because because you're basically lawless. And so we're trying to follow the law and follow what you say, but you're not really spelling it out. So I thought it was a really powerful decision.

35:28Michael Popok:Oh, absolutely. I'll just read one. Consistent with that, I'll read one thing that she says in her conclusion on page 79. where she just spent 20 pages using Donald Trump's own words against him. Like, in other words, I'll give the summary. Don't tell me this is about anti-Semitism. You know, there's anti-Semitism that needs to be better handled on campus. I agree. There's research grants that have zero to do with combating anti-Semitism. It's not like they're doing research on, it's not like, you know, during the Holocaust when they were doing research on Jews. And we needed to cut the funding because it's anti-Semitic in the style of their research.

36:14Michael Popok:There's no link between the two things. What you're really doing is you're taking away their money to penalize a higher education institution because you don't like their viewpoint. You don't like their First Amendment views. And that's exactly what you cannot do. And she pointed to all the places where for about 10 weeks straight, Donald Trump didn't talk about in his bashing of Harvard, which became the evidence in the case, didn't talk about on his social media, you know, I'm taking the money away in order to get to fight anti-Semitism. He said it's about their left woke, you know, bird brain faculty teaching, you know, teaching students to fail.

36:57Michael Popok:It was all about their viewpoint, what they're teaching, their curricula, not about the research grant. And so he screwed himself providing evidence of the discrimination, the First Amendment discrimination in his own social media post. But this is now like the 12th judge who's been able to use or more that's been able to use Donald Trump's own words against him as evidence. Here's what she says to end the decision after she goes through the fact that there is anti-Semitism on campus. That said, there is in reality little connection between the research affected by the grant terminations and anti-Semitism.

37:36Michael Popok:In fact, a review of the administrative record makes it difficult to conclude anything other than defendants used anti-Semitism as a smokescreen for a targeted, ideologically motivated assault on this country's premier universities. Because it's not just Harvard. It's Duke. It's Columbia. It's Princeton. It's UCLA. It's Berkeley. He's going after – there's a guy – I'm going to do a hot take on him one day. There's a guy within the administration that is their guy to go after, quote, unquote, these woke universities. He's almost like the Laura Loomer of the education police for Donald Trump. And they're just following his list.

38:17Michael Popok:So it's not she knows it's not just about Harvard, but she said, but to do so in a way is a smokescreen for targeted ideologically motivated assault on the universities in a way that runs afoul of the Administrative Procedures Act, the First Amendment and Title VI. Further, their actions have jeopardized decades of research. Think about that. They were in the middle of research that had to be ended because the grants were taken away. And the welfare of all those who could stand to benefit from that research, as well as reflect a disregard for the rights protected by the Constitution. And what is it with this administration?

38:55It's the worst administration I've ever seen in history against public health.

39:01Michael Popok:between RFK Jr., who's about to get run out on a rail from this town, and what he's done to destroy public health as the chief public health official, and the attack on ripping away these grants to make us less well, this is what's on the agenda, I think, Karen. Health, not just the president's failing health, but the failing health of America caused by Donald Trump, and, of course, his economy, are all going to be fair game for the Democrats to bring to the attention of the American people coming into the midterms, right? Yeah, totally. We'll see. I mean, you're 100 % right. This is what we have to use.

39:40Michael Popok:This is what we got. I mean, I was joking earlier today on something else where I said, if people were wondering what a failed presidency looks like, this is it. And he has to do all of this tambourine shaking to try to convince you that he's not failing. And the more he does it, the more he's failing, you know, and I'm trying to think of what is the constituency that is turned on and ignores everything about his administration by we bombed 11 people out of existence today without due process in international waters. Who is this group that is buying the 33 ,000 pages of nonsense that was released to try to deflect from the Epstein scandal?

40:22I mean, how did Alex Jones's Info Wars get to be so popular? How did Laura Loomer get to be who she is? I mean, it's, they're these people. They love a conspiracy. Yeah. I mean, it's crazy.

40:36Michael Popok:Even Nick Fuentes, who's a white nationalist of the first order and MAGA MAGA to the extreme, hung out at Mar-a-Lago with Donald Trump. Even he and his podcast said something's going on with Donald Trump's health. Even it got to him because they're getting obviously bored with the Epstein scandal. So they need to move on to some other shiny object. And now they're moving on to maybe he is dying. Well, obviously he's dying, as we all are, but dying faster than others. Let's just put it that way. So Harvard, it's a win. And I think it's also a win. It gives them tremendous leverage now to push back against Donald Trump, who just last week in his high chair was saying, I want$500 million.

41:19Michael Popok:I want$500 million from Harvard. And yeah, well, I have a toddler. So I like using that imagery. I want 500. He's not going to get$500 million. Not with this major win for Harvard. And I was wondering what was happening to those negotiations I heard about. I think they were waiting to see what Judge Burroughs was going to do. They knew they were going to get a win with her. So it's off to the first circuit where there'll be likely another win. They're not going to vote against the hometown team of Harvard, I assure you. And then it's off to the United States Supreme Court, where a lot of those judges went to Harvard, including Chief Justice Roberts and Ketaji Brown Jackson, who's a double crimson, whatever they call it there.

41:57Michael Popok:So we're going to see it. This is going to end up there sooner rather than later, you know, because they need the money to do all that great welfare, social welfare stuff and public health stuff. Let's move on, Karen, to posse comitatus. You've got Judge Breyer, the brother of the Supreme Court Justice, retired Stephen Breyer, who had a three-day trial and issued a ruling with a lot of courage and even took on the Ninth Circuit, which ruled against him on an earlier related matter about whether Donald Trump could federalize or commandeer the National Guard, the state's National Guard in California.

42:36Michael Popok:This is the case, for those that are wondering, literally of Trump versus Gavin Newsom. And I just had Rob Bonta, the attorney general for California on the day that this decision came out. And you can come over to Legal AF Substack and see the interview. Amazing interview we had. We'll put it down in notes so you can find it here on tonight's podcast. But he was very proud, of course, of what he was able to accomplish because the judge effectively adopted all of the attorney general's arguments. So what did you take away from the ruling, the injunction, the stay of it for a period of time? Tell our brief audience about what what this means and what it means going forward.

43:18Yeah. So this is a great decision also because it talks about the history and the founding of this country and what this country, how it came about and how the Declaration of Independence and the Constitution. And most court decisions don't read like this. These are written for the ages. These are written so that people can understand and really get an explainer about sort of, they know that this is going to be watched by many and commentated on by many. And so they really take the time, and this is another example of that, of really teaching the history of this country, and really basically said, look, the Declaration of Independence and the Constitution were a reaction.

44:02They weren't created in a vacuum and they were a reaction to the fact that we came from England, we came from a king, and they wanted to create separate but equal branches of government without this powerful king. In fact, they made Article II be the president, not Article I. And part of what they were reacting to was the colonies, the original 13 colonies, had British military troops patrolling it, and they did not want that. That was something that they were reacting to. And so it was created as a way to kind of say, look, the police function is going to be with the states. It's not going to be this federalized thing.

44:47Okay, so that was that. Then fast forward 100 years later, you have slavery and reconstruction, and you had basically you had military in the South that was preventing newly enfranchised people of color, you know, former slaves from voting. And they passed the Posse Comitatus Act. Congress passed it essentially to ensure that black people and former slaves now can vote and that the military is not going to be used against them. And it was just really when you when you hear that history and you see how that has been the case for so many years. And it's almost 100 years later. And yet here we are.

45:35You have the government. You have the Trump trying to turn the military on its people under the guise of, oh, we're just protecting federal property and we're allowed to protect federal property. And the judge here basically said, look, you know, and it was interesting because the people that he had people testify from the military at this trial and the military people who testified were very much were very clear about what they're allowed to do and what they're not allowed to do. and they were taking the interpretation of whether what they were doing was in violation of the posse comitatus act from above from pete heads headseth and from this administration but these were you can tell these were heroes frankly these are the men and women who sign up to serve this country and they stand by the fact that they are here to serve this country and not to enforce laws but they kind of had the wool pulled over their head and were told that they were allowed to do basic things like enforcement and, and things like that, which they're really not allowed to do.

46:39And, uh, you know, they, they had, they, they actually had, had, um, a list of things that you're not allowed to do. Um, and, but then they highlighted some of them in red basically saying, but you can do these four. And, and the judge said, no, no, you can't. That's actually not allowed. And the posse, you are in violation of the Posse Comitatus Act. And, um, and I think that was huge. It was really a great decision. And again, talked about Marbury versus Madison, which is one of the foundational cases in our country that says that courts can interpret laws and that the president isn't all powerful and that the court is interpreting the law here.

47:26And basically, you can't do that. It was a resounding, resounding victory for California.

47:31Michael Popok:What this case is about is the fact that our founding fathers from the Declaration of Independence saw the threat of a president slash king having a standing army that he could use domestically to enforce his power and flex his muscle. And literally, you know, I rarely see, as you said, it was written for the ages, I rarely see a court order that references language from the Declaration of Independence, our founding document, in one of our founding documents, in order to make the point. Which is, that was the problem with the colonies, is that King George had these roving bands of British Army troops who were lawless and were not responsive to a civilian authority, and certainly not to the Americans, the colonists that were there, running roughshod over their civil liberties, which were really non-existent.

48:29Michael Popok:And for those around the world that join us, we have a tremendous following all around the world, 140 countries plus, Canada, Australia, first two among them, who are interested and intrigued by this thing we call the American experiment. And we're still trying to get it right, as you can tell, and not end it. And so our U.S. military, we're not supposed to have, as in other countries, like in Latin American, Central American dictatorships, federales, federal troops on the streets. We have a federal system where law enforcement, civilian law enforcement, is in the hands of the state and subdivisions of the state like municipalities and cities.

49:13Michael Popok:That's what sheriffs and cops are for. That stands in contrast to the U.S. military, which is supposed to be outward looking. And Donald Trump has blurred those lines to create, as Judge Breyer said, a national federal police force with him as the chief. And that's a scary chill down your back moment because that's a federal judge calling out for everyone to see what's happening, not just in D.C., but what's being threatened in Chicago, in Philadelphia, what happened in California and throughout the country with Donald Trump trying to scare the crap out of America and bend to his power by having his own paramilitary force.

49:57Michael Popok:And there's different components of it, right? There's ICE, there's Border Patrol, there's the FBI, there's the takeover of the National Guard in blue states and red states volunteering to give Donald Trump a standing army. And that's what Judge Breyer is fighting against. And he said, I looked at the statute. It talks about I can issue fines and I can find people in criminal violation. I'm going to make a declaration and I'm going to do an injunction with my inherent authority. And he also then spent a lot of time chastising the Ninth Circuit for allowing Donald Trump to federalize the National Guard.

50:40Michael Popok:And he gave a series that I went over these with Attorney General Bonta. I almost said Governor Bonta. It'll be Governor Bonta someday, trust me. Or he'll be the Attorney General of the United States if Gavin Newsom becomes president. And he would be a fine Attorney General for the United States if that were to happen. But there were these scenarios where he said, what's to stop a president based on the ruling, the murky ruling of the Ninth Circuit about the National Guard? What's to stop him? And then he had this one example on anecdotal evidence or lies about voter fraud. What's to stop the president from using the National Guard to interfere with an election?

51:28And seize voting machines.

51:30Michael Popok:Yeah, he didn't say that. That's where it goes. Seize voting machines, seize ballots, end voting, end mail-in voting, end absentee voting. He gave other examples, but that's the one he ended with that I was like chilling, prophetic, hopefully not about what this president could do. What he wants is he wants the Ninth Circuit when they get this case back to fix the problem by putting limits. This is something that he said over and over again in the trial. What are the limits? I am struck by the Trump administration telling me there are no limits to this power and this takeover. So he set the guardrails and he set the limits.

52:12Michael Popok:Now it's going back to the Ninth Circuit. Will they get a new panel or the same panel? So it's funny you said that. A.G. Bonta said he thinks it could 50-50. It may go to a new panel. I joked with him and I said, I'd like a new panel. He goes, I'd like a new panel. He said, but if we get the same panel, then fine. It could go on bonk, meaning all 20 or so in the Ninth Circuit eventually. But it'll be, this will be the case that eventually gets to the Supreme Court, who's been sitting on the sidelines because they haven't had any appellate case in front of them to rule on anything. But they are going to have to make a ruling for the first time since 1789 or whatever it was about the F and Posse Comitatus Act and a president violating it with this.

52:56Michael Popok:And, you know, we got a we got MAGA MAGA right wing Supreme Court justices that think the president can do no wrong. You know, he's got all the power. Now we'll see what happens about the limits of that power as we move forward. So we're going to talk about the two to well, really one remaining thing. I want to talk about Judge Sparkle Suknanan and the 600 children and what happened there and the Federal Trade Commission and the ruling there by the D.C. Appellate Court and why it matters. We'll cover all of that, but we're going to take one final break here on Legal AF. The ways to support our channel and our podcast is to help us with the views and the downloads, which keeps us at the top of the charts, which keeps this content coming to you, signals to us that you want this content, makes us work harder to continue to deliver it.

53:45Michael Popok:That's the way you do it. So pick us up. Just put in Legal AF in Spotify and in Apple, and there will be. Some people only know us from the audio. Some people never realized we were on YouTube. The YouTubers didn't realize we're on audio. We need to put those two groups together and continue to raise organically our by word of mouth, our audience. Legal AF YouTube, come over there. About 10 videos, new videos every day, about every hour at the intersection of law and politics. Some fascinating analysis with people that you've heard of or some that you haven't heard of that I curate for everybody over on Legal AF, the YouTube channel, and a companion Legal AF sub stack as well, which is growing beyond my wildest dreams.

54:31Michael Popok:It forces me with great enthusiasm to get on and do lives at 10 o 'clock at night where I get two or three thousand people together. And then the video goes up after that to just talk about issues that have just happened. Things are happening, you know, Memorial Day Monday and three o 'clock in the morning on Saturday and with this administration. And we got to be there for it. So Legal AF Substack is the way to do it. And then finally, for those that I think know this, I formed a new law firm called the Popak Firm about a year ago where I'm focused on something that really helps our Midas Touch and Legal AF community, which is catastrophic personal injuries.

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59:19Michael Popok:Two last cases to tie together. This is all this week, by the way. We're still joining late. This isn't like, oh, Popak and Karen are talking about like a month's worth. This is like an administration's worth of cases. No, this is this week. So we just went through the Harvard case. We went through the things related, of course, to the Epstein matter. We talked about the Posse Comitatus case. We got two left, Federal Trade Commission and the 600 children. It's a pick them for Karen. Karen, which one do you want to do first? Let's do the FTC commissioner first and we'll end with the children because.

59:58Michael Popok:Yeah, that's a good way to end. That's a powerful one to end on. Yeah, agreed. So Federal Trade Commission, interesting one, right, Karen? And we've talked for a long time, more than I ever thought I would have to, about a 1935 case called Humphrey's Executor. I've been doing videos on Humphrey's Executor, I feel like since 1935, which stands for the proposition or stood for the proposition that at least when it comes to the Federal Trade Commission, And I think the Federal Reserve also. Donald Trump can't fire commissioners in a structure created by Congress without a for-cause reason. He can't just fire them.

1:00:40Michael Popok:And even the for-cause has to be a limited for-cause. It has to be like something they did on the job or not did on the job. And Donald Trump, that stands in contrast to things like the National Labor Relations Board and the Office of Special Counsel and the Merit Systems Protection Board and other agencies where the Supreme Court said, yeah, Humphrey's executor doesn't apply because they set up a scale. The more an agency or a commission exerts presidential executive power, the less Congress can control what the president does with the people's employment on those commissions or agencies. So if they exert a lot of executive power, you can't limit the president's ability to fire them in any way.

1:01:25Michael Popok:If they exert a little and not as much, so it's that scale, then a president has to abide by what Congress wants, which is a four-cause termination. That came up in a case from 1935 involving a commissioner of the Federal Trade Commission. I mean, Humphreys was a commissioner of the Federal Trade Commission. Rebecca Slaughter, who's fighting for her job now, just got reinstated, is a commissioner of the Federal Trade Commission. And what the argument for the Trump administration is, is that the Federal Trade Commission today is so powerful and so different than in 1935 that it now is using up more and expending more executive power, and therefore Trump should be able to fire it.

1:02:10Michael Popok:Well, the counterargument to that is the Federal Trade Commission has been doing the same thing one way or the other for like the last 95 years and certainly for the last 20 years. And every time the Supreme Court touches Humphrey's executor, they leave it standing and they know what the Federal Trade Commission is today versus then. So they obviously agree. But here's how the three judges or two of the three judges on the D.C. panel, Millett, Pillard, and in dissent, Rayo, the Trumper. And the two to one decision, which was powerful for me because there was a line on it where they effectively challenged the United States Supreme Court in a couple of different ways.

1:02:51Michael Popok:They said, first of all, Humphrey's executor is exactly Rebecca Slaughter. In this case, it's on all fours, as we say in the law. It's directly on point. It's the same agency and the same position. So you've told us, this is my artist rendering of their decision. You've told us that we, as appellate court judges and district court judges, below you, Supreme Court, cannot avoid the application of precedent. We can't change precedent at the Supreme Court level. Only the Supreme Court level can do that. Okay, Humphreys' executor is still on the books. You did not remove it. You did not take it away as it relates to the Federal Trade Commission.

1:03:33Michael Popok:So it is the extant precedent that we need to apply. You've told us that. The fact that you've chipped away in various emergency shadow dockets, back to that shadow docket that you referenced before, Karen, at things like the National Labor Relations Board and the Marriage Service Protection Systems Protection Board, allowing Donald Trump to fire. Those were on procedural, non-substantive grounds, and you haven't reversed Humphrey's executor. We are not going to do your job for you. I mean, that's barely a paraphrase. You, Supreme Court, if you don't like Humphrey's executor and its application of this case, then you need to change it.

1:04:12Michael Popok:But we are going to rule consistent with it that she gets her job back. How did you take the order and the ramifications of it moving forward? Yeah, I mean, look, it was a reminder that the FTC, when it was created by Congress, was supposed to be bipartisan. And it's supposed to be five commissioners. No more than three are members of the same political party. They're nominated for seven-year terms. They're supposed to be cross-administrations. I mean, and that's not for all agencies, right? But there's certain agencies like the Federal Reserve that when they were established, they wanted to be above politics.

1:04:51They wanted to be putting the American people first, putting science first, putting data first, putting information first, instead of just politics and ideology. And Trump has tried to fire two of the Democrats. One of them decided to resign, but, you know, this one, Ms. Slaughter, decided to fight it, and she's won, at least for now. And I think it's just a good reminder of, A, what Trump is trying to do and run roughshod over our institutions. And I'm grateful that she's fighting back and we'll see what they say. But as you said, this notion, this doctrine that the Humphreys executor case created so long ago is still in existence.

1:05:36And let the Supreme Court continue to do Trump's bidding for him if they want. But I'm happy to see that the lower courts aren't doing that.

1:05:48Michael Popok:And she got her job back. I mean, Trump doesn't like it. Oh, she's fired. She's not. She's been reinstated. And she's already posted on her own social media that she's happily back at work. to win the job. And the sad part is because he fired both the Democrats. So there was no, there was no, there was no, what's the word I'm looking for? No, no other rationale than politics. He fired only the two Democrats, leaving three Republicans, one Democrat, he went off and got a private sector job. So he didn't fight for his job back, leaving only one Democrat. It's supposed to be no party having more than whatever amount of seats, but it's not supposed to be just four seats and three of them Republican.

1:06:31Michael Popok:For various, very good reasons. I'm so sick and tired of the Supreme Court interfering with Congress. When Congress sets up, and will be Congress, the next time they set up an agency or commission, thinking that they'll be able to control the Supreme Court in how they set their rules. I'm so tired of the Supreme Court taking out a big red pen or a blue pencil and saying, this delicately balanced commission thing and agency thing that the Congress created as an executive agency and then turn it over to the president. Oh, now all those requirements and limitations and restrictions, we're getting rid of those.

1:07:08Michael Popok:Well, maybe Congress would not have created the commission or the agency had they known that the Supreme Court was going to get rid of all of the protections that they built into it. Anybody ever think of that? That maybe they would like to get their agency back and their commission back? And certainly, I think an argument that should have been made and could be made in the future is this is going to have a chilling effect on future Congress's willingness to set up commissions and agencies for the protection of the American people for fear that the Supreme Court is going to rewrite the statutory scheme.

1:07:38Michael Popok:I've never seen that argued. I just argued it here. I liked it. Congress is a complete, has completely, it's like a dereliction of duty. Congress does not exist anymore as a check to this president. They are not, over and over again, they're not doing their job. And they're not forcing any issues. They're just kind of like, Trump's going to get away with it. I'm going to support it. And I was reading today, there was an article, I think it was in the New York Times, where where Laura Loomer, of all people, stopped Senator Mark Warner of Virginia, who's the top Democrat on the Senate Intelligence Committee, and he's a long-serving member of that panel.

1:08:21He was going to go visit an agency I didn't even know existed, the National Geospatial Intelligence Agency. And this is under the Pentagon. It's highly classified. He has oversight over this agency. and Laura Loomer got wind of it through Tulsi Gabbard. And as a result, they canceled his visit there. It was supposed to be classified. It wasn't supposed to be public. No one was supposed to know about it. This is what they do. They go and they're supposed to have oversight. They're supposed to see what's happening. And now what they're basically saying is, gee, sorry, we're taking away the oversight capability of Congress and we're just gonna do what we want in the intelligence community.

1:09:02I mean, it's just bananas And Congress is going along with it. They're just these willing participants and they're not doing their job. And I really hope they get smacked in the midterms because that's outrageous. You know, they're supposed to be separate but equal branches of government.

1:09:16Michael Popok:There's not even time to talk about other things. The Fifth Circuit just destroyed the National Labor Relations Board coming into Labor Day, saying that its entire existence, the way it regulates workplace grievances and other attacks on employees is unconstitutional. That's the Fifth Circuit, which will end up back at the United States Supreme Court. So let's turn to and end the show with the plight of 600 Guatemalan children in a refugee resettlement program. I mean, the Statue of Liberty must be spinning on its axis that we are rejecting through the Trump administration, spreading our wings of freedom that was used to protect children like this who don't want to be and their parents don't want them to be in Guatemala for obvious reasons because of their own lives there, you know, being subjected to torture and other things.

1:10:16Michael Popok:These kids were sent here much the way that a group of Cubans were sent here in the 1960s in the Peter Pan movement to bring children, sometimes unaccompanied, over to the United States for refugee resettlement. But because these are Guatemalan children and Donald Trump wants to get rid of anybody who is black or brown, I guess, he put them on a plane. He revoked their refugee status without due process. Stop me if you've heard this before, everybody. He put them on a plane at one o 'clock in the morning to send them back to Guatemala announcing that he was doing, get this, talking about Orwellian, a family reunification program, pilot program is what they called it in court.

1:11:02Michael Popok:It gets, once the planes are up and running, immigration rights groups spring into action. They file a lawsuit within 58 minutes in federal court. When you do that, you get assigned an emergency duty judge who happened to be Sparkle Suknanen, who herself was a Horatio Alger story up from her bootstraps, is an immigrant who came from Trinidad and Tobago, who got honors in everything she ever accomplished in academia, had top jobs, top leadership positions in the Department of Justice under Joe Biden, including in the Civil Rights Division, was an appellate lawyer in the Civil Rights Division, was in a major law firm in Washington, and was appointed by Biden at the end.

1:11:49Michael Popok:She was assigned because she was the emergency duty judge. She picked up the phone at 3.30 in the morning, Karen, as soon as she got assigned the case and started calling the Department of Justice and got no answer. Remember that old political ad? Who do you want picking up the phone at three o 'clock in the morning? This presidential candidate or this one. Nobody picked up the phone. She set her hearings. And then we're off on 15 separate orders by this judge over the course of a single day, Labor Day Sunday, to force the Trump administration to get 76 of those children that were actually on the planes, off the planes, and back into custody of the refugee resettlement program.

1:12:29Michael Popok:And then certified, or at least temporarily certified, created a putative class of 600 similarly situated Guatemalan children who were on that plane, you know, remind everybody, unaccompanied, in order to make sure that they get the due process that they deserve. That's what happened. But then we've got a development that happened next. Why don't you pick up from what you observed in the case, and then we'll talk about the assignment now of Judge Kelly to the case. Yeah, I mean, look, not the saying not all heroes wear capes. I would say some wear robes, and that's this judge. I mean, when you read what happened, the reason she was up at three o 'clock in the morning trying to get someone on the phone, these were young children who are asleep in bed in a shelter, essentially, who were woken up in the middle of the night, pulled out of bed, terrified.

1:13:24There was testimony that some were vomiting in fear. I mean, pulling these children out of bed, you know, as a mother, you know, like anyone who, who knows what that would be like, how, what the terror that would be like for those children was just so unsettling and so upsetting that this administration would do that to these young children who are just really were so terrified of what was happening to them, put them on a plane, had them pack lunches. I mean, it's just outrageous. And she was up all night trying to get, figure out what's going on. And she ordered that they come back and put them back into their beds.

1:14:06And, you know, unfortunately, after the weekend, when the emergency was over. So she fixed the emergency. She got them back where they belong. Then it went to a regular judge, you know, because this was the emergency judge, the one that was on duty. It got wheeled out and it got wheeled out to not the greatest judge. So I'd love to hear what you think about who got the case.

1:14:25Michael Popok:Yeah. Tim Kelly is not Sparkle Sukhnanen. He is a Trump appointee. He worked. He's a protege of Chuck Grassley, who's still, you know, 85 years old. He's the head of the Senate Judiciary Committee. He worked on the Senate Judiciary Committee as a lawyer. Is he MAGA? I don't know. He's had some cases where it looks like he is. He's had other cases where he's ruled against the Trump administration. But he's not what I thought was the perfect judge for a case involving immigrants and the deprivation of their due process rights in Sparkle Sukhnanan. I'll tell you that. So she, before she departed, however, set a couple of briefing schedules, which are going to occur this week into early next week.

1:15:15Michael Popok:One about the class action status. She's got a couple of briefs that she's ordered due there. and a series of briefs about the preliminary injunction, starting with today, that the immigration rights lawyers are filing to move from a temporary restraining order, which he already entered, into a preliminary injunction, which will be considered by Judge Kelly now. Now, to answer the question, does Judge Kelly have to accept this briefing schedule? Not necessarily. Could he modify it? He hasn't yet, but he could. Could he make different findings and different rulings than she made on temporary restraining order?

1:15:53Michael Popok:Yes, completely. And so we're going to see if the change in judges affects the outcome in this case. It shouldn't. I'd like to say it won't. But there's a good chance that he's going to see this through a different life experience. He's walked in a different pair of shoes, if you know what I mean, than Judge Sukhnanen. So we will report on what happens. Briefs are going to be flying in. Two different tracks of briefs will be coming in over the next several days to have a hearing in the middle of September about whether these children are going or staying. Remember, there are refugees who are asking to be left in America.

1:16:34Michael Popok:Now, the Trump administration, this will be another scandal, I'm sure, I think offered something to the Guatemalans to get them to stand up and say, we're just reunifying all the families and take them back. I don't know if it's on the tariffs or financial payments. Something happened there. And we're going to get to the bottom of that as well, as the record is developed in that particular case. But look what we've accomplished in this particular legal AF, Karen. Four losses or five in eight days, four in four days, five different courts, all for the Trump administration, answering the question, why does it matter?

1:17:10Michael Popok:It matters because when you put when you pressure the Trump administration, you put their feet to the fire, he makes mistakes. And when he makes mistakes, it benefits the cases. He doesn't appeal everything. And ultimately, the Supreme Court doesn't take every case. So you've got to win at the trial court level. You've got to win at the first level of appeal. And then you've got to take your best shot, your best swing at the United States Supreme Court. Sure, he's won 16 cases at the United States Supreme Court, but he's lost eight. And not every case gets there. And he doesn't appeal everything.

1:17:44Michael Popok:He folds along the way. Exactly. Billions of dollars of federal aid have gone back to the states for schools and other things because he's folded. He stopped using the Alien Enemies Act as a tool to remove people without due process. Last time he effectively used it was in March, even though. Yeah, we actually we didn't even cover that. We'll have to do a whole other segment about the Alien Enemies Act ruling that came today. It's really six in five days. We had a panel that ruled in the Fifth Circuit of all places. Yeah, that's what I thought was bonkers. This is the Fifth Circuit, which is normally conservative.

1:18:21Michael Popok:Yeah, I mean, it was a Biden, a Bush, and then a person, Judge Oldham, was trying out to be on the United States Supreme Court on the Trump side. But they declared that Donald Trump doesn't have the right under the Alien Enemies Act to deport anybody, remove anybody, because he declared war improperly or a predatory incursion, which there isn't one. Of course, he covered up that story. I have a hot take up on this. By bombing 11 people out of existence without due process and then acting like a tough guy, like we're at war with Venezuela. Not the first time we've ever used a bombing of a ship as a pretext to a war.

1:18:59Michael Popok:So, you know, we'll cover that more in detail on the Saturday edition of Legal AF. Karen, always great to do this with you. Any last words for our audience? I just really hope that somebody like Melania gets involved and like she did the first time Donald Trump was separating children and families during, remember when that was going on back in the first administration. I think that a lot of women, including his wife, got involved and got him to stop doing that. What's happening to the Guatemalan children, I think, is on that level. And I really do think hopefully somebody will basically say to him, these are children.

1:19:37You can't do that with their lives. And I hope somebody gets him to think better of that, because it just really upsets me when children are the victims of politics, which is what's happening here. But that's my last plea to Melania Trump to please save these children.

1:19:58Michael Popok:If that's what we're left with, we're in deep shit. I know, but she did it last time, so maybe she'll do it this time. Yeah. Yeah. Yeah. Like I said, when it comes to kids, I just can't like that. That's that's what that gets me. I think it was more Ivanka than Melania, but we'll find out. OK, Ivanka, do something. Somebody do something. Somebody just, you know, don't don't don't do that. You know, of all the things like just leave the kids alone. You know, we're here to protect them. We're not here to hurt them. So thank you for joining Legal AF. and thank you to our pro-democracy sponsors, to my co-anchor Karen Freeman-Ignifolo, to our Legal AFers and the Mightest Mighty.

1:20:36Michael Popok:Join us on Saturday where we'll do another version, catch up with the new developments between now and then with Ben Mycelis and me. Meantime, check out Legal AF YouTube channel, Legal AF Substack, and of course the Legal AF podcast, both in audio and in YouTube version. Until our next time together, I'm Michael Popok with Karen Freeman-Ignifolo.

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