Trump Faces Dismissal as Comey Goes Nuclear on Him

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2:27Michael Popok:We got the roundhouse punch, the knockout punch by James Comey and his lawyers that we were expecting going after Lindsay Halligan to knock her out as the U.S. attorney for the Eastern District of Virginia. Not just because she's not qualified, but because she was illegally and unconstitutionally and in violation of a statute appointed by Donald Trump. and they cited what we expected, what I was waiting for. They cited as partial grounds to support their motion a memo, a memo written by a certain Supreme Court justice named Sam Alito when he was a lawyer working in the White House Counsel's Office for Ronald Reagan.

3:02Michael Popok:And he, not knowing that 40 or 50 years later he was going to have to deal with this issue, he supports James Comey's position. Yes, it's going to be great when Alito gets this case and he tries to backpedal his way away from a memo that Sam Alito wrote. I'm Michael Popak. I brought the receipts. I got the motion. I've got the memo from Sam Alito. I'm going to tie it all together here on Midas Touch and on Legal AF. And I'm excited, as you can tell from my finger symbols there. All right, let's get into it. Lindsay Halligan. Remember her? You never should have ever heard about her in history. She should have stayed the insurance defense lawyer, fender bender lawyer that she was.

3:39Michael Popok:But no, she got into MAGA and she ended up becoming Donald Trump's favorite, you know, and teacher's pet. And she got sucked into the White House. And then when there was an opening in the Eastern District of Virginia, she, Donald Trump attempted to appoint her into that opening, except they violated a statute. It's called the Vacancy Reform Act. It's 28 U.S.C. 546. And it says, and it's very simple. It's elegant in its simplicity. It says if there is an opening for the U.S. attorney position while the president is trying to get his permanent picks confirmed by the Senate, the president gets one pick and then that person serves for 120 days, which should be enough under normal circumstances to get your pick confirmed by the Senate.

4:23Michael Popok:But it didn't happen in Eastern District of Virginia because they didn't put up anybody. They fired or the person resigned in the Eastern District of Virginia. They try to stick in one. Now, this is a single-use statute. You get your ticket punched once. You get one bite at the apple. And Pam Bondi had her bite. It was called Eric Siebert. And Eric Siebert was a Republican, but he refused to bend the knee to Donald Trump. He refused to prosecute Letitia James and James Comey. And so he got fired. That means the next position, that position gets filled by the judges of the Eastern District of Virginia.

5:00Michael Popok:That's why James Comey said in his motion, Judge Namikoff, who's the judge presiding, you can't decide this case. You're going to have to send it over, this motion. You're going to have to send this motion up to the Fourth Circuit Court of Appeals. Let them send it to a different judge outside the Eastern District of Virginia because they're all conflicted like you are because you may end up picking the next U.S. attorney. And so they went through the entirety of 546 and how Lindsey Halligan got selected. It's very easy. This is in contrast to the Alina Haba Third Circuit Court of Appeals case today that went terrible for Alina Haba.

5:38Michael Popok:There's no way that Third Circuit, two Bush appointees and an Obama appointee are going to let Alina Haba stay as the U.S. attorney for New Jersey because her path to getting the job was even worse than Lindsay Halligans. Now, Lindsey Halligan's is all under 546. How do I know that? Because they call her the interim U.S. attorney for the interim U.S. attorney for the Eastern District of Virginia. Now, once they fired Eric Siebert because he wouldn't do the job that Donald Trump wanted him to do, that vacancy gets filled by the judges of the Eastern District of Virginia. Not by Donald Trump again, not by Pam Bondi again, putting in Lindsey Halligan.

6:19Donald Trump thinks through a social media direct message or tweet to Pam Bondi, he can get Lindsay

6:25Michael Popok:Halligan. Remember that post? Hurry up, Pam. You know, you need to indict my enemies. You need to indict Comey and Smith. You don't have a lot of time. And Lindsay Halligan really likes you. I thought I was in middle school. Lindsay Halligan really likes you. She'd be perfect. Even Pam Bondi didn't think Lindsay Halligan would be perfect because for about 24 hours, she appointed Meg Cleary, who's now been fired to take the job. And it's already come out that Pam Bondi and Todd Blanchett, number one and number two in the Department of Justice, did not want to prosecute Comey or Letitia James. But Donald Trump found his shadow U.S.

7:02Michael Popok:attorney in the form of Ed Martin, who's the pardon lawyer slash head of the weaponization committee of the Department of Justice. And then he conscripted and grabbed Lindsey Halligan and they indicted. Isn't that great? Except it violated 546. Once they appointed Siebert, it's very simple. They didn't have the ability to appoint anybody else. They can't ride the roller coaster again. Their ticket is already punched. Now, Sam Alito wrote a memo, kind of let off this hot take with that. And in that memo, he wrote while he was in the Reagan administration. By the way, this explains why he's so into the power of the presidency and giving the executive branch unitary power that is superior to that of the other two branches because he worked for Reagan.

7:53Michael Popok:Like Reagan was any great president at the time. I mean, he makes Donald Trump. I mean, Reagan makes Donald. Well, Donald Trump makes Reagan, sorry, look like he should be on Mount Rushmore. Remember, he was half out of it and in the bag the last two years of his administration. Iran-Contra scandal. You can look it up. But Alito worked in the Office of Legal Counsel, which is the official advisor to the Office of the Presidency. And he wrote a memo, which we can put up on the screen, in 1986, in which he said that Congress designed Section 546 to be a single-use statute, that once you appoint, there's no more appointment.

8:32Michael Popok:You can't appoint a second and keep extending the 120 days, 100 more, another 120 days, another 120 days. You get one. Then it goes to the district court judges until you get the permanent appointment. See, the problem that Donald Trump is having, and he's had this problem five or six times, is that he won't nominate people that are credible or with experience or that aren't partisan MAGA hacks. And they're getting rejected by his own party and getting rejected by the senators of each state where this person comes up because they have something called blue slip privilege. Senators have to approve both, have to turn in their blue slips to approve the nominee.

9:09Michael Popok:That's why Alina Habba had to have her nomination withdrawn. Lindsey Halligan's never going to be nominated. Her job wasn't to nominate. Her job was to be some sort of acting interim and get indictments that Donald Trump wanted and then slither away under the rock she crawled out from under. Donald Trump doesn't even care about these indictments. He just wanted the headline in for history. So their obituaries read they were indicted for mortgage fraud or they were indicted for perjury or whatever the frame job is. So Lindsay Halligan, the blind ambition puppet of Donald Trump, who's got her bar license in jeopardy, should be removed by whatever judge is assigned this motion, because it's not going to be Judge Namikoff in Virginia.

9:54Michael Popok:It's going to be in another part of Virginia or maybe in North Carolina. It's going to be another judge. It's because by rule, motions to disqualify that impact the judges, including the judge presiding, it's got to go. So Judge Diaz is going to make this ultimate decision and we'll report on it here on the Midas Touch Network. Delete Me makes it easy, quick and safe to remove your personal data online at a time when surveillance and data breaches are common enough to make everyone vulnerable. As someone with an active online presence, privacy is really important to me. Every week, we're covering stories about data leaks and hacks, people's personal information being exposed, and it really hit home.

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11:13Michael Popok:The only way to get 20 % off is to go to joindeliteme.com slash Legal AF and enter code Legal AF at checkout. That's joindeliteme.com slash Legal AF, code Legal AF. Let me read to you, now that you got the overview, let me read to you from the motion, and we'll post this on Legal AF Substack, under Filings AF. This is what Comey's lawyers, Pat Fitzgerald, says to the court. The indictment in this case is fatally flawed because it resulted directly from a paradigmatic violation of the Constitution's appointments clause, a core element of the separation of powers that defines when and how officers of the United States acquire their authority to act.

11:56Michael Popok:Here are the officials who signed the indictment. And from all indications, the sole official who presented the case to the grand jury, which she had never done before, she'd only been a federal prosecutor for hours, was defectively appointed to her office as interim U.S. attorney. Rather than conform to constitutional and statutory requirements for such appointments, her purported appointment violated the congressionally designed and constitutionally compelled means for the attorney general to appoint an official as interim U.S. attorney. The remedy for this violation is clear. The Supreme Court has repeatedly held that the effect of this fundamental violation of the appointments clause is that the defectively appointed officer's actions are a nullity.

12:37Michael Popok:The indictment is a nullity. It shouldn't exist.

12:44Michael Popok:Its action should be voided ab initio from the beginning, and the indictment should be dismissed with prejudice, which is what they're asking for. Now, when you get into it, they get to the Alito memo. Let's turn to page 15. This is where Sam Alito is going to have a problem when this case lands on the doorstep of the Supreme Court. Just three days after Congress enacted the 1986 law, the Vacancy Reform Act, the Office of Legal Counsel within the Department of Justice issued a memorandum authored by then Deputy Assistant Attorney General Samuel Alito, interpreting the provision in precisely the same manner as Mr.

13:24Michael Popok:Comey here. And I'll put up that memo for you to read on Legal AF Substack. Specifically, OLC concluded that while a, quote, vacancy exists when the 120-day period expires under the amended section 546 and the president has either not made an appointment or the appointment has not been confirmed, it does not follow that the attorney general may make another appointment pursuant to 546 after the expiration of the 120 days. The Office of Legal Counsel there, written by Sam Alito, reasoned that, quote, the statutory plan discloses a congressional purpose that after the expiration of the 120-day period, further interim appointments are to be made by the court rather than by the attorney general.

14:09Michael Popok:That contemporaneous executive branch interpretation provides persuasive evidence of statutory meaning, And then he shoves it up Sam Alito's backside, along with the MAGA 6 on the Supreme Court, by citing to the Loper Bright Enterprises case, which set a new standard that MAGA always wanted about statutory interpretation of an agency's findings. And so I love the fact it's like I'm nerding out on the two cases that they cite, Loper Bright and Casa de Maryland, for that proposition. What's going to happen next? I'm sure there's going to be an opposition paper in two weeks. They're going to argue something like, oh, this impinges on the executive powers under Article 2 of the president.

14:54Michael Popok:Even if Congress wrote that in the statute, it should be knocked out. They're going to cite all these line of cases about inferior officers like at the National Labor Relations Board, the SEC, the Merit Systems Protection Board, and all the rulings on an emergency basis by the Supreme Court and say you should do the same thing here. If you're going to interpret 546, you've got to interpret it consistent with presidential power, and the president gets to appoint as many as he wants because it's an inferior office of the president and the judicial branch shouldn't get involved. That's going to be the argument.

15:27Michael Popok:We'll follow it here. I'm also going to give you a report about the motion to dismiss for vindictive prosecution. But this goes to the heart. If this gets granted, this is a dismissal of the indictment with prejudice. if the motion to dismiss for vindictive prosecution gets granted. That's the same. Two bites at the apple for James Comey, even though Donald Trump and the Department of Justice only get one. I'll follow it all again. Midas touch, hit the subscribe button. Legal AF YouTube. Now is the time you need to defend our First Amendment rights, your First Amendment rights. We're under attack, folks.

16:02Michael Popok:Hit the subscribe button. Come over to Legal AF Substack, and you'll get to read all these motions, including the Alito secret memo. So only a Legal AF Substack. So until my next report, I'm Michael Peltock. Can't get your fill of Legal AF? Me neither. That's why we formed the Legal AF Substack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the Substack. You'll find the court filing and the oral argument there, including a daily roundup that I do call, wait for it, Morning AF. What else? All the other contributors from Legal AF are there as well.

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