Opening Arguments

Opening Arguments

By Thomas Smith and Andrew Torrez

Every episode, legal expert Andrew and comic relief Thomas will tackle a popular legal topic and give you all the tools you need to understand the issue and win every argument you have on Facebook, with your Uncle Frank, or wherever someone is wrong on the Internet. It's law. It's politics. It's fun. We don't tell you what to think, we just set up the Opening Arguments.

Episodes

OA390: Trump's War on Twitter (A Deep Dive on Section 230)

Today's episode breaks down the latest temper tantrum and accompanying executive order by our game show host president attacking social media platforms for having the temerity to engage in fact-checking. You're going to be hearing a lot about "Section 230" -- so we're here to tell you exactly what that means, what Trump is trying to do, and why it matters. We begin, however, with a pretty straightforward Andrew Was Right now that Tulsi Gabbard has voluntarily dismissed her defamation lawsuit against Hillary Clinton that we covered back in Episode 354 ("A Russian Asset Sues What?"). Then it's time for our deep dive into CompuServe, Prodigy, section 230 of the Telecommunications Decency Act of 1996, 47 U.S.C. § 230 -- which ended internet porn forever -- and what all of that has to do with Trump's latest tantrum over being fact-checked on Twitter. You won't want to miss it! After that, it's time for an update on the amicus brief we're filing in the Flynn case. We tell you what Flynn's best case is, and walk through how it does and does not inform Judge Sullivan's discretion under Rule 48(a). And then, of course, we end with an all-new Thomas Takes the Bar Exam involving a fire at one warehouse spreading to another. If you want to play along, just share out this episode on social media using the hashtag #T3BE and we might pick you as next week's winner! Patreon Bonuses We've got an all-new Live Q&A scheduled for Sunday, May 31 at 7 pm Eastern / 4 pm Pacific, and Patrons can click here to suggest questions and vote on the ones they want answered. Also remember that Patrons can give their input on the OA Amicus Brief! Appearances Andrew was just a guest on the latest episode of The Daily Beans. And if you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com. Show Notes & Links Tulsi links: (a) click here for the news that Tulsi Gabbard has voluntarily dismissed her lawsuit; (b) here to read the original defamation lawsuit against Hillary Clinton; (c) the Time magazine story on how strong a case Tulsi Gabbard had; and (d) be sure to listen to our coverage of this from Episode 354 ("A Russian Asset Sues What?"). Trump links: (a) click here for the fact-check on Trump; (b) here is the text of 47 U.S.C. § 230; (c) for the draft of the Executive Order, check out Page 1, Page 2, Page 3, Page 4, Page 5, and Page 6. OA brief: Click here to read U.S. v Fokker Svcs. BV, 818 F.3d 733 (D.C. Cir. 2016). -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
29/05/201h 25m

OA389: #Obamagate (w/guest AG!)

Today's episode brings back AG of the Mueller She Wrote and Daily Beans podcasts to help delve in to all the craziness that is #Obamagate. And, as a bonus, we also discuss the five Inspectors General fired by Trump and what they were investigating. You won't want to miss this special episode! As it turns out, #Obamagate is nonsense. Who knew? After the hour-long interview, it's time to revisit #T3BE, in which Thomas decided the issue was hearsay, not spousal privilege. Did he get the answer correct? Listen and find out! Patreon Bonuses Patrons can give their input on the OA Amicus Brief! Appearances Andrew was just a guest host on Episode 123 of the Skepticrat, discussing some of these same issues. And if you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com. Show Notes & Links Check out this story on Steve Linick, the AG investigating Mike Pompeo. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
26/05/201h 21m

OA388: Reinstating the Rule of Law

Today's episode checks in on all the latest goings-on in the Trump administration that probably don't violate the law but do undermine the norms of 200+ years of government, from firing Inspectors General that are potentially interested in government accountability to the DOJ's refusal to turn over the unredacted Mueller Report to the House Judiciary Committee to the collusion between Bob Barr and Michael Flynn. You won't want to miss it. We begin with some pre-show news about Cory Wilson, the latest completely insane, hyper-partisan (and 49-year-old) Trump nominee for the U.S. Court of Appeals. From there, we take a deep dive into the Inspector General Act of 1978, 5a U.S.C. § 3, and the legal protections for IGs (or lack thereof). After that, it's time to check in on the latest order by the Supreme Court staying the production of the unredacted Mueller Report to the House Judiciary Committee. We explain exactly what that means and when, if ever, you should start panicking. Then, it's time for an update on the Flynn case where we're filing The Opening Arguments Amicus Brief! Also, we check in on a truly terrible Sidney Powell filing seeking mandamus from the D.C. Circuit. After all that, it's time for a brand-new #T3BE about a man, his yacht, and insurance fraud -- in which Thomas tries to figure out if the issue is privilege, hearsay, or something else entirely. Patreon Bonuses Patrons can give their input on the OA Amicus Brief! And if you missed our live Q&A, you can check out the audio here! Appearances Andrew was just a guest on the latest episode of the Daily Beans podcast! And if you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com. Show Notes & Links Cory Wilson was rated a tepid "Qualified" by the ABA his first-go-round; that got upgraded to "mostly Well-Qualified" when he was renominated. Check out the Inspector General Act of 1978, 5a U.S.C. § 3. This is the Supreme Court order staying the production of the unredacted Mueller Report. Here's the petition for mandamus, and the opposition by the House of Representatives. We last covered the Flynn case in Episode 386. Click here to read the 4th Circuit's mandamus opinion in In re Flynn. And click here to check out the late-breaking order from the 4th Circuit requiring additional briefing from Judge Sullivan. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
22/05/201h 15m

OA387: You Pay the Priest (w/Andrew Seidel)

Today's episode features an interview with one of our favorite recurring guests, Andrew Seidel, who returns to warn us of new regulations pursuant to the CARES Act that are permitting churches to take PPP money. Yes, that means your tax dollars are literally paying the salaries of ministers, priests, imams, and the like. We also discuss what just happened in Wisconsin, where the Supreme Court invalidated Gov. Evers's stay-at-home order. Is it bad? Listen and find out! (Yes.) After that, it's time for the answer to #T3BE about when & where double jeopardy attaches. Patreon Bonuses Patrons can give their input on the OA Amicus Brief! And if you missed our live Q&A, you can check out the audio here! Appearances None! If you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com. Show Notes & Links If you missed Andrew Seidel's last appearance in Episode 376, go check it out! -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
19/05/201h 19m

OA386: The Opening Arguments Amicus Brief!

Today's episode marks a milestone for the show: we're going to file an amicus curiae brief in the Michael Flynn case. Find out exactly how & why we're doing this! We begin, however, with a brief update in the various emoluments cases, including an update on the two orders released this morning by the 4th Circuit en banc. After that it's time to dig into all the developments in the Flynn litigation that will lead to the filing of Opening Arguments' first amicus brief! Then, it's time for #T3BE, featuring next week's guest, Andrew Seidel! Patreon Bonuses If you missed our live Q&A, you can check out the audio here! Appearances None! If you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com. Show Notes & Links The last time we broke down the emoluments clause cases was in Episode 361. You can check out the two orders released this morning by the 4th Circuit en banc (the first one is the lengthy discussion). Flynn docs: the DOJ's Motion to Dismiss; the Notice of Intent to file amicus by the Watergate Prosecutors, as well as the 9th Circuit's Opinion in U.S. v. Hector. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
15/05/201h 21m

OA385: Reality Check! (w/Allison Gill)

Today's episode features an in-depth interview with Allison Gill of American Atheists regarding the just-released survey Reality Check, which interviews more than 34,000 nonreligious individuals, gathering data as a precursor to support specific arguments with lawmakers in terms of lobbying for recognizing atheist constituents. You won't want to miss it! We begin, however, with a bit more in-depth analysis about the nonjusticiability doctrine and how it might affect the Supreme Court's decision in the Mazars and Deutsche Bank subpoena cases -- which are being heard today by the Supreme Court! Then, it's time for our in-depth interview with Allison where we talk about discrimination against atheists, including a deep dive into the actual research that shows how atheists are treated in society -- even among educated peers. After all that, it's time for the answer to #T3BE 177 involving a noxious factory next to a residence and mini-golf. Can Thomas keep up his winning streak? There's only one way to find out!
12/05/201h 20m

OA384: Bridgegate Apparently Was Fine

Today's episode updates you on all the recent goings-on at the Supreme Court, including the advent of new, social-distancing-approved oral arguments, the Court's calendar, and today's 9-0 reversal in Kelly v. U.S., the Bridgegate case. Oh, and while we're at it, we also take on two lengthy Andrew Was (Sort of) Wrong segments! Phew! We begin with a discussion of the new procedures for SCOTUS oral arguments, and give an apology to Clarence Thomas, who's now engaged and asking questions after decades of silence on the bench. After that, it's time to take a look at the SCOTUS calendar where we check out some suspicious timing regarding the non-release of the Title VII cases as well as 10 pending gun control cert petitions. Then, it's time for a deep dive into Kelly v. U.S., which we last covered in Episode 232. Andrew thought the 3rd Circuit's analysis of "property" was plausible in that episode... and just got reversed 9-0 by a unanimous Supreme Court. Whoops! As long as Andrew Was Wrong, how about we check back in on Andrew Yang's lawsuit against the DNC, in which Yang (despite "not having a great case," according to Andrew in Episode 382) nevertheless managed to secure an injunction from the Southern District of New York. Find out where this case is headed, what's next, and why Andrew is STILL right, sort of.... Finally, Andrew Was... not wrong, exactly, but Flabbergasted that the American Bar Association reversed itself, finding Justin Walker "Well Qualified" for serving on the U.S. Court of Appeals for the D.C. Circuit. Andrew, on the other hand, continues to rate Walker "Not Qualified," as per Episode 289. After all that, it's time for a brand-new #T3BE involving a nuisance plant next to a mini-golf park. Will Thomas's winning streak continue? Patreon Bonuses If you missed our live Q&A, you can check out the audio here! Appearances Andrew was just a guest on Episode 204 of The Daily Beans, talking justiciability. If you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com. Show Notes & Links Click here to read the Supreme Court's opinion in Kelly v. U.S., and here to listen to our coverage of the Third Circuit's opinion in Episode 232. Check out the district court's injunction in favor of Andrew Yang reinstating the New York Democratic primary. You can check out the ABA's "Not Qualified" ranking of Walker in 2019 and match it against their new "Well Qualified" letter here. For more on why you should #OpposeJustinWalker, check out Episode 289. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
08/05/201h 26m

OA383: Trump's Taxes & The CARES Act (Or: Why Your Vote Matters)

Today's episode checks back in with the status of the consolidated cases pending before the Supreme Court regarding Trump's tax returns. As it turns out, this overlaps pretty strongly with the show's "B" segment about the potential for abuse in the CARES Act. We begin with a colossal "Andrew Was Wrong" -- in which Andrew optimistically predicted we'd see Trump's tax returns in 2019. That... turned out not to be the case. So what are the odds that we'll see Trump's taxes before the November elections? Listen and find out! After that, it's time for another semi-deep-dive, and this time we're checking back in with the just-passed CARES Act as Andrew talks about a provision we missed the first time around that has the potential to... well, you'll just have to listen and find out! Then, it's time for the answer to #T3BE 176 involving burning a copy of the IRS Code. Is it illegal? If so, why? Patreon Bonuses If you missed our live Q&A, you can check out the audio here! Appearances Andrew was just a guest on Episode 121 of the Skepticrat, talking about the abuse of the Paycheck Protection Program and other crazy legal stories in the news. And if you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com. Show Notes & Links Click here to read the letter sent by Liz Warren & other Democratic Senators to Deutsche Bank. Our comprehensive overview of the CARES Act was in Episode 372, and you can read the final CARES Act here. The Sunshine Act is 5 U.S.C. § 552b. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
05/05/201h 9m

OA382: Bernie Sanders Was Right! (The DNC & Payday Lenders)

Today's episode takes two deep dives -- first, into New York's cancellation of its Democratic Presidential Primary, and second, into the Paycheck Protection Program (PPP) and efforts by scumbag payday lenders to take your tax dollars despite being parasites. We begin with a thorough examination of the DNC's Delegate Selection Rules and the Call For Convention Rules and figure out whether Bernie Sanders can get to 25% -- and why that matters. Learn why Andrew Yang's lawsuit omits what Andrew thinks is the best argument -- Rule 11.C -- and exactly how it comes into play in terms of the candidates' delegate count. We end with some optimism and a bold prediction by Andrew about the Biden campaign! After that, it's time for a deep dive into a provision of the CARES Act that we didn't cover back in Episode 372, namely, the Paycheck Protection Program. How does it operate? And how are payday lenders operating on two fronts to try and take advantage of it? Listen and find out! Then, it's time for an all-new #T3BE about a libertarian tax protestor who sets fire to the Internal Revenue Code inside a government building. (We can't make this stuff up.) Patreon Bonuses Our next LIVE Q&A is scheduled for Friday, May 1, at 8 pm Eastern / 5 pm Pacific, and you can post and vote on which questions you want to see answered! And don’t forget that we’ve released Law’d Awful Movies #39, Class Action, starring Gene Hackman and Mary Elizabeth Mastrantonio, and featuring guest performer Matt Donnelly of the Ice Cream Social podcast! Appearances Andrew was just a guest on Episode 121 of the Skepticrat, talking about the abuse of the Paycheck Protection Program and other crazy legal stories in the news. And if you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com. Show Notes & Links Click here to read Andrew Yang's lawsuit against the DNC; here for the Delegate Selection Rules; and here for the Call For Convention Rules. This is the April 17, 2020 AP article suggesting that Biden may let Sanders keep his statewide delegates. Latest news regarding payday lenders: this April 29, 2020 New York Times article suggesting the fix was in at Trump's CFPB, and former CFPB member Jonathan Lanning's blockbuster 17-page email documenting the corruption. Here's the list of SBA Section 7(a) lenders, and this is the relevant regulation, 13 CFR § 120.110(b). -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
01/05/201h 13m

OA381: The Legal Eagle Interview!

Today's episode... was supposed to have two bookend segments and legal analysis, but we wound up having so much fun talking to Devin Stone, the Legal Eagle himself about nontraditional careers in the law, Tiger King and Better Call Saul, and so much more! After that, it's time for the answer to the first Thomas and Devin Take The Bar Exam in which it was literally Hammer Time for two friends watching football. Did Thomas and Devin get it right or wrong? Listen and find out! Patreon Bonuses Our next LIVE Q&A is scheduled for Friday, May 1, at 8 pm Eastern / 5 pm Pacific, and you can post and vote on which questions you want to see answered! And don’t forget that we’ve released Law’d Awful Movies #39, Class Action, starring Gene Hackman and Mary Elizabeth Mastrantonio, and featuring guest performer Matt Donnelly of the Ice Cream Social podcast! Appearances Andrew was just a guest on Episode 121 of the Skepticrat, talking crazy legal stories in the news, and Episode 375 of the Scathing Atheist, breaking down the latest legal nonsense from Kansas. And if you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com. Show Notes & Links Don't forget to check out the Legal Eagle YouTube channel. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
28/04/201h 10m

OA380: This Week at the Supreme Court

Today's episode breaks down two significant Supreme Court decisions released this week, including Barton v. Barr (involving immigration) and Ramos v. Louisiana (involving unanimous jury verdicts). We break down each one and explain the short- and long-term implications. First, though, it's time for a bit of Andrew Was Right and Andrew Was Wrong. The good news: Texas has changed its Executive Order formerly prohibiting abortions and has now affirmed in open court that it will not use the COVID-19 pandemic as pretext for denying reproductive health rights! Best of all, this is exactly the result we've been telling you would happen over the past few weeks -- even though it took us a bit to get there. But also Andrew Was Wrong? Yeah, Andrew also has a correction to issue regarding lifetime judicial appointments in Episode 378. Then, it's time for the main segment in which we break down the Supreme Court's completely predicable -- and utterly unjustifiable -- 5-4 decision in Barton v. Barr to restrict the remedies available to legal aliens to challenge removal decisions. Find out why Neil Gorsuch openly admits that the interpretation he votes for makes no sense, textually. (Hint: it's because these justices don't care about jurisprudence, just about outcomes.) After that, we tackle a second key Supreme Court decision that came out this week, Ramos v. Louisiana, in which the Court ruled that the Sixth Amendment right to a unanimous jury was incorporated to the states. Find out why this case presents a "stare decisis trap" for the Court's liberal justices and how that explains this unique 6-3 alignment with Roberts, Alito, and Sotomayor in dissent (!) Then, of course, it's time for an all-new Thomas (and Devin) Take the Bar Exam, in which we preview next week's special guest and they try and break down a criminal question about football. You won't want to miss it! Patreon Bonuses Our next LIVE Q&A is scheduled for Friday, May 1, at 8 pm Eastern / 5 pm Pacific, and you can post and vote on which questions you want to see answered! And don't forget that we've released Law’d Awful Movies #39, Class Action, starring Gene Hackman and Mary Elizabeth Mastrantonio, and featuring guest performer Matt Donnelly of the Ice Cream Social podcast! Appearances Andrew was just a guest on Episode 375 of the Scathing Atheist, breaking down the latest legal nonsense from Kansas. And if you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com. Show Notes & Links For a sneak peek at next week's guest, check out the Legal Eagle YouTube channel. Click here to read the Court's decisions in Barton v. Barr (involving immigration) and Ramos v. Louisiana (involving unanimous jury verdicts). In the A segment, we discuss the hilariously-secretive announcement of GA-15, the text of GA-15 itself, and quote extensively from the reply brief filed by Texas in Judge Yeakel's court (W.D. Tex.). Our previous immigration discussions were in Episodes 301 and 314. We talked about how subsection d(1)(B) was buried on page 596 of the 750-page Omnibus Consolidated Appropriations Act of 1997, and also broke down the text of both 8 U.S.C. § 1229b and 8 U.S.C. § 1282. Finally, please read this amazing piece by Linda Greenhouse in the New York Times analyzing the Court's decision in Ramos v. Louisiana. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
24/04/201h 21m

OA379: Trump's Contempt for the Press & Husch Blackwell

Today's episode features a deep dive on a completely frivolous lawsuit filed by Donald Trump against a Wisconsin TV station for simply airing an ad created by Priorities USA that... uses a pastiche of Trump's own words talking about COVID-19. Learn why Trump (and his corrupt lawyers at Husch Blackwell) are transparently trying to silence any public criticism of this President. First, we begin with an update on the various emoluments clause cases and we learn a) the status of all three cases and b) why none are likely to be decided before the next Presidential election. Then, it's time for that deep dive into Trump for President, Inc. v. Northland Television d/b/a WJFW-NBC, a nonsense lawsuit designed to intimidate a local TV station for airing a garden-variety attack ad against Trump's handling of COVID-19. After that, it's time to decipher whether Trump can actually de-fund the World Health Organization (WHO), as he's threatened. (Hint: no.) Then, of course, it's time for the answer to a thrilling #T3BE involving breach of contract by a beloved aunt and her niece over the ownership of a business, the transfer of a lease, and some slow lawyers. Will Thomas's win streak continue? Listen and find out! Patreon Bonuses We just released Law'd Awful Movies #39, Class Action, starring Gene Hackman and Mary Elizabeth Mastrantonio, and featuring guest performer Matt Donnelly of the Ice Cream Social podcast! Appearances None! If you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com. Show Notes & Links Whatever you do, don't share out this anti-Trump ad created by Priorities USA on social media, or you might get sued by Trump via his lawyers at Husch Blackwell. You can read the Trump for President, Inc. v. Northland Television d/b/a WJFW-NBC lawsuit for yourself. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
21/04/201h 19m

OA378: Trump's Stupid Threat to "Adjourn" the Senate (A Primer on Appointments)

Today's episode breaks down the latest threat by Donald Trump to "adjourn" the House and Senate, and explains why a) you shouldn't be scared and b) he's unlikely to do it. This is a stunt designed to distract us from how badly Trump has handled COVID-19; we recognize we're sort of falling for it, so we're bringing you a deep dive on appointments and good news as well! We begin, however, with that good news, including an update on the HUGE VICTORY for the forces of democracy in Wisconsin in the aftermath of the Supreme Court's shameful decision that we discussed in Episode 376. And, to pile on, we talk about good news in all of the abortion cases, even those in Texas! After that, it's time for the main segment breaking down whether Trump can adjourn the House and Senate (probably), whether he will (almost certainly not), and why not (because there's not much to be gained and a ton to risk). Along the way, we'll do a deep dive into NLRB v. Noel Canning, a 2014 Supreme Court decision that constrains Presidential "recess appointments" -- which is what Trump would presumably adjourn the Senate to do. Then it's time for a brand new #T3BE about an aunt who changes her mind about selling her business to her niece. Can she be sued? Listen and find out! And, as always, if you want to play along on social media just share out this episode along with your answer! Appearances None! If you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com. Show Notes & Links Here's Trump's threat to adjourn Congress. We begin with an analysis of the Senate's rules on advice-and-consent in approving Presidential appointments. You'll want to read NLRB v. Noel Canning, 134 S.Ct. 2550 (2014). Finally, here's the Tweet by Steve Vladeck with which Andrew disagrees. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
17/04/201h 30m

OA377: Trump's Pyramid Schemes and Arbitration (feat. AG!)

Today's episode features one of our most-requested return guests, AG of the Mueller She Wrote and Daily Beans podcasts. AG joins us for "Below the Radar," stories that you might have missed while your eyes glazed over during the 11th consecutive coronavirus press conference. We begin, however, with a nice grab-bag of Andrew Was Rights (and Wrongs, sadly) from the Carolinas to Illinois to the CARES Act to the sad and perhaps inevitable ascension of 37-year-old Federalist Society hack Justin Walker, Andrew Was... Something. After that it's time to welcome on AG to discuss a recent ruling requiring the Trump crime syndicate in both their individual and corporate capacities to actually litigate claims rather than shunt them off into arbitration. Andrew and AG break down the significance of last week's ruling, which may have flown... Under The Radar (TM). Then, it's time for the answer to #T3BE 173 involving an auto accident, contributory negligence, and one of our favorite lawyers. Did Thomas and Andrew get it right? Listen and find out! Patreon Bonuses We just did an amazing SIO crossover with an Australian lawyer on the Cardinal Pell decision, and don’t forget you can also participate in the Transformers coloring book challenge! And, if you missed it, don’t forget to listen to the audio from March’s LIVE Q&A and Andrew’s Lecture, “We’re All Gonna Die!” and the accompanying slides! PHEW! Appearances Andrew was just a guest host on the Talk Heathen live call-in show, so you can see how he handles religious apologists. If you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com. Show Notes & Links We broke down the CARES Act in Episode 372, and you can check out the final "no offset" provision here, on p. 154. For more on Justin Walker, check out his debate with Andrew on Episode 224 and our breakdown of his lack of qualifications to serve on the federal bench in Episode 289. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
14/04/201h 18m

OA376: Texas, Wisconsin & Washington (feat. Andrew Seidel)

Today's episode updates you on litigation in three states: in Texas, where the 5th Circuit blocked the lower court injunction, allowing the anti-abortion executive order to go into place; in Wisconsin, where the Supreme Court literally killed people; and in Washington, where publicity-seeking idiots have some liberals convinced Fox News is about to file for bankruptcy. We begin in Texas, with an Andrew Was Wrong -- and also, a hidden message of solidarity from the dissent in In re Greg Abbott as to how abortion clinics can stay open despite Executive Order GA-08. You won't want to miss it! Then, we have on Wisconsin citizen Andrew Seidel to break down the Supreme Court's decision forcing people to the polls during an epidemic. Bonus: you can count the number of relevant citations in the majority opinion (0). After that, it's time to check out the Complaint in WASHLITE v. Fox News, which will probably get us sued by litigation-happy buffoons. As you can imagine, we are NOT KIND to this wadded-up diaper full of nonsense. Then, you know it's time for a brand-new #T3BE where Thomas and Andrew S. tackle a civ pro question framed around a car accident. Want to play along? Just share out this episode on social media with #T3BE and we'll pick a winner.... Patreon Bonuses We just did an amazing SIO crossover with an Australian lawyer on the Cardinal Pell decision, and don't forget you can also participate in the Transformers coloring book challenge! And, if you missed it, don’t forget to listen to the audio from March’s LIVE Q&A and Andrew’s Lecture, “We’re All Gonna Die!” and the accompanying slides! PHEW! Appearances Andrew was just a guest host on the Talk Heathen live call-in show, so you can see how he handles religious apologists. If you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com. Show Notes & Links Here is the Supreme Court's opinion in connection with the Wisconsin election. Here's the headquarters of WASHLITE - 1826 Berry Street NE, Olympia, Washington, and here are the articles on Arthur West (Seattle Times) and Liz Hallock (Yakima Herald). The binding decision in the Washington courts is Fidelity Mortgage Corporation v. Seattle Times Co., 131 Wn. App. 462 (2005). -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
10/04/201h 31m

OA375: Knowledge Fight!

Today's episode is a fun interview with Dan and Jordan from the Knowledge Fight! podcast, your #1 source for deciphering the otherwise-indecipherable world of Alex Jones. We think you'll enjoy this interview; it's got a little bit of everything -- laughter, tears, and, of course, madness. After the interview, it's time to answer an exciting new #T3BE civ pro question that involves res judicata — a concept so convoluted, courts often screw it up. Will Thomas get it right? Listen and find out! Patreon Bonuses We're still bringing you the Patreon bonuses! You can submit proposed new intro quotes for the show, and you can also participate in the Transformers coloring book challenge! And, if you missed it, don't forget to listen to the audio from March’s LIVE Q&A and Andrew’s Lecture, “We’re All Gonna Die!” and the accompanying slides! PHEW! Appearances Once more, Andrew was a guest on the Daily Beans Podcast, breaking down the week in news. If you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com. Show Notes & Links You should really check out the Knowledge Fight! podcast! -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
07/04/201h 14m

OA374: The Light at the End of the Tunnel

Today's episode covers a number of stories that might be bad news for now, but each one, we think there's a reason to be optimistic beneath the surface. We also make sure we're holding Idaho's feet to the fire for the anti-trans bills that state tried to sneak past the radar this week, and we tell you the fate of states that have tried to restrict access to abortion using COVID-19 as pretext. We begin with a survey of the landscape including the states that haven't issued stay-at-home orders. There's an interesting commonality among these states' governors; can you figure it out?? Then, it's time for our main segment which is a deep dive into Idaho HB 509 that attempts to prevent trans people from changing their gender on their birth certificate. The bill is horrible, bigoted, and mean... and yet why are we optimistic? You'll have to listen and find out! After all that, it's time to take a look at the six states that have attempted to restrict access to abortion services during COVID-19 and examine the latest rulings by the Fifth Circuit. Why isn't it as bad as you've heard? We tell you exactly why. We conclude, as always, with a brand-new #T3BE featuring a civ pro question that involves res judicata -- a concept so convoluted, courts often screw it up. Will Thomas get it right? Listen and find out! Patreon Bonuses There’s still so much right now! If you’re a Patron, you can submit proposed new intro quotes for the show, and you can also listen to the audio from March's LIVE Q&A! Oh, and if you missed it, you can also enjoy Andrew’s Lecture, “We’re All Gonna Die!” and the accompanying slides! Appearances Andrew was just a guest on the Daily Beans Podcast, talking megapastors flaunting the law. If you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com. Show Notes & Links You should read F.V. v. Barron, the Idaho case we discussed at length, as well as the current Idaho rules regarding birth certificate changes. You can also check out the WPATH Standards of Care document. This is the 5th Circuit's order on abortion. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
03/04/201h 22m

OA373: The Happy Show!

Idiotic legal pleadings, sports law, and some news debunking... what could be happier?
31/03/201h 16m

OA372: The CARES Act, COVID-19, and Your $1,200 Check

Today's episode breaks down the three main provisions of the just-passed CARES Act in terms of (1) additional unemployment benefits, (2) tax relief in the form of advance $1,200 "rebate" checks to taxpayers, and (3) the $500 billion "slush fund" for corporate giveaways. While there's more in this 880-page monstrosity, we break down the key parts for you! We begin, however, with some good news about the impending retirement of Ohio Rep., Trump-supporting lunatic, and soon-to-be-White House Chief of Staff Mark Meadows. Does this violate the Ineligibility Clause of the Constitution? YOU BETCHA. Is it #ClearAsKushner? YEP! And this time, does it matter? YES IT DOES! After that it's time for a full breakdown of the main components of the CARES Act, including how much money you'll be getting and when, what the costs are, and what the provisions are that can come into play to prevent all of this from winding up in Jared Kushner's pocket. You won't want to miss it! After all that, it's time for a quick segment on IRS Form W-7, which allows you to pay your taxes if you're a nonresident alien. Patreon Bonuses There's so much right now! If you're a Patron, you can submit your questions for next Tuesday's LIVE Q&A scheduled for 3/31 at 8 pm Eastern / 5 pm Pacific, and you can also enjoy Andrew's Lecture, "We're All Gonna Die!" and the accompanying slides! Appearances Andrew was just a guest on the Daily Beans Podcast, talking President Leahy. If you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com. Show Notes & Links On the Ineligibility Clause: check out Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974) (restricting taxpayer and citizen standing) and Metropolitan Washington Airports Authority et al. v. Citizens For The Abatement Of Aircraft Noise, Inc., et al., 501 U.S. 252 (1991) (invalidating Congressional action pursuant to the Ineligiblity Clause). You can read the final CARES ACT for yourself, all 880 pages of it! Please do fill out IRS Form W-7 if it applies to you. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
27/03/201h 20m

OA371: Your COVID-19 Questions, Continued!

Today's episode is the second half of our double-length episode in which we tackle your questions about the coronavirus and the law. If you haven't listened to Episode 370 (Part 1) first, go check that out! We tackle: The extent of federal and state powers during emergencies, including the National Emergency Act, 50 U.S.C. Ch. 34, the Stafford Act, 42 U.S.C. § 5121, and 42 U.S. § 264; And we contrasted that with state powers, such as 2018 Maryland Code, Public Safety Art., Title 14, Article 3. Whether the House of Representatives has to vote in chamber, or whether they can use technology; Whether restrictions on gatherings violate the First Amendment; Whether you can be charged with a crime for spreading coronavirus; And much, much more! No #T3BE this week as we jam-pack 2.5 hours of content for your self-quarantining listening pleasure! Patreon Bonuses If you’re at the $2 level or above, we have an amazing new Law’d Awful Movies featuring the Larry Klayman/Roger Stone deposition that must be heard to be believed! Cucker Carlson! Appearances None! If you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com. Show Notes & Links As an overview to states of emergency, we began with Ex parte Milligan (1866). Federal powers: 50 U.S.C. Ch. 34, the Stafford Act, 42 U.S.C. § 5121, and 42 U.S. § 264; the federal government has enumerated powers as per the 10th Amendment. Check out the Rules of the House of Representatives. On time, place & manner we cited Ward v. Rock Against Racism, 491 U.S. 781 (1989). -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
24/03/201h 17m

OA370: Can Trump Cancel the Election? and Other COVID-19 Questions!

Today's episode begins with a discussion of the recent dismissal of charges by the Department of Justice against Concord Management & Consulting, LLC (and Concord Catering) with prejudice. Is this another example of Attorney General Bill Barr's meddling? We explain that it... probably... isn't. Probably. After that, it's time for the first part of a double-length episode in which we tackle your questions about the coronavirus and the law. First up are all the questions involving elections, including whether and how Trump can suspend or eliminate the election, and what would happen if he did. If you've always wanted Vermont Senator Pat Leahy to be President, well, this is the episode for you! No #T3BE this week as we jam-pack 2.5 hours of content for your self-quarantining listening pleasure! Patreon Bonuses If you’re at the $2 level or above, we have an amazing new Law’d Awful Movies featuring the Larry Klayman/Roger Stone deposition that must be heard to be believed! Cucker Carlson! Appearances None! If you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com. Show Notes & Links On Concord Management: you can check out the 2019 Motion alleging that Concord was abusing the discovery process as well as the 3/16/20 motion to dismiss. As an overview to states of emergency, we began with Ex parte Milligan (1866). On primaries: Check out the Ohio Supreme Court's denial of the writ of mandamus to hold the March 16 primary, as well as the lawsuit filed by the Ohio Democratic Party. Oh, and if you want to be depressed, read Nixon v. Herndon, 273 U.S. 536 (1927). Election statutes: 2 U.S.C. §§ 1, 7 (“Time of Election”) and 3 U.S.C. §§ 1 et seq. And of course, don't forget Bush v. Gore, 531 U.S. 98 (2000), which we broke down way back in Episodes 3, 4, and 5 of the show! Presidential succession is governed, inter alia, by the 20th Amendment and the Presidential Succession Act, 3 U.S.C. § 19, and the Speaker of the House is required by Art. I, Section 2 of the Constitution and implemented by the House Rules. Pat Leahy as President was first proposed by journalist Ian Millhiser. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
20/03/201h 13m

OA369: Humanist Invocations & LED ZEPPELIN

Today's episode features two deep dives: first, we have an interview with David Williamson of the Central Florida Freethought Community to discuss their successful (!) five-year lawsuit to permit humanist, atheist & non-clergy invocations before the Brevard County council meetings. Find out how this case developed and learn some strategies for successful grass-roots activism even in the age of Trump! We also take one more deep dive into the amazing Spirit/Led Zeppelin lawsuit, this time taking a look at the recent en banc decision by the full 9th Circuit that reverses the earlier panel opinion (and is a win for Led Zep). The 9th Circuit has some interesting things to say about the "inverse ratio" rule that really brings out discussion from the past two weeks (see episodes 365 and 367). We know you'll enjoy it! After that, it's time for the answer to #T3BE 170, which matched Thomas up against the dreaded REAL PROPERTY QUESTION. Can he slay the beast? Listen and find out! Patreon Bonuses If you're a patron at any level, you can ask a coronavirus question to be answered on the next two episodes, and if you're at the $2 level or above, we have an amazing new Law'd Awful Movies featuring the Larry Klayman/Roger Stone deposition that must be heard to be believed! Appearances None! If you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com. Show Notes & Links Check out the Central Florida Freethought Community We first took a "Stairway to the Supreme Court (?)" back in Episode 236 and then did a follow-up in Episode 288. Of course, we also covered Riehl and Rubin’s project in Episode 365 (“Every Melody Ever, Part 1”) and interviewed Riehl and Rubin themselves in Episode 367. Finally, you can read the recent en banc decision by the full 9th Circuit for yourself. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
17/03/201h 26m

OA368: Your Guide to the Coronavirus, Part 2

Today's episode continues our discussion from Episode 366 on the political, criminal, and civil legal issues surrounding coronavirus and COVID-19 in the United States, including whether the CDC has the authority to waive the fees associated with testing for the virus (they do!) and how this is going to affect civil society (badly). You won't want to miss it -- and you'll be stuck inside your house anyway, so you'll have all the time in the world to listen! We begin, however, with some nuance regarding An Andrew Was Right, the line of Presidential succession, the 12th and 22nd Amendments, and whether Barack Obama can be Joe Biden's Vice-President. Learn that... apparently there's an argument that he could? After that, it's time for the main segment, which covers COVID-19 and the coronavirus, specifically (a) Rep. Katie Porter's amazing cross-examination of the CDC Director and the legal authority; (b) lawsuits against con artists like Jim Bakker and Alex Jones; (c) Congress's response; (d) more on private lawsuits and the specific example of SXSW; and (e) a really interesting question about jury duty and the future of jury trials. After all that, it's time for a dreaded REAL PROPERTY #T3BE. Can you get it right? Just share out this episode on social media, include the hashtag #T3BE, your guess, and your reasons therefor and we will shower the winner with... well, you know. Appearances Andrew was just a guest speaker at Houston OASIS, and we’ll be working to bring you the audio of his speech from that event. And if you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com. Show Notes & Links In the "A" segment on Presidential succession, we referenced this law review article from Peabody & Gant. Check out the video of Katie Porter's blistering cross-examination of the CDC Director as well as the text of 42 CFR § 71.30. And, of course, you'll want to listen to our original coverage back in Episode 366. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
13/03/201h 14m

OA367: Interview with the "All the Music" Creators!

Today's episode is a continuation of Part 1, in which we discuss Damien Riehl and Noah Rubin's "All the Music" project and the history and future of music copyright. We've got a special treat for you in that Damien and Noah are both on the show to answer our (tough!) questions. You won't want to miss this fun discussion! We begin, however, with a listener question/comment about attending law school and balancing costs, risks, and budgets that many of our listeners will undoubtedly find timely. Then it's time to bring on Damien Riehl and Noah Rubin for a fascinating deep dive into the mechanics, the law, and the public policy behind their "All the Music" project. Where should our sympathies lie? What changes to copyright law would better benefit music creators? How do Riehl and Rubin see the fundamental issues in music copyright? You won't want to miss this! After the interview, it's time for the answer to #T3BE 169 involving a tainted witness identification and the permissibility of eliciting testimony in court. Can Thomas start a new winning streak?? Listen and find out! Appearances Andrew was just a guest speaker at Houston OASIS, and we'll be working to bring you the audio of his speech from that event. And if you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com. Show Notes & Links Our basics on music and copyright were covered in Episode 236 and then with a follow-up in Episode 288. Of course, we also covered Riehl and Rubin's project in Episode 365 ("Every Melody Ever, Part 1"). For (some of) the details on Riehl and Rubin’s project, check out Riehl's fascinating TEDx talk. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
10/03/201h 24m

OA366: Your Guide to the Coronavirus!

Today's episode breaks down force majeure clauses in contracts and takes a look at what might happen in the next few weeks as the world prepares to deal with COVID-19 coronavirus. Along the way we also tackle the news of the week, including the baffling decision out of the DC Circuit not to require Don McGahn to testify. You won't want to miss this episode! We begin, however, with some recurring Vice Presidential/line of succession questions and take a mini-deep-dive into the absolutely bonkers elections of 1796 and 1800 that produced the 12th Amendment, and what it says about vice-presidential qualifications. After that, it's time for our main segment on coronavirus, which includes a deep dive into various cases where contracts have been broken due to "acts of god." Is a global pandemic an "act of god?" Listen, find out, and you'll soon be able to whip out four-part tests if your hotel tries to cancel your room due to coronavirus scares. Then, it's time to pick apart the D.C. Circuit's 2-1 baffling opinion that the House Oversight Committee lacks standing to go to a court to enforce its subpoena over Don McGahn. This is technically an "Andrew Was Wrong," because Andrew did not imagine that any judges with functioning brain cells could have authored an opinion this bad. Find out what's next! After all that, it's time for a brand new Thomas Takes the Bar Exam involving a tainted witness identification. And remember that you too can play along by sharing out this episode on social media and using the hashtag #T3BE. Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links For all your Vice Presidential qualification questions, check out the 12th Amendment! Here's the D.C. Circuit's decision in McGahn, and we also referenced Raines v. Byrd, 521 U.S. 811 (1997) and, of course, Opening Arguments's good friend Richard Nixon in United States v. Nixon, 418 U.S. 683, 696-97 (1974). Finally, you can read Josh Chafetz's law review article, "Executive Branch Contempt of Congress." -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
06/03/201h 12m

OA365: Every Melody Ever, Part 1

Today's episode brings you our first look at the efforts by Damien Riehl and Noah Rubin to copyright "every melody ever" as part of a way of reconceptualizing copyright law as it applies to music. SPOILER: We're going to have Riehl and Rubin on the show to discuss their work in more depth. We also discuss Chevron deference and a recent dissent by Clarence Thomas that's No Laughing Matter. We begin with a deep dive into the Riehl and Rubin "Every Melody Ever" effort, which builds upon the music copyright episodes we've previously discussed in Episode 236 ("Stairway to the Supreme Court") and Episode 288 ("More on Led Zeppelin"). What exactly are Riehl and Rubin doing, and will it put an end to copyright lawsuits against musicians? Listen and find out! After that, we check out a case (Baldwin v. U.S.) in which the Supreme Court refused to grant certiorari -- and the dissent filed by Clarence Thomas. That prompted a headline that got some chuckles last week -- "Clarence Thomas cites Thomas in overruling Thomas" -- and we learn that (of course) this turns out to be no laughing matter, but part of a concerted effort to roll back not only a 2005 Clarence Thomas opinion, National Cable & Telecommunications Ass'n v. Brand X Internet Svcs., 545 U.S. 967 (2005), but Chevron deference itself. Find out why even the howler monkey contingent wanted to take a pass on this case -- but not Clarence Thomas! After all that, it's time for the answer to perhaps the easiest #T3BE ever -- or is it? (It is.) And remember, you can always play along with #T3BE by sharing out the show on social media! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Our basics on music and copyright were covered in Episode 236 and then with a follow-up in Episode 288. For (some of) the details on Riehl and Rubin's project, you can read the write-up in Vice. Finally, you can check out Thomas's cert dissent in Baldwin v. U.S. here. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at openarguments@gmail.com!
03/03/201h 21m

OA364: Will The Supreme Court Shield Trump's Taxes? (No.)

Today's episode takes a deep dive into the just-filed briefs in the Trump v. Mazars litigation pending before the Supreme Court regarding the legitimacy of the House's subpoenas for Trump's tax returns. Is the law on the House's side? (Yes, yes it is.) Are we confident that the Supreme Court will rule the right way in a case this bad? (Maybe?) In any event, you'll want to listen! Announcements Don't forget our YouTube Live Q&A this Sunday, March 1, at 1:30 pm Eastern / 10:30 am Pacific! You still have two days to register for Voter Protection Law School Boot Camp! We begin with an Andrew Was Wrong(-ish) from our good friend Randall Eliason on the actual frequency of below-guidelines sentences in light of Roger Stone's downward variance. Then it's time for a deep dive into Mazars v. Trump, where we look at the briefs filed by the parties and evaluate the arguments made by the Trump administration that the subpoenas issued by the House are invalid. How bad are these arguments? They're bad. Then, it's time to tackle the recent defamation lawsuit filed by the Trump campaign against the New York Times regarding a March 2019 op-ed by Max Frankel, in which Mr. Frankel argued that the campaign didn't need to coordinate with Russia to benefit from foreign assistance. Does this pave the way for really good discovery? (No.) After all that, it's time for a brand-new #T3BE involving a law prohibiting providing assistance to undocumented aliens. Can Thomas start a new winning streak? Listen and find out. And, of course, you can always play along on social media by using the hashtag #T3BE! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Remember to check out our YouTube Channel ! If you're thinking about Democratic Voter Protection Law School Bootcamp, check out the flyer and then apply online. n the opening segment, Andrew references the U.S. Sentencing Commission (2018) report on sentences. in Mazars v. Trump, check out the President's Jay Sekulow-penned brief as well as the just-filed response by the House of Representatives. You can also read the Franchise Tax Bd. v. Hyatt (2019) decision. Finally, check out the Trump Campaign v. New York Times defamation lawsuit. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
28/02/201h 18m

OA363: Good News About Ex-Felons in Florida

Today's episode brings you some good news from the 11th Circuit Court of Appeals with respect to Florida's effort to restore the vote to felons who have completed their sentences -- and the Republicans' ongoing efforts to stop it. We also revisit the emoluments clause litigations pending in two jurisdictions as well as tackle a novel question from one of our listeners. You won't want to miss it! We begin with a brief Andrew Was Wrong / Andrew Was Right segment regarding emoluments. Friend of the show Seth Barrett Tillman writes in to correct us on two procedural issues and also to venture an opinion that any future emoluments cases would have to be brought by both houses of Congress. Find out why Andrew disagrees and stands by his original recommendation in Episode 361 that Nancy Pelosi authorize a new vote by the full House of Representatives to re-file the case originally brought in Blumenthal v. Trump. Then it's time for our main segment on the breaking decision out of the 11th Circuit striking down the Florida legislature's effort to gut Amendment 4 (which was meant to restore voting rights to ex-felons). Find out why the court ruled the way it did, what happens next, and why there may be cause for optimism in the Sunshine State! After that, it's time for a fascinating, clever, but (sadly) wrong suggestion from a listener regarding a writ of mandamus and the current logjam in Congress. We end, as always, with #T3BE, and Thomas's seven-question winning streak on the line regarding a contract and an unfortunate foreman who suffers an accident prior to starting his duties. Will Thomas prevail? Listen and find out! And don't forget to play along by sharing out the show on social media! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links In the opening segment, Andrew breaks down the Supreme Court case of Virginia House of Delegates v. Bethune-Hill (2019). You'll want to read the 11th Circuit's opinion for yourself. We last discussed the Florida legislature's efforts to gut Amendment 4 back in Episode 266. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
25/02/201h 14m

OA362: The Pardon Power (Or: Blagojevich, Milken, and Trump, Oh My!)

Today's episode takes a deep dive into the history and contemporary use of the Presidential pardon power in light of President Trump's decision to pardon and/or commute the sentences of 11 various and sundry monsters. We figure out exactly what the power was supposed to mean and what it means today. We start off with some pre-show teasers. After that, our "A" segment looks at the basics of the Nevada caucus, including the results you can expect the day after this show drops! What weird changes are taking place in Nevada? Listen and find out! As a teaser, we talk about today's sentencing by Judge Amy Berman Jackson of Trump loyalist and Nixon afficionado Roger Stone. What does it mean, and does it portend a pardon for Stone? Listen and find out! Then, it's time for our deep dive into Presidential pardons and commutations. We begin with the language in the Constitution (Art. 2, Sec. 2, Cl. 1) and Federalist 74. From there, we move on to the 19th and 20th century uses of pardons, looking at the literature and the relatively recent (and controversial -- deservedly so) pardons by Bill Clinton on the very last day of his presidency. We end the segment, of course, by discussing the assorted and sundry monsters pardoned by Trump, including some names you literally won't believe. Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Check out Federalist 74 on pardons. In terms of contemporary pardon literature, we recommend Margaret Colgate Love's "The Twilight of the Pardon Power" (2010) and Gregory C. Sisk's 2002 article "Suspending the Pardon Power During the Twilight of a Presidential Term." -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
21/02/201h 22m

OA361: DC Sides with Trump in Emoluments Case?

Make sure to subscribe to the YouTube Channel! Today's episode features a quick Andrew was... something segment about the ERA. Then we talk about the recent ruling in an emoluments case against Trump. Was it devastating or was it expected? Listen and find out! Then we tackle some great listener questions at the end.
18/02/201h 9m

OA360: The Tuesday Afternoon Massacre

Today's episode covers the "Tuesday Afternoon Massacre," in which Donald Trump's tweets prompted his sycophantic Attorney General, William Barr, to overrule career prosecutors and file a "Supplemental and Amended Sentencing Memorandum" reversing the government's position from literally the day before in order to urge leniency on convicted criminal Roger Stone. We begin, however, with a less-than-exhaustive (but exhausting) recitation of the various ways Trump has abused his power -- and yes, committed crimes -- in the mere eight days since he was acquitted during impeachment. From firing Lt. Col. Vindman to placing Barr in charge of all future "political investigations," Trump is consolidating his now-seemingly limitless power to run the U.S. government as his private fiefdom, with no consequences whatsoever. Then it's time for our main segment, where we explain just how corrupt the "Supplemental and Amended Sentencing Memorandum" really is. Along the way, we explain Pre-Sentencing Reports (PSRs), the Federal Sentencing Guidelines, and much, much more! After all that, it's time for a brand-new #T3BE that starts off as a question about hearsay before the curveball takes us down the question of witness impeachment. How will Thomas do? There's only one way to find out! And remember that you can play along -- just share out this episode on social media using the hashtag #T3BE and we’ll pick a winner! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links You can check out the Barr memorandum on "political investigations" by clicking here, and Lindsey Graham's confession here. Firing Lt. Col. Vindman is very clearly a violation of 18 U.S.C. § 1513(e). We referenced Manafort's nonsense "solitary confinement" claim that was refuted by the DOJ itself a year and a half ago in this filing. You can click here to read the DOJ's initial sentencing memo, and click here to read the "Supplemental and Amended" memorandum filed the next day. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
14/02/201h 31m

OA359: The Equal Rights Amendment (ERA) & Baseball Law!

Make sure to check out our YouTube video and subscribe to the channel! https://www.youtube.com/watch?v=Jh69ZSnZzc4&t=1s Today's EXTRA LONG episode breaks down the recent ratification of the Equal Rights Amendment (ERA) by the State of Virginia. Since that's the 38th state (more than 3/4ths of the states), and the ERA also passed the Senate and the House of Representatives by more than 2/3 margin... does that mean that the ERA is now part of the Constitution? Listen and find out! We begin by diving right in to the ERA, starting with a lengthy deep dive into the history of the Amendment dating back to the early 1970s... which might make you nostalgic for the Republicans of old. Then, we talk about the complicated issues underlying the passage of the ERA, including the strange case of the 27th Amendment which lay dormant for two centuries before getting ratified by 3/4ths of the states in 1992. And if the 27th Amendment can lay dormant for more than 200 years, why can't the ERA? Well... we'll tell you some of the reasons why (and why not). After that, it's time to break down the Houston Astros cheating scandal, where we talk about our listeners' favorite topic: baseball law! Even if you're not a fan of baseball, we think you'll enjoy our breakdown. And after all that, it's time for the answer to #T3BE 165 involving jury instructions. Can Thomas keep his winning streak going?? There's only one way to find out! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links To catch up: We discussed Amendment 27 way back in Episode 11, and the Munsingwear doctrine in Episode 181. The Supreme Court last weighed in on the Equal Rights Amendment in 1982. The two cases we discuss in context are Dillon v. Gloss, 256 U.S. 368 (1921) and Coleman v. Miller, 307 U.S. 433 (1939). Baseball law references: Check out the story in the Athletic quoting Mike Fiers that started it all; this CBS article on how Tyler Glasnow "was tipping his pitches"; the results of the MLB investigation; and the MLB Constitution. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
11/02/201h 49m

OA358: Can Trump Block New Yorkers From Global Entry? (No.)

Today's episode takes place in the aftermath of the Trump impeachment sham. We take a minute to heap praise on Sen. Mitt Romney, who had the courage of his convictions, before delving into the obvious fact that this president is now empowered to seek revenge on his enemies, starting with the State of New York. Can he really prevent New Yorkers from using Global Entry? Before that, we have to cover the latest in faux outrage, in which America's Dumbest Congressman (TM), Matt Gaetz, teams up with Charlie Kirk (and others) to ... insist that Speaker Nancy Pelosi had no right to rip up her copy of Trump's State of the Union address. Can that possibly be the law? (No.) Then, it's time to settle in for a nice, long deep dive into New York's Green Light Law, and how that led a Trump lackey to try and retaliate by asserting that New Yorkers will no longer be eligible for the Global Entry program at airports. Is it really possible that Trump's Department of Homeland Security will carry out this threat? Do we have a legal recourse? Listen and find out! After all that, it's time for a brand-new #T3BE on the preservation of objections for appeal. Can Thomas continue his winning streak? Would you do any better? If so, just share out this episode on social media using the hashtag #T3BE and we'll pick a winner! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links The operative law that Speaker Pelosi definitely didn't violate -- but President Trump has -- is 18 U.S.C. § 2071. You can read all about New York SB1747B (the "Green Light Law") as well as check out the fact sheet issued by the DMV. We break down the nonsense threat letter written by "Acting Director" of DHS, Chad Wolf. Legal references! Check out 8 U.S.C. § 1365b; 74 FR 59932; 77 FR 5690; and the final rule, 8 C.F.R. 235.12. Finally, in the political aftermath, we mentioned the pending bipartisan bill, House Res. HR 3675. Check out the latest blog post from Marcy Wheeler, which sets out her take on Lt. Gen. Michael Flynn and sets out the embedded legal documents. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
07/02/201h 13m

OA357: Ok, WTF Iowa?

We're on for a bonus pod talking about the bungled Iowa Caucus.
05/02/201h 13m

OA356: The Future of Flynn (w/guest Marcy Wheeler)

Today's episode features an in-depth interview with investigative journalist and prolific blogger Marcy Wheeler (a.k.a. emptywheel), who has a novel take on Lt. Gen. Michael Flynn who, as our listeners know, fired Covington & Burling, hired a loon, and has tried to withdraw his guilty plea. Marcy tells us what she thinks this means! We begin with a bit of analysis and some kind words from a listener in light of the disappointing Senate vote to block witnesses that came down late Friday night. Yes, this means the impeachment is effectively over. No, it doesn't mean we're going to stop fighting. After that, it's time to tackle Marcy Wheeler's take on Lt. Gen. Michael Flynn. We do a deep dive into the two most recent sentencing memoranda filed by the government in Flynn's case while trying to figure out what this portends. You don't want to miss it! After all that, it’s time for the answer to #T3BE 164 involving a crazed roommate, an aborted murder, and exactly what you could charge him with. Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Check out the latest blog post from Marcy Wheeler, which sets out her take on Lt. Gen. Michael Flynn and sets out the embedded legal documents. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
04/02/201h 24m

OA355: Honest Answers to Impeachment Questions

Today's episode tackles six questions raised during the first day of cross-examination at the impeachment of President Trump and gives you the real answers, from a legal point of view, minus the spin (on both sides)! We tackle the standard for impeachment, past judges who have been impeached, the will of the Framers, and much, much more! ----- Remember that Alan Dershowitz has challenged Andrew to a debate, and we've accepted! Only time will tell if Dersh chickens out. Also: please do CALL YOUR SENATORS. The Senate switchboard is (202) 224-3121. They’ll connect you! For the Republicans, make this simple request (and be polite!): “I’d like to speak with Senator ____’s office.  Hi, I’m _____, I’m a constituent, and I’m calling to ask Senator ____ to vote in favor of allowing the Senate to subpoena documents and witnesses in the impeachment trial.  I don’t know how we can decide if Trump is innocent or guilty without seeing all of the evidence.  Thank you.”  For the Democrats, call them and thank them for their promise to vote for subpoenaing documents and witnesses. That’s all! It’s that easy and you can REALLY MAKE A DIFFERENCE. Thank you! ----- We begin the show with a brief analysis of John Bolton's forthcoming book and whether the White House can get a judicial injunction to block publication. (Hint: no.) In analyzing the question, we do a mini-deep-dive into prior restraint, what it means, and why it protects Bolton's right to publish here. Then it's time for the question extravaganza, which covers not only the legal standard for impeachment but the arguments raised by both sides, the question of foreign interference in our elections, how one asserts executive privilege, and so much more! You won't want to miss this! After all that, it's time for a brand-new #T3BE about a crazed, icepick-wielding roommate with bad luck. Will Thomas be able to keep his win streak going? There's only one way to find out! And remember that you too can play along on social media! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Don't let Republicans misrepresent the articles of impeachment. Article I, Abuse of Power contains allegations that satisfy 18 U.S.C. § 201(b)(2) (the crime of bribery) and Art. II, Obstruction of Congress contains allegations that satisfy 18 U.S.C. § 1505 (the crime of obstruction of justice). We referenced Zephyr Teachout's seminal 2009 law review article, "The Anti-Corruption Principle" as well as this analysis by Eisen, Painter, and Tribe on emoluments. Finally, check out Prof. Cunningham's article on the original meaning of "misdemeanors" here. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
31/01/201h 19m

OA354: A Russian Asset Sues What?

Today's episode breaks down the (spoiler: ridiculous) defamation lawsuit filed by Tulsi Gabbard against Hillary Clinton for calling her (sort of) a "Russian asset." We do the patented Opening Arguments reading-the-complaint-backwards method (sort of) to figure out exactly what this means and what comes next. We begin, however, with some instant response to the Saturday Republican "defense" of Trump in the impeachment proceedings. It's... well, it's a thing. Is Jay Sekulow still America's dumbest lawyer? (Hint: yes.) Learn the arguments that they're actually trying to advance, and why they're not actually a thing. And again: please don't forget to CALL YOUR SENATOR! Remember, this is preposterously easy: Call.  (202) 224-3121.  CALL YOUR SENATORS, if you need help connecting to them, use @resistbot.   Text the word RESIST to the bot on Messenger, Twitter, Telegram, or to 50409 on SMS.  First time setup is quick, then calling both should take 3-5 minutes. Here’s what you say: “I’d like to speak with Senator ____’s office.  Hi, I’m _____, I’m a constituent, and I’m calling to ask Senator ____ to vote in favor of allowing the Senate to subpoena documents and witnesses in the impeachment trial.  I don’t know how we can decide if Trump is innocent or guilty without seeing all of the evidence.  Thank you.”  Then, it's time to break down everything about Tulsi Gabbard's lawsuit. That means defamation law, Tulsi's lawyers, the New York Times v. Sullivan standard, and much, much more. You'll be surprised to learn that Tulsi Gabbard's lawyers are... actual lawyers? But you'll also be surprised to learn some facts about them. Don't go all crazy conspiracy-theory on us, but... definitely listen. After all that, it's time for the answer to #T3BE 163 involving contemporaneous notes and whether they're admissible as hearsay. Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Check out Tulsi's defamation lawsuit here. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
28/01/201h 27m

OA353: Duplicity and Impeachment

Today's episode won't be a surprise; we're tackling all the developments in the impeachment trial of Donald J. Trump, including a deep dive into the trial brief filed by his cadre of (terrible) lawyers that alleges a strange new legal defense: "duplicity." Figure out what it all means & why there's so much reason to hope on today's show! We begin with a letter a listener received from Sen. Todd Young and a call to action to each of you to CALL YOUR SENATORS. The Senate switchboard is (202) 224-3121. They'll connect you! For the Republicans, make this simple request (and be polite!): “I’d like to speak with Senator ____’s office.  Hi, I’m _____, I’m a constituent, and I’m calling to ask Senator ____ to vote in favor of allowing the Senate to subpoena documents and witnesses in the impeachment trial.  I don’t know how we can decide if Trump is innocent or guilty without seeing all of the evidence.  Thank you.”  For the Democrats, call them and thank them for their promise to vote for subpoenaing documents and witnesses. That's all! It's that easy and you can REALLY MAKE A DIFFERENCE. Then, it's time for the main segment, where we delve into all of the supposed "impeachment rules" -- do they really have to drink milk? -- and why S. Res. 438 gives us some reason for optimism. After that, it's time to deconstruct the "cargo cult legal brief" filed by Trump's lawyers. How is it lying nonsense and what's the next bizarre and false argument they're going to make in the trial? We tell you! We also explore the legal doctrine of "duplicity," and show how... duplicitous that argument is in Trump's brief. Then, of course, it's time for a brand-new #T3BE on contemporaneously recorded notes and hearsay. Will Thomas build on his three-question winning streak? Will you get it right? There's only one way to find out.... Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Rules: click here to read Riddick's Senate Procedure, and here for the just-adopted S. Res. 438. Strap in: this is the cargo cult Trump trial brief, and here are the House Articles of Impeachment. Remember that the two crimes covered by the Articles are bribery, 18 U.S.C. § 201(b)(2) (included in Art. I, Abuse of Power) and obstruction of justice, 18 U.S.C. § 1505 (included in Art. II, Obstruction of Congress). Here's the interview reported by Politico in which Mulvaney conceded there was a quid pro quo (and "get over it")! Finally, if you really want to dig into "duplicity," check out U.S. v. Kearney, 451 F.Supp. 33 (S.D.N.Y. 1978). -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
24/01/201h 34m

OA352: Phil Ferguson Explains the SECURE Act

Believe it or not, Congress apparently does occasionally pass laws still. One such law is the SECURE Act. The stated goals of the legislation involve trying to improve the retirement plans and options for Americans who are struggling to save enough. But was the legislation well-written or will there be unintended consequences? We've got Phil Ferguson of Polaris Financial Planning and host of the Phil Ferguson show to give us the breakdown!
21/01/201h 14m

OA351: Who's the Next Justin Amash? Your Guide to Impeachment, Part XVIII (Feat. Lev Parnas)

Today's episode is one big Andrew Was Right! As we predicted, the House transmitted the Articles of Impeachment to the Senate this week, and we unpack all of this week's news in connection with impeachment, including the new GAO report on the Impoundment Control Act, the testimony from Lev Parnas, and much, much more. By the end of this super-sized episode, we'll also give your our predictions as to who might be a surprise profile in courage. The answer WILL surprise you! We begin with the GAO report that's being quoted everywhere. Are media sources getting it right? And what's in the report that's not being talked about? Listen and find out! Did Trump's OMB violate the Impoundment Control Act? (Hint: yes.) Then, we take a look at the transmission of articles, the House managers named, the rules involved, the President's amazing legal team, and much, much more. After all of that, we get to the ultimate question: will this moo the noodle? And if so, who are the Republicans that can be moo'ed? We name names! We also evaluate the Lev Parnas testimony and try and steelman Trump's arguments. Then, of course, it's time for an all-new #T3BE on cocaine smuggling, featuring a special guest player (and next week's guest) Phil Ferguson. Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Click here to read the GAO report on the ICA, and the two relevant provisions of that act: 2 U.S.C. § 683 (rescission) and 2 U.S.C. § 684 (deferment). We referred to the 1991 Cheney GAO opinion on "programmatic delays." Click here to read the Parnas SDNY indictment. Finally, here's the evidence on our Mystery Amash Candidate. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
17/01/201h 33m

OA350: Interview with House Candidate Chris Armitage

Chris Armitage is running for the House in Washington's 5th District against Trump devotee Cathy McMorris Rodgers!
14/01/201h 5m

Bonus Episode on Iran!

Here's the extra bonus we promised you! As always, Andrew is terrible at lightning rounds so we might not have gotten to the quantity of questions that we'd hoped, but the quality is fantastic and as always, you'll learn a ton!
11/01/2019m 18s

OA349: Bolton Will Testify; Iran, Soleimani & So Much More

Today's episode takes on (some of) the two biggest pending news stories right now: (1) the U.S. assassination of Iranian Gen. Soleimani, and (2) the pending impeachment of President Trump. Oh, and we also cover a bunch of other things along the way, including the latest CNN settlement regarding the kid from Covington Catholic, and, well, you'll just have to listen to find out everything! We begin with a pre-show grab bag of mini-stories, including the "drain the swamp" news that outgoing Energy Secretary Rick Perry has joined the board of a holding company that owns a pipeline company. Is this 100% the same scandal as Burisma hiring Hunter Biden? (Hint: yes.) Then, we delve into some disturbing background information on the Solemani strike and answer the first of many listener questions about it: was the strike arguably justified by the 2001 Authorization for the Use of Military Force (AUMF) against the 9/11 hijackers? After that, it's time for some Yodeling! We look at the current state of the House/Senate standoff on articles of impeachment and what the likely way forward will be. You'll learn that former NSA Director John Bolton is willing to testify; the question is whether two more Republicans care about that at all. Finally, we cover the latest news that CNN settled the defamation lawsuit brought by Nick Sandmann of Covington Catholic relating to the video shared by CNN nearly a year ago. After all that, it's time for a brand-new #T3BE 161 -- this one is a constitutional law question regarding anti-discrimination laws. Can Thomas get it right?? Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Pre-show links: (a) Rick Perry rejoins the board of a pipeline company; (b) the Hofeller Files; and (c) the 5th Circuit's decision on Trump's stupid wall, which we last covered in Episodes 243 and 255. Iranian strike links: (a) Washington Post story on Pompeo masterminding the strike; (b) the Heather Timmons piece in Quartz warning us that Trump was listening to Rapture loons like Pence and Pompeo 18 months ago; and (c) Mary Lee Bigham-Bartling's 2018 doctoral dissertation on Rapture theology. This is the 2001 AUMF, and you can also verify that Solemani is named in neither the 9/11 Commission Report nor the 2019 State Department Fact Sheet. We also quoted from a VOA News report on Sunnis "celebrating" the death of Solemani. On impeachment: the important thing is to click here to read John Bolton's public decision to comply with a Senate subpoena. Finally, although you can't read the CNN/Covington Catholic settlement, you can still watch both the original Sandmann video, and the updated video released a few days later. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
10/01/201h 2m

OA348: The State of the Secular States, with Alison Gill

Today's show features an interview with American Atheists’ National Legal and Policy Director Alison Gill! American Atheists has just released their 2019 State of the Secular States Report, which you can find here. With how much the Trump Administration and the Christian Right have tried to enshrine conservative Christianity into our nation's laws, American Atheists has worked hard to bring us this comprehensive report detailing which states have good laws in place to protect the separation of Church and State. Some states are doing better than others, and some states might surprise you! The report provides a great blueprint of action for how we can work to fight the theocrats on a state by state basis.
07/01/201h 2m

OA347: Pennhurst and the Voter Purge in Georgia

Today's episode tackles a bunch of important developments in the new year -- and not all of them are even Trump-related! Our main segment features a deep dive into the recent voter purge decision in Georgia and what that has to do with the Eleventh Amendment and the Pennhurst doctrine. We also tackle the latest scare meme regarding 2020 and update you on all the developments in pending litigation regarding Donald Trump. Buckle up, it's going to be a fun ride! We begin with a quick off-the-white-board note about the "$100,000 verdict" in the Alex Jones defamation lawsuit that isn't what it appears to be. After that, we take a look at a recent meme that's circulating regarding 2020. Should you be concerned about the legal implications of writing 1/1/20 on your documents?? Why or why not? Then it's time to check in on the status of several pending cases involving Congressional subpoenas, including a decision that's being mischaracterized as a setback for impeachment (it isn't), and a bunch of irons that are still in the fire. Then it's time for our deep dive into Pennhurst and the recent denial of injunctive relief to Stacey Abrams's organization dedicated to restoring the voter rolls in 2020 in Georgia. Find out what happened & what's going to happen next. After all that, it's time for a brand-new #T3BE in the New Year: can a bakery tell a flaky flour supplier to go clownhorn itself? Don't forget to play along via social media! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Click here to read the New York Times article about Alex Jones's lawsuit. The article we referenced on FOIA documents connected to OMB from Kate Brannen at Just Security is here. Filings: click here to read the Order of Dismissal in the Kupperman lawsuit, and here to read the Court's Order denying injunctive relief in the voter registration lawsuit. Oh, and feel free to brush up on your Supreme Court decisions by reading Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984). -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
03/01/201h 10m

OA346: Faithless Electors (w/Lawrence Lessig)

Today's episode features an in-depth interview with Prof. Lawrence Lessig, counsel for the Colorado faithless electors, about the electoral college system. We also go through the answer to last week's #T3BE about the differences and similarities between burglary and larceny. You won't want to miss it! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
31/12/1958m 48s

OA345: How John Roberts Saved Christmas (Or: Everything You Need to Know About Nixon v. US)

Happy Holidays, everyone! Today, we tackle a number of issues that managed to distract us over the holidays regarding impeachment and do a deep dive into Nixon v. US -- all while weaving in a John-Roberts-as-the-Grinch-Who-Saved-the-Country-From-Mitch-McConnell story. Can it happen? Absolutely. Will it? We don't know. Do you need to listen? ABSOLUTELY. We begin, however, with the recent filing by the lawyer for the House Judiciary Committee suggesting it might "impeach Donald Trump again." What on earth does that mean, and why is he taking this position? We explain it all. Then it's time for a brief foray into the debate between Noah Feldman, Laurence Tribe (and Jonathan Turley for good measure) as to whether Trump has really been impeached given that the House has not yet transmitted the articles to the Senate. As we all know, that question is really academic -- the real issue is: what power does Mitch McConnell have to transform impeachment into a sham proceeding? The answer lies in a 1993 Supreme Court case, Nixon v. US , 506 U.S. 224 -- and it may just reside in Chief Justice John Roberts. You won't want to miss this deep dive storytelling. After all that, it's time for a brand new #T3BE involving burglary, larceny, and the world's angriest ex-employee. Remember to play along on social media! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Click here to read the House's filing before the D.C. Circuit in the McGahn subpoena litigation. In the battle of expert turncoats, we have Noah Feldman arguing that Trump hasn't been impeached, and Jonathan Turley arguing that he has. Finally, make sure you read Nixon v. U.S., 506 U.S. 224 (1993). -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
27/12/191h 12m

OA344: Did the Mormon Church Really Hide $100 Billion in Assets From the IRS? (Feat. Bryce Blankenagel)

Today's episode combines a deep dive into the IRS's tax exemptions with some breaking news about allegations made by a whistleblower that the Church of Jesus Christ of Latter-Day Saints (that is, the Mormon Church) has hidden over $100 billion in assets that should otherwise be taxed. Grab some yarn and pushpins, and we'll try and disentangle this conspiracy together! Joining us is the host of the Naked Mormonism and Glass Box podcasts, Bryce Blankenagel, who has first-hand knowledge of some of these events and has done serious work trying to parse through the documents and help us figure out what the mainstream reporting on this story might have missed! Along the way you'll learn a ton about the various corporate entities owned by the Mormon Church. After that, we return to a popular #T3BE question involving whether the court can instruct the jury as to one of the elements of a crime. Can Thomas add to his amazing one-question win streak??? Listen and find out! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Click here to read the whistleblower's 78-page letter to the IRS, and here to watch his 7-minute video summary. NOTE: We do not endorse all of the claims and/or analysis made in that video. Check out 26 U.S.C. § 501(c)(3) for the statutory provisions regarding non-profits, and here to read the special rules as to when the IRS can investigate or audit a church. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
24/12/191h 24m

OA343: The End of the ACA? (Also: Some Stuff About Impeachment)

Today's episode takes a deep dive into the recent 5th Circuit ruling you may have heard about that... is supposed to have declared the ACA unconstitutional? How can that possibly be the case? We break it all down for you. Oh, and yeah, we also talk about the fact that the third president in American history has been impeached. We begin, however, with an Andrew Was Wrong segment about the procedural history underlying the Syed appeal. Then, it's time to break down the 5th Circuit's ACA opinion. How is it possible? How is the case ripe? Wasn't all of this decided in 2012 in the NFIB v. Sebelius case? We explain everything you need to know -- and what you need to know about the future -- in this main segment. Then, it's time to tackle some impeachment questions like, "what the hell is going on?" and "is it true that the President can't be pardoned for crimes over which he's been impeached?" (No.) You definitely won't want to miss this one. After all that, it's time for a brand new #T3BE involving jury instructions during a criminal trial. Can Thomas build on his amazing 1-question winning streak? There's only one way to know for sure! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links We tackled the Syed case for the very last time in Episode 340. You can read the 5th Circuit's ACA opinion here. Finally, on impeachment, don't forget to check out (a) Episode 90 where we explain that Trump can probably pardon himself, and also (b) Laurence Tribe's article that changed how the House handles impeachment. Oh, man, and if you missed last episode's humor, check out “Larry ‘Bud’ Melman” advertising “Mr. Larry’s Toast on a Stick” from the old Late Night With David Letterman show. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
20/12/191h 23m

OA342: Why the Supreme Court Should Scare You Even More Than It Already Does

Today's episode takes a deep dive into something the Supreme Court didn't do last week -- namely, it declined to grant certiorari to reverse an obviously incorrect decision of the Sixth Circuit (EMW Women's Surgical Center v. Meier), in which that court upheld a blatantly unconstitutional Kentucky law mandating that women undergo a medically unnecessary ultrasound and listen to a script before undergoing an abortion. We begin, however, with a delightful Frozen-themed listener question about the extent of copyright law and whether Josh Gad can start singing songs about how Brett Kavanaugh is a monster. (Hint: this is a fantastic idea.) We truly drill down on all the different ramifications of when you create an original character for yourself versus your employer. After that, it's time for the main sequence deep dive on EMW Women's Surgical Center v. Meier and exactly why it's surprising -- and depressing -- that the Supreme Court declined to grant certiorari in this case. Then, it's time to check in on #T3BE and see if Thomas can get this homebuying question right. Do you get to cancel a sale when the buyer hides water damages, and if so, why? Listen and find out! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links If you want to go down memory lane, check out "Larry 'Bud' Melman" advertising "Mr. Larry's Toast on a Stick" from the old Late Night With David Letterman show. You can read the 6th Circuit's opinion in EMW Women's Surgical Center v. Meier, 920 F.3d 421 (6th Cir. 2019) for yourself. The Kentucky law at issue is KRS 311.727. The 4th circuit decision we referenced is Stuart v. Camnitz, 774 F.3d 238 (4th Circ. 2014). Before the Supreme Court, check out (a) the cert petition; (b) the State's opposition; and (c) the petitioner's reply brief. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
17/12/191h 15m

OA341: Articles of Impeachment (& Espionza)

Today's episode breaks down the Articles of Impeachment currently being debated in the House Judiciary Committee. Find out Andrew's disappointment, the hidden clause that lets the Senate consider Mueller evidence (if they want), and what these articles can't let the Senate evaluate in determining whether to impeach Trump. You won't want to miss it! Oh, and also, you'll get a mini-deep-dive on the Espinoza decision and so much more! We begin with an important listener question about whether Donald Trump could plead the 5th Amendment during the impeachment process. The answer might surprise you -- and you'll enjoy the deep dive into the Constitutional protections against self-incrimination. Then, during the main segment, we tackle the two articles of impeachment in depth, evaluating what crime(s) the articles consider, how they respond to the Republican arguments, and much, much more. After that, we're excited to bring you a segment in which law students can win up to $10,000 in an essay-writing contest that also gives you a chance to make a real difference in a case pending before the Supreme Court, Espinoza v. Montana Dep't of Revenue. Then, of course, it's time for another #T3BE, this time about a homeowner who paints over some water damage. Is there a viable reason for the buyer to rescind the contract, or is it "buyer beware"? Listen and play along on social media! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Our opening segment discusses the 1957 Supreme Court case of Watkins v. U.S. and also references this 1956 law review article. Our omnibus impeachment explainer is Episode 319 (you can also read the transcript for that episode). This is the text of Rep. Nadler's proposed two articles of impeachment. Finally, if you're a law student, please do check out the FFRF essay contest! Resources: (a) Art. X, Sec. 6 of the Montana Constitution; (b) Montana Code Ann. § 15-30-3101 et seq.; and (c) the FFRF amicus brief in Espinoza. Also, don't forget that we broke down Trinity Lutheran before the Supreme Court ruled way back in Episodes 14, 17, and 18, and then dissected the travesty of an opinion in Episodes 82 and 85. Phew! -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
13/12/191h 18m

OA340: OA and Serial, or, Why the Supreme Court Denied Cert in Syed v. Maryland

Perhaps against our better judgment, we once again return to the Adnan Syed case narrated so beautifully in season 1 of Serial. If you haven't heard our take on the case itself, you might want to go back and listen to Episode 107. Today, we're not discussing the underlying merits but rather what the Maryland Court of Appeals ruled and why the Supreme Court declined to review that decision. Love us or hate us, if you love Serial, you won't want to miss this episode! We begin, however, with a look at how President Trump has reshaped the federal courts by the numbers. Is it as bleak as some sources say? Or is there merit to the counter-argument that Trump isn't doing anything much differently than his predecessors -- it's just that we're in the middle of his Presidency, so of course his effect is outsized. We delve beneath the op-eds to tell you what the cold hard facts are. Then, it's time to describe exactly what's happened to Adnan Syed in the courts since Serial, culminating with a 4-3 decision in the Maryland Court of Appeals that was left undisturbed by the Supreme Court when they denied certiorari last week. What does it all mean? We break it down for you. After that, it's time for a bonus mini-"Breakin' Down the Law" segment integrated with Thomas's fiendishly hard #T3BE question. If you've ever wondered about motions for new trials and Rules 59 and 60 of the Federal Rules of Civil Procedure, well, this is the show for you! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links We first broke down the Adnan Syed case (and Serial's portrayal of it) in Episode 107. You can check out the Brookings article we referenced ("Trump Has Reshaped the Judiciary But Not As Much As You Might Think"). For the Maryland Court of Appeals opinion (State v. Syed), click here. Then you can read Syed's cert petition, the State's response, and Syed's reply. Ultimately, the Supreme Court just denied the petition without comment.\ Finally, the underlying case we discussed regarding ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984). -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
10/12/191h 18m

OA339: Who is Jonathan Turley, Anyway?

Today's episode is a timely impeachment-themed deep dive into the testimony of George Washington University law professor -- and legitimate legal scholar -- Jonathan Turley before the House Judiciary Committee. How should you evaluate his arguments? We walk you through them, of course! We begin, however, with a new segment: the Wingnut Lightning Round(TM), in which we evaluate -- or rather, make fun of -- two preposterous new lawsuits filed this week by two complete idiots. After that, it's time for an #AndrewWasWrong about Ronald Burris, the interim Senator nominated by Rod Blagojevich to fill Barack Obama's unexpired Senate seat. Find out the twists and turns to this rather fascinating story as a side bonus to Andrew's well-deserved comeuppance. Then, it's time for the main segment: the news that the House is going to draft articles of impeachment against President Trump despite the testimony of Jonathan Turley. How do the lone Republican-called witness's arguments stack up? (Hint: they're not good.) Surely the Republicans wouldn't have called someone who's on the record saying the exact opposite of what he's presently saying 20 years ago, right? (Guess.) After all that, it's time for a fiendishly hard #T3BE about a trial, a videotape, and a jogging plaintiff. You won't want to miss it -- and you'll want to play along! Appearances Thomas was just the main guest on Episode 498 of the Cognitive Dissonance podcast, and Thomas and Andrew make additional appearances to roast and be roasted for Vulgarity for Charity. If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Oh man, you just have to read batshit-crazy Rep. Devin Nunes's eleventy million trillion dollar lawsuit against CNN. For more of the Roland Burris story, check out Wikipedia. Click here to read Turley's testimony for yourself. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
06/12/191h 12m

OA338: Nondelegation and the "Administrative State"

Today's episode takes a deep dive into the nondelegation doctrine in light of a recent Kavanuagh comment on a case... in which the Supreme Court didn't even grant certiorari. Is Andrew panicking? (No.) Listen and find out why not! We begin, however, with a brief Andrew Was Wrong on taxation that calls back to OA 336. How exactly is stock income taxed? Listen and find out! Then, it's time for the main segment, which is a deep dive into the "administrative state" and specificially the "nondelegation doctrine" at issue in U.S. v. Gundy. Why did this last week signal the beginning of the end for Andrew & Thomas? Listen and find out! After all that, it's time for a listener question/comment on LIHEAP that helps contextualize how this program works in low-income communities. You won't wan't to miss it! Then, of course, it's time for #T3BE -- the answer to Thomas Takes the Bar Exam #155 about a tenant who takes possession of an apartment only to find the previous tenant still inside. How can.. the landlord win? Listen and find out! Appearances Thomas was just the main guest on Episode 498 of the Cognitive Dissonance podcast, and Thomas and Andrew make additional appearances to roast and be roasted for Vulgarity for Charity. If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links For an update on Chevron deference, check out our Episodes 40 and 136. In terms of Auer deference, check out our explainers in Episode 266 and 293. To get up to speed on the nondelegation doctrine, read Gundy v. U.S., 139 S.Ct. 2116 (2019). -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
03/12/191h 11m

OA337: How to Talk to Your (Republican) Family About Impeachment

Share this episode with your (open-minded) Republican friends, family, and co-workers! We're happy to bring you this Thanksgiving Special a day early in which we break down the latest "trial balloon" defense of Trump's conduct: that Trump was actually encouraging a legitimate investigation into a top-secret conspiracy in Ukraine to hack the DNC servers in 2016 and throw the election to Hillary Clinton. If you don't know what "CrowdStrike" and "Chalupa" mean, you won't want to miss this one! We begin on that key issue, breaking down the sole legal issue at stake in impeachment -- bribery -- and exactly what Congress needs to show in order to impeach and remove the President from office. From there, we turn to the next likely defense from Trumpland and explain exactly why it is bananas-in-pajamas-level bonkers. After that lengthy breakdown, it's time to check in on the status of various lawsuits seeking to compel witnesses to appear before various House committees. What's going on, and is there any cause for optimism? Listen and find out! Then, as always, it's time for #T3BE, in which Thomas tackles a curious fact-pattern involving a landlord, a new tenant, an old tenant who won't move out, and a surprising legal result. Can he figure out why? Can you? Appearances Thomas was just the main guest on Episode 498 of the Cognitive Dissonance podcast, and Thomas and Andrew make additional appearances to roast and be roasted for Vulgarity for Charity. If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Please do participate in our favorite charity event of the year, Vulgarity for Charity! To participate, just donate $50 or more to Modest Needs, and then send a copy of the receipt to vulgarityforcharity@gmail.com along with your request for a roast. You can even request that Thomas & Andrew roast the victim of your choice. We broke down Amb. Sondland's testimony in Episode 335. But don't just take our word for it! You can read the federal bribery statute, 18 U.S.C. § 201(b)(2), for yourself and figure out what it takes to prove bribery. We also cited to (a) ADNI Joseph Maguire's testimony before Congress; (b) the whistleblower's complaint (which we previously broke down in Episode 318 and a special bonus episode); (c) internal evidence as reported in the New York Times that Trump's lawyers briefed him on the whistleblower complaint in late August, before aid to Ukraine was restored; (d) the TELCON (edited transcript) of the July 25 Trump-Zelensky call released by the White House; (e) the CrowdStrike report from their own website; (f) Trump's April 2017 press interview in which he began peddling the CrowdStrike conspiracy; (g) Fiona Hill's opening statement in her testimony to Congress; (i) the reporting surrounding Sen. Kennedy's appearance on Fox News Sunday; (j) the 2017 Politico story upon which Sen. Kennedy purported to rely; and (k) Vol. 2 of the Senate Intelligence Committee Report on the 2016 Election, authored by Republican Sen. Richard Burr (R-NC). Phew! In the closing segment, we referred to Rubin v. U.S., 524 U.S. 1301 (1998). -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
28/11/191h 14m

OA336: Warren's Wealth Tax & a CRA for SCOTUS?

Today's episode takes a deep dive into Elizabeth Warren's wealth tax. Is it constitutional? How will the arguments shape up? Listen and find out! We begin, however, with an interesting proposal for a "Congressional Review Act" for the Supreme Court by law professor -- and professional Supreme-Court-fixer -- Ganesh Sitaraman. Will this proposal meet with more approval than Sitaraman's previous "lottery" idea? Then we do a deep dive into the history of taxes in this country, looking at two very old cases -- one from 1895 (Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429), and one from way back in 1796 (Hylton v. U.S.). We also cover the Wilson-Gorman Tariff Act of 1894, as well as check in on the most recent Supreme Court tax ruling from Chief Justice John Roberts, the NFIB v. Sebelius 2012 Obamacare decision. What do we learn from all that? Well, you'll just have to give it a listen! After all that, it's time for the answer to what some are calling the easiest #T3BE question ever about falling off a ladder. Are they right? Was Thomas? There's only one way to know for sure! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Please do participate in our favorite charity event of the year, Vulgarity for Charity! To participate, just donate $50 or more to Modest Needs, and then send a copy of the receipt to vulgarityforcharity@gmail.com along with your request for a roast. You can even request that Thomas & Andrew roast the victim of your choice. You can read Prof. Sitaraman's latest article in The Atlantic suggesting a "Congressional Review Act for the Supreme Court." (We previously broke down the Congressional Review Act way back in Episode 61.) We last touched on Prof. Sitaraman's "How to Save the Supreme Court" lottery proposal somewhat less favorably in Episode 294. Head on over to Elizabeth Warren's campaign site to read her "Ultra-Millionaire Tax" proposal. Resources for tax law: Hylton v. U.S. (1796); Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 (1895), and NFIB v. Sebelius (2012). Finally, you can check out the scholars letters submitted in support of Warren's tax plan as well as the Johnson & Dellinger law review article, "The Constitutionality of a National Wealth Tax." -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
26/11/191h 15m

OA335: This Week in Impeachment

Today's episode breaks down the significance of a packed week in Republican witness testimony before the House Intelligence Committee about the potential impeachment of Donald Trump. We continue to place everything in the context of proving that Donald Trump committed impeachable bribery in violation of 18 U.S.C. § 201(b)(2), including evaluating the (increasingly desperate) defenses being raised by House Republicans. We begin, however, with a slight Andrew Was Wrong and some really interesting listener feedback about the 2019 Ukraine election. Then, it's time to take a look at the week in impeachment, with a particular focus on Amb. Gordon Sondland, a Trump donor who was hand-picked to help run the "shadow foreign policy" in Ukraine, and exactly why he's such a devastating witness. We also tease apart the legality of the OMB hold and the crafting of the narrative to show the elements of bribery. Then, it's time for a brief update on the Trump v. Mazars litigation and the significance of the administrative hold put in place by the Supreme Court. Does that mean John Roberts is 100% in the tank for Trump? (No.) After all that, it's time for a NEW ERA in #T3BE as we move to a new set of questions! This one asks about a potential lawsuit for a guy who falls off his ladder. Did Thomas get it right? Listen and find out -- and play along with us on social media! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Please do participate in our favorite charity event of the year, Vulgarity for Charity! To participate, just donate $50 or more to Modest Needs, and then send a copy of the receipt to vulgarityforcharity@gmail.com along with your request for a roast. You can even request that Thomas & Andrew roast the victim of your choice. Remember that this is all about Trump's bribery in violation of 18 U.S.C. § 201(b)(2). Oh, the lies! We debunked the insane "the government secretly changed the whistleblower form" conspiracy back in Episode 320 and even created a handy link for you to share with Uncle Clarence to help convince him! On Trump v. Mazars, you can check out Trump's brief requesting a stay and the order issued by Chief Justice Roberts. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
22/11/191h 14m

OA334: IVF, LIHEAP & the Russians

Today's episode features a deep dive into what used to be a core Republican program, the Low-Income Home Energy Assistance Program, or LIHEAP. Did you know that every year, over a thousand people -- most of them with homes -- freeze to death in the U.S.? Did you know that both political parties used to want to do something about that? We begin, however, with some listener feedback from our popular recent Episode 330 in which we broke down a recent decision by the Connecticut Supreme Court regarding "pre-embryos" and in vitro fertilization (IVF). Hear from a published scientist and an IVF mom! Then, it's time for our deep dive into LIHEAP, 42 U.S.C. § 8621 et seq. You'll learn all about the problem of home heating in this country and what we do about it... at least for now. You'll also learn exactly how much the Trump administration would like to fund this program, which you won't be surprised to learn is $0. But that's not all! Our "C" segment features a lengthy explanation from election law expert Beth Kingsley who answers the question "Could Donald Trump just hire Vladimir Putin to work on his 2020 re-election campaign if he discloses it?" The answer is more complicated than you'd expect and just might surprise you. After all that, it's time for the answer to Friday's #T3BE 153 about the admissibility of a doctor's note in court. Will Thomas get this one right?? Listen and find out! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Please do participate in our favorite charity event of the year, Vulgarity for Charity! To participate, just donate $50 or more to Modest Needs, and then send a copy of the receipt to vulgarityforcharity@gmail.com along with your request for a roast. You can even request that Thomas & Andrew roast the victim of your choice. We discussed both the IVF decision and the election hypothetical back in Episode 330. You can read the LIHEAP law for yourself; it's 42 U.S.C. § 8621 et seq. The data we discussed on the episode comes from Olivia Wein's study, and the funding numbers come from this government document. This is the link to the FEC's guidance we discussed in the "C" segment. Finally, check out an actual IVF contract, thanks to Valerie Smith! -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
19/11/191h 18m

OA333: Bonus Impeachment Coverage!

There was so much to discuss, we had to record an extra episode!
16/11/191h 9m

OA332: Your Two New Best Friends, Bill Taylor and George Kent

Today's episode ran so long that we're going to give you a BONUS episode tomorrow. What did we get through? Well, we break down almost everything about the first day of televised public hearings in the House of Representatives' impeachment inquiry. You absolutely, positively do not want to miss this! We begin, however, with a plug for our favorite charity event of the year, Vulgarity for Charity! To participate, just donate $50 or more to Modest Needs, and then send a copy of the receipt to vulgarityforcharity@gmail.com along with your request for a roast. You can even request that Thomas & Andrew roast the victim of your choice. After that, it's time to tackle a wide variety of legal topics related to the Taylor and Kent testimony, including: (a) how their testimony fits into the elements of the crime of bribery; (b) the Republicans' evolving defenses of Donald Trump; (c) the two lawyers picked to handle the bulk of the questioning; and much, much more. Along the way, we also discuss the significance of the D.C. Circuit's en banc refusal to rehear the subpoena decision in Trump v. Mazars and what comes next, as well as the status of Mick Mulvaney's continuing efforts to defy the Congressional subpoenas. After all that, it's time for a milestone #T3BE involving hearsay and expert witness testimony. Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Please do participate in our favorite charity event of the year, Vulgarity for Charity! To participate, just donate $50 or more to Modest Needs, and then send a copy of the receipt to vulgarityforcharity@gmail.com along with your request for a roast. You can even request that Thomas & Andrew roast the victim of your choice. Remember: this is about bribery, 18 U.S.C. § 201. This is the transcript of Sen. Kennedy on Face the Nation. In terms of dirty tricks, here's the link to Taylor's closed-door deposition, where Castor outed the whistleblower, and here's a link to his laughing during Fiona Hill's deposition. BONUS! Here's the Politico article we rip apart in Episode 333 ("There’s a Surprisingly Plausible Path to Removing Trump From Office") and... god help me.. the National Review article that actually gets it right. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
15/11/191h 11m

OA331: Who Sues "Oh No Ross and Carrie" with Carrie Poppy & Matthew Strugar

Today's episode is the final -- and dare we say it, the best -- part of our live show in Los Angeles where we were joined by the co-host of the popular podcast "Oh No Ross And Carrie" Carrie Poppy, and the show's lawyer, Matthew Strugar. Join us for a fascinating discussion as to who's threatened to sue the show and why.... And stick around for a special LIVE #T3BE! After that, we also answer last week's #T3BE about breach of contract. Can Thomas continue his improbable one-question win streak? Listen and find out! Show Notes & Links You should definitely be listening to Oh No Ross and Carrie! We last had Carrie and Matthew on our show in Episode 77.
12/11/1954m 1s

OA330: The Impeachment Inquiry Explainer (& Pre-Embryos in Connecticut)

Today's episode is everything you need to walk your open-minded Uncle Clarence -- you know, the one who watches Fox News, but not religiously, and isn't quite sure what all this impeachment nonsense is about -- through the key buzzwords of the week. And, as a bonus, we discuss an important decision regarding in vitro fertilization in Connecticut. We begin, however, with the Explainer. How is this process different from (and more fair than) the Clinton impeachment? What is an impeachment "inquiry?" And why -- oh god, why?!? -- is everyone so focused on quid pro quo? You'll find out the answers to all these questions and much, much more. After that, it's time to examine Bilbao v. Goodwin, which delves into the tricky question of what happens to a couple's frozen pre-embryos after they break up? This case has been making the rounds in both pro-life and pro-choice circles -- we'll tell you exactly what it stands for and what comes next. Then, of course, it's time for an all-new #T3BE, in which Thomas tackles a breach-of-contract question. Can he keep his winning streak going? Upcoming Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links For the full breakdown of the House Impeachment Inquiry resolution, H.R. 660, check out our discussion in Episode 328. And you can click here to read Bilbao v. Godwin. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
08/11/191h 17m

OA329: Gun Buying and Jury Duty in America

Today's show is something we absolutely love to do, which is listener questions! Our listeners pose some truly intelligent, well thought-out, and deep-dive worthy questions. Today's episode features two such deep dives inspired by our listeners. The first is regarding DC v Heller, and whether it applies to gun ownership or gun sales, or both. The second question is a chance for Andrew to talk about jury duty, and what makes a good juror. Classic OA Tuesday deep dives!
05/11/191h 14m

OA328: The Impeachment Inquiry Resolution! (H.R. 660)

This week's Rapid Response Friday breaks down exactly what's in H.R. 660, the impeachment inquiry resolution, and what it means for the ongoing process. We also help you digest the legal significance of Alexander Vindman's testimony and much, much more, so strap in! We begin, however, with Thomas's favorite segment -- Andrew Was Wrong. Here, Andrew issues a correction regarding baseball law and the chemistry of high-fructose corn syrup (HFCS) from our popular Pizza, Beer & Guns episode. After that, it's time for a trip up Yodel Mountain where we digest H.R. 660, the soon-to-be-passed resolution authorizing the House Intelligence Committee to take the lead on the impeachment inquiry. Is it "still without any due process for the President," as the White House claims? [No.] As a bonus, we also break down the companion change to the rules adopted by the House Rules Committee pursuant to the resolution that's managed to confuse a number of media outlets. But that's not all! While we're high atop Yodel Mountain, we also break down the significance of Alexander Vindman's testimony this week regarding the Trump administration's holding hostage of aid to Ukraine pending an "investigation" into Burisma, and Hunter and Joe Biden. After all that, it's time for #T3BE, in which Thomas tackles a dreaded real property question -- this one about whether a grantee can revoke an easement. Those are words! Will Thomas decipher them? Upcoming Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Click here to read H.R. 660, and here for the companion change to the rules. Here's the Democratic summary of those changes. This is the transcript of Alexander Vindman's opening statement, plus more on his testimony from the Washington Post and the (failing) New York Times, as well as the Politico story on how some Republicans are pushing back against attacks on Vindman. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
01/11/191h 20m

OA327: Pizza, Beer, and Guns!

It's an all American episode, complete with 3 dives! First we have a 9th Circuit ruling on Domino's Pizza to discuss, related to accessibility concerns with their app. Then, you know those horrible, unfunny, obnoxious Bud commercials with the knights and the king and all that? Turns out in addition to being terrible, they may also be potentially tortious! They made some very specific claims about MillerCoors beers using corn syrup in their beer they have gotten them into legal trouble. And finally, we round out this all-American ep with guns - a breakdown of the Dickey Amendment.
29/10/191h 18m

OA326: When the SCIF Hit the Fan

Today's episode tackles all your latest developments from high atop Yodel Mountain, including the national security-threatening stunt led by America's Dumbest Congressman, Matt Gaetz, as well as the significance of Bill Taylor's testimony to the House Intelligence Committee. We begin with a brief overview of the "due process" argument throughout history with an eye towards how it applies to the Trump impeachment. From there, we move to a specific application: the (false) claim by Matt Gaetz and others that the House impeachment inquiry violates Trump's rights of due process. Along the way, we'll learn what a SCIF is and why it was such a big deal -- a criminal big deal -- that Gaetz and others violated it. Then, it's time to dive deeply into Bill Taylor's testimony and how that fits into the overall impeachment picture and whether Trump is guilty of bribery with respect to Ukraine. (Hint: yes.) After all that, it's time for another fabulous #T3BE about an inexperienced innkeeper and a cleaning company that doesn't work on Sundays. Play along on social media, and remember to #T3BE in your answer! Upcoming Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Share out the Episode 324 super-transcript with your favorite Uncle Frank today! This is the WIRED article we referenced on the technical data regarding SCIFs, and these are the 174-page technical guidelines set forth by the DNI. Laws! Obstruction of justice is 18 U.S.C. § 1505, bribery is 18 U.S.C. § 201, and the relevant portion of the Congressional Budget and Impoundment Control Act is 2 U.S.C. § 683. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
25/10/191h 28m

OA325: Putin's Puppet? The Open Skies Treaty

Today's show features a few segments from the LA live show, including a medium dive on the Open Skies Treaty. We break down what it is, what Trump is intending to do with it, and why his behavior is incredibly... weird. We also break down a story involving Covington and Burling winning legal fees against the government. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
22/10/191h 13m

OA324: Trump's 9 Crimes and Misdemeanors

With impeachment in full swing, today's episode reminds you that we already have more than enough evidence to impeach & remove Donald Trump from office for the nine distinct crimes documented by Robert Mueller in Vol. II of the Mueller Report. We begin, however, with a pre-show update: the 4th Circuit has just voted to rehear the Maryland emoluments lawsuit en banc on Dec. 12, 2019. After that, it's time to check in on the latest Republican argument: that Democrats need to authorize an impeachment inquiry via a full floor vote in the House of Representatives. Learn why Nancy Pelosi said "Nope!" and why that might be shots fired... at the Supreme Court. Then, it's time for the deep dive into the nine unambiguous, inarguable crimes that we already have proof Donald Trump has already committed, thanks to Vol. II of the Mueller Report. You will get a choose-your-own-adventure guide for how to steer your disbelieving Uncle Frank through the Mueller Report and prove that Trump acted with criminally corrupt intent to obstruct justice. "The cover-up is [still] worse than the crime"... isn't it? After all that, it's time for an all-new #T3BE involving a hate crime. Is the Intellectual Dark Web correct that such things are protected by "free speech?" If not, why are they wrong? Play along on social media -- remember to #T3BE with your answer! Upcoming Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Here's the latest ruling from the 4th Circuit on the emoluments litigation. Don't forgot to follow along with this week's episode by reading the actual Mueller Report. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
18/10/191h 29m

OA323: LA Live Show QnA!

The live show in Los Angeles was an absolute blast. We had so much great content that we're going to use it in bits and pieces here for the next few Tuesday shows. But if you'd like to hear the entire live show right away, and also hear the special intro Brian and Thomas cooked up for it, go to patreon.com/law right now! -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
15/10/191h 20m

OA322: Blackouts, Taxes & House Rules

Today's episode breaks down the recent news relating to (1) legal efforts to subpoena Donald Trump's taxes, (2) the latest kerfuffle over the standing House rules and whether the impeachment inquiry is "unconstitutional" and "illegal" (it isn't), with a bonus (3) rant about PG&E's blackouts -- excuse me, "public safety power shutoff events" in Northern California. Phew! We begin with a discussion surrounding PG&E's decision to shut off power for up to five days, affecting potentially two million people. These blackouts will have a tremendous economic and social cost -- and may cost lives, as well. Why are they happening? What's the law? Can we do anything about it? Listen and find out! Then, it's time for a deep dive into breaking legal news this week. You may have heard that a court ordered the release of Trump's tax returns, and then that order was immediately appealed and blocked. What does it all mean and why? We dive deeply into this issue, and on the way you'll learn about Younger abstention, § 1983 cases, and much, much more! After that, it's time for a look at the latest goalpost-moving excuse by the Republicans, this time the honestly-not-very-good argument that the impeachment inquiry is "illegal" unless authorized by the entire House of Representatives. Find out why this just isn't so. Then, it's time for a follow-up #T3BE to last week's child-on-thin-ice. This time, we want to know: can her parents sue the day care? Listen and find out! Upcoming Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Don’t forget Opening Arguments LIVE in Los Angeles, CA on October 12, 2019. Here is the link!! The "de-energization events" are authorized, at least implicitly, by Section 451 of the California Public Utilities Code, as further interpreted by recent rules. PG&E, of course, is in Chapter 11 bankruptcy. The anti-injunction act is 22 U.S.C. § 2283 , and you can brush up on Younger v. Harris, 401 U.S. 37 (1971) while you're at it. We discussed the OLC memos in Episode 290, and then again in Episode 300. You should definitely read Judge Marrero's order, even though it's been appealed to the Second Circuit. Here are the standing House Rules (check out pp. 322-323), and the 2015 CRS report referenced during the show. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
11/10/191h 18m

OA321: More on #Brexit

Today's episode is an interview and a deep dive with British solicitor Emma McClure, who helps walk us through the recent activity regarding #Brexit and also gives us some signposts as to what's next for our wacky neighbor across the pond. This episode is a follow-up to our first #Brexit show, which was Episode 315. Find out what, if anything, Andrew got wrong in that show, while Emma also helps us break down the U.K. Supreme Court's (shocking to Andrew) 11-0 decision that PM Boris Johnson's decision to prorogue Parliament was an abuse of his powers and done for an improper purpose. We compare legal systems and learn a ton about what law is like in England. You won't want to miss this episode! After the interview, we head back to a tricky #T3BE regarding a 12-year-old who sneaks out and falls in thin ice. This is one of those questions that Andrew admits he would have gotten wrong! Did Emma or Thomas manage to get it right?? Listen and find out! Upcoming Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Don’t forget Opening Arguments LIVE in Los Angeles, CA on October 12, 2019. Here is the link!! -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com! Download Link
08/10/191h 19m

OA320: The (Idiotic) Hearsay Defense

Today's episode is a must-listen, timely deep dive as to what exactly constitutes "hearsay" -- and why the latest Republican talking points to discredit the whistleblower complaint as being "based on hearsay" are nonsense piled upon nonsense. Remember that this your LAST CHANCE to come see Opening Arguments LIVE in Los Angeles, CA on October 12, 2019. Here is the link!! We begin today's show with an (unfortunately lengthy) Andrew Was Wrong segment about the Javelin missile, Al Gore's non-tie-breaking non-vote in 1999, and more. But was Andrew actually right about anything? (Maybe one or two things.) Then, it's time for the main segment in which Andrew breaks down exactly why "hearsay" isn't the same as "stuff you maybe kinda overheard in the neighborhood." Learn what hearsay actually is, and why the latest round of unhinged Republican talking points are even more laughable than they seem. After that, it's time for a frenzied visit back to Yodel Mountain, where we explain exactly what happens next in the House impeachment investigation. As a bonus, we tackle a question many of you asked on social media: what exactly does happen if President Trump is removed from office via impeachment? Could he run again?? Listen and find out! We conclude, as always, with #T3BE, including next week's guest, solicitor Emma McClure, and a wandering 12-year-old who falls through the ice. Upcoming Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Don’t forget Opening Arguments LIVE in Los Angeles, CA on October 12, 2019. Here is the link!! Here's the latest news from The Guardian about the President committing bribery on national television. And yes, it's bribery, 18 U.S.C. § 201(c)(1)(B) and not extortion or any other crime. Curious about that 1955 law review article summarizing that grand juries can issue indictments based on nothing but expert hearsay testimony? We've got you covered. And if you liked that, you probably also want to check out the Federal Rules of Evidence on hearsay, Rule 801 et seq. If you see anyone sharing the absolute lie propagated in the Federalist that the intel community "secretly gutted" the requirement that whistleblower complaints be based on first-hand knowledge, you can send them to the May 2018 form 401. If you need a quick response, just share out this graphic that clearly shows it's a complete fabrication. Oh, and don't forget to curl up with this subpoena served on Rudy Giuliani. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
04/10/191h 40m

OA319: Your Guide To Impeachment!

Today's Deep Dive can't help but stay high atop Yodel Mountain. We imagine that by the time you're hearing this, the House will have voted to begin an impeachment inquiry. Curious about what that means, why it matters, and what happens next? Then this is the show for you! Don’t forget Opening Arguments LIVE in Los Angeles, CA on October 12, 2019. Here is the link!! We begin, however, with a brief update on #Brexit; no, we haven't forgotten that our closest ally is also suffering under the weight of an insane leader hell-bent on a racist policy that everyone knows is an impending disaster. But unlike the U.S., it looks like the U.K. Supreme Court.... still understands the rule of law? What a novel concept. Then, it's time for a deep dive into impeachment, where we tackle: Exactly why President Trump's conduct towards Ukraine in particular is so reprehensible; Why beginning an "impeachment inquiry" matters; What the Nixon articles of impeachment looked like; The Clinton impeachment timeline; ALL the ways Mitch McConnell and the Republicans can try and screw this up; and much, much more. Then, it's time for the answer to Friday's #T3BE involving real property, and specifically, the condition to a contract requiring the buyer to procure a loan at 10% and whether that allows the seller to back out even if the buyer turns over the purchase price. Find out if Thomas got this one right! Upcoming Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Don’t forget Opening Arguments LIVE in Los Angeles, CA on October 12, 2019. Here is the link!! This is the Time reporting on Ukraine from which Andrew quoted; and this is the New York Times story about Manafort turning over polling data to Akhmetov. Politico first reported the OMB hold on aid to Ukraine on August 28, nearly a month ago. An ongoing proceeding makes it easier to prove obstruction of justice pursuant to 18 U.S.C. § 1505. Click here to read the Nixon articles of impeachment, and (show-note only bonus!) here to read the vote breakdown. We explained the "nuclear option" on Senate rules way back in Episode 59; these are the current Senate rules on impeachment (that can be modified at any time with this One Weird Trick). Finally, if you're feeling super optimistic, remember we explained that Mitch McConnell can Mitch McConnell all of this in Episode 272. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
01/10/191h 14m

OA318: Quid Pro Quo Burger

Hooooo boy! Today's episode breaks down the tipping point that finally got House Speaker Nancy Pelosi to back an impeachment inquiry: the now-disclosed whistleblower complaint that lays out exactly how Donald Trump abused our foreign policy to pressure a foreign leader to aid him in his 2020 re-election campaign. It's every bit as bad as it looks, and we walk you through exactly what it means. Don’t forget Opening Arguments LIVE in Los Angeles, CA on October 12, 2019. Here is the link!! Here's the topline: Acting DNI Maguire changed his story as to why he withheld the whistleblower complaint to a completely bogus claim of executive privilege. We'll tell you why that won't hold up. We'll also answer: What's a TELCON, and do we have reasons to believe that the "transcript" of the President's July 25 conversation with Ukranian President Zelenskyy was "Bill Barr"ed? Are we at PEAK YODEL MOUNTAIN? Did the Republicans really email their stupid talking points to Nancy Pelosi? And if so, how do we spot a hack? (Hint: he -- and they're pretty much all 'he's -- will have an "R" after his name.) What did we learn from Maguire's testimony today, and how incriminating was it? (Very.) What does the complaint say and how bad is it? And finally -- what are the FIVE ARTICLES OF IMPEACHMENT Andrew thinks will be brought against this President? After all that, it's time for a brand-new #T3BE, this time a dreaded real property question that Thomas feels oddly confident about his answer. Do you share his optimism? Let us know! Upcoming Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Don’t forget Opening Arguments LIVE in Los Angeles, CA on October 12, 2019. Here is the link!! Remember that the operative statute requiring Maguire to have turned over the whistleblower complaint is 50 U.S.C. § 3033, and particularly subsection (k)(5). Here's the New York Times reporting that Trump mentioned Giuliani way back in his first call to Zelenskyy on April 21, 2019. Extortion is 18 U.S.C. § 355(c)(2); treason is 18 U.S.C. § 2381, and neither are a good fit here. What laws are a good fit? Well, how about (a) illegal solicitation of a campaign contribution, 52 U.S.C. § 30121; (b) bribery, 18 U.S.C. § 201 ; (c) obstruction of justice, 18 U.S.C. § 1505, and much more?? Finally, remember that we first discussed illegal campaign contributions back in Episode 116. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com! Download Link
27/09/191h 23m

OA317: North Carolina Rep. Christy Clark

Don't forget Opening Arguments LIVE in Los Angeles, CA on October 12, 2019. Here is the link!! North Carolina has been in the news and on OA a lot lately, so to help give us more context and on-the-ground info, we're fortunate enough to get to speak to NC State Representative Christy Clark! We discuss the awful stunt Republicans pulled in order to override the Governor's Veto, previously discussed in Episode 315. We also talk about gerrymandering, and Rep. Clark gives tells her inspiring story! -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
24/09/191h 13m

Bonus! Whistleblower Breakdown

Folks, this whistleblower is big news. Andrew Torrez has put in some OT to research the law behind the big news. In this bonus breakdown, we find out: what we know so far, the statute that "protects" the whistleblower and ensures congress should get to hear the complaint, who is currently breaking the law in order to cover for others who are breaking the law, what is currently being done about it, and what can and should be done about it. Listen and share! Show Notes & Links Don’t forget Opening Arguments LIVE in Los Angeles, CA on October 12, 2019. Here is the link!! Sept. 10 letter from Schiff to Maquire Sept. 13 response from COUNSEL FOR DNI acting Director Sept. 17 letter back from COUNSEL -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
20/09/191h 2m

OA316: Unsealing Mueller's Grand Jury Testimony & Other Yodel Mountain Madness

Today's Rapid Response Friday spends a lot of time high atop Yodel Mountain, pondering the latest developments in the Trump Administration's efforts to keep the underlying grand jury materials (and redacted portions of the Mueller Report) from being disseminated to Congress. Oh, and we also check in on Trump's taxes, emoluments, that crazy whistleblower case and so much more from this corrupt administration. We begin, however, with few little self-congratulatory remarks and some further information about #Brexit that we covered in Episode 315. Then, it's time to tackle In re Application of the House Committee on the Judiciary regarding the unsealing of grand jury testimony. Learn how this argument interacts with McKeever v. Barr, which we last discussed in Episode 272. After that, we pause briefly to discuss the latest ruling on emoluments from the Second Circuit Court of Appeals, as well as the latest apportionment lawsuit that may have been inspired by a previous episode. And we discuss Corey Lewandowski's sideshow, and the four pending lawsuits involving Trump's taxes, and so much more.... That gives us a brief amount of time to talk about the latest whistleblower case and what we do (and don't) know. Upcoming Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Don’t forget Opening Arguments LIVE in Los Angeles, CA on October 12, 2019. Here is the link!! We covered Brexit in Episode 315. Check out the latest Trump argument in In re Application of House Committee on the Judiciary. The operative statutory exception is Fed. Rule Crim. Pro. 6(e), and the case we discussed was McKeever v. Barr. We, of course, first discussed McKeever v. Barr way back in Episode 206 when we debunked the conspiracy theory angle, and we were proven right in Episode 272. The latest emoluments ruling from the 2nd Circuit is here; you can also check out the new apportionment lawsuit as well. Oh, and don't forget to read this great piece on Lewandowski by Elie Mystal. Finally, the two threads you must read on the whistleblower complaint are by Asha Rangappa and our friends at Mueller, She Wrote. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
20/09/191h 7m

OA315: North Carolina & Brexit

Don't forget Opening Arguments LIVE in Los Angeles, CA on October 12, 2019. Here is the link!! In this week's Deep Dive Tuesday, we take a look at two crazy stories -- one from last week, and one from... 2016. Yes, it's time for OA finally to tackle the mess that is Brexit now that we have various court rulings around the concept of "prorogation." What the hell is that? Listen and find out! And, as a bonus, we'll also talk about the craziest story out of North Carolina -- and believe us, that title has a lot of contenders! We begin, however, with a brief update on the settlement reached with Purdue Pharma in the Ohio MDL that we discussed in Episode 311. Hint: Andrew was definitely right about this one! Then, it's time for an absolutely bonkers story involving state legislators in North Carolina tricking Democrats into celebrating a 9/11 memorial... so that they could have a stealth session to override a gubernatorial veto. Did that really happen??!? (Yes.) How?!? And what happens next? Listen and find out! After that, it's time for the OA explainer on Brexit just in time for today's UK Supreme Court oral argument. Find out what court said what and how that all interacts! Then, it's time for #T3BE. Can Thomas stop a show-worst six-question losing streak? With a real property question??!? Listen and find out! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links We discussed a potential Purdue Pharma settlement in Episode 311; you can read media coverage of that reported settlement here. This is Section 22 of the North Carolina Constitution that allowed this crazy gamesmanship regarding the veto. Finally, click here to read the Scottish Court of Session decision regarding Brexit and proroguing. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
17/09/191h 15m

OA314: The Supreme Court and Trump's Asylum Rules

Today's episode breaks down a 7-2 decision by the Supreme Court to stay the decision of the District Court enjoining the Trump Administration's new asylum rules from going into effect. What happened and why? Listen and find out! It's bad news -- but to balance that out, we spend a lot of time high atop Yodel Mountain, where we discuss the ongoing march towards impeachment and the latest in the Michael Flynn saga. We begin, however, with a brief Andrew Was Wrong(TM) segment about two casual (but wrong) comments Andrew made in previous shows. As it turns out, Devin Nunes isn't the beneficiary of gerrymandering -- we knew that, honest! -- he's... wait, why do people vote for Devin Nunes again? We're not sure. Then it's time for the main segment, which breaks down the tragic significance of the court's recent order on asylum. It's only a single paragraph long, but... it speaks volumes. Find out what's going to happen next with expedited removal proceedings and undocumented immigrants. It's a tough segment, but you need to know. Next, it's time for our weekly visit to Yodel Mountain! Find out why the most conservative Democrat in Congress thinks impeachment is "inevitable!" And while we're there... what's the deal with Lt. Gen. Michael Flynn and his crackpot lawyer? We'll tell you! After all that, it's time for #T3BE. Can Thomas snap a career-worst six-question losing streak? If so, he'll have to do it on a dreaded real property question involving the sale of land. Keep your fingers crossed! Also, COME TO OUR LA LIVE SHOW!!!! Here is the link!! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links We last discussed the asylum rule changes in Episode 301. You can check out the district court's well-reasoned injunction here, and the Supreme Court's one-paragraph decision to stay that order here. And, if you're not depressed enough, read this NBC News article involving Trump's decision to deny temporary protected status to Bahamians displaced by hurricane Dorian. Here's the Washington Post article about impeachment and Rep. Brindisi, and here's the evidence that (a) Brindisi's district is the second-reddest among 2018 Democratic winners and (b) that Brindisi is arguably the most conservative Democrat in Congress. On Flynn: here's Schiff's letter, and here's Flynn's plea deal. And if Flynn keeps this up, he's in danger of losing the government's initial sentencing recommendation. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
13/09/191h 14m

OA313: Devin Nunes Is A Crazy Cow Farmer

Today's episode takes a deep dive into the latest bizarre lawsuit filed by perhaps America's most-despised Trump sycophant, California Rep. Devin Nunes. Learn all about Nunes's thrice-disciplined lawyer and the theory so crazy it must be heard (and read) to be believed. We begin, however, with an incredibly insightful listener question regarding the bill of attainder doctrine and whether it would apply to the hypothetical Poke Ted Cruz Act of 2021 discussed during our latest live show. Then, it's time to break down Devin Nunes's lawsuit piece by piece, in which you'll learn all about civil RICO lawsuits ... and why they don't remotely apply to the paranoid conspiracy theory connecting Robert Mueller to Fusion GPS to the Daily Caller to... the Center for Accountability? It's a wild ride, so strap in! After that, it's time for another listener question regarding the guys' views on policy debates vs. "scorched earth" during the Democratic primary. And then, it's time to see if Thomas can turn around his recent losing streak with a #T3BE question involving an offer to sell a pickup truck, acceptance via mail, and revocation by phone. Who wins? Listen and find out! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links In the opening segment, we discussed the bill of attainder doctrine explained in U.S. v. Lovett, 328 U.S. 303 (1946). Oh man, you have to read the Devin Nunes lawsuit for yourself. Check out the new Larry Klayman's AVVO page detailing his prior suspensions. Civil RICO can be found at 18 U.S.C. § 1961 et seq. In the last segment, we mention this atrocious hit piece in the Jacobin. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
10/09/191h 20m

OA312: Gerrymandering in North Carolina

This week's episode breaks down the 357-page state court gerrymandering decision in North Carolina striking down that state's legislative districts. We explain in depth exactly what happened -- and exactly why cases like there are the future for political gerrymandering claims in light of the Supreme Court's decision in Rucho v. Common Cause. We begin, however, with a couple of Andrew Was Wrong segments, including a sad update on Gavin Grimm as well as feedback from the entire state of Idaho! Then, it's time for a deep dive into the recent ruling in North Carolina, which includes an analysis of both the facts -- featuring "Republicans and Non-Hispanic Whites" Dr. Evil stand-in Thomas Hofeller -- and the law. If political gerrymandering is now perfectly okay by the U.S. Supreme Court, what can we do? Listen and find out! After that, it's time for a brief Yodel Mountain update regarding Don McGahn, as well as a Jeffrey Epstein update. And then it's time for #T3BE on the formation of contract: when, exactly, does a contract to buy a truck get made? You won't want to miss this one. Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links We last discussed Gavin Grimm's case in Episode 306. Click here to check out the populations of the various states, including Idaho. This is the North Carolina gerrymandering opinion. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
06/09/191h 6m

OA311: Opioids Are A Nuisance!

Today's episode takes an in-depth look at the recent landmark trial ruling in Oklahoma that the opioid epidemic constitutes a "public nuisance" in that state, and that Johnson & Johnson must pay $572 million to abate it. What do all of those crazy legal words mean? Is this a "good" result or a "bad" one? What's next? Listen and find out! We begin, however, with -- at long last! -- the in-depth discussion of the shameful history of the Mann Act in the United States as a way of answering why Jeffrey Epstein wasn't charged with offenses under it. Along the way, you'll learn about the worst guy's weekend ever! Then, it's time for the main segment about the public nuisance trial in Oklahoma that resulted in a landmark first-of-its-kind verdict. Find out what that means for future lawsuits and so much more. After all that, it's time for a quick follow-up on the Sheldon Whitehouse brief and some statistical analysis... as well as a call for more stats geekery from our highly-educated fans! And finally, we end the show with #T3BE 142 involving Not Taking Legal Advice From Your Tenant. Did Thomas finally manage to break the streak? Listen and find out! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links On Epstein: you can read his (now-dismissed) SDNY indictment, as well as the news of its dismissal. On the Mann Act, 18 U.S.C § 2421 et seq.; you'll also want to check out the case we discussed, Caminetti v. U.S., 242 U.S. 470 (1917). We first discussed the Oklahoma trial in Episode 292, and you can read the judge's trial verdict here. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
03/09/191h 9m

Law'd Awful Movies #28: Alex Jones Deposition

Hey folks! We thought we'd release this LAM to everyone, because it was particularly interesting and educational. We hope you enjoy it, and maybe it will inspire some new folks to hop on over to patreon.com/law to get more fun bonus stuff like this! 
31/08/192h 13m

OA310: Citizenship and the Military and...

Today's Rapid Response Friday takes a look at the recent Trump Administration memorandum "clarifying" the rules on military citizenship for children born to U.S. employees -- largely, those in the armed forces -- serving overseas. Is it as bad as you've heard? (Yes.) Is it actually worse than that? (Yes.) First, though, we continue to revisit the apportionment question discussed in Episode 307. Have we finally crowdsourced a solution? The answer may surprise you! After that, it's time for a deep dive into the latest policy manual update from the department of U.S. Citizenship and Immigration Services "clarifying" that servicemembers living overseas don't actually count as "living in the United States." Will this cause Trump-supporting military members to vote for Elizabeth Warren in 2020? (No.) Should it? (Yes.) Is it way, way worse than you could possibly imagine? Oh yes. After that, it's time for a very brief Andrew Was Wrong (the best kind!). Then, it's time for an all-new Thomas Takes the Bar Exam, in which we have... something approaching "Don't Take Legal Advice From A Podcast" Law? You won't want to miss this question involving a disgruntled landlord and a put-upon law student. Can Thomas break his losing streak? Listen and find out! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links We first covered the potential apportionment crisis in Episode 307. You can read the latest policy manual update from the department of U.S. Citizenship and Immigration Services for yourself. The relevant legal provisions of the Immigration and Naturalization Act are 8 U.S.C. § 1401, 8 U.S.C § 1431, and 8 U.S.C. § 1433. This is the August 15th, 2019 story about how the Trump administration continues to use the "out-of-wedlock" rule against LGBTQ couples. Finally, this is the garbage, racist National Review article on birthright citizenship, and this is U.S. v. Wong Kim Ark, 169 U.S> 649 (1898). -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
30/08/191h 23m

OA309: Can Stormy Daniels Bring Down Hope Hicks?

Today's episode is one you've requested for a while now: revisiting perhaps America's greatest legal mind, Stormy Daniels. This time, we'll learn how the Stormy saga has gotten Hope Hicks to (almost certainly) have her lawyers lie to Congress... and we'll figure out what that means for the future. First, though, we take a look at some impressive research on the Roberts Court that was put together by Rhode Island Sen. Sheldon Whitehouse -- hi, Sen. Whitehouse! We know you're listening! -- and the amicus brief it inspired. You know just how bad this Supreme Court is... but only Sen. Whitehouse has quantified it for you. And yes, that makes it much, much worse. After that, it's time for the main segment, in which we head back to Yodel Mountain to examine Hope Hicks's transparently false statements to Congress. How can we prove they're false? It's all thanks to Stormy Daniels, of course! Andrew wades through hundreds of pages of affidavit testimony in connection with the Michael Cohen search warrants to prove that Hicks's claim that she didn't know anything about the hush money paid to Stormy Daniels definitely does not hold water. Then, it's time for the conclusion to the fabulous Banana Law #T3BE! Did Thomas get it right? Listen and find out! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links You should definitely read the comprehensive Supreme Court report prepared by Sen. Whitehouse for the ACS, and also read the amicus brief he (and others) filed in the New York State Rifle & Pistol Ass'n v. New York case. As everyone knows, we first broke the Stormy Daniels story in Episode 154, "Stormy Daniels is a Legal Genius." And she still is! Then, we told you that Hope Hicks is the key to all of this in Episode 259 when we examined the Congressional investigations. We predicted that she will be compelled to testify in Episode 290. We covered the release of the Cohen documents in Episode 298. Finally, click here to read Rep. Nadler's letter to Hope Hicks, and here to read her (non-truthful) reply. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
27/08/191h 12m

OA308: Faithless Electors

Today's Rapid Response Friday breaks down a just-released decision from the U.S. Court of Appeals for the 10th Circuit that has produced a ton of alarming media. Is that alarm warranted? (No.) What did the court actually decide, and how will it affect the 2020 Presidential Election? And what does any of this have to do with Lawrence Lessig?? Listen and find out! We begin, however, with a grab-bag of questions arising out of Episode 307 on apportionment and revisit an issue that Andrew predicts will hang over the next Presidency. Are there any "quick fixes" to the problem or are we destined to be hung up in litigation? Then, it's time for our deep dive into Baca v. Colorado, understanding (a) how this case came about, (b) what it says, and (c) what the implications are for the 2020 Presidential election. Is it some crazy ruling in favor of Trump? What's "the saddest Hamilton?" Listen and find out! After that, it's time for a quick update on the emoluments clause litigation, this time examining a recent ruling by the U.S. District Court for the District of Columbia. What's the future for individual lawsuits against the President? (Hint: it's not good.) And then it's time for a brand-new banana law-themed #T3BE! Will this slip-and-fall question be enough to get Thomas back in the win column? Listen, and then play along! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Check out Laurence Tribe's "Optimist Prime" article in the Raw Story. For more on apportionment, you can read 2 U.S.C. § 2a and catch up on Franklin v. Massachusetts, 505 U.S. 788 (1992), the controlling Supreme Court precedent. Click here to read the 10th Circuit's decision in Baca, and for an example of unwarranted freakout over the Baca decision, check out this wildly-misleading NBC article. If you love the deep dive, don't forget to refresh your memory by re-reading Coleman v. Miller, 307 U.S. 433 (1939). We last updated you on emoluments in Episode 299 and in this fabulous Patreon-only bonus. You can also check out the latest DC ruling. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
23/08/191h 21m

OA307: Apportionment - The Census Fight Is Not Over

Today's episode, sadly, reminds you of an entirely new way that you should be terrified. In a "please, tell me that Donald Trump's lawyers aren't listening to this" episode, Andrew breaks down a 1990s court decision surrounding a 1920s law to talk about the ultimate endgame for Trump and the census. Is it horrible? Yes. Are you better off being prepared? Absolutely. We begin, however, with a quick trip up a rare Tuesday Yodel Mountain by examining the transfer of the House Judiciary Committee's lawsuit seeking injunctive relief against Don McGahn. Was it a "huge victory" for the President that Chief Judge Beryl Howell transferred the case? (No.) Then, it's time for a deep dive into the Presidential powers of apportionment and how Donald Trump can potentially do a court-clogging end-run around the Supreme Court's census decision even if he loses the 2020 election. After that, it's time to check out a new segment from Cybertron -- the official "Optimist Prime" versus "Negatron" segment on impeachment. Who will stand victorious? Hint: he's got the energon axe. Then, it's time for the answer to #T3BE 139, a dreaded real property question. Did Thomas manage to get it right? Listen and find out! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links You can read Judge Howell's order in the McGahn litigation here. If you want to see a sitting federal judge call a DOJ lawyer's papers "halfhearted," check out this ruling, and turn to footnote 2 on page 6. This is the Census Bureau's non-answer to Congresswoman Pressley, and this is the NPR story confirming that the White House won't commit on apportionment. The transmittal law is 2 U.S.C. § 2. Good news! Here's the latest tally on impeachment. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
20/08/191h 20m

OA306: From Gavin Grimm to Jeffrey Epstein

Today's episode combines some very, very good news regarding young trans advocate Gavin Grimm... to some rather less good news regarding a proposed rule at the Department of Labor... to some truly bizarre news and a plea for sanity given the ever-changing circumstances surrounding Jeffrey Epstein. We begin with what looks like the close of a saga that began more than five years ago, when a Virginia public school board -- at the instigation of bigots in the larger community -- forced Gavin Grimm into "separate but hardly equal" accomodations in his high school. Today, at least, it looks like Grimm has finally won, as we break down a truly monumental decision from the Eastern District of Columbia. Then, it's time to look at proposed rulemaking from the Department of Labor that would modify one of the most important Executive Orders of all time: EO 11246, in which Lyndon Johnson required government contractors not to discriminate in their hiring practices. What does Trump propose to do to this EO? Listen and find out... and maybe someday you'll worship at the Church of Chick-Fil-A. (Seriously!) After that, it's time to check in with the conspiracy theories that abound in the world of Jeffrey Epstein. Is there really a sinister motive to think that someone had Epstein killed? Will documents continue to come out that will shed light on what really happened? (Yes.) We end, as always, with a brand new #T3BE... and yes, it's another dreaded real property question. If you sell property you don't own, and later come to own it, have you merely foolishly squandered your tomato juice? Listen and find out! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Click here to read the Gavin Grimm opinion, and here to read Title IX, 20 U.S.C. § 1681. YOU SHOULD READ THE PROPOSED DOL RULE AND COMMENT HERE. You can also read the latest Washington Post story suggesting that Epstein's suicide may have not been. We've uploaded ALL the Epstein docs! You can check out the legal documents: Part 1, Part 2, Part 3, Part 5, Part 6, Part 7, Part 8, Part 10, Part 11, Part 12, and Part 13. Wait, where are Parts 4 and 9? Oh, they're over here! -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
16/08/191h 20m

OA305: Live From New York!

Please enjoy the audio from our live show at the People's Improv Theater in New York City, New York! In addition to #T3BE, we have a deep dive on gun control and the recent Remington cert petition. Then, we have a lot of fun and we have nearly an hour of Q&A! Enjoy.. and come out and see us next time! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links None! -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
13/08/191h 23m

OA304: Chelsea Manning & More

Today's pre-LIVE SHOW episode breaks down exactly what happened with the recent news story regarding Chelsea Manning being held in contempt of court. What's going on? Listen and find out! Oh, and we also revisit Katy Perry, discuss how Thomas Was Right! regarding John Cage, and take a brief visit to Yodel Mountain. You won't want to miss it! We begin with a couple of updates to the Katy Perry lawsuit we discussed last episode. First, as it turns out, Thomas was prescient in thinking that someone might have copied John Cage's famous 4'33" composition of silence and been sued over it. Does this mean Andrew Was Wrong? There's only one way to know for sure. But that's not all! We've also got a full discussion of the damages awarded to Flame, which gives you some insight into the profits of the song industry. Then, it's time for the main segment breaking down the recent court order regarding Chelsea Manning. If the grand jury has already issued its indictment of Julian Assange, how can she be kept in contempt? And what does this have to do with (almost) friend of the show G. Zachary Terwilliger? Listen and find out! After that, it's time for a brief trip to Yodel Mountain to discuss the recent filing by the Department of Justice in the Trump/Mazars lawsuit. Does this mean Bill Barr is corrupt? Yes, yes it does. And finally, it's time for #T3BE, this time involving a multi-structure contract in which one party simply gives up and goes home 1/3 of the way through. How does that person get paid? Can Thomas continue his improbable one-question winning streak?? Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Click here to read the Billboard article about the 2002 Mike Batt/John Cage settlement, and here to read the Katy Perry jury verdict on damages. And don’t forget that you can refresh your recollection by reading all the Katy Perry pleadings, including (a) the lawsuit; (b) the jury verdict; (c) the proposed jury instructions; and (d) the proposed damages instructions. We first discussed Chelsea Manning and Julian Assange in Episode 269, and you can read all of the pleadings we discuss on the show including (a) the March 6, 2018 initial (1-count) grand jury indictment of Assange; (b) the May 23, 2019 superseding indictment (18 counts); (c) the G. Zachary Terwilliger application for an order compelling Manning to testify; (d) the Court's order requiring Manning to testify; (e) Manning's motion to quash; (f) the Court's denial of Manning's motion to quash and imposition of sanctions; and (g) the recent denial of Manning's motion for reconsideration. (Phew!) Assange has been charged under 18 U.S.C. § 793, which we last discussed way back in Andrew's Favorite Episode, #13, "Hillary Clinton's Damned Emails," which was so jammed-packed with information it had its own separate blog post! We discussed the Trump-Mazars lawsuit in detail in Episode 281, and you can read the DOJ's amicus brief embedded here. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
09/08/191h 23m

OA303: Katy Perry & Facebook

Today's episode checks in on the record-setting $5 billion settlement that Facebook reached with the Federal Trade Commission for, among other things, violating a prior consent order by enabling developers like Cambridge Analytica to access your data without your permission. Is this a good deal for American consumers? It's complicated. Oh, and you also get more music law with Katy Perry, and so much more! We begin with an update on the Senate's last-ditch push to nominate more than a dozen new Trump nominees for lifetime appointments on the federal bench. And yes, despite widespread opposition, despite minimal credentials in many cases, and despite all of them having disqualifying right-wing ideologies... all were confirmed before the Senate decided to take a break. (Sorry for the bad news.) Then, it's time for the deep dive into the Facebook-FTC settlement, which does indeed impose the single largest penalty ever for a consumer protection violation. Learn why the Democratic minority at the FTC thought it wasn't enough, and along the way you'll learn a lot about the FTC. After that, it's time to revisit music law, this time with a jury verdict that Katy Perry violated the copyright of Christian rapper Flame. Andrew gives you the law, and Thomas gives you the music -- you won't want to miss this segment! Then -- as if that wasn't enough -- it's time for the answer to a brand-new #T3BE involving beer, the Constitution, and the notions of justiciability and ripeness. It's not quite as good as having a beer, but it's still a good segment! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Don’t forget that there are just 2 tickets remaining for Opening Arguments Live in New York on August 10, 2019! Click here to get your tickets before they’re gone! Click here to read the FTC-Facebook settlement; click here for the Slaughter dissent; and here for the Chopra dissent. And then don't forget all the Katy Perry pleadings, including (a) the lawsuit; (b) the jury verdict; (c) the proposed jury instructions; and (d) the proposed damages instructions. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
06/08/191h 33m

Introducing Sean Carroll's Mindscape

Each week, Sean Carroll hosts conversations with some of the most interesting thinkers in the world. From neuroscientists and engineers to authors and television producers, Sean and his guests talk about the biggest ideas in science, philosophy, culture and more. Start listening now at:  http://wondery.fm/MindscapeAB
05/08/199m 7s

OA302: #DemocracyRIP

Today's episode is all about democracy -- from the Russian efforts to de-legitimize a Clinton victory in 2016 with the #DemocracyRIP hashtag and media storm to those very same tactics being employed right now in 2019. Is a new California law requiring a presidential candidate to disclose his or her tax returns the answer? Listen and find out! We begin with the release of the (Republican) Senate Intelligence Committee Report, Vol. I, which details the extent of the Russian government's activities to infiltrate U.S. elections in 2016, including de-legitimatizing an expected Hillary Clinton victory with social media storming (and the #DemocracyRIP hashtag). It's truly terrifying. And then we move from that report to something that looks to be in exactly the same vein after the second night of the Democratic primary debate. Coincidence or conspiracy? You decide! After that, it's time for a deep dive into California Bill SB27 which requires Presidential (and gubernatorial) candidates to disclose their tax returns. Find out what the media has mis-reported, what this bill actually does, why Andrew Was Wrong, and where the future is headed for mandatory disclosure requirements. Then, we tackle another potential conspiracy theory -- this time, that the California State Bar secretly leaked bar exam questions to certain elite law schools. Is it true? (Not really.) After all that, it's time for a brand new #T3BE on regulations regarding pasteurized beer. Will Thomas break his losing streak? Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Don’t forget that there are just 3 tickets remaining for Opening Arguments Live in New York on August 10, 2019! Click here to get your tickets before they’re gone! Here's a link to the (heavily redacted) Vol. I of the Senate Intelligence Committee report on Russian interference in U.S. elections. This is the actual evidence related to #KamalaHarrisDestroyed, including (a) the Hill article and (b) the February 2nd, 2019 NBC News story. Click here to read California SB27. This is the ABA Journal article on the California bar, and this is the letter sent out to CA law school deans. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
02/08/191h 13m

OA301: The Good News Show!

Today's episode focuses on a number of actual good developments in the news! From the second half of the Mueller testimony before the House Intelligence Committee, to a court's issuance of an injunction blocking Trump's illegal efforts to change the rules on asylum, it's a (rare) week of good news! Oh -- and there's a brand new intro for your enjoyment as well! We begin with an update on Mueller's second round of testimony before the House Intelligence Committee, and answer some questions about whether Rep. Nadler can launch "an impeachment inquiry" without Nancy Pelosi's approval. Then, it's time for some good news out of the courts, including a sweeping injunction handed down in Arkansas with respect to three laws that restrict and/or prohibit abortion, including Act 493, which purported to ban all abortions after 18 weeks. This is exactly what we predicted would happen at the district court level -- and you can learn why this particular (159-page!) decision is particularly useful going forward. But the good news doesn't stop there! We also break down the Northern District of California's injunction with respect to the joint DOJ/DHS rule regarding asylum that was rammed through without the appropriate notice-and-comment period last week. Then, it's time for a fun segment regarding disciplinary proceedings against everyone's favorite crazy person, Larry Klayman! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Don’t forget that there are just 10 tickets remaining for Opening Arguments Live in New York on August 10, 2019! Click here to get your tickets before they’re gone! Click here for Nadler's 2017 impeachment inquiry. This is the must-read Dana Leigh Marks article in the Washington Post that we discuss on this show. Finally, click here to read the DC panel's recommendations against crazy person Larry Klayman. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
30/07/191h 28m

OA300: Mueller Testifies!

It's Mueller Time! Today's episode drops early to give you our instant reaction to Special Counsel Robert Mueller's testimony before the House Judiciary Committee. (This only covers the testimony before the House Judiciary Committee, not the subsequent testimony before the House Intelligence Committee.) There are just 10 tickets remaining for Opening Arguments Live in New York on August 10, 2019! Click here to get your tickets before they're gone! We break down everything that transpired -- the high points, the low points, and whether anything Moved The Noodle(TM). Specifically, we point out the factual and legal background underlying Mueller's testimony, the 24 OLC memorandum that is the subject of Mueller's declination decision, and the standards for indicting a person under 18 U.S.C. § 1512(c). Plus, you'll learn the totally misleading takes that right-wing sources are sure to run with, and we'll equip you with everything you need to rebut those. After a lengthy breakdown of the day's events, we head to #T3BE, which involves a breach-of-contract claim against a bar exam tutor and a rather disappointed new lawyer. Appearances Andrew was a guest on the latest episode of the Registry Matters podcast discussing the Supreme Court, as well as the most recent episode of Mueller, She Wrote from the live show in Philadelphia talking.. well, pretty much everything! Show Notes & Links Don't forget that there are just 10 tickets remaining for Opening Arguments Live in New York on August 10, 2019! Click here to get your tickets before they're gone! Click here to read the Mueller Report. Click here to read the OLC opinion. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
25/07/191h 33m

OA299: Executive v. Judiciary (Worcester v. Georgia)

Today's episode takes a deep dive into an 1832 decision, Worcester v. Georgia, to try and answer the question of what happens when the executive and judicial branches come into conflict. Yes, there's a lesson to be drawn to today's Supreme Court-vs.-Donald Trump showdown over the citizenship question on the census. We begin, however, with a pair of updates to previous shows, including "Joey Salads" and his nonsense "complaint" against AOC, and a listener email and update from our friend Seth Barrett Tillman regarding the status of the emoluments clauses litigation in both Maryland and DC. In fact, a late-breaking decision in the DC case led to a Patreon-only bonus extra on the topic! Then, it's time for the main event: breaking down the case that led to the famous aphorism, "Justice Marshall has made his decision, now let him enforce it." As is usually the case with these deep dives, there isn't an easy answer as to what the outcome will be when the executive and judiciary stare each other down, but we can always learn from history. In the "C" segment, we check out an update from friend of the show Randall Eliason, who taunts us with an Andrew Was Wrong about the future of Bridgegate (from Episode 232). Learn what issue is in fact going before the Supreme Court and why Prof. Eliason thinks the Bridgegate conspirators are going to get off scot-free. After all that, it's time for #T3BE #135, in which Thomas once again manages to analyze a question absolutely perfectly... only to pick the wrong answer yet again. You won't want to miss the full discussion. Appearances Andrew was a guest on the latest episode of the Registry Matters podcast discussing the Supreme Court, as well as the most recent episode of Mueller, She Wrote from the live show in Philadelphia talking.. well, pretty much everything! Show Notes & Links We last discussed the Emoluments Clauses litigation in Episode 297. and for more, check out our Patreon-only bonus extra on the topic! Here's the full text of the 1832 Supreme Court decision in Worcester v. Georgia. We last discussed Bridgegate in Episode 232, and you can click here to read Prof. Eliason's latest blog on the topic. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com! Download Link
23/07/191h 10m

OA298: Hope Hicks & Weaponized Ticks

Today's episode tackles the recently-released trove of unredacted documents in the Southern District of New York in Michael Cohen's case and explains why Hope Hicks might have been ensnared by America's greatest legal mind, Stormy Daniels. Oh, and have you heard that the Congress ordered the DOJ to investigate... whether the military weaponized ticks and if so, whether those ticks were released against Americans? It's a weird story that can't possibly be true... can it? We begin, however, with the resolution to last episode's #T3BE (formerly #TTTBE) controversy regarding the definition and conditions required for assault. Learn the results of whether "hissing" constitutes a physical threat... and whether that even matters! Then, it's time for long trip up Yodel Mountain. We begin by discussing the... conclusion? of the citizenship question and Andrew lets you know what's still to come in those cases. After that, it's time to discuss the House's resolution of criminal contempt against Bill Barr and Wilbur Ross, and what that likely means going forward. And while we're still on Yodel Mountain... hey, how about those Michael Cohen docs? Now that the other cases have been concluded, the judge ordered the Cohen search warrants to be released in (mostly) unredacted form, and you won't believe what they show. After all that, it's time for the segment you've all been waiting for: WEAPONIZED TICKS. This is a segment so powerful, you won't believe it (and we won't spoil it here in the show notes)! And then it's time for a new #T3BE involving the rules of evidence and an oral contract. Think you have what it takes to hang with Thomas? Play along online by sharing out this episode, using our new hashtag, #T3BE, and we will reward one winner with Never Ending Fame & Fortune (TM). Appearances Andrew was a guest on the latest episode of the Left at the Valley podcast discussing abortion, as well as the most recent episode of Mueller, She Wrote talking.. well, pretty much everything! Show Notes & Links It's not too late! Click here to get tickets for the Opening Arguments LIVE SHOW, live in New York City on August 10th. If you want to read the Cohen docs yourself, they're linked here. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
19/07/191h 20m

OA297: Twitter, Emoluments & Labor Unions

Today's episode features a grab-bag of stories that have been making the rounds, including the recent ruling out of the Second Circuit regarding Donald Trump's use of Twitter, a setback for our buddy Brian Frosh's efforts to enforce the Emoluments Clauses of the Constitution, and an update on the real-word consequences of the Janus v. AFSCME decision we decry so much around here. We begin with the Second Circuit's ruling in Knight First Amendment Inst. v. Trump, which established that a government official may convert a social media platform such as Twitter into a "limited use public forum," from which he may not block users on the basis of the political content of their speech -- i.e., viewpoint discrimination. Almost no one understands this decision; we'll make sure you're one of the lucky ones who do! Then, it's time for a breakdown of the 4th Circuit's ruling in In re Trump, which directs the lower court to dismiss the lawsuit (and pending discovery) against Trump in the lawsuit brought by Maryland and D.C. alleging violations of the Foreign and Domestic Emoluments Clauses. Find out what this case is all about, whether the outcome is reasonable, and what's next. After that, it's time for a quick look at the real-world implications of the Janus v. AFSCME decision allowing public-sector union employees to withhold a portion of their dues otherwise allocated for administrative duties under... some crazy right-wing theory that something something something, because Sam Alito knows diminishing the power of unions will hurt Democrats. But what else did that decision do? Listen and find out! After all that, it's time for the most controversial #TTTBE yet, in which we discover the answer to Thomas Takes The Bar Exam (regarding larceny and robbery) ... or do we? You won't want to miss this one! Appearances Andrew was a guest on the latest episode of the Left at the Valley podcast discussing abortion, as well as the most recent episode of Mueller, She Wrote talking.. well, pretty much everything! Show Notes & Links Click here to read the Second Circuit's ruling in Knight First Amendment Inst. v. Trump (the Twitter case), and here to check out the Fourth Circuit's ruling in In Re Trump (the Emoluments case). We first covered the emoluments case way back in Episode 78, and we interviewed Seth Barrett Tillman for his unique take in Episode 35 and Episode 36. We learned that bad stuff was coming in the emoluments litigation in Episode 239 when the 4th Circuit issued a stay of all discovery; you can read that stay order here. Finally, click here to read the LA Progressive article on Mark Janus and his conservative activism. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
16/07/191h 13m

OA296: Understanding the Jeffrey Epstein Indictment

Today's episode gives you the legal background you need to understand all of the different legal fronts in the various pending proceedings involving Jeffrey Epstein and the allegations of underage sex trafficking, including the recent criminal indictment in the Southern District of New York, currently pending civil defamation lawsuits against Epstein associates (including Alan Dershowitz), and the effort to reverse the non-prosecution agreement in Florida. We begin, however, with a preview of some HUGE NEWS -- our upcoming live show in New York City the weekend of August 9, 2019! Clear your calendars now and get ready to come see us live and in person! Then, it's time to unpack all of the various legal proceedings surrounding Jeffrey Epstein. (For more of a factual analysis of the Florida non-prosecution agreement, check out Episode 259.) You'll learn about the various defamation lawsuits, their status, and what's next. And then you'll also learn where we stand with respect an effort that's now 11 years old by Epstein's victims to revoke the non-prosecution agreement. And after all that, we also break down exactly how to parse the deluge of news that's soon to come out in all of these cases. After that, it's time to check back in on the Trump administration's efforts to defy the Supreme Court and still insert a citizenship question on the census. Learn what Andrew predicts will happen at Trump's press conference, why the New York court denied certain DOJ lawyers leave to withdraw, what's next in both the Maryland and New York cases and more! Of course, no episode would be complete without #TTTBE! This week's Thomas Takes The Bar Exam is question #134 about criminal law. When a jewelry thief poses as the mayor's rich and powerful son, what kinds of crimes could he be charged with? You'll just have to listen and find out! Appearances Andrew was just a guest host on Episode 100 of the Skepticrat; check it out! And if you’d like to have either of us as a guest on your show (or at your live show!), drop us an email at openarguments@gmail.com. Show Notes & Links Don’t forget to vote for us in the Podcast Awards by clicking on that link (or heading to www.podcastawards.com), clicking the blue “>> Nominations Now Open <<” box, registering with your email, and then selecting us in the drop-down boxes for “People’s Choice” and “News and Politics.” Thank you!! We last discussed the Epstein case in Episode 259. Various court documents: here’s the (a) Second Circuit’s ruling to unseal documents in Giuffre v. Maxwell; (b) the Complaint in Giuffre v. Dershowitz and (c) the 2007 Epstein non-prosecution agreement in Florida. This is the text of the Crime Victims’ Rights Act of 2004, 18 U.S.C. § 3771. Judge Marra ordered that it did violate the CVRA, but that didn’t necessarily mean that the plea deal would be torn up. Judge Marra (SDFla.)’s ruling can be found here. Here’s the Snopes article about face-swapping Clinton’s face over Trump’s. Finally, here are the Maryland local rules. -Support us on Patreon at: patreon.com/law -Follow us on Twitter: @Openargs -Facebook: https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed! @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
12/07/191h 23m

OA295: A Bladensburg Post-Mortem With Monica Miller

Today's episode welcomes Monica Miller, counsel for the American Humanist Association, back to the show! Miller, as you know, was the lead counsel and presented the AHA's argument before the Supreme Court in the American Legion v. American Humanist Ass’n case involving the 40-foot Latin cross on public property in Bladensburg, Maryland. Andrew and Monica spend the entire show doing a deep dive into the decision, trying to figure out issues like (1) is the Lemon v. Kurtzman test really dead?; (2) how can we make sense of the court's admonition to "respect the beliefs" of those who oppose taking down the cross?; (3) how can local activists proceed in light of this decision, and much, much more! After a wide-ranging interview, it's time for the answer to what Andrew has dubbed the Worst, Stupidest Bar Exam question -- this one involving the "equitable conversion" doctrine in the sale of land. Did Thomas somehow manage to get a crazy, stupid, awful real property question correct? Listen and find out! Appearances Andrew was just a guest host on Episode 100 of the Skepticrat; check it out! And if you’d like to have either of us as a guest on your show (or at your live show!), drop us an email at openarguments@gmail.com. Show Notes & Links Don’t forget to vote for us in the Podcast Awards by clicking on that link (or heading to www.podcastawards.com), clicking the blue “>> Nominations Now Open <<” box, registering with your email, and then selecting us in the drop-down boxes for “People’s Choice” and “News and Politics.” Thank you!! We broke down the Bladensburg cross case in Episode 256, and interviewed Monica Miller after oral arguments in Episode 274; go check them both out! Finally, we broke down the details of the American Legion v. American Humanist Ass’n decision in Episode 290. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
09/07/191h 4m

OA294: How To Fix The Supreme Court!

Today's episode reveals Andrew's plan for how to fix the Supreme Court! Oh, and while you're here, we'd love it if you would vote for us in the Podcast Awards by clicking on that link (or heading to www.podcastawards.com), clicking the blue ">> Nominations Now Open <<" box, registering with your email, and then selecting us in the drop-down boxes for "People's Choice" and "News and Politics." Thank you so much! We begin with a detailed breakdown of the developments in the multiple census cases in light of the Supreme Court's ruling last week in Department of Commerce v. New York, which we last discussed in Episode 292. Find out how a parallel case in Maryland may be the key to finally keeping the citizenship question off of the 2020 census! Then, it's time for a deep dive. We begin with Bernie Sanders's answer at the first Democratic Debate, pivot to a discussion of Daniel Epps's "Supreme Court Lottery" plan, and finally end with the option Andrew prefers. How to fix the Supreme Court? Is it Constitutional Hardball? Listen and find out! After all that, it's time for a quick Yodel Mountain update on the status of the Democratic effort to get Trump's tax returns. Good news, everyone! And then, as if that wasn't enough, it's time for the most pointless Thomas Takes The Bar Exam Question... ever! It's #133, it's Real Property, and it's terrible. And if you would like to participate in this self-inflicted torture, just share out this episode on social media, include your answer and the hashtag #TTTBE, and we will shower one lucky winner with never-ending fame and fortune(*)! (*) - subject to the terms and conditions as set forth orally during this show. Appearances Andrew will be a guest at the Mueller She Wrote live show in Philadelphia, PA on July 17, 2019; click that link to buy tickets, and come up and say hi! And remember: if you’d like to have either of us as a guest on your show (or at your live show!), drop us an email at openarguments@gmail.com. Show Notes & Links Don't forget to vote for us in the Podcast Awards by clicking on that link (or heading to www.podcastawards.com), clicking the blue ">> Nominations Now Open <<" box, registering with your email, and then selecting us in the drop-down boxes for "People's Choice" and "News and Politics." Thank you!! We last discussed the census question and the Supreme Court's opinion in Dep't of Commerce v. New York in Episode 292. You'll want to read the brief transcript of the telephonic hearing held in front of Judge Hazel in the Maryland case. And you can click here if you want to monitor the Supreme Court's docket to look for the Government's potential motion. This is the text of Rule 62.1, which was certainly new to Andrew. This is a transcript of the second night of the Democratic debate, which contained Bernie Sanders's Supreme Court answer. You can click here to read Epps & Sitamaran's law review article, "The Supreme Court Lottery," for yourself, and you can fact-check Andrew's points about the composition of the federal bench here. Finally, don't forget to check out jurisdiction-stripping in Ex Parte McCardle, 74 U.S. 506 (1868) and the original law review article written by Charles E. Rice ("Congress and the Supreme Court's Jurisdiction"). -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
05/07/191h 32m

OA293: My Deference & Auer Deference (Kisor v. Wilkie)

Today's episode revisits a narrow area of administrative law we last discussed in Episode 266, namely, Auer deference. Andrew made a bold prediction in that episode, and find out where he was wrong -- and where he was right now that the Supreme Court has ruled in Kisor v. Wilkie. We also discuss the recent unsealing of court records thanks to a CNN reporter and we witness the return of listener favorite segment "Are You A Cop?" with a fabulous question about drinking and driving. Buckle up! We begin, however, with a look at a recent request made by CNN's Katelyn Polantz regarding certain court proceedings and records relating to the Mueller Investigation. Does this mean that "BILL BARR KILLED 7 OPEN INVESTIGATIONS?" (No.) But it is significant, and you won't want to miss why. Then, it's time for a deep-dive explainer that starts with a reminder on the principles of agency deference. Don't remember the exact difference between Chevron deference and Auer deference? We've got you covered -- including, in particular, how the latter came under attack in Kisor v. Wilkie, a case involving a retired servicemember challenging the internal agency regulations governing disability pay. Should the courts defer to an agency's interpretation of its own rules, or should it be wildly activist and defer to Neil Gorsuch's interpretation of those rules? Kisor gives us a slightly different answer than you might expect, all while angling us towards the day soon to come in which the Supreme Court greatly expands the power of the judicial branch. After that, it's time for Are You A Cop? featuring some truly terrible advice for how to beat a DUI arrest. (Please do not do this.) We talk about standards of evidence while debunking the notion that you should... drink more when you're pulled over? (It's a weird question.) As if that wasn't enough, we end with the answer to Thomas Takes The Bar Exam #132 about an escaped, de-fanged, venomous snake. Who's responsible? Listen and find out! Appearances Andrew will be a guest at the Mueller She Wrote live show in Philadelphia, PA on July 17, 2019; click that link to buy tickets, and come up and say hi! And remember: if you’d like to have either of us as a guest on your show (or at your live show!), drop us an email at openarguments@gmail.com. Show Notes & Links This is the Raw Story article we criticize during the "A" segment, and to verify what we've said is correct, you can read (a) Polantz's request; (b) the Court's order; (c) Exhibit A (Search Warrants); (d) Exhibit B (Wiretapping); and (e) Exhibit C (Pen Register/Trap & Trace). Phew! We previewed Kisor v. Wilkie (read decision) in Episode 266. And, in breaking down Justice Roberts's holding in Kisor, we also expose shoddy journalism like this Daily Beast article. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
02/07/191h 7m

OA292: The End of Democracy

Today's rapid response episode breaks down the latest decisions from the Roberts court, including the ostensible "win" in Dep't of Commerce v. Ross (the citizenship question case), and the crushing loss in Rucho v. Common Cause (the gerrymandering cases). Oh, and along the way we'll also discuss the opioid crisis and the news that Robert Mueller will testify before the House Judiciary Committee. It's going to be a long and wild ride, so strap in! We begin by taking a quick trip to Yodel Mountain to discuss the significance and substance of the Congressional subpoena issued to Robert Mueller. What does it all mean? Listen and find out! Then, it's time to break down the theory and developments in State of Oklahoma v. Purdue Pharma, et al., CJ-2017-816, the case that's at the forefront of the efforts to hold pharmaceutical companies responsible for their role in causing the opioid crisis in this country. Find out what a "public nuisance" is, whether manufacturing and selling opioids is one, why this case is important, and much, much more! After all that, it's time for the main event: breaking down the Supreme Court's decisions in Ross and Rucho. Find out why Andrew thinks that John Roberts wrote the Ross opinion going the other way until the evidence broke regarding Thomas Hofeller, and how that means the entirety of the new game is: Shame Justice Roberts. (Oh, and also you'll learn along the way that our democracy is screwed.) After all that, it's time for an all-new, all-awesome Thomas Takes The Bar Exam about strict liability and de-fanged venomous snakes. What madness transpires? Listen and find out, and then play along with #TTTBE on social media! Appearances Andrew will be a guest at the Mueller She Wrote live show in Philadelphia, PA on July 17, 2019; click that link to buy tickets, and come up and say hi! And remember: if you’d like to have either of us as a guest on your show (or at your live show!), drop us an email at openarguments@gmail.com. Show Notes & Links You can read the Court's opinion in Dep't of Commerce v. Ross (the citizenship question case) as well as Rucho v. Common Cause (the gerrymandering case). Click here to read the Complaint in State of Oklahoma v. Purdue Pharma, et al., CJ-2017-816. Finally, you can check out the Los Angeles Times article on Purdue Pharma we referenced on the show as well as click here for more information on the MDL litigation pending before U.S. District Judge Dan Polster. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
28/06/191h 20m

OA291: Wildcard, Clownhorns! (Non-Compete Clauses & More)

Today's SUPER SPECIAL BONUS EPISODE tackles a bunch of issues that came up during the week that we didn't want to get buried on the whiteboard, including the Flores settlement, a deep dive into non-compete clauses, and a really good Andrew Was Right & Wrong segment about the Hatch Act. It's everything you love about Opening Arguments, only more so! We begin with an examination of the oral arguments before the 9th Circuit regarding ICE detainment centers and whether those comply with the conditions mandated by the Flores settlement that require "safe and sanitary" conditions for minors separated from their families at the border. After that, it's time for a deep dive into a really good listener question from Erin regarding covenants not to compete. Learn all about the "Legitimate Business Interest" (LBI) test and how to gauge whether a noncompete clause is (likely) enforceable, plus learn about the recent economic and political trends surrounding noncompetes that may surprise you. Then, it's time for a very insightful set of comments from a listener regarding the Hatch Act; it's an Andrew Was Right/Andrew Was Wrong compliment sandwich, but we all wind up better for it! No #TTTBE this episode since it's a special bonus. Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links We first discussed the Flores settlement and border policy back in Episode 184. For a recent report on the oral argument, check out this Courthouse News article referenced on the show. We last discussed non-compete clauses in Episode 75. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
26/06/191h 4m

OA290: Executive Privilege, Hope Hicks & Don McGahn

Today's episode takes a deep dive into executive privilege, evaluating the legal arguments being raised by the Trump administration asserting executive privilege over former communications director Hope Hicks and former counsel Don McGahn. Find out how good those arguments are -- spoiler: some aren't terrible! -- and what's next for the Congressional Democrats. First, though, we begin with coverage of the American Legion v. American Humanist Ass'n decision from last week; that's the Bladensburg Cross case that we've discussed at some length on this show. How bad is this decision? (Bad.) Then, it's time for the intersection of Rapid Response Friday and Deep Dive Tuesday in which we time travel all the way back to 1971 to evaluate the Trump Administration's claims regarding executive privilege "over the last five decades." As you've come to expect from OA, we tell you what the administration got right... and, of course, what they got wrong. If you want to know if and when Congress will ever get meaningful testimony out of Hope Hicks or Don McGahn, you need to listen to this show. Then, it's time for the answer to TTTBE #131 about the propriety of a specific question during cross-examination of a witness who testified as to the defendant's "reputation for honesty." If you love the Federal Rules of Evidence -- and really, who doesn't? -- you'll love this segment. Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links We first discussed the Bladensburg Cross case in Episode 256 with Sarah Henry of the AHA, and then got first-hand testimony about the oral argument in Episode 274 with Monica Miller. Click here to read the full Supreme Court opinion in American Legion v. American Humanist Ass'n. If you missed our coverage of Masterpiece Cakeshop, check out Episode 180. We first broke down the importance of Hope Hicks to the Congressional investigations in Episode 259; and you can click here to read the letter and subpoena she received from Rep. Nadler. NPR confirmed that Hicks's testimony was carefully managed by White House lawyers (and was therefore worthless). Click here to read Rehnquist's 1971 memorandum on executive privilege, and click here to read how President Clinton's OLC cited that memo 25 years later. Finally, this is Committee on the Judiciary v. Miers, 558 F.Supp.2d 53 (2008), the district court opinion Andrew breaks down on the show. -Support us on Patreon at: patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
25/06/191h 14m

OA289: #OpposeJustinWalker

Today's episode -- #OpposeJustinWalker -- tells you everything you need to know about Donald Trump's latest nominee for a lifetime appointment to the federal bench (and Andrew's former debate opponent) Justin Walker. You already know he's a lifelong member of the Federalist Society. Why is it specifically worth opposing him? Listen and find out! First, though, the guys break down the Supreme Court's 7-2 ruling in U.S. v. Gamble, affirming the "dual sovereignty" doctrine and finally putting the last nail in the coffin of a crazy lefty conspiracy theory we debunked way back in Episode 215. And, as a bonus (?), we find out why Clarence Thomas's concurrence is "the most horrifying thing in print in the past 50 years." Seriously! After that breakdown, it's time to analyze the background and writings of Justin Walker. We learn that he has virtually no litigation experience and that he's a right-wing ideologue; you probably expected that. But you'll also learn that his two major contributions to academic jurisprudence are (1) arguing that transparency in government is a bad, possibly unconstitutional thing; and (2) arguing that the FBI Director has a moral obligation to be the President's lackey. We are not making any of this up. Then, it's time for Thomas Takes The Bar Exam and a question on the propriety of a introducing a particular fact into evidence as the predicate for a cross-examination question. Is it hearsay? Is it impeachment? Is it just hunky-dory? Listen and find out! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links 1. We discussed the American Legion v. AHA Bladensburg cross case in OA Episodes 256 (with Sarah Henry of the AHA) and Episode 274 with Monica Miller. Monica IS coming back on the show! 2. Click here to read Gamble v. U.S. which we first discussed in OA 215. 3. Andrew debated Justin Walker in Episode 224. 4. This is his announcement. 5. You can read Walker’s CV here. 6. Of Justin Walker’s law review articles, click here to read “Chilled Chambers" and here to read “FBI Independence as a Threat to Civil Liberties: An Analogy to Civilian Control of the Military”. 7. By the way, this is the link to the FBI investigating Deutsche Bank in connection with Jared Kushner. 8. Finally, this is Walker’s National Review article. -Support us on Patreon at:  patreon.com/law -Facebook:  https://www.facebook.com/openargs/, and don't forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
21/06/191h 26m

OA288: More Led Zeppelin! (& Legal Ethics with Amy Chua)

Today's episode explains exactly what happened with the story you probably saw about how Led Zeppelin "got a new hearing" in their lawsuit with the estate of Randy California. What's going on? Listen and find out! We also break down the latest ethical wrangling over Yale law professor Amy Chua and Brett Kavanaugh. Is it as bad as everyone says? We begin with the tale of "Tiger Mom" Amy Chua, the Yale law professor who wrote a stirring defense of Brett Kavanaugh as a "mentor to women" after Kavanaugh had offered Chua's daughter a plum clerkship. Did that pot get sweetened when Kavanaugh was confirmed to the Supreme Court? (Hint: yes.) We break down all of the ethics & more in this segment. Then, it's time to revisit the lawsuit brought by the estate of Randy California against Led Zeppelin alleging that Led Zep stole the iconic riff for "Stairway to Heaven" from California's band, Spirit. If you haven't listened to Episode 236, go give that a listen right now, and then come back to find out what's new. Then, it's time for another Andrew Was Wrong segment -- this time, involving the actual penalty for refusing to answer or giving false answers on the Census. After all that, it's time for the answer to Thomas Takes the Bar Exam #130 about the constitutional propriety of collecting sales tax from a private individual who will then turn around and sell the objects to the state. Did Thomas get it right? There's only one way to know for sure! Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Click here to read Chua's original Wall Street Journal op-ed, "Kavanaugh Is A Mentor to Women." After that broke, Elie Mystal criticized Chua in an Above the Law article, to which Sophia Chua-Rubenfeld tweeted that she "[w]on't be applying to SCOTUS." Mystal also teamed up with The Guardian to unearth more revelations regarding Chua, Kavanaugh, and how his clerks always "look like models." Of course, it was Mystal who broke the news that Sophia Chua-Rubenfeld was chosen as a Kavanaugh SCOTUS clerk. We covered Zeppelin in Episode 236. The false answers statute is 13 U.S.C. § 221. -Support us on Patreon at:  patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don't forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
18/06/191h 8m

OA287: Down the Hatch (Act)?

Today's Rapid Response Friday covers all of the breaking developments this week, including a ruling from the Wisconsin Supreme Court, the latest news out of the House of Representatives, and the Office of Special Counsel's latest request that Donald Trump should fire Kellyanne Conway for "flagrant" serial violations of the Hatch Act. What does all that mean? Listen and find out! We begin by revisiting the state of Wisconsin, where Republicans in gerrymandered-safe seats in the state legislature stripped power away from the incoming Democratic Governor and Attorney General. A trial court issued an injunction preventing that law from going into effect, and just two days ago, the state Supreme Court finally ruled on that injunction. How did that go? (You know the drill.) Then, we move into the main segment, in which we discuss all of the developments related to the census question we last discussed in Episode 286. Learn about one respondent's petition for limited remand, the White House's assertion of executive privilege, and then what's next from the Democratic House. After all that, it's time to climb Yodel Mountain. Learn exactly who Lt. Gen. Michael Flynn hired once he fired Covington & Burlington Coat Factory, and what that (probably) means. And then, it's time to learn allllll about the Hatch Act, and why a loyal Trump supporter thinks it means it's time to fire Kellyanne Conway. Then, it's time for Thomas Takes the Bar Exam. This time, Thomas tackles a tricky question about a government agency that hires a private collector to purchase antiques. Can the state charge sales tax? Listen and find out! Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links 1. We last discussed the census in Episode 286. 2. Click here to read the NYIC petition for limited remand. 3. This is HR 430, which is the full House vote to allow the Judiciary Committee to sue to enforce the McGahn and Barr subpoenas. 4. And here is the roll call vote. 5. The Hatch Act is 5 U.S.C. § 7323. 6. The Hatch Act was upheld in United States Civil Service Comm’n et al. v. Nat’l Ass’n of Letter Carriers, AFL-CIO, et al., 413 U.S. 548 (1973). 7. Finally, click here to read the OSC Conway letter. -Support us on Patreon at:  patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don't forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
14/06/191h 27m

OA286: The Census and Disenfranchisement

Today's episode takes a deep dive into recent developments following the death of Republican operative Thomas Hofeller -- the architect of the REDMAP -- that may impact the census question case currently pending before the Supreme Court, Department of Commerce v. New York. First, however, we begin with an Andrew Was Wrong about the 2006 midterm elections and the Pension Protection Act. That was, in fact, a Democratic wave year -- but the PPA was passed in August, nearly five months before that new Democratic congress was seated. Oops. Then it's time to delve into the strange files of Thomas Hofeller, the architect of REDMAP -- you know, the gerrymandering strategy and software that turned Republican minorities into majorities in states like Wisconsin and tiny Republican majorities into one-sided dominance in states like North Carolina. Want to know his plan for helping "Non-Hispanic Whites?" Of course you do! We break down exactly how this development may affect Dep't of Commerce v. New York, which has already been briefed and argued before the Supreme Court, and the interesting strategy that the respondents used to make SCOTUS aware of what Hofeller was up to. After all that, it's time for the answer to Thomas (and the Entire Puzzle in a Thunderstorm Crew) Takes the Bar Exam #129 involving comparative negligence, joint and several liability, and intra-family liability in connection with a car accident. Did you get it right? Remember you can play along every Friday by sharing our show on social media using the hashtag #TTTBE. Appearances Andrew was just a guest on Episode 98 of the Skepticrat breaking down everyone's second-favorite Democratic 2020 Presidential contenders; you won't want to miss it! And if you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links We first covered the citizenship question on Episode 232 You can access the briefs filed in Department of Commerce v. New York: Here This is the letter filed by respondents and copied to the Supreme Court setting forth the new evidence relating to Hofeller. And, in the interests of balance, here's the response filed by the government. And finally, here's the ruling and scheduling order from Judge Furman in the District Court case (No. 18-2921) setting forth the time to brief and seek discovery regarding potential sanctions on the government witnesses. -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don't forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
11/06/1955m 36s

OA285: Tulsi Gabbard & Michael Flynn

Today's instant-breaking episode takes a look at the significance of Lt. Gen. Michael Flynn's decision to fire his lawyers, Andrew's buddies over at Covington & Burling. Oh, and we also take a semi-deep-dive into President Trump's decision to impose tariffs on "all goods" imported from Mexico. What does it all mean? Listen and find out! We begin, however, with a slight preview of next week's show, which will break down the impending tariffs on goods imported from Mexico. How is this like (or unlike) Trump's decision to impose steel tariffs on China? You'll have to listen and find out! Then, it's time for the main segment in which we learn that Lt. Gen. Michael Flynn has fired his lawyers at Covington & Burling? What does that mean? Only time will tell. For the "C" segment, we break down the upcoming DNC debate, who's qualified, and what legal remedies some of the "loser" candidates might have. After all that, it's time for #TTTBE involving torts, contributory negligence, and joint and several liability. Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links We first discussed Trump's tariffs on China in episode 162 Trump's statement on Mexican tariffs is here The prior authority relied upon by Trump is the IEEPA, 50 U.S.C. § 1702 Click here to read a CNBC piece on the likelihood of a trade war. You can read Vol I. and Vol. II of the Mueller in searchable PDF. Here's the evidence C&B was fired. Here are the DNC rules and you can check out "Bernie Sanders's" failed lawsuit here. -Support us on Patreon at:  patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don't forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
07/06/191h 10m

OA284: Drain the Swamp, Starring Gordon Hartogensis

Today's episode is a tragedy in three acts, bringing together three seemingly-unrelated stories: (1) understanding the looming crisis at the Pension Benefits ordonuarantee Corporation; (2) figuring out who Gordon Hartogensis is and why he's about to gain control over potentially hundreds of billions of dollars in assets; and finally, (3) putting together all the pieces to see how President Trump has acted to protect his crony, Treasury Secretary Steven Mnuchin, from potential criminal and civil liability in connection with his management of Sears. Strap in; it's going to be a bumpy ride! We begin in Act I, in which the guys break down the Employee Retirement Income Security Act of 1974 (ERISA), its creation, the Pension Benefits Guaranty Corporation (PBGC), and the developments over the last 45 years that have pushed the PBGC to the brink of collapse. Act II, then, takes over with the recently-appointed International Man of Mystery, Gordon Hartogensis, to lead the PBGC. Who is this guy, and what has he done to inspire confidence that he can right the ship? Listen and find out! Act III weaves these stories together with the ongoing civil lawsuit by Sears against Steven Mnuchin and his buddy Eddie Lampert, who are alleged to have looted Sears's assets, driving it into bankruptcy. You'll never guess who bought those assets in bankruptcy... or, perhaps you'll instantly guess who did. After all that, it's time for the answer to Thomas Takes the Bar Exam #128 involving a crazy fast-food heist involving an imaginary sniper and the drive-thru lane. Did you get it right?? Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Check out ERISA, 29 U.S.C. §§ 1001 et seq. You can also read the text and a breakdown of the key provisions of the PPA, which passed the Senate 93-5. For a sad laugh, check out the PBGC's own scant "Who the hell is Gordon Hartogensis?" page. The first person to break this story was Politico's Ian Kullgren, who wrote this article. We first covered the Sears/Lampert/Mnuchin story back in Episode 273, and you can read the Warren/Ocasio-Cortez letter here. -Support us on Patreon at:  patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don't forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
04/06/191h 2m

OA283: Mueller Speaks! (& Clarence Thomas Pens a Nonsensical Concurrence)

Today's episode breaks down the statement made this week by Robert Mueller in connection with his report and investigation. Is it a good sign? Is it a bad sign? Is it both? Listen and find out! We begin, however, with a bit of housekeeping, including a recommendation that you check out Episode 194 of Serious Inquiries Only (featuring Eli Bosnick!) for the official OA answer to all things milkshaking. We also preview a bit of next week's show, which involves revisiting Eddie Lampert, Steve Mnuchin, and the alleged looting of Sears. Is it worse than you think? (It's always worse than you think.) Next, we check in on four Supreme Court orders that relate to gerrymandering. Is that worse than you think? (It's always worse than you think.) After all that, we're not even halfway done! Our main segment breaks down the Supreme Court's brief, two-page per curiam order in Box v. Planned Parenthood... and the sprawling, nonsensical 20-page concurrence written by Clarence Thomas that literally repeats David Barton-level falsehoods. You'll be angry, but you won't want to miss it. Then, it's time to Yodel! We carefully break down Robert Mueller's statement regarding his investigation and what it means for the future. In so doing, we also analyze Mueller's claims regarding the now-infamous 2000 OLC memo as to whether a sitting president can be indicted. After all that, it's time for an all-new Thomas Takes The Bar Exam #128 involving a crazy criminal effort to steal money from a fast-food drive-through by pretending to have a sniper... look, you'll just have to listen and play along, okay?!? Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links For the correct take on milkshaking, check out Serious Inquiries Only Episode 194 with Eli Bosnick. We first covered the alleged looting of Sears by Eddie Lampert and Steve Mnuchin in Episode 273 and that was picked up by our friends Elizabeth Warren and AOC. These are the four orders the Supreme Court granted in gerrymandering cases: A. HOUSEHOLDER, LARRY, ET AL. V. A. PHILIP RANDOLPH INST., ET AL. B. CHABOT, STEVE, ET AL. V. A. PHILIP RANDOLPH INST., ET AL C. MICHIGAN SENATE, ET AL. V. LEAGUE OF WOMEN VOTERS, ET AL. D. CHATFIELD, LEE, ET AL. V. LEAGUE OF WOMEN VOTERS, ET AL. Click here to read the Supreme Court’s Opinion in Box v. Planned Parenthood Click here for the peer-reviewed research showing that Sanger was not a eugenicist; and here for the article showing she wasn’t a racist. This is a transcript of Robert Mueller’s testimony and this is the 2000 OLC Memo. Support us on Patreon at:  patreon.com/law -Follow us on Twitter:  @Openargs -Facebook:  https://www.facebook.com/openargs/, and don't forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki -And finally, remember that you can email us at openarguments@gmail.com!
31/05/191h 26m

OA282: OREO (& The Real HUD Scandal)

Lost in the (justifiable) concern over Secretary of Housing and Urban Development Ben Carson's apparent lack of understanding of REOs, OREO, and just about anything pertinent to his job is a recently-proposed HUD rule that would deliberately reverse an Obama-era regulation requiring nondiscrimination in the provision of services to the homeless based on gender identity. Is it as bad as you think? (Yes.) First, however, we begin with an Andrew Was Wrong and a bit more discussion on abortion, including the difference between Plan B and the oral abortifacient RU-486, and the difference between a zygote and a blastocyst. After that, it's time for our deep dive into Secretary Carson's laughable testimony... and the real issue hiding beneath the surface, which involves crafting a religious exception to the Equality Rule of 2016. Then, it's time to debut Optimist Prime(TM) vs. Negatron(TM) on impeachment. Find out why Andrew thinks the tide is turning and Thomas... doesn't. Where do you wind up? Listen and find out! Then, it's time for the answer to an all-new Thomas Takes the Bar Exam #127 -- a dreaded real property question about a man who tries to convey his property to an overseas nephew before dying.  Can Thomas get it right??  Listen and find out! Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links We first discussed the rise of state-level constitutional protections to the right to choose back in Episode 276. and analyzed Georgia HB 481 and Alabama HB 314 in Episode 280. You can read HUD proposed rule FR-6152 (currently RIN 2506-AC53) for yourself.
28/05/191h 26m

OA281: Follow the Money! (Analyzing Judge Mehta's Order)

Today's episode breaks down Judge Mehta's recent order in the Trump v. Mazars litigation, which is parallel to the Deutsche Bank lawsuit we discussed on last week's show. Why is this ruling significant, how does it accelerate the House's efforts to uncover crucial financial documents, and what does this mean for the future of the Trump Presidency? Listen and find out! We begin, however, with a look at some late-breaking news from Sen. Elizabeth Warren and Rep. Alexandria Ocasio-Cortez, who have requested information from Treasury Secretary Steven Mnuchin related to his tenure at Sears (that we discussed in Episode 273) and whether that conduct continued during his time working for the Trump administration. Then, it's time for the main segment, in which we discuss Judge Mehta's order, what it means for the future of the Trump investigations (and for future presidential administrations!), as well as deal with skeptical questions about the potential timeframe. Learn how the Congressional Democrats maneuvered to get this case fast-tracked so as to avoid endless delays -- and listen to Andrew's possibly-surprising prediction about what he thinks the Supreme Court won't do to protect Trump! After all that, it's time for a brand new Thomas Takes the Bar Exam #127... and yes, it's another dreaded real property question. Worse, it's a hard one -- in which the question gives you the answer but asks for the best reason why. Find out what happens when someone conveys property and dies while the gift recipient is overseas serving in the military. And if you'd like to play along with #TTTBE, just share out this episode on social media for a chance to be next week's winner! Appearances Andrew was a guest on the most recent episode of Pod Therapy, discussing the "Goldwater Rule," and Thomas was a guest on Episode 196 of God Awful Movies, "Alien Intrusion: Unmasking a Deception." If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links 1.  This is the link to the Warren/AOC letter to Mnuchin 2.  We most recently discussed the Congressional subpoenas into Trump's finances in Episode 279. 3.  Text of Judge Mehta's order in the Mazars case. 4.  This is the New York Times story about the Deutsche Bank whistleblower; and for an in-depth discussion of SARs reports, check out Carla McCadden in Episode 174. 5.  This is the report that some lenders have already provided documents to the House, and we discussed the Wells Fargo penalties in Episode 146 and 169. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don’t forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com Download Link
24/05/191h 13m

OA280: Abortion Rights Under Assault

Today's episode takes an in-depth look at the recent abortion bans passed in Georgia and Alabama, breaking down exactly what these laws say (and don't say!) to help you sort through the panic from the actual news. It's not always a pleasant trip, but it's a journey worth taking to figure out exactly what's at stake. We begin, however, with a listener question about abortion -- and specifically, about whether the federal government can preemptively prevent the states from doing the kinds of things we talked about back in Episode 276. Find out why Andrew thinks the conservative Supreme Court isn't likely to uphold the constitutionality of a federal law prohibiting states from recognizing abortion rights. After that, it's time for a deep dive in to the very confusing Georgia statute , HB 481. Exactly what does this bill do (and not do), and how scared should you be? Listen and find out. And if that's not enough, we also walk you through the more straightforward (but still terrifying) Alabama statute, HB 314. Is it true that the bill fails to exempt rape victims? (Yes.) Is there anything to mitigate how awful this bill is? (Sort of.) After all that, it's time to find out the answer to TTTBE #126 about a man who shoots a would-be assailant three times, including once after the assailant is lying on the ground and whimpering. What kind of crime could this be? Listen and find out! Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links We first discussed the rise of state-level constitutional protections to the right to choose back in Episode 276. You can check out Georgia HB 481 and Alabama HB 314 to read these bills for yourself.
21/05/191h 19m

OA279: Deutsche Wanna Loan?

Today's episode breaks down everything you need to know about the pending Trump v. Deutsche Bank lawsuit over the pending Congressional subpoenas for Donald Trump's (and Don Jr.'s, and Eric's, and Ivanka's, and the Trump Organization's) financial records. Why is Trump suing Deutsche Bank, and what's going to happen? Find out why Andrew is still optimistic! We begin, however, with the breaking news that Trump has pardoned Conrad Black. Who is he? Should this be a scandal? (Yes.) Will it be? (No.) And is Conrad Black a gigantic racist? (Guess.) Then, it's time for the main segment about Trump v. Deutsche Bank. We talk about the unique legal standard in the Second Circuit that gives the Trump legal team a legitimate thread by which to argue for their injunction preventing Deutsche Bank from disclosing Trump's financial records to the House Committee. Then, it's time to answer a listener question from Rob Bate about conspiracy, obstruction, and the Mueller Report. After all that, it's time for a brand-new Thomas Takes The Bar Exam #126 involving whether shooting a would-be assailant who has broken off her attack is homicide, and if so, what kind. Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Here’s a link to Conrad Black’s disgusting “Who Was Really At Fault In Charlottesville?” essay. Check out the Wikipedia entry on Michael McFaul. And his testimony to the House Intelligence Committee. Here are the Trump v. Deutsche Bank documents -The Complaint -Trump’s Motion for a Preliminary Injunction -Deutsche Bank’s statement -The House Committee’s Opposition -Trump’s reply memorandum We cited Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30 (2010) for the proposition that the 2nd Circuit recognizes an alternative test. And, of course, credit for the fabulous “Deutsche Wanna Loan?” goes to our friends at Mueller, She Wrote Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don’t forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com
17/05/191h 14m

OA278: The Founding Myth (w/guest Andrew Seidel)

Today's episode features a long-form interview with one of our favorite recurring guests, Andrew Seidel of the Freedom From Religion Foundation. He's on to discuss his just-released book, The Founding Myth: Why Christian Nationalism is Un-American. Because Andrew, Andrew, and Thomas could easily talk for a full hour (and then some)... why, that's exactly what they do. We hold Andrew Seidel's feet to the fire on the threat that Christian Nationalism poses to the U.S. judicial system, including an in-depth discussion of the future of the Establishment Clause. And if you haven't heard of "Project Blitz," you will after this interview. You don't want to miss it! After all that, it's time for the answer to Thomas (& Andrew) Take the Bar Exam Question #125 on the admissibility of prior bad acts evidence. Can the prosecutor introduce evidence of the "Ol' Switcheroo" on cross-examination? Listen and find out!
14/05/191h 1m

OA277: The Republican Civil War

Today's episode breaks down everything you need to know about what's going to happen with the House Judiciary Committee's vote to recommend holding Bill Barr in contempt of Congress. Is this all going to go nowhere in a Trump-dominated executive and a right-wing judiciary? Find out why Andrew's optimistic, and why he calls the underlying dynamic the coming Republican Civil War! All that and we revisit the Republican Andrew called the "key to the apex of Yodel Mountain" over a year ago! We begin, however, with a big MISSION ACCOMPLISHED banner: you did it! Opening Arguments listeners opened up bar complaints with the Florida Bar about Congressman and nasty little troll Matt Gaetz, and now he faces a state bar disciplinary proceeding. He's not the only one, either; we got breaking news today that Paulie Manafort has indeed been disbarred by the District of Columbia! During the main segment, we break down (1) the contempt recommendation by the House Judiciary committee and exactly what is going to happen next; (2) what the House's "inherent sanctions" powers are, and whether they can really sic the Sergeant-at-Arms on Bill Barr (hint: yes!); (3) assertions of executive privilege; and (4) the Republican Senate Intelligence Committee's subpoena of Donald Trump Jr. Is Richard Burr (R-NC) the next In Rod We Trust? Listen and find out... and brace yourself for the coming Republican Civil War! After all that, it's time for a Thomas Takes the Bar Exam featuring special guest Andrew Seidel. Together, the two sit in for an evidence question about the admissibility of prior bad acts. Brush up on your "Ol' Switcheroo" law and play along with us for #TTTBE!
10/05/191h 24m

OA276: Did Kansas Really Show Us The Way Forward on Abortion Rights?

Today's episode features an in-depth analysis of Hodes & Nauser v. Schmidt, a recent decision out of the Kansas Supreme Court holding that -- whatever the U.S. Supreme Court does -- the Kansas state constitution protects a woman's right to choose. Join us to understand how this decision is important not only for Kansans but for all of us as we deal with the challenges created by the increasingly Trump-ified federal bench. We begin, however, with a brief update as to the status of the Jeffrey Epstein plea deal that's been questioned by a recent ruling in Florida. We first covered this story in Episode 259. After that, it's time for fan-favorite "Are You A Cop?" combined with a listener question about whether (and how much) "corporations are people, my friend." Then, it's time for the main breakdown of Hodes & Nauser v. Schmidt, with brief stopovers in Alabama (to discuss Bill 314), a prediction on the future of Roe v. Wade before this Supreme Court, and a full breakdown of the Kansas opinion and why it matters. After all that, it's time for yet another listener question, this time about the dissent in Hodes, what it means, and why the court spent so much time talking about the police power of the state, John Locke, and natural law. Confused? You won't be, after listening to this segment. And as if that wasn't enough, after all that, it's time for the answer to TTTBE #124 about Decomposing Snail Soda(TM) ("It's Maddeningly Addictive"). Find out if Thomas got this question right! Download Link
07/05/191h 21m

OA275: Yes, Bill Barr Perjured Himself

Today's episode covers everything you need to know about Bill Barr's testimony before the Senate Judiciary committee (and his refusal to testify before the House). Has he perjured himself? (Yes.) Is there a reasonable defense of Barr? (No.) What's next? Listen and find out! Also, don't forget to show up for our monthly LIVE Q&A on our YouTube channel this Sunday, May 5th at 6 pm Eastern / 3 pm Pacific! We begin today's show, however, with a few Andrew Was Wrongs and one Andrew Was Right. Wrong? Andrew used "fulcrum" when he should have used "center of gravity," and it led to this amazing listener graphic explaining the difference. Also, Andrew relied upon a mislabeled graph in a complaint in Episode 273; technically, that's someone else who was wrong first, but hey. But Andrew was definitely RIGHT about the RNC platform, and now we have even more evidence to confirm it -- this time in the form of the testimony of J.D. Gordon to Mueller's team of investigators. And we break that down for you (because of course we do!). Then, it's time to delve into everything we know about Bill Barr's perjure-tastic trip before the U.S. Senate Judiciary Committee. Find out why Andrew thinks Barr isn't going to last, and why he definitely committed perjury. Oh, and figure out what Rule 6(e) is -- and why Barr is lying about that, too. After all that, it's time for a brand-new Thomas Takes the Bar Exam #124... this time about Decomposing Snail Cola. Decomposing Snail Cola: It's the Only One With Decomposing Snails!
03/05/191h 15m

OA274: Arguing Before the Supreme Court (with Monica Miller)

Today's episode features an in-depth interview with Monica Miller, counsel for the American Humanist Association and (we think!) the second-youngest person ever to argue before the Supreme Court! Just last month, Monica argued the AHA's position in Maryland-National Capital Park and Planning Commission v. American Humanist Association before the Supreme Court, and we get to learn all sort of amazing behind-the-scenes information about the case. We spend the full hour with Monica Miller and learn how the AHA came to take this case, the roller-coaster-highs-and-lows of prevailing in the Fourth Circuit only to see it get taken up by a very conservative SCOTUS, and you get Monica's prediction as to how she thinks the Court might rule... as well as which members of the Court's conservative bloc were receptive to her arguments. Along the way, you'll also learn exactly how Monica got ready for her big day! After that, it's time for the answer to T(&M)TTBE #123, the dreaded real property question involving the subsequent sale of property, the doctrine of merger, and... well, let's just say this was a hard one! Did anyone get it right? You'll just have to listen and find out. Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links We first discussed the Bladensburg cross case in Episode 256. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com
30/04/191h 4m

OA273: Sears, Steve Mnuchin & "The Producers"

Today's episode features a deep dive into a just-filed lawsuit by Sears against its CEO, Eddie Lampert, and certain directors, including Treasury Secretary Steven Mnuchin. The lawsuit alleges that Eddie & Steve managed to wreck not one but two long-standing American institutions. How? Why? And what does any of this have to do with one of the best comedies of all time, The Producers? Listen and find out! We begin, however, with a very brief Andrew Was Wrong malapropism in which he confused a journalist with a philosopher. (There's a comedy setup in there somewhere.) Then, it's time for the main segment, which breaks down the background on Mnuchin, especially how he teamed up with billionaire Eddie Lampert, and then how the two of them managed to turn less than a billion dollars into full ownership of both Kmart and Sears, each of which had eight-figure valuations at the time. And, as if that wasn't enough, you can find out how Lampert (allegedly) ripped off the public on Mnuchin's watch, all while enriching himself. Drain the Swamp! You'll also learn all about The Producers-style fraud. You can make more money with a flop than with a hit! After all that, it's time for the glorious return of Thomas Takes the Bar Exam -- this time, featuring guest Monica Miller, who will be joining us for a full-length interview next episode.   TTTBE question #123, however, is a dreaded real property question...will anyone be able to get it right??  Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Click here to read the Sears lawsuit, and here to check out Mnuchin's Wikipedia page. This page contains a good explanation of Delaware corporate law regarding duty of loyalty. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com
26/04/191h 15m

OA272: Impeachment, Redactions, and Russia

Today's episode brings you a trio of stories about the changing political landscape in the wake of the release of the [REDACTED] Mueller report; namely (1) will the President be impeached (and if so, can the Senate block the impeachment), (2) will we see a full, unredacted version of the report, and (3) just how pro-Russia is this administration, anyway? We begin with a question asked by listener Thomas S. as to whether Mitch McConnell can... well, Mitch McConnell any impeachment hearings. And while the answer may not surprise you, we think you'll want to know why. Then, we move on to another listener question, this one about whether the Trump campaign actually did soften language in the GOP platform related to Russia. Was that story actually "debunked?" (No.) We debunk the debunking for your edification! After that, it's time for a two-fer of embedded stories that bear on the question of redactions. We look briefly at McKeever v. Barr and evaluate whether that will prevent the ultimate release of the full Mueller Report as well as check in on developments in a FOIA case. No #TTTBE this week! Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links You can read the Lawfareblog article that inspired Thomas S.'s question on impeachment. This is the full text of the 2016 Republican platform. Click here to read the Byron York article in the Washington Examiner that we debunk; here to read the original Washington Post article by Josh Rogin; and here to read the Politifact transcript of the Trump interview. Finally, check out McKeever v. Barr. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com
23/04/191h 10m

OA271: Dis-Barred (?) – The Mueller Report

Today, we break down the just-released [REDACTED] Mueller report. The top-line analysis? This is much worse than we anticipated in Episode 264. This report may not be the end of the road for Trump -- but it almost certainly is the end of the road for Attorney General William Barr. That's it! We spend nearly 90 minutes delving through the minutiae and correcting the egregious misquotations in Barr's now-laughable "summary" of the report. Show Notes & Links 1. You can click here to read the full Mueller report, and here for the searchable PDF. 2. We first covered Barr's summary in Episode 264, and you can read his laughably dishonest letter again right here. Oh, and we followed up with Prof. Randall Eliason in Episode 265. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com Download Link
19/04/191h 28m

OA270: Happy Tax Day!

Today's episode brings you a trio of timely stories that all revolve around taxes: the Michael Avenatti indictment (for 29 courts of tax fraud), proposed legislation that some are arguing hamstrings the IRS, and (of course) the status of Congress's efforts to get Trump's tax returns. We also learned about very cool free online tax filing (Free File)... albeit too late to help most of you. Sorry about that. We begin with the lawyer who will never come on our show -- Michael Avenatti, who rose to fame on the back of the genius of Stormy Daniels, and whom we first debunked as a grifter just a few months later (way back in Episode 181!) Turns out he's been arrested for tax fraud. Who could have seen that coming? (Oh yeah, everyone.) After that, it's time for a deep dive into HR 1957, the Taxpayer First Act of 2019. Is it really a Democratic-sponsored sellout to Turbotax, as some folks are saying? Listen and find out! Then, it's time to revisit the question of Trump's taxes. Can Trump really stonewall indefinitely on his taxes? (No.) Does the law pave the way for Democrats to get his tax returns? (Yes.) After all that, it's time for the answer to TTTBE #122 regarding the nonexistence of official documents.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! AppearancesNone! Andrew will be at the American Atheist convention in Cincinnati, Ohio this weekend, April 19-21. And if you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links For 2020: Click here to access Free File. You can read Avenatti's indictment, and/or catch up on all his scumbaggery by re-listening to Episode 181. This is the text of H.R. 1957, this is the text of the Eighth Memoradum of Understanding between the IRS and Free File, and this is the text of 67 Fed. Red. 67247 which references the MOU. Here's an example of an alarmist op-ed in the Washington Post, and this is the initial article from ProPublica. We first outlined how to get Trump's tax returns back in Episode 226; that's still the right plan. We covered Rep. Neal's request in Episode 267. The applicable statute is 26 U.S.C. § 6013. You can read Consovoy's totally crazy crazypants letter here. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com
16/04/191h 10m

OA269: Julian Assange Arrested

Today's episode breaks down the recent arrest of Julian Assange in England and what it means for Chelsea Manning (and Donald Trump!) We begin, however, with two separate sports-related stories: the improbable success of Marcus Rademacher in the Opening Arguments March Madness pool, and the (far sadder) saga of the Trump Administration's indefensible decision to overrule the MLB's deal with Cuba that would have brought an end to the dangerous human trafficking of ballplayers. After that, it's time for our deep dive into the sealed Julian Assange indictment and his arrest in England. We also discuss at great length exactly why Chelsea Manning is apparently being held in solitary confinement in prison -- even though her crime was commuted by President Obama -- and whether this indictment is relevant to the Mueller investigation. Oh, and Thomas gives you something to look out for! And if all that isn't enough for you, well, we end, as always, with a brand new Thomas Takes the Bar Exam Question #122 involving hearsay and a search for public records. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links 1. Marcus Rademacher’s winning entry is linked here. 2. If you want football-themed Opening Arguments, check out Episode 57 and Episode 58, which tell the tale of Donald Trump singlehandedly destroyed the USFL.  3. Trump reportedly wanted to buy the Cubs in 2006. 4. We covered the MLB-Cuba deal in OA 237. 5. The Assange Indictment. 6. 18 U.S.C. § 1030 (computer fraud) 7. Chelsea Manning’s 4th Circuit brief can be found here. 8. And the Government’s response written by G. Zachary Terwilliger, who we covered in OA 212. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com
12/04/191h 21m

OA268: Article V Conventions (w/Lawrence Lessig)

Today's episode revisits the topic Andrew discussed briefly in Episode 252:  Article V conventions convened for the purpose of proposing amendments to the Constitution.  Joining Andrew is Prof. Lawrence Lessig, perhaps the most vocal liberal proponent of such conventions.  Andrew, you may recall, was skeptical and concerned about the risks that such conventions could pose. Join Thomas, Andrew, and Prof. Lessig for a special 70-minute very deep dive and see if either one changes their minds! After that, it's time for TTTBE #121 regarding executive orders.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! AppearancesAndrew was just a guest on Episode 464 of the Cognitive Dissonance podcast as their legal expert.  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Here are the 14 states with Democratic legislatures and governors. This is the CNN/ORC poll Andrew referenced showing consistent high support for a balanced budget amendment to the Constitution.  And this is the Koch Brothers-funded ALEC initiative to convene Article V conventions. Click here to read Owings v. Speed, 18 U.S. 420 (1820), the first case Andrew discussed. Andrew also discussed Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975), and both lawyers talked about Coleman v. Miller, 307 U.S. 433 (1939) as the primary case for the political question doctrine. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com  
09/04/191h 29m

OA267: Originalism and the Eighth Amendment (Bucklew v. Precythe)

Today's breaking news episode takes an in-depth look at Bucklew v. Precythe, a recent Supreme Court decision that lays bare the "originalist" view of the Eighth Amendment.  Is it as bad as you think it is?  (Yes.) We begin, however, with a look at Texas v. U.S. and the recent news that the Trump administration "changed its mind" and "will no longer defend" the Affordable Care Act.  What does that mean?  Listen and find out! Then, it's time for our deep dive into Bucklew v. Precythe, the Supreme Court's analysis of how the 8th Amendment applies in capital punishment cases. After that, we go back to Yodel Mountain for some updates on the congressional investigations, including the Congressional request for Trump's tax returns and an EPIC FOIA request. And if all that isn't enough for you, well, we end, as always, with a brand new Thomas Takes the Bar Exam Question #121 involving the constitutionality of Presidential executive orders.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances Thomas was just a guest on the Cognitive Dissonance podcast; go check it out!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links 1. Wikipedia entry on sodium thiopental can be found here. 2. Glossip v. Gross (2015) 3. Supreme Court’s opinion in Bucklew v. Precythe (Apr. 1, 2019) 4. 8th Circuit’s opinion below in Bucklew 5. Congressional letter requesting Trump’s taxes 6. Bonus! Zuckerman amicus brief in the ACA litigation. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com  
05/04/191h 26m

OA266: Auer Deference & Florida Felons

Today's classic, deep-dive Tuesday takes an in-depth look at two critical issues in the news:  first, the recent effort by the Republican governor and state legislature in Florida to undo the broadly popular Constitutional Amendment passed during the 2018 midterms to restore voting rights to felons who have completed their sentences, and second, the Supreme Court's next assault on the "administrative state," this time, by likely ending the doctrine of Auer deference. We begin with an update about pending oral arguments before the Supreme Court, as well as a notice that this episode was bumped from last Tuesday to make way for our emergency Barr Summary episode. Then, it's time for a deep-dive into Florida, the process of citizen-driven ballot initiatives, and exactly what the state legislature intends to do to undermine the will of the public. After that, it's time for yet another deep dive, this time into Kisor v. Schulkin, which is currently pending before the Supreme Court, in which the petitioners have asked the Court to flat-out overrule yet another well-established conservative doctrine simply on the grounds that the Federalist Society doesn't like it. Then, as always, it's time for the answer to Thomas Takes The Bar Exam #120 regarding a light touch on the bus.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! AppearancesAndrew was recently a guest on Episode 19 of the Glass Box podcast discussing this same subject (but with respect to Utah).  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links  In the pre-show, we discuss gerrymandering, which we last talked about in depth in Episode 251. We mentioned the Washington Post story about the DC City council overturning the $15/hr minimum wage initiative. This is the text of PCB CRJ 19-03, the Florida bill under consideration.  And here, by the way, is the link to Andrew Gillum's voter registration initiative, Bring It Home Florida. We've never talked about Auer deference before, but we have discussed Chevron deference at great length, most recently in Episode 136. You can click here to read Auer v. Robbins, that 9-0 liberal decision authored by noted socialist Antonin Scalia. Finally, click here to read the underlying CAFC-Opinion in Kisor v. Schulkin. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com  
02/04/191h 17m

OA265: The Investigation is Over, But the Investigations Continue (feat. Randall Eliason)

Today's breaking news episode contains a long interview with everyone's favorite former prosecutor, Randall Eliason, who helps answer some nagging questions about what we do know about the Mueller Report (alongside all the things we don't). We begin, however, with a brief Andrew Was Right (about the Barr Summary and the news cycle!) and Wrong (about the specifics of the Assange indictment). Then, it's time for our main segment with Professor Eliason; you won't want to miss it! And if all that isn't enough for you, well, we end, as always, with a brand new Thomas Takes the Bar Exam Question #120 involving touching a very sensitive woman on the bus.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! AppearancesAndrew was recently a guest on Episode 19 of the Glass Box podcast discussing Utah referendums, and Episode 188 of God Awful Movies (reviewing "Dead Man Rising").  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links [None] Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com  
29/03/191h 23m

OA264: The Barr Summary of the Mueller Report

Today's emergency, late-breaking episode breaks down the Barr Summary of the Mueller Report and gives you some advance warning that the narrative on the Mueller report is about to shift very quickly in the opposite direction.  Get ahead of the story by listening today! Due to the length of the breakdown, we don't have our regular segments today, but we do have (as always), the answer to Thomas Takes The Bar Exam #119 regarding contracts for the sale of wheat.  Can Thomas keep his streak alive?  Listen and find out!  And, as always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! AppearancesNone!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links 1. This is the Barr Summary of the Mueller Report. 2. Ken Dilanian's tweet. 3. Glenn Greenwald's tweet. 4. We discussed disaggregation of the investigations in Episode OA: 259. 5. Confirms the Senate Intelligence Committee report we talked about in Episode OA: 190. 6. Russian Lawyer Natalia Veselnitskaya’s OPEN SDNY criminal trial as of 1/8/2019 for obstruction of justice. 7. Mueller’s NFL report is here. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com  
26/03/191h 27m

OA263: Nielsen v. Preap and Due Process Due Aliens

Today's breaking news episode contains your guide to the hotly-debated Supreme Court decision in Nielsen v. Preap, regarding how and whether aliens can be detained without due process.  What does it all mean?  Listen and find out! We begin, however, with a brief update on the Congressional Investigations we discussed in Episode 259 with the news that Hope Hicks will cooperate.  Listen to our past episode if you don't realize how huge this is. Then, we move on to some news regarding a recent order handed down by Judge Kollar-Kotelly in the District Court for the District of Columbia with respect to the trans ban.  We dive into the unique procedural issues giving rise to this order and tamp down on your enthusiasm that this may put the trans ban in jeopardy. Then, it's time for our main segment breaking down Nielsen v. Preap. We tell you exactly what this decision means along with the reasons why the Court reached the result it did. But that's not all!  After that, we have our weekly trip to Yodel Mountain with two items:  (1) an Andrew Was Right about the source of the National Enquirer's acquisition of compromising material about Jeff Bezos; and (2) a follow-up on the New York indictment of Paul Manafort. And if all that isn't enough for you, well, we end, as always, with a brand new Thomas Takes the Bar Exam Question #119 involving long-term contracts for the sale of wheat.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! AppearancesNone!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links 1. First discussed trans ban back in Episode OA: 247 2. We were assisted by Alice Ashton – trans Arabic linguist who contributed to the Advocate article located here and by Deirdre Anne Hendrick. 3. Here is a link to Directive-Type Memorandum (DTM) 19-004. 4. Pre Show: Hicks to cooperate. This is HUGE! 5. 1/4 – DC Cir. Reversed and vacated the injunction. 6. 1/22 – Supreme Court lifted the stays in two of those cases. We covered it the next day on Episode OA: 247. 7. Next day, on 3/8, the government filed a notice and this is the Plaintiffs’ response. 8. Here is the link DC Circuit's Opinions issued 3/8 9. Judge Kollar-Kotelly’s 3/19 Order 10. 3/20 Gov’ts Motion to Clarify 11. Nielsen v. Preap is linked Here 12. 8 U.S.C. § 1226(a) vs. (c) – 1952 13. Demore v. Kim, 538 US 510 - Supreme Court 2003 14. Wall Street Journal article on Becker/Bezos 15. CHN article on the problems with New York’s double jeopardy. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com  
22/03/191h 15m

OA262: Is Gideon v. Wainwright in Trouble??

Today's episode is inspired by the 56th anniversary of Gideon v. Wainwright, one of the most famous and celebrated landmark Supreme Court cases that guarantees indigent defendants the right to a court-appointed lawyer.  Is it under attack from our right-wing Supreme Court?  (You bet it is.) We begin with a quick update on the recent district court opinion in California v. Ross and what that means for the 2020 Census. Then, it's time for an Andrew Was Right segment a update on the New York appellate court's ruling in the Summer Zervos lawsuit.  As it turns out, Donald Trump does have to respond to Summer Zervos's lawsuit -- just like Bill Clinton had to respond to Paula Jones's. Then it's time for a terrifying deep dive into Clarence Thomas's dissent in the Supreme Court's recent decision in Garza v. Idaho.  What's the case about, and why is Thomas using it as a vehicle to try and overturn one of the most basic and fundamental rights criminal defendants enjoy today?  Listen and (sadly) find out. After all that, it's time for a fun listener question about footballer Wayne Rooney and public obscenity laws. Then, it's time for the answer to Thomas Takes The Bar Exam #118.  Did Thomas get a dreaded real property question correct??  Listen and find out!  And, as always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! AppearancesNone!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Click here to read the recent district court opinion in California v. Ross. Check out the New York appellate court's ruling in the Summer Zervos lawsuit. If you have the stomach for it, read Clarence Thomas's dissent in the Supreme Court's recent decision in Garza v. Idaho. In the question-and-answer section, we discussed this statute, Rooney's arrest record, and Cohen v. California. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com  
19/03/191h 11m

OA261: Sentencing Paul Manafort

Today's extra-long episode contains your guide to all of the developments involving Paul Manafort over the past week.  What does it all mean and what can we expect next?  Listen and find out! We begin, however, with a brief update on Episode 247 now that the Department of Defense has issued a Directive-Type Memorandum (DTM 19-004) implementing the ban on transgender service in the military.  With the help of some friends of the show, we break down the most pressing issues on the near horizon. Then, it's time for All Things Manafort (TM), which sneakily includes a deep dive into exactly how the U.S. Federal Sentencing Guidelines came into effect, when they were mandatory, how they became advisory, and what the hell happened in the Eastern District of Virginia. But that's not all!  After that, we have a discussion on when sentences should run consecutively versus concurrently, and how that interacts with Judge Amy Berman Jackson's sentencing decision in Manafort's DC case. AND we also have breaking news regarding new state charges brought against Manafort as soon as both federal sentences were handed down. And if that's not enough for you, well, we end, as always, with a brand new Thomas Takes the Bar Exam Question #118 that's a dreaded real property question.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! AppearancesNone!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links First discussed trans ban back in Episode OA: 247 We were assisted by Alice Ashton – trans Arabic linguist who contributed to the Advocate article located here and by Deirdre Anne Hendrick. Here is a link to Directive-Type Memorandum (DTM) 19-004. This is the Feb. 22, 2018 Mattis directive. Here are the DSM-5 guidelines on gender dysphoria We first discussed the Sentencing Guidelines in Episode OA: 162. The accompanying statute is 18 U.S.C. §3553. For a primer on “variances” versus downward departures, check out the Sentencing Commission guidelines. Judge Ellis transcript can be found here. Concurrent/consecutive is governed by 18 U.S.C. § 3554. Manafort’s NY State indictment involves Residential Mortgage Fraud 1st degree (4 counts) under Penal Law § 187.25 and Falsifying Business Records 1st Degree (8 counts) under §175.10. We discussed Gamble v. U.S. in Episode Episode OA: 215. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com  
15/03/191h 34m

OA260: Res Ipsa Loquitur

Today's episode is inspired by a law student listener question about a recent Thomas Takes The Bar Exam hypothetical, and takes a deep dive into the wonderful and wacky world of res ipsa loquitur.   What does that even mean?  You'll have to listen and find out! We begin with a brief Andrew Was Wrong segment about Donald Trump and drone use, followed up by an Andrew Was Right segment about multiple states suing to block the implementation of Trump's HHS regulations relating to Title X that we discussed in Episode 258. Then it's time for that deep dive into res ipsa loquitur that you didn't know you wanted until now! After all that, it's time for some Bonus Tuesday Yodeling, in which we check in on Roger Stone's "Motion to Clarify" that was denied by Judge Jackson and an update on the House Republicans' hilariously misguided efforts to try and discredit Michael Cohen by pointing out that he sure seems to like to lie on behalf of his client.  You won't want to miss it! Then, it's time for the answer to Thomas Takes The Bar Exam #117.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! AppearancesNone!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Here's a link to the Daily Beast article about Trump and drone strikes we teased in the opening segment. We've uploaded both Title X complaints:  the one filed by California as well as the multistate complaint. More on Title X:  click here for the actual law (42 U.S.C. § 300 et seq.); click here for the accompanying regulations (42 C.F.R. Part 59), and click here to read the new final rule promulgated by HHS regarding Title X.  And, of course, you can click here to read Rep. Cummings's letter regarding the rule. This is Rep. Jordan's "own goal" letter. Finally, here's Judge Jackson's Order regarding Roger Stone. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com  
12/03/191h 6m

OA259: Your Guide to the Congressional Investigations

Today's extra-long episode contains your guide to the Congressional Investigations, and specifically the 81 document requests sent out by Rep. Jerry Nadler to various Trump-related individuals and entities in connection with the Democratic Congress's larger investigation into corruption, ties with Russia, and general criminal behavior by the administration.  What does it all mean?  Who are the key players?  Listen and find out! We begin, however, with a brief Andrew Was Right -- Michael Cohen is producing drafts of his Congressional testimony, which may support his claim that Trump's personal lawyer, Jay "ACLJ" Sekulow edited his testimony to suborn perjury. Then, it's time for an in-depth look at the various documents requested by Rep. Nadler.  What does it all mean?  We break down the four major "buckets" of inquiries and tell you about some familiar faces... and some surprising new ones. After that, it's time to take a look into recent developments in the Jeffrey Epstein case and correct some reporting as to whether his non-prosecution agreement has really been torn up by the courts.  (It hasn't.) We end, as always, with a brand new Thomas Takes the Bar Exam Question #117 about the use of university space for a debate on affirmative action.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! AppearancesAndrew was just a guest host on Episode 91 of the Skepticrat; go check it out!  And if you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links 1. Cohen to produce drafts of his testimony to Congress. 2. Congressional Investigations 162 documents served on 81 different people. Documents here: 3. Here’s a handy guide to who’s who in the investigation. 4. Here’s Hope Hicks’s documents request. 5. Here’s our tweet out to Rep. Nadler regarding Nader’s document requests: 6. Epstein. This is the text of the Crime Victims’ Rights Act of 2004, 18 U.S.C. § 3771. 7. Judge Marra’s ruling can be found here. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com  
08/03/191h 23m

OA258: Title X and Trump's War on Women

Today's episode takes a deep dive into the latest regulations promulgated by Trump's Department of Health and Human Services regarding Title X funding.  What does all this mean?  Listen and find out! We begin by breaking down Title X, the only federal grant program to poor people for family planning.  And -- as you might imagine -- Title X explicitly excludes funding for abortions, but remains a critical source of funding for the critical work Planned Parenthood does with low-income women, including breast and pelvic examinations, breast and cervical cancer screenings, and screenings and treatments for sexually-transmitted infections and HIV.  So, of course, the Trump Administration just defunded all of that.  Find out how terrifying the new regulations are. After that, it's time for a ... lighter(?) segment in which we discuss the difference between clickwrap, browsewrap, and sign-in-wrap (?) agreements and learn about interesting new research into the readability (or lack thereof) of those agreements. Then, it's time for the answer to Thomas Takes The Bar Exam #116 about a Weekend-at-Bernie's-style auto accident.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! AppearancesAndrew was just a guest host on Episode 91 of the Skepticrat; go check it out!  And if you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links On Title X:  click here for the actual law (42 U.S.C. § 300 et seq.); click here for the accompanying regulations (42 C.F.R. Part 59), and click here to read the new final rule promulgated by HHS regarding Title X. Here's the Sacramento Bee article indicating that California and other states intend to sue to block this rule from going into effect; and click here to read Rep. Cummings's letter regarding the rule. Here's a link to "The Duty to Read the Unreadable," the research paper we discussed in the last segment. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com  
05/03/191h 8m

OA257.5 Michael Cohen Testifies, Part 2

Today's episode continues our breakdown of ex-Trump fixer Michael Cohen's testimony before the House of Representatives and all the Yodel Mountain implications that stem from it that we started in Episode 257.  What's next?  Listen and find out! We begin where we left off -- with Michael Cohen.  Find out how Cohen's testimony (and documents) implicate our favorite legal genius, Stormy Daniels! After that, it's time to check in on Roger Stone's former flunky, Andrew Miller, and his quixotic quest to undo the Mueller investigation.  That effort was just slapped down by the Court of Appeals for the D.C. Circuit, and we've got the full opinion covered for you. Then, it's time to check in on an odd development in the sentencing saga of Paul Manafort.  What does the government's latest (redacted) filing portend?  We're not entirely sure... but we want you to know what we know. And then -- after all that! -- we  end with a brand new Thomas Takes the Bar Exam Question #116 regarding a rather odd traffic accident.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! AppearancesAndrew was just a guest on HBO's Vice News!  And if you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links1. Here are the documents Michael Cohen brought to Congress. 2. Marcy Wheeler’s article: How Trump Suborns Perjury. 3. DC Circuit’s opinion in Andrew Miller’s In Re: Grand Jury appeal. 4. Court’s sua sponte order. 5. Government’s sentencing memo in Manafort’s DC trial. 6. Manafort’s response memo. 7. Government’s Supplemental heavily redacted memo. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com Download Link
03/03/191h 15m

OA257: Michael Cohen Testifies, Part 1

Today's episode breaks down ex-Trump fixer Michael Cohen's testimony before the House of Representatives and all the Yodel Mountain implications that stem from it.  What's next?  Listen and find out! We begin, however, with an update on the American Legion v. American Humanist Association case where Andrew recently spoke at the AHA's #HonorThemAll rally. After that, it's time to find out about Florida Rep. Matt Gaetz who attempted to intimidate Michael Cohen and... may have gotten into some legal trouble thanks to this show and it's listeners! Then, we begin breaking down the Cohen testimony... but there's so much here to cover, we decided to  keep going for yet another hour, and you'll get that tomorrow! For the first time, we don't end with a brand new Thomas Takes the Bar Exam Question, but you'll get #116 tomorrow.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! AppearancesNone!  And if you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links1.18 U.S.C. § 1512  Tampering with a witness, victim, or an informant. (B) governs witness tampering 2. Gaetz timeline from The Washington Post 3. Florida Bar Rules of Professional Conduct Rule 4-8.4(d) "prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice." 4. Isaac Dovere at the Atlantic tweeting about Gaetz 5. Cohen is subject to 18 U.S.C. § 1001: Statements or entries generally (a)(2) "makes any materially false, fictitious, or fraudulent statement or representation; or" 6. 18 U.S.C. § 1622  Subornation of perjury 7. Marcy Wheeler’s article: How Trump Suborns Perjury 8. Here are the documents Michael Cohen brought to Congress 9. Kansas potential emoluments violation Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com  
01/03/191h 7m

OA256: The Bladensburg Cross

Today's episode takes a deep dive into the Bladensburg Cross case currently pending before the Supreme Court with special guest Sarah Henry of the American Humanist Association.  You'll learn that Andrew is going to speak at the AHA rally on Wednesday, February 27 right before oral arguments! We bookend the interview with an Andrew Was Right segment about the recent Supreme Court ruling in Timbs v. Indiana first discussed back in Episode 234. And on the back end, we briefly discuss Clarence Thomas's bizarre and dangerous concurrence in McKee v. Cosby.  Did Justice Thomas really call for the reversal of New York Times v. Sullivan?  (Hint:  yes, yes he did.) After all that, it's time for the answer to Thomas Takes The Bar Exam #115 about whether you can use facts contained in settlement negotiations.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! AppearancesAndrew was just a guest on Episode 87 of the So Here's My Story podcast; go check it out!  And if you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Click here to check out the American Humanist Association. We first analyzed Timbs v. Indiana back in Episode 234. Click here to read Thomas's concurrence in McKee v. Cosby., and here to brush up on the classic New York Times v. Sullivan. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com  
26/02/191h 2m

OA255: Wall of Emergency

Today's episode breaks down Trump's recent declaration of a state of national emergency as a pretext to build his big, dumb wall.  What's being done about it?  What can be done about it?  Listen and find out! We begin, however, with a trip up Yodel Mountain to observe one of its most bizarre members, Roger Stone, who recently posted a "notice of apology" after having uploaded a picture to Instagram of Judge Jackson with a reticule nearby.  What does this mean for the gag order entered in his case?   We tell all -- even before the court ruled! Next, it's time for our main segment about the wall.  Andrew breaks down exactly where the funding is going to come from, and details all the lawsuits to try and block it.  We end the segment, of course, with a (pessimistic) prediction. Then, it's time for even more yodeling.  Is the Mueller investigation really coming to an end? If so, what's next?  And what about We end, as always, with a brand new Thomas Takes the Bar Exam Question #115 about offers to compromise.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! AppearancesAndrew was just a guest on Episode 87 of the So Here's My Story podcast; go check it out!  And if you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links1. Stone's notice of apology. 2. Stone's original partial gag order. 3. 18 U.S. Code § 1512: Tampering with a witness, victim, or an informant. 4. The Emergency Declaration. 5. The Presidential Border Security Victory Proclamation 6. Episode OA 243: BUILD THAT WALL!! where we first discussed states of emergency. 7. The Landowners lawsuit filed in DC, Sierra Club/ACLU lawsuit, and finally the California lawsuit filed by 16 states discussed in the show: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, and Virginia. 8. 31 U.S.C. § 9703 (TFF). 9. Department of the Treasury Forfeiture Fund. 10. 10 U.S. Code § 284 - Support for counterdrug activities and activities to counter transnational organized crime. 11. 10 U.S. Code § 2808 - Construction authority in the event of a declaration of war or national emergency - discussed in OA: 243 and "Military construction" defined in 10 U.S.C. § 2801(a). 12. Cummings report on Saudi Arabia. 13. Manafort sentencing discussed DC in OA 253: Religious Freedom and Domineque Ray 14. The transcript of Judge Jackson's findings on Manafort's lies 15. Manafort gets a 38 in the E.D.Va sentencing memo 16. Cohen to testify publicly before the House Oversight Committee on Feb. 27th. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com  
22/02/191h 19m

OA254: Mueller, She Wrote!

Today's episode features a long interview with AG, the spectacular co-host of the Mueller, She Wrote podcast.  She helps break down everything in the news that's Yodel Mountain-worthy... and along the way, you'll learn what might be next, what we might be overplaying, and much, much more! After the interview, it's time for the answer to Thomas (& AG) Take The Bar Exam #114, in which you always bet on bank!.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances Somewhat coincidentally, Andrew was just a guest on S3E6 of the Mueller, She Wrote podcast; go check it out! Andrew was also a guest on Episode 87 of So Here's My Story.  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com  
19/02/191h 5m

OA253: Religious Freedom and Domineque Ray

Today's episode tackles the recent Dunn v. Ray decision in which the Supreme Court used a procedural mechanism to allow the State of Alabama to execute a devout Muslim without affording him the same sorts of religious freedom they do to Christian inmates.  Is it as bad as it looks? (Yes.) We begin, however, with an unfortunate Andrew Was Wrong (and a promise to get better)! Then, it's time for a depressing deep dive into Dunn v. Ray and what 'religious freedom' actually means to this Supreme Court. After that, it's time for a trip to Yodel Mountain where we review the latest ruling from Judge Amy Berman Jackson about exactly how big a liar Paul Manafort is.  (Hint:  yuge.)  What does this mean for a potential Manafort pardon, and does the federal system have parole?  Listen and find out! We end, as always, with a brand new Thomas (& AG!) Take the Bar Exam Question #114 about whether banks own everything.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances Andrew was just a guest on S3E6 of the fabulous Mueller, She Wrote podcast; go check it out! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links1. Supreme Court – Dunn v. Ray order 2. 11th Circuit ruling in Dunn v. Ray 3. We discussed Manafort’s plea on Episode OA: 211 4. Text of Manafort plea deal 5. Judge Jackson’s determination 6. 18 U.S.C. § 3624 Release of a prisoner (b) Credit Toward Service of Sentence for Satisfactory Behavior Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com Download Link
15/02/191h 14m

OA252: Constitutional Conventions & the "Proud Boys"

Today's episode features a deep dive into a listener question about Article V Constitutional Conventions.  Are they dangerous?  (Yes.)  Are they a good idea?  (No.)  We also discuss the latest ridiculous defamation lawsuit.. and discover why this one is a little different.  How?  You'll have to listen and find out. We begin with a little bit of news you might have missed regarding Attorney General nominee Bill Barr. After that, it's time to answer a listener question about liberal and conservative groups that are angling for an "Article V" Constitutional Convention to overturn Citizens United (or do other things).  We delve deeply into this provision of the Constitution and discuss the plusses and (mainly) minuses of this procedure. Then, it's time to dissect the recent lawsuit brought by Gavin McInnes, founder of the "Proud Boys," which Wikipedia calls "a far-right neo-fascist organization that admits only men as members and promotes political violence."  Find out why at least one formerly respectable lawyer thinks it's just crazy (and actionable!) that the Southern Poverty Law Center called this a "hate group."  And find out why the real question in this lawsuit involves something called "tortious interference" and not defamation. After all that, it's time for the answer to Thomas Takes The Bar Exam #113, which involved the constitutionality of abortion regulations.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances Andrew was just a guest on S3E6 of the fabulous Mueller, She Wrote podcast; go check it out!  And, as always, if you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links This is the lawsuit filed by the "Proud Boys" against the SPLC. This is the Wikipedia entry on the "Proud Boys." Here's the full text of Article V of the Constitution. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
12/02/191h 9m

OA251.5 Abortion Special - More on June Medical Services v. Gee

This rapid-response bonus episode tackles the Supreme Court's late-breaking stay of the 5th Circuit's opinion in June Medical Services v. Gee, with a particular emphasis on dissecting Justice Brett Kavanaugh's dissent.  What does it all mean?  Listen and find out! We have also continued the episode with a deep dive into res judicata and the truly ominous implications of Kavanaugh's dissent at our Patreon page for supporters of the show at any level. Show Notes & Links Check out Episodes OA: 249 "Overturning Roe v. Wade Starts Today" and OA 251 for reference to our past discussion on this cases. Click here to read the Court's granting of the stay (which includes Kavanaugh's dissent), and here for the Supreme Court’s docket in June Medical Services v. Gee. This is the reply brief filed by the petitioners. Here is the prior 2016 Supreme Court decision in Whole Woman's Health v. Hellerstedt. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com Download Link
11/02/1946m 11s

OA251: Gerrymandering in Maryland Heads Back to SCOTUS

Today's episode returns to one of the most critical political issues of our time:  gerrymandering of congressional districts, and in particular, the state of MD-6, which pits the Democrats as villains and Republican voters as the plaintiffs alleging disenfranchisement.  Will that role reversal be enough to win approval from SCOTUS?  Listen and find out! We begin, however, with an update on the June Medical Services v. Gee lawsuit we first discussed in Episode 249. After that, it's time for the deep dive into gerrymandering, which takes a look at the U.S. District Court for the District of Maryland's 3-judge panel decision invalidating Maryland's 6th district; the motion to stay before the Supreme Court filed by the Plaintiffs; the opposition by the State of Maryland; and an amicus brief filed on behalf of the incumbent, Democrat David Trone. Then, we quickly clear up the status of Stormy Daniels' lawsuits.  Did the recent dismissal with prejudice have anything to do with Donald Trump?  (No.) We end, as always, with a brand new Thomas Takes the Bar Exam Question #113 that's coincidentally about the constitutionality of abortion restrictions.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances None!  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links 1. Episode OA: 249 "Overturning Roe v. Wade Starts Today" for reference to our past discussion on the abortion cases. 2. Supreme Court’s docket in June Medical Services v. Gee 3. If you’re curious, this is what MD-6 looks like today, and this is what it looked like before the 2011 redistricting. 4. We last discussed gerrymandering in Episode OA: 185 5. We also did a deep dive into the Wisconsin case in Episode OA: 80 6. Here is the Maryland district court’s ruling court’s ruling 7. You can read the Plaintiffs’ brief 8. The state's opposition, filed by Brian Frosh 9. And the Trone amicus brief filed by Andrew’s friends at Zuckerman Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com  
08/02/191h 23m

OA250: One Quarter of a Thousand Episodes!

Today's very special episode is our 250th!  To celebrate, we've assembled a compilation of some of our favorite moments over the past two and  half years.  If you've ever wanted to share the show to friends and family, this is the episode to do it.   In this episode, we explain: What the show's all about How liberal we are (or aren't) Whether we talk about non-political stuff How Trump changed the show, what "Yodel Mountain" is, what #ClearAsKushner is How seriously we take ourselves And much more! Then, as always, it's time for the answer to Thomas Takes The Bar Exam #112, which involved an angry drunken... murder (?)  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances None!  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links1. What’s the show about? It’s long-form investigative journalism into topics in the news that have a legal component to them from a left-leaning perspective. Shorter: If you like Rachel Maddow, you’ll like this show. 2. Things I’m most proud of: Stormy Daniels OA: 154 Hillary Clinton’s Damned Emails OA: 13 (36:35-38:16) Deep dives on abortion, on the Second Amendment, Abortion – OA: 27 and OA: 28 The Second Amendment  – OA: 21 and OA: 26 The 2000 Election and Bush v. Gore Eps. 2-5 OA: 02 - 3. How lefty are you guys? I mean, we definitely call out our own, like Jill Stein’s recounts. OA: 25 (24:38-29:50) Or Robert Reich OA: 59 (43:40-45:00) Or Occupy Democrats… 4 . So is it all politics? A.) Practical stuff like defining terms like spousal privilege OA: 99 (2:30-8:50) or … not advice on how to choose a lawyer OA: 12 (9:19-10:40) …every Tuesday we do deep dives into legal topics, often apolitical. PG&E in Episode OA: 241 B.) and the wacky and bizarre OA: 12: Sovereign Citizens (19:52-24:12) OA: 132: Earth Court (38:09-55:00) 5. So what changed? We elected a criminally insane game show host who’s looting the public treasury? Yodel Mountain OA: 45: (38:20-41:03) Clear as Kushner OA: 53 (57:00-57:33) 6. How seriously do you take yourself? Pretty clownhornin’ seriously! OA: 166 (32:10-40:47)and (1:30:55 to end – intro) Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
05/02/191h 24m

OA249: Overturning Roe v. Wade Starts Today

Today's episode sounds the alarm as to whether our activist right-wing Supreme Court is ready to effectively overturn Roe v. Wade and essentially permit the entire state of Louisiana to all but ban the right to an abortion in that state.  We're NOT an alarmist podcast, but this is something you need to be watching.  We also follow up on the Trump Shutdown, answer a listener question regarding our discussion of the Hilton lawsuit from last episode, and (of course) take our weekly visit to Yodel Mountain, this time on the back of one Roger Stone.  Are these all just "process crimes?"  And what the hell does that mean, anyway?  Strap in and find out! We begin, however, with a brief look at the end of the Trump Shutdown and what's likely to come next. After that, we tackle some questions and misperceptions regarding our story of the lawsuit against Hilton hotels from Episode 248. Then, it's time for the main segment, which takes a look at a pending Supreme Court motion and discusses what this means for the future of Roe v. Wade and the right to a legal abortion in this country.  Yes, it really is that significant. Then, it's time for a trip to Yodel Mountain to discuss "process crimes" rapid-fire round of questions about Trump's shutdown.  Why is Congress still getting paid?  Who can sue, and why haven't they?  Find out the answers to these questions and more! We end, as always, with a brand new Thomas Takes the Bar Exam Question #112 about murder most foul!  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances None!  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links 1. Ann Coulter was responsible for the shutdown and Trump's approval ratings take a hit. (Thomas Was Right) 2. A series of bipartisan proposals show support for ending shutdowns. 3. Title VII of the Civil Rights Act of 1964 42 U.S.C. § 2000e et seq. 4. Several years ago, Andrew wrote on reasonable religious accommodations at Disney when he was still working for The Man. 5. We discussed Planned Parenthood v. Casey in OA: Episode 27 and OA Episode: 28. 6. Whole Woman's Health v. Hellerstedt 136 S.Ct. 2292 (2016) 7. June Medical Services v. Gee, 905 F.3d 787 (5th Cir. 2018) 8. MOTION TO STAY filed by June. 9. Dershowitz – what the defenders are saying and why it’s Wrong . Followed by Seth Abramson’s Smackdown thread. 10. Stone Indictment 11. More on Randy Credico from his wiki entry and twitter. 12. Roger Stone will work the media 13. Concord Management & Consulting media discovery. 14. The joint motion in Roger Stone's case and the "voluminous and complex" evidence against him. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com  
01/02/191h 25m

OA248: The Cert(iorari) Show!

Today's episode features a deep dive into a bunch of different issues around granting the writ of certiorari -- "cert" -- and some of the intricacies of how the Trump administration is trying to take advantage of the activist Supreme Court.  Oh, and we also tackle a lawsuit that's being grossly misrepresented by the media. We begin with a discussion of the unique procedure of "cert before judgment."  What is it, how rare is it, and... why is the Trump administration trying to deploy it with alarming frequency?  Listen and find out! Then, we revisit litigation regarding the census that we first discussed back in Episode 232, and the administration's effort to... get cert before judgment (of course). Our main segment looks at something Andrew has never seen before:  essentially, a four-justice dissent from a denial of certiorari.  Why is this weird?  Listen and find out as we dissect that very opinion in Kennedy v. Bremerton School Dist. Next, we tackle a recent clickbaity headline involving a dishwasher allegedly showered with money for "skipping work to go to church."  Find out why the reporting on this case has been totally irresponsible and what really happened. After all that, it's time for the answer to Thomas Takes The Bar Exam #111, which involved a contract for defective water bottles.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances None!  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links "Cert before judgment" is governed by Supreme Court Rule 11. We first discussed the census litigation back in Episode 232.  You can read the motion to dismiss the writ of certiorari as improvidently granted, as well as the U.S. reply. Click here to read the "statement" regarding the denial of cert in Kennedy v. Bremerton School Dist. Click here to read the CBS news report on the Hilton lawsuit, and here to read the (even worse) reporting by the Friendly Atheist blog. By contrast, you can read the actual Jean Pierre Hilton overtime lawsuit and the jury's verdict.  Oh, and here's the EEOC's statement limiting punitive damages in retaliation cases to just $300,000 (not $21 million). Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
29/01/191h 13m

OA247: Status of the Trans Ban

Today's episode tackles the recent Supreme Court orders in the Trump ban on transgender service members.  How did we get here and what's next?  Listen and find out. We begin, however, with a brief Andrew Was Wrong segment regarding the history and modern politics of the State of the Union. After that, it's time for the main segment, which dives deeply into the history of trans service in the U.S. military, including a discussion of what it means to bring a case pursuant to the equal protection clause and what the future likely holds. Then, it's time for a rapid-fire round of questions about Trump's shutdown.  Why is Congress still getting paid?  Who can sue, and why haven't they?  Find out the answers to these questions and more! We end, as always, with a brand new Thomas Takes the Bar Exam Question #111 regarding the delivery of water bottles.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances Thomas was just the guest host on Episode 179 of God Awful Movies.  Give it a listen!  And if you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links 1. The must read Advocate Article interviewing long-standing friend of the show Alice Ashton. 2. 2016 Open Service Directive: Directive-type Memorandum (DTM) 16-005, "Military Service of Transgender Service Members" 3. 2017 Trump Memorandum rescinding the Open Service Directive 4. 2018 Mattis Policy: Military Service by Transgender Individuals 5. Mattis “Study”: Dept of Defense Report and Recommendations on  Military Service by Transgender Persons 6. We last discussed Hively v. Ivy Tech (7th Cir.) and Zarda v. Altitude Express (2nd Cir.) in Episode 152 7. Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) 8. FLSA lawsuit regarding the Shutdown 9. Federal Judiciary extended to February 1st 10. 13 U.S.C. § 1350 - Criminal penalty Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki And email us at openarguments@gmail.com  
25/01/191h 34m

OA246: Alex Jones & Sandy Hook

Today's episode features a deep dive into the latest developments in the lawsuit brought by parents of the victims in the Sandy Hook Massacre against Alex Jones and Infowars for repeatedly portraying the school shooting as a hoax. We begin, however, with a question regarding our views of the 2016 Presidential Election from a Trump supporter who's hate-funding us.  Hey, we're good to our word! After that, it's time to dig in to the defamation lawsuit against Alex Jones.  We tackle the minutiae -- standing, jurisdiction, statute of limitations -- and the big issues as well.  If you want to know where defamation law is headed in this era of "fake news," well, this is the show for you! Then, it's time for a quick visit to Yodel Mountain to check in on Rudy Giuliani and Michael Cohen.  Because of course it is. Finally, it's time for the answer to Thomas Takes The Bar Exam #110, which involved a dentist being sued for malpractice and product liability. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances Andrew was just a guest on Episode 138 of the Naked Mormonism podcast.  Give it a listen!  And if you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links 1. NYT articles on using third-party votes to hack elections. The Secret Social Media Experiment in Alabama Senate Race Imitated Russian Tactics and how the Democrats Faked Online Push to Outlaw Alcohol in Alabama Race. 2. Politico story on the Justice Democrats plans to mount primaries against incumbent Democrats it deems too moderate with the apparent backing of Alexandria Ocasio-Cortez. 3: NYT on Alex Jones and Sandy Hook 4. Media Matters 7 minute, 13 second compilation on Alex Jones about Sandy Hook. 5. Media Matters timeline of Jones promoting conspiracy theories about Sandy Hook. 6. Yodel Mountain: Rudy Giuliani is not helping! 7. WSJ on Cohen and poll-rigging and Cohen's response on the story: "As for the @WSJ article on poll rigging, what I did was at the direction of and for the sole benefit of @realDonaldTrump @POTUS. I truly regret my blind loyalty to a man who doesn’t deserve it." 8. The GLORIOUS "Women for Cohen" Twitter account: Because some things on twitter make you ask, "Why?". Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
22/01/191h 18m

OA245: More on Barr and the Shutdown

Today's episode covers the William Barr confirmation hearings before the Senate Judiciary Committee to become the next Attorney General, as well as the ongoing legal battles regarding Trump’s shutdown of the government. We begin with Barr, who’s proven to be a complex individual.  How did he fare in his testimony before the Senate?  Are there reasons for optimism? Is his notorious memorandum (which we covered in Episode 237) not really that bad?  The answers… are all over the map, and will certainly surprise you. Then, we discuss the ongoing shutdown, which looks to prove Andrew Wrong by not ending tomorrow.  What are the legal implications?  How are they going to be resolved?  Is there any hope, either politically or legally?  Listen and find out! Finally, it's time for Thomas Takes The Bar Exam #110 which involves a dentist being sued for malpractice and product liability.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances Andrew was just a guest on Episode 138 of the Naked Mormonism podcast.  Give it a listen!  And if you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links 1. Kamala Harris' statements regarding her opposition to Barr's nomination.2. Former Justice Department official of the George H.W. Bush administration Zachary Terwiliger and the speculation that he will once again be Barr's deputy. 3. Barr’s concerning views on executive power and reasons he has drawn so much criticism. 4. We discuss our past Episode OA 237: Lowering the Barr (Memo) 5. Jonathan Turley, GWU Law professor and gadfly, arguing about Barr 7. Jack Goldsmith, HLS professor, has written a response.  “A Qualified Defense of the Barr Memo: Part I” 8. The 1995 OLC memo: Application of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges 9. 28 U.S.C. § 458: Relative of Justice or Judge Ineligible to Appointment10. Marist polling data on the Shutdown 11. NTEU v. Mulvaney 12. Barr's written testimony Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
18/01/191h 22m

OA244: Clarence Thomas vs. Thurgood Marshall

Today's episode features a little more about Corey Robin, including the argument addressed on the show that criticisms of Clarence Thomas's competence are a racist echo of similar claims made against Thurgood Marshall.  Find out why Andrew made the mistake he did in Episode 242, and also why Andrew still stands behind his answer to that question. We begin with Robin, winding our way from his blog posts to the jurisprudence of two of Andrew's heroes, Laurence Tribe and Ronald Dworkin!  Ultimately, you'll learn why Andrew continues to defend the proposition that attacks on Thomas's competence are not inherently racist. After that, it's time for some behind-the-scenes news about Attorney General nominee William Barr just in time for his confirmation hearings.  What company does he keep when it comes to interpreting the Founding Fathers?  Listen and find out!  (Hint:  this isn't good.) Finally, it's time for the answer to Thomas Takes The Bar Exam #108 regarding real property.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links We first discussed Robin in Episode 242 as part of a listener question.  You can click here to read his Tweet criticizing us for engaging in "tribalism" and playing identity politics. We discuss two Robin blog posts in depth:  (a) "Everything is in the Hands of Heaven Except the Fear of Heaven", and (b) "The Scandal of Democracy" It was, in fact, Elena Kagan who said "we're all textualists now" in 2015. Click here to check out Tribe's 2008 book, The Invisible Constitution, which openly contests originalism (and directly engages Scalia in particular). You should also check out the Ronald Dworkin speech that was turned into an article in the Fordham Law Review. This is the 2001 Keith Whittington law review article that credits Robin with an assist.  This is Whittington's page at the Federalist Society. We engage with this tweet from Robin listing four supposed examples of intellectual laziness leveled against Thurgood Marshall. Some Thurgood Marshall links:  (a) his confirmation as reported by the New York Times; and (b) this lovely retrospective on Thomas's career penned by Juan Williams for the Washington Post. Finally, you can read some more stuff on Clarence Thomas:  (a) the 2014 rates of agreement among Supreme Court justices; and (b) this anecdote reported by attorney Matt Howell. If you have HeinOnline, you can read the Mark Tushnet law review article in the Georgetown Law Review we discuss on the show.  (Otherwise, you're stuck reading the first page only.) Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
15/01/191h 7m

OA243: Build That Wall!!

Today's episode tackles the mechanics of the shutdown and whether (and how) Donald Trump can build that wall despite widespread opposition. We begin with an Andrew Was Wrong about the identity of Corey Robin and the incorporation doctrine.  Enjoy a fun segue to Gitlow v. New York and why you should never repeat the trope that free speech doesn’t include the right to shout ‘fire’ in a crowded theater. After that, it’s a deep dive into… what exactly is a “government shutdown,” anyway?  What laws govern this? Why do some federal employees have to keep showing up?  Isn’t that “involuntary servitude?” And can Trump declare a state of emergency or use “military eminent domain” to just build the wall anyway? Then, it’s time for our weekly trip back to Yodel Mountain.  In Rod We Trust… so why is he stepping down? And what’s the deal with that secret foreign-owned corporation that shut down an entire floor right before the holidays?  Listen and find out! Finally, it's time for Thomas Takes The Bar Exam #109, another dreaded real property question! As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances None!  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Serious Inquiries Only Episode 175 Schenck v. U.S., 249 U.S. 47 (1919) Gitlow v. New York, 268 U.S. 652 (1925) Anti-Deficiency Act 31 U.S.C. § 1341 et seq. Federal courts notice Futurama “pain monster” clip Military eminent domain:  10 U.S.C. § 2663 1973 report on delegated powers National Emergencies Act: 50 U.S.C. § 1621 Search the federal register for “National Emergency” 10 U.S.C. § 2808 33 U.S.C. § 2293 Ackerman op-ed -DC Circuit Court opinion in mystery foreign corporation case Manafort sentencing memo Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com[podcast src="https://html5-player.libsyn.com/embed/episode/id/8220119/height/360/theme/standard/thumbnail/yes/preload/no/direction/forward/" height="360" width="100%" placement="bottom" theme="standard"] Download Link
11/01/191h 20m

OA243: Build That Wall!

Today's episode tackles the mechanics of the shutdown and whether (and how) Donald Trump can build that wall despite widespread opposition. We begin with an Andrew Was Wrong about the identity of Corey Robin and the incorporation doctrine.  Enjoy a fun segue to Gitlow v. New York and why you should never repeat the trope that free speech doesn’t include the right to shout ‘fire’ in a crowded theater. After that, it’s a deep dive into… what exactly is a “government shutdown,” anyway?  What laws govern this? Why do some federal employees have to keep showing up?  Isn’t that “involuntary servitude?” And can Trump declare a state of emergency or use “military eminent domain” to just build the wall anyway? Then, it’s time for our weekly trip back to Yodel Mountain.  In Rod We Trust… so why is he stepping down? And what’s the deal with that secret foreign-owned corporation that shut down an entire floor right before the holidays?  Listen and find out! Finally, it's time for Thomas Takes The Bar Exam #109, another dreaded real property question! As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances None!  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Serious Inquiries Only Episode 175 Schenck v. U.S., 249 U.S. 47 (1919) Gitlow v. New York, 268 U.S. 652 (1925) Anti-Deficiency Act 31 U.S.C. § 1341 et seq. Federal courts notice Futurama “pain monster” clip Military eminent domain:  10 U.S.C. § 2663 1973 report on delegated powers National Emergencies Act: 50 U.S.C. § 1621 Search the federal register for “National Emergency” 10 U.S.C. § 2808 33 U.S.C. § 2293 Ackerman op-ed -DC Circuit Court opinion in mystery foreign corporation case Manafort sentencing memo Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
11/01/191h 20m

OA242: Larry Klayman is Still Crazy After All These Years

Today's episode features a deep dive into the Bivens action, with a little help from everyone's favorite nutso conspiracy theorist lawyer, Larry Klayman -- and his newest client, Roger Stone sidekick Jerome Corsi.  Find out what sorts of wacky shenanigans these guys have been up to, and why they think they've hit a $350 million jackpot.  (Hint:  they haven't.) First, though, we begin with an insightful question from a listener regarding Clarence Thomas's jurisprudence and whether the frequent criticism of Justice Thomas as lazy is tinged with racism. During the main segment, it's time for the breakdown of the latest Corsi lawsuit.  It's a doozy -- it's everything you'd expect from someone who hired Larry Klayman (on purpose!) to be his lawyer. Then, we answer a fun listener question about court filings, time zones, and the international date line.  It's Around Opening Arguments In 80 Days! After all that, it's time for the answer to Thomas Takes The Bar Exam #108 regarding civil procedure.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links This Vice article collects some of the strangest facts about Clarence Thomas, and this is the Jeff Jacoby op-ed that (factually) reports regarding Thurgood Marshall's declining years and -- in Andrew's opinion -- was misrepresented by Corey Robin. Click here to read Corsi's lawsuit against Robert Mueller, and here to read Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the recent Supreme Court case limiting Bivens actions. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
08/01/191h 8m

OA241: Is This The C-Hook That Could Send PG&E To Prison??

Today's episode takes a deep dive into the potential criminal liability for Pacific Gas & Electric (PG&E) in connection with the 2018 California Wildfires and the c-hook that just might be the linchpin to the whole thing.  Are people going to prison?  Listen and find out! We begin by celebrating a brand-new holiday:  Oversight Day, with the inauguration of Nancy Pelosi as Speaker of the House.  We talk about funding, job postings, and how they all relate to Yodel Mountain. After that it's time to get deep -- and we mean deep -- into PG&E's latest court filing, what it has to do with a 2010 explosion and a 2016 order, and what really caused the California Camp Fire.  Along the way you'll learn about obstruction of justice (again!), the Natural Gas Pipeline Safety Act (really!), and how a corporation can have an "abandoned and malignant heart." Then we end with an all new Thomas Takes The Bar Exam #108 about interstate car collectors-slash-thieves.   As always, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Your Oversight Day goodies include (a) this fabulous Savannah Guthrie interview with Speaker Pelosi; (b) this equally fabulous Twitter chain from Paul Krugman; (c) the House operations budget for 2019; (d) the Axios story on Republicans seeking to hire investigative counsel; and (e) the screenshot of the jobs posting. PG&E filings include (a) the PGE Superseding indictment; (b) the jury verdict; (c) the Sentencing and probationary conditions entered by the court; (d) the Court's Nov. 27, 2018 written questions about the wildfires; (e) the Court's supplemental order seeking an amicus from the California Attorney General's office; (f) the answers filed by PGE - PGE Answers, the US Attorneys' Office, and the California AG; and finally, the PGE written Report - Exhibit A that contains the information discussed on the show. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
04/01/191h 21m

OA240: Libertarianism is Still Bad & You Should Still Feel Bad

Today's special, hangover-free New Years' episode follows up on some of the things we discussed during our Episode 238 interview with Matt Donnelly of the Ice Cream Social podcast, including the never-controversial subject of libertarianism.  Strap in; it's been an interesting year! We begin with a listener question from Ricardo, who asks some follow-up questions to our original hot take on libertarianism waaaaaay back in Episode 22.  Is there a robust theory of property rights that serves as a side-constraint on government action?  You'll have to listen and find out!  (Hint:  no.) After that, Andrew further explains the "Are You A Cop?"-style segment from Episode 238 regarding whether Brett Kavanaugh "voted with the liberals" in an abortion case.  (Hint:  no.)  You'll figure out all you need to know about the Supreme Court's denial of certiorari in Gee v. Planned Parenthood and Andersen v. Planned Parenthood... as well as getting a deep dive into Clarence Thomas's dissent and an explainer on the Medicaid Act, 42 U.S.C. § 1396a! After all that, it's time for the answer to Thomas (and Matt) Take The Bar Exam #107 regarding defamation.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Check out Matt & Mattingly's Ice Cream Social podcast! We first discussed libertarianism back in Episode 22. You can click here to read Clarence Thomas's blistering (and inaccurate) dissent from the Court's denial of cert in the Planned Parenthood cases; click here to check out 42 USC § 1396a(a)(23), the statute at issue; and click here to read the Washington Examiner article discussed on the show. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
01/01/191h 4m

OA239: The Fourth Circuit's Puzzling Emoluments Ruling

Today's episode takes a deep dive into the just-released one-page order by the Fourth Circuit staying all discovery in the Emoluments litigation brought by Maryland Attorney General Brian Frosh.  How do we fill more than an hour's worth of time on one page?  Why is this ruling really, really bad for everyone??  Listen and find out! We begin, however, with a brief foray up Yodel Mountain to discuss (1) the reports circulating that Michael Cohen's phone was in Prague in the summer of 2016, and (2) the ethics review of "Acting" Attorney General Matthew Whitaker concerning the Mueller probe. After that, it's time for a deep dive into the Emoluments litigation, the strange procedural posture of Trump's response, and what this means for civil litigation generally (and this case in particular).  You won't want to miss it! Then we end with an all new Thomas Takes The Bar Exam #107 on defamation.  As always, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Click here to read the Whitaker ethics review letter, and here to read the Steele dossier. We last discussed the Emoluments litigation in Episode 226. You can check out all of these documents:  the Fourth Circuit's order, the motion to stay, and the opposition filed by Frosh. Trump's argument is based on 28 USC § 1292(b) and relies on Fernandez-Roque v. Smith, 671 F.2d 426 (11th Cir. 1982). Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
28/12/181h 23m

OA237: Lowering the... Barr (Memo)

Today's Rapid Response episode takes a look at the just-released Law'd Awful Memo written by Attorney General nominee Bill Barr and sent to Deputy AG Rod Rosenstein concerning the Mueller investigation.  Are the argument(s) raised in the memo any good?  What does this mean for the future of the Mueller investigation?  Listen and find out! We begin, however, with a brief foray into everyone's favorite show topic:  BASEBALL LAW!  Find out about the agreement reached between MLB and Cuba, and how (of course) Donald Trump can screw it up. After that, it's time for an Andrew Was Wrong (and Maybe Not Wrong) on David Pecker and AMI.  Along the way, we'll learn about the corruption case against Sun-Diamond Growers in connection with former Agriculture Secretary (and nearly-Senator) Mike Espy. Then, we delve deeply into the Barr memo, taking apart the legal "arguments" and featuring a guest appearance from one Antonin Scalia! Then, it's time to tackle the rather surprising decision by Judge Sullivan in the Michael Flynn sentencing phase.  What happened?  Did he go off the rails? After all that, we end with an all new Thomas (and Matt!) Takes The Bar Exam #106 on how to best transport heroin from Kansas City to Chicago and what the judge can instruct the jury... it's complicated, but you won't want to miss it!  And, as always, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Check out Matt & Mattingly's Ice Cream Social podcast! Baseball law:  Here's the press release from MLB. We discussed U.S. v. Sun-Diamond Growers of Calfornia, 138 F.3d 961 (D.C. Cir. 1998), aff'd, 526 U.S. 398 (1999). Don't forget to read the Barr memo for yourself, and you can also check out the Wall Street Journal article that leaked it. ...And here's our good buddy Antonin Scalia smacking down the logic used therein. You can check out the government's sentencing memorandum in Michael Flynn's case as well as the memo filed by Covington & Burling on Flynn's behalf. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  [podcast src="https://html5-player.libsyn.com/embed/episode/id/8001044/height/360/theme/standard/thumbnail/yes/preload/no/direction/forward/" height="360" width="100%" placement="bottom" theme="standard"] Download Link
21/12/181h 29m

OA236: Stairway to... the Supreme Court??

Today's deep-dive Tuesday tackles a long-running lawsuit by the estate of Randy California -- the founder, lead singer, and guitarist for the band Spirit -- alleging that Led Zeppelin stole the iconic riff for "Stairway to Heaven" from Spirit's 1968 song "Taurus."  With assistance from Thomas on guitar, we tackle all of the fun issues that are currently pending before the 9th Circuit... and possibly headed to the Supreme Court! We begin, however, with two follow-up questions that got cut from Friday's blockbuster show regarding the American Media, Inc. plea agreement:  (1) Could David Pecker still be indicted? and the big one:  (2) Can Donald Trump pardon a corporation?  The answer... may surprise you! After that, it's time for a deep dive into the law regarding musical copyright and an exploration of the similarities and differences between "Taurus" and "Stairway to Heaven."  Where do Andrew and Thomas come out?  You'll have to listen to find out! After that, it's time for the answer to Thomas Takes The Bar Exam #105 regarding a bank and a car dealership attempting to modify a contract.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links We discussed the AMI deal in Episode 235. You can check out Spirit's "Taurus" by clicking here. Click here to read the original (and awesome!) Randy California v. Led Zeppelin complaint; you can also read (1) the jury verdict by the trial court; (2) the brief filed by Taurus in the 9th Circuit; (3) the opposition brief filed by Led Zeppelin; (4) the 9th Circuit's ruling; (5) the petition for rehearing en banc filed by Led Zeppelin; (6) the opposition to that motion for rehearing en banc; and (7) the just-filed reply brief by Led Zeppelin (filed 12-10-08).  Phew! Finally, click here for a mashup of "My Sweet Lord" (George Harrison) and "He's So Fine" (The Chiffons). Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
18/12/181h 29m

OA235: Corporations Are People, My Friend... Criminal People

Today's Rapid Response episode takes a look at three breaking stories related to the White House:  (1) the recent ruling requiring Stormy Daniels to pay Trump's attorneys' fees; (2) the sentencing of Trump's former lawyer, Michael Cohen; and (3) most importantly, the plea deal signed by American Media, Inc. -- parent company to the National Enquirer -- to cooperate with the Special Counsel's Office. We begin by revisiting the question of whether, in fact, Stormy Daniels is still a legal genius.  (Hint:  she is.)  But what does it mean that a court just ordered her to pay Trump nearly $300,000 -- and why could it have been much, much worse?  Listen and find out. After that, we check out Trump's ex-"fixer" and the former Taxi King of New York, Michael Cohen, who was just sentenced to three years in prison. Then it's time for a fascinating look into a non-prosecution agreement reached between the Special Counsel's Office and American Media, Inc. that tell us an awful lot about where Yodel Mountain is headed. Finally, we end with an all new Thomas Takes The Bar Exam #105 on modifications to a contract.  As always, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Here's the merits ruling defamation we referenced during the show; you can also check out Trump's motion for attorneys' fees, Avenatti's (rather weak) opposition brief, and the court's ruling directing Stormy to pay almost $300,000. And because it never ends, check out the mediation questionnaire filled out by Avenatti for their appeal to the 9th Circuit. You know you want to read the press release regarding Michael Cohen's sentence; after that, you can check out the sentencing memoranda filed by the SCO's office ("good cop") as well as the brief filed by the SDNY ("bad cop"). Finally, this is the AMI agreeement as well as the DOJ guidelines on prosecuting corporations. Oh, and just for fun, here's Jose Canseco's audition to be Trump's Chief of Staff.  #YesWeCanseco Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
14/12/181h 21m

OA234: Civil Forfeiture, Berkeley & More!

Today's deep-dive Tuesday tackles a viral oral argument before the Supreme Court in Timbs v. Indiana regarding civil forfeiture -- and a delightful question (that inspired the graphic for the show notes) about whether the state can seize your Bugatti for speeding.  Oh, and we check back in on the Ann Coulter v. Berkeley lawsuit that was recently settled.  What happened?  Listen and find out! We begin with the Berkeley settlement, and break down exactly what the University did (and didn't) promise to do going forward.  Is this a "big win" for the right wing?  (Hint: no.) Then, it's time to delve deeply into Timbs v. Indiana and discuss the law of civil asset forfeiture, the doctrine of proportionality, and even the concept of incorporation.  Yes, it's a crazy Civ Pro kinda day.. you won't want to miss it! Then, it's time for a BRAND NEW SEGMENT -- "Yodel Mountain Remembers!"  We think you're gonna love it! Oh, and we also tackle a terrific listener question about the "apology doctrine" and the nation that made apologies famous -- Canada (of course). After all that, it's time for the answer to Thomas Takes The Bar Exam #104 regarding government action and the warrant requirement of the Fifth Amendment.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Click here to read the Berkeley settlement. This is a link to the oral argument in Timbs v. Indiana. Finally, you can check out Maryland's "apology law," Maryland Code, Courts and Judicial Proceedings Article, § 10-920(b), by clicking here. This is the delightfully demented Corsi lawsuit against Mueller, Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
11/12/181h 15m

OA233: [REDACTED] & Wisconsin

Today's Rapid Response episode takes a look at two pressing issues: (1) Mueller's [REDACTED] sentencing memorandum with respect to Michael Flynn, and (2) the naked power grab by lame-duck Republicans in Wisconsin.  Along the way, we'll also cover a bunch more legal stories, but you knew that already! We begin high atop Yodel Mountain, where we cover not only the [REDACTED] Flynn memorandum but also Roger Stone taking 5 and a truly bizarre conspiracy theory advanced by Rudy Giuliani. Then, it's time for the main segment, in which we tackle Wisconsin SB 887 and its component bills that are designed to weaken drastically the strength of the incoming Democratic governor, Tony Evers.  Is it as bad as everyone says it is?  (It's worse.) After that, it's time for a brief Andrew Was Wrong segment.  Turns out Andrew Was Wrong about both Julian Assange and American paddlefish! Finally, we end with an all new Thomas Takes The Bar Exam #102 on evidence and the admissibility of hearsay.  Find out how Thomas outsources the decision and more.  And, of course, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances Andrew was recently a guest on the David Pakman show talking court-packing and more.  Give it a listen!  And, as always, if you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links You can read the (non-censored) baseline Sentencing Memorandum filed by Mueller here, and the [REDACTED] Supplemental by clicking here. Here are the texts of the various Wisconsin bills:  SB 884, SB 886, and the final bill, SB 887. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
07/12/181h 26m

OA232: Trump's Plan to Weaponize the Census (& Bridgegate!)

Today's deep-dive Tuesday takes us back to a time in which politically-motivated revenge was actually seen as a scandal; namely, Chris Christie's Bridgegate.  There's a new ruling out of the Third Circuit that affects two Christie staffers, and... well, you'll just have to listen and find out! Then, it's time to take a long look at ongoing litigation surrounding the Trump Administration's efforts to deter Democrats from registering for the Census, thus reducing their voting power.  What does a trial in district court have to do with the Supreme Court's recent grant of certiorari? After that, we answer a terrific Patron listener question regarding the European loser-pays-legal fees model versus the American pay-your-own-way model.  Yes, the American model seems counter-intuitive at best (and downright regressive at worst), but is shifting to a loser-pays model the answer?  Andrew talks about his experiences and the guys go through a bunch of options. And finally, we end with the answer to Thomas Takes The Bar Exam #103 on the Takings Clause!  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances Andrew was recently a guest on the David Pakman show talking court-packing and more.  Give it a listen!  And, as always, if you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links You can read the 3rd Circuit's opinion in Bridgegate by clicking here. Click here to read the Court's order in the Census litigation, which shows that Thomas-Alito-Gorsuch would have granted a stay. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
04/12/181h 11m

OA231: The End of the Beginning (for Trump)

"Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning." - Winston Churchill.  And yes, today does, in fact, mark the end of the beginning of the Mueller Investigation... and perhaps for Donald Trump.  Why?  You'll just have to listen and find out! In this super-sized episode, we tackle: (1) Michael Cohen's just-announced plea to a new count of lying -- this time in connection with his prior testimony before the Senate and House Intelligence Committees investigating Russian interference in the 2016 elections; (2) A follow-up on Andrew Miller and Concord Management and Consulting, including a fascinating new blog written by Randall Eliason with Yodel Mountain implications; (3) Paul Manafort's apparent repudiation of his plea deal with Mueller, what that means and when we'll know; (4) Jerome Corsi's public refusal to plead and cooperate with the Mueller investigation over WikiLeaks and Julian Assange; and (5) An update in the Brain Frosh Finally, we end with an all new Thomas Takes The Bar Exam #103 on a property owner who has the rug pulled out from under him due to a new law.   If you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Click here to read the new Information to which Cohen pled guilty to today. This is the BuzzFeed article on Cohen, Felix Sater, and Trump's efforts to get a building in Moscow over the past 30 years.  Oh, and here's a link to Trump's tweet that he has "ZERO INVESTMENTS IN RUSSIA." We discussed the Andrew Miller lawsuit in OA 229; you'll definitely want to read the two new filings: Silbey's supplemental amicus "letter", and Christenson's... something. You'll definitely want to check out Randall Eliason's blog analyzing the Concord Management and Consulting lawsuit and what it means for 18 U.S.C. § 371 conspiracy charges (of the sort that might be filed against Trump). Here's Manafort's original plea deal, and this is the Joint Status Report filed earlier this week. Oh, and this is Manafort's waiver of his right to appear at the scheduling conference. This is the Marcy Wheeler article we broke down; for the other side, here's the Wall Street Journal report suggesting Manafort lied about non-Trump-related personal business dealings. This is the Guardian article connecting Manafort to Julian Assange and WikiLeaks; here is the fantastic Washington Post article and timeline on what that means if true. Here's Corsi's draft deal with Manafort that he rejected. Finally, we discussed the Brian Frosh lawsuit against Matthew Whitaker in Episode 227; you can now read the amicus brief filed by 15 state attorneys general.  Phew! Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
30/11/181h 22m

OA230: TOO MUCH MEAT!

Today's deep-dive Tuesday tackles that viral case caption you've probably seen floating around Twitter:  "United States v. 1,855.6 pounds of American Paddlefish Meat."  Is the sack of fish meat really going to have to show up in court?  Will it have a lawyer??!?  Listen and find out! We begin, however, with a roundup of all the lawsuits filed against Matthew Whitaker, including the most recent one brought by Senators Blumenthal and Hirono.  Oh, and we check with an op-ed written by... the Torture Guy?  What's going on here?? The main segment delves into in rem jurisdiction in order to explain the "paddlefish meat" caption.  If you like legal minutiae -- and let's be honest, you're listening to this podcast -- you'll love this segment. Then, it's time for a truly great listener question holding Andrew's feet to the fire on Net Neutrality and the Munsingwear doctrine.  It's not an Andrew Was Wrong, but it is an... Andrew Could Have Explained That Better?  Either way, you won't want to miss it. Finally, we end with the answer to Thomas Takes The Bar Exam #102 on hearsay.  Find out if Thomas's coin can pass the bar exam!  And as always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Click here to check out Lawfareblog's clearing house for Whitaker complaints, and click here to read John Yoo's (surprising) op-ed arguing that Whitaker's appointment was illegal. If you want to read the actual meat filing, click here. Special shout-out to law professor Brian L. Frye for tipping us off to United States v. 43 1/2 Gross Rubber Prophylactics! Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
27/11/181h 9m

OA229: Andrew Miller & the Appointments Clause

Today's Thanksgiving Special / Rapid Response episode takes a look at the single most important Yodel Mountain case pending right now:  Andrew Miller's lawsuit before the Court of Appeals for the District of Columbia Circuit.  Find out what it all means! We begin, however, with a brief Andrew Was Right and roundup on the status of the Jim Acosta lawsuit, which has been mooted thanks to the injunctive relief won by CNN (and the White House's decision to restore Acosta's credentials). Then, it's time for the deep dive into Andrew Miller and his Don Quixote-esque foray into our legal system to challenge Robert Mueller's authority.  Along the way you'll find out who Andrew's Shattered Glass doppelganger is, and learn more than you ever thought possible about the U.S. Constitution's "Appointments Clause." Finally, we end with an all new Thomas Takes The Bar Exam #102 on evidence and the admissibility of hearsay.  Find out how Thomas outsources the decision and more.  And, of course, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links The "recalcitrant witness" statute is 28 U.S.C.  § 1826. Click here to read Judge Howell's U.S.D.C. trial court opinion. We pulled a ton of documents for you in the Miller case, including (a) Concord's motion to intervene; (b) Concord's amicus brief on the merits; (c) the eminently silly Sibley amicus brief; (d) Robert Mueller's merits brief; (e) Andrew Miller's merits brief; (f) Andrew Miller's supplemental brief; and (g) Rober Mueller's supplemental brief.  Phew! Don't be afraid to check out In Re Sealed Case, 829 F.2d 50 (D.C. Cir. 1987) for the case that's directly on point. Finally, you can read the "nearly a heart attack" regs on Mueller's funding (28 CFR § 600.8(a)(2)) here. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
22/11/181h 17m

OA228: Jim Acosta, Sovereign Immunity & More!

Today's Deep Dive Tuesday tackles the motion for preliminary injunction and underlying lawsuit brought by CNN and Jim Acosta against the Trump White House for revoking his press credentials.  You'll get to hear about how Andrew Was Right... last Thursday (!)  As a bonus, you'll get a listener question that segues into a mini-deep-dive on the "sovereign immunity" doctrine! We begin, however, with some initial information about the still-sketchy situation surrounding Michael Avenatti and his arrest for domestic violence. After that, it's time to traipse through the CNN/Acosta lawsuit, which is still relevant today (even though the PI was, as Andrew predicted, granted). Then, it's time to answer a really interesting listener question about Oklahoma's new anti-vax governor that winds up with a discussion of the sovereign immunity doctrine.  It's a rabbit trail you'll want to go down! Finally, we end with the answer to Thomas Takes The Bar Exam #101 on SPACE LAW.  Find out Lando's (and Thomas's!) fate! Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links On Avenatti, you can see the "SurefireIntel" tweet here. You can read the Acosta/CNN underlying complaint, the accompanying memorandum of law supporting the Acosta TRO motion, and the Trump response. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
20/11/181h 9m

OA227: Brian Frosh Takes On Matthew Whitaker & More!

Today's Rapid Response Friday takes a deep dive into the recent lawsuit filed (actually, amended) by Maryland's ace Attorney General, Brian Frosh, challenging the appointment of Matthew Whitaker as Acting Attorney General. We begin, however, with an Andrew Was Right (and Wrong, sadly) roundup of a bunch of issues:  (1) whether the midterm elections were a "Blue Wave" (they were); (2) the formation of a new breakaway conservative legal group; (3) Jeff Flake's efforts to protect Robert Mueller; (4) Whitaker's recusal status; and (5) the election of Kyrsten Sinema to the U.S. Senate in Arizona.  Phew! After that, it's time for the deep dive into Maryland's ACA lawsuit that.. somehow morphed into a judicial request to determine that Matthew Whitaker cannot be the Attorney General?  How is that even possible??  We explain it all... and along the way, we let you know what arguments the State of Maryland has raised that the next Attorney General should be Rod Rosenstein instead.  It's a fascinating lawsuit, and you'll even get a brief discussion of the "canon of constitutional avoidance." (!!) After that, we (briefly) discuss the California wildfires in light of.. SEC disclosure requirements??!?  Hey, that's why you listen, right? Finally, we end with an all new Thomas Takes The Bar Exam #101 on SPACE LAW, involving deadbeat Ewoks and Lando Calrissian.  (No, really.)  You'll have to listen and find out!  And, of course, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Click here to read 538's "Yes, It Was a Blue Wave" article. Here is the announcement of the formation of the "Checks and Balances" legal society. Lawfare has filed a FOIA request for all documentation regarding Whitaker's ethics advice and potential recusal. Click here to read Maryland's motion for preliminary injunction; here to read the Flood memorandum that contains Trump's likely responses; and here to read the court's scheduling order. Finally, click here to read the SEC's guidelines on when to file a form 8-K, and here to read the 8-K filed by PG&E. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
16/11/181h 26m

OA226: How Dems Can Force Trump's Tax Returns

...using this one weird trick! (but for real.) It's a new intro this week and Thomas hopes you don't mind the departure from the regular quotes. After that Andrew has updates on several cases for us! They involve: the Emoluments Clause, a 40 foot cross, Net Neutrality, and Monsanto! Then we get to the meat of our episode, which is about how the Democrats in the House can now use their power to force Trump's tax returns out. It has lots of twists and turns and isn't as straightforward as you might think! Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
13/11/181h 7m

OA225: Elections Have Consequences... for Jeff Sessions

Today's Rapid Response Friday covers the two things that are definitely on everyone's minds:  (1) the midterm elections, and (2) the fate of the Mueller investigation and more in light of President Trump's decision to fire Attorney General Jeff Sessions.  Elections have consequences... don't they? We begin with a roundup of  the outstanding legal issues in connection with the midterms. After that, it's Yodelin' time.  What happened to G. Zachary Terwilliger?  Is the Mueller investigation in trouble?  What can we do??  Listen and find out! Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links No links this week! Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
09/11/181h 15m

OA224: Andrew Debates Prof. Justin Walker!

At long last, we've got the audio from Andrew's debate with University of Louisville Law School professor, member of the Federalist Society and former Brett Kavanaugh clerk Justin Walker! The debate was put on by the American Constitution Society and Americans United for the Separation of Church and State. It was moderated by the ACLU! After that, it's the thrilling conclusion to TTTBE100.... Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com Download Link
06/11/181h 32m

OA223: A Victory for Voting Rights in Pennsylvania!

Today's Rapid Response Friday revisits some cases we've previously discussed with recent positive developments:  the Summer Zervos lawsuit and the future of political gerrymandering in Pennsylvania. We begin with the Zervos lawsuit we first covered in Episode 176, in which a state trial court judge has ordered Donald Trump to respond to discovery served by Zervos's attorney.  What's next for the President and why does it have Yodel Mountain implications?  You'll have to listen and find out! After that, we revisit our discussion from Episodes 146 and 148 regarding the Pennsylvania Supreme Court's opinion redrawing congressional maps in that state.  The U.S. Supreme Court -- and yes, that's the Brett Kavanaugh-and-Neil-Gorsuch-laden Supreme Court! -- just declined to intervene to protect the Republicans.  Why is that, and how is that a map forward?  We tell all! Then, we return to the Gary Hart story we discussed last episode.  Was Hart really set up?  Listen and find out! Finally, we end with an all new Thomas Takes The Bar Exam #100 that is the dreaded real property question Thomas needs to get right in order to hit "60% at the half."  Can he do it?!??  You'll have to listen and find out!  And, of course, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Click here to read the cert petition in Turzai v. Brandt and here to read the opposition. This is the James Savage response on Gary Hart. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
02/11/181h 18m

OA222: Entire WV Supreme Court Impeached?!

Today's episode tackles an issue you've all been writing about:  what exactly is going on in West Virginia, where the entire state supreme court has been impeached?  We break it down for you! First, though, we start off with a roundup on voter suppression, including Georgia's "exact match" requirement being used to deny new registrations. After that, it's time to go deep, deep down the rabbit hole in West Virginia.  It's... kind of amazing, actually. Then, we move to a breaking story involving Andrew's first political crush.  Yes, before there was Liz Warren, we had "Atari Democrat" Gary Hart.  Find out what's in the news regarding Hart. After all that, we end with the answer to Thomas Takes The Bar Exam #99 regarding the good-faith exception to the exclusionary rule.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links No links this week as Andrew is traveling from Undisclosed Location B. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
30/10/181h 5m

OA221: Elections Have Consequences, Florida Edition

Today's Rapid Response Friday takes us back to a well-worn trope here at OA that we can't emphasize enough in late October:  elections have consequences!  Specifically, we take a look at the importance of past and future elections in the pivotal swing state of Florida. We begin, however, with a quick statement on the Trump administration's apparently-leaked policy regarding trans people and some new developments. After that, it's time for the ever-popular Andrew Was Wrong segment, with two things that.. well, Andrew got wrong:  Whitewater and Paul Manafort (!) Then it's time for a deep dive into the Florida Judicial Nominating Commission and various constitutional amendments that are on the ballot this November, including one that takes a swipe at our favorite doctrine. But that's not all!  We move on to discuss 202 Democratic Presidential Candidate Michael Avenatti.  It's not pretty. Finally, we end with an all new Thomas Takes The Bar Exam #99 regarding criminal procedures.  After getting it wrong last week, Thomas needs to go 2-for-2 to get to the coveted "60% at the half" -- can he do it?!??  You'll have to listen and find out!  And, of course, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links For more on the history  of jury sentencing at the state level, check out this 2011 law review article by Melissa Carrington that's well worth a read. Click here to read the Tampa Bay Times article suggesting that the next court nominee is going to be a conservative regardless of the election; here for the official Florida government website describing how the JNC is selected; and here for an in-depth discussion of the history of the changes to that process. This is Detzner v. Anstead, the Florida Supreme Court decision we discussed regarding bundled amendments, and you can click here to read the text of the proposed Florida amendments. Click here to read the Grassley referral of Avenatti and Sweatnick to the DOJ.  And we broke down the Avenatti-Frank lawsuit first in OA Episode 181. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
26/10/181h 28m

OA220: Carter Page, Clownhorn

Today's Rapid Response Tuesday takes an in-depth look at OA's new favorite clownhorn, Carter Page, and his delightfully mad lawsuit against the Democratic National Committee, the law firm of Perkins Coie, and (I think) the Ancient Order of the Illuminati.  Strap in! We begin with some good ol'-fashioned yodeling, with a roundup of stories with Yodel Mountain implications, including (1) the report that Mueller's probe will conclude after the midterms; (2) Paulie Manafort's latest motion; (3) the departure of White House counsel Don McGahn; and (4) some news regarding Michael Avenatti's White House run in 2020. Then -- oh man -- it's time for a deep dive into Carter Page's lawsuit regarding this September 23, 2016 Yahoo news story, written by esteemed reporter Michael Isikoff, that Mr. Page delightfully believes is defamatory. After all that, we end with an all new Thomas Takes The Bar Exam #98 regarding constitutional law standards for a group home.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links This is the Bloomberg News article suggesting that Mueller's probe will conclude after the midterms. You can click here to read Judge Ellis's order denying Manafort's motion to appear in street clothes. This is the New York Times story on McGahn's departure. Click here to read the FEC data on Michael Avenatti's Fight PAC. This is the Sep. 23, 2016 Yahoo story This is the Carter Page lawsuit, which you absolutely must read.  Oh, and check out the (heavily redacted) FISA application showing that the FBI believes Page to have been the subject of targeted recruitment by the Russian government. This is the September 23, 2016 Isikoff story in Yahoo that Page believes is defamatory; we also referenced Page's trip to Moscow, the terrorism statute, 18 U.S.C. § 2332b, and, of course, the fact that Page previously sued Yahoo over this exact same story and lost. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
23/10/181h 12m

OA219: Harvard and Affirmative Action

Today's Rapid Response Friday takes us to the front lines of the affirmative action debate with the trial of Students For Fair Admissions, Inc. v. Harvard, a lawsuit brought by a single-issue right-wing activist determined to end diversity as a criterion in school admissions.  (And yes, we tell you what we really think!) We begin, however, with some news regarding the Monsanto trial we profiled back in Episode 202. After that, it's time for a deep dive into the nuances of affirmative action with the SFFA v. Harvard lawsuit.  What exactly does it allege?  What's the status of affirmative action law?  Where is this lawsuit going?  Listen and find out! Then it's time for a brief Andrew Was segment, in which Andrew Was Wrong about the UK Supreme Court, and Andrew Was... Something... about the good news coming out of the Florida Supreme Court. Finally, we end with an all new Thomas Takes The Bar Exam #98 regarding constitutional standards.  Thomas needs to go 2-for-3 after a recent audit showed a bank error in his favor.  Can he do it?  You'll have to listen and find out!  And, of course, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links We first covered the Monsanto trial back in Episode 202; go check it out! Click here to read the Students For Fair Admissions, Inc. v. Harvard lawsuit. To understand the history of affirmative action, listen to our Episode 93, and check out both Regents of the University of California v. Bakke, 438 U.S. 265 (1978) and Grutter v. Bollinger, 539 U.S. 306 (2003), the cases we discussed in the episode. I mentioned the Etzkowitz et al. article on critical mass; you can read that here. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
19/10/181h 20m

OA218: Ashers Baking Co., Net Neutrality & Stormy!

Today's (thankfully) Kavanaugh-free episode -- in honor of Thomas's appearance at QED in Manchester -- takes an in-depth look at the Ashers Baking Co. case, as well as developments at the state level to push for Net Neutrality.  Oh, and we revisit OA's favorite legal genius, Stormy Daniels.  Strap in, it's going to be a fun ride! We begin with a lengthy discussion of the UK Supreme Court's ruling in Ashers Baking Co., which has been called the "Masterpiece Cakeshop of the UK."  Is that accurate?  Listen and find out! Next, we walk through California's effort to protect Net Neutrality in that state, and the lawsuits filed by parties on all sides.  What's going to happen?  We tell you! Finally, we take a brief look at Stormy Daniels and update you on the status of her lawsuit in California. And then, of course, we end with an all new Thomas (and Chad) Take The Bar Exam #97 regarding the tort of negligent misrepresentation.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Click here to read the UK Supreme Court's ruling in Ashers Baking Co. We first discussed the Trump FCC's decision to roll back Net Neutrality in Episode 125.  You can read the 22-state lawsuit challenging that order here. This is California's Bill SB-822, and you can also check out the industry brief filed in the lawsuit challenging it.  Oh, and if you need more Hobbs Act (28 U.S.C. § 2342) in your life, we've got you covered. Finally, click here to check out Trump's motion to dismiss Stormy's lawsuit, and here to read her interview in "The Cut" (??) where she regrets body-shaming Trump. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
19/10/181h 16m

OA217: Can Ethics Complaints Take Down Kavanaugh?

Today's Rapid Response Friday follows up on the State of Florida and... sadly... returns one last time to the story of Brett Kavanaugh and the ethics complaints lodged against him and referred to the Tenth Circuit.  Oh, and we give you real stuff you can do to make a positive difference!  You have to listen! We begin with a follow-up to Tuesday's episode where we break some news regarding the Democratic Party's lawsuit in Florida to extend registration for voting in the 2018 midterms before checking in on the Common Cause/League of Women Voters lawsuit we first discussed on Episode 216. Then it's time to tackle the ethics complaints filed against Brett Kavanaugh and referred out by Supreme Court Chief Justice John Roberts to the Court of Appeals for the Tenth Circuit. Finally, we end with an all new Thomas Takes The Bar Exam #97 regarding the tort of negligent misrepresentation.  Thomas needs to go 4-for-4... can he do it?  You'll have to listen and find out!  And, of course, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances Thomas will be at QED in Manchester, UK on Oct. 13 and 14. Show Notes & Links This episode is sponsored by Audible!  Go to audible.com/lawpod or text lawpod to 500500 for the 30-day trial and free audiobook! Click here to read the court's denial of the TRO filed by the Democratic Party's in Florida to extend registration for voting in the 2018 midterms. And click here to read the newly-filed Common Cause/League of Women Voters lawsuit we first discussed on Episode 216. We first discussed the Code of Judicial Ethics on Episode 193. This is the Roberts letter referring the Kavanaugh complaints to the Court of Appeals for the Tenth Circuit. Click here to read the Rules of Judicial Conduct and Judicial Disability, with proposed changes. The law we discussed is 28 U.S.C. § 351 et seq. WHAT YOU CAN DO!  Click here to comment on the proposed changes to the Rules of Judicial Conduct and Judicial Disability. And if you want to apply to work for Fix The Court, check out their notice here. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
19/10/181h 11m

OA216: Court Packing & More (w/guest Chad Schneider)

Today's (thankfully) Kavanaugh-free episode takes a look at Florida Governor Rick Scott's blatant court packing attempt with the Florida Supreme Court, and the lawsuit filed by Common Cause to try and stop him.  What will happen?  Listen and find out! First, though, we begin by revisiting our controversial episode (197) on 3-D printed guns by bringing on a real-life expert in 3-D printing to handle some technical questions and understand the arguments and counter-arguments regarding the proliferation of cheap and dangerous handguns. After that, we delve into Florida Gov. Rick Scott's transparent attempt to game the system to pack the Florida Supreme Court.  What does this mean for "Constitutional Hardball" and the state of the law in Florida?  Listen and find out! Then, we give you a brief preview of next week's story on California's net neutrality law. Finally, we end with an all new Thomas (and Chad) Take The Bar Exam #96 regarding the breach of an employment contract.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Thomas will be at QED in Manchester, UK on Oct. 13 and 14. Show Notes & Links We first discussed 3-D printed guns back in Episode 197. Click here to read the Slate article on Scott's effort to pack the Florida Supreme Court, and you can also read the 2017 lawsuit filed by Common Cause (and others) that was rejected by the Florida Supreme Court. Check out guest Chad Schneider's business, Root3 Labs. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  
19/10/181h 17m

OA215: Is Gamble v US the Real Reason Behind Kavanaugh?

Today's Rapid Response Friday tackles the #1 emailed story to us this past week:  is the real story behind the Kavanaugh nomination that the Trump administration needs him on the Supreme Court to rule in Gamble v. U.S. regarding the dual sovereignty doctrine as it applies to double jeopardy? We begin with a quick note about the New York Times story on Trump's taxes which will be covered on Serious Inquiries Only. Then it's time to figure out this claim about Gamble v. U.S. that fact-checking website Snopes rated as "true."  Is it, though?  (Hint:  no.)  We'll tell you everything you need to know about the 5th Amendment's double jeopardy clause and what it might mean for anyone Trump pardons once Kavanaugh gets to the Court. And speaking of which, we segue from that claim to an update on all things Kavanaugh this week, including the Mitchell letter, the FBI investigation, Flake's statements, and even (gasp!) an Andrew Was Wrong. Finally, we end with an all new Thomas Takes The Bar Exam #96 regarding the breach of an employment contract, with next week's guest Chad Schneider playing along.  Thomas needs to go 5-for-5... can he do it?  You'll have to listen and find out!  And, of course, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances Thomas will be at QED in Manchester, UK on Oct. 13 and 14. Show Notes & Links You can read the New York Times story on Trump's taxes, and listen for Thomas's take on Serious Inquiries Only. The leading case on the "dual sovereign" doctrine as applied to the double jeopardy clause is Heath v. Alabama, 474 U.S. 82 (1985). Click here to read the administration's opposition brief in Gamble v. U.S., and here to check out the entire docket. This is the Jed Shugerman article we referenced regarding New York's "dual sovereigns" law. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com Download Link
19/10/181h 18m

OA214: Free Speech, NAFTA & Trump's Trans Ban

Today's Kavanaugh-free episode is a classic, three-story, Deep Dive Tuesday into (1) a recent free speech case involving protesters at a Trump rally; (2) the status of Trump's efforts to ban trans service personnel from the military; and (3) whether Trump can unilaterally abrogate NAFTA.  Strap in -- it's going to be a long ride! We begin with an examination of Nwanguma v. Trump at both the district court level and the recent decision from the 6th Circuit.  Should protesters be allowed to sue Trump and his campaign staff for incitement to riot?  Listen and find out! After that, we examine the status of Trump's latest (Mar. 23, 2018) order on trans personnel in the military.  Is there... good news out of the Ninth Circuit??!? Then, we check out the history of presidential withdrawals from treaty obligations, a case involving a former Presidential candidate (Barry Goldwater) versus a sitting President (Jimmy Carter), and Donald Trump's constant claims that he can abrogate the North American Free Trade Agreement.  Is any of this true?  The answer almost certainly will surprise you! Finally, we end with Thomas Takes the Bar Exam Question #95 regarding the Congressional delegation of rule-making authority to the Forest Service.   Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Thomas will be at QED in Manchester, UK on Oct. 13 and 14. Show Notes & Links If you want to check out our Kavanaugh patron-only special, sign up here and then click here for the bonus download! You can read the Nwanguma v Trump district court decision as well as the decision by the 6th Circuit. Click here to read Trump's latest (Mar. 23, 2018) order on trans personnel in the military, and here is you want to check out the Ninth Circuit's stay order. On NAFTA:  you can read the NAFTA treaty itself (including Art. 2205), the NAFTA Implementation Act, and you'll definitely enjoy perusing Goldwater v. Carter, 444 U.S. 996 (1979). Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com
19/10/181h 10m

OA213: Rachel Mitchell to Cross-Examine Dr. Ford at Kavanaugh Hearings

Today's Rapid Response Friday tackles (ugh) the ongoing Judiciary confirmation hearings for Supreme Court Associate Justice nominee Brett Kavanaugh in light of Dr. Ford's allegations, before segueing into an interesting question from super-listener Teresa Gomez.  If you want to know everything about Rachel Mitchell (and so much more!) -- well, you've come to the right place! We begin with some good news about QED in Manchester, UK and your ability to hang out with Thomas! After that, it's time to figure out what's going on with Kavanaugh.  We examine (1) the political landscape; (2) the status of Blumenthal v. Nat'l Archives, Case No. 18-02143-RDM seeking FOIA information from the National Archives and the CIA; (3) the unprecedented appointment of career sex crimes prosecutor Rachel Mitchell to handle the questioning of Dr. Ford and Kavanaugh; (4) the strange circumstances surrounding Michael Avenatti's claim to represent additional women allegedly harrassed by Kavanaugh; and (5) what Dianne Feinstein wants.  Phew! After that, we somehow have time to answer a fascinating question about pro se litigants giving testimony in court! Finally, we end with an all new Thomas Takes The Bar Exam #95 regarding Congressional delegation of rule-making authority.  Will Thomas get back on track with just one extra wrong answer to give in the next six questions?  Yu'll have to listen and find out!  And, of course, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances Thomas will be at QED in Manchester, UK on Oct. 13 and 14. Show Notes & Links For an in-depth analysis of Dr. Ford's allegations against Kavanaugh, listen to Episode 158 of Serious Inquiries Only. On politics:  here's the 538 polling data that Kavanaugh becgan historically unpopular and is getting worse.  And this is the (overblown) HuffPo story on the Judicial Crisis Network. Check out the docket entries in the Blumenthal case!  Rachel Mitchell has no Wikipedia entry (yet!), but was profiled in the National Law Journal and gave this interview to the "Foundations Baptist Fellowship International."  Bill Montgomery's endorsement was reported in this Arizona Central story. Avenatti's client, Julie Swetnick, signed an affidavit under penalties of perjury that you can read here.  We detailed Avenatti's ethical lapses on Episode 181. Check out Sen. Feinstein's letter on the Kavanaugh hearings. Finally, in answering Teresa's question, we relied on U.S. v. Nivica, 887 F.2d 1110 (1st Cir. 1989)... scroll down to part C! Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com
19/10/181h 14m

OA212: Rod Rosenstein and... G. Zachary Terwilliger?

Today's episode is that rare Rapid Response Tuesday, necessitated by the persistent rumors that Donald Trump is about to fire Deputy Attorney General Rod Rosenstein.  Is it true?  How bad are things if it is?  And who is this mysterious G. Zachary Terwilliger?  You'll have to listen to know for sure! We begin by examining the New York Times reporting that predicated the efforts to force out Rosenstein.  Listen and you'll learn why is Andrew confident that these reports are false -- and get a rare "Randall Was Right" segment to boot! After that, we look to the statutory line of succession if Rosenstein is indeed fired, and we wind up at Noel Francisco and... Sideshow Zach?  How did THAT happen?  Bonus:  Is Francisco a Trump hack?  All signs point to... Then, we look to the statutory protections for Mueller even if Rosenstein is fired.  Will the entire Russia investigation be fed into a Fargo/Deadpool 2-style woodchipper? And, if all that wasn't enough, we also have a mini-deep dive into the Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq.  Does it matter if Rosenstein was fired or if he resigned? Finally, we end -- at long last! -- with Thomas Takes the Bar Exam Question #94 regarding the Forest Service's new rules.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Lots!  Thomas will be at QED in Manchester, UK on Oct. 13 and 14. Andrew will be debating originalist (and Kavanaugh clerk!) Justin Reed Wilson in Louisville, Kentucky on September 27 at Impellizzeri's Pizza; to attend, just RSVP on this Facebook link. Show Notes & Links This is the first New York Times hit piece on Rosenstein from Friday, 9/21, and this is the follow-up suggesting he would "resign." You can, of course, read the 25th Amendment's Section 4 for yourself; you'll quickly ascertain that it is, in fact, a 'clown horn' argument. The 28 U.S.C. § 508 sets forth the statutory line of succession for the DOJ. Here's the initial Senate confirmation vote on Francisco.  You can also read his "oopsie" letter to the Supreme Court below: This is the Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq.  We first discussed it back in Episode 126. Finally, click here to read all about G. Zachary Terwilliger! Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com
19/10/181h 18m

OA211: Manafort Flips (and more on Kavanaugh)

Today's Rapid Response Friday tackles (1) Paul Manafort's plea deal and (2) the surprise resumption of the Senate Judiciary confirmation hearings for Supreme Court Associate Justice nominee Brett Kavanaugh in light of Dr. Ford's allegations, which are discussed in depth on Episode 158 of Serious Inquiries Only.  What should you look for during Monday's hearings?  Listen and find out! We begin with an acknowledgment of the story sent to us by several hundred thousand listeners regarding crazy person Cody Wilson. After that, it's time for an important Andrew Was Wrong:  Paul Manafort did not plea over the weekend; he pled guilty pretty much the second we stopped recording!  We break down everything there is to know about his deal, including the strong incentives Manafort has not only to cooperate but to roll over and expose his belly to Mueller's team in hopes of being thrown a bone or two.  Oh, and we time-travel back to the 19th century to answer a super-interesting listener question on asset forfeiture! Then, it's time to discuss Kavanaugh again, in light of the troubling accusations made by Dr. Ford and other issues, including the Democratic Senators's FOIA lawsuit compelling the production of Kavanaugh's documents that are being withheld while the Republicans try and cram through his nomination.  It's not a pretty segment, but we think you'll walk away equipped to understand Monday's hearings. After all that, we end with an all new Thomas Takes The Bar Exam #94 regarding Congressional delegation of rule-making authority.  Will Thomas get back on track with just one extra wrong answer to give in the next six questions?  Yu'll have to listen and find out!  And, of course, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances Andrew will be debating originalist (and Kavanaugh clerk!) Justin Reed Wilson in Louisville, Kentucky on September 27; click here for the Facebook RSVP link if you'd like to attend! Show Notes & Links For an in-depth analysis of Dr. Ford's allegations against Kavanaugh, listen to Episode 158 of Serious Inquiries Only. You should really read through Mr. Ostrich-Jacket's plea deal for yourself.  (And yes, that's the show graphic.)  This is the TPM article Andrew criticizes; as you'll see from the Sentencing Table, Manafort faces 210-262 (or more) months in prison. Here's the polling aggregator from our friends at 538.; as of today, Democrats have a 1-in-3 chance of retaking the Senate. Click here to read Blumenthal v. US Nat'l Archives, the FOIA complaint filed by the Senate Judiciary Democrats, and here to read the Motion for TRO (which does not yet have an accompanying Memorandum).  FOIA is 5 U.S.C. § 552. Finally, this is the text of the Sanai letter describing Alex Kozinski and seeking an investigation into Kavanaugh's knowledge and testimony. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com
19/10/181h 21m

OA210: Cash Bail, Glucksburg and More

Today's episode takes two deep dives:  first, into California SB10, which eliminates the "cash bail" system of pretrial detention in California, and second, into the Supreme Court's 1997 decision in Washington v. Glucksberg.  What does it all mean?  You'll have to listen to know for sure! We begin, however, with an update on Wells Fargo's $1 billion remediation plan first discussed in Episode 169. After that, we tackle California SB10, which is now law -- even though it won't go into effect until October of 2019.  Is this a good or a bad thing?  Would it change your mind to learn that the ACLU flip-flopped on this bill?  Listen and find out! From there, we move into an in-depth analysis of Glucksburg and what it means for the future of the Supreme Court. Then, we give you a little retroactive speculation regarding the possiblity that Paul Manafort might plead guilty.  Yes, it's a living record of the fact that we record on Thursdays -- but we think you'll like the analysis anyway. Finally, we end with Thomas Takes the Bar Exam Question #93 regarding double jeopardy.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew will be debating originalist (and Kavanaugh clerk!) Justin Reed Wilson in Louisville, Kentucky on September 27 at Impellizzeri's Pizza; to attend, just RSVP on this Facebook link. Show Notes & Links We first discussed Wells Fargo's fine and remediation requirements in Episode 169; you can check the OCC's News Releases for yourself to see when the rejection becomes public (if ever).  For now, we had to make due with this Reuters article. You can read California SB10, as well as check out the opposition from both Human Rights Watch and the ACLU. Here is the full decision in Washington v. Glucksberg, 521 U.S. 702 (1997). During the Glucksburg segment, we discussed Sen. Coons's question to Kavanaugh about it, and, of course, Ted Cruz's "Washington Generals" questions during the confirmation hearings.  Also, we referenced earlier written answers from Elena Kagan during her confirmation hearings discussing Glucksburg. Glucksburg was explicitly distinguished in the Obergefell decision. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com
19/10/181h 21m

OA209: Kavanaugh's Confirmation

Today's Rapid Response Friday is all about the conclusion of the Supreme Court Confirmation Hearings for Brett Kavanaugh.  What did we learn?  What's still outstanding?  Are liberals really guilty of trying to bribe Susan Collins?  And, most importantly:  what can we do about any of this??  Listen and find out! We begin, however, with an important Andrew Was Wrong. After that, we delve into all the week's issues surrounding the Kavanaugh confirmation hearings, including:  (1) the status of Kavanaugh's nomination; (2) whether liberal crowdfunding efforts really count as efforts to "bribe" Republican Sen. Susan Collins; (3) an in-depth look at Kavanaugh's written answers to the Senate Judiciary Committee; (4) a shockingly misleading question from Opening Arguments's good friend, Sen. Ted Cruz; and finally (5) a preview of next Tuesday's discussion of a weird case called Glucksburg.  Phew! After all that, we end with an all new Thomas Takes The Bar Exam #93 regarding double jeopardy.  Did Thomas learn enough from the Ashley Judd Law'd Awful Movie of the same name??  We'll find out!  And, of course, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances Andrew will be debating originalist (and Kavanaugh clerk!) Justin Reed Wilson in Louisville, Kentucky on September 27 at Impellizzeri's Pizza.  Be there and be square! Show Notes & Links This is the (ugh) Newsmax exclusive about Collins's accusations of "bribery;" you can click here to see what Ad Fontes thinks about Newsmax as an organization.  The bribery law, of course, is 18 U.S.C. § 201., and the court decision we discuss is McDonnell v. U.S., 136 U.S. 2355 (2016). Here's the late-breaking Feinstein letter. We strongly recommend reading Kavanaugh's answers.  If you can stomach his misuse of the word "precedent" every few lines. This is the transcript of Ted Cruz's "Washington Generals" questions of Kavanaugh, and if you want a head start on next week, you can start reading Washington v. Glucksberg, 521 U.S. 702 (1997). Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com
19/10/181h 21m

OA208: Moore is Still Less

Today's episode takes a deep dive into a 2003 Supreme Court decision, Stogner v. California, and discusses the Constitution's ex post facto clause.  Why?  Listen and find out! After that, we break down the $95 million lawsuit filed by Roy Moore against Sacha Baron Cohen alleging defamation, intentional infliction of emotional distress, and fraud.  Is it meritorious?  Who's Moore's lawyer?  Will you laugh?  There's only one way to know! Finally, we end with Thomas Takes the Bar Exam Question #92 regarding the introduction of testimony against a gang member.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Here's the link to Stogner v. California, 539 U.S. 607 (2003). Click here to read the $95 million lawsuit filed by Roy Moore against Sacha Baron Cohen. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com
19/10/181h 3m

OA207: Brett Kavanaugh's Confirmation Hearings

Today's Rapid Response Friday tackles the ongoing Supreme Court Confirmation Hearings for Brett Kavanaugh -- including an analysis of documents that broke literally after we recorded the show!  Find out if any of this can slow down Kavanaugh's presumed path the SCOTUS. We begin, however, with listener feedback on our rather controversial Episode 205 (with Andrew Seidel) as well as follow-up emails regarding 3-D guns and our contributions to SwingLeft. After that, we break down the critical documents leaked today by Sen. Cory Booker (D-N.J.) that show 1) Kavanaugh's nakedly partisan approach to the court; 2) Kavanaugh's nonexistent view of the value of precedent when it comes to Roe v. Wade; and 3) possible perjury.  Is this a big deal?  YES.  Will it move the needle?  We'll see. After that, we return to Yodel Mountain to discuss Paul Manafort's impending DC trial and the somewhat-overlooked plea by W. Samuel Patten.  Who's that?  Listen and find out! Finally, we end with an all new Thomas Takes The Bar Exam #92 regarding impeaching the testimony of a gang member at trial.  If you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Thomas was recently the guest masochist on this week's God Awful Movies, reviewing "New World Order."  It's hilarious -- don't miss it!  And if you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Here are the Kavanaugh email and Kavanaugh email 2 documents discussed during the main segment.  For more Kavanaugh document fun, check out this comprehensive New York Times article. This is W. Samuel Patten's Criminal Information, to which he pled guilty, and here is the Statement of the Offense, which explains the connection to the Trump campaign and White House. Finally, this is the late-breaking document showing possible perjury. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com
19/10/181h 15m

OA206: Will This ONE WEIRD TRICK Unravel the Mueller Investigation?

Today's episode takes us back to Yodel Mountain, where we take a look at a popular article making the rounds suggesting that (you guessed it) this ONE WEIRD TRICK might unravel the entire Mueller investigation.  Should you be worried? (No.) We begin, however, with the rare (but delightful!) Thomas Was Right segment revisiting 3-D guns and the Arms Export Control Act.  What's going on?  Listen and find out! In the main segment, we take apart this Politico story suggesting that McKeever v. Sessions hold the key to Yodel Mountain. After that, we tour what's left of Yodel Mountain to discuss the latest developments with our buddy Paulie M.  Did he really try to plead out in advance of his next trial?  What's next on the horizon for everyone's favorite ostrich-vest-wearing money launderer? Then, we end with Thomas (and Andrew!) Take the Bar Exam Question #91 regarding the separation of church and state and graduation prayers.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Here's the injunction granted in the 3-D guns case. This is the Politico story regarding McKeever v. Sessions. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com
19/10/181h 13m

OA205: More on Masterpiece, Younger & the Catholic Church (w/guest Andrew Seidel)

Today's episode tackles two big church/state separation stories currently circulating right now:  the recent lawsuit filed by the owner of the Masterpiece Cakeshop, and the Pennsylvania grand jury  investigation of the Catholic Church.  And, of course, there's no better guide to these issues than friend of the show and Director of Strategic Response for the Freedom From Religion Foundation, Andrew Seidel. We begin the Masterpiece, going in depth on the case we first discussed back in Episode 201.  Find out what the Andrews think will happen to this case -- and along the way, you'll learn something about Younger abstention! After that, we turn to the Pennsylvania grand jury investigation regarding the Catholic Church, discuss statutes of limitation, and learn what we can do about it going forward. Finally, we end with an all new Thomas (and Andrew!) Take The Bar Exam #91 involving -- by sheer coincidence! -- the First Amendment and prayers at a student graduation.  If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links To sign up for the FFRF's action alerts, text FFRF to 52886. We first discussed the new Masterpiece proceeding in Episode 201; you can also check out the case we discussed on Younger abstention, Ohio Civil Rights Commission v. Dayton Christian Schools, 477 U.S. 619 (1986). You can click here to read the full Pennsylvania grand jury report. Please read Andrew Seidel's article, "It's Time To Quit the Catholic Church." Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com
19/10/181h 8m

OA204: The Perjury Trap (w/guest Randall Eliason)

Today's episode welcomes back one of our favorite guest experts, former prosecutor and current law professor Randall Eliason of the Sidebars blog, who will help us break down what exactly a "perjury trap" is -- and whether Robert Mueller is laying one for the President. Of course, when we have a guest this good, we also have to take advantage of his expertise in a couple of other areas.  So we begin by checking in on the news of the day:  Mueller has already reportedly offered immunity to David Pecker, the CEO of the National Inquirer, whom we discussed at great length on Episode 203 in connection with the Cohen plea. After that, we delve into Rudy Giuliani's contention that Mueller is laying a "perjury trap" for the President.  Is that a thing?  Is that what he's doing?  Listen and find out! After that, we revisit the issue of reporters and confidential sources, where Professor Eliason has been a consistent voice opposing a federal privilege.  Is that a view he still holds?  There's only one way to know for sure! Finally, it's time for the answer to Thomas Takes the Bar Exam, where our intrepid hero tries to inch closer to the coveted 60% mark with a question about torts.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Prof. Eliason first guested on the show way back in Episode 70. Here is the link to the NPR interview with Prof. Eliason discussed on the show. To read more of Prof. Eliason's work, click here to visit the Sidebars blog. Here is a transcript of Prof. Eliason's statement on reporter's privilege in the age of Trump. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com Direct Download
19/10/181h 17m

OA203: Paul Manafort Convicted, Michael Cohen Pleads

Today's extra-long, extra-early Rapid Response episode tackles the two biggest stories in the news right now:  Paul Manafort's conviction, and Michael Cohen's plea deal.  We tell you exactly what these two big stories actually mean. We begin with Paul Manafort.  What did the jury decide?  Why did they fail to reach a verdict on 10 counts?  What were those counts?  How long is Paulie M going to stay in prison and what's next?  And, most importantly:  what does this mean for Yodel Mountain?  How likely is Paulie M to flip on Donald Trump?  We answer all of these questions and more! After that, we turn to everyone's favorite weasel, Michael "I Would Take A Bullet For Donald Trump" Cohen, who... has not taken a bullet for Donald Trump but has in fact pled guilty to eight separate crimes.  What are they, what does it mean, and what comes next?  Listen and find out! And if all that wasn't enough, we end with an all new Thomas Takes The Bar Exam #90 involving  foreseeability, cross-motions for summary judgment, and tortious conduct.  If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links You'll want to start with the Manafort indictment, and you can also read the Manafort verdict.  Of the eight guilty counts, Manafort was convicted under 18 U.S.C. § 1344, 26 U.S.C. § 7206(1), and 31 U.S.C. § 5322. We first discussed the Federal Sentencing Guidelines back in Episode 162; you can check out the full manual (long!) and also the FSG Sentencing table to figure out how long Paulie M is going away. And don't forget Manafort still has another trial pending in DC!  We gave you a primer on that back in Episode 194, and you can check out the pending indictment in that case. If Paulie M flips, it will be to take advantage of Rule 35(b) of the Federal Rules of Criminal Procedure. Of course, we first covered how Stormy Daniels is a Legal Genius back in Episode 154, and then the Karen McDougal story in Episode 158. Here's Cohen's plea deal; here are the conditions of his release; and here's the article quoting his allocution. Sneak preview of the bonus episode:  here's the DOJ manual on prosecuting campaign finance violations that proves Alan Dershowitz is lying.  Again. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com
19/10/181h 28m

OA202: Roundup (With Special Guest the SciBabe!)

Today's episode takes an in-depth look at the recent $289 million dollar verdict handed down by a California state jury for a man who alleges that the herbicide Roundup (TM) gave him cancer. First, we break down the facts of the lawsuit.  Then, we have on special guest Yvette d'Entremont -- a.k.a. the SciBabe -- to break down the science behind glyphosate (the active chemical in Roundup). After that, it's time for everyone's favorite Thomas (& Yvette) Take the Bar Exam, where our dynamic duo attempts to get it right when it comes to the proper measure of damages for breach of contract.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links If you'd like to read some of the original court documents, here's the Roundup complaint, the Roundup motion to strike; and finally, here's the Roundup verdict. In the legal analysis, we discussed Rule 702 of the Federal Rules of Evidence and the standards set forth in Daubert v. Merrell Dow, 509 U.S. 579 (1993). And, of course, you should check out the SciBabe's website. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com
19/10/181h 6m

OA201: Follow Up Friday!

Today's Rapid Response Friday is actually a Follow Up Friday!  We revisit four stories from recent episodes and go into more depth on each one, particularly in light of recent developments. We begin with our most recent story regarding reporter's privilege in Episode 200.  What's the other side of the argument?  Find out why friend of the show Randall Eliason thinks that reporter's ought not to have the right to keep their sources confidential! After that, we move back one more episode to Episode 199 and tackle some important listener questions about asbestos.  Along the way, we discuss the difference between strict liability and negligence and delve into theories of market share liability. Our main segment covers the unsurprising fact that Masterpiece Cakeshop is back in the news.  What does this mean?  How has the Supreme Court's decision changed the landscape for religious exemptions to laws?  Listen and find out! After that, we go back to Yodel Mountain and check in with the conclusion of the Manafort trial.  Phew! And if all that wasn't enough, we end with an all new Thomas (and Yvette) Take The Bar Exam #89 involving the appropriate damages for breach of contract. If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links We discussed reporter's privilege in Episode 200; for the other side, check out this 2007 article by Randall Eliason on the BALCO scandal or this law review article in the American University Law Review. Of course, we discussed asbestos in Episode 199, but we first broke down the law of negligence way back in Episode 29.  We cite to the Restatement (Second) of Torts § 520 and Sindell v. Abbott Labs, 607 P.2d 924 (1980). Click here to read the new Masterpiece Cakeshop complaint. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com
19/10/181h 14m

OA200: Reporters and Confidential Sources

Today's episode takes an in-depth look at the legal protections reporters have (and don't have) to keep their sources confidential. We begin, however, with an update on how "Elections Have Consequences," this time, looking at the state of the House of Representatives in light of last week's special election in OH-12. After that, we dive deeply into reporter privilege, beginning with a discussion of the Supreme Court's decision in Branzburg v. Hayes and continuing through to the recently-proposed Free Flow of Information Act of 2017. Next, the guys break down the Electronic Frontier Foundation's take on the 3-D guns.  Do Andrew and Thomas change their minds?  Listen and find out! Finally, we end the answer to Thomas Takes The Bar Exam #88 about waiver and/or modification of contract.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was recently a guest on The Thinking Atheist podcast with Seth Andrews.  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Some political links:  click here to read The Hill's report on Trump claiming that he was "5-for-5," and here to check out the Cook Political Report's revisions to House races in light of the Balderson-O'Connor race in OH-12, Click here to read the Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), and here to read the recently-proposed Free Flow of Information Act of 2017. We discussed 3-D guns in Episode 197, and you can read the EFF's take here.  The EFF's primary case is Herceg v. Hustler Magazine, 814 F.2d 1017 (5th Cir. 1987). Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com Direct Download
19/10/181h 15m

OA199: Asbestos??!? (Or: Why Is This Man Smiling?)

Note: the SaneBox url in this episode is incorrect. Please go to https://www.sanebox.com/opening to take advantage of a great deal on their product! Today's Rapid Response Friday breaks down everything you need to know regarding the Trump EPA's recent rules change regarding asbestos.  Is it as ominous as it sounds?  (Yes.) We begin, however, with the oddest OA segment of all time:  Devin Nunes was right!  What was he right about, and what's a Michael Kinsley gaffe?  You'll just have to listen and find out! After that, in a bonus segment, the guys break down the recent indictment of Chris Collins (R-NY-27) for insider trading. The main segment breaks down the EPA's Significant New Use Rule (SNUR) regarding asbestos and help you evaluate the competing claims being lobbed back and forth.  Did the Trump Administration open up the use of asbestos in household products?  Or did they make it harder to use asbestos as the EPA claims?  We give you a definitive answer. After that, Andrew partially answers a listener question in light of Rick Gates's testimony in the Manafort trial while teasing that the rest will get answered sometime soon. And if that wasn't enough, we end with an all new Thomas Takes The Bar Exam #88 involving a contract, waiver and modification, and subsequent assignment to another party.  Phew!  If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was recently a guest on The Thinking Atheist podcast with Seth Andrews.  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Here's a link to the NBC story on the Devin Nunes tape; and here's a link to one in the Washington Post; they're both delightful. This is the Collins indictment, and this is the text of 17 CFR 240.10b-5. The TSCA is 15 U.S.C. § 2601 et seq. Here's the letter that the ACC wrote to the EPA back in August of 2016 arguing that they should be able to use asbestos. For an in-depth critique of the Trump EPA's evaluative process, you can check out the annotated source documents and the summary article in the New York Times. Here's the text of the new EPA SNUR, and here's the (laughable) EPA dissembling as to what it means. Finally, here's the report on Rick Gates's cross-examination over his affairs. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com Direct Download
19/10/181h 15m

OA198: What Is Alan Dershowitz Thinking?

Today's episode takes an in-depth look at Donald Trump's favorite "liberal," Harvard Law professor Alan Dershowitz as seen through the eyes of one of his former students. We begin, however, with an update from the Paul Manafort trial, taking a look at the prosecution's strategy, witness list, and some preliminary rulings by Judge Ellis. After that, we dive very deeply into what looks like a very weird phenomenon:  why is Alan Dershowitz carrying water for a President whom he ostensibly opposes?  Why is he saying things that are demonstrably and indefensibly untrue about the law? Andrew has a theory.  Mostly, though, he has stories and research... but they lead to a theory (we promise)! Finally, we end the answer to Thomas Takes The Bar Exam #87 regarding constitutional law and a state vs. the federal Confrontation Clause.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links This is the article in The Hill indicating that the prosecution would, in fact, call Rick Gates; earlier, friend of the show Randall Eliason gave a bunch of reasons why they might not.  Oh, and Eliason also has you covered as to why 'collusion' is, in fact, a crime. This is the laughable Fox News report on how Judge Ellis hates the prosecution; for a dose of reality, you might want to check out this other article in The Hill about how Judge Ellis chastised both sides's lawyers. If you missed it, this is our Episode 107 where we tackled Serial. Here's the PBS retrospective on Dershowitz and the OJ trial. Our Dershowitz story on 'testilying' begins with Mapp v. Ohio, 367 U.S. 643 (1961) and the origins of the exclusionary rule; Dershowitz coined the term 'testilying' in this New York Times article from 1994. Testilying is, of course, a consistent problem today (see A, B) -- but Dershowitz hasn't spoken about it since 1998 (and even then, in an entirely different context). Instead, he attacked Baltimore's decision to indict the police in the Freddie Gray case in 2015. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com
19/10/181h 27m

OA197: Undetectable, Untraceable, 3-D Printed Guns

Today's Rapid Response Friday breaks down all of the legal wrangling regarding the Trump Administration's secret settlement with a self-described "crypto-anarchist" who uploaded material that allows anyone with access to a 3-D printer to make their own plastic, undetectable, untraceable firearm. We begin, however, with a  listener who's considering coming over to the "dark side" and wants an honest answer about getting electoral help from overseas.  What if the Irish want to help elect Liz Warren in 2020?  Listen and find out! The main segment breaks down the "Defense Distributed" settlement and subsequent litigation -- and along the way you'll learn about Cold War arms sales, the Export Control Act, F-15s, Richard Nixon, and... well, let's just say there's a lot on the table! Finally, we end with an all ne