Opening Arguments

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 [email protected]. 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 [email protected] Download Link

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 [email protected]. 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.

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 [email protected]. 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 [email protected]

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!

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!

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

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!

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected] Download Link

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected] Download Link

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected] Download Link

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 [email protected]. 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 [email protected]

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 [email protected] Download Link

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected][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

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected] [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

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]

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 [email protected]. 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 [email protected]