Opening Arguments

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]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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