Opening Arguments

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]

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

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

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

Today's Rapid Response Friday breaks down all of the legal wrangling regarding the Trump Administration's secret settlement with a self-described "crypto-anarchist" who uploaded material that allows anyone with access to a 3-D printer to make their own plastic, undetectable, untraceable firearm. We begin, however, with a listener who's considering coming over to the "dark side" and wants an honest answer about getting electoral help from overseas. What if the Irish want to help elect Liz Warren in 2020? Listen and find out! The main segment breaks down the "Defense Distributed" settlement and subsequent litigation -- and along the way you'll learn about Cold War arms sales, the Export Control Act, F-15s, Richard Nixon, and... well, let's just say there's a lot on the table! Finally, we end with an all new Thomas Takes The Bar Exam #87 regarding a state supreme court ruling over whether witnesses must face their accusers. 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 most recently discussed election law and the relevant statute, 52 U.S.C. § 30121, back in Episode 116 with Beth Kingsley. The seminal Foreign Affairs (1982) article referenced by Andrew is here; and you can also verify the current arms sales numbers from this report in Newsweek. This is the confidential Trump administration's settlement with Defense Distributed; here is the Complaint filed by 8 states, along with the opposition brief filed by Wilson as well as the one filed by the Government. Ultimately, the Court granted the TRO. You can read the Arms Export Control Act, 22 U.S.C. § 2751 et seq., and the implementing regulations at 22 C.F.R. § 125.4(b). The Pentagon Papers case is more formally known as New York Times Co. v. U.S., 403 U.S. 713 (1971). Here's a Harvard Law Review article summarizing Wilson's loss at the 5th Circuit. Finally, check out the author note for (but please do not buy!) the Anarchist Cookbook, for sale on Amazon. 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 tells you everything you need to know about voting, including in particular West Virginia's "Sore Loser" law and whether it applies to big fat racist criminal loser Don Blankenship... and, in turn, what that means for Joe Manchin's chances of holding on to his Senate seat in the 2018 midterms. Phew! We begin, however, with... *sigh*... Andrew Was Wrong. This time, an astute listener clarifies where Andrew elided over two different sections of the Voting Rights Act when discussing the Supreme Court's opinion in Shelby County v. Holder (2013). Oh, and we have more on McDonald's, too! After that, it's time to dig into West Virginia's "sore loser" law. What does this mean for the upcoming Senate elections? Listen and find out! Then, the guys tackle a very good listener question from listener Greg regarding freedom of the press, freedom of speech, limited public fora, and more. Finally, we end the answer to Thomas Takes The Bar Exam #86 regarding the sale of an automobile and a slippery salesman. 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 Don't forget to tune in to our live Q&A this Tuesday, 7/31, at 7 pm Eastern / 4 Pacific. And, of course, participate in the questions thread! We most recently discussed the Voting Rights Act and Shelby County v. Holder back in Episode 188. If you want to know more about big fat racist criminal loser Don Blankenship, heck, you could start with his Wikipedia page. He's not shy about being a big fat racist criminal. (He does not yet grasp that he's a loser, though.) We cited two provisions of the West Virginia Code: W. Va. Code §§ 3-5-7(d)(6) and 3-5-23. And just in case you've forgotten how conservative Patrick Morrisey is, here's the quote he gave to CBS news. 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 breaks down all of a busy week's developments in the Trump Administration's trip up Yodel Mountain, including the surprising revelation that Michael Cohen has audio tapes of his conversations with Donald Trump. What does it all mean? Listen and find out! We begin, however, with a challenging listener question regarding legal ethics and summer associates that hearkens back to our last episode. The main segment tackles an entire week's worth of yodeling, including the Cohen tapes, the emoluments lawsuit, and the Manafort trial. Phew! After that, we check in with our buddy Andrew Seidel from the FFRF about a recent victory in the 9th Circuit regarding prayers at public school board meetings. Finally, we end with an all new Thomas Takes The Bar Exam #86 involving the questionable sale of a used car. 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 Don't forget to tune in to our live Q&A this Tuesday, 7/31, at 7 pm Eastern / 4 Pacific. And, of course, participate in the questions thread! Here's the Reuters report that there are 12 Cohen-Trump tapes; we've heard just part of the first one regarding Karen McDougal, whom we first discussed back in Episode 158. You can read the Emoluments ruling for yourself; we covered this most recently back in Episodes 160 and 162. For our original two-part interview with Seth Barrett Tillman, check out Episodes 35 and 36. Some documents from the Manafort trial: 2018.07.22 Yanukovich govt response; 2018.07.20 Yanukovich motion in limine; 2018.07.25 orders on motions in limine; and 2018.07.26 government jury response. And, of course, you should take a look at the government's Exhibit List. We discussed the "Bernie Sanders" lawsuit against the DNC back in Episode 106. Finally, for some good news, check out the 9th Circuit's opinion in FFRF v. Chino Valley Unified School District; we discussed Town of Greece v. Galloway in Episode 85. 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 tells you everything you need to know before Paul Manafort's trial in the Eastern District of Virginia, which begins Wednesday, July 25, 2018. Oh, and we break down the recent lawsuit against McDonald's to boot! We begin, however, with a very good listener question from "Judicial Noir" regarding ethics, science, and a summer internship! After that, it's time to discuss an actual lawsuit over actual cheese. Yes, there's a class action lawsuit against Thomas's favorite restaurant (McDonald's) -- and we're here to help you separate fact from fiction! Oh, and along the way, you might learn something about Microsoft, illegal tying arrangements, and antitrust law! Then, it's back to Yodel Mountain to explain in depth exactly what's going on with our buddy Paulie M, and what you can expect over the next two weeks. Finally, we end the answer to Thomas Takes The Bar Exam #85 regarding real property. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances If you didn't see Andrew's live appearance on Left-Right Radio with Chuck Morse, you can check out the YouTube archive of 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 Before we get to McDonald's, you'll need to read all about US v. Microsoft, 253 F.3d 34 (2001). While you're at it, you might as well brush up on the Sherman Anti-Trust Act, 15 U.S.C. § 1 et seq. After that, you can read the class action lawsuit against McDonald's regarding the Quarter Pounder and Double Quarter Pounder. Andrew first broke down Judge Ellis in Episode 172. 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 breaks down the recent lawsuit filed by the Mandalay Bay casino regarding the 2017 Las Vegas shooting. Is it true that the casino is suing the victims? What's that all about?? Listen and find out! Also, we check in with Yodel Mountain and figure out, once and for all, if this is really worse than Watergate. (Hint: yes.) We begin, however, with everybody's favorite segment, Andrew Was Wrong, in which we revisit the Supreme Court with a few corrections. The main segment tackles the Mandalay Bay lawsuit and explains the concept of a declaratory judgent as well as the 2002 SAFETY Act upon which Mandalay Bay is attempting to rely. Next, we return to Yodel Mountain to discuss the recent Mueller indictments, Donald Trump's Treason Summit with Russia, and ingenue Mariia Butina. It's as salacious as OA ever gets! Finally, we end with an all new Thomas Takes The Bar Exam #85 involving (ugh) real property. 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 If you didn't see Andrew's live appearance on Left-Right Radio with Chuck Morse, you can check out the YouTube archive of 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 This is the link to the 2011 Ethics Report authored by Chief Justice John Roberts. Here's the Above The Law article we mentioned at the start of the main segment. We've uploaded a copy of the MGM/Mandalay Bay lawsuit so you can read it for yourself. The SAFETY Act can be found at 6 U.S.C. § 441 et seq., and the implementing regulations are at 6 CFR § 25.7. We discussed the Senate Intelligence Committee's report in Episode 190. Here's the link to the Mother Jones article about Butina documenting the claims made in the C segment. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

Today's episode takes an in-depth historical look at the Eighth Amendment's prohibition on "cruel and unusual punishment" and what that might mean for the future of Obergefell v. Hodges in the next Supreme Court. What does capital punishment have to do with gay marriage? Listen and find out! We begin, however, with a discussion of the District Court's refusal to modify the Flores settlement we discussed in Episode 184. Find out what the court thinks of Trump's Executive Order to "keep families together" at the border... by indefinitely detaining minors in violation of the law. After that, it's time for a double-length dive into the history of Eighth Amendment jurisprudence, and in particular, the Supreme Court's decision outlawing capital punishment in 1972 (Furman v. Georgia) and then reversing itself just four years later (Gregg v. Georgia). Is this a blueprint for what the next SCOTUS will do? Listen and find out! Finally, we end the answer to Thomas Takes The Bar Exam #84 regarding spousal privilege. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances By the time you download this, Andrew will have been a guest discussing Judge Kavanaugh with conservative talk show host Chuck Morse. If you'd like to have either of us as a guest on your show, drop us an email at [email protected]. Show Notes & Links We first discussed the President's Executive Order regarding family separation in Episode 184; and you can click hear to read the District Court's Order refusing to modify the Flores settlement. The first case we discussed was Pavan v. Smith, 137 S.Ct. 2075 (2017), in which Roberts refused to sign on with the hard-right dissent. Our two main cases we broke down were Furman v. Georgia, 408 U.S. 238 (1972) and Gregg v. Georgia, 482 U.S. 153 (1976). Finally, we strongly recommend reading Justice Brennan's 1986 Oliver Wendell Holmes lecture in which he explains his view of the Eighth Amendment. 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 does not take a victory lap about our successful prediction that Brett Kavanaugh would be Donald Trump's next nominee to the Supreme Court (but seriously, we called that right, y'all.) Instead, Andrew and Thomas break down some of the current stories surrounding Kavanaugh to separate fact from fiction and try and articulate the best mainstream case against confirming Kavanaugh to the Supreme Court. In the pre-show, we give a shout-out to everyone who made the Opening Arguments Wiki possible -- go check it out! It's amazing! After that, Andrew Was Wrong returns with a clarification from Episode 187 where Andrew misspoke. And also, the guys have a slight laugh at Andrew's inability to pronounce locations of things. The main segment tackles a bunch of current stories surrounding Judge Kavanaugh, including: (1) the allegation that Judge Kavanaugh has concluded that sitting Presidents can't be indicted; (2) the Yale open letter opposing his nomination; (3) a truly stupid article in The Hill arguing for a lawsuit to block Kavanaugh; (4) the potential conflict of interest with Kennedy's retirement; and (5) the notion of "packing the Court" in 2020. Phew! Next, Andrew gives us an eight-second sneak peek at a court's refusal to permit the Trump administration to modify the Flores settlement and why that's good news. Finally, we end with an all new Thomas Takes The Bar Exam #83 involving spousal privilege. If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was just a guest co-host on Episode 75 of the Skepticrat podcast; go check it out! Also, Andrew will be discussing Judge Kavanaugh with conservative talk show host Chuck Morse. 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 starters, here is the Tweet from Alexandria Ocasio-Cortez we criticized, along with the pretty funny humor piece from Andy Borowitz. You should definitely read Kavanaugh's 2009 Law Review article “Separation of Powers During the Forty-Fourth Presidency and Beyond” in the Minnesota Law Review. This is the Yale Open letter. This is the dreadful Ken Levy article in The Hill that Andrew debunks. These are the actual Senate Rules, and remember that we broke down the "nuclear option" way back in Episode 59. On Anthony Kennedy's negotations, check out Rule 3(C)(1) of the Code of Conduct for U.S. Judges, which we previously discussed in Episode 129. As homework for next week, read the Court's order denying the Trump Administration's request to modify the Flores settlement, which we first covered in Episode 184. Finally, NEVER ENDING FAME AND FORTUNE goes to:Paul Duggan, Zach Aletheia, Eric Brewer, Teresa Gomez, Andrew Hamilton, Robin Hofmann, and Beverly Karpinski-Theunis for creating the OA Wiki! 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 -- at long last -- brings us some good news from two rather unlikely sources: first, from the state of Iowa (regarding abortion rights), and second, from the Republican-controlled Senate Intelligence Committee. You won't believe your ears! We begin, however, with a segment that's good news for everyone except Andrew: yes, it's the ever-popular Andrew Was Wrong. This time, Andrew owns up to a serious mistake regarding the fingerprinting regulations at the border, and an almost-as-serious mistake regarding the bustling metropolis of Olathe, Kansas. In the main segment, Andrew breaks down Planned Parenthood v. Reynolds, a recent state supreme court opinion invalidating a 3-day waiting period (with other onerous restrictions on abortion) that provides optimism and a way forward for progressives as we prepare for decades of a right-wing federal judiciary. Find out how states can protect reproductive freedom and abortion rights separate from the U.S. Supreme Court. After that, it's time for a return trip to Yodel Mountain, where we check in on the Senate Intelligence Committee's endorsement of the joint agency report from January 2017 concluding that the Russian government deliberately interfered in the US elections with a strong preference for Donald Trump to Hillary Clinton. Finally, we end the answer to Thomas Takes The Bar Exam #83 regarding the tort of assault and an unloaded firearm. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was just a guest co-host on Episode 75 of the Skepticrat podcast; go check it out! And if you'd like to have either of us as a guest on your show, drop us an email at [email protected]. Show Notes & Links Click here to read the Planned Parenthood v. Reynolds opinion. For future activism, click this link to determine whether your state has elected or appointed state supreme court judges. The Intelligence Community Assessment is here; you can also read the Senate Intelligence Committee's report validating that assessment 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! And email us at [email protected]

Today's Rapid Response Friday gives you a sneak preview of what to expect from the person we predict will become Donald Trump's next nominee to the Supreme Court, Brett Kavanaugh of the United States Court of Appeals for the D.C. Circuit. We discuss: Why it's likely to be Kavanaugh and not any of the other rumored contenders, especially flavor-of-the-minute Amy Coney Barrett Kavanaugh's view of the First Amendment's establishment clause and the future of Lemon v. Kurtzman Kavanaugh's views on abortion How Kavanaugh differs (and how he doesn't!) from Neil Gorsuch when it comes to Chevron deference The weird conservative hit squad out to get Kavanaugh And much, much more! After all that, we end with an all new Thomas Takes The Bar Exam #83 involving assault with an unloaded gun. 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 Thomas was just a guest on Episode 421 of the Cognitive Dissonance Podcast. 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 want a head start on Tuesday's show, check out the just-released Senate Select Committee on Intelligence report. This is the Notre Dame speech/law review article in which Kavanaugh lays out his judicial philosophy and essentially auditions for the Supreme Court. We discussed the following cases: Good News Club v. Milford Central School, 533 U.S. 98 (2001), Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), Priests for Life v. Department of Health & Human Services, 808 F.3d 1 (D.C. Cir. 2015) (en banc), Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017) (en banc), United States Telecom Ass’n v. FCC (D.C. Cir., 2017) (en banc), PHH v. Consumer Financial Protection Bureau, 881 F.3d 75 (2018) (en banc), Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir 2011), and Heller v. D.C., 670 F.3d 1244 (D.C. Cir. 2011)! Right-wing weirdo roundups: Here's the National Review endorsement of Kavanaugh; this is the truly bizarre Jacobs piece in The Federalist; and here is the Federalist Society's own rebuttal. Finally, a preemptive Andrew Was Wrong: Here's Raymond Kethledge's University of Michigan address on how bad Chevron deference is. 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! And email us at [email protected]

Today's episode takes a look at three recent decisions from this Supreme Court and how each one will affect voting in the midterm elections: Husted v. Randolph Institute, Abbott v. Perez, and (surprisingly) Janus v. AFSCME. First, though, we begin by addressing a conspiracy theory that's making the rounds suggesting some nefarious relationship between Anthony Kennedy's son, Justin, and Donald Trump. Does this story hold water? Listen and find out! Then, we break down each of the three cases: Husted, involving Ohio's efforts to purge voters from its rolls; Abbott, involving Texas's efforts to racially gerrymander Congressional districts; and Janus, which will result in drastically weaker public sector unions. What does this mean for the midterms? (Hint: it's not good.) Finally, we end the answer to Thomas Takes The Bar Exam #82 regarding the search and seizure of heroin from plain sight. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Thomas was just a guest on Episode 421 of the Cognitive Dissonance Podcast. 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 missed last year's Fourth of July Spectacular, that was Episode 83. You can read the Liptak & Haberman New York Times article about Trump and Kennedy by clicking here. The Ohio case is Husted v. Randolph Institute, and the Texas cdase is Abbott v. Perez. Before you read Janus v. AFSCME, you may want to check out our extensive coverage of the case back in Episode 150. The statute the 5-4 majority blatantly ignores in Abbott is 28 U.S.C. § 1253. Finally, this is the research Andrew mentioned regarding the correlation between right-to-work states and lower voter turnout and lower Democratic share of the vote. 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! And email us at [email protected]

Today's Bonus Episode asks if there's a way to make sense of the Supreme Court's Lukumi jurisprudence in light of this week's rulings in Trump v. Hawaii (the Travel Ban), Masterpiece Cakeshop, and the somewhat surprising decision to remand the Arlene's Flowers case back to the state of Washington. We begin, however, by checking in with the Southern District of New York's Order approving the Taint Team's review of documents seized from Michael Cohen's offices by the Department of Justice. How many documents did the Team recommend the Court withhold as privileged? The answer may surprise you! After that, we revisit the thesis advanced by Andrew Seidel in Episode 180 that the Supreme Court's decision in Masterpiece Cakeshop might result in a more vigorous application of its 1993 decision in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). Next, we break down the Supreme Court's 5-4 decision in NIFLA v. Becerra, in which the Court struck down a California law regulating so-called "crisis pregnancy centers." After all that, we end with an all new Thomas Takes The Bar Exam #82 involving the legality of a search for heroin. 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 Check out the Southern District of New York's Order regarding Cohen's meager haul of privileged documents. Andrew Seidel set forth his "Lukumi bar" thesis in Episode 180; you can read Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) for yourself and then compare it with both Trump v. Hawaii and Masterpiece Cakeshop. We discussed Planned Parenthood v. Casey at length in a two-part series: Episode 27 and Episode 28; you might want to compare the statute approved in that case with the one struck down by the Court in NIFLA v. Becerra. 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! And email us at [email protected]

Today's Rapid Response Friday comes after a busy week at the Supreme Court, capped off by the (somewhat) surprising announcement that Associate Justice Anthony Kennedy intends to retire as of July 31, 2018. We break down everything about this news, including: What the Trump administration is likely to do next Who President Trump might nominate to fill Kennedy's spot How the Democrats should respond What the next Supreme Court might look like How all of this plays in with the 2018 midterms and 2020 Presidential election And much, much more! We're also going to bring you a bonus episode to make sure you're fully informed as to all the other goings-on in the law this week! After all that, we end with an all new Thomas Takes The Bar Exam #82 involving the legality of a search for heroin. 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 broke down the "nuclear option" in Episode 59. Mitch McConnell announced that the Senate would not recess for the summer on June 5. Here are the (generally reliable) Cook Political Report ratings of the 2018 Senate races. This is the Mother Jones article on Anthony Kennedy's 2017-2018 votes. This is the list of Trump's 25 potential Supreme Court nominees. These are the resources discussed in the future segment, including the When Every Vote Counts law review article, the Slate article on 5-4 splits, and the SCOTUSBlog data regarding the 2017-2018 term. Finally, if you're feeling nostalgic, you might want to reread Obergefell v. Hodges while it's still good law. An d if you're feeling super optimistic, you can even check out the "Above the Law" blog post arguing that it will survive Kennedy's departure (it won't). 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! And email us at [email protected]

Today's episode tries to put a positive spin on some recent developments, including the Supreme Court's gerrymandering decisions, the Department of Justice OIG report on the 2016 election, and the triumphant return of Everyone's Favorite Segment (TM): "Are You A Cop?" We begin with the Office of the Inspector General's 2016 Election Final Report, which we modestly point out validates literally everything we said in one of our favorite Episodes, OA 13, "Hillary Clinton's Damned Emails." There's so much more to learn, so you'll want to listen up! After that, we tackle the main segment, looking for some good news out of the Supreme Court's recent "decisions" on gerrymandering in Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland). These 9-0 decisions are widely viewed as having punted on gerrymandering; is that right, and if so, what does the future hold? After that, we tackle a trope that "everyone knows" in fan-favorite segment "Are You A Cop?" This week, it's that "everyone knows" cops can't have sex with people in their custody, right? RIGHT? Well, thanks to one Democratic legislator in a deep red state, it's now true in Kansas, at least. Finally, we end the answer to Thomas Takes The Bar Exam #81 regarding a law designed to target two college professors who crafted campus hate speech codes. 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 We first discussed Hillary Clinton's emails and the Comey investigation way back in Episode 13, and if you haven't listened, you should check it out! Then, compare what we said then to the just-released Office of the Inspector General's 2016 Election Final Report. Our explainer on Gerrymandering is Episode 54; we then talk about the Wisconsin case in Episode 80 and the Maryland case in Episode 148. Of course, you can (and should!) read the Supreme Court's recent decisions on gerrymandering in Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland). Here is the text of Kansas HB2621, which amends KSA Supp. 21-5512(a), defining "unlawful sexual relations." A "Severity Level 5 Person felony" is subject to 50-55 months in prison as per the Kansas Sentencing Guidelines. 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! And email us at [email protected]

Today's Rapid Response Friday helps separate fact from fiction when it comes to the heartwrenching issue of families being separated at the border. Is the Trump administration to blame? Did the recent Executive Order fix the problem? Listen and find out. First, though, we bring back (almost) everyone's favorite segment: Andrew Was Wrong! Specifically, Andrew was wrong when he predicted back in Episode 83 that Maajid Nawaz didn't have much of a defamation case against the Southern Poverty Law center, and in Episode 84 that he didn't have much leverage, either. Well, both of those predictions looked foolish now that the SPLC has agreed to pay Nawaz $3,375,000 and issue an unconditional apology. In the main segment, we break down Trump's EO regarding separating families at the border and requesting a modification to the Flores v. Reno settlement. It's bad. And if it weren't bad enough, we also discuss the administration's change in asylum policy. After that, we discuss the Supreme Court's recent opinion in Pereira v. Sessions. Surely that can't be bad news, too? (Don't call us Shirley.) Finally, we end with an all new Thomas Takes The Bar Exam #81 involving the constitutionality of a state legislature retaliating against two professors for pushing campus speech codes. Have we piqued your interest yet? Listen and find out! And if you'd like to play along , just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was recently a guest on the David Pakman Show, with a two-part appearance discussing whether President Trump can be indicted and if so, whether he can pardon himself. You can watch the video on YouTube. Show Notes & Links We first discussed Maajid Nawaz's legal threats in Episode 83 and Episode 84. You can read the final Settlement Agreement for yourself as well as check out the SPLC's apology to Nawaz. Click here to read the Snopes article conclusively debunking the political claim that this policy was put into place "by Democrats." You can read Trump's recent Executive Order and also check out the original 1997 Flores v. Reno settlement. The operative laws discussed during the main segment were: 8 U.S.C. § 1158 (asylum); 8 U.S.C. § 1325 (“improper entry by alien”); and, of course, 18 U.S.C. § 46 (“transportation of water hyacinths”). You can also read the Attorney General's Interim Decision #3929 on refugees for yourself. As promised, this is the full list of Class B federal misdemeanors. We also discussed this Washington Post article on refugees being turned away at the border. This is the Supreme Court's recent opinion in Pereira v. Sessions. Finally, a secret Yodel for you folks who read the show notes: here's the link to the news that Michael Cohen's fired his old lawyers (McDermott, Will & Emery) and hired a new one (Guy Petrillo). What does this mean? Only time will tell. 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! And email us at [email protected]