Opening Arguments

OA1111 - The Eastman Dilemma: Lawfare or Justice? We're giving everyone half of this Law'd Awful Movies! We watched John Eastman's... documentary? Whatever it is, a strange nonprofit called the Madison Media Fund produced it, and held the premiere at Mar-a-Lago ahead of its, you guessed it, January 6th release date. You'll hear straight from Eastman, Alan Dershowitz, Jeff Clark, and...Lawrence Lessig regarding Eastman's election "theory." Special Guest Lydia joins us to tackle the folks behind the making of this film, and you won't believe the stuff she's uncovered. John Eastman’s first “draft” memo (12/24/20) John Eastman’s second memo (early 2021) The 65 Project’s complaint re: John Eastman to the CA bar (7/28/22) Record of John Eastman CA disbarment proceedings (6/12/23) CA Bar Court Judge Yvette Roland’s recommendation in John Eastman’s disbarment proceedings (3/27/24) To be sure you get access to all previous and future bonus content, be sure to sign up at patreon.com/law!

OA1110 - For the first time in US history, an American President (both former and future) is facing criminal sentencing. We review Judge Juan Merchan’s most recent ruling on Donald Trump’s motion to dismiss his conviction for 34 felony counts of falsifying business records and the difficult balance that Merchan has struck in trying to weigh the jury’s verdict and the rule of law itself against the fact that the defendant will be ten days away from regaining the nuclear codes as of the time of his scheduled hearing. We also review Aileen Cannon’s recent probably-illegal desperate order to try to stop special counsel Jack Smith’s report on Trump’s many federal crimes from going public before trying to understand why Democrats would even consider signing on an extremely hard-right immigration bill which can only help to fuel Trump’s mass deportation machine. How will the Laken Riley Act allow undocumented people to get away with nearly any theft offense, and give state AGs broad power over national immigration policy? Matt then drops a quick footnote on the questionable state of Rudy Giuliani’s physical, mental, and legal health as two different federal judges consider just how contemptuous he has become before we circle back for some late-breaking updates in both of this episode’s Trump stories. Docket for Trump v. US (SD FL) NY Judge Juan Merchan’s ruling denying Trump’s motion to dismiss and scheduling sentencing for 1/10/25 (1/3/25) Trump’s application for a stay of sentencing to the US Supreme Court (1/7/25) SCOTUS ruling on Trump’s application for stay of sentencing (1/9/25) Full text of the Laken Riley Act, H.R. 29 (introduced 1/5/25) Rudy Giuliani’s sworn declaration confirming that he will be attending contempt proceedings in DC federal court (1/9/25) Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1109 and T3BE54 - John Eastman is many things: a hack, a liar, a disgraced law school dean, a failed Wikipedia editor, and a mostly-disbarred, twice-indicted traitor to the Constitution on a desperate PR campaign to distance himself from the violent insurrection of January 6, 2021 which he set in motion with his patently bad-faith legal advice to the Trump campaign. But did you know that he also isn’t even a person? Our Profiles in Fascism series continues with a have-to-hear-this-to-believe-it reading from the pages of the Claremont Institute’s deranged American Mind. (There’s just too much good stuff here for the regular show, so the last half is for patrons only!) Then, Heather is back with the answer to T3BE Q53 and a fresh new question 54! “The Unpersoning of John Eastman,” TJ Harker, The American Mind (5/2/24) The 65 Project’s complaint re: John Eastman to the CA bar (7/28/22) CA Bar Court Judge Yvette Roland’s recommendation in John Eastman’s disbarment proceedings (3/27/24) If you'd like to play along with T3BE, here's what to do: hop on Bluesky, follow Openargs, find the post that has this episode, and quote it with your answer! Or, go to our Subreddit and look for the appropriate t3BE posting. Or best of all, become a patron at patreon.com/law and play there! Check out the OA Linktree for all the places to go and things to do!

OA1108 - A Coup in Search of a Legal Theory We commemorate the fourth anniversary of the January 6, 2021 insurrection by remembering the two elite lawyers who bear significant personal, moral, and legal responsibility for one of the single worst days in US political history. The bad-faith legal cover Kenneth Chesebro and John Eastman provided for the “Stop the Steal” movement in the months leading up to MAGA’s violent insurrection would ultimately result in nine deaths, hundreds of injuries, and the initiation of more than 1500 federal criminal cases--but Eastman and his MAGA allies are already trying to rewrite that history in front of us. We push back in this special episode, with more to come. SS chief Reinhart Heydrich’s official memo authorizing and regulating the Kristallnacht “demonstrations” targeting the property of German Jews (11/10/1938) January 6th House Select Committee’s final report (and supporting evidence) Fake elector records submitted to the National Archives (via FOIA by American Oversight) Cleta Mitchell email requesting that John Eastman write a memo for a “movement” which needs “Constitutional support” (11/5/20) John Eastman’s first “draft” memo (12/24/20) John Eastman’s second memo (early 2021) Kenneth Cheseboro’s NY disbarment ruling (10/31/24) Record of John Eastman CA disbarment proceedings Kenneth Cheseboro December 9, 2020 memo John Eastman’s speech at January 6, 2021 “Stop the Steal” rally Jack Smith’s Motion for Immunity Determination (with complete supporting brief) in Trump v. US outlining all of the many ways that Trump knew there was no fraud in the 2020 election and the entire fake elector scheme DC federal indictment of Donald Trump for conspiring to overturn the 2020 election (8/1/2023) Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1107 - Chief Justice John Roberts has used his annual end-of-the-year report to remind us that federal judges should not accept luxury vacations from billionaires, fly insurrectionist flags on any of their properties, or ever be criticized for any reason. Or, you know--at least one of those things. We also answer a patron question about what happens if Republicans can't get their House in order by the time that electoral votes are supposed to be certified on January 6th before getting to today's main story: the very real possibility that TikTok may not live to see the first day of the second Trump administration if the Supreme Court allows current law barring it from doing business in the US to take effect on January 19th. How could the US government shutting down one of our nation's favorite new ways to communicate not constitute a massive First Amendment problem? Why did a majority of Congressional Democrats, the Biden administration and pre-election Donald Trump all agree that TikTok is a threat to national security? And when is Matt going to finally release his signature TikTok dance video? We answer two of these questions before dropping a quick footnote to look back on a stupid Congressperson's idea of a smart person's legal argument in support of overturning a democratic election. DC Circuit decision in Tiktok v. Garland (12/6/24) “What If Free Speech Means Banning TikTok?,” Alan Rozhenstein, The Atlantic (12/13/24) Redacted transcript of U.S. intelligence briefing to House Energy and Commerce Committee on March 7, 2024 filed with DC Circuit ACLU amicus brief in Tiktok v. Garland (12/27/24) Donald Trump’s amicus brief in Tiktok v. Garland (12/30/24) Protecting Americans From Foreign Adversary Controlled Applications Act (signed into law 4/24/24) “2024 Year-End Report on the Federal Judiciary,” John Roberts (12/30/24) Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1106 and T3BE53 The Law'd Awful Movies this month was so much fun, I wanted to give everyone the first ~30 minutes of it. After that, it's the usual Thomas Takes the Bar Exam answer to Q52 and the new Q53. If you are one of the lucky patrons who has already heard LAM1006, feel free to skip to 31:04. If you'd like to play along with T3BE, here's what to do: hop on Bluesky, follow Openargs, find the post that has this episode, and quote it with your answer! Or, go to our Subreddit and look for the appropriate t3BE posting. Or best of all, become a patron at patreon.com/law and play there! Check out the OA Linktree for all the places to go and things to do!

... and he might actually be right! Listen in and hear why. OA1105 - Harvard Law professor and anti-corruption advocate Lawrence Lessig is almost certainly the only person on Earth to have had a personal relationship with both visionary hacker Aaron Swartz and former Supreme Court justice Antonin Scalia. We warmly welcome Professor Lessig back to OA to share--among many other things--his experiences with each of these very different people, why he remains optimistic about campaign finance reform going into the second Trump administration, and the originalist argument against Super PACs. “Why They Mattered: Aaron Swartz,” Lawrence Lessig, Politico (12/22/2013) They Don’t Represent Us: Reclaiming Our Democracy, Lawrence Lessig (2024) Republic Lost: How Money Corrupts Congress--and a Plan to Stop It, Lawrence Lessig (2011) Support End Super Pacs Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1104 - America's Dismayor, and other great stories to help close out 2024 on a positive note! Rudy Giuliani’s long, greasy slide from the heights of New York power seems to be ending in the same Manhattan federal courthouse in which he made his career as the US Attorney for the Southern District of NY. We take a closer look at the often hilarious lengths America’s former mayor has gone to in the past year to avoid paying the $148 million judgment he earned by casually defaming two hardworking Georgia election volunteers. Also discussed: why the House Ethics Committee decided to release its report on Matt Gaetz, Biden's commutation of 92% of the federal death row, and a legitimately good decision from the Supreme Court that we meant to talk about earlier. Finally, Matt drops a footnote with what he is promising will be the last time that he talks about fonts this year. Freeman v. Giuliani docket Giuliani’s written stipulation to making per se defamatory statements (7/25/23) Judge Liman’s “turnover” order (10/22/24) Judge Howell’s default judgment order (8/30/23) Giuliani’s 55-page response to the plaintiff’s motion for sanctions (12/19/24) The America First Warehouse (America’s Most Patriotic Venue) U.S. v. Rahimi (June 21, 2024) “Preferred Typefaces for Briefs,” Fourth Circuit Court of Appeals (12/9/24) Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1103 - Is human intelligence necessarily more rational and just than artificial intelligence? How involved should AI be in our law and government? Professor Aziz Huq of the University of Chicago School of Law joins for a fascinating conversation about everything from the “right to a human decision” to the dystopian terrors of Tinder. “A Right to a Human Decision,” Aziz Huq, Virginia Law Review (2020) “The Geopolitics of Digital Regulation,” Aziz Huq (2024) “Chinese scientists develop AI ‘prosecutor' that can press its own charges,” Steven Chen, South China Morning Post (2021) Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1102 - Why is the state of New York charging Luigi Mangione as a terrorist? And why have federal charges been filed in this case at all? We consider before moving on to try to locate any actual legal basis in the Georgia Court of Appeals decision removing Fulton County DA Fani Willis from the prosecution of Donald Trump and his alleged conspirators in Georgia. Finally, we dig into 11th Circuit judge Kevin Newsom’s surprisingly defensible argument that judges and lawyers should occasionally consult with ChatGPT, and Matt drops a footnote involving judges being weird about food. New York indictment of Luigi Mangione (12/18/24) Federal indictment of Luigi Mangione (12/19/24) People v. Ferhani, 966 N.Y.S.2d 348 (2012) Georgia Court of Appeals decision removing Fani Willis from Trump’s GA case (12/19/24) Snell v. Specialty Insurance Corp, 11th Cir. (5/28/2024)(Newsom, J., concurring) U.S. v. Deleon, 11 Cir. (9/5/2024)(Newsom, J., concurring) Judge Proctor’s order in McCuller v. Koch (11/26/24) Ohio Supreme Court’s decision in Berkheimer v. REKM (7/25/24) Ohio Supreme Court’s decision denying reconsideration in Berkheimer v. REM (12/9/24) Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1101 - You know... that super woke institution... the US Military... well, NO LONGER! Trump's man for the job is a real piece of work. And if you don't believe us, take it from his own mom. As usual, Lydia gives us the doozy breakdown, and also how Hegseth fits right into the Project 2025 design. Then, it's T3BE 52! Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1100 - Donald Trump’s promises of “mass deportation” have been dominating the headlines, but what do we actually know about what the coming administration is planning--and who should actually be concerned? Matt explains how immigration enforcement actually works in practice under the current system, including its current practical and logistical limitations. We then break down the ways that Trump has told us that he intends to subvert or get around the existing system and the law (or lack thereof) behind these unprecedented proposals before ending with some ideas for how you can help to prepare to stand up to mass enforcement actions in your community. Watch our new video on how Joe Biden can go out a legend!!! “Trump’s Possibly Illegal Border Posse,” Matt Cameron, The New Republic (5/2/2019) “The 287(g) Program: An Overview,” American Immigration Council (July 2021) “License to Abuse: How the 287(g) Program Empowers Racist Sherriffs,” ACLU (2022) “National Map of 287(g) Agreements,” Immigration Legal Resource Center “Sweeping Raids, Giant Camps, and Mass Deportations: Inside Trump’s 2025 Immigration Plans,” New York Times (11/11/2023) Make the Road v. Wolf, 962 F. 3d 612, D.C. Cir. (2020) Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1099 - Superstar Gavel Gavel contributor Liz Skeen joins to answer all of your questions about the arrest of Luigi Mangione and the charges he will soon be facing for his alleged shooting of United Healthcare CEO Brian Thompson in the courthouse where she serves as a public defender. Also: Biden’s record-breaking day of clemency. Listen to Thomas, Matt, Liz, and our talented cast of People v. Trump transcript re-enactors on Gavel Gavel! Watch our new video on how Joe Biden can go out a legend Sign the official OA petition for Joe Biden to go out a legend White House press release on Biden’s December 12, 2024 clemency actions Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1098/T3BE51 - We conclude our review of Trump’s immigration enforcement team with the man behind Donald Trump’s immigration policies.. Who is Steven Miller, and why? You’ll want to listen to this one even if you think you know who this man is, because it’s all a lot weirder--and, somehow, worse--than you might have ever imagined. Then, it's time for the answer to last week's bar exam question, and Q51! Hatemonger: Stephen Miller, Donald Trump, and the White Nationalist Agenda, Jean Guerrero (2020) “How Stephen Miller Manipulates Donald Trump to Further His Immigration Obsession,” Jonathan Blitzer, The New Yorker (2/20/2020) Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1097 - Trump's Staff Infection, Vol. 5 Donald Trump has just reiterated his intentions for mass immigration enforcement in a Sunday Meet the Press interview, and Lydia joins for a closer look at the people who will actually be carrying these policies out. We take a quick introductory look at runner-up Attorney General pick Pam Bondi before Lydia reviews some of Project 2025’s plans and Matt explains the different roles of the DOJ and DHS in the US immigration system. Also, why has the former governor of a lightly-populated state nearly 1000 miles from the Mexican border with nothing related to immigration on her CV been chosen as the next head of Homeland Security? We have some theories--but absolutely no questions as to why family separation expert Thomas Homan will be the next American “border czar.” “Project 2025: A Mandate for Leadership,” The Heritage Foundation (2024) Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1096 - The President of the United States has just pardoned a blood relative and it’s--fine, actually. We review the full pardon of Hunter Biden in the greater context of presidential pardons before moving on to our main story: this week’s oral arguments in the trans rights case U.S. v. Skrmetti. The most important and very likely the most consequential case of this Supreme Court term featured the first openly trans lawyer ever to appear before the high court patiently trying to explain to some of our finest legal minds why a Tennessee law denying life-saving healthcare to certain people based on which letter is printed on their birth certificates is in fact unconstitutional discrimination. Finally, Matt drops a quick footnote to acknowledge one of the shortest periods of martial law in democratic history and to see what we might be able to learn from it. Statement from President Joe Biden re: pardon of Hunter Biden(12/1/24) Office of the Pardon Attorney | Pardons Granted by President Donald J. Trump (2017-2021) U.S. v. Skrmetti oral arguments (12/4/24) L.W. v. Skrmetti (6th Cir)(7/8/2023) President Yoon’s Speech Declaring Martial Law in South Korea - The New York Times (12/3/24) Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1095 - Trump's Staff Infection, part 4 plus T3BE50! Lydia Smith joins us once again to take us through another volume of Trump's Staff Infection. This time, we focus on the Intelligence Agencies. Then, it's T3BE50! Submit your answer on Bluesky or Reddit! Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1094 - Denaturalization and an executive order revoking birthright citizenship for children of undocumented parents have both been in the news a lot recently, and Matt would like everyone to take a breath and do some realistic risk assessment. We review what it actually takes to denaturalize someone under our current system, and what it would take for a majority of even this Supreme Court to say that the Fourteenth Amendment doesn’t say exactly what it says. Departure Statement of Wong Kim Ark, National Archives San Francisco U.S. v Wong Kim Ark, 169 US 649 (1898) Trump announcement on birthright citizenship executive order, Agenda 47 (2024) Birthright Citizens: a History of Race and Rights in Antebellum History, Martha Jones (2018) Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1093 - In this episode recorded on Thanksgiving Day, two vegetarians carve up the Canadian turkey born Aubrey Drake Graham. Are Drake’s exploratory legal actions against Universal Music in response to Kendrick Lamar’s “Not Like Us” the weakest move in the history of rap beefs? Matt shares some of his favorite diss tracks before we consider these filings and how Drake thought he could possibly come out of this looking good. We also take a look at Jack Smith’s motion to dismiss both of the federal criminal cases against the 47th President-elect of the United States, and what we can learn about the possible future (?) of these cases from both his motion and DC federal judge Tanya Chutkan’s order granting it. Finally, in today’s footnote Thomas provides valuable evidence for the prospective plaintiffs in a cease and desist demand recently made against the ONLY guitar endorsed by Donald Trump. Government’s Motion to Dismiss in U.S. v. Trump (11/25/240 Judge Chutkan’s order on government’s motion to dismiss U.S. v. Trump (11/25/24) OLC memo on immunity for sitting presidents (10/16/2000) OLC memo on presidential self-pardons (8/5/1974) Verified Petition in Frozen Moments LLC v UMG/Spotify (NY Drake payola filing)(11/25/24) Verified Petition seeking depositions in TX (TX Drake defamation filing)(11/25/24) Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1092 plus T3BE49 - we continue our conversation with Somali-American author and advocate Abdi Nor Iftin. Then, it's answer time for T3BE question 48, and our new question 49! Play along on BlueSky! Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1091 - We are honored to welcome Somali-American author and advocate Abdi Nor Iftin for the first of a 2-part Thanksgiving episode dedicated with gratitude to the incredible efforts that so many naturalized Americans have made to be a part of this country. Abdi has recorded the full story of his life in his book Call Me American, in which he details the long journey from his escape from being forced into service as a child soldier in war-torn Somalia to his years as a refugee in Kenya before winning the U.S. diversity visa lottery and building a thoroughly American life in one of the last states you might expect. In this extended interview we get to know Abdi as he shares his story and his unique perspective on what the current American moment means for him and his community. Call Me American: A Memoir,: Abdi Nor Iftin (2018) “Now is the time to buckle up and fight, not to flee,” Abdi Nor Iftin, The Forecaster (11/19/24) “Abdi and the Golden Ticket,” This American Life (7/3/2015) Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1090 - It's an ALL GOOD NEWS EPISODE! It exists, and there is plenty of it. Positive vibes only for today's dose of practical hope. And right when you think it can't get any better, the Footnote Fetish returns! Matt has found yet another bizarre RFK Jr animal-related scandal, this one far from the headlines at the intersection of election and avian law. Also Thomas Takes the Bird Exam! 2024 Popular Vote Tracker, Cook Political Report Alvin Bragg’s letter to NY judge Juan Merchan opposing Trump’s motion to dismiss (11/19/24) “Situation in the State of Palestine: ICC Pre-Trial Chamber I rejects the State of Israel’s challenges to jurisdiction and issues warrants of arrest for Benjamin Netanyahu and Yoav Gallant | International Criminal Court” (11/21/24) Judge Melissa Owens’s summary judgment decision in Johnson v Wyoming (11/18/24) “November Surprise! State Finally Releases RFK Jr.’s Falconry Records,” Kevin Underhill, Lowering the Bar (11/5/24) Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1089 - Trump's Staff Infection, part 3 plus T3BE48! In this installment of Fashwatch’s continuing review of Trump’s incoming legal team, we take a closer look at what we know about the top spots in his DOJ and some of the other most important lawyers in any Presidential administration: White House counsel, Solicitor General, and the US Attorney for the Southern District of New York. 1. “How a Corporate Law Firm Led a Political Revolution,” David Enrich, The New York Times (8/25/22) Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1088 - Trump's Staff Infection Vol. 2 With special guest Lydia Smith! Matt explains why only lawyers can truly destroy the rule of law before Lydia reviews what Project 2025 has planned for the Department of Justice. We then consider Donald Trump’s intention to make his favorite Florida (Congress)man our next Attorney General without or without Senate approval. Who is America’s Worst Matt, and could this weird loser really be the angel of Trump’s retribution? Mandate for Leadership, Project 2025 “Is Matt Gaetz an ‘Accomplished Attorney’?” Louis Jacobsen, Politifact (11/15/24) Nayib Bukele on X: "US Congressmen visit CECOT (Center for the Confinement of Terrorism) “Matt Gaetz’s 2008 DUI arrest resurfaces after jab at Hunter Biden’s substance abuse. Here’s what happened,” Tampa Bay Times (11/15/24) Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1087 - We examine how the incoming President and his administration are already breaking the law with his transition team before taking on his announced intention to subvert the Constitution--and his own political party--through an unprecedented clown car of forced recess appointments. From the Defense Secretary the National Guard determined they couldn’t trust with a gun around Joe Biden to the Attorney General who just resigned from Congress to avoid the details of what he has been doing with high school students to the deputy chief of staff who is Stephen Miller, there are plenty of good reasons these freaks might not clear even a Republican Senate. Could this one weird Constitutional trick force them through? Finally, the world’s richest man wants to tell the federal government how to spend its money. What’s the deal with Elon Musk’s Department of Government Efficiency? Harris-Walz Transition Team Ethics Plan “Will Trump Pursue a Bonkers Plan to Adjourn Both Houses of Congress?,” Ed Whelan, National Review (11/13/2024) House Ethics Rules (2024) Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1086 - We're modifying the schedule a little! Introducing fash-watch with Lydia. We're going to keep a very watchful eye on Trump's incoming government. We're starting this week with the EPA Administrator Lee Zeldin and UN Ambassador Elise Stefanik. But don't worry! After that, we're still on with Heather and the regularly scheduled bar exam failure! Make sure to find openargs on Bluesky and play T3BE there! Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1085 - Matt has put together a preliminary list of things Joe Biden can and should do in the lame duck period. Will he? Let's make him. After that, we examine something that he should absolutely not do courtesy of the aspiring fascists of the National Review. As a little treat. Trump has made more than 100 threats to prosecute or punished perceived enemies," NPR News (10/22/22) “Biden Should Pardon Trump,” Mark Antonio Wright, National Review (11/6/24) Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1083 - What does it mean to be a legal podcast at a time when the rule of law itself is in play? We reflect on this moment before answering a few patron questions and taking a closer look at the current state of each of the three criminal cases against Donald Trump as of this week. “A Sitting President’s Amenability to Indictment and Criminal Prosecution,” DOJ memo dated 10/16/2000. Docket for Jack Smith’s appeal of Judge Cannon’s 11th Circuit Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

Hey folks, this is more of an SIO, but I recorded a solo show because I have to debunk this myth about Kamala losing 10-15m Democratic votes. The truth is not at all that. I also have a million other thoughts that I really just want to get out there and that I hope will be helpful. Matt and I will be back on Friday. Also, I'm not charging Patreon for this one since it's on SIO. Thanks.

Hey folks, it's bad. MAGA is on track to win everything. Matt and I got on for some unfiltered, unedited talk.

OA1083 - the last episode before the election! So Matt thought it would be a great time to give a final round up of the actual policy differences between Trump and Harris. Are these two candidates really any different? Yes. Obviously yes. What a stupid question. First day on Earth or something? Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1082 - Donald Trump recently promised that he and House speaker Mike Johnson have a “little secret” about how they are going to win next week’s election. Is he just trolling, or have Republicans identified real vulnerabilities in our federal election system? We assess the legal realities surrounding one particularly doomerist prediction in The Nation to try to understand just how concerned we really should be. The Washington Post has just revealed that Elon Musk has his own little secret: his numerous past violations of federal immigration law. How much does this matter, and what would happen if ICE received this information about someone who didn’t happen to be the world’s wealthiest person? Finally, for our dessert course Matt has the scoop on a tasty footnote from this week’s news about how the Librarian of Congress just helped to fix the ice cream machine at your local McDonald’s. “That “Little Secret” Between Trump and Johnson? Here’s What It Could Mean,” Elie Mistal The Nation (10/29/2024) “Election certification under threat,” Citizens for Responsibility and Ethics in Washington (8/12/2024) “Elon Musk, enemy of ‘open borders,’ launched his career working illegally,” Maria Sachetti et al, The Washington Post (10/26/24) “Melania Trump modeled in US prior to getting work visa,” AP News (11/4/2016) “They Hacked McDonald’s Ice Cream Machines—and Started a Cold War,” Andy Greenberg WIRED (4/20/2021) “Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies,” U.S. Copyright Office Docket No. 2023-5 (10/28/2024) Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

It's OA Bar Prep with Heather! First we get the answer to last week's Mario Kart easement question, and then we get question 46 - The Fraudulent Flight to Florida Right now, the best place to play (if you aren't a patron...) is at reddit.com/r/openargs! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1081. We're taking a broad survey of the 2024 elections, starting with the many, many 2020 election deniers who are still in--and seeking--public office. How many of these people are still around, and how many are up for re-election? What kinds of threats to democracy are still built into the system and how could we do better? What would real reform look like, and what is it going to take to get there? “The Story of Election Denial in America," ElectionDeniers. org SCOTUS decision in FEC v. Cruz for Senate (2022) “Interactive U.S. House Election Map,” 270towin. Com “At least 30 election deniers and 2020 fake electors serving as Trump electors this year,” CNN (10/17/2024) Fifth Circuit’s decision in Lamb v Wetzel (10/25/24) “A Comprehensive Look at the Freedom to Vote Act,” Jonathan Diaz, Campaign Legal Center (9/17/21) Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1080 - As a weary nation watches the world's richest man try to buy a federal election in plain sight, we stop to consider the question which has so long plagued Elon Musk: There's gotta be a crime here, right? Somewhere? There has been plenty of debate this week about the legality of Musk’s $1 million daily lottery for registered US voters in swing states, but there is something far more insidious going on in this story beyond the headlines. Matt explains how the Federal Elections Commission has recently taken the Supreme Court’s perfectly good joke way too far before we consider what the rapidly evolving rules around super PACs could mean for the future of fair elections in the United States. Finally, we drop a seasonal footnote to discuss how some Massachusetts 8th graders recently helped to close out a 332-year-old criminal case. “Judge Aileen Cannon, who tossed Trump's classified docs case, on list of proposed candidates for attorney general” ABC News (10/22/2024) “Elon Musk’s Big Business and Conflicts of Interest With the U.S. Government” The New York Times (10/20/2024) “A Democrat, Siding With the G.O.P., Is Removing Limits on Political Cash at ‘Breathtaking’ Speed,” Shane Goldmacher The New York Times (6/10/2024) The Illusion of Independence: How Unregulated Coordination is Undermining Our Democracy, and What Can Be Done to Stop It, The Campaign Legal Center (11/30/2023) FEC Advisory Opinion 2024-01 (3/20/2024) FEC Vice Chair Ellen Weintraub’s dissent from Advisory Opinion 2024-07 (addressing Lindsay Graham campaign’s question re: super PAC campaign fundraising coordination) Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

It's OA Bar Prep with Heather! First we get the answer to last week's pizza predicament, and then we get question 45 - the case of the uneasy easement! Right now, the best place to play (if you aren't a patron...) is at reddit.com/r/openargs! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1079 - An OA Spooktacular! But also a normal episode. We continue our ongoing series on fascism and the law with a fresh perspective on a familiar American legal horror story. Matt explains the terrifying legal context surrounding the 1692 Court of Oyer and Terminar which sentenced dozens of innocent Massachusetts colonists to hang for the extremely real felony of practicing witchcraft--and an unexpected defense strategy which could have spared them. What can the most terrifying run of wrongful executions in US history teach us about the dangers of governance by rumor, paranoia, and conspiracy theories 332 years later? SOURCES: In the Devil’s Snare: The Salem Witchcraft Crisis of 1692, Mary Beth Norton (2003) “Salem Witchcraft Trials Research Guide,” Congregational Library (2024)(links to primary sources) 18 USC 611 (voting by aliens) Order granting preliminary injunction against Oklahoma’s anti-Sharia law amendment in Awad v. Ziriax et al, W.Dist. of OK (2010)(later upheld by 10th Circuit Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1078 - The Supreme Court is back from their vacation and is set to ruin a bunch of lives again! They start off with Glossip v. Oklahoma, another opportunity for the Republican ghouls on the Court to execute a potentially innocent man. But not to worry, Matt's Footnote Fetish(tm) will bring us wayyyy back into happy territory, as a favorite character from OA past is in the news in the best way! Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

It's OA Bar Prep with Heather! We get the answer to last week's hot firefighter question, and then a new question involving pizza and promised payment! Right now, the best place to play (if you aren't a patron...) is at reddit.com/r/openargs! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1077, Part 2 of Matt's MAGA is Fascist series. The MAGA movement has just taken a hard turn to the extreme right with openly fascist messaging from Donald Trump about “migrant crime,” “occupied cities,” and “bad genes.” We take a moment to absorb this alarming reality before Matt also explains how US immigration policy has always been the leading edge of American protofascism--and why Adolf Hitler personally admired it--before taking a look at Trump’s actual 2024 immigration promises and what keeping them would mean for us all. Hitler's American Model: The United States and the Making of Nazi Race Law, James Q. Whitman (2017) “Trump Apparently Has a List of Things He Loves About Adolf Hitler,” Tori Otten The New Republic (3/11/24) “Sweeping Raids, Giant Camps, and Mass Deportations: Inside Trump’s 2025 Immigration Plans,” Charlie Savage, Maggie Haberman, Jonathan Swan, The New York Times (11/23/2023) If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA 1076: In the wake of the devastation left by hurricanes Helene and Milton, we examine the state of FEMA’s Congressional funding. Has disaster relief actually become a “partisan” issue, or is this really just a Republican thing? How are these funds distributed, and why can’t Congress ever seem to fully fund anything? Matt explains why the current state of Congressional appropriations has him looking for flights to Denmark. Then: Why is Ron DeSantis’s Department of Health threatening to bring criminal charges against local TV stations airing pro-choice ads in support of Florida’s proposed Amendment 4? Finally, we drop a footnote to check in on the current state of the longest-running criminal trial in Georgia history and listen in on what the judge most recently assigned to the Young Thug RICO case has had to say to Fani Willis’s office about how they are handling it. “Disaster Relief Fund State of Play: In Brief,” Congressional Research Service (8/14/2024) “The Congressional Appropriations Process: An Introduction,” Congressional Research Service (11/30/2016) Letter sent by Florida Department of Health General Counsel John Wilson to WFLA-TV dated 10/3/2024 Get 15% off OneSkin with the code OPENING at https://www.oneskin.co/ #oneskinpod If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

It's T3BE43! First, Heather gives us the answer to last week's question about the 6th amendment right to a jury trial, and then we get a fun question involving an issue not talked about enough: discrimination against hot firefighters. Get 15% off OneSkin with the code OPENING at https://www.oneskin.co/ #oneskinpod Right now, the best place to play (if you aren't a patron...) is at reddit.com/r/openargs! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

Is it okay to call Trump a “fascist”? Is our democracy itself really on the line next month? And what might our legal system look like after a second Trump term? We look behind the headlines to begin to examine the nuances of these questions in this first of several planned episodes on the current state of the American right. The Anatomy of Fascism, Robert Paxton (2004) “The Rise of Competitive Authoritarianism,” Steven Levitsky and Lucan A. Way, Journal of Democracy (April 2002) They Thought They Were Free (full text), Milton Meyer (1955) The Road to Unfreedom: Russia, Europe, America, Timothy Snyder (2018) Nothing is True and Everything is Possible: The Surreal Heart of the New Russia, Peter Pomerantsev (2015) Get 15% off OneSkin with the code OPENING at https://www.oneskin.co/ #oneskinpod If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1074: We begin with a quick look at JD Vance’s cringiest moment during this week’s VP debate. Does the junior senator from Ohio know anything about immigration law--let alone vice presidenting? In our main story: Two of last term’s worst U.S. Supreme Court decisions surrounding “official acts” have been playing out in real time this week in two of the most important criminal prosecutions in the US. First, special counsel Jack Smith has just filed a monster of a brief in the DC case against Donald Trump for his responsibility for the events of January 6th, 2001. Why is this filing so unique, and what can we learn about the evidence against Trump and DOJ’s strategy going forward? Meanwhile, New York Mayor Eric Adams has filed a motion to dismiss his pending bribery charge on the grounds that bribery is pretty much legal now. Could the SCOTUS decision in Snyder v. US actually make a difference here? Finally, Matt drops a rare animal law footnote to explain how the fate of one adorable little beaver became the single most important issue facing the Massachusetts government this week. Video of JD Vance badly mansplaining immigration law during the VP debate Special counsel Jack Smith's Motion for Immunity Determinations (10/3/24) Eric Adams’s motion to dismiss Count V of his pending indictment (9/30/24) Petition to save Nibi the Beaver Governor Maura Healey’s late-breaking announcement re: the fate of Nibi the Beaver Snyder v. US (June 26, 2024) Get 15% off OneSkin with the code OPENING at https://www.oneskin.co/ #oneskinpod If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

Calling an audible here for reasons explained in the intro! Instead of T3BE this week, here is the very best day of Eli Bosnick playing Michael Cohen for Gavel Gavel. This was the infamous day of the Trump Trial when Todd Blanche start cross examination in the stupidest, weirdest way imaginable. Enjoy! Get 15% off OneSkin with the code OPENING at https://www.oneskin.co/ #oneskinpod If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

Get 15% off OneSkin with the code OPENING at https://www.oneskin.co/ #oneskinpod Secure your privacy with Surfshark! Enter coupon code OPENING for 4 months EXTRA at https://surfshark.com/OPENING OA1073 - This week we are serving up the sticky Turkish delight which is the US Attorney for the SDNY’s 53-page speaking indictment against NYC mayor Eric Adams. Matt proudly explains why Boston is historically better at (among other things) corruption than New York before we get into the quid and the quo of it all. Finally, we review Adams’s weird career as a public safety advocate and self-published author and consider what’s next for this “true friend of Turkey.” U.S. v Eric Adams indictment (unsealed 9/26/24) Google Books excerpt of Don’t Let it Happen, Eric Adams (self-published, 2009) If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

Secure your privacy with Surfshark! Enter coupon code OPENING for 4 months EXTRA at https://surfshark.com/OPENING We begin by considering Alexandria Ocasio-Cortez's claim that Israel's recent unprecedented operation against Hezbollah's pagers and walkie-talkies was a violation of international law. Was this one of the most sophisticated military intelligence operations in history or an indiscriminate act of terror? Did the US Supreme Court just allow Missouri to execute an innocent man? We consider the evidence against Marcellus Williams as well as the many legal and Constitutional issues with his conviction--and just how much blood enemy-of-the-show Missouri Attorney General Andrew Bailey has on his hands in his rush to push forward an execution that the same DA's office which convicted Williams 23 years ago was desperately trying to stop. Finally, Matt drops a footnote to share his legal strategy for recovering 20 years of his digital life from the largest social media company on the planet. Do you really have to have (or be) a lawyer just to talk to Facebook's managers? Revised Statutes of Missouri Sec. 547.031 St Louis Prosecuting Attorney’s motion to vacate Marcellus Williams’s murder conviction Marcellus Williams’s Application for Stay of Execution to the U.S. Supreme Court (9/23/24) “How small claims court became Meta's customer service hotline,” Karissa Bell, Endgadget (6/20/240 If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

Secure your privacy with Surfshark! Enter coupon code OPENING for 4 months EXTRA at https://surfshark.com/OPENING The answer for T3BE41 is coming your way, and we launch our next Bar Prep question with Heather! Right now, the best place to play (if you aren't a patron...) is at reddit.com/r/openargs! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

Secure your privacy with Surfshark! Enter coupon code OPENING for 4 months EXTRA at https://surfshark.com/OPENING We are excited to welcome Georgetown law professor Steve Vladeck back to Opening Arguments for a look back at how the Supreme Court responded to the infamously unruly--and increasingly more extreme--Fifth Circuit Court of Appeals in its last term. How did the 5th “win by losing,” and why is there still cause for future concern even after SCOTUS reversed all but three of the eleven cases it took up from them? What kind of messages are the high court justices trying to send back to the 5th, and why aren’t they receiving them? Also discussed: Neil Gorsuch’s most recent not-quite-true statement, why the Supreme Court continues to tolerate the dumbest standing arguments on Earth, the 5th’s use (and abuse) of administrative stays, and what may or may not be wrong with Matt’s brain. Subscribe to Prof. Vladeck’s free weekly One First newsletter “The Fifth Circuit Won by Losing,” Steve Vladeck, The Atlantic (July 9, 2024) “30 Hours of SB4 Whiplash,” Steve Vladeck, LexisNexis.com (March 20, 2024) If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1070 Secure your privacy with Surfshark! Enter coupon code OPENING for 4 months EXTRA at https://surfshark.com/OPENING We begin today’s show with updates on two small victories for the power of art against the Donald Trump legal-industrial complex before turning to our main story: the biggest leak of internal communications in Supreme Court history. We review what we can learn about how Chief Justice John Roberts has been managing his (and the Court’s) public image from the extremely unauthorized release to the New York Times of memos that we were never supposed to read. Also, Fulton County Judge Scott McAfee has just eliminated three more counts from the Georgia RICO indictment against Donald Trump and the co-conspirators charged with their attempt to submit a false slate of Presidential electors to a federal court based on 134-year-old Supreme Court precedent. What’s going on here, and how safe is this indictment now? Finally in this week’s Footnote Fetish, Matt explains why some scruffy-looking nerf-herder is trying to convince a British court that his legal rights were violated by Lucasfilm’s digital resurrection of the deadliest villain in Star Wars history. How Chief Justice Roberts Shaped Trump’s Supreme Court Winning Streak - The New York Times (nytimes.com) (9/15/24) Fulton County Judge Scott McAfee’s order dismissing defendants’ motion to dismiss RICO indictments against Donald Trump et al under the Supremacy Clause (9/12/2024) UK High Court’s judgment in Tyburn FIlm Productions Ltd v. Broughton et al If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!