OA70: Donald Trump & Obstruction of Justice – Are We at the Peak of Yodel Mountain?

This episode begins the switch to a new, more responsive format in which we are better able to cover breaking news within a day of its release.  And, of course, what better way to kick off that format by addressing the most pressing topic of the moment:  is Donald Trump guilty of obstruction of justice in his firing of James Comey in light of the recent evidence?  We break it down for you with the help of a guest expert, Prof. Randall Eliason of the Sidebars blog.

First, though, we continue our ascent up Yodel Mountain with the question as to whether it’s legal for Donald Trump to surreptitiously record White House conversations (as Press Secretary Sean Spicer recently failed to deny).

In the main segment, the guys turn to a former prosecutor and expert on public corruption and the obstruction of justice, Prof. Randall Eliason, and ask about the strengths and weaknesses of mounting a case against the President for obstruction of justice.

After that, Andrew answers a question from Jake (the Fake Jake) who wants to know whether the President has immunity from civil lawsuits, as he’s claimed.

Finally, we end with a brand new Thomas Takes the Bar Exam question #24 about hearsay-within-hearsay.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

None!  Have us on your show!

Show Notes & Links

  1. Check out Prof. Eliason’s blog, Sidebars, and in particular the most recent post on this subject.
  2. Here is the link to the L.A. Times story about how Press Secretary Sean Spicer won’t deny that President Trump is secretly taping White House conversations, and this is the link to the operative statute, § 23-542 of the D.C. Code.
  3. This is the text of Acting AG Rod Rosenstein’s order appointing Robert Mueller as special counsel.
  4. The operative regulations governing the special counsel can be found at 28 CFR § 600.4 et seq.
  5. This is a link to the CNN story regarding Gen. Flynn’s refusal to comply with the Senate’s subpoena duces tecum.
  6. Finally, here is a link to Clinton v. Jones, 520 U.S. 681 (1997), the Supreme Court case that established that Presidents do not have immunity from civil suit while in office.

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OA69: The Tuesday Massacre – Trump Sacks FBI Director James Comey

In this episode, the guys analyze the justification given by Deputy Attorney General Rod Rosenstein for President Trump to fire former FBI Director James Comey.

First, though, fan-favorite Yodelin’ Trump returns with a related question from our listeners (including Kevin Hicks), who ask whether Trump’s tweet about Sally Yates violated the law.

In our main segment, Andrew breaks down the Rosenstein memo.

Then, we answer a great listener question from Patron Ben Hatcher, who wants to know exactly what things are admissible in the record on appeal.

Finally, we end with the answer to Thomas Takes the Bar Exam Question #23 about a class action breach-of-contract lawsuit against a scammer who sells your private information.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

Thomas was recently a guest on Det. Matthew Maxon’s new podcast, ______, and Andrew was recently a guest on Episode #116 of the Gaytheist Manifesto.  Go check ’em out!

Show Notes & Links

  1. This is the text of 18 U.S.C. § 1512, the statute that governs witness tampering.
  2. And this is the text of Deputy Attorney General Rod Rosenstein’s letter recommending the firing of Director Comey.

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OA68: Did Aaron Hernandez Cash In By Committing Suicide? (w/guest Chris Kristofco)

In this episode, the guys tackle a recent Internet meme regarding convicted murderer Aaron Hernandez’s suicide with help from NFL expert and friend of the show Chris Kristofco of the Titletown Sound podcast.

First, though, Andrew tackles a question from listener Joel Forman who asks whether Andrew can help secure him a “letter of marque.”  What is a letter of marque and why does Joel want one?  Listen and find out!

In the main segment, the guys break down the law regarding Aaron Hernandez’s suicide.  Does it really vacate Hernandez’s conviction for murder?  Are the Patriots really on the hook for $6 million?  Is it all a big conspiracy?  We tell the hard truths.

After that, Andrew answers a question from Hall of Fame patron R.J. Rautio about an obscure procedural quirk in the confirmation of Supreme Court Justice Neil Gorsuch.  Does this mean President Elizabeth Warren can kick Gorsuch off the Court in 2020??

Finally, we end with a brand new Thomas Takes the Bar Exam question #23 about a breach of contract lawsuit for stealing your personal information.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

Andrew was recently a guest on Episode #116 of the Gaytheist Manifesto.  Go check it out!

Show Notes & Links

  1. Check out Chris Kristofco’s fabulous podcast, Titletown Sound.
  2. This is the hilarious (and serious!) article from the Federalist Society’s web page on bringing back letters of marque.  No, seriously:  a real person wrote this, unironically.
  3. This is the case of U.S. v. Pogue, 19 F.3d 663 (D.C. Cir. 1994), the case Andrew discusses on the “abatement” rule during the main segment.
  4. And here is just one example of sports media claiming that abatement puts the Patriots back on the hook for Hernandez’s salary.

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OA67: Trump’s Executive Order on Religious Freedom

In this episode, the guys analyze the recent Presidential Executive Order Promoting Free Speech and Religious Liberty.

First, though, we discuss why the show rejected a potential sponsor.

Next, we answer a great listener question from our (only?) conservative listener, “Dan Dan the Conservative Man.”  Dan wanted to know about the exclusionary rule, so-called “illegal” aliens, a recent Supreme Court decision, and how all of those things play in to “Sanctuary Cities.”  We think we answered this.

In our main segment, Andrew breaks down the meaningless portions of the Trump EO and contrasts them with the Definitely Unconstitutional provision.

Then, we answer another listener question, this one from Shane Argo, who wants to know about the legal and philosophical reasons for treating “attempted murder” differently than regular murder.

Finally, we end with the answer to Thomas Takes the Bar Exam Question #22 about a buyer who finds a priceless artifact at a yard sale and knowingly buys it for a fraction of its true value. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

None!  Have us on your show!

Show Notes & Links

  1. In Episode 52 of the show, we linked to this Facebook post by an immigration lawyer about the term “illegal” immigrant.  We recommend you revisit both!
  2. Here is a link to Utah v. Strieff, 136 S.Ct. 2056 (2016), the case Dan asked about.
  3. This is the text of President Trump’s Religious Liberty EO.
  4. And this is a link to David French’s delightful article in the National Review complaining that Trump’s EO doesn’t go far enough.

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OA66: Sanctuary Cities

In this episode, the guys break down the recent decision by a federal court to enjoin the enforcement of President Trump’s Executive Order 13768 regarding Sanctuary Cities.

First, though, Andrew tackles a popular question from Brad Kalmanson (and others) as to whether Donald Trump can really make good on his weird threat to “break up” the 9th Circuit.  The answer will almost certainly surprise you.

In the main segment, we analyze the Sanctuary Cities Executive Order and the Trump Administration’s rather amazing legal “strategy” they orchestrated to try and defend it.  If you have Trump supporters in your news feed (or are one yourself!), you’ll be amazed at what the administration did.

After that, Andrew answers an in-person question from David at ReasonCon about the practice of law.

Finally, we end with a brand new Thomas Takes the Bar Exam question #22 about selling a priceless work of art.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

None!  Have us on your show!

Show Notes & Links

  1. This is a nice primer on the creation of the current federal judiciary, beginning with the Federal Judiciary Act of 1789.
  2. Here is a link to the decision by the Northern District of California enjoining the enforcement of EO 13768.
  3. This link is to the text of EO 13768.
  4. And this is 8 U.S.C. § 1373, referenced in the EO.

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OA65: How “Net Neutrality” Became “Selling the Internet” – A Choose-Your-Own Adventure, Part 2 (Plus Ann Coulter!)

In this episode, Thomas continues his choose-your-own-adventure in which we discover how two well-meaning efforts to protect privacy on the Internet somehow left us with the “Selling The Internet” Bill, S.J.R. 34.  We also tackle the wackiest of wacky lawsuits, starring everyone’s favorite Internet troll, Ann Coulter.

First, though, Andrew assigns homework to the listeners for the very first time, previewing what will be an in-depth discussion of the recent Federal Court order granting injunctive relief and blocking President Trump’s “Sanctuary Cities” executive order.

Then, we return to our story from Friday’s show, unraveling the connections between the FCC, the FTC, Internet Privacy, and the Republican Congress.

After that, we discuss the Berkeley College Republicans’ lawsuit against the school in connection with Milo Yiannopolous and Ann Coulter.  Is this lawsuit as hilarious as it seems?  (Yes.  Yes it is.)

Finally, we end with the answer to Thomas (and Phil!) Take the Bar Exam Question #21 about a state choosing first to recognize gay marriage and then trying to repeal it via a ballot initiative.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

Andrew was a guest on Episode 209 of the Phil Ferguson Show; please give it a listen!

Show Notes & Links

  1. Here is a link to the decision by the Northern District of California enjoining the enforcement of EO 13768 that Andrew assigned as homework.
  2. This is the single sentence text of S.J.R. 34.
  3. And these are the 2016 FCC Internet Privacy rules (all 399 pages!) that S.J.R. 34 overturned.
  4. This is the earlier 2010 Open Internet Order promulgated by the FCC…
  5. …and this is Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014), which struck down those rules.
  6. And this is the case of FTC v. AT&T Mobility, a 2016 decision from the 9th Circuit, discussed in depth in this episode.
  7. Finally, this is a link to the text of the Berkeley College Republican/Ann Coulter lawsuit, which is some truly hilarious reading.

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OA64: How “Net Neutrality” Became “Selling the Internet” – A Choose-Your-Own Adventure, Part 1

In this episode, Thomas begins a choose-your-own-adventure in which two well-meaning trains collide, producing the so-called “Selling The Internet” Bill, S.J.R. 34.  How did this happen?

First, though, Andrew revisits a very difficult TTTBE question (#18), and answers a question from long-standing friend of the show Eric Brewer about the differences between a corporation and an LLC.

In the main segment, Thomas gets to choose between the well-meaning FCC and the well-meaning FTC in boarding his doomed train.  Choose along with Thomas and figure out where we’re headed!

After that, Closed Arguments looks at the Fearless Girl statue and moral rights associated with copyright.

Finally, we end with a brand new Thomas Takes the Bar Exam question #21 about repealing gay marriage.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

Andrew was a guest on Episode 209 of the Phil Ferguson Show; please give it a listen!

Show Notes & Links

  1. This is the single sentence text of S.J.R. 34.
  2. And these are the 2016 FCC Internet Privacy rules (all 399 pages!) that S.J.R. 34 overturned.
  3. This is the earlier 2010 Open Internet Order promulgated by the FCC…
  4. …and this is Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014), which struck down those rules.  This is the case we discuss in depth in this part of the story.
  5. And, as a special hint to our listeners who read the show notes, Part 2 of this story airing next week will focus on the case of FTC v. AT&T Mobility, a 2016 decision from the 9th Circuit.

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OA63: Saving Money For College Is For Suckers! (with Phil Ferguson)

In this episode of Opening Arguments, Andrew and Thomas invite on Phil Ferguson, host of the cleverly-titled Phil Ferguson Show, to discuss why only suckers save money for college.

First, Andrew discusses the scuttlebutt surrounding whether Ivy Tech will appeal the decision in Hively v. Ivy Tech that the guys discussed in Episode 60.

After that, we look at the best(?) potential educational bill that might come before Donald Trump’s desk:  H.R. 529, which would make modest expansions to so-called “529” college savings plans.  This, of course, is to set up our “C” segment, in which the guys interview Phil Ferguson and find out what he really thinks of 529 plans in specific and saving for college in general.  How clickbaity is our episode title?  You’ll have to listen and find out!

Finally, we end with the answer to Thomas Takes the Bar Exam Question #20 about whether a law prohibiting hiring those undergoing drug treatment or with prior drug convictions would violate the equal protection clause.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

Andrew was also a guest on Episode 209 of the Phil Ferguson Show; please give it a listen!

Show Notes & Links

  1. So-called “529 plans” are governed by 26 U.S.C. § 529, which you can read here.
  2. You can see the text of H.R. 592 (no relation) by clicking this link as well as read the endorsement from The Hill here.

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OA62: The Supreme Court’s Hall of Shame

In this episode, Andrew goes through five of the worst, most embarrassing cases in Supreme Court history.

First, though, the guys tackle a question from Scott, who’s considering becoming a patron of the show (good!) but has some questions about a standard form indemnification clause in the Patreon agreement.

In the main segment, we look at the worst of the worst in Supreme Court history.  From the embarrassingly racist to the embarrassingly activist, come visit the Supreme Court’s “Hall of Shame” with Andrew and Thomas.

After that, fan favorite Breakin’ Down the Law returns with an examination of a new mandatory arbitration provision for civil cases in Cook County, Illinois.

Finally, we end with a brand new Thomas Takes the Bar Exam question #20.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

Andrew was a guest on Episode 209 of the Phil Ferguson Show; please give it a listen!

Show Notes & Links

The worst cases in Supreme Court history, in chronological order, are:

  1. Dred Scott v. Sanford, 60 U.S. 393 (1857)
  2. Plessy v. Ferguson, 163 U.S. 537 (1896) (not discussed in this episode)
  3. Lochner v. New York, 198 U.S. 45 (1905)
  4. Buck v. Bell, 274 U.S. 200 (1927)
  5. Korematsu v. US, 323 US 214 (1944)
  6. Bowers v. Hardwick, 478 U.S. 186 (1986); and, of course,
  7. District of Columbia v. Heller, 554 U.S. 570 (2008) (not discussed in this episode)

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OA61: Flyin’ the Friendly Skies & Newt Gingrich Still Has a Contract on America

In this episode of Opening Arguments, the guys look at both United Airlines and an obscure law from 1996 that could threaten the “administrative state” held in such disdain by our newest Supreme Court Justice, Neil Gorsuch.

First, of course, Andrew breaks down the legality of the recent decision by United Airlines to forcibly remove a passenger.  How badly is United going to get sued?  You know we deliver the goods.

Then, Andrew and Thomas discuss a little-known law passed in 1996 as part of the Republican Revolution and Newt Gingrich’s “Contract With America”:  the Congressional Review Act.  What is it, and why does it matter?  Listen and find out!

In the “C” segment, Andrew answers a question from his mom.  Really!

Finally, we end with the answer to Thomas Takes the Bar Exam Question #19 about diversity jurisdiction.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

Andrew was recently a guest on the Embrace the Void podcast, Episodes 5 and 6.  Listen and enjoy!

Show Notes & Links

  1. The Congressional Review Act is 5 U.S.C. § 802.
  2. …and the Brookings Institute study can be found here.
  3. Finally, you can read Todd Gaziano’s efforts to beef up the CRA here.

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