OA212: Rod Rosenstein and… G. Zachary Terwilliger?

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

  1. 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.”
  2. 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.
  3. The 28 U.S.C. § 508 sets forth the statutory line of succession for the DOJ.
  4. Here’s the initial Senate confirmation vote on Francisco.  You can also read his “oopsie” letter to the Supreme Court below:
  5. This is the Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq.  We first discussed it back in Episode 126.
  6. Finally, click here to read all about G. Zachary Terwilliger!

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OA211: Manafort Flips (and more on Kavanaugh)

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

  1. For an in-depth analysis of Dr. Ford’s allegations against Kavanaugh, listen to Episode 158 of Serious Inquiries Only.
  2. 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.
  3. Here’s the polling aggregator from our friends at 538.; as of today, Democrats have a 1-in-3 chance of retaking the Senate.
  4. 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.
  5. 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/

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OA210: Cash Bail, Glucksburg and More

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

  1. 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.
  2. You can read California SB10, as well as check out the opposition from both Human Rights Watch and the ACLU.
  3. Here is the full decision in Washington v. Glucksberg, 521 U.S. 702 (1997).
  4. 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.
  5. 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!

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And email us at openarguments@gmail.com



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OA209: Kavanaugh’s Confirmation

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

  1. 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).
  2. Here’s the late-breaking Feinstein letter.
  3. We strongly recommend reading Kavanaugh’s answers.  If you can stomach his misuse of the word “precedent” every few lines.
  4. 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 openarguments@gmail.com



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OA208: Moore is Still Less

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 openarguments@gmail.com.

Show Notes & Links

  1. Here’s the link to Stogner v. California, 539 U.S. 607 (2003).
  2. 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 openarguments@gmail.com



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OA207: Brett Kavanaugh’s Confirmation Hearings

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 openarguments@gmail.com.

Show Notes & Links

  1. 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.
  2. 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.
  3. 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 openarguments@gmail.com



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OA206: Will This ONE WEIRD TRICK Unravel the Mueller Investigation?

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 openarguments@gmail.com.

Show Notes & Links

  1. Here’s the injunction granted in the 3-D guns case.
  2. 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 openarguments@gmail.com



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OA205: More on Masterpiece, Younger & the Catholic Church (w/guest Andrew Seidel)

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 openarguments@gmail.com.

Show Notes & Links

  1. To sign up for the FFRF’s action alerts, text FFRF to 52886.
  2. 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).
  3. You can click here to read the full Pennsylvania grand jury report.
  4. 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 openarguments@gmail.com

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OA204: The Perjury Trap (w/guest Randall Eliason)

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 openarguments@gmail.com.

Show Notes & Links

  1. Prof. Eliason first guested on the show way back in Episode 70.
  2. Here is the link to the NPR interview with Prof. Eliason discussed on the show.
  3. To read more of Prof. Eliason’s work, click here to visit the Sidebars blog.
  4. 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 openarguments@gmail.com



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OA203: Paul Manafort Convicted, Michael Cohen Pleads

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 openarguments@gmail.com.

Show Notes & Links

  1. 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. § 134426 U.S.C. § 7206(1), and 31 U.S.C. § 5322.
  2. 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.
  3. 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.
  4. If Paulie M flips, it will be to take advantage of Rule 35(b) of the Federal Rules of Criminal Procedure.
  5. 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.
  6. Here’s Cohen’s plea deal; here are the conditions of his release; and here’s the article quoting his allocution.
  7. 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 openarguments@gmail.com



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