OA175: Defending a Client In the Shadow of the Death Penalty (& So Much More!)

Today’s episode takes a deep dive into two important Supreme Court opinions decided last week:  McCoy v. Louisiana, which prohibits attorneys from conceding their client’s guilt over that client’s objections in a capital murder trial, and  Murphy v. NCAA, which struck down the Professional and Amateur Sports Protection Act (PASPA), 28 U.S. Code § 3701 et seq.  In both cases, we hope to show that these cases have two legitimate sides.

We begin, of course, with sportsball.  What is PASPA, why did the Court strike it down, does it make sense, and most importantly:  when can you bet against the San Jose Sharks?

In the main segment, we break down the difficult questions surrounding the representation of capital murder defendants.

After that, we head back overseas with a really insightful listener comment that takes us deeper into the law of treaties.

Finally, we end with the answer to Thomas Takes the Bar Exam Question #76 about present recollection refreshed.  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.  The first case we break down is  Murphy v. NCAA, which struck down the Professional and Amateur Sports Protection Act, 28 U.S. Code § 3701 et seq.
  2. After that, we turn to McCoy v. Louisiana, which prohibits attorneys from conceding their client’s guilt over that client’s objections in a capital murder trial, distinguishing the Court’s earlier decision in Florida v. Nixon, 543 U.S. 175 (2004).
  3. We discussed treaty obligations in Episode 173.

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Follow us on Twitter:  @Openargs

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OA174: Is Michael Avenatti Fit To Practice Law In New York?

It’s time for another Rapid Response Friday, which means we get to break down Michael Avenatti’s response to the opposition to his motion to appear pro hac vice in the Southern District of New York — amongst many, many other issues!

We begin, however,  with a brief Andrew Lived Through The 1980s segment (formerly: Andrew Was Wrong), that segues into an update on the Panmunjom Declaration discussed in Episode 173.

After that, it’s time to go yodeling, where we break down Paul Manafort’s other criminal trial, Michael Avenatti’s ethical responsibilities regarding SARs,  Donald Trump’s financial disclosures, and (sadly) much, much more.

Finally, we end with an all new Thomas Takes The Bar Exam #76 regarding the admissibility of witness testimony.  If you’d like to play along with our new Patreon perk, just retweet our episode on Twitter or share it on Facebook along with your guess.  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. Here is the text of the Panmunjom Declaration we first discussed in Episode 173.
  2. You can read Judge Jackson’s ruling denying Manafort’s Motion to Dismiss, and also Avenatti’s Response to Michael Cohen’s Opposition to his motion to appear pro hac vice.
  3. The primary case relied upon by Avenatti in his response is In re JPMorgan Chase Bank N.A., 799 F.3d 36 (1st Cir. 2015), which is directly on point.
  4. We’ve also uploaded a copy of Trump’s 2018 Financial Disclosures, which admits the Cohen payment.
  5. Finally, we highly recommend Ronan Farrow’s New Yorker reporting regarding the Cohen SARs.

Support us on Patreon at:  patreon.com/law

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OA173: The Foreign Policy Show – Korea, Iran, and… Ann Coulter?

Today’s episode heads overseas to discuss foreign policy; specifically, the Trump administration’s actions with respect to Iran and North and South Korea.  Is there a common thread here?  Listen and find out!

First, though, we update you on the Young America Foundation lawsuit against the University of California at Berkeley regarding Ann Coulter and an (alleged) hidden Secret Evil Cabal Conspiracy to Silence Conservatives.

After that, we crank up the time machine and go back… all the way back to World War II to discuss what happened on the Korean Peninsula that paved the way for the recent Panmunjom Declaration.  If you’ve ever wanted Opening Arguments to go all Ken Burns, well, this is the show for you!

Then, we take a look at the Joint Comprehensive Plan of Action signed in Vienna on July 14, 2015 — or, as Trump calls it, the “terrible Iran deal.”  Is it a terrible deal?  What are the legal ramifications?  We’ve got you covered!

Finally, we end with the answer to Thomas Takes the Bar Exam Question #75 about subsequent oral modifications to contract.  Don’t forget to listen and find out why Andrew would have gotten this question wrong!  Also, 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. We first discussed the “Ann Coulter” lawsuit during Episode 73; if you want to read the latest ruling, it’s embedded in this article.
  2. Click here to read the Howard Levie law review article from the Akron Law Review, and here to read the final Armistice Agreement (drafted by Levie).
  3. This is the text of the original JCPOA; and click here to read the CFR’s backgrounder on it that was referenced during the show.
  4. If you want the Washington Post‘s fact-checker article on Trump’s statements about the JCPOA showing that virtually everything he’s said is a lie, that’s here.
  5. This is the link that contains the letter written by the Obama Administration to then-Rep. Mike Pompeo describing the JCPOA as a “political document.”
  6. Finally, if you want to read the 1969 Vienna Convention, grab a tall beverage and curl up with it right here.  The actual treaty begins on page 384.

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OA172: Private Prisons, Judge Ellis & More

It’s time for another SUPER-SIZED Rapid Response Friday, which means we get to break down Judge Ellis’s statements in the Paul Manafort criminal trial (amongst many, many other issues)!

We begin, however,  with a brief Andrew (well, mostly ABC and NBC) Was Wrong.

After that, the guys discuss a recent 10th Circuit opinion regarding the treatment of detainees in private prisons.  What does it mean for the future of class action litigation?  Listen and find out!

After that, it’s back to Yodel Mountain, where we break down not only Judge Ellis, but all the developments in or connected to the Mueller investigation, including Michael Flynn and Michael Cohen’s “follow the money” report.  Phew!

Finally, we end with an all new Thomas Takes The Bar Exam #75 about a contract and a subsequent oral modification that Andrew admits he would have muffed.  If you’d like to play along and show Andrew you’re the better lawyer, just retweet our episode on Twitter or share it on Facebook along with your guess.  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. Here’s the link to a Washington Times story covering the correction regarding Michael Cohen’s supposed “wiretap” (that turned out to be a pen register).
  2. The case we discussed in the main segment was Menocal v. GEO Group (10th Cir., Feb. 9, 2018).
  3. Click here to read the 2016 Obama directive on ending privatized prisons, or (if you’re a masochist) here to read the 2017 Trump directive rescinding it.
  4. If you only read one thing from this show, please do read the transcript of the May 4 hearing before Judge Ellis.  It’s great.  I love this guy.
  5. The opposition to Michael Avenatti’s pro hac vice motion is here; it also contains the “Executive Summary” laying out Avenatti’s “follow the money.”  If you prefer to see it in chart form, click here (H/T Washington Post).
  6. The TPM article suggesting that Avenatti must have had access to SARs is here.
  7. To understand bribery, we highly recommend this primer by Randall Eliason.
  8. Finally, please click here to check out Thomas’s May 19 talk in New Orleans.

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Facebook:  https://www.facebook.com/openargs/

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OA171: Andrew Seidel Joins the Five-Timers Club

Today’s episode welcomes back one of our favorite guests — and the show’s only five-time guest, Andrew Seidel, attorney with the Freedom From Religion Foundation.

Together, Andrew, Andrew, and Thomas tackle a bunch of church and state separation issues.  First, they break down Andrew Seidel’s recent success in convincing the New Jersey Supreme Court to strike down a grant program that spent taxpayer dollars rebuilding churches and saved the citizens of New Jersey more than a quarter of a billion dollars!

Then, the gang does a deep dive into a pending law in Kansas that would permit adoption agencies within the state to discriminate on the basis of sexual orientation (or anything else that offended the organization’s… wait for it… sincerely-held religious beliefs).

Finally, we end with the answer to Thomas (and Andrew!) Take The Bar Exam question #74 about the admissibility of evidence.  Don’t forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

Andrew was the recent guest masochist on Episode 141 of the God Awful Movies podcast, reviewing “Cries of the Unborn.”  Check it out!

Show Notes & Links

  1. Click here to read the Morris County Opinion discussed during the “A” segment.
  2. And if you want to see the legislative notes from the Kansas adoption bill, you should click here.
  3. We broke down the Masterpiece Cakeshop case in Episode 105, and you can follow along with the guys by reading the transcript of the Masterpiece Cakeshop oral argument before the Supreme Court!
  4. If you love Andrew Seidel, you might want to go back to his  FOUR previous appearances on the show, Episode 82 (on Trinity Lutheran), Episode 85 (which was originally a Patreon-only exclusive),Episode 111, and most recently, Episode 131.
  5. Finally, please consider supporting the Freedom From Religion Foundation.

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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OA170: All Yodel, All the Time

Well, it’s another Rapid Response Friday, and we’re here with everything you need to know about Yodel Mountain, including:

  • Breaking news regarding the wiretap of Michael Cohen’s office several weeks before the search warrant issued and that the SDNY has at least one conversation between Cohen and Trump
  • Rudy Giuliani’s rather bizarre appearance on Hannity, during which he admitted that President Trump is DD and paid Michael Cohen back for the $130,000 in hush money paid to Stormy Daniels — directly contradicting the President’s own earlier statement
  • Whether the repayment scheme alleged by Giuliani (a) makes sense and/or (b) constitutes money laundering
  • The “leaked questions” regarding Mueller’s efforts to interview Trump
  • Trump’s decision to replace Ty Cobb with Emmett Flood
  • The House Freedom Caucus’s efforts to impeach Deputy Attorney General Rod Rosenstein; and, of course
  • Stormy Daniels’s latest defamation lawsuit against President Trump

Our tip to journalists — the  question you want to ask is “What ‘information’ does Stormy Daniels have under Paragraph 2.1 of the Agreement?”

Finally, we end with an all new Thomas (and next week’s guest Andrew Seidel) Take The Bar Exam #74 that’s not about real property, but is instead about the rules of evidence and whether a particular line of questioning is permissible.  If you’d like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

Andrew was just a guest on Episode 141 of the God Awful Movies podcast, reviewing “Cries of the Unborn.”  Check it out!

Show Notes & Links

  1. We first discussed how unhinged Rudy Giuliani is way back in Episode 13, “Hillary Clinton’s Damned Emails” — which is one of our all-time favorites.
  2. This is the not-to-be-missed Laura Ingraham reaction video to Giuliani’s Hannity appearance, which led to this set of tweets from the President.
  3. The money-laundering statute is 18 U.S.C. § 1956.
  4. This is the New York Times article we mentioned that breaks down the political implications of the switch from Cobb to Flood, and here is the list of questions Mueller wants to ask Trump.
  5. Finally, this is the Stormy Daniels defamation complaint.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

Facebook:  https://www.facebook.com/openargs/

Don’t forget the OA Facebook Community!

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OA169: Wells Fargo Goes To Jail?

Today’s episode discusses the recent fines levied against Wells Fargo in connection with two specific acts of egregious fraud against consumers.  Is it enough?  Is it proof that Trump (and Mick Mulvaney) intend rigorous defense of consumers at the CFPB?  Listen and find out!

First, we delve into a grab bag of items, beginning with a heartfelt apology and Andrew Was Wrong regarding trans language.  Next, we deal with a couple of wacky legal cases, before settling in on a bevy of new gun control laws passed in Maryland.  Phew!

Then, we move into a discussion of Trump v. Hawaii, which was argued before the Supreme Court last week.  What’s the latest on the Travel Ban?

After that, our “C” segment breaks down everything Wells Fargo.

Finally, we end with the answer to Thomas Takes the Bar Exam Question #73 about lessees, assignees, and joint and several liability.  Don’t forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

As this show comes out, Andrew was the guest masochist on Episode 141 of God Awful Movies; check it out!

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. From our grab bag:  here is a link to the Kobach memo that’s PROBABLY NOT WORTH ARGUING; this is the New York Post report on the hilarious Make America Great Again bar lawsuit; and this is the link to all the gun control bills passed in Maryland.
  2. We first discussed outgoing Federal Reserve Chair Janet Yellen’s cease-and-desist order against Wells Fargo back in Episode 146.  The current enforcement action by the OCC can be read here.
  3. We first discussed Trump’s (then only proposed) Muslim ban way back in Episode #16, when the conventional wisdom was that it was so unthinkably awful it might lead the Republican Party to replace him at the top of the ticket.  Ah, good times.
  4. Since then, we’ve discussed the legality of the ban again (in Episode 39), the 9th Circuit’s ruling on EO-1 (in Episode 43), and, most recently, the status of OA-2 in Episode 114.  In this episode, we cite to the Government’s reply brief before the Supreme Court.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

Facebook:  https://www.facebook.com/openargs/

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com



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OA168: Michael Cohen Takes Five

In the main segment, we discuss the intersection between the Paul Manafort criminal trial and the public’s right to know about the Mueller investigation.  Oh, and … isn’t there a bill pending to protect Mueller?  We break down that, too.

But we’re not done!  After that we delve into all things Michael Cohen, including his efforts to stay the California civil suit and his less-than-likely efforts to stay out of criminal trouble in New York.  If you love Stormy Daniels — and who doesn’t? — you won’t want to miss it.

Finally, we end with an all new Thomas Takes The Bar Exam #73 about landlord-tenant-friend relationships.  If you’d like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess.  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. From our grab bag:  here is a link to the Kobach memo that’s PROBABLY NOT WORTH ARGUING; this is the New York Post report on the hilarious Make America Great Again bar lawsuit; and this is the link to all the gun control bills passed in Maryland.
  2. Click here if you want to read the Comey memos.
  3. We first discussed the Manafort trial back in Episode 118; this is the Government’s Memorandum in Opposition to Manafort’s Motion to Suppress, and here is the press motion to unseal portions of the Mueller investigation.  Oh, and this is Morrison v. Olson, 487 U.S. 654 (1988), discussed during the show.
  4. Here’s the link to the Washington Post article reporting that Trump has conceded that Michael Cohen “represents me with this crazy Stormy Daniels deal.”  In this segment, we discuss Kastigar v. U.S., 406 U.S. 441 (1972).
  5. Finally, you can click here to read the government’s status report filed in Cohen’s New York investigation.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

Facebook:  https://www.facebook.com/openargs/

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com



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OA167: Neil Gorsuch, Secret Liberal?

Today’s episode tackles the recent (and shocking) Supreme Court decision in which Neil Gorsuch voted with the Court’s liberal justices to produce a very unusual 5-4 alignment.  Is this a sign that Gorsuch isn’t the right-wing hack we all thought he was?  Listen and find out!  (Hint:  No.)

After that, we break down the 6th Circuit’s recent opinion in EEOC v. R.G & G.R. Harris Funeral Homes, Inc., the first decision of its kind recognizing that discrimination on the basis of an individual who is transgender or transitioning violates Title VII of the Civil Rights Act of 1964.

After that, we answer a listener question about selecting a contingent fee attorney and discuss some of the actual pitfalls as well as misconceptions about those lawyers who take “no money down!”

Finally, we end with the answer to Thomas Takes the Bar Exam Question #72 about real property and the transfer of a deed.  Don’t forget 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. We first warned you about Neil Gorusch way back in Episode 40, and we’re definitely not backing down now.  If you want to check out his concurrence, you can click here to read the Supreme Court’s decision in Sessions v. Dimaya.  And, as we discussed on the show, the should-have-been-straightforward holding of this case stems directly from the Court’s prior opinion in Johnson v. United States.
  2. You can read the 6th Circuit’s recent opinion in EEOC v. R.G & G.R. Harris Funeral Homes, Inc., and for more coverage of Title VII, check out our discussion of Hively v. Ivy Tech from Episode 60, as well as our most recent update in Episode 152.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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Don’t forget the OA Facebook Community!

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OA166: The Taint Team (& Also, Alex Jones)

In this rapid-response episode, Thomas and Andrew take a look at the attorney-client privilege issues relating to the FBI’s search of the offices of Michael Cohen, alleged lawyer to Donald Trump and… Sean Hannity?!?

First, we begin with a finishing move from one of our pro wrestler listeners, updating our story that we first covered in Episode 163.  (Is it the Million Dollar Dream?  Listen and find out!)

In the main segment, we break down all that happened (and all that’s yet to come!) in the ongoing legal case against Michael Cohen we first discussed in Episode 164.  How strong is Cohen’s argument that he’s entitled to protect the privilege of his legal clients?

After that, we take a  look at three lawsuits against Alex Jones and InfoWars and start the discussion about what to do about blatantly false, politically-motivated conspiracy theories.  Are defamation lawsuits the answer?

Finally, we end with an all-new TTTBE #72 about real property law.  If you’ve ever thought about playing along, just retweet our episode on Twitter or share it on Facebook along with your guess.  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. We first discussed the search of Cohen’s offices in Episode 164.  You can read Michael Cohen’s Motion for TRO, which was denied on Monday April 15, as well as his revised request for a special master, which remains pending.
  2. This is the Gilmore Complaint filed and Alex Jones, and here is a New York Times story on the other two defamation complaints filed by parents of victims of the Sandy Hook shooting.

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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