OA191: Fact and Fiction About Brett Kavanaugh

Today’s Rapid Response Friday does not take a victory lap about our successful prediction that Brett Kavanaugh would be Donald Trump’s next nominee to the Supreme Court (but seriously, we called that right, y’all.)  Instead, Andrew and Thomas break down some of the current stories surrounding Kavanaugh to separate  fact from fiction and try and articulate the best mainstream case against confirming Kavanaugh to the Supreme Court.

In the pre-show, we give a shout-out to everyone who made the Opening Arguments Wiki possible — go check it out!  It’s amazing!

After that, Andrew Was Wrong returns with a clarification from Episode 187 where Andrew misspoke.  And also, the guys have a slight laugh at Andrew’s inability to pronounce locations of things.

The main segment tackles a bunch of current stories surrounding Judge Kavanaugh, including:  (1) the allegation that Judge Kavanaugh has concluded that sitting Presidents can’t be indicted; (2) the Yale open letter opposing his nomination; (3) a truly stupid article in The Hill arguing for a lawsuit to block Kavanaugh; (4) the potential conflict of interest with Kennedy’s retirement; and (5) the notion of “packing the Court” in 2020.  Phew!

Next, Andrew gives us an eight-second sneak peek at a court’s refusal to permit the Trump administration to modify the Flores settlement and why that’s good news.

Finally, we end with an all new Thomas Takes The Bar Exam #83 involving spousal privilege.  If you’d like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

Andrew was just a guest co-host on Episode 75 of the Skepticrat podcast; go check it out!  Also, Andrew will be discussing Judge Kavanaugh with conservative talk show host Chuck Morse.  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. For starters, here is the Tweet from Alexandria Ocasio-Cortez we criticized, along with the pretty funny humor piece from Andy Borowitz.
  2. You should definitely read Kavanaugh’s 2009 Law Review article “Separation of Powers During the Forty-Fourth Presidency and Beyond” in the Minnesota Law Review.
  3. This is the Yale Open letter.
  4. This is the dreadful Ken Levy article in The Hill that Andrew debunks.
  5. These are the actual Senate Rules, and remember that we broke down the “nuclear option” way back in Episode 59.
  6. On Anthony Kennedy’s negotations, check out Rule 3(C)(1) of the Code of Conduct for U.S. Judges, which we previously discussed in Episode 129.
  7. As homework for next week, read the Court’s order denying the Trump Administration’s request to modify the Flores settlement, which we first covered in Episode 184.
  8. Finally, NEVER ENDING FAME AND FORTUNE goes to:Paul Duggan, Zach Aletheia, Eric Brewer, Teresa Gomez, Andrew Hamilton, Robin Hofmann, and Beverly Karpinski-Theunis for creating the OA Wiki!

Support us on Patreon at:  patreon.com/law

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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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OA190: Good News, Everyone! (On Abortion Rights & More)

Today’s episode — at long last — brings us some good news from two rather unlikely sources:  first, from the state of Iowa (regarding abortion rights), and second, from the Republican-controlled Senate Intelligence Committee.  You won’t believe your ears!

We begin, however, with a segment that’s good news for everyone except Andrew:  yes, it’s the ever-popular Andrew Was Wrong.  This time, Andrew owns up to a serious mistake regarding the fingerprinting regulations at the border, and an almost-as-serious mistake regarding the bustling metropolis of Olathe, Kansas.

In the main segment, Andrew breaks down Planned Parenthood v. Reynolds, a recent state supreme court opinion invalidating a 3-day waiting period (with other onerous restrictions on abortion) that provides optimism and a way forward for progressives as we prepare for decades of a right-wing federal judiciary.  Find out how states can protect reproductive freedom and abortion rights separate from the U.S. Supreme Court.

After that, it’s time for a return trip to Yodel Mountain, where we check in on the Senate Intelligence Committee’s endorsement of the joint agency report from January 2017 concluding that the Russian government deliberately interfered in the US elections with a strong preference for Donald Trump to Hillary Clinton.

Finally, we end the answer to Thomas Takes The Bar Exam #83 regarding the tort of assault and an unloaded firearm.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

Andrew was just a guest co-host on Episode 75 of the Skepticrat podcast; go check it out! And if you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. Click here to read the Planned Parenthood v. Reynolds opinion.
  2. For future activism, click this link to determine whether your state has elected or appointed state supreme court judges.
  3. The Intelligence Community Assessment is here; you can also read the Senate Intelligence Committee’s report validating that assessment here.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com



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OA189: Supreme Court Justice Brett Kavanaugh

Today’s Rapid Response Friday gives you a sneak preview of what to expect from the person we predict will become Donald Trump’s next nominee to the Supreme Court, Brett Kavanaugh of the United States Court of Appeals for the D.C. Circuit.

We discuss:

  • Why it’s likely to be Kavanaugh and not any of the other rumored contenders, especially flavor-of-the-minute Amy Coney Barrett
  • Kavanaugh’s view of the First Amendment’s establishment clause and the future of Lemon v. Kurtzman
  • Kavanaugh’s views on abortion
  • How Kavanaugh differs (and how he doesn’t!) from Neil Gorsuch when it comes to Chevron deference
  • The weird conservative hit squad out to get Kavanaugh
  • And much, much more!

After all that, we end with an all new Thomas Takes The Bar Exam #83 involving assault with an unloaded gun.  If you’d like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

Thomas was just a guest on Episode 421 of the Cognitive Dissonance Podcast.  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. If you want a head start on Tuesday’s show, check out the just-released Senate Select Committee on Intelligence report.
  2. This is the Notre Dame speech/law review article in which Kavanaugh lays out his judicial philosophy and essentially auditions for the Supreme Court.
  3. We discussed the following cases:  Good News Club v. Milford Central School, 533 U.S. 98 (2001), Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), Priests for Life v. Department of Health & Human Services, 808 F.3d 1 (D.C. Cir. 2015) (en banc), Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017) (en banc), United States Telecom Ass’n v. FCC (D.C. Cir., 2017) (en banc), PHH v. Consumer Financial Protection Bureau, 881 F.3d 75 (2018) (en banc), Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir 2011), and Heller v. D.C., 670 F.3d 1244 (D.C. Cir. 2011)!
  4. Right-wing weirdo roundups:  Here’s the National Review endorsement of Kavanaugh; this is the truly bizarre Jacobs piece in The Federalist; and here is the Federalist Society’s own rebuttal.
  5. Finally, a preemptive Andrew Was Wrong:  Here’s Raymond Kethledge’s University of Michigan address on how bad Chevron deference is.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

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OA188: Three Cases About Voting Rights

Today’s episode takes a look at three recent decisions from this Supreme Court and how each one will affect voting in the midterm elections:  Husted v. Randolph Institute, Abbott v. Perez, and (surprisingly) Janus v. AFSCME.

First, though, we begin by addressing a conspiracy theory that’s making the rounds suggesting some nefarious relationship between Anthony Kennedy’s son, Justin, and Donald Trump.  Does this story hold water?  Listen and find out!

Then, we break down each of the three cases:  Husted, involving Ohio’s efforts to purge voters from its rolls; Abbott, involving Texas’s efforts to racially gerrymander Congressional districts; and Janus, which will result in drastically weaker public sector unions.  What does this mean for the midterms?  (Hint: it’s not good.)

Finally, we end the answer to Thomas Takes The Bar Exam #82 regarding the search and seizure of heroin from plain sight.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

Thomas was just a guest on Episode 421 of the Cognitive Dissonance Podcast.  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. If you missed last year’s Fourth of July Spectacular, that was Episode 83.
  2. You can read the Liptak & Haberman New York Times article about Trump and Kennedy by clicking here.
  3. The Ohio case is Husted v. Randolph Institute, and the Texas cdase is Abbott v. Perez.
  4. Before you read Janus v. AFSCMEyou may want to check out our extensive coverage of the case back in Episode 150.
  5. The statute the 5-4 majority blatantly ignores in Abbott is 28 U.S.C. § 1253.
  6. Finally, this is the research Andrew mentioned regarding the correlation between right-to-work states and lower voter turnout and lower Democratic share of the vote.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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Don’t forget the OA Facebook Community!

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OA187: Lowering the Lukumi Bar?

Today’s Bonus Episode asks if there’s a way to make sense of the Supreme Court’s Lukumi jurisprudence in light of this week’s rulings in Trump v. Hawaii (the Travel Ban), Masterpiece Cakeshop, and the somewhat surprising decision to remand the Arlene’s Flowers case back to the state of Washington.

We begin, however, by checking in with the Southern District of New York’s Order approving the Taint Team’s review of documents seized from Michael Cohen’s offices by the Department of Justice.  How many documents did the Team recommend the Court withhold as privileged?  The answer may surprise you!

After that, we revisit the thesis advanced by Andrew Seidel in Episode 180 that the Supreme Court’s decision in Masterpiece Cakeshop might result in a more vigorous application of its 1993 decision in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).

Next, we break down the Supreme Court’s 5-4 decision in NIFLA v. Becerra, in which the Court struck down a California law regulating so-called “crisis pregnancy centers.”

After all that, we end with an all new Thomas Takes The Bar Exam #82 involving the legality of a search for heroin.  If you’d like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

None!  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. Check out the Southern District of New York’s Order regarding Cohen’s meager haul of privileged documents.
  2. Andrew Seidel set forth his “Lukumi bar” thesis in Episode 180; you can read Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) for yourself and then compare it with both Trump v. Hawaii and Masterpiece Cakeshop.
  3. We discussed Planned Parenthood v. Casey at length in a two-part series:  Episode 27 and Episode 28; you might want to compare the statute approved in that case with the one struck down by the Court in NIFLA v. Becerra.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com



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OA186: Anthony Kennedy & the Future of the Supreme Court

Today’s Rapid Response Friday comes after a busy week at the Supreme Court, capped off by the (somewhat) surprising announcement that Associate Justice Anthony Kennedy intends to retire as of July 31, 2018.

We break down everything about this news, including:

  • What the Trump administration is likely to do next
  • Who President Trump might nominate to fill Kennedy’s spot
  • How the Democrats should respond
  • What the next Supreme Court might look like
  • How all of this plays in with the 2018 midterms and 2020 Presidential election
  • And much, much more!

We’re also going to bring you a bonus episode to make sure you’re fully informed as to all the other goings-on in the law this week!

After all that, we end with an all new Thomas Takes The Bar Exam #82 involving the legality of a search for heroin.  If you’d like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

None!  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. We broke down the “nuclear option” in Episode 59.  Mitch McConnell announced that the Senate would not recess for the summer on June 5.
  2. Here are the (generally reliable) Cook Political Report ratings of the 2018 Senate races.
  3. This is the Mother Jones article on Anthony Kennedy’s 2017-2018 votes.
  4. This is the list of Trump’s 25 potential Supreme Court nominees.
  5. These are the resources discussed in the future segment, including the When Every Vote Counts law review article, the Slate article on 5-4 splits, and the SCOTUSBlog data regarding the 2017-2018 term.
  6. Finally, if you’re feeling nostalgic, you might want to reread Obergefell v. Hodges while it’s still good law.  An d if you’re feeling super optimistic, you can even check out the “Above the Law” blog post arguing that it will survive Kennedy’s departure (it won’t).

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com



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OA185: Gerrymandering & Other Good (?) News

Today’s episode tries to put a positive spin on some recent developments, including the Supreme Court’s gerrymandering decisions, the Department of Justice OIG report on the 2016 election, and the triumphant return of Everyone’s Favorite Segment (TM):  “Are You A Cop?”

We begin with the Office of the Inspector General’s 2016 Election Final Report, which we modestly point out validates literally everything we said in one of our favorite Episodes, OA 13, “Hillary Clinton’s Damned Emails.”  There’s so much more to learn, so you’ll want to listen up!

After that, we tackle the main segment, looking for some good news out of the Supreme Court’s recent “decisions” on gerrymandering in Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland).  These 9-0 decisions are widely viewed as having punted on gerrymandering; is that right, and if so, what does the future hold?

After that, we tackle a trope that “everyone knows” in fan-favorite segment “Are You A Cop?”  This week, it’s that “everyone knows” cops can’t have sex with people in their custody, right?  RIGHT?  Well, thanks to one Democratic legislator in a deep red state, it’s now true in Kansas, at least.

Finally, we end the answer to Thomas Takes The Bar Exam #81 regarding a law designed to target two college professors who crafted campus hate speech codes.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

None!  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. We first discussed Hillary Clinton’s emails and the Comey investigation way back in Episode 13, and if you haven’t listened, you should check it out!  Then, compare what we said then to the just-released Office of the Inspector General’s 2016 Election Final Report.
  2. Our explainer on Gerrymandering is Episode 54; we then talk about the Wisconsin case in Episode 80 and the Maryland case in Episode 148.
  3. Of course, you can (and should!) read the Supreme Court’s recent decisions on gerrymandering in Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland).
  4. Here is the text of Kansas HB2621, which amends KSA Supp. 21-5512(a), defining “unlawful sexual relations.”  A “Severity Level 5 Person felony” is subject to 50-55 months in prison as per the Kansas Sentencing Guidelines.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com



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OA184: Families at the Border

Today’s Rapid Response Friday helps separate fact from fiction when it comes to the heartwrenching issue of families being separated at the border.  Is the Trump administration to blame?  Did the recent Executive Order fix the problem?  Listen and find out.

First, though, we bring back (almost) everyone’s favorite segment:  Andrew Was Wrong!  Specifically, Andrew was wrong when he predicted back in Episode 83 that Maajid Nawaz didn’t have much of a defamation case against the Southern Poverty Law center, and in Episode 84 that he didn’t have much leverage, either.  Well, both of those predictions looked foolish now that the SPLC has agreed to pay Nawaz $3,375,000 and issue an unconditional apology.

In the main segment, we break down Trump’s EO regarding separating families at the border and requesting a modification to the Flores v. Reno settlement.  It’s bad.  And if it weren’t bad enough, we also discuss the administration’s change in asylum policy.

After that, we discuss the Supreme Court’s recent opinion in Pereira v. Sessions.  Surely that can’t be bad news, too?  (Don’t call us Shirley.)

Finally, we end with an all new Thomas Takes The Bar Exam #81 involving the constitutionality of a state legislature retaliating against two professors for pushing campus speech codes.  Have we piqued your interest yet?  Listen and find out!  And if you’d like to play along , just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

Andrew was recently a guest on the David Pakman Show, with a two-part appearance discussing whether President Trump can be indicted and if so, whether he can pardon himself.  You can watch the video on YouTube.

Show Notes & Links

  1. We first discussed Maajid Nawaz’s legal threats in Episode 83 and Episode 84.  You can read the final Settlement Agreement for yourself as well as check out the SPLC’s apology to Nawaz.
  2. Click here to read the Snopes article conclusively debunking the political claim that this policy was put into place “by Democrats.”
  3. You can read Trump’s recent Executive Order and also check out the original 1997 Flores v. Reno settlement.
  4. The operative laws discussed during the main segment were:  8 U.S.C. § 1158 (asylum); 8 U.S.C. § 1325 (“improper entry by alien”); and, of course, 18 U.S.C. § 46 (“transportation of water hyacinths”).  You can also read the Attorney General’s Interim Decision #3929 on refugees for yourself.
  5. As promised, this is the full list of Class B federal misdemeanors.
  6. We also discussed this Washington Post article on refugees being turned away at the border.
  7. This is the Supreme Court’s recent opinion in Pereira v. Sessions.
  8. Finally, a secret Yodel for you folks who read the show notes:  here’s the link to the news that Michael Cohen’s fired his old lawyers (McDermott, Will & Emery) and hired a new one (Guy Petrillo).  What does this mean?  Only time will tell.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

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OA183: Dissenting on the Supreme Court

**Today’s episode is brought to you by Framebridge! To custom frame your favorite things, go to framebridge.com promo code: OA**

Today’s episode takes a deep dive into two recent 8-1 decisions by the Supreme Court:  Collins v. Virginia and Sveen v. Melin.  What makes a decision nearly unanimous, and what causes that lone Justice to dissent?  Listen and find out!

Our first 8-1 case involves two unique aspects of the 4th Amendment:  the “curtilage” exception and the “automobile” exception.  Which one takes precedence, why, and which Supreme Court justice vehemently disagreed?  Find out if you agree with Thomas — and whether the law is “a ass.”  (Seriously!)

Our second 8-1 case is Sveen v. Melin, which involves whether the state of Missouri can legislate certain presumptions regarding “governing instruments.”  It’s the Contracts Clause!  Seem arcane?  It won’t after you listen to our breakdown!

After that, we answer a fun listener question about how a law firm makes someone a partner in light of our assessment of the Eagan Avenatti law firm in Episode 181.

Finally, we end the answer to Thomas Takes The Bar Exam #80 regarding negligence per se and an impromptu ice rink.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

Andrew was recently a guest on the David Pakman Show, with a two-part appearance discussing whether President Trump can be indicted and if so, whether he can pardon himself.  You can watch the video on YouTube.

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. Click here to read the Supreme Court’s opinion in Collins v. Virginia, and here to check out Sveen v. Melin.
  2. The other decision Andrew referred to was the landmark case of Shelley v. Kraemer, 334 U.S. 1 (1948).

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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OA182: Paul Manafort is Going to Prison

**Today’s episode is brought to you by The Great Courses Plus! Go to thegreatcoursesplus.com/OA to start your free month!**

Today’s Rapid Response Friday spends a lot of time on Yodel Mountain, and in particular evaluating whether Paul Manafort is headed to prison for violating the terms of his pre-trial release as per 18 U.S.C. § 3148(b)(1)(A).  You’ll know soon enough, but we’re predicting that Paulie M is headed to prison.

Of course, no trip to Yodel Mountain has just a single stop, so we also discuss the late-breaking New York state lawsuit filed against Donald Trump, his kids, and the Trump Foundation; the status of the media’s efforts to unseal the Mueller documents, and much, much more!

After that lengthy trip to Yodel Mountain, we also update you on the recent court decision upholding the AT&T / Time Warner merger first discussed in Episode 128.

Finally, we end with an all new Thomas Takes The Bar Exam #80 which asks how a court would rule in a convoluted case involving car-washing, sudden deep freezes, and incompetent trial attorneys.  Have we piqued your interest yet?  Listen and find out!  And if you’d like to play along , just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

Andrew was recently a guest on the David Pakman Show, with a two-part appearance discussing whether President Trump can be indicted and if so, whether he can pardon himself.  You can watch the video on YouTube.

Show Notes & Links

  1. Click here to read the just-filed New York state lawsuit against Donald Trump, his kids, and the Trump Foundation.
  2. Here’s the government’s motion to revoke Paul Manafort’s pretrial release pursuant to 18 U.S.C. § 3148(b)(1)(A) ; here’s the superseding indictment; and here’s Manafort’s response to the government’s motion.  Witness tampering is a crime under 18 U.S.C. § 1512.
  3. You can read the primary case relied upon by Manafort’s lawyers, U.S. v. Edlind, 887 F.3d 166 (4th Cir. 2018) for yourself.
  4. A (federal) criminal motion for a “bill of particulars” is governed by Rule 7(f) of the Federal Rules of Criminal Procedure.  You can also check out Judge Jackson’s Order denying Manafort’s Motion for Bill of Particulars,
  5. We first discussed the press’s motion to unseal the Mueller investigation documents in Episode 168; now you can read the Media Coalition Response brief to the government and Manafort’s separate objections to unsealing the documents.
  6. We broke down the AT&T/Time Warner merger in Episode 128, and you can read Judge Leon’s Order Approving the Merger.

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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