OA341: Articles of Impeachment (& Espionza)

Today’s episode breaks down the Articles of Impeachment currently being debated in the House Judiciary Committee. Find out Andrew’s disappointment, the hidden clause that lets the Senate consider Mueller evidence (if they want), and what these articles can’t let the Senate evaluate in determining whether to impeach Trump. You won’t want to miss it! Oh, and also, you’ll get a mini-deep-dive on the Espinoza decision and so much more!

We begin with an important listener question about whether Donald Trump could plead the 5th Amendment during the impeachment process. The answer might surprise you — and you’ll enjoy the deep dive into the Constitutional protections against self-incrimination.

Then, during the main segment, we tackle the two articles of impeachment in depth, evaluating what crime(s) the articles consider, how they respond to the Republican arguments, and much, much more.

After that, we’re excited to bring you a segment in which law students can win up to $10,000 in an essay-writing contest that also gives you a chance to make a real difference in a case pending before the Supreme Court, Espinoza v. Montana Dep’t of Revenue.

Then, of course, it’s time for another #T3BE, this time about a homeowner who paints over some water damage. Is there a viable reason for the buyer to rescind the contract, or is it “buyer beware”? Listen and play along on social media!

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. Our opening segment discusses the 1957 Supreme Court case of Watkins v. U.S. and also references this 1956 law review article.
  2. Our omnibus impeachment explainer is Episode 319 (you can also read the transcript for that episode).
  3. This is the text of Rep. Nadler’s proposed two articles of impeachment.
  4. Finally, if you’re a law student, please do check out the FFRF essay contest! Resources: (a) Art. X, Sec. 6 of the Montana Constitution; (b) Montana Code Ann. § 15-30-3101 et seq.; and (c) the FFRF amicus brief in Espinoza.
  5. Also, don’t forget that we broke down Trinity Lutheran before the Supreme Court ruled way back in Episodes 14, 17, and 18, and then dissected the travesty of an opinion in Episodes 82 and 85. Phew!

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!



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OA340: OA and Serial, or, Why the Supreme Court Denied Cert in Syed v. Maryland

Perhaps against our better judgment, we once again return to the Adnan Syed case narrated so beautifully in season 1 of Serial. If you haven’t heard our take on the case itself, you might want to go back and listen to Episode 107. Today, we’re not discussing the underlying merits but rather what the Maryland Court of Appeals ruled and why the Supreme Court declined to review that decision. Love us or hate us, if you love Serial, you won’t want to miss this episode!

We begin, however, with a look at how President Trump has reshaped the federal courts by the numbers. Is it as bleak as some sources say? Or is there merit to the counter-argument that Trump isn’t doing anything much differently than his predecessors — it’s just that we’re in the middle of his Presidency, so of course his effect is outsized. We delve beneath the op-eds to tell you what the cold hard facts are.

Then, it’s time to describe exactly what’s happened to Adnan Syed in the courts since Serial, culminating with a 4-3 decision in the Maryland Court of Appeals that was left undisturbed by the Supreme Court when they denied certiorari last week. What does it all mean? We break it down for you.

After that, it’s time for a bonus mini-“Breakin’ Down the Law” segment integrated with Thomas’s fiendishly hard #T3BE question. If you’ve ever wondered about motions for new trials and Rules 59 and 60 of the Federal Rules of Civil Procedure, well, this is the show for you!

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 broke down the Adnan Syed case (and Serial‘s portrayal of it) in Episode 107.
  2. You can check out the Brookings article we referenced (“Trump Has Reshaped the Judiciary But Not As Much As You Might Think”).
  3. For the Maryland Court of Appeals opinion (State v. Syed), click here. Then you can read Syed’s cert petition, the State’s response, and Syed’s reply. Ultimately, the Supreme Court just denied the petition without comment.\
  4. Finally, the underlying case we discussed regarding ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984).

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!



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OA339: Who is Jonathan Turley, Anyway?

Today’s episode is a timely impeachment-themed deep dive into the testimony of George Washington University law professor — and legitimate legal scholar — Jonathan Turley before the House Judiciary Committee. How should you evaluate his arguments? We walk you through them, of course!

We begin, however, with a new segment: the Wingnut Lightning Round(TM), in which we evaluate — or rather, make fun of — two preposterous new lawsuits filed this week by two complete idiots.

After that, it’s time for an #AndrewWasWrong about Ronald Burris, the interim Senator nominated by Rod Blagojevich to fill Barack Obama’s unexpired Senate seat. Find out the twists and turns to this rather fascinating story as a side bonus to Andrew’s well-deserved comeuppance.

Then, it’s time for the main segment: the news that the House is going to draft articles of impeachment against President Trump despite the testimony of Jonathan Turley. How do the lone Republican-called witness’s arguments stack up? (Hint: they’re not good.) Surely the Republicans wouldn’t have called someone who’s on the record saying the exact opposite of what he’s presently saying 20 years ago, right? (Guess.)

After all that, it’s time for a fiendishly hard #T3BE about a trial, a videotape, and a jogging plaintiff. You won’t want to miss it — and you’ll want to play along!

Appearances

Thomas was just the main guest on Episode 498 of the Cognitive Dissonance podcast, and Thomas and Andrew make additional appearances to roast and be roasted for Vulgarity for Charity. 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. Oh man, you just have to read batshit-crazy Rep. Devin Nunes’s eleventy million trillion dollar lawsuit against CNN.
  2. For more of the Roland Burris story, check out Wikipedia.
  3. Click here to read Turley’s testimony for yourself.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!



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OA338: Nondelegation and the “Administrative State”

Today’s episode takes a deep dive into the nondelegation doctrine in light of a recent Kavanuagh comment on a case… in which the Supreme Court didn’t even grant certiorari. Is Andrew panicking? (No.) Listen and find out why not!

We begin, however, with a brief Andrew Was Wrong on taxation that calls back to OA 336. How exactly is stock income taxed? Listen and find out!

Then, it’s time for the main segment, which is a deep dive into the “administrative state” and specificially the “nondelegation doctrine” at issue in U.S. v. Gundy. Why did this last week signal the beginning of the end for Andrew & Thomas? Listen and find out!

After all that, it’s time for a listener question/comment on LIHEAP that helps contextualize how this program works in low-income communities. You won’t wan’t to miss it!

Then, of course, it’s time for #T3BE — the answer to Thomas Takes the Bar Exam #155 about a tenant who takes possession of an apartment only to find the previous tenant still inside. How can.. the landlord win? Listen and find out!

Appearances

Thomas was just the main guest on Episode 498 of the Cognitive Dissonance podcast, and Thomas and Andrew make additional appearances to roast and be roasted for Vulgarity for Charity. 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 an update on Chevron deference, check out our Episodes 40 and 136.
  2. In terms of Auer deference, check out our explainers in Episode 266 and 293.
  3. To get up to speed on the nondelegation doctrine, read Gundy v. U.S., 139 S.Ct. 2116 (2019).

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!



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OA337: How to Talk to Your (Republican) Family About Impeachment

Share this episode with your (open-minded) Republican friends, family, and co-workers! We’re happy to bring you this Thanksgiving Special a day early in which we break down the latest “trial balloon” defense of Trump’s conduct: that Trump was actually encouraging a legitimate investigation into a top-secret conspiracy in Ukraine to hack the DNC servers in 2016 and throw the election to Hillary Clinton. If you don’t know what “CrowdStrike” and “Chalupa” mean, you won’t want to miss this one!

We begin on that key issue, breaking down the sole legal issue at stake in impeachment — bribery — and exactly what Congress needs to show in order to impeach and remove the President from office. From there, we turn to the next likely defense from Trumpland and explain exactly why it is bananas-in-pajamas-level bonkers.

After that lengthy breakdown, it’s time to check in on the status of various lawsuits seeking to compel witnesses to appear before various House committees. What’s going on, and is there any cause for optimism? Listen and find out!

Then, as always, it’s time for #T3BE, in which Thomas tackles a curious fact-pattern involving a landlord, a new tenant, an old tenant who won’t move out, and a surprising legal result. Can he figure out why? Can you?

Appearances

Thomas was just the main guest on Episode 498 of the Cognitive Dissonance podcast, and Thomas and Andrew make additional appearances to roast and be roasted for Vulgarity for Charity. 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. Please do participate in our favorite charity event of the year, Vulgarity for Charity! To participate, just donate $50 or more to Modest Needs, and then send a copy of the receipt to vulgarityforcharity@gmail.com along with your request for a roast. You can even request that Thomas & Andrew roast the victim of your choice.
  2. We broke down Amb. Sondland’s testimony in Episode 335. But don’t just take our word for it! You can read the federal bribery statute, 18 U.S.C. § 201(b)(2), for yourself and figure out what it takes to prove bribery.
  3. We also cited to (a) ADNI Joseph Maguire’s testimony before Congress; (b) the whistleblower’s complaint (which we previously broke down in Episode 318 and a special bonus episode); (c) internal evidence as reported in the New York Times that Trump’s lawyers briefed him on the whistleblower complaint in late August, before aid to Ukraine was restored; (d) the TELCON (edited transcript) of the July 25 Trump-Zelensky call released by the White House; (e) the CrowdStrike report from their own website; (f) Trump’s April 2017 press interview in which he began peddling the CrowdStrike conspiracy; (g) Fiona Hill’s opening statement in her testimony to Congress; (i) the reporting surrounding Sen. Kennedy’s appearance on Fox News Sunday; (j) the 2017 Politico story upon which Sen. Kennedy purported to rely; and (k) Vol. 2 of the Senate Intelligence Committee Report on the 2016 Election, authored by Republican Sen. Richard Burr (R-NC). Phew!
  4. In the closing segment, we referred to Rubin v. U.S., 524 U.S. 1301 (1998).

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!



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OA336: Warren’s Wealth Tax & a CRA for SCOTUS?

Today’s episode takes a deep dive into Elizabeth Warren’s wealth tax. Is it constitutional? How will the arguments shape up? Listen and find out!

We begin, however, with an interesting proposal for a “Congressional Review Act” for the Supreme Court by law professor — and professional Supreme-Court-fixer — Ganesh Sitaraman. Will this proposal meet with more approval than Sitaraman’s previous “lottery” idea?

Then we do a deep dive into the history of taxes in this country, looking at two very old cases — one from 1895 (Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429), and one from way back in 1796 (Hylton v. U.S.). We also cover the Wilson-Gorman Tariff Act of 1894, as well as check in on the most recent Supreme Court tax ruling from Chief Justice John Roberts, the NFIB v. Sebelius 2012 Obamacare decision.

What do we learn from all that? Well, you’ll just have to give it a listen!

After all that, it’s time for the answer to what some are calling the easiest #T3BE question ever about falling off a ladder. Are they right? Was Thomas? There’s only one way to know for sure!

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. Please do participate in our favorite charity event of the year, Vulgarity for Charity! To participate, just donate $50 or more to Modest Needs, and then send a copy of the receipt to vulgarityforcharity@gmail.com along with your request for a roast. You can even request that Thomas & Andrew roast the victim of your choice.
  2. You can read Prof. Sitaraman’s latest article in The Atlantic suggesting a “Congressional Review Act for the Supreme Court.” (We previously broke down the Congressional Review Act way back in Episode 61.)
  3. We last touched on Prof. Sitaraman’s “How to Save the Supreme Court” lottery proposal somewhat less favorably in Episode 294.
  4. Head on over to Elizabeth Warren’s campaign site to read her “Ultra-Millionaire Tax” proposal.
  5. Resources for tax law: Hylton v. U.S. (1796); Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 (1895), and NFIB v. Sebelius (2012).
  6. Finally, you can check out the scholars letters submitted in support of Warren’s tax plan as well as the Johnson & Dellinger law review article, “The Constitutionality of a National Wealth Tax.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!



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OA335: This Week in Impeachment

Today’s episode breaks down the significance of a packed week in Republican witness testimony before the House Intelligence Committee about the potential impeachment of Donald Trump. We continue to place everything in the context of proving that Donald Trump committed impeachable bribery in violation of 18 U.S.C. § 201(b)(2), including evaluating the (increasingly desperate) defenses being raised by House Republicans.

We begin, however, with a slight Andrew Was Wrong and some really interesting listener feedback about the 2019 Ukraine election.

Then, it’s time to take a look at the week in impeachment, with a particular focus on Amb. Gordon Sondland, a Trump donor who was hand-picked to help run the “shadow foreign policy” in Ukraine, and exactly why he’s such a devastating witness. We also tease apart the legality of the OMB hold and the crafting of the narrative to show the elements of bribery.

Then, it’s time for a brief update on the Trump v. Mazars litigation and the significance of the administrative hold put in place by the Supreme Court. Does that mean John Roberts is 100% in the tank for Trump? (No.)

After all that, it’s time for a NEW ERA in #T3BE as we move to a new set of questions! This one asks about a potential lawsuit for a guy who falls off his ladder. Did Thomas get it right? Listen and find out — and play along with us on social media!

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. Please do participate in our favorite charity event of the year, Vulgarity for Charity! To participate, just donate $50 or more to Modest Needs, and then send a copy of the receipt to vulgarityforcharity@gmail.com along with your request for a roast. You can even request that Thomas & Andrew roast the victim of your choice.
  2. Remember that this is all about Trump’s bribery in violation of 18 U.S.C. § 201(b)(2).
  3. Oh, the lies! We debunked the insane “the government secretly changed the whistleblower form” conspiracy back in Episode 320 and even created a handy link for you to share with Uncle Clarence to help convince him!
  4. On Trump v. Mazars, you can check out Trump’s brief requesting a stay and the order issued by Chief Justice Roberts.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!



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OA334: IVF, LIHEAP & the Russians

Today’s episode features a deep dive into what used to be a core Republican program, the Low-Income Home Energy Assistance Program, or LIHEAP. Did you know that every year, over a thousand people — most of them with homes — freeze to death in the U.S.? Did you know that both political parties used to want to do something about that?

We begin, however, with some listener feedback from our popular recent Episode 330 in which we broke down a recent decision by the Connecticut Supreme Court regarding “pre-embryos” and in vitro fertilization (IVF). Hear from a published scientist and an IVF mom!

Then, it’s time for our deep dive into LIHEAP, 42 U.S.C. § 8621 et seq. You’ll learn all about the problem of home heating in this country and what we do about it… at least for now. You’ll also learn exactly how much the Trump administration would like to fund this program, which you won’t be surprised to learn is $0.

But that’s not all! Our “C” segment features a lengthy explanation from election law expert Beth Kingsley who answers the question “Could Donald Trump just hire Vladimir Putin to work on his 2020 re-election campaign if he discloses it?” The answer is more complicated than you’d expect and just might surprise you.

After all that, it’s time for the answer to Friday’s #T3BE 153 about the admissibility of a doctor’s note in court. Will Thomas get this one right?? Listen and find out!

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. Please do participate in our favorite charity event of the year, Vulgarity for Charity! To participate, just donate $50 or more to Modest Needs, and then send a copy of the receipt to vulgarityforcharity@gmail.com along with your request for a roast. You can even request that Thomas & Andrew roast the victim of your choice.
  2. We discussed both the IVF decision and the election hypothetical back in Episode 330.
  3. You can read the LIHEAP law for yourself; it’s 42 U.S.C. § 8621 et seq. The data we discussed on the episode comes from Olivia Wein’s study, and the funding numbers come from this government document.
  4. This is the link to the FEC’s guidance we discussed in the “C” segment.
  5. Finally, check out an actual IVF contract, thanks to Valerie Smith!

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!



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OA332: Your Two New Best Friends, Bill Taylor and George Kent

Today’s episode ran so long that we’re going to give you a BONUS episode tomorrow. What did we get through? Well, we break down almost everything about the first day of televised public hearings in the House of Representatives’ impeachment inquiry. You absolutely, positively do not want to miss this!

We begin, however, with a plug for our favorite charity event of the year, Vulgarity for Charity! To participate, just donate $50 or more to Modest Needs, and then send a copy of the receipt to vulgarityforcharity@gmail.com along with your request for a roast. You can even request that Thomas & Andrew roast the victim of your choice.

After that, it’s time to tackle a wide variety of legal topics related to the Taylor and Kent testimony, including: (a) how their testimony fits into the elements of the crime of bribery; (b) the Republicans’ evolving defenses of Donald Trump; (c) the two lawyers picked to handle the bulk of the questioning; and much, much more.

Along the way, we also discuss the significance of the D.C. Circuit’s en banc refusal to rehear the subpoena decision in Trump v. Mazars and what comes next, as well as the status of Mick Mulvaney’s continuing efforts to defy the Congressional subpoenas.

After all that, it’s time for a milestone #T3BE involving hearsay and expert witness testimony.

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. Please do participate in our favorite charity event of the year, Vulgarity for Charity! To participate, just donate $50 or more to Modest Needs, and then send a copy of the receipt to vulgarityforcharity@gmail.com along with your request for a roast. You can even request that Thomas & Andrew roast the victim of your choice.
  2. Remember: this is about bribery, 18 U.S.C. § 201.
  3. This is the transcript of Sen. Kennedy on Face the Nation.
  4. In terms of dirty tricks, here’s the link to Taylor’s closed-door deposition, where Castor outed the whistleblower, and here’s a link to his laughing during Fiona Hill’s deposition.
  5. BONUS! Here’s the Politico article we rip apart in Episode 333 (“There’s a Surprisingly Plausible Path to Removing Trump From Office”) and… god help me.. the National Review article that actually gets it right.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!



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