All posts by lawpod

OA261: Sentencing Paul Manafort

Today’s extra-long episode contains your guide to all of the developments involving Paul Manafort over the past week.  What does it all mean and what can we expect next?  Listen and find out!

We begin, however, with a brief update on Episode 247 now that the Department of Defense has issued a Directive-Type Memorandum (DTM 19-004) implementing the ban on transgender service in the military.  With the help of some friends of the show, we break down the most pressing issues on the near horizon.

Then, it’s time for All Things Manafort (TM), which sneakily includes a deep dive into exactly how the U.S. Federal Sentencing Guidelines came into effect, when they were mandatory, how they became advisory, and what the hell happened in the Eastern District of Virginia.

But that’s not all!  After that, we have a discussion on when sentences should run consecutively versus concurrently, and how that interacts with Judge Amy Berman Jackson’s sentencing decision in Manafort’s DC case.

AND we also have breaking news regarding new state charges brought against Manafort as soon as both federal sentences were handed down.

And if that’s not enough for you, well, we end, as always, with a brand new Thomas Takes the Bar Exam Question #118 that’s a dreaded real property question.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

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. First discussed trans ban back in Episode OA: 247
  2. We were assisted by Alice Ashton – trans Arabic linguist who contributed to the Advocate article located here and by Deirdre Anne Hendrick.
  3. Here is a link to Directive-Type Memorandum (DTM) 19-004.
  4. This is the Feb. 22, 2018 Mattis directive.
  5. Here are the DSM-5 guidelines on gender dysphoria
  6. We first discussed the Sentencing Guidelines in Episode OA: 162.
  7. The accompanying statute is 18 U.S.C. §3553.
  8. For a primer on “variances” versus downward departures, check out the Sentencing Commission guidelines.
  9. Judge Ellis transcript can be found here.
  10. Concurrent/consecutive is governed by 18 U.S.C. § 3554.
  11. Manafort’s NY State indictment involves Residential Mortgage Fraud 1st degree (4 counts) under Penal Law § 187.25 and Falsifying Business Records 1st Degree (8 counts) under §175.10.
  12. We discussed Gamble v. U.S. in Episode Episode OA: 215.

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, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com



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OA260: Res Ipsa Loquitur

Today’s episode is inspired by a law student listener question about a recent Thomas Takes The Bar Exam hypothetical, and takes a deep dive into the wonderful and wacky world of res ipsa loquitur.   What does that even mean?  You’ll have to listen and find out!

We begin with a brief Andrew Was Wrong segment about Donald Trump and drone use, followed up by an Andrew Was Right segment about multiple states suing to block the implementation of Trump’s HHS regulations relating to Title X that we discussed in Episode 258.

Then it’s time for that deep dive into res ipsa loquitur that you didn’t know you wanted until now!

After all that, it’s time for some Bonus Tuesday Yodeling, in which we check in on Roger Stone’s “Motion to Clarify” that was denied by Judge Jackson and an update on the House Republicans’ hilariously misguided efforts to try and discredit Michael Cohen by pointing out that he sure seems to like to lie on behalf of his client.  You won’t want to miss it!

Then, it’s time for the answer to Thomas Takes The Bar Exam #117.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

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 a link to the Daily Beast article about Trump and drone strikes we teased in the opening segment.
  2. We’ve uploaded both Title X complaints:  the one filed by California as well as the multistate complaint.
  3. More on Title X:  click here for the actual law (42 U.S.C. § 300 et seq.); click here for the accompanying regulations (42 C.F.R. Part 59), and click here to read the new final rule promulgated by HHS regarding Title X.  And, of course, you can click here to read Rep. Cummings’s letter regarding the rule.
  4. This is Rep. Jordan’s “own goal” letter.
  5. Finally, here’s Judge Jackson’s Order regarding Roger Stone.

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, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com



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OA259: Your Guide to the Congressional Investigations

Today’s extra-long episode contains your guide to the Congressional Investigations, and specifically the 81 document requests sent out by Rep. Jerry Nadler to various Trump-related individuals and entities in connection with the Democratic Congress’s larger investigation into corruption, ties with Russia, and general criminal behavior by the administration.  What does it all mean?  Who are the key players?  Listen and find out!

We begin, however, with a brief Andrew Was Right — Michael Cohen is producing drafts of his Congressional testimony, which may support his claim that Trump’s personal lawyer, Jay “ACLJ” Sekulow edited his testimony to suborn perjury.

Then, it’s time for an in-depth look at the various documents requested by Rep. Nadler.  What does it all mean?  We break down the four major “buckets” of inquiries and tell you about some familiar faces… and some surprising new ones.

After that, it’s time to take a look into recent developments in the Jeffrey Epstein case and correct some reporting as to whether his non-prosecution agreement has really been torn up by the courts.  (It hasn’t.)

We end, as always, with a brand new Thomas Takes the Bar Exam Question #117 about the use of university space for a debate on affirmative action.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances
Andrew was just a guest host on Episode 91 of the Skepticrat; 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. Cohen to produce drafts of his testimony to Congress.
2. Congressional Investigations 162 documents served on 81 different people. Documents here:
3. Here’s a handy guide to who’s who in the investigation.
4. Here’s Hope Hicks’s documents request.
5. Here’s our tweet out to Rep. Nadler regarding Nader’s document requests:
6. Epstein. This is the text of the Crime Victims’ Rights Act of 2004, 18 U.S.C. § 3771.
7. Judge Marra’s ruling can be found 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!

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

And email us at openarguments@gmail.com



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OA257.5 Michael Cohen Testifies, Part 2

Today’s episode continues our breakdown of ex-Trump fixer Michael Cohen’s testimony before the House of Representatives and all the Yodel Mountain implications that stem from it that we started in Episode 257.  What’s next?  Listen and find out!

We begin where we left off — with Michael Cohen.  Find out how Cohen’s testimony (and documents) implicate our favorite legal genius, Stormy Daniels!

After that, it’s time to check in on Roger Stone’s former flunky, Andrew Miller, and his quixotic quest to undo the Mueller investigation.  That effort was just slapped down by the Court of Appeals for the D.C. Circuit, and we’ve got the full opinion covered for you.

Then, it’s time to check in on an odd development in the sentencing saga of Paul Manafort.  What does the government’s latest (redacted) filing portend?  We’re not entirely sure… but we want you to know what we know.

And then — after all that! — we  end with a brand new Thomas Takes the Bar Exam Question #116 regarding a rather odd traffic accident.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances
Andrew was just a guest on HBO’s Vice News!  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 documents Michael Cohen brought to Congress.
2. Marcy Wheeler’s article: How Trump Suborns Perjury.
3. DC Circuit’s opinion in Andrew Miller’s In Re: Grand Jury appeal.
4. Court’s sua sponte order.
5. Government’s sentencing memo in Manafort’s DC trial.
6. Manafort’s response memo.
7. Government’s Supplemental heavily redacted memo.

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, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com



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OA257: Michael Cohen Testifies, Part 1

Today’s episode breaks down ex-Trump fixer Michael Cohen’s testimony before the House of Representatives and all the Yodel Mountain implications that stem from it.  What’s next?  Listen and find out!

We begin, however, with an update on the American Legion v. American Humanist Association case where Andrew recently spoke at the AHA’s #HonorThemAll rally.

After that, it’s time to find out about Florida Rep. Matt Gaetz who attempted to intimidate Michael Cohen and… may have gotten into some legal trouble thanks to this show and it’s listeners!

Then, we begin breaking down the Cohen testimony… but there’s so much here to cover, we decided to  keep going for yet another hour, and you’ll get that tomorrow!

For the first time, we don’t end with a brand new Thomas Takes the Bar Exam Question, but you’ll get #116 tomorrow.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances
None!  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
1.18 U.S.C. § 1512  Tampering with a witness, victim, or an informant. (B) governs witness tampering
2. Gaetz timeline from The Washington Post
3. Florida Bar Rules of Professional Conduct Rule 4-8.4(d) “prohibits a lawyer from engaging in conduct that is prejudicial to the
administration of justice.”
4. Isaac Dovere at the Atlantic tweeting about Gaetz
5. Cohen is subject to 18 U.S.C. § 1001: Statements or entries generally (a)(2) “makes any materially false, fictitious, or fraudulent statement or representation; or”
6. 18 U.S.C. § 1622  Subornation of perjury
7. Marcy Wheeler’s article: How Trump Suborns Perjury
8. Here are the documents Michael Cohen brought to Congress
9. Kansas potential emoluments violation

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, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com



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OA256: The Bladensburg Cross

Today’s episode takes a deep dive into the Bladensburg Cross case currently pending before the Supreme Court with special guest Sarah Henry of the American Humanist Association.  You’ll learn that Andrew is going to speak at the AHA rally on Wednesday, February 27 right before oral arguments!

We bookend the interview with an Andrew Was Right segment about the recent Supreme Court ruling in Timbs v. Indiana first discussed back in Episode 234.

And on the back end, we briefly discuss Clarence Thomas’s bizarre and dangerous concurrence in McKee v. Cosby.  Did Justice Thomas really call for the reversal of New York Times v. Sullivan?  (Hint:  yes, yes he did.)

After all that, it’s time for the answer to Thomas Takes The Bar Exam #115 about whether you can use facts contained in settlement negotiations.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances
Andrew was just a guest on Episode 87 of the So Here’s My Story 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 check out the American Humanist Association.
  2. We first analyzed Timbs v. Indiana back in Episode 234.
  3. Click here to read Thomas’s concurrence in McKee v. Cosby., and here to brush up on the classic New York Times v. Sullivan.

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, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com



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OA255: Wall of Emergency

Today’s episode breaks down Trump’s recent declaration of a state of national emergency as a pretext to build his big, dumb wall.  What’s being done about it?  What can be done about it?  Listen and find out!

We begin, however, with a trip up Yodel Mountain to observe one of its most bizarre members, Roger Stone, who recently posted a “notice of apology” after having uploaded a picture to Instagram of Judge Jackson with a reticule nearby.  What does this mean for the gag order entered in his case?   We tell all — even before the court ruled!

Next, it’s time for our main segment about the wall.  Andrew breaks down exactly where the funding is going to come from, and details all the lawsuits to try and block it.  We end the segment, of course, with a (pessimistic) prediction.

Then, it’s time for even more yodeling.  Is the Mueller investigation really coming to an end? If so, what’s next?  And what about

We end, as always, with a brand new Thomas Takes the Bar Exam Question #115 about offers to compromise.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances
Andrew was just a guest on Episode 87 of the So Here’s My Story 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. Stone’s notice of apology.
2. Stone’s original partial gag order.
3. 18 U.S. Code § 1512: Tampering with a witness, victim, or an informant.
4. The Emergency Declaration.
5. The Presidential Border Security Victory Proclamation
6. Episode OA 243: BUILD THAT WALL!! where we first discussed states of emergency.
7. The Landowners lawsuit filed in DC, Sierra Club/ACLU lawsuit, and finally the California lawsuit filed by 16 states discussed in the show: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, and Virginia.
8. 31 U.S.C. § 9703 (TFF).
9. Department of the Treasury Forfeiture Fund.
10. 10 U.S. Code § 284 – Support for counterdrug activities and activities to counter transnational organized crime.
11. 10 U.S. Code § 2808 – Construction authority in the event of a declaration of war or national emergency – discussed in OA: 243 and “Military construction” defined in 10 U.S.C. § 2801(a).
12. Cummings report on Saudi Arabia.
13. Manafort sentencing discussed DC in OA 253: Religious Freedom and Domineque Ray
14. The transcript of Judge Jackson’s findings on Manafort’s lies
15. Manafort gets a 38 in the E.D.Va sentencing memo
16. Cohen to testify publicly before the House Oversight Committee on Feb. 27th.

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, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com



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OA254: Mueller, She Wrote!

Today’s episode features a long interview with AG, the spectacular co-host of the Mueller, She Wrote podcast.  She helps break down everything in the news that’s Yodel Mountain-worthy… and along the way, you’ll learn what might be next, what we might be overplaying, and much, much more!

After the interview, it’s time for the answer to Thomas (& AG) Take The Bar Exam #114, in which you always bet on bank!.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

Somewhat coincidentally, Andrew was just a guest on S3E6 of the Mueller, She Wrote podcast; go check it out! Andrew was also a guest on Episode 87 of So Here’s My Story.  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

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, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com



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OA253: Religious Freedom and Domineque Ray

Today’s episode tackles the recent Dunn v. Ray decision in which the Supreme Court used a procedural mechanism to allow the State of Alabama to execute a devout Muslim without affording him the same sorts of religious freedom they do to Christian inmates.  Is it as bad as it looks? (Yes.)

We begin, however, with an unfortunate Andrew Was Wrong (and a promise to get better)!

Then, it’s time for a depressing deep dive into Dunn v. Ray and what ‘religious freedom’ actually means to this Supreme Court.

After that, it’s time for a trip to Yodel Mountain where we review the latest ruling from Judge Amy Berman Jackson about exactly how big a liar Paul Manafort is.  (Hint:  yuge.)  What does this mean for a potential Manafort pardon, and does the federal system have parole?  Listen and find out!

We end, as always, with a brand new Thomas (& AG!) Take the Bar Exam Question #114 about whether banks own everything.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

Andrew was just a guest on S3E6 of the fabulous Mueller, She Wrote podcast; go check it out! 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. Supreme Court – Dunn v. Ray order
2. 11th Circuit ruling in Dunn v. Ray
3. We discussed Manafort’s plea on Episode OA: 211
4. Text of Manafort plea deal
5. Judge Jackson’s determination
6. 18 U.S.C. § 3624 Release of a prisoner (b) Credit Toward Service of Sentence for Satisfactory Behavior

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, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com



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