Author: Thomas

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OA228: Jim Acosta, Sovereign Immunity & More!

Today’s Deep Dive Tuesday tackles the motion for preliminary injunction and underlying lawsuit brought by CNN and Jim Acosta against the Trump White House for revoking his press credentials.  You’ll get to hear about how Andrew Was Right… last Thursday (!)  As a bonus, you’ll get a listener question that segues into a mini-deep-dive on the “sovereign immunity” doctrine!

We begin, however, with some initial information about the still-sketchy situation surrounding Michael Avenatti and his arrest for domestic violence.

After that, it’s time to traipse through the CNN/Acosta lawsuit, which is still relevant today (even though the PI was, as Andrew predicted, granted).

Then, it’s time to answer a really interesting listener question about Oklahoma’s new anti-vax governor that winds up with a discussion of the sovereign immunity doctrine.  It’s a rabbit trail you’ll want to go down!

Finally, we end with the answer to Thomas Takes The Bar Exam #101 on SPACE LAW.  Find out Lando’s (and Thomas’s!) fate! 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. On Avenatti, you can see the “SurefireIntel” tweet here.
  2. You can read the Acosta/CNN underlying complaint, the accompanying memorandum of law supporting the Acosta TRO motion, and the Trump response.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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Don’t forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki

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OA227: Brian Frosh Takes On Matthew Whitaker & More!

Today’s Rapid Response Friday takes a deep dive into the recent lawsuit filed (actually, amended) by Maryland’s ace Attorney General, Brian Frosh, challenging the appointment of Matthew Whitaker as Acting Attorney General.

We begin, however, with an Andrew Was Right (and Wrong, sadly) roundup of a bunch of issues:  (1) whether the midterm elections were a “Blue Wave” (they were); (2) the formation of a new breakaway conservative legal group; (3) Jeff Flake’s efforts to protect Robert Mueller; (4) Whitaker’s recusal status; and (5) the election of Kyrsten Sinema to the U.S. Senate in Arizona.  Phew!

After that, it’s time for the deep dive into Maryland’s ACA lawsuit that.. somehow morphed into a judicial request to determine that Matthew Whitaker cannot be the Attorney General?  How is that even possible??  We explain it all… and along the way, we let you know what arguments the State of Maryland has raised that the next Attorney General should be Rod Rosenstein instead.  It’s a fascinating lawsuit, and you’ll even get a brief discussion of the “canon of constitutional avoidance.” (!!)

After that, we (briefly) discuss the California wildfires in light of.. SEC disclosure requirements??!?  Hey, that’s why you listen, right?

Finally, we end with an all new Thomas Takes The Bar Exam #101 on SPACE LAW, involving deadbeat Ewoks and Lando Calrissian.  (No, really.)  You’ll have to listen and find out!  And, of course, if you’d like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Appearances

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. Click here to read 538’s “Yes, It Was a Blue Wave” article.
  2. Here is the announcement of the formation of the “Checks and Balances” legal society.
  3. Lawfare has filed a FOIA request for all documentation regarding Whitaker’s ethics advice and potential recusal.
  4. Click here to read Maryland’s motion for preliminary injunction; here to read the Flood memorandum that contains Trump’s likely responses; and here to read the court’s scheduling order.
  5. Finally, click here to read the SEC’s guidelines on when to file a form 8-K, and here to read the 8-K filed by PG&E.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com


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OA226: How Dems Can Force Trump’s Tax Returns

…using this one weird trick! (but for real.) It’s a new intro this week and Thomas hopes you don’t mind the departure from the regular quotes. After that Andrew has updates on several cases for us! They involve: the Emoluments Clause, a 40 foot cross, Net Neutrality, and Monsanto!

Then we get to the meat of our episode, which is about how the Democrats in the House can now use their power to force Trump’s tax returns out. It has lots of twists and turns and isn’t as straightforward as you might think!

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com


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OA225: Elections Have Consequences… for Jeff Sessions

Today’s Rapid Response Friday covers the two things that are definitely on everyone’s minds:  (1) the midterm elections, and (2) the fate of the Mueller investigation and more in light of President Trump’s decision to fire Attorney General Jeff Sessions.  Elections have consequences… don’t they?

We begin with a roundup of  the outstanding legal issues in connection with the midterms.

After that, it’s Yodelin’ time.  What happened to G. Zachary Terwilliger?  Is the Mueller investigation in trouble?  What can we do??  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. No links this week!

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com


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OA224: Andrew Debates Prof. Justin Walker!

At long last, we’ve got the audio from Andrew’s debate with University of Louisville Law School professor, member of the Federalist Society and former Brett Kavanaugh clerk Justin Walker! The debate was put on by the American Constitution Society and Americans United for the Separation of Church and State. It was moderated by the ACLU!

After that, it’s the thrilling conclusion to TTTBE100….

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com


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OA223: A Victory for Voting Rights in Pennsylvania!

Today’s Rapid Response Friday revisits some cases we’ve previously discussed with recent positive developments:  the Summer Zervos lawsuit and the future of political gerrymandering in Pennsylvania.

We begin with the Zervos lawsuit we first covered in Episode 176, in which a state trial court judge has ordered Donald Trump to respond to discovery served by Zervos’s attorney.  What’s next for the President and why does it have Yodel Mountain implications?  You’ll have to listen and find out!

After that, we revisit our discussion from Episodes 146 and 148 regarding the Pennsylvania Supreme Court’s opinion redrawing congressional maps in that state.  The U.S. Supreme Court — and yes, that’s the Brett Kavanaugh-and-Neil-Gorsuch-laden Supreme Court! — just declined to intervene to protect the Republicans.  Why is that, and how is that a map forward?  We tell all!

Then, we return to the Gary Hart story we discussed last episode.  Was Hart really set up?  Listen and find out!

Finally, we end with an all new Thomas Takes The Bar Exam #100 that is the dreaded real property question Thomas needs to get right in order to hit “60% at the half.”  Can he do it?!??  You’ll have to listen and find out!  And, of course, if you’d like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Appearances

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. Click here to read the cert petition in Turzai v. Brandt and here to read the opposition.
  2. This is the James Savage response on Gary Hart.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com


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OA222: Entire WV Supreme Court Impeached?!

Today’s episode tackles an issue you’ve all been writing about:  what exactly is going on in West Virginia, where the entire state supreme court has been impeached?  We break it down for you!

First, though, we start off with a roundup on voter suppression, including Georgia’s “exact match” requirement being used to deny new registrations.

After that, it’s time to go deep, deep down the rabbit hole in West Virginia.  It’s… kind of amazing, actually.

Then, we move to a breaking story involving Andrew’s first political crush.  Yes, before there was Liz Warren, we had “Atari Democrat” Gary Hart.  Find out what’s in the news regarding Hart.

After all that, we end with the answer to Thomas Takes The Bar Exam #99 regarding the good-faith exception to the exclusionary rule.  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. No links this week as Andrew is traveling from Undisclosed Location B.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com


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OA221: Elections Have Consequences, Florida Edition

Today’s Rapid Response Friday takes us back to a well-worn trope here at OA that we can’t emphasize enough in late October:  elections have consequences!  Specifically, we take a look at the importance of past and future elections in the pivotal swing state of Florida.

We begin, however, with a quick statement on the Trump administration’s apparently-leaked policy regarding trans people and some new developments.

After that, it’s time for the ever-popular Andrew Was Wrong segment, with two things that.. well, Andrew got wrong:  Whitewater and Paul Manafort (!)

Then it’s time for a deep dive into the Florida Judicial Nominating Commission and various constitutional amendments that are on the ballot this November, including one that takes a swipe at our favorite doctrine.

But that’s not all!  We move on to discuss 202 Democratic Presidential Candidate Michael Avenatti.  It’s not pretty.

Finally, we end with an all new Thomas Takes The Bar Exam #99 regarding criminal procedures.  After getting it wrong last week, Thomas needs to go 2-for-2 to get to the coveted “60% at the half” — can he do it?!??  You’ll have to listen and find out!  And, of course, if you’d like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Appearances

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. For more on the history  of jury sentencing at the state level, check out this 2011 law review article by Melissa Carrington that’s well worth a read.
  2. Click here to read the Tampa Bay Times article suggesting that the next court nominee is going to be a conservative regardless of the election; here for the official Florida government website describing how the JNC is selected; and here for an in-depth discussion of the history of the changes to that process.
  3. This is Detzner v. Anstead, the Florida Supreme Court decision we discussed regarding bundled amendments, and you can click here to read the text of the proposed Florida amendments.
  4. Click here to read the Grassley referral of Avenatti and Sweatnick to the DOJ.  And we broke down the Avenatti-Frank lawsuit first in OA Episode 181.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com


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OA220: Carter Page, Clownhorn

Today’s Rapid Response Tuesday takes an in-depth look at OA’s new favorite clownhorn, Carter Page, and his delightfully mad lawsuit against the Democratic National Committee, the law firm of Perkins Coie, and (I think) the Ancient Order of the Illuminati.  Strap in!

We begin with some good ol’-fashioned yodeling, with a roundup of stories with Yodel Mountain implications, including (1) the report that Mueller’s probe will conclude after the midterms; (2) Paulie Manafort’s latest motion; (3) the departure of White House counsel Don McGahn; and (4) some news regarding Michael Avenatti’s White House run in 2020.

Then — oh man — it’s time for a deep dive into Carter Page’s lawsuit regarding this September 23, 2016 Yahoo news story, written by esteemed reporter Michael Isikoff, that Mr. Page delightfully believes is defamatory.

After all that, we end with an all new Thomas Takes The Bar Exam #98 regarding constitutional law standards for a group home.  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. This is the Bloomberg News article suggesting that Mueller’s probe will conclude after the midterms.
  2. You can click here to read Judge Ellis’s order denying Manafort’s motion to appear in street clothes.
  3. This is the New York Times story on McGahn’s departure.
  4. Click here to read the FEC data on Michael Avenatti’s Fight PAC.
  5. This is the Sep. 23, 2016 Yahoo story
  6. This is the Carter Page lawsuit, which you absolutely must read.  Oh, and check out the (heavily redacted) FISA application showing that the FBI believes Page to have been the subject of targeted recruitment by the Russian government.
  7. This is the September 23, 2016 Isikoff story in Yahoo that Page believes is defamatory; we also referenced Page’s trip to Moscow, the terrorism statute, 18 U.S.C. § 2332b, and, of course, the fact that Page previously sued Yahoo over this exact same story and lost.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com


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OA219: Harvard and Affirmative Action

Today’s Rapid Response Friday takes us to the front lines of the affirmative action debate with the trial of Students For Fair Admissions, Inc. v. Harvard, a lawsuit brought by a single-issue right-wing activist determined to end diversity as a criterion in school admissions.  (And yes, we tell you what we really think!)

We begin, however, with some news regarding the Monsanto trial we profiled back in Episode 202.

After that, it’s time for a deep dive into the nuances of affirmative action with the SFFA v. Harvard lawsuit.  What exactly does it allege?  What’s the status of affirmative action law?  Where is this lawsuit going?  Listen and find out!

Then it’s time for a brief Andrew Was segment, in which Andrew Was Wrong about the UK Supreme Court, and Andrew Was… Something… about the good news coming out of the Florida Supreme Court.

Finally, we end with an all new Thomas Takes The Bar Exam #98 regarding constitutional standards.  Thomas needs to go 2-for-3 after a recent audit showed a bank error in his favor.  Can he do it?  You’ll have to listen and find out!  And, of course, if you’d like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Appearances

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 covered the Monsanto trial back in Episode 202; go check it out!
  2. Click here to read the Students For Fair Admissions, Inc. v. Harvard lawsuit.
  3. To understand the history of affirmative action, listen to our Episode 93, and check out both Regents of the University of California v. Bakke, 438 U.S. 265 (1978) and Grutter v. Bollinger, 539 U.S. 306 (2003), the cases we discussed in the episode.
  4. I mentioned the Etzkowitz et al. article on critical mass; you can read that 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

And email us at openarguments@gmail.com


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