Podcast – Page 74 – Opening Arguments

June 30, 2018June 30, 2018

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

Check out the Southern District of New York’s Order regarding Cohen’s meager haul of privileged documents.
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.
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

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

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com

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June 28, 2018June 28, 2018

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!

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

We broke down the “nuclear option” in Episode 59. Mitch McConnell announced that the Senate would not recess for the summer on June 5.
Here are the (generally reliable) Cook Political Report ratings of the 2018 Senate races.
This is the Mother Jones article on Anthony Kennedy’s 2017-2018 votes.
This is the list of Trump’s 25 potential Supreme Court nominees.
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.
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

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

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com

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June 25, 2018June 26, 2018

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

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.
Our explainer on Gerrymandering is Episode 54; we then talk about the Wisconsin case in Episode 80 and the Maryland case in Episode 148.
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).
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

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

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com

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June 21, 2018June 22, 2018

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

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.
Click here to read the Snopes article conclusively debunking the political claim that this policy was put into place “by Democrats.”
You can read Trump’s recent Executive Order and also check out the original 1997 Flores v. Reno settlement.
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.
As promised, this is the full list of Class B federal misdemeanors.
We also discussed this Washington Post article on refugees being turned away at the border.
This is the Supreme Court’s recent opinion in Pereira v. Sessions.
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

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

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com

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June 18, 2018June 21, 2018

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

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

Click here to read the Supreme Court’s opinion in Collins v. Virginia, and here to check out Sveen v. Melin.
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

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Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com

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June 14, 2018June 15, 2018

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

Show Notes & Links

Click here to read the just-filed New York state lawsuit against Donald Trump, his kids, and the Trump Foundation.
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.
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.
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,
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.
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

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

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com

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June 11, 2018June 11, 2018

OA181: Michael Avenatti is Never Going To Come On Our Show (#NotAllLawyers)

Today’s episode takes a deep dive into allegations of attorney misconduct. We begin with following investigative reporting concerning the involuntary bankruptcy of the Eagan Avenatti firm, and discover some potentially disturbing facts about the lawyer who’s currently outfoxing the bad guys at every turn, Michael Avenatti.

After that, we discuss the Supreme Court’s recent unanimous per curiam decision in Azar v. Garza, the tragic case of the young woman denied her constitutional right to an abortion and subjected to harassment and “crisis pregnancy center” anti-abortion counseling until the D.C. Circuit Court of Appeal stepped in. So… why did the Supreme Court just vacate that opinion? It (potentially) has to do with attorney misconduct. Oh, and this story also tells you everything you needed to know about price ceilings on underwear in the 1940s. (Really!)

Then, we examine the biggest example of attorney misconduct at the moment — Donald Trump’s ever-fluctuating team of lawyers defending the indefensible. Specifically, we take a look at the recently-leaked Dowd memorandum and its central claim that the President cannot obstruct justice with otherwise-legal behavior. (That’s false.)

Finally, we end the answer to Thomas Takes The Bar Exam #79 regarding the conveyance of property to a church with conditions attached. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

If you can’t get enough of our analysis of the Masterpiece Cakeshop opinion, you can get even more on Episode 142 of Serious Inquiries Only (with more Andrew Seidel) and Episode 277 of The Scathing Atheist (with way more profanity).

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

This is the investigative piece on the Eagan Avenatti bankruptcy published by the Los Angeles Times.
We last discussed Garza v. Hargan on Episode 165. You can read the Supreme Court’s opinion (now captioned Azar v. Garza) here. And if you want to read United States v. Munsingwear, Inc., 304 U.S. 36 (1950), you can do that too!
Finally, if you can stomach it, here’s a link to the Dowd memo.

Support us on Patreon at: patreon.com/law

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

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com

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June 6, 2018June 7, 2018

OA180: Masterpiece Cakeshop

Join us for an early Rapid Response Friday, in which we break down the Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. To tackle a topic this big, we needed a little extra help, so we brought back our favorite guest, Andrew Seidel, attorney with the Freedom From Religion Foundation. But that’s not all! We recorded so much information that we decided to do a crossover episode with Serious Inquiries Only, so you can have over two hours of Andrew-on-Andrew (and Thomas!) action.

We begin, however, on Yodel Mountain, with two pieces of news arising out of Paul Manafort’s criminal trial. Is Paulie M going to jail? Did he engage in illegal witness tampering? Did he back up his encrypted WhatsApp messages on an unencrypted iCloud? Listen and find out! We also delve into Manafort’s response to the press’s motion to unseal the Mueller investigation documents first discussed in Episode 168. And, as long as we’re yodeling, we might as well catch up on what’s going on in the Summer Zervos lawsuit first discussed in Episode 176.

After that, it’s time to figure out exactly what’s going on in Masterpiece Cakeshop. Is this a narrow decision? Is it a win for anti-LGBTQ forces? Is it a nothing-burger? Listen and find out!

Finally, we end with an all new Thomas Takes The Bar Exam #79 about the real property conveyance to a church. Yes, it’s more 13th-Century Saxony law! 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 and Andrew continued to talk Masterpiece Cakeshop on Serious Inquiries Only, and Andrew was a guest talking the same thing on Episode 177 of The Scathing Atheist.

Show Notes & Links

Here’s the government’s motion to revoke Paul Manafort’s pretrial release. Witness tampering is a crime under 18 U.S.C. § 1512.
We first discussed the press’s motion to unseal the Mueller investigation documents in Episode 168, and the Summer Zervos lawsuit back in Episode 176.
We’ve uploaded Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission so you can read it for yourself.
If you love Andrew Seidel, you might want to go back to his FIVE previous appearances on the show, Episode 82 (on Trinity Lutheran), Episode 85 (which was originally a Patreon-only exclusive),Episode 111, Episode 131, and most recently, Episode 171.
Finally, please consider supporting the Freedom From Religion Foundation.

Support us on Patreon at: patreon.com/law

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

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com

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June 4, 2018June 5, 2018

OA179: Abortion and Plea Bargaining

Today’s episode takes a deep dive into two developments concerning the right to an abortion in the U.S., followed by our continuing discussion on plea bargaining with listener comments from prosecutors, public defenders, the U.S. judiciary, and even international listeners. You won’t want to miss it!

We begin with an in-depth examination of the so-called “gag rule” just proposed by Trump’s Department of Health and Human Services. Is it really a gag rule? (Yes.)

After that, we look into the Supreme Court’s recent decision not to grant certiorari in Planned Parenthood v. Jegley, allowing an 8th Circuit decision to stand that, in turn, denied a preliminary injunction blocking a restrictive Arkansas abortion law, HB1394. Is this a bad sign? (Yes.)

After that, we return to the subject of plea bargaining that’s been a hot topic in our inbox for weeks, capped off by the Iowa Supreme Court’s discussion of the issue in Schmidt v. Iowa.

Finally, we end the answer to Thomas Takes The Bar Exam #78 regarding whether the jury can read a treatise on mill grinding. 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

For context on the Trump HHS gag rule, you can read Title X, 42 USC § 300 et seq.
Planned Parenthood v. Jegley, 864 F.3d 953 (8th Cir. 2017), denied a preliminary injunction, allowing HB1394 to take effect. You can read the cert petition here.
If you’re feeling good about Schmidt v. Iowa and need to be reminded that “actual innocence” is not a ground for federal habeas corpus relief, check out Herrera v. Collins, 506 U.S. 390 (1993).

Support us on Patreon at: patreon.com/law

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

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com

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May 31, 2018June 1, 2018

OA178: Trump and the NFL

Join us for yet another Rapid Response Friday, in which we continue to evaluate claims on the left challenging the legality of the NFL’s policy regarding the national anthem, as well as discuss two items that are also of interest to Donald Trump.

We begin with a listener question we didn’t get to during our Q&A regarding the similarities and differences between the John Edwards affair and the Stormy Daniels affair. Is this the kind of thing that should give Trump comfort? (Hint: no.) Oh, and you might also learn something about an “Allen charge” if you follow us all the way down all our rabbit trails!

After that, we break down the “state action doctrine” while considering some liberal arguments making the rounds ostensibly challenging the legality or constitutionality of the NFL’s new rules. Andrew still isn’t buying it!

Then, we trek back to Yodel Mountain to discuss the recent developments in Michael Cohen’s case in the Southern District of New York. Was Andrew… wrong? Listen and find out!

Finally, we end with an all new Thomas Takes The Bar Exam #78 regarding whether the jury can read a treatise on mill grinding. It’s more interesting than it sounds, we promise! 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