OA356: The Future of Flynn (w/guest Marcy Wheeler)

Today’s episode features an in-depth interview with investigative journalist and prolific blogger Marcy Wheeler (a.k.a. emptywheel), who has a novel take on Lt. Gen. Michael Flynn who, as our listeners know, fired Covington & Burling, hired a loon, and has tried to withdraw his guilty plea. Marcy tells us what she thinks this means!

We begin with a bit of analysis and some kind words from a listener in light of the disappointing Senate vote to block witnesses that came down late Friday night. Yes, this means the impeachment is effectively over. No, it doesn’t mean we’re going to stop fighting.

After that, it’s time to tackle Marcy Wheeler’s take on Lt. Gen. Michael Flynn. We do a deep dive into the two most recent sentencing memoranda filed by the government in Flynn’s case while trying to figure out what this portends. You don’t want to miss it!

After all that, it’s time for the answer to #T3BE 164 involving a crazed roommate, an aborted murder, and exactly what you could charge him with.

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 latest blog post from Marcy Wheeler, which sets out her take on Lt. Gen. Michael Flynn and sets out the embedded legal documents.

-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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Transcript of OA355: Honest Answers to Impeachment Questions

Listen to the episode and read the show notes

Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 355, I’m Thomas Smith, that’s Andrew Torrez!  How’re you doing, Andrew?

Andrew:         I’m fantastic Thomas, how are you?

Thomas:         Ooooh, doing well doing well.

Andrew:         [Laughs]  

Thomas:         It feels like – in fact, you know what?  I take that back.  I’m doing very well because I’m pretty sure we singlehandedly made a difference for the witnesses.  I say we and by that I mean the royal we of the whole audience and the whole show, because it really feels like the noodle got moved a little bit.

Andrew:         It does.  I would say, look, Mitch McConnell is still trying to move the noodle back.

Thomas:         [Laughs]  

Andrew:         Do not let up.  If you have not yet called your Senators, call your Democratic Senators and praise them, call Mitt Romney and praise him, call Republican Senators who have not spoken out and the script, we’ll continue to use the script and have it in the show notes.  This is super easy, hundreds of you have Tweeted in, emailed us, maybe even a thousand.  A lot of you have done this, this is really, really great.  It’s really important.  Keep doing that.  The other side is doing the same thing so it is important to keep that up.  The vote, if it happens, will happen sometime late on Friday so as you’re hearing this you still have time to call your Senators? and make sure they line up for witnesses.

Continue reading “Transcript of OA355: Honest Answers to Impeachment Questions”

OA355: Honest Answers to Impeachment Questions

Today’s episode tackles six questions raised during the first day of cross-examination at the impeachment of President Trump and gives you the real answers, from a legal point of view, minus the spin (on both sides)! We tackle the standard for impeachment, past judges who have been impeached, the will of the Framers, and much, much more!

—–

Remember that Alan Dershowitz has challenged Andrew to a debate, and we’ve accepted! Only time will tell if Dersh chickens out.

Also: please do CALL YOUR SENATORS. The Senate switchboard is (202) 224-3121. They’ll connect you! For the Republicans, make this simple request (and be polite!):

“I’d like to speak with Senator ____’s office.  Hi, I’m _____, I’m a constituent, and I’m calling to ask Senator ____ to vote in favor of allowing the Senate to subpoena documents and witnesses in the impeachment trial.  I don’t know how we can decide if Trump is innocent or guilty without seeing all of the evidence.  Thank you.” 

For the Democrats, call them and thank them for their promise to vote for subpoenaing documents and witnesses. That’s all! It’s that easy and you can REALLY MAKE A DIFFERENCE. Thank you!

—–

We begin the show with a brief analysis of John Bolton’s forthcoming book and whether the White House can get a judicial injunction to block publication. (Hint: no.) In analyzing the question, we do a mini-deep-dive into prior restraint, what it means, and why it protects Bolton’s right to publish here.

Then it’s time for the question extravaganza, which covers not only the legal standard for impeachment but the arguments raised by both sides, the question of foreign interference in our elections, how one asserts executive privilege, and so much more! You won’t want to miss this!

After all that, it’s time for a brand-new #T3BE about a crazed, icepick-wielding roommate with bad luck. Will Thomas be able to keep his win streak going? There’s only one way to find out! And remember that you too can 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. Don’t let Republicans misrepresent the articles of impeachment. Article I, Abuse of Power contains allegations that satisfy 18 U.S.C. § 201(b)(2) (the crime of bribery) and Art. II, Obstruction of Congress contains allegations that satisfy 18 U.S.C. § 1505 (the crime of obstruction of justice).
  2. We referenced Zephyr Teachout’s seminal 2009 law review article, “The Anti-Corruption Principle” as well as this analysis by Eisen, Painter, and Tribe on emoluments.
  3. Finally, check out Prof. Cunningham’s article on the original meaning of “misdemeanors” here.

-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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Transcript of OA354: A Russian Asset Sues What?

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Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 354.  I’m Thomas Smith.  I’m a new man!

Andrew:         [Laughs]  

Thomas:         I went in that water tank that Luke is in in the beginning of Empire Strikes Back, you know?

Andrew:         [Laughs]  

Thomas:         I mean, I still sound like crap but not as bad.  How’re you doin’?

Andrew:         I wanted to say I’ve been frozen in carbonite or something but, [Laughs]  I’m doing great, Thomas.  Glad to hear you’re on the mend.

Thomas:         Aside from the fact that you had to watch Jay Sekulow talk, right?

Andrew:         [Sighs] Oh my god, yeah.  That is-

Thomas:         That takes a toll.

Continue reading “Transcript of OA354: A Russian Asset Sues What?”

OA354: A Russian Asset Sues What?

Today’s episode breaks down the (spoiler: ridiculous) defamation lawsuit filed by Tulsi Gabbard against Hillary Clinton for calling her (sort of) a “Russian asset.” We do the patented Opening Arguments reading-the-complaint-backwards method (sort of) to figure out exactly what this means and what comes next.

We begin, however, with some instant response to the Saturday Republican “defense” of Trump in the impeachment proceedings. It’s… well, it’s a thing. Is Jay Sekulow still America’s dumbest lawyer? (Hint: yes.) Learn the arguments that they’re actually trying to advance, and why they’re not actually a thing.

And again: please don’t forget to CALL YOUR SENATOR! Remember, this is preposterously easy:

Call.  (202) 224-3121. 

CALL YOUR SENATORS, if you need help connecting to them, use @resistbot.   Text the word RESIST to the bot on Messenger, Twitter, Telegram, or to 50409 on SMS.  First time setup is quick, then calling both should take 3-5 minutes.

Here’s what you say:

“I’d like to speak with Senator ____’s office.  Hi, I’m _____, I’m a constituent, and I’m calling to ask Senator ____ to vote in favor of allowing the Senate to subpoena documents and witnesses in the impeachment trial.  I don’t know how we can decide if Trump is innocent or guilty without seeing all of the evidence.  Thank you.” 

Then, it’s time to break down everything about Tulsi Gabbard’s lawsuit. That means defamation law, Tulsi’s lawyers, the New York Times v. Sullivan standard, and much, much more. You’ll be surprised to learn that Tulsi Gabbard’s lawyers are… actual lawyers? But you’ll also be surprised to learn some facts about them. Don’t go all crazy conspiracy-theory on us, but… definitely listen.

After all that, it’s time for the answer to #T3BE 163 involving contemporaneous notes and whether they’re admissible as hearsay.

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 Tulsi’s defamation lawsuit here.

-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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Transcript of OA353: Duplicity and Impeachment

Listen to the episode and read the show notes

Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, oh this is gonna be fun.  It’s episode 353, and no that is not the Megatron voice, I just sound like this.  How’s it going, Andrew?

Andrew:         Ah, it’s going fantastic for me.  I would ask how you are doing, but I know how you’re doing.

Thomas:         Well, I took enough ibuprofen to get down to a nice manageable 101-

Andrew:         Ooof!

Thomas:         Which is better than 102.8 or whatever.  There’s a big difference in that one degree.

Continue reading “Transcript of OA353: Duplicity and Impeachment”

OA353: Duplicity and Impeachment

Today’s episode won’t be a surprise; we’re tackling all the developments in the impeachment trial of Donald J. Trump, including a deep dive into the trial brief filed by his cadre of (terrible) lawyers that alleges a strange new legal defense: “duplicity.” Figure out what it all means & why there’s so much reason to hope on today’s show!

We begin with a letter a listener received from Sen. Todd Young and a call to action to each of you to CALL YOUR SENATORS. The Senate switchboard is (202) 224-3121. They’ll connect you! For the Republicans, make this simple request (and be polite!):

“I’d like to speak with Senator ____’s office.  Hi, I’m _____, I’m a constituent, and I’m calling to ask Senator ____ to vote in favor of allowing the Senate to subpoena documents and witnesses in the impeachment trial.  I don’t know how we can decide if Trump is innocent or guilty without seeing all of the evidence.  Thank you.” 

For the Democrats, call them and thank them for their promise to vote for subpoenaing documents and witnesses. That’s all! It’s that easy and you can REALLY MAKE A DIFFERENCE.

Then, it’s time for the main segment, where we delve into all of the supposed “impeachment rules” — do they really have to drink milk? — and why S. Res. 438 gives us some reason for optimism.

After that, it’s time to deconstruct the “cargo cult legal brief” filed by Trump’s lawyers. How is it lying nonsense and what’s the next bizarre and false argument they’re going to make in the trial? We tell you! We also explore the legal doctrine of “duplicity,” and show how… duplicitous that argument is in Trump’s brief.

Then, of course, it’s time for a brand-new #T3BE on contemporaneously recorded notes and hearsay. Will Thomas build on his three-question winning streak? Will you get it right? There’s only one way to 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. Rules: click here to read Riddick’s Senate Procedure, and here for the just-adopted S. Res. 438.
  2. Strap in: this is the cargo cult Trump trial brief, and here are the House Articles of Impeachment.
  3. Remember that the two crimes covered by the Articles are bribery, 18 U.S.C. § 201(b)(2) (included in Art. I, Abuse of Power) and obstruction of justice, 18 U.S.C. § 1505 (included in Art. II, Obstruction of Congress).
  4. Here’s the interview reported by Politico in which Mulvaney conceded there was a quid pro quo (and “get over it”)!
  5. Finally, if you really want to dig into “duplicity,” check out U.S. v. Kearney, 451 F.Supp. 33 (S.D.N.Y. 1978).

-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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Transcript of OA352: Phil Ferguson Explains the SECURE Act

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Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 352.  I’m Thomas, that’s Andrew.  How’re you doin’, Andrew?

Andrew:         I am fantastic Thomas, how are you?

Thomas:         I’m good!  I always love when we have Phil Ferguson on the show ‘cuz I’ve got a little bit of an accounting background but it’s been long enough that I basically don’t remember anything so, you know, [Laughing] it’s always fun to get a little refresher on a finance topic and we’re gonna talk about the SECURE Act and find out just how secure it is, I guess.

Continue reading “Transcript of OA352: Phil Ferguson Explains the SECURE Act”

OA352: Phil Ferguson Explains the SECURE Act

Believe it or not, Congress apparently does occasionally pass laws still. One such law is the SECURE Act. The stated goals of the legislation involve trying to improve the retirement plans and options for Americans who are struggling to save enough. But was the legislation well-written or will there be unintended consequences? We’ve got Phil Ferguson of Polaris Financial Planning and host of the Phil Ferguson show to give us the breakdown!

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.

-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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Transcript of OA351: Who’s the Next Justin Amash? Your Guide to Impeachment, Part XVIII (Feat. Lev Parnas)

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Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 351.  I was so excited by the new intro music that we definitely all just heard even though I have to make it after we’re done recording.

Andrew:         [Laughs]  

Thomas:         How’s it going, Andrew?

Andrew:         It is going fantastically well.  How are you, Thomas?

Thomas:         Good.  You know it’s just time machine stuff that we do here on podcasts.  I can’t wait to make that new thing.  We’ve got so much to talk about.  The news is just unbelievable, Andrew.  I do wanna toss out a quick plug for Law’d Awful Movies that we just did.

Andrew:         Oh, yeah!

Thomas:         Oh, so much fun.  Pelican Brief.

Continue reading “Transcript of OA351: Who’s the Next Justin Amash? Your Guide to Impeachment, Part XVIII (Feat. Lev Parnas)”