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Transcript of OA359: The Equal Rights Amendment (ERA) & Baseball Law!

Listen to the episode and read the show notes

Topics of Discussion:

Thomas:         Hey listeners, I’ve got a really exciting announcement!  Opening Arguments is now on YouTube.  We’ve made our first video on the Opening Arguments YouTube channel and it was a lot of fun.  The idea just really quickly is to try to use some humor and maybe potentially some viral aspects to try to gain some attention, to draw people to the show, maybe reach a new audience because I for one firmly believe that Andrew is just teaching us so much here and I wanna spread the word, I wanna get more people engaged so the way we’re trying to do that is to branch out, reach some people on YouTube. 

We would love your help to share the video if you enjoy it and get more people.  Subscribe to the channel, anything that kind of boosts the YouTube channel.  The link will be in the show notes, I hope you like the video.  If you’d like to just go to the channel it’s youtube.com/c/openingarguments.  Either way, thank you so much, I hope you check it out and I hope you like it, and now on with the show!

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OA359: The Equal Rights Amendment (ERA) & Baseball Law!

Make sure to check out our YouTube video and subscribe to the channel! https://www.youtube.com/watch?v=Jh69ZSnZzc4&t=1s

Today’s EXTRA LONG episode breaks down the recent ratification of the Equal Rights Amendment (ERA) by the State of Virginia. Since that’s the 38th state (more than 3/4ths of the states), and the ERA also passed the Senate and the House of Representatives by more than 2/3 margin… does that mean that the ERA is now part of the Constitution? Listen and find out!

We begin by diving right in to the ERA, starting with a lengthy deep dive into the history of the Amendment dating back to the early 1970s… which might make you nostalgic for the Republicans of old.

Then, we talk about the complicated issues underlying the passage of the ERA, including the strange case of the 27th Amendment which lay dormant for two centuries before getting ratified by 3/4ths of the states in 1992. And if the 27th Amendment can lay dormant for more than 200 years, why can’t the ERA? Well… we’ll tell you some of the reasons why (and why not).

After that, it’s time to break down the Houston Astros cheating scandal, where we talk about our listeners’ favorite topic: baseball law! Even if you’re not a fan of baseball, we think you’ll enjoy our breakdown.

And after all that, it’s time for the answer to #T3BE 165 involving jury instructions. Can Thomas keep his winning streak going?? 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. To catch up: We discussed Amendment 27 way back in Episode 11, and the Munsingwear doctrine in Episode 181.
  2. The Supreme Court last weighed in on the Equal Rights Amendment in 1982. The two cases we discuss in context are Dillon v. Gloss, 256 U.S. 368 (1921) and Coleman v. Miller, 307 U.S. 433 (1939).
  3. Baseball law references: Check out the story in the Athletic quoting Mike Fiers that started it all; this CBS article on how Tyler Glasnow “was tipping his pitches”; the results of the MLB investigation; and the MLB Constitution.

-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 OA358: Can Trump Block New Yorkers From Global Entry? (No.)

Listen to the episode and read the show notes

Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 358.  I’m Thomas Smith, that over there is P. Andrew Torrez, esquire.  How’re you doing Andrew?

Andrew:         [Laughing] I am doing fantastic!  Did you see, one of our listeners sent P. Andrew Torus with the donut shape on social media?

Thomas:         Yeah!

Andrew:         You know, as long as we’re continuing to add plays on my last name.

Thomas:         It’s hard to compete with your cow name, though, P. Andrew Taurus.

Andrew:         Oh, no, obviously that’s the best.  Shout out to Del.

Thomas:         Because you moo the noodle! [Laughs] You moo the noodle, so we can’t.

Andrew:         [Laughs]  

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Transcript of OA357: OK, WTF Iowa?

Listen to the episode and read the show notes

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments.  Don’t adjust that dial! 

Andrew:         [Laughs]  

Thomas:         We are here early!  It’s episode 357.  I’m Thomas Smith, that’s Andrew Torrez, how’re you doing, Andrew/

Andrew:         Well I would say I’m doing fantastic but, uh, apparently the entire Democratic Party has lost its goddamn mind so, no, not doing fantastic!  How are you?

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

Listen to the episode and read the show notes

Topics of Discussion:

Andrew:         Hey everybody, I just wanted to tell you how proud Thomas and I are of our listeners.  At least hundreds, possibly thousands of you, made the effort to call your Senators and tell them that you wanted to hear from witnesses during the impeachment trial.  Obviously that vote came Friday night after we recorded this show and we lost 51 to 49.  That sucks, and there is no spin that I can put on that, but I do want to share something that Erica Goddard wrote in our Facebook community that really helped me, helped remind us of our mission with this show.

She says:  “You told us after the 2018 elections why we had cause to be proud of the results. We fight the holding actions, we get to November 2020, we keep the momentum of 2018 going.

Tonight, we mourn, but Tomorrow, we look for the next holding action, the one that helps us get to November.  We build an America we can be proud of again.

When you despair, remember this community you have brought together. Remember those you have helped teach.  The legal profession will feel the impact of your work as those studying law in this group pass the Bar and move forward. Other professions will feel the impact of a better educated populous who understand the world and the law.”

Thank you Erica!  Please do, folks have continued to share in the Facebook group, on Twitter, elsewhere, send us an email if you’re not a part of either of those groups and tell us when you go to law school, when you graduate, when you pass the bar, when you get your jobs.  We love those stories and I promise that we’ll continue to do what Erica said.  We are looking for new and creative ways to try and keep breaking down the law for you, and as the other side tries to break our institutions we will keep standing up for them.  Even when the answers aren’t what we want to hear, I do still believe we make the world a little bit better every time we make it a little better educated. 

So we have an example of that today, we’ve got a great interview with journalist Marcy Wheeler, that’s about the Michaele Flynn case, it’s about the state of the DOJ and her belief that people will face consequences.  We’re gonna continue to break down the law and identify what we need to do in order to move forward.

Thanks again, thanks to all of you, we’re gonna help continue to fight on.

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OA358: Can Trump Block New Yorkers From Global Entry? (No.)

Today’s episode takes place in the aftermath of the Trump impeachment sham. We take a minute to heap praise on Sen. Mitt Romney, who had the courage of his convictions, before delving into the obvious fact that this president is now empowered to seek revenge on his enemies, starting with the State of New York. Can he really prevent New Yorkers from using Global Entry?

Before that, we have to cover the latest in faux outrage, in which America’s Dumbest Congressman (TM), Matt Gaetz, teams up with Charlie Kirk (and others) to … insist that Speaker Nancy Pelosi had no right to rip up her copy of Trump’s State of the Union address. Can that possibly be the law? (No.)

Then, it’s time to settle in for a nice, long deep dive into New York’s Green Light Law, and how that led a Trump lackey to try and retaliate by asserting that New Yorkers will no longer be eligible for the Global Entry program at airports. Is it really possible that Trump’s Department of Homeland Security will carry out this threat? Do we have a legal recourse? Listen and find out!

After all that, it’s time for a brand-new #T3BE on the preservation of objections for appeal. Can Thomas continue his winning streak? Would you do any better? If so, just share out this episode on social media using the hashtag #T3BE and we’ll pick a winner!

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. The operative law that Speaker Pelosi definitely didn’t violate — but President Trump has — is 18 U.S.C. § 2071.
  2. You can read all about New York SB1747B (the “Green Light Law”) as well as check out the fact sheet issued by the DMV.
  3. We break down the nonsense threat letter written by “Acting Director” of DHS, Chad Wolf.
  4. Legal references! Check out 8 U.S.C. § 1365b; 74 FR 59932; 77 FR 5690; and the final rule, 8 C.F.R. 235.12.
  5. Finally, in the political aftermath, we mentioned the pending bipartisan bill, House Res. HR 3675.
  6. 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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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.

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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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