Opening Arguments

December 20, 2018December 23, 2018

OA237: Lowering the… Barr (Memo)

Today’s Rapid Response episode takes a look at the just-released Law’d Awful Memo written by Attorney General nominee Bill Barr and sent to Deputy AG Rod Rosenstein concerning the Mueller investigation. Are the argument(s) raised in the memo any good? What does this mean for the future of the Mueller investigation? Listen and find out!

We begin, however, with a brief foray into everyone’s favorite show topic: BASEBALL LAW! Find out about the agreement reached between MLB and Cuba, and how (of course) Donald Trump can screw it up.

After that, it’s time for an Andrew Was Wrong (and Maybe Not Wrong) on David Pecker and AMI. Along the way, we’ll learn about the corruption case against Sun-Diamond Growers in connection with former Agriculture Secretary (and nearly-Senator) Mike Espy.

Then, we delve deeply into the Barr memo, taking apart the legal “arguments” and featuring a guest appearance from one Antonin Scalia!

Then, it’s time to tackle the rather surprising decision by Judge Sullivan in the Michael Flynn sentencing phase. What happened? Did he go off the rails?

After all that, we end with an all new Thomas (and Matt!) Takes The Bar Exam #106 on how to best transport heroin from Kansas City to Chicago and what the judge can instruct the jury… it’s complicated, but you won’t want to miss it! And, as always, 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

Check out Matt & Mattingly’s Ice Cream Social podcast!
Baseball law: Here’s the press release from MLB.
We discussed U.S. v. Sun-Diamond Growers of Calfornia, 138 F.3d 961 (D.C. Cir. 1998), aff’d, 526 U.S. 398 (1999).
Don’t forget to read the Barr memo for yourself, and you can also check out the Wall Street Journal article that leaked it.
…And here’s our good buddy Antonin Scalia smacking down the logic used therein.
You can check out the government’s sentencing memorandum in Michael Flynn’s case as well as the memo filed by Covington & Burling on Flynn’s behalf.
Here is the 18-3071 sealed case order.

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December 17, 2018December 18, 2018

OA236: Stairway to… the Supreme Court??

Today’s deep-dive Tuesday tackles a long-running lawsuit by the estate of Randy California — the founder, lead singer, and guitarist for the band Spirit — alleging that Led Zeppelin stole the iconic riff for “Stairway to Heaven” from Spirit’s 1968 song “Taurus.” With assistance from Thomas on guitar, we tackle all of the fun issues that are currently pending before the 9th Circuit… and possibly headed to the Supreme Court!

We begin, however, with two follow-up questions that got cut from Friday’s blockbuster show regarding the American Media, Inc. plea agreement: (1) Could David Pecker still be indicted? and the big one: (2) Can Donald Trump pardon a corporation? The answer… may surprise you!

After that, it’s time for a deep dive into the law regarding musical copyright and an exploration of the similarities and differences between “Taurus” and “Stairway to Heaven.” Where do Andrew and Thomas come out? You’ll have to listen to find out!

After that, it’s time for the answer to Thomas Takes The Bar Exam #105 regarding a bank and a car dealership attempting to modify a contract. 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

We discussed the AMI deal in Episode 235.
You can check out Spirit’s “Taurus” by clicking here.
Click here to read the original (and awesome!) Randy California v. Led Zeppelin complaint; you can also read (1) the jury verdict by the trial court; (2) the brief filed by Taurus in the 9th Circuit; (3) the opposition brief filed by Led Zeppelin; (4) the 9th Circuit’s ruling; (5) the petition for rehearing en banc filed by Led Zeppelin; (6) the opposition to that motion for rehearing en banc; and (7) the just-filed reply brief by Led Zeppelin (filed 12-10-08). Phew!
Finally, click here for a mashup of “My Sweet Lord” (George Harrison) and “He’s So Fine” (The Chiffons).

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

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December 13, 2018December 14, 2018

OA235: Corporations Are People, My Friend… Criminal People

Today’s Rapid Response episode takes a look at three breaking stories related to the White House: (1) the recent ruling requiring Stormy Daniels to pay Trump’s attorneys’ fees; (2) the sentencing of Trump’s former lawyer, Michael Cohen; and (3) most importantly, the plea deal signed by American Media, Inc. — parent company to the National Enquirer — to cooperate with the Special Counsel’s Office.

We begin by revisiting the question of whether, in fact, Stormy Daniels is still a legal genius. (Hint: she is.) But what does it mean that a court just ordered her to pay Trump nearly $300,000 — and why could it have been much, much worse? Listen and find out.

After that, we check out Trump’s ex-“fixer” and the former Taxi King of New York, Michael Cohen, who was just sentenced to three years in prison.

Then it’s time for a fascinating look into a non-prosecution agreement reached between the Special Counsel’s Office and American Media, Inc. that tell us an awful lot about where Yodel Mountain is headed.

Finally, we end with an all new Thomas Takes The Bar Exam #105 on modifications to a contract. As always, 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

Here’s the merits ruling defamation we referenced during the show; you can also check out Trump’s motion for attorneys’ fees, Avenatti’s (rather weak) opposition brief, and the court’s ruling directing Stormy to pay almost $300,000.
And because it never ends, check out the mediation questionnaire filled out by Avenatti for their appeal to the 9th Circuit.
You know you want to read the press release regarding Michael Cohen’s sentence; after that, you can check out the sentencing memoranda filed by the SCO’s office (“good cop”) as well as the brief filed by the SDNY (“bad cop”).
Finally, this is the AMI agreeement as well as the DOJ guidelines on prosecuting corporations.
Oh, and just for fun, here’s Jose Canseco’s audition to be Trump’s Chief of Staff. #YesWeCanseco

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

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December 10, 2018December 11, 2018

OA234: Civil Forfeiture, Berkeley & More!

Today’s deep-dive Tuesday tackles a viral oral argument before the Supreme Court in Timbs v. Indiana regarding civil forfeiture — and a delightful question (that inspired the graphic for the show notes) about whether the state can seize your Bugatti for speeding. Oh, and we check back in on the Ann Coulter v. Berkeley lawsuit that was recently settled. What happened? Listen and find out!

We begin with the Berkeley settlement, and break down exactly what the University did (and didn’t) promise to do going forward. Is this a “big win” for the right wing? (Hint: no.)

Then, it’s time to delve deeply into Timbs v. Indiana and discuss the law of civil asset forfeiture, the doctrine of proportionality, and even the concept of incorporation. Yes, it’s a crazy Civ Pro kinda day.. you won’t want to miss it!

Then, it’s time for a BRAND NEW SEGMENT — “Yodel Mountain Remembers!” We think you’re gonna love it!

Oh, and we also tackle a terrific listener question about the “apology doctrine” and the nation that made apologies famous — Canada (of course).

After all that, it’s time for the answer to Thomas Takes The Bar Exam #104 regarding government action and the warrant requirement of the Fifth Amendment. 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

Click here to read the Berkeley settlement.
This is a link to the oral argument in Timbs v. Indiana.
Finally, you can check out Maryland’s “apology law,” Maryland Code, Courts and Judicial Proceedings Article, § 10-920(b), by clicking here.
This is the delightfully demented Corsi lawsuit against Mueller,

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

And email us at openarguments@gmail.com

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December 6, 2018December 7, 2018

OA233: [REDACTED] & Wisconsin

Today’s Rapid Response episode takes a look at two pressing issues: (1) Mueller’s [REDACTED] sentencing memorandum with respect to Michael Flynn, and (2) the naked power grab by lame-duck Republicans in Wisconsin. Along the way, we’ll also cover a bunch more legal stories, but you knew that already!

We begin high atop Yodel Mountain, where we cover not only the [REDACTED] Flynn memorandum but also Roger Stone taking 5 and a truly bizarre conspiracy theory advanced by Rudy Giuliani.

Then, it’s time for the main segment, in which we tackle Wisconsin SB 887 and its component bills that are designed to weaken drastically the strength of the incoming Democratic governor, Tony Evers. Is it as bad as everyone says it is? (It’s worse.)

After that, it’s time for a brief Andrew Was Wrong segment. Turns out Andrew Was Wrong about both Julian Assange and American paddlefish!

Finally, we end with an all new Thomas Takes The Bar Exam #102 on evidence and the admissibility of hearsay. Find out how Thomas outsources the decision and more. 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

Andrew was recently a guest on the David Pakman show talking court-packing and more. Give it a listen! And, as always, 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

You can read the (non-censored) baseline Sentencing Memorandum filed by Mueller here, and the [REDACTED] Supplemental by clicking here.
Here are the texts of the various Wisconsin bills: SB 884, SB 886, and the final bill, SB 887.

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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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December 4, 2018December 4, 2018

OA232: Trump’s Plan to Weaponize the Census (& Bridgegate!)

Today’s deep-dive Tuesday takes us back to a time in which politically-motivated revenge was actually seen as a scandal; namely, Chris Christie’s Bridgegate. There’s a new ruling out of the Third Circuit that affects two Christie staffers, and… well, you’ll just have to listen and find out!

Then, it’s time to take a long look at ongoing litigation surrounding the Trump Administration’s efforts to deter Democrats from registering for the Census, thus reducing their voting power. What does a trial in district court have to do with the Supreme Court’s recent grant of certiorari?

After that, we answer a terrific Patron listener question regarding the European loser-pays-legal fees model versus the American pay-your-own-way model. Yes, the American model seems counter-intuitive at best (and downright regressive at worst), but is shifting to a loser-pays model the answer? Andrew talks about his experiences and the guys go through a bunch of options.

And finally, we end with the answer to Thomas Takes The Bar Exam #103 on the Takings Clause! As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

Show Notes & Links

You can read the 3rd Circuit’s opinion in Bridgegate by clicking here.
Click here to read the Court’s order in the Census litigation, which shows that Thomas-Alito-Gorsuch would have granted a stay.

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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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November 29, 2018November 30, 2018

OA231: The End of the Beginning (for Trump)

“Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.” – Winston Churchill. And yes, today does, in fact, mark the end of the beginning of the Mueller Investigation… and perhaps for Donald Trump. Why? You’ll just have to listen and find out!

In this super-sized episode, we tackle:

(1) Michael Cohen’s just-announced plea to a new count of lying — this time in connection with his prior testimony before the Senate and House Intelligence Committees investigating Russian interference in the 2016 elections;

(2) A follow-up on Andrew Miller and Concord Management and Consulting, including a fascinating new blog written by Randall Eliason with Yodel Mountain implications;

(3) Paul Manafort’s apparent repudiation of his plea deal with Mueller, what that means and when we’ll know;

(4) Jerome Corsi’s public refusal to plead and cooperate with the Mueller investigation over WikiLeaks and Julian Assange; and

(5) An update in the Brain Frosh

Finally, we end with an all new Thomas Takes The Bar Exam #103 on a property owner who has the rug pulled out from under him due to a new law. 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

Click here to read the new Information to which Cohen pled guilty to today.
This is the BuzzFeed article on Cohen, Felix Sater, and Trump’s efforts to get a building in Moscow over the past 30 years. Oh, and here’s a link to Trump’s tweet that he has “ZERO INVESTMENTS IN RUSSIA.“
We discussed the Andrew Miller lawsuit in OA 229; you’ll definitely want to read the two new filings: Silbey’s supplemental amicus “letter”, and Christenson’s… something.
You’ll definitely want to check out Randall Eliason’s blog analyzing the Concord Management and Consulting lawsuit and what it means for 18 U.S.C. § 371 conspiracy charges (of the sort that might be filed against Trump).
Here’s Manafort’s original plea deal, and this is the Joint Status Report filed earlier this week. Oh, and this is Manafort’s waiver of his right to appear at the scheduling conference.
This is the Marcy Wheeler article we broke down; for the other side, here’s the Wall Street Journal report suggesting Manafort lied about non-Trump-related personal business dealings.
This is the Guardian article connecting Manafort to Julian Assange and WikiLeaks; here is the fantastic Washington Post article and timeline on what that means if true.
Here’s Corsi’s draft deal with Manafort that he rejected.
Finally, we discussed the Brian Frosh lawsuit against Matthew Whitaker in Episode 227; you can now read the amicus brief filed by 15 state attorneys general. Phew!

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

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Download Link

November 26, 2018November 27, 2018

OA230: TOO MUCH MEAT!

Today’s deep-dive Tuesday tackles that viral case caption you’ve probably seen floating around Twitter: “United States v. 1,855.6 pounds of American Paddlefish Meat.” Is the sack of fish meat really going to have to show up in court? Will it have a lawyer??!? Listen and find out!

We begin, however, with a roundup of all the lawsuits filed against Matthew Whitaker, including the most recent one brought by Senators Blumenthal and Hirono. Oh, and we check with an op-ed written by… the Torture Guy? What’s going on here??

The main segment delves into in rem jurisdiction in order to explain the “paddlefish meat” caption. If you like legal minutiae — and let’s be honest, you’re listening to this podcast — you’ll love this segment.

Then, it’s time for a truly great listener question holding Andrew’s feet to the fire on Net Neutrality and the Munsingwear doctrine. It’s not an Andrew Was Wrong, but it is an… Andrew Could Have Explained That Better? Either way, you won’t want to miss it.

Finally, we end with the answer to Thomas Takes The Bar Exam #102 on hearsay. Find out if Thomas’s coin can pass the bar exam! And 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

Click here to check out Lawfareblog’s clearing house for Whitaker complaints, and click here to read John Yoo’s (surprising) op-ed arguing that Whitaker’s appointment was illegal.
If you want to read the actual meat filing, click here.
Special shout-out to law professor Brian L. Frye for tipping us off to United States v. 43 1/2 Gross Rubber Prophylactics!

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

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Download Link

November 21, 2018November 22, 2018

OA229: Andrew Miller & the Appointments Clause

Today’s Thanksgiving Special / Rapid Response episode takes a look at the single most important Yodel Mountain case pending right now: Andrew Miller’s lawsuit before the Court of Appeals for the District of Columbia Circuit. Find out what it all means!

We begin, however, with a brief Andrew Was Right and roundup on the status of the Jim Acosta lawsuit, which has been mooted thanks to the injunctive relief won by CNN (and the White House’s decision to restore Acosta’s credentials).

Then, it’s time for the deep dive into Andrew Miller and his Don Quixote-esque foray into our legal system to challenge Robert Mueller’s authority. Along the way you’ll find out who Andrew’s Shattered Glass doppelganger is, and learn more than you ever thought possible about the U.S. Constitution’s “Appointments Clause.”

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