Brian Frosh – Opening Arguments

July 15, 2019July 16, 2019

OA297: Twitter, Emoluments & Labor Unions

Today’s episode features a grab-bag of stories that have been making the rounds, including the recent ruling out of the Second Circuit regarding Donald Trump’s use of Twitter, a setback for our buddy Brian Frosh’s efforts to enforce the Emoluments Clauses of the Constitution, and an update on the real-word consequences of the Janus v. AFSCME decision we decry so much around here.

We begin with the Second Circuit’s ruling in Knight First Amendment Inst. v. Trump, which established that a government official may convert a social media platform such as Twitter into a “limited use public forum,” from which he may not block users on the basis of the political content of their speech — i.e., viewpoint discrimination. Almost no one understands this decision; we’ll make sure you’re one of the lucky ones who do!

Then, it’s time for a breakdown of the 4th Circuit’s ruling in In re Trump, which directs the lower court to dismiss the lawsuit (and pending discovery) against Trump in the lawsuit brought by Maryland and D.C. alleging violations of the Foreign and Domestic Emoluments Clauses. Find out what this case is all about, whether the outcome is reasonable, and what’s next.

After that, it’s time for a quick look at the real-world implications of the Janus v. AFSCME decision allowing public-sector union employees to withhold a portion of their dues otherwise allocated for administrative duties under… some crazy right-wing theory that something something something, because Sam Alito knows diminishing the power of unions will hurt Democrats. But what else did that decision do? Listen and find out!

After all that, it’s time for the most controversial #TTTBE yet, in which we discover the answer to Thomas Takes The Bar Exam (regarding larceny and robbery) … or do we? You won’t want to miss this one!

Appearances

Andrew was a guest on the latest episode of the Left at the Valley podcast discussing abortion, as well as the most recent episode of Mueller, She Wrote talking.. well, pretty much everything!

Show Notes & Links

Click here to read the Second Circuit’s ruling in Knight First Amendment Inst. v. Trump (the Twitter case), and here to check out the Fourth Circuit’s ruling in In Re Trump (the Emoluments case).
We first covered the emoluments case way back in Episode 78, and we interviewed Seth Barrett Tillman for his unique take in Episode 35 and Episode 36.
We learned that bad stuff was coming in the emoluments litigation in Episode 239 when the 4th Circuit issued a stay of all discovery; you can read that stay order here.
Finally, click here to read the LA Progressive article on Mark Janus and his conservative activism.

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-And finally, remember that you can email us at openarguments@gmail.com!

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December 27, 2018December 28, 2018

OA239: The Fourth Circuit’s Puzzling Emoluments Ruling

Today’s episode takes a deep dive into the just-released one-page order by the Fourth Circuit staying all discovery in the Emoluments litigation brought by Maryland Attorney General Brian Frosh. How do we fill more than an hour’s worth of time on one page? Why is this ruling really, really bad for everyone?? Listen and find out!

We begin, however, with a brief foray up Yodel Mountain to discuss (1) the reports circulating that Michael Cohen’s phone was in Prague in the summer of 2016, and (2) the ethics review of “Acting” Attorney General Matthew Whitaker concerning the Mueller probe.

After that, it’s time for a deep dive into the Emoluments litigation, the strange procedural posture of Trump’s response, and what this means for civil litigation generally (and this case in particular). You won’t want to miss it!

Then we end with an all new Thomas Takes The Bar Exam #107 on defamation. 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

Click here to read the Whitaker ethics review letter, and here to read the Steele dossier.
We last discussed the Emoluments litigation in Episode 226.
You can check out all of these documents: the Fourth Circuit’s order, the motion to stay, and the opposition filed by Frosh.
Trump’s argument is based on 28 USC § 1292(b) and relies on Fernandez-Roque v. Smith, 671 F.2d 426 (11^th Cir. 1982).

Support us on Patreon at: patreon.com/law

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

Download Link

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!

Support us on Patreon at: patreon.com/law

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

Download Link

November 15, 2018November 16, 2018

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