OA299: Executive v. Judiciary (Worcester v. Georgia)

Today’s episode takes a deep dive into an 1832 decision, Worcester v. Georgia, to try and answer the question of what happens when the executive and judicial branches come into conflict. Yes, there’s a lesson to be drawn to today’s Supreme Court-vs.-Donald Trump showdown over the citizenship question on the census.

We begin, however, with a pair of updates to previous shows, including “Joey Salads” and his nonsense “complaint” against AOC, and a listener email and update from our friend Seth Barrett Tillman regarding the status of the emoluments clauses litigation in both Maryland and DC. In fact, a late-breaking decision in the DC case led to a Patreon-only bonus extra on the topic!

Then, it’s time for the main event: breaking down the case that led to the famous aphorism, “Justice Marshall has made his decision, now let him enforce it.” As is usually the case with these deep dives, there isn’t an easy answer as to what the outcome will be when the executive and judiciary stare each other down, but we can always learn from history.

In the “C” segment, we check out an update from friend of the show Randall Eliason, who taunts us with an Andrew Was Wrong about the future of Bridgegate (from Episode 232). Learn what issue is in fact going before the Supreme Court and why Prof. Eliason thinks the Bridgegate conspirators are going to get off scot-free.

After all that, it’s time for #T3BE #135, in which Thomas once again manages to analyze a question absolutely perfectly… only to pick the wrong answer yet again. You won’t want to miss the full discussion.

Appearances

Andrew was a guest on the latest episode of the Registry Matters podcast discussing the Supreme Court, as well as the most recent episode of Mueller, She Wrote from the live show in Philadelphia talking.. well, pretty much everything!

Show Notes & Links

  1. We last discussed the Emoluments Clauses litigation in Episode 297. and for more, check out our Patreon-only bonus extra on the topic!
  2. Here’s the full text of the 1832 Supreme Court decision in Worcester v. Georgia.
  3. We last discussed Bridgegate in Episode 232, and you can click here to read Prof. Eliason’s latest blog on the topic.





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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

  1. 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).
  2. 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.
  3. 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.
  4. Finally, click here to read the LA Progressive article on Mark Janus and his conservative activism.

-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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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

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

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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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OA195: Lordy, There Are Tapes!

Today’s Rapid Response Friday breaks down all of a busy week’s developments in the Trump Administration’s trip up Yodel Mountain, including the surprising revelation that Michael Cohen has audio tapes of his conversations with Donald Trump.  What does it all mean?  Listen and find out!

We begin, however, with a challenging listener question regarding legal ethics and summer associates that hearkens back to our last episode.

The main segment tackles an entire week’s worth of yodeling, including the Cohen tapes, the emoluments lawsuit, and the Manafort trial.  Phew!

After that, we check in with our buddy Andrew Seidel from the FFRF about a recent victory in the 9th Circuit regarding prayers at public school board meetings.

Finally, we end with an all new Thomas Takes The Bar Exam #86 involving the questionable sale of a used car.  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

  1. Don’t forget to tune in to our live Q&A this Tuesday, 7/31, at 7 pm Eastern / 4 Pacific.  And, of course, participate in the questions thread!
  2. Here’s the Reuters report that there are 12 Cohen-Trump tapes; we’ve heard just part of the first one regarding Karen McDougal, whom we first discussed back in Episode 158.
  3. You can read the Emoluments ruling for yourself; we covered this most recently back in Episodes 160 and 162.  For our original two-part interview with Seth Barrett Tillman, check out Episodes 35 and 36.
  4. Some documents from the Manafort trial:  2018.07.22 Yanukovich govt response2018.07.20 Yanukovich motion in limine2018.07.25 orders on motions in limine; and 2018.07.26 government jury response.  And, of course, you should take a look at the government’s Exhibit List.
  5. We discussed the “Bernie Sanders” lawsuit against the DNC back in Episode 106.
  6. Finally, for some good news, check out the 9th Circuit’s opinion in FFRF v. Chino Valley Unified School District; we discussed Town of Greece v. Galloway in Episode 85.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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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OA160: Schrodinger’s Andrew

In this rapid-response episode, Thomas and Andrew take a look at the things Andrew Was Right about over the past few weeks (yay!) as well as the things Andrew Was Wrong about (boo!).  It’s Schrödinger’s Andrew Day!

In the pre-show segment, the guys go through the scenario for all of our Opening Arguments Community March Madness potential winners.  After that, it’s time for Andrew Was Right! (TM).  We cover the Alex van der Zwaan sentencing memorandum and what it means for Yodel Mountain, as well as both the Amended Complaint and the Motion for Expedited Trial filed by our next Attorney General, Stormy Daniels.  You won’t want to miss it!

After that, it’s time for Andrew Was Wrong (TM), in Andrew owns up to a few corrections about Watergate and revisits the emoluments lawsuit discussed way back in Episode 78.  Andrew was skeptical then; has he changed his mind?

Finally, we end with an all-new TTTBE #69 that questions your knowledge of the “firefighter’s rule” and whether it protects cops who get sideswiped.  Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

Andrew was recently a guest on Episode 255 of the Phil Ferguson Show and Episode 96 of the Naked Mormonism Podcast.  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. This is the Alex van der Zwaan sentencing memorandum; he pled guilty to 18 U.S.C. § 1001.  You can click here to read the Christopher Miller story suggesting that “Person A” is Konstantin Kilimnik.
  2. This is the Amended Complaint filed by Stormy Daniels; you can also read the Notice of Removal filed by EC and the Motion for Expedited Trial filed by Daniels.
  3. Stormy’s expedited trial motion is pursuant to 9 U.S.C. § 4.
  4. This is the Washington Post article on Alexander Butterfield, which is definitely worth a read.
  5. Here’s the District Court’s opinion in the emoluments litigation, which we first discussed back in Episode 78.
  6. If you want to dive more into emoluments, you can read Mississippi v. Johnson, 71 U.S. 475 (1867), or listen to our two-parter with originalist Seth Barrett Tillman:  Episode 35 (Part 1) and Episode 36 (Part 2).

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com

 

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