OA290: Executive Privilege, Hope Hicks & Don McGahn

Today’s episode takes a deep dive into executive privilege, evaluating the legal arguments being raised by the Trump administration asserting executive privilege over former communications director Hope Hicks and former counsel Don McGahn. Find out how good those arguments are — spoiler: some aren’t terrible! — and what’s next for the Congressional Democrats.

First, though, we begin with coverage of the American Legion v. American Humanist Ass’n decision from last week; that’s the Bladensburg Cross case that we’ve discussed at some length on this show. How bad is this decision? (Bad.)

Then, it’s time for the intersection of Rapid Response Friday and Deep Dive Tuesday in which we time travel all the way back to 1971 to evaluate the Trump Administration’s claims regarding executive privilege “over the last five decades.” As you’ve come to expect from OA, we tell you what the administration got right… and, of course, what they got wrong. If you want to know if and when Congress will ever get meaningful testimony out of Hope Hicks or Don McGahn, you need to listen to this show.

Then, it’s time for the answer to TTTBE #131 about the propriety of a specific question during cross-examination of a witness who testified as to the defendant’s “reputation for honesty.” If you love the Federal Rules of Evidence — and really, who doesn’t? — you’ll love this segment.

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. We first discussed the Bladensburg Cross case in Episode 256 with Sarah Henry of the AHA, and then got first-hand testimony about the oral argument in Episode 274 with Monica Miller.
  2. Click here to read the full Supreme Court opinion in American Legion v. American Humanist Ass’n. If you missed our coverage of Masterpiece Cakeshop, check out Episode 180.
  3. We first broke down the importance of Hope Hicks to the Congressional investigations in Episode 259; and you can click here to read the letter and subpoena she received from Rep. Nadler.
  4. NPR confirmed that Hicks’s testimony was carefully managed by White House lawyers (and was therefore worthless).
  5. Click here to read Rehnquist’s 1971 memorandum on executive privilege, and click here to read how President Clinton’s OLC cited that memo 25 years later.
  6. Finally, this is Committee on the Judiciary v. Miers, 558 F.Supp.2d 53 (2008), the district court opinion Andrew breaks down on the show.

-Support us on Patreon at: patreon.com/law

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-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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OA287: Down the Hatch (Act)?

Today’s Rapid Response Friday covers all of the breaking developments this week, including a ruling from the Wisconsin Supreme Court, the latest news out of the House of Representatives, and the Office of Special Counsel’s latest request that Donald Trump should fire Kellyanne Conway for “flagrant” serial violations of the Hatch Act. What does all that mean? Listen and find out!

We begin by revisiting the state of Wisconsin, where Republicans in gerrymandered-safe seats in the state legislature stripped power away from the incoming Democratic Governor and Attorney General. A trial court issued an injunction preventing that law from going into effect, and just two days ago, the state Supreme Court finally ruled on that injunction. How did that go? (You know the drill.)

Then, we move into the main segment, in which we discuss all of the developments related to the census question we last discussed in Episode 286. Learn about one respondent’s petition for limited remand, the White House’s assertion of executive privilege, and then what’s next from the Democratic House.

After all that, it’s time to climb Yodel Mountain. Learn exactly who Lt. Gen. Michael Flynn hired once he fired Covington & Burlington Coat Factory, and what that (probably) means. And then, it’s time to learn allllll about the Hatch Act, and why a loyal Trump supporter thinks it means it’s time to fire Kellyanne Conway.

Then, it’s time for Thomas Takes the Bar Exam. This time, Thomas tackles a tricky question about a government agency that hires a private collector to purchase antiques. Can the state charge sales tax? Listen and 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. We last discussed the census in Episode 286.
2. Click here to read the NYIC petition for limited remand.
3. This is HR 430, which is the full House vote to allow the Judiciary Committee to sue to enforce the McGahn and Barr subpoenas.
4. And here is the roll call vote.
5. The Hatch Act is 5 U.S.C. § 7323.
6. The Hatch Act was upheld in United States Civil Service Comm’n et al. v. Nat’l Ass’n of Letter Carriers, AFL-CIO, et al., 413 U.S. 548 (1973).
7. Finally, click here to read the OSC Conway letter.

-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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OA277: The Republican Civil War

Today’s episode breaks down everything you need to know about what’s going to happen with the House Judiciary Committee’s vote to recommend holding Bill Barr in contempt of Congress. Is this all going to go nowhere in a Trump-dominated executive and a right-wing judiciary? Find out why Andrew’s optimistic, and why he calls the underlying dynamic the coming Republican Civil War! All that and we revisit the Republican Andrew called the “key to the apex of Yodel Mountain” over a year ago!

We begin, however, with a big MISSION ACCOMPLISHED banner: you did it! Opening Arguments listeners opened up bar complaints with the Florida Bar about Congressman and nasty little troll Matt Gaetz, and now he faces a state bar disciplinary proceeding.

He’s not the only one, either; we got breaking news today that Paulie Manafort has indeed been disbarred by the District of Columbia!

During the main segment, we break down (1) the contempt recommendation by the House Judiciary committee and exactly what is going to happen next; (2) what the House’s “inherent sanctions” powers are, and whether they can really sic the Sergeant-at-Arms on Bill Barr (hint: yes!); (3) assertions of executive privilege; and (4) the Republican Senate Intelligence Committee’s subpoena of Donald Trump Jr. Is Richard Burr (R-NC) the next In Rod We Trust? Listen and find out… and brace yourself for the coming Republican Civil War!

After all that, it’s time for a Thomas Takes the Bar Exam featuring special guest Andrew Seidel. Together, the two sit in for an evidence question about the admissibility of prior bad acts. Brush up on your “Ol’ Switcheroo” law and play along with us for #TTTBE!

Appearances

Andrew was just a guest on Episode 194 of God Awful Movies, reviewing the Law’d Awful Movie “Gosnell: The Trial of America’s Biggest Serial Killer.” And 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 news about Matt Gaetz’s investigation in the Tampa Bay Times.
  2. If you love old-timey law review articles, this University of Pennsylvania Law Review one about Congress’s inherent sanctions power from 1925 is pretty fun! Or, if you’d rather something from this millennium, check out the 2007 Chafetz article we discuss on the show.
  3. The crime Bill Barr has committed is a violation of 2 U.S.C. § 192.
  4. We discuss how this exact same scenario has already played out before in Committee on the Judiciary v. Miers, 558 F.Supp.2d 53 (2008).
  5. AAG Boyd cited this 1982 Reagan memo, but conveniently forgot to cite this 1984 OLC opinion that definitively shows he’s full of it.
  6. Finally, we first discussed the Senate Intelligence Committee Report on Russian interference written by Sen. Burr back in Episode 190.

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, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com





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