Federal Vacancies Reform Act – Opening Arguments

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.”

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

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

The “recalcitrant witness” statute is 28 U.S.C. § 1826.
Click here to read Judge Howell’s U.S.D.C. trial court opinion.
We pulled a ton of documents for you in the Miller case, including (a) Concord’s motion to intervene; (b) Concord’s amicus brief on the merits; (c) the eminently silly Sibley amicus brief; (d) Robert Mueller’s merits brief; (e) Andrew Miller’s merits brief; (f) Andrew Miller’s supplemental brief; and (g) Rober Mueller’s supplemental brief. Phew!
Don’t be afraid to check out In Re Sealed Case, 829 F.2d 50 (D.C. Cir. 1987) for the case that’s directly on point.
Finally, you can read the “nearly a heart attack” regs on Mueller’s funding (28 CFR § 600.8(a)(2)) here.

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Today’s episode is that rare Rapid Response Tuesday, necessitated by the persistent rumors that Donald Trump is about to fire Deputy Attorney General Rod Rosenstein. Is it true? How bad are things if it is? And who is this mysterious G. Zachary Terwilliger? You’ll have to listen to know for sure!

We begin by examining the New York Times reporting that predicated the efforts to force out Rosenstein. Listen and you’ll learn why is Andrew confident that these reports are false — and get a rare “Randall Was Right” segment to boot!

After that, we look to the statutory line of succession if Rosenstein is indeed fired, and we wind up at Noel Francisco and… Sideshow Zach? How did THAT happen? Bonus: Is Francisco a Trump hack? All signs point to…

Then, we look to the statutory protections for Mueller even if Rosenstein is fired. Will the entire Russia investigation be fed into a Fargo/Deadpool 2-style woodchipper?

And, if all that wasn’t enough, we also have a mini-deep dive into the Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq. Does it matter if Rosenstein was fired or if he resigned?

Finally, we end — at long last! — with Thomas Takes the Bar Exam Question #94 regarding the Forest Service’s new rules. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

Lots! Thomas will be at QED in Manchester, UK on Oct. 13 and 14.

Andrew will be debating originalist (and Kavanaugh clerk!) Justin Reed Wilson in Louisville, Kentucky on September 27 at Impellizzeri’s Pizza; to attend, just RSVP on this Facebook link.

Show Notes & Links