OA263: Nielsen v. Preap and Due Process Due Aliens

Today’s breaking news episode contains your guide to the hotly-debated Supreme Court decision in Nielsen v. Preap, regarding how and whether aliens can be detained without due process.  What does it all mean?  Listen and find out!

We begin, however, with a brief update on the Congressional Investigations we discussed in Episode 259 with the news that Hope Hicks will cooperate.  Listen to our past episode if you don’t realize how huge this is.

Then, we move on to some news regarding a recent order handed down by Judge Kollar-Kotelly in the District Court for the District of Columbia with respect to the trans ban.  We dive into the unique procedural issues giving rise to this order and tamp down on your enthusiasm that this may put the trans ban in jeopardy.

Then, it’s time for our main segment breaking down Nielsen v. Preap. We tell you exactly what this decision means along with the reasons why the Court reached the result it did.

But that’s not all!  After that, we have our weekly trip to Yodel Mountain with two items:  (1) an Andrew Was Right about the source of the National Enquirer‘s acquisition of compromising material about Jeff Bezos; and (2) a follow-up on the New York indictment of Paul Manafort.

And if all that isn’t enough for you, well, we end, as always, with a brand new Thomas Takes the Bar Exam Question #119 involving long-term contracts for the sale of wheat.  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

1. First discussed trans ban back in Episode OA: 247
2. We were assisted by Alice Ashton – trans Arabic linguist who contributed to the Advocate article located here and by Deirdre Anne Hendrick.
3. Here is a link to Directive-Type Memorandum (DTM) 19-004.
4. Pre Show: Hicks to cooperate. This is HUGE!
5. 1/4 – DC Cir. Reversed and vacated the injunction.
6. 1/22 – Supreme Court lifted the stays in two of those cases. We covered it the next day on Episode OA: 247.
7. Next day, on 3/8, the government filed a notice and this is the Plaintiffs’ response.
8. Here is the link DC Circuit’s Opinions issued 3/8
9. Judge Kollar-Kotelly’s 3/19 Order
10. 3/20 Gov’ts Motion to Clarify
11. Nielsen v. Preap is linked Here
12. 8 U.S.C. § 1226(a) vs. (c) – 1952
13. Demore v. Kim, 538 US 510 – Supreme Court 2003
14. Wall Street Journal article on Becker/Bezos
15. CHN article on the problems with New York’s double jeopardy.

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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, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com



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OA261: Sentencing Paul Manafort

Today’s extra-long episode contains your guide to all of the developments involving Paul Manafort over the past week.  What does it all mean and what can we expect next?  Listen and find out!

We begin, however, with a brief update on Episode 247 now that the Department of Defense has issued a Directive-Type Memorandum (DTM 19-004) implementing the ban on transgender service in the military.  With the help of some friends of the show, we break down the most pressing issues on the near horizon.

Then, it’s time for All Things Manafort (TM), which sneakily includes a deep dive into exactly how the U.S. Federal Sentencing Guidelines came into effect, when they were mandatory, how they became advisory, and what the hell happened in the Eastern District of Virginia.

But that’s not all!  After that, we have a discussion on when sentences should run consecutively versus concurrently, and how that interacts with Judge Amy Berman Jackson’s sentencing decision in Manafort’s DC case.

AND we also have breaking news regarding new state charges brought against Manafort as soon as both federal sentences were handed down.

And if that’s not enough for you, well, we end, as always, with a brand new Thomas Takes the Bar Exam Question #118 that’s a dreaded real property question.  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

  1. First discussed trans ban back in Episode OA: 247
  2. We were assisted by Alice Ashton – trans Arabic linguist who contributed to the Advocate article located here and by Deirdre Anne Hendrick.
  3. Here is a link to Directive-Type Memorandum (DTM) 19-004.
  4. This is the Feb. 22, 2018 Mattis directive.
  5. Here are the DSM-5 guidelines on gender dysphoria
  6. We first discussed the Sentencing Guidelines in Episode OA: 162.
  7. The accompanying statute is 18 U.S.C. §3553.
  8. For a primer on “variances” versus downward departures, check out the Sentencing Commission guidelines.
  9. Judge Ellis transcript can be found here.
  10. Concurrent/consecutive is governed by 18 U.S.C. § 3554.
  11. Manafort’s NY State indictment involves Residential Mortgage Fraud 1st degree (4 counts) under Penal Law § 187.25 and Falsifying Business Records 1st Degree (8 counts) under §175.10.
  12. We discussed Gamble v. U.S. in Episode Episode OA: 215.

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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OA253: Religious Freedom and Domineque Ray

Today’s episode tackles the recent Dunn v. Ray decision in which the Supreme Court used a procedural mechanism to allow the State of Alabama to execute a devout Muslim without affording him the same sorts of religious freedom they do to Christian inmates.  Is it as bad as it looks? (Yes.)

We begin, however, with an unfortunate Andrew Was Wrong (and a promise to get better)!

Then, it’s time for a depressing deep dive into Dunn v. Ray and what ‘religious freedom’ actually means to this Supreme Court.

After that, it’s time for a trip to Yodel Mountain where we review the latest ruling from Judge Amy Berman Jackson about exactly how big a liar Paul Manafort is.  (Hint:  yuge.)  What does this mean for a potential Manafort pardon, and does the federal system have parole?  Listen and find out!

We end, as always, with a brand new Thomas (& AG!) Take the Bar Exam Question #114 about whether banks own everything.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

Andrew was just a guest on S3E6 of the fabulous Mueller, She Wrote podcast; go check it out! 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. Supreme Court – Dunn v. Ray order
2. 11th Circuit ruling in Dunn v. Ray
3. We discussed Manafort’s plea on Episode OA: 211
4. Text of Manafort plea deal
5. Judge Jackson’s determination
6. 18 U.S.C. § 3624 Release of a prisoner (b) Credit Toward Service of Sentence for Satisfactory Behavior

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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OA220: Carter Page, Clownhorn

Today’s Rapid Response Tuesday takes an in-depth look at OA’s new favorite clownhorn, Carter Page, and his delightfully mad lawsuit against the Democratic National Committee, the law firm of Perkins Coie, and (I think) the Ancient Order of the Illuminati.  Strap in!

We begin with some good ol’-fashioned yodeling, with a roundup of stories with Yodel Mountain implications, including (1) the report that Mueller’s probe will conclude after the midterms; (2) Paulie Manafort’s latest motion; (3) the departure of White House counsel Don McGahn; and (4) some news regarding Michael Avenatti’s White House run in 2020.

Then — oh man — it’s time for a deep dive into Carter Page’s lawsuit regarding this September 23, 2016 Yahoo news story, written by esteemed reporter Michael Isikoff, that Mr. Page delightfully believes is defamatory.

After all that, we end with an all new Thomas Takes The Bar Exam #98 regarding constitutional law standards for a group home.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

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. This is the Bloomberg News article suggesting that Mueller’s probe will conclude after the midterms.
  2. You can click here to read Judge Ellis’s order denying Manafort’s motion to appear in street clothes.
  3. This is the New York Times story on McGahn’s departure.
  4. Click here to read the FEC data on Michael Avenatti’s Fight PAC.
  5. This is the Sep. 23, 2016 Yahoo story
  6. This is the Carter Page lawsuit, which you absolutely must read.  Oh, and check out the (heavily redacted) FISA application showing that the FBI believes Page to have been the subject of targeted recruitment by the Russian government.
  7. This is the September 23, 2016 Isikoff story in Yahoo that Page believes is defamatory; we also referenced Page’s trip to Moscowthe terrorism statute, 18 U.S.C. § 2332b, and, of course, the fact that Page previously sued Yahoo over this exact same story and lost.

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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OA211: Manafort Flips (and more on Kavanaugh)

Today’s Rapid Response Friday tackles (1) Paul Manafort’s plea deal and (2) the surprise resumption of the Senate Judiciary confirmation hearings for Supreme Court Associate Justice nominee Brett Kavanaugh in light of Dr. Ford’s allegations, which are discussed in depth on Episode 158 of Serious Inquiries Only.  What should you look for during Monday’s hearings?  Listen and find out!

We begin with an acknowledgment of the story sent to us by several hundred thousand listeners regarding crazy person Cody Wilson.

After that, it’s time for an important Andrew Was Wrong:  Paul Manafort did not plea over the weekend; he pled guilty pretty much the second we stopped recording!  We break down everything there is to know about his deal, including the strong incentives Manafort has not only to cooperate but to roll over and expose his belly to Mueller’s team in hopes of being thrown a bone or two.  Oh, and we time-travel back to the 19th century to answer a super-interesting listener question on asset forfeiture!

Then, it’s time to discuss Kavanaugh again, in light of the troubling accusations made by Dr. Ford and other issues, including the Democratic Senators’s FOIA lawsuit compelling the production of Kavanaugh’s documents that are being withheld while the Republicans try and cram through his nomination.  It’s not a pretty segment, but we think you’ll walk away equipped to understand Monday’s hearings.

After all that, we end with an all new Thomas Takes The Bar Exam #94 regarding Congressional delegation of rule-making authority.  Will Thomas get back on track with just one extra wrong answer to give in the next six questions?  Yu’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

Andrew will be debating originalist (and Kavanaugh clerk!) Justin Reed Wilson in Louisville, Kentucky on September 27; click here for the Facebook RSVP link if you’d like to attend!

Show Notes & Links

  1. For an in-depth analysis of Dr. Ford’s allegations against Kavanaugh, listen to Episode 158 of Serious Inquiries Only.
  2. You should really read through Mr. Ostrich-Jacket’s plea deal for yourself.  (And yes, that’s the show graphic.)  This is the TPM article Andrew criticizes; as you’ll see from the Sentencing Table, Manafort faces 210-262 (or more) months in prison.
  3. Here’s the polling aggregator from our friends at 538.; as of today, Democrats have a 1-in-3 chance of retaking the Senate.
  4. Click here to read Blumenthal v. US Nat’l Archives, the FOIA complaint filed by the Senate Judiciary Democrats, and here to read the Motion for TRO (which does not yet have an accompanying Memorandum).  FOIA is 5 U.S.C. § 552.
  5. Finally, this is the text of the Sanai letter describing Alex Kozinski and seeking an investigation into Kavanaugh’s knowledge and testimony.

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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OA210: Cash Bail, Glucksburg and More

Today’s episode takes two deep dives:  first, into California SB10, which eliminates the “cash bail” system of pretrial detention in California, and second, into the Supreme Court’s 1997 decision in Washington v. Glucksberg.  What does it all mean?  You’ll have to listen to know for sure!

We begin, however, with an update on Wells Fargo’s $1 billion remediation plan first discussed in Episode 169.

After that, we tackle California SB10, which is now law — even though it won’t go into effect until October of 2019.  Is this a good or a bad thing?  Would it change your mind to learn that the ACLU flip-flopped on this bill?  Listen and find out!

From there, we move into an in-depth analysis of Glucksburg and what it means for the future of the Supreme Court.

Then, we give you a little retroactive speculation regarding the possiblity that Paul Manafort might plead guilty.  Yes, it’s a living record of the fact that we record on Thursdays — but we think you’ll like the analysis anyway.

Finally, we end with Thomas Takes the Bar Exam Question #93 regarding double jeopardy.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

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

  1. We first discussed Wells Fargo’s fine and remediation requirements in Episode 169; you can check the OCC’s News Releases for yourself to see when the rejection becomes public (if ever).  For now, we had to make due with this Reuters article.
  2. You can read California SB10, as well as check out the opposition from both Human Rights Watch and the ACLU.
  3. Here is the full decision in Washington v. Glucksberg, 521 U.S. 702 (1997).
  4. During the Glucksburg segment, we discussed Sen. Coons’s question to Kavanaugh about it, and, of course, Ted Cruz’s “Washington Generals” questions during the confirmation hearings.  Also, we referenced earlier written answers from Elena Kagan during her confirmation hearings discussing Glucksburg.
  5. Glucksburg was explicitly distinguished in the Obergefell decision.

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!

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And email us at openarguments@gmail.com



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OA201: Follow Up Friday!

Today’s Rapid Response Friday is actually a Follow Up Friday!  We revisit four stories from recent episodes and go into more depth on each one, particularly in light of recent developments.

We begin with our most recent story regarding reporter’s privilege in Episode 200.  What’s the other side of the argument?  Find out why friend of the show Randall Eliason thinks that reporter’s ought not to have the right to keep their sources confidential!

After that, we move back one more episode to Episode 199 and tackle some important listener questions about asbestos.  Along the way, we discuss the difference between strict liability and negligence and delve into theories of market share liability.

Our main segment covers the unsurprising fact that Masterpiece Cakeshop is back in the news.  What does this mean?  How has the Supreme Court’s decision changed the landscape for religious exemptions to laws?  Listen and find out!

After that, we go back to Yodel Mountain and check in with the conclusion of the Manafort trial.  Phew!

And if all that wasn’t enough, we end with an all new Thomas (and Yvette) Take The Bar Exam #89 involving the appropriate damages for breach of contract. 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. We discussed reporter’s privilege in Episode 200; for the other side, check out this 2007 article by Randall Eliason on the BALCO scandal or this law review article in the American University Law Review.
  2. Of course, we discussed asbestos in Episode 199, but we first broke down the law of negligence way back in Episode 29.  We cite to the Restatement (Second) of Torts § 520 and Sindell v. Abbott Labs, 607 P.2d 924 (1980).
  3. Click here to read the new Masterpiece Cakeshop complaint.

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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OA198: What Is Alan Dershowitz Thinking?

Today’s episode takes an in-depth look at Donald Trump’s favorite “liberal,” Harvard Law professor Alan Dershowitz as seen through the eyes of one of his former students.

We begin, however, with an update from the Paul Manafort trial, taking a look at the prosecution’s strategy, witness list, and some preliminary rulings by Judge Ellis.

After that, we dive very deeply into what looks like a very weird phenomenon:  why is Alan Dershowitz carrying water for a President whom he ostensibly opposes?  Why is he saying things that are demonstrably and indefensibly untrue about the law?

Andrew has a theory.  Mostly, though, he has stories and research… but they lead to a theory (we promise)!

Finally, we end the answer to Thomas Takes The Bar Exam #87 regarding constitutional law and a state vs. the federal Confrontation Clause.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

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. This is the article in The Hill indicating that the prosecution would, in fact, call Rick Gates; earlier, friend of the show Randall Eliason gave a bunch of reasons why they might not.  Oh, and Eliason also has you covered as to why ‘collusion’ is, in fact, a crime.
  2. This is the laughable Fox News report on how Judge Ellis hates the prosecution; for a dose of reality, you might want to check out this other article in The Hill about how Judge Ellis chastised both sides’s lawyers.
  3. If you missed it, this is our Episode 107 where we tackled Serial.
  4. Here’s the PBS retrospective on Dershowitz and the OJ trial.
  5. Our Dershowitz story on ‘testilying’ begins with Mapp v. Ohio, 367 U.S. 643 (1961) and the origins of the exclusionary rule; Dershowitz coined the term ‘testilying’ in this New York Times article from 1994.
  6. Testilying is, of course, a consistent problem today (see A, B) — but Dershowitz hasn’t spoken about it since 1998 (and even then, in an entirely different context).
  7. Instead, he attacked Baltimore’s decision to indict the police in the Freddie Gray case in 2015.

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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OA194: Paul Manafort is Going to Trial! (& McDonald’s!)

Today’s episode tells you everything you need to know before Paul Manafort’s trial in the Eastern District of Virginia, which begins Wednesday, July 25, 2018.  Oh, and we break down the recent lawsuit against McDonald’s to boot!

We begin, however, with a very good listener question from “Judicial Noir” regarding ethics, science, and a summer internship!

After that, it’s time to discuss an actual lawsuit over actual cheese.   Yes, there’s a class action lawsuit against Thomas’s favorite restaurant (McDonald’s) — and we’re here to help you separate fact from fiction!  Oh, and along the way, you might learn something about Microsoft, illegal tying arrangements, and antitrust law!

Then, it’s back to Yodel Mountain to explain in depth exactly what’s going on with our buddy Paulie M, and what you can expect over the next two weeks.

Finally, we end the answer to Thomas Takes The Bar Exam #85 regarding real property.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

If you didn’t see Andrew’s live appearance on Left-Right Radio with Chuck Morse, you can check out the YouTube archive of it.  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. Before we get to McDonald’s, you’ll need to read all about US v. Microsoft, 253 F.3d 34 (2001).  While you’re at it, you might as well brush up on the Sherman Anti-Trust Act, 15 U.S.C. § 1 et seq.
  2. After that, you can read the class action lawsuit against McDonald’s regarding the Quarter Pounder and Double Quarter Pounder.
  3. Andrew first broke down Judge Ellis in Episode 172.

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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