Matthew Whitaker – Opening Arguments

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).

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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 26, 2018November 27, 2018

OA230: TOO MUCH MEAT!

Today’s deep-dive Tuesday tackles that viral case caption you’ve probably seen floating around Twitter: “United States v. 1,855.6 pounds of American Paddlefish Meat.” Is the sack of fish meat really going to have to show up in court? Will it have a lawyer??!? Listen and find out!

We begin, however, with a roundup of all the lawsuits filed against Matthew Whitaker, including the most recent one brought by Senators Blumenthal and Hirono. Oh, and we check with an op-ed written by… the Torture Guy? What’s going on here??

The main segment delves into in rem jurisdiction in order to explain the “paddlefish meat” caption. If you like legal minutiae — and let’s be honest, you’re listening to this podcast — you’ll love this segment.

Then, it’s time for a truly great listener question holding Andrew’s feet to the fire on Net Neutrality and the Munsingwear doctrine. It’s not an Andrew Was Wrong, but it is an… Andrew Could Have Explained That Better? Either way, you won’t want to miss it.

Finally, we end with the answer to Thomas Takes The Bar Exam #102 on hearsay. Find out if Thomas’s coin can pass the bar exam! And 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

Click here to check out Lawfareblog’s clearing house for Whitaker complaints, and click here to read John Yoo’s (surprising) op-ed arguing that Whitaker’s appointment was illegal.
If you want to read the actual meat filing, click here.
Special shout-out to law professor Brian L. Frye for tipping us off to United States v. 43 1/2 Gross Rubber Prophylactics!

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 21, 2018November 22, 2018

OA229: Andrew Miller & the Appointments Clause

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.

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