Tag Archives: Michael Cohen

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).

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OA235: Corporations Are People, My Friend… Criminal People

Today’s Rapid Response episode takes a look at three breaking stories related to the White House:  (1) the recent ruling requiring Stormy Daniels to pay Trump’s attorneys’ fees; (2) the sentencing of Trump’s former lawyer, Michael Cohen; and (3) most importantly, the plea deal signed by American Media, Inc. — parent company to the National Enquirer — to cooperate with the Special Counsel’s Office.

We begin by revisiting the question of whether, in fact, Stormy Daniels is still a legal genius.  (Hint:  she is.)  But what does it mean that a court just ordered her to pay Trump nearly $300,000 — and why could it have been much, much worse?  Listen and find out.

After that, we check out Trump’s ex-“fixer” and the former Taxi King of New York, Michael Cohen, who was just sentenced to three years in prison.

Then it’s time for a fascinating look into a non-prosecution agreement reached between the Special Counsel’s Office and American Media, Inc. that tell us an awful lot about where Yodel Mountain is headed.

Finally, we end with an all new Thomas Takes The Bar Exam #105 on modifications to a contract.  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. Here’s the merits ruling defamation we referenced during the show; you can also check out Trump’s motion for attorneys’ fees, Avenatti’s (rather weak) opposition brief, and the court’s ruling directing Stormy to pay almost $300,000.
  2. And because it never ends, check out the mediation questionnaire filled out by Avenatti for their appeal to the 9th Circuit.
  3. You know you want to read the press release regarding Michael Cohen’s sentence; after that, you can check out the sentencing memoranda filed by the SCO’s office (“good cop”) as well as the brief filed by the SDNY (“bad cop”).
  4. Finally, this is the AMI agreeement as well as the DOJ guidelines on prosecuting corporations.
  5. Oh, and just for fun, here’s Jose Canseco’s audition to be Trump’s Chief of Staff.  #YesWeCanseco

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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

  1. Click here to read the new Information to which Cohen pled guilty to today.
  2. 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.
  3. 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.
  4. 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).
  5. 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.
  6. 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.
  7. 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.
  8. Here’s Corsi’s draft deal with Manafort that he rejected.
  9. 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!

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OA204: The Perjury Trap (w/guest Randall Eliason)

Today’s episode welcomes back one of our favorite guest experts, former prosecutor and current law professor Randall Eliason of the Sidebars blog, who will help us break down what exactly a “perjury trap” is — and whether Robert Mueller is laying one for the President.

Of course, when we have a guest this good, we also have to take advantage of his expertise in a couple of other areas.  So we begin by checking in on the news of the day:  Mueller has already reportedly offered immunity to David Pecker, the CEO of the National Inquirer, whom we discussed at great length on Episode 203 in connection with the Cohen plea.

After that, we delve into Rudy Giuliani’s contention that Mueller is laying a “perjury trap” for the President.  Is that a thing?  Is that what he’s doing?  Listen and find out!

After that, we revisit the issue of reporters and confidential sources, where Professor Eliason has been a consistent voice opposing a federal privilege.  Is that a view he still holds?  There’s only one way to know for sure!

Finally, it’s time for the answer to Thomas Takes the Bar Exam, where our intrepid hero tries to inch closer to the coveted 60% mark with a question about torts.  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. Prof. Eliason first guested on the show way back in Episode 70.
  2. Here is the link to the NPR interview with Prof. Eliason discussed on the show.
  3. To read more of Prof. Eliason’s work, click here to visit the Sidebars blog.
  4. Here is a transcript of Prof. Eliason’s statement on reporter’s privilege in the age of Trump.

Support us on Patreon at:  patreon.com/law

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OA203: Paul Manafort Convicted, Michael Cohen Pleads

Today’s extra-long, extra-early Rapid Response episode tackles the two biggest stories in the news right now:  Paul Manafort’s conviction, and Michael Cohen’s plea deal.  We tell you exactly what these two big stories actually mean.

We begin with Paul Manafort.  What did the jury decide?  Why did they fail to reach a verdict on 10 counts?  What were those counts?  How long is Paulie M going to stay in prison and what’s next?  And, most importantly:  what does this mean for Yodel Mountain?  How likely is Paulie M to flip on Donald Trump?  We answer all of these questions and more!

After that, we turn to everyone’s favorite weasel, Michael “I Would Take A Bullet For Donald Trump” Cohen, who… has not taken a bullet for Donald Trump but has in fact pled guilty to eight separate crimes.  What are they, what does it mean, and what comes next?  Listen and find out!

And if all that wasn’t enough, we end with an all new Thomas Takes The Bar Exam #90 involving  foreseeability, cross-motions for summary judgment, and tortious conduct.  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. You’ll want to start with the Manafort indictment, and you can also read the Manafort verdict.  Of the eight guilty counts, Manafort was convicted under 18 U.S.C. § 134426 U.S.C. § 7206(1), and 31 U.S.C. § 5322.
  2. We first discussed the Federal Sentencing Guidelines back in Episode 162; you can check out the full manual (long!) and also the FSG Sentencing table to figure out how long Paulie M is going away.
  3. And don’t forget Manafort still has another trial pending in DC!  We gave you a primer on that back in Episode 194, and you can check out the pending indictment in that case.
  4. If Paulie M flips, it will be to take advantage of Rule 35(b) of the Federal Rules of Criminal Procedure.
  5. Of course, we first covered how Stormy Daniels is a Legal Genius back in Episode 154, and then the Karen McDougal story in Episode 158.
  6. Here’s Cohen’s plea deal; here are the conditions of his release; and here’s the article quoting his allocution.
  7. Sneak preview of the bonus episode:  here’s the DOJ manual on prosecuting campaign finance violations that proves Alan Dershowitz is lying.  Again.

Support us on Patreon at:  patreon.com/law

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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.

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OA187: Lowering the Lukumi Bar?

Today’s Bonus Episode asks if there’s a way to make sense of the Supreme Court’s Lukumi jurisprudence in light of this week’s rulings in Trump v. Hawaii (the Travel Ban), Masterpiece Cakeshop, and the somewhat surprising decision to remand the Arlene’s Flowers case back to the state of Washington.

We begin, however, by checking in with the Southern District of New York’s Order approving the Taint Team’s review of documents seized from Michael Cohen’s offices by the Department of Justice.  How many documents did the Team recommend the Court withhold as privileged?  The answer may surprise you!

After that, we revisit the thesis advanced by Andrew Seidel in Episode 180 that the Supreme Court’s decision in Masterpiece Cakeshop might result in a more vigorous application of its 1993 decision in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).

Next, we break down the Supreme Court’s 5-4 decision in NIFLA v. Becerra, in which the Court struck down a California law regulating so-called “crisis pregnancy centers.”

After all that, we end with an all new Thomas Takes The Bar Exam #82 involving the legality of a search for heroin.  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. Check out the Southern District of New York’s Order regarding Cohen’s meager haul of privileged documents.
  2. Andrew Seidel set forth his “Lukumi bar” thesis in Episode 180; you can read Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) for yourself and then compare it with both Trump v. Hawaii and Masterpiece Cakeshop.
  3. We discussed Planned Parenthood v. Casey at length in a two-part series:  Episode 27 and Episode 28; you might want to compare the statute approved in that case with the one struck down by the Court in NIFLA v. Becerra.

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OA174: Is Michael Avenatti Fit To Practice Law In New York?

It’s time for another Rapid Response Friday, which means we get to break down Michael Avenatti’s response to the opposition to his motion to appear pro hac vice in the Southern District of New York — amongst many, many other issues!

We begin, however,  with a brief Andrew Lived Through The 1980s segment (formerly: Andrew Was Wrong), that segues into an update on the Panmunjom Declaration discussed in Episode 173.

After that, it’s time to go yodeling, where we break down Paul Manafort’s other criminal trial, Michael Avenatti’s ethical responsibilities regarding SARs,  Donald Trump’s financial disclosures, and (sadly) much, much more.

Finally, we end with an all new Thomas Takes The Bar Exam #76 regarding the admissibility of witness testimony.  If you’d like to play along with our new Patreon perk, just retweet our episode on Twitter or share it on Facebook along with your guess.  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. Here is the text of the Panmunjom Declaration we first discussed in Episode 173.
  2. You can read Judge Jackson’s ruling denying Manafort’s Motion to Dismiss, and also Avenatti’s Response to Michael Cohen’s Opposition to his motion to appear pro hac vice.
  3. The primary case relied upon by Avenatti in his response is In re JPMorgan Chase Bank N.A., 799 F.3d 36 (1st Cir. 2015), which is directly on point.
  4. We’ve also uploaded a copy of Trump’s 2018 Financial Disclosures, which admits the Cohen payment.
  5. Finally, we highly recommend Ronan Farrow’s New Yorker reporting regarding the Cohen SARs.

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OA172: Private Prisons, Judge Ellis & More

It’s time for another SUPER-SIZED Rapid Response Friday, which means we get to break down Judge Ellis’s statements in the Paul Manafort criminal trial (amongst many, many other issues)!

We begin, however,  with a brief Andrew (well, mostly ABC and NBC) Was Wrong.

After that, the guys discuss a recent 10th Circuit opinion regarding the treatment of detainees in private prisons.  What does it mean for the future of class action litigation?  Listen and find out!

After that, it’s back to Yodel Mountain, where we break down not only Judge Ellis, but all the developments in or connected to the Mueller investigation, including Michael Flynn and Michael Cohen’s “follow the money” report.  Phew!

Finally, we end with an all new Thomas Takes The Bar Exam #75 about a contract and a subsequent oral modification that Andrew admits he would have muffed.  If you’d like to play along and show Andrew you’re the better lawyer, just retweet our episode on Twitter or share it on Facebook along with your guess.  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. Here’s the link to a Washington Times story covering the correction regarding Michael Cohen’s supposed “wiretap” (that turned out to be a pen register).
  2. The case we discussed in the main segment was Menocal v. GEO Group (10th Cir., Feb. 9, 2018).
  3. Click here to read the 2016 Obama directive on ending privatized prisons, or (if you’re a masochist) here to read the 2017 Trump directive rescinding it.
  4. If you only read one thing from this show, please do read the transcript of the May 4 hearing before Judge Ellis.  It’s great.  I love this guy.
  5. The opposition to Michael Avenatti’s pro hac vice motion is here; it also contains the “Executive Summary” laying out Avenatti’s “follow the money.”  If you prefer to see it in chart form, click here (H/T Washington Post).
  6. The TPM article suggesting that Avenatti must have had access to SARs is here.
  7. To understand bribery, we highly recommend this primer by Randall Eliason.
  8. Finally, please click here to check out Thomas’s May 19 talk in New Orleans.

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OA170: All Yodel, All the Time

Well, it’s another Rapid Response Friday, and we’re here with everything you need to know about Yodel Mountain, including:

  • Breaking news regarding the wiretap of Michael Cohen’s office several weeks before the search warrant issued and that the SDNY has at least one conversation between Cohen and Trump
  • Rudy Giuliani’s rather bizarre appearance on Hannity, during which he admitted that President Trump is DD and paid Michael Cohen back for the $130,000 in hush money paid to Stormy Daniels — directly contradicting the President’s own earlier statement
  • Whether the repayment scheme alleged by Giuliani (a) makes sense and/or (b) constitutes money laundering
  • The “leaked questions” regarding Mueller’s efforts to interview Trump
  • Trump’s decision to replace Ty Cobb with Emmett Flood
  • The House Freedom Caucus’s efforts to impeach Deputy Attorney General Rod Rosenstein; and, of course
  • Stormy Daniels’s latest defamation lawsuit against President Trump

Our tip to journalists — the  question you want to ask is “What ‘information’ does Stormy Daniels have under Paragraph 2.1 of the Agreement?”

Finally, we end with an all new Thomas (and next week’s guest Andrew Seidel) Take The Bar Exam #74 that’s not about real property, but is instead about the rules of evidence and whether a particular line of questioning is permissible.  If you’d like to play along, just retweet our episode on Twitter or share 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 just a guest on Episode 141 of the God Awful Movies podcast, reviewing “Cries of the Unborn.”  Check it out!

Show Notes & Links

  1. We first discussed how unhinged Rudy Giuliani is way back in Episode 13, “Hillary Clinton’s Damned Emails” — which is one of our all-time favorites.
  2. This is the not-to-be-missed Laura Ingraham reaction video to Giuliani’s Hannity appearance, which led to this set of tweets from the President.
  3. The money-laundering statute is 18 U.S.C. § 1956.
  4. This is the New York Times article we mentioned that breaks down the political implications of the switch from Cobb to Flood, and here is the list of questions Mueller wants to ask Trump.
  5. Finally, this is the Stormy Daniels defamation complaint.

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