Tag Archives: Michael Cohen

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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OA168: Michael Cohen Takes Five

In the main segment, we discuss the intersection between the Paul Manafort criminal trial and the public’s right to know about the Mueller investigation.  Oh, and … isn’t there a bill pending to protect Mueller?  We break down that, too.

But we’re not done!  After that we delve into all things Michael Cohen, including his efforts to stay the California civil suit and his less-than-likely efforts to stay out of criminal trouble in New York.  If you love Stormy Daniels — and who doesn’t? — you won’t want to miss it.

Finally, we end with an all new Thomas Takes The Bar Exam #73 about landlord-tenant-friend relationships.  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

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. From our grab bag:  here is a link to the Kobach memo that’s PROBABLY NOT WORTH ARGUING; this is the New York Post report on the hilarious Make America Great Again bar lawsuit; and this is the link to all the gun control bills passed in Maryland.
  2. Click here if you want to read the Comey memos.
  3. We first discussed the Manafort trial back in Episode 118; this is the Government’s Memorandum in Opposition to Manafort’s Motion to Suppress, and here is the press motion to unseal portions of the Mueller investigation.  Oh, and this is Morrison v. Olson, 487 U.S. 654 (1988), discussed during the show.
  4. Here’s the link to the Washington Post article reporting that Trump has conceded that Michael Cohen “represents me with this crazy Stormy Daniels deal.”  In this segment, we discuss Kastigar v. U.S., 406 U.S. 441 (1972).
  5. Finally, you can click here to read the government’s status report filed in Cohen’s New York investigation.

Support us on Patreon at:  patreon.com/law

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OA166: The Taint Team (& Also, Alex Jones)

In this rapid-response episode, Thomas and Andrew take a look at the attorney-client privilege issues relating to the FBI’s search of the offices of Michael Cohen, alleged lawyer to Donald Trump and… Sean Hannity?!?

First, we begin with a finishing move from one of our pro wrestler listeners, updating our story that we first covered in Episode 163.  (Is it the Million Dollar Dream?  Listen and find out!)

In the main segment, we break down all that happened (and all that’s yet to come!) in the ongoing legal case against Michael Cohen we first discussed in Episode 164.  How strong is Cohen’s argument that he’s entitled to protect the privilege of his legal clients?

After that, we take a  look at three lawsuits against Alex Jones and InfoWars and start the discussion about what to do about blatantly false, politically-motivated conspiracy theories.  Are defamation lawsuits the answer?

Finally, we end with an all-new TTTBE #72 about real property law.  If you’ve ever thought about playing 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

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 search of Cohen’s offices in Episode 164.  You can read Michael Cohen’s Motion for TRO, which was denied on Monday April 15, as well as his revised request for a special master, which remains pending.
  2. This is the Gilmore Complaint filed and Alex Jones, and here is a New York Times story on the other two defamation complaints filed by parents of victims of the Sandy Hook shooting.

Support us on Patreon at:  patreon.com/law

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OA164: As American As Baseball, Hush Money, and… Segregated Schools?

In this rapid-response episode, Thomas and Andrew take a look at the FBI’s search of the offices of Michael Cohen, Donald Trump’s personal lawyer and alleged “fixer.”

First, we begin with a discussion of a curious legal move by the Miami Marlins, alleging that they are, in fact, a … citizen of the British Virgin Islands??

In the main segment, we find out that Andrew Was Right when he declared Stormy Daniels “A Legal Genius.”  How right?  Listen and find out!

Next, we take a return trip to Yodel Mountain, where we discuss Paul Ryan’s impending retirement, Wendy Vitter’s comically bad confirmation hearing, and more!

Finally, we end with an all-new TTTBE #71 about constitutional law that is the toughest question we’ve asked to date.  If you’ve ever thought about playing along, now’s the time; 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. This is Alphr’s list of the “15 Best Podcasts of 2018” — and wow, we’re in some good company!
  2. If you love procedural questions (and you hate Derek Jeter), you’ll want to read the Marlins Notice of Removal as well as Miami’s Opposition.  Oh, and this is the relevant legal provision, 9 U.S.C. § 202.
  3. This is the U.S. Attorneys’ Manual; § 9-13.420 governs searching law firm offices.
  4. Here’s the report on Paul Ryan’s fundraising from Politico, announced two days before he decided to retire.
  5. Finally, here’s a link to the video of Wendy Vitter refusing to answer whether she supports Brown v. Board of Education.

Support us on Patreon at:  patreon.com/law

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OA154: Stormy Daniels is a Legal Genius

This emergency episode examines the Complaint filed by Stormy Daniels seeking a legal determination that the Settlement Agreement entered into between her, Donald Trump’s lawyer, and (allegedly) Donald Trump is not legally binding.

We honestly believe that this is a much bigger bombshell than is being portrayed by the press.  Listen and find out why.

We also end with an all-new TTTBE #66 featuring David Michael.  You won’t want to miss it!  Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Support us on Patreon at:  patreon.com/law

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