Transcript of OA392: In the Aftermath of George Floyd

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[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 392.  I’m Thomas, that’s Andrew.  How’re you doing, Andrew?

Andrew:         I have to say fantastic, right?

Thomas:         You are contractually obligated, but uh-

Andrew:         I’m excited to do the show, I’m not excited that the world is still on fire, but I am excited to do the show.

Thomas:         Yeah, we can do a little contract law.  You are obligated to say “fantastic,” but at what point has the world become such an act of god or whatever?

Andrew:         [Laughs]

Thomas:         Does the state of things?

Andrew:         [Laughing] Yeah!

Thomas:         At what point can you no longer be held to that?

Andrew:         Force majeure clause!

Thomas:         Yeah exactly.

Andrew:         [Laughs] I don’t have to be fantastic.

Continue reading “Transcript of OA392: In the Aftermath of George Floyd”

OA392: In the Aftermath of George Floyd

Today’s extra-long show — two hours if you’re a patron! — tackles all the issues surrounding the state of our Union in the aftermath of the George Floyd murder, including questions about which charges should be filed against Derek Chauvin, whether Trump can invoke the Insurrection Act of 1807, and much, much more! Oh, and as a bonus, we also have a “lightning round” Yodel Mountain segment (with deep dives for patrons).

We begin with an in-depth discussion of an argument made by arguably the country’s greatest legal mind, Laurence Tribe, that the murder-3 charge against George Floyd was sure to be dismissed. Find out why Andrew thinks Tribe is wrong, even in light of the Minnesota DA’s decision to add a murder-2 charge to Chauvin’s charges. After that, Andrew will explain one thing he was wrong about… due to a “quirk” in Minnesota’s laws regarding felony murder and the merger doctrine.

Then, we discuss Trump’s invocation of the Insurrection Act of 1807 to justify potentially sending armed forces into American cities. You’ll learn exactly how not justified this is… and whether it matters.

After that, it’s time to (briefly!) check in with Black Lives Matter and evaluate their lawsuit against Eric Garcetti for an injunction to block the Los Angeles curfew. Will it succeed? (No.)

We’re not remotely done, though! After all that, it’s time to head on up for a lightning round atop Yodel Mountain., were we check in on (1) Rod Rosenstein’s Senate testimony, (2) Judge Sullivan’s DC Circuit brief in the Flynn case, and (3) a weird story making the rounds regarding a 2016 lawsuit filed (and dropped) against Trump and Jeffrey Epstein.

After all that, it’s time for an all-new #T3BE involving character testimony. It’s a tough question; can Thomas get it right? Listen and find out!

And remember — if you’re a patron, you get a ton of bonus content in this episode, including deep dives on each and every one of these stories!

Patreon Bonuses

There’s a new Patreon amicus thread in addition to all the other patreon goodies.


None! If you’d like to have either of us as a guest on your show, event, or in front of your group (virtually!), please drop us an email at

Show Notes & Links

  1. COVID-19 is still a crisis.
  2. On Floyd: (a) you can click here to read the revised Chauvin charging document; (b) this is the here’s the Laurence Tribe article; and (c) here’s the Greg Egan law review article. We also discuss a number of cases including State v. Wahlberg, 296 N.W. 2d 408 (Minn. 1980), State v. Loebach, 310 N.W. 2d 58 (Minn. 1981), and State v. Barnes, 713 N.W.2d 325 (Minn. 2006).
  3. On the Insurrection Act of 1807, 10 U.S.C. §§ 251-255, we cited two specific provisions: § 252 and § 253. And we discussed Greg Gianforte back in Episode 72. During the bonus, we also discussed two executive orders from the George H. W. Bush presidency: EO 12690 and EO 12804, and two corresponding Proclamations: 6023 and 6427.
  4. During the bonus, we also break down how Vol. I of the Mueller Report contradicts Rosenstein’s testimony.
  5. Finally, check out Sullivan’s D.C. Circuit brief.

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