Tag Archives: Yodel Mountain

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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OA237: Lowering the… Barr (Memo)

Today’s Rapid Response episode takes a look at the just-released Law’d Awful Memo written by Attorney General nominee Bill Barr and sent to Deputy AG Rod Rosenstein concerning the Mueller investigation.  Are the argument(s) raised in the memo any good?  What does this mean for the future of the Mueller investigation?  Listen and find out!

We begin, however, with a brief foray into everyone’s favorite show topic:  BASEBALL LAW!  Find out about the agreement reached between MLB and Cuba, and how (of course) Donald Trump can screw it up.

After that, it’s time for an Andrew Was Wrong (and Maybe Not Wrong) on David Pecker and AMI.  Along the way, we’ll learn about the corruption case against Sun-Diamond Growers in connection with former Agriculture Secretary (and nearly-Senator) Mike Espy.

Then, we delve deeply into the Barr memo, taking apart the legal “arguments” and featuring a guest appearance from one Antonin Scalia!

Then, it’s time to tackle the rather surprising decision by Judge Sullivan in the Michael Flynn sentencing phase.  What happened?  Did he go off the rails?

After all that, we end with an all new Thomas (and Matt!) Takes The Bar Exam #106 on how to best transport heroin from Kansas City to Chicago and what the judge can instruct the jury… it’s complicated, but you won’t want to miss it!  And, 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. Check out Matt & Mattingly’s Ice Cream Social podcast!
  2. Baseball law:  Here’s the press release from MLB.
  3. We discussed U.S. v. Sun-Diamond Growers of Calfornia, 138 F.3d 961 (D.C. Cir. 1998), aff’d, 526 U.S. 398 (1999).
  4. Don’t forget to read the Barr memo for yourself, and you can also check out the Wall Street Journal article that leaked it.
  5. …And here’s our good buddy Antonin Scalia smacking down the logic used therein.
  6. You can check out the government’s sentencing memorandum in Michael Flynn’s case as well as the memo filed by Covington & Burling on Flynn’s behalf.
  7. Here is the 18-3071 sealed case order.

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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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OA233: [REDACTED] & Wisconsin

Today’s Rapid Response episode takes a look at two pressing issues: (1) Mueller’s [REDACTED] sentencing memorandum with respect to Michael Flynn, and (2) the naked power grab by lame-duck Republicans in Wisconsin.  Along the way, we’ll also cover a bunch more legal stories, but you knew that already!

We begin high atop Yodel Mountain, where we cover not only the [REDACTED] Flynn memorandum but also Roger Stone taking 5 and a truly bizarre conspiracy theory advanced by Rudy Giuliani.

Then, it’s time for the main segment, in which we tackle Wisconsin SB 887 and its component bills that are designed to weaken drastically the strength of the incoming Democratic governor, Tony Evers.  Is it as bad as everyone says it is?  (It’s worse.)

After that, it’s time for a brief Andrew Was Wrong segment.  Turns out Andrew Was Wrong about both Julian Assange and American paddlefish!

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

Andrew was recently a guest on the David Pakman show talking court-packing and more.  Give it a listen!  And, as always, 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 can read the (non-censored) baseline Sentencing Memorandum filed by Mueller here, and the [REDACTED] Supplemental by clicking here.
  2. Here are the texts of the various Wisconsin bills:  SB 884, SB 886, and the final bill, SB 887.

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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!

Support us on Patreon at:  patreon.com/law

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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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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

  1. The “recalcitrant witness” statute is 28 U.S.C.  § 1826.
  2. Click here to read Judge Howell’s U.S.D.C. trial court opinion.
  3. 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!
  4. 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.
  5. Finally, you can read the “nearly a heart attack” regs on Mueller’s funding (28 CFR § 600.8(a)(2)) here.

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And email us at openarguments@gmail.com



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OA225: Elections Have Consequences… for Jeff Sessions

Today’s Rapid Response Friday covers the two things that are definitely on everyone’s minds:  (1) the midterm elections, and (2) the fate of the Mueller investigation and more in light of President Trump’s decision to fire Attorney General Jeff Sessions.  Elections have consequences… don’t they?

We begin with a roundup of  the outstanding legal issues in connection with the midterms.

After that, it’s Yodelin’ time.  What happened to G. Zachary Terwilliger?  Is the Mueller investigation in trouble?  What can we do??  Listen and find out!

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. No links this week!

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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Don’t forget the OA Facebook Community!

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And email us at openarguments@gmail.com



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OA223: A Victory for Voting Rights in Pennsylvania!

Today’s Rapid Response Friday revisits some cases we’ve previously discussed with recent positive developments:  the Summer Zervos lawsuit and the future of political gerrymandering in Pennsylvania.

We begin with the Zervos lawsuit we first covered in Episode 176, in which a state trial court judge has ordered Donald Trump to respond to discovery served by Zervos’s attorney.  What’s next for the President and why does it have Yodel Mountain implications?  You’ll have to listen and find out!

After that, we revisit our discussion from Episodes 146 and 148 regarding the Pennsylvania Supreme Court’s opinion redrawing congressional maps in that state.  The U.S. Supreme Court — and yes, that’s the Brett Kavanaugh-and-Neil-Gorsuch-laden Supreme Court! — just declined to intervene to protect the Republicans.  Why is that, and how is that a map forward?  We tell all!

Then, we return to the Gary Hart story we discussed last episode.  Was Hart really set up?  Listen and find out!

Finally, we end with an all new Thomas Takes The Bar Exam #100 that is the dreaded real property question Thomas needs to get right in order to hit “60% at the half.”  Can he do it?!??  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

  1. Click here to read the cert petition in Turzai v. Brandt and here to read the opposition.
  2. This is the James Savage response on Gary Hart.

Support us on Patreon at:  patreon.com/law

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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

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Don’t forget the OA Facebook Community!

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And email us at openarguments@gmail.com



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OA207: Brett Kavanaugh’s Confirmation Hearings

Today’s Rapid Response Friday tackles the ongoing Supreme Court Confirmation Hearings for Brett Kavanaugh — including an analysis of documents that broke literally after we recorded the show!  Find out if any of this can slow down Kavanaugh’s presumed path the SCOTUS.

We begin, however, with listener feedback on our rather controversial Episode 205 (with Andrew Seidel) as well as follow-up emails regarding 3-D guns and our contributions to SwingLeft.

After that, we break down the critical documents leaked today by Sen. Cory Booker (D-N.J.) that show 1) Kavanaugh’s nakedly partisan approach to the court; 2) Kavanaugh’s nonexistent view of the value of precedent when it comes to Roe v. Wade; and 3) possible perjury.  Is this a big deal?  YES.  Will it move the needle?  We’ll see.

After that, we return to Yodel Mountain to discuss Paul Manafort’s impending DC trial and the somewhat-overlooked plea by W. Samuel Patten.  Who’s that?  Listen and find out!

Finally, we end with an all new Thomas Takes The Bar Exam #92 regarding impeaching the testimony of a gang member at trial.  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!

Recent Appearances

Thomas was recently the guest masochist on this week’s God Awful Movies, reviewing “New World Order.”  It’s hilarious — don’t miss 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. Here are the Kavanaugh email and Kavanaugh email 2 documents discussed during the main segment.  For more Kavanaugh document fun, check out this comprehensive New York Times article.
  2. This is W. Samuel Patten’s Criminal Information, to which he pled guilty, and here is the Statement of the Offense, which explains the connection to the Trump campaign and White House.
  3. Finally, this is the late-breaking document showing possible perjury.

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