Opening Arguments

Today's episode breaks down the recent arrest of Julian Assange in England and what it means for Chelsea Manning (and Donald Trump!) We begin, however, with two separate sports-related stories: the improbable success of Marcus Rademacher in the Opening Arguments March Madness pool, and the (far sadder) saga of the Trump Administration's indefensible decision to overrule the MLB's deal with Cuba that would have brought an end to the dangerous human trafficking of ballplayers. After that, it's time for our deep dive into the sealed Julian Assange indictment and his arrest in England. We also discuss at great length exactly why Chelsea Manning is apparently being held in solitary confinement in prison -- even though her crime was commuted by President Obama -- and whether this indictment is relevant to the Mueller investigation. Oh, and Thomas gives you something to look out for! And if all that isn't enough for you, well, we end, as always, with a brand new Thomas Takes the Bar Exam Question #122 involvi

Today's episode revisits the topic Andrew discussed briefly in Episode 252:  Article V conventions convened for the purpose of proposing amendments to the Constitution.  Joining Andrew is Prof. Lawrence Lessig, perhaps the most vocal liberal proponent of such conventions.  Andrew, you may recall, was skeptical and concerned about the risks that such conventions could pose. Join Thomas, Andrew, and Prof. Lessig for a special 70-minute very deep dive and see if either one changes their minds! After that, it's time for TTTBE #121 regarding executive orders.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! AppearancesAndrew was just a guest on Episode 464 of the Cognitive Dissonance podcast as their legal expert.  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 Here are the 14 states with Democratic legislatures and governors. This is the CNN/ORC poll

Today's breaking news episode takes an in-depth look at Bucklew v. Precythe, a recent Supreme Court decision that lays bare the "originalist" view of the Eighth Amendment.  Is it as bad as you think it is?  (Yes.) We begin, however, with a look at Texas v. U.S. and the recent news that the Trump administration "changed its mind" and "will no longer defend" the Affordable Care Act.  What does that mean?  Listen and find out! Then, it's time for our deep dive into Bucklew v. Precythe, the Supreme Court's analysis of how the 8th Amendment applies in capital punishment cases. After that, we go back to Yodel Mountain for some updates on the congressional investigations, including the Congressional request for Trump's tax returns and an EPIC FOIA request. And if all that isn't enough for you, well, we end, as always, with a brand new Thomas Takes the Bar Exam Question #121 involving the constitutionality of Presidential executive orders.  As always, remember to follow our Twitter feed (@Openargs) and like our Faceb

Today's classic, deep-dive Tuesday takes an in-depth look at two critical issues in the news:  first, the recent effort by the Republican governor and state legislature in Florida to undo the broadly popular Constitutional Amendment passed during the 2018 midterms to restore voting rights to felons who have completed their sentences, and second, the Supreme Court's next assault on the "administrative state," this time, by likely ending the doctrine of Auer deference. We begin with an update about pending oral arguments before the Supreme Court, as well as a notice that this episode was bumped from last Tuesday to make way for our emergency Barr Summary episode. Then, it's time for a deep-dive into Florida, the process of citizen-driven ballot initiatives, and exactly what the state legislature intends to do to undermine the will of the public. After that, it's time for yet another deep dive, this time into Kisor v. Schulkin, which is currently pending before the Supreme Court, in which the petitioners have as

Today's breaking news episode contains a long interview with everyone's favorite former prosecutor, Randall Eliason, who helps answer some nagging questions about what we do know about the Mueller Report (alongside all the things we don't). We begin, however, with a brief Andrew Was Right (about the Barr Summary and the news cycle!) and Wrong (about the specifics of the Assange indictment). Then, it's time for our main segment with Professor Eliason; you won't want to miss it! And if all that isn't enough for you, well, we end, as always, with a brand new Thomas Takes the Bar Exam Question #120 involving touching a very sensitive woman on the bus.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! AppearancesAndrew was recently a guest on Episode 19 of the Glass Box podcast discussing Utah referendums, and Episode 188 of God Awful Movies (reviewing "Dead Man Rising").  If you'd like to have either of us as a guest on your show, dr

Today's emergency, late-breaking episode breaks down the Barr Summary of the Mueller Report and gives you some advance warning that the narrative on the Mueller report is about to shift very quickly in the opposite direction.  Get ahead of the story by listening today! Due to the length of the breakdown, we don't have our regular segments today, but we do have (as always), the answer to Thomas Takes The Bar Exam #119 regarding contracts for the sale of wheat.  Can Thomas keep his streak alive?  Listen and find out!  And, as always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! AppearancesNone!  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 Barr Summary of the Mueller Report. 2. Ken Dilanian's tweet. 3. Glenn Greenwald's tweet. 4. We discussed disaggregation of the investigations in Episode OA: 259. 5. Confirms the Senate Intelligence Commi

Today's breaking news episode contains your guide to the hotly-debated Supreme Court decision in Nielsen v. Preap, regarding how and whether aliens can be detained without due process.  What does it all mean?  Listen and find out! We begin, however, with a brief update on the Congressional Investigations we discussed in Episode 259 with the news that Hope Hicks will cooperate.  Listen to our past episode if you don't realize how huge this is. Then, we move on to some news regarding a recent order handed down by Judge Kollar-Kotelly in the District Court for the District of Columbia with respect to the trans ban.  We dive into the unique procedural issues giving rise to this order and tamp down on your enthusiasm that this may put the trans ban in jeopardy. Then, it's time for our main segment breaking down Nielsen v. Preap. We tell you exactly what this decision means along with the reasons why the Court reached the result it did. But that's not all!  After that, we have our weekly trip to Yodel Mountain wit

Today's episode is inspired by the 56th anniversary of Gideon v. Wainwright, one of the most famous and celebrated landmark Supreme Court cases that guarantees indigent defendants the right to a court-appointed lawyer.  Is it under attack from our right-wing Supreme Court?  (You bet it is.) We begin with a quick update on the recent district court opinion in California v. Ross and what that means for the 2020 Census. Then, it's time for an Andrew Was Right segment a update on the New York appellate court's ruling in the Summer Zervos lawsuit.  As it turns out, Donald Trump does have to respond to Summer Zervos's lawsuit -- just like Bill Clinton had to respond to Paula Jones's. Then it's time for a terrifying deep dive into Clarence Thomas's dissent in the Supreme Court's recent decision in Garza v. Idaho.  What's the case about, and why is Thomas using it as a vehicle to try and overturn one of the most basic and fundamental rights criminal defendants enjoy today?  Listen and (sadly) find out. After all th

Today's extra-long episode contains your guide to all of the developments involving Paul Manafort over the past week.  What does it all mean and what can we expect next?  Listen and find out! We begin, however, with a brief update on Episode 247 now that the Department of Defense has issued a Directive-Type Memorandum (DTM 19-004) implementing the ban on transgender service in the military.  With the help of some friends of the show, we break down the most pressing issues on the near horizon. Then, it's time for All Things Manafort (TM), which sneakily includes a deep dive into exactly how the U.S. Federal Sentencing Guidelines came into effect, when they were mandatory, how they became advisory, and what the hell happened in the Eastern District of Virginia. But that's not all!  After that, we have a discussion on when sentences should run consecutively versus concurrently, and how that interacts with Judge Amy Berman Jackson's sentencing decision in Manafort's DC case. AND we also have breaking news regard

Today's episode is inspired by a law student listener question about a recent Thomas Takes The Bar Exam hypothetical, and takes a deep dive into the wonderful and wacky world of res ipsa loquitur.   What does that even mean?  You'll have to listen and find out! We begin with a brief Andrew Was Wrong segment about Donald Trump and drone use, followed up by an Andrew Was Right segment about multiple states suing to block the implementation of Trump's HHS regulations relating to Title X that we discussed in Episode 258. Then it's time for that deep dive into res ipsa loquitur that you didn't know you wanted until now! After all that, it's time for some Bonus Tuesday Yodeling, in which we check in on Roger Stone's "Motion to Clarify" that was denied by Judge Jackson and an update on the House Republicans' hilariously misguided efforts to try and discredit Michael Cohen by pointing out that he sure seems to like to lie on behalf of his client.  You won't want to miss it! Then, it's time for the answer to Thomas Ta

Today's extra-long episode contains your guide to the Congressional Investigations, and specifically the 81 document requests sent out by Rep. Jerry Nadler to various Trump-related individuals and entities in connection with the Democratic Congress's larger investigation into corruption, ties with Russia, and general criminal behavior by the administration.  What does it all mean?  Who are the key players?  Listen and find out! We begin, however, with a brief Andrew Was Right -- Michael Cohen is producing drafts of his Congressional testimony, which may support his claim that Trump's personal lawyer, Jay "ACLJ" Sekulow edited his testimony to suborn perjury. Then, it's time for an in-depth look at the various documents requested by Rep. Nadler.  What does it all mean?  We break down the four major "buckets" of inquiries and tell you about some familiar faces... and some surprising new ones. After that, it's time to take a look into recent developments in the Jeffrey Epstein case and correct some reporting as

Today's episode takes a deep dive into the latest regulations promulgated by Trump's Department of Health and Human Services regarding Title X funding.  What does all this mean?  Listen and find out! We begin by breaking down Title X, the only federal grant program to poor people for family planning.  And -- as you might imagine -- Title X explicitly excludes funding for abortions, but remains a critical source of funding for the critical work Planned Parenthood does with low-income women, including breast and pelvic examinations, breast and cervical cancer screenings, and screenings and treatments for sexually-transmitted infections and HIV.  So, of course, the Trump Administration just defunded all of that.  Find out how terrifying the new regulations are. After that, it's time for a ... lighter(?) segment in which we discuss the difference between clickwrap, browsewrap, and sign-in-wrap (?) agreements and learn about interesting new research into the readability (or lack thereof) of those agreements. Then,

Today's episode continues our breakdown of ex-Trump fixer Michael Cohen's testimony before the House of Representatives and all the Yodel Mountain implications that stem from it that we started in Episode 257.  What's next?  Listen and find out! We begin where we left off -- with Michael Cohen.  Find out how Cohen's testimony (and documents) implicate our favorite legal genius, Stormy Daniels! After that, it's time to check in on Roger Stone's former flunky, Andrew Miller, and his quixotic quest to undo the Mueller investigation.  That effort was just slapped down by the Court of Appeals for the D.C. Circuit, and we've got the full opinion covered for you. Then, it's time to check in on an odd development in the sentencing saga of Paul Manafort.  What does the government's latest (redacted) filing portend?  We're not entirely sure... but we want you to know what we know. And then -- after all that! -- we  end with a brand new Thomas Takes the Bar Exam Question #116 regarding a rather odd traffic accident.  As

Today's episode breaks down ex-Trump fixer Michael Cohen's testimony before the House of Representatives and all the Yodel Mountain implications that stem from it.  What's next?  Listen and find out! We begin, however, with an update on the American Legion v. American Humanist Association case where Andrew recently spoke at the AHA's #HonorThemAll rally. After that, it's time to find out about Florida Rep. Matt Gaetz who attempted to intimidate Michael Cohen and... may have gotten into some legal trouble thanks to this show and it's listeners! Then, we begin breaking down the Cohen testimony... but there's so much here to cover, we decided to  keep going for yet another hour, and you'll get that tomorrow! For the first time, we don't end with a brand new Thomas Takes the Bar Exam Question, but you'll get #116 tomorrow.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! AppearancesNone!  And if you'd like to have either of us as a

Today's episode takes a deep dive into the Bladensburg Cross case currently pending before the Supreme Court with special guest Sarah Henry of the American Humanist Association.  You'll learn that Andrew is going to speak at the AHA rally on Wednesday, February 27 right before oral arguments! We bookend the interview with an Andrew Was Right segment about the recent Supreme Court ruling in Timbs v. Indiana first discussed back in Episode 234. And on the back end, we briefly discuss Clarence Thomas's bizarre and dangerous concurrence in McKee v. Cosby.  Did Justice Thomas really call for the reversal of New York Times v. Sullivan?  (Hint:  yes, yes he did.) After all that, it's time for the answer to Thomas Takes The Bar Exam #115 about whether you can use facts contained in settlement negotiations.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! AppearancesAndrew was just a guest on Episode 87 of the So Here's My Story podcast;

Today's episode breaks down Trump's recent declaration of a state of national emergency as a pretext to build his big, dumb wall.  What's being done about it?  What can be done about it?  Listen and find out! We begin, however, with a trip up Yodel Mountain to observe one of its most bizarre members, Roger Stone, who recently posted a "notice of apology" after having uploaded a picture to Instagram of Judge Jackson with a reticule nearby.  What does this mean for the gag order entered in his case?   We tell all -- even before the court ruled! Next, it's time for our main segment about the wall.  Andrew breaks down exactly where the funding is going to come from, and details all the lawsuits to try and block it.  We end the segment, of course, with a (pessimistic) prediction. Then, it's time for even more yodeling.  Is the Mueller investigation really coming to an end? If so, what's next?  And what about We end, as always, with a brand new Thomas Takes the Bar Exam Question #115 about offers to compromise.  As

Today's episode features a long interview with AG, the spectacular co-host of the Mueller, She Wrote podcast.  She helps break down everything in the news that's Yodel Mountain-worthy... and along the way, you'll learn what might be next, what we might be overplaying, and much, much more! After the interview, it's time for the answer to Thomas (& AG) Take The Bar Exam #114, in which you always bet on bank!.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances Somewhat coincidentally, Andrew was just a guest on S3E6 of the Mueller, She Wrote podcast; go check it out! Andrew was also a guest on Episode 87 of So Here's My Story.  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions,

Today's episode tackles the recent Dunn v. Ray decision in which the Supreme Court used a procedural mechanism to allow the State of Alabama to execute a devout Muslim without affording him the same sorts of religious freedom they do to Christian inmates.  Is it as bad as it looks? (Yes.) We begin, however, with an unfortunate Andrew Was Wrong (and a promise to get better)! Then, it's time for a depressing deep dive into Dunn v. Ray and what 'religious freedom' actually means to this Supreme Court. After that, it's time for a trip to Yodel Mountain where we review the latest ruling from Judge Amy Berman Jackson about exactly how big a liar Paul Manafort is.  (Hint:  yuge.)  What does this mean for a potential Manafort pardon, and does the federal system have parole?  Listen and find out! We end, as always, with a brand new Thomas (& AG!) Take the Bar Exam Question #114 about whether banks own everything.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too

Today's episode features a deep dive into a listener question about Article V Constitutional Conventions.  Are they dangerous?  (Yes.)  Are they a good idea?  (No.)  We also discuss the latest ridiculous defamation lawsuit.. and discover why this one is a little different.  How?  You'll have to listen and find out. We begin with a little bit of news you might have missed regarding Attorney General nominee Bill Barr. After that, it's time to answer a listener question about liberal and conservative groups that are angling for an "Article V" Constitutional Convention to overturn Citizens United (or do other things).  We delve deeply into this provision of the Constitution and discuss the plusses and (mainly) minuses of this procedure. Then, it's time to dissect the recent lawsuit brought by Gavin McInnes, founder of the "Proud Boys," which Wikipedia calls "a far-right neo-fascist organization that admits only men as members and promotes political violence."  Find out why at least one formerly respectable lawyer

This rapid-response bonus episode tackles the Supreme Court's late-breaking stay of the 5th Circuit's opinion in June Medical Services v. Gee, with a particular emphasis on dissecting Justice Brett Kavanaugh's dissent.  What does it all mean?  Listen and find out! We have also continued the episode with a deep dive into res judicata and the truly ominous implications of Kavanaugh's dissent at our Patreon page for supporters of the show at any level. Show Notes & Links Check out Episodes OA: 249 "Overturning Roe v. Wade Starts Today" and OA 251 for reference to our past discussion on this cases. Click here to read the Court's granting of the stay (which includes Kavanaugh's dissent), and here for the Supreme Court’s docket in June Medical Services v. Gee. This is the reply brief filed by the petitioners. Here is the prior 2016 Supreme Court decision in Whole Woman's Health v. Hellerstedt. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/o