Category: 3-LawSometimeCommentary

Today's episode takes place in the aftermath of the Trump impeachment sham. We take a minute to heap praise on Sen. Mitt Romney, who had the courage of his convictions, before delving into the obvious fact that this president is now empowered to seek revenge on his enemies, starting with the State of New York. Can he really prevent New Yorkers from using Global Entry?

Before that, we have to cover the latest in faux outrage, in which America's Dumbest Congressman (TM), Matt Gaetz, teams up with Charlie Kirk (and others) to ... insist that Speaker Nancy Pelosi had no right to rip up her copy of Trump's State of the Union address. Can that possibly be the law? (No.)

Then, it's time to settle in for a nice, long deep dive into New York's Green Light Law, and how that led a Trump lackey to try and retaliate by asserting that New Yorkers will no longer be eligible for the Global Entry program at airports. Is it really possible that Trump's Department of Homeland Security will carry out this threat? Do we have a legal recourse? Listen and find out!

After all that, it's time for a brand-new #T3BE on the preservation of objections for appeal. Can Thomas continue his winning streak? Would you do any better? If so, just share out this episode on social media using the hashtag #T3BE and we'll pick a winner!

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 operative law that Speaker Pelosi definitely didn't violate -- but President Trump has -- is 18 U.S.C. § 2071.
2. You can read all about New York SB1747B (the "Green Light Law") as well as check out the fact sheet issued by the DMV.
3. We break down the nonsense threat letter written by "Acting Director" of DHS, Chad Wolf.
4. Legal references! Check out 8 U.S.C. § 1365b; 74 FR 59932; 77 FR 5690; and the final rule, 8 C.F.R. 235.12.
5. Finally, in the political aftermath, we mentioned the pending bipartisan bill, House Res. HR 3675.
6. Check out the latest blog post from Marcy Wheeler, which sets out her take on Lt. Gen. Michael Flynn and sets out the embedded legal documents.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!

On Dec. 4, 2019, the U.S. Supreme Court heard argument in Intel Corp. Investment Policy Committee v. Sulyma, a case asking what degree of knowledge of a possible violation is necessary to trigger the three-year statute of limitations provided in the Employee Retirement Income Security Act (ERISA).
Respondent Christopher Sulyma worked for Intel Corporation from 2010-12, and during that time participated in retirement plans governed by ERISA. In 2015, Sulyma brought suit against Intel’s investment policy committee under various provisions of ERISA, alleging that the committee had invested imprudently and failed to make certain disclosures. Intel moved to dismiss the complaint based on ERISA’s statute of limitations, which provides that actions like Sulyma’s may not be commenced more than “three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation.” The district court found that Sulyma had actual knowledge of the alleged violations more than three years before bringing suit, and dismissed the case. On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed, concluding that Sulyma’s constructive knowledge of the alleged violations did not rise to the level of “actual knowledge” necessary to trigger the statute of limitations. It was not sufficient, the Court determined, that the relevant facts were available to the Sulyma; he had actually to be aware of those facts.
The Ninth Circuit’s reasoning on the meaning of “actual knowledge” conflicted with that of the U.S. Court of Appeals for the Sixth Circuit, however, and the Supreme Court subsequently granted certiorari to consider whether the ERISA limitations provision bars suit when all the relevant information was disclosed to the plaintiff by the defendants more than three years before the plaintiff filed the complaint, but the plaintiff chose not to read or could not recall having read the information.
To discuss the cases, we have Matthew S. Rozen, Associate Attorney at Gibson Dunn
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

We're on for a bonus pod talking about the bungled Iowa Caucus.

Today's episode features an in-depth interview with investigative journalist and prolific blogger Marcy Wheeler (a.k.a. emptywheel), who has a novel take on Lt. Gen. Michael Flynn who, as our listeners know, fired Covington & Burling, hired a loon, and has tried to withdraw his guilty plea. Marcy tells us what she thinks this means!

We begin with a bit of analysis and some kind words from a listener in light of the disappointing Senate vote to block witnesses that came down late Friday night. Yes, this means the impeachment is effectively over. No, it doesn't mean we're going to stop fighting.

After that, it's time to tackle Marcy Wheeler's take on Lt. Gen. Michael Flynn. We do a deep dive into the two most recent sentencing memoranda filed by the government in Flynn's case while trying to figure out what this portends. You don't want to miss it!

After all that, it’s time for the answer to #T3BE 164 involving a crazed roommate, an aborted murder, and exactly what you could charge him with.

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 latest blog post from Marcy Wheeler, which sets out her take on Lt. Gen. Michael Flynn and sets out the embedded legal documents.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!

In the second part of a special five-part series of Amicus, Dahlia Lithwick is joined by election law professor Rick Hasen to take a close look at what happened with Michigan’s failed recounts in 2016, exploring how small mistakes can cause big problems in elections, and why democratic areas seem much more prone to incompetence in election administration. 

Rick Hasen’s new book Election Meltdown forms the basis for this special series of Amicus. 

Join Slate for the Election Meltdown live show on Feb. 19 in Washington. 

Podcast production by Sara Burningham.

Learn more about your ad choices. Visit megaphone.fm/adchoices

Dahlia Lithwick is joined by Barbara McQuade, professor of law at the University of Michigan and former U.S attorney for the Eastern District of Michigan, to explore the ramifications of the last two weeks in the Senate. 

Join us for a live show on Feb. 19 in Washington. 

Podcast production by Sara Burningham.

Learn more about your ad choices. Visit megaphone.fm/adchoices

Today's episode tackles six questions raised during the first day of cross-examination at the impeachment of President Trump and gives you the real answers, from a legal point of view, minus the spin (on both sides)! We tackle the standard for impeachment, past judges who have been impeached, the will of the Framers, and much, much more!

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Remember that Alan Dershowitz has challenged Andrew to a debate, and we've accepted! Only time will tell if Dersh chickens out.

Also: please do CALL YOUR SENATORS. The Senate switchboard is (202) 224-3121. They’ll connect you! For the Republicans, make this simple request (and be polite!):

“I’d like to speak with Senator ____’s office.  Hi, I’m _____, I’m a constituent, and I’m calling to ask Senator ____ to vote in favor of allowing the Senate to subpoena documents and witnesses in the impeachment trial.  I don’t know how we can decide if Trump is innocent or guilty without seeing all of the evidence.  Thank you.” 

For the Democrats, call them and thank them for their promise to vote for subpoenaing documents and witnesses. That’s all! It’s that easy and you can REALLY MAKE A DIFFERENCE. Thank you!

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We begin the show with a brief analysis of John Bolton's forthcoming book and whether the White House can get a judicial injunction to block publication. (Hint: no.) In analyzing the question, we do a mini-deep-dive into prior restraint, what it means, and why it protects Bolton's right to publish here.

Then it's time for the question extravaganza, which covers not only the legal standard for impeachment but the arguments raised by both sides, the question of foreign interference in our elections, how one asserts executive privilege, and so much more! You won't want to miss this!

After all that, it's time for a brand-new #T3BE about a crazed, icepick-wielding roommate with bad luck. Will Thomas be able to keep his win streak going? There's only one way to find out! And remember that you too can play along on social media!

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 let Republicans misrepresent the articles of impeachment. Article I, Abuse of Power contains allegations that satisfy 18 U.S.C. § 201(b)(2) (the crime of bribery) and Art. II, Obstruction of Congress contains allegations that satisfy 18 U.S.C. § 1505 (the crime of obstruction of justice).
2. We referenced Zephyr Teachout's seminal 2009 law review article, "The Anti-Corruption Principle" as well as this analysis by Eisen, Painter, and Tribe on emoluments.
3. Finally, check out Prof. Cunningham's article on the original meaning of "misdemeanors" here.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!

Today's episode breaks down the (spoiler: ridiculous) defamation lawsuit filed by Tulsi Gabbard against Hillary Clinton for calling her (sort of) a "Russian asset." We do the patented Opening Arguments reading-the-complaint-backwards method (sort of) to figure out exactly what this means and what comes next.

We begin, however, with some instant response to the Saturday Republican "defense" of Trump in the impeachment proceedings. It's... well, it's a thing. Is Jay Sekulow still America's dumbest lawyer? (Hint: yes.) Learn the arguments that they're actually trying to advance, and why they're not actually a thing.

And again: please don't forget to CALL YOUR SENATOR! Remember, this is preposterously easy:

Call.  (202) 224-3121. 

CALL YOUR SENATORS, if you need help connecting to them, use @resistbot.   Text the word RESIST to the bot on Messenger, Twitter, Telegram, or to 50409 on SMS.  First time setup is quick, then calling both should take 3-5 minutes.

Here’s what you say:

“I’d like to speak with Senator ____’s office.  Hi, I’m _____, I’m a constituent, and I’m calling to ask Senator ____ to vote in favor of allowing the Senate to subpoena documents and witnesses in the impeachment trial.  I don’t know how we can decide if Trump is innocent or guilty without seeing all of the evidence.  Thank you.” 

Then, it's time to break down everything about Tulsi Gabbard's lawsuit. That means defamation law, Tulsi's lawyers, the New York Times v. Sullivan standard, and much, much more. You'll be surprised to learn that Tulsi Gabbard's lawyers are... actual lawyers? But you'll also be surprised to learn some facts about them. Don't go all crazy conspiracy-theory on us, but... definitely listen.

After all that, it's time for the answer to #T3BE 163 involving contemporaneous notes and whether they're admissible as hearsay.

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 Tulsi's defamation lawsuit here.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!

On Nov. 4, 2019, the U.S. Supreme Court heard argument in Barton v. Barr, a case involving a dispute over whether, for the purposes of the “stop-time rule,” a lawfully admitted permanent resident who is not seeking admission to the United States can be “render[ed] ... inadmissible”.
The stop-time rule affects the discretion afforded the U.S. Attorney General to cancel the removal from the United States of a lawful permanent resident who has resided in the U.S. continuously for 7 years. Under the stop-time rule, the requisite continuous residence terminates once the alien commits any of a certain number of offenses that render the alien inadmissible to (or removable from) the United States under federal law. Thus, committing a listed offense may cause an alien to fall short of the continuous 7-year residence requirement and thereby become ineligible for cancellation of removal.
Andre Martello Barton, after receiving lawful permanent resident status, was convicted in 1996 on three counts of aggravated assault, one count of criminal damage to property, and one count of firearm possession during the commission of a felony, all in violation of state law. In 2007 and 2008, he was also convicted of several state law drug offenses. The federal government then initiated proceedings to remove Barton based on his various convictions. He conceded removability on the basis of his controlled substance and gun possession offenses but applied for cancellation of removal based on continuous residence. The government argued that Barton’s 1996 convictions triggered the stop-time rule, thereby disqualifying him for cancellation of removal. The Immigration Judge ruled in favor of the government and the Board of Immigration Appeals affirmed. Barton then petitioned for relief from the U.S. Court of Appeals for the Eleventh Circuit, which rejected his argument that the stop-time rule only applies to aliens seeking admission to the United States, and therefore denied his petition.
The Eleventh Circuit recognized that the federal circuit courts of appeals have split on the issue, however, and the Supreme Court ultimately granted certiorari to address whether a lawfully admitted permanent resident who is not seeking admission to the United States can be “render[ed] ... inadmissible” for the purposes of the stop-time rule.
To discuss the case, we have Amy Moore, Associate Professor of Law at Belmont University College of Law.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

While Kate and Jaime recover from the live show, Leah and Melissa bring some exciting impeachment updates … including the Chief Justice caught on camera in Strict Scrutiny SWAG (?!?). They also recap two of the January arguments, Espinoza v. Montana Department of Revenue and Shular v. United States, and offer some “I told you so” s about the Court’s recent cert grants.

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