Category: 3-LawSometimeCommentary

As Inauguration Day approaches, anxiety and uncertainty, even dread, mixes with the optimism of some in the American polity. Many express a mix of apathy, weariness, or hopelessness, with a sentiment akin to “wake me in four years.” What would they find when awakened?  We begin to take a look ahead, in part by looking behind and evaluating how our own earlier prognostications have turned out.  We start with abortion and the Dobbs case, as it loomed large in recent years and clearly continues to reverberate and feeds resentment on one side, activism on the other.  What lies ahead for the law, the Court, and the people?  CLE credit is available for lawyers and judges at podcast.njsba.com.

OA1111 - The Eastman Dilemma: Lawfare or Justice? 

We're giving everyone half of this Law'd Awful Movies! We watched John Eastman's... documentary? Whatever it is, a strange nonprofit called the Madison Media Fund produced it, and held the premiere at Mar-a-Lago ahead of its, you guessed it, January 6th release date. You'll hear straight from Eastman, Alan Dershowitz, Jeff Clark, and...Lawrence Lessig regarding Eastman's election "theory." Special Guest Lydia joins us to tackle the folks behind the making of this film, and you won't believe the stuff she's uncovered.

• John Eastman’s first “draft” memo (12/24/20)

• John Eastman’s second memo (early 2021)

• The 65 Project’s complaint re: John Eastman to the CA bar (7/28/22)

• Record of John Eastman CA disbarment proceedings (6/12/23)

• CA Bar Court Judge Yvette Roland’s recommendation in John Eastman’s disbarment proceedings (3/27/24)

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Leah, Melissa & Kate dive headfirst into an already busy 2025 by detailing the Republican attempt to steal a North Carolina Supreme Court seat, looking at the just-argued TikTok case,  parsing through Donald Trump’s various legal challenges, and more. Then, the hosts speak with Michelle Adams, professor of law at the University of Michigan about her book The Containment: Detroit, The Supreme Court, and the Battle for Racial Justice in the North.

To support disaster relief efforts in Los Angeles, you can make a donation at votesaveamerica.com/relief

Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 

• 6/12 – NYC
• 10/4 – Chicago

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While Donald J Trump was virtually fuming at his sentencing hearing in Judge Juan Merchan’s New York City courtroom on Friday morning, the nine justices of the US Supreme Court were taking their seats for oral arguments in the so-called TikTok ban case. And while it only took 40 minutes for the president elect’s sentence of an ‘unconditional discharge’ to be pronounced, the arguments over national security, the First Amendment, and an app that 170 million Americans use took a couple of hours longer. 

Amicus has an analysis of all of it. First, Dahlia Lithwick and Mark Joseph Stern discuss whether and how Trump’s sentence matters, and what it tells us about the Supreme Court under Trump 2.0. Next, they’re joined by  Gautam Hans, clinical Professor of Law at Cornell Law School, who specializes in constitutional law, technology law and policy, to discuss why the Supreme Court seemed so very ready to reach right past the First Amendment and grab for national security in order to uphold the TikTok ban.

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OA1110 - For the first time in US history, an American President (both former and future) is facing criminal sentencing. We review Judge Juan Merchan’s most recent ruling on Donald Trump’s motion to dismiss his conviction for 34 felony counts of falsifying business records and the difficult balance that Merchan has struck in trying to weigh the jury’s verdict and the rule of law itself against the fact that the defendant will be ten days away from regaining the nuclear codes as of the time of his scheduled hearing. 

We also review Aileen Cannon’s recent probably-illegal desperate order to try to stop special counsel Jack Smith’s report on Trump’s many federal crimes from going public before trying to understand why Democrats would even consider signing on an extremely hard-right immigration bill which can only help to fuel  Trump’s mass deportation machine. How will the Laken Riley Act allow undocumented people to get away with nearly any theft offense, and give state AGs broad power over national immigration policy?  Matt then drops a quick footnote on the questionable state of Rudy Giuliani’s physical, mental, and legal health as two different federal judges consider just how contemptuous he has become before we circle back for some late-breaking updates in both of this episode’s Trump stories.

• Docket for Trump v. US (SD FL)

• NY Judge Juan Merchan’s ruling denying Trump’s motion to dismiss and scheduling sentencing for 1/10/25 (1/3/25)

• Trump’s application for a stay of sentencing to the US Supreme Court (1/7/25)

• SCOTUS ruling on Trump’s application for stay of sentencing (1/9/25)

• Full text of the Laken Riley Act, H.R. 29 (introduced 1/5/25)

• Rudy Giuliani’s sworn declaration confirming that he will be attending contempt proceedings in DC federal court (1/9/25)

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How do you eat an elephant? One bite at a time.* There is a cluster-you-know-what of constitutional and legal news this week, so Amicus Plus is popping up a little early with a bonus episode to tackle the Trump prosecutions portion of the melee ahead of Friday’s very important TikTok-ban arguments. Dahlia Lithwick is joined by Andrew Weissman, co-host of the MSNBC podcast "Prosecuting Donald Trump” (recently re-launched as “Main Justice” for…. obvious reasons!) Andrew is also author of two New York Times bestsellers, The Trump Indictments and Where Law Ends: Inside the Mueller Investigation.

*We are not eating elephants. Please do not eat elephants.

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OA1109 and T3BE54 - John Eastman is many things: a hack, a liar,  a disgraced law school dean, a failed Wikipedia editor, and a mostly-disbarred, twice-indicted traitor to the Constitution on a desperate PR campaign to distance himself from the violent insurrection of January 6, 2021 which he set in motion with his  patently bad-faith legal advice to the Trump campaign. But did you know that he also isn’t even a person? Our Profiles in Fascism series continues with a have-to-hear-this-to-believe-it reading from the pages of the Claremont Institute’s deranged American Mind. (There’s just too much good stuff here for the regular show, so the last half is for patrons only!) 

Then, Heather is back with the answer to T3BE Q53 and a fresh new question 54!

• “The Unpersoning of John Eastman,” TJ Harker, The American Mind (5/2/24)

• The 65 Project’s complaint re: John Eastman to the CA bar (7/28/22)

• CA Bar Court Judge Yvette Roland’s recommendation in John Eastman’s disbarment proceedings (3/27/24)

If you'd like to play along with T3BE, here's what to do: hop on Bluesky, follow Openargs, find the post that has this episode, and quote it with your answer! Or, go to our Subreddit and look for the appropriate t3BE posting. Or best of all, become a patron at patreon.com/law and play there!

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With rumblings around a possible Constitutional Convention around, we have noted some similarities with those issues that surrounded the recent ERA discussions.  Now we dive deeper.  Can a convention be limited to one possible amendment or some small group of amendments, or is a “runaway convention” a real possibility?  Can a state (this means you, California) rescind its previous vote calling for a convention?  Suppose there were a convention; would it be like the Philadelphia convention?  Would California be no more powerful than Wyoming in such a meeting?  In fact, there are even more terrifying implications and scenarios - and we will review them for you.  Meanwhile, we have a new Speaker of the House - for now - and the January 6th certification did take place without incident.  But many believe the Speaker’s days may be numbered, and so our review of the history behind Speaker selections in the past remains relevant - and fascinating.  That John Quincy Adams keeps showing up in the strangest places - like the presiding officer’s chair when he arguably had no business there.  What’s up with that? 

On the fourth anniversary of January 6th, Leah, Melissa & Kate dive deep on presidential power: how the presidency became what it is today, transitions of power, and how we’ve seen checks on the power of the president from unexpected quarters. Joining them are two experts: Lindsay Chervinsky, author of Making the Presidency: John Adams and the Precedents That Forged the Republic and Corey Brettschneider, author of The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought to Defend It.

Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 

• 6/12 – NYC
• 10/4 – Chicago

Learn more: http://crooked.com/events

Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes

Follow us on Instagram, Threads, and Bluesky

OA1108 - A Coup in Search of a Legal Theory

We commemorate the fourth anniversary of the January 6, 2021 insurrection by remembering the two elite lawyers who bear significant personal, moral, and legal responsibility for one of the single worst days in US political history. The bad-faith legal cover Kenneth Chesebro and John Eastman provided for the “Stop the Steal” movement in the months leading up to MAGA’s violent insurrection would ultimately result in nine deaths, hundreds of injuries, and the initiation of more than 1500 federal criminal cases--but Eastman and his MAGA allies are already trying to rewrite that history in front of us. We push back in this special episode, with more to come.

• SS chief Reinhart Heydrich’s official memo authorizing and regulating the  Kristallnacht “demonstrations” targeting the property of German Jews (11/10/1938)

• January 6th House Select Committee’s final report (and supporting evidence)

• Fake elector records submitted to the National Archives (via FOIA by American Oversight)

• Cleta Mitchell email requesting that John Eastman write a memo for a “movement” which needs “Constitutional support” (11/5/20)

• John Eastman’s first “draft” memo (12/24/20)

• John Eastman’s second memo (early 2021)

• Kenneth Cheseboro’s NY disbarment ruling (10/31/24)

• Record of John Eastman CA disbarment proceedings

• Kenneth Cheseboro December 9, 2020 memo

• John Eastman’s speech at January 6, 2021 “Stop the Steal” rally

• Jack Smith’s Motion for Immunity Determination (with complete supporting brief) in Trump v. US outlining all of the many ways that Trump knew there was no fraud in the 2020 election and the entire fake elector scheme

• DC federal indictment of Donald Trump for conspiring to overturn the 2020 election (8/1/2023)

 

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