Dahlia Lithwick is joined by Stuart Gerson of the conservative legal group Checks and Balances to talk about developments in the border-wall case he helped bring in El Paso, Texas; the view of impeachment from concerned conservatives; and the latest escalation in the Department of Justice’s investigation into the origins of the Russia investigation. Then Cyrus Habib, lieutenant governor of Washington state (and owner of the most impressive résumé of any guest ever on the show) shares a refreshingly optimistic take on the law and politics.
On October 7, 2019, the Supreme Court heard oral arguments in Kahler v. Kansas and Ramos v. Louisiana, both of which raise questions of constitutional criminal law. In Kahler, a jury convicted James Kahler of capital murder. Among other things, he objected at trial to a Kansas statute limiting any “mental disease or defect” defense to formation of the requisite mental state for the charged offense. The statute, Kahler argued, denied him due process by depriving him of the ability to present an insanity defense. The Supreme Court of Kansas, following its precedent, noted that state law had deliberately “abandon[ed] lack of ability to know right from wrong as a defense,” and rejected Kahler’s argument. The U.S. Supreme Court subsequently granted certiorari to consider whether the Eighth and Fourteenth Amendments to the U.S. Constitution permit a state to abolish the insanity defense. In Ramos, Evangelisto Ramos was convicted of second-degree murder by the vote of 10 of 12 jurors. Challenging his conviction, Ramos argued that Louisiana’s statutory scheme permitting non-unanimous jury verdicts in non-capital felony cases violated his right to equal protection under the Fourteenth Amendment to the U.S. Constitution. Relying on its precedent, the Louisiana Supreme Court rejected Ramos’ argument. The U.S. Supreme Court subsequently granted certiorari to consider whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous jury verdict (in criminal cases) against the states. To discuss the cases, we have GianCarlo Canaparo, Legal Fellow at the Heritage Foundation.
Today's episode tackles all your latest developments from high atop Yodel Mountain, including the national security-threatening stunt led by America's Dumbest Congressman, Matt Gaetz, as well as the significance of Bill Taylor's testimony to the House Intelligence Committee.
We begin with a brief overview of the "due process" argument throughout history with an eye towards how it applies to the Trump impeachment.
From there, we move to a specific application: the (false) claim by Matt Gaetz and others that the House impeachment inquiry violates Trump's rights of due process. Along the way, we'll learn what a SCIF is and why it was such a big deal -- a criminal big deal -- that Gaetz and others violated it.
Then, it's time to dive deeply into Bill Taylor's testimony and how that fits into the overall impeachment picture and whether Trump is guilty of bribery with respect to Ukraine. (Hint: yes.)
After all that, it's time for another fabulous #T3BE about an inexperienced innkeeper and a cleaning company that doesn't work on Sundays. Play along on social media, and remember to #T3BE in your answer!
Upcoming 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.
On October 7, 2019, the Supreme Court heard oral argument in Peter v. NantKwest Inc., a case which considers whether a party opting to bring a challenge in federal district court to an adverse decision of the U.S. Patent and Trademark Office’s (PTO) Patent Trial and Appeal Board (PTAB) must pay the PTO’s resulting attorney’s fees. When a patent application is rejected by the PTO, and the PTAB affirms that decision on appeal, the aggrieved applicant may either pursue further (but relatively constrained) review in the U.S. Court of Appeals for the Federal Circuit--or the applicant may file a more expansive challenge in federal district court. The latter option is authorized by 35 U.S.C. § 145, but the statute also provides that “[a]ll the expenses of the proceedings shall be paid by the applicant.” Here, NantKwest challenged an adverse PTAB decision in federal district court, but lost. After the judgment was affirmed by the Federal Circuit, the PTO sought reimbursement of its expenses from NantKwest, including nearly $80,000 in attorneys’ fees. The district court denied recovery based on the “American Rule” that parties in federal court typically bear their own fees unless otherwise directed by Congress. A divided en banc panel of the Federal Circuit ultimately affirmed the district court. This decision, however, was in tension with the U.S. Court of Appeals for the Fourth Circuit’s construction of similar language in the Lanham Act. Thereafter, the Supreme Court granted certiorari to consider whether the phrase “[a]ll the expenses of the proceedings” in 35 U.S.C. § 145 encompasses the personnel expenses the PTO incurs when its employees, including attorneys, defend the agency in Section 145 litigation. To discuss the case, we have Robert J. Rando, Founder and Lead Counsel, The Rando Law Firm P.C.* *Please note that Mr. Rando is co-Counsel on an Amicus brief filed on behalf of the Association of Amicus Counsel in this case. As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
Today's show features a few segments from the LA live show, including a medium dive on the Open Skies Treaty. We break down what it is, what Trump is intending to do with it, and why his behavior is incredibly... weird. We also break down a story involving Covington and Burling winning legal fees against the government.
On this special Title VII episode, Leah, Jaime, and Kate are joined by a special guest – Jay Austin, Senior Associate Dean of Enrollment and Financial Aid at Rutgers Law School. Together they recap the Title VII arguments (which means a lot of bathroom talk).
Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025!
With impeachment in full swing, today's episode reminds you that we already have more than enough evidence to impeach & remove Donald Trump from office for the nine distinct crimes documented by Robert Mueller in Vol. II of the Mueller Report.
We begin, however, with a pre-show update: the 4th Circuit has just voted to rehear the Maryland emoluments lawsuit en banc on Dec. 12, 2019.
After that, it's time to check in on the latest Republican argument: that Democrats need to authorize an impeachment inquiry via a full floor vote in the House of Representatives. Learn why Nancy Pelosi said "Nope!" and why that might be shots fired... at the Supreme Court.
Then, it's time for the deep dive into the nine unambiguous, inarguable crimes that we already have proof Donald Trump has already committed, thanks to Vol. II of the Mueller Report. You will get a choose-your-own-adventure guide for how to steer your disbelieving Uncle Frank through the Mueller Report and prove that Trump acted with criminally corrupt intent to obstruct justice. "The cover-up is [still] worse than the crime"... isn't it?
After all that, it's time for an all-new #T3BE involving a hate crime. Is the Intellectual Dark Web correct that such things are protected by "free speech?" If not, why are they wrong? Play along on social media -- remember to #T3BE with your answer!
Upcoming 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.
The live show in Los Angeles was an absolute blast. We had so much great content that we're going to use it in bits and pieces here for the next few Tuesday shows. But if you'd like to hear the entire live show right away, and also hear the special intro Brian and Thomas cooked up for it, go to patreon.com/law right now!
Dahlia Lithwick is joined by all-star SCOTUS experts to walk us through this week’s biggest legal and constitutional developments. First, Laurence Tribe answers the questions Amicus listeners have been asking about the next steps in the impeachment process. Next, Pamela Karlan takes us inside the chamber for Tuesday’s oral arguments in a trio of Title VII cases at the high court.
On May 28, 2019, the Supreme Court decided Nieves v. Bartlett, a case that considers the conditions a plaintiff must meet to prevail on a claim of retaliatory arrest by law enforcement. State troopers Luis Nieves and Bryce Weight arrested Russell Bartlett during the 2014 “Arctic Man” winter sports festival held in Alaska’s Hoodoo Mountains. According to the officers, an apparently intoxicated Bartlett started yelling at Sergeant Nieves when the latter asked partygoers to move a beer keg to make it less accessible to minors. Several minutes later, when Trooper Weight asked a minor whether the minor and underage friends had been drinking, Bartlett approached, inserted himself between Weight and the minor, and yelled that Weight should not speak with the minor. Weight contends Bartlett then approached him combatively and Weight pushed him back. Sergeant Nieves, seeing the altercation, hurried over and arrested Bartlett. When Bartlett was slow to comply, the officers forced him to the ground. Bartlett denies being aggressive, and contends that after he was handcuffed Nieves said: “[B]et you wish you would have talked to me now.” Although Bartlett was charged with disorderly conduct and resisting arrest, the State ultimately dismissed the criminal charges against him. Bartlett then sued the officers in federal district court under 42 U.S.C. §1983, alleging that they had arrested him in retaliation for his speech, thereby violating his First Amendment rights. The court granted judgment in favor of the officers, concluding that they had probable cause to arrest Bartlett and that the existence of probable cause necessarily defeated Bartlett’s retaliation claim. The U.S. Court of Appeals for the Ninth Circuit reversed, however, arguing that even in the face of probable cause a claim of retaliatory arrest can prevail where the officers’ conduct would chill a person of ordinary firmness from First Amendment activity, and where the desire to chill speech was a “but for” cause of the arrest. The U.S. Supreme Court then granted certiorari to clarify the applicable legal standard. By a vote of 6-3, the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In an opinion delivered by Chief Justice Roberts, the court held that the existence of probable cause defeats a claim of retaliatory arrest as a matter of law--unless the plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been. The Chief Justice’s majority opinion was joined by Justices Breyer, Alito, Kagan, and Kavanaugh in full, and by Justice Thomas except as to Part II-D. Justice Thomas also filed an opinion concurring in part and concurring in the judgment. Justice Gorsuch filed an opinion concurring in part and dissenting in part. Justice Ginsburg filed an opinion concurring in the judgment in part and dissenting in part. Justice Sotomayor also dissented.
