Category: 3-LawSometimeCommentary

Today's episode tackles the recently-released trove of unredacted documents in the Southern District of New York in Michael Cohen's case and explains why Hope Hicks might have been ensnared by America's greatest legal mind, Stormy Daniels. Oh, and have you heard that the Congress ordered the DOJ to investigate... whether the military weaponized ticks and if so, whether those ticks were released against Americans? It's a weird story that can't possibly be true... can it?

We begin, however, with the resolution to last episode's #T3BE (formerly #TTTBE) controversy regarding the definition and conditions required for assault. Learn the results of whether "hissing" constitutes a physical threat... and whether that even matters!

Then, it's time for long trip up Yodel Mountain. We begin by discussing the... conclusion? of the citizenship question and Andrew lets you know what's still to come in those cases. After that, it's time to discuss the House's resolution of criminal contempt against Bill Barr and Wilbur Ross, and what that likely means going forward. And while we're still on Yodel Mountain... hey, how about those Michael Cohen docs? Now that the other cases have been concluded, the judge ordered the Cohen search warrants to be released in (mostly) unredacted form, and you won't believe what they show.

After all that, it's time for the segment you've all been waiting for: WEAPONIZED TICKS. This is a segment so powerful, you won't believe it (and we won't spoil it here in the show notes)!

And then it's time for a new #T3BE involving the rules of evidence and an oral contract. Think you have what it takes to hang with Thomas? Play along online by sharing out this episode, using our new hashtag, #T3BE, and we will reward one winner with Never Ending Fame & Fortune (TM).

Appearances

Andrew was a guest on the latest episode of the Left at the Valley podcast discussing abortion, as well as the most recent episode of Mueller, She Wrote talking.. well, pretty much everything!

Show Notes & Links

1. It's not too late! Click here to get tickets for the Opening Arguments LIVE SHOW, live in New York City on August 10th.
2. If you want to read the Cohen docs yourself, they're linked here.

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On January 15, 2019, the Supreme Court decided Stokeling v. United States, a case considering whether Florida’s robbery law, which requires victim resistance that is then overcome by the physical force of the offender, qualifies as a “violent felony” under the Armed Career Criminal Act (ACCA).
ACCA imposes a 15-year mandatory minimum prison sentence on any federal firearms offender who has three or more convictions for a “violent” felony or serious drug offense. In determining whether any given predicate felony conviction qualifies as “violent,” federal courts typically apply a “categorical” approach that looks only to the elements of the predicate offense and not the underlying facts. If the elements include “the use, attempted use, or threatened use of physical force against the person or property of another,” the conviction qualifies as a violent felony. The issue here was whether Stokeling’s Florida conviction for robbery categorically qualified as a violent felony for ACCA purposes. The U.S. Court of Appeals for the Eleventh Circuit held that it did.
By a vote of 5-4, the Supreme Court affirmed the judgment of the Eleventh Circuit. In an opinion delivered by Justice Thomas, the Supreme Court held that ACCA’s elements clause encompasses a robbery offense that, like Florida’s law, requires the criminal physically to overcome the victim’s resistance. Justice Thomas’s majority opinion was joined by Justices Breyer, Alito, Gorsuch, and Kavanaugh. Justice Sotomayor filed a dissenting opinion, in which the Chief Justice and Justices Ginsburg and Kagan joined.
To discuss the case, we have Luke Milligan, Professor of Law at the University of Louisville Brandeis School of Law.

Today's episode features a grab-bag of stories that have been making the rounds, including the recent ruling out of the Second Circuit regarding Donald Trump's use of Twitter, a setback for our buddy Brian Frosh's efforts to enforce the Emoluments Clauses of the Constitution, and an update on the real-word consequences of the Janus v. AFSCME decision we decry so much around here.

We begin with the Second Circuit's ruling in Knight First Amendment Inst. v. Trump, which established that a government official may convert a social media platform such as Twitter into a "limited use public forum," from which he may not block users on the basis of the political content of their speech -- i.e., viewpoint discrimination. Almost no one understands this decision; we'll make sure you're one of the lucky ones who do!

Then, it's time for a breakdown of the 4th Circuit's ruling in In re Trump, which directs the lower court to dismiss the lawsuit (and pending discovery) against Trump in the lawsuit brought by Maryland and D.C. alleging violations of the Foreign and Domestic Emoluments Clauses. Find out what this case is all about, whether the outcome is reasonable, and what's next.

After that, it's time for a quick look at the real-world implications of the Janus v. AFSCME decision allowing public-sector union employees to withhold a portion of their dues otherwise allocated for administrative duties under... some crazy right-wing theory that something something something, because Sam Alito knows diminishing the power of unions will hurt Democrats. But what else did that decision do? Listen and find out!

After all that, it's time for the most controversial #TTTBE yet, in which we discover the answer to Thomas Takes The Bar Exam (regarding larceny and robbery) ... or do we? You won't want to miss this one!

Appearances

Andrew was a guest on the latest episode of the Left at the Valley podcast discussing abortion, as well as the most recent episode of Mueller, She Wrote talking.. well, pretty much everything!

Show Notes & Links

1. Click here to read the Second Circuit's ruling in Knight First Amendment Inst. v. Trump (the Twitter case), and here to check out the Fourth Circuit's ruling in In Re Trump (the Emoluments case).
2. We first covered the emoluments case way back in Episode 78, and we interviewed Seth Barrett Tillman for his unique take in Episode 35 and Episode 36.
3. We learned that bad stuff was coming in the emoluments litigation in Episode 239 when the 4th Circuit issued a stay of all discovery; you can read that stay order here.
4. Finally, click here to read the LA Progressive article on Mark Janus and his conservative activism.

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

On June 21, 2019, the Supreme Court decided North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust, a case considering the ability of states to tax trust income for in-state beneficiaries even when these beneficiaries do not receive any distributions.
About thirty years ago, Joseph Lee Rice II formed a trust for the benefit of his children and their families. The trust was formed in New York State and governed by New York law, as well as administered by a trustee who is a New York resident. Kimberley Rice Kaestner moved to North Carolina in 1997 and claimed residency from 2005-2008. After the move, the trustee opted to divide Rice’s initial trust into three separate subtrusts while still maintaining control of all three trusts. The trust at issue in this case is the Kimberley Rice Kaestner 1992 Family Trust (“Kaestner Trust”), which North Carolina sought to tax on the grounds that it “is for the benefit of” North Carolina residents. North Carolina taxed the trust for tax years 2005-2008, levying a bill of more than $1.3 million. The trustee paid the tax under protest and sued North Carolina in state court, arguing that the tax as applied to the Kaestner Trust violates the Due Process Clause of the Fourteenth Amendment. Kaestner had received no income from the trust during the years in question, the trust was governed by New York law, and the trustee did not live in North Carolina. The state courts ruled in favor of Kaestner, and the State of North Carolina obtained a grant of certiorari.
In a unanimous decision, the U.S. Supreme Court affirmed the judgment of the Supreme Court of North Carolina. In an opinion delivered by Justice Sotomayor, the Court held that “the presence of in-state beneficiaries alone does not empower a state to tax trust income that has not been distributed to the beneficiaries where the beneficiaries have no right to demand that income and are uncertain to receive it.” Justice Alito filed a concurring opinion, joined by the Chief Justice and Justice Gorsuch.
To discuss the case, we have Jon Urick, Senior Counsel for Litigation at the US Chamber Litigation Center.

Today's episode gives you the legal background you need to understand all of the different legal fronts in the various pending proceedings involving Jeffrey Epstein and the allegations of underage sex trafficking, including the recent criminal indictment in the Southern District of New York, currently pending civil defamation lawsuits against Epstein associates (including Alan Dershowitz), and the effort to reverse the non-prosecution agreement in Florida.

We begin, however, with a preview of some HUGE NEWS -- our upcoming live show in New York City the weekend of August 9, 2019! Clear your calendars now and get ready to come see us live and in person!

Then, it's time to unpack all of the various legal proceedings surrounding Jeffrey Epstein. (For more of a factual analysis of the Florida non-prosecution agreement, check out Episode 259.) You'll learn about the various defamation lawsuits, their status, and what's next. And then you'll also learn where we stand with respect an effort that's now 11 years old by Epstein's victims to revoke the non-prosecution agreement. And after all that, we also break down exactly how to parse the deluge of news that's soon to come out in all of these cases.

After that, it's time to check back in on the Trump administration's efforts to defy the Supreme Court and still insert a citizenship question on the census. Learn what Andrew predicts will happen at Trump's press conference, why the New York court denied certain DOJ lawyers leave to withdraw, what's next in both the Maryland and New York cases and more!

Of course, no episode would be complete without #TTTBE! This week's Thomas Takes The Bar Exam is question #134 about criminal law. When a jewelry thief poses as the mayor's rich and powerful son, what kinds of crimes could he be charged with? You'll just have to listen and find out!

Appearances

Andrew was just a guest host on Episode 100 of the Skepticrat; check it out! And if you’d like to have either of us as a guest on your show (or at your live show!), drop us an email at openarguments@gmail.com.

Show Notes & Links

1. Don’t forget to vote for us in the Podcast Awards by clicking on that link (or heading to www.podcastawards.com), clicking the blue “>> Nominations Now Open

Today's episode welcomes Monica Miller, counsel for the American Humanist Association, back to the show! Miller, as you know, was the lead counsel and presented the AHA's argument before the Supreme Court in the American Legion v. American Humanist Ass’n case involving the 40-foot Latin cross on public property in Bladensburg, Maryland.

Andrew and Monica spend the entire show doing a deep dive into the decision, trying to figure out issues like (1) is the Lemon v. Kurtzman test really dead?; (2) how can we make sense of the court's admonition to "respect the beliefs" of those who oppose taking down the cross?; (3) how can local activists proceed in light of this decision, and much, much more!

After a wide-ranging interview, it's time for the answer to what Andrew has dubbed the Worst, Stupidest Bar Exam question -- this one involving the "equitable conversion" doctrine in the sale of land. Did Thomas somehow manage to get a crazy, stupid, awful real property question correct? Listen and find out!

Appearances

Andrew was just a guest host on Episode 100 of the Skepticrat; check it out! And if you’d like to have either of us as a guest on your show (or at your live show!), drop us an email at openarguments@gmail.com.

Show Notes & Links

1. Don’t forget to vote for us in the Podcast Awards by clicking on that link (or heading to www.podcastawards.com), clicking the blue “>> Nominations Now Open

Dahlia Lithwick is joined by Frank Bowman, author of the upcoming book High Crimes and Misdemeanors, A History of Impeachment for the Age of Trump about the big question: Impeachment, its historical precedent, constitutional roots, and present day predicaments. 

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Today's episode reveals Andrew's plan for how to fix the Supreme Court! Oh, and while you're here, we'd love it if you would vote for us in the Podcast Awards by clicking on that link (or heading to www.podcastawards.com), clicking the blue ">> Nominations Now Open

Today's episode revisits a narrow area of administrative law we last discussed in Episode 266, namely, Auer deference. Andrew made a bold prediction in that episode, and find out where he was wrong -- and where he was right now that the Supreme Court has ruled in Kisor v. Wilkie. We also discuss the recent unsealing of court records thanks to a CNN reporter and we witness the return of listener favorite segment "Are You A Cop?" with a fabulous question about drinking and driving. Buckle up!

We begin, however, with a look at a recent request made by CNN's Katelyn Polantz regarding certain court proceedings and records relating to the Mueller Investigation. Does this mean that "BILL BARR KILLED 7 OPEN INVESTIGATIONS?" (No.) But it is significant, and you won't want to miss why.

Then, it's time for a deep-dive explainer that starts with a reminder on the principles of agency deference. Don't remember the exact difference between Chevron deference and Auer deference? We've got you covered -- including, in particular, how the latter came under attack in Kisor v. Wilkie, a case involving a retired servicemember challenging the internal agency regulations governing disability pay. Should the courts defer to an agency's interpretation of its own rules, or should it be wildly activist and defer to Neil Gorsuch's interpretation of those rules? Kisor gives us a slightly different answer than you might expect, all while angling us towards the day soon to come in which the Supreme Court greatly expands the power of the judicial branch.

After that, it's time for Are You A Cop? featuring some truly terrible advice for how to beat a DUI arrest. (Please do not do this.) We talk about standards of evidence while debunking the notion that you should... drink more when you're pulled over? (It's a weird question.)

As if that wasn't enough, we end with the answer to Thomas Takes The Bar Exam #132 about an escaped, de-fanged, venomous snake. Who's responsible? Listen and find out!

Appearances

Andrew will be a guest at the Mueller She Wrote live show in Philadelphia, PA on July 17, 2019; click that link to buy tickets, and come up and say hi! And remember: if you’d like to have either of us as a guest on your show (or at your live show!), drop us an email at openarguments@gmail.com.

Show Notes & Links

1. This is the Raw Story article we criticize during the "A" segment, and to verify what we've said is correct, you can read (a) Polantz's request; (b) the Court's order; (c) Exhibit A (Search Warrants); (d) Exhibit B (Wiretapping); and (e) Exhibit C (Pen Register/Trap & Trace). Phew!
2. We previewed Kisor v. Wilkie (read decision) in Episode 266. And, in breaking down Justice Roberts's holding in Kisor, we also expose shoddy journalism like this Daily Beast article.

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

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-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 inaugural episode of Strict Scrutiny, Leah, Melissa, Jaime, and Kate recap two of this term's biggest opinions--partisan gerrymandering and the census. They also walk through a theme of this term (stare decisis) before talking about the podcast's role in Supreme Court legal culture. It's Strict Scrutiny's test pancake, so enjoy the show!

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