Category: 3-LawSometimeCommentary

Today's Rapid Response Friday helps separate fact from fiction when it comes to the heartwrenching issue of families being separated at the border.  Is the Trump administration to blame?  Did the recent Executive Order fix the problem?  Listen and find out. First, though, we bring back (almost) everyone's favorite segment:  Andrew Was Wrong!  Specifically, Andrew was wrong when he predicted back in Episode 83 that Maajid Nawaz didn't have much of a defamation case against the Southern Poverty Law center, and in Episode 84 that he didn't have much leverage, either.  Well, both of those predictions looked foolish now that the SPLC has agreed to pay Nawaz $3,375,000 and issue an unconditional apology. In the main segment, we break down Trump's EO regarding separating families at the border and requesting a modification to the Flores v. Reno settlement.  It's bad.  And if it weren't bad enough, we also discuss the administration's change in asylum policy. After that, we discuss the Supreme Court's recent opinion in Pereira v. Sessions.  Surely that can't be bad news, too?  (Don't call us Shirley.) Finally, we end with an all new Thomas Takes The Bar Exam #81 involving the constitutionality of a state legislature retaliating against two professors for pushing campus speech codes.  Have we piqued your interest yet?  Listen and find out!  And if you'd like to play along , just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was recently a guest on the David Pakman Show, with a two-part appearance discussing whether President Trump can be indicted and if so, whether he can pardon himself.  You can watch the video on YouTube. Show Notes & Links

1. We first discussed Maajid Nawaz's legal threats in Episode 83 and Episode 84.  You can read the final Settlement Agreement for yourself as well as check out the SPLC's apology to Nawaz.
2. Click here to read the Snopes article conclusively debunking the political claim that this policy was put into place "by Democrats."
3. You can read Trump's recent Executive Order and also check out the original 1997 Flores v. Reno settlement.
4. The operative laws discussed during the main segment were:  8 U.S.C. § 1158 (asylum); 8 U.S.C. § 1325 (“improper entry by alien”); and, of course, 18 U.S.C. § 46 (“transportation of water hyacinths”).  You can also read the Attorney General's Interim Decision #3929 on refugees for yourself.
5. As promised, this is the full list of Class B federal misdemeanors.
6. We also discussed this Washington Post article on refugees being turned away at the border.
7. This is the Supreme Court's recent opinion in Pereira v. Sessions.
8. Finally, a secret Yodel for you folks who read the show notes:  here's the link to the news that Michael Cohen's fired his old lawyers (McDermott, Will & Emery) and hired a new one (Guy Petrillo).  What does this mean?  Only time will tell.

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On May 14, 2018, the Supreme Court decided McCoy v. Louisiana, a case considering whether defense counsel may--against the defendant’s express wishes--concede his client’s guilt in an effort to avoid the death penalty.
In 2008, Robert McCoy was indicted on three counts of first-degree murder for the deaths of the mother, stepfather, and son of his estranged wife. McCoy pleaded not guilty, maintaining that he was out of state at the time of the murder. In 2010, his relationship with the court-appointed public defender broke down, and in March 2010 Larry English became McCoy’s defense attorney. English concluded that the evidence against McCoy was overwhelming and told McCoy that he would concede McCoy’s guilt in an effort to avoid the death penalty; McCoy adamantly opposed English’s strategy. At trial, English nevertheless indicated repeatedly to the jury that McCoy had caused the victims’ deaths and pleaded for mercy. McCoy protested unsuccessfully to the trial judge and was permitted to testify to his innocence, but was ultimately convicted and sentenced to death. The Louisiana Supreme Court affirmed the trial court’s ruling that defense counsel had authority to concede guilt over McCoy’s objection as a strategy to avoid a death sentence. In light of a division of opinion among state courts of last resort on whether it is unconstitutional to allow defense counsel to concede guilt over the defendant’s intransigent and unambiguous objection, the U.S. Supreme Court granted certiorari.
By a vote of 6-3, the U.S. Supreme Court reversed the judgment of the Louisiana Supreme Court and remanded the case for a new trial. In an opinion delivered by Justice Ginsburg, the Court held that the Sixth Amendment guarantees a defendant the right to choose the fundamental objective of his defense and insist that counsel refrain from admitting guilt, even when counsel’s experience-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.
Justice Ginsburg delivered the opinion of the Court, which was joined by the Chief Justice, and Justices Kennedy, Breyer, Sotomayor, and Kagan. Justice Alito filed a dissenting opinion, which was joined by Justices Thomas and Gorsuch.
To discuss the case, we have Jay Schweikert, Policy Analyst with the Cato Institute’s Project on Criminal Justice.

**Today's episode is brought to you by Framebridge! To custom frame your favorite things, go to framebridge.com promo code: OA** Today's episode takes a deep dive into two recent 8-1 decisions by the Supreme Court:  Collins v. Virginia and Sveen v. Melin.  What makes a decision nearly unanimous, and what causes that lone Justice to dissent?  Listen and find out! Our first 8-1 case involves two unique aspects of the 4th Amendment:  the "curtilage" exception and the "automobile" exception.  Which one takes precedence, why, and which Supreme Court justice vehemently disagreed?  Find out if you agree with Thomas -- and whether the law is "a ass."  (Seriously!) Our second 8-1 case is Sveen v. Melin, which involves whether the state of Missouri can legislate certain presumptions regarding "governing instruments."  It's the Contracts Clause!  Seem arcane?  It won't after you listen to our breakdown! After that, we answer a fun listener question about how a law firm makes someone a partner in light of our assessment of the Eagan Avenatti law firm in Episode 181. Finally, we end the answer to Thomas Takes The Bar Exam #80 regarding negligence per se and an impromptu ice rink.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was recently a guest on the David Pakman Show, with a two-part appearance discussing whether President Trump can be indicted and if so, whether he can pardon himself.  You can watch the video on YouTube. And 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. Click here to read the Supreme Court's opinion in Collins v. Virginia, and here to check out Sveen v. Melin.
2. The other decision Andrew referred to was the landmark case of Shelley v. Kraemer, 334 U.S. 1 (1948).

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**Today's episode is brought to you by The Great Courses Plus! Go to thegreatcoursesplus.com/OA to start your free month!** Today's Rapid Response Friday spends a lot of time on Yodel Mountain, and in particular evaluating whether Paul Manafort is headed to prison for violating the terms of his pre-trial release as per 18 U.S.C. § 3148(b)(1)(A).  You'll know soon enough, but we're predicting that Paulie M is headed to prison. Of course, no trip to Yodel Mountain has just a single stop, so we also discuss the late-breaking New York state lawsuit filed against Donald Trump, his kids, and the Trump Foundation; the status of the media's efforts to unseal the Mueller documents, and much, much more! After that lengthy trip to Yodel Mountain, we also update you on the recent court decision upholding the AT&T / Time Warner merger first discussed in Episode 128. Finally, we end with an all new Thomas Takes The Bar Exam #80 which asks how a court would rule in a convoluted case involving car-washing, sudden deep freezes, and incompetent trial attorneys.  Have we piqued your interest yet?  Listen and find out!  And if you'd like to play along , just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was recently a guest on the David Pakman Show, with a two-part appearance discussing whether President Trump can be indicted and if so, whether he can pardon himself.  You can watch the video on YouTube. Show Notes & Links

1. Click here to read the just-filed New York state lawsuit against Donald Trump, his kids, and the Trump Foundation.
2. Here's the government's motion to revoke Paul Manafort's pretrial release pursuant to 18 U.S.C. § 3148(b)(1)(A) ; here's the superseding indictment; and here's Manafort's response to the government's motion.  Witness tampering is a crime under 18 U.S.C. § 1512.
3. You can read the primary case relied upon by Manafort's lawyers, U.S. v. Edlind, 887 F.3d 166 (4th Cir. 2018) for yourself.
4. A (federal) criminal motion for a "bill of particulars" is governed by Rule 7(f) of the Federal Rules of Criminal Procedure.  You can also check out Judge Jackson's Order denying Manafort's Motion for Bill of Particulars,
5. We first discussed the press's motion to unseal the Mueller investigation documents in Episode 168; now you can read the Media Coalition Response brief to the government and Manafort's separate objections to unsealing the documents.
6. We broke down the AT&T/Time Warner merger in Episode 128, and you can read Judge Leon's Order Approving the Merger.

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Dahlia Lithwick moderates a discussion of civil rights and legal norms in the Trump era with the ACLU’s David Cole, president and CEO of the Leadership Conference on Civil and Human Rights, Vanita Gupta, former White House chief ethics counsel under President George W Bush, Richard Painter, and former US attorney for the Northern District of Alabama, Joyce White Vance.

Please let us know what you think of Amicus. Join the discussion of this episode on Facebook. Our email is amicus@slate.com.

Podcast production by Sara Burningham.

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On May 14, 2018, the Supreme Court decided Murphy v. NCAA, a case involving a conflict between state-authorized sports gambling and a federal statute: the Professional and Amateur Sports Protection Act of 1992 (PASPA).
PASPA prohibits state-sanctioned gambling with respect to amateur and professional sporting events. Among other things, the statute allows sports leagues whose events are the subject of betting schemes to bring an action to enjoin any gambling. PASPA did except certain states from its prohibitions, including New Jersey--but only if New Jersey established its sports gambling scheme within one year of PASPA’s enactment. New Jersey did not do so, and in fact prohibited sports gambling until a 2011 referendum amended the state constitution to allow it.
Thereafter, New Jersey enacted the 2012 Sports Wagering Act, which created a government-regulated sports betting scheme. Invoking PASPA, five sports leagues sued to enjoin the 2012 law. New Jersey countered that PASPA was unconstitutional under the federal anti-commandeering doctrine. The District Court deemed PASPA constitutional and enjoined implementation of the wagering law. The U.S. Court of Appeals for the Third Circuit affirmed, and the U.S. Supreme Court denied certiorari.
In 2014, New Jersey enacted a new gambling law which repealed certain restrictions on “the placements and acceptance of wagers” on sporting events so long as those events did not involve New Jersey collegiate teams (or other in-state collegiate sporting events). New Jersey contended that this law was admissible under PASPA because it did not actively authorize sports-betting. Once again sports leagues sued to enjoin the law as a violation of PASPA, and prevailed in federal district court. The Third Circuit, sitting en banc, again affirmed, holding that PASPA did not commandeer New Jersey in a way that ran afoul of the federal Constitution. The Supreme Court granted certiorari to address whether a federal statute that prohibits modification or repeal of state-law prohibitions on private conduct impermissibly commandeers the regulatory power of the states.
By a vote of 6-3, the Supreme Court reversed the judgment of the Third Circuit. In an opinion delivered by Justice Alito, the Court held that the provisions of PAPSA that prohibit state authorization and licensing of sports gambling schemes violate the Constitution’s anticommandeering rule, and cannot be severed from the remainder of the statute, which collapses as a result.
Justice Alito’s majority opinion was joined by the Chief Justice and Justices Kennedy, Thomas, Kagan, and Gorsuch. Justice Breyer joined to all except as to Part VI-B. Justice Thomas filed a concurring opinion. Justice Breyer filed an opinion concurring in part and dissenting in part. Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined, and in which Justice Breyer joined in part.
To discuss the case, we have Elbert Lin, Partner at Hunton & Williams, LLP.

Today's episode takes a deep dive into allegations of attorney misconduct.  We begin with following investigative reporting concerning the involuntary bankruptcy of the Eagan Avenatti firm, and discover some potentially disturbing facts about the lawyer who's currently outfoxing the bad guys at every turn, Michael Avenatti. After that, we discuss the Supreme Court's recent unanimous per curiam decision in Azar v. Garza, the tragic case of the young woman denied her constitutional right to an abortion and subjected to harassment and "crisis pregnancy center" anti-abortion counseling until the D.C. Circuit Court of Appeal stepped in.  So... why did the Supreme Court just vacate that opinion?  It (potentially) has to do with attorney misconduct.  Oh, and this story also tells you everything you needed to know about price ceilings on underwear in the 1940s.  (Really!) Then, we examine the biggest example of attorney misconduct at the moment -- Donald Trump's ever-fluctuating team of lawyers defending the indefensible.  Specifically, we take a look at the recently-leaked Dowd memorandum and its central claim that the President cannot obstruct justice with otherwise-legal behavior.  (That's false.) Finally, we end the answer to Thomas Takes The Bar Exam #79 regarding the conveyance of property to a church with conditions attached.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances If you can't get enough of our analysis of the Masterpiece Cakeshop opinion, you can get even more on Episode 142 of Serious Inquiries Only (with more Andrew Seidel) and Episode 277 of The Scathing Atheist (with way more profanity). And 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 investigative piece on the Eagan Avenatti bankruptcy published by the Los Angeles Times.
2. We last discussed Garza v. Hargan on Episode 165.  You can read the Supreme Court's opinion (now captioned Azar v. Garza) here.  And if you want to read United States v. Munsingwear, Inc., 304 U.S. 36 (1950), you can do that too!
3. Finally, if you can stomach it, here's a link to the Dowd memo.

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An epic Amicus this week, with a  thorough analysis of Masterpiece Cakeshop v Colorado Civil Rights Commission with Slate’s Mark Joseph Stern. What does is tell us about Justice Anthony Kennedy’s plans, and can it tell us anything about the travel ban case?

Then Dahlia Lithwick speaks with one of her heroes, the Rev. William Barber, about how progressives ceded the language of faith, morality,  and the Constitution—and how they are reclaiming it.

Please let us know what you think of Amicus. Join the discussion of this episode on Facebook. Our email is amicus@slate.com.

Podcast production by Sara Burningham.

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Join us for an early Rapid Response Friday, in which we break down the Supreme Court's decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission.  To tackle a topic this big, we needed a little extra help, so we brought back our favorite guest, Andrew Seidel, attorney with the Freedom From Religion Foundation.  But that's not all!  We recorded so much information that we decided to do a crossover episode with Serious Inquiries Only, so you can have over two hours of Andrew-on-Andrew (and Thomas!) action. We begin, however, on Yodel Mountain, with two pieces of news arising out of Paul Manafort's criminal trial.  Is Paulie M going to jail?  Did he engage in illegal witness tampering?  Did he back up his encrypted WhatsApp messages on an unencrypted iCloud?  Listen and find out!  We also delve into Manafort's response to the press's motion to unseal the Mueller investigation documents first discussed in Episode 168.  And, as long as we're yodeling, we might as well catch up on what's going on in the Summer Zervos lawsuit first discussed in Episode 176. After that, it's time to figure out exactly what's going on in Masterpiece Cakeshop.  Is this a narrow decision?  Is it a win for anti-LGBTQ forces?  Is it a nothing-burger?  Listen and find out! Finally, we end with an all new Thomas Takes The Bar Exam #79 about the real property conveyance to a church.  Yes, it's more 13th-Century Saxony law!  And if you'd like to play along , just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew and Andrew continued to talk Masterpiece Cakeshop on Serious Inquiries Only, and Andrew was a guest talking the same thing on Episode 177 of The Scathing Atheist. Show Notes & Links

1. Here's the government's motion to revoke Paul Manafort's pretrial release.  Witness tampering is a crime under 18 U.S.C. § 1512.
2. We first discussed the press's motion to unseal the Mueller investigation documents in Episode 168, and the Summer Zervos lawsuit back in Episode 176.
3. We've uploaded Supreme Court's decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission so you can read it for yourself.
4. If you love Andrew Seidel, you might want to go back to his  FIVE previous appearances on the show, Episode 82 (on Trinity Lutheran), Episode 85 (which was originally a Patreon-only exclusive),Episode 111, Episode 131, and most recently, Episode 171.
5. Finally, please consider supporting the Freedom From Religion Foundation.

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Today's episode takes a deep dive into two developments concerning the right to an abortion in the U.S., followed by our continuing discussion on plea bargaining with listener comments from prosecutors, public defenders, the U.S. judiciary, and even international listeners.  You won't want to miss it! We begin with an in-depth examination of the so-called "gag rule" just proposed by Trump's Department of Health and Human Services.  Is it really a gag rule?  (Yes.) After that, we look into the Supreme Court's recent decision not to grant certiorari in Planned Parenthood v. Jegley, allowing an 8th Circuit decision to stand that, in turn, denied a preliminary injunction blocking a restrictive Arkansas abortion law, HB1394.  Is this a bad sign?  (Yes.) After that, we return to the subject of plea bargaining that's been a hot topic in our inbox for weeks, capped off by the Iowa Supreme Court's discussion of the issue in  Schmidt v. Iowa. Finally, we end the answer to Thomas Takes The Bar Exam #78 regarding whether the jury can read a treatise on mill grinding.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent 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. For context on the Trump HHS gag rule, you can read Title X, 42 USC § 300 et seq.
2. Planned Parenthood v. Jegley, 864 F.3d 953 (8th Cir. 2017), denied a preliminary injunction, allowing HB1394 to take effect.  You can read the cert petition here.
3. If you're feeling good about Schmidt v. Iowa and need to be reminded that "actual innocence" is not a ground for federal habeas corpus relief, check out Herrera v. Collins, 506 U.S. 390 (1993).

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