Category: 3-LawSometimeCommentary

Today's deep-dive Tuesday tackles a viral oral argument before the Supreme Court in Timbs v. Indiana regarding civil forfeiture -- and a delightful question (that inspired the graphic for the show notes) about whether the state can seize your Bugatti for speeding.  Oh, and we check back in on the Ann Coulter v. Berkeley lawsuit that was recently settled.  What happened?  Listen and find out!

We begin with the Berkeley settlement, and break down exactly what the University did (and didn't) promise to do going forward.  Is this a "big win" for the right wing?  (Hint: no.)

Then, it's time to delve deeply into Timbs v. Indiana and discuss the law of civil asset forfeiture, the doctrine of proportionality, and even the concept of incorporation.  Yes, it's a crazy Civ Pro kinda day.. you won't want to miss it!

Then, it's time for a BRAND NEW SEGMENT -- "Yodel Mountain Remembers!"  We think you're gonna love it!

Oh, and we also tackle a terrific listener question about the "apology doctrine" and the nation that made apologies famous -- Canada (of course).

After all that, it's time for the answer to Thomas Takes The Bar Exam #104 regarding government action and the warrant requirement of the Fifth Amendment.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

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. Click here to read the Berkeley settlement.
2. This is a link to the oral argument in Timbs v. Indiana.
3. Finally, you can check out Maryland's "apology law," Maryland Code, Courts and Judicial Proceedings Article, § 10-920(b), by clicking here.
4. This is the delightfully demented Corsi lawsuit against Mueller,

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*This week's show was recorded before Friday's filings concerning Paul Manafort and Michael Cohen, but the merits of the discussion stand. Mimi Rocah, a former federal prosecutor in the Southern District of New York, now a Criminal Justice Fellow at Pace Law School draws out the themes of the Mueller investigation. Plus Dahlia Lithwick is joined by Riyaz Kanji, an attorney for the Creek Nation, to explore the fascinating questions and disgraceful history involved in Carpenter v Murphy,  a case argued by Kanji before the Supreme Court last week. The case started with a murder and now involves questions of sovereignty over 3 million acres in Oklahoma. 

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Today's Rapid Response episode takes a look at two pressing issues: (1) Mueller's [REDACTED] sentencing memorandum with respect to Michael Flynn, and (2) the naked power grab by lame-duck Republicans in Wisconsin.  Along the way, we'll also cover a bunch more legal stories, but you knew that already!

We begin high atop Yodel Mountain, where we cover not only the [REDACTED] Flynn memorandum but also Roger Stone taking 5 and a truly bizarre conspiracy theory advanced by Rudy Giuliani.

Then, it's time for the main segment, in which we tackle Wisconsin SB 887 and its component bills that are designed to weaken drastically the strength of the incoming Democratic governor, Tony Evers.  Is it as bad as everyone says it is?  (It's worse.)

After that, it's time for a brief Andrew Was Wrong segment.  Turns out Andrew Was Wrong about both Julian Assange and American paddlefish!

Finally, we end with an all new Thomas Takes The Bar Exam #102 on evidence and the admissibility of hearsay.  Find out how Thomas outsources the decision and more.  And, of course, if you'd like to play along with us, 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!

Appearances

Andrew was recently a guest on the David Pakman show talking court-packing and more.  Give it a listen!  And, as always, 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. You can read the (non-censored) baseline Sentencing Memorandum filed by Mueller here, and the [REDACTED] Supplemental by clicking here.
2. Here are the texts of the various Wisconsin bills:  SB 884, SB 886, and the final bill, SB 887.

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On October 9, 2018, the Supreme Court heard arguments in Stokeling v. United States and the consolidated cases United States v. Stitt and United States v. Sims, all disputes that involve the federal 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 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.
In Stokeling v. United States, the U.S. Court of Appeals for the Eleventh Circuit held that Stokeling’s Florida conviction for “robbery by sudden snatching” categorically qualified as a violent felony. The Supreme Court granted certiorari to consider whether that analysis holds when the state offense includes as an element the common law requirement of overcoming “victim resistance,” and state appellate courts have required only slight force to satisfy that element.
In United States v. Stitt, consolidated with United States v. Sims, both defendants persuaded federal courts of appeals--the Sixth Circuit for Stitt and the Eighth Circuit for Sims--that their sentences were improperly enhanced because predicate burglary convictions under the laws of Tennessee and Arkansas, respectively, involved elements categorically broader than the generic burglary encompassed by ACCA. ACCA deems burglary a violent felony, but takes a generic view of burglary that may be narrower than some state burglary laws. The Supreme Court consolidated the two cases and granted certiorari to consider whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” for purposes of ACCA.
To the discuss the case, we have Luke Milligan, Professor of Law at the University of Louisville Brandeis School of Law.

Today's deep-dive Tuesday takes us back to a time in which politically-motivated revenge was actually seen as a scandal; namely, Chris Christie's Bridgegate.  There's a new ruling out of the Third Circuit that affects two Christie staffers, and... well, you'll just have to listen and find out!

Then, it's time to take a long look at ongoing litigation surrounding the Trump Administration's efforts to deter Democrats from registering for the Census, thus reducing their voting power.  What does a trial in district court have to do with the Supreme Court's recent grant of certiorari?

After that, we answer a terrific Patron listener question regarding the European loser-pays-legal fees model versus the American pay-your-own-way model.  Yes, the American model seems counter-intuitive at best (and downright regressive at worst), but is shifting to a loser-pays model the answer?  Andrew talks about his experiences and the guys go through a bunch of options.

And finally, we end with the answer to Thomas Takes The Bar Exam #103 on the Takings Clause!  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

Andrew was recently a guest on the David Pakman show talking court-packing and more.  Give it a listen!  And, as always, 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. You can read the 3rd Circuit's opinion in Bridgegate by clicking here.
2. Click here to read the Court's order in the Census litigation, which shows that Thomas-Alito-Gorsuch would have granted a stay.

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"Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning." - Winston Churchill.  And yes, today does, in fact, mark the end of the beginning of the Mueller Investigation... and perhaps for Donald Trump.  Why?  You'll just have to listen and find out!

In this super-sized episode, we tackle:

(1) Michael Cohen's just-announced plea to a new count of lying -- this time in connection with his prior testimony before the Senate and House Intelligence Committees investigating Russian interference in the 2016 elections;

(2) A follow-up on Andrew Miller and Concord Management and Consulting, including a fascinating new blog written by Randall Eliason with Yodel Mountain implications;

(3) Paul Manafort's apparent repudiation of his plea deal with Mueller, what that means and when we'll know;

(4) Jerome Corsi's public refusal to plead and cooperate with the Mueller investigation over WikiLeaks and Julian Assange; and

(5) An update in the Brain Frosh

Finally, we end with an all new Thomas Takes The Bar Exam #103 on a property owner who has the rug pulled out from under him due to a new law.   If you'd like to play along with us, 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!

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. Click here to read the new Information to which Cohen pled guilty to today.
2. This is the BuzzFeed article on Cohen, Felix Sater, and Trump's efforts to get a building in Moscow over the past 30 years.  Oh, and here's a link to Trump's tweet that he has "ZERO INVESTMENTS IN RUSSIA."
3. We discussed the Andrew Miller lawsuit in OA 229; you'll definitely want to read the two new filings: Silbey's supplemental amicus "letter", and Christenson's... something.
4. You'll definitely want to check out Randall Eliason's blog analyzing the Concord Management and Consulting lawsuit and what it means for 18 U.S.C. § 371 conspiracy charges (of the sort that might be filed against Trump).
5. Here's Manafort's original plea deal, and this is the Joint Status Report filed earlier this week. Oh, and this is Manafort's waiver of his right to appear at the scheduling conference.
6. This is the Marcy Wheeler article we broke down; for the other side, here's the Wall Street Journal report suggesting Manafort lied about non-Trump-related personal business dealings.
7. This is the Guardian article connecting Manafort to Julian Assange and WikiLeaks; here is the fantastic Washington Post article and timeline on what that means if true.
8. Here's Corsi's draft deal with Manafort that he rejected.
9. Finally, we discussed the Brian Frosh lawsuit against Matthew Whitaker in Episode 227; you can now read the amicus brief filed by 15 state attorneys general.  Phew!

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On October 31, 2018, the Supreme Court heard argument in Jam v. International Finance Corporation, a case involving the scope of the International Organizations Immunities Act.
The International Finance Group (IFC) is an international organization which provides loans to projects in developing countries that do not have the necessary private capital for projects. Under the International Organizations Immunities Act (IOIA), the IFC is an organization designated to “enjoy the same immunity from suit … as is enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract.” The IFC funded the construction of the Tata Mundra Power Plant in Gujarat, India, with a proviso that the plant had to follow an Environmental and Social Action Plan to protect the surrounding community; failure to follow the Plan would result in a loss of financial support. The power plant did not follow the Plan, but the IFC did not revoke funding. Members of the surrounding community sued the IFC in district court, claiming that the IFC is responsible for their injuries because it continued funding the project despite the plant’s clear failure to follow the Environmental and Social Action Plan. The district court dismissed the complaint on the grounds that the IFC was immune from suit. The petitioners appealed to the US Court of Appeals for the DC Circuit, which agreed with the district court.
The US Supreme Court then granted certiorari to address whether the International Organizations Immunities Act—which affords international organizations the “same immunity” from suit that foreign governments have, 22 U.S.C. § 288a(b)—confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11.
To the discuss the case, we have Mike Ramsey, Professor of Law at University of San Diego School of Law.

Today's deep-dive Tuesday tackles that viral case caption you've probably seen floating around Twitter:  "United States v. 1,855.6 pounds of American Paddlefish Meat."  Is the sack of fish meat really going to have to show up in court?  Will it have a lawyer??!?  Listen and find out!

We begin, however, with a roundup of all the lawsuits filed against Matthew Whitaker, including the most recent one brought by Senators Blumenthal and Hirono.  Oh, and we check with an op-ed written by... the Torture Guy?  What's going on here??

The main segment delves into in rem jurisdiction in order to explain the "paddlefish meat" caption.  If you like legal minutiae -- and let's be honest, you're listening to this podcast -- you'll love this segment.

Then, it's time for a truly great listener question holding Andrew's feet to the fire on Net Neutrality and the Munsingwear doctrine.  It's not an Andrew Was Wrong, but it is an... Andrew Could Have Explained That Better?  Either way, you won't want to miss it.

Finally, we end with the answer to Thomas Takes The Bar Exam #102 on hearsay.  Find out if Thomas's coin can pass the bar exam!  And as always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

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. Click here to check out Lawfareblog's clearing house for Whitaker complaints, and click here to read John Yoo's (surprising) op-ed arguing that Whitaker's appointment was illegal.
2. If you want to read the actual meat filing, click here.
3. Special shout-out to law professor Brian L. Frye for tipping us off to United States v. 43 1/2 Gross Rubber Prophylactics!

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And email us at openarguments@gmail.com

 

Dahlia Lithwick is joined by Ted Boutrous, who represented CNN and Jim Acosta in their case against the White House. Jim Acosta’s “hard pass” or permanent press pass, was revoked by the Trump administration after Acosta clashed with the President at a November 7th news conference. Dahlia Lithwick and Ted Boutros examine questions of due process and free speech thrown up by the case.

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

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Today's Thanksgiving Special / Rapid Response episode takes a look at the single most important Yodel Mountain case pending right now:  Andrew Miller's lawsuit before the Court of Appeals for the District of Columbia Circuit.  Find out what it all means!

We begin, however, with a brief Andrew Was Right and roundup on the status of the Jim Acosta lawsuit, which has been mooted thanks to the injunctive relief won by CNN (and the White House's decision to restore Acosta's credentials).

Then, it's time for the deep dive into Andrew Miller and his Don Quixote-esque foray into our legal system to challenge Robert Mueller's authority.  Along the way you'll find out who Andrew's Shattered Glass doppelganger is, and learn more than you ever thought possible about the U.S. Constitution's "Appointments Clause."

Finally, we end with an all new Thomas Takes The Bar Exam #102 on evidence and the admissibility of hearsay.  Find out how Thomas outsources the decision and more.  And, of course, if you'd like to play along with us, 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!

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 "recalcitrant witness" statute is 28 U.S.C.  § 1826.
2. Click here to read Judge Howell's U.S.D.C. trial court opinion.
3. We pulled a ton of documents for you in the Miller case, including (a) Concord's motion to intervene; (b) Concord's amicus brief on the merits; (c) the eminently silly Sibley amicus brief; (d) Robert Mueller's merits brief; (e) Andrew Miller's merits brief; (f) Andrew Miller's supplemental brief; and (g) Rober Mueller's supplemental brief.  Phew!
4. Don't be afraid to check out In Re Sealed Case, 829 F.2d 50 (D.C. Cir. 1987) for the case that's directly on point.
5. Finally, you can read the "nearly a heart attack" regs on Mueller's funding (28 CFR § 600.8(a)(2)) here.

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