Category: 3-LawSometimeCommentary

Today's Bonus Episode asks if there's a way to make sense of the Supreme Court's Lukumi jurisprudence in light of this week's rulings in Trump v. Hawaii (the Travel Ban), Masterpiece Cakeshop, and the somewhat surprising decision to remand the Arlene's Flowers case back to the state of Washington. We begin, however, by checking in with the Southern District of New York's Order approving the Taint Team's review of documents seized from Michael Cohen's offices by the Department of Justice.  How many documents did the Team recommend the Court withhold as privileged?  The answer may surprise you! After that, we revisit the thesis advanced by Andrew Seidel in Episode 180 that the Supreme Court's decision in Masterpiece Cakeshop might result in a more vigorous application of its 1993 decision in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). Next, we break down the Supreme Court's 5-4 decision in NIFLA v. Becerra, in which the Court struck down a California law regulating so-called "crisis pregnancy centers." After all that, we end with an all new Thomas Takes The Bar Exam #82 involving the legality of a search for heroin.  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 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. Check out the Southern District of New York's Order regarding Cohen's meager haul of privileged documents.
2. Andrew Seidel set forth his "Lukumi bar" thesis in Episode 180; you can read Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) for yourself and then compare it with both Trump v. Hawaii and Masterpiece Cakeshop.
3. We discussed Planned Parenthood v. Casey at length in a two-part series:  Episode 27 and Episode 28; you might want to compare the statute approved in that case with the one struck down by the Court in NIFLA v. Becerra.

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The Supreme Court’s 2017 term ended with some blockbuster opinions and, most dramatically, Justice Anthony Kennedy’s retirement announcement. On a special edition of Amicus, Dahlia Lithwick is joined by Slate legal writer Mark Joseph Stern and University of California, Irvine, law professor Leah Litman to discuss what it all means.

Yes, it's a Supreme Court Breakfast Table without a Breakfast Table!

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 June Thomas.

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Today's Rapid Response Friday comes after a busy week at the Supreme Court, capped off by the (somewhat) surprising announcement that Associate Justice Anthony Kennedy intends to retire as of July 31, 2018. We break down everything about this news, including:

• What the Trump administration is likely to do next
• Who President Trump might nominate to fill Kennedy's spot
• How the Democrats should respond
• What the next Supreme Court might look like
• How all of this plays in with the 2018 midterms and 2020 Presidential election
• And much, much more!

We're also going to bring you a bonus episode to make sure you're fully informed as to all the other goings-on in the law this week! After all that, we end with an all new Thomas Takes The Bar Exam #82 involving the legality of a search for heroin.  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 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. We broke down the "nuclear option" in Episode 59.  Mitch McConnell announced that the Senate would not recess for the summer on June 5.
2. Here are the (generally reliable) Cook Political Report ratings of the 2018 Senate races.
3. This is the Mother Jones article on Anthony Kennedy's 2017-2018 votes.
4. This is the list of Trump's 25 potential Supreme Court nominees.
5. These are the resources discussed in the future segment, including the When Every Vote Counts law review article, the Slate article on 5-4 splits, and the SCOTUSBlog data regarding the 2017-2018 term.
6. Finally, if you're feeling nostalgic, you might want to reread Obergefell v. Hodges while it's still good law.  An d if you're feeling super optimistic, you can even check out the "Above the Law" blog post arguing that it will survive Kennedy's departure (it won't).

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Today's episode tries to put a positive spin on some recent developments, including the Supreme Court's gerrymandering decisions, the Department of Justice OIG report on the 2016 election, and the triumphant return of Everyone's Favorite Segment (TM):  "Are You A Cop?" We begin with the Office of the Inspector General's 2016 Election Final Report, which we modestly point out validates literally everything we said in one of our favorite Episodes, OA 13, "Hillary Clinton's Damned Emails."  There's so much more to learn, so you'll want to listen up! After that, we tackle the main segment, looking for some good news out of the Supreme Court's recent "decisions" on gerrymandering in Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland).  These 9-0 decisions are widely viewed as having punted on gerrymandering; is that right, and if so, what does the future hold? After that, we tackle a trope that "everyone knows" in fan-favorite segment "Are You A Cop?"  This week, it's that "everyone knows" cops can't have sex with people in their custody, right?  RIGHT?  Well, thanks to one Democratic legislator in a deep red state, it's now true in Kansas, at least. Finally, we end the answer to Thomas Takes The Bar Exam #81 regarding a law designed to target two college professors who crafted campus hate speech codes.  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. We first discussed Hillary Clinton's emails and the Comey investigation way back in Episode 13, and if you haven't listened, you should check it out!  Then, compare what we said then to the just-released Office of the Inspector General's 2016 Election Final Report.
2. Our explainer on Gerrymandering is Episode 54; we then talk about the Wisconsin case in Episode 80 and the Maryland case in Episode 148.
3. Of course, you can (and should!) read the Supreme Court's recent decisions on gerrymandering in Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland).
4. Here is the text of Kansas HB2621, which amends KSA Supp. 21-5512(a), defining "unlawful sexual relations."  A "Severity Level 5 Person felony" is subject to 50-55 months in prison as per the Kansas Sentencing Guidelines.

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Dahlia Lithwick takes a close look at the two big voting rights cases decided by the Supreme Court earlier this week with Paul Smith who argued for the plaintiffs in the Wisconsin political gerrymander case Gill v. Whitford. On Monday, the court sent Gill back to the lower courts based on the theory that the plaintiffs had no standing. In the other case, Benisek v Lamone, which involved a Maryland gerrymander, the Justices delivered an unsigned opinion sending Benisek back saying it was too soon to decide. And we take a look at the implications of the court’s earlier decision on Ohio voter purges, a case that was also argued by Paul Smith.

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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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.

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at openarguments@gmail.com  

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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