Category: 3-LawSometimeCommentary

It's time for another Rapid Response Friday, which means we get to break down whether Donald Trump has to respond to the Summer Zervos defamation lawsuit.  (Hint:  yes) We begin, however,  with a potential Stormy Setback.  What's the deal with press reports of a $10 million judgment entered against Stormy Daniels' attorney, Michael Avenatti?  Could it jeopardize the pending litigation?  Listen and find out! After that, we break down the recent federal district court opinion in Knight First Amendment Institute v. Trump, which we covered when the case was first filed way back in Episode 77.  Are Donald Trump's Tweets really a "protected forum" to which the First Amendment applies?  Listen and find out! Then, we break down exactly how duplicitious Donald Trump's personal lawyer has been regarding the Summer Zervos lawsuit.  It's exactly as much as you'd expect! Finally, we end with an all new Thomas Takes The Bar Exam #77 regarding the constitutional requirement to a trial by jury.  If you'd like to play along with our new Patreon perk, just retweet our episode on Twitter or share it on Facebook along with your guess.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was just a guest on the Dumb All Over Podcast, episode 70.  Go check it out! Show Notes & Links

1. We discussed Michael Avenatti's pro hac vice motion in Episode 174; you can also read the LA Times article about the bankruptcy judgment, as well as check out both the Avenatti involuntary bankruptcy petition and the Avenatti creditors list.
2. We analyzed several cases, the most hilarious of which is Kohlmayer v. AMTRAK, 124 F.Supp.2d 877 (D.N.J. 2000).
3. Trump's Tweets were first discussed in Episode 77, along with the Davison v. Loudon County decision.
4. You should read the Knight First Amendment Institute v. Trump decision.
5. This is the Supreme Court's decision in Clinton v. Jones, 520 U.S. 681 (1997), and if you want to read Marc Kasowitz's deliberately misleading statements yourself, you can do so here.

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Today's episode takes a deep dive into two important Supreme Court opinions decided last week:  McCoy v. Louisiana, which prohibits attorneys from conceding their client's guilt over that client's objections in a capital murder trial, and  Murphy v. NCAA, which struck down the Professional and Amateur Sports Protection Act (PASPA), 28 U.S. Code § 3701 et seq.  In both cases, we hope to show that these cases have two legitimate sides. We begin, of course, with sportsball.  What is PASPA, why did the Court strike it down, does it make sense, and most importantly:  when can you bet against the San Jose Sharks? In the main segment, we break down the difficult questions surrounding the representation of capital murder defendants. After that, we head back overseas with a really insightful listener comment that takes us deeper into the law of treaties. Finally, we end with the answer to Thomas Takes the Bar Exam Question #76 about present recollection refreshed.  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.  The first case we break down is  Murphy v. NCAA, which struck down the Professional and Amateur Sports Protection Act, 28 U.S. Code § 3701 et seq.
2. After that, we turn to McCoy v. Louisiana, which prohibits attorneys from conceding their client's guilt over that client's objections in a capital murder trial, distinguishing the Court's earlier decision in Florida v. Nixon, 543 U.S. 175 (2004).
3. We discussed treaty obligations in Episode 173.

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On March 5, 2018, the Supreme Court decided U.S. Bank National Association v. Village at Lakeridge, LLC, a case involving how appellate courts should review a lower court’s determination that a person related in some way to a bankruptcy debtor is an “insider”--and therefore subject to special restrictions that the federal Bankruptcy Code imposes on insiders.
In 2011, the Village at Lakeridge (“Lakeridge”) filed for Chapter 11 bankruptcy, which seeks to facilitate a reorganization that allows the debtor to maintain viability while restructuring debts. At the time, Lakeridge owed millions of dollars to its owner MBP Equity Partners (“MBP”), as well as to U.S. Bank. Lakeridge’s proposed reorganization plan placed both creditors in separate classes and would have impaired their interests. U.S. Bank objected, which precluded a consensual plan, but under the Code MBP’s status as an “insider”--being the owner of Lakeridge--meant that MBP could not provide the requisite consent to force a “cramdown” of the plan over U.S. Bank’s objections. Lakeridge was therefore faced with liquidation unless MBP could transfer its claim against Lakeridge to a non-insider who would agree to the reorganization plan. Kathleen Bartlett, a member of MBP’s board, persuaded retired surgeon Robert Rabkin--with whom she was romantically involved--to purchase MBP’s multimillion-dollar claim for $5,000. Rabkin then consented to the reorganization plan. U.S. Bank again objected, arguing that the transaction was not truly at arm’s length due to the romantic relationship between Bartlett and Rabkin; Rabkin was essentially a “non-statutory” insider. The Bankruptcy Court rejected this argument, deeming Rabkin’s purchase a “speculative investment,” and noting that Rabkin and Bartlett lived separately and managed their own affairs. The U.S. Court of Appeals for the Ninth Circuit affirmed that judgment, concluding that it could not reverse unless the lower court had committed a “clear error.” The Supreme Court then granted certiorari to address the proper standard of review.
By a vote of 9-0 the Supreme Court affirmed the judgment of the Ninth Circuit. In an opinion delivered by Justice Kagan, the Court held unanimously that the Ninth Circuit acted properly in reviewing the Bankruptcy Court’s determination of non-statutory insider status for clear error rather than undertaking de novo review.
Justice Kennedy filed a concurring opinion. Justice Sotomayor also filed a concurring opinion, which was joined by Justices Kennedy, Thomas, and Gorsuch.
To discuss the case, we have Tom Plank, Professor of Law, at the University of Tennessee School of Law.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

It's time for another Rapid Response Friday, which means we get to break down Michael Avenatti's response to the opposition to his motion to appear pro hac vice in the Southern District of New York -- amongst many, many other issues! We begin, however,  with a brief Andrew Lived Through The 1980s segment (formerly: Andrew Was Wrong), that segues into an update on the Panmunjom Declaration discussed in Episode 173. After that, it's time to go yodeling, where we break down Paul Manafort's other criminal trial, Michael Avenatti's ethical responsibilities regarding SARs,  Donald Trump's financial disclosures, and (sadly) much, much more. Finally, we end with an all new Thomas Takes The Bar Exam #76 regarding the admissibility of witness testimony.  If you'd like to play along with our new Patreon perk, just retweet our episode on Twitter or share it on Facebook along with your guess.  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. Here is the text of the Panmunjom Declaration we first discussed in Episode 173.
2. You can read Judge Jackson's ruling denying Manafort's Motion to Dismiss, and also Avenatti's Response to Michael Cohen's Opposition to his motion to appear pro hac vice.
3. The primary case relied upon by Avenatti in his response is In re JPMorgan Chase Bank N.A., 799 F.3d 36 (1st Cir. 2015), which is directly on point.
4. We've also uploaded a copy of Trump's 2018 Financial Disclosures, which admits the Cohen payment.
5. Finally, we highly recommend Ronan Farrow's New Yorker reporting regarding the Cohen SARs.

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Today's episode heads overseas to discuss foreign policy; specifically, the Trump administration's actions with respect to Iran and North and South Korea.  Is there a common thread here?  Listen and find out! First, though, we update you on the Young America Foundation lawsuit against the University of California at Berkeley regarding Ann Coulter and an (alleged) hidden Secret Evil Cabal Conspiracy to Silence Conservatives. After that, we crank up the time machine and go back... all the way back to World War II to discuss what happened on the Korean Peninsula that paved the way for the recent Panmunjom Declaration.  If you've ever wanted Opening Arguments to go all Ken Burns, well, this is the show for you! Then, we take a look at the Joint Comprehensive Plan of Action signed in Vienna on July 14, 2015 -- or, as Trump calls it, the "terrible Iran deal."  Is it a terrible deal?  What are the legal ramifications?  We've got you covered! Finally, we end with the answer to Thomas Takes the Bar Exam Question #75 about subsequent oral modifications to contract.  Don't forget to listen and find out why Andrew would have gotten this question wrong!  Also, 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 the "Ann Coulter" lawsuit during Episode 73; if you want to read the latest ruling, it's embedded in this article.
2. Click here to read the Howard Levie law review article from the Akron Law Review, and here to read the final Armistice Agreement (drafted by Levie).
3. This is the text of the original JCPOA; and click here to read the CFR's backgrounder on it that was referenced during the show.
4. If you want the Washington Post's fact-checker article on Trump's statements about the JCPOA showing that virtually everything he's said is a lie, that's here.
5. This is the link that contains the letter written by the Obama Administration to then-Rep. Mike Pompeo describing the JCPOA as a "political document."
6. Finally, if you want to read the 1969 Vienna Convention, grab a tall beverage and curl up with it right here.  The actual treaty begins on page 384.

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As the ripples from New York State Attorney General Eric Schneiderman’s resignation after allegations of violence against women continue, Massachusetts Attorney General Maura Healey joins Dahlia Lithwick to discuss the role of State Attorneys General and how that’s changing under Trump. Attorney General Healey also talks about fighting—and winning against—the gun lobby in court.

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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It's time for another SUPER-SIZED Rapid Response Friday, which means we get to break down Judge Ellis's statements in the Paul Manafort criminal trial (amongst many, many other issues)! We begin, however,  with a brief Andrew (well, mostly ABC and NBC) Was Wrong. After that, the guys discuss a recent 10th Circuit opinion regarding the treatment of detainees in private prisons.  What does it mean for the future of class action litigation?  Listen and find out! After that, it's back to Yodel Mountain, where we break down not only Judge Ellis, but all the developments in or connected to the Mueller investigation, including Michael Flynn and Michael Cohen's "follow the money" report.  Phew! Finally, we end with an all new Thomas Takes The Bar Exam #75 about a contract and a subsequent oral modification that Andrew admits he would have muffed.  If you'd like to play along and show Andrew you're the better lawyer, just retweet our episode on Twitter or share it on Facebook along with your guess.  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. Here's the link to a Washington Times story covering the correction regarding Michael Cohen's supposed "wiretap" (that turned out to be a pen register).
2. The case we discussed in the main segment was Menocal v. GEO Group (10th Cir., Feb. 9, 2018).
3. Click here to read the 2016 Obama directive on ending privatized prisons, or (if you're a masochist) here to read the 2017 Trump directive rescinding it.
4. If you only read one thing from this show, please do read the transcript of the May 4 hearing before Judge Ellis.  It's great.  I love this guy.
5. The opposition to Michael Avenatti's pro hac vice motion is here; it also contains the "Executive Summary" laying out Avenatti's "follow the money."  If you prefer to see it in chart form, click here (H/T Washington Post).
6. The TPM article suggesting that Avenatti must have had access to SARs is here.
7. To understand bribery, we highly recommend this primer by Randall Eliason.
8. Finally, please click here to check out Thomas's May 19 talk in New Orleans.

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On February 27, 2018 the Supreme Court decided Jennings v. Rodriguez, a case involving a lawsuit by aliens challenging their continued detention under civil immigration statutes without the benefit of an individualized bond hearing as to the justification for ongoing detention.
Alejandro Rodriguez, a Mexican citizen and legal permanent resident of the United States, was convicted of a drug offense and vehicular theft, and ordered removed from the country. He was detained under 8 U.S.C. § 1226, which generally requires detention of aliens convicted of certain criminal offenses until removal proceedings are resolved. In addition to challenging his removal order, however, Rodriguez also sought habeas relief in federal court in the form of a bond hearing to determine whether his continued detention was justified. His case was consolidated with a related case, and after a round of litigation in the U.S. Court of Appeals for the Ninth Circuit, was certified as a class to address whether aliens in situations like Rodriguez, who had been detained longer than six months pursuant to an immigration detention statute, were entitled to a hearing to assess the justification for continued detention. They argued that the immigration statutes did not justify such detention in the absence of an individualized bond hearing at which the Government proves by clear and convincing evidence that the class member’s detention remains justified. The District Court granted the class injunctive relief along these lines and the Ninth Circuit affirmed, relying on the canon of constitutional avoidance. The Supreme Court thereafter granted the Government’s petition for certiorari.
This case was originally argued before the Supreme Court in November 2016, but the Court thereafter ordered supplemental briefing and the case was then reargued in October 2017. The supplemental briefing directed the parties to address whether the alleged bond hearing requirement extended to aliens detained while seeking admission to the United States, to criminal or terrorist aliens, and how the proposed standard of proof applied to the bond hearing.
By a vote of 5-3 the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In an opinion authored by Justice Alito, the Court held that the immigration provisions at issue--§§ 1225(b), 1226(a) and 1226(c) of Title 8--do not give detained aliens the right to periodic bond hearings during the course of their detention; the Ninth Circuit erred in applying the canon of constitutional avoidance to hold otherwise. That court should consider the aliens’ constitutional claims on remand, but should first reexamine whether they may continue litigating as a class.
Justice Alito delivered the opinion of the Court except as to Part II. The Chief Justice and Justice Kennedy joined Justice Alito’s opinion in full, while Justices Thomas and Gorsuch joined as to all but Part II, and Justice Sotomayor joined only as to Part III-C. Justice Thomas filed an opinion concurring in part and concurring the judgment, in which Justice Gorsuch joined except for footnote 6. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg and Sotomayor joined. Justice Kagan was recused.
To discuss the case, we have Richard Samp, Chief Counsel of the Washington Legal Foundation.


As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Today’s episode welcomes back one of our favorite guests — and the show’s only five-time guest, Andrew Seidel, attorney with the Freedom From Religion Foundation. Together, Andrew, Andrew, and Thomas tackle a bunch of church and state separation issues.  First, they break down Andrew Seidel’s recent success in convincing the New Jersey Supreme Court to strike down a grant program that spent taxpayer dollars rebuilding churches and saved the citizens of New Jersey more than a quarter of a billion dollars! Then, the gang does a deep dive into a pending law in Kansas that would permit adoption agencies within the state to discriminate on the basis of sexual orientation (or anything else that offended the organization's... wait for it... sincerely-held religious beliefs). Finally, we end with the answer to Thomas (and Andrew!) Take The Bar Exam question #74 about the admissibility of evidence.  Don’t forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was the recent guest masochist on Episode 141 of the God Awful Movies podcast, reviewing "Cries of the Unborn."  Check it out! Show Notes & Links

1. Click here to read the Morris County Opinion discussed during the "A" segment.
2. And if you want to see the legislative notes from the Kansas adoption bill, you should click here.
3. We broke down the Masterpiece Cakeshop case in Episode 105, and you can follow along with the guys by reading the transcript of the Masterpiece Cakeshop oral argument before the Supreme Court!
4. If you love Andrew Seidel, you might want to go back to his  FOUR previous appearances on the show, Episode 82 (on Trinity Lutheran), Episode 85 (which was originally a Patreon-only exclusive),Episode 111, and most recently, Episode 131.
5. Finally, please consider supporting the Freedom From Religion Foundation.

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Well, it's another Rapid Response Friday, and we're here with everything you need to know about Yodel Mountain, including:

• Breaking news regarding the wiretap of Michael Cohen's office several weeks before the search warrant issued and that the SDNY has at least one conversation between Cohen and Trump
• Rudy Giuliani's rather bizarre appearance on Hannity, during which he admitted that President Trump is DD and paid Michael Cohen back for the $130,000 in hush money paid to Stormy Daniels -- directly contradicting the President's own earlier statement
• Whether the repayment scheme alleged by Giuliani (a) makes sense and/or (b) constitutes money laundering
• The "leaked questions" regarding Mueller's efforts to interview Trump
• Trump's decision to replace Ty Cobb with Emmett Flood
• The House Freedom Caucus's efforts to impeach Deputy Attorney General Rod Rosenstein; and, of course
• Stormy Daniels's latest defamation lawsuit against President Trump

Our tip to journalists -- the  question you want to ask is "What 'information' does Stormy Daniels have under Paragraph 2.1 of the Agreement?" Finally, we end with an all new Thomas (and next week's guest Andrew Seidel) Take The Bar Exam #74 that's not about real property, but is instead about the rules of evidence and whether a particular line of questioning is permissible.  If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was just a guest on Episode 141 of the God Awful Movies podcast, reviewing "Cries of the Unborn."  Check it out! Show Notes & Links

1. We first discussed how unhinged Rudy Giuliani is way back in Episode 13, "Hillary Clinton's Damned Emails" -- which is one of our all-time favorites.
2. This is the not-to-be-missed Laura Ingraham reaction video to Giuliani's Hannity appearance, which led to this set of tweets from the President.
3. The money-laundering statute is 18 U.S.C. § 1956.
4. This is the New York Times article we mentioned that breaks down the political implications of the switch from Cobb to Flood, and here is the list of questions Mueller wants to ask Trump.
5. Finally, this is the Stormy Daniels defamation complaint.

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