Category: 3-LawSometimeCommentary

Today's extra-long episode contains your guide to the Congressional Investigations, and specifically the 81 document requests sent out by Rep. Jerry Nadler to various Trump-related individuals and entities in connection with the Democratic Congress's larger investigation into corruption, ties with Russia, and general criminal behavior by the administration.  What does it all mean?  Who are the key players?  Listen and find out!

We begin, however, with a brief Andrew Was Right -- Michael Cohen is producing drafts of his Congressional testimony, which may support his claim that Trump's personal lawyer, Jay "ACLJ" Sekulow edited his testimony to suborn perjury.

Then, it's time for an in-depth look at the various documents requested by Rep. Nadler.  What does it all mean?  We break down the four major "buckets" of inquiries and tell you about some familiar faces... and some surprising new ones.

After that, it's time to take a look into recent developments in the Jeffrey Epstein case and correct some reporting as to whether his non-prosecution agreement has really been torn up by the courts.  (It hasn't.)

We end, as always, with a brand new Thomas Takes the Bar Exam Question #117 about the use of university space for a debate on affirmative action.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

AppearancesAndrew was just a guest host on Episode 91 of the Skepticrat; go check it out!  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. Cohen to produce drafts of his testimony to Congress. 2. Congressional Investigations 162 documents served on 81 different people. Documents here: 3. Here’s a handy guide to who’s who in the investigation. 4. Here’s Hope Hicks’s documents request. 5. Here’s our tweet out to Rep. Nadler regarding Nader’s document requests: 6. Epstein. This is the text of the Crime Victims’ Rights Act of 2004, 18 U.S.C. § 3771. 7. Judge Marra’s ruling can be found here.

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And email us at openarguments@gmail.com

 

Today's episode takes a deep dive into the latest regulations promulgated by Trump's Department of Health and Human Services regarding Title X funding.  What does all this mean?  Listen and find out!

We begin by breaking down Title X, the only federal grant program to poor people for family planning.  And -- as you might imagine -- Title X explicitly excludes funding for abortions, but remains a critical source of funding for the critical work Planned Parenthood does with low-income women, including breast and pelvic examinations, breast and cervical cancer screenings, and screenings and treatments for sexually-transmitted infections and HIV.  So, of course, the Trump Administration just defunded all of that.  Find out how terrifying the new regulations are.

After that, it's time for a ... lighter(?) segment in which we discuss the difference between clickwrap, browsewrap, and sign-in-wrap (?) agreements and learn about interesting new research into the readability (or lack thereof) of those agreements.

Then, it's time for the answer to Thomas Takes The Bar Exam #116 about a Weekend-at-Bernie's-style auto accident.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

AppearancesAndrew was just a guest host on Episode 91 of the Skepticrat; go check it out!  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. On Title X:  click here for the actual law (42 U.S.C. § 300 et seq.); click here for the accompanying regulations (42 C.F.R. Part 59), and click here to read the new final rule promulgated by HHS regarding Title X.
2. Here's the Sacramento Bee article indicating that California and other states intend to sue to block this rule from going into effect; and click here to read Rep. Cummings's letter regarding the rule.
3. Here's a link to "The Duty to Read the Unreadable," the research paper we discussed in the last segment.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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Don't forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com

 

On January 14, 2019, the Supreme Court heard argument in Thacker v. Tennessee Valley Authority, a case involving a dispute over the “discretionary-function exception” to waivers of federal sovereign immunity.
In 2013, Anthony Szozda and Gary and Venida Thacker were participating in a fishing tournament on the Tennessee River. The Tennessee Valley Authority (TVA) had a crew near the river, trying to raise a downed power line that had partially fallen into the river instead of crossing over it. The crew attempted to lift the conductor out of the water concurrent with Szozda and the Thackers passing through the river at a high rate of speed. The conductor struck both Thacker and Szozda, causing serious injury to Thacker and killing Szozda. The Thackers sued TVA for negligence. The district court dismissed the Thackers’ complaint for lack of subject-matter jurisdiction.
On appeal, the US Court of Appeals for the Eleventh Circuit affirmed that judgment. Although the act creating the TVA waives sovereign immunity from tort suits, the Court held that the waiver does not apply where the TVA was engaged in governmental functions that were discretionary in nature. Applying a test derived from the Federal Tort Claims Act, the Court determined that the TVA’s challenged conduct fell within this “discretionary-function exception” here, and immunity therefore applied.
The Supreme Court granted the Thackers’ subsequent petition for certiorari to address whether the Eleventh Circuit erred in using a discretionary-function test derived from the Federal Tort Claims Act rather than the test set forth in Federal Housing Authority v. Burr, when testing the immunity of governmental “sue and be sued” entities (like the Tennessee Valley Authority) from the plaintiffs’ claims.
To discuss the case, we have Richard Peltz-Steele, Professor at University of Massachusetts School of Law.

On January 8, 2019, the Supreme Court heard argument in Fourth Estate Public Benefit Corp. v. Wall-Street.com, a case considering whether a copyright owner may sue for infringement in federal court after merely applying for registration of the copyright, or whether the Registrar of Copyrights must first act on the application.
Fourth Estate Public Benefit Corp. is an online news organization that licenses articles to different websites but retains the copyright to those articles. Wall-Street.com and Fourth Estate entered into a license agreement for a number of articles written by Fourth Estate. As part of the agreement, Wall-Street was required to remove all Fourth Estate content from its website before cancelling its account. When Wall-Street cancelled its account but continued to display Fourth Estate articles, Fourth Estate filed suit for copyright infringement against Wall-Street and its owner in federal district court.
The defendants moved to dismiss, arguing that the Copyright Act permits an infringement suit only after the Registrar of Copyrights approves or denies an application to register the copyright at issue. Here, Fourth Estate alleged that it had filed applications with the Registrar, but did not indicate whether any application had been acted upon. The district court agreed with the defendants and dismissed Fourth Estate’s complaint without prejudice. On appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed that judgment. Noting a circuit split on whether the ability to file an infringement suit turns on application by the copyright owner (the “application” approach) or the making of a decision on the application by the Registrar of Copyrights (the “registration” approach), the Eleventh Circuit adhered to the registration approach.
The Supreme Court granted argument to address the circuit split regarding whether the “registration of [a] copyright claim has been made” within the meaning of 17 U.S.C. § 411(a) when the copyright holder delivers the required application, deposit, and fee to the Copyright Office, as the U.S. Courts of Appeals for the Fifth and Ninth Circuits have held, or only once the Copyright Office acts on that application, as the U.S. Courts of Appeals for the Tenth and, in the decision below, the Eleventh Circuits have held.
To discuss the case, we have Brian Frye, Associate Professor of Law at University of Kentucky College of Law.

Today's episode continues our breakdown of ex-Trump fixer Michael Cohen's testimony before the House of Representatives and all the Yodel Mountain implications that stem from it that we started in Episode 257.  What's next?  Listen and find out!

We begin where we left off -- with Michael Cohen.  Find out how Cohen's testimony (and documents) implicate our favorite legal genius, Stormy Daniels!

After that, it's time to check in on Roger Stone's former flunky, Andrew Miller, and his quixotic quest to undo the Mueller investigation.  That effort was just slapped down by the Court of Appeals for the D.C. Circuit, and we've got the full opinion covered for you.

Then, it's time to check in on an odd development in the sentencing saga of Paul Manafort.  What does the government's latest (redacted) filing portend?  We're not entirely sure... but we want you to know what we know.

And then -- after all that! -- we  end with a brand new Thomas Takes the Bar Exam Question #116 regarding a rather odd traffic accident.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

AppearancesAndrew was just a guest on HBO's Vice News!  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 & Links1. Here are the documents Michael Cohen brought to Congress. 2. Marcy Wheeler’s article: How Trump Suborns Perjury. 3. DC Circuit’s opinion in Andrew Miller’s In Re: Grand Jury appeal. 4. Court’s sua sponte order. 5. Government’s sentencing memo in Manafort’s DC trial. 6. Manafort’s response memo. 7. Government’s Supplemental heavily redacted memo.

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And email us at openarguments@gmail.com

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Dahlia Lithwick is joined by conservative lawyer Stuart Gerson and finds common ground over the President’s declaration of a national emergency so he can build the wall.  And Leah Litman helps us take a lawyerly look at Michael Cohen’s testimony before congress this week.

This episode is brought to you by The Great Courses Plus. For one month free, go to thegreatcoursesplus.com/AMICUS.

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Dahlia Lithwick is joined by conservative lawyer Stuart Gerson and finds common ground over the President’s declaration of a national emergency so he can build the wall.  And Leah Litman helps us take a lawyerly look at Michael Cohen’s testimony before congress this week.

This episode is brought to you by The Great Courses Plus. For one month free, go to thegreatcoursesplus.com/AMICUS.

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Hosted on Acast. See acast.com/privacy for more information.

Today's episode breaks down ex-Trump fixer Michael Cohen's testimony before the House of Representatives and all the Yodel Mountain implications that stem from it.  What's next?  Listen and find out!

We begin, however, with an update on the American Legion v. American Humanist Association case where Andrew recently spoke at the AHA's #HonorThemAll rally.

After that, it's time to find out about Florida Rep. Matt Gaetz who attempted to intimidate Michael Cohen and... may have gotten into some legal trouble thanks to this show and it's listeners!

Then, we begin breaking down the Cohen testimony... but there's so much here to cover, we decided to  keep going for yet another hour, and you'll get that tomorrow!

For the first time, we don't end with a brand new Thomas Takes the Bar Exam Question, but you'll get #116 tomorrow.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

AppearancesNone!  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 & Links1.18 U.S.C. § 1512  Tampering with a witness, victim, or an informant. (B) governs witness tampering 2. Gaetz timeline from The Washington Post 3. Florida Bar Rules of Professional Conduct Rule 4-8.4(d) "prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice." 4. Isaac Dovere at the Atlantic tweeting about Gaetz 5. Cohen is subject to 18 U.S.C. § 1001: Statements or entries generally (a)(2) "makes any materially false, fictitious, or fraudulent statement or representation; or" 6. 18 U.S.C. § 1622  Subornation of perjury 7. Marcy Wheeler’s article: How Trump Suborns Perjury 8. Here are the documents Michael Cohen brought to Congress 9. Kansas potential emoluments violation

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!

For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com

 

Today's episode breaks down ex-Trump fixer Michael Cohen's testimony before the House of Representatives and all the Yodel Mountain implications that stem from it.  What's next?  Listen and find out!

We begin, however, with an update on the American Legion v. American Humanist Association case where Andrew recently spoke at the AHA's #HonorThemAll rally.

After that, it's time to find out about Florida Rep. Matt Gaetz who attempted to intimidate Michael Cohen and... may have gotten into some legal trouble thanks to this show and it's listeners!

Then, we begin breaking down the Cohen testimony... but there's so much here to cover, we decided to  keep going for yet another hour, and you'll get that tomorrow!

For the first time, we don't end with a brand new Thomas Takes the Bar Exam Question, but you'll get #116 tomorrow.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

AppearancesNone!  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 & Links1.18 U.S.C. § 1512  Tampering with a witness, victim, or an informant. (B) governs witness tampering 2. Gaetz timeline from The Washington Post 3. Florida Bar Rules of Professional Conduct Rule 4-8.4(d) "prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice." 4. Isaac Dovere at the Atlantic tweeting about Gaetz 5. Cohen is subject to 18 U.S.C. § 1001: Statements or entries generally (a)(2) "makes any materially false, fictitious, or fraudulent statement or representation; or" 6. 18 U.S.C. § 1622  Subornation of perjury 7. Marcy Wheeler’s article: How Trump Suborns Perjury 8. Here are the documents Michael Cohen brought to Congress 9. Kansas potential emoluments violation

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!

For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com

 

On December 10, 2018, the Supreme Court decided the consolidated cases United States v. Stitt and United States v. Sims, both concerning 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. “Burglary” qualifies as a violent felony under ACCA, but the statute applies a “generic” understanding of burglary that may be narrower than some state burglary offenses. A prior state conviction does not qualify as burglary under ACCA if the elements of the state statute are broader than those of generic burglary, namely: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.
Here, 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. The Supreme Court consolidated the 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.
The Supreme Court unanimously reversed the judgment of the Sixth Circuit in Stitt and vacated the judgment of the Eighth Circuit in Sims, remanding that case for additional proceedings relating to the breadth of Arkansas’ burglary statute. In an opinion delivered by Justice Breyer, the Court held that the term “burglary” in ACCA includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation.
To the discuss the case, we have Robert Leider, Associate Professor of Law at George Mason University Antonin Scalia Law School.