Category: 3-LawSometimeCommentary

This episode begins the switch to a new, more responsive format in which we are better able to cover breaking news within a day of its release.  And, of course, what better way to kick off that format by addressing the most pressing topic of the moment:  is Donald Trump guilty of obstruction of justice in his firing of James Comey in light of the recent evidence?  We break it down for you with the help of a guest expert, Prof. Randall Eliason of the Sidebars blog. First, though, we continue our ascent up Yodel Mountain with the question as to whether it's legal for Donald Trump to surreptitiously record White House conversations (as Press Secretary Sean Spicer recently failed to deny). In the main segment, the guys turn to a former prosecutor and expert on public corruption and the obstruction of justice, Prof. Randall Eliason, and ask about the strengths and weaknesses of mounting a case against the President for obstruction of justice. After that, Andrew answers a question from Jake (the Fake Jake) who wants to know whether the President has immunity from civil lawsuits, as he's claimed. Finally, we end with a brand new Thomas Takes the Bar Exam question #24 about hearsay-within-hearsay.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: None!  Have us on your show! Show Notes & Links

1. Check out Prof. Eliason's blog, Sidebars, and in particular the most recent post on this subject.
2. Here is the link to the L.A. Times story about how Press Secretary Sean Spicer won't deny that President Trump is secretly taping White House conversations, and this is the link to the operative statute, § 23-542 of the D.C. Code.
3. This is the text of Acting AG Rod Rosenstein's order appointing Robert Mueller as special counsel.
4. The operative regulations governing the special counsel can be found at 28 CFR § 600.4 et seq.
5. This is a link to the CNN story regarding Gen. Flynn's refusal to comply with the Senate's subpoena duces tecum.
6. Finally, here is a link to Clinton v. Jones, 520 U.S. 681 (1997), the Supreme Court case that established that Presidents do not have immunity from civil suit while in office.

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On March 29, 2017, the Supreme Court heard oral argument in Turner v. United States, which was consolidated with Overton v. United States. In 1984, the body of Catherine Fuller was discovered in an alley after she had been beaten and raped. Sufficient physical evidence to identify the perpetrators was not recovered, and the medical examiner could not determine the number of attackers involved. Thirteen teenagers were initially indicted for being involved in a group effort to originally rob and subsequently assault and kill her. Two of them, Harry Bennett and Calvin Alston, pled guilty and agreed to testify, but the details in their accounts differed. Turner and nine other defendants were found guilty by a jury, and their convictions were affirmed on direct appeal. Nearly 25 years later, Turner and several of the other original defendants moved to have their sentences vacated, claiming that they had not received fair trials because the government had withheld exculpatory evidence in violation of Brady v. Maryland. They also argued that newly discovered evidence, including the recantations of Bennett and Alston, established that they were actually innocent of the crime. The trial court denied the motion, and the District of Columbia Court of Appeals affirmed. The Court held that the defendants had not shown a reasonable probability that the outcome of their trials would have been different with the new evidence. -- The question now before the Supreme Court is whether the petitioners' convictions must be set aside under Brady v. Maryland. -- To discuss the case, we have Brian Lichter, who is Associate at Latham & Watkins.

On April 17, 2017, the Supreme Court heard oral argument in California Public Employees’ Retirement System v. ANZ Securities. Between July 2007 and January 2008, Lehman Brothers raised over $31 billion through debt offerings. California Public Employees’ Retirement System (CalPERS), the largest pension fund in the country, purchased millions of dollars of these securities. CalPERS sued Lehman Brothers in 2011, and their case was merged with another retirement fund’s putative class action suit against Lehman Brothers and transferred to a New York district court. Later that year, the other parties settled, but CalPERS decided to pursue its own claims individually. The district court dismissed for untimely filing, and the U.S. Court of Appeals for the Second Circuit affirmed. -- The questions now before the Supreme Court is whether the filing of a putative class action serves, under the American Pipe & Construction Co. v. Utah rule, to satisfy the three-year time limitation in Section 13 of the Securities Act with respect to the claims of putative class members. -- To discuss the case, we have Paul Stancil, who is Professor of Law at Brigham Young University.

On March 21, 2017, the Supreme Court decided National Labor Relations Board v. SW General, Inc. SW General, Inc. provides ambulance services to hospitals in Arizona. A union had negotiated longevity pay for SW General’s emergency medical technicians, nurses, and firefighters. In December 2012, between the expiration of one collective bargaining agreement and the negotiation of a new one, SW General stopped paying the longevity pay. The union filed an unfair labor practices claim with the National Labor Relations Board (NLRB), which issued a formal complaint. An administrative law judge determined that SW General had committed unfair labor practices, but SW General contended that the NLRB complaint was invalid because the Acting General Counsel of the NLRB at the time, Lafe Solomon, had been serving in violation of the Federal Vacancies Reform Act (FVRA). President Barack Obama had nominated Solomon--who had then been serving as Acting General Counsel after the General Counsel had resigned--to serve as General Counsel, but the Senate had not acted on the nomination. The president had ultimately withdrawn the nomination and replaced it with that of Richard Griffin, who was confirmed. In the intervening period--including when the NLRB complaint had issued against SW General--Solomon had continued to serve as Acting General Counsel. SW General argued that under the FVRA, Solomon became ineligible to hold the Acting position once nominated by the president to the General Counsel position. The U.S. Court of Appeals for the D.C. Circuit agreed and vacated the NLRB’s enforcement order. The NLRB then obtained a writ of certiorari from the Supreme Court. -- By a vote of 6-2, the Supreme Court affirmed the judgment of the D.C. Circuit. In an opinion by Chief Justice Roberts, the Court held that (1) subsection (b)(1) of the Federal Vacancies Reform Act of 1998, which prevents a person who has been nominated to fill a vacant office requiring presidential appointment and Senate confirmation from performing the duties of that office in an acting capacity, applies to anyone performing acting service under the FVRA and is not limited to first assistants performing acting service under Subsection (a)(1); and (2) Subsection (b)(1) prohibited Lafe Solomon from continuing his service as acting general counsel of the National Labor Relations Board once the president nominated him to fill the position permanently. The Chief Justice’s majority opinion was joined by Justices Kennedy, Thomas, Breyer, Alito, and Kagan. Justice Thomas filed a concurring opinion. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined. -- To discuss the case, we have Kristin Hickman, who is the Distinguished McKnight University Professor, Harlan Albert Rogers Professor of Law, and Associate Director, Corporate Institute at the University of Minnesota Law School.

In this episode, the guys analyze the justification given by Deputy Attorney General Rod Rosenstein for President Trump to fire former FBI Director James Comey. First, though, fan-favorite Yodelin' Trump returns with a related question from our listeners (including Kevin Hicks), who ask whether Trump's tweet about Sally Yates violated the law. In our main segment, Andrew breaks down the Rosenstein memo. Then, we answer a great listener question from Patron Ben Hatcher, who wants to know exactly what things are admissible in the record on appeal. Finally, we end with the answer to Thomas Takes the Bar Exam Question #23 about a class action breach-of-contract lawsuit against a scammer who sells your private information.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: Thomas was recently a guest on Det. Matthew Maxon's new podcast, ______, and Andrew was recently a guest on Episode #116 of the Gaytheist Manifesto.  Go check 'em out! Show Notes & Links

1. This is the text of 18 U.S.C. § 1512, the statute that governs witness tampering.
2. And this is the text of Deputy Attorney General Rod Rosenstein's letter recommending the firing of Director Comey.

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On April 25, 2017, the Supreme Court decided Lewis v. Clarke. Petitioners Brian and Michelle Lewis were driving on a Connecticut interstate when they were struck from behind by a vehicle driven by respondent William Clarke, a Mohegan Tribal Gaming Authority employee, who was transporting Mohegan Sun Casino patrons. The Lewises sued Clarke in his individual capacity in state court. Clarke moved to dismiss for lack of subject-matter jurisdiction, arguing that because he was an employee of the Gaming Authority—an arm of the Mohegan Tribe entitled to sovereign immunity—and was acting within the scope of his employment at the time of the accident, he was similarly entitled to sovereign immunity against suit. He also argued, in the alternative, that he should prevail because the Gaming Authority was bound by tribal law to indemnify him. The trial court denied Clarke’s motion, but the Supreme Court of Connecticut reversed, holding that tribal sovereign immunity barred the suit because Clarke was acting within the scope of his employment when the accident occurred. It did not consider whether Clarke should be entitled to sovereign immunity based on the indemnification statute. -- By a vote of 8-0, the U.S. Supreme Court reversed the judgment of the Supreme Court of Connecticut and remanded the case. In an opinion by Justice Sotomayor, the Court held that (1) in a suit brought against a tribal employee in his individual capacity, the employee, not the tribe, is the real party in interest and the tribe's sovereign immunity is not implicated; and (2) an indemnification provision cannot, as a matter of law, extend sovereign immunity to individual employees who would otherwise not be protected. Justice Sotomayor’s majority opinion was joined by the Chief Justice and Justices Kennedy, Breyer, Alito, and Kagan. Justices Thomas and Ginsburg filed opinions concurring in the judgment. Justice Gorsuch took no part in the consideration or decision of the case. -- To discuss the case, we have Zachary Price, who is Associate Professor at University of California Hastings College of Law.

On March 1, 2017, the Supreme Court decided Bethune-Hill v. Virginia State Board of Elections. Plaintiffs in Bethune-Hill each resided in one of twelve newly proposed majority-minority districts for the Virginia Legislature, created to satisfy Section 5 of the Voting Rights Act (VRA), which requires that any new districting plan must ensure that there be no “retrogression” in the ability of racial minorities to elect the candidate of their choice. Plaintiffs argued that the new districts constituted racial gerrymanders that violated the Equal Protection Clause of the Fourteenth Amendment. A three-judge panel of the U.S. District Court for the Eastern District of Virginia disagreed, holding that the plaintiffs had failed to establish that race was the predominant factor in the creation of 11 of the 12 challenged districts. The district court also held that, although race was the predominant factor in the creation of one district--District 75--the state legislature had satisfied the requirements of a compelling state interest and narrow tailoring. -- On appeal to the United States Supreme Court, plaintiffs argued that the district court panel erred in a number of respects, including in determining that that race could not predominate unless its use resulted in an “actual conflict” with traditional districting criteria. Plaintiffs also argued that the use of race in drawing House District 75 was not narrowly tailored to serve a compelling government interest. -- By a vote of 7-1, the Supreme Court affirmed the judgment of the district court panel in part, vacated it in part, and remanded the case. In an opinion delivered by Justice Kennedy, the Court held that the district court panel had employed an incorrect legal standard to determine whether race predominated, noting that challengers are permitted to establish racial predominance in the absence of an “actual conflict” by presenting direct evidence of the legislative purpose and intent or other compelling circumstantial evidence. The Court rejected Plaintiffs’ challenge to District 75, however, determining that the legislature’s action ultimately survived strict scrutiny. -- Justice Kennedy’s majority opinion was joined by the Chief Justice and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Alito filed an opinion concurring in part and concurring in the judgment. Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part. --
To discuss the case, we have Jack Park, who is Of Counsel at Strickland Brockington Lewis LLP.

In the wake of the unceremonious termination of FBI director James Comey this week, one previously unfamiliar name has dominated the news cycle: Rod J. Rosenstein. The former federal prosecutor became the U.S. Deputy Attorney General just over two weeks ago, and since then, has found himself at the center of storm around President Trump’s most high-profile firing to date. Leon Neyfakh has been covering Rosenstein for the past few weeks, and joins us to talk about whether anyone at the Department of Justice can remain neutral in these polarized times. 

We also speak with University of Virginia School of Law professor Micah Schwartzman about this week’s oral arguments in one of the lawsuits challenging President Trump’s revised travel ban. Schwartzman is among a group of constitutional law scholars who filed an amicus brief arguing that the executive order violates the Constitution’s Establishment Clause.

Transcripts of Amicus are available to Slate Plus members, several days after each episode posts. For a limited time, get 90 days of free access to Slate Plus in the new Slate iOS app. Download it today at slate.com/app. 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 Tony Field. Our intern is Camille Mott.

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In this episode, the guys tackle a recent Internet meme regarding convicted murderer Aaron Hernandez's suicide with help from NFL expert and friend of the show Chris Kristofco of the Titletown Sound podcast. First, though, Andrew tackles a question from listener Joel Forman who asks whether Andrew can help secure him a "letter of marque."  What is a letter of marque and why does Joel want one?  Listen and find out! In the main segment, the guys break down the law regarding Aaron Hernandez's suicide.  Does it really vacate Hernandez's conviction for murder?  Are the Patriots really on the hook for $6 million?  Is it all a big conspiracy?  We tell the hard truths. After that, Andrew answers a question from Hall of Fame patron R.J. Rautio about an obscure procedural quirk in the confirmation of Supreme Court Justice Neil Gorsuch.  Does this mean President Elizabeth Warren can kick Gorsuch off the Court in 2020?? Finally, we end with a brand new Thomas Takes the Bar Exam question #23 about a breach of contract lawsuit for stealing your personal information.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: Andrew was recently a guest on Episode #116 of the Gaytheist Manifesto.  Go check it out! Show Notes & Links

1. Check out Chris Kristofco's fabulous podcast, Titletown Sound.
2. This is the hilarious (and serious!) article from the Federalist Society's web page on bringing back letters of marque.  No, seriously:  a real person wrote this, unironically.
3. This is the case of U.S. v. Pogue, 19 F.3d 663 (D.C. Cir. 1994), the case Andrew discusses on the "abatement" rule during the main segment.
4. And here is just one example of sports media claiming that abatement puts the Patriots back on the hook for Hernandez's salary.

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On April 19, 2017, the Supreme Court decided Nelson v. Colorado, along with Madden v. Colorado. In both cases, petitioners had collectively paid several thousand dollars to the state of Colorado in costs, fees, and restitution payments following their respective convictions for several offenses. Petitioners’ convictions were thereafter invalidated for various reasons. Nelson was retried but acquitted; the State elected not to appeal or retry in Madden’s cases. Both petitioners sought a return of the funds the State had required them to pay. Nelson’s trial court denied her motion outright, and Madden’s postconviction court allowed a refund of costs and fees, but not restitution. The Colorado Court of Appeals concluded that both petitioners were entitled to seek refunds of all they had paid, but the Colorado Supreme Court reversed. It reasoned that Colorado’s Compensation for Certain Exonerated Persons statute (Exoneration Act) provided the exclusive authority for refunds and, because neither Nelson nor Madden had filed a claim under that Act, the courts lacked authority to order refunds. The court also held that there was no due process problem with the Act, which permits Colorado to retain conviction-related assessments unless and until the prevailing defendant institutes a discrete civil proceeding and proves her innocence by clear and convincing evidence. -- By a vote of 7-1, the Supreme Court reversed the judgment of the Supreme Court of Colorado and remanded the case. Justice Ginsburg delivered the opinion of the Court, which held that Colorado’s Exoneration Act scheme deprived petitioners of the due process guaranteed under the Fourteenth Amendment: “[Petitioners’] interest in regaining their funds is high, the risk of erroneous deprivation of those funds under the Exoneration Act is unacceptable, and the State has shown no countervailing interests in retaining the amounts in question. To comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated.” Justice Ginsburg’s majority opinion was joined by the Chief Justice and Justices Kennedy, Breyer, Sotomayor, and Kagan. Justice Alito filed an opinion concurring in the judgment. Justice Thomas filed a dissenting opinion. Justice Gorsuch took no part in the consideration or decision of this case. -- To discuss the case, we have Ethan Blevins, who is Staff Attorney at the Pacific Legal Foundation.