The Mueller investigation keeps keeping on as subtweets, speculation, and objections mount. Dahlia Lithwick speaks with Andrew Wright, a former associate counsel to President Barack Obama about the latest developments. Plus a deep dive into the oral arguments in the Masterpiece Cakeshop case with Roberta Kaplan, who successfully argued Edie Windsor’s case against the Defense of Marriage Act in 2013.
Transcripts of Amicus are available to Slate Plus members several days after each episode posts. To learn more about Slate Plus, go to slate.com/amicusplus.
Please let us know what you think of Amicus. Join the discussion of this episode on Facebook. Our email is amicus@slate.com.
The Mueller investigation keeps keeping on as subtweets, speculation, and objections mount. Dahlia Lithwick speaks with Andrew Wright, a former associate counsel to President Barack Obama about the latest developments. Plus a deep dive into the oral arguments in the Masterpiece Cakeshop case with Roberta Kaplan, who successfully argued Edie Windsor’s case against the Defense of Marriage Act in 2013.
Transcripts of Amicus are available to Slate Plus members several days after each episode posts. To learn more about Slate Plus, go to slate.com/amicusplus.
Please let us know what you think of Amicus. Join the discussion of this episode on Facebook. Our email is amicus@slate.com.
Today's episode concludes the discussion begun in Episode 125 about antitrust law in light of the proposed AT&T/Time Warner merger. First, though, we begin with some news items, including an update on Patreon practices and the status of Leandra English's lawsuit to become Acting Director of the CFPB. In the main segment, Andrew breaks down the Department of Justice's lawsuit against AT&T and Time Warner with an eye towards answering the question "is this just an effort to punish CNN?" After the main segment, fan favorite "Closed Arguments!" returns with an evaluation of Alan Dershowitz and John Dowd's claims that the President cannot obstruct justice. Finally, we end with an all-new Thomas Takes the Bar Exam Question #53 about witness impeachment. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing 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 recently a guest on The Science Enthusiast podcast; you can watch the video of that here. Show Notes & Links
For $30 off your first week of HelloFresh, visit hellofresh.com and enter lawpod30! Today's special episode tackles the breaking news that Gen. Michael Flynn has pled guilty in connection with the Mueller investigation. To break down the significance of this deal, we welcome back Prof. Randall Eliason. After that, Andrew answers a bunch of listener questions regarding the tax bill that just passed the Senate. Recent Appearances Andrew just did two episodes of the David Pakman show: first, he was on talking about #NetNeutrality; and then, he came back for a segment on the Mueller investigation. You can see both -- including Andrew's spiffy new webcam -- by clicking the YouTube links above! Show Notes & Links
On November 7, 2017, the Supreme Court heard argument in Ayestas v. Davis, a case involving the extent to which 18 U.S.C. § 3599, which allows indigent defendants to obtain “reasonably necessary” investigative services in connection with issues relating to guilt or sentencing, applies in the context of procedurally defaulted habeas claims. Manuel Ayestas was sentenced to death for murder, and his conviction and sentence were affirmed on direct appeal by the Texas Court of Criminal Appeals in 1998. Ayestas then sought state habeas relief, claiming ineffective assistance of trial counsel because his attorney had failed to bring Honduras-based family members to Texas in order to testify to Ayestas’s good character and lack of criminal record in Honduras. The Texas state district court found that Ayestas’s trial counsel, though ultimately unsuccessful, had acted with reasonable diligence, and therefore denied habeas relief. The Texas Court of Criminal Appeals affirmed in 2008. In 2009 Ayestas sought federal habeas relief under 28 U.S.C. § 2254, claiming that his trial counsel had acted ineffectively by failing to properly investigate all potentially mitigating evidence. An effective investigation, Ayestas argued, would have uncovered his lack of a criminal record in Honduras, his schizophrenia, and his addiction to drugs and alcohol. The district court determined that Ayestas had procedurally defaulted this claim by failing to raise it in state habeas proceedings, and found no cause to excuse that default. The U.S. Court of Appeals for the Fifth Circuit denied a certificate of appealability. In 2012, however, the U.S. Supreme Court held in Martinez v. Ryan that the ineffectiveness of state habeas counsel in failing to claim ineffective assistance of trial counsel may provide cause to excuse a procedural default. Although the Fifth Circuit denied Ayestas’s motion for a rehearing based on the Martinez ruling, the Supreme Court vacated that judgment and remanded Ayestas’s case for further consideration in light of the Supreme Court’s 2013 decision in Trevino v. Thaler, which made clear that Martinez applied in the context of Texas state procedures. The Fifth Circuit in turn remanded Ayestas’s case to the district court to reconsider his procedurally defaulted ineffective assistance claim in the first instance. On remand Ayestas filed a motion for investigative assistance under 18 U.S.C. § 3599(f), requesting a mitigation specialist in order to develop his broader ineffective assistance of trial counsel claim. In 2014 the district court denied habeas relief, concluding that neither Ayestas’s trial nor state habeas counsel had been constitutionally ineffective, and that a mitigation specialist was therefore not “reasonably necessary.” Ayestas thereafter moved to amend his federal habeas petition to add claims relating to a recently discovered prosecution memorandum suggesting that the push for capital punishment in Ayestas’s case was improperly motivated by his national origin. He also sought a stay in federal court until he exhausted these new claims in state court. The district court denied all relief and denied a certificate of appealability. The Fifth Circuit affirmed in all respects. The Supreme Court granted Ayestas’s subsequent certiorari petition to address whether the Fifth Circuit erred in concluding that 18 U.S.C. § 3599(f) withholds “reasonably necessary” resources to investigate and develop an ineffective assistance of counsel claim that state habeas counsel forfeited, where the claimant's existing evidence does not meet the ultimate burden of proof at the time the Section 3599(f) motion is made. To discuss the case, we have Dominic Draye, Solicitor General of the State of Arizona.
Today's episode breaks down the recent kerfuffle over the simultaneous claims of Leandra English and Mick Mulvaney to be Acting Director of the Consumer Financial Protection Bureau (CFPB). First, we begin with an "Andrew Was Wrong (?)" segment that gives voice to an anti-Net Neutrality argument, a clarification on the Obama administration's antitrust policies, and a factual clarification on the Anheuser-Busch/InBev merger. After the main segment, Andrew and Thomas answer a fun question about speeding and evidence AND tease the upcoming Law'd Awful Movies #13. Finally, we end with an all-new Thomas Takes the Bar Exam Question #52 about the constitutionality of a cigarette tax and accompanying program. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing 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! Have us on your show! Show Notes & Links
On November 7, 2017, the Supreme Court heard argument in Patchak v. Zinke, a case involving separation of powers concerns that may arise when Congress passes a statute directing federal courts to “promptly dismiss” a pending lawsuit without amending any underlying substantive or procedural laws. In 2012, the Supreme Court held in the case Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak that David Patchak had prudential standing to bring a lawsuit under the Administrative Procedure Act against the U.S. Department of the Interior (DOI), to challenge DOI’s taking title under the Indian Reorganization Act to a certain tract of land that was then put into trust for use by the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Band or Gun Lake Tribe. Congress responded by passing the Gun Lake Trust Land Reaffirmation Act (the Gun Lake Act), reaffirming DOI’s taking of land into trust for the Gun Lake Tribe, removing jurisdiction from the federal courts over any actions relating to the land in question, and indicating that any such actions “shall be promptly dismissed.” The district court in which Patchak had filed his suit determined that its jurisdiction to resolve the suit had been stripped by the Gun Lake Act and that the act was not unconstitutional. It therefore dismissed Patchak’s case. The U.S. Court of Appeals for the District of Columbia Circuit affirmed the district court’s judgment on appeal. The Supreme Court then granted certiorari to address whether a statute directing the federal courts to “promptly dismiss” a pending lawsuit following substantive determinations by the courts (including the Supreme Court’s determination that the “suit may proceed”) – without amending the underlying substantive or procedural laws – violates the Constitution's separation of powers principles. To discuss the case, we have Erik Zimmerman, Attorney at Robinson Bradshaw.
Amicus presents a preview of Slow Burn, an eight-episode miniseries about Watergate.
People called her crazy, and to be fair she must have seemed crazy. But she was onto something. How Martha Mitchell, the celebrity wife of one of Nixon’s closest henchmen, tried to blow the whistle on Watergate—and ended up ruining her life.
Amicus presents a preview of Slow Burn, an eight-episode miniseries about Watergate.
People called her crazy, and to be fair she must have seemed crazy. But she was onto something. How Martha Mitchell, the celebrity wife of one of Nixon’s closest henchmen, tried to blow the whistle on Watergate—and ended up ruining her life.
Today's episode takes two deep dives into complicated legal issues in the news. First, we tackle the FCC's recent "Order Restoring Internet Freedom," which is being characterized as ending Net Neutrality. Is that true? The answer... probably won't surprise you, actually. Then, Andrew and Thomas discuss general principles of antitrust law with an eye towards the recent news that the Trump Department of Justice has sued to block the AT&T/Time Warner merger. Finally, we close with the answer to Thomas Takes the Bar Exam Question #51 involving class action lawsuits in Tenntucky. 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 is going to be on the Wednesday broadcast of the David Pakman show; give it a listen! Show Notes & Links
The main citations we relied upon in the show were 15 U.S.C. § 1 (The Sherman Antitrust Act of 1890); 15 U.S.C. § 18 (The Clayton Antitrust Act of 1914), and 15 U.S.C. § 45 (the FTC Act of 1914).
