After catching up on a few odds and ends, we decide to give the people what they want and discuss Section Three of the Fourteenth Amendment and whether the Supreme Court could possibly declare Donald Trump ineligible for the Presidency. You won't want to miss it.
Amarica's Constitution - Section Three Goes to Washington
The months of discussion of Section Three on Amarica's Constitution now make their way to Washington, as cert has been granted in Trump v. Anderson. Amicus briefs will pour in - including the brothers Amar's brief. We present some of the approach the brief will take, and we look at the nine Justices, taking account of their jurisprudential history and styles, and discuss how an intellectually honest brief-writer can make their best arguments even better by considering how their readers will read them, and what might be most useful to provide to those readers. It's not quite "handicapping" but it is insightful, as all America is wondering if this case might actually result in the removal of Donald Trump from Colorado's primary ballot, and eventually possibly more states' ballots as well. It has come to this.
Opening Arguments - OA854: Trump Lawyers Discover ONE WEIRD TRICK To Get Away With Murder! (Be President.)
"So, I understand your answer to be that if the President uses Seal Team Six to assassinate his political rival, and he hasn't been impeached and convicted by the Senate, he can't be prosecuted." That really happened. Liz and Andrew break down yesterday's pivotal argument before the Court of Appeals of the DC Circuit as to whether Donald Trump has immunity from prosecution for his efforts to steal the 2020 Election because he was the President. Notes Roman Motion to Dismiss GA https://s3.documentcloud.org/documents/24352568/roman-motion-to-dimiss-010824.pdf Trump brief https://storage.courtlistener.com/recap/gov.uscourts.cadc.40415/gov.uscourts.cadc.40415.1208582803.0_3.pdf DOJ brief https://storage.courtlistener.com/recap/gov.uscourts.cadc.40415/gov.uscourts.cadc.40415.1208583920.0_1.pdf American Oversight amicus https://storage.courtlistener.com/recap/gov.uscourts.cadc.40415/gov.uscourts.cadc.40415.1208583989.0_1.pdf 167 Cong. Rec. S607 (daily ed. Feb. 9, 2021) https://www.congress.gov/117/crec/2021/02/09/CREC-2021-02-09.pdf Kel’s CLE class https://dcbar.inreachce.com/Details/Information/9e60ed07-539c-4b48-bc8b-cb75b543d99c
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Strict Scrutiny - Trump’s Eligibility, Cash for Clarence, and a Meditation for 2024
We're only one week into 2024, and there's so much news to catch up on! Melissa, Leah, and Kate discuss ProPublica's reporting about rich guys giving Justice Thomas money when he hinted at retiring because his salary as a justice was too low. Then, they look to the latest in state courts, which are deciding issues such as Donald Trump's presidential eligibility, women's access to emergency abortion care, and fairly drawn electoral maps. After some quick previews of the cases the Supreme Court will hear this week, they welcome special guest Ross Rayburn, Peloton instructor and author of Turning Inward: The Practice of Introversion for a Calm, Joyful, Authentic Life. Ross shares advice for staying sane in this election year, and insights on how listening to Strict Scrutiny is actually a form of meditation.
- Read ProPublica's reporting: "A 'Delicate Matter': Clarence Thomas’ Private Complaints About Money Sparked Fears He Would Resign"
- Read Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform After the Civil War, by Mark A. Graber
- Read the Fifth Circuit's opinion in the EMTALA case we covered last November
- Get a copy of Ross Rayburn's book, Turning Inward: The Practice of Introversion for a Calm, Joyful, Authentic Life
- Code STRICT10 gets you 10% off at bookshop.org!
Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025!
- 6/12 – NYC
- 10/4 – Chicago
Learn more: http://crooked.com/events
Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes
Opening Arguments - OA853: The NRA Is On Trial & The Mouse Is Loose!
In this Trump-free episode, Andrew and Liz break down the civil trial of the National Rifle Association beginning TODAY in New York. No, the NRA isn't going to be dissolved, but yes, they could be hit with a ton of restrictions & some bad actors could be forced to fork over a ton of money, so you'll want to follow this story.
Then, the duo tackle the passage of Steamboat Willie into the public domain. What is the public domain? What does it all mean? Listen and find out!
Notes
DC Circuit livestream Trump Appeal Tuesday Jan 9, 9:30amET https://www.youtube.com/watch?v=PEQ1aToavl8
Babbitt Estate v. US — Docket via Court Listener https://www.courtlistener.com/docket/68139457/estate-of-ashli-babbitt-v-babbitt/
US v. Texas — Docket via Court Listener https://www.courtlistener.com/docket/68134300/united-states-v-texas/
NY Case Search https://iapps.courts.state.ny.us/nyscef/CaseSearch
Appellate Docket No: 2023-06396
Trial Docket No: 451625/2020
US Copyright Office Circular 33 https://www.copyright.gov/circs/circ33.pdf
Klinger v. Conan Doyle Estate (7th Cir. 2014) https://freesherlock.files.wordpress.com/2013/02/klinger-7th-circuit-opinion-c.pdf
Secrecy, Self-Dealing, and Greed at the N.R.A. https://www.newyorker.com/news/news-desk/secrecy-self-dealing-and-greed-at-the-nra
NRA Awarded Contracts to Firms With Ties to Top Officials https://www.wsj.com/articles/nra-awarded-contracts-to-firms-with-ties-to-top-officials-1543590697
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Amicus With Dahlia Lithwick | Law, justice, and the courts - Deja Coup: Donald Trump and the Slow Civil War
On January 6, 2021, supporters of Donald J Trump stormed the U.S. Capitol building hoping to stop Joe Biden from becoming president. Three years later, a quarter of Americans believe the FBI instigated the events of that day.
This week on Amicus, we’re trying to understand the myth-making that helped foment the riot, and the religious fervor that binds and buoys Trump’s supporters today. Dahlia Lithwick is joined by Jeff Sharlet, author of “The Undertow: Scenes From a Slow Civil War” to explore the stories and symbols that are shaping Trump’s march toward fascism, and to figure out what place the rule of law has in this struggle.
In this week’s Amicus Plus segment, Slate’s dynamic legal duo of Mark Joseph Stern and Jeremy Stahl break down the latest in Trump’s cascading court cases, and the Texas abortion case that’s on a fast track to the Supreme Court.
Sign up for Slate Plus now to listen and support our show.
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Opening Arguments - OA852: Trump Asks SCOTUS To Put Him Back on the Colorado Ballot Despite 14th Amendment
Liz and Andrew break down an entirely new argument being advanced by Trump's allies to get him back on the Colorado ballot. Will it work? Listen and find out!
Then, the duo break down the latest barrage of nonsense filings in DC.
Notes
Colorado state court ruling
Colorado Supreme Court ruling https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf
Lawfare Tracker on Trump DQ https://www.lawfaremedia.org/current-projects/the-trump-trials/section-3-litigation-tracker
OA 848 https://openargs.com/oa848-trump-is-off-the-ballot-in-colorado/
Socialist Workers Party of Ill. v. Ogilvie, 357 F. Supp. 109, 113 (N.D. Ill. 1972)
https://scholar.google.com/scholar_case?case=13881601664092355452
Voting and Vice, 2012 Yale Law Review (Re and Re)
https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5515&context=ylj
Trump report on stolen election
Trump lawyers’ doozy of a filing on voter fraud - Washington Post
https://www.washingtonpost.com/politics/2024/01/03/trump-lawyers-doozy-filing-voter-fraud/
Rolling Stone on Trump turning trial into a MAGA freak show
Trump motion for order to show cause DC
https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.192.0.pdf
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-And finally, remember that you can email us at openarguments@gmail.com
Opening Arguments - OA851: Iowa Judge Cancel Cultures GOP Book Ban
Our first episode of 2024 is a Good News episode! First, Liz and Andrew break down a new argument that might get everything back on track in Trump's DC prosecution. Then, the duo unpack a recent ruling enjoining Iowa's anti-LGBTQ book ban. Notes Trump DC per curiam order https://storage.courtlistener.com/recap/gov.uscourts.cadc.40415/gov.uscourts.cadc.40415.1208584150.0_5.pdf Trump DC immunity brief https://storage.courtlistener.com/recap/gov.uscourts.cadc.40415/gov.uscourts.cadc.40415.1208582803.0_3.pdf Ed Meese amicus brief https://storage.courtlistener.com/recap/gov.uscourts.cadc.40415/gov.uscourts.cadc.40415.1208584119.0_1.pdf American Oversight amicus brief https://storage.courtlistener.com/recap/gov.uscourts.cadc.40415/gov.uscourts.cadc.40415.1208583989.0_1.pdf In re Grand Jury Investigation, 916 F.3d 1047 (2019) https://scholar.google.com/scholar_case?case=8603210867025765580 D. Iowa Order re LGBTQ book ban https://storage.courtlistener.com/recap/gov.uscourts.iasd.85819/gov.uscourts.iasd.85819.65.0.pdf Iowa Senate File 496 https://www.legis.iowa.gov/docs/publications/LGE/90/SF496.pdf
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-And finally, remember that you can email us at openarguments@gmail.com
Amarica's Constitution - Section Three Punditry: The Good, The Bad, and The Silly
The nation awaits the Supreme Court’s seemingly inevitable review of the Section Three case from Colorado, and perhaps Maine as well. Media around the world is weighing in with editorials and op-Ed’s; a smorgasbord of legal, political, and predictive arguments from professors, editors, elected officials, and others with their own range of expertise. We continue our attempt to help you make sense of these by choosing pieces that make the range of arguments out there. We do our best to present their argument and respond to it, bringing Professor Amar’s considerable armamentarium to bear for your benefit. And this week, Akhil has at least two - maybe three - major new ideas he brings to the national discussion. They can be found here first. CLE credit is available from podcast.njsba.com.
Strict Scrutiny - New Year, Same Court
To start the new year off right, Jonathan Van Ness joins Kate, Leah, and Melissa to suggest some resolutions for the justices of the Supreme Court.
- Listen to us on Getting Curious: "What's Happening with the Supreme Court?"
Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025!
- 6/12 – NYC
- 10/4 – Chicago
Learn more: http://crooked.com/events
Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes