Opening Arguments

Today's SUPER SPECIAL BONUS EPISODE tackles a bunch of issues that came up during the week that we didn't want to get buried on the whiteboard, including the Flores settlement, a deep dive into non-compete clauses, and a really good Andrew Was Right & Wrong segment about the Hatch Act. It's everything you love about Opening Arguments, only more so! We begin with an examination of the oral arguments before the 9th Circuit regarding ICE detainment centers and whether those comply with the conditions mandated by the Flores settlement that require "safe and sanitary" conditions for minors separated from their families at the border. After that, it's time for a deep dive into a really good listener question from Erin regarding covenants not to compete. Learn all about the "Legitimate Business Interest" (LBI) test and how to gauge whether a noncompete clause is (likely) enforceable, plus learn about the recent economic and political trends surrounding noncompetes that may surprise you. Then, it's time fo

Today's episode takes a deep dive into executive privilege, evaluating the legal arguments being raised by the Trump administration asserting executive privilege over former communications director Hope Hicks and former counsel Don McGahn. Find out how good those arguments are -- spoiler: some aren't terrible! -- and what's next for the Congressional Democrats. First, though, we begin with coverage of the American Legion v. American Humanist Ass'n decision from last week; that's the Bladensburg Cross case that we've discussed at some length on this show. How bad is this decision? (Bad.) Then, it's time for the intersection of Rapid Response Friday and Deep Dive Tuesday in which we time travel all the way back to 1971 to evaluate the Trump Administration's claims regarding executive privilege "over the last five decades." As you've come to expect from OA, we tell you what the administration got right... and, of course, what they got wrong. If you want to know if and when Congress will ever get meaningful

Today's episode -- #OpposeJustinWalker -- tells you everything you need to know about Donald Trump's latest nominee for a lifetime appointment to the federal bench (and Andrew's former debate opponent) Justin Walker. You already know he's a lifelong member of the Federalist Society. Why is it specifically worth opposing him? Listen and find out! First, though, the guys break down the Supreme Court's 7-2 ruling in U.S. v. Gamble, affirming the "dual sovereignty" doctrine and finally putting the last nail in the coffin of a crazy lefty conspiracy theory we debunked way back in Episode 215. And, as a bonus (?), we find out why Clarence Thomas's concurrence is "the most horrifying thing in print in the past 50 years." Seriously! After that breakdown, it's time to analyze the background and writings of Justin Walker. We learn that he has virtually no litigation experience and that he's a right-wing ideologue; you probably expected that. But you'll also learn that his two major contributions to academic juris

Today's episode explains exactly what happened with the story you probably saw about how Led Zeppelin "got a new hearing" in their lawsuit with the estate of Randy California. What's going on? Listen and find out! We also break down the latest ethical wrangling over Yale law professor Amy Chua and Brett Kavanaugh. Is it as bad as everyone says? We begin with the tale of "Tiger Mom" Amy Chua, the Yale law professor who wrote a stirring defense of Brett Kavanaugh as a "mentor to women" after Kavanaugh had offered Chua's daughter a plum clerkship. Did that pot get sweetened when Kavanaugh was confirmed to the Supreme Court? (Hint: yes.) We break down all of the ethics & more in this segment. Then, it's time to revisit the lawsuit brought by the estate of Randy California against Led Zeppelin alleging that Led Zep stole the iconic riff for "Stairway to Heaven" from California's band, Spirit. If you haven't listened to Episode 236, go give that a listen right now, and then come back to find out what's new

Today's Rapid Response Friday covers all of the breaking developments this week, including a ruling from the Wisconsin Supreme Court, the latest news out of the House of Representatives, and the Office of Special Counsel's latest request that Donald Trump should fire Kellyanne Conway for "flagrant" serial violations of the Hatch Act. What does all that mean? Listen and find out! We begin by revisiting the state of Wisconsin, where Republicans in gerrymandered-safe seats in the state legislature stripped power away from the incoming Democratic Governor and Attorney General. A trial court issued an injunction preventing that law from going into effect, and just two days ago, the state Supreme Court finally ruled on that injunction. How did that go? (You know the drill.) Then, we move into the main segment, in which we discuss all of the developments related to the census question we last discussed in Episode 286. Learn about one respondent's petition for limited remand, the White House's assertion of execu

Today's episode takes a deep dive into recent developments following the death of Republican operative Thomas Hofeller -- the architect of the REDMAP -- that may impact the census question case currently pending before the Supreme Court, Department of Commerce v. New York. First, however, we begin with an Andrew Was Wrong about the 2006 midterm elections and the Pension Protection Act. That was, in fact, a Democratic wave year -- but the PPA was passed in August, nearly five months before that new Democratic congress was seated. Oops. Then it's time to delve into the strange files of Thomas Hofeller, the architect of REDMAP -- you know, the gerrymandering strategy and software that turned Republican minorities into majorities in states like Wisconsin and tiny Republican majorities into one-sided dominance in states like North Carolina. Want to know his plan for helping "Non-Hispanic Whites?" Of course you do! We break down exactly how this development may affect Dep't of Commerce v. New York, which has

Today's instant-breaking episode takes a look at the significance of Lt. Gen. Michael Flynn's decision to fire his lawyers, Andrew's buddies over at Covington & Burling. Oh, and we also take a semi-deep-dive into President Trump's decision to impose tariffs on "all goods" imported from Mexico. What does it all mean? Listen and find out! We begin, however, with a slight preview of next week's show, which will break down the impending tariffs on goods imported from Mexico. How is this like (or unlike) Trump's decision to impose steel tariffs on China? You'll have to listen and find out! Then, it's time for the main segment in which we learn that Lt. Gen. Michael Flynn has fired his lawyers at Covington & Burling? What does that mean? Only time will tell. For the "C" segment, we break down the upcoming DNC debate, who's qualified, and what legal remedies some of the "loser" candidates might have. After all that, it's time for #TTTBE involving torts, contributory negligence, and joint and several

Today's episode is a tragedy in three acts, bringing together three seemingly-unrelated stories: (1) understanding the looming crisis at the Pension Benefits ordonuarantee Corporation; (2) figuring out who Gordon Hartogensis is and why he's about to gain control over potentially hundreds of billions of dollars in assets; and finally, (3) putting together all the pieces to see how President Trump has acted to protect his crony, Treasury Secretary Steven Mnuchin, from potential criminal and civil liability in connection with his management of Sears. Strap in; it's going to be a bumpy ride! We begin in Act I, in which the guys break down the Employee Retirement Income Security Act of 1974 (ERISA), its creation, the Pension Benefits Guaranty Corporation (PBGC), and the developments over the last 45 years that have pushed the PBGC to the brink of collapse. Act II, then, takes over with the recently-appointed International Man of Mystery, Gordon Hartogensis, to lead the PBGC. Who is this guy, and what has he d

Today's episode breaks down the statement made this week by Robert Mueller in connection with his report and investigation. Is it a good sign? Is it a bad sign? Is it both? Listen and find out! We begin, however, with a bit of housekeeping, including a recommendation that you check out Episode 194 of Serious Inquiries Only (featuring Eli Bosnick!) for the official OA answer to all things milkshaking. We also preview a bit of next week's show, which involves revisiting Eddie Lampert, Steve Mnuchin, and the alleged looting of Sears. Is it worse than you think? (It's always worse than you think.) Next, we check in on four Supreme Court orders that relate to gerrymandering. Is that worse than you think? (It's always worse than you think.) After all that, we're not even halfway done! Our main segment breaks down the Supreme Court's brief, two-page per curiam order in Box v. Planned Parenthood... and the sprawling, nonsensical 20-page concurrence written by Clarence Thomas that literally repeats David Barton

Lost in the (justifiable) concern over Secretary of Housing and Urban Development Ben Carson's apparent lack of understanding of REOs, OREO, and just about anything pertinent to his job is a recently-proposed HUD rule that would deliberately reverse an Obama-era regulation requiring nondiscrimination in the provision of services to the homeless based on gender identity. Is it as bad as you think? (Yes.) First, however, we begin with an Andrew Was Wrong and a bit more discussion on abortion, including the difference between Plan B and the oral abortifacient RU-486, and the difference between a zygote and a blastocyst. After that, it's time for our deep dive into Secretary Carson's laughable testimony... and the real issue hiding beneath the surface, which involves crafting a religious exception to the Equality Rule of 2016. Then, it's time to debut Optimist Prime(TM) vs. Negatron(TM) on impeachment. Find out why Andrew thinks the tide is turning and Thomas... doesn't. Where do you wind up? Listen and fi

Today's episode breaks down Judge Mehta's recent order in the Trump v. Mazars litigation, which is parallel to the Deutsche Bank lawsuit we discussed on last week's show. Why is this ruling significant, how does it accelerate the House's efforts to uncover crucial financial documents, and what does this mean for the future of the Trump Presidency? Listen and find out! We begin, however, with a look at some late-breaking news from Sen. Elizabeth Warren and Rep. Alexandria Ocasio-Cortez, who have requested information from Treasury Secretary Steven Mnuchin related to his tenure at Sears (that we discussed in Episode 273) and whether that conduct continued during his time working for the Trump administration. Then, it's time for the main segment, in which we discuss Judge Mehta's order, what it means for the future of the Trump investigations (and for future presidential administrations!), as well as deal with skeptical questions about the potential timeframe. Learn how the Congressional Democrats maneuvere

Today's episode takes an in-depth look at the recent abortion bans passed in Georgia and Alabama, breaking down exactly what these laws say (and don't say!) to help you sort through the panic from the actual news. It's not always a pleasant trip, but it's a journey worth taking to figure out exactly what's at stake. We begin, however, with a listener question about abortion -- and specifically, about whether the federal government can preemptively prevent the states from doing the kinds of things we talked about back in Episode 276. Find out why Andrew thinks the conservative Supreme Court isn't likely to uphold the constitutionality of a federal law prohibiting states from recognizing abortion rights. After that, it's time for a deep dive in to the very confusing Georgia statute , HB 481. Exactly what does this bill do (and not do), and how scared should you be? Listen and find out. And if that's not enough, we also walk you through the more straightforward (but still terrifying) Alabama statute, HB

Today's episode breaks down everything you need to know about the pending Trump v. Deutsche Bank lawsuit over the pending Congressional subpoenas for Donald Trump's (and Don Jr.'s, and Eric's, and Ivanka's, and the Trump Organization's) financial records. Why is Trump suing Deutsche Bank, and what's going to happen? Find out why Andrew is still optimistic! We begin, however, with the breaking news that Trump has pardoned Conrad Black. Who is he? Should this be a scandal? (Yes.) Will it be? (No.) And is Conrad Black a gigantic racist? (Guess.) Then, it's time for the main segment about Trump v. Deutsche Bank. We talk about the unique legal standard in the Second Circuit that gives the Trump legal team a legitimate thread by which to argue for their injunction preventing Deutsche Bank from disclosing Trump's financial records to the House Committee. Then, it's time to answer a listener question from Rob Bate about conspiracy, obstruction, and the Mueller Report. After all that, it's time for a brand-ne

Today's episode features a long-form interview with one of our favorite recurring guests, Andrew Seidel of the Freedom From Religion Foundation. He's on to discuss his just-released book, The Founding Myth: Why Christian Nationalism is Un-American. Because Andrew, Andrew, and Thomas could easily talk for a full hour (and then some)... why, that's exactly what they do. We hold Andrew Seidel's feet to the fire on the threat that Christian Nationalism poses to the U.S. judicial system, including an in-depth discussion of the future of the Establishment Clause. And if you haven't heard of "Project Blitz," you will after this interview. You don't want to miss it! After all that, it's time for the answer to Thomas (& Andrew) Take the Bar Exam Question #125 on the admissibility of prior bad acts evidence. Can the prosecutor introduce evidence of the "Ol' Switcheroo" on cross-examination? Listen and find out!

Today's episode breaks down everything you need to know about what's going to happen with the House Judiciary Committee's vote to recommend holding Bill Barr in contempt of Congress. Is this all going to go nowhere in a Trump-dominated executive and a right-wing judiciary? Find out why Andrew's optimistic, and why he calls the underlying dynamic the coming Republican Civil War! All that and we revisit the Republican Andrew called the "key to the apex of Yodel Mountain" over a year ago! We begin, however, with a big MISSION ACCOMPLISHED banner: you did it! Opening Arguments listeners opened up bar complaints with the Florida Bar about Congressman and nasty little troll Matt Gaetz, and now he faces a state bar disciplinary proceeding. He's not the only one, either; we got breaking news today that Paulie Manafort has indeed been disbarred by the District of Columbia! During the main segment, we break down (1) the contempt recommendation by the House Judiciary committee and exactly what is going to happen

Today's episode features an in-depth analysis of Hodes & Nauser v. Schmidt, a recent decision out of the Kansas Supreme Court holding that -- whatever the U.S. Supreme Court does -- the Kansas state constitution protects a woman's right to choose. Join us to understand how this decision is important not only for Kansans but for all of us as we deal with the challenges created by the increasingly Trump-ified federal bench. We begin, however, with a brief update as to the status of the Jeffrey Epstein plea deal that's been questioned by a recent ruling in Florida. We first covered this story in Episode 259. After that, it's time for fan-favorite "Are You A Cop?" combined with a listener question about whether (and how much) "corporations are people, my friend." Then, it's time for the main breakdown of Hodes & Nauser v. Schmidt, with brief stopovers in Alabama (to discuss Bill 314), a prediction on the future of Roe v. Wade before this Supreme Court, and a full breakdown of the Kansas opinion an

Today's episode covers everything you need to know about Bill Barr's testimony before the Senate Judiciary committee (and his refusal to testify before the House). Has he perjured himself? (Yes.) Is there a reasonable defense of Barr? (No.) What's next? Listen and find out! Also, don't forget to show up for our monthly LIVE Q&A on our YouTube channel this Sunday, May 5th at 6 pm Eastern / 3 pm Pacific! We begin today's show, however, with a few Andrew Was Wrongs and one Andrew Was Right. Wrong? Andrew used "fulcrum" when he should have used "center of gravity," and it led to this amazing listener graphic explaining the difference. Also, Andrew relied upon a mislabeled graph in a complaint in Episode 273; technically, that's someone else who was wrong first, but hey. But Andrew was definitely RIGHT about the RNC platform, and now we have even more evidence to confirm it -- this time in the form of the testimony of J.D. Gordon to Mueller's team of investigators. And we break that down for you (becaus

Today's episode features an in-depth interview with Monica Miller, counsel for the American Humanist Association and (we think!) the second-youngest person ever to argue before the Supreme Court! Just last month, Monica argued the AHA's position in Maryland-National Capital Park and Planning Commission v. American Humanist Association before the Supreme Court, and we get to learn all sort of amazing behind-the-scenes information about the case. We spend the full hour with Monica Miller and learn how the AHA came to take this case, the roller-coaster-highs-and-lows of prevailing in the Fourth Circuit only to see it get taken up by a very conservative SCOTUS, and you get Monica's prediction as to how she thinks the Court might rule... as well as which members of the Court's conservative bloc were receptive to her arguments. Along the way, you'll also learn exactly how Monica got ready for her big day! After that, it's time for the answer to T(&M)TTBE #123, the dreaded real property question involving t

Today's episode features a deep dive into a just-filed lawsuit by Sears against its CEO, Eddie Lampert, and certain directors, including Treasury Secretary Steven Mnuchin. The lawsuit alleges that Eddie & Steve managed to wreck not one but two long-standing American institutions. How? Why? And what does any of this have to do with one of the best comedies of all time, The Producers? Listen and find out! We begin, however, with a very brief Andrew Was Wrong malapropism in which he confused a journalist with a philosopher. (There's a comedy setup in there somewhere.) Then, it's time for the main segment, which breaks down the background on Mnuchin, especially how he teamed up with billionaire Eddie Lampert, and then how the two of them managed to turn less than a billion dollars into full ownership of both Kmart and Sears, each of which had eight-figure valuations at the time. And, as if that wasn't enough, you can find out how Lampert (allegedly) ripped off the public on Mnuchin's watch, all while enr

Today's episode brings you a trio of stories about the changing political landscape in the wake of the release of the [REDACTED] Mueller report; namely (1) will the President be impeached (and if so, can the Senate block the impeachment), (2) will we see a full, unredacted version of the report, and (3) just how pro-Russia is this administration, anyway? We begin with a question asked by listener Thomas S. as to whether Mitch McConnell can... well, Mitch McConnell any impeachment hearings. And while the answer may not surprise you, we think you'll want to know why. Then, we move on to another listener question, this one about whether the Trump campaign actually did soften language in the GOP platform related to Russia. Was that story actually "debunked?" (No.) We debunk the debunking for your edification! After that, it's time for a two-fer of embedded stories that bear on the question of redactions. We look briefly at McKeever v. Barr and evaluate whether that will prevent the ultimate release of the