Opening Arguments

Brought to you by Trade Coffee! Get up to 3 bags free with any new Trade subscription at drinktrade.com/OA OA 1128 - First: an urgent question from a patron on Trump’s latest executive power grab. Matt explains the history of the “unitary executive theory” and the Federalist Society-backed movement to give the President more power than an actual king.  Then: Rutgers Law professor Katie Eyer studies, teaches, and litigates the law of anti-discrimination with a specialty in LGBTQ rights. She joins to discuss the current state of the law in the shadow of the Supreme Court’s forthcoming decision in U.S. v. Skrmetti and the wake of Donald Trump’s recent anti-trans executive orders. Which, if any, of these orders should we actually be concerned about? What does it mean that the fight for trans lives is now becoming a federal issue?  Can Trump really just instruct the federal government to ignore the Supreme Court’s extension of employment protections to LGBTQ employees in Bostock v. Clayton County? Professor Eyer t

Brought to you by Trade Coffee! Get up to 3 bags free with any new Trade subscription at drinktrade.com/OA OA1127 + T3BE59! Our breakdown of the Thursday Night Massacre continues, with Liz Skeen. Then, it's T3BE time! If you'd like to play along with T3BE, here's what to do: hop on Bluesky, follow Openargs, find the post that has this episode, and quote it with your answer! Or, go to our Subreddit and look for the appropriate t3BE posting. Or best of all, become a patron at patreon.com/law and play there! Check out the OA Linktree for all the places to go and things to do! To support the show (and lose the ads!), please pledge at patreon.com/law!

Brought to you by Trade Coffee! Get up to 3 bags free with any new Trade subscription at drinktrade.com/OA! OA1126 - Law'd Awful Boves We interrupt your regularly-scheduled LAM for readings and commentary on the documents at the heart of what has quickly become one of the most shocking events in the 155-year history of the U.S. Department of Justice: the openly corrupt dismissal of all charges against New York City mayor Eric Adams in exchange for his cooperation with Donald Trump’s immigration crackdown. Gavel Gavel contributor Liz Skeen joins to share her perspective as both a New York City lawyer and resident as we work through the dueling letters which have been publicly released so far from former US Attorney for SDNY Danielle Sassoon, Acting Deputy AG Emil Bove, and former Assistant US Attorney Hagan Scotten together with DOJ’s motion to dismiss. Former U.S. Attorney for SDNY Danielle Sassoon’s letter offering her resignation if DOJ continues to move forward with filing a motion to dismiss the federal

OA1125 - (NOTE: Acting US Attorney for SDNY Danielle Sassoon’s resignation letter and DOJ acting deputy Emil Bove’s acceptance of that letter were published while we were recording this episode, and hours before the Trump administration was enjoined by a DC federal judge from suspending international aid. The news hose never stops!) For this Rapid Response Friday, we do our best to answer some of your questions about waves hands in the general direction of DC.  Why is the media reporting the illegal attempts to fire (among others) the head of the Office of Special Counsel and 17 investigators general like a normal federal HR issue? Did FEMA really just straight-up steal $80 million from New York City’s bank account? Is it now legal to bribe foreign companies abroad and act as an unregistered foreign agent at home? Why are we sending Venezuelan asylum seekers with no criminal records or gang affiliations to Guantanamo Bay just weeks after DHS Secretary Kristi Noem promised that it would only be housing the “wo

OA1124 and T3BE58 - Emil Bove drafted an insanely stupid and corrupt memo ordering SDNY to stop prosecuting the case against the insanely stupid and corrupt (and guilty) Mayor Eric Adams. This is absolutely a scandal and we have lost the ability to properly articulate how much of a scandal this is in light of all the other nonstop scandals. But, unlike mainstream media, AT LEAST WE'RE TRYING. We've brought in the big guns - Liz Skeen (and Matt joining on a Wednesday!) Then, it's the usual Thomas Takes the Bar Exam, with Heather Varanini! Question 58. If you'd like to play along with T3BE, here's what to do: hop on Bluesky, follow Openargs, find the post that has this episode, and quote it with your answer! Or, go to our Subreddit and look for the appropriate t3BE posting. Or best of all, become a patron at patreon.com/law and play there! Check out the OA Linktree for all the places to go and things to do! To support the show (and lose the ads!), please pledge at patreon.com/law!

OA1123 - Insurrection enthusiast Donald Trump sure seems to be looking for an excuse to invoke the Insurrection Act of 1807 in a little-noticed section of one of his flurry of Inauguration Day executive orders. We review the history of how the Constitution and subsequent acts of Congress were written specifically to keep the President from deploying troops on US soil without a very good reason, and how and why the Act has been invoked 30 times in US history. When does civil disorder become an “insurrection” and when, if ever, can the President send in troops that a state hasn’t requested? And why is Trump so determined to declare an insurrection on the border? 10 USC 251-255 (colloquially known as “The Insurrection Act”) “The President’s Authority to Commit Troops Domestically Under the Insurrection Act,” Harold Hongju Koh & Michael Loughlin, American Constitution Society (September 2020)  “Policy Brief: The U.S. Military May Be Used to Secure the Border,” Ken Cuccinelli & Adam Turner (3/24/24)

OA1122 - We’re not even three weeks into the second Trump administration and already well into our first Constitutional crisis. How was the world’s richest man given access to the nation’s checkbook and the total authority to shut down a $40 billion federal agency with 10,000 employees--and can he be stopped?  After a quick review of some recent good news, we try to understand how Donald Trump and Elon Musk are illegally reshaping the federal government before closing out the news sandwich with a big L for the Proud Boys. D.C. District Court judge Royce Lambert’s order in Doe v. McHenry protecting trans prisoners (2/4/25) Trump’s executive order establishing the Department of Governmental Efficiency (1/20/25) “The Trump-Musk power grab has happened before--in Hungary,” Zach Beauchamp Vox (2/5/25) “U.S. Agency for International Development: An Overview,” Congressional Research Service (1/6/25) Check out the OA Linktree for all the places to go and things to do! To support the show (and lose the ads!)

OA1121 and T3BE57 - Senator Bill Cassidy is one of the few remaining Republicans in national politics that resembles a normal human being. He is a doctor, and is very pro-vaccine. And he had a critical hand in RFK Jr.'s confirmation process. There seemed to be a decent chance he might not vote for the brain worms that run RFK Jr.'s flesh suit, but in the end, he did. How did he get there? How did he justify it? It's an interesting story and it says a lot about where we are right now. If you'd like to play along with T3BE, here's what to do: hop on Bluesky, follow Openargs, find the post that has this episode, and quote it with your answer! Or, go to our Subreddit and look for the appropriate t3BE posting. Or best of all, become a patron at patreon.com/law and play there! Check out the OA Linktree for all the places to go and things to do! To support the show (and lose the ads!), please pledge at patreon.com/law!

OA1120- This episode was first published on our sister show, Gavel Gavel, and has been made available at no charge for our wonderful Opening Arguments patrons! Folks, we and you deserve a little treat. And let me tell you, this is a treat. Mwuah! Chef's kiss. Here's a triple episode for ya! Rudy Giuliani is such a piece of shit that the last real lawyers he could find quit. And so, enter... some guy from Staten Island. He gave us, and the world, truly one of the stupidest, worst written legal documents in recorded history. And in such a serious case, as well! We spend the entirety of this recording digging into it. Come for the weird typos and endless sentences, stay for the lecture on the evils of liberal democracy and wildly unnecessary references to the judge’s father!  Superstar public defender Liz Skeen joins us to draw from her past life as a NY litigator to provide the local and legal context for… whatever this is. “Defendant’s Memorandum of Law in Opposition to Plaintiffs’ Motion to Hold Defendant i

Brought to you by Trade Coffee! Get up to 3 bags free with any new Trade subscription at drinktrade.com/OA OA1119 - Trump's executive orders are bad for humanity--and just plain badly written. We survey some of the 20 major legal challenges which have been filed against this nonsense--including two early wins, and a few others which might be wins soon. Matt then explains a recent proposed Trump enforcement tactic with concerning new potential for integration of local and federal authorities with immigration enforcement which the media seems to have missed. In related news, Trump has announced that a little-known section of the US military base at Guantanamo Bay will be used to house up to 30,000 immigrants facing deportation. We consider the history and legal issues around this far-from unprecedented plan. Finally, our closing Bigfootnote takes a closer look at a rare intersection between cryptozoology and the law. OMB memo dated 1/27/25 “Influx of aliens” memo “Offshoring Human Rights,” International R

OA1118 and T3BE56 - Russell Vought lied in his confirmation hearing, but who is Vought and why should we care? Lydia gets us up to speed on this capital-d Doozy, with his background, some highlights from his confirmation hearing, and the great reporting that lets us confidently state that he lied in his hearing with the Senate Budget Committee. Then Heather Varanini joins for the answer to T3BE question 55 and brand new question 56! Who Is Russell Vought? Probably the Most Important Person in Trump 2.0., New York Times Opinion “Put Them in Trauma”: Inside a Key MAGA Leader’s Plans for a New Trump Agenda, ProPublica Undercover in Project 2025, Centre for Climate Reporting If you'd like to play along with T3BE, here's what to do: hop on Bluesky, follow Openargs, find the post that has this episode, and quote it with your answer! Or, go to our Subreddit and look for the appropriate t3BE posting. Or best of all, become a patron at patreon.com/law and play there!

Brought to you by Trade Coffee! Get up to 3 bags free with any new Trade subscription at drinktrade.com/OA OA1117 - As Donald Trump’s executive branch nominees continue to work their way through the confirmation process, we welcome Stanford Law professor Anne Joseph O’Connell to learn more about one of the most important legal protections we have against a fully imperial presidency. Professor O’Connell is one of the leading academic experts on the Federal Vacancies Reform Act, the legislation which Trump may or may not have intentionally circumvented in his last term to install acting heads of departments which would otherwise require Senate confirmation, and provides some essential background and context for what we might expect in his second term as his appointments continue to work their way through the confirmation process. Also covered: getting fired by Trump, defending pandas in court, Aileen Cannon and Clarence Thomas’s fringe theory about the unconstitutionality of special counsels, and what Professor

OA1116 - We take stock a few days into the second Trump administration to consider the current state of ICE enforcement, Trump’s blatantly unlawful overrule of the recent Supreme Court decision forcing the divestiture of TikTok, and the President’s new venture in cryptocurrency. Finally, today’s footnote honors the efforts of one person who is doing her part to write history as it happens. Judge John Coughenour’s injunction against Trump’s executive order on birthright citizenship (1/23/25) SCOTUS decision in TikTok v. Garland (1/17/2025) “Application of Protecting America from Foreign Adversary Controlled Applications to TikTok,” (1/20/2025)  $TRUMP coin price tracker “Enforcement Actions At Or Focused on Sensitive Locations” (original ICE “sensitive locations” memo)(10/24/2011) Final text of the Laken Riley Act (sent to the President 1/24/25) Judge Amy Berman Jackson’s order on DOJ’s motion to dismiss in U.S. v. Gregory Mijares (1/23/25) Check out the OA Linktree for all the places to go and

OA1115 - Matt joins for a special Wednesday to provide an initial review of some of the most notable of the 26 executive orders which Donald Trump signed after his inauguration on Monday. We go beyond the headlines to take a closer look at what is actually in these things, and try to sort the routine bluster from the very real threats.  “Undercover in Project 2025,” Center for Climate Reporting (8/15/2024) Restoring Names That Honor American Greatness – The White House (1/20/2025) Protecting The Meaning And Value Of American Citizenship – The White House (1/20/2025) Initial Rescissions Of Harmful Executive Orders And Actions – The White House (1/20/25) Restoring Accountability To Policy-Influencing Positions Within the Federal Workforce – The White House (1/20/25) Realigning the United States Refugee Admissions Program – The White House (1/20/25) Guaranteeing The States Protection Against Invasion – The White House (1/20/25) Ending The Weaponization Of The Federal Government – The White House 

OA1114 - “We are now faced, my friends, with the fact that tomorrow is today.” --Dr. Martin Luther King, Jr. (April 4, 1967) We begin the second Trump administration exactly where we intend to remain for the next four years: in dissent.  Today’s Inauguration Day counter-programming features two of the most powerful dissenters in modern American history: Supreme Court Associate Justice Sonia Sotomayor and Dr. Martin Luther King, Jr. We begin with commentary on Justice Sonia Sotomayor’s defiantly inspiring July 1, 2024 dissent as read from the bench in the Supreme Court’s immunity decision, and conclude with Dr. Martin Luther King, Jr.’s powerful call for a “revolution of values” to end “power without compassion, might without morality, and strength without sight.”  Audio of Supreme Court decision announcements for July 1, 2024 (Sotomayor dissent begins as 42:00) Full text of Trump v. US (7/1/2024)(including Roberts majority, Coney Barrett concurrence, and Sotomayor and Jackson dissents) “Hear Me Roar: Wh

OA1113 - Special counsel Jack Smith recently resigned and turned final reports in each of Donald Trump’s federal cases to Attorney General Merrick Garland. We examine the enigma of the man and the complexity of his mission before reviewing his final conclusions and charging decisions. How does this compare to the Mueller Report? Why was Trump never charged under the Insurrection Act? And will Aileen Cannon really get away with keeping the second volume on Trump’s illegal retention of classified documents from ever reaching the four (4) people the AG has decided should be allowed to read it? Finally, Matt drops a rare PSA footnote to explain why sometimes the very best thing that we can do to support our local immigrant communities is nothing at all. “Final Report on the Special Counsel's Investigations and Prosecutions: Volume One,” Office of Special Counsel Jack Smith (1/7/25) “False reports of immigration sweeps in California spread social media, cause panic “ Mathew Miranda, Sacramento Bee  (1/13/2025)

OA1112 and T3BE55!  But who will watch the doozy watchers? We will. We watched Pete Hegseth's confirmation hearing, but our focus might have been a bit different than elsewhere. Here at Doozywatch(tm) HQ our concern wasn't with Hegseth as much, because every single one of us and them already knows he isn't fit to be Secretary of Defense. Our focus, and the focus on today's OA is - how did the Democrats do? We've been quite nervous about to what extent the Democrats will obey in advance. So what did this hearing tell us? Lydia Smith is here and lordy there are tapes! Then, it's Thomas Takes the Bar Exam 55! That means we've got the answer to last week's question, as well as a fresh new one. Heather Varanini is in the house! If you'd like to play along with T3BE, here's what to do: hop on Bluesky, follow Openargs, find the post that has this episode, and quote it with your answer! Or, go to our Subreddit and look for the appropriate t3BE posting. Or best of all, become a patron at patreon.com/law and play ther

OA1111 - The Eastman Dilemma: Lawfare or Justice?  We're giving everyone half of this Law'd Awful Movies! We watched John Eastman's... documentary? Whatever it is, a strange nonprofit called the Madison Media Fund produced it, and held the premiere at Mar-a-Lago ahead of its, you guessed it, January 6th release date. You'll hear straight from Eastman, Alan Dershowitz, Jeff Clark, and...Lawrence Lessig regarding Eastman's election "theory." Special Guest Lydia joins us to tackle the folks behind the making of this film, and you won't believe the stuff she's uncovered. John Eastman’s first “draft” memo (12/24/20) John Eastman’s second memo (early 2021) The 65 Project’s complaint re: John Eastman to the CA bar (7/28/22) Record of John Eastman CA disbarment proceedings (6/12/23) CA Bar Court Judge Yvette Roland’s recommendation in John Eastman’s disbarment proceedings (3/27/24) To be sure you get access to all previous and future bonus content, be sure to sign up at patreon.com/law!

OA1110 - For the first time in US history, an American President (both former and future) is facing criminal sentencing. We review Judge Juan Merchan’s most recent ruling on Donald Trump’s motion to dismiss his conviction for 34 felony counts of falsifying business records and the difficult balance that Merchan has struck in trying to weigh the jury’s verdict and the rule of law itself against the fact that the defendant will be ten days away from regaining the nuclear codes as of the time of his scheduled hearing.  We also review Aileen Cannon’s recent probably-illegal desperate order to try to stop special counsel Jack Smith’s report on Trump’s many federal crimes from going public before trying to understand why Democrats would even consider signing on an extremely hard-right immigration bill which can only help to fuel  Trump’s mass deportation machine. How will the Laken Riley Act allow undocumented people to get away with nearly any theft offense, and give state AGs broad power over national immigration

OA1109 and T3BE54 - John Eastman is many things: a hack, a liar,  a disgraced law school dean, a failed Wikipedia editor, and a mostly-disbarred, twice-indicted traitor to the Constitution on a desperate PR campaign to distance himself from the violent insurrection of January 6, 2021 which he set in motion with his  patently bad-faith legal advice to the Trump campaign. But did you know that he also isn’t even a person? Our Profiles in Fascism series continues with a have-to-hear-this-to-believe-it reading from the pages of the Claremont Institute’s deranged American Mind. (There’s just too much good stuff here for the regular show, so the last half is for patrons only!)  Then, Heather is back with the answer to T3BE Q53 and a fresh new question 54! “The Unpersoning of John Eastman,” TJ Harker, The American Mind (5/2/24) The 65 Project’s complaint re: John Eastman to the CA bar (7/28/22) CA Bar Court Judge Yvette Roland’s recommendation in John Eastman’s disbarment proceedings (3/27/24) If you'd like