Opening Arguments

OA1087 - We examine how the incoming President and his administration are already breaking the law with his transition team before taking on his announced intention to subvert the Constitution--and his own political party--through an unprecedented clown car of forced recess appointments. From the Defense Secretary the National Guard determined they couldn’t trust with a gun around Joe Biden to the Attorney General who just resigned from Congress to avoid the details of what he has been doing with high school students to the deputy chief of staff who is Stephen Miller, there are plenty of good reasons these freaks might not clear even a Republican Senate. Could this one weird Constitutional trick force them through?  Finally, the world’s richest man wants to tell the federal government how to spend its money. What’s the deal with Elon Musk’s Department of Government Efficiency? Harris-Walz Transition Team Ethics Plan “Will Trump Pursue a Bonkers Plan to Adjourn Both Houses of Congress?,” Ed Whelan, Nation

OA1086 - We're modifying the schedule a little! Introducing fash-watch with Lydia. We're going to keep a very watchful eye on Trump's incoming government. We're starting this week with the EPA Administrator Lee Zeldin and UN Ambassador Elise Stefanik. But don't worry! After that, we're still on with Heather and the regularly scheduled bar exam failure! Make sure to find openargs on Bluesky and play T3BE there! Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!  

OA1085 - Matt has put together a preliminary list of things Joe Biden can and should do in the lame duck period. Will he? Let's make him. After that, we examine something that he should absolutely not do courtesy of the aspiring fascists of the National Review. As a little treat. Trump has made more than 100 threats to prosecute or punished perceived enemies," NPR News  (10/22/22) “Biden Should Pardon Trump,” Mark Antonio Wright, National Review (11/6/24) Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1083 - What does it mean to be a legal podcast at a time when the rule of law itself is in play? We reflect on this moment before answering a few patron questions and taking a closer look at the current state of each of the three criminal cases against Donald Trump as of this week. “A Sitting President’s Amenability to Indictment and Criminal Prosecution,” DOJ memo dated 10/16/2000.  Docket for Jack Smith’s appeal of Judge Cannon’s  11th Circuit Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

Hey folks, this is more of an SIO, but I recorded a solo show because I have to debunk this myth about Kamala losing 10-15m Democratic votes. The truth is not at all that. I also have a million other thoughts that I really just want to get out there and that I hope will be helpful. Matt and I will be back on Friday. Also, I'm not charging Patreon for this one since it's on SIO. Thanks.

Hey folks, it's bad. MAGA is on track to win everything. Matt and I got on for some unfiltered, unedited talk.

OA1083 - the last episode before the election! So Matt thought it would be a great time to give a final round up of the actual policy differences between Trump and Harris. Are these two candidates really any different? Yes. Obviously yes. What a stupid question. First day on Earth or something? Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1082 - Donald Trump recently promised that he and House speaker Mike Johnson have a “little secret” about how they are going to win next week’s election. Is he just trolling, or have Republicans identified real vulnerabilities in our federal election system? We assess the legal realities surrounding one particularly doomerist prediction in The Nation to try to understand just how concerned we really should be. The Washington Post has just revealed that Elon Musk has his own little secret: his numerous past violations of federal immigration law. How much does this matter, and what would happen if ICE received this information about someone who didn’t happen to be the world’s wealthiest person?  Finally, for our dessert course Matt has the scoop on a tasty footnote from this week’s news about how the Librarian of Congress just helped to fix the ice cream machine at your local McDonald’s.   “That “Little Secret” Between Trump and Johnson? Here’s What It Could Mean,” Elie Mistal  The Nation (10/29/2024) “El

It's OA Bar Prep with Heather! First we get the answer to last week's Mario Kart easement question, and then we get question 46 - The Fraudulent Flight to Florida Right now, the best place to play (if you aren't a patron...) is at reddit.com/r/openargs! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1081. We're taking a broad survey of the 2024 elections, starting with the many, many 2020 election deniers who are still in--and seeking--public office. How many of these people are still around, and how many are up for re-election? What kinds of threats to democracy are still built into the system and how could we do better? What would real reform look like, and what is it going to take to get there?  “The Story of Election Denial in America," ElectionDeniers. org SCOTUS decision in FEC v. Cruz for Senate (2022) “Interactive U.S. House Election Map,” 270towin. Com “At least 30 election deniers and 2020 fake electors serving as Trump electors this year,” CNN (10/17/2024) Fifth Circuit’s decision in Lamb v Wetzel (10/25/24) “A Comprehensive Look at the Freedom to Vote Act,” Jonathan Diaz, Campaign Legal Center (9/17/21) Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1080 - As a weary nation watches the world's richest man try to buy a federal election in plain sight, we stop to consider the question which has so long plagued Elon Musk: There's gotta be a crime here, right? Somewhere? There has been plenty of debate this week about the legality of Musk’s $1 million daily lottery for registered US voters in swing states, but there is something far more insidious going on in this story beyond the headlines. Matt explains how the Federal Elections Commission has recently taken the Supreme Court’s perfectly good joke way too far before we consider what the rapidly evolving rules around super PACs could mean for the future of fair elections in the United States.  Finally, we drop a seasonal footnote to discuss how some Massachusetts 8th graders recently helped to close out a 332-year-old criminal case. “Judge Aileen Cannon, who tossed Trump's classified docs case, on list of proposed candidates for attorney general”  ABC News (10/22/2024) “Elon Musk’s Big Business and Co

It's OA Bar Prep with Heather! First we get the answer to last week's pizza predicament, and then we get question 45 - the case of the uneasy easement! Right now, the best place to play (if you aren't a patron...) is at reddit.com/r/openargs! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1079 - An OA Spooktacular! But also a normal episode. We continue our ongoing series on fascism and the law with a fresh perspective on a familiar American legal horror story. Matt explains the terrifying legal context surrounding the 1692 Court of Oyer and Terminar which sentenced dozens of innocent Massachusetts colonists to hang for the extremely real felony of practicing witchcraft--and an unexpected defense strategy which could have spared them. What can the most terrifying run of wrongful executions in US history teach us about the dangers of governance by rumor, paranoia, and conspiracy theories 332 years later? SOURCES:  In the Devil’s Snare: The Salem Witchcraft Crisis of 1692, Mary Beth Norton (2003) “Salem Witchcraft Trials Research Guide,” Congregational Library (2024)(links to primary sources) 18 USC 611 (voting by aliens) Order granting preliminary injunction against Oklahoma’s anti-Sharia law amendment in Awad v. Ziriax et al, W.Dist. of OK (2010)(later upheld by 10th Circuit   Chec

OA1078 - The Supreme Court is back from their vacation and is set to ruin a bunch of lives again! They start off with Glossip v. Oklahoma, another opportunity for the Republican ghouls on the Court to execute a potentially innocent man. But not to worry, Matt's Footnote Fetish(tm) will bring us wayyyy back into happy territory, as a favorite character from OA past is in the news in the best way! Check out the OA Linktree for all the places to go and things to do! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

It's OA Bar Prep with Heather! We get the answer to last week's hot firefighter question, and then a new question involving pizza and promised payment! Right now, the best place to play (if you aren't a patron...) is at reddit.com/r/openargs! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1077, Part 2 of Matt's MAGA is Fascist series. The MAGA movement has just taken a hard turn  to the extreme right with openly fascist messaging from Donald Trump about “migrant crime,” “occupied cities,” and “bad genes.”  We take a moment to absorb this alarming reality before Matt also explains how US immigration policy has always been the leading edge of American protofascism--and why Adolf Hitler personally admired it--before taking a look at Trump’s actual 2024 immigration promises and what keeping them would mean for us all. Hitler's American Model: The United States and the Making of Nazi Race Law, James Q. Whitman (2017) “Trump Apparently Has a List of Things He Loves About Adolf Hitler,” Tori Otten The New Republic (3/11/24) “Sweeping Raids, Giant Camps, and Mass Deportations: Inside Trump’s 2025 Immigration Plans,” Charlie Savage, Maggie Haberman, Jonathan Swan, The New York Times (11/23/2023) If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA 1076: In the wake of the devastation left by hurricanes Helene and Milton, we examine the state of FEMA’s Congressional funding. Has disaster relief actually become a “partisan” issue, or is this really just a Republican thing? How are these funds distributed, and why can’t Congress ever seem to fully fund anything? Matt explains why the current state of Congressional appropriations has him looking for flights to Denmark. Then: Why is Ron DeSantis’s Department of Health threatening to bring criminal charges against local TV stations airing pro-choice ads in support of Florida’s proposed Amendment 4? Finally, we drop a footnote to check in on the current state of the longest-running criminal trial in Georgia history and listen in on what the judge most recently assigned to the Young Thug RICO case has had to say to Fani Willis’s office about how they are handling it. “Disaster Relief Fund State of Play: In Brief,” Congressional Research Service (8/14/2024) “The Congressional Appropriations Process: An I

It's T3BE43! First, Heather gives us the answer to last week's question about the 6th amendment right to a jury trial, and then we get a fun question involving an issue not talked about enough: discrimination against hot firefighters. Get 15% off OneSkin with the code OPENING at https://www.oneskin.co/ #oneskinpod Right now, the best place to play (if you aren't a patron...) is at reddit.com/r/openargs! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

Is it okay to call Trump a “fascist”? Is our democracy itself really on the line next month? And what might our legal system look like after a second Trump term? We look behind the headlines to begin to examine the nuances of these questions in this first of several planned episodes on the current state of the American right. The Anatomy of Fascism, Robert Paxton (2004) “The Rise of Competitive Authoritarianism,” Steven Levitsky and Lucan A. Way, Journal of Democracy (April 2002) They Thought They Were Free (full text), Milton Meyer (1955) The Road to Unfreedom: Russia, Europe, America, Timothy Snyder (2018) Nothing is True and Everything is Possible: The Surreal Heart of the New Russia, Peter Pomerantsev (2015) Get 15% off OneSkin with the code OPENING at https://www.oneskin.co/ #oneskinpod If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1074: We begin with a quick look at JD Vance’s cringiest moment during this week’s VP debate. Does the junior senator from Ohio know anything about immigration law--let alone vice presidenting? In our main story: Two of last term’s worst U.S. Supreme Court decisions surrounding “official acts” have been playing out in real time this week in two of the most important criminal prosecutions in the US. First, special counsel Jack Smith has just filed a monster of a brief in the DC case against Donald Trump for his responsibility for the events of January 6th, 2001. Why is this filing so unique, and what can we learn about the evidence against Trump and DOJ’s strategy going forward? Meanwhile, New York Mayor Eric Adams has filed a motion to dismiss his pending bribery charge on the grounds that bribery is pretty much legal now. Could the SCOTUS decision in Snyder v. US actually make a difference here? Finally, Matt drops a rare animal law footnote to explain how the fate of one adorable little beaver became the