Opening Arguments

OA1033 We begin with a quick check-in on Trump’s trial in New York, from the recent appellate ruling on his gag order Todd Blanche's bizarrely personal  start to his cross-examination of the most important witness in one of the most important criminal trials in US history. Matt then explains why it might be a felony to run for governor in Washington State if your name is Bob Ferguson.  Then: Clarence Thomas just rejected an originalist 5th Circuit ruling to save the Consumer Protection Finance Bureau on behalf of a 7-2 court--with Alito dissenting for totally different originalist reasons. What is going here? We then stop in for a quick layover with the current state of the Boeing non-prosecution agreement before Thomas takes on a bar question about some extremely unpleasant fish. Unanimous order from the Appellate Division of the Supreme Court of New York upholding Trump NY gag order (5/14/24) RCW 29A.84.320 (WA criminal statute addressing “Duplicate, nonexistent, and untrue names”) SCOTUS ruling in Consumer Financial Protection Bureau v. Community Financial Services Assn. of America, Ltd. (05/16/2024) DOJ letter to court overseeing Boeing nonprosecution agreement (5/14/24) There's a new episode out on www.patreon.com/gavelpod! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1032 We're very pleased to welcome Steve Vladeck on the show to talk about what's going on with the Supreme Court these days, and how shadowy their docket has been recently. We then dig into (and debate a touch) a recent piece he wrote regarding a different way to conceptualize about court reform, and what he personally sees as viable and appropriate among the various proposals for change. Be sure to read The Shadow Docket, which will be released on paperback soon, and subscribe to One First to get more of Steve's great coverage! Then we reveal the answer to last episode's T3BE; did Thomas successfully determine the fate of Rebecca the violinist? And who from the audience will be the lucky winner?! Remember to head over to www.patreon.com/gavelpod to follow our Trump Trial coverage ahead of the public release of the show! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1031 First up, BIG ANNOUNCEMENTS!!! The Trump Trial Transcript readings will now only be available on patreon.com/gavelpod! Details inside. Then: the Biden administration is moving forward with rescheduling marijuana to a lower federal classification--and Matt is not happy about it? Find out why this long-overdue acknowledgment of the over-criminalization of cannabis may not only be too little too late, but actually the wrong direction for criminal and social justice. And speaking of justice gone wrong: Aileen Cannon. Fort Pierce, Florida’s best (and only) federal trial judge has once again put off Trump’s classified documents case, this time with no end in sight. We take a closer look at what she is actually doing here before checking in on Trump’s latest success in delaying his RICO trial for election interference in Georgia. We finish up with Thomas Takes the Bar Exam, in which Thomas  find out how he did in the strange case of the arsonist who doesn't understand how fire works before wagering his eternal soul on a new question about a sick violinist. Formal HHS recommendation that cannabis be moved to Schedule III (8/29/23) “Legalize it All,” Dan Baum, Harper’s (April 2016)(source of 1994 John Ehrlichman quote as personally recorded by the author) Gonzales v. Raich, 545 U.S. 1 (2005) The Cannabis Administration and Opportunity Act (2022 Senate bill removing marijuana from federal drug schedules and putting it under FDA regulation reintroduced by Chuck Schumer on 5/1/2024) Judge Cannon’s Order Setting Second Set of Pretrial Deadlines/Hearings (5/7/24) If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1030: Trump Trial, Week 2, Part 2! This episode centers around David Pecker's testimony and it's basically rock solid. Trump's attorneys are desperate, so Mr. Bove goes for the juggler! And then everyone has to explain it's actually "jugular" why in the world would you go for the "juggler?" Why would that be the idiom? In what world are jugglers like, crucial components of anything, at which you would want to go in order to really hurt someone or something? Maybe at circuses? They're arguably not even that important to circuses though, don't they just mess around in between way better acts to try to distract the audience a little? I just want to assure people that Matt had nothing to do with these show notes. He hasn't had a stroke or anything, don't worry. It's just that I, Thomas, now answer to NO ONE when it comes to Opening Arguments because.... SURPRISE SHOW NOTES ANNOUNCEMENT Andrew is completely out of OA! The legal bull shit is over! More details inside! If you would like to audition to read transcripts on the show in the future, go to https://openargs.com/audition and follow the directions there! If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1029: Trump Trial, Week 2, Part 1! Lordy, there are tapes! Our special coverage of People v. Trump continues, now with readings from Juilliard-trained, Tony-winning actors Thomas and Lydia Smith! (none of that is true except possibly our names.) Donald Trump is now the first U.S. President ever to be held in contempt of court. Exactly how criminal is "criminal contempt" in New York, and what does this mean for the rest of the trial? Also, Matt takes us on a fascinating mini-dive on the National Enquirer. It has a very interesting history you might not be familiar with. Then start getting into the trial fireworks. Much more to come! Probably at least 3 parts. 1) People v. Trump Transcripts 2) Justice Merchan's contempt order 3) AMI non-prosecution agreement If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

Episode 1028 Can a former President of the United States be prosecuted for trying to overturn a democratic election? The Supreme Court just spent two hours and forty minutes (!) hearing a case in which they were supposed to be reviewing this simple question and Donald Trump’s claims of total immunity. We review the last oral argument of this term and try to cut through the bad faith, irrelevance, and misdirection to understand what is actually happening here and where it all might be going. DC Trump indictment (8/1/23) Government’s brief in Trump v. U.S Trump’s brief in Trump v. U.S. CSPAN’S complete bookmarked SCOTUS oral arguments in Trump v. U.S. (4/25/24) If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

As the first week of the first criminal trial of a former President in U.S. history wraps up, we prepare for our special coverage of People v. Trump by stepping back to remember how we got here. Why is Donald Trump being prosecuted for paying off Stormy Daniels, anyway? Who are all of these people? How good is the prosecution’s case, really? And what can we expect from the defense?  We also answer a few patron questions about the trial, after which subscribers will enjoy a dramatic rendition of the best bit of this week’s gag order violation hearing: Trump attorney Todd Blanche’s struggle to convince the court that his client’s retweets are not, as a matter of law, endorsements.  PATRON EXTRA! Beginning now, Patreon subscribers will enjoy longer episodes with special bonus content as part of our special coverage of People v. Trump: Thomas and Matt’s readings from our  favorite parts of the daily trial transcripts. Subscribe at www.patreon.law/law for the good stuff! Indictment and Statement of Facts, People v. Trump (4/4/2023) New York jury instructions for Falsifying Business Records in the First Degree (NY Penal Law 175.10) Justice Merchan’s ruling on Trump’s Motion to Dismiss (2/15/24) Daily trial transcripts in People v. Trump If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

Episode 1026 The transcript is in! The first official written record from the first trial of a former President in U.S. history was just released hours before recording, and we dig in for a first look from the first full day of proceedings (Monday April 23rd) to find out which of the 45th president's many misdeeds the court ruled that prosecutors will be allowed to bring up during cross-examination. We also indulge in some dramatic readings of each party's opening statements, and discuss what we can learn from them about the Manhattan DA's case and Trump's defense to 34 felony counts of falsifying business records. Much more to come! We then check back on last week's round of Thomas Takes the Bar Exam to see how Thomas did on questions about a thieving magician and a lying philanthropist before turning to this week's challenge: an arsonist who doesn't understand how fire works. 1. People's Sandoval Notice filed 4/17/24 2. Transcript of proceedings in People v. Trump on 4/23/24 If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

Episode 1025 Today we take on two law stories the media have been getting wrong recently. 1) Did the Supreme Court just "end the right to protest in three states"? We go beyond the headlines to better understand Justice Sonia Sotomayor's denial of certiorari in a negligence suit brought against Black Lives Matter organizer Deray McKesson by a police officer injured during a BLM protest in Baton Rouge. 2) Biden's border. The impeachment of DHS Secretary Alejandro Mayorkas ended last week in the Senate before it ever began, but the lies, misinformation, and terrible reporting which fueled it are only getting worse. Matt breaks down what people who complain about Joe Biden's "open-border policies" are actually saying before getting into the facts. How do Trump's enforcement metrics compare to Biden's? How has a commitment to actually abiding by basic due process and our international and domestic obligations to people seeking protection for persecution been spun into "lawlessness at the border"? And what even are Biden's border policies anyway? 1) Justice Sonia Sotomayor's order denying certiorari in McKesson Doe (4/15/24) 2) Articles of impeachment passed by the House against DHS Secretary Alejandro Mayorkas (Dismissed by the Senate on 4/16/2024) 3) Data Show Trump Would Have Released as Many Border Crossers as Biden, David Bier, Cato Institute (1/5/2024) 4) The Biden Administration’s Humanitarian Parole Program for Cubans, Haitians, Nicaraguans, and Venezuelans: An Overview, American Immigration Council (10/21/2023) 5) 126 Parole Orders over 7 Decades: A Historical Review of Immigration Parole Orders, David Bier, Cato Institute (7/17/2023) If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

Episode 1024 We have a jury! The preliminaries are nearly complete in the first criminal trial of a former president in US history, and we take this opportunity to review what we know so far about the Manhattan DA's prosecution of Donald Trump for funneling hush money to Stormy Daniels three weeks before the 2016 election. How did they pick a jury so quickly? What is DA Alvin Bragg's theory of the case? Could "retweets are not endorsements" actually be a loophole to a gag order? The Supreme Court heard arguments Monday from one of the 350 January 6th rioters charged under a 2002 statute passed by Congress in the wake of the many crimes of Enron. How did Congress's attempt to close a loophole which made it legal for some corporate criminals to destroy evidence so long as they did it by themselves open the door to the prosecution of violent insurrectionists? Is there a new, secret meaning to the word "otherwise" that only lawyers know?  Is the Supreme Court really about to agree with the defendant that the words "obstructs, influences, or impedes any official proceeding [including in Congress], or attempts to do so" clearly do not apply to him--a person clearly on video violently attempting to obstruct, influence, and/or impede an official proceeding of Congress? We also consider the potential disruption to Jack Smith's DC prosecution of Trump, of which this statute is the basis for one of the four pending charges in that case. For the first time in U.S. history, articles of impeachment brought by the House have been dismissed by the Senate without a trial. Why was the impeachment of Department of Homeland Security Secretary Alejandro Mayorkas for doing his job in a way that Republicans didn't like (a.k.a. a "high crime" and/or "misdemeanor") so totally dead on arrival? We pay zero respects to what we can only hope will go down as by far the stupidest impeachment in the history of impeachments. (See OA bonus episode of 2/11/24 for our breakdown of the House's articles of impeachment). Meanwhile in Florida, Fort Pierce's finest (and only) federal judge has returned fire after Trump prosecutor Jack Smith had the untrammeled nerve to notice in writing that Fort Pierce's only federal judge really sucks at her job (see OA 1016 & 1020). Fortunately for everyone however, it turns out the only person responsible for her many mistakes is--Jack Smith?  1. 18 USC 1512(c) 2. Defendant/Petitioner Joseph Fischer's brief in Fischer v US 3. Government's brief in Fischer v. US 4. Audio and transcript from SCOTUS oral argument in Fischer v. US (4/15/24) 5. New York Penal Law 175.10 6. Judge Aileen Cannon's denial of Trump's motion to dismiss based on the Presidential Records Act & gratuitous reference to Jack Smith's complaints about her bizarre thought experiment re: jury instructions (4/4/2024) 7. Judge Cannon's order reconsidering her prior decision to unseal sensitive information in which she blames Jack Smith for letting her get the law wrong (4/9/24)  If you'd like to support the show (and lose the ads!), please pledge at patreon.com/law!

Last week's answers, this week's questions! If you'd like to support the show (and lose the ads!), please pledge at patreon.com/law!

April 15th marks two significant events in US history: the 11th anniversary of Tamerlan and Dzhokar Tsarnaev's bombing of the Boston Marathon, and the first day of jury selection in  the first criminal trial of a former US President. These two very different situations both share one important legal question: how do you select a jury from a city full of people who not only know a defendant by name but have good reasons to despise them? Boston residents Matt and Casey share their own memories of the day that changed their city forever before breaking down the trial of surviving bomber Dzhokar Tsarnaev and ensuing appeals of his death sentence to the 1st Circuit and Supreme Court. We examine why the U.S. publicly announced that it would not be reading Tsarnaev his Miranda rights, and debate whether or not the defense should have been allowed to introduce evidence during the penalty phase that Tamerlan Tsarnaev may have participated in a triple homicide two years earlier to prove his influence over his younger brother. What can Clarence Thomas's decision reinstating Tsarnaev's death sentence tell us about how Trump trial judges might handle jury selection? And what might be next following the 1st Circuit's recent findings on juror bias? 1) U.S. v. Tsarnaev indictment  2) Middlesex District Attorney's report on Watertown PD's shootout with the Tsarnaev brothers 3) 1st Circuit's decision vacating Dzhokar Tsarnaev's death sentence (7/31/2020) 4) Supreme Court decision reinstating Tsarnaev's death sentence  (3/5/2022) 5) Most recent 1st Circuit decision ordering further hearing on juror bias (3/21/2024)   If you'd like to support the show (and lose the ads!), please pledge at patreon.com/law!

Episode 1022 Courts in Arizona and Florida have both ended abortion rights in very different (but both terrible) ways this month. Did Arizona actually resurrect a 160-year law passed decades before it was even a state? And how weird can it get when you go full originalist on a law that is younger than most people in Florida? Before we get there, Matt opens by sharing his experience with the OJ Simpson trial at the age of 14 and how it shaped his understanding of US criminal law. We then make sure to pay appropriate respects to the violent domestic abuser who (do we even have to say "allegedly" anymore?) brutally murdered Nicole Brown and Ronald Goldman on June 12, 1994. Also, two different countries have committed extreme and unprecedented violations of international law involving embassies in the past week. How does the Vienna Convention protect diplomatic posts, and what actually happens when these international agreements are broken? The first of the Trump trials will finally begin in New York in one business day! How does jury selection even work in a case where everyone on the planet has an opinion about the defendant? 1) Planned Parenthood v Florida (4/1/24) 2) In Re: TW, 551 So. 2d 1186 (1989) 3) Planned Parenthood of AZ v. Mayes (4/9/24) 3) The Vienna Convention on Diplomatic Relations (1961) 4) Judge Merchan's letter to the parties in NY v. Trump outlining jury selection process If you'd like to support the show (and lose the ads!), please pledge at patreon.com/law!

As usual, we've got last week's answers and this week's questions! Some fun and tricky ones... If you'd like to support the show (and lose the ads!), please pledge at patreon.com/law!

Hey folks, due to an annoying technical glitch, I'm just re-releasing this episode. This was some weird backend problem with our hosting. The file looks completely fine everywhere that I can see, but internet goblins decide otherwise, I guess. Sorry for the trouble and I'll make sure this won't happen again! OA10121 On March 26, 2024 a container ship the size of the Eiffel Tower named for the world's most famous surrealist destroyed a bridge named after the author of the U.S. national anthem yards from one of the most notable sites of our country's least popular war. Who was Francis Scott Key anyway, and why has the man who gave the world the phrase "land of the free and the home of the brave" gotten a total pass for writing the world's worst national anthem while owning people and prosecuting abolitionists? We then honor the memories of the six Latino immigrants who lost their lives in this disaster by taking a closer look at the contributions of both undocumented and "lightly documented" workers to the U.S. economy, including the massive boost of more than $7 trillion that the Congressional Budget Office has predicted the so-called "border crisis" will bring in the coming years. But what about the most recent Republican "solution" to give the world's whitest and wealthiest a chance at the American Dream? Would Thomas be able to immigrate to the U.S. under Sen. Tom Cotton's RAISE Act? We end with a short cruise through maritime law and examine why the owners of the Dali are seeking protection under the same 209-year-old maritime law which was used to severely limit the liability of everyone responsible for the Titanic. 1. "Francis Scott Key Opposed 'Land of the Free,'" Jefferson Morley (2012) 2. Baltimore bridge collapse victims: New info on who they were – NBC4 Washington (3/28/24) 3. Baltimore Mayor's Office of Immigrant Affairs Key Bridge Emergency Response Fund  4. RAISE Act point system infographic  5. 20 Years Later, Undocumented Immigrants Who Aided 9/11 Recovery & Cleanup Efforts Demand Recognition | Democracy Now! (9/15/2021) 6. Oceanic Steam Navigation Co. v. Mellor :: 233 U.S. 718 (1914) (U.S. Supreme Court's application of the 1851 Limitation of Liability Act to the Titanic disaster) 7. Petition for Exoneration from or Limitation of Liability filed in federal court by the owners of the Dali (4/1/24) If you'd like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA10121 On March 26, 2024 a container ship the size of the Eiffel Tower named for the world's most famous surrealist destroyed a bridge named after the author of the U.S. national anthem yards from one of the most notable sites of our country's least popular war. Who was Francis Scott Key anyway, and why has the man who gave the world the phrase "land of the free and the home of the brave" gotten a total pass for writing the world's worst national anthem while owning people and prosecuting abolitionists? We then honor the memories of the six Latino immigrants who lost their lives in this disaster by taking a closer look at the contributions of both undocumented and "lightly documented" workers to the U.S. economy, including the massive boost of more than $7 trillion that the Congressional Budget Office has predicted the so-called "border crisis" will bring in the coming years. But what about the most recent Republican "solution" to give the world's whitest and wealthiest a chance at the American Dream? Would Thomas be able to immigrate to the U.S. under Sen. Tom Cotton's RAISE Act? We end with a short cruise through maritime law and examine why the owners of the Dali are seeking protection under the same 209-year-old maritime law which was used to severely limit the liability of everyone responsible for the Titanic. 1. "Francis Scott Key Opposed 'Land of the Free,'" Jefferson Morley (2012) 2. Baltimore bridge collapse victims: New info on who they were – NBC4 Washington (3/28/24) 3. Baltimore Mayor's Office of Immigrant Affairs Key Bridge Emergency Response Fund  4. RAISE Act point system infographic  5. 20 Years Later, Undocumented Immigrants Who Aided 9/11 Recovery & Cleanup Efforts Demand Recognition | Democracy Now! (9/15/2021) 6. Oceanic Steam Navigation Co. v. Mellor :: 233 U.S. 718 (1914) (U.S. Supreme Court's application of the 1851 Limitation of Liability Act to the Titanic disaster) 7. Petition for Exoneration from or Limitation of Liability filed in federal court by the owners of the Dali (4/1/24) If you'd like to support the show (and lose the ads!), please pledge at patreon.com/law!

Episode 1020! It's time for a round of Trump updates, starting in Florida with the responses to Judge Aileen Cannon's weird request that the parties try making up new law that she could try out on a jury if this case ever finally makes it to one. Is Jack Smith's response to this nonsense everything we'd wanted? And what happens when you actually try to sit down read anything that the Trump defense team has filed as if it were a serious legal document? We then turn to recent legal developments in New York, where a subprime auto lender has totally failed to post Trump's bond and Judge Merchan finally had to get around to putting in writing that the world's most famous criminal defendant isn't allowed to go after his family. 1. Trump's response to Judge Cannon's order 2. Jack Smith's response to Judge Cannon's order 3. 18 USC Sec 793 (Espionage Act) 4. Presidential Records Act 5. Trump's opposition to motion to clarify gag order 6. Judge Marchan's order expanding gag order 7. Judge MacAfee's denial of motion to dismiss Fulton County charges on 1st Amendment grounds If you'd like to support the show (and lose the ads!), please pledge at patreon.com/law!

Can you believe it, it's T3BE8! You know the drill, we answer last week's questions, honor two winners, and then ask two more questions! But Matt has a new bar exam book, and it's going to be quite fun, if these questions are any indicator. Deviously hard, needlessly complex, extremely silly... it has it all! If you'd like to support the show (and lose the ads!), please pledge at patreon.com/law!

Most criminal defendants can't kill 346 people and expect to get off with a light fine and three years of probation, but most criminal defendants are not The Boeing Company. In today's show, we examine the differences between different kinds of pretrial diversion agreements and why the best ones are reserved for ultra-wealthy defendants like Boeing and Jeffrey Epstein. We then take a closer look at the DOJ's routine use of deferred prosecution agreements to help our nation's most valued citizens (corporations) avoid the unpleasant inconvenience of facing actual consequences of their actions (killing people), with a special focus on the NPA which recently resolved Boeing's recent deadly fraud involving its 737 MAX. 1. Boeing Deferred Prosecution Agreement (1/7/2021) 2. "Nosedive: Boeing and the Corruption of the Deferred Prosecution Agreement," Prof. John C. Coffee (6/6/2022) 3. "Why Boeing pilot Forkner was acquitted in the 737 MAX prosecution,"| The Seattle Times (3/25/22) 4. "Blowing the Door Off Boeing’s ‘Epstein Deal’" - The American Prospect (2/9/24) 5. Fifth Circuit order dated 12/15/23 from In re Ryan et al confirming that courts have no authority to review a DPA and that families will have to wait to oppose any future motion to dismiss If you'd like to support the show (and lose the ads!), please pledge at patreon.com/law!

Episode 1018 - GOOD NEWS EPISODE! It's positive vibes only as we celebrate the impending disbarment of MAGA law toadies John Eastman and Jeffrey Clark, the first but-actually-for-real-this-time Trump trial date, and some extremely real threats to your favorite President's sacred First Amendment rights to lie to the public and terrorize the families of court personnel. In more good news, the Supreme Court couldn't seem to find an actual excuse to ban medical abortions this week--or even find anyone who could even claim to have been in the same ZIP code as someone harmed by mifepristone--so we take a good look for ourselves and don't find too much to worry about.  One more bit of good news: Matt wants to give you a job! (Inquire within.)  1. John Eastman's two-page proposal to overturn the results of the 2020 Presidential election 2. Judge Yvette Roland's full 126-page decision to the CA Supreme Court recommending John Eastman's disbarment (March 27, 2024) 3. Judge Merchan's gag order (3/26/24) 4. Trump's motion to dismiss GA charges on 1st Amendment grounds (12/23/2024) 5. Transcript of oral arguments in FDA v. Alliance for Hippocratic Medicine (March 26, 2024)  6. Federal judge Matthew Kacsmaryk's  mifepristone ruling (April 7, 2023) 7. Application of Comstock Act to Drugs That Can Be Used for Abortion (USPS General Counsel)(12/23/2022) 8) 18 U.S. Code § 1461 - Mailing obscene or crime-inciting matter (Comstock Act)   If you'd like to support the show (and lose the ads!), please pledge at patreon.com/law!