Opening Arguments

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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 takes up these questions and many more as we find reasons both for concern and for hope.

“Ensuring Accountability for All Agencies,” (2/18/25)

“Interrogating the Historical Basis for a Unitary Executive,” Daniel D. Birke, Stanford Law Review (Jan. 2021)

Professor Katie Eyer (Rutgers Law bio)

Anti-Transgender Constitutional Law, 77 Vanderbilt L. Rev. __ (2024) (forthcoming)

Transgender Constitutional Law, 171 U. Pa. L. Rev. 1405 (2023)

Bostock v. Clayton County, 590 US ___ (2020)

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OA1127 + T3BE59!

Our breakdown of the Thursday Night Massacre continues, with Liz Skeen. Then, it's T3BE time!

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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 criminal case against New York City Mayor Eric Adams (2/12/25)

Acting Deputy Attorney General Emil Bove’s response to Danielle Sassoon’s letter (2/13/25)

Former Assistant US Attorney Hagan Scotten’s letter of resignation (2/14/25)

DOJ’s Rule 48(a) motion seeking to dismiss all pending charges against Eric Adams (2/14/25)

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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 “worst of the worst”? And just where exactly is the “Gulf of America” anyway? These and other questions from the week’s news are answered within.

Memo from AG Pam Bondi outlining DOJ enforcement priorities (2/5/25) 

RI federal judge’s order finding Trump administration in violation of his previous injunction against the federal spending freeze (2/10/25)

“Air Jordan Tattoo Prompts ICE to Send Venezuelan Migrant to Guantanamo Bay,” Pablo Manriquez, Migrant Insider (2/9/25)

“First They Came For the Venezuelans,” Matt Cameron, DEPORTNATION (2/12/25)

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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.

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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)

Insurrection Act of 2024 (IA updates proposed by Democrats)

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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)

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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!

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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 in Civil Contempt and Impose Sanctions,” Ruby Freeman & Wanshae Moss v. Rudolph W. Giuliani (12/19/2024)(SDNY)(today’s reading)

Plaintiff’s summary judgment brief (10/2/24)

Plaintiffs’ request for sanctions (10/29/24)

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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 Refugee Assistance Project (Fall 2024)

Trump Litigation Tracker, Just Security (2025)

Bigfoot-Ordinance-69-01.pdf (Skamani County)

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