Opening Arguments

Latest Episodes:

The Hysterical Victimhood Complex of John Eastman Jan 08, 2025

Show notes

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!

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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The Lawyers Behind 1/6 Are Trying to Rewrite History. We Can't Let Them. Jan 06, 2025

Show notes

OA1108 - A Coup in Search of a Legal Theory

We commemorate the fourth anniversary of the January 6, 2021 insurrection by remembering the two elite lawyers who bear significant personal, moral, and legal responsibility for one of the single worst days in US political history. The bad-faith legal cover Kenneth Chesebro and John Eastman provided for the “Stop the Steal” movement in the months leading up to MAGA’s violent insurrection would ultimately result in nine deaths, hundreds of injuries, and the initiation of more than 1500 federal criminal cases--but Eastman and his MAGA allies are already trying to rewrite that history in front of us. We push back in this special episode, with more to come.

SS chief Reinhart Heydrich’s official memo authorizing and regulating the Kristallnacht “demonstrations” targeting the property of German Jews (11/10/1938)
January 6th House Select Committee’s final report (and supporting evidence)
Fake elector records submitted to the National Archives (via FOIA by American Oversight)
Cleta Mitchell email requesting that John Eastman write a memo for a “movement” which needs “Constitutional support” (11/5/20)
John Eastman’s first “draft” memo (12/24/20)
John Eastman’s second memo (early 2021)
Kenneth Cheseboro’s NY disbarment ruling (10/31/24)
Record of John Eastman CA disbarment proceedings
Kenneth Cheseboro December 9, 2020 memo
John Eastman’s speech at January 6, 2021 “Stop the Steal” rally
Jack Smith’s Motion for Immunity Determination (with complete supporting brief) in Trump v. US outlining all of the many ways that Trump knew there was no fraud in the 2020 election and the entire fake elector scheme
DC federal indictment of Donald Trump for conspiring to overturn the 2020 election (8/1/2023)

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SCOTUS Fast-Tracks TikTok Case; Trump Files Nonsense Amicus Brief Jan 03, 2025

Show notes

OA1107 - Chief Justice John Roberts has used his annual end-of-the-year report to remind us that federal judges should not accept luxury vacations from billionaires, fly insurrectionist flags on any of their properties, or ever be criticized for any reason. Or, you know--at least one of those things. We also answer a patron question about what happens if Republicans can't get their House in order by the time that electoral votes are supposed to be certified on January 6th before getting to today's main story: the very real possibility that TikTok may not live to see the first day of the second Trump administration if the Supreme Court allows current law barring it from doing business in the US to take effect on January 19th. How could the US government shutting down one of our nation's favorite new ways to communicate not constitute a massive First Amendment problem? Why did a majority of Congressional Democrats, the Biden administration and pre-election Donald Trump all agree that TikTok is a threat to national security? And when is Matt going to finally release his signature TikTok dance video? We answer two of these questions before dropping a quick footnote to look back on a stupid Congressperson's idea of a smart person's legal argument in support of overturning a democratic election.

DC Circuit decision in Tiktok v. Garland (12/6/24)
“What If Free Speech Means Banning TikTok?,” Alan Rozhenstein, The Atlantic (12/13/24)
Redacted transcript of U.S. intelligence briefing to House Energy and Commerce Committee on March 7, 2024 filed with DC Circuit
ACLU amicus brief in Tiktok v. Garland (12/27/24)
Donald Trump’s amicus brief in Tiktok v. Garland (12/30/24)
Protecting Americans From Foreign Adversary Controlled Applications Act (signed into law 4/24/24)
“2024 Year-End Report on the Federal Judiciary,” John Roberts (12/30/24)

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A Law for Christmas, and a Happy New Year! Jan 01, 2025

Show notes

OA1106 and T3BE53

The Law'd Awful Movies this month was so much fun, I wanted to give everyone the first ~30 minutes of it. After that, it's the usual Thomas Takes the Bar Exam answer to Q52 and the new Q53. If you are one of the lucky patrons who has already heard LAM1006, feel free to skip to 31:04.

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Lawrence Lessig Thinks the Supreme Court Will End SuperPACs Dec 30, 2024

Show notes

... and he might actually be right! Listen in and hear why.

OA1105 - Harvard Law professor and anti-corruption advocate Lawrence Lessig is almost certainly the only person on Earth to have had a personal relationship with both visionary hacker Aaron Swartz and former Supreme Court justice Antonin Scalia. We warmly welcome Professor Lessig back to OA to share--among many other things--his experiences with each of these very different people, why he remains optimistic about campaign finance reform going into the second Trump administration, and the originalist argument against Super PACs.

“Why They Mattered: Aaron Swartz,” Lawrence Lessig, Politico (12/22/2013)
They Don’t Represent Us: Reclaiming Our Democracy, Lawrence Lessig (2024)
Republic Lost: How Money Corrupts Congress--and a Plan to Stop It, Lawrence Lessig (2011)
Support End Super Pacs

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Rudy Giuliani Has Lost Everything, Including His Own Lawyers Dec 27, 2024

Show notes

OA1104 - America's Dismayor, and other great stories to help close out 2024 on a positive note!

Rudy Giuliani’s long, greasy slide from the heights of New York power seems to be ending in the same Manhattan federal courthouse in which he made his career as the US Attorney for the Southern District of NY. We take a closer look at the often hilarious lengths America’s former mayor has gone to in the past year to avoid paying the $148 million judgment he earned by casually defaming two hardworking Georgia election volunteers. Also discussed: why the House Ethics Committee decided to release its report on Matt Gaetz, Biden's commutation of 92% of the federal death row, and a legitimately good decision from the Supreme Court that we meant to talk about earlier. Finally, Matt drops a footnote with what he is promising will be the last time that he talks about fonts this year.

Freeman v. Giuliani docket
Giuliani’s written stipulation to making per se defamatory statements (7/25/23)
Judge Liman’s “turnover” order (10/22/24)
Judge Howell’s default judgment order (8/30/23)
Giuliani’s 55-page response to the plaintiff’s motion for sanctions (12/19/24)
The America First Warehouse (America’s Most Patriotic Venue)
U.S. v. Rahimi (June 21, 2024)
“Preferred Typefaces for Briefs,” Fourth Circuit Court of Appeals (12/9/24)

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If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

Ok, but Would AI Judges Really Be Any Worse? Dec 23, 2024

Show notes

OA1103 - Is human intelligence necessarily more rational and just than artificial intelligence? How involved should AI be in our law and government? Professor Aziz Huq of the University of Chicago School of Law joins for a fascinating conversation about everything from the “right to a human decision” to the dystopian terrors of Tinder.

“A Right to a Human Decision,” Aziz Huq, Virginia Law Review (2020)
“The Geopolitics of Digital Regulation,” Aziz Huq (2024)
“Chinese scientists develop AI ‘prosecutor' that can press its own charges,” Steven Chen, South China Morning Post (2021)

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Luigi Mangione Being Charged as a Terrorist Is Borderline Prosecutorial Misconduct Dec 20, 2024

Show notes

OA1102 - Why is the state of New York charging Luigi Mangione as a terrorist? And why have federal charges been filed in this case at all? We consider before moving on to try to locate any actual legal basis in the Georgia Court of Appeals decision removing Fulton County DA Fani Willis from the prosecution of Donald Trump and his alleged conspirators in Georgia. Finally, we dig into 11th Circuit judge Kevin Newsom’s surprisingly defensible argument that judges and lawyers should occasionally consult with ChatGPT, and Matt drops a footnote involving judges being weird about food.

New York indictment of Luigi Mangione (12/18/24)
Federal indictment of Luigi Mangione (12/19/24)
People v. Ferhani, 966 N.Y.S.2d 348 (2012)
Georgia Court of Appeals decision removing Fani Willis from Trump’s GA case (12/19/24)
Snell v. Specialty Insurance Corp, 11th Cir. (5/28/2024)(Newsom, J., concurring)
U.S. v. Deleon, 11 Cir. (9/5/2024)(Newsom, J., concurring)
Judge Proctor’s order in McCuller v. Koch (11/26/24)
Ohio Supreme Court’s decision in Berkheimer v. REKM (7/25/24)
Ohio Supreme Court’s decision denying reconsideration in Berkheimer v. REM(12/9/24)

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Pete Hegseth Is Finally Going to Make the US Military Less Woke Dec 18, 2024

Show notes

OA1101 - You know... that super woke institution... the US Military... well, NO LONGER! Trump's man for the job is a real piece of work. And if you don't believe us, take it from his own mom. As usual, Lydia gives us the doozy breakdown, and also how Hegseth fits right into the Project 2025 design.

Then, it's T3BE 52!

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Mass Deportation Is Much Harder Than Trump Thinks Dec 16, 2024

Show notes

OA1100 - Donald Trump’s promises of “mass deportation” have been dominating the headlines, but what do we actually know about what the coming administration is planning--and who should actually be concerned? Matt explains how immigration enforcement actually works in practice under the current system, including its current practical and logistical limitations. We then break down the ways that Trump has told us that he intends to subvert or get around the existing system and the law (or lack thereof) behind these unprecedented proposals before ending with some ideas for how you can help to prepare to stand up to mass enforcement actions in your community.

Watch our new video on how Joe Biden can go out a legend!!!