Opening Arguments

Latest Episodes:

Benjamin Netanyahu: International Fugitive? May 24, 2024

Show notes

OA1035

A second Alito flag has hit the news, we have election results out of Fulton County, and the jury is nearly out in Donald Trump’s New York criminal trial. Matt also answers patron questions about how things could go wrong with the jury between now and the verdict, as well as why juries everywhere are so rarely sequestered anymore.

After a brief detour past a very important class-action suit against Hershey’s for the insufficient jauntiness of its Halloween candy, we turn to our main story: International Criminal Court prosecutor Karim Khan’s application for arrest warrants to be issued against leaders of both Hamas and Israel. How does The Hague have jurisdiction to prosecute the prime minister of a country which has flatly refused to recognize its authority--or, for that matter, Palestinians who carried out the attacks of October 7, 2023 in the territory of that same country? Matt explains the background and recent history of humanity’s first standing international criminal tribunal as we consider what this moment means for Israel, Palestine, and the world.

Complaint in Cynthia Kelly v. Hershey (Reese’s lawsuit)
ICC expert panel findings re: investigation into “The Situation in Palestine” (5/23/2024)
ICC prosecutor Karim Khan’s application for arrest warrants for leaders of Hamas and Israel (5/20/24)
Christiane Amanpour interview with ICC prosecutor Kamir Khan (5/20/24)

There's a new episode out on www.patreon.com/gavelpod!

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Why Is Alito Like This May 20, 2024

Show notes

OA 1034

With the recent news that a sitting Supreme Court justice was publicly displaying support for Trump’s attempted coup in the days between January 6, 2021 and Joe Biden’s inauguration, it’s time to ask: Is Samuel Alito actually worse than our very low opinion of him? Also who could have possibly known that a hard-right Reagan/Buckley conservative who has been publicly advocating for ending abortion rights since 1985 would turn out to be the ultra-right Trump/Scalia conservative who ended abortion rights in 2022? We take these questions on after a quick look at the latest low point in Rudy Guiliani’s long, steep, and often hilarious fall from grace. (N.B.: there’s so much more to talk about here than we could possibly fit into an hour, we didn’t even get to his awful decisions on the death penalty, among many other things.)

Finally, we learn the answer to last week’s T3BE question and consider the multifarious liabilities of stocking a private lake full of piranhas.

Alito’s 1985 memo with strategies for overturning Roe v. Wade
Alito’s 1985 job application to the Office of Legal Counsel
Doe v. Groody, 361 F.3d 232 (3rd Cir. 2004)(Alito dissent in qualified immunity case involving strip search of a 10-year-old girl)
A Tiger on the Court: Sam Alito ‘72 at Princeton, Princeton Alumni Weekly (March 8, 2006)
Justice Samuel Alito: ProPublica Misleads its Readers, Wall Street Journal (6/20/23) (Alito op-ed)
Samuel Alito, the Supreme Court’s Plain-Spoken Defender, Wall Street Journal (7/28/23) (editorial drawn from 4 hours of interviews with Alito)

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!

Liz Warren's CFPB Saved By... Originalism? May 17, 2024

Show notes

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!

Steve Vladeck's Taxonomy of Court Reform May 13, 2024

Show notes

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!

Cannabis Rescheduling; Judge Cannon Stops Trump Trial May 10, 2024

Show notes

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 wrongdirection 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)

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Trump's Attorney Fails To Impeach Witness So Badly He's Forced To Apologize May 06, 2024

Show notes

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!

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Judge Merchan: I Have Nothing BUT Contempt for This Trump May 03, 2024

Show notes

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!

Just How Bad Were the Oral Arguments Re: Presidential Immunity? Apr 29, 2024

Show notes

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.

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

Your Guide to The People v. Trump Apr 26, 2024

Show notes

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!

The Trump Trial Is On, and Lordy There Are Transcripts! Apr 24, 2024

Show notes

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

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