Versus Trump

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Latest Episodes:

N.Y. Versus Wilbur Ross Oct 11, 2018

Show notes

On this week's episode of Versus Trump, Jason and Charlie talk about the fight over Commerce Secretary Wilbur Ross's potential testimony in an important lawsuit over the census.

They start the conversation by discussing the background of the high-profile lawsuit by New York and other states over the addition of a question about citizenship status on the census. This brings them to why Commerce Secretary Wilbur Ross has been ordered to testify—basically, because his reasons for adding the question are critical and he has given inconsistent public explanations on the issue—and what the Trump Administration has said in appeals attempting to block it. That leads to an extended discussion about whether this may be Justice Kavanaugh's first controversial decision as a Justice and what we might think about that.

Note: As of the time of the recording, the Second Circuit had OK'd the deposition with a delay for the Supreme Court to act; since then, the Supreme Court delayed the depositions further but has not yet acted on the merits of the government's request.

You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com. You can buy t-shirts and other goods with our super-cool logo here.

Notes

The latest update from the Supreme Court is here, as recounted by Josh Gerstein at Politico.
DOJ's Second Circuit petition (and addendum) is here; New York's response is here; the DOJ's reply is here.
The Second Circuit's Tuesday order is here.

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Trump Versus Net Neutrality Oct 04, 2018

Show notes

On this week's episode of Versus Trump, Jason and Charlie talk about the Trump Administration's lawsuit against California that would block California's new net neutrality law from going into effect.

They start the conversation by discussing what net neutrality is and what the Obama Administration did in 2015 to put net neutrality rules into effect. They then discuss the Trump Administration's 2018 repeal of the Obama rules, which lead to California's attempt to reinstate the Obama-era rules at the state level. The Trump Administration now claims California's rules are invalid, and on a minor point, Jason and Charlie agree the Trump Administration is right: in particular, they conclude that California has jumped the gun and will likely need to wait for a massive appeal in D.C. to finish before the state can put its own rules into effect. But Jason and Charlie are skeptical of the Trump Administration's underlying rationale that the federal government can forever fail to impose net neutrality rules and simultaneously block California from passing its own rules.

You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com. You can buy t-shirts and other goods with our super-cool logo here.

Notes

DOJ's page on the lawsuit is here. The government's preliminary injunction motion is here, and its Complaint is here.
The D.C. Circuit brief of Communications Law Professors that they discuss is here.
Charlie mentioned at the end an article in Current Affairs about Kavanaugh. That's here.

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Versus Trump: The Unique Manafort Plea Sep 27, 2018

Show notes

On this week's episode of Versus Trump, Jason and Charlie talk about pardons, Double Jeopardy, forfeiture, and the Manafort guilty plea. They also weigh in on the Kavanaugh developments and what would happen if Rosenstein were fired.

They start the conversation by discussing the details of Paul Manafort's guilty plea. Charlie then answers a lot of Jason's questions about why Manafort might have entered into the deal, what he gave up, and what might happen if Manafort were pardoned. They then discuss the plea in the context of criminal justice reform in general. Finally, Jason and Charlie offer brief thoughts about Judge Kavanaugh and Rod Rosenstein.

You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com. You can buy t-shirts and other goods with our super-cool logo here.

Notes

Josh Gerstein's Politico article about the guilty plea is here.
The plea agreement is here.

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Earthjustice v. Trump (Interview with Drew Caputo) Sep 20, 2018

Show notes

On this week's episode of Versus Trump, Jason and Charlie speak with Earthjustice Vice President Drew Caputo to get an update on environmental litigation against the Trump Administration.

They start the conversation by talking about Earthjustice's work and about why the organization has 105 cases—and counting—against the Trump Administration. They then dive into a few specific cases Earthjustice is working on: litigation regarding Trump's removal of land from two national momuments in Utah (now pending); regarding the Administration's decision to take Grizzly Bears off the endangered species list (pending, but Earthjustice received a TRO blocking the legal hunting of the bears); and regarding the Administration's decision not to ban the pesticide Chlorpyrifos (a decision the Ninth Circuit recently reversed). They then talk about big picture themes and wonder why the EPA's decisions have been so vulnerable to legal challenge and why, in Drew's view, the agency has been so captured by industry.

You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com. You can buy t-shirts and other goods with our super-cool logo here.

Notes

You can read about all of Earthjustice's lawsuits here.

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The Power's Out. Literally. Sep 13, 2018

Show notes

On this week's episode of Versus Trump, Jason gives a quick update on a case we're watching and then signs off, because, well, in the middle of recording this week's episode, Charlie's power went out. But we'll be back next week with a full show.

You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com. You can buy t-shirts and other goods with our super-cool logo here.

Notes

The Sixth Circuit's decison in the case determining whether Trump could be held liable for incitement of violence at a 2016 rally is here.

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How Bad Is It? Sep 06, 2018

Show notes

On this week's episode of Versus Trump, Jason and Charlie ask the question that so many of us ask frequently: how bad is the Trump Administration? Is it better or worse than we should have expected back on election night in 2016?

Jason starts the episode by laying out the questions for discussion: from the perspective of one who tends to lean Democratic, how bad is the Trump Administration? Is Trump better or worse than a generic Republican president would have been? And what role have the Versus Trump cases played here?

Jason and Charlie seem to agree that lawsuits against the Trump Administration have managed to block a remarkable amount of policy, in part because members of this Administration make unusually provactive public statements and are relatively inattentive to policy and administrative law. Jason thinks progressives should take comfort in the relative stability of American domestic policy and the strength of American institutions, and realize that Trump's outrageous statements and personality are mostly bluster without a meaningful effect on people's lives. Charlie finds the harm done by Trump's racist attitudes, personal conflicts, and rampant lying to be potentially very grave, though admittedly hard to weigh against the more objective measures Jason prefers to focus on.

You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com. You can buy t-shirts and other goods with our super-cool logo here.

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A Two-Level Versus Trump Case Aug 30, 2018

Show notes

On this week's episode of Versus Trump, Jason and Charlie talk about a case that fits our podcast on two levels: it's a lawsuit against the Trump Administration about grand jury secrecy, and any decision could impact the Mueller investigation, which is the biggest Versus Trump case of them all.

The two start the discussion by going back over 50 years to the unsolved disappearance of Columbia University Professor Jesus Galindez. No one was ever charged or convicted of any crime, but a grand jury was convened to hear evidence, and researcher and plaintiff Stuard McKeever wants those secret records unsealed. The Trump Administration, in a case to be heard soon by the D.C. Circuit, opposes the unsealing request on the ground that federal courts do not have any power to unseal grand jury records outside of very narrow exceptions. If the court adopts the Trump Administration's view, it will not only go against the understanding of most other courts to have looked at the question, but some commentators think it could also affect whether the press could ever see the grand jury evidence that Mueller is creating in his investigation. Jason and Charlie discuss whether they think the Trump Administration will prevail and whether it really could affect what we find out about the Mueller investigation.

You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com. You can buy t-shirts and other goods with our super-cool logo here.

Notes

The Politico article by Josh Gerstein that linked this case to the Mueller investigation is here.
The briefing is not online at a public location, so we've uploaded the briefs for those interested:
McKeever's opening brief.
Opening brief of amicus supporting McKeever.
DOJ brief.
McKeever's reply brief.
Amicus reply.

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Versus Trump: Trump Versus Facebook Aug 23, 2018

Show notes

On this week's episode of Versus Trump, Jason and Charlie talk about an unusual and surprising case where the Trump Administration has filed a brief in support of fair housing advocates who have sued Facebook for its part in enabling discriminatory advertising.

The two start the discussion by briefly explaining Facebook's data collection and advertising practices and the way that they allegedly fun afoul of strict provisions preventing discriminatory housing advertisements. They then discuss the Trump Administration's surprising recent filing that offers full-throated support to the housing advocates' claims of discrimination. That leads to two questions: is the Trump Administration right, and why are they doing this? Ultimately, the two both give credit where it's due.

You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com. You can buy t-shirts and other goods with our super-cool logo here.

Notes

The Administration's Statement of Interest in National Fair Housing Alliance v. Facebook is here.
The Complaint in the case is here. Facebook's Motion to Dismiss is here.
Charlie mentioned an article of his about the use of race in admissions. It's this one.

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SABOTAGE!! Aug 16, 2018

Show notes

On this week's episode of Versus Trump, Jason and Charlie begin their run of shows with Easha on leave and discuss a fascinating new lawsuit contending that the Trump Administration is unconstitutionally "sabotaging" the Affordable Care Act as a whole.

Jason starts the discussion by explaining the case of City of Columbus v. Trump, which was brought by several cities and individuals who contend that the Aministration's actions over the last several years amount to an unconstitutional sabotage of a law the President is required to execute faithfully. As Jason explains, the suit has two claims: one a traditional claim that the Administration is acting arbitrarily, and the second a unique claim that the President is violating the "Take Care" Clause of the Constitution (blog synergy alert!). They then get into a lengthy discussion about the meaning of the Clause, whether such a suit could be viable, and whether the allegations here make out a potential violation.

You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com. You can buy t-shirts and other goods with our super-cool logo here.

Notes

A non-profit organization called Democracy Forward is behind this case. Their case page is here. The Complaint is here.
Jason mentioned an article called The Protean Take Care Clause, by Harvard Law Professors John Manning and Jack Goldsmith. That article is here.
Law Professors Abbe Gluck and Nick Bagley had an op-ed in the New York Times contending that Trump's "sabotage" of the Act is illegal. It's here.
Charlie insisted that we link to the video for the Beastie Boys song "Sabotage." It's here.

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Versus Plastic Guns Aug 09, 2018

Show notes

On this week's episode of Versus Trump, Jason, Charlie, and Easha—in her last episode for several months—discuss the fast-moving lawsuit by states against the Trump Administration and Cody Wilson seeking to block distribution of plans for 3D-printed guns.

Charlie starts the discussion by explaning the background of the dispute, which actually dates back several years to a lawsuit brought by Wilson, the would-be distributor of these plans, against the Obama Administration. The Obama Administration successfully blocked the plans' distribution, and the Trump Administration defended that position until a recent settlement that would have permitted the distribution as of August 1. Jason then turns to the current lawsuit brought by many blue states that seeks to stop the settlement from going into effect and has resulted in a temporary block on Wilson's website. The trio discuss the administrative and constitutional law aspects of the dispute. They then say goodbye to Easha by thinking about the big topics she'll miss while she's gone.

You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com. You can buy t-shirts and other goods with our super-cool logo here.

Notes

The States' first amended complaint in the new case is here.
The court's order granting the TRO is here.
Really nice articles covering the entire dispute at CNET are here and here.
Jason mentioned a letter to the court from Wilson's lawyer. That's here. The Reason blog post by Brian Doherty discussing that letter is here.
Charlie mentioned this Doug Herzog law review article.

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