Versus Trump

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Latest Episodes:

2017 Scorecard Jan 04, 2018

Show notes

On the first episode of Versus Trump of 2018, Jason and Charlie look back at Versus Trump cases in 2017 and score them as Administration wins, losses, or not-yet-decided. They also look ahead at big issues to come in 2018.Charlie and Jason begin the discussion by evaluating the cases that fall in the "big case" bucket: litigation involving the Muslim Ban, the Emoluments Clause, military service by transgender people, the revised contraceptive mandate, and the attempt to revoke funding from sanctuary cities. Charlie and Jason score those cases as one Administration win, though with an appeal coming (Emoluments Clause); a clear Administration loss (transgender service); two Administration losses, though with an appeal or potential appeal (contraceptive mandate and sanctuary cities*); and one "it's complicated" (Muslim Ban). They then move on to other cases and issues discussed on the podcast in 2017. Finally, they look at the big picture and speculate about what the lessons of 2017 will mean for litigation in 2018.Also, thanks to all of the listeners who responsed to our holiday t-shirt offer. While that offer is now closed, stick with us in 2018 for more Versus Trump analysis and, maybe, another giveaway down the line.You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com.* On sanctuary cities, we inititally goofed and said that Administration did not appeal. In fact, they did appeal, as we say in our last-minute insert. Sorry for the confusion!

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Judges of Christmas Future Dec 21, 2017

Show notes

On this week’s Versus Trump holiday spectacular, it's all judges, all the time. Charlie, Jason, and Easha take a closer look at a number of the President's judicial nominees—confirmed, pending, and withdrawn—to examine what might happen to Versus Trump cases in years to come.Charlie, Easha, and Jason begin the discussion with a quick overview of the structure of the federal court system and talk about the importance of Trump's nominations to the Court of Appeals and District Court. Charlie then starts off the discussion of individual judges by talking about confirmed appellate judges Joan Larsen and Stephanos Bibas, whom Charlie believes are fairly mainstream conservatives. Jason then brings up Matthew Peterson, a district court nominee who withdrew after being unable to answer basic questions about trial court procedure. Next, Easha offers up commentary on the confirmation process of former Notre Dame Law Professor Amy Barrett, before the group turns to the other two withdrawn nominees, Jeff Mateer and Brett Talley, and compares them to several other judges whose confirmations appear to be going smoothly. They end the episode with their big takeaways from the first year of nominations.There's also a surprise holiday offer to our listeners at the end of the episode. You can direct message us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com if you'd like to respond.

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#MeToo Versus Trump Dec 14, 2017

Show notes

On this week’s episode of Versus Trump, Charlie, Jason, and Easha talk about a defamation lawsuit brought by Summer Zervos, a woman who alleges that she was sexually assaulted by President Trump in a hotel room in 2007. Charlie, Easha, and Jason begin by discussing the facts in the lawsuit and then [at 5:00] quickly move to the first reason that President Trump has asked the court in New York to dismiss the case: the sitting President cannot be sued in state court. That leads to some deep cuts about the relationship between federal and state power [at 13:00] and then a wonky discussion [at 26:30] of how California's so-called Anti-SLAPP statute works and why Zervos may have been trying to avoid it. They then turn [at 32:30] to the President's second argument, which is that the statements calling Zervos a liar were protected by the First Amendment because they were made in the context of a political campaign.No Trump Nuggets this week, but stay tuned for the big end-of-year recap, coming soon!Please share or provide feedback, and rate us in iTunes. You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com.

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Versus Trump: Trump Versus Anti-Discrimination Laws (with guest Joshua Matz) Dec 07, 2017

Show notes

On this week’s episode of Versus Trump, Charlie, Jason, and Easha are joined by Take Care publisher Joshua Matz to talk about the Masterpiece Cake Shop oral argument, plus the status of Muslim Ban litigation and the future of Take Care. On Tuesday, the Supreme Court heard argument in the Masterpiece Cake Shop case, which presents the question of whether a baker in Colorado may refuse to create a wedding cake for a same-sex wedding even though Colorado prohibits retailers from discriminating on the basis of sexual orientation. Joshua Matz, who filed an amicus brief in the case in support of the same-sex couple, joins the podcast to help break down the argument. They talk first about the involvement of the Trump Administration and whether its legal position withstood questioning at the argument. They then analyze both the free speech and free exercise issues in the case, and they make some perhaps unexpected predictions about what the decision might be and how far its legal rule might reach.Next, just minutes after the Ninth Circuit heard oral argument in a case about Muslim Ban 3.0, Joshua and Easha offer some quick takes on what happened there and what the Supreme Court's recent denial of a stay portends. Finally, Joshua discusses the past and future of Take Care.As usual, you can listen online below, and subscribe here with any podcast player or here in iTunes.Please share or provide feedback, and rate us in iTunes. You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com. LinksThe oral argument transcript in Masterpiece Cakeshop is here. The oral argument audio will be posted here on December 8, 2017.Additional Take Care commentary on the case is here.

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Trump The Trustbuster (Interview with Lina Khan) Nov 30, 2017

Show notes

On this week’s episode of Versus Trump, Charlie has an interview with antitrust expert Lina Khan, Director of Legal Policy of the Open Markets Institute, about the lawsuit filed by the Trump Administration to block the proposed AT&T/Time Warner merger. Charlie and Lina first discuss the background of antitrust law and the mechanics of how the Department of Justice reviews mergers for antitrust concerns. Lina then explains the difference between vertical and horizontal mergers and explains why vertical mergers like the one here are typically not a major antitrust concern. They then get into the nitty gritty of this deal and discuss why the communications sector is unique, why this deal may be problematic, and whether this lawsuit may have been motivated by the President's expressed animus toward CNN, which is owned by Time Warner. They end with a discussion of whether it's valid to oppose the Administration's actions on the grounds that DOJ is doing the right thing for the wrong reasons.Please share or provide feedback, and rate us in iTunes. You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com.

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Borderline Searches + Response to First Mondays Nov 16, 2017

Show notes

On this week’s episode of Versus Trump, Jason and Charlie discuss a new lawsuit that forces courts to answer the question of whether the federal government needs a warrant to search people's cell phones and other electronic devices at the border, and they also [at 32:30] respond to a discussion on the Supreme Court podcast First Mondays regarding the government's recent filing in the Hargan v. Garza abortion case.First, Jason and Charlie tackle border searches of cell phones and laptops by discussing a new case filed by the ACLU and Electronic Frontier Foundation called Alasaad v. Duke. The case was recently filed in Boston on behalf of several individuals who had their electronic devices searched when they returned to the U.S. from oversees. As Jason and Charlie note, the policies authorizing border searches without a warrant, probable cause, or even reasonable suspicion of a crime were put in place in 2009 under President Obama—but the number of people whose electronic devices have been searched at the border has risen dramatically since President Trump took office. Jason and Charlie analyze whether the policy is constitutional and try to predict what rule a court might adopt to put some limits on these searches.After that [at 32:30], Jason and Charlie return to the noteworthy case of Hargan v. Garza. The federal government recently filed a much-discussed Supreme Court petition that accused the ACLU of misconduct in a case that ultimately resulted in an undocumented immigrant obtaining the abortion she sought. Jason and Charlie disagree with the view articulated in the most recent episode of First Mondays, in which the hosts said that the government's petition presented a potentially close case on the misconduct issue, and also argued that the lawyers who signed the petition must subjectively have thought there was serious attorney misconduct. If you've been following the debate over this filing, you'll definitely want to tune in for Jason and Charlie's views.Please share or provide feedback, and rate us in iTunes. You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com.

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Updates, Y'all! Nov 09, 2017

Show notes

You want updates, so we've got updates! We begin [at 1:50] with the very unusual goings-on in a case everyone thought was over: the Jane Doe litigation over access to abortion while in immigration detention, a case now called Hargan v. Garza. We then turn [at 13:00] to litigation involving the ban on military service by transgender individuals. Next up [at 21:00]: the Muslim Ban, which is now on version 3.0. After that, [at 25:00] we turn to deeper cuts, and update you on the progress of a lawsuit by the National Venture Capital Association about a rule called the "International Entrepreneur Rule," and then we update another lawsuit Trump's inciting violence at a campaign rally [at 29:00]. Finally, we have our third—and final?—edition of Sam Clovis watch [at 32:00] and end with a response to a listener question about referring to Senators in the Federal Register [at 38:00]. Phew.Please share or provide feedback, and rate us in iTunes. You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com.

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The First Shoe (with guest David Sklansky) Nov 02, 2017

Show notes

On this week’s episode of Versus Trump, Jason, Charlie, and special guest Professor David Sklansky discuss the first shoe to drop from the Mueller investigation: the indictment of Paul Manafort and Rick Gates, and the guilty plea of George Papadopoulos. We begin [at 2:00] by describing the legal charges and the key factual takeaways from the charging documents. We're then [at 11:00] joined by Stanford Law Professor and former federal prosecutor David Sklansky to go in-depth on several key issues. We talk with David about the timing of the indictment and the guilty plea, whether Papadopoulos may have been an undercover cooperator, whether Manafort has any viable defenses or could plead guilty, and whether Mueller's job may be in jeopardy at some point down the road. Finally, Charlie and Jason resume their analysis [at 27:10] with a deep-cuts discussion of what these charges say about pretexutal prosecutions, and why Manafort is on house arrest while awaiting trial but many low-levels offenders around the country are not.Please share or provide feedback, and rate us in iTunes. You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com.

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Emergency Pod: JD v. DHS Oct 26, 2017

Show notes

On today's episode, Easha and Charlie discuss an ongoing—wait, just now resolved—case filed by a pregnant 17-year-old girl in federal immigration custody who seeks an abortion. Easha and Charlie first talk about the procedural wrangling that this case has wrought and second about the legal claims in the case, which bring them into the exciting worlds of reproductive rights, immigration law, and international relations. Listen now!

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Pardon Our Tone Oct 19, 2017

Show notes

On this week’s episode of Versus Trump, Easha, Jason, and Charlie discuss the President's pardon of Sheriff Joe Arpaio and the (so far unsuccessful) legal challenge to that pardon.The discussion begins with a quick discussion of why Arpaio was charged with criminal contempt in the first place, and how several outside organizations are trying to contest the validity of the pardon by asking the district court not to dismiss the case against Arpaio. Easha then [at 6:00] gives us an overview of the law regarding the scope of the President's power to pardon those individuals charged or convicted with federal crimes, and Charlie explains [at 10:00] what contempt is and why it may be a special kind of federal crime outside the president's pardon power. Jason, however, doesn't buy it, and a debate ensues. The discussion then turns [at 25:00] to other theories for why the pardon may not have been lawful, and there proves to be more agreement there. Finally, the group turns [at 36:00] to what's next in the case, including a potential appeal of the trial court's decision to give effect to the pardon and dismiss the criminal case, and whether the president can prospectively pardon his associates. The episode ends with a couple of Trump nuggets about Governor Brown's veto of a bill we discussed a few weeks ago and a brief mention of the decision on Muslim Ban 3.0.Please share or provide feedback, and rate us in iTunes. You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com.

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