Van Buren v. US and Amy Coney Barrett’s So-So Textualism

OA1220 - What’s an FBI agent to do when a notorious low life reports a local cop is asking for a bribe? Turn him into a confidential information of course, and see how far you can get that dirty cop to go. A tale of two assholes, steadily making each others’ lives worse and worse, while one is wearing a wire. Now, why does the Supreme Court care about any of this? Half the conviction hinges on whether this cop “exceeded authorized access” under the Computer Fraud and Abuse Act (CFAA), and no one can agree what that means… including your cohosts. Hear Thomas try to figure out why Amy Coney Barrett is so obsessed with the definition of the word “so”, and Jenessa… defend Clarence Thomas?! This case is a hot mess, but the good news is everyone sucks here and no one wins. The relevant language: “The Act subjects to criminal liability anyone who “intentionally accesses a computer without authorization or exceeds authorized access,” and thereby obtains computer information. 18 U. S. C. §1030(a)(2). It defines the term “exceeds authorized access” to mean “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” §1030(e)(6).” Barrett’s ruling: “In sum, an individual “exceeds authorized access” when he accesses a computer with authorization but then obtains information located in particular areas of the computer—such as files, folders, or databases—that are off limits to him.” Van Buren v. United States, 593 U.S. 374 (2021) United States v. Van Buren, 940 F.3d 1192 (11th Cir. 2019) Full text of the CFAA: 18 U.S.C. § 1030 Check out the OA Linktree for all the places to go and things to do!

OA1219 - This year we are celebrating Boxing Day by not doing whatever people are supposed to do on Boxing Day and talking about weed instead. Did Donald Trump really just finish out 2025 by doing something good for US drug policy? We hotbox some Time Machine to revisit Matt’s analysis from last May of Joe “Grandaddy Purple” Biden’s announcement that he was initiating the long process to have the federal government to reclassify OG Kush from its current legal status as Green Crack down to the same category as metabolic steroids. We then return to the present to check in on the weirdly unreported story on how Biden’s efforts went from Blue Dream to Trainwreck in the year after his big announcement before evaluating Trump’s chances of turning cannabis policy Panama Red.  Finally, in a seasonal footnote Matt shares the story of how the city of Boston fired the first shots on the War on Christmas… in 1659. Biden DOJ's analysis of legal questions around plans to redesignate cannabis to Schedule III “Increasing Medical Marijuana and Cannabidiol Research,” The White House (12/18/25) “The Penalty For Keeping Christmas,” Archive.org (Boston, 1659)

E18 - Congress required the Department of Justice to release (nearly) everything it had from the investigations into Jeffrey Epstein and Ghislaine Maxwell by December 19th, so of course they pretended to do that on time on Friday afternoon and then waited until everyone was just about to start heading home for the holidays before actually dumping 30,000 pages of anything resembling actual substance into the record on Tuesday morning. We review and discuss new revelations on how much more time Trump spent on Epstein’s plane than we ever knew, the 30-year-old FBI report that could have changed everything, the astonishing correspondence between the prosecution and the Epstein defense team throughout his 2008 plea negotiations, and so much more. You can also watch this episode on YouTube! The Epstein Files Transparency Act  Epstein Files database (Camaron Stephenson) DOJ Office of Professional Responsibility report on Epstein plea negotiations (NOV. 2020) Maria Farmer's 1996 report to the FBI Opinion and Order from Judge Kenneth Marra in Jane Doe cases summarizing DOJ’s failure to advise Epstein survivors of the 2008 Non-Prosecution Agreement and plea Check out the OA Linktree for all the places to go and things to do!

OA1218 - What happens to your first amendment rights when you work for the government? Do you give it all up when you walk in the door? How do we balance the individual right of the worker to speak, against the government’s need to have a functioning work place? Pickering v Board of Education (1968) sets us up to understand how this all works… and why a teacher criticizing Charlie Kirk on their personal Facebook page probably isn’t a fireable offense. Patrons got exclusive content at the end of this one, only available at patreon.com/law! Can you apply these principles to eight cases that followed Pickering? Quiz yourself alongside Thomas! Pickering v Board of Education, 391 U.S. 563 (1968) A summary of the history of criminal defamation law, Robinson, E.P. (2024, July 5). Criminal libel. Free Speech Center at Middle Tennessee State University. Check out the OA Linktree for all the places to go and things to do! To support the show (and lose the ads!), please pledge at patreon.com/law!

OA1217 - Well, we recorded a bit late to make sure we caught Trump's "announcement" thingy and it was... nothing. But that's good! Matt also takes us through more travel bans that are going into effect and have been way underreported on. But The Federalist has a piece saying not only is this all great, but Trump should proudly adopt 1920s immigration policy. There is no quiet part anymore. But fortunately, Matt has a fun footnote for us to bring us back up!

We begin with a delightful amuse douche from the lawyer of Colorado election tamperer Tina Peters unconditionally demanding her release from state prison because Donald Trump said so before a deep dive into our main story: an absurdly bad take from the New York Times--in both a lengthy print story and an episode of The Daily podcast--on how Joe Biden’s unwillingness to be a border fascist got a border fascist elected. Matt breaks down the real causes of the uptick in asylum seekers to the U.S. during Biden’s term in office (and its many unreported benefits to the economy and the nation) and provides the full context for the domestic and international law which the Times is openly arguing that Biden should have broken.  You can also catch this episode on YouTube! “How Biden Ignored Warnings and Lost Americans’ Faith on Immigration,” The New York Times, Christopher Flavelle (12/7/2025) “Biden Didn’t Cause the Border Crisis” (Part 1 of 4), David Bier, Cato Institute (1/16/2025) “Effects of the Immigration Surge on the Federal Budget and the Economy,” Congressional Budget Office (July 2024) “Job Openings: Total Nonfarm,” U.S. Bureau of Labor Statistics (Oct. 2025) Check out the OA Linktree for all the places to go and things to do!

OA1216 - We welcome incarcerated journalist and advocate Christopher Blackwell, calling from his home at the Washington Corrections Center. Chris is the co-founder and Executive Director of Look2Justice, a non-profit which empowers and advocates currently and formerly incarcerated people through an “inside-out” organizing model. He is also a writer whose work has appeared in (among other places) The New York Times, the Washington Post, The Boston Globe, and The Nation, and is a co-author of the new book Ending Isolation: The Case Against Solitary Confinement. Chris joins to share his story and his own deeply personal perspective on the inhumanity of solitary confinement. Look2Justice’s website Ending Isolation: The Case Against Solitary Confinement, Christopher William Blackwell (Author), Deborah Zalesne (Author), Kwaneta Harris (Contributor), Terry Kupers (Contributor) (September 2025) Christopher Blackwell’s published work in the New York Times Check out the OA Linktree for all the places to go and things to do!  

OA1215 - We examine why the potential merger of Warner Brothers Discovery with either Netflix or Paramount would almost be certainly illegal under better circumstances before mourning the imminent loss of the independence of the one government agency which is supposed to stop this kind of thing. What exactly is the Federal Trade Commission, and why was destroying it a top priority for Project 2025? We then take a closer look at this week’s oral arguments in Trump v. Slaughter, in which the Supreme Court’s MAGA majority is poised to turn the FTC and dozens of other independent agencies into tools for Trump’s corruption and graft. Finally, in today’s footnote: why is an actual government website hawking the Trump Gold Card, and can the President really just make up a completely new way to give anyone with one million dollars a new path to US citizenship? Trump v. Slaughter oral arguments (12/8/2025) Humphrey’s Executor v. US, 295 US 602 (1935) Federal Trade Commission Act (1914) Rebecca Slaughter’s SCOTUS brief Trumpcard.gov Check out the OA Linktree for all the places to go and things to do!

VR16 - This week on Vapid Response: it’s the Hat and the Hammer, with the return of both New York Times token religious conservative columnist Ross Doot-hat and Newsweek editor-at-large Josh Hammer. We begin with a savory amuse douche in which a Christian influencer preaches against making policy based on “toxic empathy” before reading  Josh Hammer taking her up on the joke by explaining why the U.S. military has the absolute right to kill anyone Josh Hammer wants dead. Finally, Ross Douthat stops in from whatever planet he has been living on with some advice for the Trump administration on how to be better Christians.

OA1214 - As the end of 2025 approaches, we are finding real cause for hope in how federal courts have been handling the Trump administration’s unprecedented assault on the rule of law. In the first of what will be at least two parts, Matt and Thomas speedrun through just a few of the many wins--both big and small--that we have seen in a wide range of categories. Just Security’s Litigation Tracker  Farewell Messages by Recent DOJ Alumni “The Unraveling of the Justice Department,” Emily Bazelon, The New York Times (11/16/25) Docket for J.G.G. v. Trump (Alien Enemies Act and related contempt litigation) Judge William Young’s decision in AAUP v. Rubio (9/30/25) Injunction blocking Trump asylum EO in RAICES v. Noem (7/2/25)  Injunction blocking ICE from enforcement in certain churches in Philadelphia Yearly Meeting v. Noem (2/24/25) Injunction in Center for Taxpayer Rights v. IRSblocking IRS from sharing taxpayer information with ICE (11/21/25) Injunction in Rhode Island v. Trump blocking EO which would have dismantled the Institute for Museums and Libraries and several other federal agencies (11/21/25) Check out the OA Linktree for all the places to go and things to do!