Thread by @SethAbramson

(THREAD) If—as reported by CNN, NBC, NYT, and WP—we're days or weeks from Mueller delivering a report on Trump-Russia collusion to DOJ, America needs a crash course in some basic concepts to understand what's happening. I try to offer that here. I hope you'll read on and retweet.

1. PRESUMPTION OF INNOCENCE. The "presumption of innocence" is what's called in the justice system a "trial presumption," meaning it has force and effect exclusively in a setting in which a "finder of fact" (usually a jury) is deliberating after evidence has been presented to it.

2. Americans wrongly believe the "presumption of innocence" a general principle all Americans must adopt; it manifestly is not and isn't meant to be. What it means is a courtroom finder of fact—usually a jury—must presume innocence unless and until a burden of proof has been met.

3. BURDEN OF PROOF. Depending on the type of legal proceeding involved, the "burden of proof" in a case may rest on any one of several parties—but the most common scenario is a criminal hearing in which the *entirety* of the "burden of proof" rests on the *prosecuting authority*.

4. What "burden of proof" means is that a party to a case must prove its case to the finder of fact (whether judge or jury) to a well-established level of certainty called the "standard of proof" required for that particular sort of case. Different cases have different standards.

5. STANDARD OF PROOF. Here are the most common standards of proof we encounter in our justice system (in ascending order of how hard they are to meet):

a. REASONABLE SUSPICION
b. PROBABLE CAUSE
c. PREPONDERANCE OF THE EVIDENCE
d. CLEAR AND CONVINCING
e. BEYOND A REASONABLE DOUBT

6. It's helpful, in discussing standards of proof, to know that they're often *informally* attached to percentages—with the percentage representing the "level of certainty" a finder of fact needs to have (that an accusation is true) for a finding of legal liability to be entered.

7. REASONABLE SUSPICION (5% to 20%): Depending on the situation, "reasonable suspicion"—the level of certainty someone did something that's needed for law enforcement to initiate an investigative "stop" of a person—could be treated by a judge as anywhere from 5% to 20% certainty.

8. Generally, the *more* serious the criminal offense, the *less* certainty a law enforcement officer needs to show a judge—I'm speaking in practical terms here; that is, where the rubber meets the road in real cases—that s/he had in initiating an investigation. That makes sense.

9. For instance, imagine that a police officer on patrol on a given street sees something that gives him a "reasonable suspicion" that a murder has just been committed in a home's backyard. If the officer even "5% thinks it happened," we certainly want to see him go investigate.

10. PROBABLE CAUSE (25%): Probable cause is a "higher" standard of proof than reasonable suspicion is. It's what needs to be shown to a judge to get a search warrant, and what law enforcement needs to arrest someone. It *should* be more certainty than mere "reasonable suspicion*.

11. In *practice*, probable cause is less than 25% certainty. The reason lawyers say that "the average grand jury would indict a ham sandwich"—an indictment being a legal instrument, requiring probable cause, accusing someone of a crime—is because the standard is treated as low.

12. (In just a moment you're going to see how explosively relevant all this is to Donald Trump and the Russia investigation.)

13. PREPONDERANCE OF THE EVIDENCE (50.1%): In civil cases—where "only" money is at stake—the plaintiff merely needs to prove its case by what's called a "more likely than not" standard, or "preponderance of the evidence." If something is "more likely than not," it's 50.1% likely.

14. CLEAR AND CONVINCING (70%): I won't spend much time on this standard of proof—it comes up rarely—but I want you to know it exists. If you've proven something is true with 70% certainty, 70% is considered—unofficially speaking—to have met the "clear and convincing" standard.

15. BEYOND A REASONABLE DOUBT (90%+): What percentage should unofficially be assigned to beyond a reasonable doubt—the standard of proof prosecutors must meet to convict someone of a crime—is hotly contested. But everyone generally agrees it's at least 90% certainty of something.

16. And yet there's *another level of proof*—I won't say "standard of proof," as no such standard exists in the law—that's become *critical* to the Trump-Russia investigation. It's a *non-legal* phrase used (and, I'd add, willy-nilly) by Trump's supporters and allies. Here it is:

17. NO EVIDENCE (0%). This phrase doesn't really exist in the law—as "no evidence" isn't a "standard" of proof or "level" of proof a judge could ever formally recognize, and indeed we almost never encounter "no evidence" of something in the law—so you'd *rarely* hear these words.

18. To say that there's "no evidence" of something is to say that *not a single fact exists* that *makes a matter in controversy more likely to come down one way or another*—"no evidence" would mean no circumstantial evidence, no direct evidence, no evidence *of any kind at all*.

19. BREAKING NEWS: Those of us who have consistently said that Mueller's Trump-Russia report would *not* be finished by February 2019 have turned out to be correct—and those who insisted otherwise *incorrect*—according to major breaking news from Reuters:

https://twitter.com/Reuters/status/1099045419391377410

20. So when Senator Richard Burr, Republican Chair of the Senate Intel Committee, said that there was "no evidence of collusion"—a phrase media and Trump supporters *leapt* on—either he lied, he misspoke, or, because he's only a businessman, he knows nothing of legal terminology.

21. We *know* Burr doesn't *actually* think there's "no evidence of collusion"—in the legal sense of the phrase "no evidence"—because he spent his CBS interview with @Olivia_Gazis saying the Senate had evidence *some people would read as sufficient proof of [criminal] collusion*.

22. The moment Senator Burr admitted to CBS—which he did—that the Senate had collected evidence of criminal collusion (chargeable, variously, as conspiracy, aiding and abetting, or any criminal offense whose underlying facts involve collusion)—*that* was the story's *only* lede.

23. The reason Burr's statement acknowledging evidence of criminal collusion exists was the headline of his CBS interview is twofold: (1) It means the most powerful GOP Senator looking into collusion *disagrees* with Trump and his allies that there's "no evidence" of it; and (2):

24. ...it means the big debate over whether there's *any* evidence of criminal collusion (conspiracy, aiding and abetting, or charged as any other federal crime) is *over*. Repeat: it's *over*. *All* we're arguing about now is *what standard of proof [of collusion] has been met*.

25. The headline from Burr's CBS interview was therefore this:

TOP REPUBLICAN SENATOR INVESTIGATING COLLUSION SAYS EVIDENCE OF COLLUSION EXISTS, PERMANENTLY ENDING TRUMP AND THE REPUBLICANS' "NO EVIDENCE OF COLLUSION" MANTRA

Instead we got: "Burr says no evidence of collusion."

26. If journalists had educated America on standards of proof, it would've been clear to all that Burr *hasn't* concluded that there's "no evidence of collusion," but rather something *entirely different*: that in *his* view, the standard of proof he wants to see met hasn't been.

27. So the conversation Burr's interview *should've* initiated is this:

What's the *appropriate* standard of proof to be met when the allegation is that a president criminally betrayed his country and is a national security threat and the remedy requested is removal from office?

28. Faced with this question—and it *is* the question before us, whether journalists pose it or not—Trump's supporters and allies suddenly shift from false cries of "no evidence" to the *other end of the spectrum*: *demanding* the standard of proof be "beyond a reasonable doubt."

29. HYPOTHETICAL: You live in a condo complex with a "condo association" run by a "condo association president." There's an accusation that 1 of the 2 men running for president has robbed 6 banks. What standard of proof must be met for you to vote against him for condo president?

30. Based on your personality—risk-averse/not; forgiving/not; skeptical/not—your answer on who you want in charge of condo fees (someone accused of 6 bank robberies or not) will be that the standard is "reasonable suspicion," "probable cause," or "preponderance of the evidence."

31. We cannot *imagine* a person so stupid as to think—in a race for condo association president—that you must prove with *90% or more certainty* that one of the candidates is a serial bank robber to justify a vote against that person. Most people would say 10% to 20% certainty.

32. HYPOTHETICAL: A man who has been accused 20 times of sexual harassment or assault, and repeatedly accused of fraud in his business dealings, has his finger on the nuclear trigger—with the power to kill you and your family—and is *now* accused of working for America's enemies.

33. HYPOTHETICAL (continued): Under such circumstances, what should the standard of proof be—for the accusation that a man with his finger on the nuclear trigger is conspiring against us with our enemies—for the man *simply* to be taken from a position in which he can cause harm?

34. Trump's allies and supporters not *only* say that the standard for this should be "beyond a reasonable doubt" (90%+ certainty of treachery against the United States), they also *demand* that *everybody* in America *permanently* give this person the "presumption of innocence."

35. HYPOTHETICAL: You live on a quiet street with your spouse and 3 kids—2 girls and a boy. A man moves next door who stands accusing of raping 3 girls in two states. Is your family allowed to *avoid this man at all costs*—or must you "presume innocence" and ask him to a cookout?

36. As you can see from my hypothetical, what we *demand* as Americans is that our *juries*—in *criminal cases*—presume innocence until someone is proven guilty beyond a reasonable doubt. As for the *rest* of us—everyone *but* the jurors—we can think *whatever the hell we want*.

37. Personally, because I *love America* and because an impeachment *isn't a criminal case*—i.e. there's no danger of an impeached president going to jail *because* he was removed from office—my standard of proof for a commander-in-chief betraying us to our enemies is *very low*.

38. More specifically, before I learned *anything* about the Trump-Russia facts and timeline, I "presumed innocence" for Trump—and then, when approximately 15% to 20% proof was provided that Trump had colluded with our enemies, I deemed him too great a risk to remain in office.

39. To say there's "15% to 20% proof" that Trump—among much else—Aided/Abetted Computer Crimes under federal law, or committed Bribery, or committed Obstruction in a way that colluded with crimes by our enemies, would be to say that the proof is shy of indictment level but close.

40. As I began researching Trump-Russia collusion for *two* trade-press books on the subject—reading hundreds and hundreds of articles from all across the world and going back decades—I *well* surpassed "15% to 20% certainty" that Donald Trump had committed impeachable offenses.

41. And here's where we come, finally, to Special Counsel Mueller's final report on Trump-Russia collusion, which will arrive in March at the earliest but—for all we know—could arrive after Mueller's grand jury finishes its term (*after Mueller extended it in January*) this July.

42. Though arrests require "probable cause"—25% proof—in theory prosecutors don't take a case to trial/plea unless they believe they can prove it "beyond a reasonable doubt" (90%+ proof). This creates a natural tension between the investigative and prosecutorial phases of a case.

43. So let's imagine Mueller sees himself as both an investigator and a prosecutor—which is technically correct, as DOJ regulations give him the power to prosecute instances of criminality he uncovers as part of his investigation into Trump-Russia collusion. What would that mean?

44. Well, it'd mean Mueller will *prosecute* a person—specifically, any person who's committed an offense falling under Mueller's broad DOJ authorization—if he thinks he can prove his case "beyond a reasonable doubt." Any case he can prove *below* that standard he *won't* charge.

45. So let's say Mueller can prove Trump conspired with our enemies at the "clear and convincing" level of proof—will he allege, in his report, that Trump can be charged with criminal conspiracy? No. He would simply summarize his mountain of evidence and let us decide what to do.

46. In that scenario, *any* American—including *any member of Congress*—for whom the necessary "standard of proof" (in a *non-criminal hearing* where the allegation is conspiring with our enemies) is "clear and convincing" or *anything below that*, will demand Trump be impeached.

47. Anyone who thinks the Impeachment Clause's "high crimes and misdemeanors" means that allegations in an impeachment must be proven "beyond a reasonable doubt" is *wrong*. Any lawyer will tell you you're wrong. The Republicans who impeached Clinton would tell you you're wrong.

48. When we say impeachment is a "political" (not "criminal") process—because there are no criminal penalties, like imprisonment—and that allegations can be brought in an impeachment (like "Abuse of Power") that aren't statutory crimes, we're saying a lot more than you may think.

49. We're saying that Senators *aren't* jurors in a criminal case—so they don't need to "presume innocence" pre-impeachment if they've seen evidence that makes them think someone *isn't* innocent. And at the impeachment, they can use *any standard of proof that they want to use*.

50. What we're *also* saying is that—as to impeachment proceedings—whether Mueller says that Trump could be charged with crimes under a "beyond a reasonable doubt" standard or that there's "only" enough proof to meet the "clear and convincing" standard (70% proof) doesn't matter.

51. And the reason it *doesn't matter* is *what kind of America-hating buffoon would require more than 70% certainty that a president has criminally betrayed his country to want that president removed from office for the safety of all America*? I'm serious—what sort of *buffoon*?

52. If the allegations against Trump were like the allegations against Clinton—lying about sex—*many* Americans might decide to set the standard of proof at "beyond a reasonable doubt" for an impeachment, and demand their Senators do the same. *That's not where we are right now*.

53. My *personal* opinion is that if you *even* set the standard of proof for betraying America to its enemies at "clear and convincing" in a *noncriminal case* you're *endangering us all*. The *highest* standard *anyone* could rationally defend—at a stretch—would be 50.1% proof.

54. We're now hearing something *terrifying* that you'd *never* hear from public defenders—who defend average Americans in criminal cases—and would *only* hear from a politically minded prosecutor: the standard of proof for Trump will be *higher* than "beyond a reasonable doubt."

55. That's right: even though we're discussing a noncriminal hearing (impeachment), and even though a president who's a foreign asset is *far more dangerous* than any one person in America could *ever* be, some prosecutors want Mueller to treat Trump *better* than everybody else.

56. So Mueller may have proof "beyond a reasonable doubt" that Trump committed federal crimes and *still* wouldn't say that he had done so in his final report. This would effectively make the standard for impeachment among Trump's allies *higher* than "beyond a reasonable doubt."

57. So we have a situation in which *most* Americans—on *these* allegations, in a *noncriminal* hearing—would set the standard of proof at somewhere between 15% and 50.1%, yet Trump's allies will demand a standard *higher* than (say) *97%* to impeach him.

That endangers America.

58. Moreover, we have members of media using the phrase "no evidence" (0% proof) *synonymously* with "beyond a reasonable doubt" (90%+ proof) when quoting GOP officials making political statements, which makes it even harder to safeguard American via a future impeachment hearing.

59. As if *that* weren't bad enough, both politicians *and* the media are setting us up to believe that *anyone* Mueller *doesn't* bring charges against—or in the president's case, recommend charges against—not only didn't do anything but there is "no evidence" they did anything.

60. And to get even *further* into the weeds, the way media and politicians are setting this all up would allow AG Barr to withhold from Congress and America *any* information that isn't sufficient for prosecution—even though "beyond a reasonable doubt" *isn't the standard here*.

61. So if you're wondering why this lawyer, former public defender, former investigator, and current legal advocacy prof would write a thread *this long* on *this boring a topic*, it's because America could lose this ballgame—its national security—before any report is even filed.

62. For the purposes of this thread, I've put *aside* all the signs Mueller isn't close to done—or any reference to still-sealed indictments, Jerome Corsi's pending indictment, the ongoing possibility of cooperation deals with Stone or Manafort or Erickson (Butina's boyfriend)...

63. ...the many cases that Bob Mueller has "handed off" to other federal prosecutors (doubtless only *some* of which we know about), any ongoing state or federal cases (e.g., Epstein or Cohen, respectively) that could produce new information relevant to Mueller's investigation...

64. ...or entirely *new* developments touching on Donald Trump's criminal liability, like this BREAKING NEWS from today...

https://twitter.com/kylegriffin1/status/1099071360666615808

65. ...or the fact that Congress has now sent all its inquiry transcripts to Mueller, along with criminal referrals, under circumstances in which major-media reporting already confirms that two key Trump-Russia witnesses, Trump Jr. and Prince, can both be charged with felonies...

66. ...or the fact that many others *besides* Trump Jr. and Prince might fall into this category, or the fact that *many* federal cooperators Mueller has considered *enormously* helpful (e.g., Flynn and Nader) have yet to see the indictments their information generated brought...

67. ...or the fact that Mueller just extended his grand jury for 6 months, or that Mueller is still fighting in court to get grand jury testimony from a key witness and grand jury document production from a foreign corporation, or the fact that Gates' sentencing was continued...

68. ...indefinitely just two weeks ago, meaning that his continued assistance is *not* needed for Manafort—who's now at the sentencing phase—but for some *other* indictment not yet brought...and on and on and on. In other words, this whole thread assumes Mueller really *is* done.

69. I've said many times I *don't* think Mueller is done—either with his investigation proper (for all the reasons I just stated) or with all the Congressional investigations and future criminal cases that could arise based on what he's found (for all the reasons I just stated).

70. And today's big news from Reuters that the NBC/CNN/WP/NYT reports on the timing of Mueller's final report were premature seems to support my view. But what I've said here is that, *even if Mueller were well and truly done*, the chances we'll misunderstand his report are high.

CONCLUSION. We *must* fight to see as much of Mueller's report as possible—and *must* fight to remind media that *as to Trump* this is a noncriminal process and that because national security is at stake, standards of proof *well* below "beyond a reasonable doubt" should be used.

CONCLUSION2. Also, we must *keep pushing* for the correction of *past* media reports—and proper writing of *current* reports—as to whether *any* GOPer can claim there's "no evidence" of collusion, or merely say they think there isn't *90%* proof: a different proposition entirely.

CONCLUSION3. And finally—because in the view of *any* responsible attorney in America the Manafort-Kilimnik conspiracy would *alone* put proof of Trump-Russia collusion at *over 50%*—we must *stop* with this wild, out-of-court misuse of the phrase "presumption of innocence." /end

RESOURCES. I encourage folks to follow @neal_katyal to find more on an interesting argument: if Mueller acts primarily as *investigator*—bringing indictments only when they further the *investigation* phase of the Trump-Russia case—he may hand off the prosecuting to Main Justice.

RESOURCES2. Both "circumstantial" and "direct" evidence are *regularly used in trials*—and as some cases note, sometimes circumstantial evidence is *more* convincing than direct evidence—so these terms are worth looking up too. It underscores how silly the "no evidence" claim is.