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Josh Blackman
@JoshMBlackman
, 4 tweets, 2 min read Read on Twitter
1/ @jacklgoldsmith agrees w me on Mueller's weak statutory analysis
lawfareblog.com/mueller-report…
It "rejects the presidential clear statement rule and the important const principles behind it on the basis of other canons of construction in cases that have nothing to do with potus"
2/ I look forward to reading any responses
3/ Here is @jacklgoldsmith's key move: Mueller was able to sidestep OLC review by merely alleging, but not recommending a traditonal prosecutorial decision.
4/ If he concluded no indictment was possible, then regulations did not support his decision to lay out public allegations in Volume II. That was not his assigned job
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More from @JoshMBlackman see all

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Josh Blackman
@JoshMBlackman
1/ In Merck v. Albrecht, J. Breyer gets the order of authorities wrong. First you cite the Constitution, then talk about #SCOTUS precedent. You don't give the Supremacy Clause second billing with a "See also."
2/ J. Thomas gets it right. Start with the Supremacy Clause--and quote the text!--then talk about #SCOTUS precedent.
3/ J. Thomas rejects almost all of Breyer's analysis. And Thomas cites @CatoInstitute brief. cc: @ishapiro. He only concurs because majority vacates and remands.
Read 5 tweets
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Josh Blackman
@JoshMBlackman
J. Sotomayor has majority opinion in Hererra v. Wyoming. #SCOTUS splits 5-4, w/ Gorsuch in majority. Is this the first 5-4 that RBG assigned to Sotomayor? supremecourt.gov/opinions/18pdf…
2/ And you don't see that caption very often: ON WRIT OF CERTIORARI TO THE DISTRICT COURT OFWYOMING, SHERIDAN COUNTY
3/ The majority opinion holds that Mille Lacs Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) overruled, in part, Ward v. Race Horse (1896). (J. Sotomayor notes that Mille Lacs was 5-4, with Ginsburg and Breyer in the majority).
Read 14 tweets
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Josh Blackman
@JoshMBlackman
1/ The dissent in the 4th Circuit DACA case provides a preview of how #SCOTUS will resolve the issue: the rescission is not reviewable, and therefore there is no need to decide whether DACA was lawful in the first place. assets.documentcloud.org/documents/6007…
2/ Judge Richardson hints that if the rescission was reviewable, "then DACA was almost surely procedurally and substantively invalid" (like the 5th Circuit found). Therefore, the Secretary's justification for rescission (it was illegal) would be valid.
3/ I do not plan to write anything at length on this topic until (a) Judge Hanen resolves the Texas challenge (oral args in July) or (b) #SCOTUS grants cert. At this point, the Court of Appeals merely maintain the status quo.
Read 3 tweets

Related threads

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Rep. Ralph Norman
@RepRalphNorman
I know my colleague @justinamash to be a conscientious and principled man, but I am baffled by his conclusions about the #Mueller report. It is like we have read two different documents.. (1/5)
(2/5) What I have read, is a #report that finds no proof of obstruction and no underlying crime to obstruct..
(3/5) The so-called “evidence” is a collage of unsupported allegations - mostly by disgruntled former employees with an axe to grind
Read 5 tweets
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Jack Goldsmith
@jacklgoldsmith
My take on the Mueller report's application of the presidential clear statement rule. lawfareblog.com/mueller-report…
A dense analysis with three takeaways: (1) Mueller report badly misapplied the clear statement rule. It construed an exception to the rule to swallow the rule and exposed POTUS to much great potential criminal liability than appropriate.
(2) A proper application of the clear statement rule makes it uncertain whether the obstruction investigation was properly predicated at the outset.
Read 4 tweets
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Lola Netty
@TXTrumpette89
[Pg 11] Previously CLAS 'scope' > [Rod Rosenstein] to [MUELLER]
The scope memo [highlighted w/in Mueller report] confirms the dossier was the tool used by [RR] to justify Special Counsel & was the primary vehicle to which [RR] tasked MUELLER.

scribd.com/document/40672…
If dossier was known to be unverified & fake, how then was an investigation started to begin with?
At what point did #MUELLER determine there was no collusion? [18 mths ago? (Oct 17)]

Rosenstein Has To Answer For Appointing Mueller As Special Council

radio.foxnews.com/2019/04/19/joh…
Was #investigation kept ongoing as a talking point to rig midterm elections?

Was investigation kept ongoing to retain #BLOCKADE to essentially restrict POTUS from unmasking & informing the public as to #TRUTH abt what really happened?

thehill.com/opinion/campai…
Read 12 tweets
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Will Chamberlain 🇺🇸
@willchamberlain
Into the legal guts of the #Mueller Report (focusing on volume II on obstruction)

Here, the Mueller Report contradicts Barr's pre-AG memo on the proper construction of 18 U.S.C. 1512(c)(2)

This seems like it's in the weeds but it's crucial
Mueller (read Weissmann) argues that "[n]o principle of statutory construction justifies narrowing the [catch-all] provision to cover only conduct that impairs the integrity of availability of evidence."

This is exactly what Barr criticized in his original memo
In his excellent thread yesterday, @JohnWHuber explained why Bill Barr disagrees with this interpretation

Read 5 tweets
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Elisa For Trump
@ElisaMichaels
1/ As with the Election, SOMEONE OVERPLAYED THEIR HAND . SOMEone with private access to inside information told the “in crowd,” they were going to win. Assured them they had this one in the bag. The Mueller Report (w/ Sekulow & Giuliani )reported complete vindication: after 40
2/ FOIA LAWSUITS, 19 lawyers, 2800 sub-trial attorney’s, 230 committee records, 500 witnesses, unknown numbers of pen registers (registers of who called whom) “no servers were destroyed, phone records destroyed: no collusion, no conspiracy, nothing INDICTABLE.”
3/ #Mueller ‘s offices will finally be closed. Per @TomFitton “Congress can still impeach Obama,” & Hillary could be brought upon charges. Nadler & Mad Max confirm their harassment will continue. (Shhh. Hari Kari is an empty threat these days.)
Read 9 tweets
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Thomas Wood 🌊
@twoodiac
Here’s another reason to think that the #MUELLER REPORT is going to be devastating for Trump. 1/10
So far no member of Trump’s family has been indicted, including Don Jr., even though Don Jr (according to all reliable reporting) lied his *** off behind closed doors in Congressional hearings. 2/10
And Don Jr. hasn’t been questioned by Team Mueller, which legal experts say is ominous for him, as it is a sign he is a target. 3/10
Read 10 tweets

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