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Gabriel Malor Profile picture
@gabrielmalor
Aug 21, 2019 • 4 tweets • 2 min read • Read on X
The 5th Cir.'s en banc dueling opinions about qualified immunity are a must read.

Here's a bit of Justice Willett assailing the doctrine as "insulating incaution." His dissent starts on page 45. ca5.uscourts.gov/opinions/pub/1…
Er... that should be "Judge Willett."

Old habits...
Judge Willett also responds to the apparent swipe at him from Judges Oldham and Ho, the other Trump judges interested in originalism.

They too dissented here, but disagree with Willett's position on qualified immunity.
Lawgeeks, how do you feel about Judges Ho and Oldham rendering the abbreviation for "grant, remand, vacate" in the past tense as "GVR'd" and the present tense as "GVR'ing"?

I would have used "GVR-ed" and "GVR-ing." Is there a conventional use on this? #appellatetwitter

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More from @gabrielmalor

Gabriel Malor Profile picture
Aug 10, 2023
The last batch of Michigan fake electors has been arraigned.

They are charged with forgery, conspiracy to commit election forgery, and publishing a counterfeit record—namely, the false electoral certificate they sent to D.C. as part of Trump's scheme. cnn.com/2023/08/10/pol…
Here's a copy of the fake elector certificate the false electors from Michigan sent to D.C.

Image
Image
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There are several lies in this document. Not only were they lying about being the 2020 electors from Michigan, they also lied that they "convened and organized in the State Capitol." In fact, they were turned away by the Michigan State Police when they tried to enter.
Read 7 tweets
Gabriel Malor Profile picture
Aug 4, 2023
Okay, I've tweeted a lot about the § 371 count, conspiracy to defraud the U.S., which is, I think, the easiest charge to prove. One of those threads is QTed here.

But let's talk about the second count, conspiracy to obstruct an official proceeding.
For the second count, DOJ will have to prove Trump (1) knowingly (2) entered into an agreement (3) to obstruct an official proceeding (4) corruptly and (5) at least one overt act in furtherance of the conspiracy.
The sticking point for this one will be what "corruptly" means. There's not a lot of precedent discussing it. The DC Cir. has this exact question already before it bc of the Jan. 6 cases.
Read 10 tweets
Gabriel Malor Profile picture
Aug 3, 2023
This continues to fail to grapple with Tanner, Dennis, Haas, Hammerschmidt.

Trump is not charged with wire fraud or honest services fraud. And clear (and binding on the lower courts) precedent says that conspiracy to defraud the U.S. does not require loss of money or property.
It is true that SCOTUS has in recent years pared back the meaning of fraud in wire fraud and honest services fraud prosecutions. But they have not altered conspiracy to defraud the U.S., which goes back A LOT further than the wire fraud or honest service fraud statutes.
Ninety-nine years ago SCOTUS explained that conspiracy to defraud the U.S. does not require "property or pecuniary loss."

The claim that Jack Smith has offered a "novel" or "unprecedented" theory of the conspiracy fraud crime is simply and obviously false. Image
Read 7 tweets
Gabriel Malor Profile picture
Aug 1, 2023
Lawgeeks, here's the Trump (Jan 6.) indictment.

He is charged with conspiracy to defraud the United States, conspiracy to obstruct an official proceedings, obstruction of an official proceeding, and civil rights conspiracy. storage.courtlistener.com/recap/gov.usco…
Co-Conspirator 1 is Rudy Giuliani.
Co-Conspirator 2 is John Eastman.
Co-Conspirator 3 is Sidney Powell.
Co-Conspirator 4 is Jeffrey Clark.
Co-Conspirator 5 is Kenneth Chesebro.
Co-Conspirator 6 is ???
I see conservative pundits suggesting that Trump was just exercising free speech in falsely claiming to have won the election, but they're not really getting to the meat of the fraudulent electors scheme.
Read 8 tweets
Gabriel Malor Profile picture
Jun 20, 2023
"But the Summer 2020 rioters got away with it!"

No, lots were prosecuted.

"But some of them got away with it, and FBI is, like, finding all the Jan. 6 rioters n stuff."

Uh, okay??

"It's not fair!"

Did the Jan. 6 rioters post their rioting on Facebook?

"..."

Yeah.
"How dare these state and local agencies not hunt down every person who under cover of darkness and chaos rioted!!!"

Same people: "How dare the FBI find these people who rioted in broad daylight and then posted their crimes to social media! This is a double standard!!!!"
The fun thing about being a pundit is they don't have to struggle with things like "evidence" or "burden of proof" or "the rule of law" or any of the hard things that might crop up during chaotic multi-night riots.

Instead, they happily whine that not enough people are in jail.
Read 4 tweets
Gabriel Malor Profile picture
Jun 19, 2023
Here's why it's frustrating when, for example, Gov. DeSantis says he would pardon Jan. 6 rioters for "technical violations of the law" if Summer 2020 rioters didn't get prosecuted.

First, as we've seen, the hypothetical isn't actually true, but he won't tell his followers that.
But second, most Summer 2020 riots were state crimes, not federal crimes. Of course DOJ didn't prosecute state crimes, that's not DOJ's job, that's state prosecutors.

This stuff about "uneven application of justice" doesn't involve DOJ's area of authority at all.
And again, to come back to the first part, where the Summer 2020 rioters actually committed federal crimes, like vandalizing federal courthouses, DOJ, in fact, did prosecute.

See, e.g.,
Read 8 tweets

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