a few points about the House brief:

1. From the argument heading (referring to when other attempts to overturn the election failed), they are telegraphing that they will make his overall course of conduct, beginning with the late Dec exhortation to come to DC, gonna be "wild."
2. They assert that they can prove the charge based on “reasonable foreseeability,” without regard to whether Trump defense claims that he didn’t intend for it to happen. They write, “it was obvious and entirely foreseeable that the furious crowd...was primed for violence."
3. This is plainly a fact; everyone saw it and the Senate lived it. It is therefore simply true that he “incited an insurrection." No special intent is required. But it’s clearly not true that he didn’t intend it. Next to the video tape itself, perhaps the most important
evidence will be his reaction in the couple hours following the televising of the storming. An official who had unintentionally let loose these insurrectionary forces would be horrified and try to tamp it down immed.Trump, by contrast, did 0, and witnesses say he was "delighted."
On the constitutional argument, they will contend that the issue is settled by previous Senates. That’s fully accurate, and consistent with how we settle these issues,which are committed by the constitution to the Senate itself. Also try to denigrate the arg as a process” objec.

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More from @harrylitman

10 Nov 20
The concerns abide about Barr and the DOJ and the calls from some Rs for state legislatures to send their own slates of Presidential electors. The #1 point that many have made, including Barr in the memo, is that the only legal claim that could now fly would be one that
at a minimum, would flip the result in a state from Biden to Trump . There are literally no such claims even alleged. The 15 dead people who voted in PA turns to be false, but even if it weren't, it couldn't be used to overturn an election that Biden won by 45,000 votes.
But also consider this: it's ironic that DOJ is getting involved b/c any switch of electors now would violate FEDERAL law, which specifies that while the legislature can choose the manner for their selection, it must do so by Election Day and not after. Pennslyvania, like every
Read 7 tweets
20 Jun 20
Thread: here's where I think we are. It's pretty exquisite. Berman is court appointed and under 28 USC §546 his appointment lasts until there is a presidentially appointed and confirmed US Attorney.
OLC opinion from 1979 says under 546 the AG can't fire someone -- i.e can't trump so to speak the court's choice -- but that President can. That rule has never been tested in court however.
So for starters, needs to be Trump who issues the order. Can't imagine why he wouldn't. Barr will threaten to resign otherwise. By temperament and circumstance, he has to go the wall here.
Read 10 tweets
21 May 20
Hi @JonathanTurley , your post is built on a series of obtuse misreadings of the oped. Your main claim is that I suggest Sullivan should ignore the merits of the motion and make trouble gratuitously. On the contrary, it's precisely the merits that are so assailable
and that I suggest he focus on. The DOJ has advanced a series of factual and legal arguments that don't withstand scrutiny, as so many people have pointed out. Sullivan needn't attack the concept of prosecutorial discretion in order to reject those claims. Nothing about the
discretion supplied in Rule 48 insulates the DOJ from advancing factually and legally flawed arguments. It's a serious mischaracterization of that legal argument to say, as you repeatedly do, that the oped advocates departing from the law or, worse, that it acknowledges
Read 9 tweets

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