OK, let's start talking about the House's 80 page brief on impeachment. It really is an incredibly well-done piece of work. There are some things I'd do differently and some pieces I didn't love, but overall, it's very very good.
Again - this thread will happen in fits and starts. I'm swamped at work and this will come in 10-15 minute chunks as I take a break
Let's start by taking a look at the table of contents. After a 4-page intro (that's relatively long, don't love it), the brief spends a solid 30 pages walking through the facts underlying the impeachment - and, the subheadings tell us, tying in Trump's general refusal to accept
the election results with everything that followed. This is a strong rhetorical approach, but it comes with dangers: the President not only had a legal right to contest the election results, but the GOP Senators pretty much all backed that right, strongly.
It's going to be important to thread a needle of saying "this set the stage for what came after" without putting yourself in a place where you're trying to convince the Senate that the challenges themselves were impeachable. That won't fly
Also - 30 pages is an incredibly long statement of facts. Most full-length briefs aren't that long. So expect it to be very, very detailed. That's important, because the primary argument on incitement is "given the context, these words incited the attack" - so the context is key
The argument section is broken up - smartly, I think - into three separate chunks.

1) Why, on their own merits, Trump's conduct requires conviction
2) Why Trump's defenses don't fly
3) The Senate can convict Trump even though he's out of office
Again, there are some key strategic choices being made here. The section on Trump's conduct conspicuously - and, I'd have to assume, deliberately - does NOT identify any supposed statutory crime. These are purely political offenses
Another (smart) strategic choice: Attacking the defenses in separate sections, rather than interweaving the response with the affirmative case. Those defenses are likely to be the core of the Trump response, not factual argument, so they need to be addressed prominently & head on
Last (for this break, we'll be back) take a look at the page counts. They spend 6-7 pages (36-42) on the affirmative case. Another 6-7 pages (42-48) on the various defenses *other* than "but I'm an ex-President!"

And 27 pages - again, a whole brief by itself - on "ex-President"
That tells you a lot about where the House is losing votes.

They're pretty confident that they can get whatever R-votes are gettable on the basics; after all, those Senators lived through the Capitol assault, they know what's what. But ...
They may need to convince a bunch of even those unicorns - GOPers who'd be willing to convict on the merits - that they can't acquit based on "he's already out of office"

So that's where they'll spend their substantive time
OK, client work awaits. We'll pick this up again later
While I'm on hold, let's keep plugging.
Here's the start of the intro. Fairly standard scene setting, for an extraordinary scene. It addresses

Why are we here? (Trump incited an insurrection)
What's at stake? (democracy, national security, peaceful transitions of power)
Was this really that bad? (Yes)
That was short on details. So that comes in the next paragraph, which is just a series of gut-punches, including
-The insurrectionists, at least, thought Trump had sent them
-They desecrated the Capitol
-Hundreds injured
-5 dead
OK, back to work
We then segue smoothly from "here's the horrible stuff that happened" to "and here's how we know Trump is at fault"

It's a compelling argument, especially highlighting Trump's call to "Save America" and "Stop the Steal" at a "wild" rally. Trump ratcheted up the stakes and
ABSOLUTELY primed the pump for violence. Just about everyone in the country knew that rally attendees were planning a violent assault on the Capitol; they were talking about it on social media and it was widely reported. So what did Trump do?
He used violent rhetoric (fight, take it back, show strength) - all after his personal lolyer, Rudy, *specifically* insisted on "trial by combat"

If this was a criminal case, it would be very very close to the incitement line - close enough, IMO, to be a jury question.
In a *political* case, about whether Trump abused the office of the Presidency and betrayed our trust?

The answer is self-evident. Yes.
If the Presi-fucking-dent of the US is "coming close to the line of legally inciting a physical attack on Congress" he's betrayed his office.

Period. The President shouldn't be in that line's time zone. He was (at best!) knocking on its door asking to be allowed in.
And this is just brutal.

Seriously. Exquisitely done. You want to know whether Trump really wanted the violence, or if he wanted peaceful protest and the crowd went nuts?

Watch how he reacted as it unfolded
At the end of the day, Trump's best defense isn't free speech, or "you can't impeach me". It's "I didn't mean for this to happen, I didn't want it, this wasn't my goal. I meant it all metaphorically"!
That makes this an intent case. And let me tell you, intent cases are hell on plaintiffs (or prosecutors, I assume) because you have to convince a jury of what was going on inside the wrongdoer's head at the time. And that's haaaaard
Most people are familiar enough with the concept of plausible deniability that they don't go around announcing "I AM INTENTIONALLY DOING THE BAD THING NOW. I WANT THE BAD RESULT"

You've got to pull it together from circumstances
Well, folks, Trump (metaphorically) smiling and rubbing his hands like Mr. Burns, and whispering "good, good" while the violence went on is as close as you can get to a portal into his head as he gave that speech.

If he didn't want the violence, why didn't he try to stop it?
This would have been the perfect conclusion to the intro. Strong. Punchy. Tight.

But they just couldn't stop.
Seriously. Replace the last sentence of that paragraph with some version of "under the circumstances, it would be a betrayal of our own offices and oaths to fail to remove him" and tell me that intro doesn't sing, and isn't full and complete
And ok, I guess they should say something about his "neener neener I violated my office too late in my term" defense before they wrap up. But they didn't need another page and a half here, just to plug in some quotes from republicans.
Anyway, I'm for bed. We'll pick up with the statement of facts tomorrow.

I did warn you this would come in chunks. Hope it's been worth the wait
OK, let's start on the statement of facts before I jump into client work today.
This is an excellent start, tying in Trump's pre-election rhetoric to the events that came after. "Laying the groundwork" is exactly right - they're making a strong case that Trump always intended to claim the election was rigged no matter what.
Trial strategy note: If the House is smart, they will call Alyssa Farah as a witness.

Because the only two ways to defend these comments are:

1) "It was bluster, he wanted to enthuse his supporters" or

2) "He really believed that he was winning in a landslide"
That first one is dealt with by the "and then he followed up by actually claiming the election was rigged when he lost" - if you're just trying to enthuse your voters and drive turnout, you don't keep it up after the election
So how do you deal with the second defense (he really believed it)?

With evidence that his internal polling showed him that it wasn't true. And Farah has publicly claimed the results matched their internals.
You need that evidence in the form of sworn testimony or documents. So, if the House Managers are watching this thread ... call her. Please.
Seriously, those internal poll numbers will be critical evidence if you can get them.

Also, let's talk about the "citations in the footnotes" thing, which is a lawtwitter royal rumble waiting to happen. Personally, I like it in a brief like this, especially for fact citations
You need to tell the reader that you have a source for your facts, but you don't want to break up the flow with a lengthy citation to an article. Drop a footnote.

I *don't* like it later on, where they use it for legal citations. We can talk about why when we get there
This is a good section, highlighting the various and vociferous Ls the Trump team took in their election contests. But it's missing something very very important
Can you figure out what it is?
One of the animating myths of the Trump dead-enders is the (false) claim that the courts dismissed on technicalities and never reviewed evidence. That should have been dealt with here.

The judicial quotes are useful. But more useful would have been a more detailed description of
what various courts did. For instance, did you know that in Arizona and Nevada, there were fact hearings on election fraud claims, with fact witness testimony, and which the trial courts specifically found didn't support the challenges?
Did you know that Trump's Wisconsin election challenge involved his team placing specific evidence of what they claimed were invalid votes in front of the trial court, which then determined that the evidence was insufficient?
And that the Wisconsin Supreme Court decision Trump advocates whine about affirmed that lower court decision?

Did you know that 4 justices of the 7-member Wisconsin Supreme Court rejected the bulk of the Trump campaign's challenges on the merits, not just laches?
I mean, if you've been following me and @questauthority, you probably know this stuff. Unfortunately, my "sitting Senator" follower count is at zero (yes, even the Senator from East Virginia is not a follower, which hurts) and they let Ron Johnson's farce go unchallenged, so ...
I sincerely doubt that the Senators who matter know these things. It was the House's job to tell them, and provide citations backing that up, and they left it undone. That was a mistake, IMO.
OK, breaking here to get some work done. We're on page 11/80, so we've got a ways to go. As Arnie says,

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More from @AkivaMCohen

31 Jan
This is the rare occasion where I disagree with Ken on defamation policy. True defamation involving a public figure is vanishingly rare, and everyone should err on the side of not chilling core political speech.

That means you put on your grown-up pants and suck it up a lot. BUT
A political culture that embraces anyone saying anything at all at any time, completely without regard for truth and despite knowing it was false, is toxic and damaging to the country. And without consequences, it will continue to proliferate
Everything in that first tweet is still true, and that means that if there's any rational defense at all, you should err on the side of not suing folks like Rudy for being political hacks.

But insane conspiracy theories even they don't believe, deployed to rally the gullible?
Read 4 tweets
29 Jan
This piece is terribly reasoned, with most of the logical errors flowing from a factual sleight-of-hand.

Trump was not a "former president" when he was impeached. He was in office.
The Constitution unequivocally allowed to the house to impeach president Trump. Nobody disputes that.

The Constitution also unequivocally provides that the Senate SHALL try all impeachments

It's not discretionary.
Also, impeachment is a POLITICAL solution to a POLITICAL problem. There are some subtle signs of that in the Constitution, like, I don't know, the power to impeach being handed to one political body (the house, not a prosecutor), the trial to another (the Senate not the courts),
Read 10 tweets
27 Jan
This is NOT something you ever want to see as a litigator. It means that the judge chose to read your pleadings and thought that they were so jacked up, somehow that she wants you in her courtroom, right goddamn now, to explain what the hell you were thinking
That's one way to describe the Plaintiffs' blind, repeated, flailing attempts at submitting a motion for a TRO, I guess. Seriously, if you haven't followed these filings, they're SPECTACULAR
Read 20 tweets
25 Jan
1) What the fuck is wrong with this asshole, and why is there a base who agrees with him?

2) Nothing in the bill could even conceivably lead to genital exams for school girls. Here's the full text Image
If sex for purposes of this rule is based on "reproductive biology and genetics at birth" no "genital exam" conducting on someone in school could ever be relevant, because it wouldn't shed light on "reproductive biology AT BIRTH"
I get that there's a "how would you know to enforce this" issue, here, but the only conceivable way would be based on the birth certificate. No school-age exam could ever have relevance
Read 4 tweets
25 Jan
So Dominion sued Rudy for defamation. How are they ever going to allege actual malice? courtlistener.com/recap/gov.usco…
Oh. Oh.

That's how.
Yep, that'll do it 😀😀 Image
Read 42 tweets
20 Jan
Nothing demonstrates someone's commitment to the colloquial "values" of free speech more than locking their replies, right Adrian?
I mean he's got every right to do that; nobody is entitled to use his replies as a vehicle for speech he doesn't want to hear or help promote.

I just wish he had the intellectual honesty to recognize that rule *doesn't only apply to him, or to speech he disfavors*
BTW, I consider a lack of intellectual honesty a disabling, insurmountable vice in public discourse, and I wish more people did. I can have a meaningful discussion with, and learn a lot from, people I strongly disagree with, if they're intellectually honest.
Read 4 tweets

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