Thread by @AkivaMCohen

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.

Why?

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,