Thread by @jentaub

🧵 I have a theory about the content of part two of the 2019 memo to Barr on whether the Mueller report provided enough evidence to prosecute Trump fit obstruction. This is the part @TheJusticeDept is holding back.

1/

And though I would have preferred it being released and it’s entirety now, it’s complicated. Let’s walk through this.

2/

Before I do. I want to be clear, I’m not talking about the legal justification/argument for a stay pending appeal. That is set forth very clearly in the court documents.

3/

What I am focused on here is what might be behind the redacted pages and how that content if revealed could put pressure on department.

4/

OK. There are two basic scenarios I will consider. Under the first, the redacted portion deals with Constitutional arguments for why a president cannot charged with obstruction of justice when he is hiring, firing, giving orders and so on (even after leaving office).

5/

If is what the memo contains, there are concerns, if released we would then believe that the official Justice Department position is that Joe Biden can also obstruct justice. It would then force Garland to clarify that The justice department does not hold that position. If so

6/

This is a bit of a catch 22. It would be bad for Justice to say Joe Biden can obstruct justice. And yet it would also be challenging if they say that Trump is not protected. Especially if they are either considering charges against Trump or trying to avoid.

7/

OK. Here’s here’s the other scenario. And keep in mind both things can be true. The memo could have both the constitutional argument and the following as well.

8/

In the second scenario, the redacted portion analyzes some or all of the obstructive acts identified in volume two of the Mueller report.

If the memo concludes that there would be enough evidence to charge Trump this would put pressure on Justice to do so now.

9/

Such a pressure would exist even if such an analysis was qualified at all times by the claim that the constitution protected him from acts committed while in office. Because see above.

However…

10/

There is a wrinkle. What if the analysis of obstructive acts concludes that none of them were worthy of prosecution.

Recall that under the several obstruction statutes,the common elements of proof are an obstructive act, nexus to an official proceeding, and corrupt intent

11/

If the memo came to the conclusion that not a single one of the obstructive acts was worthy of prosecution, that in doing so it might make it more difficult to bring obstruction cases against ordinary defendants. Here’s why.

12/

This would become an official department position on these elements of obstruction under the applicable statutes and defense lawyers would point to them by analogy. If at least, it would be official departmental policy. Again, this would pressure Justice to clarify.

13/

Again the catch 22. Releasing and doing nothing would undermine not just obstruction prosecutions but also undermine the ability to investigate ordinary crimes as people would be less willing to cooperate.

Yet . .

14/

If released, there would be pressure to clarify to say that the memo was wrong. And then, this would mean that there was sufficient proof to bring an obstruction case against Trump now. This would put pressure to bring the case.

15/

To conclude, the above thread is considering what is actually in part two of the memo to Barr. It is not an analysis of the legal arguments that Justice is using to protect it from public release.

And yet . .

16/

The redacted portion of the memo is not Schrodinger‘s cat. It exists and departmental lawyers have seen it. I posit that this is official policy of the department as it stands even if we don’t see it. The cat is very much alive.

17/17

That should say for not fit