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25 May, 5 tweets, 2 min read
DOJ's moves on Trump obstruction not the only notable legal filings overnight politico.com/news/2021/05/2… Trump lawyer also filed motion to dismiss Rep. Swalwell's suit over Trump speech prior to #CapitolRiot. Doc: storage.courtlistener.com/recap/gov.usco… Some thoughts follow...
Trump is claiming absolute immunity (again), saying that his speech on 1/6 and his actions challenging the election were taken in his official capacity as president. Brief also takes obligatory shots at some standard Trump targets...
Says Maxine Waters is 'far more culpable' for her statements related to Chauvin/George Floyd, than anything Trump said. Brief also says Swalwell makes 'poor decisions,' and references alleged honeytrap/China episode.
One interesting legal issue: brief says Trump is entitled to Westfall Act immunity bc he was speaking and acting as president. Doesn't say if he's applied to DOJ for that, though, which is required. Trump atty Jesse Binnall declined to comment.
Seems a tad unlikely Garland would grant it, anyway. Of course, Barr did grant it to Trump in E. Jean Carroll libel suit over his denial of her rape claim. Issue is on appeal at 2nd Cir. with 1st Biden-era DOJ brief due June 7. Earlier: politico.com/news/2020/10/2… (ends for now)

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More from @joshgerstein

Josh Gerstein Profile picture
9 Apr
In court, #CapitolRiot arrestee Freddie Klein's defense attorney confirms POLITICO report that Klein was 'working the #FOIA desk' at State Department around time of the Jan. 6 assault. Earlier: politi.co/3eb9mXm
Klein's phone had 90GB of data on it, and prosecutors just got access to it this week because a taint team had to go through for possibly atty-client material.....
Govt struggling w/video at this hearing. I will predict that judge releases Klein w/conditions, probably GPS.
Read 10 tweets
Josh Gerstein Profile picture
28 Mar
NEW: Feds defend use of '68 anti-riot law critics say is racist. Justice Dept boasts of charging 80+ cases in response to last year's #BLM protests & #CapitolRiots Earlier: politico.com/news/2021/03/1… New doc: documentcloud.org/documents/2053…
Note: Unlike a similar filing in Oregon a couple weeks ago, this new one has sign-off of DOJ HQ's National Security Division. DOJ wouldn't say if it signed off on the earlier one.
The new Main-Justice-approved brief appears to omit the provocative claim that prosecutors' use of the statute, which has an interference-with-commerce provision, was appropriate because many #BLM demonstrations included paid protesters.
Read 4 tweets
Josh Gerstein Profile picture
26 Feb
Gina Bisignano, Beverly Hills nail salon owner and charged in #capitolriot was arrested in L.A. five weeks ago and still stuck in system. Currently, in Oklahoma, perhaps at Marshals Service transport hub there. Bail hearing underway now. Earlier: politi.co/3a1rnoJ
"She certainly drank the Trump Kool-aid," defense lawyer Charles Peruto said. Says his client didn't do anything more than shout into a bullhorn on 1/6. "In reality, this is nothing, but free speech."
Judge Carl Nichols, uses phrase I think bespeaking his generation, says defendant was right there as the crowd was 'wailing on' police. Prosecutor says she abetted man who broke window in Capitol: 'She has her hands on him. She’s touching him and directing him.'
Read 6 tweets
Josh Gerstein Profile picture
24 Nov 20
JUST IN: Carson City, NV judge hearing election challenge filed by Trump electors has set a hearing for 12/3 at 130PM local. Will allow 15 depositions for each side between now and then. Atty is @SidneyPowell1's co-counsel in Flynn case, @jbinnall.
Binnall said part of the challenge is over the use of Agilis scanner and signature matcher. 'It is important, for sure, but is far from the main meat of our challenge," he said.
We could see fight over secrecy relating to witnesses. Binnall said he wants a protective order b/c of threats, but idea that a presidential election challenge will be resolved based on secret testimony seems highly implausible. List of challenger witnesses due by 5PM local tomw
Read 4 tweets
Josh Gerstein Profile picture
23 Nov 20
JUST IN: Trump appeal brief for 3rd Cir. due at 4:00PM, filed at 4:19PM. Doc: bit.ly/2KBdNhx Earlier: politi.co/36WChJA
Not sure what to make of it, but only lawyers who signed this brief are Marc Scaringi and Brian Caffrey. Also the brief throws Kerns under the bus, says she was responsible for the 1st Amended Complaint Trump campaign now says was erroneously filed.
Another Q for the lawyers: if you cite a district court opinion that has been stayed by published appellate court opinion, are you supposed to note that as well? Like this one: bit.ly/370aJD3
Read 4 tweets
Josh Gerstein Profile picture
17 Nov 20
Important point since Giuliani is arguing right now for 'canceling of these ballots'....almost 700,000 the Trump campaign says were counted w/inadequate observation....
Another atty for SOS Boockvar, Mark Aronchick, just quoted Saylor's dissent from PA Supreme Court ruling where he said ballots shouldn't be thrown out even if observers were mistreated
Here's my report from inside the modest courthouse in a central PA city of 28,000 where Giuliani is trying to rescue the Trump campaign's foundering effort to challenge the election results politico.com/news/2020/11/1…
Read 22 tweets

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