Thread by @twoodiac

In effect, the hypothetical the OLC was addressing (apart from the Congressional impeachment question) was whether Trump could be prosecuted as a *former* president, based on the Mueller Report. 1/15

This was a *purely* hypothetical question at the time, and that is why ABJ called out the Department for its obviously false claim that Section II was shielded from public exposure under the rules governing “pre-decisional deliberations.” 2/15

As I’ve argued previously, since it was addressing a hypothetical question, Section II could not be accounted as a representation of pre-decisional deliberation, since no *decision* was ever at issue. Therefore there was none to be deliberated. 3/15

The OLC went out of bounds here because it was determined to drive a stake through the heart of *any* move, then or later, to hold Trump accountable for OOJ. (Rosenstein and Barr called this “landing the plane.”) 4/15

But now the DOJ’s position--for indeed it took a position--on this is no longer about a *purely* hypothetical question. It is only a *contingently* hypothetical one now, because Trump is no longer sitting POTUS. 5/15

and now Garland can decide (and should decide) whether to prosecute Trump for obstructing justice when he *was* president. (Biden says he will stay completely away from such decisions.) 6/15

Since Section II is still operative, it now presents a real problem for Garland and for the Department, because we KNOW that the Department MUST have used legal reasoning and appealed to legal principles 7/15

in reaching its conclusions that are at best questionable, and at worst ludicrous and even quite possibly destructive. 8/15

(Like maybe that there can’t be obstruction if there is no underlying crime--an absurd and utterly destructive claim that Barr actually aired before Congress at one point.) 9/15

The upshot is that at present actors in federal agencies everywhere do not know what their legal exposure would be for taking certain actions in response to federal investigations, and this is unacceptable. 10/15

Garland could help clarify the situation if he said: I will not disclose Section II because it represents sensitive internal Department deliberations (even if these particular deliberations are not in fact shielded by the rules governing such discussions)-- 11/15

but I *will* say that I do not support the conclusions reached in Section II.

If Garland did that, everyone would know that Section II, whatever it says, does not represent the present position of the DOJ. 12/15

This would be helpful as a purely legal matter, since it would leave the field as it was before Section II was written. But doing that would create a political nightmare for Garland, because then the question would be: 13/15

How can you *not* prosecute the Orange Man for OOJ if you think there *is* sufficient evidence in the report to prosecute?

What kind of a precedent would it be to not prosecute if Mueller *did* find sufficient evidence for a prosecution of Trump *now*? 14/15

I can’t see any way that Garland is going to extricate himself from the mess he is clearly in--and that he has largely created for himself by his decision to oppose the unsealing of Section II. 15/15

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