For people asking me about Merrick Garland's decision in the defamation case, I'll refer you to this article by

This is a defamation case.

The legal question is whether Trump made the statement in the scope of his employment

In other words, this case isn't about the rape itself (except that truth is a defense to libel)

I suspect that the issue will be appealed, and the appellate court will decide whether it agrees that the defamatory statements were uttered in the scope of Trump's employment.

The legal issue, from the government's brief:…

This is how the DOJ would answer a lot of the questions I'm getting.

It's easy to check the DOJ's legal reasoning.

Here is how to check the DOJ's reasoning: Look up the cases they cite to see if they indeed support the conclusion that courts in the past have found statements like Trump's to be part of his employment.

So I did it. Me = Nerd face

Here's Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 664 (D.C. Cir. 2006)…

The facts look somewhat similar. An elected official answered questions about his personal life and was sued for defamation.

In this case, a congressman, fielding questions about his personal life, made an utterance about Islam for which he was sued for defamation by a nonprofit (NGO) whose stated goal is to promote a positive image of Islam in the United States.…

The Congressman was talking about his marriage and said his wife didn't like living across from the Council on American-Islamic Relations after 9/11.

The court said the remarks were within the scope of employment, even though they were not discussing government or policy.

It was purely personal. But the court said he was acting within the scope of his employment because the press often asks politicians personal questions.

What Trump did and said was WAY worse, but that isn't the consideration.

This is from the government's brief👇

Is it annoying? Yes.

Is the DOJ right?
I could see this going either way.

Ooops, I didn't attach the screenshot for Tweet #8:

The government acknowledges that Trump was crude and disrespectful, and draws no conclusion about whether what he was was false and defamatory.

The government's argument is that the same law has to apply to everyone, which is what Rule of Law means.
There are statutes in place, and courts have made decisions about those statutes. The DOJ is trying to follow the law and past court decisions.

The laws I quoted govern all elected officials and federal employees.

Trump is included. He isn't special.

Not taking sides here, just trying to show you all that it's more complicated than it seems at first glance.

When Congress passes a law, and courts enforce it, there's always a policy reason.

It was not passed with Trump in mind. The reason was to protect federal employees and elected officials.

If you don't like a law, the thing to do is change the law.

If it makes you feel any better, there are no laws protecting Trump's call to Raffensperger pressuring him to "find votes" so he can win.

There are no laws protecting Trump from tax evasion or bank fraud. . .

He will try to hide behind the First Amendment for the charge that he incited a riot, but his argument (I believe, and so do others) is weak.

The rape itself (at issue in the Carroll case) is out of the statute of limitations. This was a way to get the truth out.

The reason I'm staying neutral (and said this could go either) way is (1) I'm not an expert in the Westfall Act and (2) courts do surprising things.

There may be a way for the courts to limit the scope, but most likely, that's for Congress.

People think that this is a rape case and Trump is getting off the hook for rape.

The rape itself is outside the statute of limitations.

This is a defamation case.

I came back to peek at my mentions to see if anyone is yelling at me and telling me I'm stupid. (It happens, particularly when I go against the current on Twitter).

Instead, I found this simple (and legally sound) solution.

Here's a legal argument Jean Carroll might use in arguing that the Westfall Act doesn't apply to the president.

I put this on my blog because I'm also getting questions about this through email.

This thread got long, so I added a bit to the blog that I didn't think fit here.…

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More from @Teri_Kanefield

10 Jun
Just pointing out that for a conspiracy to be a crime, the goal didn't have to be a violent attack.

A conspiracy to stop or interfere with the voting in Congress would be enough to make it a crime.… ImageImage
You can see this is what they're charged with: Conspiring to obstruct an official proceeding.

This, I think, is the flaw in Giuliani's First Amendment defense. He says you there isn't evidence he intended violence.

But did he intend to interfere with the counting of the votes? Image
Interfering with the counting of the votes is "lawless" under the Brandenburg v Ohio standard.

The standard doesn't require violence. It requires "lawlessness."

A subtle distinction, but a distinction. Image
Read 5 tweets
10 Jun
(Thread) Fear and Desperation

In this fabulous lecture, Harvard prof. Steven Levitsky explains that the Republicans are engaging in hardball tactics because they feel their backs are to the wall and they're desperate.
If this is the kind of thing I've been saying, it's because I've been reading Levitsky's work for years. He writes about democracies in Latin America, democratic erosion, and competitive authoritarianism. He's also a co-author of 👇

Also, 👇
His point: For most of the 20th century, American politics "worked."

That’s because through the 1970s, both parties culturally and demographically similar.

Specifically, they were white. White men controlled all major American institutions.

Read 18 tweets
8 Jun
You can start with my list and build from there:

The most important thing you can do is get involved in local politics. I live in a blue city in a blue state, and right-wingers are getting a foothold at the very local level.
Dear Twitter: One way to kill democracy is to cause a majority to give up and feel like the situation is hopeless.

Democracy (like elections) requires public confidence and public engagement.

This talk becomes self-fulfilling. People hear it, believe it, give up, and disengage.
Clint Watts @selectedwisdom said that one goal of active measure was to get people to lose confidence in democratic processes.

McConnell is trying to get people to lose confidence in the democratic process by obstructing everything and rendering the process broken.
Read 4 tweets
8 Jun
My latest from @NBCNewsTHINK

Over the weekend, I talked about how conspiracy theories have deep roots in American conservative history.

I should have included a definition of "conspiracy theories."

A conspiracy theory is "a belief that some covert but influential organization is responsible for a circumstance or event."

They have deep roots our history. . .

A famous example was blood libel in the middle ages:…

It's a lie, but a particular kind of lie.

Another was Hitler's "Jews stabbed us in the back" explanation for why Germany lost the war.

Read 4 tweets
8 Jun
The biggest threat to American democracy is that the Republicans draw more than 46% support nationwide and legitimately win local elections.

That's a lot of support for an anti-democratic platform.

Autocracy has lots of appeal. Democracy is slow, grinding work.
Some people dislike democracy because they lose patience with it.

But I'm not naive: I understand that most of the 46.9% who voted for Trump prefer a hierarchy.

They don't believe equality is possible, so they reject democracy . . .

. . . they think nature naturally forms a hierarchy. They think that white men were at the top of the hierarchy for most of our history because they deserve it.

When others want equality, they hear the demand for equality as a desire to replace them at the top of the hierarchy.
Read 10 tweets
7 Jun
By "designed to fail" McConnell means that he plans to block them.
McConnell has a solution: Stop blocking legislation, and then the Democrats' plan will fail 🤣

Or, he can block popular legislation and prove that the filibuster is used to break government instead of helping keep America (and Americans) safe.
Right. It's not a bad plan.

I can hear McConnell now: "The Democrats are playing dirty politics! They are trying to pass popular legislation designed to help Americans JUST TO MAKE REPUBLICANS LOOK BAD"
Read 5 tweets

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