Criminal Law for Twitter 101

For this week's video/blog post, an analysis of Trump’s criminal liability in Georgia (As I promised yesterday)

Spoiler: The correct answer to every legal question is: "It's complicated." (Alternate answer: "It depends.”)

For people who prefer to read, here's a transcript.…

By the way, some of left-leaning Twitter has a weird* idea of criminal law and the justice system. They want justice to be swift and brutal.

The problem: That can backfire. Right?


For someone to be prosecuted, there has to be a specific statute on the books, and the prosecutor has to prove each element of the offense beyond a reasonable doubt. This is a high standard.

One question is whether Trump has violated Georgia Code § 21-2-604.

On the face of it, Trump did just that.

The problem: Trump is a master at muddying the waters and saying so many contradictory things that it's hard to pin a specific meaning can on him.

Mob bosses do this.

Here are a few snippets from his phone call with Raffensperger⤵️

The kind of authoritarian leaders @ruthbenghiat describes in her book also do this⤵️

This is not a coincidence.

Trump asked Raffensperger to "recalculate."

See the problem? If you criminalize that, what happens if there IS fraud and someone says, "please recalculate"?

Yes, Trump hinted that Raffensperger could face criminal consequences, but the threat was vague. He said this (about "corrupt ballots) which could be taken to mean, "If you let people cheat, that's criminal."

But never fear! All is not lost!

Prosecutors have lots of tools.

There's a nifty thing called "habit and practice" which can be used to prove intent.

The prosecutor can enter evidence of Trump’s general habit and practice (how he pressures people) to prove what he intended during that specific call with Raffensperger.

And we have lots of evidence that this is precisely how Trump pressures people.

Michael Cohen testified under oath before Congress that "Mr. Trump did not directly tell me to lie to Congress. That’s not how he operates.”…

McCabe tells a similar story. After Trump fired Comey, Trump summoned McCabe to a meeting and offered a lie about what happened with the firing of Comey. McCabe knew it wasn’t true. He also knew Trump expected him to “adopt” this falsehood.


There are lots of examples, the most famous of which is "I would like you to do us a favor, though."

I suspect Trump thought the call was "perfect" because he wrapped the request in enough layers of ambiguity to give himself (and his defenders) cover.

We learned this week that the investigation is quietly moving forward. A team of lawyers is compiling evidence.

Here's what DA Willis said⤵️

People forget that an indictment is just the beginning. The defendant, of course, has the right to a trial.

If Trump goes on trial, we will have a media circus beyond your imagination.

The case needs to be airtight. People clamoring for "consequences" sort of forget that it's up to a jury. What happens if a jury returns a not guilty verdict because they have reasonable doubts?

Again, this is for the "consequences right now!" people: It seems to me that an indictment followed by a finding of "not guilty" (which can just mean that the prosecutor hasn't proven the case) would make Trump more dangerous than not indicting him.

I don't know what is in the evidence that is now being gathered ⤵️ but it's all in the hands of the newly elected D.A. in Fulton County, Fani Willis.…

She answers to her constituents. (So she's actually the "system" or "institution.")

I talked about this in the blog post and video. More weasel words. These Twitter threads are just a brief summary.

I like to keep these threads short and just hit the main points.


"We" don't indict. It's not a group decision.

A pillar of democracy is prosecutorial discretion and independence.

In this case, the decision is up to Fani Willis, the newly elected DA of Fulton County.

When I mentioned the fact that an indictment could backfire, I was addressing the "consequences right now we need an indictment now!" people.

Prosecutors are supposed to base their decisions on the strength of the evidence, but it gets more complicated.

Something to keep in mind. My analysis was based on a few facts -- the letter and phone call. It's likely that whatever information the prosecutors are gathering will strengthen the case considerably.

I just wanted people to see that the call and letter alone are not slam dunks.

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More from @Teri_Kanefield

20 Sep
According to John Eastman, "The Constitution assigns the power to the vice president as the ultimate arbiter" when electoral votes are counted.

(It's not true)

But does he still think that's true?

If Democrats create a dispute, can Kamala Harris pick the next president?
A key error here is that it assumes that the Electoral Count Act is illegal and assumes that states can set aside the laws they have on the books for allocating their electors.

In fact, rules governing the election have to be in place before the election.
The idea was to create chaos and give Trump's claim that he won the election more legitimacy.

He still wouldn't have stayed in the White House because this wouldn't have worked -- but it may have persuaded more people that Biden didn't win, which undermines the government.
Read 9 tweets
18 Sep
For all the people in my mentions saying this like this, please see the video I recorded last Sunday.

I think people are confusing "They're still fighting" with "they think they won."

I also find the "no consequences" peculiar. Trump lost. He's out of power . . .

Dems hold both houses. (Slim majorities, but still)

Trump lawyers are being sanctions and disbarred.

Hundreds of insurrectionists are being criminally prosecuted.

Trump is facing countless lawsuits.

Criminal investigations are ongoing.


Okay, "We'd like to see all the people involved in jail," is quite different from, "There have been no consequences."


Read 5 tweets
12 Sep
This week, I addressed this question about Republican attacks on democracy: “I honestly can’t take it anymore. When will it end?”

And this comment: “I’m really worried they’ll try again and next time they’ll succeed.”

I’ll have a transcript shortly.

Scholars relied on: @dziblatt, Steven Levitsky, Max Weber, Lucan Way and, indirectly, @karen_stenner

After more ☕️ I'll come back and attempt a Twitter Summary.

The transcript is here:…

The latest attacks are in the Calfornia recall with a chorus of voices, including TFG, insisting that if Newsom wins, it will be because the election was rigged (CA went for Biden 63.5% to Trump 34.3)

The problem: A swatch of angry and militant Californians think it’s true.

Read 22 tweets
8 Sep
This means that DeSantis is likely to keep losing.

The interesting question, of course, is why he's pushing a losing and unpopular issue.

The judge held that while Florida law gives parents control over their children's health, there is a clear exception . . .

. . . for government actions that are (1) needed to protect public health and are (2) reasonable and limited in scope.

He said a school district’s decision to require student masking to prevent the spread of the virus falls within that exemption.

I can't imagine such a debate. If Trump wants the nomination (and is in a position to be the nominee -- I am skeptical) I suspect everyone will step back.

I think the contest is to be Trump II

Read 4 tweets
6 Sep
Speaking of women as "host bodies" (we were speaking about that, weren't we?) this is from a 1908 Supreme Cort case on why legislatures were justified in passing laws that "protected" women.…
In fact, I'm stumbling on these because I'm reading my Ruth Bader Ginsburg book aloud for my YouTube channel. I'm up to chapter 9, but I haven't gotten around to posting them yet.
There are so many ways to understand what is happening in Texas.

One is as extreme reactionary / regressive: A desire to take us back to the "good old days."

The "again" in MAGA signifies reactionist politics.
Read 6 tweets
5 Sep
This week, I resolved the contradiction between saying “Vaccine mandates violate bodily autonomy” while passing draconian anti-abortion laws.

It makes sense within the context of Christian nationalism and Christian fundamentalism.

When I published it, YouTube told me that it contains sensitive information and viewing may be limited.

No porn or foul language, I promise!

Maybe it dislikes "anti-abortion" and discussions of rape laws?

I’ll have a transcript (and perhaps a Twitter summary) shortly.

In a nutshell: Christian fundamentalism envisions a patriarchal hierarchy with women in a subordinate position.

Pretty much what nineteenth-century American courts held. From Bradwell v. State, 1872⤵️

The full opinion is here:…

3/ Image
Read 17 tweets

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