Thread by @Teri_Kanefield

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.”)

1/

For people who prefer to read, here's a transcript.
terikanefield.com/trumps-crimina…

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?

*authoritarian

2/

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.

3/

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⤵️

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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"?

5/

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.

6/

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.

7/

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.”

politico.com/f/?id=00000169…

8/

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.

Source: time.com/5531604/andrew…

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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.

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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.

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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?

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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.

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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.

fultoncountyga.gov/districtattorn…

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

14/

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.

15/

https://twitter.com/Roslynbooks/status/1439636067003604997

"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.

16/

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.

17

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.