Apparently Trump "plans to sue."…

Yeah, right 🥱

Not only would he lose, but such a lawsuit would likely backfire on him spectacularly.

(I first wrote about this in a Just Security piece.)

2/ It's generally accepted that the privilege is held by the sitting president, and the Biden administration already said won't assert executive privilege over this material.

(For more detail, see my Just Security article:…)
3/ So most likely his lawsuit would be thrown out on a motion to dismiss.

If the court DID consider his arguments, it would likely apply one of the exceptions and conclude that these records are not privileged.
4/ Under Nixon v. Sirica, the court could reject Trump’s claim on the grounds that the committee has made a “compelling showing of need.”…
5/ Under Nixon v. Fitzgerald the court could find that the material isn’t privileged because it was not “in performance of [a President’s] responsibilities of office” or and “made ‘in the process of shaping policies and decisions.”…
6/ Trump isn’t afraid to file lawsuits that are destined to lose—if he thinks such a lawsuit will buy him time.

But, if Trump brings this lawsuit, it would raise the question of whether the crime-fraud exception applies.
7/ While no court has yet specifically carved out a crime-fraud exception to the executive privilege, courts have come close. (US v. Nixon),

Presumably, a crime-fraud exception to executive privilege would function like the crime-fraud exception to attorney-client privilege.
8/ In other words, a judge would look at the material in camera ( to see if the documents contain evidence of wrongdoing.

Given what we already know, these documents are highly likely to contain evidence of criminal wrongdoing or unlawful conduct.
9/ Given what the committee has asked for, and what we know, there would certainly be evidence that Trump "induced" the obstruction of an official proceeding by disorderly conduct in a restricted building, thus violating:
18 U.S.C. 2
18 U.S.C. 1505
18 U.S.C. 1752
10/ I mean, that’s the least of it, right?

This means that if Trump brings a lawsuit to “protect” executive privilege, the lawsuit could trigger a finding from a court that the materials sought by the Select Committee contain evidence that Trump engaged in criminal behavior.
11/ Bingo.

Right out of the gate, a judge finds that there is evidence that Trump committed a crime. (It's not a finding of guilt, but imagine the headlines.)

This is why I don’t think he’ll dare bring such a lawsuit—at least if he has good lawyers advising him.
It will lose.
I thought about taking his complaint apart, but it seemed too easy. I guess it could be fun, though, right?

Trump doesn't tend to do well in court (understatement).
I flunk cut-and-paste.

I linked to the wrong article earlier in the thread.

Here is the @just_security piece I wrote, if you want more detail (and links and sources).…

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More from @Teri_Kanefield

3 Oct
Here is a foreshadowing of how the far right-wing will respond as the investigations into the January 6 Capitol attack get closer to the whole truth.

They will cast themselves as patriots and victims of government oppression. Image
Millions and millions of people will believe this.

I don't want you all discouraged when you learn that prosecution and the truth coming out will not end the threat posed by the far right-wing.

The fight will go on. See my pinned tweet.
It doesn't make sense, but it doesn't have to.
Read 4 tweets
30 Sep
See my pinned blog post, where I discuss this.

They'll push backward. That's what reactionaries do.

A solid majority in the Senate could have solved this by allowing Congress to reform the Court.

The real problem is that the Democrats didn't pick up more Senate seats in 2020.
Biden in the White House balances this by pushing forward in other ways.

The key to the Court problem is picking up a larger majority in the Senate in 2022 and keeping the House majority.
You can't gerrymander the Senate, and the Constitution (17th Amendment) provides that Senators are picked by popular vote in each state.

Right now, we have a split Senate, which is slowing progress.

Read 6 tweets
26 Sep
The Eastman Memo

This week, I've been writing (and Tweeting) about the Eastman memo.

Here I gathered together my analysis and the questions I answered, condensed it down, and put it into a video.

(I’ll have a transcript soon on my blog.)

Scholars quoted:
Bálint Magyar

(Like a well-trained appellate lawyer, I rely on authority. 🤓
Also, that way you don't think I'm just making stuff up.)

Questions answered include ⤵️
-Why did the plot fail?

Here is the transcript as a blog post:…

Everything in the video / blog post comes from my threads and Tweets from this week, and the analysis I did for the Washington Post.

But after more ☕️ I may do a Twitter summary as well.

Read 26 tweets
22 Sep
Scholar Hungarian scholar Balint Magyar offers a theory that explains why the US held out against the same tactics that caused other countries to collapse into autocracy.

His theory also explains why comparisons across nations don’t always work.

While writing about post-communist mafia states, he talked about the “big bang” theory:

He says that the “conditions preceding the democratic big bang have a decisive role in the formation of the system.”

Here’s how I understand the theory (to use Russia as an example. I'll get to Germany in a moment).

At the time of the Russian Big Bang (early 1990s, when a Democracy struggled to be born) the Communist Party had a monopoly on power and resources.

Read 10 tweets
21 Sep
Let's be clear about what we're talking about with the attempted coup on January 6, including the new info in the John Eastman memo.

We're not talking about "another term" with Trump as president.

If he would have pulled this off, he would effectively be a dictator. . .

Because he would have (1) overthrown an election and (2) installed himself as president in place of the duly elected president.

It would mean all democratic institutions had broken down.
It would also mean that the population would either tolerate it or be subdued by force.

When we say "he came close" the question is "close to what?"

I believe we came close to a major constitutional crisis and possibly a great deal of violence and bloodshed.

Read 12 tweets
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

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