I'll be serious now. Here's how I read the letter.

The letter Bannon wrote asserts that Trump has ordered Bannon not to testify, so short of a court order, Bannon won't testify.

They're acting as if Trump is still president (weird much).

They're applying the same procedures that applied when Trump was president.

Now there is a sliver of an argument (it will lose) but it isn't frivolous to claim that a former president should be able to assert privilege . . .

The problem is that Biden has said no, so the issue isn't whether Trump can assert the privilege. The issue is who has the final say, Biden or Trump.

It can't possibly be Trump.

Okay, so . . .

. . . the burden is on Trump to file in court because a statute gives the power to the sitting president.

I think I grabbed the right one: congress.gov/bill/113th-con…

So this is the applicable law . . .

. . . unless Trump persuades a court that the former president should have authority over a sitting president.

The reaction of any court would be: 🤣
And boot him out.

BUT (and here's the rub)

Bannon says that the select committee needs to go get a court order.

Bannon is saying, "I'm not going until you show me a court order."

But they don't need a court order. The law is against Bannon.

Now, Bannon (like anyone) has the right to challenge a subpoena.

But it appears he isn't going to do that.

It's hard to guess what is in the minds of these totally unhinged people, but I wonder if Bannon is looking forward to being a martyr.

Look at how Trump is glorifying Ashli Babbit.

Correction to #5. I wrote fast.

Trump would have to persuade a court that the law on the books (giving ultimate authority to the sitting president) is unconstitutional.

Courts apply the law unless the law is unconstitutional.

Here's how silly it would be for Trump to argue that the law giving final authority to the sitting president is unconstitutional.

While he was president, he was totally cool with that law . . .

So now he'll waltz into court and say, "The law giving authority to the sitting president was totally constitutional while I was president, but now that Biden is president the law Must Be Stricken."

A court: 🤣

(Also, unitary executive theory no longer applies)

If Bannon doesn't show tomorrow, he is in defiance of a legal subpoena. Full stop.

The committee has a few options at that point.

It isn't a delay tactic if he doesn't file a formal challenge.

It's looking like Bannon won't. (Coin toss as to whether Trump will, but that won't help Bannon).

Bannon doesn't get to make up laws and "I need a court order first" is made up.

That's why it almost looks like Bannon wants to be a martyr.

Remember, lawbreaking is now a badge of honor. They become heroes when they defy the government.

Bannon said: I follow Trump's orders.

Maybe he wants to be a "hero"🤷‍♀️

He wouldn't. It's stupid. I looked up the case he cited in his letter to see if there is any support in the law for his position. There isn't.

His argument is that he's obeying Trump's orders.

I've been arguing ⤵️that cool heads need to prevail, that rule of law should be orderly and deliberate.

If in fact, Bannon wants martyrdom all the more reason not to raise the temperature and create unnecessary drama or make "statements."

Okay, so not frivolous.
Here's the problem: The subpoenas cover information about the Stop the Steal rally and events leading to the insurrection, none of which are part of the president's duties of office . . .

The subpoenas also seek information about Trump's attempt to prevent the counting of electoral votes, which is certainly outside the scope of a president's duties.

(I think I misnumbered back there)

I'll add that things are a bit more complicated in terms of procedure and argument than I'm going into.
Also ⤵️ I threw in the comment about the unitary executive theory without explaining. Trump while president argued that . . .

. . the president has sole authority over the executive branch. That's Biden now.

So what will he argue? "Unitary executive theory actually means that Trump controls the executive branch, whether or not he's president?"


That's why I suspect that the letter is for the Court of Right-Wing Public Opinion and not a real court.

Whether Trump will actually file anything in court is an open question. I've argued it won't create meaningful delays and could backfire.



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More from @Teri_Kanefield

15 Oct
" . . . the speaker will send to the DOJ, and the statute says they have a duty to present to a grand jury. So he will be prosecuted."

They'd never get the truth out of him anyway. He'd lie to Congress.

I wonder if Bannon wants to be a martyr and a right-wing hero.
Basically Bannon will go to jail because he's clinging to the theory that Trump won and Bannon has to obey Trump's directions not to testify.

Look how Trump glorifies Ashli Babbit. I wonder if Bannon wants some of that.
Read 11 tweets
14 Oct
Someone else asked about obstruction.

Seems to me that in this letter, Bannon is saying he isn't complying because Trump told him not to.

"I refuse to comply because my cousin told me to refuse."

It's on Bannon. Nobody would really go after the cousin.
I'll attach the statutes in the next tweet.

Here are the statutes for obstruction of justice and witness tampering: law.cornell.edu/wex/obstructio…

I'm reading these as needing some form of intimidation.
Read 5 tweets
13 Oct
I've been planning to do this once the collection was complete.

I will give away sets to schools (preferably low income) that will use these.

I get author copies. No point in having them collect dust. I've read them :)

I'll mail them at my expense . . .
If you are a teacher or administrator, email me through my website.

I'm sure I will get more requests than I have books, so I'll have to select.

I'll select based on need and promise to use.
I may not get many low-income schools, so don't be afraid to ask. I do want all the sets to go bye-bye to schools.

It's usually assigned in 9th grade, but a 5th- grade girl (family friend) devoured Susan B.

(She didn't want to read any others because they weren't about girls)
Read 5 tweets
13 Oct
The last book in my Making of America series, in paperback inspired by the idea that the world would be a better place if 9th graders understood constitutional history.

Oh, yeah. I usually do birth announcements when a new book comes out. Cheesy, right?

Stand by . . .
People ask me what it's like to write for appellate justices and 9th graders.

There is no difference, except for font size and defining all the words.

Writing for 9th graders is also more satisfying. They are often more open-minded and a lot more fun.
I've also given some memorable talks to auditoriums filled with middle schoolers. The energy.

The shade they throw.

But . . . I get the last word. True story coming . . .
Read 4 tweets
12 Oct
My latest for @NBCNewsTHINK

We all know that Trump doesn't do well in court, where facts matter. He'd be well-advised not to try to fight the executive privilege matter in court. Yes, he'll lose. It could also backfire.
It depends on what you mean by "long." (There are some on Twitter who think 3 days is long.)

The election fraud cases went quickly (under a few months)

Delaying these documents even 4 or 5 months wouldn't matter, even if he managed to delay it that long.
Records are duplicative. The select committee is getting plenty of others, which Trump can't even pretend to control.

I think this one could get tossed out on a motion raising the crime-fraud exception, leaving Trump with nothing to appeal. . .
Read 4 tweets
12 Oct
Autocracy moves swiftly. It's thrilling. Things happen and they happen fast. It's all about fighting the enemy.

The Facebook whistleblower said: "It’s easier to inspire people to anger than it is to other emotions."

Democracy and due process are dull and slow-moving.
There are rules against prosecutors talking about ongoing investigations for a reason.

Consider how making it easier to imprison people would backfire. The whole point of due process is to slow things down.

Think of it this way . . .

One side wants to speed up the process. They envision a conveyor belt. For much of our history, criminal justice meant putting black men in jail. In autocracies, criminal justice is to put political dissenters in jail. . .
Read 17 tweets

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