The Jan. 6 select committee filed a response to Trump's executive privilege appeal.…

(Here's what Trump filed:…)

Shall we read the elect committee response together?

We can all this thread fun with appellate law 🤓

Because this is an appeal, we have a standard of review: Meaning, how much deference does the appellate court give to the trial court?

#1 from Trump
#2 from the select committee

Basically the appellate court makes sure that the district court got the law right. . .

A district court does two things: It decides what the facts are and applies the law.

This means that the appellate court gives deference to the district court's understanding of the facts, but not to its application of law.

(You all really wanted to know this, right?)

What this means is that when you lose at the district court level, you have a heavier burden on appeal. You have to show that the lower court misapplied the law and abused its discretion in other matters.

Abuse of discretion is hard to show.

We've never had a former president and a current president at odds over executive privilege.

But Trump's difficulty on appeal is that the law is clear: The Presidential Records Act (which Trump was cool with while he was POTUS) gives the final say to the incumbent president.

Not at all. It just means that, in assessing the law to be applied, the appellate court doesn't give deference.

But the chances that the law here is wrong is like nil.

For everything else, the standard is "abuse of discretion" which means. . .

... the judge was arbitrary and unreasonable departed from precedent and settled judicial custom.

Trust me: It's never fun to be the appellate lawyer when your client lost in court and the standard is abuse of discretion (I ought to know, I handled criminal appeals).

Now you see why the select committee framed its response in terms of abuse of discretion ⤵️

This is the appeal of the lower court's decision to deny a preliminary injunction.

Getting a preliminary injunction is harder than winning on the merits. . .

. . .because you have to show that you are likely to win on the merits, plus you have to show (by clear evidence) other things like the injunction is in the public interest and you will be irreparably harmed if it isn't granted.

The district court hasn't ruled on the merits.

So this isn't an appeal on the merits. This is an appeal from a lower court's refusal to grant a preliminary injunction.

Here's the mind bending part . . .

. . the appellate court doesn't decide whether to grant an injunction. The appellate court decides whether the lower court abused its discretion and misapplied the law when refusing to grant the injunction.

In this @NBCNewsTHINK piece, I explained why Trump's task at the trial court was uphill.

In a nutshell: His case was pitifully weak. See⤵️

Now you see his task on appeal is even harder.

I don't expect him to break his losing streak with this one.…

"But what if the idea isn't to win but to delay."

He needs court orders preventing the release of the documents while the case proceeds. This is moving fast because courts are not going to give him a lengthy stay on appeal.


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More from @Teri_Kanefield

25 Nov
🔹The committee will be finished before November. They're aiming for Spring.
🔹The DOJ will have all the material and it continues until 2024.
🔹If the Republicans take the House, the select committee "dead in the water" isn't the problem.

I suspect the panic over the DOJ / investigation timeline comes from this idea ⤵️

First, notice the authoritarian strong-man view of the world. Must be Tough. Must LOCK THEM UP.

Second, people forget the trial stage. We don't leap from indictment to "locking 'em up."

2/ Image
Third, this is all based on the delusion that the criminal justice system can solve the problem of right-wing extremism.

If people think that, refer them to this video (transcript on my blog).

Wanna prevent the Republicans from taking the House?

Read 6 tweets
25 Nov
There were no voting rights before the 1950s and the 1960s.

Do people think that African Americans and women were welcomed to the polls throughout our history?

Progressives push us forward. Reactionaries push us back.

Stop whining and do your part.
People born after the 1950s and 1960 inherited (for the first time in our nation's history) an expanding liberal democracy.

Before then, the democratic institutions worked -- for white men.

Sometimes people who inherit things believe they are entitled to them.
Nope. You have to work for it.

You can't sit back and say, "If X doesn't happen it's all over."

Did Thurgood Marshall say that in the 1930s when he took on the task of ending racial segregation?

He didn't sit back and make demands.

He didn't have that luxury.
Read 4 tweets
25 Nov
I am thankful for people like @staceyabrams who work to strengthen democracy.

What if—instead of making demands and attacking the people working to save democracy—the 1000s of rage merchants spent the next year registering and inspiring new voters?

Because actually nobody promised you anything like this.

Nobody promised that criminal investigations would be carried out with "transparency." Nobody promised Congress would work fast. And the "accountability" in the Constitution is elections so bad apples can be voted out. Image
In fact, nobody promised you a functioning democracy. If you want it, you have to work for it.

Democracy asks a lot of its citizens. It asks for civic involvement and it asks for an informed citizenry.

Autocracy is for the lazy. You can't do anything anyway, except complain.
Read 5 tweets
24 Nov
The current AG was sworn in in March. That was eight months ago.

So far 702 people have been charged, and investigations have been ongoing.

How about: It's been almost a year and the Republican Party is tightening ranks to protect the insurrectionists?

Put blame where it goes.
"Not a single person in power has yet been held accountable."

Trump was impeached.

Trump was removed from office.

Smart prosecutors don't indict before collecting all the evidence.
(These are not civil cases. Things work differently in criminal law.)
Are we on the same planet? Trump did not simply "step down at the end of his tenure."

He did everything he possibly could to stay in office. Everything.

Guess what, people. Sometimes insurrections WORK.

Getting ousted from office is a CONSEQUENCE.
Read 12 tweets
23 Nov
It's not that easy.

If a witness in a noncriminal matter chooses to plead the fifth, they don't get to avoid testifying altogether.

Witnesses subpoenaed to testify must testify, but can plead the fifth for questions that they deem are self-incriminating . . .
. . . and this can't apply to all questions.

Also, unlike in a criminal matter, the committee (or jury in a civil case) can draw inferences from their silence.

The Fifth Amendment is not a Free Get Out of Testifying card.
I saw his little rant 🤣 It doesn't appear that he's talked to a competent attorney yet.

"I take the Fifth and refuse to talk because the committee is the Deep State out to get me," isn't going to fly.

Read 4 tweets
23 Nov
Here's what I've done recently.

(Transcripts for all videos are on my blog)

Giuliani's First Amendment Defense and Trump's criminal liability in Georgia show the difficulty of criminalizing people based on speech.

You can possibly find occasions when shouting fire can get you into trouble: If you shout fire with the deliberate intention of causing harm, and you do cause harm, you may be liable for the harm.

But there is no general prohibition.

Banning speech is always problematic...

I mean, look. Suppose the theater really is on fire, or you have reason to think it might be, and people are afraid to shout fire.

With outlets like Infowars, it's hard to prove proximate cause.

Conclusion: The legal system cannot cure all of our social and political problems.
Read 4 tweets

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