QUESTIONS THREAD for legal twitter: attn prosecutors @glennkirschner2 @eliehonig @JoyceWhiteVance @JillWineBanks @BarbMcQuade @renato_mariotti

What evidence will DoJ need to be able to indict trump for 18 U.S. Code § 1512(c)(2) obstructing an official proceeding? 1/
Liz Cheney keeps saying that Donald, through action or INACTION, did with corrupt intent impede or attempt to impede an official proceeding. "Official proceeding" is covered as 5 judges now have ruled that the certification of the electoral votes IS an official proceeding. 2/
And as far as "through action did impede or attempted to impede", you could argue that his actions - such as trying to pressure Pence to throw out electors, or inciting the riot by telling people he'd march to the capitol with them - did impede the proceeding. 3/
But where I keep getting stuck is the "with corrupt intent" requirement. Not because I'm personally not sure he did it with corrupt intent, but because I'm wondering how to prove that. Mueller was unable to prove it against Junior (too dumb to crime). 4/
It seems to me Donald will simply say that he truly believed there was election malfeasance and therefore can't have tried to obstruct the proceeding with any corrupt intent. So question one is what would be needed to prove that corrupt intent? 5/
Could the call to Rosen that Donaghue took notes for be evidence of corrupt intent when he said "just SAY there's election fraud and me and my Rs in congress will do the rest", showing he knows there isn't fraud? Or Barr telling him there wasn't any fraud; does that count? 6/
Perhaps even establish a pattern of announcing fake investigations including his call to Zelensky and his call to Raffensperger? That brings me to question 2. Raffensperger. We know the Fulton County DA is investigating donald for election interference/RICO. 7/
Should the feds investigate it? Federal election interference 18 USC § 595 only carries a 1 year sentence. Would the feds tend to leave that crime to the Fulton DA? Are their dual sovereignty issues? The state case seems incredibly strong & carries harsher penalties. 8/
Finally, how about 18 U.S. Code § 2383 - Rebellion or Insurrection? This statute has been floated because it bars the person from running for office, and it fits the facts, but I'm wondering if it's like treason or sedition in that it's harder to prove with little precedent 9/
"Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto..." I mean, that's pretty spot on. Incites an insurrection against the LAWS of the US: 10/
I think it's easily provable he incited a rebellion against the electoral count act (a US law) by both sending the rioters there (many of whom have pled guilty to obstructing the proceeding) and by pressuring pence to throw electoral votes out. Further, 11/
He clearly gave "aid or comfort thereto" by not stopping the riot, and it sounds like the committee has evidence of that. Also, in their letter to Jim Jordan, they say they have evidence that donald, through his legal team continued to impede the count after the riot ended. 12/
Finally, Liz Cheney puts a lot of emphasis on "inaction" when talking about obstructing an official proceeding, but the statue doesn't mention "inaction". It says "corruptly obstructs, influences, or impedes any official proceeding, or attempts to do so". 13/
So, to sum up, how do we prove corrupt intent for 18 USC § 1512(c)(2), does "inaction" count for the same statue even though it's not mentioned in the law, should the feds charge for the Raffensperger call, and do we have a case for 18 USC § 2383 or is it too rare? END

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More from @MuellerSheWrote

4 Jan
THREAD on VANKY and JUNIOR's MOTION TO QUASH: Just finished recording @aisle45pod for this Wednesday where Andrew and I break down the trump's motion to quash Tish James' subpoenas, and here's an interesting idea: 1/
The trumps contend that her subpoena in the civil case is an end run around their right to a grand jury indictment because civil cases don't have grand juries, and if they plead the 5th, that allows for an "adverse inference instruction." 2/
That means pleading the fifth can be used against you in a civil case, but it can't be used against you in a criminal case. So that's the "harm" they're arguing; that pleading the fifth could be used against them. 3/
Read 4 tweets
1 Jan
THREAD: How wrong is this article? Let me count the ways. 1/…
Let’s start with the headline. “DoJ doesn’t seem willing to penalize Trump rioters with serious crimes.” First, at least 275 defendants have been charged with obstructing an official proceeding. Same sentence as seditious conspiracy : max 20 years. 2/
And at least 40 have been charged with conspiracy - either: (a) conspiracy to obstruct a congressional proceeding, (b) conspiracy to obstruct law enforcement during a civil disorder, (c) conspiracy to injure an officer, or (d) some combination of the three. 3/
Read 9 tweets
30 Dec 21
BREAKING: People under current DoJ criminal investigation for their role in the trump election lawsuits hosted gatherings to plot to overturn 2020 with multiple people including those with ties to John Eastman and the Arizona fraudit. 1/…
Lin Wood says he hosted numerous election conspiracy theorists at his plantation properties in South Carolina including Sidney Powell, Mike Flynn, Patrick Byrne (overstock) and Doug Logan (Cyber Ninja CEO). 2/
Jim ape rose also attended. He met with John Eastman - author of the six-point coup memo - on 1/5 according to @SethAbramson 3/
Read 5 tweets
28 Dec 21
We may be looking at a DoJ intent on insulating itself from politicization by waiting for criminal referrals from the J6 committee and the DoJ IG before it begins investigating the leaders of the coup. Do I agree with that plan? No. But it might be what we’re looking at. 1/
It’s important to note that the J6 committee says they will be done before the midterms, and that IF the GOP takes the house, they can gum up the works but they cannot stop a DoJ investigation 2/
If DoJ waits for referrals, they’ll likely be done with their probe by 2024. If republicans get the White House, they’ll simply pardon everyone anyhow. 3/
Read 6 tweets
28 Dec 21
Navarro tells @thedailybeast part of the plan to pressure Pence was to force media outlets to cover republican objections on 1/6. Most news outlets wouldn’t cover trump’s conspiracy theories, but they could bypass that with 24 hours of coverage of the delayed 1/6 proceeding
Read 4 tweets
22 Dec 21
BREAKING: after a trump judge recused herself from Flynn’s lawsuit, it was given to a GW appointee (Judge Scriven) who has just DENIED Flynn’s motion for a temp restraining order to block the 1/6 committee’s subpoena of his phone records.
First, Flynn failed to notify the committee he was filing the restraining order as required by rule 65(b)(1)(B)
Second, Flynn failed to show irreparable injury, loss, or damage pursuant to rule 65(b)(1)(A).
Read 4 tweets

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