Thread by @MuellerSheWrote

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