What could Garland do to investigate Trump for January 6th?
IMHO, the only step for Garland is to appoint a special counsel (a Mueller-type).
And I think that's the only way Garland would go, termperamentally.
It says a lot that he hasn't/won't.
1/
law.cornell.edu/cfr/text/28/60…
2/ An investigation into Trump, Biden's once and future political opponent, checks both reg boxes:
a) "conflict of interest...or other extraordinary circumstances; and
(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel" Image
3/ Because Garland has not yet appointed a special counsel, he is unlikely to do so. It takes time to find a counsel, assemble a team, then more time for them to get off the ground.
Let's say he had appointed one today. There still isn't enough time left to litigate.
4/ Once they might seek documents from Trump and those around Trump, they would face inevitable litigation over executive privilege, which would take about a year to get resolved by the Supreme Court. Then, even if they find a smoking gun, we are talking about a trial in 2024...
5/ ...and that would be a circus. The DOJ has an appropriate policy not to bring an investigation or a prosecution of a candidate during a political campaign. There is very good reason for this policy, and it seems likely that the Garland DOJ is seeking to avoid partisan fights.
6/ I understand Garland's approach. He seems to want to de-escalate the DOJ's role in partisan fights and de-criminalize politics.
He probably knows he has run out the clock on a Trump prosecution timeline, given the limits on completing a prosecution by 2023.

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More from @jedshug

24 Dec 21
A very merry Christmas to all who celebrate!

(It’s a not-well-kept secret that many traditional-ish Jews not only wrote some of the best Christmas songs, but also love Christmas songs).
It reminds me of a BC time years ago, when a group was trying to set a Guinness record…
1/
2/ (BC = Before Covid)
…for the largest carrolling group ever assembled. I was so excited to participate. I didn’t know the songs very well, and I probably have the worst singing voice of anyone who ever enjoyed singing. Like American-Idol outtakes bad.…
3/ A large group was appealing, so I started practicing a bit…
Then I checked the date: A Saturday afternoon.
Shabbat.
Not walking distance, back when I was trying not to drive on Shabbat…
I said, “Nu, that’s not very inclusive of all the shomer Shabbat carrollers.”
Read 4 tweets
22 Dec 21
The Royal Prerogative, according to Blackstone, included which of the following:
A prerogative to...

(H/t @ShaniaTwain, @KingBobbyBrown, @jdmortenson)
Hint: The unitary exec theorists misquoted Blackstone to claim one of these.
Somehow, I keep finding evidence to the contrary.
Please tell Roberts, Kavanaugh, and Thomas that originalists are just making stuff up, so maybe they should be less sanctimonious against Roe & privacy.
I love that a wrong answer is in the lead.
I found more evidence in Aylmer, The King’s Servants, including this page.
He says each question was posed as a “yes, obviously”
Cc: @BlakeProf @MJSteilen @petermshane @narosenblum @Jane_C_Manners @LevMenand @ArsScripta @gauthamrao
Read 4 tweets
13 Dec 21
If Trump wins a second term, I hope people understand how Cy Vance, Eric Schneiderman, Tish James and the corrupt Cuomo NY Democratic Machine enabled him all along the way.
2. Eric Schneiderman was too scared to go after Trump.
Wonder why.
newyorker.com/news/news-desk…
Read 4 tweets
8 Dec 21
A new thread on originalism myths:
“The Indecisions of 1789: An Originalism Cautionary Tale” documents another series of misuses of sources by originalist unitary executive theorists.
The Roberts Court relied on this myth to expand presidential power: shugerblogcom.wordpress.com/2021/12/08/the…
2/ The mythic "Decisions of 1789" is that a House majority endorsed the unitary theory of implied presidential powers.
But only 16 of 53 (30%) fit that bill.
Trying to find more votes, Prakash miscategorized many members or sources.
My paper here:
papers.ssrn.com/sol3/papers.cf…
3/ The 1st error: Thomas Hartley.
Prakash in "A New Light on the Decision of 1789," cited by Justice Thomas, claims Hartley was part of an "enigmatic" bloc of members that *could* have favored the unitary theory.
But he clearly was not a presidentialist:
shugerblogcom.wordpress.com/2021/12/08/the…
Read 8 tweets
3 Dec 21
If your first two shots were Moderna, your booster shot is post-Moderna.
If your first shot was Johnson & Johnson, your booster shot is Grant & Nixon…
My apologies to @EricColumbus for missing that he tweeted this first.
But let me make up for it:
If your first shot was Janssen, your booster is Jansssen...
Read 5 tweets
1 Dec 21
Likely the most significant oral argument in years (Dobbs) is happening right now, and Mississippi's lawyer is already making patently ridiculous arguments:

Abortion rights are the only rights implicating life and death?? Hello death penalty?
supremecourt.gov/oral_arguments…
Right now in Dobbs at 11:22:
You can't read too much in these tea leaves... but it sure sounds like Justice Kavanaugh is practicing, reciting many examples of overturning precedents, and sounding out an opinion (and a 5th vote) to overturn Roe and Casey.
I heard CJ Roberts's questions around 11:05 this morning the same way:
Practcing or signaling a willingness to overturn precedents (i.e., Roe).
With caveat that Justices are often trying out arguments, the tone from Roberts and Kavanaugh seemed a hint against Roe/stare decisis.
Read 8 tweets

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