What should we think about the fact that Mueller-era obstruction of justice charges against Trump have not been charged? Is this a reason to doubt Merrick Garland? A THREAD
As a place of beginning, federal prosecutors are guided by the Justice Manual, which is readily available for everyone to read. It includes a section on Principles of Prosecution. justice.gov/jm/jm-9-27000-…
With respect to Trump's acts, they occurred in DC, so they would normally be considered by the DC US Attorney. They have 5 choices including further investigation, prosecuting, or declining prosecution.
Mueller himself investigated, but (in a decision I still do not fully understand), decided not to either request further investigation, commence prosecution, or decline to prosecute. As we all know, Barr stepped in and declined to prosecute.
As we now know, everything about that decision was deeply corrupted, to the point that Judge Jackson basically found everyone from RR to Barr to O'Callaghan to the OLC to be lying frauds.
It is undeniable, however, that Barr did decline to prosecute, and t/f the case was closed in the DOJ. Re-opening it (if the DS USA was inclined) is wrapped up in the absolute rats nest that was the decision to close it ... and none of us know what is happening in that rat nest.
Biden nominated M Graves as the new DC USA in July, 2021, but he was only sworn in on November 5, 2021 (Senate Rs held it). So he inherited the Jan6 cases AND DOJ's worst scandal ever AND whatever is left of the Mueller report. During a pandemic justice.gov/usao-dc/meet-u…
We know that M Garland has pulled in prosecutors from other jurisdictions to help with J6, but it is still the biggest investigation in DOJ history. And the DC USA, who is responsible for all charging decisions in the case has been on the job since just before Thanksgiving.
We all hope that the J6 investigation is leading to Trump. The DC USA would have a better idea of that than any of us. But let's look at the Mueller obstruction charges - are they readily provable? Should they be revived? Is it a bad sign if they have not been yet?
First off, it's possible that they have already been filed under seal, and we don't know, but let's assume that that is not the case.
The first hurdle the DC USA must face is that two prior prosecutors have already declined to prosecute. Mueller, by punting. Barr/RR affirmatively. If Trump were to be charged now, that fact would be attacked courts and the press - incessantly.
(As an aside, there are a thousand things in the Mueller report that are at least as important as the Trump prosecution - especially the hacking and social media campaigns by Russians against the US). s3.documentcloud.org/documents/6953…
Mueller devoted 21 pages of the report to legal and constitutional questions surrounding indictment of a POTUS for obstruction of justice, then reached his famous final conclusion.
Mueller says "The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment." (In other words, its a tough call)
The most difficult question: whether "the admissible evidence will probably be sufficient to obtain and sustain a conviction." On anti-Trump twitter everyone acts like it would be a slam dunk to win an obstruction case against Trump. I entirely disagree. It would be tough.
Mueller spent pages on the question of whether Congress has the power to regulate, on separation of powers principles, a POTUS's conduct. Of course they do, but that doesn't mean it's not a significant defense in this case. And the DOJ might have to defend against its own case.
The DOJ would also have to prevail on the point that Trump acted "corruptly." We all assume he did, but that has to be proven beyond a reasonable doubt. Over the presumption that a POTUS can hire and fire at will - which he can, see, Comey.
Here is Mueller's paragraph on the types of motivations that Trump might raise to undermine the idea that he acted corruptly.
Mueller stated that an ex-POTUS could be prosecuted on the facts in the Mueller report. But he has never said whether he would exercise prosecutorial discretion to do so. He refused to answer that question,and would never say the new DC USA should. That's the new DCUSA's burden.
There are many, many strategic and tactical decisions that would go into prosecuting Trump on Mueller facts. All mixed in with the Barr DOJ malfeasance and J6 and uncooperative witnesses.
This decision is HARD, anyone that asserts that it is easy that doesn't have a full grasp on the factual and legal difficulties. I want Trump brought to justice as much as anyone, but let's not attack Garland for a difficult decision that isn't even his to make. Dirk out.
If you dig this kind of thing, I always appreciate a follow. I try to provide analysis of important issues without resorting to harnessing twitter rage of the day.

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More from @DirkSchwenk

10 Jan
I am most of the way through #1619Project. One of the main points it makes is that our American democracy has never been fair, but that Black Americans have continued to fight for it nevertheless.
For a brief time in the South following the Civil War, Blacks were able to make a meaningful impact at the polls, including sending the first ever Black US Senator Hiram Revels of Mississippi.
This progress ended - despite Constitutional guarantees - when President Jackson withdrew federal troops from the South, leaving Black populations to suffer white vigilantism, lynchings, voting restrictions passed into law, and the effective end to their voting franchise.
Read 12 tweets
5 Jan
Watching AG Garland: Not really live tweeting, but I'll hit some high points. Starts with thanks, commitment to democratic institutions and the sanctity of the right to vote.
Now onto Jan 6: talking about the day itself; assaults on PD; perpetrator's violence; officers crushed; dragged; tazed; beaten, etc. Chemical agents. Pipes and poles and deadly and dangerous weapons. Also attacked journalists.
Attack on the peaceful transference of power: "those involved must be held accountable." (Damn, right, let's do it).
Read 18 tweets
5 Jan
Watching Biden and Fauci, et al., talk about reopening schools and discuss mask mandates brought to mind this question: What has Biden decided to do about the unvaxed/anti-vaxed? He is definitely NOT doing this: bbc.com/news/world-eur…
The Biden admin has decided that we are going to open schools, come hell or high water. This is a sound decision where pretty much everyone is vaccinated and in locations that mandate/encourage masks indoors. But what of Houston? houstonchronicle.com/news/houston-t…
And what of Florida? 90 percent of school age children there are unvaxed: wesh.com/article/low-va…
Read 10 tweets
3 Jan
BREAKING: Wray and Rosen had elite special forces in the Capitol with shoot-to-kill authority on Jan. 6 tasked with continuity of government.

Their orders were authorized under standing presidential authority, but not sent through Trump at the time. They would have been tasked with protecting Pence and Pelosi, among others in line of succession.
The fact this specifically mentions "line of succession" is a big deal. It's possible that Jan6 failed because there were unexpected special forces in the Capitol under orders from the good guys.
Read 14 tweets
27 Dec 21
For the first time in a long time, I have a book I really want to read. A dangerous book, apparently. I fine the intro challenging to my Massachusetts/Plymouth Rock upbringing. So far, so good. Image
In the hopes of encouraging others to read, I'm going to tweet about it as honestly as I can. 1619 refers to an event in the Jamestown settlement which predates the arrival of the pilgrims in Plymouth.
I still have difficulty believing that there was a European colony before Plymouth -Jamestown in 1618. 1619 is the date that the first ship bringing African slaves arrived. Plymouth Colony was settled in 1620. 2019 was the 400th anniversary of the first African slaves in the US
Read 9 tweets
21 Dec 21
President Biden nominated Ret Gen Austin for SECDEF on 12/9/2021, just in time for all hell to break loose. Gen. Austin is doing some things. A THREAD.
On Feb 3, 2021 Gen Austin ordered a one day stand down "to hold an in-depth conversation on the values underpinning national service, the oath of office, ...unit cohesion, [and] to gain a better understanding of the scope of the problem of extremist activity within the ranks."
On April 9, 2021, he issued a memo directing immediate action on extremism, and establishing the Countering Extremist Activity Working Group (CEAWG) based on what had been learned from and since the stand-downs. defense.gov/News/Releases/…
Read 12 tweets

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