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Harry Litman

@harrylitman

Feb 10

So remember a big reason for the second impeachment was to try to disqualify trump from holding future office. This Presidential records act Issue, which the archives has asked DOJ to investigate, has a very intriguing possibility.

Simplifying someone, people convicted of violating it are barred from hoarding future office. Now it has a very high intent requirement -you have to willfully break the law - but in “trumps” case we do know that he was advised repeatedly that he was breaking it.

You can foresee a possible resolution in which the DOJ charges him under that provision, goes for a conviction (I’ve written about that, and it would have to be very solid), But then seeks only the disqualification provision And no e.g. prison time. I tend to doubt

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Harry Litman

@harrylitman

May 14, 2021

Posit (plausibly I'd say)that Gaetz & Greenberg had sex w/ the same woman who was 17 at the time. He has staked his public reputation on insisting that never happened. But he has to now think that Greenberg will testify it did. AND, given what an impeachable witness Greenberg is,

he has to further posit that the feds have corroborating evidence, e.g in the form of testimony from the victim. Does he now try a modified mea culpa in the public arena to try to salvage his public reput? If he does, that kind of sinks him at trial, where it can be used v. him.

And it doesn't do much in the criminal arena, where the law provides that if he had opportunity to observe her, he can't claim, as presumably would be his line, that he didn't know she was 17 --his knowledge is assumed. Moreover, how is he going to make that argument to the jury?

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Harry Litman

@harrylitman

Feb 2, 2021

a few points about the House brief:

1. From the argument heading (referring to when other attempts to overturn the election failed), they are telegraphing that they will make his overall course of conduct, beginning with the late Dec exhortation to come to DC, gonna be "wild."

2. They assert that they can prove the charge based on “reasonable foreseeability,” without regard to whether Trump defense claims that he didn’t intend for it to happen. They write, “it was obvious and entirely foreseeable that the furious crowd...was primed for violence."

3. This is plainly a fact; everyone saw it and the Senate lived it. It is therefore simply true that he “incited an insurrection." No special intent is required. But it’s clearly not true that he didn’t intend it. Next to the video tape itself, perhaps the most important

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Harry Litman

@harrylitman

Nov 10, 2020

The concerns abide about Barr and the DOJ and the calls from some Rs for state legislatures to send their own slates of Presidential electors. The #1 point that many have made, including Barr in the memo, is that the only legal claim that could now fly would be one that

at a minimum, would flip the result in a state from Biden to Trump . There are literally no such claims even alleged. The 15 dead people who voted in PA turns to be false, but even if it weren't, it couldn't be used to overturn an election that Biden won by 45,000 votes.

But also consider this: it's ironic that DOJ is getting involved b/c any switch of electors now would violate FEDERAL law, which specifies that while the legislature can choose the manner for their selection, it must do so by Election Day and not after. Pennslyvania, like every

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Harry Litman

@harrylitman

Jun 20, 2020

Thread: here's where I think we are. It's pretty exquisite. Berman is court appointed and under 28 USC §546 his appointment lasts until there is a presidentially appointed and confirmed US Attorney.

OLC opinion from 1979 says under 546 the AG can't fire someone -- i.e can't trump so to speak the court's choice -- but that President can. That rule has never been tested in court however.

So for starters, needs to be Trump who issues the order. Can't imagine why he wouldn't. Barr will threaten to resign otherwise. By temperament and circumstance, he has to go the wall here.

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Harry Litman

@harrylitman

May 21, 2020

@JonathanTurley

Hi @JonathanTurley , your post is built on a series of obtuse misreadings of the oped. Your main claim is that I suggest Sullivan should ignore the merits of the motion and make trouble gratuitously. On the contrary, it's precisely the merits that are so assailable

https://twitter.com/JonathanTurley/status/1263441604028829696

and that I suggest he focus on. The DOJ has advanced a series of factual and legal arguments that don't withstand scrutiny, as so many people have pointed out. Sullivan needn't attack the concept of prosecutorial discretion in order to reject those claims. Nothing about the

discretion supplied in Rule 48 insulates the DOJ from advancing factually and legally flawed arguments. It's a serious mischaracterization of that legal argument to say, as you repeatedly do, that the oped advocates departing from the law or, worse, that it acknowledges

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