Thread by @danshallman

🧵THREAD: In the months ahead, @TheJusticeDept will face two critical decisions: (1) is there sufficient evidence to prosecute FPOTUS?; and (2) if there is, should DOJ bring a case? 1/17

On the first question, it doesn't look good for the FPOTUS (to put it mildly) on both #MarALago and J6. But we don't know for sure. Only the prosecutors and agents with full access to the admissible evidence can make that call. 2/17

So let's focus on the prosecutorial discretion question. Many seem to believe that it would be out of bounds for DOJ to prosecute a FPOTUS. The notion of giving special consideration to a FPOTUS, however, is just not a thing. 3/17

DOJ has prosecuted Members of Congress, judges, generals, and cabinet officials. Prosecuting current and former high ranking public officials when they commit crimes is a feature of our system. Nobody is above the law. 4/17

We have entire units of apolitical federal prosecutors and squads of FBI agents devoted to investigating the conduct of public officials. That was my job as an AUSA. Being a former President is not and should not be a get out of jail free card. 5/17

In fact, the Principles of Federal Prosecution, which govern prosecutorial discretion, offer no comfort to a FPOTUS or any other former public official. 6/17 justice.gov/jm/jm-9-27000-…

To the contrary, if DOJ passes the evidentiary threshold to indict and applies the Principles (as it must) to decide whether to indict, I believe it will decide it must indict. 7/17

On the one hand, the Principles require DOJ to consider a "person's personal circumstances," such as "extreme youth, advanced age, or mental or physical impairment." Those factors "may suggest that prosecution is not the most appropriate response…". 8/17

However, "other circumstances, such as the fact that the accused occupied a position of trust or responsibility which he/she violated in committing the offense, might weigh in favor of prosecution." 9/17

In our system, there is no "position of trust or responsibility" greater than that of President. Thus, there simply is no presumption against prosecuting a FPOTUS, as some seem to argue should apply. DOJ policy seems to weigh in favor of it. 10/17

We entrusted him with our most highly classified secrets. He abused that trust. We trusted him to ensure that the laws are faithfully executed. Leading up to and on J6, he abused that trust. These are cases DOJ will feel obligated to bring if they have the evidence. 11/17

Nor would this case implicate thorny separation of powers or Article II questions about Presidential authority. This is not Iran-Contra, for example, where the alleged crimes of the Reagan Administration were in pursuit of a foreign policy goal. 12/17

Here, FPOTUS's actions (both regarding J6 and Mar-A-Lago) were not really even Presidential actions. With J6, they were the actions of a candidate for office in support of his campaign to stay in office. 13/17

Likewise, Mar-A-Lago largely involves his conduct as a private citizen after leaving office. Thus, DOJ would not as some suggest be setting a dangerous precedent by indicting a FPOTUS for his official actions. 14/17

Instead, the norm setting event would be indicting a FPOTUS for his actions as a political candidate and/or as a private citizen after leaving office. Big difference for those concerned about the policy implications of bringing a case. 15/17

Take a look at the other factors DOJ must consider in weighing an indictment. None of them bode well for the former President. justice.gov/jm/jm-9-27000-… 16/17

Bottom line for this former public corruption prosecutor: if DOJ determines it has admissible evidence that will "probably be sufficient to obtain and sustain a conviction," I believe it will prosecute FPOTUS for J6 related offenses and/or #MarALago. 17/17