Thread by @NormEisen

Our new model prosecution memorandum @Just_Security assesses charges DOJ may bring against Trump for Jan 6

We conclude the evidence likely now meets DOJ standards to commence a prosecution

We think the trial will be a drama in three acts

A thread (1/x)
justsecurity.org/87236/trump-on…

The memo is unique bc ours is the first in-depth application of the relevant criminal law to the facts, building on the more concise criminal referrals the committee offered in its report

We look at that report w/ skeptical eyes as prosecutors do (2/x)
justsecurity.org/87236/trump-on…

We narrow the case to what can confidently be proven to a jury, and for the first time anywhere we consider at length, and of course in good faith, Trump’s defenses and how they will fare (3/x)

justsecurity.org/87236/trump-on…

We can do that because of our all-star coauthors @NoahBookbinder, @DonaldAyer6, @StantonLaw, @EDanyaPerry, @DebraPerlin and Kayvan Farchadi, and our amazing editor @RGoodlaw. (4/x)
justsecurity.org/87236/trump-on…

Moreover, we can now assess prosecution because the public record has grown a great deal since the Select Committee report’s publication in December 2022, and we update it with the information released after the report (5/x)
justsecurity.org/77022/january-…

We consider the depositions & documents that the Committee itself released after the report came out, as well as a substantial amount of other reported new evidence (6/x) justsecurity.org/77022/january-…

& as @JRubinBlogger noted in her write-up: the key is simplicity! (7/x)



https://t.co/i2h56g6ORWwapo.st/3JWElWt

https://twitter.com/JRubinBlogger/status/1679457471969087488?s=20

OK now for those three (relatively) simple acts

ACT ONE. Trump knew he lost the election but did not want to give up power, so he worked with his lawyers and others on a wide variety of schemes to change the outcome. (8/x)
wapo.st/3JWElWt

Those schemes included creating fraudulent electoral certificates that were submitted to Congress, implicating statutes such as 18 U.S.C. § 371, which prohibits conspiracies to defraud the United States in the administration of elections. (9/x)
https://t.co/zzRzeoUtPKlaw.cornell.edu/uscode/text/18…

ACT TWO. When all the other schemes failed, Trump and his lawyers ultimately concentrated on using the false electoral slates to obstruct the constitutionally mandated congressional certification of the election on January 6 (10/x)
justsecurity.org/87236/trump-on…

This implicates 18 U.S.C. § 1512, which prohibits obstruction of an official proceeding

Their primary goal: have VP Pence in his presiding role either block Congress from recognizing Joe Biden’s win at all--or at least delay the electoral count (11/x)
https://t.co/od9Xb60ak0law.cornell.edu/uscode/text/18…

ACT THREE. When Pence refused, Trump went to his last resort: triggering an insurrection in the hope that it would throw Congress off course, delaying the transfer of power for the first time in American history (12/x)

https://t.co/6gRwM34NAljustsecurity.org/87236/trump-on…

This implicates statutes such as 18 U.S.C. § 2383, which prohibits inciting an insurrection and giving aid or comfort to insurrectionists

Prosecutors rarely charge § 2383. As we discuss below, they only do so with extreme caution (13/x)
https://t.co/HbPY52qbsGlaw.cornell.edu/uscode/text/18…

We believe there is sufficient evidence to pursue it—as did the Select Committee in making a criminal referral of Trump under that statute—but prosecutors may make different choices. Much will depend on the evidence the Special Counsel develops. (14/x)

Throughout this memo, we urge a FOCUSED approach to charging and trying the case that can be done using our three-part structure or another simplifying approach that would allow the case to come to trial within a year (15/x)

Now let’s dig into each of those three offenses

First is 18 USC § 371, conspiracy to defraud the US

This statute has two different “prongs,” and Trump likely violated both of them (16/x)

Trump likely violated both the “offense prong” & the “defraud prong”

This means he likely agreed to 1) do something illegal & 2) do something to prohibit a lawful govt function (17/x)
justsecurity.org/87236/trump-on…

Submitting false electoral slates likely constitutes the crime of making a false statement to Congress
& interfering with the count of of genuine electoral ballots disrupts a lawful govt function
Trump drove both, ergo his potential liability under 18 U.S.C. 371 (18/x)

By the way, it doesn’t matter if the object of the conspiracy is completed or not--a defendant can still be convicted just for attempt (19/x)
justsecurity.org/87236/trump-on…

Trump could also be charged for attempting to obstruct counting of electors via § 1512(c)(2)

The law doesn’t require proof of conscious wrongdoing–but Trump & collaborators likely knew their conduct was wrong anyways

Trump seemingly knew he lost election & court battles (20/x)

Counting the electoral votes is an official proceeding–and what counts as impeding one is “expansive,” according to at least one federal judge

When Trump pressured Pence to reject electors, and unleashed a mob on the proceedings, he apparently impeded them (21/x)

Trump also apparently gave aid to insurrection, which is a crime under 18 USC § 2383

Bipartisan majorities have called the attack on the Capitol an “insurrection” (22/x)

law.cornell.edu/uscode/text/18…

Trump’s comments leading up to & on Jan 6 may have incited the insurrection

He told them “fight like hell” and “you’ll never take back our country with weakness”

His tweet at 2:24pm targeted the VP–followed by 187 minutes of inaction (23/x)

Trump has offered many explanations, denials, and defenses over the last two years

We explain why these defenses will likely fail (24/x)

Trump claims his Jan 6 speech is protected by the 1st Amendment–it’s not

His speech passes the Brandenburg test, which says that provoking imminent lawless action is not protected speech

By his supporters’ own words, Trump’s speech encouraged them to storm the Capitol (25/x)

Here’s one of the unique things we do in the report:

We did a deep dive into all Trump’s defenses, factually and legally (26/x)

Trump will surely argue (as he has elsewhere) that he has immunity from criminal prosecution for acts he took as president

But that immunity does not apply to criminal acts taken well outside the scope of the presidency like trying to overthrow an election (27/x)

Trump has also raised an advice of counsel defense

For as many attorneys like Giuliani and Eastman who told him “yes,” many told him “no”

Either way, Trump likely believed in his false election claims long before any attorney convinced him they were true (28/x)

In any false statements case, like this one, the prosecution has to prove that the false statements were made in bad faith

So, Trump will certainly argue that is not the case

HOWEVER, this defense is likely FACTUALLY & LEGALLY unsustainable (29/x)

There is ample evidence that Giuliani, Eastman, and the main perpetrators of the fake electors scheme KNEW it was unlawful

We know this because they said as much behind closed doors (30/x)

Lastly, Trump and some of his allies claimed that he authorized 10k Nat’l Guard troops for Jan 6 which were rejected by the Mayor of DC

This is likely false based on all available evidence from military leaders’ testimony (31/x)

So, as you can see, there is a path to prosecuting Trump, and we think that is coming

You can’t produce a 256-page analysis reaching that conclusion without help from a lot of people, in addition to our co-authors and great editor @rgoodlaw (32/x)

This is an unprecedented moment in our nation’s history–a former president will likely be criminally charged for not the first, not the second, but the third time (33/x)

Nobody is above the law & these charges will hold accountable those responsible for trying to overturn our election and attack our democracy (34/x)

We would like to thank @KFAlegal, @BarbMcQuade, our Brookings research staff and interns & our Brookings comms team -- none of this would be possible without them! (35/35)