Thread by @Orly_licious

⚖️ Welcome back & good afternoon, everybody! 🧵 #EastmanTrial, CA Bar Disbarment Trial of #JohnEastman resumes, Judge Yvette Roland presiding. John Yoo will be be back again with direct, then CA Bar cross. Live watch link, trial is NOT archived: …calbar.zoom.us/wc/97985435232…

Here's the full recap of Tue Sep 26 direct examination of John Yoo in the #EastmanTrial: the California Bar Disbarment Trial of John Charles Eastman. threadreaderapp.com/thread/1706716…

James V. Lacy, a Reagan & Bush Administration appointee and Trump Elector, notes the biggest issue for John Eastman in #EastmanTrial and I agree. And here we go!

John Yoo is sworn and direct by Randall Miller continues. He's going back to Yoo's Case Western Law Review article. They begin with the election of 1876 & a mention of a Electoral Commission. He also discusses the 1800 election, about a "grand committee" as well around that time.

The 2022 article is "Who Counts?: The Twelfth Amendment, the Vice President, and the Electoral Count by Robert J. Delahunty & John Yoo" scholarlycommons.law.case.edu/caselrev/vol73…

This is all about the authority of the VP vs. Congress to take the power of deciding disputes. Yoo says he consulted the "Annals of Congress", the Philadelphia Convention debate & scholarly works, incl "The Electoral Count Act of 1887 Is Unconstitutional" scholarship.law.bu.edu/cgi/viewconten…

Yoo discussing the election of 1876, which happened after Reconstruction. There were disputed electoral votes in Hayes v Tilden. Congress created a committee. Like always, members of Congress had differing opinions on who should have power. #EastmanTrial millercenter.org/the-presidency…

Miller solicits any opinions that VP should decide. Yesterday, Judge Roland refused to allow Yoo to offer opinions on if Eastman’s statements were defensible because he said during depo he didn’t know all the facts. She also excluded testimony on whether he agreed with Eastman.

Miller moves into Eastman's 2-page menu. Judge Roland immediate says: "This better not run afoul of my Order re Yoo not giving opinions on Eastman's memos because Yoo doesn't know what facts Eastman relied on." Miller says he doesn't think he will.

Looking at Eastman's memo, Miller asking Yoo about "non-justiciable political questions". Miller asks if Yoo agrees. CA Bar Objection: Opinions are outside scope, Judge shuts it down, sustained. Miller tries to argue. Judge is not having it. Move on.

Not allowed to ask if Yoo agrees, Miller tries again. Does Yoo think Pence's potential action of resolving disputes of competing slates of electors reviewable? Yoo thinks it would be taken away from SCOTUS (political question doctrine) & Pence's decision would be non-justiciable.

Miller said this would be 30-45 mins. Now it's an hour & he says he has more. He's asking about electoral slates not certified by a governor & what the VP could do. CA Bar objects. Judge notes its not an analysis, it's a summary (p44, footnote 93). Judge Roland reviews:

😅 Yoo says no that's not it, was "shorthand". More wasted time. Now they're on this. Judge asks again, is this about competing slates that Governor didn't certify (no "ascertainment")? Yoo thinks if the slates arrive, even if Gov didn't certify, they are still EVs, VP "chooses".

At last, Randall Miller for John Eastman is done. 2:40pm & a 10-min break in #EastmanTrial, then Duncan Carling for CA Bar's cross of John Yoo will begin. Yoo has a hard stop at 3:45 for an hour, Judge doesn't think cross will be done. Agree. Carling has a TON he can rip apart.

Finally, Miller for John Eastman has finished direct. 10-min break & Duncan Carling for the #CABar starts cross examination of #JohnYoo in #EastmanTrial. Yoo has a hard break at 3:45pm EDT. Judge Roland doesn't think Carling will be done. For sure. Carling has a TON to rip apart.

People have been really kind about my #EastmanTrial livetweeting & asked to buy me a coffee (I need it with some of those witnesses). It's just for fun if you're enjoying. Thanks for your support & shares, & to those who have chipped in, sending a big hug. buymeacoffee.com/lukejohnson2

#EastmanTrial, CA Bar Disbarment Trial of #JohnEastman resumes. Judge Yvette Roland presiding & doing an incredible job, it's turgid, complex material. Case is In Re Eastman, Cal. State Bar, No. SBC-23-O-30029. CA Bar's cross of John Yoo is up & it'll be much more interesting. 🥳

Carling starts with Case Western article. True you wrote that Pence didn't have the power to choose electors in 2020 election? Yoo: True. And that there were no competing slates in 202, right? Yoo: True. Let's look at page 8 of your article. Is this true? Yoo: Yes. #EastmanTrial

Duncan Carling (DC) continues to have Yoo agree that Pence was right. DC asks about VP Harris: If there's only 1 slate with ascertainment in 2024, she'd have to accept them? Yoo: Yes. DC: You said Pence was on unassailable ground, right? Y: Yes.

Now DC moves to p4. He reviews Yoo's depo statement that "there's never been a case" where the VP refused electoral votes. And looks at this. Yoo wants to look at the page below.

DC gave advice to Pence in 2020 & told the VP there was no basis to reject electoral votes. Miller objects for possible Attorney Client privilege with Pence. Yoo admits a NY Times article publicly reported his advice (& Michael Luttig). So Yoo thought it could be said. Overruled.

Yoo clarifies that he gave info to "VP Pence's Office", specifically to Greg Jacob (who testified in #EastmanTrial), Pence's attorney, about VP's authority. DC refers Yoo to his broadcast interview at the Old Parkland Conf of Hoover Institution 5/22 where he covered this info.

DC discusses Yoo's position that there was no dispute of EV's in the 2020 election. Yoo agrees. He said "If there's a real dispute... you can't just make things up". Does Prof Yoo believe made up Trump supporter disputes are real? Y: No. ricochet.com/podcast/aei-ba…

Now DC asks about Yoo's WSJ letter from 2022. He agrees there was no dispute in 2020. "No branch of any state govt challenged its electors in 2020" "No state or federal court or executive found fraud" Yoo yes to both.

Yoo says he didn't find any "factual predicates" like fraud that would change his opinion. DC asks about Bill Barr saying no fraud. At Old Parkland, Yoo said "that should have settled it" because Barr was appointed by Trump & earned his ire. Barr was "courageous". #EastmanTrial

In preparing your opinions in this case, you didn't reply on Eastman's facts, right? Yoo: Yes, couldn't know, wasn't in communication. DC: Eastman didn't ask you to prepare an opinion about his statements, right? Yoo: Yes. Moving on...

Now we're back to the 1796 election, where the election turned on Vermont's electoral votes (Adams decided to count the votes). Yoo admits no House or Senate member objected, & Adams could have decided he was "bound" with no authority to change. Anything else is speculation.

DC: Adams deciding to count the votes in 1797 is not a precedent for Pence in Jan 2021 to reject a slate over objections of Congress, right? Yoo: Correct, that's my view. Now DC moves on to the "grand committee" legislation of 1800. House & Senate plans differed.

Yoo agrees: John Marshall helped shape the House version. Senate said 1 chamber could decide, House version required both. Both required majorities of Congress. Pickney argued it wasn't Congress' job, it should be state legislatures, but didn't address procedural.

DC moves to Yoo's CW article p 77, looking at Pinckney's view. DC: Do you agree with Pinckney's federalism concern? Yoo: Yes. DC: So Pinckney would disagree with giving a federal actor like VP the power to override states? Yoo: Unhappy with both the VP or Congress. #EastmanTrial

DC moves to Yoo's CW p77 & thru Qs, Yoo explains Pinckney had federalism concerns. DC: So he would object to a federal officer overriding state decisions (like electors)? Yoo: Yes. But he was for state legislatures deciding, so he wouldn't have liked VP or Congress settling it.

Whew! Duncan Carling of CA Bar is awesome, he's so fast & precise, opposite of Randall Miller, Eastman's lawyer. DC says good place to stop. 🍣 Lunch break until 5pm EDT. Carling has an hour or so left.

#EastmanTrial Judge asks, Fried after Yoo? 😅 Yes. Joseph Fried as percipient witness (what he saw), not expert as defense sought. Why in article. Fried, an accountant, conducted an “audit” about 2020 election “anomalies” but no experience or training. 🙄 salon.com/2023/06/21/no-…

If you'd like to catch up on #EastmanTrial coverage from yesterday, Tue Sep 26, here's an unroll of tweets. This was Eastman attorney Randall Miller's direct examination of Prof. John Yoo. Miller continued today before CA Bar's Duncan Carling's cross. threadreaderapp.com/thread/1706716…

Big thanks to my mentors & heroes, @arizonaslaw & @tomryanlaw, for their help & support on livetweeting. #EastmanTrial is a lot to cover, but since no recording is allowed, & no archives, I think it's important to have a record besides Rachel Alexander & MAGA's clueless takes.

⚖️ Welcome back! The #EastmanTrial, John Eastman's Disbarment Trial, is resuming.
JR = Judge Yvette Roland
DC = Duncan Carling, CA Bar
RM = Randall Miller, Eastman counsel
JY = Prof. John Yoo
JF = Joseph Fried, Election Denier
Watch live (no archiving) at app.zoom.us/wc/join/979854…

We're picking up with Duncan Carling's cross examination of John Yoo, notorious for condoning torture during the Bush 43 Administration. In this trial, Eastman wants him to rebut testimony by prosecution witness Matthew Seligman & affirm Eastman's subversion theories. Yoo isn't.

DC moves to the 1800 election. Yoo agrees it was highly partisan. Yoo admits Jefferson counting Georgia's votes wasn't contested by any member of House or Senate. Yoo wrote in the CW article that Jefferson might have felt more "bound" to count them than Adams (state's rights).

DC says that in his depo, the Founding was more important than the practice of the 19th century, regarding 12A. Electoral Count of 1805 were the same people that passed 12A, right? JY: Yes. DC: Did you review those records? JY: Didn't think it was that important, moved to 1809.

Re 1804 election, DC: Was it VP or Congress that
What was the standard in 1805? JY: There wasn't a dispute. Talks about "Tellers" who counted votes (members of Congress). DC: There was a dispute in 1817 out of Indiana. DC: Was it Congress or Pres of Senate? JY: Opinions differ.

DC: In the 1821 election, what was the Pres of Senate (VP)'s role? JY: It was the 1st debate about it. Henry Clay thought the Constitution was silent but was against the idea it would be the VP. By 1821, we're past the Founding, folks were struggling with the Constitution's text.

#EastmanTrial John Yoo agrees with Duncan Carling's question that the "Framers didn't want Congress picking the President". DC asks, then what logical path is there to the VP picking? JY: Elimination.

DC moves to Harrison's article, No One Wins. DC says he argues it would be Congress, States or SCOTUS; the VP isn't on the list. JY says he doesn't know if that's true, maybe VP. DC moves on to Ad Hoc solutions.

DC: In your CW article, you cite to 702 & 703 as Harrison saying VP is a decider JY: "One he considers. But he is not happy this could have been done... Congress was the worst option". This wasn't

Yoo has been citing an article by Kesavan. DC asks if Yoo knew he graduated in 2001 (article is 2002!) JY not sure. DC points it out. DC: Did you help him with this? JY: Gave him notes. DC: Did he think Congress should decide? JY: Not Congress, but special 12A body. [BUSTED!]

DC: Kesavan said not the VP deciding, right? JY: Well... DC: When questions arise about disputes, he's saying not VP's role? JY: Yeah he says it not the VP. [Carling is taking Yoo apart.] #EastmanTrial

DC: In an article by Ackerman & Fontana article, isn't it true they thought the VP wouldn't have a role unless it was outside the (revised last year) Electoral Count Act? JY: Yes.

DC: You've been friends with Eastman for years? JY: Since 1996. Families good friends. DC: Collaborated on articles? JY: Yes. DC: So in 2020, friends for 20 years? JY: Yes. DC: Did you hear from him end 2020? JY: Maybe 1 email, if I still agreed with my American Mind article.

DC points out John Yoo testified about 1 line email from Eastman in his depo. Only 1 from Nov election to 1/6/21. JY: I wanted nothing to do with the fraud thing... I didn't want to help in any way with people who thought the election was fraudulent or stolen". ‼️ #EastmanTrial

John Yoo: Several parts of the Trump camp wanted me involved, and it "pained me" to see friends of mine working on these claims of "stolen election". Yoo wanted nothing to do with it and did not believe them. He believes President Biden won. CA Bar cross done. #EastmanTrial

#EastmanTrial Randall Miller begins a grim redirect. RM: Why didn't you want to opine on Eastman's theories? JY: Didn't know his basis. RM: Were there different opinions? JY: Yes, hadn't been collected before. Foley's book had most. Yoo was surprised people had "missed" things.

RM: Did you find these scholars credible? JY: Many. Bruce Ackerman, Gary Lawson... RM: Did you discount any scholarly materials because viewpoints were too extreme? JY: No, literature review (like Kasavan). Moves to material about Harrison's article.

JY: My basic view is Harrison defaulted to the VP's authority, even though he didn't like it. RM: VP if there are competing electoral slates? JY: Yes. RM: Did you find scholarly support of VP deciding if there was fraud or irregularity? RM: Ackerman & Fontana.

RM: Did you find scholarly support from your review of 1796 & 1800 for VP rejecting electoral slates were from Ackerman & Fontana? JY: Yes because there were no competing elector slates. Judge: Is there a diff between illegality & fraud? JY: Yes, GA wasn't fraud, "irregularity".

Miller keeps using leading questions, Objections Sustained. None happened during Carling's cross. Also asked and answered (Judge: Mr. Miller has been concerned about time, we covered these issues). Then on "postponement", Objection, beyond scope. Sustained. RM tries again, nope.

RM: Anything in the Constitution prohibiting delay or postponement... (Objection, sustained). What about unresolved litigation by 1/6? Could VP delay? (Objection sustained, not in depo.) More about cases, asked & answered. Judge remembers Yoo discussed 60 resolved cases. Brutal.

Randall Miller tries again about VP authority. Objection sustained. More quiet. RM: What VP options if a state wasn't compliant? JY: VP could make a decision... never done before... investigation... nothing in Constitution says he can't do it. Judge: Any 2020 trigger? JY: No.

JY: We looked at how far could a VP go without competing electoral slates? We took 1796 & found the VP maybe he could "pierce the veil" but only if there was a legitimate challenge. But no finding of how to really resolve it. RM done.

1 last DC Q: JY: All VP looks at are EVs. VP's function is resolving disputes between slates of electors. Then RM: Other opinions on VP's authority? JT: Some. /Yoo done. 15 minute break until 7:05pm EDT. Like him or not, Yoo is an interesting scholar. Next, Joe Fried, is a joke.

Back on the record in State Bar of California Court with the #EastmanTrial, the Disbarment Trial of John Eastman. After some real testimony, back to buffoons like Michael Gableman & Garland Favorito, who bloviate with no election experience. Here comes accountant Joseph Fried.

Joseph Fried of Ohio got his degree in accounting in 1979 with an audit major (his qualification!) from Case Western. He was also a performer at Eastman School of Music. Wasting time, he was an intern at Ernst & Young. RM: "There's no rush." [BS, Miller always whines about time.]

It was all manual at the time, no "small computers", we only had "giant leger books" for accounts. Visicalc etc. Carling has tried to object because he's not an expert witness, but Miller thinks this will help with his "qualifications" for election audits. Judge interrupts.

Judge: Let's move on from 1983 & be relevant as a percipient witness. 😅 Judge to Fried: "Interesting, but not relevant." Fried wrote 25 articles for American Thinker, Western Journal, book called "Debunked?". RM: What was the subject? JF: 6 swing states, leading to my opinions.

Judge: You should only testify about what you've seen, don't look around (he's remote) Fried says his book has all the election denier greatest hits. RM: When did you start collecting info? JF: I watched all the hearings... RM tries leading again. Judge is irritated.

Fried says he decided to write his book during the #CyberNinja's audit because Maricopa... (DC: Objection, move to strike on MC sig verification. Sustained.) JF: Things were removed from YouTube! [This is ridiculous, we've heard all this debunked garbage before.]

Judge: What materials did you collect for your Debunked book? (I laughed). Specific sources? JF: I saved videos, articles, VerityVotes reports on AZ & PA (lack of chain of custody), VoterGA, Braynard, FOIA requests... RM: Did you organize this material? [Nuts] #EastmanTrial

JF: FBI helping Hunter, harvested ballots, Dominion to an extent, medical anomalies (some worked out some didn't), I wanted to give my opinion. RM: Did you audit any data? JF: "Audit-like". Judge: Did or did you not perform election audits? JF: Didn't need a full audit but...

JF: I didn't need a full audit if I'm fact checking... DC: Objection, he not going to testify about certification of election results. Judge: What is the info that's relevant in this case? What work product relates to Eastman? [This is going as expected.] #EastmanTrial

Reality COLLIDES with Election Denier bullsh*t for Joseph Fried. Heading toward NO ADMISSIBLE TESTIMONY. Fried collected info on the internet, did "audit-type" functions, & gave opinions. But he's not an expert witness. Carling is objecting. Judge is not having it. #EastmanTrial

OMG. John Eastman's lawyer Randall Miller tries to present #ElectionDenier Joseph Fried, who did "audit-type" TV viewing & reading internet stuff as same as @stephen_richer! CA Bar's Carling incredulously notes Fried is different from state government officials. 🚀 #EastmantTrial

Judge Roland has had enough. She recesses until tomorrow & asks Randall Miller what other witnesses he has ready. Miller says he's "always optimistic" & judge says don't be. Fried has nothing, he's rightfully not an expert witness.

Eastman's team must show Joseph Fried's foundation & how his testimony isn't expert when he's collecting other people's data, "analyzing" it & giving opinions. This would be funnier if it weren't such a waste of time. Judge tells Fried we'll let you know if we need you again.

I have a bunch more notes about the Joseph Fried circus, but it's late. I'll make a summary separately. Randall Miller says JOE OLTMANN is coming soon & judge looks suspicious. All these election deniers are going down. Miller is trying to compare them to people in reality.

Joseph Fried looked a bit shell shocked. Randall Miller thought he could waste days like Garland Favorito. No more. After all his whining about not enough time, Judge Roland is watching the clock. Good. Thanks for reading! Back for more tomorrow at 1:30PM EDT! 🥳 #EastmanTrial

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