As I digest this document, I will post reactions.
But let me start with the first thing that jumps out at me: The document is signed as pictured below. There is no mention that Jack Smith and his subordinates are at the U.S. Department of Justice.
As if you needed any better indication that they regard themselves as an extra-constitutional Fourth Branch of government. They are no longer listing their institutional affiliation.
(Though they list their address as that building that many DOJ alums call "Main Justice" at 9th and Pennsylvania Aves., or more formally the Robert F. Kennedy Justice Building. Presumably, the name of the building is not used (and I can tell you that is standard on DOJ court filings coming out of Main Justice) because in either variant of the building's name DOJ would have to use the word "Justice.")
Now stop to think why Jack Smith might have done this: It raises the question of whether use of any Justice Department organ to go after a former President of the United States is constitutional and could comport with the Supreme Court's July 1, 2024 immunity decision in Trump v. United States.
But let me start with the first thing that jumps out at me: The document is signed as pictured below. There is no mention that Jack Smith and his subordinates are at the U.S. Department of Justice.
As if you needed any better indication that they regard themselves as an extra-constitutional Fourth Branch of government. They are no longer listing their institutional affiliation.
(Though they list their address as that building that many DOJ alums call "Main Justice" at 9th and Pennsylvania Aves., or more formally the Robert F. Kennedy Justice Building. Presumably, the name of the building is not used (and I can tell you that is standard on DOJ court filings coming out of Main Justice) because in either variant of the building's name DOJ would have to use the word "Justice.")
Now stop to think why Jack Smith might have done this: It raises the question of whether use of any Justice Department organ to go after a former President of the United States is constitutional and could comport with the Supreme Court's July 1, 2024 immunity decision in Trump v. United States.
+1 The redactions are ridiculous. None of them are designed to shield either privileged information or inadmissible evidence from public view, but instead just to ostensibly conceal identities.
But the identities pop out at you, if you’ve been following the constant news story drum beat against Trump in the MSM and you’ve read the J6 Report.
So what that means is essentially that virtually nothing is redacted. The process is a joke. The redactions are an easily penetrated smokescreen that has nothing to do with protecting witnesses.
In this connection, let me make a prediction: Norm Eisen, Brookings, Just Security, , the Brennan Center, and/or the NYT and Washington Post will issue a redactions guide before too long.
It will be in the form of a Key — P1 is such and such person, P2 is __, P3 is either __ or __, etc.
You watch. If I’m wrong, I’ll re-ripen this point and admit it. But I don’t think I will be.Lawfare.com
But the identities pop out at you, if you’ve been following the constant news story drum beat against Trump in the MSM and you’ve read the J6 Report.
So what that means is essentially that virtually nothing is redacted. The process is a joke. The redactions are an easily penetrated smokescreen that has nothing to do with protecting witnesses.
In this connection, let me make a prediction: Norm Eisen, Brookings, Just Security, , the Brennan Center, and/or the NYT and Washington Post will issue a redactions guide before too long.
It will be in the form of a Key — P1 is such and such person, P2 is __, P3 is either __ or __, etc.
You watch. If I’m wrong, I’ll re-ripen this point and admit it. But I don’t think I will be.Lawfare.com
+2 There is a fatal admission on Page 9 of Jack Smith’s filing.
The background to understand the importance of the admission is that Smith is saying (like the J6 Cmte before him) that Trump’s criminal state of mind is established by the fact that many Trump advisors told him that he had lost the 2020 election.
That theory has always been ridiculous because advisors are just that — they advise — the President decides. Their advice is not imputable/attributable to the President’s state of mind.
But there is a little parenthetical on Page 9 that these advisors “were telling the truth that he [Trump] **did not want to hear**—that he had lost ….”
This inherently confesses that Trump disagreed with his advisors telling him he’d lost. That right there negates “the criminal mind” or what lawyers call scienter.
And without the requisite scienter or intent, Trump cannot legally be convicted of a crime.
Trump’s only “crime” is believing that he won the 2020 election, something many Americans both sophisticated and ordinary agree with.
The background to understand the importance of the admission is that Smith is saying (like the J6 Cmte before him) that Trump’s criminal state of mind is established by the fact that many Trump advisors told him that he had lost the 2020 election.
That theory has always been ridiculous because advisors are just that — they advise — the President decides. Their advice is not imputable/attributable to the President’s state of mind.
But there is a little parenthetical on Page 9 that these advisors “were telling the truth that he [Trump] **did not want to hear**—that he had lost ….”
This inherently confesses that Trump disagreed with his advisors telling him he’d lost. That right there negates “the criminal mind” or what lawyers call scienter.
And without the requisite scienter or intent, Trump cannot legally be convicted of a crime.
Trump’s only “crime” is believing that he won the 2020 election, something many Americans both sophisticated and ordinary agree with.
+3 I am only 20 pages deep into the document, but I don’t see how any of the discussions with the President, including his private advisors, can escape the evidence ban of the exclusionary rule established in Trump v United States.
+4 While driving home, I listened to Nicolle Wallace.
She had the standard JournoLawfare™️ types on.
Two errors were easy to spot:
1) Harry Litman opined that anything any witness told them Trump said to them automatically comes in as evidence at a possible trial. Wrong. He’s thinking only in terms of party admissions. He’s ignoring the Trump v U.S. exclusionary rule about consultations inside the Executive Branch.
2) Lisa Rubin opined that Trump cannot claim immunity for any of his contacts with state or local officials. That is also wrong. I don’t know what these people learned in law school. And in any event, apart from general principles, to see that is wrong, one simply has to read Trump v U.S.
A) It’s plain that the President can conduct intergovernmental relations and that is therefore a part of his official job duties.
B) As the Chief Law Enforcer of the country, if a federal election has been tainted by violations of state/local law, of course the President can raise questions and suggest to state/local officials courses of action he recommends as a result. Relatedly, he can also use federal law enforcement officers that report to him to investigate problems in any State before, during, or after a federal election.
Both of these categories of duties are either core Executive Branch functions or certainly well within the outer perimeter of the President’s duties and thus are either absolutely or presumptively immune.
It’s misleading in the extreme for MSNBC viewers to be told by purported legal experts (really just puffed up Democrats with Esq. after their names) that Trump doesn’t have a leg to stand on.
That’s a species of the same lie they told MSM viewers before the Supreme Court immunity decision. A no brainer, they said, that Trump has no immunity.
She had the standard JournoLawfare™️ types on.
Two errors were easy to spot:
1) Harry Litman opined that anything any witness told them Trump said to them automatically comes in as evidence at a possible trial. Wrong. He’s thinking only in terms of party admissions. He’s ignoring the Trump v U.S. exclusionary rule about consultations inside the Executive Branch.
2) Lisa Rubin opined that Trump cannot claim immunity for any of his contacts with state or local officials. That is also wrong. I don’t know what these people learned in law school. And in any event, apart from general principles, to see that is wrong, one simply has to read Trump v U.S.
A) It’s plain that the President can conduct intergovernmental relations and that is therefore a part of his official job duties.
B) As the Chief Law Enforcer of the country, if a federal election has been tainted by violations of state/local law, of course the President can raise questions and suggest to state/local officials courses of action he recommends as a result. Relatedly, he can also use federal law enforcement officers that report to him to investigate problems in any State before, during, or after a federal election.
Both of these categories of duties are either core Executive Branch functions or certainly well within the outer perimeter of the President’s duties and thus are either absolutely or presumptively immune.
It’s misleading in the extreme for MSNBC viewers to be told by purported legal experts (really just puffed up Democrats with Esq. after their names) that Trump doesn’t have a leg to stand on.
That’s a species of the same lie they told MSM viewers before the Supreme Court immunity decision. A no brainer, they said, that Trump has no immunity.
• • •
Missing some Tweet in this thread? You can try to
force a refresh
