Lots of people have been trying to decipher the cryptic footnote 3 of CJ Rogers’ immunity opinion and figure out whether it means that prosecuting a president for bribery is now impossible. Here’s a thread on why I think the answer is no. 1/ First, it’s important to recognize that in a bribery case the crime is the agreement – the corrupt deal. It’s the promise to perform an official act in exchange for something of value. Once that agreement is made, the crime is complete. 2/

If Judge Cannon dismisses the indictment because she finds Smith was unlawfully appointed, here’s what DOJ should do:
1) Don’t appeal
2) Have US Atty in FL refile the same charges in a new case - it would be very easy and fast
3) case gets reassigned- hopefully to a new judge 1/ 4) Smith’s prosecution team are designated as Special AUSA’s in FL to continue prosecuting the case.

I can’t see any reason this wouldn’t work - it’s faster than an appeal and gives them a chance of drawing a new judge without having to argue for removing Cannon. 2/

Trump's NY defense and why it could work: a longish 🧵.

Many scoff at the defense suggestion that Trump didn’t know about the scheme at the time it happened. But that’s their best possible defense - and it’s far from crazy. Here’s why. 1/ Remember, it’s not enough for the DA just to show that the documents were false or that Trump signed the checks to Cohen. They have to show that at the time the payments were made, Trump personally knew the records were false, and 2/

If the CJ believes there should be POTUS immunity for core Art. 2 powers like appointments, there's an easy answer to the concerns in his hypo about bribery. It can be analogized to Speech or Debate immunity.

You can't prosecute a Senator for voting on a bill, but you can 1/

https://twitter.com/lee_kovarsky/status/1783620118615847319

Prosecute him for taking a bribe to vote a certain way. With bribery the crime is the agreement to act in exchange for the bribe. So prosecutors can prove the "deal" - but they can't introduce evidence of the Senator actually voting. And that's OK, because 2/

OK #lawtwitter - your thoughts on keeping a lawyer on the jury? There are two of them on the Trump jury so far.

In my own experience prosecuting in DC, conventional wisdom/trial lawyer folklore was that you didn't want lawyers on your jury. 1/ The concern was that they would think they were smarter than you and second guess your case or presentation. And because they were lawyers, the other jurors might give their opinion undue weight. I usually would strike them.

I only made an exception one time. 2/

A thread on the NY criminal case:

Now that motions to dismiss were denied & the case is moving forward, I'm seeing lots of takes that the critics were wrong & that it clearly is a solid and important case.

As one of those critics, let me explain why I'm still not convinced. 1/ Supporters say the case is not really about hush money, it's about election fraud. Through the scheme, Trump hid critical information from the voters in the wake of the Access Hollywood tape. In a close election, if that info had come out, it could have made the difference. 2/

A longish thread on my takeaways from the two days of hearing in Georgia.

BLUF - I'd be very surprised if Judge McAfee ends up disqualifying Willis and her office from continuing with this prosecution. 1/ The only direct evidence of when the romantic relationship began was the testimony of Willis and Wade. The defense witnesses relied on a combination of hearsay, gossip, and their own impressions to suggest the relationship began earlier. 2/

🧵 I think this is the best-case defense argument on the GA DA disqualification:

You could claim that any special prosecutor paid by the hour has an arguable financial motive to extend and expand the case. That alone can’t be enough. 1/ But in a typical case the financial motives of that prosecutor and the DA who hired him/her are opposed, not aligned. The DA would have the opposite incentive, to keep costs down and to ensure the special prosecutor is being efficient. 2/

Thread:
Many people -- including some legal talking heads who should know better -- argued it would have been a miscarriage of justice for Bragg NOT to charge Trump for the hush-money payoff b/c Michael Cohen went to jail for the same crime. Wrong - for several reasons: 1/ FIRST - it's not the same crime. Cohen pleaded guilty to federal campaign law violations. Bragg has no jurisdiction to bring those charges. Bragg reportedly was investigating a charge for falsifying business records under NY law. Different crime, different sovereign. 2/

Good morning - while waiting for the Jan. 6 hearing to begin, here's a longish thread on why there's no viable criminal case against SCOTUS Justices for allegedly lying during their confirmation hearings about Roe. 1/ The two primary statutes that cover lying to Congress are perjury (18 USC 1621) and false statements (18 USC 1001). The only relevant distinction for this purpose is that perjury requires the witness to be under oath and false statements does not. 2/

Seeing accounts of the #SussmannTrial saying that materiality means the gov't must prove the FBI investigation was actually affected. That's not correct.

Materiality means only that a statement had the potential to affect the investigation - actual impact is not required. 1/ "Materiality" is a very low bar, although it's still a challenge for the government here. But prosecutors don't have to prove the FBI was actually influenced.

The defense might also raise a reasonable doubt about what was actually said and whether it was false. 2/

Thread on Mueller and obstruction:

I agree with much, but not all, of this post from @emptywheel - which I think was prompted, at least in part, by my own @PostOpinions column earlier this week. 1/

https://twitter.com/emptywheel/status/1491800328785653760

First, @emptywheel argues that Mueller's report was primarily an impeachment referral to Congress, not a roadmap of possible criminal charges. I don't think there's much support for that idea. I wrote a column about this when the report came out. 2/

washingtonpost.com/opinions/2019/…

Longish thread on Bill Barr and DOJ:

Those looking to understand Bill Barr’s time as AG would do well to read both “Hatchet Man” by @eliehonig (reviewed below) and “I Alone Can Fix it” by @CarolLeonnig and @PhilipRucker. 1/

sidebarsblog.com/book-review-ha… “Hatchet Man” reviews the numerous examples of Barr’s misconduct from the perspective of a DOJ alum. It provides a lot of detail about Barr's tenure and has a consistent theme of “Barr was bad” – which indeed he was. 2/

Questions for those who argue that charging the president with obstruction of justice for an executive act like firing the FBI director or shutting down an investigation into his own misconduct would impermissibly infringe on his "constitutional authority." 1/ The Speech or Debate clause in Article I provides that for purely legislative acts a Member of Congress "shall not be questioned in any other place." That's an explicit grant of immunity, and demonstrates the framers knew to grant such immunity. 2/

Just for fun - a Saturday morning thread on cross examination 101, for witness William Barr.

"Mr Barr, you said during your press conference on April '8 that the White House "fully cooperated' with the special counsel investigation." 1/ "You'd agree that the president is in charge of the White House, correct?" 2/

It's wrong to claim that the end of the Mueller probe with no more indictments is a "win" for Trump. First, if Trump "won" it implies that Mueller "lost." But white collar prosecutors don't "lose" if they investigate and conclude charges are not justified. 1/ Unlike in a violent crime or other case where it's clear a crime has been committed and the question is who did it, in white collar it's usually clear who did it and the prosecutor's job is to determine whether it was a provable crime at all. Sometimes the answer is "no." 2/