Share this page!

Enter URL or ID to Unroll

You can paste full URL like: https://x.com/threadreaderapp/status/1644127596119195649
or just the ID like: 1644127596119195649

How to get URL link on X (Twitter) App

  1. On the Twitter thread, click on or icon on the bottom
  2. Click again on or Share Via icon
  3. Click on Copy Link to Tweet
  4. Paste it above and click "Unroll Thread"!
  5. More info at Twitter Help
legalnerd Profile picture
legalnerd
@alegalnerd
Attorney w/41+ Years Criminal Law & Procedure Experience in Federal & State Court Trials, Appeals & Habeas. Political Independent.
3 subscribers
Aug 28 • 9 tweets • 2 min read
1. As usual, a superb analysis by the @lawfare team: @AnnaBower, Matt Gluck, @qjurecic, @nkorpett & Ben Wittes. It is critical for Smith to convince Chutkan (and, thereafter, the DCCA and, possibly, the SCOTUS) that Trump's pressuring Pence to not count the Biden-elector
Image 2. certificates was unofficial conduct in order to convict Trump of violating 1512(c)(2) as interpreted by the SCOTUS in Fischer [requiring "impairment" of the "availability" of the Biden certificates at the Joint Session). Smith is relying on an attempt (i.e., "substantial step"
Jun 21 • 10 tweets • 2 min read
1. The SCOTUS today struck a blow to Trump's 34 guilty verdicts surviving appellate review. In order to find Trump guilty of violating Penal Law 175.10 the jury had to find certain "facts." Significantly, the jury had to find the following "facts": (1) That Cohen's paying Stormy 2. $130G constituted a willful violation of FECA's campaign contribution or expenditure limits; (2) That Cohen's filing a false tax return (after the election) constitutes a willful federal or knowing state or city tax law violation; or (3) That Cohen's filing false bank
May 6 • 6 tweets • 3 min read
1. @RDEliason
Please note: (1) The patern jury instruction for 175.10 doesn't include a knowledge requirement. The only mens rea is "intent." But the Penal Law defines intent to include a "conscious" objective. That would support your opinion that the DA must establish BARD


Image
Image
Image 2. that Trump actually knew that the payments to Cohen weren't "legal expenses" and, instead, were "reimbursements" to Cohen for C's having paid the $130G to Stormy; (2) According to the DA, and Judge Merchan, intent to defraud can be retroactive; (3) There appears to me to be

Image
Image
Image
Apr 17 • 6 tweets • 2 min read
1. Two attorneys are on the jury in People v. Trump. If those attorney-jurors carefully analyze the legal elements, as I have done, as @RDEliason has done, and aren't swayed by emotion, this may be favorable for defendant Trump


Image
Image
Image
Image 2. Specially, it is questionable whether the DA can establish beyond a reasonable doubt that Trump filed false business records with the required intent to defraud and with the, additional, required intent to conceal or commit another crime. One would expect attorney-jurors to
Mar 27 • 4 tweets • 1 min read
2. The @ManhattanDA must establish beyond a reasonable doubt that Trump filed the false documents with intent to defraud some person or entity out of money, property or something of value. Or that he did so with intent to frustrate or interfere with some lawful government 3. function. This mens rea element is required in addition to establishing that Trump filed the false documents with intent to commit or conceal another crime. Without intent to defraud, no crime. Without intent to commit or conceal another crime, no felony under 175.10.
Jan 9 • 6 tweets • 1 min read
1. I agree with @lee_kovarsky that it's virtually certain Trump will lose his PI claim. The panel (at least 2 judges) may hold that (1) none of the acts alleged in the indictment were "official;" (2) none of the acts were within the "outer perimeter" of a POTUS's official duties 2. powers or responsibilities; (3) the Impeachment Judgment Clause doesn't require a Senate conviction before a FPOTUS can be criminally prosecuted for unofficial acts (or acts outside the outer perimeter of his official duties, powers or responsibilities) performed while POTUS;
Nov 18, 2023 • 8 tweets • 2 min read
1. Read Judge Wallace's opinion. It lays out a devastating case against Trump for inciting the Insurrection in violation of 18 USC 2383. Jack Smith needs to explain why he didn't indict Trump for violating 2383 -- a criminal statute that includes a disqualification provision. 2. As I have been stating, repeatedly, it's a pipe dream to believe the SCOTUS would permit any state to exclude Trump from the ballot by relying on 14A3. So far, every state court to address 14A3 as a means to disqualify Trump from the ballot has rejected that attempt.
Sep 29, 2023 • 11 tweets • 4 min read
1. Read Meadows reply brief.
This is a no-brainer.
As I previously stated: 💯% guaranteed 11th Cir vacates Judge Jones' remand order.
And, @lee_kovarsky, as I have stated: The key word is "asserted," not "charge." See attached 6 excerpts.


Image
Image
Image
Image 2. Meadows Reply Brief
Image
Image
Jul 10, 2023 • 9 tweets • 2 min read
1. Jack Smith is presumably doing what I stated in my pinned thread (and have stated many time since J6) he needs to do: Establish, in chronological order, everything that Trump said, did and participated in from Election Day to J6 to achieve his ultimate goal of preventing, or 2. at least delaying, Biden's being inaugurated on J20. In an 18 USC 2383 prosecution for inciting the Insurrection, Smith would need to convince a jury that Trump's acts, words and omissions before, during and after J6 were intended by Trump to incite an imminent and likely
Jul 7, 2023 • 8 tweets • 3 min read
Convicting Trump of inciting the Insurrection in violation of 18 U.S.C. 2383, is the most direct path to ensuring that he will never be able to return to the Oval Office. Relying on 14A3 presents many more obstacles to achieving that democracy-saving goal. https://t.co/hiLuLD4OlF






 In addition, if Jack Smith is considering prosecuting Trump for attempting to corruptly obstruct the Joint Session of Congress on J6 (in violation of 18 USC 1512(c)(2)), he will very likely have to convince a jury that Trump used "criminal" means to accomplish his goal.
Jun 27, 2023 • 7 tweets • 2 min read
1. Let's analyze the admissibility of the audio tape at Trump's trial for violating 793(e)'s Retention Clause -- the 31 counts. 2. In order to establish that T violated 793(e), the Govt must establish that (1) T's possession of the 31 NDI docs was UNAUTHORIZED; (2) T RETAINED the docs w/KNOWLEDGE that doing so was UNLAWFUL.
Jun 18, 2023 • 5 tweets • 4 min read
1. @rgoodlaw @AWeissmann_ @JoyceWhiteVance @NormEisen @BarbMcQuade @just_security @lawfareblog
Please read the attached op by Judge Howell regarding the Mistake of Law & Mistake of Fact doctrines. Look at the elements the Govt must establish to convict Trump of violating 793(e) ImageImageImageImage 2. -- mens rea -> subjective knowledge that he was retaining NDI docs; subjective knowledge that his retention of the docs was unlawful; and specific intent to violate the law (in general, not a specific statute).
Jun 16, 2023 • 23 tweets • 5 min read
1. My thoughts on the issues discussed by @rgoodlaw @AWeissmann_ @SIssacharoff & Mary McCord regarding Trump's best trial strategy. 2. Trump's Primary Goal - Not guilty verdict because Govt couldn't prove each element of the crimes charged beyond a reasonable doubt. Secondary Goal - Hung jury.
Jun 15, 2023 • 7 tweets • 3 min read
5. so was in the public interest, he couldn't be (or shouldn't be) prosecuted for violating 793(e). Is Heidi suggesting that if Trump establishes at trial that informing the public about the content of the NDI docs was his intent he would (or should) have a 1st Am defense? 2. (C) Specifically Intended on violating the law in a general sense--no intent to violate a specific statute required. (See the @just_security Model Prosecution Memo 2nd Edition by @AWeissmann_ @rgoodlaw @JoyceWhiteVance @NormEisen et al. at pp. 31-32, fn. 124-126.)
Jun 15, 2023 • 6 tweets • 2 min read
1. At this point, based on publicly-available information, the cleanest & simplest DC charge is 18 USC 2383 -- Trump's incitement of the Insurrection under Brandenburg. But Smith is going to wait at least until the DC Circuit issues its opinion in Blassingame v. Trump. 2. As for 18 USC 1512(c)(2) [attempting to "corruptly" obstruct the Joint Session of Congress], Smith will, at least, wait to see what the DC Circuit does in United States v. Robertson re: the meaning of "corruptly."
Jun 15, 2023 • 7 tweets • 2 min read
1. Mary & @AWeissmann_ if you were Jack Smith you would wait for Cannon to issue a baseless ruling before seeking her recusal? What if her 1st such ruling is granting a Rule 29 acquittal request and refusing to submit the case to the jury? 2. Govt is screwed. No appeal. Double jeopardy. Trump walks. No possibility of retrial. Me? If I were Jack Smith and I had a good faith basis for arguing that a reasonable observer would find an appearance of bias on the part of Cannon (which good faith basis certainly exists), I
Jun 14, 2023 • 8 tweets • 2 min read
1. Hopefully, Jack Smith will follow suit. As I've stated upon learning of Cannon's "random" assignment, she must recuse herself under 455(a); if she doesn't, Smith must move for her recusal or, as @FSFP has done, request the CJ to remove her. If CJ & Cannon deny requests, 2. a petition for a writ of mandate must be filed with the 11th Circuit (as I noted yesterday, when the Govt seeks mandamus relief because a judge has denied a 455(a) recusal motion, the abuse of discretion standard of review applies instead of the stricter
Jun 14, 2023 • 4 tweets • 3 min read
3. never intended by Congress to apply to a former POTUS? Thus far I have been unable to locate an answer to this very important question -- no court case; no academic writings; nothing. Perhaps a legal historian can shed some light on this issue.
CC: @sethb 2. In other words, if in 1920 former president Taft retained documents similar to those retained by Trump, would Taft have been subject to prosecution for "willfully retaining" those documents in violation of 793(e)? Or was the Espionage Act in general, and 793(e) in particular,
Jun 14, 2023 • 5 tweets • 2 min read
1. As @PreetBharara & @JoyceWhiteVance note, motive isn't an element of any of the crimes charged against Trump. 793(e) requires proof of "willfully" retaining NDI docs which the courts have stated requires proof that T knew his retention of the docs was unlawful & he intended 2. on violating the law, in general (not 793(e) or any other particular statute). Even though motive is an element that the Govt must prove, will the defense request a jury instruction along the lines of the attached California criminal jury instructions? Image
Jun 13, 2023 • 4 tweets • 2 min read
1. Will Cannon apply offensive collateral estoppel against Trump to prevent him from relitigating the attorney-client crime-fraud issue? (See my attached tweets on that issue.) If Cannon allows T to relitigate & finds crime-fraud exception not applicable, Corcoran can't testify ImageImage 2. about anything T said to him or he observed T do in his presence during their confidential atty-client relationship. In other words, remove every single reference in the indictment that relates to Corcoran's notes regarding T's words and acts. Unless Jack Smith has additional
Jun 11, 2023 • 10 tweets • 3 min read
1. @AWeissmann_ is a gentleman and too polite to say it, so I will: Cannon is absolutely not competent to preside over this very serious, historic, national security prosecution that will entail a deep working knowledge of CIPA and other unique legal rules. 2. In addition, Cannon has clearly shown by her pro-Trump, egregiously misguided, rulings in the special master case that resulted in two scathing rebukes from the conservative 11th Circuit that she has either a covert or, perhaps, overt bias in favor of Trump.