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legalnerd Profile picture
legalnerd
@alegalnerd
Attorney w/41+ Years Criminal Law & Procedure Experience in Federal & State Court Trials, Appeals & Habeas.
sally paddles Profile picture skizye Profile picture . Profile picture 3 subscribed
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


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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.


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Image 2. Meadows Reply Brief
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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.
May 5, 2023 • 5 tweets • 2 min read
1. Trump's Notice of Removal could become a procedural nightmare. IMO, the case should be summarily remanded because T has failed to set forth a prima facie showing that his filing business records with his privately-held organization regarding payments to his private attorney 2. were in any way related to any act he engaged in under the color of the office of the president. Trump hasn't submitted any admissible evidence in support of his attorney's assertions in their Notice of Removal. No declaration from Trump. If the district court judge
Mar 18, 2023 • 8 tweets • 3 min read
8. doesn't satisfy the mens rea essential element of 175.05. And without 175.05 misdemeanor, there is no possibility of a 175.10 felony. For everyone hoping Trump is brought to justice, let's hope there is much more to the @ManhattanDA 2. establish beyond a reasonable doubt that Trump falsified a business record (i.e., the hush-money payments) with -- and this is crucial -- "intent to defraud" someone or some entity. In fact, the 175.05 misdemeanor requires proof beyond a reasonable doubt of "intent to defraud"
Mar 8, 2023 • 7 tweets • 3 min read
1. As for criminal prosecution, DOJ would have to establish that Trump "incited" (as defined in Brandenburg) an "insurrection" (as that term is used in 18 USC 2383). Incitement of violence, even if "private" violence, doesn't necessarily equal an "insurrection." 2. But, as I have previously stated, the violence that Trump incited on January 6 was, under any historical definition of that term, an "insurrection" within the meaning of 18 USC 2383 and, for that matter, the Disqualification Clause of Sec. 3 of the 14th Amendment.