Thread:
1/ There is a lot of confusion in mainstream press reports on the process on January 6. The @nytimes has gotten it wrong as I note below. These mistakes could be very significant depending on what VP Pence does. I’ll explain.

https://twitter.com/rossgarber/status/1344635847442898945

2/ The Constitution does not explicitly give Congress any role in counting Electoral College votes, other than to be present when they are counted. Congress gave itself a role by passing a statute, the Electoral Count Act, which some have argued is unconstitutional.

1/ NYT not accurate in reporting that “The Constitution requires that challenges to the certification process be endorsed by lawmakers in both the House and Senate.” nytimes.com/2020/12/30/us/… 2/ The 12th Amendment provides that the President of the Senate (VP Pence) shall “open all the certificates and the votes shall then be counted.”

1/ Twitter and Facebook are private companies. They can broadcast or not broadcast whatever they want (within legal limits). People can choose whether to use them or not. 2/ I value their traditional, more lax, editorial control. Social media platforms are now the primary outlets where we can get the perspectives of those with whom we disagree and exchange ideas with them.

1/ In the 1876 election, results were disputed in key states. Ds claimed ballot fraud; Rs alleged voter suppression. Congress formed an Electoral Commission that included Supreme Court justices to sort it out. In the wake of this, Congress passed the Electoral Count Act

https://twitter.com/rossgarber/status/1301539495880413185

2/ The Act provides for, among other things, how Congress deals with situations in which competing slates of Electoral College members are submitted. Some of the language of the Act isn’t especially precise. But negotiations and ultimately the courts can bring any needed clarity.

When Durham got this mission in March 2017, he was just a line prosecutor in Connecticut. And things got a little irregular for that office in March. On March 10, 2017, US Attorney Deirdre Daly, an Obama holdover, was asked to resign. She complied. justice.gov/usao-ct/pr/us-… 2/ Daly announced that her Deputy, a career prosecutor, would be acting US Attorney, as is customary. justice.gov/usao-ct/pr/us-…
But 3 days later, on March 13, Daly issued a statement saying she was actually going to stay on as US Attorney until October. justice.gov/usao-ct/pr/sta… 3/

1/ Thinking about the NYT report that Deutsche Bank (DB) was subpoenaed by Manhattan DA for Trump records AND COMPLIED. Remember, Trump is litigating a subpoena by the DA to his accounting firm. Makes me wonder if DB didn’t tell Trump about subpoena. 2/ At least on federal level, prosecutors often request that recipients of subpoenas don’t disclose the fact of the subpoena to others, ostensibly to prevent obstruction by a target or subject who finds out about a secret investigation.

1/ Today, @JeffreyToobin writes in @thenewyorker that Mueller’s investigation was a failure and that his report was a “surrender.” But what Toobin and all the others who placed their faith in Mueller miss is something the Supreme Court emphasized in an opinion released today. 2/ Today’s Supreme Court decision in Seila Law v. CFPB clearly and explicitly articulated the U.S. Constitution’s unitary executive structure. Here’s the key quote: “Under our Constitution, the ‘executive Power’— all of it—is “vested in the President....”

1/ The Supreme Court argument by the House today was hampered by the same sort of high handiness and carelessness that doomed its oversight and impeachment efforts. 2/ Counsel for the House essentially argued that Congress, in deploying its implied authority to investigate in furtherance of legislation, has virtually unlimited authority to obtain private information related to a sitting president.

1/ Executive privilege is a testimonial privilege rooted in the Constitution. Up to POTUS to assert. Supreme Court suggested it is strongest when info re national security, military or diplomacy. Bolton testimony at intersection of all 3.

https://twitter.com/RepZoeLofgren/status/1220394906524569605

2/Hurdles to B testimony:
- Sen would have to decide exec priv doesn’t apply in impeachment trial OR priv outweighed by importance of impeachment trial (presumably high) and need for testimony. Could be protracted q-by-q eval.
- CJ could decide subject to being overruled by Sen

1/ Fact check: If the Clinton Trial Rules are adopted, the Senate will get testimony from more than a dozen witnesses. 2/ Under the Clinton Trial Rules, the Senate would also get voluminous documentation. And the president’s lawyers wouldn’t get to object or have a right to cross-examine any of those witnesses.

1/ Will Trump take the W?
When the Senate gets the articles of impeachment, they can dispose of them with a motion to dismiss or a very abbreviated process that considers mostly existing evidence (Clinton trial had no live witnesses). 2/ Maybe House managers will make an effort to subpoena Trump admin info/officials, but this is unlikely to succeed in the R-controlled Senate. (There are procedural mechanisms to keep issue from being decided by Chief Justice.)

1/ Some Questions for the impeachment scholars tomorrow (Thread)

Crimes/Bribery
Must impeachment be based on commission of a crime? If impeachment is based on an allegation of “bribery,” must all elements of the federal bribery statute, as interpreted by the courts, be met? 2/
Burden of Proof
What is the burden of proof for impeachment? (Beyond a reasonable doubt? Clear and convincing evidence? Preponderance of the evidence? Probable cause?) Does burden apply findings of facts or confidence that facts constitute an impeachable offense or both?

1/5 Impeachment pause?: If not a single Republican votes in favor of impeachment, Pelosi and Ds can be painted as running the most partisan impeachment in American history. (Several Ds voted in favor of impeaching Clinton.) She and House Ds in swing districts might not want that. 2/5 Pelosi won't be able to chalk the result up to Republicans' fear of Trump retribution or lack of patriotism. For example, Rep. Hurd is a moderate R and former CIA officer who worked undercover in Pakistan. He's not running for reelection. Good luck impugning him.

1/ First take on Amp Yovanovitch:
- Compelling testimony. Very good witness. Supports House D narrative. While Amb had limited first-hand knowledge of key events, not much counter-narrative from Rs. Not good for Trump. 2/ Ambassador was direct, credible and articulate, and she spoke movingly about the work of the Foreign Service and her own work in Ukraine and other places. Schiff and Goldman were both terrific at electing her testimony. Other Dems also performed well as questioners.

1/ Senate Trial: If the House votes to impeach Trump, the matter moves to the Senate for a trial. Here’s how that would work.
-The Constitution says that the Senate has the sole power to try impeachments, the Chief Justice presides, and a 2/3 vote is necessary to convict. 2/ The Constitution doesn’t say anything more about procedure or timing of a trial. In Nixon v. United States, the Supreme Court ruled that how the Senate conducts an impeachment trial is entirely up to the Senate and won’t be reviewed by the courts.

1/ Thread: Enforcement of House Committee subpoenas. House Committees have limited ability to enforce its subpoenas. Really three options. 1. Arrest. Many years ago, the House Sergeant at Arms arrested people for failure to comply with subpoenas. Hasn’t been done in a long time. 2/ 2. Criminal contempt. House can vote to refer non-compliant person for prosecution. But this relies on Trump DOJ to enforce. Not going to happen. 3. Civil contempt. House votes to file an action in court asking judge to order compliance with subpoena and to enforce order. This

1/ Getting “dirt” on a political opponent from Russians is not a crime. 52 USC 30121 prohibits foreign nationals from contributing a “thing of value” to any US campaign. And it is unlawful for someone to “solicit, accept or receive” such a thing of value. 2/ But information alone cannot possibly be a “thing of value.” Courts would find that conveying and receiving such information is protected by the First Amendment, particularly in light of the Supreme Court’s opinion in Citizens United.