Charlie Savage’s avatarCharlie Savage’s Twitter Archive—№ 14,619

                    1. Reality check for some Trump critics: The Jan. 6 Committee filing’s vague hand gesture in the direction of possible crimes or fraud by Trump in a dispute over a subpoena is a far cry from a road map for criminal prosecution based on the same evidence. nytimes.com/2022/03/03/us/politics/trump-justice-department-january-6.html?referringSource=articleShare
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                  1. …in reply to @charlie_savage
                    In this 🧵, I will explain why the Jan 6 Cmte filing does not, in itself, mean there has been a breakthrough for criminally prosecuting Trump. For those who wish to understand the world as it is: /1
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                1. …in reply to @charlie_savage
                  The Jan 6 Cmte filing says Trump may have violated two statutes, both centered on actions for which lots of evidence is pretty well understood and is not in dispute: In public and private, Trump pressured Pence not to certify the election results./2
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              1. …in reply to @charlie_savage
                For that to be a crime, Trump had to know that there was no lawful basis for Pence to do what he was demanding. Lawyers in WH (and pretty much everywhere) agree there was no such lawful basis. Problem: John Eastman told Trump that Pence did have that authority./3
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            1. …in reply to @charlie_savage
              Does John Eastman telling Trump that he interpreted the law differently than, say, Pence's counsel, raise a reasonable doubt about whether Trump knew he was asking Pence to do something that was illegal? Ponder that while considering this:/4
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          1. …in reply to @charlie_savage
            The Jan 6 Committee filing was not a criminal referral asking DOJ to prosecute Trump. Rather, it arose in a very different context: civil litigation over a subpoena./5
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        1. …in reply to @charlie_savage
          Specifically, the committee has subpoenaed Chapman University to get documents John Eastman wrote related to his convos with Trump about a stolen election and Pence's power. Eastman sued to block it from complying, invoking attorney-client and attorney-work-product privileges./6
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      1. …in reply to @charlie_savage
        The committee is trying to get a judge to agree that it can enforce its subpoena anyway under an exception to those privileges for material that relates to a crime or fraud. That's the context in which the committee invoked the possibility of a Trump crime. Read on: /7
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    1. …in reply to @charlie_savage
      Is it legitimate for the committee to say there may have been a crime, given that Eastman's advice muddies the water about whether Trump knew he was asking for something illegal? Well, the legal standards in this context are much easier to meet./8
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  1. …in reply to @charlie_savage
    To win what it is initially asking for - to have the judge privately examine the docs - the cmte need only convince the judge that it has a “good faith” reason to be believe that such a private viewing “may reveal” evidence that the crime-fraud exception applies./9
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    1. …in reply to @charlie_savage
      & to defeat Eastman’s attempt to block its subpoena, the cmte need only convince the that the “preponderance of the evidence” suggests the conversations involved a crime -- or even just “common law fraud,” meaning deceit that could be the subject of a civil lawsuit./10
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      1. …in reply to @charlie_savage
        Those standards leave room the committee to achieve its goal - to get Eastman's papers - even if the judge has a LOT of doubt about Trump's mental state when he pressured Pence. Preponderance of the evidence = 51% chance it was a crime, 49% chance it was not. /11
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        1. …in reply to @charlie_savage
          Compare that to a criminal trial in which prosecutors must convince all 12 people on a federal jury -- verdicts have to be unanimous -- that there was no reasonable doubt Trump knew he was asking Pence to do something unlawful, notwithstanding Eastman's advice to the contrary./12
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          1. …in reply to @charlie_savage
            This is all based on the evidence as understood today, and laid out in the committee's filing. Perhaps that will change. Maybe they get Eastman's papers and there is a smoking gun in them that he and Trump knew it was all bullshit! But this is the world as it exists today./13
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