Deep thought for the day: Why do they call the little candy bars "fun size."

Isn't it more fun to get a big candy bar?

From the contents, we see that he will claim absolute immunity because any alleged wrongdoings were performed on the "outer rim of presidential duties."

Without reading the brief, you can see that he will interpret "outer rim" to include:

🔹 public statements about the election
🔹telling the justice department and state officials to investigate "fraud,
🔹talking to the VP and others about their "duties" and
🔹directing slates of electors.

As you go down the list, it gets sillier.

2/

Okay, this is just plain wrong. (Screenshot #1)

Stand by while I find a copy of the Constitution. 🤓 Got it. See Screenshot #2

He has it backward. All Congress can do is impeach and remove, but this doesn't preclude criminal actions after the president is out of office.

He argues that he was acquitted by Congress so no criminal prosecutions are possible, which wouldn't make sense.

What if crimes come to light after he leaves office?

4/

Aside: The Constitution specifically anticipates a president being charged for crimes after leaving office. (This is part of the impeachment and removal clauses.) Impeach, remove, and prosecute.

He gets the law correct here ⤵️

In a motion to dismiss, the allegations must be accepted as true.

On page 8, he starts in on the separation of powers to say that the DOJ has to leave him alone.

3/

This is from Marbury v. Madison. (Screenshot #1)

Now he is assuming that anything he does as president, even stuff that has nothing to do with the office of the president, comes under official duties.

Specifically, he seems to think that directing slates of electors to persuade electors not to certify the election for Biden. (#2)

Of course, it is completely laughable to think that anything to do with slates of electors is in the "outer rim" of the duties of the president.

6/

He goes on about how, "Impeachment, removal, criminal prosecution" means that "no removal" or acquittal in the Senate precludes criminal prosecution.

The flaws are obvious. A president could commit any crimes his last week in office (or last day) when there will not be time for impeachment and removal.

He could, say, take secret doc with him.

It also puts the entire burden of investigating criminal matters cannot fall to Congress.

But . . . very creative thinking.

5/

Also he throws in that he believed the allegations of fraud, and that his "motives" don't matter.

On page 18 he starts telling us why the court should find that a president has immunity from criminal prosecution.

(He admits that there is no such law offering immunity from criminal prosecution for former presidents. He wants the courts to create one.)

Reasons include the president has "sensitive" duties.

8/

Addressing comments:
Yes, he is sort of making a res judicata (or even a double jeopardy) argument, but his lawyers don't seem to know that.

The words "res judicata" or even "double jeopardy" don't appear at all.

For a definition of res judicata: https://www.law.cornell.edu/wex/res_judicata

I think it fails for the same reason.

If you can be convicted in the Senate and then tried again in a criminal court, it cannot be said that the conviction ends the matter.

Right?

7/

The president has nothing to do with elections, with the VP's duties in Congress (which are legislative), electors, etc.

These are not within the outer perimeter.

Here is where he says that anything he does personally or as a candidate for office is part of his role as president. (Screenshot #1)

To answer questions about frivolous and sanctions: Defendants in criminal matters are given leeway in making creative arguments.

The brief isn't badly done. Nothing I see is sanctionable.

10/

Here is the fatal flaw in his argument: He claims that anything he does as president falls within the outer perimeter of his duties.

Also, he is quoting from an amicus brief. (Screenshot #1)

I found the brief he is quoting. You can see the original brief he is citing in screenshots #2 and #3.

Well, goodness. The brief he is citing says the language of incitement is not part of a president's duties.

The main point: An amicus brief is not law. It isn't authority for anything.

9/

Screenshot #1, taken literally, would mean that a president can post anything he wants on social media related to an election and be free from any criminal prosecution.

Silly.

Each screenshot is pure fantasy.

46 pages of this!!

I'm looking forward to how directing alternate slates of electors "lies at the heart of the President’s official duties."

I skipped ahead and found the section:

"Allegedly organizing contingent slates of electors falls within the President’s official duties."

12/

If Trump wins this, the president is literally above the law, and obviously, it wasn't the intention of the framers to put the president above the law.

The headings alone make that clear.

So he will not win. (That is safe to say.)

So you can go enjoy the rest of your afternoon. The rest is for certified legal nerds.

11/

Here is the creative argument: The slates of electors derive their authority from federal legislation. The president can interact with other branches as part of his duties.

Therefore, the president directing alternate slates of electors is at the heart of the president's duties.

And now we come to the end!

Someone tells me it's time for a walk, and regular walks are within the outer perimeter of my duties.

13/

#FunReadingLegalDocuments.

This will be a good* one: Trump's motion to dismiss the J6 indictment based on claims of immunity.

*good in the sense of 😂

https://storage.courtlistener.com/recap/gov.uscourts.dcd.258148/gov.uscourts.dcd.258148.74.0_1.pdf

A motion to dismiss is always uphill. Basically, the defendant says: Even if everything the government alleges is true, I would win so there is no point going forward. Example: the court doesn't have jurisdiction or there just isn't evidence.

There is a table of contents so you can the argument in outline form.

1/

@yacc143 @TruthSandwich

See: https://terikanefield.com/trump-gag-orders-and-the-first-amendment-its-complicated/

@yacc143 @TruthSandwich

I have a blog post coming shortly.

Hi everyone,

I'm back at my desk and I'm supposed to be working on my Bill of Rights book, but I'm thinking about the comments I'm getting about Trump, gag orders, and the First Amendment.

See! Overlap! So I'm actually doing paid work 😂 Who is goofing off? Not ME.

I've been getting questions about this.

I was poking around to see what people are saying, and found this comment from a lawyer⤵️

I asked, "What do you suggest?" and clarification of "honest judicial review."

No answer (yet)

I have an appointment today for my updated COVID shot 🎉

They are now available at all of our pharmacies.

@GottaLaff

Everything in San Luis Obispo was taken, so we're going to Santa Maria.

I used this link:

https://www.cvs.com/content/coronavirus?cid=ps_cor_pri_gen_brd&gclid=CjwKCAjw3oqoBhAjEiwA_UaLtkN2DnbOXJEPT9PbB5IDlzNEXC3QWnqM_odENsVWn4DmRfZuqMmCvxoCUlAQAvD_BwE&gclsrc=aw.ds

@Npars01

Nicole, the law doesn't work the way you think it does. You're stating things as facts that are not at all true. Like the last sentence of your post.