OK, let's start talking about the House's 80 page brief on impeachment. It really is an incredibly well-done piece of work. There are some things I'd do differently and some pieces I didn't love, but overall, it's very very good.

Again - this thread will happen in fits and starts. I'm swamped at work and this will come in 10-15 minute chunks as I take a break
Let's start by taking a look at the table of contents. After a 4-page intro (that's relatively long, don't love it), the brief spends a solid 30 pages walking through the facts underlying the impeachment - and, the subheadings tell us, tying in Trump's general refusal to accept
the election results with everything that followed. This is a strong rhetorical approach, but it comes with dangers: the President not only had a legal right to contest the election results, but the GOP Senators pretty much all backed that right, strongly.
It's going to be important to thread a needle of saying "this set the stage for what came after" without putting yourself in a place where you're trying to convince the Senate that the challenges themselves were impeachable. That won't fly
Also - 30 pages is an incredibly long statement of facts. Most full-length briefs aren't that long. So expect it to be very, very detailed. That's important, because the primary argument on incitement is "given the context, these words incited the attack" - so the context is key
The argument section is broken up - smartly, I think - into three separate chunks.

1) Why, on their own merits, Trump's conduct requires conviction
2) Why Trump's defenses don't fly
3) The Senate can convict Trump even though he's out of office
Again, there are some key strategic choices being made here. The section on Trump's conduct conspicuously - and, I'd have to assume, deliberately - does NOT identify any supposed statutory crime. These are purely political offenses
Another (smart) strategic choice: Attacking the defenses in separate sections, rather than interweaving the response with the affirmative case. Those defenses are likely to be the core of the Trump response, not factual argument, so they need to be addressed prominently & head on
Last (for this break, we'll be back) take a look at the page counts. They spend 6-7 pages (36-42) on the affirmative case. Another 6-7 pages (42-48) on the various defenses *other* than "but I'm an ex-President!"

And 27 pages - again, a whole brief by itself - on "ex-President"
That tells you a lot about where the House is losing votes.

They're pretty confident that they can get whatever R-votes are gettable on the basics; after all, those Senators lived through the Capitol assault, they know what's what. But ...
They may need to convince a bunch of even those unicorns - GOPers who'd be willing to convict on the merits - that they can't acquit based on "he's already out of office"

So that's where they'll spend their substantive time
OK, client work awaits. We'll pick this up again later

More from Akiva Cohen

OK, #Squidigation fans, I think we need to talk about the new Wisconsin suit Donald Trump filed - personally - in Federal Court last night. The suit is (as usual) meritless. But it's meritless in new and disturbing ways. This thread will be


Not, I hope, Seth Abramson long. But will see.

I apologize in advance to my wife, who would very much prefer I be billing time (today's a light day, though) and to my assistant, to whom I owe some administrative stuff this will likely keep me from 😃

First, some background. Trump's suit essentially tries to Federalize the Wisconsin Supreme Court complaint his campaign filed, which we discussed here.


If you haven't already, go read that thread. I'm not going to be re-doing the same analysis, and I'm not going to be cross-linking to that discussion as we go. (Sorry, I like you guys, and I see this as public service, but there are limits)

Also, @5DollarFeminist has a good stand-alone thread analyzing the new Federal complaint - it's worth reading as well, though some of the analysis will overlap.
So, quick rundown of the latest #Squidigation decision: It's very thorough; 36 pages of Judge Parker explaining that Powell and her merry band of fuckups lose for every conceivable reason


First: 11th Amendment Immunity. Basically, states (and their officials) have sovereign immunity; you can't sue them in Federal Court except to the extent that they agree to be sued there. Quick thumbnail of the doctrine here


There are only 3 exceptions to this: 1) Congress says "you can sue your state for this"; 2) the state agrees to be sued; 3) Younger, a case that said "you can sue your state if you are just seeking an order saying 'stop violating my rights'"

In other words, if the state passes a law that says "no talking politics in public" you can sue for an order saying "that's unconstitutional and can't be enforced" but not for damages from having your 1A rights violated in the past

I'm sure you can see where this is going: Exceptions 1 and 2 don't apply; Congress didn't say "no sovereign immunity" when it passed 42 USC 1983 (the civil rights statute the plaintiffs sued under) and Michigan hasn't waived it. That leave Younger as the only remaining option

More from Culture

I woke up this morning to hundreds of notifications from this tweet, which is literally just a quote from a book I am giving away tonight.

The level of vitriol in the replies is a new experience for me on here. I love Twitter, but this is the dark side of it.

Thread...


First, this quote is from a book which examines castes and slavery throughout history. Obviously Wilkerson isn’t claiming slavery was invented by America.

She says, “Slavery IN THIS LAND...” wasn’t happenstance. American chattel slavery was purposefully crafted and carried out.

That’s not a “hot take” or a fringe opinion. It’s a fact with which any reputable historian or scholar agrees.

Second, this is a perfect example of how nefarious folks operate here on Twitter...

J*mes Linds*y, P*ter Bogh*ssian and others like them purposefully misrepresent something (or just outright ignore what it actually says as they do in this case) and then feed it to their large, angry following so they will attack.


The attacks are rarely about ideas or beliefs, because purposefully misrepresenting someone’s argument prevents that from happening. Instead, the attacks are directed at the person.

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