1/ After a good night's sleep, I have a few thoughts on the impending Ripple lawsuit.

Less schadenfreude, more "what now?" https://t.co/a0oTwblBHB

I’ve often said that nothing is normal about Julian Assange’s case. Here’s my list of the top 10 least normal aspects, strictly on the logistical side of monitoring the extradition proceedings (this is not to mention the many substantive issues that are also far from normal).

1. The judge’s stubbornly persistent refusal to acknowledge that NGO observers are professionals and have an important role to play (separate to that of the general public) in ensuring open justice, and refusal to grant us access to be able to do our jobs properly.

2. The constantly shifting goal posts in gaining access to the public gallery, and arbitrary restrictions on numbers in all 3 courts where proceedings have been held. On any given day, it’s impossible to predict how many will be let in and when, necessitating very early queuing.

3. Receiving conflicting information from the court about remote access, including being accredited to the Cloud Video Platform and then having that access revoked in September. The same thing seems to have happened to us again for 4th January.

4. After unbelievable difficulty getting in, what we actually observed was a small screen on the other side of a large room. It was often impossible to tell who was who, and I could only follow properly as I had the lawyers’ voices memorised from February (when I could see them).

How about a brief refresher on federal bail, since everyone's got opinions on it this week? Yes?

Okay, here we go. In federal criminal cases, bail is governed by the Bail Reform

/2 Under the Bail Reform Act, a defendant MUST BE RELEASED ON BAIL unless the judicial officer (usually a federal magistrate judge) finds that no condition or combination of conditions will reasonably assure (1) them appearing for trial or (2) the safety of the community.

/3 It's the burden of the government -- the federal prosecutor - to PROVE by CLEAR AND CONVINCING EVIDENCE that the danger element applies, and no conditions can reasonably control it, if the government wants someone detained without bail. Preponderance burden for flight risk.

/4 HOWEVER there are certain statutory categories of crimes where there is a rebuttable presumption that no conditions will prevent flight or danger -- in other words, for those crimes, the burden shifts to the defendant.

/5 The Federal Rules of Evidence don't govern detention hearings and they can and do proceed by "proffer" -- that is, the government saying what they will prove if necessary.

Short thread on impeachment witnesses:

First, let’s remember that this case had unusual and powerful evidence in the public record. If you are prosecuting a bank robbery and you have the surveillance camera footage, you don’t need witnesses to tell you what happened.

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Second, the only areas where witnesses could help was confirming what the circumstantial evidence already showed about Trump’s knowledge and intent, both before and after the riot. Mgrs did great job of using his own tweets to show his knowledge but witnesses could confirm.

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The case was really strong as is but new witness testimony would very likely become the sole focus of the media and the public. For that reason, it is especially important to avoid taking risks with witnesses a) who are adverse to you and b) whose testimony is unknown.

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Since the only witnesses that would be helpful are ones close to Trump, executive privilege would invariably be an issue. If a witness is not cooperative, s/he would likely fall back on EP to avoid testifying. Hashing that out would take months.

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The reality is that Trump has created a dynamic through the Ukraine whistleblower and Ukraine witnesses where his domestic terrorist supporters threaten violence against witnesses against him. This fear is real and it is a huge problem. This should be everyone’s focus.

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