Separating The Powers

This does not appear to articulate any valid basis for resisting a subpoena. https://t.co/hOp7uYUWoW

— CyborgSlavesOfPopehat (@Popehat) July 6, 2022

Granted, there’s no reason to provide reasons for challenging the subpoena outside of court filings.  One of the problems we have is people talking about legal procedures with no clue what they are talking about. This is the central problem with trying cases on Twitter rather than in court.

Hey lawyers and legal experts out there. Can you let me know if my analogy below makes sense? I've been puzzled by this question of intent blocking a possible prosecution of Trump. https://t.co/Bm45pUBAlP

— David Corn (@DavidCornDC) July 5, 2022

The flaw is not in David Corn, the flaw is in the information bouncing around the internet, most of it from people with some knowledge but no experience in criminal prosecutions.

Merrick Garland appears to be a cautious person. I hope he understands that indicting Trump is the right choice for the risk averse given the consequences of not doing so.

— Rick Hasen (@rickhasen) July 6, 2022

Rick Hasen is frequently touted as an “election expert.” But what he doesn’t know about criminal prosecution would fill a law library.

Here’s my latest for @cafedotcom on how the congressional and DOJ investigations can be either complementary or conflicting; and why the Jan. 6 Committee might be better positioned to neutralize the clear and present danger posed by Trump https://t.co/t2ZKXTVsMf

— Asha Rangappa (@AshaRangappa_) July 6, 2022

Asha Rangappa is not the final word on these matters, but she understands criminal law:

Crime = actus reus (guilty act) + mens rea (guilty mind). You have to have/prove both

— Asha Rangappa (@AshaRangappa_) July 5, 2022

And she has more experience in criminal investigations and prosecutions than Hasen. Which brings us back to the Senator, and Popehat.

Popehat does know criminal law, so his opinions on such matters are at least not to be taken lightly. The Senator does have the privilege clause of Article 1. If his lawyer hasn’t cited it yet, that’s a strategy for a defense in the court of public opinion; which is the only reason this letter was released. The Senator is entitled to raise any defense he wants in court (or more accurately, any challenge to the subpoena), without first raising them in public. Raising challenges in public is a separate strategy from raising them in court.

If you’re still hungry, there’s a fairly cohesive Twitter analysis:

Graham's office says he has been informed that he is neither a target nor a subject but merely a witness which is consistent w/ my view that targets are not usually subpoenaed to a grand jury. Graham has to challenge the subpoena first in Georgia state court- he will lose - then

— Shanlon Wu (@shanlonwu) July 6, 2022

It is an arrogant pompous and legally weak argument from Graham and it should be slam-dunk rejected by any court that hears it.

— Shanlon Wu (@shanlonwu) July 6, 2022

Again, what the Senator says publicly is not binding on him in court. He could raise different claims in court. But it doesn’t seem he has a defense against the subpoena so far.

What will be fun is to see what challenges he raises, and what the court makes of them. Rest assured the Georgia DA thought this through before issuing that subpoena.

I was going to post this separately, but it's something of a theme, isn't it?

Texas Attorney General Ken Paxton is seeking to dismiss a misconduct lawsuit from the state bar over his attempt to challenge the results of the 2020 presidential election.

Paxton claimed the suit is politically motivated.https://t.co/LHYnhYFsiA

— Texas Tribune (@TexasTribune) July 6, 2022

In the court filing, Paxton said the state bar’s Commission for Lawyer Discipline, which filed the suit, had no authority to “police the decisions of a duly elected, statewide constitutional officer of the executive branch.” Paxton also stood by his decision to challenge the results of the 2020 election.

The State Bar of Texas is the licensing arm of the Supreme Court of Texas.  It uses the authority of the Supreme Court of Texas to license lawyers to practice in Texas, and likewise rests on that authority to sue to remove a license from a licensed lawyer.  Paxton is trying to argue, sotto voce, that this exercise of power is a violation of the separation of powers because he's a "statewide constitutional officer of the executive branch."

Which, I guess, puts him above the law?  Now, if there was an effort to prosecute Paxton for violating, say, securities law, his status as AG wouldn't protect him.  And a lawyer is always responsible to the licensing authority (the State Bar of Texas, in this case) for actions taken under the authority of that license.  So is Paxton saying that because he's the AG, he can't be investigated for violating the disciplinary rules of the governing body that issues law licenses?

Neat trick, if you can get it.  Somehow I don't see the Texas Supreme Court putting Paxton above the law for the duration of his term in office.

Oh, and that ground for dismissal that the suit is "politically motivated"?  He may prove it in court, but it raises a fact issue that can't be dismissed on a motion to dismiss.  His lawyers really should know better than that.