Renato Mariotti Profile picture
Sep 28, 2018 9 tweets 3 min read Twitter logo Read on Twitter
1/ We learned about Ford and Kavanaugh today by observing their demeanor, but the structure of the hearing made it hard to get at the truth. We learned from this hearing *despite* the format, not because of it.

A real trial or evidentiary hearing would have been very different.
2/ If an experienced trial lawyer had hours to cross-examine Kavanaugh, they would have been able to pin him down. At times, Senators elicited testimony that was not credible (like his answer about “Renate Alumni”) but couldn’t follow up before he ran out the clock.
3/ Without strict time limits, a lawyer could have walked Kavanaugh through all of the entries in his calendar, as the Republican prosecutor started to do before she was cut off. The lawyer also could have walked through the allegations of the other two women who came forward.
4/ More importantly, both sides could have subpoenaed witnesses and examined them. This hearing would have been very different with a dozen witnesses instead of just two. There are many background facts that could have been asked of those who knew Kavanaugh as a young man.
5/ Judges and juries evaluate credibility by examining many small facts and comparing a witness’s testimony to other pieces of evidence, large and small. Usually the closing argument of a lawyer involves weaving all of this evidence together to make a coherent whole.
6/ Not only were relatively few details elicited in this hearing, but the “closing argument” is largely short soundbites. That’s not a good format to weave together many complex pieces of evidence and analyze them.
7/ In any trial, it is a big advantage to have the last word. In a criminal trial, prosecutors have the last word and save their best arguments for the end. Here, Kavanaugh benefited from going last. The hearing would have been very different if Ford followed him.
7/ So in many ways the structure of the hearing dictated—or at least, highly limited—the result. The hearing was constructed to make it difficult out to arrive at the truth. The only part resembling a real examination was the questioning of Ford by the Republican prosecutor.
7/ Tonight I recorded a special episode of my #OnTopic podcast with @PattiVasquezCHI right after the hearing ended. We had a lot to discuss so be on the lookout for the podcast tomorrow. (That’s @CAH headquarters, where we taped, in the background.) /end

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More from @renato_mariotti

Oct 1, 2018
1/ This is a political statement by a lawyer representing Senate Republicans, not a prosecutorial statement.

Last week’s hearing was structured in a manner to make it difficult to arrive at the truth. Only two witnesses were called, each questioner was given five minutes, etc.
2/ No law enforcement official (prosecutor, FBI agent, etc.) would conduct an investigation in the very limited manner done by the Senate Committee.

It is also worth remembering that Mitchell was hired by Senate Republicans and has a duty to advocate their positions.
3/ So despite her trying to make it seem that she is offering a neutral assessment, it is not—she does not discuss, for example, evidence that supports Ford’s account.

In any event, the Senate hearing (or the vote to confirm a Supreme Court Justice) is not a criminal trial.
Read 7 tweets
Sep 28, 2018
1/ Because it’s now relevant, I’ll expand on a point I made on today’s #OnTopic podcast—a very plausible reason why Republicans don’t want to subpoena Mark Judge is because he could take the Fifth.

Now that there will be a FBI investigation, Judge could refuse to be interviewed.
2/ If Judge does refuse to be interviewed, that would be noted in the FBI report memorializing his interview or would otherwise be noted in the investigative file.

The Senate could still subpoena him (if Republicans vote to do so) but he could take the Fifth if they do.
3/ Because an obvious implication of a refusal to be interviewed is that Judge is concerned about incriminating himself, his attorney likely will give an alternate reason (or no reason) for refusing the interview. It would be up to the Senate Judiciary Committee to follow up.
Read 5 tweets
Sep 19, 2018
1/ Tesla CEO @elonmusk is reportedly under criminal investigation for his tweet stating that Tesla was going private at $420 a share.

This is bad news for Musk and Tesla. DOJ wouldn’t get involved if they didn’t think they could conceivably make a case.…
2/ The SEC is already conducting a civil investigation and the likely result remains civil penalties, which could involve Musk being barred from serving as an officer or director of a public company. The DOJ has a higher burden of proof that is harder to meet.
3/ To make a case against Musk, the DOJ would have to prove beyond a reasonable doubt that Musk knowingly made a false statement with the intent to defraud. If there was no plan to take Tesla private at the $420 price, his statement could materially inflate Tesla’s stock price.
Read 4 tweets
Sep 15, 2018
1/ Giuliani told @washingtonpost that "Trump and Manafort continue to have a joint defense agreement" making it "impossible for Manafort's cooperation with Mueller's office to imperial the president."

That's false. Giuliani is either lying or incompetent.…
2/ Joint defense agreements are agreements between defense teams that are make it easier for them to maintain privilege when the lawyers communicate with each other under what's called "common interest" doctrine.
3/ The idea is when two people are on the same side in an investigation or litigation, their lawyers should be able to communicate about strategy without losing privilege. It's an exception to the general rule--typically communications between opposing counsel aren't privileged.
Read 9 tweets
Sep 14, 2018
THREAD: Can Manafort tell Mueller about the communications between his team and Trump's team under their joint defense agreement?
1/ Earlier this week, Giuliani confirmed that Trump's legal team had a joint defense agreement with Manafort's team. The purpose of these agreements is to ensure that communications between the attorneys remains privileged under something called the "common interest" doctrine.
2/ Joint defense agreements (JDAs) are common in all sorts of criminal cases involving multiple defendants, as well as criminal investigations involving multiple different people who are under investigation.
Read 9 tweets
Sep 14, 2018
THREAD: What can we learn from Paul Manafort’s plea agreement?
1/ The Manafort plea agreement has been released, and it gives us a lot of information about what Manafort is facing and what he gains from the deal with Mueller.…
2/ The main benefit to Manafort is that it caps his potential sentence in the D.C. case to ten years because Mueller let him plead guilty to only two counts. It turns out that it’s a significant benefit to Manafort because the Sentencing Guidelines range is 210 to 262 months.
Read 12 tweets

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