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Jed Shugerman Profile picture
@jedshug
May 22, 2019 • 8 tweets • 3 min read • Read on X
Thread on the 2 bills passed by NY state legislature this week on tax returns and pardon loophole.
1/ First, on releasing tax returns: This bill is a big deal for 2 reasons, and not because it will release Trump tax returns immediately. (It won't).
2/ Trump's lawyers can still sue in fed court to enjoin NY state from releasing his state taxes, under fed claims (bill of attainder). He will lose those suits, just like he will lose to quash House request to IRS. Same delay, same legal result... but unlike IRS...
3/ ... NY state tax officials will IMMEDIATELY comply with a court order. I am not at all sure that Mnuchin would comply, which would set up a true constitutional crisis (unlike Pelosi's or Nadler's assumptions about the current non-con crisis)...
4/ The NY bill assures compliance, and that also makes IRS compliance more likely (more risk and less reward for defiance). If NY releases reveal suspicious activity, it's more likely courts will sympathize with other subpoenas and that the House can punish defiance...
5/ But the NY bill's text means the House should formally immediately vote for an "Impeachment inquiry" in order to win w/ conservative judges.
As I discussed last week, the NY bill says the House must have a "specified and legitimate legislative purpose." theatlantic.com/ideas/archive/…
6/ Now for the double jeopardy bill that closes the pardon loophole. Thanks, @FSFP @ronfein @JohnBonifaz @tribelaw @davidrlurie for your work on this issue. Given Trump's increasingly reckless pardons, it could become very relevant.
7/ It is relevant only after a co-conspirator has been tried or has pled guilty, and then gets pardon. The bill does not apply retroactively to Manafort, etc. But let's say Roger Stone or Don Jr. stragetically plead guilty to hacking/conspiracy charges in 2020, then get pardon...
8/ I wouldn't bet money on Don Jr. flipping on dear old Dad. But there's nothing like facing a 5-10 year sentence to concentrate the mind. That's even more true for Stone, Kushner, Prince. Who knows?

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More from @jedshug

Jed Shugerman Profile picture
Jul 21
This scare tactic - that the GOP will challenge any new nominee - is meritless nonsense, belied by Speaker Johnson's inability to specify any legal argument.
(See election law experts like @rickhasen in thread)

It tells you the GOP is desperate to keep Biden on the ballot. 1/
“I don’t put any credence into it,” says @RickHasen. “Biden is not the party’s nominee now, and states generally point to the major party’s nominee as the one whose name is on the ballot.”

Hasen is one of the nation's leading experts on election law.
sg.news.yahoo.com/bogus-wing-leg…
@rickhasen More here: Image
Read 23 tweets
Jed Shugerman Profile picture
Jul 15
I've read Judge Cannon's dismissal of the Mar-a-Lago case, ruling Special Counsel Jack Smith's appointment was invalid.

I am shocked but not surprised.

Clearly she was desperate to dismiss the Watergate case US v. Nixon & DC Cir. precedents in order to dismiss this case.
1/
2/ Cannon's decision is mostly statutory interpretation, not con law, ruling Smith's appointment does not have a statutory basis.

She doesn't rule directly on the constitutional issues, but she sneaks them in through "clear statement" rules, a now infamous Roberts Court move.
3/ I acknowledge the statutory basis for Smith's appointment is not textually obvious.
Judge Cannon actually does a good job explaining that the statutes that the DOJ relies on are not clear or leave questions.
But what do judges do when they have such doubts?

Read PRECEDENTS.
Read 17 tweets
Jed Shugerman Profile picture
Jul 1
Trump v. US thread.
Opinion below.
Bottom line #1: I agree that a Jan 6 trial cannot happen before the election (That was almost certain when the Court took this case)

But a great idea is floating:
Jack Smith can use evidentiary hearings as a mini-trial.
supremecourt.gov/opinions/23pdf…
2/ The Court remanded the case.
Commentators are overlooking the Court's emphasis on "presumptive immunity," rather than "absolute immunity."
See Chief Justice Roberts's concise summary at p. 6 below.

This presumption still opens a big door for trial court evidentiary hearings. Image
3/ The Court holds "absolute immunity" for "core constitutional powers" (p. 6 above).
But what are those "core" powers?

p. 8: "Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his 'conclusive and preclusive' constitutional authority."
Read 19 tweets
Jed Shugerman Profile picture
Jun 28
I'll be live-tweeting tonight's debate, to the extent that I can keep up and have the stomach for it.
🧵
1/ I note that Donald Trump has already lost the expectations pre-game, which may (or may not) be a big deal.
politicalwire.com/2024/06/27/mor…
2/ "A @nytimes Siena College poll found 60% of registered voters thought Trump would perform 'very' or 'somewhat' well in tonight’s debate. Only 46% said the same of Biden.
Overall, nearly half of voters anticipated a poor showing for Biden."
Low expectations. Maybe good news?
@nytimes 3/ I'm sorry this matters, but Biden has a frog in his throat, and even when he cleared the frog, his voice is flat and monotone. His answer on inflation is fine substantively, but the vocals are really not good.
His answer was good.
But he sounds weak.
Read 24 tweets
Jed Shugerman Profile picture
Apr 25
I'm tweeting now the Presidential Immunity argument (on a train to be on @CNN @andersoncooper tonight to talk about my op-ed below...)

Justice Barrett nicely pushed back on Sauer on notion a criminal law needs a clear statement to apply to presidents.
nytimes.com/2024/04/23/opi…
2/ From @RickPildes:
Trump's lawyer Sauer essentially conceded most of the case.
@RickPildes 3/ Barrett picked up on the Special Counsel's argument of the absurdity that crim statutes need a clear statement, if only a tiny number of statutes include (she said only three or so). Surely Congress did not mean for presidents to be broadly immune so generally from crim law.
Read 54 tweets
Jed Shugerman Profile picture
Mar 10
At @FedSoc National Student Convention, @NoahRFeldman is telling this audience that the formalist separation of powers & Scalia’s Morrison dissent are anti-originalist and dangerous…
And he’s crushing it. He is quoting Madison Federalist 47-51 and the audience is uncomfortable.
2/ You can watch it here:
@FedSoc @Harvard_Law
twitter.com/i/broadcasts/1…
@FedSoc @Harvard_Law 3/ @NoahRFeldman says the Constitution’s original structure is functionalism and “checks and balance,” not formal “separation of powers.”
I haven’t put the point this strongly, but my research shows he’s more right than wrong.
And more historically correct than Scalia.
Read 8 tweets

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