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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
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
Jed Shugerman Profile picture
Mar 8
Thank you @NotreDameLRev (Vol. 100) for accepting "Venality and Functionality: A Strangely Practical History of Selling Offices, Administrative Independence, and Limited Presidential Power."
I'm deeply honored & excited to work with you!
#newlawrevarticles
papers.ssrn.com/sol3/papers.cf…
2/ Table of Contents:
#newlawrevarticles
papers.ssrn.com/sol3/papers.cf…
Image
3/ My @SSRN draft "Freehold Offices v. Despotic Displacement" has more detail on:
The Opinions Clause;
The Ratification Debates;
Common law default rules for "good cause" removal; Charts on the Founders' Bookshelf & 18th C. English dictionaries:
papers.ssrn.com/sol3/papers.cf…
Read 6 tweets
Jed Shugerman Profile picture
Mar 3
As long as I am admitting my errors this week:

My good friend Jeff Cohen (@BCLAW prof. former prosecutor) persuaded me that I was wrong about a criticism of the @ManhattanDA case against Trump:

These purely internal records like paystubs could count for intent to defraud.
1/
2/ Last April, I wrote in @nytimes:
"What, in practice, is the meaning of 'intent to defraud'? If a business record is internal, it is not obvious how a false filing could play a role in defrauding if other entities likely would not rely upon it and be deceived by it."
See below: Image
@nytimes 3/ The statutes 175.05 & .10 require:
"falsifying business records...with intent to defraud."

A false tax return or FEC filing would defraud the govt, but I asked how a pay stub would defraud anyone if no one ever relies on it or even looks at it:
nytimes.com/2023/04/05/opi…
Read 18 tweets
Jed Shugerman Profile picture
Feb 29
Nevermind.
I'm a naive fool.
Unfortunately, both @rparloff & @EricColumbus are right: Image
3/ And @stevenmazie is also right, unfortunately:
Read 4 tweets
Jed Shugerman Profile picture
Feb 15
I know legal commentators are saying "Judge Merchan denied Trump's motions and has scheduled a trial for March 25, and this is now real and happening."

Hang on. There is a real chance that Trump's lawyers win a stay in federal court. (This gets technical about abstention). 1/
2/ I'm not revealing anything the lawyers don't already know.
They've sought these kinds of stays and injunctions in fed court before against NY prosecutors.
See Trump v. Vance on Manhattan DA subpoena for tax records. Trump lost every stage but won a 1-year delay, 2019-2020.
3/ Trump's lawyers can seek an injunction in fed district court (and a stay) on grounds of
1) no state jurisdiction
2) federal preemption
3) selective prosecution, partisan bias, violation of 14th A.

I predicted this delay problem last year in @nytimes:
nytimes.com/2023/04/05/opi…
Read 20 tweets

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