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Jed Shugerman Profile picture
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21 Dec, 9 tweets, 3 min read
Read this by Erica Newland, who worked in DOJ's Office of Legal Counsel 2016-18, showing a glimpse of Steve Engel's disastrous role.

Sessions & Barr are household-name villains, but it's time to examine other lawyers who enabled Trump's crimes.
/Thread. nytimes.com/2020/12/20/opi…
2/ In this thread, I focus on one pivotal episode in which Engel covered up key facts about Trump's Ukraine bribery/conspiracy felony.
Engel tried to bury the whisteblower complaint.
Some background/reminder first:
cnn.com/politics/live-…
3/ The phone call was July 25, 2019.
The whistleblower filed a complaint w/ IG Atkinson Aug 12, who found it "an urgent concern" on Aug 26.
Under the Intelligence Community Whistleblower Protection Act, the DNI (Maguire) should have sent it to Congress w/in 7 days...
4/ But Maguire refused to send it to Congress, citing OLC head Engel's absurd conclusion that the whistleblower complaint did not relate to an "intelligence activity within the responsibility and authority" of the acting DNI:
washingtonpost.com/national-secur…
5/ Engel's OLC memo from Sept. 3 to cover up the whistleblower's Ukraine complaint was classified.

Sept 9: Atkinson bypassed Barr & Engel's DOJ, writing to several House members.
Sept 18: Wash Post broke the story:
washingtonpost.com/national-secur…
6/ On Sept 25, Engel declassified the Sept 3 memo, once his cover-up had been blown up. Here's the memo's conclusion:
"The alleged misconduct does not involve any member of the intelligence community."
Only "diplomatic communication between the President and a foreign leader."
7/ On the LEFT is the first version of the memo that the OLC declassified. On the RIGHT is a later declassified version.

Notice that the OLC conveniently deleted or covered up a KEY ALLEGATION about misconduct by the intel community. How did this happen?
8/ Engel apparently participated in a bad faith cover-up of the Ukraine conspiracy by hiding key facts that would have triggered informing Congress.
Here is my longer thread I posted at the time.

The question now: What consequences should Engel face?
9/ I'm attaching a link to the OLC's first version of the declassified Sept 3 memo, the one where Engel claimed to be "declassifying" but apparently *deleted* the key fact that undermined his conclusion in favor of covering up the whistleblower report:
washingtonpost.com/context/read-t…

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More from @jedshug

Jed Shugerman Profile picture
18 Dec
Self-pardons are bad, but the unprecedented suggestion of "un-pardons" is worse.
Lord have mercy, so to speak.
This op-ed is also yet another example of the "pardon panic" genre that gets pardon law and Burdick embarrassingly wrong:
Pardons are not confessions of guilt.
@CBHessick:
I am calling for a complete and total shutdown of pardon op-eds until breathless pundits take a deep breath, actually read Burdick, and figure out what is going on.
(I'm tagging Carissa because she has been so right on these questions. She did not write this op-ed, to be clear!)
Read 4 tweets
Jed Shugerman Profile picture
8 Dec
This thread on Doug Jones as AG raises problems of the modern Crony AG model, as opposed to what I’ve called the Professional or Politico model - at precisely the time we need more professional independence at DOJ.
Jones would be a Crony mistake, either real or perceived.
2/ My article here from 2019 on the Professional/Politico/Crony models for AG in US history.

If I hadn't seen this thread, I'd have set Jones more as "professional" (long-term background w/in DOJ). But Biden picks Jones, how can he not be seen as a Crony?
ir.lawnet.fordham.edu/flr/vol87/iss5…
3/ Democrats picked more Crony AGs in the first half of the 20th century. But since Nixon, Republicans generally picked Crony AGs.
No Democrat has appointed a Crony AG since JFK had his brother RFK.

I sincerely hope Biden does not make a Cronyist mistake.
Read 5 tweets
Jed Shugerman Profile picture
1 Dec
In other words, Trump Org’s 2020 business plan:
Pardon Club for Men:
“I’m not only the president. I’m also a client!”

8 pages are completely back-out redacted, but it does say “over 50 devices” like phones and laptops were seized.
Pardon me?
That’s a lot of warrants.
Read 4 tweets
Jed Shugerman Profile picture
1 Dec
After investing a lot of time researching & questioning the law of pardons, I think the left is too worked up about the validity of Trump pardons:

1. Of the concrete issues facing the US in 2021, it's not even close to the top 100.
2. State crim law covers the worst conduct.
3. Pardon panic is producing too many unforced errors by journalists and legal commentators.
For example, accepting a pardon is NOT an admission of guilt according to American law & practice, no matter what you've read on this website:
4. The eagerness to interpret accepting a pardon as evidence of guilt runs roughshod over the presumption of innocence, doubts about prosecutorial power, the value of mercy, and years of work using DNA exonerations for pardons:
Read 5 tweets
Jed Shugerman Profile picture
30 Nov
A great irony of the Trump era:
Trump’s most significant legacy - entrenching a @FedSoc judiciary- depends on the institution he attacked most relentlessly:
The rule of law and the courts.

The Trump judges have power only if the people believe the rule of law matters.
1/
2/ Republicans coddling Trump and his attacks on all legal institutions after the election are jeopardizing their one big win for which they sold their souls:
The enduring power of the courts and the law.
Trump will burn down his @FedSoc courts, and the GOP is enabling him.
Dumb.
3/ The left now views what Trump and McConnell have done to the courts as illegitimate (some but not all of that conclusion is right).
The Court seems to be moving in a direction that will alienate moderates.
And now Trump is openly delegitimizing the courts for his base...
Read 4 tweets
Jed Shugerman Profile picture
25 Nov
Pardon thread:
I've seen many people, including legal experts, claim that accepting a pardon means admitting guilt.
This simply is not the American practice.

Here is a thread on Burdick dicta and pardons for innocent people (DNA exonerations, etc.) 1/
2/
 See @ProfBrianKalt's op-ed explaining the oft-cited case Burdick (1915) as dicta:
"Burdick was about a different issue: the ability to turn down a pardon. The language about imputing and confessing guilt was just an aside — what lawyers call dicta..."
washingtonpost.com/outlook/five-m…
3/ "The court meant that, as a practical matter, because pardons make people look guilty, a recipient might not want to accept one. But pardons have no formal, legal effect of declaring guilt." - @ProfBrianKalt
Read 7 tweets

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