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Jed Shugerman Profile picture
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25 May, 6 tweets, 4 min read
Major story on the Barr DOJ memo blocking the Mueller Report and indictments.
1. Shame on the Biden DOJ today for suing to block its release.
2. Some context: Memo co-author OLC Steve Engel needs to be investigated for his role in Ukraine cover-up.
washingtonpost.com/national-secur…
2/ Obama/Biden officials need to do some soul-searching about how they expanded executive power.
They may have had good moral reasons, but they established precedents that Trump abused.
Today's filing to block is a bad sign from the Biden/Garland DOJ
3/ Thread from @ZoeTillman on Biden/Garland DOJ fighting the release of Part II of the memo.
Credit to Zoe for posting the Barr DOJ memo text. Major media should link to such documents when writing stories about them.
cc: @washingtonpost @DevlinBarrett
4/ As you can see here, the Engel/O'Callaghan memo to Barr was 8 pages.
The Biden/Garland DOJ has agreed release about one page of its text, and has blacked out the rest of it:
5/ I agree w/ @davidrlurie.
The Biden/Garland DOJ could have distinguished between Barr & Engel's abuse of power (already established by Judge Jackson) vs. appropriate deliberations.
Why is the Biden administration pushing an executive power agenda?
6/ For context on Trump's OLC head Steve Engel, see my thread showing how he participated in the Ukraine cover-up, likely deliberately misrepresenting/hiding the facts to wrongly block the whistleblower report from Congress.
Engel needs to be investigated.

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More from @jedshug

Jed Shugerman Profile picture
7 May
This week, 2 major scholars re-asserted the unitary executive theory:
Akhil Amar in "The Words That Made Us," p. 357-59; @jacklgoldsmith in After Trump podcast w/ @page88.

Yet the Founding Era documents don't support them (linked @lawfareblog post).
1/
 lawfareblog.com/imaginary-unit…
2/ The unitary executive theorists that Trump appointed are getting more extreme. Yesterday, Judge Newsom on the 11th Cir. used the theory to assert ahistorical and unprecedented restrictions on Congress, standing, and private rights of action:
3/ @jacklgoldsmith is right about how the Supreme Court has ruled recently, and that limits reform. But this is how their show summary characterize the reformers’ view:

“As a legal and constitutional matter, this ‘independent’ Justice Department is a lot of nonsense.”

Nonsense?
Read 16 tweets
Jed Shugerman Profile picture
19 Apr
Forthcoming in the Stanford Law Review, March 2022:

"Vesting": Text, Context, and Separation-of-Powers Problems

("Vesting" didn't mean what the Roberts Court and the unitary theorists assume it meant).
Abstract attached.
papers.ssrn.com/abstract=37932…
2/ The unitary executive theory relies on 3 originalist pillars: Take Care/Faithful Execution Clause, Vesting, and the Decision of 1789.
It's a shell game - if you raise questions about one, unitarians point to another.
But none of the 3 pillars can support the Roberts Court.
3/ The Take Care Pillar?
@andrewkent33, Leib, and I showed in 2019 @HarvLRev that the Faithful Execution clauses (Take Care and Oath clauses) are historically duty-imposing rather than power-granting, setting fiduciary-like limits on the president.
harvardlawreview.org/2019/06/faithf…
Read 10 tweets
Jed Shugerman Profile picture
29 Mar
Tomorrow at noon:
I'll be talking with my friend Prof. @CBHessick about my book project "The Rise of the Prosecutor Politicians: A Cause of Mass Incarceration."

Focus on Earl Warren, the Japanese Internment, & the Kennedys, "liberals" tough on crime.
1/
2/ Background:
I put together a database showing that an increasing number of Sens, Govs, State AGs, & Justices rose from prosecutors' offices.
1st turning point: Progressive Era pols after short time as DA.
2d turning point: 1940s for career "tough" DAs
shugerblog.com/2017/07/07/the…
3/
 The Prison Policy Initiative @PrisonPolicy (@PWpolicy Wendy Sawyer, Alex Clark) used my data to put together this chart showing the pattern of former prosecutors becoming Sen/Gov/AG over the past decade:
prisonpolicy.org/blog/2017/07/1…
Read 5 tweets
Jed Shugerman Profile picture
26 Mar
The way we talk about the Taney Court and Dred Scott and about the Lochner Court as illegitimate ideological hack partisans is how one day we all will talk about Shelby County and the Roberts Court.

Hell, let’s start now.
2/ “In Shelby, Roberts used erroneous data to make claims about rates of voter registration among blacks and whites in 6 southern states...
The data displayed registration gaps had shrunk dramatically.
But some of the numbers in his chart were wrong.”
propublica.org/article/suprem…
3/ BASIC RACE STATS ERROR:

“Roberts used numbers that counted Hispanics as white, including many Hispanics who weren’t U.S. citizens and could not register to vote, which had the effect of inaccurately lowering the rate for white registration.”

He mixed Latino in with white!
Read 8 tweets
Jed Shugerman Profile picture
24 Mar
Zeus, a plan, a canal, Suez.
This is more Palingenesis/Parthenogensis than Palindrome.
Or more like a Michael Palin-drome.
Not a Sarah Palin-drone.
I am more proud of this six-word tweet than some of my sixty-page law review articles.
Read 4 tweets
Jed Shugerman Profile picture
11 Mar
Am I really annotating Seila Law as I prepare to teach it next Monday?
And am I going to run out of room in the margins?
Yes I am.
cc. @jdmortenson @BlakeProf @LeahLitman @petermshane @vicnourse
Annotated Seila Law, p. 2.
cc: @Jane_C_Manners @LevMenand @andrewkent33
Annotated Seila Law, p. 3
(for p. 2: Did I really ask where in Article III is the "Duty to Micromanage" clause (a.k.a. The Dwight from the Office Clause)?
Yes I did.
Cf. Peter Strauss, "Overseer or Decider?"
Read 5 tweets

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