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Jed Shugerman Profile picture
Jed Shugerman
@jedshug
Prof @BU_Law JD/PhD History & dad jokes 5th most cited legal historian, 2019-23 Next book: "A Faithful Pres" https://t.co/pNx2Rx4e3U https://t.co/Rdnudr0EcV
37 subscribers
Aug 25 • 22 tweets • 6 min read
🧵 from @jdmortenson on Sai Prakash & Aditya Bamzai is devastating.
It has serious legal implications - and it is actually much worse.
Julian & I have asked questions for years privately & politely.

I regret that it has come to this.
I regret I didn't call them out 4 yrs ago. 1/ 2/ I emailed Prakash questions about his use of sources in May 2020, early in Covid, in his article "New Light on the Decision of 1789," while Seila Law was pending.
He never addressed them. Instead, he & @adityabamzai repeated them & added new misuses:
papers.ssrn.com/sol3/papers.cf…
Jul 21 • 23 tweets • 6 min read
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…
Jul 15 • 17 tweets • 5 min read
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.
Jul 1 • 19 tweets • 6 min read
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
Jun 28 • 24 tweets • 4 min read
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?
Apr 25 • 54 tweets • 10 min read
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.
Mar 10 • 8 tweets • 3 min read
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…
Mar 8 • 6 tweets • 3 min read
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
Mar 3 • 18 tweets • 5 min read
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
Feb 29 • 4 tweets • 1 min read
Nevermind.
I'm a naive fool. Unfortunately, both @rparloff & @EricColumbus are right: Image
Feb 15 • 20 tweets • 7 min read
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.
Feb 8 • 53 tweets • 11 min read
I’ll live-tweet the 14th A. Disqualification oral arguments this morning. 🧵

I think there are 5 issues. One is easy (“officers” includes presidents), 1 is a mild problem, and I have strong concerns about 3 others, especially whether Jan 6 or speech count as “insurrection” I’m flagging this article on 1st Amendment concerns about Colorado’s specific ruling by @Thomas_A_Berry
It raises 1 of several problems specific to Colorado’s trial court basis.

@ARozenshtein & I have published a solution in future cases.
Jan 12 • 14 tweets • 5 min read
I'm interrupting my 2-month Twitter hiatus b/c I've just found a highly relevant speech from the Ratification debates (1788):
Against Presidential Immunity & Unitary Executive theory (interpreting the Opinions Clause).
Future SCOTUS Justice Iredell, NC Convention, 7/28/1788:

Image
Image
Image 2/
 From Elliot's Ratification Debates, Vol. 4, p. 108-110.
NC Delegate James Iredell, SCOTUS Justice 1790-1799:
On presidential criminal liability, to explain the Opinions Clause vs. a British cabinet, he first explains that a president is (obviously) different from the King: Image
Nov 9, 2023 • 24 tweets • 5 min read
I'll live-tweet some events from @FedSoc National Lawyers Convention "Originalism on the Ground" (Panel #1), Paul Clement, Hon. Britt Grant, Hon. James Ho, Hon. Joan Larsen, @BMeyler (Stanford Law), Hon. Jason Miyares, @ElizabethWydra (@MyConstitution), Thursday 9:15-11:15
1/ 2/ I'll review previous points, but here is a question I'm especially interested in. Moderator Hon. Larsen asks @bmeyler about the legal academy and historians on originalism.
@bmeyler says legal scholars/historians have more time to dig, and sometimes the research takes years...
Jul 4, 2023 • 7 tweets • 3 min read
The Major Question Doctrine is Purposivism, not Just Anti-Deference: a thread.
Barrett's Student Debt concurrence tried to defend the MQD as textualism, but fumbled into the opposite.
Color-coding & annotating her opinion, p. 5-16:
Red = textualism
Blue = unwitting purposivism 2/ Her opening "short answer" quoting FDA v. Brown & Williamson is a strange start for a textualist (p. 5).
This early MQD case was social/political context (purpose) over text.
As a matter of text & dictionaries, tobacco plainly is a “drug,” and cigarettes are "devices":
Jun 29, 2023 • 12 tweets • 6 min read
Affirmative Action dissents from Sotomayor and Jackson (and Kagan concurring) have an enormous amount of *originalist* historical evidence of race-conscious remedies from the 1860s.

A thread of screenshots from their dissents. Then I’ll add from the majority.

Sotomayor dissent:





2/ Jackson highlights & embraces Sotomayor’s historical analysis of the 1860s:
P. 2: “Our country has never been colorblind.”





Apr 4, 2023 • 13 tweets • 6 min read
Blogpost:
"A Potential Problem for the Trump Indictment":
Has a NY court ever allowed a conviction from this statute, NYPL 175 requiring "intent to defraud," based on an internal business record, i.e., on which others are not likely to rely?
shugerblogcom.wordpress.com/2023/04/04/a-p… 2/ I haven't done a deep dive. But I have checked the posts and essays by vocal pro-indictment experts arguing that the case is clear.
National reporters have asked this question for over a week. So far, they haven't answered it. The indictment is here:
manhattanda.org/wp-content/upl…
Apr 4, 2023 • 4 tweets • 2 min read
What I'll be looking for today:
The NY filing crime requires "intent to defraud."
A "speaking indictment" showing:
A. A tax scheme w/ 1. a concrete loss to NY state & 2. evidence of actual intent;
Or
B. Another underlying non-election crime.

But not C: Any campaign offense. 1/ 2/ Why am I hoping not to see reliance on a campaign finance offense?
The federal statute has a very broad preemption clause (below) that has been interpreted to have exceptions only if the campaign violation is "tangential."
It isn't tangential here.
Mar 30, 2023 • 6 tweets • 4 min read
If you want to understand what’s going on, then turn off the cable tv news and read a newspaper or a legal blog. E.g., it is not legally significant that fed prosecutors got a cooperating @MichaelCohen212 to add, on top of 7 tax & bank fraud pleas, an 8th plea - cherry-on-top go-after-Trump deal - for a federal crime.
This is a state case under state law.
@AriMelber @thereidout @JoyAnnReid
Mar 18, 2023 • 11 tweets • 4 min read
Cautionary @alegalnerd thread on potential Trump indictment by @ManhattanDA:
If this indirect fraud 175.05 with a high mens rea requirement is the only basis, “the case is in serious jeopardy of being dismissed.”
Even worse: a trial & a unanimous “not guilty” verdict. 2/ In other words, if this is the case (a big “if”), this seemingly unprecedented theory for a state prosecution would be a serious legal and political mistake. (Regardless of Trump’s threats)
I hope @AlvinBraggNYC @ManhattanDA and his staff are taking these concerns seriously.
Mar 15, 2023 • 6 tweets • 4 min read
I’ve been interviewed by @briebriejoy twice. Total professional respect, even when we sharply disagreed on student debt. During the 2d interview, @YuPersis’s child popped into her office. Brianna was delightful & greeted the child warmly.
1) Bethany’s story seems unlikely to me… 2) Even if true (and I’m saying I doubt it), Bethany’s ridiculously sex-panic paranoid Tweets *preceded* the interview!
She can only blame Brianha if Brianha had invented a Time Machine and forced Bethany to tweet crazy tweets in the past: