Shugerblog

As the Manhattan prosecutors are wrapping up their case-in-chief, they have left several legal and factual questions still unanswered, even a year after many of us raised these questions about their indictments: Who or what was the target of Trump’s alleged “intent to defraud”? Who would be defrauded by entirely internal documents (e.g. the pay stubs, invoices, and daily ledger entries)? 

New York courts have never allowed a case based on what the prosecutors have presented so far: a 175.10 intent to defraud the general public or the “electorate.” They have not required a financial or pecuniary fraud. Nor have they narrowly interpreted 175.10 intent to defraud as requiring a specific person as the target, but they have required a “target,” as a slightly broader class.  

In similarly structured statutes, like breaking and entering with intent to commit another crime, the NY courts have allowed prosecutors to charge someone with breaking and entering an apartment building with intent to burglarize one of the apartments, without specifying which apartment. NY courts have allowed a 175.10 intent to defraud to apply to defrauding a targeted class of investors, without specifying a particular investor.

But they have needed prosecutors to identify a relatively narrow “target,” and they have never allowed a 175.05 or 175.10 “target” as broad as the general public or the voters. First, here is the relevant section from my NY Times Guest Essay. Second, I offer more detail from NY decisions.

1. Background from my Guest Essay:

Here was one of my questions that I raised originally a year ago, and re-stated three weeks ago in The NY Times:

After listening to Monday’s opening statement by prosecutors, I still think the district attorney has made a historic mistake. Their vague allegation about “a criminal scheme to corrupt the 2016 presidential election” has me more concerned than ever about their unprecedented use of state law and their persistent avoidance of specifying an election crime or a valid theory of fraud.

To recap: Mr. Trump is accused in the case of falsifying business records. Those are misdemeanor charges. To elevate it to a criminal case, Mr. Bragg and his team have pointed to potential violations of federal election law and state tax fraud. They also cite state election law, but state statutory definitions of “public office” seem to limit those statutes to state and local races.

Both the misdemeanor and felony charges require that the defendant made the false record with “intent to defraud.” A year ago, I wondered how entirely internal business records (the daily ledger, pay stubs and invoices) could be the basis of any fraud if they are not shared with anyone outside the business. I suggested that the real fraud was Mr. Trump’s filing an (allegedly) false report to the Federal Election Commission, and that only federal prosecutors had jurisdiction over that filing.

A recent conversation with Jeffrey Cohen, a friend, Boston College law professor and former prosecutor, made me think that the case could turn out to be more legitimate than I had originally thought. The reason has to do with those allegedly falsified business records: Most of them were entered in early 2017, generally before Mr. Trump filed his Federal Election Commission report that summer. Mr. Trump may have foreseen an investigation into his campaign, leading to its financial records. He may have falsely recorded these internal records before the F.E.C. filing as consciously part of the same fraud: to create a consistent paper trail and to hide intent to violate federal election laws, or defraud the F.E.C.

In short: It’s not the crime; it’s the cover-up.

Looking at the case in this way might address concerns about state jurisdiction. In this scenario, Mr. Trump arguably intended to deceive state investigators, too. State investigators could find these inconsistencies and alert federal agencies. Prosecutors could argue that New York State agencies have an interest in detecting conspiracies to defraud federal entities; they might also have a plausible answer to significant questions about whether New York State has jurisdiction or whether this stretch of a state business filing law is pre-empted by federal law.

However, this explanation is a novel interpretation with many significant legal problems. And none of the Manhattan district attorney’s filings or today’s opening statement even hint at this approach.

Instead of a theory of defrauding state regulators, Mr. Bragg has adopted a weak theory of “election interference,” and Justice Juan Merchan described the case, in his summary of it during jury selection, as an allegation of falsifying business records “to conceal an agreement with others to unlawfully influence the 2016 election.”

As a reality check: It is legal for a candidate to pay for a nondisclosure agreement. Hush money is unseemly, but it is legal. The election law scholar Richard Hasen rightly observed, “Calling it election interference actually cheapens the term and undermines the deadly serious charges in the real election interference cases.

In Monday’s opening argument, the prosecutor Matthew Colangelo still evaded specifics about what was illegal about influencing an election, but then he claimed, “It was election fraud, pure and simple.” None of the relevant state or federal statutes refer to filing violations as fraud. Calling it “election fraud” is a legal and strategic mistake, exaggerating the case and setting up the jury with high expectations that the prosecutors cannot meet.

The most accurate description of this criminal case is a federal campaign finance filing violation. Without a federal violation (which the state election statute is tethered to), Mr. Bragg cannot upgrade the misdemeanor counts into felonies. Moreover, it is unclear how this case would even fulfill the misdemeanor requirement of “intent to defraud” without the federal crime.

In stretching jurisdiction and trying a federal crime in state court, the Manhattan district attorney is now pushing untested legal interpretations and applications. I see three red flags raising concerns about selective prosecution upon appeal.

First, I could find no previous case of any state prosecutor relying on the Federal Election Campaign Act either as a direct crime or a predicate crime. Whether state prosecutors have avoided doing so as a matter of law, norms or lack of expertise, this novel attempt is a sign of overreach.

Second, Mr. Trump’s lawyers argued that the New York statute requires that the predicate (underlying) crime must also be a New York crime, not a crime in another jurisdiction. The  district attorney responded with judicial precedents only about other criminal statutes, not the statute in this case. In the end, the prosecutors could not cite a single judicial interpretation of this particular statute supporting their use of the statute (a plea deal and a single jury instruction do not count).

Third, no New York precedent has allowed an interpretation of defrauding the general public. Legal experts have noted that such a broad “election interference” theory is unprecedented, and a conviction based on it may not survive a state appeal.

2. New York Precedents on 175.10 Intent to Defraud a “Target”

New York courts do not require a financial or pecuniary fraud, nor an intent to target a specific individual, but they do require a target of a foreseeable class. They have not allowed “intent to defraud” to apply to such a broad class as the general public or “the voters.”

A. People v. Coe (1986)

Supreme Court, New York, Criminal Term, Part 48.April 14, 1986 131 Misc.2d 807  501 N.Y.S.2d 997

“The statute requires an expressed intent to defraud. However, the target of such attempt is not set forth.”

Leonora Coe was “charged in a two-count indictment with wilful violation of health laws, in violation of Section 12–b of the Public Health Law in that she is alleged to have violated Section 2803–d of the Public Health Law and regulations enacted pursuant thereto, and with falsifying business records in the first degree in violation of Section 175.10 of the Penal Law. The case was tried before me without a jury. Motion was made to dismiss the indictment at the close of the entire trial.

The People have proven the following facts:

Coe is a registered nurse who was in charge of the third floor, at the Isabella Geriatric Center prior to and on July 10, 1984. Erwin Gersh was a resident of the **999 third floor at the Center. Coe was familiar with Gersh, and with his medical history, since he had been a resident at the Center for some time previous.

Gersh was an 86-year old man who was somewhat senile. From time to time he had taken certain items such as papers of various kinds and put them into his pockets. He had a history of heart disease, and other illnesses. Gersh had difficulty expressing himself verbally.

On the afternoon of July 10, 1984, Coe was told that another resident of the floor claimed that two $5.00 bills were missing. Because Gersh had been known to have taken things in the past, Coe went to him and attempted to search through his pockets. Gersh became agitated and resisted the search. Coe stopped searching because of Gersh’s agitation and called a security guard. The guard, James Taylor, came to the area where Gersh was, and there was again an attempt made to search Gersh. Gersh still physically resisted and verbally objected to the search.

Taylor lifted a chair and banged it down in front of Gersh, thus causing a loud noise. Taylor then pinned Gersh’s arms to his sides while defendant searched his pockets. The search did not reveal the two $5.00 bills that defendant was looking for and she then left the area together with Taylor.

A short time later, approximately five minutes, defendant returned and saw that Gersh had collapsed on a chair. He was gasping for breath. Defendant attempted to administer CPR and oxygen in order to revive Gersh but her attempts were unsuccessful. Gersh died.

Coe entered the following note in Gersh’s records:

“Observed resident was extremely confused and talks incoherently. Suddenly became unresponsive and cyanotic; no pulse, no B/P; cardiac message and 02 3/L Min. has no effect. Supervisor informed and responded. Patient ceased breathing at 6:20/P. Dr. Hussain contacted. Resident was pronounced dead at 7:55/P by same. Family Dr. E. Sorell were unable to contact via phone. Post mortem care done. Body brought to morgue. L. Coe, R.N.”

Coe was a registered nurse for a number of years before 1984. During her employment at Isabella, she had attended various in-service lectures relating to her responsibilities. Among those lectures were lectures about the requirements of law as to the treatment of patients, and more specifically the avoidance of mistreatment of residents. Some of the lectures covered the material specifically set forth in Section 2803–d(7) Public Health Law and the regulations promulgated thereunder. This material is some times known as the “Patients’ Bill of Rights.” It was discussed at an in-service lecture, which Coe attended.

B. People v. Schrag (1990)

County Court, Rockland County, New York.June 8, 1990 147 Misc.2d 517  558 N.Y.S.2d 451  

The court below “found that conduct to be insufficient to establish an ‘intent to defraud’ as charged since there was no evidence that “another person” was deprived of any property or right as a result of the defendant’s actions. A review of the Article 175 crimes illustrates that the use of the term “intent to defraud” is not qualified by any language which limits their applicability to property or pecuniary loss.

When the Legislature intended to limit the scope of a fraud statute it has done so (i.e., Penal Law Sections 195.20 and

190.60.). While several Penal Law fraud statutes are directed specifically to preventing property or pecuniary loss, the fraud crimes in Article 175 of the Penal Law are not so delimited and therefore the “intent to defraud” terminology must be interpreted so as to effectuate their object, spirit and intent. A Court must interpret a statute in light of the purpose underlying its enactment.

Both the People and the defendant have discussed People v. Coe, 131 Misc.2d 807, 501 N.Y.S.2d 997 (N.Y.Cty., 1986); aff’d. 126 A.D.2d 436, 510 N.Y.S.2d 470; aff’d. 71 N.Y.2d 852, 527 N.Y.S.2d 741, 522 N.E.2d 1039, which involved a nurse who omitted from her nursing notes any facts relating to her search of a patient. The trial Court found that the intent to defraud required by Penal Law § 175.10 “is the intent to defraud anyone.” The trial court stated the target of the intent to defraud could have been the facility, the patient’s relatives, the defendant’s supervisors, or others. Similarly in this case it may be that the target of the intent to defraud could have been the defendant’s supervisors, the *519 defendant’s employer, or the victim of the assault himself. The Court of Appeals found the defendant’s challenge to her conviction for a lesser included charge, with the same element of intent to defraud, to be without merit.

C. People v. Elliassen (2008)

Supreme Court, Richmond County, New York. September 5, 2008

20 Misc.3d 1143(A); 873 N.Y.S.2d 236

“Falsifying Business Records in the First and Second Degrees, charge the defendants with not preparing and filing the juvenile log report or the UF 250 stop and frisk report relating to their interaction with Rayshawn Moreno. These statutes require defendants to have an “intent to defraud”. It is not necessary to show a property or pecuniary loss from the fraud, and, in this case, it is sufficient to show that the NYPD’s legitimate official actions and purposes were impeded. See, People v. Schrag, 147 Misc.2d 517 (County Court, Rockland County, 1990); People v. Coe, 131 Misc.2d 807, 812 (Supreme Court, New York County, 1986) [“…. the target of the intent to defraud could have been defendant’s supervisors, defendant’s employer or the victim….”].”

The Manhattan DA offered four potential object offenses in response to President Trump’s request for a Bill of Particulars. Keep in mind that the Manhattan DA’s initial indictment in April 2023 was completely silent about what alleged crimes were the basis for upgrading the misdemeanor business filings into 34 felonies.

Trump’s lawyers asked for a standard practice in New York, to receive a bill of particulars to clarify the case in compliance with the Sixth Amendment’s right for a defendant “to be informed of the natureand cause of the accusation.”

The judge allowed the Manhattan D.A. to refuse to give a bill of particulars- a surprising decision, especially in a case of such significance and with such ambiguity and complexity. Instead, Judge Merchan counted the D.A.’s reply, providing only a vague outline of the case, as sufficient information. (Side note: How often do NY judges allow such unclear indictments without bills of particulars? Are NY judges regularly letting prosecutors under-inform defendants?)

This blogpost tries to explain that, even though the prosecutor has cited four possible underlying crimes, the case turns on proving the violation of a federal statute, the Federal Election Campaign Act.

Let’s start with the New York misdemeanor, before the allegation of another crime would upgrade it to a felony:

§ 175.05 Falsifying business records in the second degree.

A person is guilty of falsifying business records in the second degree when, with intent to defraud, he:
1. Makes or causes a false entry in the business records of an enterprise; or
2. Alters, erases, obliterates, deletes, removes or destroys a true entry in the business records of an enterprise; or
3. Omits to make a true entry in the business records of an enterprise in violation of a duty to do so which he knows to be imposed upon him by law or by the nature of his position; or
4. Prevents the making of a true entry or causes the omission thereof
in the business records of an enterprise.
Falsifying business records in the second degree is a class A misdemeanor.

If the false record with “intent to defraud” also included intent to commit or conceal another crime, then it becomes a felony:

§ 175.10 Falsifying business records in the first degree

A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.

Falsifying business records in the first degree is a class E felony.

The bottom line is that the only crime that could count for the concealed “other crime” in this case is a violation of the Federal Election Campaign Act, a complex federal crime. This state prosecution is really for prosecution for a federal crime shoehorned into a state business filing statute. Without the federal crime, there is no basis for the felony, and there is also no apparent basis even for the misdemeanor — because without the federal crime, what is the “intent to defraud”?

Here are the four alleged crimes that would be the basis for upgrading the misdemeanor to a felony:

1. the Federal Election Campaign Act (“FECA”), 52 U.S.C. § 30101 et seq.;
2. New York Election Law § 17-152;
3. and 4. New York Tax Law §§ 1801(a)(3) and 1802.

Let’s start with the two tax statutes. Notice that Bragg has dropped any references to taxes and instead calls it an “election interference” case. Judge Merchan has adopted the same framing as “unlawful election influence.” No independent tax charge has ever been filed. For over a year, tax experts have generally explained that Trump and Cohen likely overpaid their taxes precisely because they were covering up a business expense – and by treating it as “income” for service, rather than a business expense, it would have been taxed at a higher rate. No one thinks an overpayment of taxes constitutes tax fraud. Bragg has never shown evidence of underpayment. The question is why Trump and Cohen classified the exchange as income and then overpaid the taxes: It was to hide a federal election crime.

As for the state election law claim, it probably does not count at all for any federal election, and even if it did, it would rely on the federal crime and piggyback on it. Here’s the statute:

ELN § 17-152. Conspiracy to promote or prevent election

“Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.”

One big problem is the definitional section for this part of the NY Code for “public office.” Article 17 (Election Law) 17-100 defines “public officer” as holding state or local office, not federal office. I can’t find any court applying this statute to federal office.

Second, even if this statute applies to a federal campaign, the state election statute is still tethered to the federal violation as the only plausible basis for the “unlawful means” and conspiracy.

So this is state prosecution for a violation of the Federal Election Campaign Act. There are a series of problems with a state prosecutor trying this crime:

The Federal Election Campaign Act has a broad pre-emption clause: “The provisions of this act, and of rules prescribed under this act, supersede and pre-empt any provision of state law with respect to election to federal office.” New York State law confirms state “filing requirements and the expenditure, contribution and receipt limits” under state law “shall not apply” if there is a federal requirement and a federal filing (in other words, they don’t apply to federal elections).

This case also raises jurisdictional questions, as election law expert Rick Pildes has noted. Under 18 USC 3231, “The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.” The Manhattan DA is essentially trying to prove an intent to violate a federal crime, which seems close enough to giving New York trial court “original jurisdiction” over a FECA prosecution. The Manhattan DA must, in substance, prove a conspiracy or intent to violate a federal law. Federal prosecutors have never attempted to prosecute this case, let alone proven it. The Manhattan DA is alleging this federal crime for the first time.

This kind of prosecution has been allowed in state court when the underlying federal crime has already been established by a federal conviction. Perhaps it has been tolerated when the alleged underlying federal crime is simple, like possession of a gun with intent to commit a federal crime like a drug sale — though it would still seem problematic.

But in this case, reaching into federal jurisdiction is far more problematic. The alleged underlying crime is far more complicated, with gray areas relating to valid business expenses and a higher threshold for mens rea: actual knowledge of the law and specific intent to violate it. Michael Cohen’s guilty plea (for several unrelated crimes, and this crime on top) does not establish Trump’s guilt, because a lawyer is expected to know the law. It is much more difficult to prove a layperson had such specific knowledge and intent. There is good reason that the statute has such an explicit preemption clause against state conflicts, and there is good reason for the FEC to have control over which violations deserve civil process and fines vs. criminal prosecution. And notably, the DOJ under Biden decided not to reopen the case or assign a special counsel. The Biden administration deserves more credit for such wise discretion.

This case is an interjurisdictional use of 175.10 that appears to be an untested theory. Trump’s lawyers raised this questionable use across jurisdictions, and the Manhattan DA could cite no New York precedent reviewing this question and ruling in favor of this use.

Moreover, I can find no reported case from any state in which a state prosecutor has relied on FECA as a direct or indirect crime. This seems to be an unprecedented use of FECA in a state prosecution. Whether this reflects a formal pre-emption and jurisdiction problem or prosecutorial norms, it is a sign of overreach. Campaign finance disclosure errors or violations are common. President Barack Obama’s 2008 campaign missed filing deadlines for nearly 1,300 contributions totaling more than $1.8 million, and the FEC fined the campaign $375,000. Of course, Obama’s misfilings were not related to such a flagrant violation or such a scandalous backstory. Nevertheless, these filing cases are complicated and highly discretionary. There is a good reason for federal officials to enforce these rules, instead of local elected partisan prosecutors. And in this case, the DOJ over seven years declined to bring this case — after AG Barr was long gone, and to the credit of the Biden administration’s caution.

Furthermore, there seems to be no state precedent with such a broad interpretion of “intent to defraud” under 175.05 or 175.10, with the target of the fraud as the general public or “election fraud.” The Manhattan DA is correct that New York courts have allowed “intent to defraud” for non-pecuniary purposes, and they do not require proof that a defendant “acted with intent to defraud a particular person or business entity.” But there is no precedent supporting such a broad “election interference” theory, and a conviction may not survive a state appeal.

So how did a federal case wind up in state court, despite double preemption and jurisdictional questions? Again, the Biden DOJ declined to bring the federal case, and their restraint contradicts Trump’s rhetoric that Biden is the one engaging in election interference. But another reason is that Trump’s lawyers failed to follow the earlier game plan of going to federal court for injunctions and at least long delays. They put all of their eggs in the meritless basket of seeking to remove the trial to federal court, instead of seeking a federal injunction to stop the trial entirely. In the confused context of the removal case, Trump raised and lost the preemption argument, then declined to appeal, and inexplicably failed to raise this or other federal claims to enjoin the case.

Trump can’t win a case of a 6th Amendment claim of ineffective assistance of counsel for these errors. The claims are not strong enough, and the Sixth Amendment is not triggered by likely delays, but by clearer substantive merits. Still, there seems to be lots of ineffective and embarrassing lawyering on both sides.

Panel II: The Executive Power, Legislative Power, and the Administrative State

I started digging into “the Founders’ bookshelf” and 18th century English dictionaries to see if originalists’ assumptions and intutions about the words and phrases in the Constitution were correct. As I will explain, as I have been investigating the originalists’ arguments for the “unitary executive theory” and unchecked presidential powers as an interpretation of Article II. Most of the other pillars of the theory have been debunked (I am just one of many scholars showing that these historical claims are wrong and are based on repeatedly taking historical sources out of context). Unitary theorists have repeated the same errors trying to rescue the Decision of 1789 (see here) and indefeasibility (see here), but they now retreat to English royalist practice and a “British Backdrop” about implied “executive powers” and a default rule of removal at will.

That’s why English legal treatises and dictionaries matter. It’s an example of Heads I Win, Tails You Lose originalism (when is English administration a model? Or an anti-model? Apparently when it supports the desired originalist outcome). But even if we accept that English administration and royal practice are relevant, it turns out that English sources never list removal as a royal prerogative power (contrary to the originalists’ recent assertions!), and it also turns out that English sources almost never mention removal as a royal practice…

Almost never. Out of roughly 40 dictionaries and major treatises, I found a few exceptions, like Giles Jacob.

I put together a chart of these sources in this paper, now titled “Venality and Functionality A Strange Practical History of Selling Offices, Administrative Independence, and Limited Presidential Power.”

I’ve been presenting this research since February 2023. I posted this paper in July 2023 as “Freehold Offices vs. Despotic Despotism.” And I summarized it (and other scholars’ fact-checking the unitary theorists’ errors) in this amicus brief in SEC v. Jarkesy in Sept. 23 here.

But now some unitary executive scholarship has used my research to cherry-pick this isolated example of Giles Jacob, treating it as a representative example — contradicting my research findings that it was an outlier. They also take the passage out of its own limited context; and it turns out that Jacob’s citations to legal authorities for the full passage do not actually support the claim about removal power of “great officers.” (And it turns out that these articles quote Jacob initially without acknowledging at all that the passage came from my research and presentation; and then, after emails were sent and complaints were registered, a footnote mentions my name but no citation to the article that gives the broader context and that contradicts the claim of Jacob as representative.

This is why I have started calling Giles Jacob “Jacob the Outlier.”

(Fans of Robin Williams’s lesser known movies will get the reference?)

First, some background and appreciation of others’ work: John Mikhail and Julian Mortenson thoroughly canvassed these many sources to investigate the meanings of “emoluments” and “executive power.” I had the honor to work with Mikhail on a series of historical amicus briefs on the meaning of the emoluments clauses in litigation against President Trump. I have learned more than I can summarize here from Mortenson’s resourcefulness, methods, and tireless research. Their work was my entry point to the helpful but time-consuming work digging through dozens and dozens of old English legal sources. With co-authors Andrew Kent and Ethan Leib, we investigated “faithful execution,” and we found that this phrase reflected a long legal tradition of limiting discretion and imposing duties. Thus, many originalists had misinterpreted or exaggerated the Take Care clause as giving presidents incongruous amounts of unchecked power, given that the clause primarily imposed duties. Then I investigated the term “Vesting” by digging into almost 100 dictionaries from about 1600 to 1840 — which I could do during Covid because they were available on HeinOnline, Google Books, LEME, and the University of Toronto’s database on dictionaries.

Now here’s my amicus brief’s summary:

In my draft article Freehold Offices vs. “Despotic Displacement,” I canvassed the searchable “Founders’ Bookshelf,” (see below for references) the sources other scholars had identified as the Framers’ main sourceson English or European law, and I found nothing in those sources that identified removal as a royal “prerogative” power or even a general or default royal power. I then searched additional legal dictionaries and law reference books of the era, and I again found no references to royal removal powers—except for Giles Jacob. Jacob was an outlier, the sole exception I or any other researcher have found in the sources available to the Founders. Though his work was influential, it did not compare to Coke, Hale, the two Bacons, or Blackstone, none of which asserted such a proposition. Wurman removed all of that vital historical context and presented an exception as representative. Moreover, even Jacob the Outlier did not refer to this power as a royal prerogative, and even the power he posited was far narrower than the power claimed in this case, limited to only a subset of the cabinet. He said only that the king could remove “the great officers,” which was a term of art typically referring to nine particular officers. Even on the broadest reading, “great officers” referred only to a subset of cabinet-level officers, a far cry from the modern category of “principal officers” or the legions of administrative law judges in dispute in this case.

Fn. For “the Founders’ bookshelf,” see, e.g., David Lundberg &
Henry F. May, The Enlightened Reader in America, 28 Am. Q. 262
(1976); Julian Davis Mortenson, Article II Vests Executive Power,
Not the Royal Prerogative, 119 Colum. L. Rev. 1169 (2019); see also “Freehold Offices”.

Here’s more detail and follow-up in my paper “Venality and Functionality”:

Coke’s endorsement of non-removability is especially relevant to a unitary executive theorists’ mistaken reliance on another source (in addition to taking this source out of context). Beyond this list of “founders’ bookshelf” books, I also looked into over 30 English and American law dictionaries and law reference books of the era, from 1701 through Webster’s 1806 dictionary. Most have little detail on the royal prerogative. Of the few that do, I found only one recognition of a royal power of removal: in Giles Jacob’s Every Man His Own Lawyer, published in 1779, and which was also on many American bookshelves. As Jacob had written in this book and his earlier dictionaries:

The king is the fountain of honour, and has the sole power of confer[r]ing dignities and honourable titles; as to make dukes, earls, barons, knights of the garter, &c. And he names, creates, makes and removes the great officers of the government.[3]

Most importantly, Jacob was essentially the only source out of the thirty dictionaries in this study to suggest a royal removal power, even in this narrow extent for “great officers.” The only book on the “Founders’ bookshelf” to suggest a royal removal power (De Lolme) was even narrower in its description, not listing it among the royal prerogatives, and even narrower a power over “Generals, Ministers of State, or so,”[4] even more limited that Jacob’s reference to “great officers.”

Recall that the term “the great officers” was formally limited to a small number of traditional officers, some of whom had more a judicial or ceremonial role than an executive role (see discussion Section IV.A).[5] Given those problems, and for being the only one of thirty-or-so dictionaries to suggest any removal power, we might call him “Jacob the Outlier.”

Moreover, among the Jacob offered many citations to statutes and treatises to support his summary statements and definitions in Every Man His Own Lawyer and in his New-Law Dictionary editions, but conspicuously, Jacob’s single citation for this sentence in his various editions is Coke: “1 Coke Institutes 165.” This page and entire section did not support the removal claim or mention removal at all,[6] and thus, when evaluating Jacob’s reliability, it is notable that Coke elsewhere endorses offices-as-property. Jacob appears to offer no other support for his removal claim.

---

The bottom line is that if unitary executive theorists are relying on Giles Jacob, it tells you just how little evidence they actually have, and it shows an example of the all-too-common originalist method of cherry-picking and taking evidence out of context to achieve ideological ends.

The Colorado Supreme Court was clearly right to reverse the lower court’s silliest error: The President is obviously an “office” covered by the 14th Amendment’s disqualification clause.
But let’s tap the brakes on all this premature celebration. I wish I could say that it would make a difference, but it’s more likely to backfire, like the Manhattan DA indictment backfired (Trump’s polling spiked immediately, and notice how Bragg has been eager to delay his weak case as long as possible).

The Supreme Court is likely to reverse Colorado, and it will probably be right – at least on prudential grounds. The history and facts are not clear enough to warrant such a late intervention. If the evidence of Trump participating in an “insurrection” (rising to the level of the 14th Amendment’s text and context) were clear, case should have been brought much earlier.

To be clear, Alan Rozenshtein and I have argued here that Trump’s “overt acts” conduct – on top of his Jan 6 speech – could constitute criminal incitement and obstruction, distinguishable from protected First Amendment speech. But we also acknowledged these problems are challenging, and the meaning of “insurrection” circa 1860s is especially difficult and contested by serious scholars.

In part because the facts, the history, and the precedents were unclear, the plaintiffs had to wait, and then waited too long, when the party nomination process would be over by the time appeals would be heard, much less decided. It’s like a “Purcell principle,” (don’t change districting or voting rules too close to an election), as applied to candidates’ disqualifications if the challengers waited too long and their delay created the timing problem.

Trump is a dire threat to democracy, but this case isn’t so great for democracy, either. Sorry.

Are you joining your anti-Zionist kids or your Zionist parents for Thanksgiving and worrying about a tough conversation? I have plan for you: talk about non-binaries! Sure, talk about gender (or sex) to distract from Israel/Gaza. But then draw the same logic to Zionism/Anti-Zionism and a third way: Post-Zionism.

My main goal as I’ve been identifying as a Post-Zionist and writing to revive Post-Zionism is to find a middle ground. I had thought of it as a middle ground for pro-peace Americans (Jews and non-Jews) and also for Israeli Jews, Israeli non-Jews, and Palestinians. But now I see it as a middle ground for pro-democracy/pro-peace Zionist parents (or grandparents) and a generation of skeptical teens and 20-somethings who are anti-Zionist-curious. We might call them JVP+ (Jewish Voices for Peace Plus)

Kids these days are questioning gender binaries and other false dichotomies, and that’s been helpful and beneficial. But somehow, we’ve all been stuck in the Zionism/Anti-Zionism binary. I’ve talked to my 40-something and 50-something Left Zionist friends about Post-Zionism, and I’ve posted some of their representative reactions. Their general theme is: “Don’t surrender Zionism to the anti-Zionists. Zionism is legitimate and needs to be defended as such.”

That may be true for the Zionism that we grew up with, from 1948 through Oslo. But our children have not grown up in that era. The only Israel they have known is Bibi Netanyahu’s Likud pro-settler expansionist era, and that is their frame of reference for modern Zionism.

The Zionism we grew up with was Israel-as-underdog and then Israel-of-Oslo. Our narrative is that Israel took the biggest risks for peace and found no partner (“Ein Partneyr”).

That isn’t what Zionism means anymore — not in modern practice, anyway. If you ask a new generation that has known only Bibi’s Israel and Likudnik Zionism to choose between Zionism and anti-Zionism, and only these two options, I’ve seen many of them on my campuses or in my family recoil and either opt out or opt for anti-Zionism.

And I get it.

My Gen-X middle aged friends say “Zionism is a big tent. There’s room for Peace Zionists and Democracy Zionists.”

Yes, and it is also such a big tent that it includes Netanyahu and Smotrich and Ben-Gvir and worse, the West Bank settlers engaging in violence and racist murders like the Pogram burning down Huwara last year.

I oppose the use of the term “genocide” to describe Israel’s response since Oct. 7, but my defense is a lot harder after Netanyahu’s invocation of “Amalek” and biblical genocide (see 1 Samuel 15:2-3). Now imagine our online kids having to grapple with that.

We need to understand why the Zionist/Anti-Zionist binary is backfiring. Zionism as a Jewish state meant one thing in 1897 and in 1948 and in 1993. But since 2000, “a Jewish state” has been associated with settler expansionism, ethno-nationalism, and racist violence. We need an alternative framing that moves forward with a message of pluralism, dialogue, democracy and peace.

I’ve said that Zionism is to Israel as the Founding Era is to America. Let it live robustly as a legitimate historical founding vision, but not tainted or de-legitimized by Netanyahu and his coalition with Jewish fascists.

Post-Zionism is more truly pro-democracy and pro-equality than Zionism is, circa 2023. It doesn’t mean a one-state solution. It means being more open to the compromises necessary for rebuilding Israeli pluralistic civic society and for peace, whenever that becomes realistic over the long-term.

Post-Zionism may not sound as appealing as a kind of retreat from our romantic Zionism, the nostalgic Zionism of the 1940s and 1990s. But if Post-Zionism might be more amenable to our kids if they would only keep an open mind, maybe we should show open-mindedness ourselves.

Peace never happens when we expect the other side to take the first step. I’m suggesting that we parents might take a big step towards dialogue this Thanksgiving by putting Post -Zionism on the table, along with the Turkey and tofurkey.

Ezra Klein describes better than I can this generational divide over lived experience. Here is a long introduction from Ezra Klein’s podcast (which I generally recommend and especially for its Israel/Gaza coverage), before a powerful conversation with Rabbi Sharon Brous:

Everything I’m about to talk about is hard to talk about. It is hard to talk about because it’s personal to me. It’s hard to talk about because it’s happening in the midst of an active hellacious war. And it’s hard to talk about because even when there is not a war, this is just hard to talk about.

Maybe I’ll start here. I think something we’re seeing in the politics in America around Israel right now, I think it reflects three generations with very different lived experiences of what Israel is. You have older Americans, say, Joe Biden, who saw Israel as the haven for the Jews and who also saw Israel when it was weak and small, when it really could have been wiped off the map by its neighbors.

They have a lived sense of Israel’s impossibility and its vulnerability and the dangers of the neighborhood in which it is in. Their views of Israel formed around the Israel of the Six-Day War in 1967, when its neighbors massed to try and strangle Israel when it was young, or the Yom Kippur War in 1973, when they surprise attacked Israel 50 years ago.

Then there is the next generation, my generation, I think. And I think of us as this straddle generation. We only ever knew a strong Israel, an Israel that was undoubtedly the strongest country in the region, a nuclear Israel, an Israel backed by America’s unwavering military and political support. That wasn’t always true, at least not to the extent now. In his great book, “The Much Too Promised Land,” Aaron David Miller points out that before the Yom Kippur War in 1973, Israel ranked 24th in foreign aid from the US, 24th.

Within a few years of that war, it ranked first, as it typically has since.

We also knew an Israel that was an occupying force, a country that could and did impose its will on Palestinians, and I don’t want to be euphemistic about this, an Israel in which Palestinians were an oppressed class, where their lives and their security and their freedom were worth less. But we also knew an Israel that had a strong peace movement, where the moral horror of that occupation was widely recognized. We knew an Israel where the leaders were trying imperfectly, but seriously and continuously, to become something better, to become something different, to become in the eyes of the world what Israel was in its own eyes, a Jewish state, but a humane and moral one.

And then, as Yossi Klein Halevi described on the show recently, that peace movement collapsed. The why of this is no mystery. The Second Intifada, the endless suicide bombings were a trauma Israel still has not recovered from. And they posed a horrible question, to which the left, both in Israel and in America, had no real answer then or now. If your story of all this is simplistic, if it is just that Israel wanted this, it is wrong.

But what happened then is Israel moved right and further right and further right. Extremists once on the margin of Israeli politics and society became cabinet ministers and coalition members. The settlers in the West Bank ran wild, functionally annexing more and more territory, sometimes violently, territory that was meant to be returned to Palestinians, and doing so with the backing of the Israeli state, doing so in a way that made a two-state solution look less and less possible.

Israel withdrew from Gaza, and when Hamas took control, they blockaded Gaza, leaving Gazans to misery, to poverty. Israel stopped trying to become something other than an occupier nation. It became deeply illiberal. It settled into a strategy of security through subjugation. And many in its government openly desired expansion through expulsion. And so now you have this generation, the one coming of age now, the one that has only known this Israel, Netanyahu’s Israel, Ben-Gvir’s Israel.

…There is this Pew survey in 2022 that I find really telling. It found that 69 percent of Americans over age 65 had a favorable view of Israel, but among Americans between ages 18 and 29, young Americans, 56 percent had an unfavorable view. As it happens, American politics right now is dominated by people over 65, but it won’t be forever.

If we care about Israel and America’s crucial support for it over the long haul, we need to take this generational divide seriously. Post -Zionism can be that bridge to a new generation here and in the Middle East.

B’shalom, happy Thanksgiving.

Hypocri-sizing is the term I’m using for studying the opposition’s arguments to expose its inconsistencies and hypocrisies. It can be an important exercise, but by over-hypocris-izing, or by claiming to find an inconsistency where there isn’t one, one can actually reveal one’s own bias and hypocrisy, and also a lack of both factual understanding and emotional understanding, a lack of empathy.

And it’s all too easy to see the other side engaging in hypocri-sizing when, now that I reflect a bit, I’ve been doing it myself.

One of my former teachers, a very good and open-minded teacher and a Jewish anti-Zionist, has been writing a lot about Israel/Palestine for years. I’m not an anti-Zionist (I’ve been trying to revive post-Zionism as a third way and a way forward towards two-state peace), yet I have often found his commentary insightful, an important voice on the left when many people had been speaking out less and less about Netanyahu’s government. He was a Jewish voice of conscience.

A new paper providing more detail for my panel presentation on Nov. 11, 2023 at the Federalist Society National Lawyers Convention on “Originalism on the Ground, Originalism in Practice.”

Link here.

See also “Vibe Originalism,” Hat-tip to Christine Kexel Chabot and Strict Scrutiny.

And see “Chutzpah Originalism & Hubris Originalism,” and “Control-F Originalism” (going to the proverbial cocktail party of historical sources and Ctrl-F’ing your friends…

To be clear, the “f” stands for “find.”

And more to come on “Feint-Hearted Originalism: History is easy if you’re just making it up!”

I appreciated the thoughtful engagement (and mostly push-back) to my post “An Invitation to Revive the Term ‘Post-Zionism'” last week. (TL;dr? “The term ‘post-Zionist’ means that, whether or not one thinks the state of Israel should exist, it does exist, and that debate is less important than how it should exist: Like a modern democratic state, more than a Jewish state.” And with 20% to 40% disenfranchisement with respect to the sovereign that governs the land, Israel is not a democracy by any modern sense of the term.)

While I stand by my invitation, I wanted to share, first, the thoughtful counterarguments against “post-Zionism,” or representative opposition to it. And then I’ll share some other perspectives – including some more positive ones. I received permission to name some of the responses, and I’ll share other responses anonymously here. I will respond in a follow-up post (Preview below).

There should be a German word for “holding two horrible truths, and living in existential dread of those deeply and internally polarizing truths, so that there is no comfort in taking any side, only double-revulsion, isolation, and guilt…

GeteilteDoppelAngst?

(Divided double-dread?)

See the news today:

“Far-right Israeli minister says nuking Gaza an option”

This Forward column was published presciently on OCTOBER 6:

“Smotrich’s Ultra-Nationalism Further Divides Israel”

Smotrich — on camera — on the the Arab village Hawara last year: “Because I think the village of Huwara needs to be wiped out. I think the State of Israel should do it.” Israeli settlers engaged in what one IDF commander admitted was a “pogrom.”