Author: Jed Shugerman

Fordham Constitutional History Workshop

Saul Cornell and Jed Shugerman

Wednesdays, 2 to 3:50 PM, Fordham Law School (Lincoln Center), Room 4-06.

Jan. 29: Workshop: Jed Shugerman and Ethan Leib, “Faithful Execution, Fiduciary Constitutionalism, and Good Cause Removal” (paper related to Selia v. CFPB, to be argued March 3, 2020)

Feb. 5: Workshop: Julie Suk, CUNY Graduate Center, chapter “We working women, because we are mothers”:  Legacies of the 19^th Amendment” from forthcoming book, We the Women: The Forgotten Mothers of the Equal Rights Amendment.

Feb. 12: Workshop: Keith Whittington, Princeton (Politics Dept), Constitutional Crises, Real and Imagined (selections from forthcoming book)

Feb. 19: Selections from Gerald Leonard & Saul Cornell, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders’ Constitution, 1780s–1830s (2019)

Feb. 26: Workshop: Kunal Parker, U. of Miami Law, “Common Law Modernism: The Turn to Process in American Legal Thought, 1900 – 1970,” chapter from book manuscript on the idea of process in American legal, political, and economic thought (1900 – 1970)

March 4: Workshop: Jonathan Gienapp, Stanford History, selections from The Second Creation: Fixing the American Constitution in the Founding Era (2018)

March 11: Workshop: Felicia Kornbluh, University of Vermont, ‘Reproductive Rights and Justice Beyond Roe v. Wade: The View from 800 West End Ave’

March 25: Workshop: Nicholas Parrillo, Yale Law School, “Federal Tax Administration in the Early Republic.”

April 15: Workshop:  Joanne Freeman, Yale History, selections from The Field of Blood: Violence in Congress and the Road to Civil War (2018)

The People v. Giuliani et al on federal bribery/state extortion conspiracy (and other crimes) would be justified on its own for deterrence and the rule of law.

But it is also a way to get to the bottom of Giuliani’s and Trump’s conspiracy with subpoenas of Bolton, Pompeo, Pence, Barr, Mulvaney and others.  Here is my intro, and here is a link to my Slate piece:

As the Senate votes this week on whether to subpoena witnesses like Bolton, it should understand that its vote is not the final say. For one, the House could still subpoena or begin impeachment inquiries into many of the officials at the center of the Ukraine scandal. Another intriguing possibility for immediate criminal liability turns not on Attorney General William Barr’s Department of Justice but on New York conspiracy and extortion law. If Senate Republicans vote against witnesses or otherwise create a sham trial, then New York state prosecutors have the jurisdiction and the duty to investigate—and potentially indict—Giuliani and others for extortion conspiracy, and to subpoena his possible co-conspirators inside and outside the administration.

A state trial of Giuliani and any associates involved in a Ukraine bribery plot would serve the interests of justice and deterrence, especially given recent evidence raising new questions about the possible stalking and intimidation of Yovanovitch, and given Giuliani flagrantly continuing the same scheme. Such charges would also open an alternative legal process for pursuing subpoenas of key witnesses and documents that the Senate Republicans have been blocking thus far.

Can New York prosecutors like Manhattan District Attorney Cy Vance pursue criminal charges? Under New York’s statute on criminal conspiracy jurisdiction, when two or more people agree in New York to engage in criminal conduct in another jurisdiction, it is punishable as conspiracy if that conduct is criminal in both New York and the other jurisdiction. Thus, there would be three steps to such a prosecution: First, was the conduct criminal in the other jurisdiction, in this case, possibly D.C. (or perhaps Connecticut)? Second, was it criminal in New York state? Third, was the conspiracy advanced in New York state?

The bottom line is that a state criminal prosecution of Giuliani and his team could be based solidly on a combination of federal felonies (bribery and campaign finance, and perhaps stalking), state felonies (extortion), and conspiracy law, plus perhaps a combination of stalking crimes.

I contributed to this Vox round-up of “legal experts” on the bribery charges in the House report. Six out of seven of us “legal experts” agree Trump’s conduct was bribery. And the seventh, Keith Whittington, offered some wise reasons to be more caution, but still finds it “an abuse of power.” I explain why the House Dems wisely didn’t cite a bribery felony in the articles, but then did in its report. (On the day the call summary was released, I explained here why the call itself — “I would like you to do us a favor though.” — made a probable case of bribery.)

The House Judiciary presents a solid case that Trump’s conduct constituted bribery. I would add this observation: Many people were puzzled by why the first article of impeachment was titled “Abuse of Power,” and not “Bribery,” did not cite the federal bribery statute, and did not allege bribery explicitly, even as the article deliberately laid out each element of federal bribery. I’ll offer my explanation why this was wise as a matter of constitutional law and governance.

The committee report spends six pages (p. 120-126) going step by step through the bribery statute: an exchange of a “thing of value” for “an official act” for “corrupt” purposes. As the “thing of value,” The report wisely highlights that Trump was seeking merely “announcement” of an investigation into the Bidens, because it shows Trump was not sincerely interested in a real investigation, and an announcement would usually be counterproductive for starting a background investigation under the radar, to prevent tipping off witnesses to start coordinating their stories.

A mere announcement benefited Trump’s campaign, and that’s one piece of evidence among many of “corrupt” intent. And the report offers a thorough explanation for why the arms and an official White House visit are official acts. The report rebuts the Trump defenders’ argument that an official White House visit is not an “official act” under Supreme Court precedent.

So why not spell out this felony in the article of impeachment? The House Judiciary Committee was making a crucial point now and as a clear precedent for future federal officials: high crimes and misdemeanors do not require a statutory felony. They are more fundamentally about the officer’s abuse of power. This argument notably can cut the other way. If a president cheated on his or her taxes many years before taking office, that would be a felony but probably not a “high crime or misdemeanor” in these terms of “abuse of power.” He or she may have used his office to cover up these crimes, but that abuse would be the impeachment trigger, not the past crime.

The report quotes the conclusion from our historical study (with Andrew Kent and Ethan Leib) of “faithful execution”: The Constitution’s “faithful” language imposes a duty on Presidents “to exercise their power only when it is motivated in the public interest rather than in their private self-interest.” There are many ways for presidents to self-deal and betray the public interest without committing a felony. The Judiciary Committee wisely made this point in the articles and in its reports, while also bolstering its case with a thorough explanation of several felonies including bribery, too.

Racism played a significant role in Japanese imperialism, authoritarianism, and the build-up to World War II.

My new piece in Slate:

…Barr warned, a “wrong-headed and atavistic” focus on legislative and judicial oversight has “smothered” the president’s traditional and proper authority. It is telling—and perhaps most significant—that Barr was particularly worried about subpoenas and oversight…

…When Barr argues for a maximalist, unaccountable unitary executive, he is not simply articulating a matter of theory or principle—he is defending himself from an investigation into his own work, especially his direct involvement in the Ukraine bribery-and-extortion plot.

In the July 25 call records with President Volodymyr Zelensky, Trump mentioned Barr five times, usually in tandem with Rudy Giuliani, as a key player in the president’s apparent bribery and extortion conspiracy. One particularly chilling passage: “Well, [Ambassador Marie Yovanovitch is] going to go through some things. I will have Mr. Giuliani give you a call and I am also going to have Attorney General Barr call and we will get to the bottom of it.”

Barr’s own potential criminal jeopardy deepens with each day of new testimony. The criticisms of his handling of the Mueller report—that the attorney general was acting as the president’s personal lawyer—were prelude, and mild compared to the allegations now. The powers and protections he claims for Trump, in the name of skewed history and partisan analysis, are the powers and protections he needs to justify his own actions.

To attack the speech as a speech is to grant Barr the terms he would prefer. Barr’s words and theories are intellectually dishonest and inappropriate for any federal official, but the problem isn’t merely that his political self-expression is disagreeable. It’s that his remarks are the defensive tactics of an unindicted co-conspirator desperate for attention and clinging to power.

And so, as a politician in a political struggle, he sought to rally a gathering of his allies around their shared partisan mythology, or victimology. He is a criminal suspect, Trump’s fixer and enforcer, cloaking himself as both savior and martyr. Even though he probably sincerely believes in this Manichean culture war, he seems to have chosen the time, place, and vituperative manner to provoke an attack from “the Resistance” and “secularists” on his religio-political ideas. He is not only trying to distract. He also setting a trap to shift the debate from his alleged criminal involvement to his culture war terms.

But this trap can be flipped against him by emphasizing the speech’s legal content: His extreme-executive attack on congressional subpoenas clearly lines up with his conflict of interest as a likely criminal subject of those investigations…

More here.

Additional evidence of Barr’s involvement in the Whistleblower report here and here.