Exclusive: Liberal Law Professor, Jed Shugerman, Who Twice Backed Trump’s Impeachment, Rises to President’s Defense in Stormy Daniels Case

The newest champion in the effort to overturn President Trump’s 34 hush money convictions is a shocking one — Professor Jed Shugerman of Boston University, long an implacable foe of the 47th president who has twice supported his impeachment. Mr. Shugerman possesses impeccable credentials that make him a stalwart of the Northeastern legal elite. He holds three degrees from Yale — including from Yale Law — and writes that he “debunks the unitary executive theory,” a central pillar of conservative constitutionalism. Mr. Shugerman notes with pride that his “historical research was cited in both impeachments” of Mr. Trump and that he supported both criminal cases brought against the president by Special Counsel Jack Smith. All the more stunning, then, that Mr. Shugerman now argues, in an amicus brief filed on Thursday, that the convictions secured by Manhattan’s district attorney, Alvin Bragg, ought to be overturned. The charges stem from payments totalling some $130,000 that Mr. Trump made to the adult film performer Stormy Daniels, whose real name is Stephanie Clifford. Mr. Trump was convicted by a Manhattan jury, and is appealing the case in state and federal court. Mr. Shugerman’s counsel, Steven Rosato — he is petitioning for his client to be allowed onto the case’s docket — writes that “Even if there had been criminal activity in this case, Professor Shugerman firmly believes that this was a case for federal enforcement alone. It is a dangerous precedent for local prosecutors to disregard the law and overreach into federal politics.”Professor Jed Shugerman. Via Boston University School of LawThe Sun spoke to Mr. Shugerman, who notes that the problems with Mr. Bragg’s case “were always there” but that the “district attorney took the problems and made them glaring.” He calls the convictions of Mr. Trump “an example of a Pyrrhic victory” and declares that the “sooner this case gets overturned the better.” He calls the convictions a “terrible precedent” and hopes that a reversal on appeal can yield a “deescalation” of lawfare on all sides. Mr. Shugerman argues that Mr. Bragg’s state criminal case against Mr. Trump trespassed on the prerogatives of federal law. While Mr. Trump was charged with falsification of business records — a state misdemeanor — those convictions can transform into felonies if they are transacted in the service of a second crime. That second crime was state election interference. As far back as opening statements he called the case “an embarrassment, in terms of prosecutorial ethics and apparent selectivity.”Mr. Shugerman writes that “the alleged federal election violation was at the core” of Mr. Bragg’s case because the case “against President Donald J. Trump was based upon a provision of State law with respect to election to Federal Office, from the start and especially at the finish.” He argues that federal law preempts the state criminal case brought by Mr. Bragg against Mr. Trump, who was running for the highest federal office in the land. If, as Mr. Shugerman argues, “Congress intended to preempt enforcement of state laws and regulations in the conduct of campaigns for election to federal office,” then Mr. Bragg’s reliance on New York’s election law to elevate the charges into felonies was itself unlawful. The professor writes that Mr. Bragg’s “precise theory, including whether it depended on a violation of New York election law, remained opaque until the reading of the jury instructions” by Judge Juan Merchan. The jury retained flexibility in determining what constituted a conspiracy in the commission of the second crime, and Mr. Trump is challenging that on appeal as a violation of his due process rights in light of Supreme Court precedent that mandates that criminal convictions require unanimity as to every element. Mr. Shugerman writes, though, that “On the last day” of the trial, “the state election law suddenly became the only ‘other crime,’ the sole avenue to reach the felony conviction.”The Second United States Appeals Circuit appears to share Mr. Shugerman’s concern with the nature of Mr. Bragg’s case. In December it ordered a federal trial court judge, Alvin Hellerstein, 92, to reconsider whether the whole case ought to be heard in a federal forum. Judge Hellerstein has twice ruled that it belongs in state court. The Second Circuit, though, urged him to address “whether changes in the State’s theory of prosecution might restore Trump’s purported federal defense” based on preemption.That is Mr. Shugerman’s contention — that the “case that ultimately went to the jury had a fundamental … preemption problem,” in that it trespassed on federal terrain. That would violate constitutional bedrock. The Supremacy Clause ordains that federal law, along with the Constitution itself and ratified treaties, “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding.”Courts have read that provision to mean that when federal law and state law conflict, federal law triumphs. Here, laws around federal election financing and their provisions “supersede and preempt any provision of state law with respect to election to federal office.” Mr. Shugerman writes that “the jury instructions show beyond a shadow of a doubt that the keystone of the prosecution’s case” was an encroachment on federal law. Mr. Shugerman reckons that “this fundamental defect alone requires reversal of the conviction.” The “defect,” in his telling, is so woven into the warp and woof of how the case was presented to the jury that even the misdemeanor charges against Mr. Trump — the business falsification predicates — require dismissal as well. Messrs. Bragg and Trump, in a stipulation first reported by the Sun, have agreed to a two month delay in briefing with respect to Mr. Trump’s appeal in state court. That could suggest that both sides are hedging against the possibility that the case is removed to federal court, either by order of Judge Hellerstein or the Second Circuit.

Exclusive: Liberal Law Professor, Jed Shugerman, Who Twice Backed Trump’s Impeachment, Rises to President’s Defense in Stormy Daniels Case

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