I propose that, when there is a legal matter that at first seems promising but ultimately turns out to be insignificant, #LawTwitter should not call it a “nothingburger.”
Let’s call it a “warrenburger.”
Problem for the Trump Indictment: Is There Any Precedent for an Internal Business Record? (Plus Preemption Problems!)
Here is the indictment. Here is the statement of facts. The Manhattan DA’s charges are based on New York’s false filing law, NYPL 175.10, but remarkably enough, we still don’t know that the underlying “other” crime is. Tax fraud? (Hard to prove a fraud and a loss if Trump paid Cohen to pay the tax liability). A campaign violation? (A federal campaign case is very likely preempted by federal law, and state laws confirms federal preemption — meaning it is not in state jurisdiction.) More below on the seemingly unprecedented use of this criminal statute and “intent to defraud” based on an entirely internal business record that others likely will never see.
[UPDATE: What a mess today. An embarrassment to the rule of law. Maybe a political disaster, if it plays out in favor of Trump. And unfortunately it might. Now that Manhattan DA Alvin Bragg has clarified in a press conference that the underlying crime is a campaign violation, I’ll address the massive preemption problem briefly with links to my tweets here (with text of FECA preemption clause), here (on the state law confirming fed preemption), and here (on Teper v. Miller, no preemption if the state law is tangential — and I think it’s a very hard case to say that a state can turn a federal filing rule into a state filing crime), and later in a follow-up post. Bottom line 1: Even if I’m wrong on the preemption merits, this case is headed to SCOTUS on federal preemption, just like Trump v. Vance, based on 28 USC 2283, Section 1983, and FECA. Bottom line 2: NY state law confirms that this is likely federal jurisdiction, not state jurisdiction. If there are federalism doubts, this NY state law will allow the conservatives to say “NY state agrees that they don’t have jurisdiction on federal campaign filing matters.” The Manhattan DA will likely lose in federal court on this entire case if it is based on a federal campaign, and rightly so: We also don’t want red state prosecutors using state law to prosecute federal campaign laws].
But before we address on a potential tax interpretation or federal preemption of any campaign violation, there is already a problem in the case that we actually know: Can an internal business record be the basis for an “intent to defraud” under NYPL 175.10, if it is unlikely any third party would “rely” on it in a way identifiable as part of fraud? Is there a New York precedent answering that it can be? So far, legal experts vocally arguing for this 175.10 case have not answered this question…
Here is the NYPL 175.10 “Falsifying Business Records” charge:
“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 indictment does not reveal what the “other crime” was. By itself, that’s a stunning silence from the Manhattan DA. But back to what we do know: the requirements of NYPL 175.10, the kind of “false record” and “intent to defraud.”
Yes, the statute mentioned a “business record” broadly, but it may be hard to show an “intent to defraud,” i.e., intent to defraud other people, if the business record is a purely internal record that others are highly unlikely to see or rely upon.
For over a week, several of us have been publicly asking this question to several legal experts and professors arguing for this kind of indictment for an internal business record: “Has there been a conviction for a false business record that was internally held, and not for use or reliance by third parties, even if it was required by state law to be kept as a record?”
Here’s another version of this question, which NBC News’s Laura Jarrett asked these experts on March 28: “Interested if you find any cases where the false records are *purely* internal – i.e., never viewed by a third party like tax agency/insurer, much less public.”
Seemingly in response to our questions, Ryan Goodman points to his co-written piece in Just Security from Monday, April 4. In the introduction, they cited statutes requiring these records, but that’s not the same thing as a case applying NYPL 175.05 or 175.10 and “intent to defraud” to such an internal document. He also posted a thread of “true experts,” but it also had no cases cited, just prosecutors saying this was a practice.
The bottom line: After a week of asking, I don’t see an answer to this question: No cases cited upholding an NYPL 175 conviction based on an internal business record (i.e., a record that others are not likely to rely on).
Here’s the essay, and below, I go through each of the cases that were analyzed in the essay for the question of “intent to defraud”: “The Broad Scope of “Intent to Defraud” in the New York Crime of Falsifying Business Records”
Here are each of the cases analyzed in this Just Security post, and here is a summary or quotation from the case or the essay about the kind of document that was the basis for the false filing:
People v. Kase, 1980: Kase’s filed instrument was an application to transfer a liquor license in connection with the sale of a tavern. 76 A.D.2d 532 (N.Y. App. Div. 1980)
Sosa-Campana, 167 A.D.3d 464 (N.Y. App. Div. 2018): “When defendant was stopped for a traffic violation and presented a fraudulent driver’s license in the name of another actual person.”
Morganthau v. Khalil is cited, but it was a different posture: it was one charge among many as the basis of a civil forfeiture, a forfeiture that seems to be valid on the basis of the entire scheme – the other charges seem to be a sufficient basis. There is no argument and analysis about this question.
73 A.D.3d 509 (N.Y. App. Div. 2010). Summary of the underlying case:
“Defendant, conspiring or acting in concert with two other individuals, engaged in an illegal check cashing scheme and circumvented federal and state banking laws by structuring numerous check cashing transactions and falsifying business records to make it appear that the checks were cashed in several different locations when they were in fact all cashed in a single location that was owned and operated by defendant’s alleged co-conspirators.
People v. Reyes: 69 A.D.3d 537, 538–539, 894 N.Y.S.2d 43, 44–45 (N.Y. App. Div., 1st Dept. 2010).
“At the time of the alleged rape, defendant’s [prison guard] assignment was to remain in a glass-enclosed control room overlooking two housing units. The falsifying business records counts were based on defendant’s false logbook entry that at the time in question he was helping to escort inmates to the mess hall.”
This logbook appears fundamentally different from an internal private business record, as it would be used as an official record in reliance as part of prison security.
People v. Coe, 131 Misc.2d 807, 812, 501 N.Y.S.2d 997 (N.Y. Sup. Ct. 1986). Like Reyes, here is a similar official hospital record, used in reliance for health care treatment: “A nurse was charged with falsifying business records by omitting information in her nursing notes recording mistreatment which preceded the death of her patient.”
People v. Ramirez: “The 1990 Fourth Department case of People v. Ramirez, for example, also approved the trial court’s jury direction on this definition of “intent to defraud.” The defendant allegedly used false information to apply for credit cards to purchase store merchandise.”
People v Elliassen: “In the 2008 decision, the Richmond County Supreme Court (within the Second Department) held that the intent to defraud required no pecuniary loss, and that interference with the legitimate public administration of the NYPD sufficed.” This is not the same statute, and it was not a filing, but a failure to file “the juvenile log report or the UF 250 stop and frisk report relating to their interaction with Rayshawn Moreno.”
People v. Headley: “The indictment alleges that defendant and the co-defendant Jacqueline Jackson fraudulently obtained paid assignments from the New York City Transit Authority (hereinafter “NYCTA”) to procure independent medical examinations of plaintiffs who had sued the NYCTA. Defendant is charged with obtaining the NYCTA vendor assignments for his company by using a fictitious name.” 37 Misc. 3d 815, 951 N.Y.S.2d 317 (N.Y. Sup. Ct., Kings County 2012).
People v. Schrag: this single decision in this case is unclear and very brief, but it seemed to turn on the duty, at p. 520: “A review of the Grand Jury minutes has convinced this Court that sufficient evidence was presented to the Grand Jury to show that the nature of defendant’s position as a police officer imposed such a duty upon him.” 147 Misc.2d 517, 520 (June 8, 1990).
People v. Norman, 6 Misc. 3d 1035(A), 800 N.Y.S.2d 353 (N.Y. Sup. Ct., Kings County 2004), “the Supreme Court of Kings County held that a defendant causing false information to be entered by a campaign committee and [submitted to] the Board of elections was sufficient to satisfy intent for falsifying business records.” In People v. Keller, “Defendants who ran an escort service did not intend to defraud a credit card company by falsely billing clients for “limousine service” instead of escort services on charge slips.” 176 Misc. 2d 466, 673 N.Y.S.2d 563 (N.Y. Sup. Ct. 1998).
Constitutional Crisis Hotline, Ep. 13: “Re-Constructing Civil Liberties”
What is the future of constitutional rights protections and equal citizenship in our constitutional democracy? Is substantive due process over after Dobbs, or can we reconstruct it?
“Re-Constructing Civil Liberties,” link here.
We talk with Jim Fleming (Boston University School of Law, JD/PhD) about his recent book, “Constructing Basic Liberties: A Defense of Substantive Due Process” (2022), in conversation with Ken Kersch (Boston College, Political Science, JD/PhD), an expert on conservative political and legal thought, and working on a new book “The Right Rights: The Conservative Encounter with Civil Rights and Civil Liberties, 1954-1980.”
Constitutional Crisis Hotline, Episode 12: The Equal Rights Amendment
Episode 12: Stayin’ Alive: The 1970s Equal Rights Amendment Returns to Congress.
Is the Equal Rights Amendment (ERA) dead or alive? The Senate Judiciary Committee held a hearing at the end of February to consider a resolution that would recognize some state ratifications of the ERA that were completed decades after Congress’s deadline. Originally proposed in 1923 and adopted by Congress in 1972, the ERA would add a sex equality guarantee to the U.S. Constitution. Does Congress have constitutional power to remove the ratification deadline? What should it do about the states that tried to rescind their ratifications? And what difference does the Supreme Court’s decision in Dobbs make to the future of women’s constitutional rights?
Kathleen Sullivan testified at the Senate Judiciary Committee hearing on the ERA on February 28, 2023, in addition to the House Judiciary Subcommittee hearing on the same subject in 2019. Sullivan is the former dean and professor of law at Stanford Law School, and currently senior counsel at Quinn Emanuel. She is the co-author of a leading constitutional law textbook and dozens of law review articles including, most relevant to this episode, “Constitutional Constancy: Why Congress Should Cure Itself of Amendment Fever” (1996) and “Constitutionalizing Women’s Equality” (2022).
Jesse Wegman authored an op-ed in the New York Times,, “Why Can’t We Make Women’s Equality the Law of the Land?” (2022). Wegman is a member of the New York Times editorial board, and teaches courses at NYU School of Law. He has written on a range of legal and political issues for the New York Times. He is the author of a 2020 book, Let the People Pick the President: The Case for Abolishing the Electoral College.
“Emergency” Podcast Episode 11: The Biden Student Debt Oral Arguments and Emergency Powers
A breaking-news emergencies Constitutional Crisis Hotline podcast with Julie Suk (Apple link here) right after the oral arguments in the Biden Student Debt cases: Nebraska v. Biden and Dept of Education vs. Brown, joined by:
Liza Goitein, senior director of the Brennan Center for Justice’s Liberty & National Security Program, and a nationally expert on presidential emergency powers. She wrote immediately after the Biden plan was announced for the Washington Post: “Biden Using Emergency Powers for Student Debt Relief? That’s a Slippery Slope,” linked here.
And Nestor Davidson, Albert A. Walsh Chair in Real Estate, Land Use, and Property Law; Faculty Director, Urban Law Center.
Jed explains his amicus brief (and essay proposing an “Emergency Question Doctrine” to limit the Major Question Doctrine), which Justice Kavanaugh mentioned in oral argument, linked here.
I think our bottom line is that SG Elizabeth Prelogar was so outstanding on standing, she may have snatched victory from the jaws of defeat, especially on MOHELA and Missouri, the best case for the plaintiffs. But we agree that, other than Justice Barrett, the other conservatives seemed only mildly concerned by these murky facts. So it looks like five or six Justices get to the merits and if they do, it is clear they would strike down the program — but standing is still far from clear, and maybe Prelogar persuaded Barrett enough for Barrett to pull another conservative with her?
Podcast Episode 10: Presidential Power and Anniversary of Russian Invasion of Ukraine
A conversation about presidential power over war and foreign policy coincides with the one-year anniversary of Russia’s invasion of Ukraine, Feb. 24th. A veteran of four administrations’ foreign policy teams, Yale Law professor Harold Koh, and Fordham Law colleagues Martin Flaherty and Tom Lee connect both topics: the Russian invasion, the history of presidential power, and the overlapping questions of national security and the risks to democracy from the outside – and from within the Oval Office. Link here to Apple Podcasts.
Harold Koh is a visiting professor at Fordham this spring, and Sterling Professor of International Law and former Dean at Yale Law School. He has served under four US presidents: in the Reagan DOJ, the Clinton State Department, the Obama State Department, and recently as Senior Advisor to the Biden State Department. He is author of the book “The National Security Constitution,” and discusses his update to the book, “The 21st Century National Security Constitution” (forthcoming 2023).
Tom Lee is Leitner Family Professor of International Law at Fordham. Tom has a forthcoming book, “Justifying War,” and he also has extensive experience in the U.S. military in intelligence and in the Defense Department as special counsel.
Marty Flaherty is Leitner Family Professor of Law and Founding Co-Director of the Leitner Center for International Law and Justice at Fordham Law School. He is the author of the Restoring the Global Judiciary: Why the Supreme Court Should Rule in Foreign Affairs, and he is also a leading expert on the history of the presidency, especially at the Founding.
https://podcasts.apple.com/us/podcast/constitutional-crisis-hotline/id1650259840?i=1000600483209
The Indecisions of 1789: Appendices on the Misuse of Historical Sources in Unitary Executive Theory
SSRN link here.
I suggest a name for a common unreliable, error-prone, often misleading originalist method:
“Ctrl-F Originalism”
Control-F is the search function. Just search for the word you hope to find, then copy-and-paste the passage without sufficient context. For constitutional law these days, that passes for “historical evidence.”
These appendices tracking the use and misuse of sources by the unitary executive theory are for “The Indecisions of 1789: Strategic Ambiguity and Inconstant Originalism,” U. PA. L. REV. (forthcoming March 2023), and they also serve as references for “Why Article II Did Not Include Removal.”
Contents:
Appendix A: Misuses in “New Light on the Decision of 1789” (2006)
*Misused Sources on Events May-June 1789
*Misused Sources on Events July-Sept. 1789
Appendix B: New Errors in “Removal Revisited” (forthcoming Harvard Law Review 2023) (Submitted manuscript, spring 2022)
Appendix C: Repeated Errors from 2006 in “Removal Revisited” (2022)
Appendix D: Misuses in Other Publications (Imperial from the Beginning)
Tables on First Congress by Votes and Interpretations
My amicus brief in the Biden Student Debt Cases: An “Emergency Question” Doctrine to replace MQD 3.0
Last week, with the outstanding help of Brian Pandya of Duane Morris, cc’ed here, I filed an amicus brief in the two Biden Student Debt cases scheduled for argument Feb. 28 (Biden v. Nebraska and Brown v. Department of Education).
I support broad student debt waivers and long-term reform. However, in a constitutional democracy, these reforms must be done the right way, either by legislation directly or by past statutes that delegated this broad power to the executive branch. The Biden administration clearly used the Covid emergency as a pretext to circumvent procedural requirements and to create a program far broader than the Covid explanation, when causation was required under the statute; and then, knowing that the program was likely to lose if challenged by plaintiffs in the courts, they excluded or reduced benefits from the program to 2 million Americans. And yet the Department of Education still failed to dodge their standing problem, as demonstrated these two sets of plaintiffs (the states and the private plaintiffs who were denied
The three main arguments of the brief are:
1. Broad interpretation of standing is important for the rule of law. The Biden administration’s sudden self-serving argument for “immediacy” of injuries, extracted from a Scalia footnote from three decades ago, is a dangerous change from the established rule of “fairly traceable.” It is inconsistent with precedent, and inconsistent with the indirect-causation standing rules that allowed progressives to challenge the worst policies of the Trump era (the Muslim Ban, the rescinding of DACA, the citizenship question on the census, the Emoluments Clause litigation, among others).
2. The abuse of emergency powers is dangerous, and even if one supports this policy, it must follow the rule of law, and not set a precedent for worse abuses of emergency powers.
3. Balancing the Imperial Executive with the Imperial Judiciary with a more modest “emergency question” doctrine:
The new version of the “major question doctrine” (the new “clear statement”) is the wrong approach to emergency powers and to judicial aggrandizement generally. Congress has to use broad and unclear delegations to give the executive branch appropriate flexibility to respond to emergencies, and a clear statement rule would undermine the federal government’s ability to rely on existing statutes or to rely on new statutes that have to remain open-ended. I suggest an alternative that balances the problem of the Imperial Executive with the problem of the Imperial Judiciary.
This is what I call the “emergency questions” doctrine, continuing the more established common sense parts of the “major question” doctrine:
A. purposivism over narrow texualism;
B. no Chevron deference to the executive branch.
C. It replaces the extreme “clear statement” rule (which I call the MQD 3.0) with a focus on the means-ends fit as a check against pretextual and overbroad uses.
The amicus brief is here:
I tried to warn the Biden administration of these problems early on, when there was still time to fix them, in this essay in the Atlantic, Sept. 4th, 2022:
I’m extending this Emergency Question Doctrine framework as part of a legal academic essay, linked here in a very prelimiary draft.
Beau Baumann has a generous and fair critique here:
“Should we all be mad at Jed Shugerman?”
I think his answer is “no, even if he is being hopelessly naive, and he is standing up on principle when those principles have some deeply flawed assumptions and obvious slippery slopes towards judicial aggrandizement.” And he’s probably right.
As I note here, his “rosebud” critique of my naive nostalgia is spot on, and quite on the nose with my cinematic tastes. Citizen Kane is one of my favorite movies of all time, and its theme is the tragedy of nostalgia.
Covert Juries and Overt Acts: Podcast update on the Trump criminal investigations
New Constitutional Crisis Hotline podcast with co-host Julie Suk, link here.
Trump’s interference in the 2020 Election and the January 6 insurrection were big reasons we started this podcast. In this episode, we get some updates on those investigations and ask some questions about some of the progress and the legal and political problems ahead. Helping us understand the covert jury reports, we talk to Anthony Michael Kreis, professor at Georgia State College of Law. Helping us understand the January 6 investigation and the importance of “overt acts,” we talk to Alan Rozenshtein, law professor at the University of Minnesota (co-host of Lawfare’s Rational Security podcast and co-author with Jed on a new article, “January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution.”)
Link to “January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution” here.
Roe’s 50th Anniversary: Podcast with Linda Greenhouse & Reva Siegel
This week is the 50th anniversary of Roe v. Wade.
Julie Suk and I offer a special episode of the Constitutional Crisis Hotline podcast:
Linda Greenhouse & Reva Siegel (Yale Law) discuss the road to Roe, its backlash, its legacy, & the myth of incrementalism.
Surprising fact: In 1972, just months before Roe, polling showed that a majority of Catholics supported a legal right to abortion.
For the story of a stunning political shift and a way forward, listen here:
https://podcasts.apple.com/us/podcast/constitutional-crisis-hotline/id1650259840?i=1000595909195
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