CNN legal analyst Jeffrey Toobin (left) and (right) Boston University law professor Jed Shugerman clash in April 25, 2024 CNN segment on Trump hush-money case (CNN/screengrab)
A law professor appearing on a CNN panel Thursday made that case that Manhattan DA Alvin Bragg (D) has engaged in an “abuse of prosecutorial power” by bringing the 2016 election-focused hush-money prosecution against former President Donald Trump, sparking a clash with legal analyst Jeffrey Toobin.
Boston University law professor Jed Shugerman, who has consistently pilloried Bragg’s case as an “overreach,” in recent days wrote that the case has gone from “legal embarrassment” to “historic mistake.” Shugerman reiterated his position Thursday on Anderson Cooper’s show that the DA’s Trump case is a historic “abuse of prosecutorial power.”
Law professor Jed Shugerman explains why he thinks District Attorney Bragg’s case against Donald Trump in the criminal hush money trial is a “historic mistake.” pic.twitter.com/DLdAnuBsSh
— Anderson Cooper 360° (@AC360) April 26, 2024
“One big picture problem as a historic mistake is that those of us who have been dreading the return of Donald Trump to office and misusing power, we’ve been talking about the rule of law for years. And what the rule of law means is there are rules, and some of those rules include precedents. You have to follow those rules if you expect the other side to follow those rules,” Shugerman began, before saying, “now is the time to make sure prosecutors are not abusing their power and to make sure that we are following the rule of law.”
Cooper interjected, “And do you think prosecutors are abusing their power?”
The law professor answered in the affirmative: “Yes, I think this case is an abuse of prosecutorial power.”
Shugerman said there are “three ways this case is either unprecedented or it’s based on untested novel theories or applications.”
“The first is that there has never been a state prosecution — I’ve searched for all the state cases that refer to the Federal Election Campaign Act, which is the core of the case, that is the underlying crime that’s at the basis of the Manhattan DA[‘s case],” he said. “The Manhattan DA is trying Trump for a federal violation shoehorned into state statutes.”
More Law&Crime coverage: Judge in hush money case excoriates Trump over ‘audibly muttering’ and ‘gesturing’ at juror over Facebook ‘dance party’ video celebrating the 2020 election
“A state prosecutor has never tried this before, right, because the Federal Election Campaign Act, either by law or norm or lack of state expertise, is for federal,” the law professor added.
The second problem, Shugerman continued, was Bragg’s use of state falsification of business records hinging on a federal violation to “upgrade” the charges to felonies for “concealing another crime,” for instance the hush-money payment to porn star Stormy Daniels weeks before the 2016 election to prevent a scandal from harming the candidate’s campaign chances.
“Trump’s lawyers argued that this particular statute, using a state violation — state business recording, misrecording — to upgrade it for the concealing of another crime, it has to be within New York jurisdiction. There are a lot of good reasons why that might be,” Shugerman continued. “The Manhattan DA’s response, they couldn’t cite a single precedent of a judge validating that use, means that’s an untested use.”
The third issue the law professor identified in the case surrounds the state’s broad application of “intent to defraud, which is a key element to this case.”
“It’s never been used this broadly. It’s never been used as an intent to defraud the general public, never used as election interference, whatever that means legally,” Shugerman said. “If it’s unprecedented, it means it’s being used for Trump and Trump only, except it could be used by the other side now. That’s the problem.”
It was at this point that Jeffrey Toobin shot back that Trump’s alleged conduct — “a novel crime” — is what’s “unprecedented.”
“Filing false business records is routinely prosecuted in the New York State courts,” Toobin said. “What’s unusual here is the false business records were used to cover up a campaign violation. That doesn’t happen very often. I’ve never heard of it done before. Isn’t that the issue, not the fact that this was some novel use by the prosecutors? It was a novel crime.”
Shugerman replied that Bragg campaigned for office on holding Trump accountable, calling it a “remarkable coincidence,” in light of that, that Bragg “stretched each of these three things for the first time.”
The law professor once predicted that the Manhattan DA’s Office, then headed by Cy Vance (D), ran afoul of double jeopardy by trying to bring state charges against Trump’s eventually federally pardoned former campaign chairman Paul Manafort. The state case against Manafort went on to be dismissed due to the double jeopardy concerns Shugerman highlighted.
Manafort was represented by Todd Blanche, one of Trump’s attorneys in the hush-money case and beyond.
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