Cass Sunstein

The 2016 presidential campaign showcased the worst of Facebook. Remember the headline “Pope Francis shocks world, endorses Donald Trump for president”? That story had nearly 1 million Facebook impressions by Election Day, prompting the pope to call such fake news a “sin” and a “sickness.”...A new Facebook decision, though, could play havoc with the 2020 election. Facebook executive Nick Clegg announced that the company’s 30,000 contracted content moderators are no longer fact-checking political ads, which he said amounted to censorship. Moderators will block “previously debunked content” — but fresh lies will be allowed. As Harvard law professor Cass Sunstein noted, having the company stay out of fact-checking will make it less likely to face claims of political bias for keeping certain allegations off its platform.

Cass Sunstein, Harvard Law School professor and the author of Impeachment: A Citizen's Guide (Penguin Books, 2019), and Henry Greenberg, president of the New York State Bar Association and partner at Greenberg Traurig, LLP, discuss the legal issues surrounding impeachment.

An article by Cass Sunstein: The White House’s fierce response to the impeachment inquiry by the House of Representatives, calling the enterprise “an unconstitutional effort” and a violation of “constitutionally mandated due process,” seems to make one commitment: noncooperation. The key sentence in the eight-page letter, signed by White House counsel Pat A. Cipollone, is this: “Given that your inquiry lacks any legitimate constitutional foundation, any pretense of fairness, or even the most elementary due process protections, the Executive Branch cannot be expected to participate in it.”

An article by Cass Sunstein: All over the world, truth is in trouble. What are we going to do about that? Unfortunately, Facebook’s new policy on political advertisements is a step in the wrong direction. 1 By exempting “politicians” from its third-party fact-checking program, designed to reduce the spread of lies and falsehoods in ads, the company is essentially throwing up its hands. With some urgency, it should be seeking new ways to reduce the risk that lies and falsehoods will undermine the democratic process.

Legal experts have dismissed claims that President Donald Trump will be permitted to run for a third term if he is impeached by the House but the Senate fails to confirm it, branding them "categorically false." ... Indeed, there appears to be an information gap generated by the announcement of the impeachment inquiry, given there are so few examples to draw from, explained professor at Harvard Law School Cass Sunstein, the author of Impeachment: A Citizen's Guide and a former Administrator of the White House Office of Information and Regulatory Affairs in the Obama administration. "If a person is indicted by a prosecutor it's not a trivial matter, even if there is no conviction, and you can see impeachment as similar to an indictment," Sunstein told Newsweek. "It is a real mark on a human being and even more impeachment is a real mark on a president. There have only been two indictments in our history and they have both had a huge impact on what that person could do while president and also on their historical standing."

An op-ed by Cass Sunstein: President Donald Trump is not reluctant to accuse people of treason. On Sunday, Trump targeted Representative Adam Schiff, chair of the House Intelligence Committee, proclaiming on Twitter that he wanted the California Democrat “questioned at the highest level for Fraud & Treason.” On Monday, he elaborated, musing that a “fake and terrible statement” by Schiff might just be grounds for his “Arrest for Treason? Trump’s tweets are often over-the-top. But these were particularly heinous because they are inconsistent with a key provision of the U.S. Constitution, and call up the very concerns that motivated its drafting. Treason is the only crime specifically defined in the U.S. Constitution: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

MSNBC’s Richard Lui outlines the process for impeaching a sitting U.S. President, and discusses the current impeachment inquiry into President Trump with Cass Sunstein, a Harvard University Law Professor and author of the book “Impeachment: A Citizen’s Guide,” Krishna Patel, a former assistant U.S. attorney, and Katie Phang, an MSNBC legal contributor. Sunstein provides background on what types of actions qualify as “impeachable offenses,” while Patel and Phang give their thoughts on what will happen next in regards to the impeachment inquiry. Phang also noted that while Senate Majority Leader, Mitch McConnell, could theoretically decide to go against a House impeachment vote and elect not hold a trial, that would be highly unlikely, as the optics would be very poor.

An op-ed by Cass Sunstein: Soon the House of Representatives will have to decide what, if any, alleged misconduct by President Donald Trump should go into formal articles of impeachment. Some of those decisions will be hard. But here’s an easy one: Under the Constitution, the House should not consider any actions, however terrible, that Trump took before he became president. (There’s one exception; we’ll get to it in due course.) This principle has bite. For example, it would exclude Trump’s alleged involvement in his lawyer’s hush-money payments to cover up sexual encounters with the porn star Stormy Daniels and the Playboy model Karen McDougal. It would also exclude misconduct by Trump’s businesses before 2017.

Legal scholars who have studied impeachment say it was not intended as a means to remove a president who commits any crime or loses the support of other politicians. Rather, it was designed for removing from office a chief executive who grossly misuses his authority to benefit himself and sacrifices the public good. ...Harvard Law professor Cass Sunstein, who like Gerhardt, wrote a book on impeachment, stressed that the Constitution sets a high standard for impeachable offenses. If the president was shown to be a shoplifter or accused of disorderly conduct or even cheats on his taxes, those alone would not be grounds for impeachment, Sunstein said. “The idea of ‘high crimes and misdemeanors’ is not a political term. It was understood as a legal term which came with a history,” he said. ... Many scholars have tried to define those terms. In their book “To End a Presidency: The Power of Impeachment,” Harvard Law professor Laurence Tribe and Washington lawyer Joshua Matz wrote last year that “impeachable offenses involve corruption, betrayal or an abuse of power that subverts core tenets of the U.S. governmental system. They require proof of intentional, evil deeds that risk grave injury to the nation.”

Cass Sunstein, professor at Harvard Law and author of 'Impeachment: A Citizen's Guide', explains what the process would look like for President Trump.

At 10 a.m. the Senate HELP Committee will vote on Eugene Scalia’s nomination to lead the Labor Department. Scalia, who has been a partner at the international law firm Gibson, Dunn & Crutcher and also previously served as chief legal officer for the Labor Department during the George W. Bush administration, is expected to win the panel’s approval. Republicans hold a 12-11 majority on the HELP committee...Scalia’s nomination won the backing of Cass Sunstein, a Harvard law professor who oversaw the White House Office of Information and Regulatory Affairs during Barack Obama’s first term. “I am aware that in some domains, Scalia has taken positions, in terms of policy and law, in opposition to regulations that many reasonable people strongly support … ” Sunstein wrote in an August letter supporting the nomination. “For Scalia, as for many lawyers, it is easy to take comments or positions out of context, and to give a less-than-favorable picture of what he really thinks, or what he would do in a position of public trust.” He added that Scalia “does not have an ideological straightjacket. He takes issues on their merits.”

An op-ed by Cass Sunstein: In April 1910, former president Theodore Roosevelt spoke before a large audience in Paris. “The poorest way to face life,” he said, “is with a sneer.” These days, too many Democrats are sneering — not only at President Donald Trump, but also at one another. From the left, many progressives are describing former Vice President Joe Biden as out of touch, old, too conservative, maybe even a bit racist. From the center, many Democrats are describing Senator Elizabeth Warren as unelectable, unlikable, unrealistic, disconnected from the values and beliefs of ordinary Americans. That’s a shame for many reasons, but one in particular is that it threatens to put Democrats in a position akin to that of Trump-era Republicans. A recurring question, mostly faced by Republicans in the age of Trump, is whether to work for a party nominee or an elected official with whom they have intense disagreements. Over the last two years, many Republicans have declined to join the Trump administration, others have been criticized for doing so, and some have been, and now are, torn about whether to resign.

An op-ed by Cass Sunstein: There are a lot of misconceptions about impeachment. Incompetence isn’t impeachable. It’s terrible for a president to violate the oath of office, but doing so is not, by itself, an impeachable offense. Even posing a danger to the American people isn’t a legitimate basis for impeachment. Under the Constitution, what is necessary is a “high crime or misdemeanor,” meaning an egregious abuse of presidential authority. Some crimes would not count; consider shoplifting or disorderly conduct. An action that is not criminal might be impeachable; consider a six-month vacation, an effort to jail political enemies or an abuse of the pardon power (by, for example, pardoning associates who have engaged in criminal activity at the president’s behest). If you want to understand what counts as impeachable, read the Declaration of Independence. The Constitution’s impeachment provisions were written against the background set by the Declaration. Read against that background, one thing becomes blindingly obvious: If the president has clearly committed an impeachable offense, the House of Representatives is not entitled to look the other way.

All things have a price – and if not, economists will find one. Researchers have calculated the going rate for thoughts and prayers offered in hard times. Rather than settling on one price for all, the study found the value of a compassionate gesture depended overwhelmingly on a person’s beliefs. While Christian participants were willing to part with money to receive thoughts and prayers from others, the idea made nonbelievers baulk. Instead of shelling out to receive the gestures, on average they were willing to pay to avoid them. ... The Harvard law professor Cass Sunstein, who was the administrator of the Office of Information and Regulatory Affairs under Barack Obama, called the study “a strong and powerful paper”.

An article by Cass Susntein: What is the role of chance in human life? If a book tops the bestseller list, if a new product takes over the market, or if people suddenly want to stem immigration, might it all be some kind of accident? Over a decade ago, a celebrated paper by sociologists Matthew Salganik, Peter Dodds and Duncan Watts tried to answer such questions. They asked: When a song turns out to be a spectacular success, is it because it’s really great, or is it just because the right number of people, at an early stage, were seen to like it?

An op-ed by Cass Sunstein: One of the unloveliest ideas in economics goes by the name “value of a statistical life” — VSL for short. In the U.S. government, the current value of a human life is about $10 million. That means that if a highway safety regulation would save 10 lives, it is worth $100 million — a figure that must be weighed against the regulation’s cost.  Because the government’s decisions often depend on the outcome of cost-benefit analysis, the VSL is important. It helps determine whether and when people will be protected from dirty air, dangerous workplaces, unsafe drinking water and unhealthy food. A lot of people rebel against the idea of assigning a monetary value to a human life. In a provocative new book, the New York Times editorial writer Binyamin Appelbaum associates that idea with an assortment of others that he abhors, and through which economists have (in his view) contributed to rise of intolerable inequality.

An article by Samantha Power:  Flying back to the United States from Asia on Air Force One in late November 2012, President Barack Obama was in high spirits. He had recently been reelected, and had just concluded a widely celebrated visit to Myanmar (also known as Burma)—the first ever  by a sitting U.S. president. The trip had almost fallen apart at the last minute, when it became clear that the military government was balking at reforms that were supposed to have been in place by the time Obama arrived. A few days before he departed Washington for Asia, the president dispatched me to Myanmar with instructions to lock down our desired terms before he landed, and over three bruising days of negotiations, I did so. The final agreement included a large release of political prisoners, a commitment to allow access for humanitarian workers to war-torn ethnic areas, and permission for critics of the Burmese dictatorship to return from exile or, if living in Myanmar, to travel outside the country. During the 20-hour journey back to Washington, Obama summoned me to his personal cabin on Air Force One and asked me what job I hoped for in his second term. My husband, Cass Sunstein, had just left the White House after three and a half years as the administrator of the Office of Information and Regulatory Affairs. He was now commuting between our home in Washington and a small rental apartment near Harvard Law School, where he had resumed teaching. I did not want to leave government, but after serving as Obama’s multilateral-affairs and human-rights adviser on the National Security Council since January 2009, I was ready to try something new.

An article by Cass Sunstein:  Here is a puzzle about some of the Donald Trump administration’s most prominent deregulatory efforts: The very companies that are supposed to benefit from those efforts do not welcome them. In some cases, they strenuously oppose them. How can that be? There are several answers.

An article by Cass Sunstein:  Can a new regulation be something to celebrate? If it stands to save lives, absolutely. Here’s one that does: the Food and Drug Administration’s new proposalrequiring warnings, including graphic images, on cigarette packages and in cigarette advertisements. The regulation, now out for a 60-day comment period, also appears to fix the problems that hobbled previous attempts to mandate graphic cigarette warnings.

An op-ed by Cass Sunstein: Can a new regulation be something to celebrate? If it stands to save lives, absolutely. Here’s one that does: the Food and Drug Administration’s new proposalrequiring warnings, including graphic images, on cigarette packages and in cigarette advertisements. The regulation, now out for a 60-day comment period, also appears to fix the problems that hobbled previous attempts to mandate graphic cigarette warnings. It’s been 10 years since Congress first directed the FDA to require graphic warnings, and that job was supposed to be done by mid-2011. The FDA duly aimed to meet the deadline, proposing labels that were indeed graphic. (As administrator of the Office of Information and Regulatory Affairs at the time, I helped oversee that process.) But the tobacco companies convinced a federal court that, by compelling speech, the FDA’s regulation violated their First Amendment rights.