Charles Fried

The pressure campaign started months ago. Outside the US Supreme Court in April, a billboard truck with a black-and-white image of 82-year-old Justice Stephen G. Breyer circled the grounds, neon green letters blaring, “Breyer, retire.” ...“His code words are common sense, decency, democracy,” said Charles Fried, a professor of law at Harvard who served as US solicitor general under Ronald Reagan and has known Breyer since he was a law student. “He is a very practical person. If you look at some of his writings, he is very interested in what the practical effect of what his decisions will be.” ... “He has never been the leader of what people would regard as the liberal flank,” said Laurence Tribe, a longtime Harvard law professor and close friend. Still, “he has been a consistent and rather predicable liberal on matters of racial equality.”

As recently as 10 years ago, Jeannie Suk Gersen was still telling people that the area of law she specialized in—sexual assault and domestic violence—didn’t hold much interest for the general public. A quiet corner of the profession, she thought. Remembering that now, she laughs. “But, you know,” she adds, “every area of law does end up moving into focus. Because, in the end, law is really about every aspect of our lives.” Which is partly why Gersen, J.D. ’02, has always taken it so seriously. “Words don’t just describe things,” she explains. In the law, “words actually do things.” ... “Jeannie is intellectually fearless,” says Bemis professor of international law Jonathan Zittrain. That’s a common sentiment among her colleagues... “There are a lot of people who are afraid to say things in our business,” says Learned Hand professor of law Jack Goldsmith, “and she’s not afraid to say what she thinks.” ... “Her whole response to Title IX has been very, very striking—and I think completely correct,” says Beneficial professor of law Charles Fried, who was Gersen’s teacher before he was her colleague ... Says her former teacher, Loeb University Professor emeritus Laurence Tribe, “I was always impressed by how both meticulous and yet unconventional her insights were. She would often come at issues in a kind of perpendicular way. Rather than finding a point between A and B, she would say that maybe that axis is the wrong axis.” ... “She has one of those amazing brains,” says Williams professor of law I. Glenn Cohen, who worked on the Harvard Law Review with Gersen. “She was a year ahead of me in law school, and we all regarded her more like a faculty member, even back then. She just seemed to know everything.”

Taking aim at a key plank of the former president’s impeachment defense, the lawyers argued that the constitutional protections do not apply to an impeachment proceeding...Signed by Charles Fried, Martha Minow, Gerald Neuman, and Laurence Tribe.

An op-ed by Trevor Potter and Charles Fried: The 2020 presidential election has been a disaster for people who think the Electoral College is still a good idea. Joe Biden’s clear victory has been followed by attempts by the incumbent president to induce Republican legislators and other elected Republican officials in five states he lost to ignore the certified vote counts in their states and substitute their partisan preferences for the voters’ decision. Now Congress will formally receive the electoral votes, after a series of attempts to subvert the democratic process, all made possible by the Electoral College. An early salvo was a suit filed in the U.S. Supreme Court by the State of Texas and supported by 126 Republican House membersand 18 Republican attorneys general asking the court to throw out the electors chosen by those same five states because Texas said it did not like the way they conducted their elections. Representative Louie Gohmert of Texas filed suit asking the courts to declare that Vice President Mike Pence has the legal right to pick the next president himself under the 12th Amendment — by ignoring the electoral votes for Mr. Biden cast by those five states. Instead, the Gohmert suit asks Mr. Pence to replace them with “votes” cast by the losing Trump elector slates in those states.

A letter to the editor by Charles Fried: Re “‘I Was Stunned’: Small Colleges Receive Big Donations” (news article, Dec. 17): I sit on the board of the Campaign Legal Center, a (relatively) small nonpartisan organization that works hard to “advance democracy through law.” Last summer we received an unsolicited and unexpected large gift from MacKenzie Scott, the former wife of Jeff Bezos, the founder of Amazon, accompanied by a request that we not return to her for more in the future. Your account about her surprise generosity to a great and obviously thoughtfully researched variety of relatively obscure historically minority colleges and universities that struggle to serve richly deserving segments of the population is an inspiring account of the union of heart and brain. We are all better for learning of it. Charles Fried, Cambridge, Mass. The writer is a law professor at Harvard.

An op-ed by Charles Fried: Partisan rulings in election cases by federal judges who were appointed by Republicans in the Fifth Circuit, Eighth Circuit, and Eleventh Circuit, with the notable exception of the striking decision by Judge Stephanos Bibas in the Third Circuit, have raised the fear that the ideal of judicial independence and legitimacy of the federal courts are in peril. Most threatening, of course, was the hurried confirmation of Supreme Court Justice Amy Coney Barrett, so she could be in place to rule on any election cases. That has led to some suggestions that the administration of Joe Biden should consider adding justices to recreate the “ideological balance” on the bench, in a move reminiscent of the notorious proposal by Franklin Roosevelt to pack the Supreme Court with justices. In addition to three justices, President Trump has succeeded with over 200 judges in the lower federal courts. Countervailing expansion of the federal courts of appeals would not raise similar alarms. Federal appeals courts usually work in panels of three judges. So if this less dramatic but perhaps more effective move were made, how should it be done? If the ideal of judicial independence is to be preserved rather than eroded, it must not be done in the partisan fashion of the last four years.

President Trump’s defiant rhetoric and unprecedented refusal to accept his election defeat have Democrats and the American public feeling increasingly rattled, but there is little reason to believe his actions will change the results, legal and political experts said Tuesday. ... “If it succeeded, it would be a coup,” said Charles Fried, a Harvard Law professor and former US solicitor general in the Reagan administration. “There’s no indication it will succeed, or that anybody expects it to succeed.”

An op-ed by Charles Fried: Joe Biden got it exactly right in expressing an ambivalent openness to pushing for legislation — entirely constitutional — enlarging the number of Supreme Court justices, if Democrats win the presidency and the Senate in November. Such a move would make blazingly clear what some of us hope is not quite true: that the court is a partisan political institution, a conception that would invite further rounds of enlargement in a different political moment. But to paraphrase Churchill, such a maneuver is a bad idea, except for all the alternatives. Here the alternatives boil down to just one: a predictable, reactionary majority on the Supreme Court for perhaps as long as another generation. I write reactionary, not conservative, because true conservative judges like John Marshall Harlan II are incrementalists, not averse to change, respectful of precedent and unlikely to come into the grips of radical fantasies like eliminating or remaking the modern regulatory-administrative state. But with the seemingly inevitable rise of Amy Coney Barrett to the court, this impending six- person majority is poised to take a constitutional wrecking ball to generations of Supreme Court doctrine — and not just in matters of reproductive choice. Just look at the record. In the 2018 Janus labor law case, Justice Samuel Alito took the first long step to undoing years of legislation that allowed majority unions to compel not membership, but payment of dues — an arrangement first found constitutional by the Supreme Court in 1977. And his decision was based on constitutional grounds — protecting First Amendment freedoms — so a legislative remedy is no longer possible.

President Trump on Tuesday called on William P. Barr, the attorney general, to take action before Election Day against his Democratic opponent, former Vice President Joseph R. Biden Jr., over his son’s foreign work, an extraordinary attempt to pressure the government’s chief law enforcement to help him politically. The president made the remark during an interview with “Fox + Friends,” after days of caustic criticism of Mr. Biden, the moderators of the presidential debates, the news media and, increasingly, Mr. Barr. He recently said the attorney general would go down in history “as a very sad, sad situation” if he did not indict Democrats like Mr. Biden and former President Barack Obama...Critics have accused Mr. Barr on a number of occasions of intervening on issues to help Mr. Trump politically. But for the president to publicly call on him to take action against a political opponent was remarkable, especially two weeks before a presidential election. On Monday, Mr. Trump repeatedly called Mr. Biden “a criminal.” “He is sounding desperate,” said Charles Fried, a Harvard Law professor who was solicitor general in the Reagan administration. “He’s been urging the attorney general in several ways to investigate his political opponents and to somehow validate his preposterous charges of criminality.” “And even as loyal a henchman as Barr seems to have been able to draw the line somewhere — and it’s driving Trump crazy,” added Mr. Fried.

This summer, shortly after scores of camo-wearing, heavily armed federal agents descended on Portland, Ore., to attack protesters, Charles Fried, Ronald Reagan’s solicitor general, pondered the implications of what he was seeing on the streets. What he saw scared him; he remembered the use of paramilitaries by fascist leaders in 1930s Europe, where he was born, and he feared he was now witnessing a slide into paramilitarism in the United States. (His family fled the Nazi occupation of Czechoslovakia.) Fried felt that President Trump was using the Department of Homeland Security and other government agencies in a way that was “very menacing. You might as well put brown shirts on them. It’s a very bad thing.”A Harvard Law School professor who still counts himself as a Republican and a board member of groups such as the Campaign Legal Center, Checks and Balances, and Republicans for the Rule of Law, Fried has grown increasingly worried in recent months about Trump’s willingness to stir chaos and violence as an electoral strategy in the run-up to November’s vote and about the willingness of his attorney general, William Barr, to burn the country’s democratic institutions to the ground to preserve this administration’s hold on power. Like earlier authoritarians, Trump could, Fried fears, utilize “agents provocateurs, getting right-wing people to infiltrate left-oriented and by-and-large peaceful demonstrations to turn them violent to thereby justify intervention.” Fried, a student of history who chooses his words carefully, has concluded that Trump and his team are “certainly racist, contemptuous of ordinary democratic and constitutional norms, and they believe their cause, their interests, are really the interests of the nation and therefore anything that keeps them in power is in the national interest. Does that make you a fascist? It kind of looks that way, doesn’t it?” Michael Steele, a former chair of the Republican National Committee, has come to share Fried’s conviction that Trump is a threat to the Republic, although Steele believes the Trump cult is more about naked political opportunism than any grand fascist ideology.

An article by Charles Fried and Edward J. Larson: Many observers breathed a sigh of relief when Bill Barr was confirmed as attorney general. Here was a respected professional who had served in the post once before in an honorable administration. Now, just a year and a half later, what a disappointment he has proved. The man cannot be trusted. Think of the intentionally misleading account he gave of the Mueller report, at a time when the public and Congress had only Barr’s word to go by. Or the brief he allowed his Justice Department to file with the Supreme Court in the case about including a citizenship question on the 2020 census, whose rationale the Court later characterized as “contrived” and “pretextual.” Or his false account of the use of armed forces to clear Lafayette Square for the president’s photo op. Or his statement that U.S. Attorney Geoffrey Berman asked to step down, when Berman had done no such thing. And now we have damning testimony this week about the politicization of the Department of Justice in the prosecution of the Trump ally Roger Stone. The attorney general is entitled to his opinion on the policies underlying these matters, and to argue forcefully for them. But as a lawyer, as a high official, as an officer of the court, he must not misrepresent the facts or the authorities. Americans need not agree with the attorney general’s arguments or conclusions, but they must have absolute confidence that he will not try to deceive them.

A cross-ideological group of U.S. Supreme Court practitioners and former clerks on Thursday called for U.S. Attorney General William Barr to be held accountable for what they called the Trump administration’s “immoral” and “undemocratic” use of force against protesters in Lafayette Square on the evening of June 8. “A line was crossed last week. And we, as lawyers, must speak out to defend it,” the group wrote in a statement posted on Medium. The statement was signed by more than 100 attorneys, including 39 former Supreme Court clerks and 20 alums of the Justice Department’s office of solicitor general. Among them were Sidley Austin partner Carter Phillips, Mayer Brown partner Andrew Frey, Orrick Herrington + Sutcliffe partners E. Joshua Rosenkranz and Kelsi Corkran, Ropes & Gray partner Douglas Hallward-Driemeier, Hogan Lovells partner Catherine Stetson, and Harvard Law School’s Charles Fried. The statement also was signed by a number of former U.S. Justice department lawyers and constitutional law scholars. The statement followed one posted Wednesday, also critical of the Justice Department, from more than 1,260 former Justice Department lawyers across presidential administrations. “Last Monday, the Attorney General violated his oath by overseeing violence against peaceful protesters exercising their First Amendment rights. Those actions are irreconcilable with the unbiased administration of justice and the rule of law,” the new statement from the Supreme Court practitioners, former clerks and constitutional law scholars said.

While discussing whether he or the nation's governors have the power to lift restrictions states put in place to fight the spread of the coronavirus, President Donald Trump declared at a news briefing Monday, "When somebody’s president of the United States, the authority is total." The president's unprecedented claim of total power met with immediate pushback from Democrats and Republicans, many of them arguing the U.S. Constitution explicitly refutes his claim to absolute authority...Charles Fried, who has taught at Harvard Law School since 1961, strongly disputed the idea that the 10th Amendment was relevant to Trump's claim of total authority and said the real issue was that Congress had not passed any law granting Trump authority to order a national quarantine or stay-at-home directive. Fried said the 10th Amendment was a "bogus concern" in this instance and anyone making that argument is "barking up the wrong tree" or is a "10th Amendment nut." "People like Cheney just want to bring federalism into everything, but it's not a federalism problem," Fried told USA TODAY. Fried said the problem was really in the fact that Congress hadn't given Trump the power that he claimed. But he said it theoretically could under its authority to regulate business as outlined in Article 1, Section 8 of the Constitution. "And that's why I don't like referring to the 10th Amendment. It's not really a 10th Amendment issue. It's a rule of law issue," Fried said. "The president can't just say, 'I am the boss.'"

A statement co-written by Charles Fried: Not even a global public health crisis has kept the president from his continuous assault on the rule of law. Last week, President Trump notified Congress that he is firing the intelligence community inspector general, Michael Atkinson. Mr. Atkinson performed an important public service, as required by his official duties, in advancing the whistleblower complaint to Congress, which launched impeachment proceedings. Although the Senate ultimately voted not to convict and remove the president from office, the impeachment hearings included extensive witness testimony from current and former senior government officials that corroborated the accuracy of the initial whistleblower complaint. Throughout those proceedings, Mr. Atkinson conducted himself professionally and in accordance with his responsibilities. Mr. Atkinson has released a public statement regarding his dismissal, explaining that “it is hard not to think that the President’s loss of confidence” in him is directly derived from his “having faithfully discharged [his] legal obligations as an independent and impartial Inspector General[.]”  As he points out, protecting whistleblowers is, necessarily, and legally, a nonpartisan responsibility. Department of Justice Inspector General and Chair of the Council of the Inspectors General on Integrity and Efficiency Michael Horowitz has stated that Mr. Atkinson “is known throughout the Inspector General community for his integrity, professionalism, and commitment to the rule of law and independent oversight.” We too stand with Mr. Atkinson.

Monday marks the tenth anniversary of the signing of President Barack Obama’s signature healthcare bill, the Affordable Care Act, and the 10-year anniversary of the first lawsuits seeking to strike it down. Back then, U.S. Representatives Mike Pence, Mick Mulvaney and 120 other Republican lawmakers criticized the Obama Justice Department for its willingness to defend the controversial Obamacare, while choosing to abandon the Defense of Marriage Act signed into law by another Democrat, Bill Clinton. The “Department of Justice is vigorously defending in numerous federal courts across the country President Obama’s signature health care reform law” even though it “barely passed both chambers of Congress on party line votes,” they said in a House Resolution, after two federal trial courts ruled parts of the ACA were unconstitutional...In deciding not to defend Obamacare, the administration is stretching its power, said Harvard Law School Professor Charles Fried, who served as solicitor general from 1985 to 1989 under President Ronald Reagan. Fortunately, Fried said, other parties often step in, as they did here, to defend the laws the government chooses not to, but “the Justice Department kind of loses some of its credibility.” “When it says we’re not going to defend it, it no longer means because it’s indefensible or no reasonable person could defend it,” he said. “It just means we don’t like it. The Justice Department is supposed to have weightier reasons than that.”

There has been a lot of reaction to Attorney General William Barr's intervention in the Roger Stone case — when he called for a shorter sentence than the seven to nine years prosecutors recommended. Here & Now's Robin Young speaks with Charles Fried, who served as solicitor general under former President Reagan. Now he's a professor of law at Harvard Law School.