Laurence Tribe

When it comes to possible criminal prosecution of the defeated former president for seeking to overthrow the 2020 election, most attention has understandably focused on the Justice Department. As the American people’s chief prosecutor, the department is conducting a massive investigation and prosecution effort of those involved in the coup effort. ... Unlike the federal case concerning instigation of a violent insurrection, Trump’s direct participation is not at issue in Georgia. While intent is still a hurdle for prosecutors in the Georgia case, the nature of Trump’s demand suggests he was not seeking an accurate vote count, but a count that would make him the winner. As constitutional scholar Laurence H. Tribe previously opined, “It’s very hard to understand that conversation any other way when he says ‘you and your lawyer’ are going to be in basically criminal trouble if you don’t somehow, ‘find’ one more vote than the number by which I lost to Biden, according to your count.” Trump’s demand, Tribe says, was “really strong-arming extortion, a violation of the election laws.”

Democrats, activists and historians have urged the president for months to take the fight to Republicans who continue to spread lies about the 2020 election and to shield democracy from ongoing threats. On Thursday, Joe Biden answered in his most direct and cogent speech on the matter to date. Biden not only addressed the violent acts of that day carried out by pro-Donald Trump rioters who sought to overturn the election, but detailed the sustained effort by Trump and his allies to subvert the nation’s electoral system in the future. ... Historian Laurence Tribe, who has known Biden since the 1980s and has at times advised the president, spoke to Klain after Biden’s address, relaying his belief that the speech was Biden at his best. “Equal to anything that JFK did or anything that Obama did,” Tribe recalled telling Klain. “There were no rose-colored glasses, the president was not covering the difficulty of challenges that we face,” Tribe added. Tribe, like others, has long wanted Biden to make such explicit remarks. “I've certainly been waiting, and I'm so glad that he finally did this.”

In the year since the Jan. 6 attack on the Capitol, a handful of Democrats, constitutional scholars and pro-democracy advocates have been quietly exploring how a post-Civil War amendment to the Constitution might be used to disqualify former President Trump from holding office again. ... “If anything, the idea has waxed and waned,” said Laurence Tribe, a constitutional expert at Harvard Law School. “I hear it being raised with considerable frequency these days both by media commentators and by members of Congress and their staffs, some of whom have sought my advice on how to implement Section 3.”

Video: Constitutional Scholar Laurence Tribe joins MSNBC’s Lawrence O’Donnell to react to Attorney General Merrick Garland’s investigation into the January 6th insurrection. Tribe says the DOJ is focusing too much on January 6th and not enough on the larger plot to overturn the election by coercing state officials to manipulate the results. “The scary thing,” Tribe says, “is there is simply no indication that the department of justice is investigating that broader plot. I hope to heaven that it is, but there’s no indication of it.”

Only one president, before the current one, won a national election only to see a large proportion of the country outright refuse to participate in our democracy rather than accept the result. That president was, of course, Abraham Lincoln. He concluded that those who conspired in an illegal plan to undo the American experiment in democracy had to be permanently banished from politics. It is a lesson Lincoln's successors forgot, and arguably one that should be studied carefully today. ... With Lincoln's approval, Congress addressed this question directly. "The laws enacted by Congress to prevent former Confederate leaders from acquiring power after the Civil War provide an object lesson for our time," Harvard law professor Laurence Tribe wrote Salon by email. They have been enshrined in law as precedent for stopping those who would commit violence against a democratic government. Of the resulting statutes, Tribe identified this one as the "most pertinent."

A year on from the Capitol riots, is the US system of government in peril? Stephen Sackur speaks to Laurence Tribe, Professor of Constitutional Law at Harvard University.

Former White House trade advisor Peter Navarro says he would prove that ex-President Donald Trump "is innocent" in the January 6 Capitol riot if he were to be criminally referred by the House Select Committee over his "Green Bay Sweep" strategy. ... Laurence H. Tribe, an American legal scholar and a University Professor Emeritus at Harvard University, told Newsweek that Navarro's strategy "wouldn't have been within the spirit, and probably not even the letter, of the U.S. Constitution." "Navarro's plans took the bare form of legal and constitutional vessels and poured the equivalent of poisonous fluid into them," Tribe said.

In his nine-page 2021 year-end Report on the Federal Judiciary, Supreme Court Chief Justice John Roberts has tried to meet head-on current criticism in Congress and the media that the Court finds itself, as Court analyst Linda Greenhouse succinctly puts it, “in a danger zone as a willing – and willful – participant in a war for the soul of the country.” ... Many see Roberts as an institutionalist and a moderate, but other Court watchers have a different take. Harvard law professor emeritus Laurence Tribe writes: “I wouldn’t call Chief Justice Roberts a ‘sly extremist,’ but he’s anything but a moderate. He’s very far right on voting rights, equal protection, money in politics, religious establishment, reproductive liberty, labor relations, corporate power, regulatory authority, you name it.”

Video: Laurence Tribe calls on his former student, Attorney General Garland, to take action over Trump’s role in the insurrection: “If Merrick Garland has not yet ginned up a full-blown investigation, he should do so yesterday.”

President Biden’s commission to study structural revisions to the Supreme Court found one potential change both Democrats and Republicans have said they could support: implementing term limits for the justices, who currently have lifetime tenure. Yet the bipartisan support among legal experts and the public for term limits isn’t catching on among elected officials on Capitol Hill who would be the starting point on any alterations to the makeup of the Supreme Court. ... Laurence Tribe, the longtime constitutional law expert at Harvard University and a member of Biden’s Supreme Court commission, said he went into the panel’s work thinking that he supported term limits but changed his mind “because of the complexity and the enormous time period it would take to implement a term limits proposal.” Though Tribe said he thinks life tenure for justices is “dramatically incompatible” with a government designed not to afford lifetime power to individuals, he said any federal law that tries to impose term limits would face constitutional challenges and would likely be struck down.

Imagine the angst and anger among Democrats if Republicans take control of the House after next year’s midterm elections and Nancy Pelosi has to hand over the speaker’s gavel to the other party. Now imagine she’s handing it to Donald Trump. In what could be the ultimate trolling of Democrats, some prominent Trump allies are suggesting House Republicans should elect him speaker if they hold the majority, a move that would place him second to the vice president in the line of succession for the presidency and allow him to preside over a chamber that an angry mob of supporters tried to forcibly enter during the deadly Jan. 6 insurrection. ... “It’s hard to imagine a more self-destructive thing for the House of Representatives to do than to elect a twice-impeached, deeply unprincipled, psychologically unstable, emotionally immature, and manifestly corrupt private citizen like former president Trump to the position of speaker of the House,” Laurence H. Tribe, an emeritus Harvard Law professor and constitutional scholar, said in an e-mail. “But the Constitution doesn’t rule out novel actions just because they’re self-destructive, unprecedented, and obviously stupid.”

An op-ed by Laurence Tribe: Only free and fair elections in which the loser abides by the result stand between each of us and life at the mercy of a despotic regime – one we had no voice in choosing and one that can freely violate all our rights. So everything is at stake in the peaceful transfer of power from a government that has lost its people’s confidence to its victorious successor. It was that peaceful transfer that Trump and his minions sought to obstruct and almost succeeded in overthrowing when Joe Biden was elected president. A year has passed since Trump’s attempted coup and his supporters’ violent storming of the United States Capitol on 6 January 2021, in a nearly successful effort to prevent Congress from certifying Trump’s decisive loss of the election to Biden. Watching the images that day of the seat of US democracy overtaken and defiled, it was impossible not to viscerally feel the grave danger that confronted the republic. In the tumultuous year since, the immediacy of that sensation has waned – and the magnitude of the stakes has receded from memory.  

When his contract renewal was in doubt four years ago, Lawrence O’Donnell begged his viewers to help keep him on the air at MSNBC. Now, as the left-leaning network’s prime-time lineup is at its most unstable point in a decade, the 70-year-old anchor has inadvertently become MSNBC’s most valuable star; or, at least, its most dependable one, owing to the rare, direct line he enjoys into the Biden White House. ... "This is going to be an important time for him, but I thought about him as a very important player at MSNBC for a long time," said Laurence Tribe, the famed Harvard law professor and regular Last Word guest. "He knows more about the Senate than almost anyone else on television."

U.S. District Judge Dabney L. Friedrich ruled last week that an effort to interrupt the counting of the electoral votes can be a crime — even if no violence was contemplated. ... “This December 10 Friedrich opinion does indeed seem important to me,” constitutional legal scholar Laurence Tribe tells me. Whether it is an obstruction charge — or a charge of sedition or conspiracy to commit sedition (under either sections 2383 or 2384 of Title 18 of the U.S. Code) — Tribe observes that the principal obstacle to prosecution has been “the argument that the electoral count certification in the Joint Session of Congress is too ministerial to count as an official proceeding.” However, Tribe concludes, “This federal court opinion undercuts that line of argument.”

An op-ed by Dennis Aftergut and Laurence Tribe: The Supreme Court hath given a sliver and taken away the pie. Its ruling last week in Whole Woman’s Health v. Jackson is a wipeout for reproductive freedom, deliberately disguised as a partial victory. The Court looks decreasingly like a true judicial body and increasingly like a wolf cagily donning sheep’s clothing to prey upon constitutional rights. At issue was Texas’ “bounty hunter” anti-abortion law, the most restrictive in the nation. It makes abortions illegal in the state after a fetal heartbeat is detected, usually around six weeks and long before viability. Texas used the sly trick of leaving enforcement to private vigilantes, rewarding them with limitless bounties starting at $10,000 for successfully suing anyone helping a woman who chooses to end her pregnancy more than six weeks after her last period. The acknowledged purpose of that ruse was to evade federal court review on the false premise that only private individuals were enforcing SB 8, not the state.

Only one president, before the current one, won a national election only to see a large proportion of the country outright refuse to participate in our democracy rather than accept the result. That president was, of course, Abraham Lincoln. He concluded that those who conspired in an illegal plan to undo the American experiment in democracy had to be permanently banished from politics. It is a lesson Lincoln's successors forgot, and arguably one that should be studied carefully today. ...With Lincoln's approval, Congress addressed this question directly. "The laws enacted by Congress to prevent former Confederate leaders from acquiring power after the Civil War provide an object lesson for our time," Harvard law professor Laurence Tribe wrote Salon by email. They have been enshrined in law as precedent for stopping those who would commit violence against a democratic government. Of the resulting statutes, Tribe identified this one as the "most pertinent": Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

It's been eight months since President Biden established a commission to study proposals to reform the U.S. Supreme Court. ... That commission delivered its report to the president this past week. And while it studied a long list of potential reforms, like increasing the number of justices and imposing term limits, it did not make any recommendations to the president. Given so much at stake as the Supreme Court is set to decide on major issues like abortion rights, we wanted to talk about what comes next, so we called two members of the commission. Laurence Tribe is professor emeritus at Harvard Law School, where he teaches constitutional law. And Judge Thomas Griffith is a former federal judge on the U.S. Court of Appeals for the D.C. Circuit.

An op-ed by Nancy Gertner and Laurence H. Tribe: We now believe that Congress must expand the size of the Supreme Court and do so as soon as possible. We did not come to this conclusion lightly. One of us is a constitutional law scholar and frequent advocate before the Supreme Court, the other a federal judge for 17 years. After serving on the Presidential Commission on the Supreme Court over eight months, hearing multiple witnesses, reading draft upon draft of the final report issued this week, our views have evolved. We started out leaning toward term limits for Supreme Court justices but against court expansion and ended up doubtful about term limits but in favor of expanding the size of the court. We listened carefully to the views of commissioners who disagreed. Indeed, the process was a model for how people with deeply diverging perspectives can listen to one another respectfully and revise their views through genuine dialogue. We voted to submit the final report to President Biden not because we agreed with all of it — we did not — but because it accurately reflects the complexity of the issue and that diversity of views. There has never been so comprehensive and careful a study of ways to reform the Supreme Court, the history and legality of various potential reforms, and the pluses and minuses of each. This report will be of value well beyond today’s debates. But make no mistake: In voting to submit the report to the president neither of us cast a vote of confidence in the Supreme Court itself.

A bipartisan commission tasked by the White House with exploring possible Supreme Court reforms voted unanimously Tuesday to submit the group’s final report to President Biden. The 34-member group sounded a neutral tone across its report's nearly 300 pages, referencing “profound disagreement” over a controversial proposal to expand the number of justices, for instance, while declining to adopt a position. Instead, the study traces the history of the court reform debate and delineates arguments for and against various proposals, occasionally noting areas of bipartisan support, as in the case of imposing term limits on the justices.  ... Some of the commission’s more progressive members made clear Tuesday that their votes in favor of the group’s findings should not be misinterpreted as an endorsement of the high court’s status quo. “In voting to submit this report to the president, I am not casting a vote of confidence in the court’s basic legitimacy,” said Harvard law professor Laurence Tribe. “I no longer have that confidence.”

A bipartisan commission appointed by President Biden unanimously adopted a report detailing controversies over the Supreme Court and assessing proposals to address them, but few expected the 294-page document to resolve political divisions concerning the judiciary that have intensified in recent years. At Tuesday’s meeting, members of the commission universally praised the report-writing process for its civil dialogue and regard for all views. However, the final report was neither designed to nor did it produce consensus or any recommendations. ... “The report is so measured in tone that it would make an excellent basis for classroom discussion, which is a mixed compliment,” said University of Texas law professor Sanford Levinson. “Its obvious concern with being relatively impartial means that it is unlikely to generate any genuine political movement.” ... “There has never been so comprehensive and careful a study of ways to reform the Supreme Court; the history and legality of various reforms; and the pluses and minuses of each,” said a liberal commissioner, Harvard law professor Laurence Tribe. “But in voting to submit this report to the president, I am not casting a vote of confidence in the court’s basic legitimacy. I no longer have that confidence,” he said, citing “the dubious way some justices got there” and “the anti-democratic, anti-egalitarian direction of its decisions about matters like voting rights, gerrymandering, and the corrupting effects of dark money,” all areas where conservative views prevailed. Mr. Tribe said the process had persuaded him to endorse expanding the court, a position he previously had viewed skeptically.

A bipartisan panel of legal scholars examining possible changes to the Supreme Court voted unanimously Tuesday to submit to President Biden its final report, which describes public support for imposing term limits but “profound disagreement” about adding justices. Biden assembled the commission in response to demands from Democrats to restore what they called ideological “balance” on the court, now with three liberals and six conservatives, including three justices picked by President Donald Trump. In advance of the 34 to 0 vote, commissioners from across the political spectrum aired their differences about specific proposals for overhauling the court even as they praised the collegial process of assembling the nearly 300-page document. “I’m more convinced than ever that change is necessary,” said retired federal judge Nancy Gertner, a nominee of President Bill Clinton. “The court has been effectively packed by one party and will remain packed for years to come with serious consequences to democracy. Constitutional law expert Laurence Tribe said he had come to embrace the idea of expanding the bench because “all is not well with the court,” which he asserted, “no longer deserves the nation’s confidence.” “Even if expanding it would momentarily shake its authority,” Tribe said, “that risk is worth taking.”