Laurence Tribe

In his final full day in office, President Donald Trump is expected to issue a myriad of presidential pardons. Last week, CNN initially reported that Trump planned to pardon close to 100 people before leaving office. Trump already has issued pardons for his former aides, including former adviser Roger Stone, former campaign manager Paul Manafort and former National Security Adviser Michael Flynn. Some have speculated that Trump will attempt to issue a self-pardon or secret pardons for his family and other aides...However, others believe that pardons were meant to be publicly issued and would not hold up as valid if challenged in a court of law. "I certainly can't say that they are clearly impermissible, but I can say that I think that there is at least a Constitutional cloud over them," Harvard Law Professor Laurence Tribe said. For one thing, they would be difficult to authenticate. "There would be no way to prove it was issued on a certain date in an official capacity," Tribe said. "If invoked at the time an indictment or prosecution is brought, that would open the possibility for a Constitutional test of whether secret pardons are permitted." Additionally, Tribe said the nature and purpose of pardons implies a public acknowledgment of wrongdoing and forgiveness. "They were supposed to be accompanied with either a confession of guilt or that they implied that the person who accepts the pardon is willing to publicly admit guilt," Tribe said. "And the fact that there's no indication in the discussion of the Constitution when the pardon power, which is already pretty sweeping and subject to abuse, could be hidden behind a veil of secrecy, I would argue that it's validity is up in the air."

House Speaker Nancy Pelosi is expected to send the article of impeachment against President Donald Trump to the Senate later this week, sources familiar with the matter tell ABC News -- a move that could kick off formal proceedings the next day and opening arguments on the Senate floor the following week. The timing of formal transmission from the House to the Senate is significant, as the Constitution dictates that the trial begins at 1 p.m. the following day. Pushing that procedural step back until after President-elect Joe Biden takes office -- back to Thursday or Friday -- would also give his administration at least a day or two to gain its footing as the Senate begins the balancing act of putting Trump on trial while starting to take up Biden's agenda...Some Democrats worry that Trump simply won't take part in the proceedings and that he'll adopt a similar posture to his administration's broad rejection of congressional oversight and subpoenas during his time in office. "I hope he is competently defended," Laurence Tribe, a Harvard University Law School professor who has advised Democrats on their efforts to impeach Trump, told ABC News. "Otherwise part of what he'll be able to say in claiming victimization is that he was made a pariah ... therefore the verdict was illegitimate -- just as the election wasn't legitimate." "I don't think it helps our history for him to be able to elaborate on that martyr story," Tribe said.

The second impeachment of President Donald Trump has concluded, not with a bang, but with a whimper. Whether it results in a Senate conviction or not, impeachment amounts to a feeble punishment for a man who will have left office anyway. While the forces of decency, democracy and good government prevailed in this impeachment vote, we should ask what gain this battle has wrought. A Senate debate will distract that body at a time when a new president critically needs it to confirm his Cabinet, and to approve a funding package to accelerate vaccinations and Covid-19 relief. Impeachment likely persuaded nobody; on all things Trumpian, it seems, virtually no American appears persuadable. What is needed, rather, is criminal prosecution...Experts appear more divided about whether a president could use the clemency power of Article II of the Constitution to pardon himself in anticipation of prosecution. On its face, nothing in the Constitution precludes a self-pardon. A 1974 internal U.S. Department of Justice memorandum raises doubts, however, invoking “the fundamental rule that no one may be a judge in his own case,” and has the concurrence of such constitutional experts as Harvard Law School professor Laurence Tribe. Only the Supreme Court can finally resolve the issue, but we must call the question; otherwise, the door will remain open to those who might seek to exploit this uncertainty for tyrannical ends.

Like millions around the world, Lincoln Miller, a sixth-grade student in Parkland, Fla, was watching live TV as hundreds of rioters stormed the U.S. Capitol on Jan. 6 to try to stop Congress from confirming Joseph R. Biden as winner of the 2020 presidential election. Five people died in the violence, including two police officers. Miller, 11, was “horrified” as he witnessed the violent mob, he recalls. But as one of 45 kid reporters for Scholastic Kids Press, which reaches 25 million students nationwide, he knew it was important breaking news for his readers. As he continued to watch the riot unfold, Miller pitched the story to his editor. When she gave him the go-ahead, Miller emailed Laurence Tribe ’66, the Carl M. Loeb University Professor, Emeritus, at Harvard Law School, to request an interview...Tribe received Miller’s email moments before he was to appear live on CNN. Though he was fielding dozens of media requests from around the world, “This one stood out,” says Tribe, who immediately emailed the young reporter back. “When I got this very sweet and serious inquiry from an eleven-year-old, I didn’t have to think very long before I accepted, and I shoved aside a lot of other things to take part in it,” says Tribe. “Kids were watching what looks like a chaotic and torn nation. Many of them were frightened, understandably, and dispirited and discouraged. I thought something uplifting as well as informative” could help.

On January 6, hundreds of rioters stormed the United States Capitol building in Washington, D.C. Their goal was to disrupt the official counting of electoral votes cast in the 2020 presidential race...To gain a better understanding of the guidance the Constitution offers, I emailed Laurence Tribe, a renowned lawyer and scholar who specializes in the Constitution...What is the main thing you’d like kids to understand about the chaos at the Capitol? “The chaos they witnessed isn’t the way things are supposed to be, and it isn’t the way things are likely to remain. Lots of first responders stepped up to their responsibilities, saved lives, and protected people from injury. If we all care more for our neighbors and try to remember that there are ways of disagreeing, while still respecting those who have strong feelings the other way, things will get better.” When the transfer of power is not peaceful, what guidance does the Constitution provide? “So far, we have been fortunate to have an almost entirely peaceful transfer of power from one presidential administration to the next, ever since the transition from John Adams to his archrival Thomas Jefferson in 1801. This is the first time that the individual who was clearly defeated, President Trump, held out for months before agreeing to leave office. Trump refused to acknowledge his loss even after his baseless claims of fraud were rejected by the courts. The unsuccessful attempt at what would have been the first coup in our history stands out as a dark chapter. But the Constitution provides vital guidance in ending each presidential term after four years, exactly at noon on January 20.”

President Trump, having reached the historic — and infamous — landmark of being impeached twice, now faces trial in the Senate. But unlike the first time, he will no longer be in office. So, does the Senate have the power to try an ex-president on impeachment charges? The Constitution says that after the House of Representatives votes to impeach a president or any other civil officer, the case is sent to the Senate for a trial, which "shall not extend further than to removal from office, and disqualification" from future office. Conviction requires a two-thirds vote, but barring Trump from future office would take only a majority vote. Scholars disagree about what the Founders intended. Harvard law professor Laurence Tribe and University of Texas law professor Stephen Vladeck note that there are six references to impeachment in the Constitution -- references that make clear removal is only one of the purposes of impeachment...Former Harvard Law School Dean Martha Minow explains that the court in that 1993 case viewed impeachment as a "political question," not reviewable by the court because under the Constitution, impeachment "is given over entirely to Congress." "I don't think any member of this current court would want to get into this mess," she adds. "This is one of the most controversial political moments in the history of the United states, dealing with an exceedingly unpopular president but one with devoted followers and a most divided Congress.” "Were the court to insert itself," she says, "it would put at jeopardy the one thing that the courts has, which is an arm's distance from the direct political process."

Trump will no longer be president by the time any Senate trial concludes. Two experts, Professors Laurence Tribe and Ross Garber, debate whether the Senate can still try a former President.

The Senate vote on whether to remove President Donald Trump from office will not happen until he is no longer in office. Senate Majority Leader Mitch McConnell made that reality plain soon after the House voted to impeach Trump on Wednesday. "Even if the Senate process were to begin this week and move promptly, no final verdict would be reached until after President Trump had left office," he said. "This is not a decision I am making; it is a fact." Which raises two obvious questions: 1) Can you impeach (and remove) a former president from office? 2) What, exactly, is the point of doing it -- even if you can? The first question is, interestingly, something on which there is considerable debate among Constitutional scholars...Laurence Tribe, a professor emeritus at Harvard Law School, wrote this Wednesday in response to Luttig's argument: "To be sure, a former officer may no longer be 'removed' even upon conviction by a two-thirds vote. But that has no bearing on whether such an ex-officer may be barred permanently from office upon being convicted. That separate judgment would require no more than a simple majority vote. Concluding otherwise would all but erase the disqualification power from the Constitution's text: If an impeachable officer became immune from trial and conviction upon leaving office, any official seeing conviction as imminent could easily remove the prospect of disqualification simply by resigning moments before the Senate's anticipated verdict."

As armed supporters of President Donald Trump prepare to converge on state capitals and Washington, D.C., this weekend and Inauguration Day, some legal experts are calling on authorities to enforce longstanding laws outlawing organized groups that act as citizen-run, unauthorized militias. Federal law, constitutions in every state, and criminal statutes in 29 states outlaw groups that engage in activities reserved for state agencies, including acting as law enforcement, training and drilling together, engaging in crowd control and making shows of force as armed groups at public gatherings. Yet hundreds of armed groups, organized under the insignia of the Oath Keepers, the Three Percenters and others, do exactly that...Two constitutional law scholars said these laws should survive challenges to their constitutionality. “Properly interpreted and applied, the state laws banning organized, private militias would pass constitutional muster,” Laurence Tribe, a professor at Harvard Law School and co-founder of the American Constitution Society, wrote in an email. “Although these laws could be clumsily deployed in ways that would raise constitutional problems," he wrote, "that hardly means they shouldn’t be part of the arsenal that law enforcement uses to prevent the forthcoming protests from turning into deadly riots.”

On Wednesday's edition of CNN's "OutFront," Harvard Law professor Laurence Tribe explained why President Donald Trump's imminent departure from office won't save him from the Senate impeachment trial for inciting violence at the Capitol. "You've just written an op-ed in The Washington Post about this," said anchor Erin Burnett. "You say President Trump can be tried and convicted after leaving office. Why? Explain." "Well, basically, the Constitution's text makes it clear that as long as you are an officer when you commit an impeachable offense, the ability to convict you and prevent you from repeating your dangerous activities doesn't cease," said Tribe. "If it were written otherwise, it would be crazy. The Secretary of War in 1876 thought he could game the system by resigning his office minutes before the impeachment was returned. But then the Senate, by a vote of 37-29 held understandably, you can't get away with it that way. It's not like when someone says you're fired, so you can't fire me, I've already resigned." "The fact is that the Constitution was designed so that the most dangerous characters couldn't escape the important remedy of being taken out of public office in the future simply by resigning. That won't work," continued Tribe.

An op-ed by Laurence Tribe: The Senate appears unlikely to take up the article of impeachmentagainst President Trump before his term ends next Wednesday. That does not require the end of proceedings against him. The Senate retains the constitutional authority — indeed, the constitutional duty — to conduct an impeachment trial against the soon-to-be-former president. The Constitution, Article II, Section 4, provides that the president and other civil officers “shall be removed from Office” following impeachment and conviction by the Senate. Some scholars, most prominently former federal appeals court judge J. Michael Luttig, have argued that because Trump’s term will have already ended and he, by definition, cannot be removed, the impeachment power no longer applies. With all respect, I disagree. The Constitution references impeachment in six places but nowhere answers that precise question. Article I, Section 3 comes closest to delineating the contours of the Impeachment Power, instructing that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” These “judgments” — removal and disqualification — are analytically distinct and linguistically divisible.

U.S. President Donald Trump has been impeached an unprecedented second time, on this occasion charged with inciting last week’s deadly attack on the Capitol building as he sought to overturn his re-election defeat. The House of Representatives passed a single article of impeachment, “incitement of insurrection,” on Wednesday, with 10 Republicans breaking with the President to join all Democrats in voting for the measure. While Mr. Trump has just under a week left in his term, legislators are hoping to bar him from ever holding federal office in the future. He will face trial in the Senate, which requires a two-thirds vote to convict...Laurence Tribe, a constitutional law expert at Harvard University, said Congress would have to create a procedure for finding that Mr. Trump had taken part in “insurrection or rebellion” against the country. “To bar Trump from holding office again if the Senate doesn’t convict him, we would need further legislation,” he wrote in an e-mail.

Harvard Constitutional Law Professor Laurence Tribe discusses whether a 1969 U.S. Supreme Court ruling would shield President Donald Trump from prosecution for inciting last week’s Capitol riot. He speaks with Bloomberg’s David Westin on “Balance of Power.”

As House Democrats speed toward impeaching President Trump for a second time, numerous Republicans declared that holding the commander in chief accountable for inciting a violent assault on Congress would further divide the nation and urged their colleagues to turn the page for the sake of unity and healing...Republicans’ eagerness to sprint past an event without precedent in American history — which left five people dead, including a Capitol Police officer killed by an angry mob — marks the culmination of more than four years of GOP officials taking cover under platitudes in place of principled action...Laurence Tribe, a constitutional legal scholar at Harvard, said it’s dangerous to move past last week’s violent siege without action. He supports the move to impeach. “If he can’t be convicted on the basis of what we have now, and if the idea of appeasement and peace sort of prevails, then we have effectively removed the impeachment clause from the Constitution. It will be gone. It will be a dead letter,” said Tribe, who has advised Biden for decades.

Laurence Tribe, a Harvard constitutional law professor, also discusses his former student Ted Cruz and explains why the push to use Section 3 of the 14th Amendment against Trump is an inadequate response to the violent insurrection he inspired.

An op-ed by Laurence H. Tribe and Joshua Matz: As the House of Representatives takes the extraordinary step of considering a second impeachment of President Trump during his final days in office, two questions loom large: Did Trump commit impeachable offenses? And does it make sense to impeach even though the Senate may not try and convict him before he leaves office on Jan. 20? The answer to both questions is yes. Trump spent months convincing his followers, without factual basis, that they were victims of a massive electoral fraud. He summoned them to D.C. for a “wild” protest as Congress met to certify the election results. He then whipped them into a frenzy and aimed the angry horde straight at the Capitol. When Trump’s mob breached the building, he inexcusably dawdled in deploying force to quell the riot. And when he finally released a video statement, it only made matters worse. Simply put, Trump knew perfectly well that his rally on Wednesday was a powder keg of his own creation. But he gleefully lit a match and tossed it at Congress. The article of impeachment circulated Friday by Democratic Reps. David N. Cicilline (R.I.), Jamie B. Raskin (Md.) and Ted Lieu (Calif.) accurately captures the gravity of Trump’s misconduct. It situates his action within his “prior efforts to subvert and obstruct the certification of the results of the 2020 presidential election.” And it recognizes the terrible damage that Trump, through his incitement, inflicted on the nation as a whole.

The pro-Trump mob’s storming of the US Capitol in Washington, D.C., on Wednesday appears to fit the legal definition of sedition, though it remains to be seen whether anyone will face that charge, legal experts said Thursday...Laurence Tribe, an emeritus professor at Harvard Law School, said the law “basically says that anyone who, in any place subject to US jurisdiction, conspires to forcibly oppose the authority of the United States or to prevent or delay the execution of US law is guilty of seditious conspiracy. That certainly is what the people who organized and carried out the invasion of the Capitol were doing.” Tribe said he felt that a separate federal charge of waging rebellion or insurrection, which bears a 10-year sentence, could also apply...Tribe said charges such as vandalism or trespassing “seem a little trivial. Maybe they had to use the tax laws to get Al Capone, but here the insurrection is clear enough that complaining they just left a mess on the floor seems like a foolish, cowardly evasion of what’s going on.” “It’s the absolute heart of our system, and they were trashing it not just physically, but conceptually,” he said.

Rarely have images of unchecked bedlam and violence between security forces and angry Americans stunned the nation the way they did Wednesday, as right-wing rioters stormed the U.S. Capitol in Washington. The rioters attacked the literal and figurative symbols of American government in support of their preferred leader, outgoing President Donald Trump, who earlier had lauded their backing from a stage in front of the White House. They had come to protest the formal counting of Electoral College votes by Congress, a constitutionally mandated ceremony to certify Joseph R. Biden and Sen. Kamala Harris as the next president and vice president-elect...Several Harvard faculty members, authorities on American governance, denounced the takeover as a shameful watershed for U.S. democracy, however divided people may be politically...Constitutional scholar Laurence Tribe said the president had encouraged mob rule and violent insurrection “without a doubt.” “He’s fomented violence, he’s incited sedition, and in everything but the most technical terms, he’s waged war against the government of the United States, and that’s the very definition of treason,” said Tribe, the Carl M. Loeb University Professor, emeritus, at Harvard Law School. While the uprising has likely damaged the country’s institutions, image, and norms in ways that will take generations to undo, Tribe remains hopeful in a broader sense. “Even though this day ended darkly, it began with a victory for [Senators-elect Jon] Ossoff and [Rev. Raphael] Warnock in Georgia. We’re going to have a sane, reasonable, thoughtful person sworn in as president on Jan. 20,” he added. “And though the damage is real — I don’t want to minimize it — in the end, we will have come through it.”

Congress will convene on January 6 to officially count the electoral votes for the 2020 presidential election, certifying that President-elect Joe Biden won 306 electoral votes to President Donald Trump's 232. Vice President Mike Pence is expected to preside over the joint session as president of the Senate to open the certificates so they can be counted. There has been extensive debate about the scope of Pence's role during the joint session. Even though it has been reported by Newsweek that Pence does not have the ability to decide which electoral votes count, there still is the question of whether he can send electoral votes back to the states for "correction." ... Laurence Tribe, a constitutional law professor at Harvard Law School, explained the scope of Pence's role presiding over the joint session in an email to Newsweek. "Vice President Pence has no power whatsoever to send electoral slates back for recounting or 'correction' or to accept alternative slates or to do anything other than preside ceremonially over the joint session of Congress," Tribe said. "Any notion that he can change the result is sheer fantasy and has no basis in law or history."

Vice President Mike Pence is being put to the ultimate Trump test. The Republican president falsely claimed Tuesday that Pence can single-handedly toss out election results when Congress convenes on Wednesday for the final bureaucratic step before Joe Biden’s inauguration, putting pressure on the VP to decide what’s more important: The boss or the Constitution...Despite Trump’s claim, Pence cannot indiscriminately refuse to accept Biden’s 306-to-232 vote victory in the Electoral College. “The vice president is essentially powerless tomorrow. The Constitution gives him a merely ceremonial role, and there’s no way he can turn that into anything more,” Laurence Tribe, a longtime constitutional law professor at Harvard University, told the Daily News. In serving as the presiding officer over Wednesday’s session, Pence’s duties are essentially limited to presenting the 538 electoral votes certified by all 50 states and Washington, D.C., for a formal count, as spelled out by the 12th Amendment to the Constitution. He’s also tasked with overseeing any challenges to the results requested by members of Congress. If a challenge is made and supported by at least one representative and one senator, Pence should order the House and Senate to retreat to their respective chambers for a debate and vote on the objection. For a challenge to be successful, majorities of both chambers have to vote to sustain it — which is virtually impossible since the House is controlled by Democrats and Senate GOP leaders have instructed their members to not entertain objections to Biden’s certified victory.