Laurence Tribe

An op-ed by Laurence Tribe: Every passing day seems to expose more evidence that President Trump is in the midst of a public crime spree. His activities — including pressing Georgia’s secretary of state to “find” nonexistent votes — increasingly bear the stench of criminality, bare-faced and public though they are. History has taught us to expect crimes to be committed in the dark. But Trump has been openly fomenting violence and encouraging actions designed to undo a fair and free election. In plain view and over four years, he has threatened those who fail to join him in this course of action, one that would otherwise quickly be recognized as a seditious coup had his longstanding pattern not numbed observers to the real meaning of his conduct. From early in his presidency, Trump has dangled the prospect of pardons to induce his cronies to remain loyal and do his bidding. On their face, his recent spate of pardons to his former national security adviser Michael Flynn, longtime adviser Roger Stone, and Paul Manafort, his 2016 campaign chairman, appear to consummate deals designed to conceal incriminating information — deals that might well have safeguarded Trump from removal or prosecution. As of now, we don’t know the extent to which the promise of such pardons actually kneecapped the Justice Department and congressional investigations. We need to find out: Although even unsuccessfully attempted “obstruction of justice” is a crime, it’s unlikely to seem serious enough all by itself to warrant prosecuting a former president.

An op-ed by Laurence Tribe: If, as Alexander Pope reflected in 1711, “to err is human, to forgive, divine,” then the US Constitution’s pardon power — the prerogative of forgiveness — should be beyond reproach. Instead, a godless US president who appears incapable of forgiveness has seemingly perverted this instrument of mercy into another grave threat to the rule of law. Donald Trump’s recent twisting of the pardon power risks leaving a damaging legacy: a blueprint for manipulating this vestige of royal prerogative to place presidents and their cronies above the law. But a remedy exists: investigation and potential prosecution. We must treat any obstructions of justice we uncover as the crimes they are. It is critical to distinguish between two types of corrupt pardons. There are those that are merely contemptible for their intrinsic immorality — they may give a free walk to American war criminals (the Blackwater contractors convicted of a massacre), corrupt politicians (former Illinois governor Rod Blagojevich, convicted of trying to sell a Senate seat), and relatives (Mr Trump’s son-in-law’s criminally convicted father Charles Kushner). There are others that pose structural dangers by placing the president and his circle above the law and thwarting investigations into wrongdoing.

Donald Trump’s recent pardons of several key aides have ignited a crucial debate: Should President-elect Joe Biden’s Department of Justice investigate his predecessor’s apparent obstruction of a potentially damning inquiry into his entanglement with Vladimir Putin’s Russia? Opponents muster numerous arguments. A probe would sharpen our bitter divide. It would smack of reprisal. It would spotlight Trump’s grievances. It would be too complex and time-consuming. It would undermine Biden’s effort to advance a positive agenda that speaks to the future. Restoring our comity, they conclude, precludes launching the unprecedented prosecution of an ex-president...First, the pardons. As Harvard law professor Laurence Tribe points out, they “belong to a distinct and far more dangerous category” than mere political favoritism. Tribe elaborates: “If Mr. Trump has used his pardon power to commit crimes, he must be prosecuted; failing to do so would set a perilous precedent for future administrations. In future investigations of presidential misconduct, essential witnesses might routinely protect the boss in hopes of (or in exchange for) immunity. Worse yet, future presidents could treat their terms in office as four-year licenses to commit heinous crimes with impunity.”

Now that the Electoral College has voted, President Donald Trump’s last stand is anticipated to take place on January 6, 2021, when Congress convenes to officially count the votes of the electors. This final step in the election process is given apparent gravity by a provision of an ancient statute called the Electoral Count Act of 1887 (the “ECA”). The ECA authorizes members of Congress to object to a state’s results and creates a process for resolving any such objections by votes in both the House and the Senate. If majorities of both houses affirm the objection, the ECA provides that the state’s electoral votes will be rejected. If enough electoral votes are rejected to prevent any candidate from getting to 270 votes, the Twelfth Amendmentthrows the election to the House for a state-by-state vote. Since the Republican party controls more state delegations than Democrats do, Trump presumably would be the winner. For a host of reasons, it is almost unthinkable that Trump’s supporters will be able to get an objection through Congress on January 6...Because I haven’t found any scholarly or judicial writing on this specific issue, I checked in with Laurence Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard. Professor Tribe was kind enough to offer this unqualified, definitive response: “[T]he 1887 Electoral Count Act cannot be regarded as an even arguably constitutional path along which the special Joint Session of Congress called for in the Twelfth Amendment might opt to engage in substantive second-guessing of how any given State chose to conduct its Article II function of appointing Electors.” This sounds like case closed.

On Monday, speaking to Fox News, senior White House adviser Stephen Miller said that the GOP plans to hold votes for their own set of “electors” in multiple key states that voted for President-elect Joe Biden — something that has no basis in law, since the states have already been certified. Speaking to CNN’s Erin Burnett, Harvard Law professor Laurence Tribe slammed the stunt — who said it was not only meritless, it was bringing the nation closer to political violence. “I mean, this is completely made up,” said Burnett. “They may be doing it, right? But it’s a completely made up thing. They’re getting broadcast to millions of people who are hearing this sort of thing. Put it to rest.” “Erin, many of them are armed and dangerous,” said Tribe. “What these people are doing — Stephen Miller prime among them — is stirring up violence, the kind of violence that required special protection for the electors in the state of Michigan. They are inciting violence. They are engaged in, essentially, sabotage.” “Yes, January 20th is the date in the Constitution, but well beyond the 20th these people are going to be out there, whether it’s Mar-a-Lago or somewhere else, encouraging the sort of armed rebellion to kill people,” continued Tribe. “And I think that’s a scary thing, not just for democracy but for the people who want to go on with their lives. We’ve got a terrible pandemic. We have an economy in shambles as a result of this president’s failure to deal with the pandemic. We have a new president, a new sheriff in town … and in the meantime these sore losers are out there trying to stir up violence. It’s really a sad day for America. And yet a happy day because democracy has prevailed.”

Laurence Tribe, a constitutional law professor at Harvard, debunks Stephen Miller's false claim that "alternate" electors could be sent to Congress to overturn Biden's win.

The long-held but unchallenged legal assumption that a president can’t issue pardons for federal civil infractions, including tax penalties and fines, may end up before the Supreme Court, some tax professors say...No one disputes that the president can’t pardon state offenses. But Hemel pointed to legal research by Yale Law School lecturer Noah A. Messing in 2016, “A New Power?: Civil Offenses and Presidential Clemency,” which argues that the civil scope of the president’s pardon powers has never been thoroughly defined by courts and may already include the power to excuse civil infractions as well as crimes...But Harvard University’s Laurence H. Tribe told Tax Notes that, while he’s unfamiliar with Messing’s research, he “wouldn’t want to opine either way on whether the pardon power can properly be construed to extend so far as to extinguish civil liability to the United States.” “Whatever confusion exists in the tax professional community [about the extent of the pardon power] is understandable but, well, confused,” Tribe said...Tribe said civil tax reimbursements, with interest, of amounts improperly withheld from the treasury can't be pardoned. “However, civil fines and penalties that, but for labels and the standard of proof and level of stigma, might have been deemed criminal, might be in a different category,” he said...Tribe said he doesn’t believe Trump has the power to pardon himself, but recognizes the issue will probably end up before the Supreme Court.

Aided by President Donald Trump, his campaign legal team, and right-wing political pundits, the post-election media landscape has been inundated with disinformation in an effort to sow doubt over President-elect Joe Biden’s win. The statuses of various lawsuits challenging the election results have been a particularly ripe target for such falsehoods, and Texas Attorney General Ken Paxton’s (R) long-shot Supreme Court lawsuit is the latest example of that...First, despite gaining widespread traction among Trump supporters on Twitter and other social media platforms, there is no truth to the notion that the justices already voted 6-3 to hear Texas’s case. Second, the court instructing the states being sued to file a response does not mean the justices will hear arguments on the merits of the action. “Requiring the states to respond is not an indication that the justices plan on hearing the case. It’s an entirely routine move on the part of the Court, one that reflects a simple courtesy that I would have been surprised to see the Court omit,” Harvard Law professor emeritus and constitutional scholar Laurence Tribe told Law and Crime. According to Tribe, who described the lawsuit as “completely frivolous,” the complaint should be dismissed for “failing to establish the standing of Texas to complain of any cognizable injury to the State in any of its various capacities: sovereign, quasi-sovereign, proprietary, or parens patriae on behalf of its citizens and voters.”

When lawsuits began flooding state and federal courts after Election Day, the legal team for President Trump’s reelection campaign, and his supporters, said that as a candidate he was merely exercising his right to explore every legal remedy at his disposal. More than four weeks and 40 losses later, observers in the legal community are aghast at how the campaign is using the judicial system to push baseless allegations of systemic voter fraud, and they want the lawyers leading the effort to be held accountable. “I would like my right to practice law to mean something,” Laurence Tribe, a Harvard University law professor and leading constitutional scholar, told Yahoo News. “And if you can just use your law license to fling bulls*** around, if you can use your law license to take up the time of the court, consume their resources, and undermine the credibility of the legal profession on which the rule of law largely depends in this country — then that’s a terrible thing.” Tribe and more than 1,000 current and former attorneys, retired judges and justices, law professors, former bar association presidents and concerned citizens have signed an open letter calling on bar associations to disavow the Trump campaign attorneys’ conduct, and on disciplinary authorities to investigate, the advocacy group Lawyers Defending American Democracy announced this week.

Harvard constitutional law professor Laurence Tribe on Tuesday condemned President Donald Trump’s futile bid to overturn the 2020 election result. “Mr. Trump, you have lost,” Tribe said on CNN’s “Outfront” after the Supreme Court dismissed a Republican attempt to reverse Pennsylvania’s certification of President-elect Joe Biden’s win in the state. “You’ve got to move on,” the commentator continued, noting that the United States needs to focus on things like the coronavirus pandemic and national security, not litigating the election. Tribe asked Trump to “stop undermining democracy” and accused him of “trying to sow chaos” with his multiple lawsuits challenging the outcome of the vote. “You’re not going to get anywhere with these ludicrous efforts to overturn the election and to engineer a coup,” he added. “You are a loser.”

President Donald Trump ran his 2016 presidential campaign on the promise that he was an expert dealmaker, a political outsider whose expertise lay in the business realm. Yet curiously, the self-described dealmaker-in-chief passed up the chance to purchase millions of doses of Pfizer/BioNTech's novel coronavirus vaccine, a decision that will slow the rate at which Americans can access the vaccine. The company made several efforts to convince Trump to purchase more than the 100 million doses of the company's vaccine candidate that it had reserved over the summer for $1.95 billion, according to The New York Times. Yet Trump turned down the offers, which gave other nations like the United Kingdom the opportunity to lock them down first...Harvard law professor Laurence Tribe had his own speculative theory, tweeting, "Who among us would be surprised if Trump or some of those close to him had financial interests that accepting Pfizer's offer could have compromised? Isn't that very prospect a devastating indictment of the corrupt family running this administration?" Writing to Salon, Tribe observed that while "it's well beyond my capacity to conduct any such inquiry. I was careful in my tweet just to raise the question, not to offer an answer. Given the vast web of financial holdings in the Trump orbit, and this president's past history of corrupt dealings, it's a natural question to raise. And my main point was that the very fact such a question would seem plausible with respect to a sitting president is a sad comment on where we find ourselves."

The U.S. Supreme Court declined Tuesday a request to block the certification of Pennsylvania’s election results, a decision that could spell the end of the Trump campaign’s meritless efforts to overturn the presidential election results. In an order issued late Tuesday afternoon, the court denied a petition for injunctive relief from U.S. Rep. Mike Kelly, R-Pa., in a case that was dismissed last month by the Pennsylvania Supreme Court. The decision comes on “safe harbor day,” the federally mandated deadline by which states must resolve legal challenges to the certification of presidential elections...On Monday, Texas Attorney General Ken Paxton sued Pennsylvania, Georgia, Michigan and Wisconsin, seeking to prevent those states — all of which voted for Biden — from appointing Democratic electors and asking to delay the Electoral College meeting, which will happen on Dec. 14...Harvard University law professor and leading constitutional scholar Laurence Tribe told Yahoo News on Tuesday that the case, like the one in Pennsylvania, has no merit. “There’s clearly no legal procedure by which states can ask the Supreme Court to jump in and allow each of them to challenge the way others are picking their electors,” Tribe said. Article II of the Constitution says each state, through its legislature, determines how its electors are to be chosen. “Texas has no say in the matter of how Pennsylvania or Michigan or Wisconsin chooses its electors,” Tribesaid. “The attorney general of Texas should be ashamed of himself.”

It was a month before Donald J. Trump’s inauguration, and one of his aides had a delicate question: Wasn’t there going to be a backlash when it became known that the inauguration had spent donors’ money at Mr. Trump’s hotel in Washington, even though other places would cost much less or even be free? ... As Mr. Trump’s presidency comes to a close, expenditures like those are receiving renewed legal scrutiny in the form of a civil case being pursued by the attorney general for the District of Columbia. At the heart of the case is a question — whether Mr. Trump and his family have profited from his public role, sometimes at the expense of taxpayers, competitors and donors — that has been a persistent theme of his tenure in the White House...Lawsuits brought by nonprofit groups and attorneys general in Washington and Maryland claiming that Mr. Trump had violated the so-called emoluments clause of the Constitution were never resolved during his term and now face potential dismissal once he is out of power. “It is more than just frustrating,” said Laurence H. Tribe, a constitutional law professor at Harvard, who has been involved in the emoluments litigation. “The most serious questions about the abuse of presidential power and the use of the presidency as a center of personal gain and profit remain unresolved. The wheels of justice clearly ground more slowly than some would have hoped.”

Rudy Giuliani. Ivanka Trump. Joseph Maldonado-Passage, AKA Joe Exotic, star of the Netflix series Tiger King. And, just possibly, Donald Trump himself. These are some of the candidates mentioned as prospects for official pardons before the US president leaves office on 20 January. Such a spree would test the political and constitutional limits of a centuries-old power that echoed the British monarchy. It would also be revelatory of the potential legal jeopardy of Trump and his allies once they depart the White House...Many legal experts, however, contend that a self-pardon would be unconstitutional because it violates the basic principle that nobody should be the judge in his or her own case. Laurence Tribe, a constitutional law professor at Harvard University, argued in an email that it “flies in the face of the universally agreed proposition that the pardon power cannot be used as a license to commit future crimes”. He added: “The basic problem is that, if a president were able to pardon himself, he could commit crimes with impunity throughout his presidency. He could ransack the treasury, bribe the chief justice to overrule Roe v Wade, and shoot someone on Fifth Avenue knowing he could never be punished.” The nation’s founders saw the pardon power as a way to show the quality of mercy. While Trump might undermine their credibility in the short term, experts say he is not the first president to be accused of abusing pardons and is unlikely to do lasting constitutional damage.

A fascinating scene unfolded Thursday night on MSNBC’s “The Last Word” as host Lawrence O’Donnell had one of his assumptions about the Constitution tested by one of America’s leading constitutional law experts. O’Donnell explained why he believed the president probably has the power to self-pardon, but had his view put to the test by Harvard Law Prof. Laurence Tribe. Prof. Tribe noted that Article 3, Section 2 of the Constitution says the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” But Tribe noted the very next section says the president “shall take care that the laws be faithfully executed.” Tribe explained the significance of Article 3, Section 2. “It doesn’t say “except the criminal laws.” It doesn’t say ‘except when he chooses to violate the criminal laws.’ Now, if it were true, as Donald Trump said in the little segment you played, that the president has the absolute power to grant himself a power of pardon, to grant himself a pardon — which would be an odd way for the framers to have put it, you grant things to other people — if he had the absolute power to grant himself a pardon, if he knew that throughout his presidency, and if all presidents knew it, what would follow is that presidents do not have to follow the law,” Tribe explained. “They can’t be, according to the Justice Department, indicted while they’re in office, and if at any time they could pardon themselves…if that were the case then the president would not be below the law, he’d be above it.”

Laurence Tribe tells Lawrence O’Donnell that if Trump tried to pardon himself, his argument would not hold up in court because it goes against the principle that no one is above the law: “If that were the case, then the president would not be below the law, he’d be above it.”

President Donald Trump has talked with advisers about granting preemptive pardons to his children, to his son-in-law, and to his personal lawyer Rudy Giuliani, and talked with Giuliani about pardoning him as recently as last week, according to media reports. Given the scandals that have plagued Trump’s tenure in office and his past granting of pardons to close associates, observers believe the possibility of more pardons is real. Some believe Trump might even try to pardon himself. Here’s a quick roundup of what you need to know...A pardon is also not a get-out-of-jail-free card forever. It covers only crimes committed up to the point of pardon, Bowman said. Any crimes subsequent to that moment are fair game for law enforcement. “It can’t be used to avoid state and local prosecutions. It can’t be used to avoid civil liability, and it can’t be used to license future crime,” said constitutional scholar Laurence H. Tribe, an emeritus professor at Harvard Law School...Trump has raised the possibility that he might try to pardon himself. In 2018, he tweeted, “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?” Bowman and Tribe both said he was wrong about the law...Tribe said the idea of a self-pardon was “unprecedented” and went against a backdrop of 400 years of legal tradition that “you can’t be your own judge and jury.”

One of the nation’s leading legal experts has decried an alleged White House pardon bribery scheme as “an extreme abuse” of power in the final days of Donald Trump’s presidency amid new reports of the potential crime. Speaking to CNN on Tuesday night, Laurence Tribe, a Harvard Law professor and constitutional expert, broke down the laws surrounding presidential pardons — and explained why a “preemptive pardon” like the one discussed in news reports would be impossible for Mr Trump to grant one of his allies. “Everybody agrees that you can’t pardon someone ahead of the time that they actually commit a crime,” the professor said. “That kind of preemptive pardon is impossible, and yet when you are engaged in bargaining with somebody about a possible pardon at a time when they are still engaged in all kinds of shenanigans, you are essentially saying go ahead, commit crimes if you want, and retrospective I’ll give you the kind of sweeping pardon that I have now given Michael Flynn.” Mr Tribe spoke amid explosive reports based on newly-unsealed court records that indicated the Justice Department was probing the potentially criminal bribery scheme. The heavily redacted documents appeared to show prosecutors working to uncover a secret lobbying effort over "a substantial political contribution in exchange for a presidential pardon or reprieve of sentence.”

The Justice Department is investigating a potential crime related to funneling money to the White House or related political committee in exchange for a presidential pardon, according to court records. CNN's Erin Burnett and Harvard Constitutional Law Professor Laurence Tribe discuss.

An op-ed by Laurence H. Tribe and Michael C. Dorf: Balancing public health against the right to free exercise of religion poses a difficult challenge amid the COVID-19 pandemic. Accordingly, when cases from Californiaand Nevada reached the Supreme Court earlier this year, the justices deferred to the judgment of their governors, who are, after all, accountable to the people. But those cases were decided by narrow 5-4 margins before Justice Ruth Bader Ginsburg died in September. The court changed its tune late Wednesday night, when her replacement — Amy Coney Barrett — and the four earlier dissenters formed a new 5-4 conservative majority that invalidated restrictions on worship services in hot zones designated by New York Gov. Andrew Cuomo. The ruling in Roman Catholic Diocese of Brooklyn v. Cuomo, brought by Catholic and Orthodox Jewish congregations, was especially notable because it was unnecessary. As Chief Justice John Roberts explained in his dissent, by the time the court ruled, the New York houses of worship were no longer “subject to any fixed numerical restrictions.” The opinion, then, did nothing more than admonish New York to stop doing something it had already stopped doing. Even if the case wasn’t technically moot, there was no reason for the highest court in the land to intervene, without an oral argument or deliberation, to grant extraordinary relief.

A video and social media post claim that Australian Prime Minister Scott Morrison “helped” US president-elect Joe Biden violate the Logan Act when he made a congratulatory phone call to the Democratic leader. The video was posted to the Facebook page of Riccardo Bosi, a former Army special forces lieutenant-colonel and serial election candidate, who unsuccessfully contested the 2019 federal election for the Australian Conservatives and the 2020 Eden Monaro by-election as an independent. In October, he ran for the Sunshine Coast seat of Nicklin in the Queensland state election, finishing second last of the six candidates. The Faceook post includes a caption which reads, “SCOMO HELPED BIDEN VIOLATE THE LOGAN ACT” and a video with the same title as its cover image...Laurence Tribe, a professor of constitutional law at Harvard Law School, agreed, telling AAP FactCheck in an email the suggestion Mr Biden violated the Logan Act by speaking with Mr Morrison was without foundation. “(The Act) is in no respect applicable to this kind of entirely routine interchange between a president-elect and a foreign prime minister or head of state,” he said. “It is such a vague and nebulous restriction on discussions by private American citizens with foreign leaders that most constitutional scholars (including me) believe its application would be barred by the first amendment to our constitution.” It’s not the first time a US political figure has been accused of breaching the Logan Act due to their interactions with Australian representatives.