Laurence Tribe

Harvard constitution law professor Laurence Tribe shot down the Trump impeachment counsel’s signaled First Amendment defense of Donald Trump in next week’s Senate trial for inciting an insurrection. Spinning off the “Can’t yell ‘Fire!’ in a crowded theater” trope about the limits of free speech, Tribe compared the former president’s incendiary, false claims to “being the fire chief and urging a mob to burn the theater down.” Speaking with CNN’s Erin Burnett on Tuesday night, Tribe, who has assisted the House Democrats’ impeachment team, spoke in response to a brief, New York Times interview with Trump impeachment counsel David Schoen. The lawyer cited the former president’s right to speak his mind and shifted the blame for the Capitol riot fully on those allegedly misinterpreted Trump’s comments: “We can’t control the reaction of the audience.” “It’s a First Amendment defense. Will it hold up?” Burnett asked. “I don’t think so. It’s a very serious point, but it’s wrong,” Tribe said. “I don’t know anybody who is a stronger First Amendment advocate than I am, but I fully recognize that there is a difference between the right of an ordinary citizen to express herself passionately and the right of someone to run for president, take the oath as president and then stand by the presidential seal in front of the white house and urge an angry mob to burn it down. To go to the Capitol and basically take it over.”

A group of House Democrats overseeing the impeachment case against former President Donald Trump laid out their argumentTuesday morning on the constitutionality of impeaching Trump for allegedly inciting the deadly Capitol riot during the counting of Electoral College votes on Jan. 6. Trump was impeached by the House on Jan. 13 on an incitement charge for his role in the attack that left at least five people dead and led to federal criminal charges against more than 90 individuals. He’s now set to stand trial in the Senate on Feb. 9... “The House memo dispatches that ‘protected speech’ argument neatly,” Harvard Law professor and constitutional scholar Laurence Tribe, whose work is cited in the memo, told Yahoo News via email, “explaining why the protections for speech by private citizens have no place in the context of impeaching a former president and why the standards of Brandenburg v. Ohio, even if applicable, would be easily met by the way Trump actively aimed an angry mob at the Capitol, incited their attack on lawmakers and police, and then sat by and watched the havoc the mob wrought without lifting a finger to stop the devastation, something a private citizen would’ve been powerless to do but that a sitting president could easily have done.”

The Senate vote showing 45 Republican senators willing to brush off the impeachment trial makes it more imperative than ever to have a criminal trial on the merits in a setting where evidence can be taken seriously and spurious objections dismissed. Adding to the urgency of a criminal proceeding is former president Donald Trump’s decision to sack most of his legal team, headed by Karl S. “Butch” Bowers, with just a little more than a week before his Senate trial...A criminal trial could provide a severe deterrent for future presidents who attempt to retain power through violence. It is not enough to mouth the empty platitude that the ex-president’s behavior was “unacceptable” if there are no adverse consequences. Without punishment, his failed coup would remain an open invitation to future presidents to try the same sort of power grab. Constitutional scholar Laurence Tribe observes, “Impeachment is about getting rid of officeholders who endanger the republic by abusing their powers, not about punishing them for their crimes. Punishment still must be meted out if the rule of law is to be respected and wrongdoers are to be held accountable.”

Former President Donald Trump’s last-minute remake of his impeachment defense team leaves little time to prepare for arguments that are scheduled to start next week in the Senate trial over whether he incited the Jan. 6 insurrection at the U.S. Capitol. Trump announced on Sunday night that attorneys David Schoen and Bruce L. Castor Jr. will head his defense, after his previous lawyers led by Butch Bowers of South Carolina withdrew, with Trump’s initial response to the impeachment charge due Tuesday and the trial set to start Feb. 9...Jonathan Turley, a George Washington University professor who spoke on a Republican caucus call last week right before most senators voted that trying a president out of office is unconstitutional, said it’s reasonable for Trump to seek a trial delay to give new attorneys time to prepare if he wants it. But it’s not clear that Democrats would agree to such a request. Senate Democrats already pushed the start of the trial back two weeks to allow President Joe Biden some time to install his cabinet. Harvard University law professor Laurence Tribe said such a move would essentially allow Trump to “run out the clock” by retaining new lawyers. “No competent judge would let a defendant play this kind of endless game and essentially give the defendant control over the timing of the proceeding,” said Tribe, a frequent Trump critic.

The question of whether former president Donald Trump can be convicted at an impeachment trial now that he has left office is likely to be settled by political muscle rather than the Constitution, which is murky on the matter and provides support for those on both sides of the issue, experts said Wednesday. Although many legal scholars take the view that a president can be tried by the Senate even when he is no longer president, they acknowledge there is enough ambiguity in the Constitution for Republicans to embrace as reason not to convict Trump at his trial set to begin Feb. 9...Among those leading the arguments on both sides are legal heavyweights Laurence Tribe, a Harvard Law School scholar, and Luttig, the former judge. The two frequently exchange emails on constitutional issues, most recently about this subject, and express great admiration for each other even when they vigorously disagree. The Senate does not lose its power to hold an impeachment trial just because the official is no longer in office, Tribe said, in part because it has the authority to disqualify the person from holding future office. Although a powerful argument could be made that Congress cannot impeach a private citizen, he said, Trump was impeached by the House while still in office. If an official could only be disqualified while still in office, that person could avoid accountability by resigning just before a final conviction vote in the Senate, he said.

Bracing for the prospect of a likely acquittal, Senate Democrats are eyeing a rapid-fire impeachment trial for former president Donald Trump — as short as one week — while also contemplating alternatives such as censure that could attract more support from Republicans...Sen. Tim Kaine of Virginia said he was likely to file a censure resolution that would serve as an alternative to convicting Trump on the impeachment charge...Kaine is pitching his censure resolution to Republicans as a potentially more politically palatable alternative to convicting Trump and barring him from future office. But he is also making the case to Democrats that his resolution would have much the same effect as a conviction, by condemning the former president and laying the foundation to keep him from returning to the presidency under the terms of the 14th Amendment...Laurence Tribe, a Harvard Law professor, said invoking the 14th Amendment provision is “much more complex than some people assume” and said simply passing a resolution as Kaine is proposing would not be sufficient to bar Trump from office. “I worry about the cop-out of a condemnatory censure, which Senators shouldn’t be led to think gets them off the hook of having to convict the former president under the Article of Impeachment,” he wrote in an email.

Senate Republicans voted Tuesday for a measure that would have declared the impeachment proceedings against former President Donald Trump unconstitutional because he is no longer in office. The motion, by Sen. Rand Paul, R-Ky., was defeated by a vote of 55-45, showing that Democrats have an uphill climb to secure the 67 votes needed for a conviction. Among those who voted for the motion was Senate Minority Leader Mitch McConnell, R-Ky., who has said he is undecided whether to convict Trump and who worked on the trial calendar with Senate Majority Leader Chuck Schumer, D-N.Y...Democrats maintain that they have precedent on their side. While no president has been tried by the Senate after having left office, Secretary of War William Belknap was tried in the Senate in 1876 after he had already resigned. And other legal experts, such as Harvard law professor Laurence Tribe and University of Texas law professor Steve Vladeck, say the trial is constitutional because one of the considerations for the Senate is whether to bar Trump from future federal office. Democrats note that Trump was impeached by the House while he was still in office, and they maintain that a trial is necessary to hold him accountable for what Schumer called "the most despicable thingany president has ever done," inciting a riot at the Capitol while a joint session of Congress was counting the Electoral College vote.

As part of the response to the Jan. 6 attack on the U.S. Capitol, the Biden administration will treat white supremacist violence as a national security threat. White House press secretary Jen Psaki made this clear in a news briefing on Friday: “The Biden administration will confront this threat with the necessary resources and resolve,” she said...Despite analysis showing the rising threat of domestic terrorism, the previous administration declined to undertake a major initiative to study or address it...Conservative resistance to cracking down on such groups — ostensibly based on the fear that they would become targets (a telling indictment of the degree to which white supremacy has become part of right-wing rhetoric) — may subside given the attack on Congress and threats against former vice president Mike Pence. Constitutional scholar Laurence H. Tribe tells me, “This seems a sensible and urgently needed step to evaluate and address what we know has been a rising problem, one considerably more urgent than even international terrorism.” He adds, “To approach it systematically and on the basis of data rather than mere hunch and instinct looks like a refreshing signal of what the new administration portends.”

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.