Laurence Tribe

On Monday’s edition of CNN’s “OutFront,” Harvard Law professor Laurence Tribe argued that President Donald Trump’s legal case to overturn the presidential election results was doomed to fail — even if he had had more knowledgeable and skilled legal counsel. “Let me ask you about the breaking news from the GSA,” said anchor Erin Burnett. “Emily Murphy, Trump appointee, said she was not pressured to do anything. Trump obviously seems to be clearly taking credit, I recommended she do this, I am the one calling the shots. You have been very clear that this withholding of a transition from the GSA and Emily Murphy, as the chief, could have been in violation of federal law. Do you believe any laws were broken in this delay?” “I do think that laws were broken in this delay, but I think the important thing now is to move forward,” said Tribe. “Whether it is her decision or Trump’s decision doesn’t matter. The fact is that we’re now fully into the transition and all of the harm she has done, which cannot be undone, a lot of people, I think, will die because she dragged her feet as much as she did.” “Now it’s without the slightest doubt, that Joe Biden is the president-elect,” said Tribe. “He will be the president of the United States. He’s forming his cabinet. He’s governing more from outside the government than our pathetic president is from within the government. And it’s very clear that there are no options left. And I do want to say that we shouldn’t simply focus on the ineptitude of his lawyers. It’s not as though if he had a better legal team, he could have done anything. When you don’t have a case, no facts, no law, even get the best lawyers in the world, you’re not going to win.”

An op-ed by Laurence H. Tribe and Joseph R. Grodin: President Trump’s cynical effort to enlist the courts in his attempt to retain power has failed miserably. Claims of voter fraud and other theories advanced on his behalf have consistently been rebuffed by judges of all political backgrounds, including judges with conservative reputations and federal judges appointed by Republican presidents — including Trump himself. While there are still a handful of cases pending, it is the consensus among lawyers and legal scholars that they are at best on tenuous life support. Trump’s apparent scheme to get a case to the US Supreme Court, with the all but explicit expectation that the justices that he has appointed will somehow join in supporting his fanciful claim of victory in the November election out of loyalty to him or his political cause, is almost certainly destined to defeat. At this time, there are no cases on their way to the Supreme Court that are likely to be heard or to matter. Nor is there any indication that the justices would do anything but follow the law, which is entirely clear on all the issues thus far raised in the dozens of lawsuits that Trump’s rapidly changing team of attorneyshas brought and, in virtually every instance, lost. On Jan. 20, Joe Biden will be sworn in as our next president, and this phase of Trump’s assault on the rule of law, on the peaceful transfer of power that has characterized our nation ever since John Adams passed the torch to Thomas Jefferson in 1801, and on our constitutional republic will be history.

President Donald Trump’s campaign filed notice that it was appealing the dismissal of a federal lawsuit that aimed to block Pennsylvania from certifying its election results unless the state invalidated tens of thousands of mail-in ballots. The campaign’s filing on Sunday, with the U.S. Court of Appeals for the Third Circuit in Philadelphia, had been expected. Trump attorney Rudy Giuliani has said the case should be decided by the U.S. Supreme Court, which has a 6-3 conservative majority. The move is unlikely to stop Pennsylvania from certifying President-elect Joe Biden’s victory in the state as soon as Monday. Trump has said his goal is to “decertify” the state’s results one way or another...Brann ruled both that the Trump campaign lacked standing to sue, and that it had not raised a valid equal-protection claim since Pennsylvania counties were not prohibited under state law from letting voters fix minor ballot errors. “It’s not law, it’s theater and it’s not very good theater,” Harvard Law School Professor Laurence Tribe, a frequent critic of Trump, said in a telephone interview. “It’s dangerous and damaging theater because it undermines the confidence of millions of people in our electoral system and legal system” for the president to be “bouncing in and out of court making outlandish claims,” he said. Tribe also said he doesn’t believes the Supreme Court would overturn Brann’s decision, even if it were to agree to hear the case.

President Donald Trump is trying to steal a free and fair election that he lost by a wide margin to President-elect Joe Biden by tearing at the most basic principle of American democracy: He's trying to throw out hundreds of thousands of votes. Trump's latest escalation of his attempt to subvert the result of the election followed a string of knock-backs in the courts and after a statewide audit in Georgia confirmed Biden's victory in the crucial swing state. He asked state Republican leaders in Michigan to visit him Friday, hinting at a possible attempt to convince them to ignore Biden's big win in the state and send a slate of electors to the Electoral College that backs him and not the President-elect... Laurence Tribe, a constitutional law professor at Harvard Law School, said Michigan lawmakers visiting the White House on Friday could be walking into an illegal meeting. "I am worried that any lawmakers who attend this ridiculous meet and greet are really attending a conspiratorial meeting to steal the election," Tribe told CNN's Erin Burnett. "There's no question that the meeting that is being held is illegal. There is no question that it really is designed quite corruptly to take away people's right to vote." Tribe says the Trump campaign has lost more than two dozen lawsuits. "It's quite clear that Republican, as well as Democratic judges, are going to follow the law when there is no ambiguity," Tribe said. "The only guy who seems to be uninterested in the law is Rudy Giuliani, and God knows what he is auditioning for."

And I thought I knew con law: Pigeons, corn pellets, and the transformative effect of Larry Tribe’s teaching The first lesson Larry Tribe taught me…

President Trump fired the nation’s top election security official, Chris Krebs, Tuesday over his agency's recent statement that called the 2020 election "the most secure in American history" — a statement that undermined Trump’s political attempts to falsely spin his election loss into a story about election fraud. To discuss this and other attempts by the Trump administration to undermine the legitimate results of the election, Jim Braude was joined by Harvard Law Professor Emeritus Laurence Tribe.

Kenneth Starr, former Whitewater independent counsel, and Laurence Tribe, constitutional law professor at Harvard, weigh in on 'Fox News Sunday.'

An op-ed by Laurence Tribe: Imagine raiding Versailles with a herd of bulls. You probably won’t make it past the gates, and you certainly won’t wind up King of France, but you would irreparably trample the gardens and might well erode the foundation. That’s more or less how I view Donald Trump’s current assault on the election. Let’s begin with the obvious: Joe Biden will become the 46th president of the United States on 20 January 2021. As Benjamin Wittes recently explained, “It is exceedingly difficult to steal an election in the United States.” I encourage interested readers to look through his analysis, which I believe is spot on. I’ll quickly sum up the legal arguments. Trump’s lawsuits will not award him the presidency. To win, Mr Trump must prove systemic fraud, with illegal votes in the tens of thousands. There is no evidence of that so far, and evidence of widespread fraud is unlikely to arise in an election that Trump’s own Department of Homeland Security just labeled “the most secure in American history”. His lawsuits are, as one commentator aptly put it, “too absurd to be even dignified as frivolous”. As of this writing, he is 0-12 in court, a batting average that would shame even a little league baseball player. His lawsuits are also mathematically useless. He has focused on 2,000 ballots in Michigan where, at the time of this writing, Biden leads by 148,645 votes. He’s challenging a whopping 180 ballots in Arizona, a state recently called for Biden with a lead of 11,434. Georgia’s short-lived lawsuit sought to shave 53 ballots off a 14,057-vote lead. Elsewhere, the math is much the same.

Supreme Court Justice Samuel A. Alito Jr. took aim at legal interpretations of a historic Massachusetts lawsuit, appeared to mock Cambridge, and slammed two New England senators as he offered an unusually blunt critique of coronavirus lockdowns and other measures in a speech to a conservative legal group. Alito’s Thursday address to the Federalist Society, which held its annual convention virtually due to the pandemic, overstepped the usual boundaries for a Supreme Court jurist and could undermine the public’s faith in the court, legal observers said. “This is a conservative justice’s grievance speech. … It’s the Federalist Society manifesto through the mouth of a Supreme Court judge,” said Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School. “I was stunned when I listened to it,” Gertner said of the livestreamed speech, in which Alito criticized the high court’s rulings in both recent and historic cases, including some on matters such as contraception access and coronavirus emergency orders that could come before the court again. Alito criticized the use of a 1905 Supreme Court decision in a Massachusetts case to justify COVID-19 restrictions — while taking a dig at Cambridge...Laurence H. Tribe, a Harvard Law School professor emeritus, said Alito’s remarks were “extremely unusual” and that it was “injudicious and highly inappropriate” for a Supreme Court justice to comment “on issues that are bound to return to the Court, like same-sex marriage and religious exemptions and restrictions on personal liberty designed to control the spread of COVID-19.” “He seriously compromised the integrity and independence of his role as a Supreme Court Justice by offering hints and intimations and sometimes all but explicit forecasts of how he would approach matters not yet briefed and argued before him in the context of a specific case or controversy,” Tribe said in an e-mail.

Harvard Law professor Laurence Tribe spoke with MSNBC’s Joy Reid Friday about the lawyers defending President Donald J. Trump, saying they have “an ethical obligation” and should be “ashamed” for “frivolous” lawsuits of this kind. Tribe said, “They are supposed to be officers of the court. There’s an ethical obligation. It’s true you can defend somebody who might be guilty, but helping someone undermine democracy and delegitimize the transfer of power, something we have done ever since John Adams handed the presidency over to Thomas Jefferson, is way beyond that. I think any lawyer worthy of the name would be ashamed to be involved in a frivolous lawsuits of this kind.” Tribe has an impressive 50 years under his belt at Harvard Law and has argued 36 cases before the U.S. Supreme Court. He is co-founder of the American Constitution Society.

On Thursday’s edition of CNN’s “OutFront,” Harvard Law professor Laurence Tribe suggested that President Donald Trump could face criminal charges if he reveals national security secrets after leaving office. “One former White House official said Trump asked about self-pardons, as well as pardons for his family,” said anchor Erin Burnett. “Could he do that, pardon himself and anyone he wanted to for any unknown criminal acts found subsequently before he leaves office?” “He can certainly pardon his family, but pardoning himself would be an extraordinary and unprecedented act,” said Tribe. “Hundreds of years ago, Lord Cook in England established a principle that has been accepted in American law for centuries, and that is you cannot be a judge in your own case. If he tries to pardon himself, I think in the end that pardon would not hold up. But predicting what a court would do with such an unprecedented exercise of power is hard.” “One thing we do know, he certainly cannot pardon himself vis-a-vis New York prosecution, either by Letitia James on behalf of the State of New York or by Cyrus Vance on behalf of Manhattan,” said Tribe. “State and local crimes, serious crimes, often punishable by years in prison, are not subject to the president’s pardon power. Another thing, we know he can’t pardon himself from the possible espionage he might commit after leaving office when he leaks secrets for his own benefit, classified information from his own government. He’s not good at keeping silent. Those future crimes are beyond the reach of the pardon power, vis-a-vis both the state and federal government.”

On Tuesday’s edition of CNN’s “OutFront,” Harvard Law professor Laurence Tribe suggested that lame-duck President Donald Trump could be guilty of a federal crime if he continues to refuse the peaceful transition of power following his election loss. “There’s nothing that Pompeo or Trump or any of those guys can do to prevent Biden from becoming the president,” said Tribe. “On January 20, at high noon, he becomes the president of the United States when he takes the oath. And any Trump administration official, including the president himself, who pretends to have power under the executive branch after that point is committing a federal felony, punishable by imprisonment, in addition to any other crimes they might have committed. It’s as though he’s going to build an alternative White House in Mar-a-Lago, and he will pretend to be president even though he’s not.” “When you look through all the cases they’re mounting, every challenge out there, do you see any legal challenge that the president could pursue right now that would change the outcome of this election?” asked anchor Erin Burnett. “Absolutely not,” said Tribe. “And to say that he hasn’t succeeded is an understatement. He’s 0 for 12 in the cases that I’ve counted. I’ve read the complaints. There’s nothing there.”

One rare political arena with bipartisan support is the movement to break up and curb the power of tech giants, particularly those operating in search and social media. Early reports indicate that President-elect Joe Biden is aware of this, and that his upcoming policy agenda may reflect that. Some of these reports come directly from the Biden campaign itself, with former head of press Bill Russo retweeting "Hell yes" to a Sacha Baron Cohen post that depicted outgoing President Donald Trump alongside Facebook CEO Mark Zuckerberg paired with the caption, "One down, one to go." There are also reports from reputable outlets like The New York Times, which on Tuesday revealed that Biden is not only expected to pursue an antitrust lawsuit filed against Google last month, but may pursue additional antitrust cases against Amazon, Apple and Facebook...One key difference between Trump and Biden is that the current president has made it clear he views his policies toward Big Tech as ways of inflicting punishment. In May, after threatening to "close down" social media platforms that fact-check him, Harvard Law professor Laurence Tribe told Salon by email that "the threat by Donald Trump to shut down social media platforms that he finds objectionable is a dangerous overreaction by a thin-skinned president. Any such move would be blatantly unconstitutional under the First Amendment." He added, "That doesn't make the threat harmless, however, because the president has many ways in which he can hurt individual companies, and his threat to do so as a way of silencing dissent is likely to chill freedom of expression and will undermine constitutional democracy in the long run."

President Donald Trump's campaign launched its broadest challenge yet to the results of the election that appears destined to push him from office, accusing Pennsylvania officials of running a "two-tiered” voting system – in-person and mail – that violates the U.S. Constitution. Legal experts said the case has little chance of succeeding, for a variety of reasons: Courts are wary of invalidating legally cast ballots. The issues raised, even if true, don't represent a constitutional question. And mail voting, used in many states, is both common and constitutional...Laurence Tribe, a constitutional law expert at Harvard Law School, said the lawsuit "fails to allege facts sufficient to support a conclusion that the relief sought would alter the election's result – a key difference between this complaint and the submission leading the Supreme Court to intervene in the state recount in Bush v. Gore" in 2000. As of Monday, Biden led in Pennsylvania by more than 45,000 votes – greater than Trump’s lead when he won Pennsylvania in 2016.

Joe Biden has won the US presidential election, securing more than the 270 electoral college votes needed to win the race for the White House. Biden was projected by CNN, the Associated Press and other major news outlets, including the right leaning Fox News, as the winner of Pennsylvania on Saturday, taking his total to more than 284 electoral votes, above the threshold needed to clinch victory. But over the past few days, incumbent US President Donald Trump has repeatedly made it clear he won't consider a Biden victory legitimate...It's unlikely Trump will give Biden a congratulatory or concessionary phone call anytime soon, but what happens if he refuses to concede defeat? Following Saturday's announcement, Biden is expected to be sworn in as president at noon on 20 January 2021. At that point, Trump would become a private citizen with no authority or standing in the White House...Laurence Tribe, an American legal scholar and professor at Harvard University, said that regardless of what Trump says he will do, his "concession isn't necessary or even relevant". "The law is clear that the Joint Session of the new Congress that convenes on January 6, 2021, counts the Electoral Votes and designates the winner as the president-elect, who takes the oath as the 46th president of the United States at noon on January 20, 2021," Tribe told Middle East Eye. "Having been defeated, Trump will have no way to exercise presidential power after that point. Federal law makes it a crime for any private citizen to purport falsely to act as an executive officer. That law would apply to Trump, Pompeo, Barr, Mnuchin, DeVoss, and the entire Trump cabinet. Each member’s term ends no later than noon next January 20."

President Trump has made no secret of his intention to file legal challenges in key states where election results were close, citing the possibility of voting fraud. For months, he has criticized the nationwide expansion of mail-in balloting, a longstanding practice that gained ground rapidly because of social-distancing concerns during the pandemic. Trump filed lawsuits Wednesday to stop vote counts in Pennsylvania and Georgia, along with Michigan, shortly before the Associated Press said his opponent, former Vice President Joe Biden, had won the state. Officials are still counting votes in Nevada, Arizona, and Pennsylvania, which only started tallying more than 3 million mail-in ballots on election night...But scholars are not convinced there’s a plausible argument that the president’s legal team could make in these new actions that would prove successful in court. “There’s no claim I can think of that would shut down the counting of lawful, valid mail-in ballots in Pennsylvania,” said Harvard Law School Professor Nicholas Stephanopoulos, who studies election law...Though the president nominated hundreds of judges to the federal bench during his tenure, the courts aren’t likely to simply go along with the president’s demands, analysts said. “I think the very fact that the president has advertised that they are ‘his’ judges that he’s relying on to stop the counting both dares them to assert their independence in a way that is going to make it less likely that they will depart from what is a normal legal way of thinking about this and, ironically, undermines the effort he’s likely to make, [which is] to claim that Biden is somehow an illegitimate president because it will be Trump’s own judges who will be rebuffing his attempts,” said Laurence Tribe, Carl M. Loeb University Professor emeritus at Harvard Law School.

Donald Trump is fighting to hold on to the White House. If he loses, an outcome that is growing increasingly likely, the protections afforded to him by the presidency will vanish. His status as president has protected him so far, but Trump could be slammed with a pile of personal lawsuits should he fail to secure re-election. The businessman and reality TV star is likely to face a litany of potential criminal suits, ranging from emoluments to rape charges, if Joe Biden secures enough electoral college votes on Tuesday. Trump's biographer David Johnston has even warned that the incumbent could face jail time once he leaves the Oval Office... “There are likely to be many federal crimes that investigation following Trump’s departure from office would reveal – crimes involving federal income tax evasion, wire fraud, bank fraud, insurance fraud, money laundering, and campaign finance law violations," Laurence Tribe, a professor at Harvard University, told Middle East Eye. The New York attorneys on the case have filed a subpoena for eight years of Trump's taxes, which the president tried blocking multiple times. In July, Trump lost an appeal that ruled he is not liable to a subpoena from a state grand jury. Tribe said that "no presidential pardon could operate to shield Trump or anyone else from such state prosecutions".

Lawsuits over voter access and vote counts have already become a major battleground of the 2020 general election. If results are close, then post-election court rulings may be the deciding factor in whether Donald Trump or Joe Biden is sworn in as president next year. This past week the president said he wants courts to step in and prevent ballots from being counted beyond election night. The Trump and Biden campaigns ought to be on a level playing field in any court dispute, just as they should be at the ballot box. But what if the president wields the Justice Department as a sword to influence the courts’ decision-making? ... The first way Barr could co-opt the Justice Department to aid Trump’s reelection campaign would be by having the department directly intervene in any resulting litigation. This would be an unparalleled and deeply inappropriate action, but one that is not a terribly far leap from Barr’s current attempt to use the Justice Department to personally defend and protect Donald Trump. When asked about the possibility of such a court intervention, constitutional scholar Laurence Tribe, who served as a lead counsel for then-Vice President Al Gore in litigation over the 2000 Florida election recount, told us, “I would’ve been shocked and appalled to see Clinton’s DOJ weighing in during Bush v. Gore.” ... However, the extreme nature of Justice Department intervention in the issue might not be enough to stop Barr ... This would cause a variety of harms. First, having the Justice Department intervene would improperly aid the Trump campaign’s arguments in court, granting an added air of legitimacy and potentially tipping the scales of justice in what is supposed to be an even dispute between campaigns. According to Tribe, “the credibility, personnel, and financial resources of the department exceed those of any private attorney or firm, and the fact that it speaks in the name of the United States gives it enormous influence. Its arguments come with the cloak of official legitimacy even when its interests are in fact those of the incumbent president who seeks reelection.”

Don could run out of Teflon if he loses the election. Trailing in the polls a day before the election, President Trump faces the very real prospect of swapping the White House for the Big House. He’s directly implicated in campaign finance crimes and is under investigation by both Manhattan District Attorney Cy Vance and New York State Attorney General Letitia James for alleged fraud in his business dealings. On top of that, he faces civil defamation lawsuits from women accusing him of sexual assault...Harvard University constitutional law professor Laurence Tribe said the James and Vance investigations should be of “greatest concern” to Trump. The scholar, who advised top House Democrats during Trump’s impeachment, said it’s “almost inevitable” that the president will be criminally charged should he lose the election. “The investigations of greatest concern would focus on Trump’s seemingly criminal financial manipulations — bank and insurance fraud in knowingly falsifying his income, his wealth and the value of various assets,” Tribe said... “The degree to which post-presidential prosecution is discussed during the current election tells us that this has been a presidency so mired in apparent criminality, from the top on down, that just about everyone knows a major incentive for Trump to stay in office as long as he can is to exploit the Justice Department’s policy against indicting a sitting president,” Tribe said.

An op-ed by Laurence H. Tribe and Steven V. Mazie: After handing down orders in a spate of challenges to states' efforts to make voting easier during the coronavirus pandemic, the Supreme Court is catching its breath. But the pause may be short-lived. In several opinions that conservative justices have issued over the past week, a radical idea is rising from the ashes, resurrecting language from one of the most fraught decisions in the court’s history. Four justices — Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas — have resuscitated a half-baked theory three justices espoused in Bush v. Gore to let Republicans trash ballots after Election Day. Chief Justice John Roberts has not joined his four colleagues in this misadventure. But if the recently seated Justice Amy Coney Barrett sides with the quartet, America could be in for a battle that makes Bush v. Gore look tame. By shutting down a recount in Florida that could have put Al Gore over the top in the 2000 election, the Supreme Court effectively handed George W. Bush the keys to the White House. The majority reasoned that disparate methods for interpreting the infamous “hanging chads” on Florida’s punch-ballots denied the state’s voters the equal protection of the laws, violating the 14th Amendment. But then-Chief Justice William Rehnquist, joined only by Scalia and Thomas, would have gone further. In a concurring opinion, he scolded Florida’s Supreme Court for misapplying the state’s election law. He leaned on the electors clause of the Constitution, which says “each State shall appoint” its slate of presidential electors “in such manner as the legislature thereof may direct.” By meddling with what Florida’s legislature had done, Rehnquist concluded, its highest court had violated the Constitution.

President Trump has more at stake in this election than whether he remains in the White House. Holding the highest office in the land grants him effective immunity from federal criminal prosecution and gives him wide powers to stymie lawsuits against him and his business. That all changes once he becomes an ordinary citizen again. “Whatever shelters he has had as an occupant of the White House would vanish,” says Laurence Tribe, a constitutional law professor at Harvard and frequent Trump critic. “His ability to throw his weight around in terms of the deference that judges exercise—all of that is gone.” A federal prosecution of Trump would be political dynamite, and a President Joe Biden may choose not to detonate it. But a new administration could decide to revive Special Counsel Robert Mueller’s investigation into obstruction of justice by Trump or launch a new probe into the questionable tax deductions the New York Times revealed in a recent investigative report. Trump is also facing an active investigation by the Manhattan district attorney that could result in state criminal charges...Here are the major legal threats facing Trump, and how a defeat in November would affect them...Trump has long been able to argue that he’s too busy as president to deal with lawsuits, and courts have generally given him broad deference as head of the federal government’s executive branch. He would not get that deference as a former president and could be forced to sit for a deposition. Like Vance, James would probably find it easier to get information or cooperation from others. “The hesitation on the part of third parties who are the holders of potentially very incriminating information will evaporate once he’s no longer president,” Tribe says.