Laurence Tribe

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.

In the closing days of his presidency, Donald Trump has demonstrated that he can make innumerable false claims and assertions that millions of Republican voters will believe and more than 150 Republican members of the House and Senate will embrace ... In the academic legal community, there are two competing schools of thought concerning how to go about restraining the proliferation of flagrant misstatements of fact in political speech ... Rebecca Tushnet, a law professor at Harvard, wrote by email: “Those are some big questions and I don’t think they have yes-or-no answers. These are not new arguments but they have new forms, and changes in both economic organization and technology make certain arguments more or differently salient than they used to be.” ... Lawrence Lessig, a law professor at Harvard...wrote by email, that “the First Amendment should be changed — not in the sense that the values the First Amendment protects should be changed, but the way in which it protects them needs to be translated in light of these new technologies/business models.” ... Randall Kennedy, who is also a law professor at Harvard, made the case in an email that new internet technologies demand major reform of the scope and interpretation of the First Amendment and he, too, argued that the need for change outweighs risks: “Is that dangerous? Yes. But stasis is dangerous too. There is no safe harbor from danger.” ... In one of the sharpest critiques I gathered, Laurence H. Tribe, emeritus professor at Harvard Law School, wrote in an email that, “We are witnessing a reissue, if not a simple rerun, of an old movie. With each new technology, from mass printing to radio and then television, from film to broadcast TV to cable and then the internet, commentators lamented that the freedoms of speech, press, and assembly enshrined in a document ratified in 1791 were ill-adapted to the brave new world and required retooling in light of changed circumstances surrounding modes of communication.”

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."