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Laurence Tribe

  • ‘We have lost a giant’: Ruth Bader Ginsburg (1933-2020)

    September 19, 2020

    U.S. Supreme Court Justice Ruth Bader Ginsburg ’56-58, whose lifelong fight for equal rights helped pave the way for women to take on high-profile roles in business, government, the military, and the Supreme Court, died on Sept. 18. She was 87. “Justice Ginsburg personified the best of what it meant to be a judge. She brought a deep intellectual and personal integrity to everything she did,” said John F. Manning ’85, Morgan and Helen Chu Dean and Professor of Law at Harvard Law School. “... We have lost a giant.” ... “Very few individuals in history come close to the extraordinary and significant role played by Justice Ginsburg in the pursuit of justice before she joined the bench,” said former Harvard Law School Dean Martha Minow, the 300th Anniversary University Professor at Harvard. ... “The Constitution’s heart aches at Ruth Bader Ginsburg’s passing,” Laurence Tribe ’66, the Carl M. Loeb University Professor, Emeritus, at Harvard Law School. ... Harvard Law School Professor Daphna Renan, who served as a law clerk for Justice Ginsburg during the 2006-2007 term, said: “RBG was tenacious, unflappable, and deeply wise.

  • ‘We have lost a giant’: Ruth Bader Ginsburg (1933–2020)

    September 18, 2020

    U.S. Supreme Court Justice Ruth Bader Ginsburg ’56-58, whose lifelong fight for equal rights helped pave the way for women to take on high-profile roles in business, government, the military, and the Supreme Court, died on Sept. 18. She was 87.

  • Trump should be held accountable for any reckless endangerment at his rallies

    September 15, 2020

    If a president in the performance of his duties lies or intentionally holds back vital information, Americans can die. That was the main takeaway from the Pentagon Papers, which showed multiple presidents understood we were not winning and could not win the Vietnam War but continued sending troops. History almost certainly will find an even more clear-cut example of mendacity in President Trump’s decision to lie about the lethality of the novel coronavirus. We have his own words attesting to his knowledge of the virus’s deadly effects, his confession that he downplayed the threat and reliable estimates of the tens of thousands of Americans who could have been saved had he acted swiftly and responsibly. Trump was certainly carrying out his duties as president (however poorly), so he’s at no risk of criminal or civil liability. This was a moral failing. But what about activities that were specifically not official and were identified as campaign events outside his role as president? In June, Trump held a rally in Tulsa, at a time he knew the virus was airborne and deadly. He also recently held massive indoor rallies in Nevada and Arizona in which the audiences were tightly packed together and masks were not required...Constitutional expert Laurence Tribe explains, “I think Donald Trump’s deliberate exposure of people attending his rallies without masks and without social distancing, given all he has admitted on tape that he knows about how covid is transmitted and how deadly a virus it is, would qualify for state criminal prosecution.” Tribe dismisses arguments that Trump’s rallies are protected by the First Amendment by describing the events as more akin to “tossing firebombs into a crowded theater than merely shouting ‘Fire!’ when there is none and causing a deadly panic.” He adds, “Trump is literally creating a situation in which his audience of thousands ought to be running for the exits to minimize the risk that they will at least become spreaders of a deadly virus but will instead remain in place while Trump holds their attention long enough to make many of them sick. That’s civilly and criminally actionable as reckless endangerment, in my view.”

  • Oracle to partner with TikTok after Trump forces social media app to sell off US operations

    September 15, 2020

    Oracle, the California-based computer technology corporation, announced Monday that it will serve as a business partner, or "trusted technology provider," for the Chinese social media app TikTok. The ownership of TikTok has become politicized lately over unproven beliefs that the company shuttles private user information to the Chinese Communist Party, an assertion that President Trump appears to buy into and which administrative officials say motivated him to sign an executive order that would force TikTok to divest its assets in the United States and relinquish data it had gathered in the US. The news about Oracle partnering with TikTok broke shortly after Microsoft announced that it had been unable to close a deal to purchase the app's US operations...Neither Oracle nor TikTok elaborated on the nature of their arrangement, including whether or not it involves Oracle outright purchasing the company or striking some kind of partnership with them. Oracle itself has strong financial and legislative ties with two congressional Republicans close to the Trump administration, Sen. Steve Daines and Rep. Greg Gianforte, both from Montana. TikTok has faced fire from the Trump administration since July, when Secretary of State Mike Pompeo hinted that Trump was thinking of taking action against TikTok and declared that Americans should only use the short-form video app "if you want your private information in the hands of the Chinese Communist Party." Pompeo made these remarks shortly after TikTok users embarrassed the president by leading a successful campaign to reserve hundreds of thousands of tickets for a Trump rally in Tulsa, which caused the president's campaign to significantly overestimate their anticipated attendance and left most of the stadium empty... "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," Harvard Law professor Laurence Tribe told Salon by email at the time. "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."

  • Harbor from the Holocaust

    September 14, 2020

    Harbor from the Holocaust is the story of nearly 20,000 Jewish refugees fleeing Nazi-occupied Europe during World War II, to the Chinese port city of Shanghai. Explore the extraordinary relationship of these Jews and their adopted city of Shanghai, even through the bitter years of Japanese occupation 1937-1945 and the Chinese civil war that followed. Featuring Harvard professor Laurence Tribe.

  • Trump signs memo to defund ‘lawless’ cities but experts raise legality doubts

    September 4, 2020

    Donald Trump signed a memo on Wednesday that threatened to cut funding to Democratic-led cities that the administration has characterized as “lawless” and “anarchist jurisdictions”, using his office to launch an extraordinary – if legally ineffective – attack on his political opponents ahead of the November election. “My administration will not allow federal tax dollars to fund cities that allow themselves to deteriorate into lawless zones,” the memorandum reads. “It is imperative that the federal government review the use of federal funds by jurisdictions that permit anarchy, violence, and destruction in America’s cities.” The document compels William Barr, the attorney general, to develop a list of jurisdictions that “permitted violence and the destruction of property to persist and have refused to undertake reasonable measures to counteract these criminal activities” within the next fortnight. It also instructs Russell Vought, the White House budget director, to issue guidance in the next month on how federal agencies can restrict or disfavor “anarchist jurisdictions” in providing federal grants...Even if federal agencies are able to find justification to reduce funding to certain cities, perhaps via grants linked to law enforcement, any funding restrictions are unlikely to hold up to legal challenges, he added. “The president obviously has no power to pick and choose which cities to cut off from congressionally appropriated funding,” said Laurence Tribe, a constitutional law scholar at Harvard, and recently the co-author of To End a Presidency: The Power of Impeachment. Trump “has no defunding spigot. The power of the purse belongs to Congress, not the Executive. Donald Trump must have slept through high school civics,” Tribe said in an email.

  • Longtime Oregon Supreme Court justice and Eugene resident Hans Linde dies at age 96

    September 4, 2020

    Oregon law professor who rose to national prominence as an Oregon Supreme Court justice, died Monday. He was 96. Linde was regarded as a prolific legal scholar who made groundbreaking arguments in the role that state constitutions could play in protecting civil liberties. “Hans Linde was one of the giants of the American judiciary,” Harvard law professor Laurence Tribe said. “His brilliant work both as a law professor, and for a little over a dozen years as a justice on Oregon’s highest court, addressed not just important issues of state law but also unsettled questions of federal constitutional law in a series of opinions, articles and books that were justly influential throughout the nation and ultimately the world.” Linde became an associate law professor at UO in 1954, spent the next four years as a legislative assistant to Oregon Sen. Richard Neuberger and returned to the UO law school as a professor in 1959...Tribe, the Harvard law professor, said Linde's work to ensure civil liberties is as important today as ever. "In a time when the very survival of our constitutional republic is under threat," Tribe said, "work that he did decades ago is likely to come to the fore and provide a fertile resource for scholars, lawyers and judges struggling to save constitutionalism and the rule of law."

  • El Paso Looks To Send Border Wall Suit Straight To Justices

    September 3, 2020

    El Paso County, Texas, and an immigration advocacy group urged the U.S. Supreme Court on Wednesday to take up their challenge to President Donald Trump's diversion of billions in defense dollars to border wall construction before the Fifth Circuit weighs in. El Paso and the Border Network for Human Rights request to leapfrog over the Fifth Circuit contends that their challenge to the border wall transfers poses different legal questions than the ones the Sierra Club used to convince a California court to put a nationwide bar on the funding diversions. The Trump administration has asked the Supreme Court to review the California injunction order, which was upheld by the Ninth Circuit. But El Paso argued that the high court must hear all the border wall challenges at once to fully resolve the issue...Laurence H. Tribe, a Harvard University Law Professor and co-counsel for the plaintiffs, pointed out that the Supreme Court has allowed the government to skip the court of appeals and bring a case right to nation's justices. "[The Supreme Court] should certainly grant El Paso County's request to have the issues in its case heard now," he said in a statement. The Supreme Court granted two "cert before judgment" petitions over the Trump administration's rescission of the Deferred Action for Childhood Arrivals program at the request of the solicitor general, according to the instant petition...El Paso and the border group are represented by Kristy Parker, Justine Florence and Deana K. El-Mallawany of The Protect Democracy Project Inc., Richard Mancino and Shaimaa M. Hussein of Willkie Farr & Gallagher LLP, Anton Metlitsky, Bradley N. Garcia and Ephraim McDowell of O'Melveny & Myers LLP, Stuart Gerson of Epstein Becker Green, David Bookbinder of Niskanen Center and Laurence H. Tribe of Harvard Law School.

  • Hans A. Linde, Iconoclastic Legal Scholar, Dies at 96

    September 3, 2020

    Hans A. Linde, a prolific legal scholar who served on the Oregon Supreme Court and made groundbreaking arguments about the role that state constitutions can play in guarding civil liberties, died on Monday in Portland. He was 96. His death was confirmed by his son, David, the chief executive of the film and television production company Participant...In the early 1970s, as the U.S. Supreme Court grew more conservative following President Richard M. Nixon’s appointment of four justices, Justice Linde published articles urging lawyers to bring civil rights cases in state courts and to make arguments grounded in the provisions of state constitutions. Those provisions often offered protections beyond those guaranteed by the federal Bill of Rights, he wrote, and decisions made on purely state-law grounds are generally not subject to review by the U.S. Supreme Court “Much of the stuff that goes to the Supreme Court would never have to go there,” Justice Linde said in an interview with The New York Times in 1990, the year he retired from the bench, “if lawyers abandoned this notion that the federal courts are the big leagues and the state courts are the farm teams.” Lawyers listened. Many of the gay rights movement’s early judicial victories, for instance, were won in state courts...Indeed, Justice Linde’s scholarly and judicial work was wide-ranging and penetrating, touching on free expression, the death penalty, contracts, torts and criminal law. “Hans Linde was one of the giants of the American judiciary,” the Harvard law professor Laurence H. Tribe said by email. “His brilliant work both as a law professor, and for a little over a dozen years as a justice on Oregon’s highest court, addressed not just important issues of state law but also unsettled questions of federal constitutional law in a series of opinions, articles and books that were justly influential throughout the nation and ultimately the world.”

  • Congress should warn Trump’s lawbreakers that there will be consequences

    August 31, 2020

    With about two months to go until Election Day, President Trump has abandoned any pretense of following, let alone enforcing, the laws he has sworn to uphold. He directed government employees to assist him in putting on a political extravaganza at the White House. His secretary of state dialed in from Jerusalem for a purely political role as Trump’s cheerleader at the Republican National Convention, in violation of both the Hatch Act and his own departmental guidelines. Trump instructed his director of national intelligence to refuse to brief members of Congress in person on efforts to disrupt the 2020 election, a choice House Speaker Nancy Pelosi (D-Calif.) and House Intelligence Committee Chairman Rep. Adam B. Schiff (D-Calif.) declared “a shocking abdication of its lawful responsibility to keep the Congress currently informed, and a betrayal of the public’s right to know how foreign powers are trying to subvert our democracy.” And Postmaster General Louis DeJoy has instituted measures that have slowed the mail, even as more Americans will rely on the Postal Service to cast their ballots. The way to handle Trump is to beat him at the polls. But what about the aides who participate in illegal activities or block Congress from performing oversight? ... “It’s well past time for Congress to lose its subpoena inhibitions, now that the Roberts court has unanimously rejected the administration’s claims of absolute presidential immunity in a ringing reaffirmation of the principle that no executive official is above the law,” says constitutional scholar Laurence Tribe. “The White House participants who engaged in flagrant Hatch Act violations should all be held in contempt if they defy facially valid congressional subpoenas, and there’s no legitimate basis for the new administration to give such participants a bye just because the president personally isn’t covered by the Hatch Act.”

  • The Bush-Gore Recount Is an Omen for 2020

    August 18, 2020

    Twenty years ago this fall, the United States was plunged into 36 days of turmoil as lawyers, judges, political operatives, and election workers grappled with the uncertain result of the presidential contest in Florida. Whoever won the state would win the presidency. In the end, after start-and-stop recounts and the intervention of courts at every level, Texas Governor George W. Bush, the Republican candidate, was declared the victor, edging out Vice President Al Gore, the Democrat. The story of the 2000 Florida recount offers a reminder of just how chaotic the electoral process can become—and of how disarray in a single state can undermine faith in the democratic process nationwide...The account here, drawn from interviews with more than 40 people with firsthand experience of the Florida-recount saga, is both a history and a warning...On Friday, November 24, the U.S. Supreme Court agreed to review the Florida Supreme Court’s ruling in favor of Gore. Two days later, on Sunday night, Katherine Harris certified the vote tally in Florida, and Bush’s lead stood at 537 votes. Some recount results were excluded—the results from Palm Beach County had arrived two hours late. Miami-Dade had stopped its recount. Laurence Tribe (Gore lawyer): Ron Klain called, and he said, “We really need help. It looks like there is an issue about federal-court intervention with the electoral recount, and we need you to fly down to Florida immediately.” The question of whether, as a matter of federalism, this is an appropriate intervention was very much up in the air. The next morning, I appeared in federal court, and I remember arguing that it was inappropriate for a federal court to intervene at this point. If there were any constitutional issues about the recount, they could be properly handled at the state level and in the state court.

  • Fact check: Kamala Harris is a natural-born U.S. citizen and eligible to serve as president

    August 14, 2020

    A post on Facebook claims Sen. Kamala Harris, D-Calif., cannot serve as president because of her parents' citizenship...Harris is a citizen of the United States and has been since birth. She was born in Oakland, California, on Oct. 20, 1964, according to Encyclopedia Britannica. Her parents were both immigrants — her father from Jamaica and her mother from India. By virtue of her birth in California, Harris is a natural-born U.S. citizen. The Citizenship Clause of the 14th Amendment provides that "all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." And that's not dependent on their parents' citizenship. "Anyone born on U.S. soil and subject to its jurisdiction is a natural born citizen, regardless of parental citizenship," according to the Cornell Legal Information Institute. Parental citizenship is relevant to an individual's citizenship status only if the individual is born outside of the United States...When Harris ran for president, similar claims about her citizenship and eligibility circulated online. At the time, Laurence Tribe, a professor of constitutional law at Harvard Law School, condemned the notion. “I can’t believe people are making this idiotic comment,” Tribe told the Associated Press in 2019. “She is a natural born citizen and there is no question about her eligibility to run."

  • Trump Encourages Racist Conspiracy Theory About Kamala Harris

    August 14, 2020

    President Trump on Thursday encouraged a racist conspiracy theory that is rampant among some of his followers: that Senator Kamala Harris, the presumptive Democratic vice-presidential nominee born in California, was not eligible for the vice presidency or presidency because her parents were immigrants. That assertion is false. Ms. Harris is eligible to serve. Mr. Trump, speaking to reporters on Thursday, nevertheless pushed forward with the attack, reminiscent of the lie he perpetrated for years that President Barack Obama was born in Kenya...Mr. Trump appeared to be referring to a widely discredited op-ed article published in Newsweek by John C. Eastman, a conservative lawyer who has long argued that the United States Constitution does not grant birthright citizenship. Ms. Harris, the daughter of Jamaican and Indian immigrants, was born in 1964 in Oakland, Calif., several years after her parents arrived in the United States...In an interview on Thursday, Laurence H. Tribe, a professor of constitutional law at Harvard Law School, compared Mr. Eastman’s idea to the “flat earth theory” and called it “total B.S.” “I hadn’t wanted to comment on this because it’s such an idiotic theory,” Mr. Tribe said, “There is nothing to it.” Mr. Tribe pointed out that the theory still quickly landed in the hands of a president who has used his pulpit to spread a number of conspiracies against his political enemies, particularly those who do not have white or European backgrounds.

  • Inside Joe Biden’s race of a lifetime

    August 13, 2020

    It was late afternoon on February 2, the eve of the Iowa caucuses. We were jammed into a high-school gymnasium in Des Moines, the state capital, for Joe Biden’s closing rally. No one thought he would win the primary season’s talismanic opening contest the following day. Nor was he expected to come close to beating Bernie Sanders, the socialist Vermonter, in New Hampshire the next week. Though he was still ahead in the national polls, the 77-year-old former vice-president was treated as yesterday’s news...Should he make it to the White House, Biden would have completed the longest marathon in US political history. No other serious figure has tried this long to make it over the finishing line in recent history. A majority of Americans were not born when Biden first entered national politics. At 30, he was the fifth youngest senator in the country’s history after he won office in 1972. Biden’s 48-year political career is older than John F Kennedy, Bill Clinton and Barack Obama when they were elected...In another cycle, Biden’s lachrymosity might have been an albatross. During coronavirus, his emotional antennae look like a virtue. More than 165,000 Americans have now died in the pandemic. That toll is likely to be approaching a quarter of a million by early November. Trump’s inability to express condolences for America’s grieving families could not be further apart from Biden’s. In 2016, anger was the dominant political emotion. In 2020, it feels more like sadness. “If Trump were matter, then Biden is anti-matter — their characters are opposites,” says Laurence Tribe, a ­Harvard law professor who has been advising Biden on ­constitutional matters since the mid-1980s.

  • Trump signs executive orders enacting $400 unemployment benefit, payroll tax cut after coronavirus stimulus talks stall

    August 10, 2020

    With stimulus talks with Congress at an impasse, President Donald Trump signed a series of executive orders on Saturday to provide temporary relief to Americans who are suffering from the economic impact of the coronavirus pandemic. At a news conference from his golf resort in Bedminster, N.J., Trump signed four orders that will provide an additional $400 per week in unemployment benefits, suspend payments on some student loans through the end of the year, protect renters from being evicted from their homes, and instruct employers to defer certain payroll taxes through the end of the year for Americans who earn less than $100,000 annually. Trump said he decided to act on his own and order the benefits after two weeks of negotiations with congressional Democrats collapsed without an agreement on a new coronavirus relief package...But questions remain as to whether Trump has the legal authority to take these actions – or the money to pay for them...Trump had been threatening for days to provide relief through an executive order if negotiations failed to produce a deal. Lawmakers had interpreted Trump's threat as a way to pressure negotiators into making a deal. Even some Republicans said they believed Trump was bluffing. “I doubt if he’s serious,” Sen. Chuck Grassley, R-Iowa, told reporters on Thursday. He was...Laurence H. Tribe, professor emeritus at Harvard Law School, called Trump's actions "cynical" as well as unconstitutional. "Trump might as well have directed the distribution of $100,000 to every family earning under $1 million a year," he said. "He obviously has no legal power to do that. But daring anyone to take him to court might be good politics."

  • A new report suggests Facebook fired an employee for calling out pro-right wing bias

    August 10, 2020

    A new report claims that Facebook fired one of its employees after the individual compiled evidence of the social media platform giving preferential treatment to right-wing accounts and news sources. A senior engineer at Facebook was reportedly fired after he collected internal evidence that the company was biased toward major right-wing accounts in helping them remove fact-checks from the material they posted on the platform, according to BuzzFeed News. The former employee had posted his findings in Workplace, an internal communications platform used by the company akin to Slack. Facebook reportedly responded by taking down his post, limiting internal access to the materials that he cited, and firing him...There have been concerns that Facebook has been appeasing Trump and pro-Trump media outlets in a haphazard attempt to maintain objectivity. Facebook employees protested the company in May because of these concerns and some advertisers have withdrawn support...Trump's attempts to control social media outlets so that they act in ways that are favorable to his political interests pose a direct threat to the First Amendment. "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," Harvard Law professor Laurence Tribe told Salon by email in May after the president announced he would retaliate against Twitter for fact-checking two of his tweets. "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."

  • Virus, Protests Fuel Push To Reopen Access To Justice Office

    August 10, 2020

    When then-Attorney General Jeff Sessions shut down the U.S. Department of Justice's Office for Access to Justice in 2018, there was no press release, no tweet from the Oval Office. All it took to unravel the small, nonprosecutorial unit that the Obama administration had created in 2010 was a notice to Congress and some tweaks to department websites...Now, as the ongoing COVID-19 pandemic coincides with a nationwide racial justice movement, lawmakers are trying to reopen the office that provided national leadership on issues like indigent defense, excessive fines and fees, juvenile justice, legal aid funding and more. On July 31, the U.S. House of Representatives passed an appropriations bill that, among other things, included a $4 million rules amendment requiring the Justice Department to reestablish ATJ. In proposing the amendment, U.S. Rep. Mary Gay Scanlon, D-Pa., noted the bipartisan appeal of ATJ's mission: "To help the justice system efficiently deliver outcomes that are fair and accessible to all, irrespective of wealth and status." But at the time of its demise, some Republican lawmakers alleged the office's role in crafting DOJ litigation settlements allowed staff to funnel money toward political allies, "a terrible abuse of power." Laurence Tribe, a professor emeritus at Harvard Law School and ATJ's first senior counselor, told Law360 that if the office were still functioning, it could have lobbied for more legal services in COVID-19 relief measures. "Matching [available] resources with the people and places that need them requires a network that an ATJ office would be invaluable in organizing," he added. The office actually did develop such a network, known as the White House Legal Aid Interagency Roundtable, or LAIR. It brings together representatives from 22 different executive branch agencies to plan and develop policy focused on criminal indigent defense and civil legal aid.

  • Donald McGahn’s testimony would be better late than never

    August 10, 2020

    The full U.S. Court of Appeals for the District of Columbia Circuit held 7 to 2 on Friday that former White House counsel Donald McGahn, who refused to appear before the House Judiciary Committee, must in fact respond to its subpoena. This ruling may come too late to make a difference when it comes to investigating Trump, but it is important and welcome nonetheless...The court reaffirmed what should have been obvious all along: “The power of each House of Congress to compel witnesses to appear before it to testify and to produce documentary evidence has a pedigree predating the Founding and has long been employed in Congress’s discharge of its primary constitutional responsibilities: legislating, conducting oversight of the federal government, and, when necessary, checking the President through the power of impeachment.” The circuit court had the benefit of the Supreme Court’s decisions in Trump v. Mazars and Trump v. Vance, rejecting any “absolute immunity” to protect Trump’s financial documents from a subpoena. The same, the appeals court held, applies to live witnesses. The case was sent back to the district court to resolve other challenges. Constitutional scholar Laurence Tribe tells me that “although the 7-to-2 win for the House is a limited and potentially short-lived victory vis-a-vis Trump and McGahn, who will keep litigating immunity and privilege claims till the cows come home, the en banc D.C. Circuit decision vindicated a vital set of congressional oversight powers and separation of powers principles that will matter as long as our constitutional republic stands.” There are several important takeaways from the decision: First, the House impeachment managers were correct to move forward before legal challenges about McGahn and others were resolved, as Republicans disingenuously suggested. We are now in August and, as Tribe reminds us, McGahn’s case will travel up and down the courts a few times before a “final” decision is reached.

  • Trump Has Launched a Three-Pronged Attack on the Election

    August 7, 2020

    An article by Laurence H. Tribe, Jennifer Taub, and Joshua A. Geltzer: As President Donald Trump reflects on his sinking approval ratings and grows more desperate by the day, he’s been floating a dictator’s dream: postponing the November election. Even Senate Majority Leader Mitch McConnell and other Trump loyalists, including the Federalist Society co-founder Steven Calabresi, swiftly rejected this authoritarian fantasy. So Trump has retreated to a fallback position: casting doubt on the legitimacy of any election he doesn’t win. That starts by inventing fables about how voting by mail invites massive fraud and interminable delay—except, Trump now tells us, in Florida, where Trump’s elderly supporters will surely rely on it. Trump’s attack on voting by mail has several fronts, but one is by far the most serious: his attempt to slow down mail service, perhaps in a targeted way, while also insisting that only ballots counted on November 3 are valid. In addition to casting doubt on the entire election, another purpose of this scheme is to engineer a scenario in which Trump can pressure Republican-controlled legislatures to ignore the popular vote in their Democratic-leaning swing state (think Michigan, Pennsylvania, and Wisconsin) and instead select an Electoral College slate that supports him. Trump’s attempt to cut short the counting of valid votes is flatly contrary to constitutional law and federal statutes. Even so, states can and should do more to protect American’s mailed-in votes. States should immediately enact new legislation or take other legal steps clarifying that they intend for Congress to honor electors they choose, and that they may need a bit of time to finalize choosing them—ideally doing so by December 23 and no later than January 6, 2021, when Congress meets in special session to certify the election results. Through state-level action, Trump’s efforts can be neutralized.

  • So much for tech’s anti-Trump bias: A new study reveals a pro-Trump “bug” on Instagram

    August 7, 2020

    A new report reveals that Instagram hid hashtags that criticized President Donald Trump while failing to protect those that criticized the presumptive Democratic nominee, former Vice President Joe Biden — an odd double-standard that the company insists was due to a "bug." The so-called bug resulted in a bias towards the content users would see about each presidential candidate. According to a report by the Tech Transparency Project (TTP), researchers analyzed the "related hashtags" that came up when they clicked on 10 different popular hashtags about Trump and 10 different popular hashtags about Biden...Harvard Law professor Laurence Tribe told Salon by email that TTP's discovery "raises no free speech issue under First Amendment law because Instagram is a private platform not subject to First Amendment constraints." He contrasted this with how Trump was barred by an appeals court from discriminating among Twitter users on the basis of their viewpoint, because "although Twitter is private, Trump is obviously a government actor." Tribe also noted that it was more "troubling" that Instagram as a private business decided "to confer on the incumbent president a massively valuable benefit – one worth more than mere dollar contributions in the tens of millions – while correspondingly harming his opponent in the forthcoming general election." He argued that this "unquestionably raises serious issues of impermissible in-kind corporate contributions to a presidential candidate, contributions that could well be found to violate federal campaign finance laws especially given their unreported and deliberately opaque character."

  • Legal scholars dispute Trump’s claim to power ‘nobody thought the president had’

    August 6, 2020

    President Trump has routinely asserted his outsize view of presidential power, but his claim to unprecedented clout in recent weeks springs from an unlikely source: one of his defeats at the Supreme Court. Trump has asserted that with the stroke of a pen he can break through gridlock on immigration, health care, the stalemate on relief for those hurt economically by the coronavirus pandemic, even mail-in balloting. “The Supreme Court gave the president of the United States powers that nobody thought the president had,” Trump told Fox News interviewer Chris Wallace on July 19. On Wednesday, he said he might employ them on the payroll tax...The source of Trump’s recent bravado appears to be provocative articles by a law professor at the University of California at Berkeley whose expansive views of presidential power match Trump’s. John Yoo, the professor, has proclaimed Chief Justice John G. Roberts Jr.’s opinion stopping the Trump administration from dismantling the Obama-era program protecting young undocumented immigrants a blessing in disguise. He contends that it allows presidents to take even unlawful actions that can require years of legal battles to undo. To say that Yoo’s view of the court’s 5-to-4 decision on the Deferred Action for Childhood Arrivals program is an outlier would be an understatement. “I think he must be on some kind of drug,” said Laurence Tribe, a longtime constitutional scholar at Harvard. The court’s decision “did not even remotely provide a blueprint for the kind of lawlessness John Yoo seems to be trying to convince this president” to undertake, Tribe said.