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Laurence Tribe

  • Fight Over Happy the Elephant’s ‘Personhood’ Jumps to NY Appeals Court, Draws Harvard Law Prof Laurence Tribe, Others

    July 20, 2020

    The question of where the 49-year-old elephant, Happy, should live—in the Bronx Zoo or at a 2,500-acre sanctuary in Tennessee—is intertwined with the history of the age-old writ of habeas corpus, her advocates are arguing as her case comes to life again in the New York courts. Her advocates now include renowned Harvard Law professor and constitutional scholar, Laurence Tribe, along with a group of 12 American and Canadian philosophers. Her primary benefactor and counsel of record is the Nonhuman Rights Project, a Florida-based nonprofit that defends “nonhuman animals” and that, for three years now, has argued in state court that Happy can only be happy if she is sent to the sanctuary, where she can bond with other elephants and roam with them for miles a day. Writes Tribe about why Happy should be considered a “legal person” under the writ, which has long been used by the imprisoned as a recourse against the power to hold them, “Happy is an autonomous and sentient Asian elephant who evolved to lead a physically, intellectually, emotionally, and socially complex life. Every day for forty years, her imprisonment by the Bronx Zoo has deprived her of this life.” In his friend-of-the-court brief lodged on Happy’s behalf this week, he also writes, “New York’s common law of habeas corpus … has a noble tradition of expanding the ranks of rights holders.” “In a time that is becoming acutely aware of the four-century history of racial discrimination and its enduring legacy,” Tribe later adds, “it cannot pass notice that African Americans who had been enslaved famously used the common law writ of habeas corpus in New York to challenge their bondage and to proclaim their humanity, even when the law otherwise treated them as mere things.”

  • US Supreme Court rulings open path to President Trump’s finances

    July 10, 2020

    Two United States Supreme Court decisions delivered on Thursday a legal path for the eventual release of President Donald Trump's financial records. Whether the information, which could be damaging for the president, will come out before November's presidential election is unclear, lawyers and politicians said. "These two opinions are very dark clouds for the president," said Gene Rossi, a former federal prosecutor now in private practice in Washington, DC. "The opinions reject the argument that he has this global immunity from prosecution or service of process," Rossi told Al Jazeera. In a pair of 7-2 decisions, the Supreme Court ruled that a New York state grand jury could get Trump's financial records and sent back to a lower court enforcement of a subpoena by Congress. Manhattan District Attorney Cyrus Vance Jr, and a House of Representatives committee had subpoenaed Trump's accounting firm Mazars USA LLP for 10 years of his financial records. Trump claimed his position as president gave him broad protection of "absolute immunity" from investigation by Congress and the New York prosecutors...Those legal arguments, however, are not strong, said lawyers who have been critical of the president's legal claims. "The idea that he can simply assert that this is harassment, that it's politically motivated in the absence of any proof whatsoever is not going to help him very much," said Laurence Tribe, a constitutional scholar at Harvard Law School. "The president and his people are grasping at straws to find anything they can to indicate this was not as thorough a rout as it was," Tribe told Al Jazeera. Trump's claims will not gain him "leverage" in the lower courts, he said.

  • Trump could lose and not leave. But Cabinet members who try to help face prison.

    July 9, 2020

    An article by Christopher Fonzone, Joshua Geltzer and Laurence TribeWith November fast approaching, here’s a recurring question that can’t easily be dismissed as alarmist fretting or grim humor: What if President Trump loses his bid for reelection but refuses to concede and instead clings to power? House Speaker Nancy Pelosi expressed this concern last year, saying “we have to inoculate against that.” So did Trump’s prison-bound former lawyer Michael Cohen. Testifying before Congress, Cohen said, “I fear that if he loses the election in 2020, that there will never be a peaceful transition of power.” Even Joe Biden, Trump’s Democratic rival, doesn’t discount the possibility that Trump would make himself difficult to dislodge, but he suggested that others in government would get the job done: “I promise you, I’m absolutely convinced that they will escort him from the White House with great dispatch.” If Trump does try to hang on to a presidency he’s lost, however, he can’t actually do very much all by himself. Running the executive branch requires help. Thankfully, there are laws that stop others from using the authorities of the executive branch on behalf of anyone other than the legitimate president. If William P. Barr, for example, tried to exercise the powers of the attorney general after a Trump loss, he could be subject to criminal prosecution. The circumstances matter. If Trump legitimately wins on Election Day, he wins — so be it. And if he loses, well, American tradition calls for a peaceful transfer of power to one’s successor. But given Trump’s rampant tradition-busting, there’s more than a little reason to worry that he’ll continue to reassert baseless claims that there was election fraud via mail-in ballots or foreign election interference favoring the Democrats, even after he has failed to persuade lawfully constituted authorities of such fantasies.

  • Roberts’s approach could end up being more protective of abortion rights — not less

    July 6, 2020

    An article by Laurence TribeThere is a silver lining, or perhaps just bronze, in the way Chief Justice John G. Roberts Jr. joined the Supreme Court’s four liberal justices to strike down an absurdly burdensome and largely gratuitous abortion regulation. Although some advocates of abortion rights fear the chief justice’s approach will open the door to other restrictions on abortion, I believe that Roberts’s analysis, correctly applied, could end up being more protective of abortion rights, not less. At issue in June Medical Services v. Russo was a Louisiana law that required any doctor performing abortions to have admitting privileges at a hospital within 30 miles, a requirement that a lower court found would have resulted in only a single doctor at a single clinic being allowed to perform abortions in the state. Roberts did not approach the case, as his liberal colleagues did, by “balancing” the obstacle that regulation placed in women’s paths against the purported health benefits of the regulation. Such balancing was the approach taken by the court in Whole Woman’s Health v. Hellerstedt in 2016, which struck down a Texas law virtually identical to the Louisiana statute — a ruling from which Roberts dissented. In voting to strike down the Louisiana law, notwithstanding his dissent in the Texas case, Roberts emphasized the importance of precedent. And he said that the correct way to analyze abortion restrictions was the precedent established in 1992 by Planned Parenthood v. Casey, a bright-line test in which the court focused solely on whether the regulation at issue imposed an “undue burden” on a woman’s right to choose.

  • 5-4 Roberts Plays the Long Game

    July 6, 2020

    The Supreme Court issued two momentous opinions last week – but the press coverage only appreciated one of them. A phenomenal panel – Dahlia Lithwick, Ron Klain, and Larry Tribe – joins Harry to break down the Court’s abortion decision in June Medical and its executive power decision in Seila Law. They end with practical reflections on Chief Justice Roberts’s position as the most powerful Justice in a century. And a sidebar of 10 of Tribe’s most famous students toast the master’s retirement.

  • Roberts drifts away from conservative bloc, angering Republicans and exciting the left

    July 1, 2020

    Supreme Court Chief Justice John Roberts’ role as the court’s new swing vote has become abundantly apparent in recent weeks, as he has been the deciding justice in several high-profile 5-4 decisions in which he sided with the court’s liberal bloc -- providing hope for Democrats and angering Republicans. The jurist kept court watchers on their toes yet again this week, siding with the conservatives in a tight decision that delivered a win for the school choice movement on Tuesday. But in Monday’s decision in June Medical Services v. Russo, Roberts sided with the liberal members to rule against a Louisiana law restricting who can perform abortions, upholding precedent from a similar case in 2016 in which he was on the other side. This followed his vote in rejecting the Trump administration’s attempt to rescind DACA and his vote in a 6-3 decision that prohibited employment discrimination based on sexual orientation and gender identity...Well-known liberal law professor Laurence Tribe, who taught Roberts at Harvard, expressed pride for his former student after Monday’s decision. “Adding the Louisiana abortion decision to the DACA decision and the LGBTQ decision makes me especially proud of my former constitutional law student, Chief Justice John Roberts,” Tribe tweeted. Roberts' history of separating himself from the court’s conservative contingent in key cases goes back years. In 2012, by siding with the liberal wing and reinterpreting an individual mandate as a tax, he allowed ObamaCare to be found constitutional. Additionally last year he joined with liberals again in shutting down the Trump administration’s efforts to add a citizenship question to the census.

  • Trump bruised as polls favour Biden – but experts warn of risk of dirty tricks

    June 29, 2020

    It was the death of a salesman. With tie undone and crumpled “Make America great again” cap in hand, Donald Trump cut a forlorn figure shambling across the White House south lawn on his return from his failed comeback rally in Tulsa, Oklahoma. Some observers likened him to Willy Loman, the tragic protagonist of Arthur Miller’s benchmark drama. The US president, critics say, has spent years selling a bill of goods to the American people. Now they are no longer buying...Laurence Tribe, a constitutional law professor at Harvard University, said: “He could announce, perhaps without any basis at all, in mid-October that a new vaccine has been found, and he could pressure the FDA [Food and Drug Administration]to approve it and that could mess with the vote. He could get help of the sort he has already asked for from China and Russia to interfere with the vote.” “He could engage in conspiratorial vote suppression in which a number of people are prevented from voting by a sudden announcement that there is a spike in the coronavirus in certain jurisdictions. The power that he has as president to both manipulate the votes actually cast, and in addition to that, to launch challenges where his manipulation has not been sufficiently successful is enormously broad.” Tribe added: “If we know nothing else about this man, we know that his priorities are entirely personal and narcissistic. We know that he is not worried about the stability or the safety of the country and, given that set of psychological realities, it would take a much more ironclad process than we have to warrant any degree of confidence that we will have a smooth and peaceful transition to a new president next January.”

  • In protest of Facebook’s failure to moderate hate, Verizon and Unilever stage a boycott

    June 29, 2020

    The consumer goods company Unilever and telecommunications corporation Verizon have both announced that they will boycott advertising on Facebook as a way of addressing the social media giant's permissive attitude toward hateful content on its platform. Unilever, which manufactures everything from soap and laundry detergent to ice cream and mayonnaise, referred Salon to a statement explaining that the company wishes to address social issues in a responsible way and has developed a "Responsibility Framework" to guide its policies. The statement argued that, because of the "divisiveness and hate speech during this polarized election period in the U.S.," the company is taking its social responsibilities very seriously and avoiding advertising on prominent social media platforms...Even before he retaliated against Twitter, Trump began threatening the platform. Salon spoke with Harvard Law professor Laurence Tribe by email about whether his rhetoric violated Twitter's First Amendment rights. "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," Tribe explained. "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." Rick Hasen, a law professor at the University of California–Irvine, echoed Tribe's view.

  • Law & Order President Won’t Obey NJ’s Quarantine Rules Because He’s Not a ‘Civilian’ (He Is a Civilian)

    June 25, 2020

    President Donald Trump isn’t a cop, and he definitely didn’t/doesn’t serve in the military. Wouldn’t that make him a civilian? Not according to White House spokesman Judd Deere, who explained that Trump will not follow New Jersey’s quarantine order because the “president of the United States is not a civilian.” But virtually every other authority leads to the conclusion that the president is — actually — a civilian. The controversy is this: the president plans to visit his New Jersey golf club days after returning from Arizona, a state where coronavirus cases are spiking. New Jersey Gov. Phil Murphy (D), along with New York Gov. Andrew Cuomo (D) and Connecticut Gov. Ned Lamont (D), announced on Wednesday that visitors who traveled to COVID-19 hotspots would need to self-quarantine for 14 days. The White House responded to a question about the president’s post-Arizona visit to N.J. by saying 1) the president is not a civilian and 2) adequate precautions would be taken...Given on all of the above, Law and Crime asked constitutional law expert and Harvard Law Professor Laurence Tribe if it was the case that the Constitution was set up in such a way as to ensure that the Commander-in-Chief of the armed forces would be a civilian. “To say that the president isn’t a ‘civilian’ is absolute bunk, to use a more polite word than the ones that come more immediately to mind. Of course the president is a civilian, fully subject to the civil and criminal laws of this nation regardless of whatever temporary immunity from prosecution he might enjoy while holding office,” Tribe said. “And you’re certainly right that the whole structure of the Constitution points to the central conclusion that the President of the United States, even and perhaps most especially in his role as Commander in Chief of the Armed Forces, would have to remain a civilian and not himself or herself be a member of the military or of any militia.”

  • A consequential life

    June 25, 2020

    When he first arrived at Harvard College in 1958, the precocious but awkward 16-year-old was certain that mathematics was where he would make his name in the world. He appeared to be well on his way, blazing beyond his undergraduate coursework and finishing with top academic honors. But as the long-awaited door to a math Ph.D. swung open, the young immigrant, whose Russian Jewish family had left China for California right after World War II, found himself dissatisfied and inexplicably drawn to the study of law, specifically to the U.S. Constitution. Now, 62 years later, Laurence H. Tribe ’62, J.D. ’66, retires from Harvard Law School (HLS), where he has taught since 1968. A popular and beloved teacher, Tribe’s courses have influenced generations of students, including Supreme Court Chief Justice John Roberts ’76, J.D. ’79, Justice and former HLS Dean Elena Kagan J.D. ’86, and former President Barack Obama, J.D. ’91. His canonical 1978 treatise, “American Constitutional Law,” transformed the field and helped put him on the course to becoming one of the nation’s foremost legal scholars. Tribe has been a formidable advocate in high-profile cases before the U.S. Supreme Court and secured important victories in others, including one that established the press and public’s right to attend criminal trials and another that led to a ruling by the court that sexual activity between same-sex couples is a privacy right protected under the 14th Amendment. (Observers have noted that the majority opinion written by Justice Neil Gorsuch, J.D. ’91 in the recent landmark LGBT workplace-protections ruling closely tracks an amicus brief written by Tribe and Joshua Matz, J.D. ’12.) As a trusted adviser to Democratic presidents and party leaders, Tribe has influenced nominations to the Supreme Court for nearly half a century, from the late Chief Justice William H. Rehnquist to Justice Brett Kavanaugh, much to the delight and dismay of partisans. On July 1, Tribe, 78, becomes the Carl M. Loeb University Professor and Professor of Constitutional Law Emeritus.

  • A Friday night massacre that backfired

    June 22, 2020

    Barr announced Saturday afternoon that, at his request, President Trump had fired Berman. At the same time, Trump told reporters, “I’m not involved.” So what’s the truth here? It is telling that we do not know which of many possible investigations may have triggered Barr’s ire. There are so many to choose from. AP reports, “The move to oust Berman also comes days after allegations surfaced from former Trump national security adviser John Bolton that the president sought to interfere in an Southern District of New York investigation into the state-owned Turkish bank in an effort to cut deals with Turkish President Recep Tayyip Erdoğan.” There are also the original investigations into campaign finance violations for which Michael Cohen was prosecuted, the alleged insurance and tax irregularities that Cohen alluded to in testimony to Congress, and the investigations into Rudolph W. Giuliani’s nefarious activities in Ukraine. You need a scorecard to keep track of Trump’s legal vulnerabilities. Berman is an acting U.S. attorney appointed by the court and therefore can only be fired by the president until his successor is confirmed. His courageous refusal to depart Friday may buy him time, or at least thereby make Trump directly responsible for what appears to be yet another attempt at obstruction of justice. Constitutional scholar Laurence Tribe tells me, “Under 28 U.S.C. § 546(d), Berman continues to serve as the court-appointed U.S. Attorney for SDNY until the temporary vacancy he was appointed to fill is filled through Senate confirmation of a permanent successor. Even if the president could remove Berman personally, Barr can’t.”

  • A 2000 repeat in 2020? Concerns mount over ‘integrity’ of US election

    June 22, 2020

    Ron Klein survived the trench warfare of one disputed presidential election. As co-chair of the Al Gore campaign in Florida two decades ago, he watched lawyers brutally slug it out for weeks over vote recounts. “Republicans were very aggressive,” he recalls, “and they beat the Democrats in court.” Twenty years later, America is now staring down the barrel of an election that could make the shenanigans of Bush v Gore in 2000 look like child’s play. Many voting systems across the US are still rickety and unprepared for a massive surge of mail-in ballots. Cyberhacking, disinformation and the coronavirus are new threats. Most ominously, this time there is an incumbent in the White House many fear will sow doubt, thrive on chaos and simply refuse to accept defeat...But just as in 2000, there appears to be one guaranteed winner of the 2020 election: the legal profession. The looming dispute offers rich pickings. Laurence Tribe, a constitutional law professor at Harvard University, observed: “Both sides are lawyering up to the eyebrows. There are lawyers in every state, both for the Democrats and for the Republicans, trying, depending on how you view it, either to protect the integrity of the vote or to subvert it. “The worst part of that is people are essentially primed not to trust the process. They know it’s easily manipulated and that makes people more prone to listen to Trump and his minions when they say that the vote was stolen from them.”

  • ‘Dreamers’ get a reprieve. Republicans get demoralized.

    June 19, 2020

    In yet another blow to the right’s extreme and mean-spirited agenda, the Supreme Court on Thursday held that President Trump had not lawfully pulled the plug on President Barack Obama’s executive order instituting the Deferred Action for Childhood Arrivals program. ...Constitutional scholar Laurence Tribe told me, “This was an important victory not just for the Dreamers, who now become a campaign issue in light of the limbo in which their status was left by the Court’s 5-4 decision, but for the rule of law.” He explained, “The majority’s refusal to accept the administration’s post-hoc rationalization for DACA’s rescission — a rationalization that, as the Chief Justice’s opinion made clear, failed to explain, let alone justify, invalidating the forbearance part of the DACA policy and addressed only the benefits part — was an important vindication for the principle that agency decisions that are arbitrary and capricious when issued cannot be rescued by some after-the-fact suggestions of alternative grounds on which the decisions might have been reached.”

  • A liberal who raises tons of money: What Elizabeth Warren could do as Biden’s VP pick

    June 18, 2020

    Sen. Elizabeth Warren has said she would agree to become Joe Biden’s running mate if he asks her to join him on the Democratic ticket for November’s election. Warren, who turns 71 on Monday, may well end up there, taking on President Donald Trump and Vice President Mike Pence, as she has emerged as a leader on Biden’s short list. In the buildup to Biden’s choice, expected by early August, and during the crises stemming from the coronavirus and racial injustice, Warren has been a leading voice for the progressive wing of the Democratic Party. She recently found a middle ground with some of her Republican colleagues in agreeing that Confederate names and statues on military bases should be taken down..Progressives also think Warren could push Biden more to the left on a wide range of issues. Harvard Law professor Laurence Tribe, who is urging Warren’s selection on the ticket, told CNBC that while he believes Biden’s instincts are progressive, the Massachusetts lawmaker could counsel him on some liberal policies. “While [Biden] has deep convictions he’s also a good and serious listener, so there’s every reason to think that he’d be open to persuasion by Warren on any of a number of economic issues — especially those affecting the lives of ordinary consumers and creditors, students and others, who have been squeezed mercilessly by the structure of our tax and bankruptcy laws and the maldistribution of wealth and the political power it currently wields throughout the system,” Tribe said in an email.

  • Harvard experts call ruling on LGBT rights a landmark

    June 17, 2020

    Harvard faculty members in law and gender issues declared Monday’s Supreme Court ruling protecting gay and transgender workers a landmark for LGBT rights... “It’s based in textual reasoning and rather persuasive in those terms,” said Gerald Neuman, co-director of the Human Rights Program at HLS. “It is written in a way that may be more persuasive to members of the public. The people who are in favor of this kind of discrimination, who are vehemently opposed to this interpretation — I don’t think it will be persuasive to them. But people who might say, ‘I’m not in favor of this kind of discrimination, but I don’t think that the law itself addresses it’ … could be persuaded.” ... In a series of tweets, HLS Professor Laurence Tribe also praised Gorsuch’s work. “Today’s 6-3 triumph for the rights of homosexual and transgender people is a victory for justice and for reading laws as they were written rather than as some assumed or intended them to operate,” he wrote. “Justice Gorsuch conducted a master class in interpreting legal texts when he patiently explained why the unexpressed intentions of a law’s authors or the conversational conventions of its users cannot be permitted to trump its unambiguous meaning…Of course progressives don’t always welcome textual analyses and might worry that this Gorsuch majority will complicate their lives in other contexts. To be sure, this remains a very conservative Court. But I say: Be glad for just outcomes when they come your way.”

  • What you should know about the Supreme Court’s landmark ruling

    June 16, 2020

    The margin of the ruling and the author of the opinion were as stunning as the result. On Monday, Justice Neil M. Gorsuch wrote in a 6-3 ruling (joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen G. Breyer) that the ban on sex-based discrimination in Title VII of the 1964 Civil Rights Act protects employees from discrimination based on sexual orientation or gender identity...The decision quite closely adheres to an amicus brief filed by constitutional scholars Laurence Tribe and Joshua Matz submitted on behalf of several former solicitors general, including Ted Olson and Seth Waxman, and former acting solicitors general Walter Dellinger and Neal Katyal. Tribe tells me that “the decision is a rare shining moment in the midst of all too much darkness," pointing out the concrete impact on millions of Americans and marking “the first victory ever for transgender rights at the Supreme Court — as well as the first clear recognition that discriminating against individuals because of their sexual orientation constitutes sex discrimination pure and simple even if those who wrote the relevant statutes might not have anticipated that reading.” There are several main takeaways. First, Gorsuch’s opinion should remind Republicans that a true textualist who gives an honest reading of a statute or the provision of the Constitution at hand is not simply a vessel for evangelical Christians and other right-wingers to impose their views on a pluralistic society. As Tribe puts it, the decision shows that “applying legal texts in accord with their meaning can sometimes triumph over efforts to read the minds of the authors and that at least some Justices, including Justice Gorsuch, are consistent in their textualism even if others, including it seems Justices [Brett M.] Kavanaugh and [Samuel A.] Alito [Jr.] and [Clarence] Thomas, are not.”

  • Warren allies send letter urging Biden to pick her as running mate

    June 15, 2020

    More than 100 liberal activists, leaders and celebrities signed a letter urging Joe Biden to select Sen. Elizabeth Warren as his running mate, intensifying pressure on the presumptive Democratic nominee from the left as he faces competing demands to pick a black woman. The letter portrays Warren (D-Mass.) as the best prepared prospect to serve as president and one uniquely capable of helping Biden politically in the November election. It asserts that he is “already strong” among nonwhite voters but could use help winning over disaffected voters who backed Sen. Bernie Sanders (I-Vt.) in the primary — even as some of them have soured on Warren...The letter, sent to Biden’s campaign on Friday, underlines the dueling pressures the former vice president is facing as he weighs his choices. While many on the left favor Warren, the nationwide protests over racism and police violence have prompted growing calls for Biden to choose an African American woman. This has added a challenge for white candidates such as Warren, who lack deep ties to African American communities, some Biden allies believe. As a candidate for president, Warren attracted mostly white crowds to her events and struggled to break through with black voters. Laurence Tribe, a constitutional law professor at Harvard University, where Warren once taught, said that there would be some “symbolic ways in which some people would be disappointed” if Biden does not choose an African American woman, and that disappointment should count. But Warren’s record, he said, makes her the strongest choice. “I think African Americans above all would be the first to say they are more interested in results than cosmetics,” said Tribe, who signed the letter.

  • Lawyers Say Retired Judge’s Brief on DOJ’s ‘Patently Irregular’ Michael Flynn Dismissal Was ‘Devastating’ and ‘Masterful’

    June 11, 2020

    Judge Emmet Sullivan’s appointed amicus curiae issued a stinging rebuke of retired lieutenant general Michael Flynn and the U.S. Department of Justice (DOJ) in a brief filed Wednesday. “[T]he Court should deny leave because there is clear evidence of a gross abuse of prosecutorial power,” retired judge and former prosecutor John Gleeson wrote in his 82-page filing–directly addressing the extraordinary intervention of Attorney General Bill Barr in the case. In early May, the DOJ head directed his subordinates to ask the U.S. District Court in the District of Columbia to dismiss charges of lying to federal agents against the president’s one-time national security advisor. Judge Sullivan, who has overseen Flynn’s case for years and who has been critical of the defendant in the past, took umbrage at the request and asked for any interested parties to intervene in the case in order to assess the merits of such a dismissal. Gleeson, known for his perspicacity viz. federal standards, was hand-selected by Sullivan for his analysis on May 13...Harvard Law Professor Laurence Tribe was also firmly on board with the retired judge’s thorough trashing of the DOJ’s position. “The amicus brief on behalf of Judge Gleeson is genuinely spectacular,” he said in an email. “It is thorough, careful, precise, candid, utterly devastating as a legal matter, and not in the least bit overstated. No judge who rules against the position articulated in this brief can possibly retain the respect of his or her peers.”

  • Some of the Charges Stemming From George Floyd’s Death Should Trouble Criminal Justice Reformers

    June 11, 2020

    Activists who were outraged by George Floyd's death welcomed the criminal charges against Derek Chauvin and three other former Minneapolis police officers who were involved in that horrifying incident. But some of those charges raise issues that would trouble many of the same criminal justice reformers if the context were different. The second-degree manslaughter charge against Chauvin, the officer who kneeled on Floyd's neck for nearly nine minutes, seems to easily fits the facts of the case. It alleges that Chauvin caused Floyd's death "by his culpable negligence, creating an unreasonable risk and consciously [taking] the chances of causing great bodily harm to another." That offense carries a maximum penalty of 10 years in prison...Chauvin also faces a third-degree murder charge, which alleges that he caused Floyd's death by "perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life." That charge, Harvard law professor Laurence Tribe and Minnesota criminal defense attorney Albert Turner Goins have argued, is not appropriate in this case, because Minnesota courts have restricted it to "reckless or wanton acts" committed "without special regard to their effect on any particular person."

  • The rule of law makes a comeback

    June 11, 2020

    Like the cavalry riding over the hill to save the day, guardians of justice are rushing forth to support the sanctity of the rule of law and due process from the maundering authoritarians in the Trump administration. For nearly four years, the Justice Department has been deformed and corrupted, becoming the unbridled defender of President Trump’s personal interests...Also on Wednesday, retired New York federal judge John Gleeson filed his amicus brief at the invitation of U.S. District Judge Emmet G. Sullivan on whether to accept the Justice Department’s decision to dismiss the charges against former national security adviser Michael Flynn — for which Flynn had already pleaded guilty — concerning his lies to the FBI about his conversations with the Russian ambassador Sergey Kislyak during the 2016 transition...Gleeson’s brief receives widespread praise from legal experts. “It is thorough, careful, precise, candid, utterly devastating as a legal matter, and not in the least bit overstated,” constitutional scholar Laurence H. Tribe tells me. “No judge who rules against the position articulated in this brief can possibly retain the respect of his or her peers.” Tribe continues, “As this amicus brief meticulously demonstrates beyond any reasonable doubt, a decision in favor of DOJ in this case would have to be ‘based solely on the fact that Flynn is a political ally of President Trump.’ I cannot recall reading a more compelling or more obviously irrefutable legal submission in years.” Finally, Tribe adds, “If I had been a lawyer on the other side of this matter, I’d be thoroughly ashamed of myself.”

  • Trump’s authoritarianism in the streets is being matched in the courts

    June 4, 2020

    An article by Joshua A. Geltzer, Neal K. Katyal, Jennifer Taub and Laurence H. Tribe: The Trump administration’s authoritarian behavior on the streets is being matched by its authoritarian positions in the federal courts. On Monday, as the administration used military force to push peaceful protesters out of Lafayette Square, administration lawyers filed an astonishing brief in the federal appeals court down the street, urging the court to order the trial judge to dismiss the case against Michael Flynn. The brief represents a remarkable new position by the Trump Justice Department: The doors of federal courthouses should be closed to hearing arguments other than those advanced by the department itself, and federal judges may not even inquire into whether the administration has acted improperly. When the Justice Department moved abruptly to drop the Flynn case — after he pleaded guilty (twice) and as he was awaiting sentencing — U.S. District Judge Emmet G. Sullivan took two steps. He appointed a “friend of the court” to argue the position that the Justice Department had suddenly abandoned; and he called a hearing to scrutinize the department’s about-face. The Justice Department told the appeals court that it should take the extraordinary step of intervening in the case — before Sullivan has ruled or even held a hearing — to stop him from doing so. “Simply put, the district court has no authority to reject the Executive’s conclusion,” the department said.