Laurence Tribe

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.

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."

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.

An article by Laurence Tribe: President Trump acts like a petulant child, throwing tantrums, lobbing insults, even refusing to eat his veggies. Now his Department of Homeland Security (DHS) is following suit. When adults on the Supreme Court gave a clear directive, he and his DHS cronies crossed their arms, pouted, and simply said no. Donald Trump crashed into office on a wave of xenophobia. A campaign that began by calling Mexicans “rapists” crystalized around a concrete promise to end Deferred Action for Childhood Arrivals (DACA), an Obama program that delayed deportation and granted work authorization to undocumented individuals brought to this country as innocent children. He tried to fulfil his promise soon after taking office. In September 2017, his DHS secretary issued a memo purporting to rescind DACA. But the attempt failed. This past June, the Supreme Court declared the memo invalid, treating it as an executive order and finding it “arbitrary and capricious.” The court’s decision revived the version of DACA that existed before Trump’s rescission attempt. Two lower courts made this explicit in the weeks after the Supreme Court’s decision, unequivocally declaring that “the policy is restored to its pre–September 5, 2017, status.” The court reached the legally correct outcome. Chief Justice Roberts’s narrow decision rightfully chastised the administration for its sloppiness. While the chief justice rejected the challengers’ constitutional arguments to the effect that the rescission was substantively vulnerable on equal protection grounds because racially motivated (arguments I would have joined Justice Sotomayor in accepting), his decision saved a program that 80 percent of Americans support, including a majority of Republicans. This was a characteristically consensus-seeking determination from a chief justice who has masterfully guided the court through its most contentious cases.

Federal criminal prosecution of an ex-president is highly problematic. Even when justified on the merits, it opens the door to retribution by the other side and the criminalization of politics. Moreover, when the country is as polarized as the United States is now, a criminal trial would surely inflame emotions and make the country practically ungovernable. And, as we learned during the Mueller investigation and impeachment, it can be difficult to assemble evidence for actions the president took in office because of executive privilege (the qualified one as opposed to the bogus “absolute” privilege the Supreme Court shot down in July). However, state prosecution for actions that precede a presidency avoids these pitfalls. And that may well be where we are headed with President Trump...The Times explains that prosecutors “cited newspaper investigations that concluded the president may have illegally inflated his net worth and the value of his properties to lenders and insurers. . . [and] an article on the congressional testimony of his former lawyer and fixer, Michael D. Cohen, who told lawmakers last year that the president had committed insurance fraud.” Trump denies all wrongdoing (and has assiduously hidden his taxes from view), but a grand jury continues to investigate. The filing should send panic rushing through the Trump empire. “The serious state crimes by Donald Trump and his enterprises that Cyrus Vance has indicated he is pursuing as Manhattan DA cannot be shielded from prosecution by any invocation of presidential immunity, nor are they beyond the reach of prosecution and punishment by virtue of time,” constitutional scholar Laurence Tribe tells me. “The ongoing pattern of financial fraud and deception quite plausibly establishes an inseparable criminal scheme that prevents the statute of limitations from taking even the earliest instances of felonious conduct by Trump and his co-conspirators off the table.”

President Trump seems determined to sow confusion and chaos ahead of the 2020 election. Laurence Tribe says the president is trying to make the election ‘look chaotic’ and mentions a ‘fail safe’: President Nancy Pelosi.

If you ask a Joe Biden supporter to describe the former Vice President’s positive attributes, you’ll hear a lot about compassion, empathy, and experience. But after today, some might be tempted to add soothsaying to the list. Shortly after the Commerce Department announced that the pandemic-driven economic crisis had taken a 32.9 percent bite out of America’s annualised Gross Domestic Product, Donald Trump turned his presumptive Democratic opponent into a prophet Thursday morning by way of a single tweet. After making the baseless claim that states’ use of vote-by-mail will make November’s election (which he is losing according to most reputable polls) will be “the most inaccurate and fraudulent” vote in American history and “a great embarrassment,” Trump suggested delaying it “until people can properly, securely and safely vote”...But according to the man who taught Raskin constitutional law at Harvard Law School, an attempt by Trump to delay the November election is not the nightmare scenario Democrats need to worry about. “He must know — or even though he's personally very ignorant, his lawyers must know — that three US code chapter one, which sets the date for the election, can be changed only by Congress,” said Harvard Emeritus Professor Laurence Tribe, author of the seminal law school text on the constitution, American Constitutional Law. Tribe posited that because only Congress can change the date of the election, Trump is positioning himself to blame the Democratic-controlled House of Representatives and Speaker Nancy Pelosi for making it impossible to pass any sort of measure to carry out his demand, and to pressure Republican-controlled state legislatures to nullify the results should he lose in states like Pennsylvania, Wisconsin, or Michigan.

"Lieu v. FCC is the Court’s first opportunity to consider the decision that is truly responsible for the dark money nightmare that most people blame, mistakenly so far, on Citizens United. Ever since the Court in Buckley v. Valeo said Congress could limit campaign contributions but not campaign expenses, there was an unresolved tension in First Amendment doctrine. With the D.C. Circuit’s decision in SpeechNow.org v. FEC, that tension became an impossible contradiction that only Supreme Court review of that unwarranted extension of Citizens United can resolve. I’m convinced this is the case in which it should do just that." — Professor Laurence Tribe. Rarely has the Roberts Court found a campaign finance law that it likes. The Court has rendered rulings in eight such cases; sustaining the First Amendment claim in all of them (save for a disclosure requirement upheld in Citizens United v. Federal Election Commission). Five of those eight cases were decided by a 5-4 vote. (Collins + Hudson, “The Roberts Court — Its First Amendment Free Expression Jurisprudence: 2005-2020,” forthcoming). Against that backdrop comes a cert. petition that could be every bit as important as the ones submitted in Citizens United and McCutcheon v. Federal Election Commission (2014). It is a case being brought by a distinguished group of law professors. In addition to the name of the lead counsel (Professor Jeffrey L. Fisher), the other names on the cert. petition filed by the Stanford Supreme Court Litigation Clinic in Lieu v. Federal Election Commission are: Pamela S. Karlan (Stanford Law School); Brian Fletcher (Stanford Law School); Laurence Tribe (Harvard Law School).

On Monday, Twitter removed a video from President Trump's account in which a group doctors made blatantly false claims about the novel coronavirus and alleged that medical experts were involved in a conspiracy. It's unclear how many of the president's 84 million followers saw the video before it was taken down, but Donald Trump Jr. quickly shared a version of the video before Twitter responded by removing it and temporarily restricting his account. Facebook and YouTube have also taken down versions of the video. The video, originally published by Breitbart News, showed a group of doctors claiming that masks are not necessary to contain the virus and that a combination of hydroxychloroquine, zinc and the antibiotic azithromycin can cure it...Salon also reached out to legal experts about whether the de-platforming of the video constitutes an infringement of free speech. Trump and his supporters have accused social media platforms of violating free speech rights on previous occasions when they have flagged or removed content posted by Trump and his movement...  "Twitter is a private platform even though, as one federal circuit court rightly held, its use by a public official like the president can create public forum duties on the part of that official," Harvard Law professor Laurence Tribe told Salon by email. "Certainly Twitter's own decision to take down a medically misleading and thus dangerous video, by Breitbart or by President Trump or by Donald Trump Jr. or by anyone else, raises no First Amendment issue — any more than a decision by a television network to refuse to run a particular video as an ad would create a First Amendment issue." He added, "In my view, what Twitter does in taking down what it deems a misleading or otherwise dangerous video or other posting does not interfere with the free speech rights either of the tweeter or of what might be called the tweetees — those who read and view Twitter posts."

The fundamentals are clear: Donald Trump lost the popular vote in 2016 and is poised to lose it again in 2020. His only hope is to squeak out an Electoral College margin in the only states that matter—and only through a multifarious campaign of voter suppression which exploits the pandemic to undermine democracy itself. Failing that, he can use bogus charges of voter fraud to question results in key states, including those where a surfeit of mail-in ballots delays a final count. The battleground states of Arizona, Florida, Michigan, North Carolina, Pennsylvania, and Wisconsin all narrowly favored Trump in 2016; recent polls show him trailing Joe Biden in all six. But many Democrats now believe that, with money and effort, they can flip three other states that Trump carried easily in 2016: Ohio and, more surprisingly, Georgia and Texas. At a time when the coronavirus has deep-sixed Trump’s approval ratings, flipping states that Trump barely won would seem like a relatively easy task. But the coronavirus has severely complicated the electoral landscape by making voting on Election Day a potentially serious public health risk...But the pandemic-driven recourse to voting by mail has resulted in further efforts to protect the GOP from the ravages of democracy...Hence the GOP’s effort to underfund the agency charged with delivering mail-in ballots in a timely manner: the U.S. Postal Service. Addressing these efforts, Laurence Tribe warned that funding the USPS is “vital if voting isn’t to become a form of Russian roulette. People died for the right to vote. They shouldn’t have to die to exercise it.”

President Donald Trump told the Fox News host Sean Hannity on Thursday that he had tens of thousands of federal agents at the ready to deploy to major US cities — though he said they'd "have to be invited in." Barry Friedman, a law professor who is the faculty director of New York University's Policing Project, which works with communities to ensure police accountability, echoed that point, saying the president needs the consent of the state to send in federal agents...Laurence Tribe, a law professor at Harvard Law School, excoriated the motives behind what he described as the "deliberately vague terms" behind deploying federal agents to major US cities. In an email to Business Insider, Tribe wrote that the situation "would have been utterly unthinkable to those who fought a bloody revolution and founded a republic to preserve the 'blessings of liberty,' to those who gave 'the last full measure of devotion' to preserve the Union, or to those who sacrificed their lives in two World Wars to keep authoritarian regimes from our shores." "To call this astonishing takeover of the streets and spaces for peaceful protest unconstitutional is a dramatic understatement," Tribe wrote in the email. "And the cynicism of those disguising these moves in the garb of essential peacekeeping, which might well succeed for some time in holding judicial relief at bay, is especially disgusting."

One of the nation’s leading constitutional law experts blasted President Donald Trump as a “monster” for the deployment of Department of Homeland Security agents to Portland, Oregon. MSNBC’s Ali Velshi interviewed Laurence Tribe during “The Last Word” on Friday evening. Tribe has taught at Harvard Law School for fifty years and has argued three-dozen cases before the United States Supreme Court. “The president and the Homeland Security acting director, Chad Wolf, and the attorney general are deploying paramilitaries on the streets of America, sweeping up lawful protesters, targeting the press — essentially creating a nation that was the worst nightmare of the framers,” Tribe explained. “The people who fought a revolution to preserve this new republic, the people who gave their last measure of devotion in the Civil War, the people who fought fascism in World War II would not recognize what the president is doing as consistent with America.” “The American tradition is being shattered before our very eyes,” he warned. “People have a right to protest, they have a right to go to the streets and this is the time to do it.” “It’s not an abstract right,” Velshi interjected. “It’s what’s written in the Constitution.” “It’s more than just written in the constitution, it’s written in blood in the history of our country,” Tribe replied. “People have given their lives to live in freedom and this president who claims that he stands for law and order is destroying freedom before our very eyes.” “We cannot stand still through this,” Tribe counseled.

An article by Laurence Tribe: We are being confronted in city after city with a nationwide paramilitary force, its troops unidentifiable and its vehicles unmarked, directed in deliberately vague terms to protect property and preserve domestic order. It began in Portland, Oregon where chilling video shows men in combat gear seizing unarmed protestors, packing them into rented minivans and driving off. Some victims of these kidnappings remain in the dark about their abductors even after being freed. In one dystopian scene, a Portland man was seized, blindfolded, transported, imprisoned and finally released — without once being told who had abducted him and why. Widespread criticism of these secretive police has not cowed the president. Instead, egged on by his lackeys, Trump plans to expand this paramilitary force. He has mobilized 2,000 agents from Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and the Coast Guard, placing them on standby to quickly deploy domestically. If Trump’s words are to be believed, these troops are staring down the barrel at Chicago, Detroit, Philadelphia and more. This astonishing federal takeover of public streets and spaces previously devoted to peaceful protest has targeted jurisdictions and individuals selected specifically (and at times admittedly) for their dissent from the policies of the incumbent national regime. Portland has seen 54 consecutive days of protests -- the vast majority peaceful — in the wake of the killing of George Floyd. Chicago, Trump’s next target, has seen similar dissatisfaction. Boston, a city with Democratic leadership that proudly proclaims “Black Lives Matter,” could be next on the list. If the militia descends on Boston, our city’s leaders can and should arrest and prosecute anyone who unlawfully assaults and kidnaps civilians. The district attorney of Philadelphia has already promised as much.

President Donald Trump's powers to dispute the election results if Democratic candidate Joe Biden is victorious in November may hinge upon whether allies support such a challenge. Asked on Sunday, the president would not confirm whether or not he would accept the results of November's election. This has prompted backlash from Democratic lawmakers, with his behavior branded dictatorial, and calls for people to prepare to take action should he refuse to accept the results. Trump's remarks came after the president's frequent attacks on mail-in voting, which he has suggested—without evidence—could undermine November's outcome. Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard, told Newsweek Trump's comments prompted him to "worry more than ever before that the 240-year history of peaceful successions of administrations might not hold this time and that the American experiment is in the gravest danger it has faced since the Civil War." Tribe suggested that if the results were certified by Congress, and all prior contests had been resolved, on January 6 that Trump would thereafter need to enlist allies "in order to exercise anything resembling real power." ...He bases this around the notion the president cannot run the executive branch without assistance, while others are barred from using its authorities at the behest of anyone other than the legitimate president—with the threat of criminal prosecution should they choose to. Tribe said while that offers some protection in that scenario, it does not prevent Trump posing challenges along the way.

The Trump administration has been consulting the former government lawyer who wrote the legal justification for waterboarding on how the president might try to rule by decree. John Yoo told the Guardian he has been talking to White House officials about his view that a recent supreme court ruling on immigration would allow Trump to issue executive orders on whether to apply existing federal laws...In a Fox News Sunday interview, Trump declared he would try to use that interpretation to try to force through decrees on healthcare, immigration and “various other plans” over the coming month. The White House consultations with Yoo were first reported by the Axios news website. Constitutional scholars and human rights activists have also pointed to the deployment of paramilitary federal forces against protesters in Portland as a sign that Trump is ready to use this broad interpretation of presidential powers as a means to suppress basic constitutional rights. “This is how it begins,” Laurence Tribe, a Harvard constitutional law professor, wrote on Twitter. “The dictatorial hunger for power is insatiable. If ever there was a time for peaceful civil disobedience, that time is upon us.” ...Constitutional scholars have rejected Yoo’s arguments as ignoring limits on the executive powers of the president imposed by the founders, who were determined to prevent the rise of a tyrant. Tribe called Yoo’s interpretation of the Daca ruling “indefensible”. He added: “I fear that this lawless administration will take full advantage of the fact that judicial wheels grind slowly and that it will be difficult to keep up with the many ways Trump, aided and abetted by Bill Barr as attorney general and Chad Wolf as acting head of homeland security, can usurp congressional powers and abridge fundamental rights in the immigration space in particular but also in matters of public health and safety.”

Donald Trump has handled the pandemic arguably worse than any world leader and has lied about it serially. No one can dispute that. The question though is, can Trump be criminally charged with manslaughter for intentionally failing to warn Americans about the known threats of COVID-19—and worse, lying about them? As a lawyer, I believe the answer should be yes—at least if it can be proven that Trump knowingly misled Americans about the dangers of COVID-19 because he believed it helped his re-election efforts, and Americans relied on those lies to the detriment of their health/lives...Now to be clear, Trump being successfully prosecuted for lying is still a challenge, as many well-known legal experts explained. Laurence H. Tribe, the famed professor at Harvard Law School, had harsh words for Trump’s actions saying that, “Trump is almost certainly morally responsible for tens of thousands of coronavirus deaths that would not have occurred but for his recklessly misleading public pronouncements and his grossly negligent failures to act rationally on the basis of the medical evidence available to him.” But with that said, Tribe added, “proving that Trump caused these deaths beyond a reasonable doubt in a criminal trial would be almost impossible.”

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.”

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.