Laurence Tribe

A much-anticipated explanation from the federal judge presiding over Michael Flynn’s criminal case was submitted on Monday in the U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit previously ordered U.S. District Judge Emmet Sullivan to explain, within 10 days, why he didn’t immediately grant the Department of Justice’s motion to dismiss the Flynn case. That order came down after Flynn’s lawyers filed an emergency petition for a writ of mandamus with the D.C. Circuit, asking the appellate court to direct Sullivan to dismiss the case...Amici curiae in former independent counsel Ken Starr and former Republican congressman Trey Gowdy weighed in and backed the DOJ; George Conway, Laurence Tribe, Watergate prosecutors and others took the opposite stance, arguing that Sullivan was acting within his authority when appointing retired federal judge John Gleeson to present the arguments against the DOJ. Sullivan also ordered Gleeson to examine whether Flynn should be held criminal contempt of court for perjuring himself over the course of his prosecution.

An article by Laurence Tribe and Albert Turner Goins: Unless prosecutors in Minnesota file more serious charges against the police officer accused of killing George Floyd, they’re at risk of compounding public outrage by letting that former officer escape a charge of murder. Millions of us watched the Memorial Day video of the white officer, Derek Chauvin, grinding his knee into the neck of Floyd, an immobilized Black man. We saw Floyd call out for his mother and say, “I can’t breathe,” until he was beyond saving. The echoes of past extrajudicial executions and centuries of slavery and slaughter, of lynching and officially sanctioned violence, rang out across the land. It took several excruciating days before the county’s chief prosecutor, Michael Freeman, finally saw fit to file criminal charges against Chauvin, and then only for second-degree manslaughter, an offense punishable by up to 10 years in prison but usually resulting in a much lighter sentence, as well as something Minnesota calls third-degree murder, a crime punishable by up to 25 years but applicable only where someone unintentionally causes death by “reckless or wanton acts … without special regard to their effect on any particular person” — like shooting aimlessly into a crowd. No one remotely familiar with Minnesota law would regard either of those charges as the right ones to bring in this case — a case where, even if intent cannot be proven, a second-degree felony murder charge, punishable by 40 years in prison, is manifestly justified. Under a quirk in Minnesota law, second-degree murder can be charged where an assault — such as the first-degree assault evident from Chauvin’s placement of his knee on Floyd’s neck for nearly nine minutes — unintentionally results in death. More critically, anyone steeped in Minnesota law would recognize that the third-degree murder charge would likely be summarily dismissed for the ironic reason that Chauvin clearly aimed his acts at Floyd. Such a miscarriage of justice would surely trigger still more chaos and violence from coast to coast as people across the political spectrum come to see American justice as unworthy of the name.

When it comes to President Trump signing an executive order attempting to punish social media companies, Harvard Law Professor Laurence Tribe says the president is ‘creating a problem where there really was none.’

There is no freedom more important than the right to free speech. So why aren't more conservatives speaking out now that President Donald Trump has issued his most serious threat in recent memory to our collective First Amendment rights? On Wednesday the president threatened Twitter, a social media platform that he has used for half a decade to advance his political cause, after it included a fact-check label on one of his tweets. First things first: Twitter was indisputably correct in saying that Trump had uttered a falsehood when he claimed mail-in ballots are fraudulent...Yet even if Twitter had been factually wrong, it is still a private company that has the right under the First Amendment to criticize our government and its leaders without fear of reprisal or censorship. It is Trump's job as president to protect those rights even — no, especially — when they are used by those who oppose him... "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. "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."

An article by Laurence Tribe and Joshua Geltzer: On Tuesday, President Trump claimed — on Twitter, no less — that Twitter is “stifling FREE SPEECH,” thus suggesting that Twitter is violating the First Amendment. As usual, Trump is wrong on the law, but this time he’s even more wrong than usual. There is someone violating the First Amendment on Twitter, but it’s not Twitter — it’s Trump. What’s more, his threat on Wednesday to shut down Twitter altogether would mean violating the First Amendment in new ways. Trump is utterly mistaken in claiming that Twitter is violating the First Amendment — or even that Twitter can violate the First Amendment. Prompting Trump’s outburst was the platform’s first-ever attachment of warnings to two of Trump’s tweets encouraging users to “get the facts about mail-in ballots.” Clicking the warning leads to a news story indicating that “Trump makes unsubstantiated claim that mail-in ballots will lead to voter fraud.” Attaching these warnings, Trump claimed, was Twitter’s First Amendment sin. But it’s no constitutional violation. To begin with, the First Amendment applies to the government — not to private actors like Twitter. So, when the company adds warnings to tweets or even — going a step further for users other than Trump — removes tweets, it can’t possibly violate the First Amendment, because it simply isn’t a governmental entity. You can love or hate how Twitter is regulating its own private platform — but you can’t call it a First Amendment violation.

State and federal governments can't force people to receive a new coronavirus vaccine against their will, experts said, but lawmakers may be able to create a mandate that imposes consequences for not being vaccinated. Vaccine research for a new coronavirus is moving forward at an unprecedented rate and experts champion high rates of immunity in a population as a solution to stopping a virus from spreading. But a recent Reuters poll found about a quarter of the American public isn't interested in a vaccine for SARS-CoV-2, and the federal government may have a tough time creating a requirement that people be inoculated. It's possible Congress could have the power to mandate a vaccine under the commerce clause since the virus travels across state borders, constitutional law experts told Newsweek...The federal government could also leave the decision up to states. In the 1905 case, Jacobson v. Massachusetts, a citizen argued forced smallpox inoculations infringed on his personal liberty. The Supreme Court upheld the Cambridge Board of Health's authority to require the vaccination under the 10th Amendment that grants state police powers. As it's still a "perfectly good law," Laurence Tribe, a Carl M. Loeb University Professor at Harvard Law School told Newsweek. The answer to whether states could mandate vaccinations, he said, was a "clear yes."

A coalition of 20 elite legal scholars on Friday submitted a legal brief imploring the federal judge overseeing the prosecution of retired lieutenant general Michael Flynn to deny the Justice Department’s motion to dismiss the criminal case against the former National Security Advisor. According to the brief, U.S. District Judge Emmet Sullivan is under no obligation to mechanically grant the DOJ’s controversial motion. There is no valid reason the court should be prevented from imposing a lawful sentence against a defendant who has twice pleaded guilty to committing a federal crime, the lawyers argued. Led by Harvard Law School Professor Laurence Tribe, the group also included Berkeley Law legal scholar Erwin Chemerinsky, Cornell Law’s Michael Dorf, Chicago University’s David Strauss, and Trump nemesis/attorney and Lincoln Project co-founder George Conway...Rather than dismissing the case, Sullivan controversially appointed retired federal judge John Gleeson as amicus curiae to present arguments as to why Flynn shouldn’t be held in criminal contempt. Sullivan has also given non-court-appointed amici curiae (such as Conway, Tribe, et al. and Watergate prosecutors) an opportunity to weigh in.

An appeals court Thursday ordered the judge in Michael Flynn’s case to defend his actions after Flynn’s attorneys asked that his conviction be dismissed immediately, as requested by the Justice Department. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit took the unusual step of ordering U.S. District Judge Emmet G. Sullivan to answer within 10 days accusations from Flynn, President Trump’s former national security adviser. The court also invited the Justice Department to comment. The order comes as legal scholars from across the political spectrum debated the case’s implications for judicial independence and the Constitution’s separation-of-powers design. “This case does not involve a decision by the Executive Branch simply to ‘drop’ a prosecution,” but a “virtually unprecedented decision” to dismiss a case after it has been won, wrote a group of about 20 legal experts, led by Harvard law professor Laurence H. Tribe, in a brief to be filed Friday...Tribe said his group will request to file a friend-of-the-court brief, saying the circuit panel’s order “makes it all the more urgent” and that the panel should deny Flynn’s request because granting it would be “a remarkable abuse of judicial authority.” Tribe’s co-signers include constitutional law scholars, the former law school deans of Harvard, Yale and the University of Chicago, and the president of Columbia University. Republican signers include George T. Conway III, the conservative lawyer and husband of the president’s White House counselor, Kellyanne Conway; Trevor Potter, former Federal Election Commission chairman; and Richard Painter, George W. Bush’s former chief White House ethics lawyer.

An article by Laurence Tribe: Heraclitus famously said that a man's character is his fate. So too with a presidency. A president's character is inextricably linked to his administration's fate. And one of this president's most characteristic personal failings has begun to manifest itself in his administration's legal arguments. I refer to President Donald Trump's pathological reliance on "I'm rubber, you're glue" thinking—psychiatric professionals call it "projection"—to deflect attacks against him back onto his critics. This president accuses all his adversaries, real and imagined, of the very malignancies of which he is guilty. He did it with the presidential debates, quickly and childishly turning Secretary Hillary Clinton's accusation that he was a puppet of Russian President Vladimir Putin back onto her ("No puppet! No puppet! You're the puppet!"). He did it with race, accusing the four Democratic congresswomen who called out his racism of themselves being racist. And he did it with impeachment, railing for the impeachment of, among others, Speaker Nancy Pelosi, Chairman Adam Schiff and Senator Mitt Romney. Trump and his apologists are back at it again with Michael Flynn. They're offering the same "I'm rubber, you're glue" reasoning, this time covered in the thin veneer of legal argument. They accuse U.S. District Court Judge Emmet G. Sullivan, who presided over the Flynn trial and is poised to sentence Flynn for his federal crimes, of violating our constitutional separation of powers, for doing no more than taking entirely lawful and well-precedented steps to preserve the operations of the judicial branch. But in the end, it is Trump and Attorney General William Barr who are violating the separation of powers by taking lawless and unprecedented steps to undermine the judicial process.

President Trump’s decision not to divest himself of his businesses, in particular his foreign holdings or holdings that derive income from foreign governments, was a fateful error that flew in the face of precedent, clean government and the Constitution. Now, a federal appeals court has held he cannot derive income from foreign governments that frequent his businesses. The full U.S. Court of Appeals for the 4th Circuit, sitting en banc on Thursday, overruled a decision from a panel on the same court that prevented a case brought by Maryland and the District of Columbia from proceeding...In any event, “The decision of the full federal circuit court for the 4h Circuit is an important landmark on the long road to enforcing the Constitution’s emoluments clauses — its core protections against the corrupt commingling of personal financial ventures with public service at the highest levels of our government — against the president who has violated those clauses in a more blatant and dangerous way than any other chief executive in our nation’s history,” says constitutional scholar Laurence Tribe. He observes, “We can’t realistically expect a decision by that court until after the current Trump term is over, however, and if Trump is voted out of office this November and becomes a private citizen next January, it’s conceivable that the case will become moot.” If moot, “What Judge Diana Motz wrote for the 4th Circuit majority in this major case might well stand as the last authoritative word on the meaning and importance of the emoluments clauses, which future presidents will hopefully heed in a way this president never has.”

On Monday, John Gleeson, a retired U.S. district judge for the Eastern District of New York and former chief of the Criminal Division in that U.S. Attorney’s Office, wrote an op-ed in the pages of The Post with two other former Justice Department officials to object to Attorney General William P. Barr’s move to dismiss the case against former national security adviser Michael Flynn despite Flynn’s guilty plea to charges of lying to the FBI and despite the court’s previous ruling that the lies were “material.” ...Several points stand out in this highly unusual case. First, Sullivan is signaling to the Justice Department (especially to career lawyers) that he is not going to let it off the hook when it does President Trump’s bidding...Second, Barr’s attempt to dismiss the case is not a slam dunk. Far from it...Third, Gleeson is a wise pick, which means trouble for the Justice Department lawyers. Constitutional scholar Laurence Tribe — who said, “Retired U.S. District Court Judge John Gleeson is a strong choice for the task assigned to him by Judge [Emmet] Sullivan” — and multiple former prosecutors with whom I spoke attest to Gleeson’s skills as a prosecutor and his integrity. His interest here is in preventing the sort of perversion of the courts that Barr cavalierly undertakes in service to Trump, whom Barr wrongly believes is his client. (The American people are his client.)

At a time when his political power is slipping away, President Trump now looks to the courts to bolster his extreme theory of executive branch supremacy. In doing so, he risks precedent-setting rebukes from federal courts. In the first instance, Trump’s attorney general, sparing Trump the trouble of a pardon, seeks to dismiss the case against former national security adviser Michael Flynn — after Flynn has pleaded guilty. This disdain for impartial justice tests the limits of federal courts’ patience with Trump’s attempts to run roughshod over an equal branch of government. Constitutional scholar Laurence Tribe told me that “it’s not just a minor point that the court has already determined that the guilty pleas were well founded and has accepted Flynn’s waiver of any right to appeal the conviction those pleas supported.” He argued that not only could U.S. District Judge Emmet G. Sullivan reject the attempt to short-circuit the judicial process but that he has to do so. “Notably, [Attorney General] William Barr isn’t arguing that there’s dispositive newly discovered evidence that was unavailable when the court made its determination to accept Flynn’s pleas of guilty,” he pointed out. Instead, “In the guise of appealing to the court’s discretion, Barr is asking the court to treat its earlier adjudication as merely advisory and to give effect to the decision by the executive branch that the advice should be rejected.”

An article by Laurence Tribe: US District Judge Emmett G. Sullivan unquestionably knows that when a federal defendant pleads guilty but then asks to be relieved of his fate, it is up to the court to decide the merit of his argument — no matter who supports it, including a prosecutor who has switched sides. Sullivan is presiding over the case in which former National Security Adviser Michael Flynn pleaded guilty twice to serious federal crimes and is ready for sentencing. The fly in the ointment is a recent request by Attorney General William Barr that basically says: Never mind. Ignore those guilty pleas; Flynn never should’ve been interviewed about his conversations with Russian Ambassador Sergey Kislyak in the first place, so his admitted lies to the FBI don’t matter. The whole “Russia thing” was a hoax, according to Barr, that we’re now helping President Trump erase from history. Anyone studying the facts would have no doubt this was his message. The emerging consensus, reflected in these pages and in recent columns, is that Barr’s motion to dismiss the Flynn prosecution, however transparently abusive, leaves Sullivan in a pickle. As Jeffrey Toobin put it, “there doesn’t appear to be any way for a judge to force prosecutors to bring a case that they want to drop.” The judge’s options are said to include: examining why the prosecutor in charge of the case for the past several years suddenly withdrew; inquiring whether the Department of Justice’s reasons for treating the entire prosecution as unlawful and the guilty pleas as void were legally sound; granting the request to drop all charges but doing so “without prejudice” so they might be refiled by a future Justice Department; and proceeding to sentence Flynn in a rare and courageous exercise of discretion under the Federal Rules of Criminal Procedure.

Most Americans would like to abolish the electoral college, the idiosyncratic institution that picks presidents six weeks after election day. Twice this century, candidates who received more votes in the nationwide tally watched their rivals move into the White House the next January. But in 2016, when Hillary Clinton, the popular-vote winner, was vanquished by Donald Trump, another electoral-college flashpoint came to light. The controversy over whether America’s 538 electors are free to deviate from their pledges comes to the quarantined Supreme Court live by telephone on May 13th. So-called “faithless” electors are rare, but nothing new...Activists seeking to subvert Mr Trump’s victory in 2016 spurred seven electors to break their pledges—short of the 37 needed, but more than in any previous presidential election. Some defectors ran into legal trouble. Peter Chiafalo from Washington was fined $1,000 when he selected Colin Powell rather than Mrs Clinton in an attempt to throw the election to Congress...This tension between principle and practicality makes Chiafalo v Washington compelling. Laurence Tribe of Harvard Law School, wonders if conservative justices—who claim to hew to the constitution’s original meaning—will uphold the founders’ understanding of the electoral college, even if it means empowering electors “in whose judgment the voters this November 3rd will not in fact be placing any trust.”

The U.S. Supreme Court threw out a pair of criminal convictions against associates of former Gov. Chris Christie, R-N.J., ruling that they had not violated federal law even though evidence showed "wrongdoing." "The evidence the jury heard no doubt shows wrongdoing — deception, corruption, abuse of power. But the federal fraud statutes at issue do not criminalize all such conduct," Justice Elena Kagan, a liberal jurist appointed by former President Barack Obama, wrote on behalf of the court's unanimous decision in favor of Bridget Anne Kelly and Bill Baroni. Kelly was Christie's deputy chief of staff, while Baroni was a former deputy executive director of the Port Authority of New York and New Jersey at the time when they were accused of helping Christie engineer traffic problems on the world's busiest bridge. The pair allegedly sought retribution against Fort Lee Mayor Mark Sokolich, a Democrat who did not endorse Christie's re-election campaign. They were convicted of wire fraud and misusing Port Authority resources in 2016 before the Supreme Court ruled Thursday that their actions did not meet the federal definition of fraud...Harvard Law School professor Laurence Tribe agreed with the opinion, telling Salon by email that "I found Justice Kagan's reasoning compelling as a matter of statutory interpretation. It left me persuaded that Congress had not criminalized the kind of corruption demonstrated in this case — but that it ought to do so."

We take a moment in the midst of a pandemic, which, because of the negligence of this administration has killed more than 75,000 Americans and sent the United States into a record-setting recession, to note another assault on the rule of law by the most corrupt president and attorney general in history... “What Barr has done on Trump’s behalf with respect to Flynn, who entered a fully justified guilty plea that the district court duly approved, is blatantly and purely partisan,” constitutional scholar Laurence Tribe tells me. “I know of no similarly corrupt action in the Justice Department’s entire history. This latest outrage, which closes the circle that began with Trump’s attempt to get [then-FBI Director] James Comey to go easy on Flynn and with Trump’s firing of Comey for his failure to do so, just goes to show that a president with a sufficiently unprincipled and compliant Attorney General needn’t even bother to abuse his pardon power to bail out his loyal henchmen.” Tribe further observes, “By sparing Trump the need to invoke his pardon power and at least having to be held politically accountable, Barr gave the president cover. Hopefully the voters will see through the ruse come November.”

President Donald Trump moved to sack Health and Human Services (HHS) Principal Deputy Inspector General Christi A. Grimm late Friday night by announcing the name of her would-be replacement. The attempted Grimm firing was immediately controversial...It has been recently reported that Grimm’s office would further investigate whistleblower and other complaints about the Trump Administration’s handling of the pandemic. Harvard Law Professor Laurence Tribe also slammed the move but cautioned that it was not likely to go over well. “President Trump’s knee-jerk response to anyone who has vital information to report that might cast him or his minions in a bad light is to shoot the messenger,” he told Law&Crime via email. “That’s got to be wearing thin even with his most loyal, reflexive supporters. Even they have got to see by now that this self-important, truth-defying bloviator is endangering not only abstractions like truth and decency but their own lives and the lives and health of their loved ones.”

Constitutional lawyer and Harvard Law prof. Laurence Tribe discusses Sen. Mitch McConnell’s efforts to pack the courts with “people loyal to the Trump philosophy” amidst coronavirus.

He is 37 and less than 10 years out of law school. He had never tried a case, nor served as co-counsel at trial, when he was tapped last year for America’s federal bench. But he did go on Fox News to push the cause of Brett Kavanaugh when Trump’s supreme court pick was mired in sexual abuse claims two years ago. And now he is bound for the second highest court in the land. Conservative Justin Walker’s nomination to serve as circuit judge on the US court of appeals for the District of Columbia circuit, announced by Donald Trump on 3 April, barely caused a ripple in a world transfixed by a deadly pandemic. But it was a wake-up call for Democrats: the fight for the White House and Senate in November will also be a fight for the rule of law. The Trump administration has brought a laser-like focus to nominating and winning Senate confirmation for 193 judges – two supreme court justices, 51 circuit court judges (a quarter of the total), 138 district court judges and two US court of international trade judges – at a pace unmatched since the presidency of Ronald Reagan. “I’ve never in my lifetime seen an election whose stakes were higher,” said Laurence Tribe, who was born in 1941 and is a constitutional law professor at Harvard University. “The transformation of the federal judiciary into a series of puppets for a very rightwing ideology will have lasting impact for decades.”

An article by Laurence Tribe: In times as dark as these, it can be tempting to wonder whether the American experiment has failed. New York digs mass graves as though out of Boccaccio’s most ashen imaginings; the president of the United States just recommended we all inject cleaning solvent. More than a crisis of the times, this episode feels like a calamitous failure of government. How is it that our national stockpiles were left to languish, our Centers for Disease Control and Prevention was slashed and left to ossify, and our experts’ wise counsel ignored, our alarm bells silenced? For some, this is symptomatic of a federal system already broken — “outdated,” as Richard Krietner recently opined, an 18-century dream more papier-mâché than proper governance. As Kreitner bewails, “Neither the paralyzed, sclerotic central government” nor our “arbitrarily determined States” have been able to tackle the crisis laid at our feet. He recommends a radical overhaul of the system — disintegration into loosely cooperative regional networks à la the failed Articles of Confederation — and, in effect, its abandonment altogether. Such radical solutions might be mere doomsayings, but their premise simply isn’t true. To misconstrue this moment as the death knell of federalism dangerously misunderstands how the pandemic has showcased federalism’s versatility, resilience, and strength. As these endless months have stretched on, American federalism has flexed its institutional muscles not in a hapless rendering of Trump’s ego projects, but squarely in the common defense.

Politico reports: “Trump himself is tens of millions of dollars in debt to China: In 2012, his real estate partner refinanced one of Trump’s most prized New York buildings for almost $1 billion.” The report explains, “The debt includes $211 million from the state-owned Bank of China — its first loan of this kind in the U.S. — which matures in the middle of what could be Trump’s second term, financial records show.” This is not simply a matter of messing up President Trump’s baseless attack on former vice president Joe Biden regarding his son’s dealings with China. It is a textbook case of an emolument — money from a foreign government, which is explicitly prohibited by the Constitution...Constitutional scholar Laurence Tribe tells me, “Both of these situations illustrate the ongoing foreign financial entanglements — and the obvious conflicts of interest those entanglements create — that President Trump’s compliance with the foreign emoluments clause at the outset would have avoided and that his continuing violation of that fundamental constitutional requirement highlights.”