Laurence Tribe

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.

An article by Christopher Fonzone, Joshua Geltzer and Laurence Tribe: With 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.

An article by Laurence Tribe: There 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.

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.

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.

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.”

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.

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.”

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.

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.”

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.”

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.”

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 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.”