Laurence Tribe

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 For some, this is symptomatic of a federal system already broken — “outdated,” as Richard Krietner recently opined, an 18-century dream more papier-mâché than proper governance.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.”

An article by Laurence Tribe: The benefits of the data-driven coronavirus tracing programs are immediate and tangible. The costs are more abstract and uncertain. But by trading abstract harms for short-term gain, we risk permanently damaging the fabric of our society. Reopening our economy and society will require revealing more about ourselves than ever before. Knowing who can safely reenter public spaces demands extensive contagion testing, contact tracing and sharing medical information long deemed “private.” Especially for the digital generation, that might seem a low price to pay for greater normalcy. But history teaches us to beware such bargains. They can permanently transform us in ways we will come to regret, as we drift over a “privacy horizon” from which we might never return. Paradoxically, privacy is a public value. It begins with personal choices about what individuals share, and with whom. But the cumulative impact of those judgments far exceeds the sum of their parts. Just as decisions about liberty of speech shape not only personal expression but the vibrancy and openness of society as a whole, so too do decisions about privacy shape the character of the community.

An article by Laurence Tribe: I am not one to underestimate the unspeakable pain that COVID-19 has already inflicted on the American people, with nearly half a million of us infected by the disease, with a death toll passing 20,000, and with the untold suffering that putting the economy into an induced coma has inflicted on all but the wealthiest among us. But the impact of this epidemic is going to spread beyond matters of health and economics. And one of the downstream effects is going to be an assault on constitutional democracy and its foundations. This assault is being obscured by the progress of the virus so that the contours of it have only just begun to emerge. But it now seems possible that when it flowers fully, it will threaten to end our centuries-long experiment with self-government. And what is clear already is that the institutions we have inherited to preserve the rule of law, protect individual rights, and enable the people to rule will not save themselves. Only we can save them.

We have heard the excuses for voter-ID requirements, opposition to vote-by-mail and voting-roll purges. It’s about voter fraud, you see. That is bunk, as President Trump essentially admitted Monday morning. He was referring to the $400 million included in the stimulus package to help fund voting-by-mail on the understandable assumption that, in a covid-19 environment, voters may not be willing to risk their health to vote in person. Before getting to Trump’s main assertion that high turnout — i.e., robust democracy — is injurious to Republicans, we should underscore that without voting-by-mail, Republican voters (who skew older) will likely be just as affected by the pandemic as Democrats...Constitutional scholar Laurence Tribe tells me that Trump’s comment “amounts to a confession that these Republicans at least, know they rule by ignorance, fear and withdrawal from political participation and not by popular consent.” He points out, “It’s more than slightly terrifying to hear Trump and his enablers admit that their opposition to voting by mail and other efforts to reconcile political participation with pandemic-induced physical separation isn’t any concern about hacking or any other source of potential manipulation of voting processes but simply the fear of an empowered and awakened public.” He adds, “The sick irony of a populism that fears the people and overtly relies on voter suppression for its survival seems to be lost on that bunch.”

The Department of Justice has begun to investigate controversial stock trades by members of the Senate after receiving non-public briefings about the impending coronavirus pandemic, according to a new report. CNN reported that the Federal Bureau of Investigation (FBI), which is coordinating its probe the Securities and Exchange Commission (SEC), has reached out to at least one member of Congress: Sen. Richard Burr, R-N.C... "Senator Burr's stock transactions raise more than a little suspicion," Harvard Law professor Laurence Tribe told Salon by email. "They have the whiff of insider trading and of betrayal of the public trust — not to mention the public's health. Let's hope the FBI-SEC investigation into the details is fair and thorough and keep our fingers crossed that it won't be a whitewash of the sort I wouldn't be surprised to see from our highly-partisan attorney general."

Rhode Island authorities on Saturday began searching for New Yorkers defying mandated self-quarantine as the state’s governor said the epidemic’s danger outweighed the appearance of persecution. The state’s National Guard said it was working with the police and health agencies to go door-to-door in coastal communities to identify New York residents and collect information on them. Those who defy the self-quarantine order face fines or jail, said Governor Gina Raimondo...Laurence Tribe, a professor of constitutional law at Harvard University, said Saturday that states aren’t required to ignore contagious diseases, but neither can they ignore America’s founding principles. Raimondo’s order “raises red flags,” he said in an email. The order doesn’t cover people arriving from hot spots besides New York, he said. “We need to be on the alert for discrimination against outsiders, including not just foreigners but Americans from other states, that isn’t strictly and objectively warranted by the facts,” he said. “As the Supreme Court put it in one famous case, our Constitution was founded on the philosophy that we must sink or swim together.”

Nearly 70 House Democrats on Monday formally requested that the chamber change its rules to allow lawmakers to vote remotely during national emergencies like the coronavirus pandemic. House members, most of whom are currently in their districts across the nation, are increasingly fearful for their safety if they have to travel back to Washington, D.C., and congregate in large groups to vote on the next economic stimulus package...In a letter led by Reps. Eric Swalwell (D-Calif.) and Katie Porter (D-Calif.), a total of 67 Democratic lawmakers asked House Rules Committee Chairman Jim McGovern (D-Mass.) to temporarily change the lower chamber's rules to enable remote voting...The letter cited Erwin Chemerinsky, dean of the University of California at Berkeley School of Law, pointing to the Constitution stating that "each House may determine the rules of its proceedings" and Harvard law professor Laurence Tribe stating that the Constitution "needn’t and shouldn’t be construed to preclude virtual presence any more than it had to be constituted to treat air travel or indeed email as something other than interstate commerce or electronic surveillance as less than a fourth amendment search and seizure.”

Ohio Gov. Mike DeWine has done an excellent job proactively addressing the coronavirus pandemic. Closing schools, restaurants and bars was absolutely the right call for someone unwilling to engage in pandemic denial. However, the Republican governor’s action to delay the primary election was a mistake. (The other three states that vote on Tuesday all affirmed they would proceed with the elections.)...In a chaotic interval between the governor’s announcement and the scheduled opening of the polls at 6:30 a.m., the state supreme court weighed in to side with the governor. Four justices — two Democrats and two Republicans — agreed to delay the primary. Constitutional scholar Laurence Tribe warns, “Postponing elections could become dangerously easy. The temptation is one worth trying hard to resist.”

The late-night decision Monday by Ohio Gov. Mike DeWine (R) to close the polls in his state due to the “unprecedented public health crisis” surrounding the coronavirus pandemic created a wave of confusion and drew criticism from voting advocates. “We have a constitutional crisis now in Ohio,” tweeted state Rep. Jon Cross, a Republican who vowed to keep the polling locations open in his district in northwest Ohio. He added, “...the Ohio Department of Health can not shut down an election.” ... “Treating court orders as options would be the beginning of the end,” wrote Harvard Law School professor Laurence Tribe. “Ohio mustn’t become the graveyard for the rule of law.” Tribe’s sentiment was echoed by voting advocates nationwide, including Kristen Clarke, the president and executive director of the Lawyers’ Committee for Civil Rights Under Law. Clarke wrote that she was “ASTOUNDED” by the cryptic messaging DeWine had put out beforehand.

One of the bad things about bad behavior by politicians (particularly by Donald Trump, because he’s president, but by others as well) is that it not only can encourage bad behavior by politicians of all ideological stripes but also can be cited to justify it. All of this is sadly illustrated by Senate Minority Leader Charles E. Schumer’s disturbing attacks against members of the Supreme Court. ... Schumer’s remarks received, thankfully, condemnation not just from Republicans but also from Democrats — among others, Harvard Law School professor Laurence Tribe, a staunch supporter of abortion rights and friend of the senator, and my friend Neal Katyal, a former acting solicitor general during the Obama administration. Both urged Schumer to apologize and praised the chief justice’s response.

Senate Minority Leader Charles E. Schumer (D-N.Y.) said Thursday that he misspoke when he said that two justices appointed by President Trump to the Supreme Court would “pay the price” for a vote against abortion rights, but he defended his passion on the issue, saying his anger reflected that of “women across America.” ...Schumer’s remarks also drew rebukes from some liberals, including Harvard law professor Laurence Tribe. “These remarks by @SenSchumer were inexcusable,” he tweeted. “Chief Justice Roberts was right to call him on his comments. I hope the Senator, whom I’ve long admired and consider a friend, apologizes and takes back his implicit threat. It’s beneath him and his office.”

You don’t always need to camp for days on the sidewalk to grab a seat at a US Supreme Court hearing. But this week, this winter, is different. On March 4 the justices are hearing arguments in one of the most anticipated cases of the term—June Medical Services v. Russo. The matter stems from a Louisiana law ostensibly designed to protect women’s health, but with the practical effect of limiting abortion access. The high court already ruled in 2016 that a similar law out of Texas, which required doctors at clinics to be associated with local hospitals, was unconstitutional because it unduly burdened women without advancing a legitimate government interest. But that was before justices Neil Gorsuch and Brett Kavanaugh were appointed by US president Donald Trump...An amicus brief from legal scholars, including Lee Bollinger of Columbia University and Laurence Tribe from Harvard, argues that there’s no real difference between the Louisiana and Texas cases and that the Fifth Circuit’s decision masks “recalcitrance” behind alleged factual considerations. The outcome here should be clear, they say, urging the justices to rein in lower courts who fail to follow the law and arguing that the implications extend far beyond the abortion context.

Congress cannot enforce its duly-authorized subpoenas against the executive branch using the judicial branch, according to a blockbuster federal court ruling released late Friday afternoon that shocked and appalled several legal experts. In the case stylized as Committee on the Judiciary v. Donald F. McGahn, the U.S. Court of Appeals for the District of Columbia ruled that former White House counsel Don McGahn did not have to abide by a congressional subpoena issued by the House Judiciary Committee during last year’s failed impeachment-and-removal effort. The lengthy 88-page decision contains a wealth of controversial legal material–spanning the decision, a concurrence and a dissent–for scholars and lawyers to agree with and object to but the basic reasoning for the court’s opinion is that the question itself is simply non-justiciable...Harvard Law Professor Laurence Tribe shared his thoughts via email: "I found the court’s opinion wholly unconvincing, the concurring opinion transparently forced, and the dissent at least initially persuasive. The net effect of this circuit court decision, if upheld by SCOTUS, would be to destroy the vital impeachment power altogether whenever a president digs in and essentially dares the country to “come and get me while I hold all the evidence that proves my guilt of the highest crimes imaginable.” That just cannot be the way our Constitution was designed to work. It was not a suicide pact. We can only hope that Chief Justice [John] Roberts isn’t ready to sign on to so lawless a vision of our republic."

Not a single significant policy or initiative proposed by the candidates for the Democratic presidential nomination is likely to survive a Supreme Court review. Nothing on guns, nothing on climate, nothing on health care—nothing survives the conservative majority on today’s court. Democrats can win the White House with a huge popular mandate, take back the Senate, and nuke the filibuster, but Chief Justice John Roberts and his four associates will still be waiting for them. If the Democratic candidates are serious about advancing their agenda—be it a progressive agenda or a center-left agenda or a billionaire’s agenda—then they have to be serious about undertaking major, structural Supreme Court reform...As Harvard Law professor Laurence Tribe, a proponent of term limits in theory, explained the difficulties to me, “For several years, I was inclined to favor term limits, but I’m increasingly doubtful that the Supreme Court, as currently composed, would agree that Article III can be interpreted the way it would have to be in order to make Supreme Court appointments terminable after a fixed number of years...That, in turn, suggests that the massive effort and political capital that would be required to get a federal statute enacted limiting the terms of Supreme Court justices just wouldn’t be worth it.” This is the most difficult barrier for many court reform proposals: the current Supreme Court.

In a 2-to-1 decision, a three-judge panel on Friday held that the dispute between the House and the president over the subpoena for former White House counsel Donald McGahn to appear and give testimony is not one the courts can decide. The court, in essence, held that this is a political dispute for which courts cannot be the referee. The notion that courts cannot weigh in to enforce subpoenas seems odd, to put it mildly. In holding that Congress can’t seek redress in the courts, the court encourages presidents to stonewall Congress and get away with illegality. Constitutional scholar Laurence Tribe observed: “The net effect of this circuit court decision, if upheld by the Supreme Court, would be to destroy the vital impeachment power altogether whenever a president digs in and essentially dares the country to ‘come and get me while I hold all the evidence that proves my guilt of the highest crimes imaginable.’ ” He added, “That just cannot be the way our Constitution was designed to work. It was not a suicide pact.” The court did not reach the merits of the case. The majority specifically did not address the president’s claim of absolute immunity. There were actually two votes against the proposition that a president can simply deny access to witnesses and documents.

The re-election campaign of President Donald Trump accused The New York Times of libel Wednesday, claiming that an editorial about the Russia scandal was both "false and defamatory." Trump campaign attorneys alleged in the filing that The Times "knowingly published false and defamatory statements" about the president in a March 2019 editorial by former executive editor Max Frankel...The lawsuit is a threat to the press' First Amendment rights, Harvard Law professor Laurence Tribe told Salon by email Thursday. "The Trump lawsuit against the Times is utterly frivolous on its face in light of the First Amendment, because the allegations meet none of the settled requirements for imposing liability on behalf of an allegedly defamed public official under New York Times Co. v. Sullivan," Tribe said...Tribe added that "the lawsuit should be dismissed as soon as possible and costs should be assessed for the abuse of process. The suit is a clumsy outburst designed to chill the free press and not a responsible use of the judicial system. The lawyers who signed the complaint should be ashamed of themselves."

President Donald Trump threatened to file an expansive series of lawsuits aimed at various people involved in former special counsel Robert Mueller’s long-running probe into Russian-based electoral interference, corruption and obstruction of justice. As is typical of the Trump White House, those threats were issued during an early Tuesday morning Twitter screed....Noted anti-Trump critic, Harvard Law Professor Laurence Tribe, also weighed in—accusing Trump of crass hypocrisy by threatening legal action in light of the 45th president’s decidedly mercurial approach to abiding by the law itself. “For someone with no regard for the rule of law, Trump sure is enamored of invoking the law almost as often as he lies,” Tribe said in an email. “To him, it apparently makes no difference at all whether his lawsuits have even a smidgen of merit. He knows he can wear many litigants down just by making threats. When someone calls his bluff, he often folds. He is, in short, a serial abuser of the legal system just as he has become a serial abuser of the presidential power with which he was sadly entrusted.”

President Trump’s attempt to threaten and bully a federal judge may well backfire, at least we should hope it does. The judicial branch is the last brake on a spiteful president determined to pursue political enemies and destroy the Justice Department’s reputation. ...Constitutional scholar Laurence Tribe tells me, “The Attorney General’s highly unusual and transparently political intervention in the thoughtful sentencing recommendations of the line attorneys in [Trump confidant Roger] Stone’s case was outrageous and understandably led to the resignations of the prosecutors who had been assigned the case.” He observes, “They should be commended for risking their careers to stand up for principle. Hopefully the federal court doing the sentencing will pay as little attention to what Barr recommends as his political intrusion into the matter warrants.”

An op-ed by Laurence Tribe: The Department of Homeland Security recently decided to bar New York residents from federal programs that allow “trusted travelers” expedited transit through airports and border checkpoints. The Trump administration is defending the decision as a rational response to New York’s enactment of a law denying federal immigration authorities free access to the state’s motor vehicle records. In truth, the department’s decision is spiteful retaliation against people who reside in a state that declines to bend to the administration’s immigration priorities. Whatever its other virtues or vices, the decision offends constitutional norms that are neither liberal nor conservative but simply American.