Laurence Tribe

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.”

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.”