Laurence Tribe

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.

There's no disputing that House Speaker Nancy Pelosi caused quite a stir when she tore up her copy of President Donald Trump's State of the Union speech at the end of his address. Pelosi said she decided to shred what she saw as a “compilation of falsehoods” to make a statement ”that clearly indicates to the American people that this is not the truth." Trump and his Republican allies, for their part, saw Pelosi's action as an act of disrespect — and an illegal one at that. Legal experts disagreed, saying the speech was Pelosi's to do with what she wanted...Laurence Tribe, a constitutional law professor at Harvard University, said Pelosi did not violate 18 U.S. Code Section 2071, the federal law defining the deliberate destruction of an official record that has been filed with a court or other government agency — a felony punishable by a prison term and by forfeiture of office.

A federal appeals court on Friday dismissed Democratic lawmakers' lawsuit against President Donald Trump alleging he has violated the emoluments clause of the U.S. Constitution on technical grounds. ...Laurence Tribe, a Harvard law professor and constitutional expert, tweeted after the ruling, “Individual members of the House and Senate lack standing to sue Trump to stop his Foreign Emoluments Clause violations — but the House could sue for institutional injury. It should now do so.”

Since 1851, many remarkable black men and women did not receive obituaries in The New York Times. This month, with Overlooked, we’re adding their stories to our archives. When Homer Plessy boarded the East Louisiana Railway’s No. 8 train in New Orleans on June 7, 1892, he knew his journey to Covington, La., would be brief. He also knew it could have historic implications. ...“This case is infamous for several reasons,” Laurence Tribe, a constitutional law professor at Harvard Law School, said in a telephone interview. “First, separate is almost never really equal. Second, separate is symbolically and psychologically unequal when it is recognized to have the social meaning that whites are too good to mix with blacks, or that one race is essentially superior to the other.”

Janet Wu joins the conversation as Harvard Law Professor Laurence Tribe talks about the impeachment and acquittal of the President, and its implications for the future (22:12)

One could hardly be surprised that self-identified pro-choice Republican Sen. Susan Collins of Maine — who talked herself into supporting the confirmation of Supreme Court Justice Brett M. Kavanaugh on the grounds that the conservative jurist, picked off a list approved by right-to-lifers, would uphold Roe v. Wade (!) — would concoct some rationalization for voting to acquit President Trump in his impeachment trial. In spinning out an embarrassingly weak argument for her decision to side with her party, she confirmed Tuesday on the Senate floor that the notion of an independent-minded New England Republican is as dead as Vermonter Calvin Coolidge. ...“Many GOP Senators announcing their reasons for acquittal on the Senate floor today are relying on alleged process failures or on doubts that Trump did what the House alleges he did,” constitutional scholar Laurence Tribe tells me. “That’s misguided and in many instances seems dishonest. But it’s not nearly as dangerous as relying on the wholly unfounded and genuinely crackpot theory that the offenses charged are just not impeachable — either because ‘abuse of power’ as such is an improperly framed ‘high crime and misdemeanor,’ or because the specific conduct alleged does not constitute the kind of abuse that is impeachable.”

Following the impeachment and acquittal of President Donald Trump after a bitter partisan battle, Americans now face a new reality that involves serious questions about the ability of the federal government to respect longheld balances of power. ... Now that the president has been acquitted, lawmakers may face a future in which their own decision amounts "to a license for any president to defy congressional oversight on a wholesale basis without any particularities, let alone legally plausible" explanation, long-time constitutional scholar Laurence Tribe told Cheddar. "I don't think this is the end of American democracy or separation of powers. I don't think the rule of law is dead or democracy is permanently doomed," said Tribe, who teaches alongside defense lawyer Alan Dershowitz at Harvard Law School. "On the one hand, I have a deep faith that in the long run we will get past this, just as we got past the Civil War and WWII. On the other hand, I can't give you a path between here and the long run that could overcome the pessimism that says we have huge obstacles in the way."

House Speaker Nancy Pelosi (D-Calif.) produced a great .gif of performative outrage for the #Resistance by ripping up a copy of President Donald Trump’s State of the Union address on Tuesday evening after he rejected her “handshake of friendship.” ...Anti-Trump Harvard Law Professor Laurence Tribe put a bow on the pro-Trump misinformation campaign against Pelosi’s alleged kayfabe: "What a dumb idea! Not even Bill Barr would fall for that ludicrous misapplication of the federal law criminalizing mutilation of government records. The copy was the Speaker’s own, it wasn’t a government record to begin with, and her action was purely symbolic expression well within the protection of both the speech and debate clause and the first amendment."

Despite its rejection by more than 500 of the nation’s leading legal scholars and the star constitutional scholar who testified on behalf of House Republicans, several Republican senators said they are leaning heavily on arguments made by celebrity defense lawyer Alan Dershowitz for their votes to acquit President Trump on Wednesday. ...Even self-identified conservative scholars dispute the legal case Dershowitz made on the Senate floor. Larry Tribe, a Harvard constitutional law expert, called it a “crackpot theory.”

One could hardly be surprised that self-identified pro-choice Republican Sen. Susan Collins of Maine — who talked herself into supporting the confirmation of Supreme Court Justice Brett M. Kavanaugh on the grounds that the conservative jurist, picked off a list approved by right-to-lifers, would uphold Roe v. Wade (!) — would concoct some rationalization for voting to acquit President Trump in his impeachment trial... “Many GOP Senators announcing their reasons for acquittal on the Senate floor today are relying on alleged process failures or on doubts that Trump did what the House alleges he did,” constitutional scholar Laurence Tribe tells me. “That’s misguided and in many instances seems dishonest. But it’s not nearly as dangerous as relying on the wholly unfounded and genuinely crackpot theory that the offenses charged are just not impeachable — either because ‘abuse of power’ as such is an improperly framed ‘high crime and misdemeanor,’ or because the specific conduct alleged does not constitute the kind of abuse that is impeachable.” He continues, “That’s demonstrably wrong, regardless of one’s approach to constitutional interpretation, whether textualist or originalist or evolutionary or functional or eclectic. No reputable constitutional scholar — not one — defends that theory or has defended it from the founding to the present.”

The impeachment trial of President Donald Trump in the United States Senate will take a dramatic turn on Saturday as the president's lawyers preview their defence of the president. For three days, Democrats of the House of Representatives have unleashed a torrent of facts and legal logic, peppered with video clips and underpinned by slideshow presentations to show that Trump orchestrated an improper pressure campaign on Ukraine, covered it up and should be removed from office...Most constitutional scholars reject the executive privilege and immunity arguments Trump's lawyers have claimed so far and the issue is not likely to be resolved in the Republican-controlled Senate. "The president will do everything he can to silence Bolton. He will invoke executive privilege," said Laurence Tribe, a professor of constitutional law at Harvard Law School. "Even if Bolton resists, Trump will try to go to court and there will be an issue whether it has jurisdiction or the Senate itself has to make a decision. There could be protracted litigation," Tribe told Al Jazeera.

When Homer Plessy boarded the East Louisiana Railway’s No. 8 train in New Orleans on June 7, 1892, he knew his journey to Covington, La., would be brief. He also knew it could have historic implications. Plessy was a racially mixed shoemaker who had agreed to take part in an act of civil disobedience orchestrated by a New Orleans civil rights organization. On that hot, sticky afternoon he walked into the Press Street Depot, purchased a first-class ticket and took a seat in the whites-only car. The civil rights group had chosen Plessy because he could pass for a white man. It was asserted later in a legal brief that he was seven-eighths white. But a conductor, who was also part of the scheme, stopped him and asked if he was “colored.” Plessy responded that he was. “Then you will have to retire to the colored car,” the conductor ordered. Plessy refused... “This case is infamous for several reasons,” Laurence Tribe, a constitutional law professor at Harvard Law School, said in a telephone interview. “First, separate is almost never really equal. Second, separate is symbolically and psychologically unequal when it is recognized to have the social meaning that whites are too good to mix with blacks, or that one race is essentially superior to the other.” He added: “The ruling suggested that if people of color feel inferior as a result of these laws, it is their own fault. It is essentially part of blaming the victim and pretending that the feeling of subjugation and subordination is simply a problem in the mind of the person on the receiving end.”

Senator Rand Paul on Thursday stormed out of President Trump’s impeachment trial in anger after Chief Justice John Roberts declined to read a question he’d prepared because it would have named the CIA employee who prominent conservatives have accused of being the whistleblower whose complaint to the Intelligence Community Inspector General touched off the impeachment inquiry into the president. While the US Constitution’s Speech or Debate clause protects members of congress from any liability for official acts, Harvard Law School professor and constitutional law expert Laurence Tribe told BeltwayBreakfast that Paul’s decision to leave the Senate floor during trial proceedings could subject him to punishment and leave him without the immunity he would ordinarily enjoy. “I do think that he dropped the shield of the speech and debate clause when he did that for any number of reasons,” said Tribe, who has been advising House Democrats’ team of impeachment managers on constitutional questions.

Republicans hoping to end the Senate impeachment trial of President Donald Trump and Democrats seeking to extend it with witnesses and documents may be looking to one man Friday: Chief Justice John Roberts. With Republicans increasingly confident they have the votes to block any additional testimony that could delay the trial and jeopardize Trump's likely acquittal, the mild-mannered jurist sitting as presiding officer has emerged as Democrats' last hope. ... But that interpretation of Senate rules is disputed by a range of experts, including Harvard Law School professor Laurence Tribe. "The text refers only to orders 'authorized' by the rules or by the Senate, and that in turn begs the question whether such authorization exists," Tribe said. "The Senate parliamentarian seems to believe it doesn’t, and the chief is likely to defer to her."