Laurence Tribe

An article by Laurence Tribe: The case for calling witnesses in the Senate’s impeachment trial of President Trump, and for subpoenaing documents that the White House has withheld from Congress, is now too compelling to deny. There is so much public support for hearing all the relevant evidence, and not just among Democrats, that it is becoming politically toxic for increasingly many senators to resist doing so. Senate majority leader Mitch McConnell’s efforts to bury the truth and turn the trial into a whitewash with a quickly delivered foreordained conclusion have all but come to naught, thanks in large part to the patience and savvy of House Speaker Nancy Pelosi, who wisely resisted the pressure to transmit the two articles of impeachment within days of the House vote impeaching Trump. If it’s already clear that the witnesses whom the president has successfully silenced thus far, despite their firsthand knowledge of what he knew and when he knew it in the context of shaking down Ukraine for his personal benefit, are indeed likely to be called, why take the trouble of saying more about the need for them to appear in the impeachment trial?...The reason is that we cannot afford to leave any stone unturned when dealing with as lawless and fickle a presidential administration and its Senate accomplices as the Trump/McConnell cabal has shown itself to be.

One of the talking points that supporters of President Donald Trump have been using in defense of the killing of Iranian military commander Qasem Soleimani on January 3 is that the killing is no different from the operation that resulted in the death of al-Qaeda leader Osama bin Laden in 2011 under President Barack Obama. But bin Laden, unlike Soleimani, was not a government official. And constitutional law professor Laurence Tribe is asserting that the Soleimani killing amounts to a “summary execution without trial” rather than an act of self-defense. Last week on Twitter, the 78-year-old Tribe (who co-founded the American Constitutional Society and teaches at Harvard Law School) posted, "In the fog of war, it’s easy to lose track of what counts. Whether Soleimani posed an ‘imminent’ threat that killing him would assuredly end isn’t just a debate over labels. It’s the difference (between) self-defense to protect Americans and murder to stave off Trump’s impeachment.”

The Seattle City Council voted Monday to ban most political spending by “foreign-influenced corporations,” in a move that could hinder attempts by multinational tech titans to influence the city’s elections. The legislation’s architect, Council President M. Lorena González, has said she believes the ban will apply to Amazon, despite the company being based here, because it will cover businesses substantively owned by foreign investors. The measure will close a loophole because foreign individuals and foreign-based entities already are barred from making contributions in United States elections, González said Monday...Federal Election Commissioner Ellen Weintraub encouraged the council to move ahead with the idea, as did Harvard Law School scholar Laurence Tribe. The Seattle Ethics and Election Commission and Washington State Public Disclosure Commission shared support.

In recent days, Senate Majority Leader Mitch McConnell has floated the idea that the Senate might vote to dismiss the articles of impeachment against President Trump without ever holding a trial. Harvard Law professor Laurence Tribe, who helped House Democrats draft the articles of impeachment in the first place, told Salon this week McConnell has no right to do that. Senate rules dating to 1886, Tribe said, give the upper chamber of Congress "no jurisdiction to begin its impeachment trial until the articles have been submitted by the House to the Senate." Until that happens, he continued, the Senate "cannot purport to dismiss the articles that would trigger the trial. The House retains jurisdiction, under the rules it has duly enacted, until it selects impeachment managers and transmits the articles of impeachment to the Senate."

An article by Nancy Gertner: It’s common to hear television commentators intone about how an impeachment trial in the Senate is “just” a political process, not a legal one, as if that means a free for all, the typical horse-trading of a legislative session. While the Constitution is not often specific, when it comes to impeachment, the words are fairly clear, especially on the issues now being debated: Should there be live witnesses at a Senate trial? How impartial should the senators be? Should there be additional evidence in the Senate that was not produced before the House?...One thing, though, hasn’t changed. Jurors then and now take an oath to be impartial — just like the Senate’s impeachment oath...In fact, the reason why the Framers rejected having impeachment in the Supreme Court, according to Harvard Law Professor Larry Tribe and Georgetown Law Professor Joshua Matz, was not just that they knew the Court could include justices appointed by the sitting president; they reasoned that the Senate’s sheer size as compared to that of the Court would safeguard against corruption.

Last October, Attorney General William Barr appeared at Notre Dame Law School to make a case for ideological warfare. Before an assembly of students and faculty, Barr claimed that the “organized destruction” of religion was under way in the United States. “Secularists, and their allies among the ‘progressives,’ have marshalled all the force of mass communications, popular culture, the entertainment industry, and academia in an unremitting assault on religion and traditional values,” he said. ... Laurence Tribe, a professor of constitutional law at Harvard, warned that Barr’s and Trump’s efforts could permanently alter the balance of power among the branches of American government. “If those views take hold, we will have lost what was won in the Revolution—we will have a Chief Executive who is more powerful than the king,” Tribe said. “That will be a disaster for the survival of the Republic.” ... But his ideology has not changed much, according to friends and former colleagues. “I don’t know why anyone is surprised by his views,” Jack Goldsmith, a law professor who headed the Justice Department’s Office of Legal Counsel during the George W. Bush Administration, told me. “He has always had a broad view of executive power.”

Hundreds of lawyers have signed onto an open letter criticizing Senate Majority Leader Mitch McConnell for his comments saying the Senate’s upcoming impeachment trial does not have to be impartial. In the letter to the Senate, published Tuesday by the group Lawyers Defending American Democracy, the lawyers said that McConnell’s “assertions cannot withstand scrutiny"...Harvard Law professor Laurence Tribe is also among the signatories. In a phone interview Tuesday, he described McConnell’s efforts as an attempt to turn the Senate trial into a 'political whitewash.' “The reason the Framers gave the Senate the sole power to try impeachments, rather than conducting merely a poll of some political kind, is that they contempted that there would be evidence, there would be witnesses,” Tribe, who advised House Democrats during the impeachment proceedings, said. He noted that senators have to take an additional oath ahead of a Senate impeachment proceeding, and said the country “is entitled” to each senator having “an open mind and try to get to the truth.” However, Tribe predicted that not all is lost when it comes to getting witness testimony in the Senate trial.

Unexpectedly, the 2020 presidential campaign is drilling down on petty crime and homelessness. Donald Trump and his Republican allies are reviving law-and-order themes similar to those used effectively by Richard Nixon and Spiro Agnew in the late 1960s and early 1970s to demonize racial minorities. To this end, Republicans seek to discredit liberalized law enforcement initiatives adopted by a new breed of Democratic prosecutors...While many of the Democratic presidential candidates have effectively joined the decarceration movement, the same unity cannot be found among House and Senate Democrats...Laurence Tribe, a professor of constitutional law at Harvard, described the thinking underpinning progressive Democratic policies broadening the rights of the homeless. In an email, Tribe wrote, "The supposed 'rights' of those who are upset or psychologically threatened by the homeless, the deinstitutionalized, or others similarly situated are what I would call second-order rights, rights that a polity cannot fairly treat as having as strong a claim to protection, as trumps that override utilitarian claims as is true of genuine rights."

Former national security adviser John Bolton said Monday that he is “prepared to testify” if called as a witness by the Senate. Bolton’s attorney previously said he would be guided by the courts on whether to testify in the impeachment proceedings...Why Bolton would now decide to make himself available will be a matter of speculation...Whatever the reason, Bolton’s announcement on Monday put Majority Leader Sen. Mitch McConnell (R-Ky.), not to mention other persuadable Republican senators, in a box. Facts subsequent to the House impeachment have become known that directly pertain to Trump’s conduct and, to boot, a critical witness is now suddenly available. Do Senate Republicans try to sweep all that under the rug, risking that Bolton will later tell his story publicly and incriminate a president whose misdeeds the Senate helped cover up? That would seem intensely unwise. “This means that only McConnell and his GOP caucus stand between what Bolton says he’s ready to testify under oath in a Senate trial and the American people,” tweeted constitutional scholar Laurence Tribe. “Your move, Mitch.” House Speaker Nancy Pelosi (D-Calif.) is in the driver’s seat because she wisely held up the articles of impeachment. She can now turn to the Senate and say: Agree upon rules for the trial that guarantee Bolton’s and other key witnesses’ appearance or we will hold on to the articles and subpoena Bolton ourselves.

Ten Republican senators have signed onto Sen. Josh Hawley’s proposal to change the Senate rules to enable the chamber to dismiss President Donald Trump’s impeachment. The Missouri Republican’s proposed rules change would empower the Senate to dismiss articles of impeachment if the House fails to deliver them within 25 days of its impeachment vote. Hawley’s resolution, unveiled Monday, is a response to House Speaker Nancy Pelosi’s decision to withhold the articles of impeachment against Trump...A change to the Senate rules requires a two-thirds majority of 67 votes. Republicans only hold 53 seats in the Senate, but Hawley hinted Monday that Republicans could bypass the requirement through a tactic often referred to as the nuclear option...Laurence Tribe, a Harvard Law School professor who advised House Democrats during the impeachment process, warned that any efforts to bypass the 67-votes requirement would be “not just nuclear but thermonuclear. As long as there are any cloture rules at all, a simple majority cannot suffice to amend the Senate’s standing rules. Without cloture rules, the Senate would cease to be the Senate.” On top of that, Tribe said that if Hawley’s proposal received the 67 votes required to change a Senate rule it could apply to future impeachments but not necessarily Trump’s impeachment.

As more evidence has come to light concerning President Trump’s withholding of U.S. aid to Ukraine and the concerns of members of the administration about its effect on national security and dubious legality, the decision by House Speaker Nancy Pelosi (D-Calif.) to delay sending the articles of impeachment to the Senate looks smarter by the day...Constitutional scholar Laurence Tribe tells me, “The documents made available in unredacted form for the first time destroy any remaining argument for waiting until mid-trial to decide whether witnesses like [Office of Management and Budget official Michael] Duffey, [Defense Secretary Mark T.] Esper, [Secretary of State Mike] Pompeo, [acting White House chief of staff Mick] Mulvaney and Bolton should be called, by subpoena if necessary, to testify at the forthcoming impeachment trial and whether key documents should be demanded from the White House, OMB, the State Department and the Pentagon.”

An article by Laurence Tribe: The greatest chief justice of the United States, by common consent, was John Marshall. In McCulloch v. Maryland, the 1819 decision laying down the foundations of our government structure, Marshall wisely insisted that “we must never forget that it is a constitution we are expounding.” That meant, among other things, that we should not confuse the Constitution for an abstruse “legal code” intended to be deciphered only by specially ordained experts. Its basic structures and provisions must be interpreted so as to “be understood by the public,” in Marshall's words, to be consistent with “the common affairs of the world.” In propounding their sometimes idiosyncratic constructions of the Constitution’s basic terms, a few current or former academic stars seem to have forgotten that most essential truth. Specifically, they would have us believe that, when the Constitution assigns to the House of Representatives “the sole Power of Impeachment,” those words “actually mean” that the House can “impeach” the president only by formally transmitting to the Senate its articles of impeachment, as English legislatures of the late Middle Ages transmitted them to the House of Lords.

Laurence Tribe, a legal scholar at Harvard University who specializes in constitutional law, told Salon on Sunday that President Donald Trump "has violated yet another law" by tweeting the name of a man believed by some to be the whistleblower who drew attention to the Ukraine scandal. "If by 'legal ramifications' you mean to ask me whether Donald Trump has violated yet another law, my answer is yes," Tribe told Salon by email when asked whether there could be legal ramifications to the president's tweeting. "The Intelligence Community Whistleblower Protection Act of 1998 (ICWPA) outlaws actions by government officials or agencies that directly or indirectly encourage retaliatory actions against employees who legitimately perform a whistleblower role in the intelligence community, as the whistleblower in this case clearly did regarding a matter of urgent concern, as determined by the Inspector General." Tribe added that Trump "violated the letter and spirit of the ICWPA" by sharing a name that he held to be that of the whistleblower with over 60 million people on Twitter "for vengeful reasons."

Maybe President Trump has not been impeached after all, or at least not yet. Impeachment happens, according to Noah Feldman, a Harvard law professor, only when the House transmits the articles of impeachment to the Senate. So “technically speaking,” he said, “the president still hasn’t been impeached.” That idea has left much of the legal academy unconvinced, including Laurence H. Tribe, one of Professor Feldman’s colleagues at Harvard. “The argument is textually bizarre, historically inaccurate, structurally misguided and functionally misleading,” Professor Tribe said. Professor Feldman was one of three constitutional scholars to testify in favor of impeachment before the House Judiciary Committee this month.

President Trump lashed out Friday at Democrats and an evangelical magazine that has called for his removal from office, as the timing and scope of his impeachment trial in the Senate remained in limbo and he prepared to head to Florida for the holidays. ...Republicans have seized on a notion advanced by a law professor called by Democrats to testify during the impeachment inquiry that technically Trump would not be “impeached” if the House does not send articles of impeachment to the Senate. Impeachment as contemplated by the Constitution does not consist merely of the vote by the House, but of the process of sending the articles to the Senate for trial,” Harvard University law professor Noah Feldman wrote in a Bloomberg column on Thursday. “Both parts are necessary to make an impeachment under the Constitution ... If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all.” Feldman’s argument received pushback from other legal scholars, including Laurence Tribe, a constitutional law professor at Harvard. In a tweet on Thursday night, Tribe said Feldman is “making a clever but wholly mistaken point” about the possibility that Trump won’t be impeached. “Under Art. I, Sec. 2, Clause 5, he was impeached on Dec 18, 2019. He will forever remain impeached. Period,” Tribe wrote.

Sen. Schumer said he’s hoping to get some Republican Senators to join him in asking for witnesses and documents in Trump’s impeachment trial. Laurence Tribe tells Lawrence O’Donnell that “the evidence supporting the impeachment articles is extremely strong” but adds that there are no good reasons not to hear from additional firsthand witnesses in the Senate trial and thinks it will be a hard sell from some vulnerable Republican Senators.

MSNBC anchor Lawrence O’Donnell interviewed constitutional law expert Laurence Tribe on Thursday about “the most influential op-ed piece yet about impeachment. On Monday, The Washington Post published Tribe’s op-ed titled, “Don’t let Mitch McConnell conduct a Potemkin impeachment trial.” Tribe, who was taught at Harvard Law for half a century and has argued three-dozen cases before the U.S. Supreme Court, suggested Speaker Nancy Pelosi delay transmitting the articles of impeachment to the Senate.

Senate Majority Leader Mitch McConnell (R-Ky.) had a plan to quickly dispose of the articles of impeachment just approved by the House: He would hold a two-week sham trial without any witnesses, and then the Senate Republican majority would acquit President Trump, despite the overwhelming weight of evidence showing that he is guilty as charged of abusing his power and obstructing Congress. But House Speaker Nancy Pelosi (D-Calif.), acting on an idea suggested by Harvard Law Professor Laurence H. Tribe in a Post op-ed, has thrown a spanner into the works by refusing to appoint impeachment managers until there is some guarantee of a fair trial in the Senate.

Harvard Law Professor Laurence Tribe, a frequent critic of President Trump, argued Wednesday that House Speaker Nancy Pelosi, D-Calif., should not send the articles of impeachment against President Trump to the Senate and claimed that it was unconstitutional for the Senate to demand the articles "immediately." "Senate rules requiring the House to 'immediately' present its articles of impeachment to the Senate clearly violate the constitutional clause in Article I giving each house the sole power to make its own rules," Tribe tweeted on Wednesday. "It’s up to the House when and how to prosecute its case in the Senate," he added, just hours before House Democrats voted to approve two articles of impeachment.

After the U.S. House of Representatives voted Wednesday to impeach President Donald Trump, House Speaker Nancy Pelosi said the articles of impeachment may temporarily be withheld from the U.S. Senate. The idea of delaying—or even withholding transmittal to the Senate—has been pitched by Harvard law professor Laurence Tribe, who advised the House Judiciary Committee on the impeachment process, the Washington Postreports.

Harvard constitutional law professor Laurence Tribe on Thursday explained why House Speaker Nancy Pelosi’s (D-Calif.) decision to delay sending the articles of impeachment of President Donald Trump to the Senate is smart. Tribe, appearing on MSNBC’s “The Last Word,” told host Lawrence O’Donnell he believed Pelosi was handling the situation “just brilliantly.” In an op-ed for The Washington Post published Monday, Tribe suggested the House vote to impeach Trump over the Ukraine scandal, but then hold off on transmitting the articles. He predicted it would strengthen Senate Minority Leader Chuck Schumer’s (D-N.Y.) hand “in bargaining over trial rules” with Senate Majority Leader Mitch McConnell (R-Ky.) ― amid concerns of potential bias in a trial by Republicans ― because McConnell and Trump want “to get this whole business behind them.” McConnell has vowed to continue working with Trump’s defense team for the trial. O’Donnell on Thursday asked Tribe if this is “where you hoped we would be at this stage after passing the articles of impeachment?” “Exactly,” Tribe responded. “I hoped that my op-ed would encourage a dialogue generated by the fact that for the first time we have a majority leader who is going to be essentially the foreman of the jury and who promises to have his fingers crossed when he takes the oath.”