Laurence Tribe

Ten years after O.J. Simpson was acquitted of murder, one of his lawyers, Alan Dershowitz, admitted that “sometimes you lose sleep at night” while working as a defense attorney. ...After months of fiercely defending the president on Fox News, Dershowitz said he will argue constitutional issues on the Senate floor. Dershowitz said his goal is to “defend the integrity of the Constitution and to prevent the creation of a dangerous constitutional precedent” by removing the president from office. Laurence Tribe, a Harvard law professor who supports Trump’s impeachment, said Dershowitz is an “aggressive, persistent, fairly knowledgeable, quite imaginative and generally creative” lawyer who will bring “an unrealistic and unwarranted degree of self-certitude” to the trial. “He tends to be self-righteous in a way that convinces him, but not those whom he needs to persuade, that everyone but him is a hypocrite,” Tribe said.

Alan Dershowitz will be presenting oral arguments before the U.S. Senate at the impeachment trial for President Donald Trump. In a brief cell phone conversation Friday morning, Dershowitz said, “I can confirm that I’ll be presenting oral arguments.” Then he cut the conversation short and referred to his statement on Twitter. ...Laurence Tribe, a professor of constitutional law at Harvard Law School and a frequent Island visitor, also weighed in. “My former colleague Alan Dershowitz knows a lot about criminal law but not much about constitutional law. He’s flashy but not all that substantive. But flashiness isn’t exactly lacking on Team Trump,” Tribe wrote in an email to The Times. “So adding Dershowitz to the defense  team suggests that Trump intends to push the argument that impeachable offenses have to be statutory crimes like blackmail or robbery, but that’s definitely wrong and reflects serious ignorance about how the US Constitution works. For constitutional expertise and legal acumen, I’d pit my own former student Adam Schiff against Alan Dershowitz any day.”

Laurence Tribe tells Lawrence O’Donnell that after hearing the new evidence revealed by Lev Parnas, the Senate trial must have witnesses because senators are not “free to take a solemn oath to do impartial justice and then shut their eyes, shut their ears, refuse to listen to obviously relevant facts.”

Republicans have often said in the course of the impeachment process that President Trump has never been accused of breaking any laws. Beside the fact that Framers did not require a violation of statute for the grounds of impeachment, this is wrong. ...Constitutional scholar Laurence Tribe tells me, “The GAO finding that President Trump’s decision to withhold from Ukraine the military aid appropriated by Congress was illegal under the Impoundment Control Act gives the lie to the claim that the Articles of Impeachment charge no illegal act.” As Tribe points out, “It was an irrelevant claim to boot, because a ‘high Crime and Misdemeanor’ needn’t be conduct that is illegal under any federal statute.”

An article by Laurence Tribe: The United States is living through a remarkably convulsive period in its history. Donald Trump has reshaped the American presidency, and his norm-shattering behavior has tested the US Constitution in profound ways. He has placed stress on points of constitutional vulnerability, particularly when it comes to judicially unenforceable norms of respect for fact-based reality, for orderly decision-making, and for investigatory and prosecutorial independence. Trump’s rise to power has also raised questions about some of the Constitution’s most solidly entrenched provisions. His victory in 2016 highlighted the dangers posed by the Electoral College in the face of changing demographic realities, and now his presidency is testing the viability of the impeachment process to cope with a demagogue who has captured the machinery of an entire political party and controls one chamber of Congress.

Three or four? It’s a question being hotly debated as House Speaker Nancy Pelosi (D-Calif.) prepares to transmit the articles of impeachment against President Trump to the Senate for trial. Will it take four Republican senators to buck Majority Leader Mitch McConnell (R-Ky.) and force the Senate to consider additional testimony and documents? Or could the votes of just three Republicans — bolstered by Chief Justice John G. Roberts Jr. — do the trick? The answer to the question hinges on the role of the chief justice, who the Constitution specifies shall “preside” over the trial...In any other setting besides the trial of the president, a 50-50 Senate tie would be broken by the vice president, who under Senate rules occupies the position of “presiding officer” in an impeachment trial. But the chief justice fills that role in the case of a presidential impeachment, which raises questions about whether he should behave any differently. Many have argued that the chief justice will play a strictly honorary role at the trial, with no substantive input whatsoever...Harvard Law School professor Laurence Tribe told me he “agree[s] strongly that the role is not solely honorific or purely decorative.”

Soon after a US drone strike killed Iranian Maj. Gen. Qassem Soleimani in Iraq earlier this month, President Donald Trump’s re-election campaign began touting the “swift actions of our Commander-in-Chief” in paid Facebook ads that cast the killing in a positive light. When it comes to posts that appear to support the dead general, however, it’s a different story: The company is employing some questionable legal reasoning about US sanctions law to justify deleting such content from its subsidiary, Instagram... “Facebook appears to be equating political or legal opposition to the Trump administration’s killing of Soleimani with indirect support for Soleimani himself and thus analogizing it to properly forbidden material assistance to non-state terrorist groups,” Harvard Law School professor Laurence Tribe wrote in an email. “Any such equation wades deep into clearly forbidden speech-suppressing territory, well beyond what even the majority in Holder v. Humanitarian Law Project authorized as consistent with the First Amendment.”

One can only imagine what evidence we have yet to see during the impeachment proceedings against President Trump. With each new tranche of evidence — including emails regarding the hold on military aid to Ukraine and now documents from Lev Parnas, an associate of Trump lawyer Rudolph W. Giuliani’s — the conclusion that Trump abused power and obstructed the investigation becomes incontrovertible. The Post reports: “Three House committees sent dozens of pages of new evidence to the House Judiciary Committee ahead of Wednesday’s transmission of the articles of impeachment, ramping up pressure on Trump to provide Congress with additional documents related to his efforts to get Ukraine to announce an investigation into the Bidens"...Constitutional scholar Laurence Tribe tells me the new evidence is " jaw-dropping" and “highly incriminating of both Giuliani and Trump.” Tribe says, “It’s bound to find its way into the Senate trial after Parnas is deposed by the House Judiciary and Intelligence committees, as he’s bound to be.” Tribe continues, “The Giuliani letter presenting himself to Zelensky as representing Donald Trump in his private capacity at a time when Zelensky was the president-elect of Ukraine is remarkable in itself. It is a kind of hologram of the whole Ukraine-gate scandal.”

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."