Laurence Tribe

An article by Patrick McDonnell ('21), Jacques Singer-Emery ('20), and Nathaniel Sobel ('20): Then-Rep. Gerald Ford once defined an impeachable offense as “whatever a majority of the House of Representatives considers it to be at a given moment in history.” But legal scholars have concluded that impeachment is considerably more law-governed, and constrained, than Ford suggested. They draw on clues from the Founders, the text and structure of the Constitution, and the history of presidential impeachments (and near-impeachments) to make varying arguments about the impeachment power and the range of impeachable offenses. For this post, we read eleven of the leading scholarly works on impeachment so that you don’t have to...And of a more recent vintage, we cover a collection of Trump-inspired works, including books by Cass Sunstein, Laurence Tribe and Joshua Matz.

Ruth Bader Ginsburg is a revered Supreme Court justice who spent her early legal career fighting for women’s rights. But one justice gave her original performance before the high court only passing marks. “Prof. Ruth Ginsburg. C-plus,” Justice Harry Blackmun wrote on loose-leaf paper during her first Supreme Court argument, Frontiero v. Laird, in January 1973. “Very precise. Female. Reads.” Perhaps alone among his colleagues, Justice Blackmun made detailed assessments of Supreme Court advocates, grading them like law students and often noting their hometowns, law schools and even their ethnicities. Several of those attorneys later joined the Supreme Court. ... Among private attorneys, the late E. Barrett Prettyman Jr., who had clerked for three Supreme Court justices, earned an exceptional 3.1 average over 14 arguments. Harvard law professor Laurence Tribe pronounced himself pleased when informed by the Journal of his own 3.1 GPA, also over 14 cases. “It seems quite fair and in some cases generous,” Mr. Tribe said, adding that he wasn’t sure he deserved a Blackmun 6 in a 1989 bankruptcy case, Granfinanciera SA v. Nordberg. “I didn’t do very well,” he said.

Sen. Lindsey Graham's resolution to the Senate condemning the House impeachment inquiry into President Donald Trump has "absolutely no substance," said a constitutional scholar, and is full of "phony objections." The resolution brought by the South Carolina Republican is co-signed at the time of writing by 46 of his party colleagues in the Senate. It accuses House Democrats of a lack of due process and transparency in their impeachment inquiry. ... "Senator Graham's resolution has absolutely no substance," Laurence Tribe, Carl M. Loeb University Professor and professor of constitutional law at Harvard, and a prominent critic of Trump, told Newsweek. "I looked at it carefully to see if any of its process complaints made sense historically, legally, or morally. I could find nothing in it worthy of being taken seriously. "And the fact that it focuses entirely on phony objections to a completely fair and traditional process speaks volumes about how little the Republican senators have to say in defense of what the president has done in shaking down a vulnerable ally for his own personal benefit."

A person familiar with the matter stunningly confirmed the following on Thursday: the U.S. Department of Justice (DOJ), the nation’s highest law enforcement organization, is now criminally investigating whether former special counsel Robert Mueller‘s Russia probe was based on improper activity by the Federal Bureau of Investigation (FBI). Legal experts were astonished. ... Harvard Law Professor Laurence Tribe told Law&Crime that he also has his doubts about the legitimacy of the probe, suggesting that it could be a ploy to distract from impeachment. “Durham’s reputation is very solid, but then so was Barr‘s before he came into the Trump orbit. In any event, it’s hard for me to imagine what federal crime Barr purports to be investigating,” he said. “It looks very much like this is simply a way of giving President Trump some talking points about the Russia probe being under criminal investigation.”

Professor Laurence Tribe told Anderson Cooper if there were ever an example of a high crime or misdemeanor the call President Trump had with Ukrainian President Zelensky is it. Tribe said Wednesday night the Ukraine call makes the "Nixon situation" look silly in comparison. "If there were ever a model case for an impeachable offense, a high crime and misdemeanor that includes bribery this is it," Tribe declared. "This is just the most transparently clear abuse of power and an impeachable offense that I can remember in the history of the United States," Tribe said. "And I've studied it pretty thoroughly. This makes the Nixon situation look silly by comparison. This is way more serious."

Harvard law professor Laurence Tribe shares with CNN's Anderson Cooper why he thinks President Donald Trump's decision to withhold military aid from Ukraine amounts to an impeachable offense.

Aexander hamilton warned in 1788 that impeachment risks “agitat[ing] the passions of the whole community” and spurring “pre-existing factions” to “animosities, partialities, influence and interest”. The process, he wrote, carries the “greatest danger” that “real demonstrations of innocence or guilt” will amount to little in the face of raw political calculations. But the constitution carves a path around the maelstrom, Hamilton insisted: the United States Senate will have the “sole power to try all impeachments” sent its way by the House of Representatives. ...Keeping the Senate proceedings “civil and orderly”—a task that the constitution assigns to the chief justice—may be a struggle, says Laurence Tribe, a Harvard law professor and co-author of “To End a Presidency”. The previous chief justice, William Rehnquist, said of his role in the impeachment trial of Bill Clinton in 1999 that “I did nothing in particular, and I did it very well.” John Roberts, the chief today, faces a more partisan environment but, Mr Tribe says, will seek to emulate his predecessor.

Laurence Tribe on Wednesday suggested that Democrats are now in possession of the “smoking Howitzer” with which to impeach President Donald Trump. The Harvard constitutional law professor told CNN’s Anderson Cooper he believed House Speaker Nancy Pelosi (D-Calif.) was “wise to hold off” until last month to begin an impeachment investigation, after she had “what amounts to not just a smoking gun, but a smoking Howitzer.”

Former Acting U.S. Attorney General Matthew Whitaker on Tuesday attempted to defend President Donald Trump against the onslaught of increasingly inculpatory evidence emerging from Democrats’ impeachment inquiry by claiming that abusing the power of the presidency is not a crime. Appearing on Fox News’s The Ingraham Angle, Whitaker argued that Trump’s conduct was not criminal and therefore not impeachable...Harvard Law professor Laurence H. Tribe, one of the nation’s leading constitutional scholars, described Whitaker’s comments as “the epitome of ignorance.” “Matt Whitaker’s statement that ‘abuse of power is not a crime’ is the epitome of ignorance – ignorance of the Constitution, ignorance of the purposes and history of the Impeachment Clause, ignorance of America’s history, ignorance of the law,” Tribe told Law and Crime. “Impeachable offenses, which the Constitution quaintly calls ‘high Crimes and Misdemeanors,’ are offenses against the nation and its Constitution, not necessarily violations of criminal statutes.”

House Intelligence Chairman Adam Schiff (D-Calif.) is the closest thing to a Ken Starr that exists for President Trump's impeachment inquiry — at least for now — lawmakers and committee staff tell Axios. The bottom line: In the absence of an independent or special counsel to manage the Ukraine investigation, Schiff has taken on a dual-hat role, as both a key committee chairman and chief investigator. Much like Starr, Schiff is there at the crux of key interviews behind closed doors and efforts to gather evidence that may further the impeachment inquiry. What they’re saying: Laurence Tribe, a constitutional law professor at Harvard and a Trump critic, told me Schiff would have been less likely to play this role — and might have had a harder time justifying it — if not for Attorney General Bill Barr. "If Attorney General Barr had accepted [a CIA lawyer’s attempt to make a] criminal referral and opened a meaningful inquiry, presumably with the appointment of a special counsel, he would’ve been in a position to say that the current congressional inquiry had to be put on hold." Tribe says, in hindsight, Trump may have wished that process had been put in place because it might have pre-empted the congressional inquiry and run out the clock between now and the election. "Now it’s too late. The irony is that, by trying to play the role of Roy Cohn to Donald Trump, William Barr has basically screwed his boss. If Trump had half a brain, he would be, well, pissed."

Jamarria Hall stood outside Osborn High School, where he graduated at the top of his class in 2017, now saying that time there was four years lost. Hall knew something was wrong the moment he stepped in the door his freshman year in 2014: the moldy smell of the school hallway, dead mice in the bathroom, water falling from the classroom ceilings into buckets or onto students' heads. Teachers failed to show up for class for days, Hall said, and students were sent to the gymnasium to watch movies. Classrooms lacked textbooks...The long-term impact of a substandard K-12 public education is among several legal arguments raised in a high-profile civil lawsuit before the U.S. Court of Appeals for the 6th Circuit on Thursday. It was filed by Hall and six other Detroit school students...Laurence Tribe, a professor of constitutional law at Harvard University who is not part of the litigation, said the Detroit case gives the federal court system a chance to consider what he called the "massive body of evidence" demonstrating what under-funded schools do to the children attending them, including making them a "permanent underclass," a term referenced in a prior U.S. Supreme Court ruling involving education. Tribe said every state makes K-12 education mandatory and basic education has been recognized unanimously by the Supreme Court as “necessary to prepare citizens to participate effectively and intelligently" in an open political system.

An op-ed by Laurence Tribe and Ron Fein: President Trump’s favorite sheriff is back in court. On Wednesday, lawyers for former Arizona sheriff Joe Arpaio will argue a strange federal appeal in San Francisco. Part of what makes it strange: The court was so concerned about the Department of Justice’s position in the case that it appointed an outside special prosecutor. The House’s impeachment inquiry ought to pay attention...It’s tempting for the House of Representatives’ impeachment inquiry to zero in on Ukraine. The case for focusing the nation’s attention on abuse of power is compelling, but the committee needs to consider broadening whatever article of impeachment accuses the president of abusing his presidential authority to encompass abuses unrelated to the Ukraine fiasco. This broader article should include such abuses as unjustifiably refusing to cooperate with the impeachment process authorized by the Constitution; corruptly seeking to undermine all legitimate inquiries into how the president ascended to his high office in the first instance; and blatantly misusing the pardon power, not to temper justice with mercy, but rather to cover up executive misconduct or to facilitate violations of individual rights. The arguments in Arpaio’s case on Wednesday should remind us that the Constitution is too important to leave only to the courts.

On July 25, just a day after former Special Counsel Robert Mueller testified before Congress and essentially concluded his investigation of President Donald Trump’s various intersections with Russia, Trump asked Ukraine’s leader to find dirt on a political opponent – indulging in some of the very behavior that Mueller had been investigating but couldn’t prove. In other words, Trump escaped Mueller’s probe and then turned right around and hit a self-destruct button...Laurence Tribe, a professor at the Harvard Law School and a leading constitutional scholar, told me that he sees some method in Trump’s madness on the White House lawn. “He obviously believes that if he commits his felonies in broad daylight and out in the open that he hasn’t done anything wrong -- and that no one would think he’s stupid enough to commit an impeachable offense in front of everyone,” he said. If Trump is muddying the waters by giving Democrats too many impeachable acts to track, Tribe suggests that they focus solely on building their case around two articles of impeachment that involve his Ukraine and Russia dealings: betrayal of country and stonewalling Congress. Trump’s comments Thursday about China can inform those charges, Tribe says, but he thinks it would be a strategic mistake for it to be turned into a standalone article of impeachment.

President Trump urged his party to “get tougher and fight” against his impeachment Monday as House Speaker Nancy Pelosi (D-Calif.) distributed a “fact sheet” outlining what her office called a gross abuse of presidential power, including a “shakedown,” “pressure campaign” and “cover up.” A Republican effort to censure House Intelligence Committee Chairman Adam B. Schiff (D-Calif.) for his handling of the inquiry failed Monday, with the House voting along party lines to block a floor vote on the measure...Matz, who clerked for former Supreme Court Justice Anthony M. Kennedy, recently wrote a book, “To End a Presidency: The Power of Impeachment,” with another impeachment scholar Democrats are consulting, Laurence Tribe. Tribe, while not on staff or being paid, has also become a regular source of advice for House Democrats, particularly for his former students who are now in the thick of the impeachment probe: Schiff and Jamie Raskin (D-Md.), both of whom studied under Tribe at Harvard Law School.

Pressure is mounting on Senate Republicans to do something about the Trump administration’s human rights violations, blatant corruption, Giuliani-hackery, and mounting counterintelligence problems, mostly thanks to the House Democrats finally opening an impeachment inquiry into the president’s behavior. While the idea of 20 GOP senators openly defecting to support a vote to convict Donald Trump in the Senate still remains whimsical, we’re seeing significant cracks in the wall of support for any and all Trump-y conduct...As professor Laurence Tribe of Harvard Law School (also a Slate contributor) noted in an email to me: "Sen. Graham does seem to be parroting WH talking points, and not the most effective ones, either. Saying he needs to be 'shown' that 'Trump was actually engaging in a quid pro quo, outside the phone call,' is particularly bizarre. What about the call itself? It was hardly chopped liver. Its explicit use of the word 'though' to link (a) the president’s willingness to release the aid that Congress had voted and that Ukraine was desperately seeking to defend itself from Putin’s aggression, to (b) the favor Trump wanted in return was enough in itself to establish that Trump was conditioning the aid package on assistance in his political quest both to erase Russia’s influence on his original election and to undermine his most likely 2020 opponent. If that’s not 'quid pro quo,' nothing is."

The White House on Thursday confirmed that next year’s Group of Seven (G-7) summit will be held at the Trump National Doral Golf Club in Miami, Florida. The announcement immediately prompted accusations from legal experts that such a move would be a violation of the U.S. Constitution’s Emoluments Clause. Director of the Office of Management and Budget (OMB) and acting White House Chief of Staff Mick Mulvaney quickly went into damage control mode to defend the decision, saying that President Donald Trump was “not making any profit” by hosting the confab and that his property would accommodate the event “at cost.” ...“Mulvaney’s statement that Trump will not profit personally from this decision is total BS,” Harvard Law Professor Laurence Tribe said in an email to Law&Crime and on Twitter. “This will violate the Domestic Emoluments Clause of Article II for sure. Of course it will also violate the Foreign Emoluments Clause of Article I.”

President Trump has been on quite a losing streak in court, especially. Last Friday, he lost a total of five cases concerning his snatching funds from the Pentagon to pay for his border wall, Congress’s power to subpoena documents from the accounting firm Mazars USA, and his attempt to expand the definition of public charge, which would have denied green cards to those who used government benefits to which they were legally entitled. His losing streak continued on Tuesday. The Post reports: “A federal appeals court on Tuesday revived a lawsuit claiming that President Trump is illegally profiting from foreign and state government visitors at his hotel in downtown Washington. The U.S. Court of Appeals for the 4th Circuit agreed to rehear the lawsuit, brought by the attorneys general of Maryland and the District, which was dismissed over the summer by a three-judge panel of the court.” The case will be heard on Dec. 12 and breathes life into one of three ongoing suits against Trump for receipt of foreign emoluments...Constitutional scholar Laurence H. Tribe (who is counsel in a different emoluments case) tells me, “I was convinced the panel’s decision denying standing to Maryland and D.C. in the Emoluments Clause challenge was legally wrong and am pleased to see the full Fourth Circuit seems inclined to agree, bringing it in line with the Second Circuit.” Tribe noted Trump’s run of court losses. “With the stonewall the president had interposed to the impeachment inquiry crumbling as Fiona Hill and others testify despite Trump’s effort to silence them, it’s hard not to sense the tide turning rapidly and decisively.”

Dahlia Lithwick is joined by all-star SCOTUS experts to walk us through this week’s biggest legal and constitutional developments. First, Laurence Tribe answers the questions Amicus listeners have been asking about the next steps in the impeachment process. Next, Pamela Karlan takes us inside the chamber for Tuesday’s oral arguments in a trio of Title VII cases at the high court.

Donald Trump’s refusal to cooperate with the House’s impeachment inquiry, in addition to his decisions on Syria, are the types of actions many believe could drive the president towards being impeached as an inevitable consequence. Constitutional law professor Laurence Tribe joins Joy Reid to discuss.Oct. 12, 2019

President Donald Trump who pledged in April to fight “all the subpoenas”, has been dealt another blow in his battle to keep his tax returns private. In May, a federal judge in Washington, DC refused to quash a subpoena directing Mazars USA, the president's accounting firm, to give eight years of financial records to the House of Representatives. Mr Trump called that ruling “crazy”, blamed it on “an Obama-appointed judge” and took his case to the Appeals Court for the District of Columbia Circuit. ... Laurence Tribe, a law professor at Harvard, expects “at least five votes” among the justices to affirm Judge Tatel’s ruling. He does not reckon that Justices Neil Gorsuch or Brett Kavanaugh—Mr Trump’s two high-court appointees—would agree with Judge Rao's analysis.

A nugget of political arithmetic is suddenly everywhere: “Two-thirds majority.” This is the share of votes required to convict President Trump in an impeachment trial in the United States Senate. That’s 67 senators, if you’re counting—or, in the glass-half-empty variation, the number of Republican senators required to jump ship is 20. ... “The Constitution contains quorum requirements [elsewhere] and clearly distinguishes between percentages of a particular chamber and percentages of ‘members present,'” said Laurence Tribe, a professor of constitutional law at Harvard Law School and the co-author of the book To End a Presidency: The Power of Impeachment. “That language in the provision for Senate conviction on impeachment charges is quite deliberate, creating precisely the possibility” described above.