Laurence Tribe

Criminal prosecution exacts punishment; impeachment upholds the Constitution and prevents further assaults on it. Many Americans, but far from a majority, think President Trump has committed impeachable acts but are wary of impeaching without hope of removal. However, if there is an indication that severe damage to the Constitution will occur unless Trump is removed, the House must act, and then engage public opinion to pressure the Senate. ... Constitutional scholar Laurence Tribe tells me, “Even if the district court’s order to release the Flynn-Kislyak transcripts goes further than justified by the sentencing matter before the court, I would’ve thought that, in a government of laws, the only way to avoid compliance is to take an appeal to a higher court.” The government made its arguments to the court, did not obtain a stay to our knowledge and did not seek an emergency appeal. From all appearances, the Trump administration has deliberately and willfully defied a court order.

Attorney General William P. Barr and the Trump White House banked on precisely the sloth we saw after release of the report from special counsel Robert S. Mueller III. They correctly anticipated that the public wouldn’t read it, that cable-news coverage would be superficial at best (and at worst misleading), and that President Trump’s cult would take on faith whatever he said either was or wasn’t in the report. The headlines and screen crawlers announcing “Mueller couldn’t indict!” and “Mueller says it’s up to Congress!” — who knew!? — suggest they were right. ... In an email, constitutional scholar Laurence H. Tribe told me, “Expressed in plain English, Mueller said: ‘READ MY REPORT. It says I COULDN’T indict a sitting president. If my office could’ve concluded he was innocent of criminal conduct, we would’ve said so. We couldn’t so we didn’t. Only Congress can hold this sitting president accountable. The ball is in Congress’s court now.’”

This year's Harvard Law School Class Day had many firsts: Roberta “Robbie” Kaplan ’88 was the first openly gay person to speak at the occasion, addressing the school’s first majority-woman graduating class, whose members had performed a record-breaking 390,095 hours of pro bono work. ... Former president Bill Clinton has called Kaplan a “true American hero” for her role in the case, and Loeb University Professor Laurence Tribe, a leading constitutional-law scholar, has said that he cannot “think of any Supreme Court decision in history that has ever created so rapid and broad a lower-court groundswell in a single direction as Windsor.”Windsor in turn laid the groundwork for the 2015 case Obergefell v. Hodges, which established marriage equality nationwide.

Despite the fact that House Speaker Nancy Pelosi said this week that she hopes Donald Trump’s family or staff will stage an intervention, legal scholar and professor Laurence Tribe said on Saturday that it’s up to Democrats to lead such an intervention. During an interview with MSNBC’s Joy Reid, Tribe said part of this intervention must be to inform the public of what Trump has done and then hold him accountable for his lawless conduct. “Among the most important purposes of congressional investigations is not only lawmaking but holding the executive branch accountable and informing the American public,” he said. “An uninformed public is in great danger.”

House Speaker Nancy Pelosi has suggested that Donald Trump is harming the country, stopping short of affirming that the president should immediately be impeached. Joy Reid is joined by Harvard University legal scholar Laurence Tribe who alleges, ‘The president it seems to me is committing impeachable offenses before our very eyes.’

The New York Times gives prominent placement on its home page to list all of President Trump’s juvenile nicknames for the 2020 Democratic presidential candidates, including the racist Native American slur directed at Sen. Elizabeth Warren (D-Mass.). This serves no purpose other than to highlight his name-calling and reinforce his abusive conduct. ...Constitutional scholar Laurence Tribe concurs. Cheney “is too smart to believe even a bit of what she’s saying. That makes her prattling away about a ‘coup’ and particularly about ‘treason’ especially pernicious and dangerous,” he says. “Only dictators threaten those who dare to question and investigate their use of power with prosecution for treason.”

The barricades are up at the White House, where President Donald Trump has vowed to fight “all the subpoenas” flying from Democrats in the House of Representatives. Early engagements have not gone well for Mr Trump. This week he lost two crucial skirmishes. ... The cases could eventually go to the Supreme Court, where Mr Trump has installed two justices. But Laurence Tribe, a scholar of constitutional law at Harvard University, cannot imagine the president prevailing there. And if the president defies a court order, the constitutional crisis that some Americans have predicted since 2016 will arrive at last.

The legal battle for reproductive rights is heating up in the wake of harsh new anti-abortion laws, and several states are already preparing for the potential end of Roe v. Wade. In seven states, so-called “trigger laws” would ban abortion immediately if the Supreme Court overturns the landmark 1973 court decision that established access to a safe abortion as a constitutional right. ... Laurence Tribe, a law professor at Harvard, questions the laws’ effectiveness. “I suppose they might achieve their symbolic purpose. But if their purpose is actually to protect the lives of fetuses, they make no real sense,” he told HuffPost in an email. “It would be easy for the Supreme Court to empty Roe v. Wade of just about all significance without explicitly overruling that landmark decision and thereby triggering such laws.”

Federal courts 2, President Trump 0. That’s the scoreboard this week in cases in which Trump has tried for specious, frivolous reasons to prevent the House from obtaining his financial records. On Monday, Judge Amit J. Mehta ruled that Trump could not block documents from the accounting firm Mazars USA. On Wednesday, U.S. District Judge Edgardo Ramos in the Southern District of New York slapped down Trump’s attempt to block the House from obtaining records from Deutsche Bank and Capital One. ... Constitutional scholar Laurence Tribe tells me: “Like the ruling by Judge Mehta, the ruling by Judge Ramos was clearly right under fully settled law and in my view is quite certain to be upheld on appeal. The extreme rapidity of today’s decision reflects the simple fact that the arguments by Trump’s lawyers in both cases were, to be blunt, entirely insubstantial.” Tribe adds that had Ramos ruled as Trump wanted, Ramos would have been forced to “toss out over a century and a third of Supreme Court precedent requiring federal judges to take Congress’s explanations of its need for information at face value when those explanations are facially plausible, as they certainly were in the Deutsche Bank case as well as in the Mazars case.”

Some House Democrats are convinced that they'd have better luck getting testimony and documents if they launch an impeachment inquiry against President Trump — which is why they've been pushing House Speaker Nancy Pelosi so hard. ... 2) Legislative purpose: It would be harder for the Trump administration to win a court fight by arguing that Congress doesn't have a "legitimate legislative purpose," the reason Treasury Secretary Steven Mnuchin cited in his decision not to release Trump's tax returns to the House Ways and Means Committee. No one questions the congressional power to impeach, so launching an impeachment inquiry "removes whatever doubt a court might otherwise have about the existence of a legitimate Article I purpose for demanding information of limited facial relevance to possible congressional legislation," Harvard law professor Laurence Tribe wrote in an email.

Laurence Tribe talks with Lawrence O'Donnell about the Trump subpoena war with Congress on The Last Word.

President Trump’s lawyers now generate a nonstop stream of frivolous defenses in his all-out assault on Congress. On Monday, they made the ludicrous claim that former White House counsel Donald McGahn, who provided evidence to special counsel Robert S. Mueller III that wound up in the redacted Mueller report, cannot come tell Congress and the American people what he told Mueller. ... Constitutional scholar Laurence Tribe tells me, "[The White House’s] efforts are totally groundless, as the Harriet Miers case made clear. There simply is no textual, structural, or historical basis for a sitting president to gag his former White House Counsel in response to a House subpoena seeking testimony about possible criminal and potentially impeachable conduct by that president. " He adds, “The place of Congress as a coequal branch would be obliterated if the efforts to silence McGahn could succeed. And all power to hold the president accountable would be destroyed unless those efforts were swiftly repudiated.”

With states from Alabama to Missouri passing laws that would restrict or nearly ban a women’s right to abortion, is a women’s right to choose at risk of being overturned on the federal level? ... Laurence Tribe, professor of law at Harvard University, explains that a law such as that in Alabama is “clearly in conflict with Supreme Court precedent.” As such, it is likely that it would be struck down by the lower courts, because they are “bound by Supreme Court precedent even if they predict that precedent might be overturned by the Court.”

Subpoenas are flying. Lawsuits are multiplying. Democratic leaders claim the country is in the grip of a “constitutional crisis.” And President Trump is crying foul. While it may sound like just the latest twist on Washington’s workaday partisan warfare, numerous legal experts and other scholars say the escalating conflict between House Democrats investigating the president and a defiant White House is entering uncharted territory. ... Laurence Tribe, a Harvard constitutional law professor and a political liberal, called Trump’s blanket refusals to comply with numerous subpoenas and other requests “completely unprecedented in the history of the United States.” ... “We’re at the beginning of a very lengthy and rather complicated and various process,” given the numerous prongs of the broader standoff, and the complexities embedded in each case, said Harvard law professor Charles Fried, who was solicitor general under President Ronald Reagan. The slowness of the legal process will likely work to Trump’s political favor, he said.

The Post reports: A federal judge on Thursday ordered that prosecutors make public a transcript of a phone call that former national security adviser Michael Flynn tried hard to hide with a lie: his conversation with a Russian ambassador in late 2016. ...How big a deal is this? “It appears to support the mounting evidence uncovered by Mueller that Trump’s lawyers, and presumably Trump himself (unless his lawyers were on an unauthorized mission of their own, which seems most unlikely), were committing the felony of witness tampering,” constitutional lawyer Laurence H. Tribe tells me. “And the subject matter — what we were conceding to our Russian adversaries — went to the core of our national security. So it seems like a very big deal indeed.”

The authors of Alabama's new law criminalizing abortion have left no doubt that they passed it to provoke the U.S. Supreme Court into overturning Roe v. Wade's protection of a woman's right to choose. But there's no guarantee that will happen.... Harvard Law School professor Laurence Tribe, one of the nation's leading constitutional experts, says overruling Roe and the follow-on case upholding it, Planned Parenthood v. Casey, "would upset much deeper and broader societal reliance interests" than those at issue in this week's case about suing the states. "So there is cause for concern," Tribe says, "but not panic."

Alabama Gov. Kay Ivey (R) approved a near-total abortion ban on Wednesday aimed at the United States Supreme Court and designed to overturn Roe v. Wade, the landmark 1973 decision establishing a woman’s right to an abortion under the U.S. Constitution. Roe v. Wade makes it clear that women have a right to abortion guaranteed by the 14th Amendment, but the Alabama measure almost universally prohibits abortions. Doctors who perform an abortion are to be subject to at least 10 and as many as 99 years in prison. The only exception in the legislation is if a pregnancy puts a woman’s life at risk. ...But Laurence Tribe, a law professor at Harvard, doubts the Supreme Court will even take the case if the 11th Circuit upholds a ruling from the district court blocking the law.  “This clumsy gambit will be a total flop,” he wrote in an email.

President Trump is using the Justice Department in unprecedented, partisan ways and asserting ludicrously aggressive and unprecedented claims of executive power. The question is whether — in some cases, at least — the courts will stop him. ... “Consovoy’s arguments on behalf of Trump, seeking to block private entities from turning over documents and information needed by Congress to perform its Article I functions, are so preposterous that Judge Mehta had no choice but to resist them,” constitutional scholar Laurence Tribe told me. “For the district court to accept those arguments would be astonishing — an unthinkable loss for the separation of powers. For the district court to reject those Trump arguments, as I expect it to do, will be an unsurprising win — a big victory but too predictable to count as a game-changer.” By making an argument that virtually writes Congress out of the equation, Trump’s lawyers may have set him up for a rude awakening on the subject of separation of powers. As Tribe put it, “It’ll be a self-inflicted wound suffered by Team Trump.”

An op-ed by Laurence Tribe: The Supreme Court this week held that a state may not be sued in the courts of another state. Ordinarily, the public would take little note of a decision so technical and procedural. Aside from specialized groups of lawyers and academics, it would’ve drawn a yawn. Instead, the opinion, Franchise Tax Board of California v. Hyatt, sparked a media firestorm suggesting the decision could have major implications for several lightning-rod issues, particularly abortion, and set a new standard for the depths of partisanship to which the Supreme Court has sunk. These fears are well-founded, but somewhat premature — the worst reverberations of this decision may well be mitigated if the dissenting justices act wisely.

The Supreme Court overturned a 40-year-old precedent on Monday in a split 5-4 ruling that legal experts said did not bode well for the future of other well established cases like Roe v. Wade. ... Though Harvard Law professor Laurence Tribe argued that while Breyer was right to challenge the majority’s reasoning in this decision, he wouldn’t “lightly assume that the chief justice, for instance, would be as willing to overrule the abortion precedents as he was willing to upend the interstate sovereign immunity precedent set by Nevada v. Hall.” ... “Especially noteworthy about the decision today was the majority’s explicit concession that its new ruling was based on nothing in the Constitution’s text but on general inferences from the constitutional design, structure and history,” Tribe said.

... Are we currently in the midst of a genuine constitutional crisis? Would we even know one if it bonked us on the heads? The last time people started throwing the C-words around, it was January of 2017, when the newly inaugurated Trump had just signed an executive order closing America’s borders to travelers and refugees from seven majority-Muslim countries. ... Harvard Law School professor Laurence Tribe agrees that this probably isn’t the time to parse legal language: “Crisis schmisis—what’s in a word? We’re under an ongoing cyberattack from a hostile foreign power that helped install an imbecilic self-seeking con man as our leader, who committed numerous felonies to avoid being held accountable for his illegitimate election, who is encouraging ongoing attacks by that same foreign power and others, who violates his oath of office daily, and who seems secure from removal by virtue of a spineless Senate abetted by a cowardly House. Our constitutional norms are in meltdown as we watch in helpless stupor waiting for the monster to steal or cancel the next election. If this doesn’t qualify as a crisis, the word should be retired forthwith.”