Mark Tushnet

Former President Trump left office as numerous lawsuits against him and his administration still hung in the balance, a result that legal experts say was part of a calculated strategy to run out the clock and avoid accountability while in the White House. By dragging his feet in court, Trump evaded subpoenas for his tax returns and dodged a final ruling on whether his continued business dealings violated the Constitution’s ban on profiting off the presidency. His administration also upended the legal process, experts say, by treating emergency requests to the Supreme Court as a standard litigation move, often with success...Some legal actions focused on Trump, like efforts to obtain his tax returns, are expected to continue post-presidency. But experts say that while he was in office, Trump's drain-the-clock strategy allowed him to avoid accountability and carry out policies before their lawfulness was ultimately resolved, leaving key questions about executive power unanswered as President Biden took office Jan. 20...Mark Tushnet, a Harvard Law professor, said Trump’s approach worked in part due to some of the legal vulnerabilities in these cases. Embedded in the emoluments disputes, for instance, were thorny questions about who had a legal right to sue. “Sometimes the claims about Trump's actions had some weak spots,” Tushnet said. “Maybe not enough to lead to an inevitable defeat for Trump, but enough to take up time in litigating.”

There will be no tourists dotting the sprawling green grass of the Capitol lawn as Joe Biden is inaugurated the 46th president of the United States. There will be no cheering crowds, no vendors hawking merchandise. The monuments named in honor of former presidents — Washington, Lincoln, Jefferson — will be closed. But there will be protests — exactly two, with fewer than 100 demonstrators at each, tucked away near the National Archives and Union Station inside a secure perimeter, along largely vacant D.C. streets...First Amendment experts are closely watching the unfolding scene in the District. Though safety and free speech can coexist, legal experts said, they caution against overreach as an unprecedented portion of federal parks, major roads and access to government buildings are shut down. “The more restrictions there are, the more troubling it is for democracy,” said Mark Tushnet, a retired Harvard Law School professor and First Amendment scholar. “It may be completely understandable given security concerns or threats, but it is still a cost.” ... Virtually no one will be there to witness the demonstrations, which Tushnet said can feel to activists like being “put in a box” by officials. “The theory these days is that even though these demonstrators are, in some cases, being put quite far from the event or people they’re protesting, the method of getting your message out has changed some,” Tushnet said. “It’s no longer by shouting at people directly but rather through media, including social media, and for that it really doesn’t matter how close you are to the venue.”

The city of Detroit is asking a federal judge to impose sanctions against attorney Sidney Powell and other lawyers involved in filing the infamous “Kraken” lawsuit, which the city argues was “frivolous” and was filed for the “improper” purpose of “undermining people’s faith in the democratic process.” Powell, who the Trump campaign cut ties with in late November, has been involved in filing dozens of the over 50 failed legal attempts to overturn the election’s results—most notably lawsuits she dubbed the “Kraken,” because she believed they were based on overwhelming evidence of fraud, that have been embraced by the QAnon conspiracy theory community...While it’s typically uncommon for lawyers to be sanctioned under what Bruce Green, who directs Fordham Law School’s Louis Stein Center for Law and Ethics, describes as a “vague standard,” multiple legal ethics experts told Forbes that Detroit could succeed in punishing the “Kraken” team, though it depends entirely on the judge’s determination...Harvard Law School Professor Mark Tushnet was less convinced, arguing that the notoriety of the defendants may prevent the court from wanting to get involved. “I think it extremely unlikely that this motion will lead the judge to consider seriously the issue of sanctions,” said Tushnet, echoing reservations expressed by Green. “Partly that's because I believe that the judge, like most of us, will just want to put this whole episode behind us, rather than prolonging it. And this motion in particular has the feel of just a follow-up act in the ‘political theater.’”

President Trump’s legal team is entering into what might be its most desperate election challenge yet — and given its overwhelmingly failed past efforts, that’s saying something. Its move to join in the attempts by Texas Attorney General Ken Paxton (R) to have the Supreme Court overturn the results in four key states has been ridiculed even by some top Republicans...Harvard University law professor Mark Tushnet argues that there are violations of Rule 11 in the Texas lawsuit and others filed on behalf of Trump, given that several of them have included false allegations, affidavits from witnesses whose claims judges said didn’t stand up and inaccurate descriptions of those affidavits. But he notes that the bar for a judge deeming a lawsuit frivolous or in violation of Rule 11 is generally high and that politics could factor into any decisions to sanction the lawyers involved. “Judges haven’t yet issued sanctions because, again in my view, they are sensitive to the fact that in the current context, doing so would immediately subject them to criticism for acting in a partisan manner,” Tushnet said. “A Trump-appointed judge might be more immune from that criticism than others, though not entirely immune.”

President Donald Trump was hedging his bets on a judicial branch that now carries a powerful Trump imprint, hoping judges and justices would do what voters and state secretaries of state did not: give him a second term. But in the end, the courts didn't come through for Trump, who Friday evening lost what was almost certainly his last, long-shot effort to hang onto power after failing in his reelection bid against President-elect Joe Biden by more than 7 million votes. A Supreme Court that is one-third Trump appointees rejected a lawsuit led by the state of Texas and joined by 17 other GOP-led states to challenge the results in several battleground states that voted for Biden...Presidents can appoint hundreds of jurists to the federal bench, but once in the job judges and justices don't work for the president and have zero obligation to do his bidding. "It's not inaccurate to say that the three (Supreme Court) Trump appointees are extremely conservative. That doesn't mean they are going to do whatever the incumbent president or the conservative majority in the Senate or congressional minority in the House want them to do. It just doesn't work like that," says Mark Tushnet, a Harvard Law School professor who clerked for the late Justice Thurgood Marshall. "They're conservative in an ideological sense, not in a partisan policy sense," Tushnet adds. The case launched by Texas Attorney General Ken Paxton was so weak, Tushnet says, that it was always going to be nearly impossible for the high court to rule in team Trump's favor. "Even if they were extremely driven by pure politics – which they aren't, but even if they were – you have to give them something to work with," Tushnet adds. And Paxton's claim – that Georgia, Michigan, Pennsylvania and Wisconsin conducted fraudulent elections, harming Trump-supporting Texas – was the thinnest of legal stretches, he says.

President Donald Trump has declared that he has the “absolute right” to issue a pardon to himself. Yet the law is much murkier than his confidence suggests. No president has attempted to pardon himself while in office, so if Trump tries to do so in the next six weeks, he will be venturing into legally untested territory without clear guidance from the Constitution or from judges. Legal experts are divided on an inherently ambiguous question that was left vague by the Founding Fathers and has never had to be definitively resolved in court...The question of whether Trump will do it, though, is as unsettled as the question of whether he can. A self-pardon, which Trump has openly mused about, would on one hand be fitting as a final norm-shattering act in a presidency defined by them. But it might also be at odds with his oft-stated conviction that he has done nothing wrong for which he needs to be absolved...Mark Tushnet, a retired Harvard Law School professor, said he doubted any court would overturn a presidential self-pardon, though he said such an act would constitute an abuse of power that would have been abhorrent to the framers of the Constitution. “For them, I believe it would have been unthinkable that the American people would ever elect the kind of person who would pardon himself. Which is why they didn’t say anything about the possibility,” Tushnet said. Since presidential pardons don't cover state crimes, it would seem unlikely a self-pardon would extend in any event to the state investigations Trump is facing.

Joe Biden won the presidency promising to bring Americans together. But now his administration is sure to come under pressure from some Democrats to risk exacerbating divisions by investigating and prosecuting Donald Trump. It would be a turnabout of the “Lock him up!” chants regularly directed at Biden by Trump’s supporters at campaign rallies. Although Biden has said that prosecuting a former president would be a “very unusual thing and probably not very good for democracy,” he also vowed in an NPR interview in August that he wouldn’t “interfere with the Justice Department’s judgment of whether or not they think they should pursue the prosecution of anyone that they think has violated the law.” ... Mark Tushnet, a Harvard law professor, said some potential charges against Trump would probably be seen as far more political than others. The Biden administration should go after only the most “egregious” crimes, Tushnet said, rather than pursue charges based on Mueller’s findings, which the president’s supporters have dismissed as a hoax. “If there is classical bribery, that should be prosecuted,” he said...Some liberal academics and former government officials have proposed another alternative to a federal criminal investigation: a bipartisan fact-finding panel, often described as a “truth and reconciliation committee,” that would focus on documenting any abuses that may have taken place during the Trump administration rather than recommending charges. Tushnet, the Harvard law professor, said he sees such a panel as a middle path between prosecuting Trump and granting him impunity -- a way to hold the previous administration accountable without creating a partisan firestorm. “We need to get back to normal,” Tushnet said. “The question is, ‘What’s the best way?’”

A too-close-to-call election night. A supreme court and a legislature at odds with each other. A pivotal swing state with a large number of electoral votes up for grabs. A challenge over which ballots should be counted. A barrage of lawsuits. Sound familiar? Two decades ago, all eyes were on Florida as Election Day came to a close and the fate of the presidency rested in the hands of the Sunshine State. What followed was weeks of litigation over a recount of 537 votes, and an election ultimately decided by the U.S. Supreme Court in Bush v. Gore. In 2020, Pennsylvania has been called the “tipping-point” state— the state that could give either Democratic presidential candidate Joe Biden or Republican candidate Donald Trump the edge to capture enough electoral votes to be declared the winner... This combination of factors — the litigation, the misinformation, and the likely delay in getting millions of mail ballots counted, thus delaying final results — could give Pennsylvania the spotlight on Election Day and beyond, much like Florida received in 2000...Mark Tushnet, a professor of constitutional law at Harvard Law School, said looking at the presidential election one week out, he’s not sure whether the race is going to be close anywhere. But if it were to come down to Pennsylvania, the days following the election would be similar to Florida in 2000, where the state Supreme Court would be the initial actor on a lot of litigation. “At the outset, everything is going to be up for grabs,” he said. “The challengers will use every available challenge to get the initial vote to change in a way favorable to them.”

Despite the recent concerns about coronavirus exposure at the Capitol — and the fast-approaching general election — the Senate confirmation hearing for Supreme Court nominee Amy Coney Barrett is still happening. The hearing will air Monday, October 12, through Thursday, October 15, beginning at 9 am each day...Day one of the hearings will start with opening statements from Barrett as well as from every member of the committee, which is helmed by Chair Lindsey Graham (R-SC) and ranking member Dianne Feinstein (D-CA). Meanwhile, questions for Barrett are slated to take place on Tuesday and Wednesday, and a panel of outside witnesses will testify about her nomination on Thursday. The hearings mark one of the key steps in Republicans’ efforts to rush through Barrett’s nomination just weeks ahead of the general election, and its set-up will be somewhat different from confirmations in the past...An area that Democrats are expected to avoid is a focus on Barrett’s faith, which was a centerpiece of her 7th Circuit hearings, because she’s previously written about it in the context of possible judicial decisions, CNN reports. As Millhiser notes, however, some of the questions during those hearings — including a memorable one from Feinstein — came off as attacks on Barrett’s Catholicism rather than its relationship to her work. “It is fair game to criticize a nominee for their political beliefs, including their opposition to abortion. And it is fair game to criticize someone for political beliefs that are inspired by their religious faith,” writes Millhiser. “But, in a disastrous exchange with the future Judge Barrett during her 2017 confirmation hearing, Sen. Dianne Feinstein (D-CA) appeared to go a step further — seeming to attack Barrett’s Catholicism itself.” Harvard Law Professor Mark Tushnet has noted, though, that it’s possible for lawmakers to ask Barrett about her previous writings about faith and capital punishment without “lapsing into anti-Catholicism.”

Barely a week after the death of Ruth Bader Ginsburg, before the late justice had even been buried, President Donald Trump hosted a Rose Garden ceremony to formally announce his nomination of Amy Coney Barrett to fill the open seat on the Supreme Court. A week later, it appears that the inauspicious ceremony may have been at the center of the coronavirus outbreak now plaguing the White House and the Senate. Yet even with the president hospitalized and three Republican senators infected with the virus, the Republican Party is barreling ahead with its effort to install Barrett mere weeks before Election Day. The reckless rush to vote is an indication of the desperate and corrosive power grab at play, one that places the future of the Court at risk. If Republicans succeed, and Democrats win the Senate and the White House in November, Democrats must add seats for additional justices—not as a means of political one-upmanship, but, paradoxically, to save the Court...However, if Biden wins the election, then the Senate should decline to vote on Trump’s nominee and Biden should fill the seat. It is not too late to take this path, which is right for the country and the Court. This is not to say that a Republican-controlled Senate doesn’t have the constitutional power to confirm a nominee right now—it clearly does. But in exercising this power, Republicans would be committing themselves to an extreme form of “constitutional hardball”—a term coined by the legal scholar Mark V. Tushnet to describe the exercise of raw political might that, while legally permissible, violates the “assumptions that underpin working systems of constitutional government.” If Democrats gain the Senate and the White House in 2021, they will be faced with the choice of either engaging in reciprocal hardball—by wielding the raw political power to expand the Court, for example—or doing nothing and acquiescing to the breach.

When the framers of the Constitution debated the document’s careful system of checks and balances, they confronted a question that would only become more important over time: Should there be a mandatory retirement age for federal judges? Alexander Hamilton argued against one. Writing in The Federalist Papers, he dismissed “the imaginary danger of a superannuated bench.” Hamilton won out, and the Constitution placed no term limits on the service of federal judges, including the men and (much later) women who would make up the Supreme Court. More than two centuries later, the United States stands alone in its handling of lifetime appointments to its highest court, and the drawbacks of a “superannuated bench” have become ever more clear. Last Friday, Justice Ruth Bader Ginsburg became the third member of the Supreme Court to die in office in the past 15 years. Her death injects a partisan fight over the judiciary into the tempest of a presidential election, and it has brought about a nightmare scenario for Democrats, who have long feared the possibility that a conservative would replace her progressive vote on the Supreme Court and shift the nation’s jurisprudence dramatically to the right. But it also serves as a reminder that only in the U.S. does the balance of so much national power hang on the ability of an 87-year-old jurist to hold out for a few more months against the ravages of disease and the inevitability of life’s natural course... “Everybody who’s thought about designing a constitutional court since 1900 has thought that a retirement age was a good thing. There’s no reason to think that they were wrong,” Mark Tushnet, a Harvard law professor and legal historian, told me. “The existence of tenure until death or choice is extremely rare around the world.” There’s a fairly simple explanation for why the Framers decided against a mandatory retirement age, Tushnet and other legal historians told me: People didn’t live as long back then, and, as Hamilton wrote, few “outlived the season of intellectual rigor.”

The U.S. Supreme Court hasn’t always had nine justices—it started with six, went briefly down to five, back to six, then seven, then nine, and, during the Civil War, ten. If Trump confirms a replacement for Ruth Bader Ginsburg and Democrats later regain the presidency and Senate, Democrats are threatening to change the number again. The Constitution doesn’t specify that the Supreme Court needs to be a particular size. The founders “knew the country was going to grow,” says Mark Tushnet, a professor emeritus at Harvard Law School who serves on the advisory board of Take Back the Court, an organization that aims to reform the judiciary. “They didn’t want to saddle the Constitution with a particular formulation. They could design a court that would fit the country that they were living in. But they didn’t know what was going to happen in the future and wanted to leave it open.” The current size of the Supreme Court has been in place since 1869. During the Great Depression, after the court repeatedly struck down New Deal legislation, Franklin D. Roosevelt proposed “packing the court” with more justices. “There’s a subsurface argument that’s going to surface soon that, in fact, since the failure of the court-packing plan in 1937, a kind of constitutional convention has been created that you can’t change the size of the court merely for political reasons,” Tushnet says. Still, he says that the standard legal opinion now is that the president and Congress can choose to change the number of justices at any time they want. There’s no reason that nine is a magic number. “If you look around the world at constitutional courts, the number varies between 7 and 15,” he says. “And courts with sizes larger than 9 manage to work as well as our court does. So as an issue of simply managing the institution, going from 9 to 11 or 13 probably shouldn’t be a difficulty.”

Democrats are furious over the push by President Donald Trump and Senate Republicans to move quickly on a Supreme Court nominee to replace the late Justice Ruth Bader Ginsburg. They vowed to consider options for how they might respond if a confirmation vote is held before the presidential election Nov. 3. Among the potential measures some advocated is the possibility of Democrats expanding the Supreme Court – an idea often referred to as court packing – if they win the White House and majorities in both houses of Congress. Supporters of such a move argue additional justices appointed during a Joe Biden administration would offset the conservative majority, which they said was unfairly established...Harvard Law Professor Mark Tushnet told USA TODAY the size of the court was changed for political reasons several times before 1869. Tushnet who sits on the advisory board of Take Back the Court – a group that advocates for expanding the number of Supreme Court justices as "the only strategy that rebalances the court after its 2016 theft." Tushnet said Congress expanded the court during the Civil War "to make sure that there'd be a Republican majority on the court. And then, when Andrew Johnson became president, they reduced the size of the court so that he wouldn't be able to appoint unsympathetic justices." ... Harvard Law Professor Laurence Tribe told USA TODAY that if Democrats expand the court for political reasons, they risk "an unending escalation" in which each party changes the size of the court when it has the political power to do so. Tribe denounced Republicans' handling of Garland's nomination and Ginsburg's vacancy as "hypocrisy" and "unprincipled." He said changing the court in retaliation is an "understandable impulse," but in the long run, it could mean sacrificing "the idea of the Supreme Court as a stable institution, one of the few that can provide a kind of ballast for the ship of state." "And the long run matters," he said.  Tushnet acknowledged the risks but said Republicans forced Democrats to play "constitutional hardball."  "If Republicans play hardball, it seems to me perfectly appropriate for Democrats to play hardball in response," Tushnet said. "When one side plays hardball and the other doesn't, that can erode democracy, too. And mostly, that's what we've experienced in the United States already."

As the election nears, anxieties are growing over the possibility that President Donald Trump will try to cling to power if he loses to former Vice President Joe Biden. Trump, for his part, is strongly hinting he will not accept any loss as a legitimate result. On Thursday, the president said that he’s deliberately blocking funding to the United States Postal Service in order to prevent people from voting by mail in the midst of the pandemic, which he claims, without evidence, will result in mass fraud...All this has led many Americans to wonder: What can proponents of democracy do to prevent a stolen election? ...Mark Tushnet, professor of Law at Harvard Law School, warns that results on election night may be misleading due to a close race and the slow counting of mail-in ballots. In 2018, late-counted mail-in ballots after Election Day caused a “blue shift” that understated the depth of the Democratic victory on election night. Trump could take advantage of this delay, aided by overeager—or friendly—media outlets. Tushnet writes: “ ‘Close’ and ‘slow’ are concepts that will be developed on the fly, and with an eye to electoral advantage, but my current version is that margins of around 10,000 votes or fewer will be [construed] to be close. And what counts as slow will depend in part upon whether states provide interim updates from election-night reported outcomes.” Countermeasures: “Immediate popular mobilizations in the form of street demonstrations near but not in the venues where mail-in ballots are being counted (so not the ‘Brooks Brothers’ Republican riot from 2000), with the theme ‘Count every vote.’” Likelihood: This scenario depends on the race tightening in the weeks ahead, the difficulty of counting mail-in ballots, and willingness of the GOP to weaponize an indecisive election night outcome against democracy. Which is to say, it is highly plausible.

The Supreme Court under Chief Justice John Roberts in the term that ended Thursday demonstrated a willingness to buck conservative expectations and a preference for shifting the law by increments rather than sweeping pronouncements. The institutional independence of the Roberts-led court struck notes of stability and caution against a landscape of hyper-partisanship, and tempered conservative notions that President Trump’s nominations had created a fortress on the court...The conservative-majority court delivered wins and losses to both liberals and conservatives alike, though largely without issuing maximalist rulings in either direction. Court watchers attributed this to Roberts’s stewardship...What was perhaps more remarkable than Roberts’s vote in the cases was the decision by Trump’s two nominees, Justices Neil Gorsuch and Brett Kavanaugh, to join Roberts and the court’s liberal wing to form a 7-2 majority and validate a grand jury subpoena for Trump’s tax returns. Roberts was likely heartened that his fellow conservatives' votes allowed the court to avoid issuing the landmark rulings along ideological lines, which would have given the impression of an unduly politicized outcome. But the votes by Gorsuch and Kavanaugh were also likely to deepen the president’s sense of defeat, as the justices’ hard-won confirmation battles raised expectations that a solid right-wing majority would control the court for the foreseeable future...While conservatives did notch clear victories in the realm of religion and the administrative state, many analysts believe Roberts' restrained approach was the reason they did not claim more wins or achieve a more wide-reaching impact. “Obviously, there was some degree of tempering conservatism in outcomes,” said Mark Tushnet, a professor at Harvard Law School.

Pressure is mounting for Kansas State University to expel a student whose insensitive tweets about George Floyd last week sparked a national uproar. But a critical question looms: Can the university legally kick out a student for exercising his First Amendment rights? “A student at a public university making an extremely offensive statement on social media is almost quintessentially the kind of thing that should be protected against sanctioning by public authorities,” said Mark Tushnet, a Harvard Law School professor. “And sanctioning would include expulsion from a public university. On the face of it, it seems to me that taking action directly against the student would be a violation of the First Amendment.” Jaden McNeil, a junior in political science and head of K-State’s America First Students chapter — a controversial group he formed earlier this year — posted the tweets Thursday afternoon...Tushnet of Harvard Law said if K-State does expel McNeil and he files a lawsuit, his chances of success would depend on the kind of remedy he was seeking. “If he wanted to be readmitted, then he’d have a pretty good chance of winning,” he said. “If he wanted damages for injury to his career or something like that, it would be a closer question.” Tushnet acknowledged that the incident puts university officials in a difficult position. “That’s why you hire good administrators,” he said. “I can imagine a very good administrator, president, deans, figuring out a way to work with the athletic teams in a way that would leave them satisfied without expelling the student. But that depends on the president’s ability and local circumstances, all of which I don’t know.”

Donald Trump will not go gentle into that good night: he will rage, rage, rage-tweet against the dying of his might. Indeed, he is already doing so. After a humiliating turnout at Saturday’s rally in Tulsa, Oklahoma – which capped one of the worst weeks of his presidency – Trump’s re-election chances look shakier by the day. Rattled and belligerent, he seems to be gearing up to contest a defeat in November...But Trump does not plan to lose. One reason he may be so obsessed with election-rigging is that he is doing his best to rig the election himself. Earlier this year, the Trump campaign launched a multimillion-dollar legal battle to stop the Democrats making it easier to vote during the pandemic by, for example, expanding mail-in voting. Trump may be deluded about a lot of things, but he seems to realise that the greater the number of people able to vote, the worse his chance of re-election. He told the politics site Politico last week that losing the lawsuits could cost him a second term. If my wildest dreams come true and Trump loses in November, it is, as his recent tweets make clear, almost inevitable that he will contest the results. Whether he is able to do this in court rather than just by screaming into the void depends on how close the results are in important states. “Close” is subjective – “I’d guess that Trump would claim ‘close’ if the margin is less than 10,000 – no matter the size of the state,” says Mark Tushnet, a constitutional law expert at Harvard. But even if he is able to demand a recount, Trump cannot barricade himself in the White House for ever.