Media Mentions

In a Monday interview on Boston Public Radio, constitutional law expert Laurence Tribe said the coming Senate impeachment trial of former President Donald Trump will be “completely devastating for the country to watch” and predicted that a handful of Trump’s Republican supporters in the Senate will be “shaken” toward a conviction vote. "I believe that the presentations will be spell-binding, and I believe they will be terrifying,” he said. The Senate impeachment trial is scheduled to begin Tuesday. Should all Democrats vote to convict Trump, a total of 17 Republicans will need to cross party lines to meet the two-thirds threshold for a full conviction. Currently, only a handful of Senate Republicans are expected to side with Democrats. At the moment, the two dominant Republican arguments against conviction are that the Constitution doesn’t allow for the impeachment of a president who’s already left office and that Trump’s call for supporters to “fight like hell” on Jan. 6 falls under First Amendment protections. The Harvard Law School professor emeritus, however, said neither of those arguments hold much water. "There are almost no serious people saying that the Senate doesn’t have the power” to convict Trump, he said. To the question of whether the president’s calls to action consititute protected speech, Tribe cited the oft-used example of shouting “fire” in a crowded theater.

Harvard Law Professor Jeannie Suk Gersen discusses potential arguments and precedents in the trial of former President Donald J. Trump Tuesday on charges that he incited the deadly Jan. 6 attack on the U.S. Capitol.

With the Senate’s impeachment trial starting oral arguments on Tuesday, Donald Trump now faces the possibility of real consequences for his role in inciting the Capitol siege of Jan. 6. But the apparatus that fed him much of his power — the conservative news media — is facing a test of its own. This might ultimately have a much bigger impact on the future of American politics than anything that happens to Mr. Trump as an individual. In recent weeks, two voting-technology companies have each filed 10-figure lawsuits against Mr. Trump’s lawyers and his allies in the media, claiming they spread falsehoods that did tangible harm. This comes amid an already-raging debate over whether to reform Section 230 of the Communications Decency Act, which prevents online companies from being held liable for the views expressed on their platforms...Jonathan Zittrain, a Harvard Law School professor who studies digital media, sees a sea change coming. In the early decades of the internet, he said, most legal discussions were guided by a question of “rights,” particularly the right to free speech under the First Amendment. But in recent years, a new interest in what he called “the public health framework” has taken hold. “Misinformation and extremism — particularly extremism that’s tied to violence — can result in harm,” Mr. Zittrain said. “Given that there are compelling things in both the rights framework and the health framework, there’s going to be a balance struck.”

More than half of workers in the state’s Department of Correction— about 3,000 — have refused a coronavirus vaccine, according to state data. The workers are part of the more than 5,400 correctional personnel and contracted healthcare staff employed across the state prison system. Corrections officials say some of the employees may have been vaccinated elsewhere and that the department is working to educate employees about the benefits of the vaccine. But prisoners advocates say the significant number of refusals reflect a weaknesses in a system that has contributed to the deaths of at least 19 people in the state’s prisons, with a population of about 6,500...Katy Naples-Mitchell, a staff attorney with the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, says correctional staff should be required to be vaccinated as part of their employment. At the same time, she says because of the lackluster number of vaccinations and an increase in COVID-19 variants, government officials should focus on reducing prison populations to stop the spread. Currently, there are more than 350 active cases of COVID-19 among prisoners statewide. “The state has a responsibility to make sure that people in its custody are safe,’’ she said.

Laurence Tribe explained what’s likely to could happen at former President Donald Trump’s Senate impeachment trial, including possible First Amendment defense arguments from GOP senators and what Trump could actually end up being charged with. Tribe is the a constitutional law professor emeritus at Harvard Law School.

An op-ed by Noah Feldman: The extended trial brief filed by Donald Trump’s lawyers advances three defenses: that Trump did not incite the Jan. 6 attack on the Capitol; that the Senate can’t try a president who is no longer in office; and that the First Amendment protects Trump from being impeached for words that, they say, don’t meet the requirements for criminal incitement conviction laid down by the Supreme Court. The factual defense is highly unconvincing, as anyone who watched Trump’s speech on Jan. 6 and saw the attack can attest. The argument that the Senate lacks jurisdiction over a president who is out of office is disproven by history and Senate precedent. The free speech argument is also wrong in a basic sense: The First Amendment prohibits Congress from making any law abridging freedom of speech. But this doesn’t apply in impeachments any more than the Sixth Amendment right to a jury trial would apply to the Senate impeachment trial. Yet the First Amendment defense requires deeper engagement than the other two, if only because it is less absurd. If it did apply to impeachments, the Supreme Court’s incitement jurisprudence contained in the famous 1969 case of Brandenburg v. Ohioprobably would have protected Trump’s speech.

The World Mental Health Coalition held a National Town Hall, where all panelists agreed it is vitally important to the nation that the Senate convict Donald Trump. As never before in our 231-year history, a president has been impeached for incitement of insurrection. It is imperative the Senate convict former president Donald Trump. Failure to do so would be an unforgivable dereliction of responsibility. Failure to do so would devastate the health of our nation. For these reasons, this extraordinary group of our country’s great legal, psychiatric, and historian minds came together at this moment of historical reckoning. The prestigious panel of speakers included: Laurence Tribe - Constitutional Scholar at the Harvard Law School and one of the country’s most influential Constitutional Law experts.

An article by April Xiaoyi Xu ‘21: The American legal system currently tends to excuse sleepwalking killers, particularly based on the involuntary act defense, more so than the insanity defense. By contrast, the law generally does not excuse psychopathic murderers. However, the status quo may not be the optimal or most just solution to this legal dilemma; depending on one’s philosophical beliefs regarding the tension between society’s interest and the accused’s rights, one can identify various flaws within the prevailing application of the insanity defense in cases involving sleepwalking and psychopathy. As the law is constantly evolving, there is space for growth in this area, especially with the advancement in neuroscience, which can offer more insight into sleepwalkers’ and psychopaths’ brains. In approaching the complex questions of whether and how the law should excuse sleepwalking killers and psychopaths from punishment, this article turns to relevant findings from neuroscience for support and focuses on one particular approach, that of the Model Penal Code (MPC) insanity defense. We begin with an overview of the relevant criminal law doctrine in contextualizing the MPC’s approach to insanity defense. We then apply the relevant MPC section, § 4.01, to the sleepwalking killer and psychopath contexts, bearing in mind relevant studies and findings in neuroscience and related scientific disciplines, as well as their limitations at this stage. Part of the analysis considers the U.S. Supreme Court’s latest insanity law decision, Kahler v. Kansas (2020), in relation to the subject matter of this article.

As former U.S. president Donald Trump's impeachment trial gets underway this week for his role in inciting the U.S. Capitol attack, some say the country's political institutions are at stake. To unpack the issue, Matt Galloway speaks with Ken Mack, the Lawrence D. Biele professor of law and affiliate professor of history at Harvard University, and Karen Tumulty, a political columnist for the Washington Post.

Rep. Jamie Raskin faces an immediate challenge as the top prosecutor in the second impeachment trial of former President Donald Trump: Many of the senators acting as jurors don’t think there should be one. The Maryland Democrat was picked by House Speaker Nancy Pelosi(D., Calif.) to serve as the lead impeachment manager in the Senate trial that starts Tuesday. The 58-year-old former constitutional-law professor will lead eight other Democrats in seeking to persuade the Senate to convict Mr. Trump of inciting an insurrection at the Capitol on Jan. 6...Harvard law professor Laurence Tribe, who taught Mr. Raskin, says he pointed Mrs. Pelosi toward Mr. Raskin’s legal knowledge early on after Mr. Raskin joined the House. “There are a lot of constitutional issues that come up in the House of Representatives, and she wanted to know, who did I know that she could lean on when these issues came up?” Mr. Tribe said in an interview. He named Mr. Raskin, as well as Rep. Adam Schiff (D., Calif.), the lead manager for Mr. Trump’s first trial, as lawmakers on whom it would be good for Mrs. Pelosi to rely.

An op-ed by Bruce Schneier: President Biden wants his Peloton in the White House. For those who have missed the hype, it’s an Internet-connected stationary bicycle. It has a screen, a camera, and a microphone. You can take live classes online, work out with your friends, or join the exercise social network. And all of that is a security risk, especially if you are the president of the United States. Any computer brings with it the risk of hacking. This is true of our computers and phones, and it’s also true about all of the Internet-of-Things devices that are increasingly part of our lives. These large and small appliances, cars, medical devices, toys and — yes — exercise machines are all computers at their core, and they’re all just as vulnerable. Presidents face special risks when it comes to the IoT, but Biden has the NSA to help him handle them. Not everyone is so lucky, and the rest of us need something more structural. US presidents have long tussled with their security advisers over tech. The NSA often customizes devices, but that means eliminating features. In 2010, President Barack Obama complained that his presidential BlackBerry device was “no fun” because only ten people were allowed to contact him on it. In 2013, security prevented him from getting an iPhone. When he finally got an upgrade to his BlackBerry in 2016, he complained that his new “secure” phone couldn’t take pictures, send texts, or play music. His “hardened” iPad to read daily intelligence briefings was presumably similarly handicapped. We don’t know what the NSA did to these devices, but they certainly modified the software and physically removed the cameras and microphones — and possibly the wireless Internet connection.

Along with books about Donald Trump, the biggest story in the publishing industry last year was “the racism reading list.” As millions took to the streets to protest the deaths of George Floyd, Breonna Taylor and other unarmed Black people senselessly killed by police, books about the history of race and racism in America shot to the top of bestseller lists. So voracious was this sudden hunger for education about the roots of our latest racial reckoning that a clever marketer might have thought to commission a version of CliffsNotes for the curriculum. As it turns out, two authors on that reading list were already on the case. In 2019, the award-winning authors Ibram X. Kendi (“How to Be an Anti-Racist”) and Keisha N. Blain (“Set the World on Fire”) began approaching other prominent Black writers to collaborate on a group history of the African American experience. Two years later, the co-editors have produced a volume of 80 short essays that is highly readable and far more compelling than a mere historical digest would have been. The book’s title, “Four Hundred Souls: A Community History of African America, 1619-2019,” refers to the 400 years since the first African slave ship, the White Lion, arrived in the colony of Virginia in 1619 — as well as to the collective spiritual journey traveled in that time span. The structure is both chronological and thematic, with each author covering a different topic over a five-year period, usually in 2,000 words or less. The contributors include renowned scholars (Annette Gordon-Reed, Molefi Kete Asante), Pulitzer Prize-winning journalists (Isabel Wilkerson, Nikole Hannah-Jones), nationally known activists (the Rev. William J. Barber II, Sherrilyn Ifill of the NAACP Legal Defense Fund) and living legends of the Black struggle (Angela Y. Davis).

President Joe Biden, the second Catholic in history to hold the office, has made religion a prominent element of his public role. He attended Mass on the morning of his inauguration, quoted the theologian and philosopher St. Augustine in his inaugural speech and placed a photograph of Pope Francis, whom he has praised as a personal inspiration, behind his desk in the Oval Office...Perhaps inevitably, the start of the Biden administration has kicked off a debate over how Catholic his policies actually are... “In a society with very few strong moral paradigms left, Catholic social thought is a well-organized tradition that has something for both left and right,” said Adrian Vermeule, a conservative professor of constitutional law at Harvard University. “Catholicism, despite or because of our polarized age, is becoming something like an organizing common language for a great deal of American public life.”

President Biden has signed more executive orders in his first weeks than any president since Franklin Roosevelt in the 1930s, and many of those orders focus on protecting the environment and fighting against climate change. Jody Freeman, professor at Harvard Law School and former Counselor for Energy and Climate Change in the Obama White House, joins Host Bobby Bascomb to dive deeper into how these actions lay the groundwork for strong climate policy and green investment.

Over the last few years, Section 230 of the 1996 US Communications Decency Act has metamorphosed from a little-known subset of regulations about the internet into a major rallying point for both the right and left. So when Democrats unveiled their attempt to overhaul the law on Friday, the technology world took notice. There have been other suggestions for how to change Section 230, and many threats from President Trump while he was still in office—but the bill, announced on Friday by Senators Mark Warner, Mazie Hirono, and Amy Klobuchar, appears to be the most significant step yet toward genuinely reforming it...The problem of online abuse and misinformation became impossible to ignore over the last year, with harmful online conspiracy theories fueling the pandemic, and political lies threatening the election. That culminated in January, when the violent assault on the US Capitolwas fanned by online groups and by Trump himself...The proposals are a “recipe for a bit of a mess” agrees Jonathan Zittrain, a professor of international law at Harvard Law School. He suggests that it may be more important to come up with common standards “to establish what is or isn’t actionable” to make sure that frivolous cases from ill-intentioned complainants do not get turned into vast, expensive lawsuits.

An op-ed by Cass Sunstein: The U.S. Supreme Court is strongly committed to the “marketplace of ideas.” It tends to believe, in the words of Justice Louis Brandeis, that the remedy for falsehoods and fallacies is “more speech, not enforced silence.” If you believe that, you might also believe that if people lie about Covid-19, the 2020 presidential election, a politician, a journalist, a neighbor — or you or me — nothing can be done. Sure, you can answer with “counterspeech”: the truth. And that’s it. The problem is in many cases, counterspeech is ineffective. Lies lodge in the human mind. They are like cockroaches: You can’t quite get rid of them. This psychological reality raises serious questions about current constitutional understandings and also about the current practices of social media platforms, including Facebook, YouTube and Twitter, in trying to stop falsehoods. Ironically, those understandings, and those practices, may themselves be based on a mistake of fact — something like misinformation. In United States v. Alvarez, decided in 2012, the Supreme Court appeared to rule that lies and lying are protected by the First Amendment. The court struck down a provision of the Stolen Valor Act, which makes it a federal crime if you claim, falsely, that you won the Congressional Medal of Honor. According to the court, that provision is unconstitutional; the government cannot punish that lie.

Taking aim at a key plank of the former president’s impeachment defense, the lawyers argued that the constitutional protections do not apply to an impeachment proceeding...Signed by Charles Fried, Martha Minow, Gerald Neuman, and Laurence Tribe.

The common ownership hypothesis suggests that when large investors own shares in more than one firm within the same industry, those firms may have reduced incentives to compete. Firms can soften competition by raising prices, reducing investment, innovating less, or limiting entry into new markets. Empirical contributions document the growing importance of common ownership and provide evidence to support the theory...Our analysis clarifies widespread misconceptions about the mechanism of common ownership. For example, in a series of award-winning papers, Lucian A. Bebchuk, Alma Cohen, and Scott Hirst have argued that because common owners such as index fund managers have “incentives, which would lead them to limit intervention with their portfolio companies […] it is implausible to expect that index fund managers would seek to facilitate significant anticompetitive behavior.” Our framework explains why common owners have an incentive to remain passive and not to intervene with portfolio companies, so we agree with the first part of that statement. However, it does not follow that this passivity makes the anticompetitive effects of common ownership implausible. In fact, it is precisely the lack of intervention when setting high-powered incentives for top managers or “excessively deferential treatment of managers,” as Bebchuk and Hirst call it that leads to less competitive product market behavior.

An essay by Jeannie Suk Gersen: Donald Trump is no longer the President of the United States. That is a tremendous relief. It is also the centerpiece of his defense in his upcoming impeachment trial, his second in thirteen months. Scarcely five weeks after the insurrection on the Capitol, the same Senate chamber that was desecrated by Trump’s followers (with one rioter even declaring at the dais that Trump won the election) will be the court of impeachment, to try Trump for “inciting violence against the Government of the United States.” Last week, Senate Republicans tried unsuccessfully to prevent the trial from going forward, by claiming that it is unconstitutional for the body to try a President who is no longer in office. Forty-five Republicans voted to quash the trial on that basis—including Mitch McConnell, who, as Majority Leader, made clear that a Senate trial could not begin before Trump left office. Their ability to rally around that uncertain constitutional argument—and to avert their eyes from the question of Trump’s guilt—appears likely to keep him from becoming the first impeached President to be convicted in the Senate. The Constitution’s Article I, which gives the Senate the “Power to try all Impeachments,” says that the remedy for a conviction “shall not extend further than to removal from Office, and disqualification to hold” federal office. A separate provision, in Article II, says, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

An op-ed by Ben Waldman ‘23: President Biden’s first foreign policy address at the State Department Thursday ended with a novel message: He will pursue a “foreign policy for the middle class.” While his speech included its fair share of important policy announcements, the most critical portion was rhetorical. He provided vivid examples of how his approach to the world—and U.S. global engagement generally—will benefit working American families. While talk of acting in the “national interest” isn’t new, the president began today what could be a renaissance of presidential communication on America’s role around the globe. Biden could be the first president since the end of the Cold War to communicate clear foreign policy goals to domestic audiences. Thursday’s speech should be the beginning of an enduring domestic messaging campaign, aimed at reinvigorating a healthy and realistic national awareness of American global engagement. As previous presidents have done, Biden used the occasion of his speech to communicate American policy to those aboard, who were no doubt listening intently. After telling the world that “America is back” and “Diplomacy is back,” he honed in on rising authoritarianism. He forcefully condemned the recent military coup in Myanmar, which was justified with baseless claims of a fraudulent election. Without directly addressing the capitol riot, the president decried any attempt to subvert the results of a democratic election with violence.

The “intellectual sword” Bruce A. Kimball and Daniel R. Coquillette ’71 recount in their excellent history about much of Harvard Law School's second century, defined the institution: its hyper-competitive student culture, its confrontational pedagogy, and its extraordinary influence on education.