Media Mentions

A virtual gathering titled “The Events of January 6 and the Future of American Democracy” featured HLS Professor Richard Fallon and other Harvard experts assessing the damage done by the Jan. 6 riots at the U.S. Capitol.

The Senate vote showing 45 Republican senators willing to brush off the impeachment trial makes it more imperative than ever to have a criminal trial on the merits in a setting where evidence can be taken seriously and spurious objections dismissed. Adding to the urgency of a criminal proceeding is former president Donald Trump’s decision to sack most of his legal team, headed by Karl S. “Butch” Bowers, with just a little more than a week before his Senate trial...A criminal trial could provide a severe deterrent for future presidents who attempt to retain power through violence. It is not enough to mouth the empty platitude that the ex-president’s behavior was “unacceptable” if there are no adverse consequences. Without punishment, his failed coup would remain an open invitation to future presidents to try the same sort of power grab. Constitutional scholar Laurence Tribe observes, “Impeachment is about getting rid of officeholders who endanger the republic by abusing their powers, not about punishing them for their crimes. Punishment still must be meted out if the rule of law is to be respected and wrongdoers are to be held accountable.”

Former President Donald Trump’s last-minute remake of his impeachment defense team leaves little time to prepare for arguments that are scheduled to start next week in the Senate trial over whether he incited the Jan. 6 insurrection at the U.S. Capitol. Trump announced on Sunday night that attorneys David Schoen and Bruce L. Castor Jr. will head his defense, after his previous lawyers led by Butch Bowers of South Carolina withdrew, with Trump’s initial response to the impeachment charge due Tuesday and the trial set to start Feb. 9...Jonathan Turley, a George Washington University professor who spoke on a Republican caucus call last week right before most senators voted that trying a president out of office is unconstitutional, said it’s reasonable for Trump to seek a trial delay to give new attorneys time to prepare if he wants it. But it’s not clear that Democrats would agree to such a request. Senate Democrats already pushed the start of the trial back two weeks to allow President Joe Biden some time to install his cabinet. Harvard University law professor Laurence Tribe said such a move would essentially allow Trump to “run out the clock” by retaining new lawyers. “No competent judge would let a defendant play this kind of endless game and essentially give the defendant control over the timing of the proceeding,” said Tribe, a frequent Trump critic.

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.”

It is a curious fact about the human race, which often lays claim to rationality, that some of the most important issues in life are undiscussable. It is less well known that major corporations face a similar issue concerning their most important question, namely what is their goal? In 1997, big business declared through the Business Round Table (BRT) that their goal was to maximize shareholder value. But 22 years later, in August 2019, in the face of increasingly severe critiques, more than 200 CEOs from major corporations signed a new BRT declaration renouncing the goal of shareholder value and embracing stakeholder capitalism. According to the new declaration, these firms plan to be pursuing the interests of all the stakeholders. Yet, according to studies made by Harvard Law Professor Lucian Bebchuk and his colleagues, there is no evidence that the firms in question have made any change in their actions since the 2019 declaration. Bebchuk concludes that the 2019 BRT declaration was “only for show.” In effect, we are dealing with a smokescreen: the goal of a major corporation has become undiscussable.

Social media services including Facebook Inc and Reddit restrict discussions about weapons, drugs and other illegal activity, but their rules do not specifically mention another lucrative regulated good: stocks. Some people think they should. Users of a Reddit group, in which 5 million members exchange investment ideas, generated significant profits by gorging on shares of GameStop Corp and other out-of-favor companies that had been shorted by big hedge funds...Social media companies are generally not liable for user activity under a statute commonly known as Section 230. Still, their rules bar illegal behavior like facilitating gun and drug transactions or distributing offensive content that could rile advertisers or generate calls for tighter regulation. Section 230 also has some carve-outs that in theory could lead to a tech company being penalized for user-generated content, including violations of federal criminal law, said Jeff Kosseff, a cybersecurity law scholar who wrote a book on the law...Harvard Law School professor Jesse Fried said the stock trading forums appear to be “purely legal behavior: irrationally exuberant buying by amateur investors.”

An op-ed by Cass Sunstein: It is already clear that President Joe Biden will be implementing a large number of his policies through executive action. The reason is equally obvious: Democrats control both houses of Congress, but with a 50-50 split in the Senate and thin majority in the House of Representatives, it will be challenging to enact ambitious legislation. Whether the issue involves climate change, Covid-19, occupational safety or civil rights, executive action might be the only game in town. Regulations are a primary vehicle for executive action, and they are often challenged in court. The federal judiciary now includes more than 200 judges chosen by former President Donald Trump. Won’t they be eager to strike down a lot of Biden’s regulations? It’s a fair question, but for the Biden administration, it’s less constructive to ask it than to take account of identifiable judge-made principles that regulators must respect. In recent years, the Supreme Court has issued two rulings that loom particularly large, and that could turn out to impose serious obstacles. The first of those rulings — a big setback for President Barack Obama — emphasizes the importance of cost-benefit analysis. The second — a big setback for Trump — underlines the need for agencies to give careful consideration to how disruptive a regulatory change might be to people who relied on the previous rules and requirements.

An op-ed by Jesse M. Fried and Charles C.Y. Wang: The European Commission recently released a sustainable corporate governance report claiming to find a problem of investor-driven short-termism, and proposing as a solution that power be shifted in EU-listed firms to other stakeholders. But the report’s findings are deeply flawed. And its proposed policies would, perversely, reduce business sustainability in the EU. As supposed proof of short-termism, the report points to rising levels of gross shareholder payouts — dividends and repurchases — and declining levels of investment. The claim: firms are increasingly showering cash on shareholders, stripping them of assets that could be used for long-term value creation. But the report mischaracterizes capital flows, mismeasures investment, and fails to consider firms’ cash balances. The actual data paint a very different picture. Start with capital flows. Oddly, the Commission’s report fails to account for equity issuances in measuring capital flows between firms and shareholders, focusing exclusively on flows in the other direction — dividends and repurchases. But as we have shown in a recent paper, stock issuances in the EU are substantial, far exceeding repurchases. During 2010-2019, for example, gross shareholder payouts represented 63% of net income. But equity issuances were almost half as large: 27% of net income. Thus, the ratio of net shareholder payouts to net income was 36%, a figure very similar to U.S. public firms.

As we grapple with disinformation driving the recent attack on the U.S. Capitol and hundreds of thousands of deaths from a pandemic whose nature and mitigation is subject to heated dispute, social media companies are weighing how to respond to both the political and public health disinformation, or intentionally false information, that they can spread. These decisions haven’t taken place in a vacuum, says Jonathan Zittrain ’95, Harvard’s George Bemis Professor of International Law and Professor of Computer Science. Rather, he says, they’re part of a years-long trend from viewing digital governance first through a “Rights” framework, then through a “Public Health” framework, and, with them irreconcilable, most immediately through a “Legitimacy” framework. Zittrain, co-founder of the Berkman Klein Center for Internet & Society, delivered his remarks as part of the first of two editions of the 2020 Tanner Lecture on Human Values at Clare Hall, Cambridge, a prestigious lecture series that advances and reflects upon how scholarly and scientific learning relates to human values. According to Zittrain, former President Donald Trump’s deplatforming from Twitter, Facebook, and YouTube, among others, is one of the most notable recent content moderation policy decisions — one which Facebook just referred for binding assessment by its new external content Oversight Board.

President Joe Biden outlined ambitious new plansfor taking on climate change on Wednesday, but the most potent weapon may already be in his arsenal. The five-member Federal Energy Regulatory Commission is poised to play a pivotal role fulfilling Biden’s clean-energy ambitions, including his vow to strip greenhouse gas emissions from the power sector over the next 14 years. FERC could help Biden deliver on those promises by fostering carbon prices on electricity, propelling a massive build-out of high-voltage power lines and making it harder to build natural gas pipelines...Biden can’t count on help from Congress. With Democrats having only a narrow hold on the House and Senate, it’s unlikely both chambers will pass broad clean energy legislation, including a nationwide renewable power mandate. Enter FERC, which can accomplish many of the same goals, said Ari Peskoe, director of Harvard Law School’s Electricity Law Initiative. “FERC will be an indispensable player in the Biden administration’s clean energy agenda,” Peskoe said. “It’s the federal regulator of two major energy industries -- the power sector and the natural gas industry -- so it matters a lot in how this energy transition plays out.”

An essay by Jeannie Suk Gersen: For years, Carlton F. W. Larson, a treason scholar and law professor at the University of California, Davis, has swatted away loose treason accusations by both Donald Trumpand his critics. Though the term is popularly used to describe all kinds of political betrayals, the Constitution defines treason as one of two distinct, specific acts: “levying War” against the United States or “adhering to their Enemies, giving them Aid and Comfort.” Colluding with Russia, a foreign adversary but not an enemy, is not treason, nor is bribing Ukraine to investigate a political rival. Ordering the military to abandon Kurdish allies in Syria, effectively strengthening isis, is not treason, either—though that is getting warmer. During Trump’s Presidency, Larson told me, his colleagues teased him by asking, “Is it treason yet?” He always said no. But the insurrection of January 6th changed his answer, at least with regard to Trump’s followers who attacked the Capitol in an attempt to stop Congress’s certification of the election. “It’s very clear that would have been seen as ‘levying war,’ ” he said. Both of Trump’s impeachments, in 2019 and 2021, were for “high crimes and misdemeanors,” but the Constitution also names treason as an offense for which a President can be impeached. Individuals, including a former President, may also be criminally punished for treason, perhaps the highest offense in our legal system, carrying the possibility of the death penalty. Fearing abuse of treason charges, the Framers gave treason a narrow definition and made it extremely difficult to prove.

Welcome back to Transmission Week here at Volts! In my previous post, I explained why the US needs lots of new high-voltage power lines. They will help stitch together America’s balkanized grids, connect remote renewable energy to urban load centers, prepare the country for the coming wave of electrification, and relieve grid congestion. And oh yeah — we won’t be able to decarbonize the country without them... Today, we’re going to walk step by step through the process and show why they’re not getting built. At each stage, we’ll look at what Congress can do — and what Biden can do without Congress’ help — to get the process moving...As Ari Peskoe of the Harvard Electricity Law Initiative writes in a recent paper, “FERC was optimistic that [the IOUs’] central-planning development model would be replaced by ‘well-defined transmission rights and efficient price signals’ that would facilitate market-driven expansion.” When it didn’t quite work out that way, once again, in order 1000, “FERC employed several mechanisms to pry control over regional transmission development from IOUs and break the IOU-by-IOU planning model,” Peskoe writes...IOUs have engaged in a “shift away from regional projects, which must be developed competitively, to smaller or supposedly time-sensitive projects that IOUs build with little oversight and without competitive pressures,” Peskoe writes, and RTOs have implicitly or explicitly supported them in this shift.

In the weeks following the Capitol attack, lawmakers, technology companies, and journalists have all grappled with the same question: What do we do about this? Congress—at least its Democratic majority—is pushing forward with Impeachment 2.0, as conviction in the Senate would bar the Inciter-in-Chief from ever holding public office. Congressional Democrats are also pushing to censure the “Sedition Caucus,” the Republican lawmakers who continued fanning the flames of insurrection even after the Capitol had been secured. Technology companies, meanwhile, opted for the Great Deplatforming. And newspaper editorial boards in the Sedition Caucus members’ districts have called for resignations. These reactions are appropriate; all responsible parties should be held to account for what happened on January 6. But we miss something critical when we narrow our attention to the worst offenders—the loudest instigators, the cruelest participants, the boldest enablers. Even if every last rioter and politician were brought to justice, the danger would remain. To prevent the next attack, and more broadly to have any chance of achieving even a semblance of unity, we must contend with the underlying conditions that allowed this one to occur...The first and most critical step is to double down on media literacy, and not merely as a toolkit for navigating falsehood...Educators must help students understand why lower strata of the biomass pyramid are so amenable to falsehood. That means interrogating the outsized, decades-long role far-right media have played in shaping the environment, which as a recent Berkman Klein Center report shows, reached a zenith during the 2020 election.

The question of whether former president Donald Trump can be convicted at an impeachment trial now that he has left office is likely to be settled by political muscle rather than the Constitution, which is murky on the matter and provides support for those on both sides of the issue, experts said Wednesday. Although many legal scholars take the view that a president can be tried by the Senate even when he is no longer president, they acknowledge there is enough ambiguity in the Constitution for Republicans to embrace as reason not to convict Trump at his trial set to begin Feb. 9...Among those leading the arguments on both sides are legal heavyweights Laurence Tribe, a Harvard Law School scholar, and Luttig, the former judge. The two frequently exchange emails on constitutional issues, most recently about this subject, and express great admiration for each other even when they vigorously disagree. The Senate does not lose its power to hold an impeachment trial just because the official is no longer in office, Tribe said, in part because it has the authority to disqualify the person from holding future office. Although a powerful argument could be made that Congress cannot impeach a private citizen, he said, Trump was impeached by the House while still in office. If an official could only be disqualified while still in office, that person could avoid accountability by resigning just before a final conviction vote in the Senate, he said.

The next global pandemic could be the result of a bioterrorist attack, a tech expert has warned. Vivek Wadhwa, a distinguished fellow and adjunct professor at Carnegie Mellon's School of Engineering, said in an essay for Foreign Policy that this was largely due to advances in cheap and easily accessible methods of genetic engineering. Conspiracy theories have often suggested that the COVID-19 pandemic is a "bioweapon" manufactured in a Chinese lab. However, Wadhwa, who is also a distinguished fellow of Harvard Law School's Labor and Worklife Program, insisted that the pandemic was not created in a lab, citing a report by Nature Medicine. "But if genetic engineering wasn't behind this pandemic, it could very well unleash the next one," Wadhwa said. He believes the current pandemic should be treated as a "dress rehearsal of what is to come, including viruses deliberately engineered by humans." The concerns of those in science and tech have slowly been becoming a reality, with Wadhwa pointing to the ease of access to gene editing kits in the US...This ease of accessibility is largely due to the advances of CRISPR gene editing, which enables scientists to cut and paste genes, with the possibility of curing or eradicating malaria or Huntingdon's disease, but also of damaging species and ecosystems. Wadhwa said CRISPR makes it "almost as easy to engineer life forms as it is to edit Microsoft Word documents." "There should have been international treaties to prevent the use of CRISPR for gene editing on humans or animals. The U.S. Food and Drug Administration should have kept companies from selling DIY gene-editing kits," Wadhwa added.

An op-ed by Noah Feldman: It didn’t take long for the Texas attorney general to sue President Joe Biden’s administration over its immigration policy – nor for a federal judge to issue a nationwide injunction freezing Biden’s 100-day pause on certain deportations. If this movie sounds familiar, it should. Starting at the beginning of President Donald Trump’s administration, federal courts repeatedly struck down Trump’s executive orders, including a large number related to immigration, often using the tool of nationwide injunctions. The big question that emerges from the Texas ruling is this: Will the new, more skeptical legal standards that courts developed over the last four years to combat Trump’s lawlessness now be used by the courts to constrain Biden? Liberals (including me) spent a good part of the Trump era celebrating the judicial system as a bulwark against executive action that was expansive, aggressive — and lawless. Now we may have to confront the shadow side of judicial review of executive action: judicial overreach by conservative judges, many put in place by Trump, who have the ability to block progressive policies using some of the same tools. The order in question was issued by the Biden administration on its first day in office from the desk of the acting secretary of the Department of Homeland Security. The order specified a 100-day moratorium on most removals of non-citizens who were in the U.S. as of Nov. 1, 2020. It contained exceptions for noncitizens suspected of terrorism or espionage. And it also allowed for the removal of anyone whom the director of ICE, in consultation with the agency’s chief lawyer, individually determined to be required by law to be removed.

Bracing for the prospect of a likely acquittal, Senate Democrats are eyeing a rapid-fire impeachment trial for former president Donald Trump — as short as one week — while also contemplating alternatives such as censure that could attract more support from Republicans...Sen. Tim Kaine of Virginia said he was likely to file a censure resolution that would serve as an alternative to convicting Trump on the impeachment charge...Kaine is pitching his censure resolution to Republicans as a potentially more politically palatable alternative to convicting Trump and barring him from future office. But he is also making the case to Democrats that his resolution would have much the same effect as a conviction, by condemning the former president and laying the foundation to keep him from returning to the presidency under the terms of the 14th Amendment...Laurence Tribe, a Harvard Law professor, said invoking the 14th Amendment provision is “much more complex than some people assume” and said simply passing a resolution as Kaine is proposing would not be sufficient to bar Trump from office. “I worry about the cop-out of a condemnatory censure, which Senators shouldn’t be led to think gets them off the hook of having to convict the former president under the Article of Impeachment,” he wrote in an email.

Senate Republicans voted Tuesday for a measure that would have declared the impeachment proceedings against former President Donald Trump unconstitutional because he is no longer in office. The motion, by Sen. Rand Paul, R-Ky., was defeated by a vote of 55-45, showing that Democrats have an uphill climb to secure the 67 votes needed for a conviction. Among those who voted for the motion was Senate Minority Leader Mitch McConnell, R-Ky., who has said he is undecided whether to convict Trump and who worked on the trial calendar with Senate Majority Leader Chuck Schumer, D-N.Y...Democrats maintain that they have precedent on their side. While no president has been tried by the Senate after having left office, Secretary of War William Belknap was tried in the Senate in 1876 after he had already resigned. And other legal experts, such as Harvard law professor Laurence Tribe and University of Texas law professor Steve Vladeck, say the trial is constitutional because one of the considerations for the Senate is whether to bar Trump from future federal office. Democrats note that Trump was impeached by the House while he was still in office, and they maintain that a trial is necessary to hold him accountable for what Schumer called "the most despicable thingany president has ever done," inciting a riot at the Capitol while a joint session of Congress was counting the Electoral College vote.

Among the economic issues facing the new Biden administration is how to help alleviate the weight of $1.7 trillion in student debt, a figure that had ballooned from $1 trillion in 2012. All but about $100 billion of that money is owed to the federal government by some 43 million people. President Joe Biden has said he supports a plan for Congressto cancel as much as $10,000 in debt for federal student borrowers, in part as a response to the pandemic. It’s a proposal that’s been welcomed by some, and called both too much and too little by others...What’s the argument in favor of the debt-canceling plan? That it would reduce stress on those who borrowed for school and give the economy a boost by allowing them to spend money that otherwise would have gone back to the government. The proposed amount of $10,000 per person would also deliver concentrated economic benefit to borrowers of color, according to Toby Merrill, founder and director of the Project on Predatory Student Lending at Harvard Law School. She said there are a disproportionate number of such borrowers in the group who would have their whole debt wiped out. It would remove their risk of future default, she said, adding that, “Many of these borrowers also happen to be among those most severely impacted by the coronavirus and our current economic crisis.”

An op-ed by Cass Sunstein: It’s the most important number you’ve never heard of, and President Joe Biden is about to change it as he resets U.S. environmental policy. It’s the social cost of carbon, a figure that helps determine the stringency of federal regulations governing cars, trucks, power plants, refrigerators, microwave ovens, washing machines, vending machines and much more. The social cost of carbon is a monetary figure that is meant to capture the damage done by a ton of carbon emissions to health, property and agricultural productivity, among other things. (It has two siblings, the social of nitrous oxide and the social cost of methane.) Because federal agencies often base their decisions on cost-benefit analysis, a high social cost of carbon means aggressive regulation of greenhouse gas emissions and a low one will produce modest regulation. Under President Barack Obama, the social cost of a ton of carbon was set at about $50 by a technical working group.1 In 2016, the analysis of the working group was upheld in court. But in one of his first actions, President Donald Trump disbanded the working group and essentially slicedthe social cost of carbon to a range of $2 to $7. That low number played a large role in justifying significantly weaker regulation of emissions from cars, power plants and more. How did Trump come up with that number? He ordered federal agencies to consider only the damage done in the U.S., and to ignore the damage done to the rest of the world. If greenhouse gas emissions from power plants in the U.S. harmed people in Canada, France and South America, that harm would be ignored.

A podcast by Noah Feldman: Harvard epidemiologist Marc Lipsitch shares his concerns about the emerging COVID variants from the UK, South Africa, and Brazil. He also discusses how these new variants could impact vaccine rollout worldwide, and his cautious predictions for when we might return to something resembling normal.