Media Mentions

On January 6, hundreds of rioters stormed the United States Capitol building in Washington, D.C. Their goal was to disrupt the official counting of electoral votes cast in the 2020 presidential race...To gain a better understanding of the guidance the Constitution offers, I emailed Laurence Tribe, a renowned lawyer and scholar who specializes in the Constitution...What is the main thing you’d like kids to understand about the chaos at the Capitol? “The chaos they witnessed isn’t the way things are supposed to be, and it isn’t the way things are likely to remain. Lots of first responders stepped up to their responsibilities, saved lives, and protected people from injury. If we all care more for our neighbors and try to remember that there are ways of disagreeing, while still respecting those who have strong feelings the other way, things will get better.” When the transfer of power is not peaceful, what guidance does the Constitution provide? “So far, we have been fortunate to have an almost entirely peaceful transfer of power from one presidential administration to the next, ever since the transition from John Adams to his archrival Thomas Jefferson in 1801. This is the first time that the individual who was clearly defeated, President Trump, held out for months before agreeing to leave office. Trump refused to acknowledge his loss even after his baseless claims of fraud were rejected by the courts. The unsuccessful attempt at what would have been the first coup in our history stands out as a dark chapter. But the Constitution provides vital guidance in ending each presidential term after four years, exactly at noon on January 20.”

Jack Dorsey, Twitter’s chief executive, was working remotely on a private island in French Polynesia frequented by celebrities escaping the paparazzi when a phone call interrupted him on Jan. 6. On the line was Vijaya Gadde, Twitter’s top lawyer and safety expert, with an update from the real world. She said she and other company executives had decided to lock President Trump’s account, temporarily, to prevent him from posting statements that might provoke more violence after a mob stormed the U.S. Capitolthat day. Mr. Dorsey was concerned about the move, said two people with knowledge of the call...But he had delegated moderation decisions to Ms. Gadde, 46, and usually deferred to her — and he did so again...Since Mr. Trump was barred, many of Mr. Dorsey’s concerns about the move have been realized. Twitter has been embroiled in a furious debate over tech power and the companies’ lack of accountability. Lawmakers such as Representative Devin Nunes, a Republican from California, have railed against Twitter, while Silicon Valley venture capitalists, First Amendment scholars and the American Civil Liberties Union have also criticized the company. At the same time, activists around the world have accused Twitter of following a double standard by cutting off Mr. Trump but not autocrats elsewhere who use the platform to bully opponents. “This is a phenomenal exercise of power to de-platform the president of the United States,” said Evelyn Douek, a lecturer at Harvard Law School who focuses on online speech. “It should set off a broader reckoning.”

Suffolk District Attorney Rachael Rollins has emerged as a finalist for the job of United States attorney for the district of Massachusetts, a post overseeing more than 200 federal prosecutors, according to several people who have been briefed on the selection process. Rollins is one of four lawyers chosen by a search committee appointed by US Senators Edward Markey and Elizabeth Warren, the people said. The committee last week submitted the names for the state’s top federal law enforcement job to the senators, who interviewed candidates last week...The committee received dozens of applications by the Dec. 28 deadline, but winnowed down the list through interviews. Three of the four are non-white candidates. Besides Rollins, who is Black, Serafyn is half Cuban — her mother came to the United States from Cuba — and Shukla is of Indian descent, according to someone who has worked with them. The committee moved quickly in response to a request from the incoming Biden administration to submit top candidates for US attorney and judicial positions by Jan. 19, a day before his inauguration, explained Nancy Gertner, the former federal judge who led the search committee. “We were acting quickly because the White House counsel wanted names right away,”Gertner said. “Democrats were criticized under Obama for moving so slowly. We worked through the holidays. We made our selections.”

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.”

When a former Michigan public health director was charged with involuntary manslaughter in the Flint water crisis, the man who previously held the job says a chilling thought crossed his mind: It could have been me. "I spent 14 years in that chair," said Jim Haveman, who served under two Republican governors — including Rick Snyder, another target of indictments released Thursday...He contends Snyder, former health chief Nick Lyon and seven others charged with various counts in one of the worst human-made environmental disasters in U.S. history are victims of Monday-morning quarterbacking that makes criminals of government officials guilty of nothing worse than honest mistakes. Prosecutors, however, say this is no ordinary matter of well-meant decisions that backfired...Snyder is the first governor in Michigan's 184-year history charged with crimes involving job performance. Ron Sullivan, a Harvard Law School professor, said he knew of no such cases in other states. Governors have been accused of taking bribes, violating campaign finance laws and personal misconduct. Sullivan helped prosecute a former Missouri governor on an invasion-of-privacy charge involving a sex scandal. But the Michigan matter, he said, is "odd" and he thinks the bar for a conviction will be high...Sullivan, the Harvard professor, agreed the case probably wouldn't produce many imitators. Prosecuting a governor or other high-ranking officials for what amounts to poor job performance — even if intentional — is an "extraordinarily aggressive" approach, he said.

Juliette Kayyem, Anne Milgram, and Melissa Murray are joined by Martha Minow, Harvard University Professor, author, and renowned scholar on how divided nations unify, during one of the most historic and tumultuous weeks in US history, to discuss Trump's second impeachment, the storming of the U.S. Capitol, and how we begin to pick up the pieces of our fractured country.

Sadly, it’s happened before. Throughout history many of the nation’s landmark sites have been targets of attack, from the British razing of Washington during the War of 1812 to the Sept. 11, 2001, assault on the Pentagon. Political violence, at least in contemporary times, has left these places more locked down and less accessible. In the wake of last week’s assault on the Capitol, experts across Harvardare again considering ways to secure such public spaces now and in the future; how added protective measures will affect public access to America’s most sacred shrines of democracy; and how to address potential social and racial inequities arising from increased policing and tightened security around buildings such as the Capitol, often referred to as “the people’s house.” ... Experts see the 1995 bombing of the federal building in Oklahoma City, Okla., and the 9/11 terrorist attacks as grim inflection points in the country’s history, moments of deadly violence that led to sweeping new security measures and controls at both the national and local levels. ... “Bollards and planters began going up all over the place, all these things that often had been used at military installations began to appear around public buildings. But at the same time we have maintained a fairly rich tradition of protest in public spaces,” said Harvard historian and legal scholar Kenneth Mack. “There was the closure of Pennsylvania Avenue in front of the White House after [Oklahoma City bomber] Timothy McVeigh’s terrorist act, but Lafayette Square just across the street remained a place for regular, vigorous protests.” Mack, Lawrence D. Biele Professor of Law at Harvard Law School and affiliate professor of history, said it has yet to be seen how the events of last week may affect the access to public spaces in the future, but he remains hopeful.

President Trump, having reached the historic — and infamous — landmark of being impeached twice, now faces trial in the Senate. But unlike the first time, he will no longer be in office. So, does the Senate have the power to try an ex-president on impeachment charges? The Constitution says that after the House of Representatives votes to impeach a president or any other civil officer, the case is sent to the Senate for a trial, which "shall not extend further than to removal from office, and disqualification" from future office. Conviction requires a two-thirds vote, but barring Trump from future office would take only a majority vote. Scholars disagree about what the Founders intended. Harvard law professor Laurence Tribe and University of Texas law professor Stephen Vladeck note that there are six references to impeachment in the Constitution -- references that make clear removal is only one of the purposes of impeachment...Former Harvard Law School Dean Martha Minow explains that the court in that 1993 case viewed impeachment as a "political question," not reviewable by the court because under the Constitution, impeachment "is given over entirely to Congress." "I don't think any member of this current court would want to get into this mess," she adds. "This is one of the most controversial political moments in the history of the United states, dealing with an exceedingly unpopular president but one with devoted followers and a most divided Congress.” "Were the court to insert itself," she says, "it would put at jeopardy the one thing that the courts has, which is an arm's distance from the direct political process."

As the pandemic continues to wreak havoc on the economy, with job losses mounting, work norms upended, and employees fearful for their safety, the country’s next Labor secretary will be thrust into the spotlight as never before. President-elect Joe Biden has vowed to be the strongest labor president in American history, and as his pick for the crucial Cabinet position, Boston Mayor Martin J. Walsh could significantly improve the lives of working people across the country. He’s poised to lead the charge in restoring rules rolled back by the Trump administration, which steered employment regulations toward corporate interests, and to push for new safety regulations and other benefits for a workforce that has been battered by the coronavirus...It has been nearly 50 years since the country had a Labor secretary with union ties: Peter Brennan, a housepainter turned labor leader who served in the Nixon and Ford administrations. A number of progressive unions whose political leanings don’t often align with those of construction labor groups endorsed Walsh for the post, and this crossover appeal could help the Biden administration gain support from both sides of the aisle. “What strikes me as important about the Walsh choice is that it’s somebody with a clear commitment to the labor movement and the importance of unions and the importance of worker power, and that’s not always true about Labor secretaries, even Democratic ones,” said Benjamin Sachs, a labor professor at Harvard Law School.

For four years, President Donald Trump has careened from one crisis to the next, many of his own making. Still, through the Mueller investigation, two impeachments, the deadliest pandemic in a century, and even a failed and dangerous attempt to overturn his own election defeat, Trump and his administration remained steadfast in at least one quest: to weaken many of the country's bedrock climate and environmental guardrails. Considered in the course of humanity -- or the 4.5-billion-year history of this planet -- a single presidential term is barely a blink of an eye. But in just four years, Trump has cemented a legacy -- particularly on climate change -- that will be felt by generations to come...President-elect Joe Biden has pledged to rejoin the Paris Agreement on Day One of his presidency, but experts say repairing the damage to the country's international standing that was done by Trump abandoning the accord will not be easy. "In one sense, it's easy for President Biden to announce on the first day he's in office that the US will rejoin," said Jody Freeman, a Harvard law professor who served as counselor for energy and climate change in the White House under President Barack Obama. "The hard part is to put together an ambitious, credible pledge for what the US is prepared to do to meet their Paris Agreement commitments."

An op-ed by Nikolas Bowie: Every January, I write a letter to my incoming law students to get them excited about learning constitutional law. That letter was not easy to write this time. The past few years have shaken my faith in the Constitution. Like many law professors, I once confidently predicted that the Constitution would never permit a president to ban Muslim travelers or put toddlers in cages. I also thought the document prohibited police officers from inflicting excessive force on Black bodies — despite everything I witnessed to the contrary. Still, as recently as two months ago, I thought there was consensus around some interpretations — for instance, that nothing in the Constitution permitted anyone to single-handedly overturn the results of a presidential election. The white nationalists who stormed the Capitol to reject that interpretation left me questioning how long the document will survive. Yet as surprised as I was, I had to share a difficult truth with my students: This has all been a continuation of — not an aberration from — America’s constitutional tradition. A striking photo from the insurrection depicts a man holding a Confederate flag outside the Senate chamber. Behind him, on permanent display, is a portrait of John C. Calhoun. Calhoun roamed the Capitol shortly after its construction by enslaved workers. He boldly protected the system of racialized violence that oppressed these workers — as did the Constitution.

A podcast by Noah Feldman: Understanding the insurrection at the US Capitol on January 6th relies on understanding the modern history of the white power movement. In this rebroadcast from 2019, historian Kathleen Belew discusses the modern history of the white power movement and the often overlooked connection between incidents like Charlottesville and the Oklahoma City bombing.

An op-ed by Cass Sunstein: A lot of people are falsely shouting fire these days, and causing panics. Should they be punished? What about the platforms that host them? For some shouts, the answer is clearly yes. In 2019, Facebook’s Mark Zuckerberg called for national regulation, specifically emphasizing harmful content and the integrity of elections. Whatever you think of his particular proposals, he pointed in promising directions. In the last year, Twitter and Facebook have taken significant voluntary steps to combat misinformation, including warnings, reduced circulation and removal. Should the government step in to oversee those steps? Should it require them? Should it forbid them? Should it demand more? To answer these questions, we need to engage the First Amendment. The Supreme Court did that in 2012, offering something like a green light for falsehoods. In a key passage in the case of  U.S. v. Alvarez, the court invoked the totalitarian dystopia of George Orwell’s “1984” to declare, “Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.” The case involved Xavier Alvarez, an inveterate liar who falsely claimed that he had been awarded the Congressional Medal of Honor. That claim violated the Stolen Valor Act, which made telling that particular lie a crime. The court struck down the law, ruling that Alvarez’s lie was protected by the First Amendment.

Trump will no longer be president by the time any Senate trial concludes. Two experts, Professors Laurence Tribe and Ross Garber, debate whether the Senate can still try a former President.

The Senate vote on whether to remove President Donald Trump from office will not happen until he is no longer in office. Senate Majority Leader Mitch McConnell made that reality plain soon after the House voted to impeach Trump on Wednesday. "Even if the Senate process were to begin this week and move promptly, no final verdict would be reached until after President Trump had left office," he said. "This is not a decision I am making; it is a fact." Which raises two obvious questions: 1) Can you impeach (and remove) a former president from office? 2) What, exactly, is the point of doing it -- even if you can? The first question is, interestingly, something on which there is considerable debate among Constitutional scholars...Laurence Tribe, a professor emeritus at Harvard Law School, wrote this Wednesday in response to Luttig's argument: "To be sure, a former officer may no longer be 'removed' even upon conviction by a two-thirds vote. But that has no bearing on whether such an ex-officer may be barred permanently from office upon being convicted. That separate judgment would require no more than a simple majority vote. Concluding otherwise would all but erase the disqualification power from the Constitution's text: If an impeachable officer became immune from trial and conviction upon leaving office, any official seeing conviction as imminent could easily remove the prospect of disqualification simply by resigning moments before the Senate's anticipated verdict."

An op-ed by Einer Elhauge: President Trump’s defenders are claiming that his incitement of the attack on the Capitol is protected by the First Amendment under the venerable case of Brandenburg v. Ohio, and that he shouldn’t have been impeached for it or that he should be acquitted. But this claim is wrong. Even if Brandenburg applied to impeachments, which are different from criminal cases, the facts of that case are easily distinguished, and Trump’s conduct clearly meets the legal standard that Brandenburg set. The case dates to 1964. At a Ku Klux Klan rally on June 18, after a film that contained some hateful speech about Black and Jewish people, the defendant gave a short speech at a farm in Hamilton, Ohio. The only arguably inciting part of the defendant’s speech was that “if our President, our Congress, our Supreme Court, continues to suppress the White, Caucasian race, it’s possible that there might have to be some revengeance taken.” In other words, the speaker simply said that if suppression continued for a sufficiently long period of time, his organization might have to take vengeance of some unspecified form at some unspecified future time. The defendant in Brandenburg also said that the KKK planned to march on Congress on July 4, but that was over two weeks later, and his speech didn’t indicate that he thought the suppression of White people would have continued for long enough by then that the July 4 march would be the right occasion for any possible revenge.

Glenn Greenwald was pissed. The Columbia Journalism Review had just asked whether Substack should remove the writer Andrew Sullivan from its service. And having recently joined the email newsletter platform himself, Greenwald attacked. “It was only a matter of time before people started demanding Substack be censored,” he said, taking it a step further than the CJR. Last October, Greenwald left The Intercept, a publication he founded, claiming the publication’s editors, who previously hadn’t touched his work, “censored” him ahead of the 2020 election. So he moved to Substack, which advertises itself as a home for independent writing...Substack, Spotify, and Clubhouse’s current perspective on content moderation mirror how Twitter, Facebook, and Google once viewed the practice. Twitter executives initially called themselves “the free speech wing of the free speech party.” Facebook insisted it had no business touching political content. YouTube allowed Alex Jones and other wingnuts to build misinformation empires on its service. Now, Substack CEO Chris Best — reflecting the smaller platforms’ attitude on moderation — told CJR that if you’re looking for him to take an “editorial position” you should find another service. After initially resisting aggressive content moderation (aside from no-brainers like child porn), the bigger platforms have slowly relented. “They are agreeing that they need to moderate more aggressively and in more ways than they used to,” Evelyn Douek, a Harvard Law School lecturer who studies content moderation, told OneZero. And if past is prologue, their path to the current state is worth revisiting.

President-elect Joe Biden plans to prioritize federal student loan debt forgiveness on the first day of his presidency, but questions still remain on the likelihood of carrying out his forgiveness plans. Last week, Biden's transition official David Kamin told reporters that Biden will direct the Department of Education on day one to extend the student loan forbearance program, which is the first direct promise the president-elect has made in combating the $1.6 trillion student debt crisis. Kamin also said in the press call that Biden supports Congress canceling $10,000 of federal student loan debt per person — an idea that Biden had previously supported as proposed by Sen. Elizabeth Warren of Massachusetts and her Democratic colleagues...There is a discrepancy among Biden and lawmakers on whether Biden can use his executive powers to cancel debt - Senate Minority Leader Chuck Schumer said to reporters last month, "You don't need Congress; All you need is the flick of the pen." And in a letter to Warren from attorneys from Harvard Law School's Legal Services Center, they said that under the Higher Education Act, the president could direct the secretary of education to cancel student debt.

An op-ed by Noah Feldman: Can the Senate try President Donald Trump after he leaves office? The answer to that question lies with, you guessed it, the Senate. In reaching a decision, the Senators may choose to be guided by a precedent: that of William W. Belknap, Ulysses S. Grant’s Secretary of War. Belknap resigned mere hours before the House of Representatives impeached him. The Senate tried him anyway — although a substantial number of senators insisted throughout that they had no authority over a government official who had already resigned. As a consequence the Senate did not convict Belknap by the constitutional two thirds requirement. Belknap’s story is a wild one. There are few scholarly articles about him, although there is a highly instructive, detailed master’s thesis on which I’ve relied. Belknap was born in Newburgh, New York, along the Hudson River. He graduated from Princeton and studied law at Georgetown. As the proverbial young man he went West to Iowa, enlisting in the 15th Iowa Volunteer Regiment not long after the Civil War broke out. He served under General William Tecumseh Sherman during his March to the Sea and showed notable bravery in battle, most famously by capturing a Confederate colonel at the Battle of Atlanta. The episode involved him, then a Colonel himself, leaping over some breastworks into enemy fire. The public lauded him as a hero.

The final days of the Trump presidency are being marked by both a challenge to the US from within by the far right and the administration’s efforts to combat perceived external threats from China. Our Washington bureau reports the US commerce department has just finalised new rules to make it easier for the federal government to block Americans from importing technology from China and other US adversaries that it decides could threaten national security. The rules cover software, such as that used in critical infrastructure, and hardware that includes drones and surveillance cameras. It gives new powers to the commerce secretary to issue licences or block imports...In an FT opinion piece, Jesse Fried, Dane professor at Harvard Law School, says US interests are being sacrificed for anti-China grandstanding, citing the delisting of China’s three leading telcos. “The idea that barring purchases of these telecom companies’ stock will affect China’s military is laughable, but their US investors are not laughing,” he says. “The purchase bans and delistings have temporarily depressed prices as American stockholders run for the exits. Hong Kong and other foreign traders are buying up these shares on the cheap. American investors lose; China’s investors win — and its military continues to grow unimpeded.”

The latest episode of Reasonably Speaking brings together a panel of top scholars in U.S. presidency and political science to discuss the future of the U.S. presidency Post–Trump. In “The U.S. Presidency: Looking Forward,” ALI President David F. Leviis joined by David M. Kennedy and Terry M. Moe of Stanford University, and Jack Landman Goldsmith and Daphna Renan of Harvard Law School for a timely conversation on the most important office in our government.