Media Mentions

An op-ed by Jonathan Zittrain: The majority staff of the Judiciary Committee of the House of Representatives has issued a report to accompany the resolution for today’s second impeachment of President Donald Trump for incitement of insurrection. Earlier this week, my former colleague Alan Dershowitz argued in Newsweek that First Amendment protections against a criminal conviction for incitement to riot make impeachment over the president’s role in last week’s events at the Capitol unconstitutional. I want to explain why this claim carries no weight. Dershowitz wrote that Trump’s speech last week, “disturbing as it may have been—is within the core protection of political speech.” He pointed to Brandenburg v. Ohio, where the Supreme Court ruled that the government cannot prohibit speech unless it is specifically “directed to inciting or producing imminent lawless action” and “is likely to incite or produce such action.” (In Brandenburg, the Court found that a short speech by a Ku Klux Klan leader at an Ohio farm saying that there might have to be “some revengeance taken” and referencing a march to take place later in Washington, D.C. was protected by the First Amendment from a state charge of “criminal syndicalism” because any lawless action incited was not imminent.) There are a number of ways that the president’s speech, in which he told his supporters that “if you don’t fight like hell you’re not going to have a country anymore” and to march to Congress at that very moment in the hopes of disrupting the Electoral Vote count, differs from the facts of Brandenburg. But more importantly, the question at the moment isn’t whether the president could be charged with incitement to violence in criminal court. It’s whether the president can be impeached for his actions, both arising from the speech and from his actions (and inactions) as the crowd stormed the Capitol and he was implored to help.

Yesterday, January 13, the House of Representatives impeached President Trump a second time for encouraging the violent riot in the Capitol Building on January 6. And yet, the impeachment is probably less of a crushing blow to the president than something else that’s happened in recent days: the loss of his Twitter account. After a few very eventful weeks, Lawfare's Arbiters of Truth series on disinformation is back. Evelyn Douek and Quinta Jurecic spoke with Jonathan Zittrain, the George Bemis Professor of International Law at Harvard Law School, about the decision by Twitter, Facebook and a whole host of other platforms to ban the president in the wake of the Capitol riot. Jonathan, Evelyn and Quinta take a step back and situate what’s happening within the broader story of internet governance. They talked about how to understand the bans in the context of the internet’s now not-so-brief history, how platforms make these decisions and, of course, Section 230 of the Communications Decency Act. Listeners might also be interested in Zittrain's February 2020 Tanner Lecture, "Between Suffocation and Abdication: Three Eras of Governing Digital Platforms," which touches on some of the same ideas discussed in the podcast.

Jonathan Freedland talks to Noah Feldman, who testified for the Democrats in the president’s first impeachment hearing. They discuss the various consequences for Trump after the House of Representatives voted to impeach him for the second time. On Wednesday, members from both sides of the House of Representatives voted to impeach Donald Trump for allegedly inciting a violent insurrection against the government of the United States. This was a historic moment, as Trump became the first US president to be impeached twice. So what happens now? With less than a week to go before Joe Biden’s inauguration, will there be a trial in the Senate? Will Trump be barred from running for office again? Will this create an even bigger wedge between Republicans and Democrats? Freedland speaks to one of the commanding voices on constitutional law, Noah Feldman, who teaches law at Harvard University and hosts the Deep Background podcast. He was the first witness called for the Democrats in the first Trump impeachment hearing. Together, they run through the various scenarios that could now play out.

As armed supporters of President Donald Trump prepare to converge on state capitals and Washington, D.C., this weekend and Inauguration Day, some legal experts are calling on authorities to enforce longstanding laws outlawing organized groups that act as citizen-run, unauthorized militias. Federal law, constitutions in every state, and criminal statutes in 29 states outlaw groups that engage in activities reserved for state agencies, including acting as law enforcement, training and drilling together, engaging in crowd control and making shows of force as armed groups at public gatherings. Yet hundreds of armed groups, organized under the insignia of the Oath Keepers, the Three Percenters and others, do exactly that...Two constitutional law scholars said these laws should survive challenges to their constitutionality. “Properly interpreted and applied, the state laws banning organized, private militias would pass constitutional muster,” Laurence Tribe, a professor at Harvard Law School and co-founder of the American Constitution Society, wrote in an email. “Although these laws could be clumsily deployed in ways that would raise constitutional problems," he wrote, "that hardly means they shouldn’t be part of the arsenal that law enforcement uses to prevent the forthcoming protests from turning into deadly riots.”

YouTube suspended President Trump from uploading new videos to his official account for at least a week, making the decision days after fellow social media giants Twitter and Facebook shut the president out of his accounts because of concerns his posts will incite violence. The Google-owned video site was the last of the major social media networks to suspend Trump after the attack on the U.S. Capitol...The resistance to removing videos completely has helped allow YouTube to fly under the radar as other social media sites take the heat for allowing misinformation to proliferate on their sites, said Harvard Law School lecturer Evelyn Douek...Researchers tend to focus on text-based Twitter and Facebook, Doueksaid, because video can be more time consuming and labor intensive to sift through. That doesn’t mean there is less misinformation floating around on YouTube, and, in fact, the company has been accused of allowing people to become radicalized on the site by promoting conspiracy theory videos, she added. YouTube’s policy of laying out rules and using a strike system to enforce them is better than ad hoc decision-making by executives, Douek said. “My view of content moderation is companies should have really clear rules they set out in advance and stick to, regardless of political or public pressure,” she said. “We don’t just want these platforms to be operating as content cartels and moving in lockstep and doing what everyone else is doing.”

On Wednesday's edition of CNN's "OutFront," Harvard Law professor Laurence Tribe explained why President Donald Trump's imminent departure from office won't save him from the Senate impeachment trial for inciting violence at the Capitol. "You've just written an op-ed in The Washington Post about this," said anchor Erin Burnett. "You say President Trump can be tried and convicted after leaving office. Why? Explain." "Well, basically, the Constitution's text makes it clear that as long as you are an officer when you commit an impeachable offense, the ability to convict you and prevent you from repeating your dangerous activities doesn't cease," said Tribe. "If it were written otherwise, it would be crazy. The Secretary of War in 1876 thought he could game the system by resigning his office minutes before the impeachment was returned. But then the Senate, by a vote of 37-29 held understandably, you can't get away with it that way. It's not like when someone says you're fired, so you can't fire me, I've already resigned." "The fact is that the Constitution was designed so that the most dangerous characters couldn't escape the important remedy of being taken out of public office in the future simply by resigning. That won't work," continued Tribe.

For the second time, President Donald Trump has been impeached. It will now be up to the Senate to convict or acquit Trump, but a Senate vote probably won't happen until after Jan. 20, when President-elect Joe Biden takes office. Harvard law professor and constitutional scholar Noah Feldman discussed Trump's second impeachment with GBH All Things Considered host Arun Rath.

An op-ed by Noah Feldman: With the House of Representatives having voted to impeach President Donald Trump for incitement to insurrection, it’s time to start contemplating what Trump’s defense will be in a Senate trial. The answer can be summed up briefly: Trump’s lawyers will argue that Trump did not commit a crime of incitement and that his words were protected by the First Amendment. But wait, you may say, if you can remember Trump’s 2020 Senate trial 12 months ago (so much has happened since then that I barely can — and I testified during the House Judiciary Committee proceedings): Impeachment is for high crimes and misdemeanors under the Constitution. That doesn’t require conviction of a federal crime. That means the First Amendment as interpreted by the Supreme Court isn’t relevant and shouldn’t protect Trump. The framers kept the “high crimes and misdemeanors” language intentionally broad so that presidents could be held accountable for a wide array of abuses of power, including interfering with a free and fair election. Yet, still thinking back to the last impeachment, you will also recall that Trump’s lawyers — and some of his Senate defenders — never conceded that basic legal fact. In addition to arguing that Trump had done nothing wrong in his “perfect” phone call with the president of Ukraine, Trump’s defenders also maintained that Trump could not be impeached because he had not committed a federal crime. They insisted, despite the historical and logical evidence, that high crimes and misdemeanors under the Constitution need to be statutory federal crimes.

An op-ed by Laurence Tribe: The Senate appears unlikely to take up the article of impeachmentagainst President Trump before his term ends next Wednesday. That does not require the end of proceedings against him. The Senate retains the constitutional authority — indeed, the constitutional duty — to conduct an impeachment trial against the soon-to-be-former president. The Constitution, Article II, Section 4, provides that the president and other civil officers “shall be removed from Office” following impeachment and conviction by the Senate. Some scholars, most prominently former federal appeals court judge J. Michael Luttig, have argued that because Trump’s term will have already ended and he, by definition, cannot be removed, the impeachment power no longer applies. With all respect, I disagree. The Constitution references impeachment in six places but nowhere answers that precise question. Article I, Section 3 comes closest to delineating the contours of the Impeachment Power, instructing that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” These “judgments” — removal and disqualification — are analytically distinct and linguistically divisible.

U.S. President Donald Trump has been impeached an unprecedented second time, on this occasion charged with inciting last week’s deadly attack on the Capitol building as he sought to overturn his re-election defeat. The House of Representatives passed a single article of impeachment, “incitement of insurrection,” on Wednesday, with 10 Republicans breaking with the President to join all Democrats in voting for the measure. While Mr. Trump has just under a week left in his term, legislators are hoping to bar him from ever holding federal office in the future. He will face trial in the Senate, which requires a two-thirds vote to convict...Laurence Tribe, a constitutional law expert at Harvard University, said Congress would have to create a procedure for finding that Mr. Trump had taken part in “insurrection or rebellion” against the country. “To bar Trump from holding office again if the Senate doesn’t convict him, we would need further legislation,” he wrote in an e-mail.

Historians and political scientists say it is still unclear where we are after a second Trump impeachment, but more turmoil in near term seems certain.

Harvard Constitutional Law Professor Laurence Tribe discusses whether a 1969 U.S. Supreme Court ruling would shield President Donald Trump from prosecution for inciting last week’s Capitol riot. He speaks with Bloomberg’s David Westin on “Balance of Power.”

Facebook, Twitter and other social-media platforms were right to at least temporarily ban President Donald Trump. The danger of Trump’s incendiary rhetoric and outright lies about election fraud was abundantly clear last week, after he goaded a mob that stormed the U.S. Capitol and interrupted the peaceful transition of power. This does not absolve platforms of their culpability, however, in amplifying, distributing and normalizing abhorrent and corrosive content for years. Nor does this let off the hook Trump’s allies and enablers, including many Republican leaders...This also will renew debate over Section 230, a telecommunications law that offers protections from liability. One intent of the law was to encourage websites to moderate objectionable content themselves, a task that the biggest platforms seem to do mostly after damage is done. Democrats have sought Section 230 changes to limit speech to which they object, while Republicans have pushed for Section 230 changes in hopes of reducing what they perceive as censorship by left-leaning tech platforms. Section 230 needs to be updated. But it’s only part of the broader regulatory reform that’s needed to address the outsized power and unfair business practices of digital platforms. Enforcing existing laws is also needed, said Rebecca Tushnet, Frank Stanton Professor of the First Amendment at Harvard Law School. She contends jailing those who carry out violent acts will do more than encouraging platforms to suspend more people.

An op-ed by Jesse Fried: The China delistings have begun. This week, the New York Stock Exchange expelled three Chinese telecom companies to implement President Donald Trump’s November order that bars Americans from buying shares in “communist Chinese military companies”. Others might also be booted. Separately, the Holding Foreign Companies Accountable Act — signed into law by Mr Trump in December — will delist all China-based companies in three years if China does not co-operate with audit-oversight inspections.  Such moves grab headlines and allow politicians to express pique at China. Hence their appeal. But they are poor policy tools. Their main effect is to enrich Chinese insiders and investors at Americans’ expense. Here is why. Mr Trump’s order aims to slow the modernisation of China’s armed forces by depriving military-linked companies of US capital. But it is risible to think these companies need US equity investment. They have substantial assets and revenues, financial backing by China, and access to large pools of Asian capital.  Consider the three telecom companies — China Mobile, China Telecom, and China Unicom. Their assets total about $400bn, with annual revenues adding up to around $200bn. China owns about 70 per cent of each. They went public with dual listings in Hong Kong and New York around 2000, raising most of the money in Asia. If they ever need to raise equity capital again, non-US investors in Hong Kong can easily supply it.

A podcast by Noah Feldman: Before the 2020 presidential election, Noah Feldman spoke to politician and activist Stacey Abrams about her work on voting rights. In light of the Georgia Senate wins, we are re-sharing that conversation with you today.

An op-ed by Cass Sunstein: Jan. 6, 2021 is a day that should live in infamy — a day on which the fundamental institutions of the U.S. were suddenly and deliberately attacked. It will take a long time to understand fully why political passion crossed the line into an insurrection at the U.S. Capitol, but social science research illuminates part of the picture. Long-standing feelings of rage, humiliation, racism and hatred did not explode spontaneously. They were fueled and unleashed, above all by President Donald Trump. That’s what turned those feelings into action. The fundamental idea, brilliantly elaborated by the Duke University economist Timur Kuran, involves “preference falsification.” Kuran’s starting point is that for better or for worse, people’s desires, beliefs and values are often silenced by prevailing social norms. If you despise immigrants or hate Jews, you might keep your thoughts to yourself because you think that other people think differently — and perhaps would hate you if they knew what you think. Kuran’s claim is that when a lot of people silence themselves, the conditions are ripe for some kind of explosion. But precisely because of the self-silencing, it’s impossible to predict how, when or whether the explosion will actually occur.

As House Democrats speed toward impeaching President Trump for a second time, numerous Republicans declared that holding the commander in chief accountable for inciting a violent assault on Congress would further divide the nation and urged their colleagues to turn the page for the sake of unity and healing...Republicans’ eagerness to sprint past an event without precedent in American history — which left five people dead, including a Capitol Police officer killed by an angry mob — marks the culmination of more than four years of GOP officials taking cover under platitudes in place of principled action...Laurence Tribe, a constitutional legal scholar at Harvard, said it’s dangerous to move past last week’s violent siege without action. He supports the move to impeach. “If he can’t be convicted on the basis of what we have now, and if the idea of appeasement and peace sort of prevails, then we have effectively removed the impeachment clause from the Constitution. It will be gone. It will be a dead letter,” said Tribe, who has advised Biden for decades.

Laurence Tribe, a Harvard constitutional law professor, also discusses his former student Ted Cruz and explains why the push to use Section 3 of the 14th Amendment against Trump is an inadequate response to the violent insurrection he inspired.

Parler launched in 2018 as a freewheeling social-media site for users fed up with the rules on Facebook and Twitter, and it quickly won fans from supporters of President Trump. On Monday, it went dark, felled by blowback over its more permissive approach. Amazon.com Inc. abruptly ended web-hosting services to the company, effectively halting its operations, prompting Parler to sue Amazon in Seattle federal court. Other tech partners also acted, crippling operations. Driving the decision was last week’s mob attack on the U.S. Capitol...Amazon explained its decision to shut off services to Parler by citing 98 instances of violent content on the platform that it said violated its rules. Parler said it removed all 98 items, in some instances before Amazon reported them. Determining whether discourse on Parler or the platform’s moderation of it was fundamentally worse than on other forums is “kind of an impossible question, empirically and philosophically,” said Evelyn Douek, a Harvard Law School lecturer who studies content moderation. While a case can be made for app stores and other internet infrastructure providers taking action against platforms that don’t take moderation requirements seriously, Ms. Douek said, the speed of tech companies’ action against Parler raised questions. “If 98 is the threshold, has AWS looked at the rest of the internet,” she said. “Or at Amazon?”

House Democrats filed an article of impeachment against President Donald Trump for the second time Monday, with a promise to move forward with the process if Vice President Mike Pence does not invoke the 25th Amendment by Wednesday. Jeannie Suk Gersen of Harvard Law School and Ben Clements, former chief legal counsel to Gov. Deval Patrick and chair of Free Speech for People, joined Jim Braude to discuss.

Law enforcement is tracking down and arresting extremists who participated in last week's violence at the U.S. Capitol. Congress is bringing new articles of impeachment to remove Trump from office, with a fight over them again breaking largely down party lines. With all that we've seen transpire over the last week, what's next after the attack? We take listener calls with retired federal judge Nancy Gertner, a senior lecturer at Harvard Law School, and WBUR's Legal Analyst; and WBUR senior political reporter Anthony Brooks.