Media Mentions

PBS NewsHour is taking a closer look at Inauguration Day with our special, "Celebrating America." Anchor and managing editor Judy Woodruff breaks down the historic day with White House correspondent Yamiche Alcindor, Washington Post senior critic Robin Givhan, filmmaker Ken Burns and Annette Gordon-Reed, a historian and law professor at Harvard University.

Opponents of President Trump's climate rule rollbacks rejoiced yesterday after a federal appeals court gave the Biden administration a clean slate to craft a new rule to control greenhouse gas emissions from power plants. A three-judge panel for the U.S. Court of Appeals for the District of Columbia Circuit tossed out the Trump EPA's Affordable Clean Energy rule and sent it back to the agency. The court found EPA had too narrowly interpreted its authority to regulate emissions. The court not only gave the green light for President-elect Joe Biden to draft stronger power plant regulations, but also broadly affirmed EPA's authority to craft climate regulations for a range of emissions sources...Asked for a comment on yesterday's court decision, Joseph Goffman, who played a key role in crafting the Clean Power Plan and is part of the EPA transition team for the incoming Biden administration, sent E+E News a link to a recording by the Royal Choral Society of the "Hallelujah" chorus from George Frideric Handel's "Messiah." "Feel free to quote me," he said...EPA took that more challenging legal approach by arguing that the statute was unambiguous in supporting its position. The agency could have instead said it was using its discretion to interpret the law, said Jody Freeman, director of the Environmental and Energy Law Program at Harvard University. Looking from the outside, it seemed like the best explanation for why Trump's EPA took that position was so that it could block future administrations from "doing anything meaningful" on climate regulation, Freeman said. "It seems like a deep ideological commitment but not the best legal strategy," she said.

The two-month post-election wait used to be four, and constitutional scholar Sandy Levinson thinks it should be shorter still.

In his final full day in office, President Donald Trump is expected to issue a myriad of presidential pardons. Last week, CNN initially reported that Trump planned to pardon close to 100 people before leaving office. Trump already has issued pardons for his former aides, including former adviser Roger Stone, former campaign manager Paul Manafort and former National Security Adviser Michael Flynn. Some have speculated that Trump will attempt to issue a self-pardon or secret pardons for his family and other aides...However, others believe that pardons were meant to be publicly issued and would not hold up as valid if challenged in a court of law. "I certainly can't say that they are clearly impermissible, but I can say that I think that there is at least a Constitutional cloud over them," Harvard Law Professor Laurence Tribe said. For one thing, they would be difficult to authenticate. "There would be no way to prove it was issued on a certain date in an official capacity," Tribe said. "If invoked at the time an indictment or prosecution is brought, that would open the possibility for a Constitutional test of whether secret pardons are permitted." Additionally, Tribe said the nature and purpose of pardons implies a public acknowledgment of wrongdoing and forgiveness. "They were supposed to be accompanied with either a confession of guilt or that they implied that the person who accepts the pardon is willing to publicly admit guilt," Tribe said. "And the fact that there's no indication in the discussion of the Constitution when the pardon power, which is already pretty sweeping and subject to abuse, could be hidden behind a veil of secrecy, I would argue that it's validity is up in the air."

A federal appeals court on Tuesday struck down the Trump administration’s plan to relax restrictions on greenhouse gas emissions from power plants, paving the way for President-elect Joseph R. Biden Jr. to enact new and stronger restrictions on power plants...Environmental groups and legal experts saw the decision as a vindication of the argument that the government does have the authority to tackle climate change. “It’s a massive win,” said Jody Freeman, a professor of environmental law at Harvard University who served as a legal counsel in the Obama administration. A core promise of the Biden campaign was to eliminate fossil fuel emissions from the power sector by 2035. With Tuesday’s ruling, the Biden administration will not have to wait for the legal fight over the Trump rule to play out before deciding whether or how to use regulation to tackle climate change, Ms. Freeman said. Instead, she said, the Biden E.P.A. can “go on the offense” immediately. “The real win here is that the Trump administration failed to tie the Biden team’s hands,” Ms. Freeman said. “They wanted to lock in a narrow legal interpretation and make it impossible for a new administration to set ambitious standards for power plants. That was their whole strategy. And it went down to spectacular defeat.”

House Speaker Nancy Pelosi is expected to send the article of impeachment against President Donald Trump to the Senate later this week, sources familiar with the matter tell ABC News -- a move that could kick off formal proceedings the next day and opening arguments on the Senate floor the following week. The timing of formal transmission from the House to the Senate is significant, as the Constitution dictates that the trial begins at 1 p.m. the following day. Pushing that procedural step back until after President-elect Joe Biden takes office -- back to Thursday or Friday -- would also give his administration at least a day or two to gain its footing as the Senate begins the balancing act of putting Trump on trial while starting to take up Biden's agenda...Some Democrats worry that Trump simply won't take part in the proceedings and that he'll adopt a similar posture to his administration's broad rejection of congressional oversight and subpoenas during his time in office. "I hope he is competently defended," Laurence Tribe, a Harvard University Law School professor who has advised Democrats on their efforts to impeach Trump, told ABC News. "Otherwise part of what he'll be able to say in claiming victimization is that he was made a pariah ... therefore the verdict was illegitimate -- just as the election wasn't legitimate." "I don't think it helps our history for him to be able to elaborate on that martyr story," Tribe said.

The second impeachment of President Donald Trump has concluded, not with a bang, but with a whimper. Whether it results in a Senate conviction or not, impeachment amounts to a feeble punishment for a man who will have left office anyway. While the forces of decency, democracy and good government prevailed in this impeachment vote, we should ask what gain this battle has wrought. A Senate debate will distract that body at a time when a new president critically needs it to confirm his Cabinet, and to approve a funding package to accelerate vaccinations and Covid-19 relief. Impeachment likely persuaded nobody; on all things Trumpian, it seems, virtually no American appears persuadable. What is needed, rather, is criminal prosecution...Experts appear more divided about whether a president could use the clemency power of Article II of the Constitution to pardon himself in anticipation of prosecution. On its face, nothing in the Constitution precludes a self-pardon. A 1974 internal U.S. Department of Justice memorandum raises doubts, however, invoking “the fundamental rule that no one may be a judge in his own case,” and has the concurrence of such constitutional experts as Harvard Law School professor Laurence Tribe. Only the Supreme Court can finally resolve the issue, but we must call the question; otherwise, the door will remain open to those who might seek to exploit this uncertainty for tyrannical ends.

While President Trump prepared to issue a spree of pardons, tens of thousands of troops prepared for a high-security transition of power. At least 12 Army National Guard members have been removed from inauguration duties due to ties with militant right-wing groups or extremist postings online. Retired federal judge Nancy Gertner, now a senior lecturer at Harvard Law School, and Axios politics editor Glen Johnson joined Jim Braude to discuss.

An op-ed by Jack Goldsmith and Samuel Moyn: After years of Donald Trump’s boorish defiance of presidential norms, his incitement of the violence at the Capitol closed his term with a demented rave that shamed American democracy. Tomorrow Joe Biden will return the presidency to a more decorous and honorable choreography. But in important respects, Biden cannot restore normalcy. Trump’s most profound and least recognized contributions to the office he abused are a reorientation of some of the presidency’s important powers and responsibilities. Once-fringe understandings about the role of the president approached acceptance under Trump in ways that Biden cannot dismiss, and they could transform how the great office functions for years to come. True, Biden’s time in office will witness reversals by conservatives and progressives on some of the uses and limits of presidential power. The Harvard law professor Adrian Vermeule predicted at the dawn of the Trump administration that the sides would reverse their positions about aggressive uses of presidential administration. He compared the pattern to two lines of dancers in a Jane Austen novel who move to opposite sides of the ballroom and then continue dancing as before. “The structure of the dance at the group level is preserved; none of the rules of the dance change; but the participants end up facing in opposite directions.”

President Trump’s last-minute pardons betray what the Constitution’s pardon power is all about. While he has not decided to try to pardon himself (at least, not as far as we know), the pardons he issued during his term taken together serve as a microcosm for his presidency. They take a noble part of our Constitution and warp it in the service of Trump’s ego and future personal interests...These final pardons do not arrive shorn of history here. Trump’s prior pardons, like Tuesday’s, largely fall into two buckets. Bucket 1 is friends of Donald Trump — people like Roger Stone, George Papadopoulous, Paul Manafort, Charles Kushner (yes, Jared’s dad) and Michael Flynn. These folks never even bothered formally requesting a pardon; they got one through back channels to the Oval Office. Bucket 2 are rogues who aspire to be in Bucket 1 — people like Dinesh D’Souza and former Maricopa County, Ariz., sheriff Joe Arpaio. The conservative Harvard Law School professor Jack Goldsmith examined all of Trump’s pardons before his final days in office and found a whopping 91 percent of them went to people with personal or political connections to Trump. An outsize number of Trump’s pardons were for white-collar criminals, revealing again Trump’s proclivity to benefit those who look and act like him. For decades, criminal justice had been moving in the direction of greater parity between white-collar and other offenders, only to have Trump come along and reverse the trend.

An op-ed by Cass Sunstein: Can a former president be impeached? Can he be convicted? Those are two different constitutional questions. And President Donald Trump, impeached last week while still in office and potentially subject to conviction after departing, has obvious reason to offer a firm “no” to the second question. Under the Constitution, the House of Representatives is authorized to impeach a president, and then the Senate is authorized to convict him. But that doesn’t answer the questions about a former president. Let’s start with the text. Article I says this: “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: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Article II says this: “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.” Under these provisions, it should be clear that the House cannot impeach someone who has never held public office, and who merely aspires to do so.

A podcast by Noah Feldman: Presidential historian Douglas Brinkley shares his predictions and warnings for writing historical narratives about the end of the Trump presidency. He also discusses Trump’s decision to not attend the inauguration and how we should apply the 25th Amendment in the 21st century. This is the first installment in a new Deep Background series focusing on power in different fields and forms.

Like millions around the world, Lincoln Miller, a sixth-grade student in Parkland, Fla, was watching live TV as hundreds of rioters stormed the U.S. Capitol on Jan. 6 to try to stop Congress from confirming Joseph R. Biden as winner of the 2020 presidential election. Five people died in the violence, including two police officers. Miller, 11, was “horrified” as he witnessed the violent mob, he recalls. But as one of 45 kid reporters for Scholastic Kids Press, which reaches 25 million students nationwide, he knew it was important breaking news for his readers. As he continued to watch the riot unfold, Miller pitched the story to his editor. When she gave him the go-ahead, Miller emailed Laurence Tribe ’66, the Carl M. Loeb University Professor, Emeritus, at Harvard Law School, to request an interview...Tribe received Miller’s email moments before he was to appear live on CNN. Though he was fielding dozens of media requests from around the world, “This one stood out,” says Tribe, who immediately emailed the young reporter back. “When I got this very sweet and serious inquiry from an eleven-year-old, I didn’t have to think very long before I accepted, and I shoved aside a lot of other things to take part in it,” says Tribe. “Kids were watching what looks like a chaotic and torn nation. Many of them were frightened, understandably, and dispirited and discouraged. I thought something uplifting as well as informative” could help.

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."