Media Mentions

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.

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.