Media Mentions

Scrutiny increased on Monday on how President Trump sought to foment anger at a rally of his supporters and then dispatched them to the Capitol shortly before they rioted last week, as House Democrats on Monday unveiled an article of impeachment accusing him of inciting an insurrection. Here is an overview of some of the broader forms of legal jeopardy the president may be facing...Jack Goldsmith, a Harvard Law professor, flagged another potential hurdle for prosecutors: The Justice Department’s Office of Legal Counsel — including Mr. Barr, when he ran it in 1989 — has written several legal policy memos holding that laws sometimes do not apply to a president engaged in official acts unless Congress has made a “clear statement” that it intended that. That legal policy raises difficult questions for Justice Department prosecutors — and, potentially, the courts — including whether Mr. Trump’s speech to supporters about a political issue counts as an official act. “The whole thing is, in truth, clouded with uncertainty,” Mr. Goldsmith said.

In search of historical guidance and legal tools to respond to the violent siege of the U.S. Capitol last week, members of Congress and legal scholars alike are re-examining a little known section of a Reconstruction-era constitutional amendment. Section 3 of the 14th Amendment, in theory, gives Congress the authority to bar public officials, who specifically took an oath of allegiance to the U.S. Constitution, from holding office if they "engaged in insurrection or rebellion" against the Constitution and therefore broke their oath. But the provision has rarely been used or tested, and so scholars are unsure about how exactly Congress could exercise authority under this provision and to what end today...Michael Klarman, constitutional law scholar at Harvard Law School, though told ABC News in email that he believes that applying Section 3 of the 14th Amendment to disqualify from office a member who questioned the legitimacy of the election, based on the events from last week was "a real stretch." He added that "insurrection" and "rebellion" are "legal terms with established meaning. ... I just don't think Wednesday's event would qualify." "While (Sens.) Hawley and Cruz are despicable, and I have signed the petition calling for their disbarment, it seems a huge stretch to me to describe what they did (Wednesday) as 'insurrection or rebellion,'" Klarman wrote.

Social media users are spreading a variety of claims that President Donald Trump will either impose martial law or invoke the Insurrection Act to prevent Joe Biden from being inaugurated on Jan. 20. The Insurrection Act is a federal law that empowers the president to deploy the military to suppress certain situations including civil disorder, insurrection or rebellion. The act has been used to send the armed forces to quell civil disturbances a number of times during U.S. history, according to the Congressional Research Service...Besides Trump alluding to invoking the Insurrection Act at the height of the protests surrounding the death of George Floyd, he has not made any indication that he’s considering invoking the Insurrection Act or any variation of martial law going forward. Some D.C. officials were worried that Trump could invoke the act to seize control of the city’s police department the day of the Capitol riot, but that didn’t happen. Under Article II of the Constitution, the president has no inherent authority to declare martial law except under the extreme circumstances of a rebellion or foreign invasion, said Noah Feldman, a professor at Harvard Law School. "Losing an election doesn’t count as a basis for invoking this power," Feldman added.

Top executives at U.S. pharmaceutical company Novavax Inc aren’t waiting to see how well their COVID-19 vaccine works before they reap the financial rewards. Chief Executive Stanley Erck and three of his top lieutenants have sold roughly $46 million of company stock since the start of last year, according to a Reuters review of securities filings, capitalizing on a near 3,000% rally in Novavax shares fueled by investors betting on the success of the shot under development...Jesse Fried, a Harvard Law School professor and a member of the research advisory council at proxy advisor Glass, Lewis + Co., said he didn’t think it was inappropriate to reward executives during the drug development process. “It may be a once in a lifetime opportunity to lock in huge gains,” said Fried. “I don’t have a problem with them making a lot of money even though they don’t have a drug yet.” Investors will get to express their views on the stock sales this summer at Novavax’s annual shareholder meeting, where they will be asked to approve the company’s board of directors and executive compensation.

An op-ed by Noah Feldman: Donald Trump might already be ineligible to serve as president of the United States in the future. That’s true even without an impeachment process that ends with a formal ban from future public office. The relevant constitutional provision is Section 3 of the 14th Amendment, enacted in the aftermath of the Civil War and mentioned in the article of impeachment proposed before the House today. The provision bars a person from holding any office “under the United States” if the person has sworn an oath of allegiance to the Constitution and then “engaged in insurrection or rebellion” against the government or “given aid to the enemies” of the U.S. Does this provision to apply to Trump? The first part certainly does: Trump took an oath to uphold the Constitution when he became president. The trickier question is the second part: Has Trump’s conduct amounted to insurrection? You can be sure that, if Trump runs for office in the future, someone will go to court charging that he is ineligible to become president because of his conduct leading up to, on and following Jan. 6, 2021. Because this is a constitutional question, the courts will have to adjudicate it. The first question is whether the attack on the Capitol was an insurrection against the government of the United States. In vernacular terms, it certainly was.

An op-ed by Cass Sunstein: President Donald Trump is reportedly considering issuing himself a pardon, perhaps on his last day in office. Is he really allowed to do that? The best answer is simple: No. Begin with the Constitution’s text, which states that the president “shall have the power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” You might be tempted to read those words, as some specialists do, to mean that the president’s pardon power is unlimited, with the sole exception of impeachment. If that’s the right interpretation, there would be nothing wrong with self-pardons. But there is an immediate qualification: Any president would be impeachable if he used the pardon power in certain ways. Suppose, for example, that a president pardoned everyone who committed crimes at his behest and on his behalf. That would be an impeachable offense. This conclusion emerges clearly from the Virginia ratification debates of 1787, where George Mason objected to the apparent breadth of the pardon power, contending that it was a fatal defect in the proposed constitution. Mason urged that the president “ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself.”

An op-ed by Amre Metwally ‘22: The real coordinated inauthentic behavior on social media made itself abundantly clear in the aftermath of the assault on Congress. The culprit isn’t a troll farm or Russian influence. This time, the coordinated inauthentic behavior is coming from California. Late last week, Google and Apple both suspended Parler—the social media platform of choice for the alt-right—and demanded a “moderation improvement plan” from Parler. Amazon, as of midnight, also suspended Parler from its web hosting services, citing “inadequate content-moderation practices.” Okta, an identity management software company in San Francisco, was notified that Parler had a free trial of its product and subsequently rushed to terminate access. Parler’s suspension should concern us all. I despise white supremacist content and its proliferation online, and the tweeted examples of comments posted on Parler are alarming and deeply unsettling to read. But as Kate Ruane, an attorney for the American Civil Liberties Union, said in a statement, it “should concern everyone when companies like Facebook and Twitter wield the unchecked power to remove people from platforms that have become indispensable for the speech of billions—especially when political realities make those decisions easier.”* There should be ways to bring accountability to platforms that host inciteful hate speech. Justice, however, is not achieved by endorsing other companies’ self-interests.

Another federal judge on Friday ruled that Chad Wolf was likely unlawfully appointed to his position at the helm of the Department of Homeland Security (DHS), issuing a decision that blocked a set of broad asylum limits slated to take effect Monday. In a scathing 14-page decision, Judge James Donato of the U.S. District Court in San Francisco agreed with other federal judges who have concluded that DHS failed to follow proper legal procedures when installing Wolf as the department's acting secretary...Donato said Wolf did not have the authority to greenlight a regulation that would erect new restrictions at every stage of the U.S. asylum process, including rules that generally disqualify victims of gang violence, gender-based persecution, domestic abuse and torture staged by "rogue" government officials from U.S. refuge. Donato issued a nation-wide preliminary injunction against the policy, which advocates dubbed the "death to asylum" rule. "This is the most far-reaching of the midnight asylum regulations unveiled in the Trump administration's final days," said Sabrineh Ardalan, the director of the Harvard Immigration and Refugee Clinical program, one of the groups challenging the policy. "But try as it may, this administration cannot destroy our asylum system and rewrite our laws by executive fiat."

An op-ed by Evelyn Douek: While Congress works out what form of accountability it will impose on President Trump for inciting insurrection at the U.S. Capitol last week, the president has faced a swift and brutal reckoning online. Snapchat, Twitch, Shopify, email providers and payment processors, amongst others, have all cut ties with Trump or his campaign. And after years of resisting calls to do so, both Facebook and Twitter have suspended Trump’s accounts. This Great Deplatforming has ignited a raucous debate about free speech and censorship, and prompted questions about the true reasons behind the bans—including whether they stem from political bias or commercial self-interest rather than any kind of principle. Luckily, at least one platform has built a mechanism that is intended to allay exactly these concerns. Facebook should refer its decision to suspend Donald Trump’s account to the Oversight Board for review. Ever since Facebook announced the launch of its Oversight Board in May, there have been constant questions about the board’s activities—or lack thereof. Researchers and journalists wanted to know why the board wasn’t weighing in on Facebook’s most controversial decisions and why the board wouldn’t be operational in time for the U.S. 2020 election.

With pressure mounting from all sides, President Trump is reportedly telling aides — once again — that he wants to pardon himself...Harvard Law professor Jack Goldsmith has examined all of Trump's pardons and sentence commutations. "We determined that at least 85 of the 94 have some personal or political connection to Trump and were self-serving in that way," he says. Goldsmith, who served as head of the Office of Legal Counsel in the George W. Bush Justice Department, notes that pardon controversies are hardly unique. What's new is the "massive extent" to which Trump has circumvented the Justice Department office charged with processing pardon applications. "Trump loves to exercise the hard powers of the office of the presidency and he especially loves to do so if he thinks there's something in it for him personally and ... if he thinks it will make the political elites' heads explode," he says...Goldsmith notes that the incoming Biden administration is already facing a lot of pressure to investigate and potentially prosecute Trump for some of his actions, and that while President-elect Joe Biden has not previously indicated any great enthusiasm for that idea, Goldsmith says that "if Trump pardons himself, it's going to make it more likely that they will go forward." The Justice Department, he says, "is not going to want to acquiesce in what they think is an unconstitutional assertion of the pardon power."

Food waste is a fact of life...Getting food waste out of the trash may also provide the key to how Connecticut repairs the dated, expensive, fragmented and environmentally fraught waste systems in the state. But the question is whether it makes more sense to get the food out of the waste stream first or whether other parts of the system get fixed first so the food part follows. It’s a chicken-egg problem, and which comes first isn’t clear. What is clear, officials say, is that food waste cannot be ignored any longer...Using food waste for animal feed comes up a lot among working group members. It’s No. 3 on the EPA’s food recovery hierarchy, preceded by feeding the hungry and reducing the amount of surplus food. The failings of existing systems for feeding hungry people were bared by the pandemic. In addition to beefing up recovery and distribution systems, there are a few bureaucratic changes to food labeling and liability laws that could help, according to the Harvard Food Law and Policy Clinic.

In October 2017, President Donald Trump’s critics were celebrating. They’d won their latest fight against the new administration’s industry-friendly environmental agenda, and were confident in racking up more victories...The ruling followed two other legal rebukes for Trump’s energy and environment policies, decisions that came down in quick succession in the early days of his term. The new administration had gotten off to a rough start in the courtroom. Fast forward to 2021, and the story of the Trump team’s legal scorecard is more complicated, showing a mixed record of success, failure, and unresolved cases. Its exact win-loss rate in environmental cases is the subject of ongoing debate—a moving target depending on which lawsuits are tallied and how they’re categorized...Incoming Biden officials are set to move quickly to review and unwind many of those decisions, which will render much of the litigation moot—though some cases may stay on track. “They were swinging for the fences, and they knew if a few cases were able to get courts to agree with their interpretation, that would have a lasting impact,” Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program, said of the Trump administration. “If they had another four years, they would have that opportunity.”

An essay by Jeannie Suk Gersen: One day after a mob incited by Donald Trump stormed and ransacked the Capitol, disrupting Congress’s certification of election results, Chuck Schumer, the soon-to-be Senate Majority Leader, and Nancy Pelosi, the Speaker of the House, said the President should be removed from office. Both proposed the Twenty-fifth Amendment to the Constitution, with Schumer describing it as the most effective legal means of removal. Under Section 4 of the amendment, which has been a subject of discussion throughout Trump’s Presidency, if a majority of the Cabinet were to join with Vice-President Mike Pence to declare to Congress that Trump is “unable to discharge the powers and duties of his office,” Pence would “immediately assume the powers and duties of the office as Acting President.” As Schumer said, “it can be done today.” The Cabinet was said to be considering it, but Pence reportedly opposes it. On Friday, Pelosi announced that the House would begin impeachment proceedings if Trump does not immediately resign. On Monday, at least a hundred and seventy House Democrats plan to introduce an article of impeachment charging Trump with “willfully inciting violence against the government of the United States.” There is little doubt that Trump did incite a mob to attack the Capitol in order to interfere with Congress’s performance of its constitutional duty in our democracy. On Wednesday, he gathered a crowd of thousands of supporters, fomented anger at an election that he falsely said had been stolen, and urged them to “walk down to the Capitol” and “fight much harder.”

An op-ed by Cass Sunstein: It’s been widely reported that President Donald Trump is considering granting a batch of pardons, possibly on his last day in office. Some of the people named as likely beneficiaries have not been convicted or even indicted for any crime. That raises a question: Does the president have the power to issue a preemptive pardon, one that would protect someone from prosecution in the future? Really? The answer, given by the Supreme Court in 1866, is yes. In the 1860s, Augustus Hill Garland was a lawyer in Little Rock, Arkansas, who strongly sympathized with the Confederacy. From 1861 until the end of the Civil War, he represented his state in the Confederate Congress. That exposed Garland to a future treason charge. In July 1865, President Andrew Johnson pardoned him, “for all offences by him committed, arising from participation, direct or implied,” in the rebellion against the U.S., with the proviso that the pardon would “be void and of no effect if the said A. H. Garland shall hereafter at any time acquire any property whatever in slaves, or make use of slave labor.” The Supreme Court held that the pardon was legitimate. Speaking broadly, it said that the Constitution “intended to, and in fact did, clothe the President with the power to pardon all offences, and thereby to wash away the legal stain and extinguish all the legal consequences of treason — all penalties, all punishments, and everything in the nature of punishment.”

An op-ed by Noah Feldman: It’s perfectly logical to call for the immediate impeachment and removal of President Donald Trump for inciting a mob to storm the U.S. Capitol and interrupt the process of declaring Joe Biden president. Attempting to interfere with the democratic process counts as a high crime and misdemeanor under the Constitution. But I would like to remind us all that the time to remove Trump was a year ago, when he actually was impeached — precisely for attempting to corrupt the 2020 election. What Trump did on January 6, 2021, was no more impeachable than what he did on July 25, 2019, when he phoned Ukraine’s Volodymyr Zelensky and asked him to discredit Biden. Which distortion of democracy is worse? Trying to steal an election secretly, in advance, or publicly inciting the interruption of a largely ceremonial process after the fact? The former could have changed the outcome of the 2020 vote. The latter had essentially zero chance of blocking Biden’s ascent. The Ukraine call was a serious and corrupt effort to misuse the office of the presidency to retain power. It was election cheating, no more and no less. Trump’s highly public post-election conduct, including yesterday’s incitement, has been repugnant and damaging, but it has not been a realistic plan to abuse the presidency to remain in power.

An op-ed by Laurence H. Tribe and Joshua Matz: As the House of Representatives takes the extraordinary step of considering a second impeachment of President Trump during his final days in office, two questions loom large: Did Trump commit impeachable offenses? And does it make sense to impeach even though the Senate may not try and convict him before he leaves office on Jan. 20? The answer to both questions is yes. Trump spent months convincing his followers, without factual basis, that they were victims of a massive electoral fraud. He summoned them to D.C. for a “wild” protest as Congress met to certify the election results. He then whipped them into a frenzy and aimed the angry horde straight at the Capitol. When Trump’s mob breached the building, he inexcusably dawdled in deploying force to quell the riot. And when he finally released a video statement, it only made matters worse. Simply put, Trump knew perfectly well that his rally on Wednesday was a powder keg of his own creation. But he gleefully lit a match and tossed it at Congress. The article of impeachment circulated Friday by Democratic Reps. David N. Cicilline (R.I.), Jamie B. Raskin (Md.) and Ted Lieu (Calif.) accurately captures the gravity of Trump’s misconduct. It situates his action within his “prior efforts to subvert and obstruct the certification of the results of the 2020 presidential election.” And it recognizes the terrible damage that Trump, through his incitement, inflicted on the nation as a whole.

An op-ed by Evelyn Douek: It happened slowly, and then all at once. After years of sparring, the internet’s most powerful moderators deplatformed their most famous troll: the president of the United States. Facebook has blocked Donald Trump’s account indefinitely. So have Snapchat, Twitch, Shopify; even one of the Trump campaign’s email providers has cut it off. At the time of writing, Trump still has his YouTube channel, but the company says it is accelerating its enforcement action. It was a Friday Night Massacre of platform bans. But one ban outstrips all others in its symbolism: @realDonaldTrump has been suspended from Twitter, the platform that has defined this president more than any other. The story of the past week in content moderation can be told in two ways. The first is the formalistic myth that platforms want us to believe. In this telling, platforms have policies and principles they hew to; their decisions based on them are neutral, carefully considered evaluations of the rules and the facts. The second is the realist take, in which the posts and tweets of platform executives and spokespeople can be seen as fig leaves, trying to hide that these were, at bottom, arbitrary and suddenly convenient decisions made possible by a changed political landscape and new business imperatives.

An op-ed by Oliver Roberts ‘21: After the storming of the Capitol on Jan. 6, calls for the impeachment and removal of President Trump have reverberated throughout the Democratic Party, including from House Speaker Nancy Pelosi and incoming Senate Majority Leader Chuck Schumer. But with less than two weeks left in Trump’s term, many pundits and politicians have acknowledged that impeachment proceedings may not be logistically or politically feasible. Believe it or not, Trump’s exit from office on Jan. 20 is not the end of the impeachment conversation. Post-presidency impeachment may not only constitutionally be possible, but politically feasible given the bipartisan support for Trump’s impeachment today. In our nation’s history, the question of whether a former president can be impeached and disqualified from holding future office has been disputed. But it’s a question that will inevitably come to a head in the coming weeks, with Trump’s clear plans for a 2024 run. On the topic of impeaching a former president, the Constitution does not provide a clear answer, and legal scholars have differing opinions. Article II, Section 4 of the Constitution states, “The President…shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Relatedly, Article I, Section 3 states, “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…”

Four years ago, startup founder Andrew Torba emailed me about a social network he was building, one that offered users near-absolute free speech. A pro-Trump conservative, Torba saw an opening for his venture after Twitter started removing people for harassment. Wary of moderation, he created an alternative. “What makes the entirely left-leaning Big Social monopoly qualified to tell us what is ‘news’ and what is ‘trending’ and to define what ‘harassment’ means?” he told me. “It didn’t feel right to me, and I wanted to change it.” Torba’s network, Gab, debuted a few months ahead of Trump’s 2016 election. Soon after, it grew into an established hangout for right-wing types online...Unlike mainstream social networks, Gab and its counterparts are unresponsive to criticism as a policy, which could create some serious issues down the line. “A lot of the organizing happened on these platforms that explicitly make it a point of pride not to moderate,” Evelyn Douek, a lecturer at Harvard Law School who studies content moderation, told me. “So what lever is there to pull? We’re going to need to work that out.” Facebook and Twitter were the big social media story these past four years. But look for Parler, Gab, and their counterparts to take their place. The story doesn’t end with a ban.

The slim edge Democrats won in the Senate renews hopes for limited legislation to combat climate change, such as measures to fulfill President-elect Joe Biden’s pledge to promote the use of electric vehicles and clean energy. But the ambitious Green New Deal, as well as controversial proposals to phase out fossil fuels and ban fracking, are still on ice...Renewable energy advocates said they expect Democrats in charge of the House and the Senate to collaborate with Republicans on a green-themed infrastructure bill that contains encourages sustainable development, including investments in mass transit and charging stations for electric cars. Republicans and Democrats also could find common ground on efforts to support carbon capture and sequestration technology essential to pare emissions from power plants as well as heavy manufacturing. The Democratic takeover of the Senate also could provide an easier path for Biden’s nominees to federal agencies that control energy and climate policy, including the Federal Electricity Regulatory Commission, where three Republicans are set to hold a majority until midyear. “FERC will become a Democrat-majority body and there won’t have to be any horse trading with the Republicans to make that happen,” said Ari Peskoe, director of Harvard Law School’s Electricity Law Initiative. “McConnell was not shy about holding up Obama’s nominees, so there was precedent for sitting on the nominee forever.”

The U.S. president has vast constitutional power to grant clemency in the form of pardons and commutations. The process is often tinged with politics. George H.W. Bush pardoned six men involved in the Iran-Contra scandal, while Bill Clinton pardoned Marc Rich, a Democratic Party donor who had fled to Switzerland after being accused of tax crimes. But clemency under Donald Trump has been unusual in multiple respects, including how recipients are evaluated and how announcements are timed. There’s even renewed speculation that Trump, before leaving office on Jan. 20, might try to preemptively pardon himself as a shield against any future prosecution for alleged federal crimes...Of Trump’s first 94 pardons and commutations, only seven appeared to have come on recommendation of the pardon attorney, and at least 84 were granted to people with “a personal or political connection to the president,” according to a review led by Harvard Law School Professor Jack Goldsmith. Trump’s first pardon, for instance, was given to Joe Arpaio, the former Maricopa County, Arizona, sheriff who had been found guilty a year prior of criminal contempt of court. Arpaio hadn’t applied for the pardon.