Media Mentions

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.

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."