Media Mentions

Vice President Mike Pence is being put to the ultimate Trump test. The Republican president falsely claimed Tuesday that Pence can single-handedly toss out election results when Congress convenes on Wednesday for the final bureaucratic step before Joe Biden’s inauguration, putting pressure on the VP to decide what’s more important: The boss or the Constitution...Despite Trump’s claim, Pence cannot indiscriminately refuse to accept Biden’s 306-to-232 vote victory in the Electoral College. “The vice president is essentially powerless tomorrow. The Constitution gives him a merely ceremonial role, and there’s no way he can turn that into anything more,” Laurence Tribe, a longtime constitutional law professor at Harvard University, told the Daily News. In serving as the presiding officer over Wednesday’s session, Pence’s duties are essentially limited to presenting the 538 electoral votes certified by all 50 states and Washington, D.C., for a formal count, as spelled out by the 12th Amendment to the Constitution. He’s also tasked with overseeing any challenges to the results requested by members of Congress. If a challenge is made and supported by at least one representative and one senator, Pence should order the House and Senate to retreat to their respective chambers for a debate and vote on the objection. For a challenge to be successful, majorities of both chambers have to vote to sustain it — which is virtually impossible since the House is controlled by Democrats and Senate GOP leaders have instructed their members to not entertain objections to Biden’s certified victory.

Amid mounting cases of COVID-19 in the state’s prisons and jails, a group of community organizations are calling on Gov. Charlie Baker and top lawmakers to push the Parole Board to expedite releases of eligible parolees. More than 70 organizations on Tuesday sent a 10-page letter alerting state officials to what they call “serious concerns” about the parole system, including what they allege are low release rates, long delays for decisions and unnecessary re-incarceration of parolees who haven’t committed new crimes...The Massachusetts parole system is the oldest in the country and has been the focus of calls for reform for years — but it was largely left out of the state’s criminal justice overhaul in 2018. The length of time between hearings and decisions for inmates with life sentences rose from an average of three months in 2015 to more than nine months in 2018, according to an investigation published last year by the GBH News Center for Investigative Reporting and The Boston Globe. Parolees had been returned to prison for violating conditions of their parole like drinking a glass of wine and talking to a former prisoner, the investigation showed. The parole board has also faced criticism for its treatment of mentally ill patients. This week’s letter listed a series of community groups, including the Justice Resource Institute in Needham, the Charles Hamilton Houston Institute of Race and Justice at Harvard Law School and the Prisoners’ Assistance Project at Northeastern University.

In the closing days of his presidency, Donald Trump has demonstrated that he can make innumerable false claims and assertions that millions of Republican voters will believe and more than 150 Republican members of the House and Senate will embrace ... In the academic legal community, there are two competing schools of thought concerning how to go about restraining the proliferation of flagrant misstatements of fact in political speech ... Rebecca Tushnet, a law professor at Harvard, wrote by email: “Those are some big questions and I don’t think they have yes-or-no answers. These are not new arguments but they have new forms, and changes in both economic organization and technology make certain arguments more or differently salient than they used to be.” ... Lawrence Lessig, a law professor at Harvard...wrote by email, that “the First Amendment should be changed — not in the sense that the values the First Amendment protects should be changed, but the way in which it protects them needs to be translated in light of these new technologies/business models.” ... Randall Kennedy, who is also a law professor at Harvard, made the case in an email that new internet technologies demand major reform of the scope and interpretation of the First Amendment and he, too, argued that the need for change outweighs risks: “Is that dangerous? Yes. But stasis is dangerous too. There is no safe harbor from danger.” ... In one of the sharpest critiques I gathered, Laurence H. Tribe, emeritus professor at Harvard Law School, wrote in an email that, “We are witnessing a reissue, if not a simple rerun, of an old movie. With each new technology, from mass printing to radio and then television, from film to broadcast TV to cable and then the internet, commentators lamented that the freedoms of speech, press, and assembly enshrined in a document ratified in 1791 were ill-adapted to the brave new world and required retooling in light of changed circumstances surrounding modes of communication.”

An op-ed by Noah Feldman: It’s really happening: Republicans in the House and Senate are poised to defy reality and try in vain to reverse the presidential election results. Congress will meet on January 6 to certify the election results in what is normally a predictable ritual. A dozen Republican senators and several members of the House have said they plan to object. When they do, it’s going to be a dark day for U.S. democracy. That’s true even though Joe Biden will still ultimately be recognized as the winner of the 2020 election. I wish I could say it’s only political theater by Republicans who know it won’t matter, and hence not a big deal. But I can’t. The truth is both more serious and more painful. The concerted effort by a more-than-token number of Republicans reflects a basic willingness to reject the people’s vote and with it, democracy itself. If the Republicans controlled both houses of Congress, they would be in the position to carry out a constitutional coup d’état. The fact that they can’t do it this time isn’t evidence that we don’t have to worry about it the future. It’s evidence that we need to be very worried indeed.

An op-ed by Cass Sunstein: Since the presidential election on Nov. 2, the rule of law has held. That is one of the most noteworthy, and inspiring, developments in the entire history of U.S. law. Whether they were appointed by Presidents Donald Trump or Barack Obama, by Presidents Bill Clinton or George W. Bush, federal judges have shown fidelity to the law by rejecting frivolous and evidence-free efforts by Trump to overturn former Vice President Joe Biden’s victory. Congress will meet on Wednesday to finalize that victory. Senator Ted Cruz of Texas, joined by at least 10 other Republican senators or senators-elect, is mounting a challenge, seeking to delay and perhaps to reverse the result. An obvious question is the role of Vice President Mike Pence, who serves as president of the Senate and can break deadlocked senate votes on ordinary matters, now that he has “welcomed” the senators’ electoral vote challenge. What is he permitted to do on Wednesday? Under the law, the simplest answer is: Not very much. His role is largely ceremonial. He has no power to overturn the results of a presidential election. A central reason is that the drafters of the U.S. Constitution and those who followed them were acutely aware of the risk of bias and self-interest in politics. They did not want the vice president, who might well have a rooting interest, to settle the outcome of a presidential election.

President Donald Trump's desperate and conspiracy-ridden attempts to challenge President-elect Joe Biden’s election win went a step further this weekend when The Washington Post published a recording of him asking Georgia officials to “find” him the votes needed to win the state. The Hail Mary attempt comes as Congress prepares to officially count the Electoral College votes this Wednesday, with more than 100 Republican lawmakers planning to make a symbolic stand that day against the majority will of the American electorate. To discuss, Jim Braude was joined by Jennifer Horn, a co-founder of anti-Trump Republican organization The Lincoln Project, and retired federal judge Nancy Gertner, now a professor at Harvard Law School.

This past weekend was a big one for Republicans. Here in Massachusetts, party members re-elected Jim Lyons as state party chair, in a 39-36 vote over his challenger, State Representative Shawn Dooley of Norfolk. Lyons, an ardent Trump supporter, has frequently clashed with GOP governor Charlie Baker. Meanwhile, on Saturday, at least 10 Republican US Senators announced they will object to certifying the electoral college results this Wednesday. Also, the Republican Secretary of State of Georgia released the audio of an hour-long call with President Trump and some of his lawyers in which Trump repeatedly asked Secretary Brad Raffensperger to "find" exactly enough votes to declare him the winner there. We take listener calls with Judge Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR's Legal Analyst. We also hear from WBUR senior political reporter Anthony Brooks and Amy Carnevale, an elected member of the Massachusetts Republican State Committee.

The week before Christmas, President Donald Trump issued a series of pardons and commutations, many of them for his personal associates and political loyalists: his son-in-law’s father, Charles Kushner; former operatives Roger Stone and Paul Manafort; and two former GOP congressmen. Hardly any of the 49 people who received clemency were vetted by the U.S. Department of Justice’s pardon office. Trump has largely wrested the clemency process from the Justice Department, turning it into a lobbying bonanza that has outraged Democrats...Trump has granted a total of 94 pardons and commutations, far fewer than Barack Obama or George W. Bush issued, and only seven of those cases appear to have been recommended by the pardon attorney, according to data compiled by Harvard Law School Professor Jack Goldsmith. More than 14,000 clemency seekers are waiting for verdicts on their applications to the Justice Department. But that backlog is hardly a new phenomenon. In 2014, the Obama administration unveiled a clemency initiative that created new criteria for commutations, with as many as 10,000 inmates expected to qualify.

An essay by Jeannie Suk Gersen: Donald Trump has regularly teased incriminating “tapes” of people whom he wanted to discredit; those have never materialized, but we are by now accustomed to tapes of his own perfidy. “Grab ’em by the pussy.” “I would like you to do us a favor, though.” And, now, in a phone call with Georgia’s secretary of state, Brad Raffensperger, “I just want to find eleven thousand seven hundred and eighty votes.” A recording of the call, from Saturday, published on Sunday by the Washington Post, shows that Trump attempted to coerce Raffensperger to “find” enough votes to overturn the results and warned of criminal consequences if the Georgia Republican did not. “I just want to find eleven thousand seven hundred and eighty votes, which is one more than we have,” Trump said. (Biden won Georgia by a margin of eleven thousand seven hundred and seventy-nine ballots.) The President suggested that “there’s nothing wrong with saying, you know, um, that you’ve recalculated.” On January 20th, the Justice Department’s stance that a President cannot be federally indicted while in office will no longer apply to Trump, so the question of whether he committed a crime is not merely theoretical. Federal election law makes it a crime to “knowingly and willfully” attempt to “deprive or defraud the residents of a State of a fair and impartially conducted election process” by the “tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent.” Trump appears to have done just that, by asking Raffensperger to announce a fictitious finding of just enough ballots for Trump to win the state, and backing up this demand with a veiled threat of penalty if Raffensperger doesn’t comply.

An op-ed by Cass Sunstein: President-elect Joe Biden has chosen Michael Regan, secretary of North Carolina’s Department of Environmental Quality, as administrator of the Environmental Protection Agency. If confirmed, Regan will have a distinctly challenging assignment. The reasons are threefold. The Donald Trump administration has scaled back so many environmental regulations; the agency has been demoralized; and Biden has an exceedingly ambitious environmental agenda. Regan will need to establish priorities for his first months. Here are five concrete ideas, the first three of which involve climate change, on which Biden himself is focusing: Greenhouse gas emissions from motor vehicles. Transportation accounts for about 28% of greenhouse gases in the U.S., and from 1990 to 2018, emissions from transportation have grown significantly. President Barack Obama imposed aggressive regulations on greenhouse gas emissions from both light-duty and heavy-duty vehicles; Trump scaled them way back. Biden promises to issue “a new fuel economy standard that goes beyond what the Obama-Biden Administration put in place.” To do that, the EPA will have to coordinate closely with the Department of Transportation, which has authority to issue fuel economy rules. It will have to comply with the Clean Air Act, which calls for standards that “reflect the greatest degree of emission reduction achievable,” considering technological feasibility, costs of compliance and necessary lead time.

An op-ed by Noah Feldman: It’s really happening: Republicans in the House and Senate are poised to defy reality and try in vain to reverse the presidential election results. Congress will meet on January 6 to certify the election results in what is normally a predictable ritual. A dozen Republican senators and several members of Congress have said they plan to object. When they do, it’s going to be a dark day for U.S. democracy. That’s true even though Joe Biden will still ultimately be recognized as the winner of the 2020 election. I wish I could say it’s only political theater by Republicans who know it won’t matter, and hence not a big deal. But I can’t. The truth is both more serious and more painful. The concerted effort by a more-than-token number of Republicans reflects a basic willingness to reject the people’s vote and with it, democracy itself. If the Republicans controlled both houses of Congress, they would be in the position to carry out a constitutional coup d’état. The fact that they can’t do it this time isn’t evidence that we don’t have to worry about it the future. It’s evidence that we need to be very worried indeed. The key vulnerability here arises from the Electoral Count Act, which dates to 1887. It allows members of Congress to object to the submitted votes from the state electors, triggering debate on whether to count those votes.

An op-ed by Evelyn Douek: For years, social-media platforms had held firm: Just because a post was false didn’t mean it was their place to do anything about it. But 2020 changed their minds. At the end of May, Twitter for the first time labeled a tweet from the president of the United States as potentially misleading. After Donald Trump falsely insisted that mail-in voting would rig the November election, the platform added a message telling users to “get the facts.” Within a day, Mark Zuckerberg, Facebook’s founder and CEO, had appeared on Fox News to reassure viewers that Facebook had “a different policy” and believed strongly that tech companies shouldn’t be arbiters of truth of what people say online. But come November, between the time polls closed and the race was called for Biden, much of Trump’s Facebook page, as well as more than a third of Trump’s Twitter feed, was plastered with warning labels and fact-checks, a striking visual manifestation of the way that 2020 has transformed the internet. Seven months ago, that first label on a Trump tweet was a watershed event. Now it’s entirely unremarkable. Among the many facets of life transformed by the coronavirus pandemic was the internet itself. In the face of a public-health crisis unprecedented in the social-media age, platforms were unusually bold in taking down COVID-19 misinformation.

An op-ed by Laurence Tribe: Every passing day seems to expose more evidence that President Trump is in the midst of a public crime spree. His activities — including pressing Georgia’s secretary of state to “find” nonexistent votes — increasingly bear the stench of criminality, bare-faced and public though they are. History has taught us to expect crimes to be committed in the dark. But Trump has been openly fomenting violence and encouraging actions designed to undo a fair and free election. In plain view and over four years, he has threatened those who fail to join him in this course of action, one that would otherwise quickly be recognized as a seditious coup had his longstanding pattern not numbed observers to the real meaning of his conduct. From early in his presidency, Trump has dangled the prospect of pardons to induce his cronies to remain loyal and do his bidding. On their face, his recent spate of pardons to his former national security adviser Michael Flynn, longtime adviser Roger Stone, and Paul Manafort, his 2016 campaign chairman, appear to consummate deals designed to conceal incriminating information — deals that might well have safeguarded Trump from removal or prosecution. As of now, we don’t know the extent to which the promise of such pardons actually kneecapped the Justice Department and congressional investigations. We need to find out: Although even unsuccessfully attempted “obstruction of justice” is a crime, it’s unlikely to seem serious enough all by itself to warrant prosecuting a former president.

There is much to be down about in 2020. Yet, America’s heart broke when the story of two elementary school girls spending hours to complete their homework outside of a Taco Bell made national news. Why were those girls in, of all places, a fast-food restaurant to study?  The children did not have internet access at home. Taco Bell was the only place nearby that had a free, stable Wi-Fi connection. Who knew the difference between accessing education during a global pandemic would be found in a fast-food parking lot? America must build better for our nation’s children. Our country can build better for its young...The lack of competition to contest these giant cable corporations’ monopolies destroys any incentive to improve their services, especially in rural areas...Susan P. Crawford, the John A. Reilly Clinical Professor of Law at Harvard Law School, details the actions taken by cable incumbents during Kennard’s tenure as the FCC General Counsel (1993-1997) and Chairman (1997-2001). She states, “The major cable providers in this country do not compete with one another. The operators clustered all cable into regional monopolies during the summer of 1997—Leo Hindery, then-President of Tele-Communications, Inc., and the architect of the effort, calls that summer the “Summer of Love”—pursuing swaps and partnerships that put every market in the United States except four in the hands of a single operator.”

This week, the first doses of the Pfizer COVID-19 vaccine were administered in the U.S. With the FDA expected to approve Moderna’s vaccine imminently, people are already looking forward to a world where travel and gatherings are possible. But for those activities to be maximally safe, the country will either need to reach herd immunity—unlikely until mid-2021 at the earliest, assuming essentially flawless vaccine roll-out and widespread adoption—or to find ways to verify people’s negative tests or vaccination status in advance. Some companies are looking to digital solutions. Airlines like JetBlue, United, and Virgin Atlantic have begun using CommonPass, an app developed by the Commons Project and the World Economic Forum that shows whether users have tested negative for COVID-19 for international travel...The first major hurdle towards a culture that uses digital immunity passports: ensuring widespread availability of the vaccine. Requiring someone to show proof they’ve been vaccinated when the vaccine is not yet available to them is a recipe for injustice. It will take months for the vaccine to become available to the general public, and up until then, we’re likely to see more demand for the vaccine than supply. After that initial surge of vaccinations, we could see a second “phase” in vaccine rollout. “At a certain point I think things are going to flip,” says Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. Focus will turn from vaccinating people clamoring for it toward those who may have reservations. “That’s when you’re going to see states perhaps mandating the vaccine, school systems mandating vaccines, or employers like hospitals.”

A federal judge on Friday rejected the Georgia Republican Party’s request to prevent newly registered voters from casting a ballot in the state’s upcoming Senate runoff elections, reasoning that the party lacked standing. The judge denied a request for temporary restraining order prohibiting new residents who voted for a Senate candidate in another state from voting in the Jan. 5 elections, according to Georgia Public Broadcasting...The GOP’s lawsuit, which claimed that it was “illegal for an individual to vote in the Georgia run-off if he or she already voted in 2020 for U.S. Senator in a different state,” was also based on a misreading of the Voting Rights Act. The complaint selectively quoted from the statute, stating: “The prohibition . . . applies with respect to any general, special, or primary election held solely or in part for the purpose of selecting or electing any candidate for […] Member of the United States Senate […].” ... Harvard Law School professor Nick Stephanopoulos, who specializes in election law, similarly told Law and Crime that the complaint appeared to misstate the relevant law. “The statute makes clear that it’s not double voting ‘to the extent two ballots are not cast for an election to the same candidacy or office.’ That would be precisely the situation of someone who moved to Georgia and registered after the general election,” he said. “That person would not have cast two ballots in ‘an election to the same candidacy or office’ — namely the Georgia Senate election.”

A letter to the editor by Charles Fried: Re “‘I Was Stunned’: Small Colleges Receive Big Donations” (news article, Dec. 17): I sit on the board of the Campaign Legal Center, a (relatively) small nonpartisan organization that works hard to “advance democracy through law.” Last summer we received an unsolicited and unexpected large gift from MacKenzie Scott, the former wife of Jeff Bezos, the founder of Amazon, accompanied by a request that we not return to her for more in the future. Your account about her surprise generosity to a great and obviously thoughtfully researched variety of relatively obscure historically minority colleges and universities that struggle to serve richly deserving segments of the population is an inspiring account of the union of heart and brain. We are all better for learning of it. Charles Fried, Cambridge, Mass. The writer is a law professor at Harvard.

An op-ed by Laurence Tribe: If, as Alexander Pope reflected in 1711, “to err is human, to forgive, divine,” then the US Constitution’s pardon power — the prerogative of forgiveness — should be beyond reproach. Instead, a godless US president who appears incapable of forgiveness has seemingly perverted this instrument of mercy into another grave threat to the rule of law. Donald Trump’s recent twisting of the pardon power risks leaving a damaging legacy: a blueprint for manipulating this vestige of royal prerogative to place presidents and their cronies above the law. But a remedy exists: investigation and potential prosecution. We must treat any obstructions of justice we uncover as the crimes they are. It is critical to distinguish between two types of corrupt pardons. There are those that are merely contemptible for their intrinsic immorality — they may give a free walk to American war criminals (the Blackwater contractors convicted of a massacre), corrupt politicians (former Illinois governor Rod Blagojevich, convicted of trying to sell a Senate seat), and relatives (Mr Trump’s son-in-law’s criminally convicted father Charles Kushner). There are others that pose structural dangers by placing the president and his circle above the law and thwarting investigations into wrongdoing.

The transition to 21st century leadership and management in a large organization isn’t easy, simple, or quick. In part, that’s because change also entails overcoming unspoken attachments to the current way of doing things. In part, it’s because even the best of current management fixes generally fail. It’s also because the necessary shifts are often the opposite of what made firms successful in the 20th century. The transition will eventually put almost everything currently being done in question, and requiring immense relearning by almost everyone...In considering whether to proceed at this time, you will need to assess the size and intensity of battles that may lie ahead. Of particular importance is any inconsistency between the goal of the 21st century leadership and management—an obsession with enhancing customer value above all else—and the way the firm is currently being run. In a public company, the probability of such an inconsistency is high, given priority that many public firms continue to give to maximizing shareholder value as reflected in the current stock price, despite the Business Round Table declaration to the contrary on August 2019. As Harvard Law professor Lucian Bebchuk has pointed out, the declaration has not led to any discernible substantive change in corporate behavior and appears to have been done “mostly for show.”

Industry observers see the Federal Energy Regulatory Commission as a major player in the clean energy transition and believe new leadership that will take the helm at the agency in 2021 could aid with effectuating the climate goals of the president-elect and certain states. Once considered an obscure, sleepy agency, clashes over natural gas infrastructure projects, coal plant retirements and state clean energy policies thrust the agency into the center of climate debates. With authority over power sector operations and planning, its decisions are helping to shape the evolution of the sector and influence the energy transition...Ari Peskoe, director of Harvard Law School's Electricity Law Initiative, said that "regardless of whether Congress passes clean energy legislation, the Democratic-led FERC should choose to wield its authority to support a clean energy agenda." He asserted that FERC had broad discretion to do so given that it operates under flexible legal standards and already has transmission oversight and market regulation authorities. In a paper, he specifically advocated for FERC to ensure that transmission networks support clean energy deployment and that power market rules align with the clean energy transition. As such, Peskoe said FERC would "be an indispensable player in the Biden administration's clean energy agenda" as its decisions would affect the pace and cost of clean energy deployment.

The search for Massachusetts' next top federal prosecutor is about to begin in earnest. Incoming President Joe Biden will appoint the next U.S. attorney for Massachusetts, but a local advisory committee expects to begin reviewing applications as early as next week. The committee was set up by Sens. Elizabeth Warren and Ed Markey, who will ultimately recommend who the next president should appoint to replace current U.S. Attorney Andrew Lelling. The chair of the advisory committee, retired federal judge Nancy Gertner, says the panel interested in talking with the candidates about the power wielded by prosecutors and whether changes might be needed, although that will largely depend on the next attorney general. "It's not an ordinary time," she said. "We've had demonstrations about the George Floyd killing and more attention to mass incarceration, and the criminal legal system is not going to have the resources due to the pandemic. I think all of that conspires to a moment of reform and the next U.S. attorney ... should be moving that."