Media Mentions

President Donald Trump has declared that he has the “absolute right” to issue a pardon to himself. Yet the law is much murkier than his confidence suggests. No president has attempted to pardon himself while in office, so if Trump tries to do so in the next six weeks, he will be venturing into legally untested territory without clear guidance from the Constitution or from judges. Legal experts are divided on an inherently ambiguous question that was left vague by the Founding Fathers and has never had to be definitively resolved in court...The question of whether Trump will do it, though, is as unsettled as the question of whether he can. A self-pardon, which Trump has openly mused about, would on one hand be fitting as a final norm-shattering act in a presidency defined by them. But it might also be at odds with his oft-stated conviction that he has done nothing wrong for which he needs to be absolved...Mark Tushnet, a retired Harvard Law School professor, said he doubted any court would overturn a presidential self-pardon, though he said such an act would constitute an abuse of power that would have been abhorrent to the framers of the Constitution. “For them, I believe it would have been unthinkable that the American people would ever elect the kind of person who would pardon himself. Which is why they didn’t say anything about the possibility,” Tushnet said. Since presidential pardons don't cover state crimes, it would seem unlikely a self-pardon would extend in any event to the state investigations Trump is facing.

Sen. Minority Leader Chuck Schumer continues to put pressureon President-elect Joe Biden to forgive up to $50,000 in student debt per borrower on the first day of his presidency...More than 40 million Americans have a lot riding on the answer of whether or not a president can forgive student debt without Congress. Borrowers could see their debts reduced or eliminated overnight if the president was able to act without legislation. Getting Congress to agree to forgive the loans, on the other hand, is not likely to occur any time soon, if ever. For now, it’s also an open question if Biden has interest in testing his presidential power in this way...During the 2020 Democratic presidential primary, Massachusetts Sen. Elizabeth Warren vowed to forgive student loans in the first days of her administration, including with her announcement an analysis written by three legal experts, based at the Project on Predatory Student Lending at Harvard Law School, who described such a move as “lawful and permissible.” Biden, however, has not gone so far. A spokesman for the president-elect wouldn’t say if Biden has taken a stance on whether or not he can forgive student debt without Congress, through he pointed to remarks Biden made at a recent press conference after he was asked if he would take executive action to cancel the loans.

Early worries about whether U.S. internet infrastructure could accommodate an unprecedented surge in usage as COVID-19 restrictions pushed tens of millions of Americans to working and learning from home have, for the most part, proven unfounded. However, that new pandemic-induced dependence on robust internet connectivity has shone a light on the stark inequities of broadband access and helped spur a new focus on addressing a long-standing question — why isn’t internet service a public utility with the same support, disbursement and regulation afforded to other basic necessities like water, electricity and telephone service? ... Harvard University researcher Susan Crawford has been investigating internet access issues for years and taken a close look at how U.S. broadband service has evolved as well as alternative approaches by countries in Europe and Asia that have embraced the development of high-speed internet access as a basic — and critical — public utility. Crawford says the models that work best leverage public/private partnerships to get internet infrastructure like fiber optic cable running to every household and business, then opening access to those lines via lease with private sector service providers. The systems, she said, bear a lot of resemblance to how domestic electricity and telephone systems were built out by private entities but backed by public financing and oversight.

It was a month before Donald J. Trump’s inauguration, and one of his aides had a delicate question: Wasn’t there going to be a backlash when it became known that the inauguration had spent donors’ money at Mr. Trump’s hotel in Washington, even though other places would cost much less or even be free? ... As Mr. Trump’s presidency comes to a close, expenditures like those are receiving renewed legal scrutiny in the form of a civil case being pursued by the attorney general for the District of Columbia. At the heart of the case is a question — whether Mr. Trump and his family have profited from his public role, sometimes at the expense of taxpayers, competitors and donors — that has been a persistent theme of his tenure in the White House...Lawsuits brought by nonprofit groups and attorneys general in Washington and Maryland claiming that Mr. Trump had violated the so-called emoluments clause of the Constitution were never resolved during his term and now face potential dismissal once he is out of power. “It is more than just frustrating,” said Laurence H. Tribe, a constitutional law professor at Harvard, who has been involved in the emoluments litigation. “The most serious questions about the abuse of presidential power and the use of the presidency as a center of personal gain and profit remain unresolved. The wheels of justice clearly ground more slowly than some would have hoped.”

For the second time since March, Prisoners’ Legal Services (PLS) is arguing against the Massachusetts Department of Correction (DOC) in the uphill battle to depopulate state prisons. Neither DOC officials nor Gov. Charlie Baker has put forth a plan to decarcerate despite litigation, legislation efforts, and soaring COVID cases in correctional populations. By Dec. 2, per a Special Master’s Report commissioned to fairly assess the situation from all angles, Mass prisons, jails, and houses of correction had four times the rate of infection as the general population of the Commonwealth. While the number of COVID cases in the state has risen to 3.6% of the general population, a total of 1,864 out of 13,049 prisoners—a whopping 14%—have been infected with coronavirus since March. (As of this writing, in the houses of correction and jails it is actually 1 in 5.5 prisoners who have been infected.)... While there have been some releases due to a court order from the CPCS lawsuit, the majority of releases were those awaiting trial and not sentenced prisoners. “The remedy is not working,” said Katherine Naples-Mitchell, staff attorney at the Charles Hamilton Houston Institute for Race and Justice. She added, “Jail populations are actually higher now than the second week of April. Real reductions in county populations have been from prisoners wrapping county sentences.” In other words, people are getting out because they’ve done their time—not because the state is acting prudently.

Rudy Giuliani. Ivanka Trump. Joseph Maldonado-Passage, AKA Joe Exotic, star of the Netflix series Tiger King. And, just possibly, Donald Trump himself. These are some of the candidates mentioned as prospects for official pardons before the US president leaves office on 20 January. Such a spree would test the political and constitutional limits of a centuries-old power that echoed the British monarchy. It would also be revelatory of the potential legal jeopardy of Trump and his allies once they depart the White House...Many legal experts, however, contend that a self-pardon would be unconstitutional because it violates the basic principle that nobody should be the judge in his or her own case. Laurence Tribe, a constitutional law professor at Harvard University, argued in an email that it “flies in the face of the universally agreed proposition that the pardon power cannot be used as a license to commit future crimes”. He added: “The basic problem is that, if a president were able to pardon himself, he could commit crimes with impunity throughout his presidency. He could ransack the treasury, bribe the chief justice to overrule Roe v Wade, and shoot someone on Fifth Avenue knowing he could never be punished.” The nation’s founders saw the pardon power as a way to show the quality of mercy. While Trump might undermine their credibility in the short term, experts say he is not the first president to be accused of abusing pardons and is unlikely to do lasting constitutional damage.

With miles of barbed wire and electric fencing along its border and open government hostility to migrants, Hungary's borders aren't always the friendliest place for foreigners. That's during normal times. Amid the pandemic, Hungary has shut its doors to almost everyone, even its European neighbors. Unless, they've had COVID-19. It's not the place you'd expect to find such a novel exception to otherwise tough entry rules. The policy, which came into force in early September, opens the door to visitors who can provide evidence that they've recovered from COVID-19 -- proof of both a positive and negative test in the past six months...The World Health Organization (WHO) advised against immunity passports in April. "There is currently no evidence that people who have recovered from COVID-19 and have antibodies are protected from a second infection," read its scientific brief. On Thursday, the WHO confirmed it has not changed its position, but, Regional Advisor Dr. Siddhartha Sankar Datta said it was looking to help countries implement electronic vaccination certificates. Other experts have also raised concerns about immunity passports. "I think the worst-case scenario is that you see a spike in cases that happens because people are incentivized to try to get COVID to demonstrate immunity," Carmel Shachar, a Harvard University bioethics and health law expert, tells CNN. "So, all of a sudden, you'd see people not wearing masks, not respecting social distancing, because they want to get COVID. Especially if more and more countries adopted a similar scheme."

President Donald Trump has a bill on his desk that could kick several Chinese companies off U.S. stock exchanges and inflame an already strained relationship between Washington and Beijing. The Holding Foreign Companies Accountable Act would force companies to give up their listings on Wall Street if they refuse to open their books to U.S. accounting regulators. It could also bar them from raising money from American investors. While the law technically applies to companies from any country, it is mainly targeting Chinese corporations...If the law is passed, it could affect companies like Alibaba, oil giant PetroChina, JD.com and more than 200 other names. Chinese companies listed on U.S. exchanges have a combined market capitalization of about $2.2 trillion, so a mass delisting would mean major movements of capital. Something that experts say could backfire on American investors. “If the bill becomes law, I think these companies are going to leave our exchanges and they’re going to leave on prices that are not going to make American investors better off,” said Jesse Fried, a professor of law at the Harvard Law School, in an interview on CNBC’s “Street Signs Asia.” ...A company like Alibaba leaving the United States also appeals to Beijing, because it reduces the role of U.S. regulators. “Having these companies trade in the United States gives rise to frictions with the Chinese authorities, because the U.S. authorities want to impose their rules on these companies,” Fried explained.

Imagine a robot trained to think, respond, and behave using you as a model. Now imagine it assuming one of your roles in life, at home or perhaps at work. Would you trust it to do the right thing in a morally fraught situation? That’s a question worth pondering as artificial intelligence increasingly becomes part of our everyday lives, from helping us navigate city streets to selecting a movie or song we might enjoy — services that have gotten more use in this era of social distancing. It’s playing an even larger cultural role with its use in systems for elections, policing, and health care...Jonathan Zittrain, Berkman Klein Center director and Harvard Law School’s George Bemis Professor of International Law, said it’s important that we think hard about whether and where AI’s adoption might be a good thing and, if so, how best to proceed. Zittrain said that AI’s spread is different from prior waves of technology because AI shifts the decision-making away from humans and toward machines and their programmers. And, where technologies like the internet were developed largely in the open by government and academia, the frontiers of AI are being pushed forward largely by private corporations, which shield the business secrets of how their technologies operate. The effort to understand AI’s place in society and its impact on all of our lives — not to mention whether and how it should be regulated — will take input from all areas of society, Zittrain said. “It’s almost a social-cultural question, and we have to recognize that, with the issues involved, it’s everybody’s responsibility to think it through,” Zittrain said.

Noah Feldman is a guest on this episode of Axios Today, discussing what we learned from the presidential election about our democratic process and what it can and cannot withstand.

An op-ed by Cass Sunstein: Republican senators are threatening to refuse to confirm President-elect Joe Biden’s choices for his cabinet. They appear to be especially unhappy about the selection of Neera Tanden to head the Office of Management and Budget, in part because she posted a number of tweets that were sharply critical of them. But they might choose to make the confirmation process a nightmare for several of Biden’s nominees. That would be a clear betrayal of the U.S. Constitution. Under the constitutional plan, the Senate is obligated to give the president a lot of discretion insofar as he is choosing the people who will be the working for him. (And yes, this objection applies to the many Democratic senators who voted against President Donald Trump’s choices, such as Eugene Scalia for Secretary of Labor.) To see why, let’s begin with the text. Article II, section 1 of the Constitution states, “The executive power shall be vested in a president of the United States of America.” At a minimum, that provision means that members of the president’s cabinet, and other high-level executive branch officials, are exercising authority vested in the president himself. As the Supreme Court recently said, such officials can be fired by the president — if and whenever he chooses. At the very least, it would be awkward to say that the president has broad power to remove his appointees — while also insisting that the Senate can freely reject the president’s choices about who should be working for him.

When President-elect Joe Biden takes office, Harvard law professor Jody Freeman says he’ll have “an awful lot of authority” with the EPA and other agencies. Despite Republican power in Congress, executive clout can get the U.S. “back on a path of dealing with climate change” by shoring up environmental protections unraveled by President Trump. As Biden’s new Climate Tsar, John Kerry can restore America’s role in the Paris Agreement, which he helped draft as President Obama’s Secretary of State.  Princeton international affairs professor Michael Oppenheimer concedes that Biden’s goal of “net zero” by 2050 doesn’t mean eliminating fossil fuels, even though that’s what it sounds like. But he and Freeman say it’ll do some good, despite “honestly motivated” criticism from climate advocates. Later on, when it comes to Trump’s famous big lie that Joe Biden stole the presidential election, Brown University politics professor Corey Brettschneider says, “I think it is extremely dangerous for a sitting president to try to undermine faith in our elections, when there's no evidence that there was any fraud.” He says U.S. Supreme Court Justice Amy Coney Barrett is part of a team with Samuel Alito, and Clarence Thomas and Neil Gorsuch that threaten Roe v. Wade, gay marriage, and the Biden White House.

The Trump administration has sued Facebook Inc., accusing the social-media company of illegally reserving high-paying jobs for immigrant workers it was sponsoring for permanent residence, rather than searching adequately for available U.S. workers who could fill the positions. The lawsuit reflects a continuing Trump administration push to crack down on alleged displacement of American workers...Tech companies like Facebook rely on H-1B visas to plug gaps in their technical workforce, which they say is essential to building the software that powers products like the Facebook news feed. Tech executives have said there aren’t enough American students graduating with science and engineering degrees to meet their demand, a problem they say is only worsening as products grow more complex and reliant on advanced technology like artificial intelligence...The H-1B program is the “lifeblood of Silicon Valley” where competition for engineers is fierce, said Vivek Wadhwa, a distinguished fellow at Harvard Law School’s Labor and Worklife Program who researches how jobs are being changed by automation. Mr. Wadhwa added that companies seek to hire H-1B visa holders who have done the job because they have a proven track record of being able to handle the required work. “The companies want you because you’ve survived and you’ve proven yourself,” he said. “It’s not a matter of a fake credential.”

Today on Boston Public Radio: Lawrence Lessig discussed the legal window for Republicans to replace electors in a last-ditch effort to get President Trump reelected, and other extrajudicial efforts to overturn the results of the 2020 election. Lessig is the Roy L. Furman professor of law and leadership at Harvard Law School, and the founder of Equal Citizens. His latest book is “They Don’t Represent Us: Reclaiming Our Democracy.”

Harvard law professor Susan Crawford joins Adam this week to discuss why America – the country that invented the internet – struggles to provide access to affordable, high-speed internet. She explains why just a few telecom companies monopolize the industry, fiber vs. wireless, the real deal with 5G, and why the internet should become a public utility.

An op-ed by Noah Feldman: Last week, Justice Neil Gorsuch not-so-subtly jabbed at secular liberals by name-checking several “essential” businesses allowed to remain open — liquor stores, bike shops and acupuncturists — even as houses of worship were required to close. “It may be unsafe to go to church,” he wrote. “But it is always fine to pick up another bottle of wine, shop for new bike, or spend the afternoon exploring your distal points and meridians.” His implication was that the law was catering to liberal elites, the kind who ride bikes (guilty as charged) and treat acupuncture as an “exploration.” In the decision that occasioned this pointed comment, the Supreme Court ruled that religious institutions can’t be subject to stricter Covid-19 restrictions than other organizations. It marks a meaningful doctrinal development in First Amendment jurisprudence. The court’s new majority is moving to give religion “most favored nation” status when compared to other public businesses and institutions. But more significant than the change in the law is the cultural and ideological divide it signifies. Gorsuch’s jab is a prime example. The divide can be summed up by the different ways that secular liberals and religiously oriented conservatives react to the core question: Is it wrong to close churches, mosques and synagogues when businesses are allowed to remain open, albeit with restrictions? The two sides respond to this touchstone question radically differently. Each side could benefit from understanding the other’s perspective better.

A fascinating scene unfolded Thursday night on MSNBC’s “The Last Word” as host Lawrence O’Donnell had one of his assumptions about the Constitution tested by one of America’s leading constitutional law experts. O’Donnell explained why he believed the president probably has the power to self-pardon, but had his view put to the test by Harvard Law Prof. Laurence Tribe. Prof. Tribe noted that Article 3, Section 2 of the Constitution says the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” But Tribe noted the very next section says the president “shall take care that the laws be faithfully executed.” Tribe explained the significance of Article 3, Section 2. “It doesn’t say “except the criminal laws.” It doesn’t say ‘except when he chooses to violate the criminal laws.’ Now, if it were true, as Donald Trump said in the little segment you played, that the president has the absolute power to grant himself a power of pardon, to grant himself a pardon — which would be an odd way for the framers to have put it, you grant things to other people — if he had the absolute power to grant himself a pardon, if he knew that throughout his presidency, and if all presidents knew it, what would follow is that presidents do not have to follow the law,” Tribe explained. “They can’t be, according to the Justice Department, indicted while they’re in office, and if at any time they could pardon themselves…if that were the case then the president would not be below the law, he’d be above it.”

Laurence Tribe tells Lawrence O’Donnell that if Trump tried to pardon himself, his argument would not hold up in court because it goes against the principle that no one is above the law: “If that were the case, then the president would not be below the law, he’d be above it.”

A bill that would delist Chinese companies not following American auditing rules after a buffer period looks set to be one of the last President Donald Trump signs into law in the coming days, after it unanimously passed the U.S. House of Representatives Wednesday. The Holding Foreign Companies Accountable Act, first introduced to the Senate by Democrat Chris Van Hollen and Republican John Kennedy, gives foreign companies listed in the U.S. three years to comply with the Public Accounting Oversight Board's audits before giving them the boot. The legislation also unanimously passed the Senate in May...This week, U.S.-listed Chinese real estate website Fang Holdings, announced it received a preliminary buying proposal from General Atlantic. Some experts in the U.S. fear the delisting solution, while well-intentioned, could harm American investors. "Beijing is unlikely to back down, leading to a tsunami of delistings and cheap take-privates that hurt current investors in China-based firms," Jesse Fried, a Harvard Law School professor, and Matthew Schoenfeld, a portfolio manager in Chicago, warned in a post published on the Harvard Law School Forum on Corporate Governance after the bill passed the Senate.

An essay by Jeannie Suk Gersen: In a Rose Garden ceremony last week, Donald Trump described his final Thanksgiving ritual at the White House as “the official Presidential pardon of a very, very fortunate turkey.” The annual theatrics of the President sparing a bird from the fate of its flock provide a humorous performance of a profound power: the ability to grant an exception to the rule of law. In the waning days of a Presidency known for exceptional self-dealing, it seemed seasonable that Trump followed up the symbolic ceremony by actually pardoning Michael Flynn, his former national-security adviser, who pleaded guilty, in 2017, to the crime of lying to federal investigators about his contacts with the Russian Ambassador during the 2016 Presidential transition. The remaining weeks will involve drama about other associates, officials, and family members whom Trump may or may not pardon on his way out, including those who haven’t been convicted or even indicted. The candidates include Trump himself, who has stated in a tweet, “I have the absolute right to PARDON myself.” Whether or not Trump will create, in the coming weeks, the spectacle of the first Presidential self-pardon, Democrats’ desires for accountability may clash with the Biden Administration’s need to move forward and restore normalcy.

The Trump presidency has exposed many vulnerabilities in the laws and norms that govern presidential behavior. His brazen disrespect demands action to protect against a future president who might build on Trump's playbook. President Trump has flouted norms against conflicts-of-interest and courting foreign interference, abused his pardon power, threatened nuclear war, used the office to attack political foes, the press, and the judiciary, and refused to concede an election that he lost. He's not the first president to abuse presidential power and he's not the only problem. Congress has abdicated too much of the power they once used to better oversee and constrain presidential power. The good news is that we now have an opportunity to codify certain norms most vulnerable to abuse. Do we have the political will? Guest: Jack Goldsmith is a professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. He served as the head of the Office of Legal Counsel during the George W. Bush Administration. Administration. He’s the co-author, with Bob Bauer, of “After Trump: Reconstructing the Presidency”.