Media Mentions

An op-ed by Cass Sunstein: In the aftermath of President Donald Trump’s provocation of a riot at the U.S. Capitol, there is fresh discussion of the two avenues for removing a sitting president. The first is impeachment. The second is the 25th Amendment to the U.S. Constitution. There is no question that Trump’s conduct was an impeachable “high crime and misdemeanor.” The applicability of the 25th Amendment isn’t as obvious. The two grounds for removal are fundamentally different. Impeachment is for egregious abuse of the powers of the office. The 25th Amendment is concerned with some kind of impairment that renders a president unable to do his job. For present purposes, its key provision is Section 4: “Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.” After this declaration is transmitted, the president’s only recourse is to submit his own declaration, saying that he is indeed able to do his job. At that point, the vice president and the majority of the principal officers of the executive departments (essentially the cabinet) can disagree. If so, Congress gets to decide the question.

The pro-Trump mob’s storming of the US Capitol in Washington, D.C., on Wednesday appears to fit the legal definition of sedition, though it remains to be seen whether anyone will face that charge, legal experts said Thursday...Laurence Tribe, an emeritus professor at Harvard Law School, said the law “basically says that anyone who, in any place subject to US jurisdiction, conspires to forcibly oppose the authority of the United States or to prevent or delay the execution of US law is guilty of seditious conspiracy. That certainly is what the people who organized and carried out the invasion of the Capitol were doing.” Tribe said he felt that a separate federal charge of waging rebellion or insurrection, which bears a 10-year sentence, could also apply...Tribe said charges such as vandalism or trespassing “seem a little trivial. Maybe they had to use the tax laws to get Al Capone, but here the insurrection is clear enough that complaining they just left a mess on the floor seems like a foolish, cowardly evasion of what’s going on.” “It’s the absolute heart of our system, and they were trashing it not just physically, but conceptually,” he said.

An op-ed by Trevor Potter and Charles Fried: The 2020 presidential election has been a disaster for people who think the Electoral College is still a good idea. Joe Biden’s clear victory has been followed by attempts by the incumbent president to induce Republican legislators and other elected Republican officials in five states he lost to ignore the certified vote counts in their states and substitute their partisan preferences for the voters’ decision. Now Congress will formally receive the electoral votes, after a series of attempts to subvert the democratic process, all made possible by the Electoral College. An early salvo was a suit filed in the U.S. Supreme Court by the State of Texas and supported by 126 Republican House membersand 18 Republican attorneys general asking the court to throw out the electors chosen by those same five states because Texas said it did not like the way they conducted their elections. Representative Louie Gohmert of Texas filed suit asking the courts to declare that Vice President Mike Pence has the legal right to pick the next president himself under the 12th Amendment — by ignoring the electoral votes for Mr. Biden cast by those five states. Instead, the Gohmert suit asks Mr. Pence to replace them with “votes” cast by the losing Trump elector slates in those states.

Rarely have images of unchecked bedlam and violence between security forces and angry Americans stunned the nation the way they did Wednesday, as right-wing rioters stormed the U.S. Capitol in Washington. The rioters attacked the literal and figurative symbols of American government in support of their preferred leader, outgoing President Donald Trump, who earlier had lauded their backing from a stage in front of the White House. They had come to protest the formal counting of Electoral College votes by Congress, a constitutionally mandated ceremony to certify Joseph R. Biden and Sen. Kamala Harris as the next president and vice president-elect...Several Harvard faculty members, authorities on American governance, denounced the takeover as a shameful watershed for U.S. democracy, however divided people may be politically...Constitutional scholar Laurence Tribe said the president had encouraged mob rule and violent insurrection “without a doubt.” “He’s fomented violence, he’s incited sedition, and in everything but the most technical terms, he’s waged war against the government of the United States, and that’s the very definition of treason,” said Tribe, the Carl M. Loeb University Professor, emeritus, at Harvard Law School. While the uprising has likely damaged the country’s institutions, image, and norms in ways that will take generations to undo, Tribe remains hopeful in a broader sense. “Even though this day ended darkly, it began with a victory for [Senators-elect Jon] Ossoff and [Rev. Raphael] Warnock in Georgia. We’re going to have a sane, reasonable, thoughtful person sworn in as president on Jan. 20,” he added. “And though the damage is real — I don’t want to minimize it — in the end, we will have come through it.”

The city of Philadelphia has long collected data on city properties’ waste generation and leveraged it to improve waste management, but now it’s honing in on the commercial sector too, realizing this will be crucial to hitting Philly’s zero waste targets. Today it runs a voluntary program where both municipal and commercial operations do detailed monthly reporting and receive support to improve their outcomes. “We wanted to recognize participants for their initiatives and provide technical assistance, advice on how to overcome waste-related challenges, and essentially provide services of a sustainability consultant free of charge. The city does this because we want commercial properties to pursue zero waste and we do not want lack of knowledge, resources, or funding to be barrier to this goal,” says Helena Rudoff, Zero Waste & Food Waste Initiatives, project lead, Office of Sustainability, city of Philadelphia...Rudoff’s team gets additional help from the Center for EcoTechnology (CET), a Pittsfield, MA-based nonprofit that supports businesses and governments in developing waste reduction strategies. CET also comes in to consult with businesses, though its focus is on managing food waste – for instance advising on how to implement a food donation program...CET connected Philadelphia with haulers in New Jersey to deal with their food waste. And its staff provided resources from the Harvard Food Law and Policy Clinic: information on liability protections, tax incentives, state label laws, and guidance on providing food scraps for animal feed.

Congress will convene on January 6 to officially count the electoral votes for the 2020 presidential election, certifying that President-elect Joe Biden won 306 electoral votes to President Donald Trump's 232. Vice President Mike Pence is expected to preside over the joint session as president of the Senate to open the certificates so they can be counted. There has been extensive debate about the scope of Pence's role during the joint session. Even though it has been reported by Newsweek that Pence does not have the ability to decide which electoral votes count, there still is the question of whether he can send electoral votes back to the states for "correction." ... Laurence Tribe, a constitutional law professor at Harvard Law School, explained the scope of Pence's role presiding over the joint session in an email to Newsweek. "Vice President Pence has no power whatsoever to send electoral slates back for recounting or 'correction' or to accept alternative slates or to do anything other than preside ceremonially over the joint session of Congress," Tribe said. "Any notion that he can change the result is sheer fantasy and has no basis in law or history."

As the Trump era comes to a close, many Americans will breathe a sigh of relief as the chaos, divisiveness and cloud of corruption that have characterized this presidency recede. In spite of Trump’s unprecedented attempts to undo democracy, by and large our institutions held. The courts did not overturn the election, the press has not been nationalized or silenced, and civil servants stood up to the president on issues from the infamous Ukraine telephone call to the approval timeline for Covid-19 vaccines...But a healthy democracy needs constant tending. It’s time to look at our entire democratic system and see where changes should be made. As I have argued before, reforming the primary system to re-insert some element of peer review into our nomination system would go a long way towards preventing people like Trump from getting a shot at the presidency in the first place...Another area of concern is the legal constraints or lack thereof on the presidency. Here one should turn to Bob Bauer and Jack Goldsmith’s invaluable book, After Trump: Reconstructing the Presidency. The book is a comprehensive agenda for those who would like some means of preventing or coping with Trump-like presidents in the future. Bauer is one of Washington’s most famous election lawyers. He represented the Democratic National Committee and the Biden campaign, and served as White House Counsel in the Obama Administration. Goldsmith is a professor at Harvard Law School who played key roles in the second Bush Administration and is considered one of the best conservative legal minds in the country. Together they provide a very sensible roadmap for reform.

Harvard President Larry Bacow, University Professor emeritus Laurence Tribe, and other Harvard faculty and students call for affirmation of American principles in the shadow of the attack on the Capitol on the afternoon of January 6, 2021.

Are Americans witnessing a coup? Before the storming of the U.S. Capitol on Jan. 6, the case was arguable, but not a slam dunk. After the Capitol was breached, the case became more clear cut, experts say. The questions stem from President Donald Trump’s reaction to losing the 2020 presidential election. Trump and his supporters have filed a string of lawsuits rejected by the courts, sought to strong-arm local officials into changing the results, and suggested incorrectly that Vice President Mike Pence could overturn the will of the electoral college as he presided over the counting of the ballots. Whether the U.S. was witnessing a coup seemed speculative until the violent overrun of the House and Senate on the day the Electoral College votes were supposed to be counted, officially certifying Biden’s victory...All this seems to fit the category of a "sudden and irregular (i.e., illegal or extra-legal) removal, or displacement, of the executive authority of an independent government." It was sudden, laws were broken, and official functions of the government were displaced. (For this to apply, one has to envision President-elect Joe Biden as the "executive authority," rather than Trump, the incumbent but lame duck president.) "Invading the national legislature through force sounds like a coup; peaceful protest is obviously not," said Michael Klarman, a Harvard Law School professor.

Harvard Law School Distinguished Fellow Vivek Wadhwa says he 'wouldn't be surprised' if President Trump's social media accounts will be suspended for a week at a time as 'more clamping down' is expected.

Noah Feldman is a guest on this episode of Axios Today, discussing what to watch for as members of Congress officially count the electoral votes for the presidential election.

An op-ed by Noah Feldman: Judge Merrick Garland is the right person at the right time to bePresident Joe Biden’s attorney general. If the AP and Politico are correct that he’s Biden’s pick, it isn’t just well-deserved vindication for a dedicated public servant who deserved to be confirmed to the Supreme Court when nominated by President Barack Obama. Garland’s years of experience in the Department of Justice, coupled with his distinguished service on the federal bench, position him to accomplish the historic mission now demanded of him: nothing less than restoring the legitimacy and credibility of federal law enforcement after the disastrous last four years of Donald Trump’s presidency. Garland is an insider’s insider when it comes to understanding how the Department of Justice works — and what its proper function should be. Since 1978, when he clerked for Justice William Brennan at the Supreme Court, he has spent his entire career within the gravitational field of the building known as “main Justice,” located at 950 Pennsylvania Avenue. He was a special assistant to President Jimmy Carter’s attorney general Benjamin Civiletti; a federal prosecutor in Washington, D.C.; a deputy assistant attorney general; and principal deputy associate attorney general. In between, he spent short stints at the venerable D.C. law firm Arnold and Porter. President Bill Clinton put him on the U.S. Court of Appeals for the DC Circuit in 1995. The court is just a few blocks away from main Justice, and it hears many, many cases involving the federal government.

Talk of removing a president is easy. But getting rid of one is hard ... HLS Professor Jack Goldsmith and David Priess of the Lawfare Institute review the basic law governing the questions about taking a president’s powers away.

An op-ed by Cass Sunstein: For President-elect Joe Biden, Santa Claus came a few weeks late, but he certainly delivered. Georgia’s Senate races appear likely to give Democrats control of both houses of Congress — a spectacular gift. I worked in the Barack Obama administration from 2009 to 2012, and I was able to see, close up, the staggering difference it makes when the Senate and the House of Representatives are controlled by the same party as the president. That was the case in 2009 and 2010, when Congress enacted not only the American Recovery and Reinvestment Act (the economic stimulus made necessary by the 2008 financial crisis), the Affordable Care Act, and the Dodd-Frank banking reforms — but also the Family Smoking Prevention and Control Act, the Credit Card Accountability Responsibility and Disclosure Act, and the Lily Ledbetter Fair Pay Act, which strengthened the available tools to combat employment discrimination in court. This was one of the most consequential periods of lawmaking in the nation’s entire history. Everything changed in 2011, when Republicans won a majority in the House. That meant that in 2011 and 2012, Congress wasn’t going to do much, especially if Obama favored it. For many issues, executive actions became the only game in town.

An op-ed by David Priess and Jack Goldsmith: The hours since Wednesday afternoon have seen a tidal wave of calls for Donald Trump to lose the powers and duties of the office for his role in the historic storming of the U.S. Capitol. There is a new push for impeachment. And news reports suggest that members of Trump’s Cabinet are considering invoking the 25th Amendment to take from Trump, in the words of the Amendment, “the powers and duties of the office” he holds. (We should note that this reporting is thinly sourced; Maggie Haberman of the New York Times reported last night that a source merely says “the 25th Amendment discussions are staff-based within the administration and with some Republicans on the Hill, and that they're not particularly focused.”) This comes on the heels of a very strange series of events from inside the executive branch, including a statement on Wednesday afternoon by the Secretary of Defense that after consulting with Vice President Pence and top congressional leaders—but seemingly not President Trump—he was “activating D.C. National Guard to assist federal and local law enforcement as they work to peacefully address the situation.” Shortly before 4 a.m. this morning, a reconvened Congress finally confirmedPresident-elect Biden’s presidential victory. And then President Trump issued this statement: “Even though I totally disagree with the outcome of the election, and the facts bear me out, nevertheless there will be an orderly transition on January 20th.” But it is far from clear that Trump will stick by, or do what it takes to carry out, this pledge.

After 17 years on parole in Massachusetts, Wayne Lane completed his parole in March of last year — at the start of the coronavirus pandemic. While on parole, Lane, 59, bought a house and began working to help others seeking release from prison on parole...Lane works with the group Families for Justice as Healing, which is among the more than 70 organizations that sent a letter to the Baker administration and legislative leaders Tuesday calling for reforms to the state's parole board to help prevent the spread of the coronavirus behind bars. The letter says while COVID-19 has affected 5% of the state's population, 21% of those incarcerated have tested positive. The signed groups recommend several steps state lawmakers could take, because, the letter says, the board will not act on its own... "The letter lays out policy proposals that should be low-hanging fruit: diversify and expand the parole board; eliminate technical revocations; track comprehensive data on race and ethnicity; above all release more people, release people on time, hold timely hearings, and issue timely decisions," said Katy Naples-Mitchell, with Harvard's Charles Hamilton Houston Institute for Race and Justice. "The proposed reforms are common-sense, evidence-based proposals, and the bare minimum the commonwealth must do to create a functioning parole system."

An op-ed by Bruce Schneier: The information that is emerging about Russia's extensive cyberintelligence operation against the United States and other countries should be increasingly alarming to the public. The magnitude of the hacking, now believed to have affected more than 250 federal agencies and businesses -- primarily through a malicious update of the SolarWinds network management software -- may have slipped under most people's radar during the holiday season, but its implications are stunning. According to a Washington Post report, this is a massive intelligence coup by Russia's Foreign Intelligence Service (SVR). And a massive security failure on the part of the United States is also to blame. Our insecure internet infrastructure has become a critical national security risk -- one that we need to take seriously and spend money to reduce. President-elect Joe Biden's initial response spoke of retaliation, but there really isn't much the United States can do beyond what it already does. Cyberespionage is business as usual among countries and governments, and the United States is aggressively offensive in this regard. We benefit from the lack of norms in this area and are unlikely to push back too hard because we don't want to limit our own offensive actions.

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.