Media Mentions

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

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

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

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

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

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

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

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

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

A pair of U.S. Senate wins by Democrats in Georgia means that current Majority Leader Mitch McConnell will no longer have the ability to unilaterally prevent the Federal Energy Regulatory Commission from having a Democrat majority this year. The development means that the federal agency could play a more expansive role in advancing President-elect Joe Biden's energy and climate policy agenda during his first term, especially given that the Democrats' slim control of the U.S. House of Representatives and Senate may thwart the passage of more progressive legislation. The agency currently has a 3-2 Republican majority, but one of the Republican seats will expire in June...While FERC controls its own agenda, it also has to respond to filings made by regulated parties like utilities and other key players such as environmental organizations, said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. "So it could be that whatever agenda FERC might have in mind could be, in part, overtaken by whatever is put before it," Peskoe said in an interview. Peskoe noted that this occurred early in the Trump administration when the Energy Department in September 2017 pursued a proposal to prop up ailing coal- and nuclear-fired generators with subsidies, an effort that ultimately failed. "I'd be surprised if the Biden DOE did something like that, but it just illustrates the fact that things can be out of the control of commissioners sometimes," Peskoe said. Parallel examples in a Biden administration could include a carbon pricing proposal from the New York ISO or a complaint filed by clean energy advocates concerning wholesale capacity market rules, Peskoe said.

As a shocked nation reacted to the storming of the United States Capitol on Wednesday by a pro-Trump mob trying to disrupt the certification of the presidential election, one word describing the chaos quickly rose to the top. “It borders on sedition,” President-elect Joseph R. Biden Jr. said in his remarks to the nation. “This is sedition,” the National Association of Manufacturers said in a statement that accused President Trump of having “incited violence in an attempt to retain power.” ... The Alien and Sedition Acts, passed by the Adams administration in 1798, were intended to clamp down on the political enemies of the Federalists, Adams’s party, and weaken Thomas Jefferson’s Democratic-Republicans. The broader backdrop was a brewing conflict with post-Revolutionary France, and Federalists’ belief that Democratic-Republican criticism of their policies undermined national stability, and their fear that foreigners and immigrants, who leaned Democratic-Republican, would support France in a war. Under the law, journalists who criticized the administration were thrown in jail, immigrant voting rights were tightened and foreigners deemed “dangerous to the peace and safety of the United States” could be deported. “That took place in the context of an infant republic that was unsure of its place in the world,” Annette Gordon-Reed, a professor of history and law at Harvard, said. “This was all new: How do you protest? What effect does protesting have on government?” But “we’ve had almost 250 years now,” she continued. “We know the mechanisms for legitimate criticism, and they do not involve sabotaging the operations of government when those operations have been arrived at by lawful means.”

The insurrection caused by pro-Trump extremists at the Capitol on Wednesday has raised a litany of legal and constitutional questions. Democratic Rep. Ilhan Omar of Minnesota announced she was drafting articles of impeachment against President Trump. Omar blamed the president for Wednesday’s chaos, which stalled Congress' certification of the Electoral College vote. Another term that arose in the aftermath of the insurrection was sedition, a technical term defined as conspiring to overthrow the U.S. government, hinder the execution of laws or steal U.S. property, all by using force, says Noah Feldman, professor of law at Harvard University. Feldman says parts of the definition can be twisted to fit what unfolded on Wednesday, but a protester who enters a federal building or breaks a barrier will likely not be charged with sedition, a law that’s “rarely implemented.” For someone from the Capitol mob to be charged with sedition, their intent to overthrow the U.S. government has to be obvious, he says. Feldman says the mob, by the looks of it, was trying to interfere with government operations, which isn’t the same as an attempt to overthrow. “There is a law of the United States that says how we should count the ballots, and the protesters were trying to interfere with that,” he says. “So in that sense, they were opposing the authority of the United States. And the question then is, were they doing that by force?”

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

An op-ed by 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.