Media Mentions

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."

The past 24 hours have been a microcosm of the past four years of President Trump’s time in office — with a sudden slew of self-serving and questionable pardons, a last-minute wrench thrown into a COVID relief bill on which many were relying, and a call for someone to challenge one of the top senators in the Republican party. David Gergen, who served as an adviser to Presidents Nixon, Ford, Reagan, and Clinton, and retired federal judge Nancy Gertner joined Jim Braude to discuss the legacy Trump leaves behind... “The optimist in me says that, in many ways, [Trump] has not forever changed the presidency, only because he is such a unique character,” said Gertner. “It’s not clear that someone can fill the job with his kind of blather, frankly, the way he has. But … [Trump] has shown us the weakness of the guardrails. I don’t think that anyone else could take advantage of them quite the same way he has, but we have to do something about those guardrails.”

For more than a decade, the attitude of the biggest social media companies toward policing misinformation on their platforms was best summed up by Mark Zuckerberg’s oft-repeated warning: “I just believe strongly that Facebook shouldn’t be the arbiter of truth of everything that people say online.” Even after the 2016 election, as Facebook, Twitter, and YouTube faced growing backlash for their role in the dissemination of conspiracy theories and lies, the companies remained reluctant to take action against it. Then came 2020. Under pressure from politicians, activists, and media, Facebook, Twitter, and YouTube all made policy changes and enforcement decisions this year that they had long resisted—from labeling false information from prominent accounts to attempting to thwart viral spread to taking down posts by the president of the United States. It’s hard to say how successful these changes were, or even how to define success. But the fact that they took the steps at all marks a dramatic shift. “I think we’ll look back on 2020 as the year when they finally accepted that they have some responsibility for the content on their platforms,” said Evelyn Douek, an affiliate at Harvard’s Berkman Klein Center for Internet and Society. “They could have gone farther, there’s a lot more that they could do, but we should celebrate that they’re at least in the ballgame now.”

The massive hack of government networks that came to light this month is “probably the most consequential cyber-espionage campaign in history,” an industry expert warns...The extensive security breach affected the federal Treasury, Commerce and Homeland Security departments, among others. The hackers — believed by many experts to be Russian — piggybacked on software updates pushed out by the company SolarWinds, although the nation’s top cybersecurity agency believes other access points may have also been used. “Here’s where the Russian [Foreign Intelligence Service] ruined Christmas: the only thing you can do, if you want to be secure, is basically burn your network to the ground and start all over again,” said Bruce Schneier, a security expert and fellow at Harvard University’s Berkman Klein Center for Internet and Society. “It is long, it is hard, it is painful, it is time-consuming; and even then you can’t be sure.”

On Monday, amid heightened security measures spurred by threats of violence, the electors of the Electoral College cast their votes to affirm that Joe Biden will become the forty-sixth President of the United States. That vote is a ritual typically of interest only to the electors and their friends and families, but this year the major wire services moved news bulletins as the states tallied their counts. It was one more case of how Donald Trump’s denialism about his electoral defeat, and his continuing attempts to retain power by conjuring a constitutional crisis, have brought Americans into anxious acquaintance with the anachronistic mechanisms of a democracy that they can no longer take for granted...If Democrats were to win control of both the House and the Senate, following next month’s runoff Senate elections in Georgia, “It would be super-wise to rewrite the E.C.A.,” Lawrence Lessig, a law professor at Harvard and a democratic-reform activist, told me. “We need to clear up what exceptional cases there are” that could ever allow state legislatures to intervene on the basis of a “failed election,” how such a determination would be made, and how judgments by legislatures would be subject to review by other political authorities and courts. There are other provisions of the E.C.A. that bear rewriting, too, Lessig said, such as a complicated tie-breaking procedure if disputed slates of electors are sent to Congress.

Donald Trump’s recent pardons of several key aides have ignited a crucial debate: Should President-elect Joe Biden’s Department of Justice investigate his predecessor’s apparent obstruction of a potentially damning inquiry into his entanglement with Vladimir Putin’s Russia? Opponents muster numerous arguments. A probe would sharpen our bitter divide. It would smack of reprisal. It would spotlight Trump’s grievances. It would be too complex and time-consuming. It would undermine Biden’s effort to advance a positive agenda that speaks to the future. Restoring our comity, they conclude, precludes launching the unprecedented prosecution of an ex-president...First, the pardons. As Harvard law professor Laurence Tribe points out, they “belong to a distinct and far more dangerous category” than mere political favoritism. Tribe elaborates: “If Mr. Trump has used his pardon power to commit crimes, he must be prosecuted; failing to do so would set a perilous precedent for future administrations. In future investigations of presidential misconduct, essential witnesses might routinely protect the boss in hopes of (or in exchange for) immunity. Worse yet, future presidents could treat their terms in office as four-year licenses to commit heinous crimes with impunity.”

President Trump doled out clemency to a new group of loyalists on Wednesday, wiping away convictions and sentences as he aggressively employed his power to override courts, juries and prosecutors to apply his own standard of justice for his allies. One recipient of a pardon was a family member, Charles Kushner, the father of his son-in-law, Jared Kushner. Two others who were pardoned declined to cooperate with prosecutors in connection with the special counsel’s Russia investigation: Paul Manafort, his 2016 campaign chairman, and Roger J. Stone Jr., his longtime informal adviser and friend...Of the 65 pardons and commutations that Mr. Trump had granted before Wednesday, 60 have gone to petitioners who had a personal tie to Mr. Trump or who helped his political aims, according to a tabulation by the Harvard Law School professor Jack Goldsmith. Although similar figures do not exist for previous presidents, legal experts say that those presidents granted a far lower percentage to those who could help them personally and politically.

Wednesday, Dec. 30, at 12pm EST, Jack Goldsmith, co-founder of Lawfare and Learned Hand Professor of Law at Harvard Law School, and Benjamin Wittes, co-founder and editor-in-chief of Lawfare, will join David Priess, Lawfare’s chief operating officer, to answer questions about the president’s recent slew of pardons and commutations.

The US government must do more to demand China release a Uighur man who was jailed for 15 years after participating in a state department exchange program, a coalition of Harvard University schools and student groups has said. Ekpar Asat, a young entrepreneur from Xinjiang, disappeared in 2016 after returning from the US where he had been on the exchange program and visited his sister Rayhan, a Harvard law student. He had promised to come back to the US in a few months with their parents to watch her become Harvard’s first ever Uighur graduate...This week more than 70 student organisations from six Harvard schools signed an open letter urging the US state department to take stronger actionin advocating for an alumnus of its prestigious International Visitors Leadership Program (IVLP). Sondra Anton ‘22, director of activism at Harvard Law School’s Advocates for Human Rights, and a key organiser of the campaign, said while there was some initial pushback, support “snowballed” and came from dozens of groups, including associations for students from multiple ethnic and religious backgrounds. “It started a lot of conversations internally,” said Anton. “Are we going to be on the right side of history? Are we going to use our unique platforms to not just promote ourselves and our careers, but also others?” Professor William Alford, Director of East Asian Legal Studies at Harvard Law, said he found Asat’s case “disturbing … I think it laudable that students express themselves on matters of conscience.”

A podcast by Noah Feldman: Michelle Mello, a professor of law at Stanford Law School and a professor of medicine at Stanford University School of Medicine, discusses the practical and ethical questions surrounding the distribution of the COVID-19 vaccines.

An op-ed by Cass Sunstein: Suppose we could adopt, soon or right now, a strategy that would substantially reduce greenhouse gas emissions while costing people very little, or possibly even nothing? Not only that, it would not require bans or mandates, new regulations or carbon taxes. Consumers would retain freedom of choice. The very idea sounds fanciful, even nuts. Yet a number of municipalities in California have adopted such an approach, and it’s in widespread use in Germany, where it is having a major impact. It’s called “green by default.” The basic concept is that consumers should be automatically enrolled in renewable energy, with the right to opt out if that’s what they want to do. If the approach were adopted all over the U.S., it could potentially play a larger role in reducing emissions than seemingly more aggressive steps, such as energy efficiency requirements for household appliances. In the municipalities in California, hundreds of thousands of people are now receiving 100% renewable energy, and that means dramatic cuts in greenhouse gas emissions. All over Germany, automatic enrollment in renewable energy is also working, in the sense that most people are staying with cleaner energy sources.

An op-ed by Amre Metwally ‘22: When Facebook, Twitter, and YouTube discuss the fraught work of content moderation, they often come back to one word: context. “For our reviewers, there is another hurdle: understanding context,” Monika Bickert, Facebook’s head of global policy management, once wrote in an op-ed. That context can include, say, whether a user has uploaded an alarming video to glorify violence or to criticize it. Lack of context can be the difference between whether a post follows or violates the rules—and it can frustrate content moderators and company employees already under pressure to make the “right” enforcement decision. Missing context, however, is not only an issue when it comes to evaluating users’ posts. The companies themselves often fail to provide necessary context to the broader public about how they approach content moderation. Users who feel their tweets, posts, or videos were erroneously removed don’t get adequate explanations from the platforms about how, exactly, they violated these rules. It can be even more consequential when the documentation of human rights abuses is at stake. Context is, indeed, everything.

The legal principle that corporate boards must focus exclusively on maximizing value for shareholders wasn’t always taken for granted. It was enshrined in a 1919 court decision involving Henry Ford and two of his car company’s shareholders, the Dodge brothers. As chairman and majority owner of Ford Motor Co., he had repeatedly raised his workers’ pay, cut the price of the Model T, and reinvested profits in expansion. If Ford were around today his stance might be applauded by the environmental, social, and governance (ESG) movement on Wall Street...For a century there’s been a struggle between advocates of shareholder primacy and those who say corporations should take into account other priorities, particularly environmental, social, and governance issues. As ESG has gained prominence it’s generated a quiet backlash...But the power of big holders and the proxy advisory firms that help them decide how to vote their shares rubs some people the wrong way. “A small number of unelected agents, operating largely behind closed doors, are increasingly important to the lives of millions who barely know of the existence much less the identity or inclinations of those agents,” Harvard Law School professor John Coates wrote in a 2018 paper.