Media Mentions

When Donald Trump won the presidential election in 2016 even though 2.8 million more people voted for Hillary Clinton, everyone from Bill De Blasio, to Michael Moore, to Eric Holder and Bill Maher said that at long last we should abolish the electoral college. Then-California Senator Barbara Boxer introduced a bill to amend the U.S. constitution to do just that. A Gallup poll from September of this year showed that 61 percent of Americans support abolishing the electoral college in favor of a national popular vote, although it's an issue that breaks along partisan lines. 77 percent of Republicans want to keep the electoral college, while 89 percent of Democrats said that we should get rid of it. Is the electoral college the best system for electing a president? That was the subject of an online Soho Forum debate held on Wednesday, November 11, 2020. Richard Epstein, a law professor at New York University, defended the system against Lawrence Lessig, a law professor at Harvard. Soho Forum director Gene Epstein moderated. Lessig won the Oxford-Style debate by gaining 14.29 percent of the audience's support. Epstein lost 2.04 percent of his pre-debate votes.

The resurgence of COVID-19 in Massachusetts could prompt Gov. Charlie Baker to again impose aggressive restrictions on businesses using a decades-old statute, but legal experts say courts are likely to give him broad deference in combating the public health crisis. Baker was one of many governors to impose sweeping business closures and other measures in the spring when the virus first surged in the Bay State. Despite the governor's broad popularity, a number of the emergency orders enacted under the Civil Defense Act have drawn legal challenges. While Baker's record in these suits has not been perfect, experts told Law360 the courts are likely to defer to his authority should he decide to snap restrictions back into place. "While there are limits, the emergency powers mirror the nature of the emergency," said Nancy Gertner, a former federal judge and current Harvard Law School professor, adding that a crisis like COVID-19 would be reviewed by looking at the rational basis of the measures imposed. It's a standard she said the governor is likely to meet. "This is not like mandating motorcycle helmets, which is a public health issue but affects everyone else around the motorcyclist only tangentially in terms of insurance rates and visits to emergency rooms," Gertner said. "This is a direct link where what you do affects me."

For more than a week, a plain-spoken former federal prosecutor named Sidney Powell made the rounds on right-wing talk radio and cable news, facing little pushback as she laid out a conspiracy theory that Venezuela, Cuba and other “communist” interests had used a secret algorithm to hack into voting machines and steal millions of votes from President Trump. She spoke mostly uninterrupted for nearly 20 minutes on Monday on the “Rush Limbaugh Show,” the No. 1 program on talk radio. Hosts like Mark Levin, who has the fourth-largest talk radio audience, and Lou Dobbs of Fox Business praised her patriotism and courage. So it came as most unwelcome news to the president’s defenders when Tucker Carlson, host of an 8 p.m. Fox News show and a confidant of Mr. Trump, dissected Ms. Powell’s claims as unreliable and unproven...A question for conservative media that are more independent of Mr. Trump is how much of the market the unabashedly pro-Trump media dominates in the future. Some scholars said they expected that audience to be substantial. “Drudge and Fox can try to pull back from the abyss,” said Yochai Benkler, a professor at Harvard Law School who studies conservative media. “But the audience is going to get what it wants and reward those who give it to them.”

From the beginning of his presidency, Donald Trump wasted no time establishing a deregulatory agenda as one of the top priorities for his administration. Just 10 days after taking office, he signed an executive order requiring that two federal regulations be rescinded for every new regulation implemented. “The American dream is back,” he said in a statement from the Roosevelt Room.  In the years that followed, it became clear who was to benefit, and who was to lose, from Trump’s American dream.  His administration has rescinded, rewritten, or replaced over 100 environmental protections, rules, and regulations that reduce toxic pollution and industrial waste, protect endangered species, and draw down the greenhouse gas emissions that are accelerating a global climate crisis... “What happened under the Trump administration exposed all of the ways that interpretations of these statutes could be pushed to extremes. The Biden administration can learn from that,” Caitlin McCoy, a staff attorney at the Environmental and Energy Law Program at Harvard University, told Sierra. “It’s not just about putting things back together or returning to the status quo. We need to strengthen regulations, because the climate crisis has accelerated dramatically over the last four years, and we have failed to take action on a federal level. This is an incredible opportunity to think creatively about how we can insulate these rules and regulations from future changes.”

It’s a pressing question not just for higher-education experts and legal wonks. Tens of millions of Americans have a lot riding on the answer: Can the president forgive student debt without Congress? If the president was able to cancel student debt without passing legislation, in theory borrowers could see their balances reduced or eliminated overnight. On the other hand, the chances of Congress agreeing to forgive the loans is, at best, uncertain. Generally, Republicans are not in favor of debt forgiveness. For now, it’s also an open question if President-elect Joe 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 as far...CNBC asked Toby Merrill, founder and director of the Project on Predatory Student Lending at Harvard Law School, how she’d explain to a 15-year-old why she believes it’s within the president’s power to do so. “The Constitution gave Congress the authority to control property of the government, like debts owed to it,” she wrote. And Congress, Merrill said, granted the Secretary of Education, who works for the president, “the specific and unrestricted authority to create and to cancel or modify debt owed under federal student loan programs.”

Bloomberg Chief Washington Correspondent Kevin Cirilli delivers insight and analysis on the latest headlines from the White House and Capitol Hill, including conversations with influential lawmakers and key figures in politics and policy. Bloomberg's June Grasso served as guest host. She was joined by Lawrence Lessig, Professor of Law and Leadership at Harvard Law School and founder of Equal Citizens, Jennifer Rie, Bloomberg Intelligence Senior Antitrust Litigation Analyst, John Sitilides, Geopolitical strategist at Trilogy Advisors and diplomacy consultant to the State Dept, and Kevin Walling, Democratic Strategist at HG Creative media.

Both Republicans and Democrats have voiced concerns over the past few decades about the expansion of presidential powers — some of it ceded by Congress looking for political cover, much of it a result of White House legal interpretations of constitutional gray areas. The balance of power now tilts in favor of the Oval Office, but since President Richard Nixon leaders have held themselves largely in check, respecting long-established informal rules and norms. Then came President Trump...In a new book, “After Trump: Reconstructing the Presidency,” attorneys Bob Bauer ’73 and Jack L. Goldsmith, veterans of Democratic and Republican White Houses, respectively, propose what they say are long-overdue reforms to the Office of the President that can rein in future presidents who try to exploit the position for their political or personal benefit. Goldsmith, Learned Hand Professor of Law at Harvard Law School, served as assistant attorney general in the Office of Legal Counsel during the George W. Bush administration. He writes frequently about national security, government, and politics, and is a founding editor of Lawfare. Bauer, a longtime legal adviser to President Barack Obama who is now advising the Biden campaign, is widely regarded as a leading authority on executive branch powers. He served as White House counsel from 2008 to 2011 and is now a professor of the practice and distinguished scholar in residence at NYU Law.

The Trump administration rolled back over 125 environmental rules during their tenure. These policies protected wildlife and water, and regulated chemicals and greenhouse gases. This hour, we’ll discuss Trump’s environmental and climate legacy. We’ll also look at President-elect Biden’s climate plans and discuss what actions he can take (with or without a democratic Senate) to protect the environment, address our energy needs, and tackle global warming. Joining us are Michael Mann, professor and director of Penn State’s Earth System Science Center, and Jody Freeman, director of the Environmental and Energy Law Program at Harvard University.

President Donald Trump is trying to steal a free and fair election that he lost by a wide margin to President-elect Joe Biden by tearing at the most basic principle of American democracy: He's trying to throw out hundreds of thousands of votes. Trump's latest escalation of his attempt to subvert the result of the election followed a string of knock-backs in the courts and after a statewide audit in Georgia confirmed Biden's victory in the crucial swing state. He asked state Republican leaders in Michigan to visit him Friday, hinting at a possible attempt to convince them to ignore Biden's big win in the state and send a slate of electors to the Electoral College that backs him and not the President-elect... Laurence Tribe, a constitutional law professor at Harvard Law School, said Michigan lawmakers visiting the White House on Friday could be walking into an illegal meeting. "I am worried that any lawmakers who attend this ridiculous meet and greet are really attending a conspiratorial meeting to steal the election," Tribe told CNN's Erin Burnett. "There's no question that the meeting that is being held is illegal. There is no question that it really is designed quite corruptly to take away people's right to vote." Tribe says the Trump campaign has lost more than two dozen lawsuits. "It's quite clear that Republican, as well as Democratic judges, are going to follow the law when there is no ambiguity," Tribe said. "The only guy who seems to be uninterested in the law is Rudy Giuliani, and God knows what he is auditioning for."

An op-ed by Lawrence Lessig: The conservative radio talk show host Mark Levin has tweeted an all caps call for state legislatures to “get ready to do your constitutional duty.” Levin believes they have “the final say” on which slate of presidential electors gets to vote in the Electoral College. Under this theory, even if more people in a state voted for Democrat Joe Biden, their legislature would still have the power to pick a slate of Donald Trump electors. In other words, the Republican legislatures in Arizona, Georgia, Michigan, Pennsylvania and Wisconsin could all now select a slate of electors for Trump. Needless to say, Levin’s theory has been embraced by many who continue to believe it can give Trump a second term. Levin is wrong about the power of state legislatures. But he’s not making his theory up out of whole cloth. There’s a kernel of truth to Levin’s theory. And it’s important to understand why that truth does not mean that legislatures have the power to do something that no legislature has ever done  —  to veto the results of a popular election and pick a slate of electors for the loser in that popular election. Levin grounds his claim on the part of the Constitution that gives legislatures the power to select the “manner” by which presidential electors are appointed. In Bush v. Gore, the Supreme Court interpreted that power to mean that the legislature could vest the selection of electors in the people — through a popular election — but that it could “take back” that power “at any time.” On Levin’s reading, “at any time” includes after an election. So that after an election, the legislature could say, “Thanks for your input, but we’re going a different way.”

Two Republican canvassers in Michigan’s largest county are attempting to rescind their votes certifying that Joe Biden won there after President Donald Trump personally called them, The Associated Press reported. Monica Palmer and William Hartmann, who represent half of the four-member Wayne County canvassing board, initially refused to certify the election results on Tuesday ― an unprecedented move ― despite no evidence of widespread voter fraud. They quickly backtracked, voting later that day to certify the results. Trump reportedly reached out to Palmer and Hartmann later that night after the board certified the results. Now, the two GOP canvassers say they want to rescind their votes. The president’s decision to call them and the canvassers efforts to walk back their votes drew swift backlash from some election and law experts, who raised questions regarding the legality and ethics of it all...Deepak Gupta, a lawyer and Harvard Law School lecturer, called Trump’s actions “truly shocking.” ... Biden won nearly 70% of the votes in Wayne County, a Democratic stronghold that includes Detroit. But Trump and his allies have falsely declared victory in the state. Trump has baselessly claimed there was widespread voter fraud in Detroit, alleging Wednesday that there were “FAR MORE VOTES THAN PEOPLE” in the city. (That’s false: More than 670,000 people live in Detroit. The city said a little more than 250,000 ballots were cast there.) Palmer and Hartmann have said they decided to vote in favor of certification after facing backlash and accusations of being racist over their initial opposition.

An op-ed by Jeannie Suk Gersen: In the opening of her memoir, “The Truths We Hold,” from 2019, Vice-President-elect Kamala Harris writes that, as a law student, she found her “calling” while interning at the Alameda County District Attorney’s Office, in Oakland, California, in 1988. Harris then spent nearly three decades in law enforcement, referring to herself as “top cop,” rising from local prosecutor to district attorney of San Francisco and then attorney general of California—the first woman and the first Black person in these jobs—until she joined the U.S. Senate, in 2017. When I was in law school, twenty years ago, prosecution was a form of public service that was thought to carry little controversial baggage. Marked as neither liberal nor conservative, it was also an all-purpose route for young people who aspired to political or judicial positions. In recent decades, former prosecutors have been ubiquitous in public life. President Bill Clinton and multiple Presidential nominees and candidates—John Kerry and Chris Christie, for example—were once prosecutors. So were New York Governor Andrew Cuomo, Michigan Governor Gretchen Whitmer, and several dozen members of Congress, including Senators Amy Klobuchar, Kirsten Gillibrand, Richard Blumenthal, Doug Jones, and Josh Hawley. Countless federal judges have been prosecutors, among them Justices Sonia Sotomayor and Samuel Alito, and also President Barack Obama’s last Supreme Court nominee, Merrick Garland, whose prosecution of Timothy McVeigh, for the Oklahoma City bombing, in 1995, was soon followed by President Clinton’s nomination of Garland to the D.C. Circuit Court of Appeals.

An op-ed by Samantha Power: Ever since then U.S. Secretary of State Madeleine Albright memorably called the United States “indispensable” more than two decades ago, both Americans and publics abroad have vigorously debated the proposition. Today, as President Donald Trump’s term comes to a close, foreign observers of the United States are more prone to use a different word: “incompetent.” The Trump administration’s response to the most urgent problem in the world today—the coronavirus pandemic—has been worse than that of any other nation. This, in turn, has understandably tarnished perceptions of the United States: according to recent Pew Research Center polling conducted in 13 major economic powers, a median of 84 percent of respondents agreed that the United States has done a poor job of handling COVID-19—by far the most damning appraisal received by any major country or institution. Yet the mishandling of the pandemic is just the latest in a string of lapses in basic competence that have called into question U.S. capabilities among both long-standing allies and countries whose partnership Washington may seek in the years to come. A brand once synonymous with the world-changing creations of Steve Jobs, with feats of strength and ingenuity such as the Berlin airlift and the moon landing, and with the opportunity represented by the Statue of Liberty now projects chaos, polarization, and dysfunction.

Installing partisan loyalists into top defense and National Security Agency posts in a president’s final weeks in office is “completely unprecedented,” said Jack L. Goldsmith, Learned Hand Professor of Law at Harvard Law School and co-author of “After Trump: Reconstructing the Presidency,” a new book about executive branch reforms.

An op-ed by Jack Goldsmith: Long before Donald Trump became president it was widely believed that he would spark a “constitutional crisis” if elected. And during his term in office there were panicked claims that he was just on the verge of destroying the American constitutional order: when Mr Trump threatened to defy judicial orders related to the Muslim ban, and to fire or stop Special Counsel Robert Mueller; and when he made absolutist executive-power claims in defying congressional subpoenas for his tax returns and urged prosecution of his political enemies. In these and many other contexts, Mr Trump’s verbal assaults and threats, incessant norm-defiance and claims of absolute power provoked four years of vertiginous panic. Mr Trump was so discombobulating that relatively few noticed that these and many other worst-case scenarios never played out. Mr Trump has left enormous damage in his wake—to the psyche of many Americans, to many institutions of American democracy and to beaten-down citizens’ confidence in these institutions. There is much repair work to be done. Yet the most remarkable fact about his presidency is how well the American constitutional system stood up to and survived it. This was true, most importantly, in the recent presidential election. Hundreds of stories and reports warned about foreign hacking, domestic and foreign disinformation, violence, insecure voting machines, voter suppression and pandemic-related problems. Yet more Americans than ever (approximately 150m) voted for president. And the election “was the most secure in American history,” according to federal election infrastructure experts.

Every corporation is unique. It follows that governance arrangements should be tailored to suit. Yet many shareholders, especially indexers, roundly condemn certain governance practices as if one size fits all. Three corporate practices illustrate this: combining the roles of chairman and chief executive; staggered director terms, and classes of stock with different voting rights. Each is derided for valid abstract reasons, but all persist because they can be suitable at particular companies...Why might indexers and other critics universally condemn corporate practices that quality shareholders accept and that may enhance a company’s performance? Different business models may explain: indexers address the market as a whole while quality shareholders focus on specific companies. Indexers prescribe policies expected to benefit the overall market, on average, not particular businesses. The size and reach of indexers — commanding around one-third of public equity — give them outsized influence, and a wide critical following. But they have small stewardship staffs and minuscule budgets to address particular companies, according to research led by Harvard Law School’s Lucian Bebchuk — no more than 45 people covering  well more than 3,000 U.S. companies.

If you’ve been on Twitter lately you may have heard that there’s a possibility that President-elect Joe Biden would cancel some student debt — and you likely saw a lot of back and forth about the idea. Following a speech on the economy Monday, Biden told reporters that student-debt cancellation “does figure in my plan,” after being asked about it. Indeed, on the campaign trail, Biden proposed cancelling $10,000 in student debt as a coronavirus relief measure. Still, he stopped short Monday of saying he would cancel the debt without the help of Congress...Democratic Senators Chuck Schumer and Elizabeth Warren have said that cancelling up to $50,000 in student debt is something Biden can and should do immediately. Their urging is based in part on a legal memo written by lawyers at Harvard Law School’s Project on Predatory Student Lending, which notes: “The Higher Education Act gives the Secretary of Education the authority to cancel student-loan debt,” said Toby Merrill, the director of the Project and one of the memo’s authors. But even among those who support broad-based student-debt cancellation, there is some concern about doing it through executive action.

Thousands of traumatized veterans kicked out of the Army achieved a legal victory Wednesday after the Army agreed to review punitive discharges linked to mental health and sexual assault trauma, potentially unlocking care for those struggling in their post-military lives. In a lawsuit filed against Army Secretary Ryan McCarthy, a class of veterans argued that the Army should overhaul its process of reviewing discharge upgrade requests and review past denials under more generous guidelines. The Army agreed to a settlement that would achieve that, the Veterans Legal Services Clinic at Yale Law School said, with an approval pending by a federal judge...A study released in March found that the Department of Veterans Affairs has improperly turned away many thousands of veterans who may have qualified for medical care at their facilities. Bad paper discharges make it less likely that veterans can receive VA care, but the agency is required to look for mitigating circumstances, such as behavioral issues tied to trauma, when it decides to accept those veterans. Some veterans have gone decades without trying to receive care at VA, the Veterans Law and Disability Benefits Clinic at Harvard Law School concluded, after misconceptions about qualification and extenuating circumstances brewed within the agency itself.

President Trump fired the nation’s top election security official, Chris Krebs, Tuesday over his agency's recent statement that called the 2020 election "the most secure in American history" — a statement that undermined Trump’s political attempts to falsely spin his election loss into a story about election fraud. To discuss this and other attempts by the Trump administration to undermine the legitimate results of the election, Jim Braude was joined by Harvard Law Professor Emeritus Laurence Tribe.

Climate activists have set a high bar for President-elect Joe Biden's staff picks, asking that he exclude anyone with ties to fossil fuel industries. They've already been disappointed. Biden faced backlash this week after naming Louisiana Rep. Cedric Richmond to lead the Office of Public Engagement. Varshini Prakash, executive director of the Sunrise Movement, said it "feels like a betrayal" because Richmond "has taken more donations from the fossil fuel industry during his Congressional career than nearly any other Democrat." The oil and gas industry has been among Richmond's top campaign contributors over his career in Congress, according to Center for Responsive Politics...Among the names on the Biden transition's agency review teams a few have limited ties to fossil fuel, but more are from environmental groups. "When I look at that list I think the clear message is the Biden team wants good people in place, right from the start, who have experience in these agencies and are not wasting any time," says Jody Freeman, director of the Environmental and Energy Law Program at Harvard Law School. She was a former counselor on energy and climate change in the Obama White House. Freeman is a good example of those who could be excluded if a Biden administration rejected people connected to fossil fuel companies. She sits on the board of oil company Conoco-Phillips, but she also led Obama's effort to double car fuel-efficiency standards. Freeman is also an expert on using presidential powers to address climate change, knowledge that likely will be necessary if both parties can't agree on new climate legislation when Biden is sworn in next year.

An op-ed by Noah Feldman: This week’s Michigan election theft scare lasted just about three hours — unless you were checking your screen in real time, it may have passed you by. Yet, brief as the episode was, when historians look back on this strange interregnum in which President Donald Trump has not acknowledged President-elect Joe Biden’s victory, they could do worse than to dig deep into the sorry affair. It carries important lessons about how delicate our system of electoral transitions is, and also about the social forces that preserve the system despite its sometimes precarious-seeming character. The historians will have to start with the weird institution at the heart of the events: the Wayne County Board of Canvassers. On Tuesday, two Republican election officials announced they would not agree to certify the county’s results before reversing themselves after a national outcry. The board has four members, two Democrats and two Republicans. They are technically appointed by the County Board of Commissioners to serve four-year terms. But in effect, they are political patronage appointees chosen by the state political parties. The two-and-two structure is a matter of courtesy. Wayne County, which includes Detroit, is overwhelmingly Democratic. All 83 boards of canvassers in Michigan have the same two-and-two structure. The board’s most important job is to certify the county’s election results. Ordinarily, this is a simple matter; so simple, in fact, that it wouldn’t be unfair to refer to the members of the canvassing board as functionaries. They are part of the vast apparatus of overwhelmingly reliable and conscientious election officials all across the U.S. — the same officials who presided over a remarkably clean electoral process in 2020.