Media Mentions

Fears are rising that a looming eviction epidemic will devastate millions as the COVID-19 pandemic continues to ravage the nation, while President Donald Trump's recent executive orders will do little to protect those at risk of losing their homes. Up to 40 million people in the United States could be at risk of eviction in the next few months, a new study by The Aspen Institute called The COVID-19 Eviction Crisis has warned. The risk is highest in California, where more than 4 million people face losing their homes, followed by New York, Texas, Florida, Ohio and Illinois...On Saturday, Trump announced he was providing economic relief to millions of Americans through four executive orders, including one that he claimed was "protecting people from eviction." ...But the executive action taken on housing isn't as helpful as Trump made it seem. The text of the executive order does not actually ban evictions, but calls for Health and Human Services Secretary Alex Azar and Robert Redfield, the director of the Centers for Disease Control and Prevention to "consider" if temporarily halting evictions is "reasonably necessary to prevent the further spread of COVID-19." ...Sam Gilman '22, co-founder of The COVID-19 Eviction Defense Project who also co-authored the study, told Newsweek that the president's executive orders "create confusion" and "neither ban evictions nor provide rent relief." "Over the weekend, our team of lawyers has had numerous conversations, explaining to renters that the president's executive orders do not provide additional protections," Gilman said. Gilman warned without help, the country is facing "Great Depression level suffering." "We need Congress to create a sustainable rent relief program that gets cash in people's hands, so they can pay their rents, and we need eviction moratoriums at the federal and state levels to keep people in their homes while this program gets up and running," he said.

Albert P. died alone in a nursing home from COVID-19. because of new safety regulations, his daughter, Gita, was not allowed to visit. In the days before his death, she told me, the nursing home staffers “spoke to my mom at length about how great my dad was doing…. [They] said, ‘He’s eating. He’s drinking water. He’s smiling. He’s doing really well.’” Gita wasn’t so sure. She said there were previous issues with her father’s care: hours spent sitting in soiled bedsheets, medication mismanagement, and missed meals...The rapid spread of infection in nursing homes isn’t new. Before the pandemic, 82 percent of nursing homes had citations for failure to adequately prevent or control the spread of infection; about half had multiple citations. Opportunistic infections by pathogens like Clostridium difficile thrive in nursing homes, and those usually caused by neglect, like sepsis and urinary tract infections, are prevalent. COVID-19 just spreads more easily and does its deadly work faster. In New York magazine, music and architecture critic Justin Davidson recently imagined what it would take to build better nursing homes in the wake of COVID-19. Perhaps if we had smaller facilities or installed wet bars, people would like them better. He emphasized the need for more funding. But the problem with nursing homes is not that they need wood floors instead of vinyl or that food is served on plastic trays. The problem is that they are total institutions: secluded facilities where staffs tightly control the lives of vulnerable people...Nursing homes allow for an economy of scale. Feeding, washing, and otherwise seeing to the needs of elderly and disabled residents all at once is more efficient than addressing those needs on an individual basis. But this efficiency comes at the expense of human dignity. Ari Ne’eman, a senior research associate at the Harvard Law School Project on Disability, points out, “From Grandpa Simpson to Junior Soprano, popular culture constantly acknowledges our society’s worst-kept secret: Nursing homes are awful places to live. Unfortunately, we’ve set up our health care and human services systems to send vast numbers of seniors and people with disabilities there anyway.”

Last month, the Trump administration announced a reversal of a Department of Health and Human Services (HHS) administrative rule, erasing protections for transgender patients against discrimination by doctors, hospitals, and health insurance companies. Adding insult to injury, the announcement was made during Pride Month and on the fourth anniversary of the Pulse nightclub shooting, which left 49 victims–including many LGBTQ individuals–dead...First proposed in May 2019, Trump’s new law will return to the “government’s interpretation of sex discrimination according to the plain meaning of the word ‘sex’ as male or female and as determined by biology,” according to the HHS press release. Health care providers can now turn away anyone they perceive as trans or gay. Hospitals will now be permitted to refuse to respect someone’s gender identity in making room assignments. Insurance companies can now enforce bans on hormone replacement therapy, gender-affirming surgery, and all transition-related medical care...As soon as the law was released, the Human Rights Campaign announced intentions to sue the Trump administration. Even within an hour, LGBT activist group Lambda Legal said it will absolutely challenge this law in court. Other organizations like the Harvard Center for Health Law, the National Women’s Law Center, and the Transgender Legal Defense and Education Fund are teaming up to fight against the ruling. House Democrats have vehemently expressed their opposition, and according to the Congressional Review Act, it is possible to overturn the ruling as long as it falls within the 60-day legislative deadline. What is absolutely certain? This ruling will not go down without a fight.

Bypassing Congress on Saturday, President Trump issued a set of executive orders and memoranda to deliver emergency pandemic aid. The actions are ambiguous and raise a lot of questions. We break down what they mean for Massachusetts with Marie-Frances Rivera, President at the Massachusetts Budget and Policy Center. We also hear from Michael Capuano, former Massachusetts Congressman and now the public affairs director for Foley and Lardner, and from WBUR legal analyst Nancy Gertner. She's a retired federal judge and a senior lecturer at Harvard Law School.

President Trump may not be able to postpone the U.S. election, but Bolivia's unelected interim government has done it twice, sending supporters of ousted President Evo Morales into the streets. NPR's Philip Reeves speaks with Thomas Becker of Harvard Law School's International Human Rights Clinic.

A court-ordered environmental analysis of the Dakota Access pipeline may suffer from fatal flaws if it is conducted under the Trump administration's new National Environmental Policy Act regulations, some legal experts say. The U.S. Court of Appeals for the District of Columbia Circuit last week upheld a lower bench's requirement for the Army Corps of Engineers to conduct an environmental impact statement (EIS) to support the agency's permit for the 1,172-mile crude oil pipeline to cross beneath Lake Oahe, which straddles the Dakotas. President Trump's NEPA overhaul is directly at odds with a July 6 ruling by U.S. District Court for the District of Columbia Judge James Boasberg, who cited D.C. Circuit precedent discussing federal agencies' duty to consider indirect environmental effects of pipeline operations when preparing an EIS, said Caitlin McCoy, a staff attorney at the Environmental & Energy Law Program at Harvard Law School. "That's kind of interesting because we have the new regulations, where they don't bar consideration of indirect effects, but they discourage consideration of indirect effects," McCoy said. "But you have the judge basically saying to the agency, 'I want to see consideration of indirect effects.'" She said she will be watching to see whether the D.C. Circuit reaches a similar conclusion as it weighs whether Boasberg, an Obama appointee, correctly required an EIS...An additional change to watch will be how the Army Corps treats "reasonable alternatives" in its analysis of the Dakota Access pipeline. The new NEPA regulations set parameters for considering alternatives that are "technically and economically feasible" and "meet the purpose and need of the proposed action." Alternatives must also "meet the goals of the applicant" — in this case, Dakota Access developer Energy Transfer Partners LP. "I can just see a million ways to shoot down any possible alternative you come up with using these three new criteria," said McCoy. "Especially because it's such an odd situation where the pipeline is already built and in operation."

Though it ticks off detailed examples of wrongdoing, the New York lawsuit claiming donors to the National Rifle Association have been ripped off for years is likely to be settled without the gun-rights group being forced to dissolve, legal experts said. In a sweeping 164-page complaint on Thursday, New York Attorney General Letitia James said the NRA must be disbanded because of the “breadth and depth” of the frauds carried out by four current and former officials accused of squandering the non-profit’s cash on corrupt personal expenses. But that drastic measure is just a starting point that could serve to push the NRA to make major personnel concessions and pay steep fines to avoid the risk of going to trial or being forced to shutter the organization...The suit filed against the NRA in Manhattan alleges the New York-chartered group was duped out of more than $60 million in the last three years alone as a result of financial sleights of hand by four current and former officials, including the NRA’s embattled longtime leader and public face Wayne LaPierre. James is seeking an injunction that would bar the four men from ever serving as fiduciaries of nonprofits. She said they got inflated salaries, used NRA assets for extravagant spending and arranged no-show contracts for insiders -- claims the NRA vehemently denies...James Tierney, a lecturer at Harvard Law School who has taught courses on the role of state attorneys general, said the NRA’s suit is “foolish” and that the New York case is an “appropriate” response to the NRA’s refusal to cooperate. “This case has been developed by highly sophisticated people who’ve been in the business of charities regulation since long before Tish James,” said Tierney, who served as attorney general of Maine for a decade until 1990. “These people have gone through thousands of pages of documents and they’re accountants -- they’ve tracked all the numbers over the years.”

An article by Lucian Bebchuk and Roberto Tallarita: By putting American workers through months of turmoil, the Covid-19 crisis has heightened expectations that large companies will serve the interests of all “stakeholders,” not only shareholders. The Business Roundtable raised such expectations last summer by issuing a statement on corporate purpose, in which the CEOs of more than 180 major companies committed to “deliver value to all stakeholders.” Although the Roundtable described the statement as a radical departure from shareholder primacy, observers have been debating whether it signaled a significant shift in how business operates or was a mere public-relations move. We have set out to obtain evidence to resolve this question. To probe what corporate leaders have in mind, we sought to examine whether they treated joining the Business Roundtable statement as an important corporate decision. Major decisions are typically made by boards of directors. If the commitment expressed in the statement was supposed to produce major changes in how companies treat stakeholders, the boards of the companies should have been expected to approve or at least ratify it. We contacted the companies whose CEOs signed the Business Roundtable statement and asked who was the highest-level decision maker to approve the decision. Of the 48 companies that responded, only one said the decision was approved by the board of directors. The other 47 indicated that the decision to sign the statement, supposedly adopting a major change in corporate purpose, was not approved by the board of directors. We received responses from only about three-tenths of the signatories. Yet there is no reason to expect that these companies are less likely than companies electing not to respond to have obtained board approval for joining the statement.

The late innings of Donald Trump’s four-year campaign in the White House come to look stranger than the big-league baseball season—both of which are in the deep shadow of the pandemic (13 St. Louis Cardinals tested positive this week). It’s the president who has to answer for a thousand COVID deaths a week in midsummer U.S.; China has next to none. Another president might wilt at the breaking of his boom economy, or the prosecution coming from Manhattan on charges of bank and tax fraud in the Trump organization. But this man surges, Trump-style: he’s all for U.S. military shock troops to quell local protests that he’s provoked; he tweets his preference that the election ninety days away be cancelled. What we know about our presidential race 90 days from the finish, perhaps all anyone knows, is that a wounded Donald Trump will not go quietly, if he goes at all, if he does not invoke emergency powers to cancel the election. The thought this hour was—and still is—to draw out the astute Russian-and-American diagnostician Masha Gessen, a resistance figure in two countries and author of a new book titled Surviving Autocracy. But then the plot thickened, particularly around the mayhem in Oregon after federal shock-troops had landed, over the objections of state governor, city mayor, and a militant wall of moms. A grave but lonely warning turned up in a New York Times guest-opinion piece. It was written by the sometime Colorado senator and presidential candidate Gary Hart, who joined this week’s conversation from his cabin a few mountains away from Denver. Martha Minow, a professor at Harvard Law School, also joins.

Have companies become more focused on stakeholders and toned down their attention to the interests of shareholders? Many argue there has been a shift but Harvard academics say they have evidence that is it is more like business as usual. After looking the evidence from 48 US companies signed up to a ground breaking pledge to work for “all stakeholders” rather than shareholders alone, Lucian Bebchuk and Roberto Tallarita, experts in governance at Harvard Law School, conclude than in reality nothing much has changed...Bebchuk and Tallarita look at companies who signed up to an August, 2019 statement from the Business Roundtable —a club for US corporate leaders, then chaired by JPMorgan Chase chief executive Jamie Dimon—which saw 180 big name companies declare: “Each of our stakeholders is essential. We commit to deliver value to all of them, for the future success of our companies, our communities and our country.” The statement was reported around the world and is frequently cited as evidence that corporate attitudes have changed and a fundamental shift is underway at the heart of capitalism. The Harvard profs conclude the evidence is lacking. They asked Business Roundtable companies if the decision to sign up to the statement had been cleared by their boards. Of the 48 that replied just one confirmed its board was consulted first. The other 47 “indicated” their boards were not involved. Bebchuk and Tallarita wonder why chief executives would sign up to such a significant statement without the green light from their boardrs. The most “plausible” explanation, they say, is that the CEOs did not believe the statement entailed any major change to the way stakeholders would be treated. The profs note it could be because CEOs are convinced their stakeholders are already well considered. “But it still implies that they believed signing the statement wasn’t a major step for their businesses,” they write. Then they dug a little deeper looking at the board-approved governance guidelines published by a number of the companies. They found they “mostly reflect a clear ‘shareholder primacy’ approach.” They cite the example of JPMorgan Chase itself, where guidelines clearly state the board works “on behalf of the firm’s shareholders.”

With stimulus talks with Congress at an impasse, President Donald Trump signed a series of executive orders on Saturday to provide temporary relief to Americans who are suffering from the economic impact of the coronavirus pandemic. At a news conference from his golf resort in Bedminster, N.J., Trump signed four orders that will provide an additional $400 per week in unemployment benefits, suspend payments on some student loans through the end of the year, protect renters from being evicted from their homes, and instruct employers to defer certain payroll taxes through the end of the year for Americans who earn less than $100,000 annually. Trump said he decided to act on his own and order the benefits after two weeks of negotiations with congressional Democrats collapsed without an agreement on a new coronavirus relief package...But questions remain as to whether Trump has the legal authority to take these actions – or the money to pay for them...Trump had been threatening for days to provide relief through an executive order if negotiations failed to produce a deal. Lawmakers had interpreted Trump's threat as a way to pressure negotiators into making a deal. Even some Republicans said they believed Trump was bluffing. “I doubt if he’s serious,” Sen. Chuck Grassley, R-Iowa, told reporters on Thursday. He was...Laurence H. Tribe, professor emeritus at Harvard Law School, called Trump's actions "cynical" as well as unconstitutional. "Trump might as well have directed the distribution of $100,000 to every family earning under $1 million a year," he said. "He obviously has no legal power to do that. But daring anyone to take him to court might be good politics."

In the wake of Vince McMahon’s Alpha Entertainment reaching an agreement to sell the XFL for $15 million, creditors are left wondering if they’ll see any of the money. As first reported by Sportico’s Scott Soshnick, a group that includes former WWE star Dwayne “The Rock’’ Johnson and RedBird Capital CEO Gerry Cardinale will buy the team, pending approval by U.S. Bankruptcy Judge Laurie Selber Silverstein. “I’ll be lucky to get pennies on the dollar,” a sports business professional who operates a small company tells Sportico...As an unsecured creditor in Alpha’s chapter 11 bankruptcy, the source lacks any collateral in Alpha’s properties or assets. It also means they’ll be among the last in line to collect any proceeds from the sale. The XFL, the professional maintains, owes them tens of thousands of dollars for services already rendered...One factor advantaging Alpha—and as acknowledged by creditors in their objection—is that, as the debtor, Alpha is entitled to deference in seeking approval of the proposed sale. A related factor is that the relevant legal standard for review is not especially difficult to meet. That standard is the business purpose test, which requires there be a sensible reason for the sale and a fair price for it. Harvard Law School Professor Mark Roe, an expert in bankruptcy law, highlighted these factors in an interview. The business purpose test, Roe said, is “usually an easy standard to satisfy as the sales’ proponents just have to give a plausible justification.” He surmises that for this sale, “it could have been XFL has been languishing and a new owner like Dwayne Johnson can give it a boost of publicity.” Where Roe sees Alpha potentially running into more trouble is “the structure of the auction and the relationships.” “Even if there’s a business purpose,” Roe notes, “the court should be structuring an auction that’s fair and likely to bring forward the best price.” Roe believes the court will attempt to determine if insiders downplayed asset value. In that instance, “the bidding documents would be defective.” Roe also draws attention to the creditors’ concern about the sale potentially releasing the insiders of causes of action—“that,” Roe said, “would be another issue separate from whether there was a sound business purpose.”

An article by John Ketcham '21: We are living through perhaps the unhappiest period in half a century, one that offers good reasons to be gloomy. The ongoing Covid-19 pandemic and America’s political and social disharmony are obvious factors, but for many, unhappiness also stems from not having a “third place” to socialize. The term, coined by sociologist Ray Oldenburg, author of the seminal book The Great Good Place, refers to social venues other than home and work—local coffeehouses, bars, hair salons, libraries, diners, churches, and the like, the public-private hybrids where communities are built through conversation and conviviality. These genial places are at risk of becoming another casualty of the coronavirus. New dangers associated with being indoors raise the prospect that third places will remain inaccessible, at least until scientists better understand the transmission of Covid-19 and develop a vaccine. But the social benefits of third places make them too valuable to be forgotten or relegated to irrelevancy. Third places fulfill the human need for socialization. In exchange for a modest purchase, patrons can stay and talk with one another for as long as they wish, fostering a convivial spirit of relative equality. Economic and social differences fade to the background. Civic engagement grows as citizens discuss the latest news, yet unanimity is not required to create a sense of shared identity. All are bound together by a common activity, grounded in a local setting. Psychologically, happy times in third places can help instill Burkean attachments to one’s own home and community. At the societal level, third places build social capital in two ways. Regular patrons often develop strong bonds of familiarity, trust, and friendship, forming the foundation for mutual aid. Third places are also forums for introducing people of different occupations and backgrounds, thus expanding personal networks, disseminating new knowledge, and inspiring a sense of neighborhood unity.

A new report claims that Facebook fired one of its employees after the individual compiled evidence of the social media platform giving preferential treatment to right-wing accounts and news sources. A senior engineer at Facebook was reportedly fired after he collected internal evidence that the company was biased toward major right-wing accounts in helping them remove fact-checks from the material they posted on the platform, according to BuzzFeed News. The former employee had posted his findings in Workplace, an internal communications platform used by the company akin to Slack. Facebook reportedly responded by taking down his post, limiting internal access to the materials that he cited, and firing him...There have been concerns that Facebook has been appeasing Trump and pro-Trump media outlets in a haphazard attempt to maintain objectivity. Facebook employees protested the company in May because of these concerns and some advertisers have withdrawn support...Trump's attempts to control social media outlets so that they act in ways that are favorable to his political interests pose a direct threat to the First Amendment. "The threat by Donald Trump to shut down social media platforms that he finds objectionable is a dangerous overreaction by a thin-skinned president. Any such move would be blatantly unconstitutional under the First Amendment," Harvard Law professor Laurence Tribe told Salon by email in May after the president announced he would retaliate against Twitter for fact-checking two of his tweets. "That doesn't make the threat harmless, however, because the president has many ways in which he can hurt individual companies, and his threat to do so as a way of silencing dissent is likely to chill freedom of expression and will undermine constitutional democracy in the long run."

One of the first challenges brought against the Trump administration’s Clean Water Act rule redefining federal jurisdiction over the nation’s waters was dismissed by a federal judge in Oregon late Thursday. The Oregon Cattlemen’s Association had sued the EPA and the U.S. Army Corps of Engineers in May for bringing non-navigable, small streams and wetlands under Clean Water Act protection in the Navigable Waters Protection Rule. Judge Michael W. Mosman of the U.S. District Court for District of Oregon, ruling from the bench on a preliminary injunction sought against the water rule, dismissed the claims “due to lack of standing” without prejudice. That means the cattlemen group can file an amended claim at a later date, said Earthjustice attorney Anna Sewell, who attended the virtual court proceeding on behalf of Columbia Riverkeeper, an intervenor in the case. Mosman also formally denied the cattlemen’s preliminary injunction on lack of standing. The EPA said the decision means the Navigable Waters Protection Rule will continue to be implemented in Oregon...During the hearing, Mosman grilled the Pacific Legal Foundation attorney about Oregon cattlemen’s standing to file the lawsuit, Sewell said. “It’s pretty tricky because the Oregon cattlemen will have to prove the new water rule creates some kind of compliance burden for them,” Caitlin McCoy, a staff attorney with the Harvard Law School environment and energy law program, said Friday. McCoy said the Oregon cattlemen will have to show that the land they ranch on currently has streams or wetlands will require permits under the current water rule for any kind of dredge and fill activity. “That’s the harm they will suffer and that is the harm they have to show to get standing,” McCoy said. More importantly, the other cattlemen and ranchers groups. which have filed nearly identical challenges in federal courts in Washington and New Mexico to that of the Oregon cattlemen, also will have to make sure “their complaints don’t fall into the same pitfalls that the judge in Oregon identified.”

When then-Attorney General Jeff Sessions shut down the U.S. Department of Justice's Office for Access to Justice in 2018, there was no press release, no tweet from the Oval Office. All it took to unravel the small, nonprosecutorial unit that the Obama administration had created in 2010 was a notice to Congress and some tweaks to department websites...Now, as the ongoing COVID-19 pandemic coincides with a nationwide racial justice movement, lawmakers are trying to reopen the office that provided national leadership on issues like indigent defense, excessive fines and fees, juvenile justice, legal aid funding and more. On July 31, the U.S. House of Representatives passed an appropriations bill that, among other things, included a $4 million rules amendment requiring the Justice Department to reestablish ATJ. In proposing the amendment, U.S. Rep. Mary Gay Scanlon, D-Pa., noted the bipartisan appeal of ATJ's mission: "To help the justice system efficiently deliver outcomes that are fair and accessible to all, irrespective of wealth and status." But at the time of its demise, some Republican lawmakers alleged the office's role in crafting DOJ litigation settlements allowed staff to funnel money toward political allies, "a terrible abuse of power." Laurence Tribe, a professor emeritus at Harvard Law School and ATJ's first senior counselor, told Law360 that if the office were still functioning, it could have lobbied for more legal services in COVID-19 relief measures. "Matching [available] resources with the people and places that need them requires a network that an ATJ office would be invaluable in organizing," he added. The office actually did develop such a network, known as the White House Legal Aid Interagency Roundtable, or LAIR. It brings together representatives from 22 different executive branch agencies to plan and develop policy focused on criminal indigent defense and civil legal aid.

Several policies that affect the west and the energy landscape here are back in the news, including proposed changes to the National Environmental Policy Act, the Bureau of Land Management Waste Prevention Rule, and the Great American Outdoors Act. On August 4, President Trump signed the Great American Outdoors Act into law. On July 29, three coalitions of environmental groups filed lawsuits challenging the final NEPA regulations. On July 29, the EPA made changes to how coal ash will be treated, including extending a deadline for discarding the waste in unlined ponds. On July 23, EPA the Nuclear Regulatory Commission signed a Memorandum of Understanding hoping to boost production of uranium. Hana Vizcarra, staff attorney at Harvard Law School's Environmental and Energy Law Program, spoke with Wyoming Public Radio's Cooper Mckim about why so much action is happening right now.

An article by Vivek Wadhwa: The summer has been eventful for ByteDance, the owner of the rapidly growing social network TikTok. First, GoI banned the application from distribution in the country due to concerns that the Chinese government is accessing user data. Then, a number of US companies warned employees to remove TikTok from their work phones. Most recently, US President Donald J. Trump threatened to ban TikTok in the US. Into this maelstrom has stepped Microsoft CEO Satya Nadella with an offer to purchase the US business of TikTok. Nadella has earned a reputation as a savvy operator. He has restored Microsoft’s growth with smart bets on various types of business software, and a strong push to move the users of various applications, including the company’s lucrative Office products on to the online Office 365 version. Nadella has also remade the image of the swaggering giant as a kinder, gentler, more thoughtful company. Microsoft’s purchase of TikTok would be Nadella’s riskiest bet to date. If Beijing, in fact, views TikTok as a crucial asset for influencing US political and social discourse, it could attempt to put backdoors into the software and service. Microsoft would need to work hard to extricate them, and they could result in TikTok’s being shut down anyway. Also, with TikTok, Microsoft would enter the politically fraught world of social-content moderation. Microsoft has assiduously avoided political controversy, but TikTok would inevitably force Nadella to enter that arena in one way or another. For example, critics have loudly complained that TikTok censored videos of recent Hong Kong protests, citing that as evidence of Chinese government control. One can imagine similar discontent, due to slights — real or perceived — arising among any number of causes, particularly at either extreme of the US political spectrum. TikTok’s present valuation $5 billion has critics warning that Microsoft is about to overpay. That is one of many things that could halt the deal altogether — valuation, government intervention, and fresh revelations of spying on users being just a few.

The full U.S. Court of Appeals for the District of Columbia Circuit held 7 to 2 on Friday that former White House counsel Donald McGahn, who refused to appear before the House Judiciary Committee, must in fact respond to its subpoena. This ruling may come too late to make a difference when it comes to investigating Trump, but it is important and welcome nonetheless...The court reaffirmed what should have been obvious all along: “The power of each House of Congress to compel witnesses to appear before it to testify and to produce documentary evidence has a pedigree predating the Founding and has long been employed in Congress’s discharge of its primary constitutional responsibilities: legislating, conducting oversight of the federal government, and, when necessary, checking the President through the power of impeachment.” The circuit court had the benefit of the Supreme Court’s decisions in Trump v. Mazars and Trump v. Vance, rejecting any “absolute immunity” to protect Trump’s financial documents from a subpoena. The same, the appeals court held, applies to live witnesses. The case was sent back to the district court to resolve other challenges. Constitutional scholar Laurence Tribe tells me that “although the 7-to-2 win for the House is a limited and potentially short-lived victory vis-a-vis Trump and McGahn, who will keep litigating immunity and privilege claims till the cows come home, the en banc D.C. Circuit decision vindicated a vital set of congressional oversight powers and separation of powers principles that will matter as long as our constitutional republic stands.” There are several important takeaways from the decision: First, the House impeachment managers were correct to move forward before legal challenges about McGahn and others were resolved, as Republicans disingenuously suggested. We are now in August and, as Tribe reminds us, McGahn’s case will travel up and down the courts a few times before a “final” decision is reached.

An article by Laurence H. Tribe, Jennifer Taub, and Joshua A. Geltzer: As President Donald Trump reflects on his sinking approval ratings and grows more desperate by the day, he’s been floating a dictator’s dream: postponing the November election. Even Senate Majority Leader Mitch McConnell and other Trump loyalists, including the Federalist Society co-founder Steven Calabresi, swiftly rejected this authoritarian fantasy. So Trump has retreated to a fallback position: casting doubt on the legitimacy of any election he doesn’t win. That starts by inventing fables about how voting by mail invites massive fraud and interminable delay—except, Trump now tells us, in Florida, where Trump’s elderly supporters will surely rely on it. Trump’s attack on voting by mail has several fronts, but one is by far the most serious: his attempt to slow down mail service, perhaps in a targeted way, while also insisting that only ballots counted on November 3 are valid. In addition to casting doubt on the entire election, another purpose of this scheme is to engineer a scenario in which Trump can pressure Republican-controlled legislatures to ignore the popular vote in their Democratic-leaning swing state (think Michigan, Pennsylvania, and Wisconsin) and instead select an Electoral College slate that supports him. Trump’s attempt to cut short the counting of valid votes is flatly contrary to constitutional law and federal statutes. Even so, states can and should do more to protect American’s mailed-in votes. States should immediately enact new legislation or take other legal steps clarifying that they intend for Congress to honor electors they choose, and that they may need a bit of time to finalize choosing them—ideally doing so by December 23 and no later than January 6, 2021, when Congress meets in special session to certify the election results. Through state-level action, Trump’s efforts can be neutralized.

The nation's largest gas utility is suing a California energy agency for considering how to phase out natural gas in buildings and other energy sectors, accusing it of violating a state law that promotes the fossil fuel. The lawsuit led by Southern California Gas Co. (SoCalGas) against the California Energy Commission (CEC), filed in state court, alleges that officials violated the law earlier this year when they issued a forecast of California's energy needs for the next decade. That forecast found the state's climate laws would require a long-term decline in the use of natural gas for power generation, paired with a push to electrify cars and buildings' heating systems. By releasing the forecast — but forgoing a separate report on how to "maximize the benefits" of natural gas for the climate and consumers — the state neglected its duties under a 2013 law known as the Natural Gas Act, according to the lawsuit. Caitlin McCoy, a staff attorney at Harvard Law School who has researched opposition to gas phaseouts, said the utility would likely be the first of many in tangling with regulators over gas phaseouts. "This case is one to watch because California is on the forefront of climate action and decarbonization," wrote McCoy in an email. "So we will likely see California's efforts to phase out natural gas replicated in other states and SoCalGas's efforts to challenge phase out replicated by other companies." ...McCoy said that she believed the language of the state's Natural Gas Act could be flexible enough to allow the state commission to move forward with gas phaseout policies. "There is a good argument to be made that the language doesn't bind the CEC to the continued use of natural gas," wrote McCoy.