Media Mentions

The late Chief Justice William Rehnquist was a busy man on Jan. 20, 1999. The impeachment trial of President Bill Clinton was in its second week, and Rehnquist had to stop presiding over an oral argument at the Supreme Court, cross the street, and preside over the Senate. One of the lawyers arguing before the high court that day was John Roberts. Once one of Rehnquist's law clerks at the high court, Roberts could be juggling the same two jobs as his former boss soon. ... Restraint might be difficult in the current political environment, however. Richard Lazarus, a Harvard Law School professor and Roberts' roommate when both were students there in the 1970s, says Senate Democrats and Republicans worked together to set rules for the Clinton trial. That may be harder this time around. “He knows that when he crosses First Street, he's going to be putting himself right in the middle of the workings of the political branch," Lazarus says. "He’s going to work hard to keep above the fray.”

Breathtaking in scope, defiant in tone, the White House’s refusal to cooperate with the House impeachment inquiry amounts to an unabashed challenge to America’s longstanding constitutional order. In effect, President Trump is making the sweeping assertion that he can ignore Congress as it weighs his fate because he considers the impeachment effort unfair and the Democrats who initiated it biased against him, an argument that channeled his anger even as it failed to pass muster with many scholars on Wednesday. ... Jack Goldsmith, a Harvard Law School professor and former senior Justice Department official under President George W. Bush, said Mr. Trump’s position was more political than constitutional. “The White House letter’s legal objections don’t have merit,” he said. “The letter, like the ‘official impeachment inquiry’ itself, is a hardball tactic designed to achieve maximum political advantage” before the public.

An op-ed by Nikolas Bowie: In 1947, Congress passed and President Harry Truman signed a law giving the people of Puerto Rico the right to elect their own governor. Until then, all territories of the United States, including Puerto Rico, had been governed by men appointed by the president and confirmed by the Senate. Most governors had been known more for their relationships to the president than, say, for their ability to speak Spanish. But after that 1947 law, Puerto Rican voters elected Luis Muñoz Marín to begin what would become a transformative governorship. Even as more recent governors have resigned in disgrace, democratic self-government in Puerto Rico has remained. But that could change. Next week, the Supreme Court is scheduled to consider a case that could radically undermine the ability of over four million American citizens — in Puerto Rico, other territories and even the District of Columbia — to elect their own chief executives.

An op-ed by Noah Feldman: For the first time since President Richard Nixon refused to turn over the White House tapes, the United States is facing a genuine constitutional crisis. To be sure, Donald Trump had already created a crisis in the presidency by abusing the power of his office to pressure foreign governments to investigate his political rival Joe Biden. But that act on its own didn’t count as a constitutional crisis, because the Constitution prescribes an answer to presidential abuse of office: impeachment. Now that President Trump has announced — via a letter signed by Pat Cipollone, the White House counsel — that he will not cooperate in any way with the impeachment inquiry begun in the House of Representatives, we no longer have just a crisis of the presidency. We also have a breakdown in the fundamental structure of government under the Constitution. That counts as a constitutional crisis.

An article by Noah Feldman: A federal district judge in New York has held that the Manhattan district attorney may subpoena Donald Trump’s tax records as part of a criminal investigation. Apart from the obvious political implications, there’s something constitutionally significant about the decision by Judge Victor Marrero, a Bill Clinton appointee. The judge took the opportunity to attack two memos written by the Department of Justice, both of which maintain that a sitting president cannot be criminally prosecuted. These memos form the basis for the department’s current policy of not indicting a sitting president in federal court.

An article by Cass Sunstein: All over the world, truth is in trouble. What are we going to do about that? Unfortunately, Facebook’s new policy on political advertisements is a step in the wrong direction. 1 By exempting “politicians” from its third-party fact-checking program, designed to reduce the spread of lies and falsehoods in ads, the company is essentially throwing up its hands. With some urgency, it should be seeking new ways to reduce the risk that lies and falsehoods will undermine the democratic process.

The White House tried to justify its refusal to comply with Democrats' subpoenas by claiming that their impeachment inquiry is unconstitutional. Laurence Tribe explains to Lawrence O'Donnell why that White House argument is "legally vacuous" and would rebuffed by the courts for putting the president above the law.

Since the release of the astonishing transcript of the call between President Trump and Ukrainian President Zelensky, Democrats have, as one would expect, zeroed in on the multiple legal problems Trump created for himself. ... The Justice Department is trying to deny Barr has any role in this fiasco. (“An initial Justice Department statement on Barr’s role issued at the same moment the call notes were made public seemed only to rule out the attorney general being asked to work with Ukraine on such a probe, but a subsequent clarification broadened the denial to cover any presidential request to Barr to launch an inquiry into Biden.”) Even if this is true, the Justice Department found there was nothing wrong with Trump’s conduct. Are we to believe Barr didn’t know about that either? Constitutional scholar Larry Tribe tells me, “It’s inconceivable that Barr didn’t know, and the decision to treat the president’s manifestly criminal conversation with Ukraine’s leader, a mix of bribery and extortion, as not worthy of a referral for further investigation seems to me inexplicable unless one assumes either corrupt motives or gross stupidity or both.”

An op-ed by Laurence H. Tribe: The White House’s blanket stonewalling of the House impeachment inquiry into President Donald Trump isn’t just deeply troubling or further indirect evidence of the president’s underlying abuse of public power for private gain. It signals another clear ground for his impeachment: obstruction of Congress. Article III of the Nixon articles of impeachment provides the closest precedent to what Trump did here: He directed the State Department to prevent Gordon Sondland, the U.S. ambassador to the European Union, from testifying about what his texts revealed to corroborate the whistleblower complaint about a scheme to withhold military aid in order to extort Ukraine into meddling in the 2020 election. The White House counsel followed up by telling House leaders there would be no cooperation with an inquiry he called illegitimate and unfair.

An article by Annette Gordon-Reed: Andrew J. Torget begins his 2015 book Seeds of Empire: Cotton, Slavery, and the Transformation of the Texas Borderlands, 1800–1850 with the story of five people whose journey into what was then “northern New Spain” effectively captures the origins of what would become the largest of the contiguous states of the American Union. In 1819 “Marian, Richard, and Tivi” escaped from slavery on a plantation in Louisiana, hoping to find freedom in Spanish territory. The following year, James Kirkham, the man who claimed ownership of them, went looking for the escapees, and on his way encountered another Anglo-American, Moses Austin. Austin, a Connecticut-born Missouri transplant, would gain a place in history for getting the first land grant “from Spanish authorities to begin settling American families in Texas”—the name the Spanish had given the region that they had fought to take from the Comanches for over a century. Austin’s task was not just to convince whites to move to Texas. He also had to encourage “the Spanish government…to endorse the enslavement of men and women like Marian, Richard, and Tivi, since American farmers would not abandon the United States if they also had to abandon the labor system that made their cotton fields so profitable.”

In the mid-2000s, Michael Burry smelled trouble in the housing market, realizing that big banks were packaging shady subprime mortgages and reselling them as surefire investments. He concluded that it would lead to a spectacular collapse, made a huge bet against the market and, ultimately, tons of money. His story was dramatized in the book The Big Short by Michael Lewis and in a Hollywood movie in which he was played by Christian Bale. ... Legal scholars Lucian A. Bebchuk and Scott Hirst recently published a working paper called "The Specter of the Giant Three." The vast majority of money flowing into index funds are run by three companies: Vanguard, BlackRock, and State Street Global Advisors. Their combined average stake in each of the top 500 American corporations (the S&P 500) has gone from 5.2% in 1998 to 20.5% in 2017.

Elizabeth Warren (D-Mass.) has released a comprehensive plan to reform America’s labor laws. While the Democratic presidential hopeful’s campaign says her proposal will empower American workers and raise wages, it has economists from across the political spectrum sounding off. “What really struck me the most is the framing of it around the issue of power—the fact that workers collective power is at a historic low,” said Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School.

Underscoring the city’s increased focus on supporting workers, the Philadelphia District Attorney’s Office has launched a unit to investigate and prosecute scofflaw employers. The new office is part of a nascent trend among progressive state and local prosecutors who are putting a priority on crimes committed against workers. County prosecutors in Minnesota, Colorado, and California are going after employers who are fudging time sheets in order to save money on wages and who put workers in danger on the job. ... If the principals of a company have been arrested for stealing workers’ wages, that sends a different message than, say, a lawsuit against that employer, said Terri Gerstein, a director at the Harvard Law School Labor and Worklife Program who studies state and local enforcement of labor laws. As prosecutors increasingly take up these kinds of economic crimes, she said, they present a “different vision of how [they] can use their power.”

An article by Jeannie Suk Gersen: Legal opinions do not often invoke Toni Morrison. But, last week, a federal judge relied on Morrison’s words in a rousing conclusion to the case on Harvard University’s use of race in admissions. “Race is the least reliable information you can have about someone. It’s real information, but it tells you next to nothing,” Morrison told Time, in 1998. The judge, Allison Burroughs, said that when this wisdom is accepted it will “ultimately make race conscious admissions obsolete.” But that hasn’t happened yet. The clearest message to emerge from the evidence in the Harvard case is that élite universities are very far from being able to achieve racially diverse student bodies using only race-neutral methods.

Former UN ambassador Samantha Power said Friday she would not rule out running for the US Senate seat held by Democratic Senator Elizabeth Warren, should Warren be elected president. Then again, she also said she wouldn’t rule out the job of Sox general manager, a job that’s actually open right now. Power, who lives in Concord, came to Providence Friday to promote her new memoir, “The Education of an Idealist.”

An article by Noah Feldman: The Supreme Court is back in session today. And in this mad political season, it somehow seems fitting that one of the first cases it will consider is whether it is constitutional for a state to punish a person who cannot tell right from wrong because of mental illness. On the surface, the question seems like one with obvious liberal and conservative answers: liberals, it would appear, should think that the Constitution protects people with certain serious forms of mental disability, whereas conservatives should think that states may be as harsh as they like in defining crime. And indeed, it seems probable that the court will split roughly on ideological lines in the case, Kahler v. Kansas.

Legal experts have dismissed claims that President Donald Trump will be permitted to run for a third term if he is impeached by the House but the Senate fails to confirm it, branding them "categorically false." ... Indeed, there appears to be an information gap generated by the announcement of the impeachment inquiry, given there are so few examples to draw from, explained professor at Harvard Law School Cass Sunstein, the author of Impeachment: A Citizen's Guide and a former Administrator of the White House Office of Information and Regulatory Affairs in the Obama administration. "If a person is indicted by a prosecutor it's not a trivial matter, even if there is no conviction, and you can see impeachment as similar to an indictment," Sunstein told Newsweek. "It is a real mark on a human being and even more impeachment is a real mark on a president. There have only been two indictments in our history and they have both had a huge impact on what that person could do while president and also on their historical standing."

In 1975, labor union leader and American icon Jimmy Hoffa went missing. Forty-four years after Hoffa’s disappearance, the crime remains one of America's greatest unsolved mysteries. One of those frequently considered a suspect in Hoffa’s murder is Chuckie O’Brien, Hoffa’s longtime right-hand man. O’Brien also happens to be the step-father of Lawfare co-founder and Harvard Law Professor Jack Goldsmith. In a new book, "In Hoffa’s Shadow," Goldsmith details his own rigorous investigation of Hoffa’s disappearance and explains why the long-held assumption of Chuckie’s role in Hoffa's death is misguided. Yet, the book is more than a murder mystery. Goldsmith also reflects on the evolution of his own relationship with his step-father.

An article by Jesse Fried: In August, 181 chief executives, including Apple’s Tim Cook and JPMorgan’s Jamie Dimon, officially demoted their shareholders. They all signed a Business Roundtable statement in which they “commit to lead their companies for the benefit of all stakeholders — customers, employees, suppliers, communities and shareholders”. If you believe what the members of the influential business group say, equity holders will no longer be paramount. In reality, the Business Roundtable is merely paying lip service to broader social concerns. I predict that the pledge will not actually affect how they run their companies.

An article by Susan Crawford: It sounds amazing. You sign up for an app that tracks your robust heart rate, your 10,000 daily steps, and other minute-by-minute data, and then, with a few short clicks, you can also download the years of medical records that show your struggles with cholesterol and the procedures you’ve had with a variety of specialists. It’s all in one convenient spot. You’ll have that option soon, by way of a little-noticed federal regulation that is winding its way toward final approval later this year. The rule would effectively wrest control over your health records from health-service providers. The idea is that, with a single click, you would be able to transfer those records to a third-party app—say, Apple Health—that could aggregate everything from every doctor you’ve ever seen.

An essay by Jack Goldsmith: On june 16, 1975, when I was 12 years old, my mother, Brenda, married Charles “Chuckie” O’Brien, who a few weeks later would become a leading suspect in the notorious disappearance of Jimmy Hoffa, the former president of the Teamsters union. Chuckie had known Hoffa since he was a boy, loved him like a father, and was his closest aide in the 1950s and ’60s, when Hoffa was the nation’s best-known and most feared labor leader. Soon after Hoffa went missing, on July 30, 1975, the FBI zeroed in on Chuckie.