Media Mentions

The Post reports, “House Democrats unveiled new procedures for the impeachment inquiry of President Trump on Tuesday, responding to Republican demands for due process by setting out rules for future public hearings delving into whether Trump should be removed from office.” This will be the House Intelligence Committee Chairman Rep. Adam B. Schiff’s (D-Calif.) show...Constitutional scholar Laurence Tribe tells me, “The procedures this resolution would put in place are well adapted to bringing the truth to light in a way that respects historical precedent, gives the president and his defenders a full and fair opportunity to challenge his accusers and to present his defense, gives members on both sides of the aisle an equal chance to test the evidence and finally gives the American people the opportunity they have been waiting for to decide whether the sitting president has shown himself to be a danger to the republic.”

The Post reports: “House Democrats said Monday that the House will vote Thursday to formalize procedures for the next phase of the impeachment inquiry into President Trump. Democrats said the move would ‘ensure transparency and provide a clear path forward’ as the inquiry continues.” Contrary to the claims of Republicans partisans and some sloppy reporting, this does not authorize the inquiry. The impeachment proceedings are already underway. The main purpose is to set forth how the inquiry will proceed and undercut Republican complaints of lack of transparency...So why bring this up now, especially after a court held in Democrats’ favor? One possibility is that in preparing an article of impeachment on obstruction of Congress, Pelosi does not want to leave a crack open whereby Trump’s lawyers would say, well, he had a good-faith belief the impeachment process was not officially underway. Constitutional scholar Laurence Tribe approves of Pelosi’s move. “This resolution makes perfect sense now that the House leadership has wisely decided to forgo further judicial jockeying and to move expeditiously to public hearings,” he argues. “Calling the Trump administration’s bluff this way will make it clear that the continued stonewalling of the administration — and of those current and former officials who use the administration’s gag order as an excuse for seeking what amount to advisory judicial opinions on whether to comply with congressional subpoenas — is just a stalling tactic, not a good-faith effort to resolve conflicting obligations when confronted with a subpoena from Congress and a directive from the White House to defy that subpoena.”

An article by Cass Sunstein: What divides the right and the left? Not 50 years ago, or 20 or even 10 years ago, but right now? Here’s one speculation: Conservatives tend to be localists; they focus on their families, their towns, their states and their nation. Progressives are far more likely to be universalists who focus on human beings as such. New evidence strongly supports this speculation, and explains a lot about current political divisions, not only in the U.S. and Canada but also in Europe and elsewhere. It also offers concrete lessons for aspiring politicians, whether they’re on the right or the left. The relevant studies were conducted by a team of researchers led by Northwestern University’s Adam Waytz and including New York University’s Jonathan Haidt, who has done the defining work on the differences between conservatives and progressives. Their principal finding is that conservatives show a clear preference for tighter and “more defined” social circles, emphasizing “their immediate social groups,” while progressives favor looser circles, and express “compassion toward individuals broadly construed.”

An article by Noah Feldman: According to the White House, senior advisers who work closely with the president have “absolute immunity” from congressional subpoena on matters related to their official duties. That’s what the Trump administration is telling former deputy national security adviser Charles Kupperman — and almost certainly telling former national security adviser John Bolton. Kupperman, caught between a House subpoena and a presidential directive not to testify, went to the federal district court in Washington, D.C., on Friday to ask what he should do. To answer him, the court will likely have to rule on whether the claim of absolute immunity holds water or not.

On Sunday, the Globe’s Jenna Russell told the tale of renowned Harvard Law School Professor Charles J. Ogletree Jr.’s journey into the fog of Alzheimer’s disease. We caught up with Russell to ask about the process of reporting this sensitive story and about the outpouring she’s received from readers..."One thing that was important to Pam [Ogletree] was to tell people about some of the treatment possibilities that do exist, in the hope that others might find them sooner than the Ogletrees did, and reap more benefits. But it’s been so interesting to see the different ways readers are responding. A handful found the story too hopeful or too sweet, not dark enough in what it shows of the disease. But overwhelmingly, I am hearing from caregivers who recognize themselves and their own experience in what Pam and Charles are living through, in love that survives the worst things life can offer. I think that recognition means the most to me."

In 1994, as a slew of scandals were popping up around President Bill Clinton, an attorney who worked with his defense team visited the Office of Government Ethics (OGE) in Washington to ask a simple question in person: Could the president of the United States accept free legal services from his personal lawyers? An unambiguous answer came back from the OGE, the executive branch’s in-house experts at preventing conflicts of interest: No...Flash forward 25 years, and President Trump is doing things very differently...Charles Fried, a Harvard Law professor who served as solicitor general under President Ronald Reagan and serves on the board of the nonpartisan Campaign Legal Center, said it would be “obviously problematic” for Trump to have a member of his legal team working pro bono. “He is ... receiving hundreds of hours of legal services, which, you know, people like Giuliani charge a thousand dollars an hour. [Trump is] getting that for free,” Fried said.

After two years of struggling to pass any of his community college classes, Jamarria Hall, 19, knows this for certain: His high school did not prepare him. The four years he spent at Detroit’s Osborn High School were “a big waste of time,” he said, recalling 11th and 12th grade English classes where students were taught from materials labeled for third or fourth graders, and where long-term substitutes showed movies instead of teaching. What’s less certain, however, is whether Hall's education in Detroit’s long-troubled school district was so awful, so insufficient, that it violated his constitutional rights. That’s the question now before a federal appeals court that heard arguments last week in one of two cases that experts say could have sweeping implications for schools across the country...Martha Minow, a former dean of Harvard law school and the author of a book about the legacy of the landmark Brown v. Board of Education decision, said the education system in Michigan violates the Constitution because some school districts in the state fail to provide even a minimal education while others, including those in affluent suburbs of Detroit, are providing a much higher quality education. “Some people are getting an education and other people are not, and that’s discrimination,” said Minow, who filed an amicus brief on behalf of the Detroit students.

The impact of the #MeToo movement in American culture is undeniable, and the high-profile prosecutions of Harvey Weinstein, Bill Cosby, and other powerful men suggest it’s a legal success, as well. But the broader impact of the movement will depend upon lawmakers and judges’ willingness to incorporate its principles into the American legal system. Some activists have argued that prosecutors should be able to use “Me Too” evidence—allegations that a defendant committed a similar offense against individuals other than the victim in the case at hand. This evidence isn’t easily admissible. But prosecutors may be able to persuade courts that the voices of other victims can help a judge or jury determine the truth of an accusation...As Harvard Law School professor Jeannie Suk Gersen has written, the strength of “Me Too” evidence lies in “the power of numbers across time.” While a victim’s lone account of the offense might not be believed, “the choruses of ‘me too’ ” make each account much more believable. “Me Too” witnesses together convey a potent message that “what you say happened to you happened to me, too, and so it is more likely that we are both telling the truth.”

An article by Patrick McDonnell ('21), Jacques Singer-Emery ('20), and Nathaniel Sobel ('20): Then-Rep. Gerald Ford once defined an impeachable offense as “whatever a majority of the House of Representatives considers it to be at a given moment in history.” But legal scholars have concluded that impeachment is considerably more law-governed, and constrained, than Ford suggested. They draw on clues from the Founders, the text and structure of the Constitution, and the history of presidential impeachments (and near-impeachments) to make varying arguments about the impeachment power and the range of impeachable offenses. For this post, we read eleven of the leading scholarly works on impeachment so that you don’t have to...And of a more recent vintage, we cover a collection of Trump-inspired works, including books by Cass Sunstein, Laurence Tribe and Joshua Matz.

Chasten Buttigieg thinks of himself as a story collector, gathering anecdotes from voters across the country to pass along to his husband, South Bend, Ind., Mayor Pete Buttigieg. Bruce Mann is Elizabeth Warren’s sounding board and joked that his most formal role in his wife’s campaign is managing their dog Bailey when he joins the Massachusetts senator in New Hampshire. Doug Emhoff, California Sen. Kamala Harris’s husband, memorably rushed to her defense when a protester charged toward her on stage at an event. In a presidential field with a historic number of women and the first openly gay candidate, those three are part of the largest-ever group of male spouses of White House contenders, and they are figuring out their roles in boosting their partners’ prospects. ... Mr. Mann, who is still teaching full-time at Harvard Law, said he also prefers a more low-key role. “I’m a husband,” he said. “I’m not a policy adviser.” Mr. Mann said his wife, who is known for all her policy proposals, “bounces ideas” off him, “but in a very limited sense.”

An article by Noah Feldman: In an important development, a federal district court in Washington, D.C. has pointed the way to a possible resolution of the standoff between President Donald Trump and the House of Representatives over the legitimacy of the impeachment inquiry. The court’s ruling signals that at least part of the judiciary is prepared to help resolve the emerging constitutional crisis — by deciding in favor of Congress and against the president.

In this edition: Why it matters that Joe Biden said “yes” to a super PAC, what happened at South Carolina's criminal justice forum, and whether the killing of Abu Bakr al-Baghdadi will affect the election. I still don't know what “died like a dog” is supposed to mean, and this is The Trailer. Until Thursday, when Joe Biden's presidential campaign ended its opposition to a supportive super PAC, Biden convincingly explained why this would be a bad idea. In his 2017 memoir “Promise Me, Dad,” Biden revealed that he would have refused super PAC support had he run in the 2016 primary. ... Larry Lessig, an academic and activist who launched a super PAC and then a 2016 presidential campaign to demand campaign finance restructuring, said that Biden's approach to super PACs was less important that what he committed to do if he won in 2020. “I always find this distracting,” Lessig said. What mattered was not how Biden's allies raised money; it was whether he, or any other Democrat, pledged to replace the campaign money system with some kind public financing. “That would be one thousand times more important than whether or not he had a super PAC. We need to focus people on the real issue.”

Ruth Bader Ginsburg is a revered Supreme Court justice who spent her early legal career fighting for women’s rights. But one justice gave her original performance before the high court only passing marks. “Prof. Ruth Ginsburg. C-plus,” Justice Harry Blackmun wrote on loose-leaf paper during her first Supreme Court argument, Frontiero v. Laird, in January 1973. “Very precise. Female. Reads.” Perhaps alone among his colleagues, Justice Blackmun made detailed assessments of Supreme Court advocates, grading them like law students and often noting their hometowns, law schools and even their ethnicities. Several of those attorneys later joined the Supreme Court. ... Among private attorneys, the late E. Barrett Prettyman Jr., who had clerked for three Supreme Court justices, earned an exceptional 3.1 average over 14 arguments. Harvard law professor Laurence Tribe pronounced himself pleased when informed by the Journal of his own 3.1 GPA, also over 14 cases. “It seems quite fair and in some cases generous,” Mr. Tribe said, adding that he wasn’t sure he deserved a Blackmun 6 in a 1989 bankruptcy case, Granfinanciera SA v. Nordberg. “I didn’t do very well,” he said.

An op-ed by David J. Harris and Jean Trounstine: Last week we joined 200 other Massachusetts residents for a hearing of the Legislature’s Joint Committee on the Judiciary. The hearing, set to cover sentencing, corrections, and criminal records, had a list of 60 bills under consideration. As is common practice, verbal testimony was limited to three minutes per person, with the committee chairs retaining the right to take people out of turn. This, of course, is not unusual. The rationale is that with three minutes of testimony, all of the hundred or so people who wanted to testify would have their say. We have both been through this before and understand it is general operating procedure for our legislative process. But there was something so deeply flawed here that it forces us to question this approach to crafting legislation to guide the Commonwealth.

Adam Smith is mad at his co-worker. His boss is on the list, too. “Everyone keeps taking credit for my accomplishments, so no one knows what great work I do,” says the 24-year-old business analyst. He wants to say something, but when he tried to subtly complain to a colleague at the downtown investment bank where they both work, “I got a stupid response, something like ‘There’s no ‘I’ in team,’ ” he says. ... But workers must learn to have difficult dialogues, regardless of how uncomfortable they might feel, because the need will come up many times during one’s career, says Sheila Heen, a lecturer at Harvard Law and co-author of New York Times business best seller “Difficult Conversations, How to Discuss What Matters Most.”

An article by Cass Sunstein: In terms of public health, one of the worst air pollutants is fine particulate matter. From 2009 to 2016, average levels of these particulates in the ambient air in the U.S. plummeted by 24.2 percent. That’s the good news. The bad news is that from 2016 to 2018, average levels jumped by 5.5 percent. As a result of that increase, 4,900 Americans died prematurely in 2017, and 9,700 died prematurely in 2018, according to the government’s own estimates of the likely effects of exposure to fine particulate matter. In short, the air got a lot cleaner during the years when Barack Obama was president (preventing tens of thousands of premature deaths), and has become a lot dirtier under President Donald Trump. But instead of scoring political points or assigning blame, let’s try to understand what is happening, with the help of new research from economists Karen Clay and Nicholas Muller of Carnegie Mellon University.

Book reviews by Cass Sunstein: President Donald Trump has a favorite epithet, a term of contempt: “like a dog.” Mitt Romney could have been president, but he “choked like a dog.” Broadcaster David Gregory was “fired like a dog.” In a presidential debate, Senator Marco Rubio started to “sweat like a dog.” Brent Bozell of the National Review came “begging for money like a dog.” In their Senate testimony, former Director of National Intelligence James Clapper and former acting Attorney General Sally Yates started “to choke like dogs.” Referring to his former assistant Omarosa Manigault Newman, the president writes, “Good work by General Kelly for quickly firing that dog!” What does it actually mean, to be “like a dog”? ... But in view of recent research, it is increasingly difficult to believe that people domesticated dogs. It is far more likely that dogs domesticated themselves. We did not choose them. They chose us.

There are so many outrages to keep track of with the Trump administration, so many officials determined to gut the very departments they lead, that it’s hard to keep up. For example, Education Secretary Betsy DeVos still exists. Did you forget that or, like me, wish you could? This particular fox continues to guard a henhouse crammed with students battling soaring debts, a crushing burden that harms the entire economy. Luckily, the judiciary also still exists, and it is not yet completely stacked with underqualified Trump toadies. On Thursday evening, a federal judge in San Francisco held DeVos in contempt and slapped her department with a $100,000 fine for continuing to squeeze victims of shady for-profit colleges to pay back their loans after she had been ordered to stop. ... The Project on Predatory Student Lending at Harvard Law School sued, and that was supposed to freeze collections. Except the department continued to put the squeeze on 16,000 students, even garnishing some of their wages and tax refunds. “They have been cheated and lied to by both the schools and the government,” said Toby Merrill, director of the Project. The Department said billing the students had been an innocent mistake, and that they have returned the payments.

The couple walk shoulder to shoulder, stride for stride, like two people who have walked together a long time. The man looks steadily ahead and moves with purpose. The woman turns to him, smiling, and speaks quietly. He nods his head slightly but does not reply. His silence would have once surprised her, but it is expected now, painfully familiar, four years into their life with Alzheimer’s. The great man at her side goes days sometimes without speaking. She isn’t certain, now, if he knows her name, or if he always recalls his own. His name is Charles J. Ogletree Jr., and he was, not long ago, a dazzling, dominating legal mind, a theorist and scholar internationally revered for his brilliance and compassion. He inspired generations of students as a Harvard Law School professor, including the young Barack and Michelle Obama. He was a crusader for civil rights, the founder of the Charles Hamilton Houston Institute for Race and Justice, and a prolific author who investigated police conduct in black communities and the role of race in capital punishment, long before the rise of the Black Lives Matter movement.

An op-ed by Benjamin Eidelson: In two weeks, the Supreme Court will consider President Trump’s decision to end the Deferred Action for Childhood Arrivals policy, better known as DACA. Many expect a sharply divided decision in the spring, just as the presidential campaign picks up steam. But a different path would better serve both the court and the country. By resolving the case on narrow grounds, the justices could steer clear of the political fray and their own jurisprudential divisions. Such a ruling would leave DACA in place for now, but leave the policy’s ultimate fate to the political process — reaffirming the vital distinction between law and politics.

This week has seen some of the most damning testimony yet in the impeachment inquiry into President Trump. Meanwhile, some House Republicans took it upon themselves to storm into a secure briefing room to complain about the levels of transparency in the process. Harvard Law Professor Noah Feldman joins Walter to explain why the impeachment fight tests the very limits of the U.S. constitution.