Media Mentions

The Democrats don’t have a stellar recent record of conducting congressional hearings. They couldn’t figure out how to respond effectively to Brett Kavanaugh’s righteous anger or to ask some of the probing follow-up questions that his testimony raised. Democrats also struggled this year to turn hearings on the Russia scandal into the kind of compelling television that would move public opinion. ... Schiff “is focused like a laser on national security. That’s at the heart of why Trump must be impeached. He endangers the nation for his own benefit,” Laurence Tribe of Harvard Law School wrote this week.

An article by Susan Hennessey, Quinta Jurecic, Benjamin Wittes: The Democratic caucus in the House of Representatives suddenly seems to be careening toward impeachment. The resistance to this measure, led by House Speaker Nancy Pelosi, appears to be crumbling in the face of the new scandal over President Trump’s bullying of Ukrainian President Volodymyr Zelensky to produce damaging information on Joe Biden and his son. Whether the newfound momentum will sustain itself over the coming days is anyone’s guess. But the sudden and urgent focus on impeachment raises an important question: What should the House impeach President Trump for? If the House is no longer considering whether to impeach Trump and has really decided to move forward, it needs to think about what articles of impeachment should—and should not—contain.

President Trump’s comments in a phone call with Ukrainian President Volodymyr Zelensky in July have prompted the House of Representatives to launch an impeachment inquiry. Trump reportedly pressured his Ukrainian counterpart to investigate Joe Biden and the former vice president’s son, Hunter Biden, who served on the board of Burisma, a Ukrainian gas company. He also offered to enlist U.S. Attorney General William P. Barr and his personal attorney, Rudolph W. Giuliani, in that effort. Trump’s action — far from the first controversy the president has created while interacting with a foreign counterpart — appears to be a flagrant abuse of power. But it is one enabled by a system that extends presidents enormous freedom in conducting personal diplomacy with limited transparency and few checks on their power...Similarly, Trump often abruptly shifts American policy with little consultation with his aides, U.S. allies or Congress. And legally, he’s free to do so. “Putting it brutally, Article II gives the president the authority to do, and say, and pledge, awful things in the secret conduct of U.S. foreign policy,” Harvard law professor Jack Goldsmith tweeted. “That is a very dangerous discretion, to be sure, but has long been thought worth it on balance.”

If you've followed the vanishing Jimmy Hoffa caper over the years, you've likely heard of Chuckie O'Brien, a burly, confidant who was his driver, gofer and conduit to the mob. Hoffa considered him like a son. One theory is that O'Brien was instrumental in Hoffa's July 1975 disappearance. Others disagree, or say any role was unwitting. Whatever the case, the FBI refers to O'Brien in 1976 as a pathological liar. Many books explore the Hoffa case. But now comes one of the more unlikely Hoffa-book authors -- Harvard Law Professor Jack Goldsmith -- a total opposite of O'Brien, his stepdad, who lives in the land of early bird specials, southern Florida.  Goldsmith's 368-page book, "In Hoffa's Shadow," came out this week and is about the former Teamsters union leader and O'Brien, now 84. Its subtitle is "A Stepfather, a Disappearance in Detroit, and My Search for the Truth."

When should law forgive? That's a question that Martha Minow, a professor at Harvard and the former dean of Harvard Law School, has been wrestling with for years. Now, it's the title and the question at the heart of her new book.

The White House memo reconstructing a July phone call between President Donald Trump and Ukrainian President Volodymyr Zelensky landed on the internet on Wednesday like a dress that is either clearly blue and black or clearly white and gold, depending on the viewer. ...We asked a group of legal experts what to make of it all. ... "The phone call ‘clearly establishes high crimes and misdemeanors’ " Laurence H. Tribe is a professor of constitutional law at Harvard Law School. The White House’s reconstruction of the phone call clearly establishes high crimes and misdemeanors, even if no further evidence were available. It shows a president responding to a desperate request by an ally for military assistance that he is secretly withholding by indicating that he might be able to help but—and his use of the word “though” is telling—he would appreciate the ally’s help in going after the former vice president and his son. ... Trump revealed ‘his intent to use U.S. government resources and power to further his personal agenda’ Jennifer Taub is the Bruce W. Nichols visiting professor of law at Harvard Law School. Placed in its full context, this partial summary of this single 30-minute phone conversation between Donald Trump and Ukrainian President Volodymyr Zelensky provides compelling evidence of an impeachable offense. Remember at the time of the call, President Trump was withholding $250 million in military aid to Ukraine. Furthermore, this document itself states it is not a literal transcript, but based on “notes and recollections.”

An op-ed by Noah Feldman: A White House memo recording Donald Trump’s July phone conversation with Volodymyr Zelenskiy is damning. Trump’s request that the president of Ukraine initiate a corruption investigation into Joe Biden and his son Hunter wasn’t incidental. On the contrary, it appears to have been the point of the call, along with an additional request to investigate the origins of the Russian collusion allegations against Trump. Trump brought up the investigations nearly every time he opened his mouth. Zelenskiy responded positively, suggesting he got the point. There is more than enough evidence here to support an allegation that Trump was not merely asking the president of Ukraine “to do us a favor,” as he put it, but rather proposing a quid pro quo in which U.S. aid for Ukraine would be reinstated in exchange for an investigation into the Mueller investigation, and into Biden. That would constitute an abuse of power by the president of the United States for his own benefit, since Biden was and is the leading contender for the Democratic nomination to challenge Trump in 2020. Such an abuse, if proven, would almost certainly qualify as an impeachable offense.

An op-ed by Laurence Tribe: Let us count the ways. The White House readout of President Donald Trump’s phone conversation with Ukrainian President Volodymyr Zelensky shows that the American president has committed a multitude of high crimes and misdemeanors, all of them impeachable. Even without considering the many prior offenses that were surfaced in the Mueller report and in the special counsel’s prosecutions of numerous Trump allies and associates, including in the Southern District of New York, this readout — which must be the least incriminating version the White House could compose despite its remarkable skills at shading the truth or falsifying it altogether — is utterly devastating. The “high crimes and misdemeanors” that the readout reveals — to use the Constitution’s term for impeachable offenses beyond “treason” and “bribery” (both of which the readout comes close to establishing) — begin with Trump abusing the foreign policy powers entrusted to the president by Article II in order to serve his own political interests rather than the interests of the American people.

Legal scholars who have studied impeachment say it was not intended as a means to remove a president who commits any crime or loses the support of other politicians. Rather, it was designed for removing from office a chief executive who grossly misuses his authority to benefit himself and sacrifices the public good. ...Harvard Law professor Cass Sunstein, who like Gerhardt, wrote a book on impeachment, stressed that the Constitution sets a high standard for impeachable offenses. If the president was shown to be a shoplifter or accused of disorderly conduct or even cheats on his taxes, those alone would not be grounds for impeachment, Sunstein said. “The idea of ‘high crimes and misdemeanors’ is not a political term. It was understood as a legal term which came with a history,” he said. ... Many scholars have tried to define those terms. In their book “To End a Presidency: The Power of Impeachment,” Harvard Law professor Laurence Tribe and Washington lawyer Joshua Matz wrote last year that “impeachable offenses involve corruption, betrayal or an abuse of power that subverts core tenets of the U.S. governmental system. They require proof of intentional, evil deeds that risk grave injury to the nation.”

Harvard Law faculty Charles Fried, Nancy Gertner and Ronald Klain weigh in on the significance of the move toward impeachment of President Trump, and whether it will matter in the end if it reaches the Republican-controlled Senate.

In March, the John D. and Catherine T. MacArthur Foundation announced it had named John Palfrey ’01, its sixth president.

Jack Goldsmith, who is the Henry L. Shattuck Professor of Law at Harvard University, couldn’t have chosen a more different career path than that of his stepfather, Charles “Chuckie” O’Brien. O’Brien was Teamsters Union President Jimmy Hoffa’s confidante and he also had close ties to the organized crime figures suspected in Hoffa's still unsolved 1975 disappearance. O’Brien could never shake suspicions that he drove Hoffa to his abduction. It’s not surprising that Goldsmith distanced himself from his stepfather as he moved toward adulthood and aspired to an elite legal career. He changed his name and ultimately cut O’Brien out of his life altogether.

So much has been written about Jimmy Hoffa, the former Teamster boss who vanished from a Detroit suburb in 1975, but a new book about him still contains surprises — not least because of who wrote it. Jack Goldsmith, the author of “In Hoffa’s Shadow,” happens to have a personal connection to the material. Goldsmith is perhaps best known for his work in the George W. Bush administration as the head of the Office of Legal Counsel, where he challenged the legality of “enhanced interrogation” and warrantless surveillance programs before resigning nine months after he started. In his 2007 book, “The Terror Presidency,” Goldsmith said he was hired in part because of his stalwart conservative worldview. But something came up in his vetting interview that gave White House officials pause. Asked whether anything embarrassing might emerge during his Senate confirmation hearing, Goldsmith replied: “My former stepfather is the leading suspect in Jimmy Hoffa’s disappearance, and has long been associated with the Mafia.”

In a paper released earlier this month, researchers at Harvard Law School’s Criminal Justice Policy Program lay out a road map for reforming how courts across America can reform the imposition of excessive fines and fees, the devastating impacts of which fall disproportionately on the poor and on people of color. In “Proportionate Financial Sanctions: Policy Prescriptions for Judicial Reform,” authors Sharon Brett and Mitali Nagrecha argue that revenue-raising fees designed primarily to raise revenue for local governments should be eliminated altogether and that the amounts of court-imposed fines should be determined by a mix of factors, including the severity of the offense and people’s ability to pay. Warrants, driver’s license revocation, and incarceration should not be used to compel payment or punish nonpayment, they argue.

An article by Noah Feldman:  If it’s true (and we may soon find out) that Donald Trump froze U.S. government aid to Ukraine and made it clear to the Ukrainian president that he would unfreeze it if Ukraine were to investigate Joe Biden, that is certainly an outrage. Depending on how you define the term, it may also be a “high crime” deserving of impeachment under the Constitution. But is it a crime under existing federal law? The answer turns out to be tricky. And if history is a guide, the question will be hotly debated in any process of impeachment.

The president’s critics have found numerous justifications for impeachment throughout his tenure, including obstruction of justice during the Mueller investigation, violations of campaign finance laws in the payment of hush money to two women and what seems to be regular defiance of the Constitution’s emoluments clause...Impeachment is a process whose territory remains largely uncharted, since only two presidents, Andrew Johnson and Bill Clinton, have ever been impeached, and neither was convicted. “Because it has been used so rarely, and because it is a power entrusted to Congress, not the courts, impeachment as a legal process is poorly understood,” Noah Feldman and Jacob Weisberg have written in The New York Review of Books. “There are no judicial opinions that create precedents for how and when to proceed with it.”...But “not all crimes by federal officials have been seen as impeachable,” write Laurence Tribe, a professor of constitutional law at Harvard, and Joshua Matz, an adjunct professor at Georgetown Law, in their book “To End a Presidency.” So where exactly does the line fall? During Bill Clinton’s impeachment trial, Mr. Tribe argued that his conduct did not rise to the level of an impeachable offense because it related to his private life....The argument against this sort of ad hoc impeachment has its roots in Supreme Court Justice Benjamin Curtis’s defense of President Andrew Johnson during his impeachment trial in 1868. As Nikolas Bowie, an assistant professor at Harvard Law School, writes in the Harvard Law Review, Curtis believed that retroactively criminalizing a president’s behavior — inflammatory, racist campaign speeches — would violate a fundamental principle of common law: “There must be some law,” Curtis argued, “otherwise there is no crime.” Mr. Bowie argues that the decision to impeach Mr. Trump without any statutory justification would set a dangerous precedent that “would apply not just to someone as unpopular as President Trump but also to future Presidents whose policies happen to misalign with a congressional majority.”

Cass Sunstein, professor at Harvard Law and author of 'Impeachment: A Citizen's Guide', explains what the process would look like for President Trump.

An article by Harvard Law School student Todd Carney:  Last July, after months of tension, the EU punished Turkey for illegally drilling for gas off the coast of Cyrpus. The penalty had the EU withdraw $164 million in foreign aid to Turkey and suspend contact between high-level EU officials and Turkish leaders. Prior to this decision, the EU leaders had repeatedly warned Turkey that it was committing an illegal action by drilling in an area that Cyprus had sole domain over. Turkey had repeatedly responded that Cyprus did not have jurisdiction over the waters because the disputed area was under the jurisdiction of the country of the Turkish Republican of Northern Cyprus (TRNC). Turkey is the only nation in the world that has recognized the TRNC as a state. Though this conflict may appear to solely involve Turkey and Cyprus, further analysis shows that the disputes raises several international legal issues that entangle the West as a whole.

The last time he was accused of collaborating with a foreign power to influence an election, he denied it and traveled the country practically chanting, “No collusion!” This time, he is saying, in effect, so what if I did? Even for a leader who has audaciously disregarded many of the boundaries that restrained his predecessors, President Trump’s appeal to a foreign power for dirt on former Vice President Joseph R. Biden Jr. is an astonishing breach of the norms governing the American presidency...“I do regard this as a transgression by the president even more egregious and dangerous, and even more clearly calling for impeachment, than the many that have come before it,” said Laurence H. Tribe, the Harvard law professor and an author of “To End a Presidency,” a book on impeachment. “It’s difficult to imagine a purer example, even on the president’s own account of his conduct, of why the Constitution’s framers thought it essential to include the impeachment power,” he added.

Investors are allocating ever greater sums to passive investments including ETFs and index trackers. Regulators have taken note, says David Stevenson. Passive investments are on a roll. In the US both exchange-traded funds (ETFs) and passively managed funds have recorded massive inflows. Both products share the same idea: keep costs low and eliminate the risk of an active fund manager underperforming a benchmark index by just buying the stocks inside an index...But a backlash against passive funds is building. The key issue is regulatory concerns about market power and potentially uncompetitive behaviour... The upshot, Harvard Law’s Einer Elhuage told ETF Insight, is that the Big Three’s dominance “could lead to antitrust liability.”

At 10 a.m. the Senate HELP Committee will vote on Eugene Scalia’s nomination to lead the Labor Department. Scalia, who has been a partner at the international law firm Gibson, Dunn & Crutcher and also previously served as chief legal officer for the Labor Department during the George W. Bush administration, is expected to win the panel’s approval. Republicans hold a 12-11 majority on the HELP committee...Scalia’s nomination won the backing of Cass Sunstein, a Harvard law professor who oversaw the White House Office of Information and Regulatory Affairs during Barack Obama’s first term. “I am aware that in some domains, Scalia has taken positions, in terms of policy and law, in opposition to regulations that many reasonable people strongly support … ” Sunstein wrote in an August letter supporting the nomination. “For Scalia, as for many lawyers, it is easy to take comments or positions out of context, and to give a less-than-favorable picture of what he really thinks, or what he would do in a position of public trust.” He added that Scalia “does not have an ideological straightjacket. He takes issues on their merits.”