Media Mentions

An op-ed by Cass Sunstein: President Donald Trump is not reluctant to accuse people of treason. On Sunday, Trump targeted Representative Adam Schiff, chair of the House Intelligence Committee, proclaiming on Twitter that he wanted the California Democrat “questioned at the highest level for Fraud & Treason.” On Monday, he elaborated, musing that a “fake and terrible statement” by Schiff might just be grounds for his “Arrest for Treason? Trump’s tweets are often over-the-top. But these were particularly heinous because they are inconsistent with a key provision of the U.S. Constitution, and call up the very concerns that motivated its drafting. Treason is the only crime specifically defined in the U.S. Constitution: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

An op-ed by Noah Feldman;  It’s no surprise that a federal judge has held that Harvard University doesn’t discriminate against Asian Americans in its admissions. This case probably ends here: The Supreme Court would be ill-advised to take up this particular case. Yet there will likely be other cases like this one, and a conservative Supreme Court may well take one of those as an opportunity to rule against diversity-based admissions. Evidence of discrimination by Harvard (where I work) was, in the end, extremely weak. The parties introduced competing statistical models, and even the model preferred by the plaintiffs didn’t show much in the way of disparate admissions outcomes. The main troubling finding, that Asian-American applicants were scored slightly lower on a “personal qualities” metric, appears to be mostly explained by high school teacher recommendations, which might well reflect implicit bias – but not discrimination by Harvard.

A collection of dairy farmers who allege anti-competitive conduct by the nation’s largest dairy cooperative will take their case to a jury trial. A U.S. district court judge late last week denied a motion for summary judgment — which would have wrapped the case up without trial — from defendant Dairy Farmers of America (DFA). ...Yet the farmers in this lawsuit argue that DFA’s growing business as a processor has introduced a conflict of interest in how the co-op generates income. DFA owns many of its own processing facilities, which could mean that the less DFA pays for milk, the more money it makes from its products. As Harvard Law School Professor Einer R. Elhauge, who is serving as an expert witness for the plaintiffs in the case, put it in court documents, “Reducing raw milk prices [paid to dairy farmers] directly increases DFA’s profit per unit as a processor.”

It's only natural for Americans wrapping their heads around the idea that Donald Trump might actually get impeached to think back to Richard Nixon. This was the premise of the first season of the wildly popular podcast Slow Burn, the animating thread of so many late-night prognostications—on Twitter, at bars, at dinner with your parents—at the height of Robert Mueller's investigation of Russian interference in the 2016 election. ...Well, for one thing, House Speaker Nancy Pelosi has formally launched an impeachment inquiry, a step Democrats never formally took amid Mueller Mania. And as Noah Feldman, a Harvard legal historian who has closely tracked the various investigations into Trump, explained over the course of two conversations this week, Pelosi’s reasoning was transparent: People can understand the idea of Trump bullying someone over the phone to go after a personal rival more easily than they can shadowy political consultants or dimwitted adult sons requesting the aid of hackers backed by Moscow. Or as Feldman—who said we are in "uncharted ground" at this point—put it, "The report produced by the [whistleblower] does in like four pages what Mueller couldn't in 400," adding, "So instead of the Slow Burn, we just had one big download... of the case to impeach."

The percentage of Americans in favor of impeachment is increasing — quickly. It has gone from a clear minority view to a majority or plurality in recent polling. Part of that progress is directly attributable to President Trump acting more unhinged by the day — dishing out profanity, threatening the whistleblower and accusing House Intelligence Committee Chairman Adam B. Schiff (D-Calif.) of treason. He sounds like a wounded animal howling in pain. But some of the credit goes to Democrats, who have a much better hand to play than they did in the Russia investigation and have learned from experience. ...Constitutional scholar Laurence Tribe agrees. “I think the Intelligence Committee is doing exactly what the situation calls for by treating the refusals by [Attorney General William P.] Barr and [Secretary of State Mike] Pompeo to let people testify as obstruction of Congress plain and simple,” he says. “If the Trump cabinet members or other officials want to go down the path of the third Article of Impeachment against Richard Nixon, that’s a choice the Democratic committee chairs are sensibly leaving to them. The chairs would play into the hands of the stonewalling Trump administration by taking Trump officials to court to seek orders compelling testimony or document production or to enforce subpoenas.” He concludes, “The days for those litigation strategies are now long since behind us.”

Prof. Jack Goldsmith digs into the Jimmy Hoffa case to possibly solve the mystery of the disappearance—and to clear his stepfather’s name.

As the Ukraine controversy continues to unfold, one constitutional law professor has asserted that President Donald Trump is a "threat to national security" and puts the country at risk every day he is in the Oval Office .... The president has slammed the impeachment inquiry as a "Democratic witch hunt." In one tweet, Trump quoted an evangelical pastor who compared removing the president to initiate a "civil war." Harvard Law professor John Coates argued that Trump's tweet itself was actually grounds for impeachment.

A letter to the editor by David Harris: In “Safer roads take a back seat to Beacon Hill drama” (Sept. 30), the Globe Editorial Board claims that lawmakers in “progressive Massachusetts” should be “embarrassed” by efforts to ensure that comprehensive data collection accompany pending hands-free driving legislation. In a state whose Supreme Judicial Court ruled that black men may flee police to avoid the “recurring indignity of being racially profiled,” counseling expedience over transparency and ignoring the established inequity in law enforcement is to have one’s editorial head in the sand.

The Supreme Court’s environmental docket is still in flux just days from the launch of its new term, which begins Oct. 7. ...Harvard Law School professor Richard J. Lazarus said the outcome of the case could have impacts in other contexts, including a set of cases from state and local governments seeking to hold energy companies responsible for the effects of climate change. Rhode Island, and several cities and counties in California, Colorado, Maryland, New York, and Washington state have made claims against fossil fuel companies under their respective state common law systems—not under federal law. If the Supreme Court reads the CERCLA savings clause narrowly and determines that the federal statute trumps the landowners’ state-law arguments, energy companies would have fresh ammunition to argue the Clean Air Act preempts state-level claims involving climate liability. “So we will pay a lot of attention to what the court says on the meaning of the provision here because that’s very much like the language of the Clean Air Act,” Lazarus said during a Sept. 26 Environmental Law Institute event previewing the Supreme Court’s term.

If you want to upend a half-century of legal tradition, you better have a damn-solid argument to justify your move. Especially if it’s a legal move so broad that it could nullify local speed limits. President Donald Trump is attempting a tectonic upheaval of precedent by telling California it can’t set its own rules for the greenhouse gases coming out of cars. The administration’s rationale is so broad, according to one law professor, that it would wipe out a lot more than the state’s ability to set its own standards. It could also outlaw state gas taxes, city speed limits, and various other local rules. If courts agree, the Trump administration’s case would lead to a tremendous shift of power from state and local governments to Washington. ... There’s a lot more legalese to the administration’s argument, but that line from the Energy Policy and Conservation Act is the foundation, said Caitlin McCoy a fellow at Harvard Law School’s Environmental and Energy Law Program. “It’s everything,” McCoy said. “And it’s indicative of the strategy that the Trump administration has employed on environmental issues, looking for limiting principles in the underlying statutes so they can achieve the biggest cuts to authority.”

Constitutional scholar and Harvard Law Professor, Laurence Tribe, explains why the impeachment of President Trump is warranted and the path the House should take in drafting articles of impeachment. He speaks to Bloomberg’s June Grasso.

Jimmy Hoffa, the brilliant but ruthless head of the Teamsters Union, had a taste for corruption and a knack for making powerful enemies, including his frequent business partners, the Mafia, and Attorney General Robert F. Kennedy. After President Nixon commuted his federal prison sentence, Hoffa planned to retake control of the Teamsters, much to the alarm of the mob. Then, one July day in 1975, Hoffa vanished without a trace from a restaurant parking lot outside of Detroit, a mystery that has inspired books, TV shows, movies (the most recent is Martin Scorsese’s film, “The Irishman”), and a raft of conspiracy theories. Jack L. Goldsmith, Henry L. Shattuck Professor of Law at Harvard Law School, was no Hoffa conspiracy buff, but he had good reason to think that Charles “Chuckie” O’Brien, Hoffa’s right-hand man and one of the FBI’s earliest suspects, had been falsely accused of driving Hoffa to his killers. First O’Brien’s alibi, although not airtight, eventually checked out enough that the FBI never charged him. And second, O’Brien is Goldsmith’s stepfather. In a new book, “In Hoffa’s Shadow,” Goldsmith dug through government and court records, FBI wiretap transcripts, and he spoke to dozens of FBI agents, prosecutors, and Hoffa experts to see whether, decades later, he could clear his stepdad’s name — and maybe even figure out what happened to Hoffa. The Gazette recently discussed his new book with Professor Goldsmith.

When Representative Adam B. Schiff was a Harvard Law School student in the 1980s, the campus was bitterly divided. Student protests erupted over apartheid in South Africa, the lack of diversity on the faculty, and the long line of polarizing speakers — including Jerry Falwell, Jesse Jackson, and Phyllis Schlafly — who trooped through campus. Old-guard faculty, meanwhile, were warring with a new crop of professors who wanted students to see the law as part of an oppressive status quo. ... Schiff learned constitutional law from Laurence H. Tribe, a veteran Harvard law professor who also taught Barack Obama. Schiff said that when he and his friends would see Tribe in Harvard Square, “we would literally genuflect.” Tribe eventually hired Schiff to be one of his student research assistants. “He was very similar to what he is like now – extremely brilliant, very well organized, very thoughtful, and cautious,” Tribe recalled this week.

It could also be grounds for impeachment, according to Harvard Law professor John Coates, who responded to the president’s tweet with a little bit of constitutional law. "This tweet is itself an independent basis for impeachment - a sitting president threatening civil war if Congress exercises its constitutionally authorized power." So far, no congressional lawmakers have commented publicly over whether Coates’ legal opinion is a path worth pursuing. But fellow Harvard Law faculty member Laurence Tribe did support the idea in theory ― though he suggested it may not be practical. I agree with @jciv here, though this is far from the strongest ground for impeachment because it’s much too easy to dismiss as typical Trumpian bloviating, not to be taken seriously OR literally.

A president, his congressional opponents, foreign leaders, and the U.S. Supreme Court first tangled over executive privilege toward the end of George Washington’s first term. They are almost certainly headed for a collision again in 2019. ...Impeachment strengthens Congress’s hand in these disputes—just ask Presidents Washington, Andrew Johnson, Tyler, or Polk. Still, Congress isn’t in the clear; the Trump administration will likely continue fighting to preserve its privileges, real and imagined. The Harvard law professor Laurence Tribe told me in an email that “the law and history make clear that a formal impeachment inquiry maximizes the willingness of courts to release essential information requested by congressional committees engaged in that inquiry.”

As Elizabeth Warren's candidacy for president caught fire this summer, so did images of her seemingly endless energy: running on to the stage at campaign events; punching the air when she speaks; working the photo line for hours after rallies. In the evenings, Warren keeps moving, often doing laps around the hotel grounds or pacing in the lobby. But she does it with a different kind of intensity -- this is when she is starting to unwind, talking on the phone with her husband, Bruce Mann. A professor at Harvard Law School specializing in legal history and property law, Mann is unquestionably the quieter half of the couple. Friends, colleagues and campaign aides say Mann has never been one to seek the public spotlight. But as Warren climbs in the polls, there may be no escaping it.

People in President Donald Trump’s orbit are already suggesting they may defy cooperating with House Democrats’ impeachment investigation. Most notably, Rudy Giuliani has claimed he has to “consider” whether to comply with it. On MSNBC’s “All In” Monday, Harvard Law professor Laurence Tribe offered a stark warning to Trump’s team: This isn’t like the previous battles with Democrats in court. This will move fast — and steamroller anyone who gets in the way.

A book review of "The Enigma of Clarence Thomas" by Kenneth Mack : In March 1960, the civil rights movement came to Savannah, Ga., and an 11-year-old Clarence Thomas did his best to join in. At the behest of his grandfather, a quiet but diligent supporter of the local NAACP chapter, Thomas and his brother dutifully sat through protest meetings, even though many in the city’s conservative black Catholic community stayed away. Soon, Thomas was staring down hostile whites while using the newly desegregated public library and refusing to sit in the black balcony in the movie house. As an adult, he became an ardent black nationalist, attended Yale Law School and militantly opposed interracial marriage. Thereafter, Thomas sought out white Republicans as his political patrons, became a conservative and eventually married a white woman (his first wife was black). He strongly endorsed patriarchal protection of black women, but his Supreme Court nomination famously produced Anita Hill’s credible testimony that he had sexually harassed her while serving as her supervisor in the federal government.

An op-ed by Laurence Tribe: There is now powerful evidence that President Trump committed impeachable offenses by soliciting (and all but coercing) Ukraine’s president to interfere with the 2020 presidential election. House Speaker Nancy Pelosi has confirmed that the House will move swiftly to investigate this threat to democracy, national security, and the separation of powers. The first stages of that impeachment inquiry are already underway. It’s therefore important to think ahead about what should happen as the House inquiry unfolds — especially in the House Intelligence and Judiciary committees, chaired respectively by Adam Schiff and Jerrold Nadler. If the House is going to impeach the president, it better have a plan.

An op-ed by Laurence Tribe: There is now powerful evidence that Donald Trump committed impeachable offenses by using his foreign policy and military powers to solicit (and all but coerce) Ukraine’s president to interfere with the 2020 presidential election. Nancy Pelosi, speaker of the House of Representatives, has confirmed that the House will move swiftly to investigate this threat to democracy, national security, and the separation of powers.  The first stages of that impeachment inquiry are already underway. It’s therefore important to think ahead about what should happen as the House inquiry unfolds – especially in the House intelligence and judiciary committees, chaired respectively by Adam Schiff and Jerrold Nadler. If the House is going to impeach the president, it better have a plan. This may seem obvious, but it’s easy to lose sight of the bigger picture. Each passing day brings new revelations about the depth of Trump’s abuses, and the involvement of senior officials in fomenting or concealing them. Trump and his allies have responded by seeking to daze and disorient the public; they apparently hope to gaslight their way past high crimes and misdemeanors. With so many fires being set, attention is focused on the latest breaking news.

In 2015, Greene County’s newly minted elections chief went to a conference where people were talking about voting on the internet.  Shane Schoeller wasn’t interested. Sure, voting via iPhone would be more convenient than trudging to the polling place, waiting in line and then casting a ballot. But he worried about getting hacked and thought there was some value to having a paper record of each vote. ... When cybersecurity expert Bruce Schneier, a fellow with Harvard's Berkman Klein Center for Internet and Society, reviewed the plans, he was pleasantly surprised. “This is pretty fantastic,” he said. “Voter-verifiable ballots and risk-limiting audits are the two things experts have been saying you need. So we’ve got one and the other on a pilot. This is better than everybody else. This is someone who’s taking it seriously.” Schneier warned that Greene County could still face threats: voter registration rolls could be manipulated, for example, meaning registered voters could show up and find themselves removed from the rolls. But he concluded Schoeller was off to a “great start.”