Transfer of power

Scene of the crowd at U.S. Capitol following the swearing in of Joe Biden as president.

Credit: Andrew Harnik – Pool/Getty Images

On January 6, as Congress convened to officially certify results showing that Democrat Joe Biden had won the United States presidential election — with 306 Electoral College votes to 232 for President Donald Trump — pro-Trump supporters stormed the U.S. Capitol, unleashing violence and vandalism, and sending lawmakers into lockdown.

Soon after, there were widespread calls for the president to resign or be removed from office by his cabinet, or by Congress for his failure to protect democracy and carry out the duties of the office. What followed exactly one week later was an unprecedented second impeachment by the House of Representatives of a U.S. president, on the single article of “incitement of insurrection” for Trump’s role in provoking the mob that besieged the seat of American democracy.

Now that Joe Biden has been officially sworn in as the 46th President of the United States, Harvard Law School scholars continue to weigh in on the electoral and constitutional issues that led up to the assault on the Capitol, the events that have followed, and what it all means for the future of democracy in America.

Biden wants to move on after Senate acquits Trump

February 16, 2021

President Joe Biden is hoping to turn the page after the U.S. Senate acquittal of Donald Trump over the deadly storming of the Capitol building, even as Mr. Trump is vowing to stage a political comeback. Mr. Biden declared that the country would learn from the threat to its political system to ensure that such violence never happens again. He is hoping his administration and Congress can now focus on pandemic relief, immigration and his cabinet appointments…Whether Mr. Trump will face criminal charges is unclear. Constitutional scholar Laurence Tribe contended that, despite Mr. Trump’s acquittal, the trial had made a definitive statement about his unprecedented actions as president. “The impeachment permanently establishes a historical record of how this president was probably the most dangerous in American history,” said Prof. Tribe of Harvard Law School. “His astonishing and long-lasting campaign to overturn a fair election and hold onto power by whatever means possible distinguishes him from any other president.”

Continue Reading at The Globe and Mail »

What connects Trump’s two acquittals: The profound danger of the “Dershowitz precedent”

February 16, 2021

Donald Trump, who as president incited a riot in an effort to stay in office despite losing the 2020 election, was acquitted by the U.S. Senate on Saturday, putting an end to his second impeachment trial. He was not acquitted because he was innocent. He was acquitted for one reason: Donald Trump and his supporters have a toxic sense of entitlement, believing that they should never lose an election…Harvard Law colleague Laurence Tribe agreed that Trump’s acquittal in the first impeachment trial paved the way for the misconduct that got him impeached a second time. “The first impeachment led almost inevitably to the second once Trump, whose whole modus operandi is built on lying, cheating, and stopping at nothing to secure power and fame was validated by the Senate’s unfortunate acquittal the first time around,” Tribe told Salon by email.

Continue Reading at Salon »

Noah Feldman: GOP clinging to a bad argument

February 11, 2021

Constitutional law scholar and Harvard Law professor Noah Feldman says Republicans are clinging to the constitutionality argument to avoid convicting Trump.

Continue Reading at CNN »

Trump’s Lawyers Are Helping Advance Impeachment’s Purpose

February 11, 2021

An op-ed by Noah FeldmanThe opening of former President Donald Trump’s impeachment trial highlighted three realities: The breach of the Capitol on Jan. 6 was a horrific episode that both mainstream political parties reject. Trump’s lawyers are woefully unprepared. And enough Republican senators will claim the trial is unconstitutional to assure that Trump won’t be convicted. So, what’s the point of the rest of the trial? The trial still matters because the theater of impeachment has a deadly serious purpose. In fact, Trump’s lawyers have already begun to fulfill one of its central functions: They are admitting, in a way that Trump himself has not, that the Jan. 6 attempt to disrupt the democratic process was a serious threat to democracy itself. Impeachment is designed to color in the red lines on the map of constitutional democracy. The lines have a purpose and a message: Stay inside them, and you may be voted out of office or otherwise held accountable by the voters. Cross them, and the system is supposed to stand up and take extraordinary steps to punish you. If it doesn’t, the system itself is profoundly weakened. Seen for what it is, the impeachment is an object lesson in delineating the fundamental, unbreakable rules of democracy. It offers civic education in the deepest sense to the entire country, and indeed the world.

Continue Reading at Bloomberg »

Impeachment Doesn’t Violate Trump’s First Amendment Rights

February 9, 2021

An op-ed by Noah FeldmanThe extended trial brief filed by Donald Trump’s lawyers advances three defenses: that Trump did not incite the Jan. 6 attack on the Capitol; that the Senate can’t try a president who is no longer in office; and that the First Amendment protects Trump from being impeached for words that, they say, don’t meet the requirements for criminal incitement conviction laid down by the Supreme Court. The factual defense is highly unconvincing, as anyone who watched Trump’s speech on Jan. 6 and saw the attack can attest. The argument that the Senate lacks jurisdiction over a president who is out of office is disproven by history and Senate precedent. The free speech argument is also wrong in a basic sense: The First Amendment prohibits Congress from making any law abridging freedom of speech. But this doesn’t apply in impeachments any more than the Sixth Amendment right to a jury trial would apply to the Senate impeachment trial. Yet the First Amendment defense requires deeper engagement than the other two, if only because it is less absurd. If it did apply to impeachments, the Supreme Court’s incitement jurisprudence contained in the famous 1969 case of Brandenburg v. Ohioprobably would have protected Trump’s speech.

Continue Reading at Bloomberg »

National Town Hall: The Imperative to Convict Donald Trump

February 9, 2021

The World Mental Health Coalition held a National Town Hall, where all panelists agreed it is vitally important to the nation that the Senate convict Donald Trump. As never before in our 231-year history, a president has been impeached for incitement of insurrection. It is imperative the Senate convict former president Donald Trump. Failure to do so would be an unforgivable dereliction of responsibility. Failure to do so would devastate the health of our nation. For these reasons, this extraordinary group of our country’s great legal, psychiatric, and historian minds came together at this moment of historical reckoning. The prestigious panel of speakers included: Laurence Tribe – Constitutional Scholar at the Harvard Law School and one of the country’s most influential Constitutional Law experts.

Continue Reading at World Mental Health Coalition »

Jamie Raskin Leads Democrats in Trump’s Second Impeachment Trial

February 9, 2021

Rep. Jamie Raskin faces an immediate challenge as the top prosecutor in the second impeachment trial of former President Donald Trump: Many of the senators acting as jurors don’t think there should be one. The Maryland Democrat was picked by House Speaker Nancy Pelosi(D., Calif.) to serve as the lead impeachment manager in the Senate trial that starts Tuesday. The 58-year-old former constitutional-law professor will lead eight other Democrats in seeking to persuade the Senate to convict Mr. Trump of inciting an insurrection at the Capitol on Jan. 6…Harvard law professor Laurence Tribe, who taught Mr. Raskin, says he pointed Mrs. Pelosi toward Mr. Raskin’s legal knowledge early on after Mr. Raskin joined the House. “There are a lot of constitutional issues that come up in the House of Representatives, and she wanted to know, who did I know that she could lean on when these issues came up?” Mr. Tribe said in an interview. He named Mr. Raskin, as well as Rep. Adam Schiff (D., Calif.), the lead manager for Mr. Trump’s first trial, as lawmakers on whom it would be good for Mrs. Pelosi to rely.

Continue Reading at Wall Street Journal »

Lawyers Call Trump’s Defense ‘Legally Frivolous’

February 8, 2021

Taking aim at a key plank of the former president’s impeachment defense, the lawyers argued that the constitutional protections do not apply to an impeachment proceeding…Signed by Charles Fried, Martha Minow, Gerald Neuman, and Laurence Tribe.

Continue Reading at New York Times »

Prosecuting Trump is more essential than ever

February 1, 2021

The Senate vote showing 45 Republican senators willing to brush off the impeachment trial makes it more imperative than ever to have a criminal trial on the merits in a setting where evidence can be taken seriously and spurious objections dismissed. Adding to the urgency of a criminal proceeding is former president Donald Trump’s decision to sack most of his legal team, headed by Karl S. “Butch” Bowers, with just a little more than a week before his Senate trial…A criminal trial could provide a severe deterrent for future presidents who attempt to retain power through violence. It is not enough to mouth the empty platitude that the ex-president’s behavior was “unacceptable” if there are no adverse consequences. Without punishment, his failed coup would remain an open invitation to future presidents to try the same sort of power grab. Constitutional scholar Laurence Tribe observes, “Impeachment is about getting rid of officeholders who endanger the republic by abusing their powers, not about punishing them for their crimes. Punishment still must be meted out if the rule of law is to be respected and wrongdoers are to be held accountable.”

Continue Reading at Washington Post »

Trump Impeachment Defense Squeezed by Team Remake on Trial Eve

February 1, 2021

Former President Donald Trump’s last-minute remake of his impeachment defense team leaves little time to prepare for arguments that are scheduled to start next week in the Senate trial over whether he incited the Jan. 6 insurrection at the U.S. Capitol. Trump announced on Sunday night that attorneys David Schoen and Bruce L. Castor Jr. will head his defense, after his previous lawyers led by Butch Bowers of South Carolina withdrew, with Trump’s initial response to the impeachment charge due Tuesday and the trial set to start Feb. 9…Jonathan Turley, a George Washington University professor who spoke on a Republican caucus call last week right before most senators voted that trying a president out of office is unconstitutional, said it’s reasonable for Trump to seek a trial delay to give new attorneys time to prepare if he wants it. But it’s not clear that Democrats would agree to such a request. Senate Democrats already pushed the start of the trial back two weeks to allow President Joe Biden some time to install his cabinet. Harvard University law professor Laurence Tribe said such a move would essentially allow Trump to “run out the clock” by retaining new lawyers. “No competent judge would let a defendant play this kind of endless game and essentially give the defendant control over the timing of the proceeding,” said Tribe, a frequent Trump critic.

Continue Reading at Bloomberg »

Did Trump and His Supporters Commit Treason?

January 29, 2021

An essay by Jeannie Suk GersenFor years, Carlton F. W. Larson, a treason scholar and law professor at the University of California, Davis, has swatted away loose treason accusations by both Donald Trumpand his critics. Though the term is popularly used to describe all kinds of political betrayals, the Constitution defines treason as one of two distinct, specific acts: “levying War” against the United States or “adhering to their Enemies, giving them Aid and Comfort.” Colluding with Russia, a foreign adversary but not an enemy, is not treason, nor is bribing Ukraine to investigate a political rival. Ordering the military to abandon Kurdish allies in Syria, effectively strengthening isis, is not treason, either—though that is getting warmer. During Trump’s Presidency, Larson told me, his colleagues teased him by asking, “Is it treason yet?” He always said no. But the insurrection of January 6th changed his answer, at least with regard to Trump’s followers who attacked the Capitol in an attempt to stop Congress’s certification of the election. “It’s very clear that would have been seen as ‘levying war,’ ” he said. Both of Trump’s impeachments, in 2019 and 2021, were for “high crimes and misdemeanors,” but the Constitution also names treason as an offense for which a President can be impeached. Individuals, including a former President, may also be criminally punished for treason, perhaps the highest offense in our legal system, carrying the possibility of the death penalty. Fearing abuse of treason charges, the Framers gave treason a narrow definition and made it extremely difficult to prove.

Continue Reading at New Yorker »

Impeachment and Deplatforming Aren’t Enough to Move Forward

January 28, 2021

In the weeks following the Capitol attack, lawmakers, technology companies, and journalists have all grappled with the same question: What do we do about this? Congress—at least its Democratic majority—is pushing forward with Impeachment 2.0, as conviction in the Senate would bar the Inciter-in-Chief from ever holding public office. Congressional Democrats are also pushing to censure the “Sedition Caucus,” the Republican lawmakers who continued fanning the flames of insurrection even after the Capitol had been secured. Technology companies, meanwhile, opted for the Great Deplatforming. And newspaper editorial boards in the Sedition Caucus members’ districts have called for resignations. These reactions are appropriate; all responsible parties should be held to account for what happened on January 6. But we miss something critical when we narrow our attention to the worst offenders—the loudest instigators, the cruelest participants, the boldest enablers. Even if every last rioter and politician were brought to justice, the danger would remain. To prevent the next attack, and more broadly to have any chance of achieving even a semblance of unity, we must contend with the underlying conditions that allowed this one to occur…The first and most critical step is to double down on media literacy, and not merely as a toolkit for navigating falsehood…Educators must help students understand why lower strata of the biomass pyramid are so amenable to falsehood. That means interrogating the outsized, decades-long role far-right media have played in shaping the environment, which as a recent Berkman Klein Center report shows, reached a zenith during the 2020 election.

Continue Reading at Wired »

Can a former president be subject to an impeachment trial? The Constitution is murky.

January 28, 2021

The question of whether former president Donald Trump can be convicted at an impeachment trial now that he has left office is likely to be settled by political muscle rather than the Constitution, which is murky on the matter and provides support for those on both sides of the issue, experts said Wednesday. Although many legal scholars take the view that a president can be tried by the Senate even when he is no longer president, they acknowledge there is enough ambiguity in the Constitution for Republicans to embrace as reason not to convict Trump at his trial set to begin Feb. 9…Among those leading the arguments on both sides are legal heavyweights Laurence Tribe, a Harvard Law School scholar, and Luttig, the former judge. The two frequently exchange emails on constitutional issues, most recently about this subject, and express great admiration for each other even when they vigorously disagree. The Senate does not lose its power to hold an impeachment trial just because the official is no longer in office, Tribe said, in part because it has the authority to disqualify the person from holding future office. Although a powerful argument could be made that Congress cannot impeach a private citizen, he said, Trump was impeached by the House while still in office. If an official could only be disqualified while still in office, that person could avoid accountability by resigning just before a final conviction vote in the Senate, he said.

Continue Reading at Washington Post »

Democrats consider one-week impeachment trial, censure resolution after GOP signals likely acquittal of Trump

January 28, 2021

Bracing for the prospect of a likely acquittal, Senate Democrats are eyeing a rapid-fire impeachment trial for former president Donald Trump — as short as one week — while also contemplating alternatives such as censure that could attract more support from Republicans…Sen. Tim Kaine of Virginia said he was likely to file a censure resolution that would serve as an alternative to convicting Trump on the impeachment charge…Kaine is pitching his censure resolution to Republicans as a potentially more politically palatable alternative to convicting Trump and barring him from future office. But he is also making the case to Democrats that his resolution would have much the same effect as a conviction, by condemning the former president and laying the foundation to keep him from returning to the presidency under the terms of the 14th Amendment…Laurence Tribe, a Harvard Law professor, said invoking the 14th Amendment provision is “much more complex than some people assume” and said simply passing a resolution as Kaine is proposing would not be sufficient to bar Trump from office. “I worry about the cop-out of a condemnatory censure, which Senators shouldn’t be led to think gets them off the hook of having to convict the former president under the Article of Impeachment,” he wrote in an email.

Continue Reading at Washington Post »

Fact Check: Can President Trump Issue Secret Pardons?

January 20, 2021

In his final full day in office, President Donald Trump is expected to issue a myriad of presidential pardons. Last week, CNN initially reported that Trump planned to pardon close to 100 people before leaving office. Trump already has issued pardons for his former aides, including former adviser Roger Stone, former campaign manager Paul Manafort and former National Security Adviser Michael Flynn. Some have speculated that Trump will attempt to issue a self-pardon or secret pardons for his family and other aides…However, others believe that pardons were meant to be publicly issued and would not hold up as valid if challenged in a court of law. “I certainly can’t say that they are clearly impermissible, but I can say that I think that there is at least a Constitutional cloud over them,” Harvard Law Professor Laurence Tribe said. For one thing, they would be difficult to authenticate. “There would be no way to prove it was issued on a certain date in an official capacity,” Tribe said. “If invoked at the time an indictment or prosecution is brought, that would open the possibility for a Constitutional test of whether secret pardons are permitted.” Additionally, Tribe said the nature and purpose of pardons implies a public acknowledgment of wrongdoing and forgiveness. “They were supposed to be accompanied with either a confession of guilt or that they implied that the person who accepts the pardon is willing to publicly admit guilt,” Tribe said. “And the fact that there’s no indication in the discussion of the Constitution when the pardon power, which is already pretty sweeping and subject to abuse, could be hidden behind a veil of secrecy, I would argue that it’s validity is up in the air.”

Continue Reading at Newsweek »

Democrats, weighing witnesses, plan to launch impeachment trial by end of week, sources say

January 20, 2021

House Speaker Nancy Pelosi is expected to send the article of impeachment against President Donald Trump to the Senate later this week, sources familiar with the matter tell ABC News — a move that could kick off formal proceedings the next day and opening arguments on the Senate floor the following week. The timing of formal transmission from the House to the Senate is significant, as the Constitution dictates that the trial begins at 1 p.m. the following day. Pushing that procedural step back until after President-elect Joe Biden takes office — back to Thursday or Friday — would also give his administration at least a day or two to gain its footing as the Senate begins the balancing act of putting Trump on trial while starting to take up Biden’s agenda…Some Democrats worry that Trump simply won’t take part in the proceedings and that he’ll adopt a similar posture to his administration’s broad rejection of congressional oversight and subpoenas during his time in office. “I hope he is competently defended,” Laurence Tribe, a Harvard University Law School professor who has advised Democrats on their efforts to impeach Trump, told ABC News. “Otherwise part of what he’ll be able to say in claiming victimization is that he was made a pariah … therefore the verdict was illegitimate — just as the election wasn’t legitimate.” “I don’t think it helps our history for him to be able to elaborate on that martyr story,” Tribe said.

Continue Reading at ABC »

Trump’s final pardons warped presidential powers for his own benefit

January 20, 2021

President Trump’s last-minute pardons betray what the Constitution’s pardon power is all about. While he has not decided to try to pardon himself (at least, not as far as we know), the pardons he issued during his term taken together serve as a microcosm for his presidency. They take a noble part of our Constitution and warp it in the service of Trump’s ego and future personal interests…These final pardons do not arrive shorn of history here. Trump’s prior pardons, like Tuesday’s, largely fall into two buckets. Bucket 1 is friends of Donald Trump — people like Roger Stone, George Papadopoulous, Paul Manafort, Charles Kushner (yes, Jared’s dad) and Michael Flynn. These folks never even bothered formally requesting a pardon; they got one through back channels to the Oval Office. Bucket 2 are rogues who aspire to be in Bucket 1 — people like Dinesh D’Souza and former Maricopa County, Ariz., sheriff Joe Arpaio. The conservative Harvard Law School professor Jack Goldsmith examined all of Trump’s pardons before his final days in office and found a whopping 91 percent of them went to people with personal or political connections to Trump. An outsize number of Trump’s pardons were for white-collar criminals, revealing again Trump’s proclivity to benefit those who look and act like him. For decades, criminal justice had been moving in the direction of greater parity between white-collar and other offenders, only to have Trump come along and reverse the trend.

Continue Reading at Washington Post »

The Inaugural Episode

January 20, 2021

A podcast by Noah Feldman: Presidential historian Douglas Brinkley shares his predictions and warnings for writing historical narratives about the end of the Trump presidency. He also discusses Trump’s decision to not attend the inauguration and how we should apply the 25th Amendment in the 21st century. This is the first installment in a new Deep Background series focusing on power in different fields and forms.

Continue Reading at Stitcher »

Account/Ability

January 19, 2021

Juliette Kayyem, Anne Milgram, and Melissa Murray are joined by Martha Minow, Harvard University Professor, author, and renowned scholar on how divided nations unify, during one of the most historic and tumultuous weeks in US history, to discuss Trump’s second impeachment, the storming of the U.S. Capitol, and how we begin to pick up the pieces of our fractured country.

Continue Reading at Avast »

Is it too late to impeach and convict Donald Trump?

January 19, 2021

The Senate vote on whether to remove President Donald Trump from office will not happen until he is no longer in office. Senate Majority Leader Mitch McConnell made that reality plain soon after the House voted to impeach Trump on Wednesday. “Even if the Senate process were to begin this week and move promptly, no final verdict would be reached until after President Trump had left office,” he said. “This is not a decision I am making; it is a fact.” Which raises two obvious questions: 1) Can you impeach (and remove) a former president from office? 2) What, exactly, is the point of doing it — even if you can? The first question is, interestingly, something on which there is considerable debate among Constitutional scholars…Laurence Tribe, a professor emeritus at Harvard Law School, wrote this Wednesday in response to Luttig’s argument: “To be sure, a former officer may no longer be ‘removed’ even upon conviction by a two-thirds vote. But that has no bearing on whether such an ex-officer may be barred permanently from office upon being convicted. That separate judgment would require no more than a simple majority vote. Concluding otherwise would all but erase the disqualification power from the Constitution’s text: If an impeachable officer became immune from trial and conviction upon leaving office, any official seeing conviction as imminent could easily remove the prospect of disqualification simply by resigning moments before the Senate’s anticipated verdict.”

Continue Reading at CNN »

The First Amendment doesn’t protect Trump’s incitement

January 19, 2021

An op-ed by Einer ElhaugePresident Trump’s defenders are claiming that his incitement of the attack on the Capitol is protected by the First Amendment under the venerable case of Brandenburg v. Ohio, and that he shouldn’t have been impeached for it or that he should be acquitted. But this claim is wrong. Even if Brandenburg applied to impeachments, which are different from criminal cases, the facts of that case are easily distinguished, and Trump’s conduct clearly meets the legal standard that Brandenburg set. The case dates to 1964. At a Ku Klux Klan rally on June 18, after a film that contained some hateful speech about Black and Jewish people, the defendant gave a short speech at a farm in Hamilton, Ohio. The only arguably inciting part of the defendant’s speech was that “if our President, our Congress, our Supreme Court, continues to suppress the White, Caucasian race, it’s possible that there might have to be some revengeance taken.” In other words, the speaker simply said that if suppression continued for a sufficiently long period of time, his organization might have to take vengeance of some unspecified form at some unspecified future time. The defendant in Brandenburg also said that the KKK planned to march on Congress on July 4, but that was over two weeks later, and his speech didn’t indicate that he thought the suppression of White people would have continued for long enough by then that the July 4 march would be the right occasion for any possible revenge.

Continue Reading at Washington Post »

The U.S. Presidency: Looking Forward

January 15, 2021

The latest episode of Reasonably Speaking brings together a panel of top scholars in U.S. presidency and political science to discuss the future of the U.S. presidency Post–Trump. In “The U.S. Presidency: Looking Forward,” ALI President David F. Leviis joined by David M. Kennedy and Terry M. Moe of Stanford University, and Jack Landman Goldsmith and Daphna Renan of Harvard Law School for a timely conversation on the most important office in our government.

Continue Reading at American Law Institute »

Impeachment Defends the Constitution and Bill of Rights

January 14, 2021

An op-ed by Jonathan ZittrainThe majority staff of the Judiciary Committee of the House of Representatives has issued a report to accompany the resolution for today’s second impeachment of President Donald Trump for incitement of insurrection. Earlier this week, my former colleague Alan Dershowitz argued in Newsweek that First Amendment protections against a criminal conviction for incitement to riot make impeachment over the president’s role in last week’s events at the Capitol unconstitutional. I want to explain why this claim carries no weight. Dershowitz wrote that Trump’s speech last week, “disturbing as it may have been—is within the core protection of political speech.” He pointed to Brandenburg v. Ohio, where the Supreme Court ruled that the government cannot prohibit speech unless it is specifically “directed to inciting or producing imminent lawless action” and “is likely to incite or produce such action.” (In Brandenburg, the Court found that a short speech by a Ku Klux Klan leader at an Ohio farm saying that there might have to be “some revengeance taken” and referencing a march to take place later in Washington, D.C. was protected by the First Amendment from a state charge of “criminal syndicalism” because any lawless action incited was not imminent.) There are a number of ways that the president’s speech, in which he told his supporters that “if you don’t fight like hell you’re not going to have a country anymore” and to march to Congress at that very moment in the hopes of disrupting the Electoral Vote count, differs from the facts of Brandenburg. But more importantly, the question at the moment isn’t whether the president could be charged with incitement to violence in criminal court. It’s whether the president can be impeached for his actions, both arising from the speech and from his actions (and inactions) as the crowd stormed the Capitol and he was implored to help.

Continue Reading at Just Security »

The Lawfare Podcast: Jonathan Zittrain on the Great Deplatforming

January 14, 2021

Yesterday, January 13, the House of Representatives impeached President Trump a second time for encouraging the violent riot in the Capitol Building on January 6. And yet, the impeachment is probably less of a crushing blow to the president than something else that’s happened in recent days: the loss of his Twitter account. After a few very eventful weeks, Lawfare’s Arbiters of Truth series on disinformation is back. Evelyn Douek and Quinta Jurecic spoke with Jonathan Zittrain, the George Bemis Professor of International Law at Harvard Law School, about the decision by Twitter, Facebook and a whole host of other platforms to ban the president in the wake of the Capitol riot. Jonathan, Evelyn and Quinta take a step back and situate what’s happening within the broader story of internet governance. They talked about how to understand the bans in the context of the internet’s now not-so-brief history, how platforms make these decisions and, of course, Section 230 of the Communications Decency Act. Listeners might also be interested in Zittrain’s February 2020 Tanner Lecture, “Between Suffocation and Abdication: Three Eras of Governing Digital Platforms,” which touches on some of the same ideas discussed in the podcast.

Continue Reading at Lawfare »

Donald Trump impeached again – now what?

January 14, 2021

Jonathan Freedland talks to Noah Feldman, who testified for the Democrats in the president’s first impeachment hearing. They discuss the various consequences for Trump after the House of Representatives voted to impeach him for the second time. On Wednesday, members from both sides of the House of Representatives voted to impeach Donald Trump for allegedly inciting a violent insurrection against the government of the United States. This was a historic moment, as Trump became the first US president to be impeached twice. So what happens now? With less than a week to go before Joe Biden’s inauguration, will there be a trial in the Senate? Will Trump be barred from running for office again? Will this create an even bigger wedge between Republicans and Democrats? Freedland speaks to one of the commanding voices on constitutional law, Noah Feldman, who teaches law at Harvard University and hosts the Deep Background podcast. He was the first witness called for the Democrats in the first Trump impeachment hearing. Together, they run through the various scenarios that could now play out.

Continue Reading at The Guardian »

Armed ‘militias’ are illegal. Will authorities finally crack down if they show up at state capitals next week?

January 14, 2021

As armed supporters of President Donald Trump prepare to converge on state capitals and Washington, D.C., this weekend and Inauguration Day, some legal experts are calling on authorities to enforce longstanding laws outlawing organized groups that act as citizen-run, unauthorized militias. Federal law, constitutions in every state, and criminal statutes in 29 states outlaw groups that engage in activities reserved for state agencies, including acting as law enforcement, training and drilling together, engaging in crowd control and making shows of force as armed groups at public gatherings. Yet hundreds of armed groups, organized under the insignia of the Oath Keepers, the Three Percenters and others, do exactly that…Two constitutional law scholars said these laws should survive challenges to their constitutionality. “Properly interpreted and applied, the state laws banning organized, private militias would pass constitutional muster,” Laurence Tribe, a professor at Harvard Law School and co-founder of the American Constitution Society, wrote in an email. “Although these laws could be clumsily deployed in ways that would raise constitutional problems,” he wrote, “that hardly means they shouldn’t be part of the arsenal that law enforcement uses to prevent the forthcoming protests from turning into deadly riots.”

Continue Reading at USA Today »

Harvard Law professor explains why Trump can still be impeached after leaving office

January 14, 2021

On Wednesday’s edition of CNN’s “OutFront,” Harvard Law professor Laurence Tribe explained why President Donald Trump’s imminent departure from office won’t save him from the Senate impeachment trial for inciting violence at the Capitol. “You’ve just written an op-ed in The Washington Post about this,” said anchor Erin Burnett. “You say President Trump can be tried and convicted after leaving office. Why? Explain.” “Well, basically, the Constitution’s text makes it clear that as long as you are an officer when you commit an impeachable offense, the ability to convict you and prevent you from repeating your dangerous activities doesn’t cease,” said Tribe. “If it were written otherwise, it would be crazy. The Secretary of War in 1876 thought he could game the system by resigning his office minutes before the impeachment was returned. But then the Senate, by a vote of 37-29 held understandably, you can’t get away with it that way. It’s not like when someone says you’re fired, so you can’t fire me, I’ve already resigned.” “The fact is that the Constitution was designed so that the most dangerous characters couldn’t escape the important remedy of being taken out of public office in the future simply by resigning. That won’t work,” continued Tribe.

Continue Reading at Raw Story »

‘The Framers Understood That Such A President Had To Be Removed,’ Harvard Law Prof. Says

January 14, 2021

For the second time, President Donald Trump has been impeached. It will now be up to the Senate to convict or acquit Trump, but a Senate vote probably won’t happen until after Jan. 20, when President-elect Joe Biden takes office. Harvard law professor and constitutional scholar Noah Feldman discussed Trump’s second impeachment with GBH All Things Considered host Arun Rath.

Continue Reading at WGBH »

Trump Will Try to Make His Impeachment About Free Speech

January 14, 2021

An op-ed by Noah FeldmanWith the House of Representatives having voted to impeach President Donald Trump for incitement to insurrection, it’s time to start contemplating what Trump’s defense will be in a Senate trial. The answer can be summed up briefly: Trump’s lawyers will argue that Trump did not commit a crime of incitement and that his words were protected by the First Amendment. But wait, you may say, if you can remember Trump’s 2020 Senate trial 12 months ago (so much has happened since then that I barely can — and I testified during the House Judiciary Committee proceedings): Impeachment is for high crimes and misdemeanors under the Constitution. That doesn’t require conviction of a federal crime. That means the First Amendment as interpreted by the Supreme Court isn’t relevant and shouldn’t protect Trump. The framers kept the “high crimes and misdemeanors” language intentionally broad so that presidents could be held accountable for a wide array of abuses of power, including interfering with a free and fair election. Yet, still thinking back to the last impeachment, you will also recall that Trump’s lawyers — and some of his Senate defenders — never conceded that basic legal fact. In addition to arguing that Trump had done nothing wrong in his “perfect” phone call with the president of Ukraine, Trump’s defenders also maintained that Trump could not be impeached because he had not committed a federal crime. They insisted, despite the historical and logical evidence, that high crimes and misdemeanors under the Constitution need to be statutory federal crimes.

Continue Reading at Bloomberg »

The Senate can constitutionally hold an impeachment trial after Trump leaves office

January 14, 2021

An op-ed by Laurence TribeThe Senate appears unlikely to take up the article of impeachmentagainst President Trump before his term ends next Wednesday. That does not require the end of proceedings against him. The Senate retains the constitutional authority — indeed, the constitutional duty — to conduct an impeachment trial against the soon-to-be-former president. The Constitution, Article II, Section 4, provides that the president and other civil officers “shall be removed from Office” following impeachment and conviction by the Senate. Some scholars, most prominently former federal appeals court judge J. Michael Luttig, have argued that because Trump’s term will have already ended and he, by definition, cannot be removed, the impeachment power no longer applies. With all respect, I disagree. The Constitution references impeachment in six places but nowhere answers that precise question. Article I, Section 3 comes closest to delineating the contours of the Impeachment Power, instructing that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” These “judgments” — removal and disqualification — are analytically distinct and linguistically divisible.

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Trump impeached again – this time for inciting Capitol insurrection

January 14, 2021

U.S. President Donald Trump has been impeached an unprecedented second time, on this occasion charged with inciting last week’s deadly attack on the Capitol building as he sought to overturn his re-election defeat. The House of Representatives passed a single article of impeachment, “incitement of insurrection,” on Wednesday, with 10 Republicans breaking with the President to join all Democrats in voting for the measure. While Mr. Trump has just under a week left in his term, legislators are hoping to bar him from ever holding federal office in the future. He will face trial in the Senate, which requires a two-thirds vote to convict…Laurence Tribe, a constitutional law expert at Harvard University, said Congress would have to create a procedure for finding that Mr. Trump had taken part in “insurrection or rebellion” against the country. “To bar Trump from holding office again if the Senate doesn’t convict him, we would need further legislation,” he wrote in an e-mail.

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Trump Speech Not Protected From Riot Charges: Harvard’s Tribe

January 13, 2021

Harvard Constitutional Law Professor Laurence Tribe discusses whether a 1969 U.S. Supreme Court ruling would shield President Donald Trump from prosecution for inciting last week’s Capitol riot. He speaks with Bloomberg’s David Westin on “Balance of Power.”

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Trump and the Capitol Mob: The Science of Unleashing

January 13, 2021

An op-ed by Cass SunsteinJan. 6, 2021 is a day that should live in infamy — a day on which the fundamental institutions of the U.S. were suddenly and deliberately attacked. It will take a long time to understand fully why political passion crossed the line into an insurrection at the U.S. Capitol, but social science research illuminates part of the picture. Long-standing feelings of rage, humiliation, racism and hatred did not explode spontaneously. They were fueled and unleashed, above all by President Donald Trump. That’s what turned those feelings into action. The fundamental idea, brilliantly elaborated by the Duke University economist Timur Kuran, involves “preference falsification.” Kuran’s starting point is that for better or for worse, people’s desires, beliefs and values are often silenced by prevailing social norms. If you despise immigrants or hate Jews, you might keep your thoughts to yourself because you think that other people think differently — and perhaps would hate you if they knew what you think. Kuran’s claim is that when a lot of people silence themselves, the conditions are ripe for some kind of explosion. But precisely because of the self-silencing, it’s impossible to predict how, when or whether the explosion will actually occur.

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Republicans meet violent insurrection with calls for unity instead of punishment for Trump

January 13, 2021

As House Democrats speed toward impeaching President Trump for a second time, numerous Republicans declared that holding the commander in chief accountable for inciting a violent assault on Congress would further divide the nation and urged their colleagues to turn the page for the sake of unity and healing…Republicans’ eagerness to sprint past an event without precedent in American history — which left five people dead, including a Capitol Police officer killed by an angry mob — marks the culmination of more than four years of GOP officials taking cover under platitudes in place of principled action…Laurence Tribe, a constitutional legal scholar at Harvard, said it’s dangerous to move past last week’s violent siege without action. He supports the move to impeach. “If he can’t be convicted on the basis of what we have now, and if the idea of appeasement and peace sort of prevails, then we have effectively removed the impeachment clause from the Constitution. It will be gone. It will be a dead letter,” said Tribe, who has advised Biden for decades.

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Laurence Tribe says Trump should be impeached again — even if a Senate conviction is unlikely

January 12, 2021

Laurence Tribe, a Harvard constitutional law professor, also discusses his former student Ted Cruz and explains why the push to use Section 3 of the 14th Amendment against Trump is an inadequate response to the violent insurrection he inspired.

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Will Trump Face Accountability During Final Days In Office?

January 12, 2021

House Democrats filed an article of impeachment against President Donald Trump for the second time Monday, with a promise to move forward with the process if Vice President Mike Pence does not invoke the 25th Amendment by Wednesday. Jeannie Suk Gersen of Harvard Law School and Ben Clements, former chief legal counsel to Gov. Deval Patrick and chair of Free Speech for People, joined Jim Braude to discuss.

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What’s Next After The Capitol Insurrection?

January 12, 2021

Law enforcement is tracking down and arresting extremists who participated in last week’s violence at the U.S. Capitol. Congress is bringing new articles of impeachment to remove Trump from office, with a fight over them again breaking largely down party lines. With all that we’ve seen transpire over the last week, what’s next after the attack? We take listener calls with retired federal judge Nancy Gertner, a senior lecturer at Harvard Law School, and WBUR’s Legal Analyst; and WBUR senior political reporter Anthony Brooks.

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Does Trump Face Legal Jeopardy for His Incendiary Speech Before the Riot?

January 12, 2021

Scrutiny increased on Monday on how President Trump sought to foment anger at a rally of his supporters and then dispatched them to the Capitol shortly before they rioted last week, as House Democrats on Monday unveiled an article of impeachment accusing him of inciting an insurrection. Here is an overview of some of the broader forms of legal jeopardy the president may be facing…Jack Goldsmith, a Harvard Law professor, flagged another potential hurdle for prosecutors: The Justice Department’s Office of Legal Counsel — including Mr. Barr, when he ran it in 1989 — has written several legal policy memos holding that laws sometimes do not apply to a president engaged in official acts unless Congress has made a “clear statement” that it intended that. That legal policy raises difficult questions for Justice Department prosecutors — and, potentially, the courts — including whether Mr. Trump’s speech to supporters about a political issue counts as an official act. “The whole thing is, in truth, clouded with uncertainty,” Mr. Goldsmith said.

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Democrats cite rarely used part of 14th Amendment in new impeachment article

January 12, 2021

In search of historical guidance and legal tools to respond to the violent siege of the U.S. Capitol last week, members of Congress and legal scholars alike are re-examining a little known section of a Reconstruction-era constitutional amendment. Section 3 of the 14th Amendment, in theory, gives Congress the authority to bar public officials, who specifically took an oath of allegiance to the U.S. Constitution, from holding office if they “engaged in insurrection or rebellion” against the Constitution and therefore broke their oath. But the provision has rarely been used or tested, and so scholars are unsure about how exactly Congress could exercise authority under this provision and to what end today…Michael Klarman, constitutional law scholar at Harvard Law School, though told ABC News in email that he believes that applying Section 3 of the 14th Amendment to disqualify from office a member who questioned the legitimacy of the election, based on the events from last week was “a real stretch.” He added that “insurrection” and “rebellion” are “legal terms with established meaning. … I just don’t think Wednesday’s event would qualify.” “While (Sens.) Hawley and Cruz are despicable, and I have signed the petition calling for their disbarment, it seems a huge stretch to me to describe what they did (Wednesday) as ‘insurrection or rebellion,'” Klarman wrote.

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Fact-checking claims about the Insurrection Act, martial law after Capitol riot

January 12, 2021

Social media users are spreading a variety of claims that President Donald Trump will either impose martial law or invoke the Insurrection Act to prevent Joe Biden from being inaugurated on Jan. 20. The Insurrection Act is a federal law that empowers the president to deploy the military to suppress certain situations including civil disorder, insurrection or rebellion. The act has been used to send the armed forces to quell civil disturbances a number of times during U.S. history, according to the Congressional Research Service…Besides Trump alluding to invoking the Insurrection Act at the height of the protests surrounding the death of George Floyd, he has not made any indication that he’s considering invoking the Insurrection Act or any variation of martial law going forward. Some D.C. officials were worried that Trump could invoke the act to seize control of the city’s police department the day of the Capitol riot, but that didn’t happen. Under Article II of the Constitution, the president has no inherent authority to declare martial law except under the extreme circumstances of a rebellion or foreign invasion, said Noah Feldman, a professor at Harvard Law School. “Losing an election doesn’t count as a basis for invoking this power,” Feldman added.

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Trump’s 2024 Hopes Just Crashed Into the 14th Amendment

January 12, 2021

An op-ed by Noah FeldmanDonald Trump might already be ineligible to serve as president of the United States in the future. That’s true even without an impeachment process that ends with a formal ban from future public office. The relevant constitutional provision is Section 3 of the 14th Amendment, enacted in the aftermath of the Civil War and mentioned in the article of impeachment proposed before the House today. The provision bars a person from holding any office “under the United States” if the person has sworn an oath of allegiance to the Constitution and then “engaged in insurrection or rebellion” against the government or “given aid to the enemies” of the U.S. Does this provision to apply to Trump? The first part certainly does: Trump took an oath to uphold the Constitution when he became president. The trickier question is the second part: Has Trump’s conduct amounted to insurrection? You can be sure that, if Trump runs for office in the future, someone will go to court charging that he is ineligible to become president because of his conduct leading up to, on and following Jan. 6, 2021. Because this is a constitutional question, the courts will have to adjudicate it. The first question is whether the attack on the Capitol was an insurrection against the government of the United States. In vernacular terms, it certainly was.

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Trump Can’t Pardon Himself

January 12, 2021

An op-ed by Cass SunsteinPresident Donald Trump is reportedly considering issuing himself a pardon, perhaps on his last day in office. Is he really allowed to do that? The best answer is simple: No. Begin with the Constitution’s text, which states that the president “shall have the power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” You might be tempted to read those words, as some specialists do, to mean that the president’s pardon power is unlimited, with the sole exception of impeachment. If that’s the right interpretation, there would be nothing wrong with self-pardons. But there is an immediate qualification: Any president would be impeachable if he used the pardon power in certain ways. Suppose, for example, that a president pardoned everyone who committed crimes at his behest and on his behalf. That would be an impeachable offense. This conclusion emerges clearly from the Virginia ratification debates of 1787, where George Mason objected to the apparent breadth of the pardon power, contending that it was a fatal defect in the proposed constitution. Mason urged that the president “ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself.”

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Can Trump Pardon Himself?

January 11, 2021

With pressure mounting from all sides, President Trump is reportedly telling aides — once again — that he wants to pardon himself…Harvard Law professor Jack Goldsmith has examined all of Trump’s pardons and sentence commutations. “We determined that at least 85 of the 94 have some personal or political connection to Trump and were self-serving in that way,” he says. Goldsmith, who served as head of the Office of Legal Counsel in the George W. Bush Justice Department, notes that pardon controversies are hardly unique. What’s new is the “massive extent” to which Trump has circumvented the Justice Department office charged with processing pardon applications. “Trump loves to exercise the hard powers of the office of the presidency and he especially loves to do so if he thinks there’s something in it for him personally and … if he thinks it will make the political elites’ heads explode,” he says…Goldsmith notes that the incoming Biden administration is already facing a lot of pressure to investigate and potentially prosecute Trump for some of his actions, and that while President-elect Joe Biden has not previously indicated any great enthusiasm for that idea, Goldsmith says that “if Trump pardons himself, it’s going to make it more likely that they will go forward.” The Justice Department, he says, “is not going to want to acquiesce in what they think is an unconstitutional assertion of the pardon power.”

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The Case for Removing Donald Trump

January 11, 2021

An essay by Jeannie Suk GersenOne day after a mob incited by Donald Trump stormed and ransacked the Capitol, disrupting Congress’s certification of election results, Chuck Schumer, the soon-to-be Senate Majority Leader, and Nancy Pelosi, the Speaker of the House, said the President should be removed from office. Both proposed the Twenty-fifth Amendment to the Constitution, with Schumer describing it as the most effective legal means of removal. Under Section 4 of the amendment, which has been a subject of discussion throughout Trump’s Presidency, if a majority of the Cabinet were to join with Vice-President Mike Pence to declare to Congress that Trump is “unable to discharge the powers and duties of his office,” Pence would “immediately assume the powers and duties of the office as Acting President.” As Schumer said, “it can be done today.” The Cabinet was said to be considering it, but Pence reportedly opposes it. On Friday, Pelosi announced that the House would begin impeachment proceedings if Trump does not immediately resign. On Monday, at least a hundred and seventy House Democrats plan to introduce an article of impeachment charging Trump with “willfully inciting violence against the government of the United States.” There is little doubt that Trump did incite a mob to attack the Capitol in order to interfere with Congress’s performance of its constitutional duty in our democracy. On Wednesday, he gathered a crowd of thousands of supporters, fomented anger at an election that he falsely said had been stolen, and urged them to “walk down to the Capitol” and “fight much harder.”

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Not Convicted or Indicted? Trump Can Pardon You Anyway

January 11, 2021

An op-ed by Cass SunsteinIt’s been widely reported that President Donald Trump is considering granting a batch of pardons, possibly on his last day in office. Some of the people named as likely beneficiaries have not been convicted or even indicted for any crime. That raises a question: Does the president have the power to issue a preemptive pardon, one that would protect someone from prosecution in the future? Really? The answer, given by the Supreme Court in 1866, is yes. In the 1860s, Augustus Hill Garland was a lawyer in Little Rock, Arkansas, who strongly sympathized with the Confederacy. From 1861 until the end of the Civil War, he represented his state in the Confederate Congress. That exposed Garland to a future treason charge. In July 1865, President Andrew Johnson pardoned him, “for all offences by him committed, arising from participation, direct or implied,” in the rebellion against the U.S., with the proviso that the pardon would “be void and of no effect if the said A. H. Garland shall hereafter at any time acquire any property whatever in slaves, or make use of slave labor.” The Supreme Court held that the pardon was legitimate. Speaking broadly, it said that the Constitution “intended to, and in fact did, clothe the President with the power to pardon all offences, and thereby to wash away the legal stain and extinguish all the legal consequences of treason — all penalties, all punishments, and everything in the nature of punishment.”

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I Testified at Trump’s Last Impeachment. Impeach Him Again.

January 11, 2021

An op-ed by Noah FeldmanIt’s perfectly logical to call for the immediate impeachment and removal of President Donald Trump for inciting a mob to storm the U.S. Capitol and interrupt the process of declaring Joe Biden president. Attempting to interfere with the democratic process counts as a high crime and misdemeanor under the Constitution. But I would like to remind us all that the time to remove Trump was a year ago, when he actually was impeached — precisely for attempting to corrupt the 2020 election. What Trump did on January 6, 2021, was no more impeachable than what he did on July 25, 2019, when he phoned Ukraine’s Volodymyr Zelensky and asked him to discredit Biden. Which distortion of democracy is worse? Trying to steal an election secretly, in advance, or publicly inciting the interruption of a largely ceremonial process after the fact? The former could have changed the outcome of the 2020 vote. The latter had essentially zero chance of blocking Biden’s ascent. The Ukraine call was a serious and corrupt effort to misuse the office of the presidency to retain power. It was election cheating, no more and no less. Trump’s highly public post-election conduct, including yesterday’s incitement, has been repugnant and damaging, but it has not been a realistic plan to abuse the presidency to remain in power.

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Yes, Congress should impeach Trump before he leaves office

January 11, 2021

An op-ed by Laurence H. Tribe and Joshua Matz: As the House of Representatives takes the extraordinary step of considering a second impeachment of President Trump during his final days in office, two questions loom large: Did Trump commit impeachable offenses? And does it make sense to impeach even though the Senate may not try and convict him before he leaves office on Jan. 20? The answer to both questions is yes. Trump spent months convincing his followers, without factual basis, that they were victims of a massive electoral fraud. He summoned them to D.C. for a “wild” protest as Congress met to certify the election results. He then whipped them into a frenzy and aimed the angry horde straight at the Capitol. When Trump’s mob breached the building, he inexcusably dawdled in deploying force to quell the riot. And when he finally released a video statement, it only made matters worse. Simply put, Trump knew perfectly well that his rally on Wednesday was a powder keg of his own creation. But he gleefully lit a match and tossed it at Congress. The article of impeachment circulated Friday by Democratic Reps. David N. Cicilline (R.I.), Jamie B. Raskin (Md.) and Ted Lieu (Calif.) accurately captures the gravity of Trump’s misconduct. It situates his action within his “prior efforts to subvert and obstruct the certification of the results of the 2020 presidential election.” And it recognizes the terrible damage that Trump, through his incitement, inflicted on the nation as a whole.

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Trump Is Banned. Who Is Next?

January 11, 2021

An op-ed by Evelyn Douek: It happened slowly, and then all at once. After years of sparring, the internet’s most powerful moderators deplatformed their most famous troll: the president of the United States. Facebook has blocked Donald Trump’s account indefinitely. So have Snapchat, Twitch, Shopify; even one of the Trump campaign’s email providers has cut it off. At the time of writing, Trump still has his YouTube channel, but the company says it is accelerating its enforcement action. It was a Friday Night Massacre of platform bans. But one ban outstrips all others in its symbolism: @realDonaldTrump has been suspended from Twitter, the platform that has defined this president more than any other. The story of the past week in content moderation can be told in two ways. The first is the formalistic myth that platforms want us to believe. In this telling, platforms have policies and principles they hew to; their decisions based on them are neutral, carefully considered evaluations of the rules and the facts. The second is the realist take, in which the posts and tweets of platform executives and spokespeople can be seen as fig leaves, trying to hide that these were, at bottom, arbitrary and suddenly convenient decisions made possible by a changed political landscape and new business imperatives.

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America can impeach Trump, even after Jan. 20

January 11, 2021

An op-ed by Oliver Roberts ‘21After the storming of the Capitol on Jan. 6, calls for the impeachment and removal of President Trump have reverberated throughout the Democratic Party, including from House Speaker Nancy Pelosi and incoming Senate Majority Leader Chuck Schumer. But with less than two weeks left in Trump’s term, many pundits and politicians have acknowledged that impeachment proceedings may not be logistically or politically feasible. Believe it or not, Trump’s exit from office on Jan. 20 is not the end of the impeachment conversation. Post-presidency impeachment may not only constitutionally be possible, but politically feasible given the bipartisan support for Trump’s impeachment today. In our nation’s history, the question of whether a former president can be impeached and disqualified from holding future office has been disputed. But it’s a question that will inevitably come to a head in the coming weeks, with Trump’s clear plans for a 2024 run. On the topic of impeaching a former president, the Constitution does not provide a clear answer, and legal scholars have differing opinions. Article II, Section 4 of the Constitution states, “The President…shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Relatedly, Article I, Section 3 states, “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit…”

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Why Presidential Pardons Are Normal, Trump’s Less So

January 8, 2021

The U.S. president has vast constitutional power to grant clemency in the form of pardons and commutations. The process is often tinged with politics. George H.W. Bush pardoned six men involved in the Iran-Contra scandal, while Bill Clinton pardoned Marc Rich, a Democratic Party donor who had fled to Switzerland after being accused of tax crimes. But clemency under Donald Trump has been unusual in multiple respects, including how recipients are evaluated and how announcements are timed. There’s even renewed speculation that Trump, before leaving office on Jan. 20, might try to preemptively pardon himself as a shield against any future prosecution for alleged federal crimes…Of Trump’s first 94 pardons and commutations, only seven appeared to have come on recommendation of the pardon attorney, and at least 84 were granted to people with “a personal or political connection to the president,” according to a review led by Harvard Law School Professor Jack Goldsmith. Trump’s first pardon, for instance, was given to Joe Arpaio, the former Maricopa County, Arizona, sheriff who had been found guilty a year prior of criminal contempt of court. Arpaio hadn’t applied for the pardon.

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‘Sedition’: A Complicated History

January 8, 2021

As a shocked nation reacted to the storming of the United States Capitol on Wednesday by a pro-Trump mob trying to disrupt the certification of the presidential election, one word describing the chaos quickly rose to the top. “It borders on sedition,” President-elect Joseph R. Biden Jr. said in his remarks to the nation. “This is sedition,” the National Association of Manufacturers said in a statement that accused President Trump of having “incited violence in an attempt to retain power.” … The Alien and Sedition Acts, passed by the Adams administration in 1798, were intended to clamp down on the political enemies of the Federalists, Adams’s party, and weaken Thomas Jefferson’s Democratic-Republicans. The broader backdrop was a brewing conflict with post-Revolutionary France, and Federalists’ belief that Democratic-Republican criticism of their policies undermined national stability, and their fear that foreigners and immigrants, who leaned Democratic-Republican, would support France in a war. Under the law, journalists who criticized the administration were thrown in jail, immigrant voting rights were tightened and foreigners deemed “dangerous to the peace and safety of the United States” could be deported. “That took place in the context of an infant republic that was unsure of its place in the world,” Annette Gordon-Reed, a professor of history and law at Harvard, said. “This was all new: How do you protest? What effect does protesting have on government?” But “we’ve had almost 250 years now,” she continued. “We know the mechanisms for legitimate criticism, and they do not involve sabotaging the operations of government when those operations have been arrived at by lawful means.”

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Sedition, Impeachment And The 25th Amendment: Legal Questions Raised After Capitol Riots

January 8, 2021

The insurrection caused by pro-Trump extremists at the Capitol on Wednesday has raised a litany of legal and constitutional questions. Democratic Rep. Ilhan Omar of Minnesota announced she was drafting articles of impeachment against President Trump. Omar blamed the president for Wednesday’s chaos, which stalled Congress’ certification of the Electoral College vote. Another term that arose in the aftermath of the insurrection was sedition, a technical term defined as conspiring to overthrow the U.S. government, hinder the execution of laws or steal U.S. property, all by using force, says Noah Feldman, professor of law at Harvard University. Feldman says parts of the definition can be twisted to fit what unfolded on Wednesday, but a protester who enters a federal building or breaks a barrier will likely not be charged with sedition, a law that’s “rarely implemented.” For someone from the Capitol mob to be charged with sedition, their intent to overthrow the U.S. government has to be obvious, he says. Feldman says the mob, by the looks of it, was trying to interfere with government operations, which isn’t the same as an attempt to overthrow. “There is a law of the United States that says how we should count the ballots, and the protesters were trying to interfere with that,” he says. “So in that sense, they were opposing the authority of the United States. And the question then is, were they doing that by force?”

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Yes, Trump’s Conduct Is Impeachable. What Else Is New?

January 8, 2021

An op-ed by Noah FeldmanIt’s perfectly logical to call for the immediate impeachment and removal of President Donald Trump for inciting a mob to storm the U.S. Capitol and interrupt the process of declaring Joe Biden president. Attempting to interfere with the democratic process counts as a high crime and misdemeanor under the Constitution. But I would like to remind us all that the time to remove Trump was a year ago, when he actually was impeached — precisely for attempting to corrupt the 2020 election. What Trump did on January 6, 2021, was no more impeachable than what he did on July 25, 2019, when he phoned Ukraine’s Volodymyr Zelensky and asked him to discredit Biden. Which distortion of democracy is worse? Trying to steal an election secretly, in advance, or publicly inciting the interruption of a largely ceremonial process after the fact? The former could have changed the outcome of the 2020 vote. The latter had essentially zero chance of blocking Biden’s ascent. The Ukraine call was a serious and corrupt effort to misuse the office of the presidency to retain power. It was election cheating, no more and no less. Trump’s highly public post-election conduct, including yesterday’s incitement, has been repugnant and damaging, but it has not been a realistic plan to abuse the presidency to remain in power.

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Does the 25th Amendment Apply to Trump? Quite Possibly

January 8, 2021

An op-ed by Cass SunsteinIn the aftermath of President Donald Trump’s provocation of a riot at the U.S. Capitol, there is fresh discussion of the two avenues for removing a sitting president. The first is impeachment. The second is the 25th Amendment to the U.S. Constitution. There is no question that Trump’s conduct was an impeachable “high crime and misdemeanor.” The applicability of the 25th Amendment isn’t as obvious. The two grounds for removal are fundamentally different. Impeachment is for egregious abuse of the powers of the office. The 25th Amendment is concerned with some kind of impairment that renders a president unable to do his job. For present purposes, its key provision is Section 4: “Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.” After this declaration is transmitted, the president’s only recourse is to submit his own declaration, saying that he is indeed able to do his job. At that point, the vice president and the majority of the principal officers of the executive departments (essentially the cabinet) can disagree. If so, Congress gets to decide the question.

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Legal experts say Capitol mob’s actions fit the definition of sedition

January 8, 2021

The pro-Trump mob’s storming of the US Capitol in Washington, D.C., on Wednesday appears to fit the legal definition of sedition, though it remains to be seen whether anyone will face that charge, legal experts said Thursday…Laurence Tribe, an emeritus professor at Harvard Law School, said the law “basically says that anyone who, in any place subject to US jurisdiction, conspires to forcibly oppose the authority of the United States or to prevent or delay the execution of US law is guilty of seditious conspiracy. That certainly is what the people who organized and carried out the invasion of the Capitol were doing.” Tribe said he felt that a separate federal charge of waging rebellion or insurrection, which bears a 10-year sentence, could also apply…Tribe said charges such as vandalism or trespassing “seem a little trivial. Maybe they had to use the tax laws to get Al Capone, but here the insurrection is clear enough that complaining they just left a mess on the floor seems like a foolish, cowardly evasion of what’s going on.” “It’s the absolute heart of our system, and they were trashing it not just physically, but conceptually,” he said.

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The Electoral College Isn’t Supposed to Work This Way

January 8, 2021

An op-ed by Trevor Potter and Charles FriedThe 2020 presidential election has been a disaster for people who think the Electoral College is still a good idea. Joe Biden’s clear victory has been followed by attempts by the incumbent president to induce Republican legislators and other elected Republican officials in five states he lost to ignore the certified vote counts in their states and substitute their partisan preferences for the voters’ decision. Now Congress will formally receive the electoral votes, after a series of attempts to subvert the democratic process, all made possible by the Electoral College. An early salvo was a suit filed in the U.S. Supreme Court by the State of Texas and supported by 126 Republican House membersand 18 Republican attorneys general asking the court to throw out the electors chosen by those same five states because Texas said it did not like the way they conducted their elections. Representative Louie Gohmert of Texas filed suit asking the courts to declare that Vice President Mike Pence has the legal right to pick the next president himself under the 12th Amendment — by ignoring the electoral votes for Mr. Biden cast by those five states. Instead, the Gohmert suit asks Mr. Pence to replace them with “votes” cast by the losing Trump elector slates in those states.

Continue Reading at New York Times »

Concern over storming of the Capitol

January 7, 2021

Rarely have images of unchecked bedlam and violence between security forces and angry Americans stunned the nation the way they did Wednesday, as right-wing rioters stormed the U.S. Capitol in Washington. The rioters attacked the literal and figurative symbols of American government in support of their preferred leader, outgoing President Donald Trump, who earlier had lauded their backing from a stage in front of the White House. They had come to protest the formal counting of Electoral College votes by Congress, a constitutionally mandated ceremony to certify Joseph R. Biden and Sen. Kamala Harris as the next president and vice president-elect…Several Harvard faculty members, authorities on American governance, denounced the takeover as a shameful watershed for U.S. democracy, however divided people may be politically…Constitutional scholar Laurence Tribe said the president had encouraged mob rule and violent insurrection “without a doubt.” “He’s fomented violence, he’s incited sedition, and in everything but the most technical terms, he’s waged war against the government of the United States, and that’s the very definition of treason,” said Tribe, the Carl M. Loeb University Professor, emeritus, at Harvard Law School. While the uprising has likely damaged the country’s institutions, image, and norms in ways that will take generations to undo, Tribe remains hopeful in a broader sense. “Even though this day ended darkly, it began with a victory for [Senators-elect Jon] Ossoff and [Rev. Raphael] Warnock in Georgia. We’re going to have a sane, reasonable, thoughtful person sworn in as president on Jan. 20,” he added. “And though the damage is real — I don’t want to minimize it — in the end, we will have come through it.”

Continue Reading at Harvard Gazette »

Fact Check: Can Pence Send Votes Back to States for ‘Correction’ as Trump Says?

January 7, 2021

Congress will convene on January 6 to officially count the electoral votes for the 2020 presidential election, certifying that President-elect Joe Biden won 306 electoral votes to President Donald Trump’s 232. Vice President Mike Pence is expected to preside over the joint session as president of the Senate to open the certificates so they can be counted. There has been extensive debate about the scope of Pence’s role during the joint session. Even though it has been reported by Newsweek that Pence does not have the ability to decide which electoral votes count, there still is the question of whether he can send electoral votes back to the states for “correction.” … Laurence Tribe, a constitutional law professor at Harvard Law School, explained the scope of Pence’s role presiding over the joint session in an email to Newsweek. “Vice President Pence has no power whatsoever to send electoral slates back for recounting or ‘correction’ or to accept alternative slates or to do anything other than preside ceremonially over the joint session of Congress,” Tribe said. “Any notion that he can change the result is sheer fantasy and has no basis in law or history.”

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How can we prevent Trump-like presidents in the future?

January 7, 2021

As the Trump era comes to a close, many Americans will breathe a sigh of relief as the chaos, divisiveness and cloud of corruption that have characterized this presidency recede. In spite of Trump’s unprecedented attempts to undo democracy, by and large our institutions held. The courts did not overturn the election, the press has not been nationalized or silenced, and civil servants stood up to the president on issues from the infamous Ukraine telephone call to the approval timeline for Covid-19 vaccines…But a healthy democracy needs constant tending. It’s time to look at our entire democratic system and see where changes should be made. As I have argued before, reforming the primary system to re-insert some element of peer review into our nomination system would go a long way towards preventing people like Trump from getting a shot at the presidency in the first place…Another area of concern is the legal constraints or lack thereof on the presidency. Here one should turn to Bob Bauer and Jack Goldsmith’s invaluable book, After Trump: Reconstructing the Presidency. The book is a comprehensive agenda for those who would like some means of preventing or coping with Trump-like presidents in the future. Bauer is one of Washington’s most famous election lawyers. He represented the Democratic National Committee and the Biden campaign, and served as White House Counsel in the Obama Administration. Goldsmith is a professor at Harvard Law School who played key roles in the second Bush Administration and is considered one of the best conservative legal minds in the country. Together they provide a very sensible roadmap for reform.

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Is this a coup? Here’s some history and context to help you decide

January 7, 2021

Are Americans witnessing a coup? Before the storming of the U.S. Capitol on Jan. 6, the case was arguable, but not a slam dunk. After the Capitol was breached, the case became more clear cut, experts say. The questions stem from President Donald Trump’s reaction to losing the 2020 presidential election. Trump and his supporters have filed a string of lawsuits rejected by the courts, sought to strong-arm local officials into changing the results, and suggested incorrectly that Vice President Mike Pence could overturn the will of the electoral college as he presided over the counting of the ballots. Whether the U.S. was witnessing a coup seemed speculative until the violent overrun of the House and Senate on the day the Electoral College votes were supposed to be counted, officially certifying Biden’s victory…All this seems to fit the category of a “sudden and irregular (i.e., illegal or extra-legal) removal, or displacement, of the executive authority of an independent government.” It was sudden, laws were broken, and official functions of the government were displaced. (For this to apply, one has to envision President-elect Joe Biden as the “executive authority,” rather than Trump, the incumbent but lame duck president.) “Invading the national legislature through force sounds like a coup; peaceful protest is obviously not,” said Michael Klarman, a Harvard Law School professor.

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Social media has polarized the extreme left and right: Harvard Law School distinguished fellow

January 7, 2021

Harvard Law School Distinguished Fellow Vivek Wadhwa says he ‘wouldn’t be surprised’ if President Trump’s social media accounts will be suspended for a week at a time as ‘more clamping down’ is expected.

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Noah Feldman on Axios Today about Electoral Votes

January 7, 2021

Noah Feldman is a guest on this episode of Axios Today, discussing what to watch for as members of Congress officially count the electoral votes for the presidential election.

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The Justice Department Really Needs Merrick Garland

January 7, 2021

An op-ed by Noah Feldman: Judge Merrick Garland is the right person at the right time to bePresident Joe Biden’s attorney general. If the AP and Politico are correct that he’s Biden’s pick, it isn’t just well-deserved vindication for a dedicated public servant who deserved to be confirmed to the Supreme Court when nominated by President Barack Obama. Garland’s years of experience in the Department of Justice, coupled with his distinguished service on the federal bench, position him to accomplish the historic mission now demanded of him: nothing less than restoring the legitimacy and credibility of federal law enforcement after the disastrous last four years of Donald Trump’s presidency. Garland is an insider’s insider when it comes to understanding how the Department of Justice works — and what its proper function should be. Since 1978, when he clerked for Justice William Brennan at the Supreme Court, he has spent his entire career within the gravitational field of the building known as “main Justice,” located at 950 Pennsylvania Avenue. He was a special assistant to President Jimmy Carter’s attorney general Benjamin Civiletti; a federal prosecutor in Washington, D.C.; a deputy assistant attorney general; and principal deputy associate attorney general. In between, he spent short stints at the venerable D.C. law firm Arnold and Porter. President Bill Clinton put him on the U.S. Court of Appeals for the DC Circuit in 1995. The court is just a few blocks away from main Justice, and it hears many, many cases involving the federal government.

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Democrats’ Edge May Be Tiny, But Its Power Is Huge

January 7, 2021

An op-ed by Cass SunsteinFor President-elect Joe Biden, Santa Claus came a few weeks late, but he certainly delivered. Georgia’s Senate races appear likely to give Democrats control of both houses of Congress — a spectacular gift. I worked in the Barack Obama administration from 2009 to 2012, and I was able to see, close up, the staggering difference it makes when the Senate and the House of Representatives are controlled by the same party as the president. That was the case in 2009 and 2010, when Congress enacted not only the American Recovery and Reinvestment Act (the economic stimulus made necessary by the 2008 financial crisis), the Affordable Care Act, and the Dodd-Frank banking reforms — but also the Family Smoking Prevention and Control Act, the Credit Card Accountability Responsibility and Disclosure Act, and the Lily Ledbetter Fair Pay Act, which strengthened the available tools to combat employment discrimination in court. This was one of the most consequential periods of lawmaking in the nation’s entire history. Everything changed in 2011, when Republicans won a majority in the House. That meant that in 2011 and 2012, Congress wasn’t going to do much, especially if Obama favored it. For many issues, executive actions became the only game in town.

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Can Trump Be Stopped?

January 7, 2021

An op-ed by David Priess and Jack GoldsmithThe hours since Wednesday afternoon have seen a tidal wave of calls for Donald Trump to lose the powers and duties of the office for his role in the historic storming of the U.S. Capitol. There is a new push for impeachment. And news reports suggest that members of Trump’s Cabinet are considering invoking the 25th Amendment to take from Trump, in the words of the Amendment, “the powers and duties of the office” he holds. (We should note that this reporting is thinly sourced; Maggie Haberman of the New York Times reported last night that a source merely says “the 25th Amendment discussions are staff-based within the administration and with some Republicans on the Hill, and that they’re not particularly focused.”) This comes on the heels of a very strange series of events from inside the executive branch, including a statement on Wednesday afternoon by the Secretary of Defense that after consulting with Vice President Pence and top congressional leaders—but seemingly not President Trump—he was “activating D.C. National Guard to assist federal and local law enforcement as they work to peacefully address the situation.” Shortly before 4 a.m. this morning, a reconvened Congress finally confirmedPresident-elect Biden’s presidential victory. And then President Trump issued this statement: “Even though I totally disagree with the outcome of the election, and the facts bear me out, nevertheless there will be an orderly transition on January 20th.” But it is far from clear that Trump will stick by, or do what it takes to carry out, this pledge.

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Trump falsely claims Pence can flip Biden’s victory as doomed final election fight looms

January 6, 2021

Vice President Mike Pence is being put to the ultimate Trump test. The Republican president falsely claimed Tuesday that Pence can single-handedly toss out election results when Congress convenes on Wednesday for the final bureaucratic step before Joe Biden’s inauguration, putting pressure on the VP to decide what’s more important: The boss or the Constitution…Despite Trump’s claim, Pence cannot indiscriminately refuse to accept Biden’s 306-to-232 vote victory in the Electoral College. “The vice president is essentially powerless tomorrow. The Constitution gives him a merely ceremonial role, and there’s no way he can turn that into anything more,” Laurence Tribe, a longtime constitutional law professor at Harvard University, told the Daily News. In serving as the presiding officer over Wednesday’s session, Pence’s duties are essentially limited to presenting the 538 electoral votes certified by all 50 states and Washington, D.C., for a formal count, as spelled out by the 12th Amendment to the Constitution. He’s also tasked with overseeing any challenges to the results requested by members of Congress. If a challenge is made and supported by at least one representative and one senator, Pence should order the House and Senate to retreat to their respective chambers for a debate and vote on the objection. For a challenge to be successful, majorities of both chambers have to vote to sustain it — which is virtually impossible since the House is controlled by Democrats and Senate GOP leaders have instructed their members to not entertain objections to Biden’s certified victory.

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Congress Shouldn’t Be Able to Steal an Election

January 6, 2021

An op-ed by Noah FeldmanIt’s really happening: Republicans in the House and Senate are poised to defy reality and try in vain to reverse the presidential election results. Congress will meet on January 6 to certify the election results in what is normally a predictable ritual. A dozen Republican senators and several members of the House have said they plan to object. When they do, it’s going to be a dark day for U.S. democracy. That’s true even though Joe Biden will still ultimately be recognized as the winner of the 2020 election. I wish I could say it’s only political theater by Republicans who know it won’t matter, and hence not a big deal. But I can’t. The truth is both more serious and more painful. The concerted effort by a more-than-token number of Republicans reflects a basic willingness to reject the people’s vote and with it, democracy itself. If the Republicans controlled both houses of Congress, they would be in the position to carry out a constitutional coup d’état. The fact that they can’t do it this time isn’t evidence that we don’t have to worry about it the future. It’s evidence that we need to be very worried indeed.

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Vice President Pence Can Preside But Not Decide

January 6, 2021

An op-ed by Cass SunsteinSince the presidential election on Nov. 2, the rule of law has held. That is one of the most noteworthy, and inspiring, developments in the entire history of U.S. law. Whether they were appointed by Presidents Donald Trump or Barack Obama, by Presidents Bill Clinton or George W. Bush, federal judges have shown fidelity to the law by rejecting frivolous and evidence-free efforts by Trump to overturn former Vice President Joe Biden’s victory. Congress will meet on Wednesday to finalize that victory. Senator Ted Cruz of Texas, joined by at least 10 other Republican senators or senators-elect, is mounting a challenge, seeking to delay and perhaps to reverse the result. An obvious question is the role of Vice President Mike Pence, who serves as president of the Senate and can break deadlocked senate votes on ordinary matters, now that he has “welcomed” the senators’ electoral vote challenge. What is he permitted to do on Wednesday? Under the law, the simplest answer is: Not very much. His role is largely ceremonial. He has no power to overturn the results of a presidential election. A central reason is that the drafters of the U.S. Constitution and those who followed them were acutely aware of the risk of bias and self-interest in politics. They did not want the vice president, who might well have a rooting interest, to settle the outcome of a presidential election.

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Trump’s Last, Desperate Attempts To Overturn The Election

January 5, 2021

President Donald Trump’s desperate and conspiracy-ridden attempts to challenge President-elect Joe Biden’s election win went a step further this weekend when The Washington Post published a recording of him asking Georgia officials to “find” him the votes needed to win the state. The Hail Mary attempt comes as Congress prepares to officially count the Electoral College votes this Wednesday, with more than 100 Republican lawmakers planning to make a symbolic stand that day against the majority will of the American electorate. To discuss, Jim Braude was joined by Jennifer Horn, a co-founder of anti-Trump Republican organization The Lincoln Project, and retired federal judge Nancy Gertner, now a professor at Harvard Law School.

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Time Is Running Out to Get a Pardon From Trump

January 5, 2021

The week before Christmas, President Donald Trump issued a series of pardons and commutations, many of them for his personal associates and political loyalists: his son-in-law’s father, Charles Kushner; former operatives Roger Stone and Paul Manafort; and two former GOP congressmen. Hardly any of the 49 people who received clemency were vetted by the U.S. Department of Justice’s pardon office. Trump has largely wrested the clemency process from the Justice Department, turning it into a lobbying bonanza that has outraged Democrats…Trump has granted a total of 94 pardons and commutations, far fewer than Barack Obama or George W. Bush issued, and only seven of those cases appear to have been recommended by the pardon attorney, according to data compiled by Harvard Law School Professor Jack Goldsmith. More than 14,000 clemency seekers are waiting for verdicts on their applications to the Justice Department. But that backlog is hardly a new phenomenon. In 2014, the Obama administration unveiled a clemency initiative that created new criteria for commutations, with as many as 10,000 inmates expected to qualify.

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How Congressional Republicans Could Sabotage the Counting of Electoral Votes

January 5, 2021

An essay by Jeannie Suk GersenDonald Trump has regularly teased incriminating “tapes” of people whom he wanted to discredit; those have never materialized, but we are by now accustomed to tapes of his own perfidy. “Grab ’em by the pussy.” “I would like you to do us a favor, though.” And, now, in a phone call with Georgia’s secretary of state, Brad Raffensperger, “I just want to find eleven thousand seven hundred and eighty votes.” A recording of the call, from Saturday, published on Sunday by the Washington Post, shows that Trump attempted to coerce Raffensperger to “find” enough votes to overturn the results and warned of criminal consequences if the Georgia Republican did not. “I just want to find eleven thousand seven hundred and eighty votes, which is one more than we have,” Trump said. (Biden won Georgia by a margin of eleven thousand seven hundred and seventy-nine ballots.) The President suggested that “there’s nothing wrong with saying, you know, um, that you’ve recalculated.” On January 20th, the Justice Department’s stance that a President cannot be federally indicted while in office will no longer apply to Trump, so the question of whether he committed a crime is not merely theoretical. Federal election law makes it a crime to “knowingly and willfully” attempt to “deprive or defraud the residents of a State of a fair and impartially conducted election process” by the “tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent.” Trump appears to have done just that, by asking Raffensperger to announce a fictitious finding of just enough ballots for Trump to win the state, and backing up this demand with a veiled threat of penalty if Raffensperger doesn’t comply.

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Congress Has Too Much Power Over Presidential Elections

January 5, 2021

An op-ed by Noah FeldmanIt’s really happening: Republicans in the House and Senate are poised to defy reality and try in vain to reverse the presidential election results. Congress will meet on January 6 to certify the election results in what is normally a predictable ritual. A dozen Republican senators and several members of Congress have said they plan to object. When they do, it’s going to be a dark day for U.S. democracy. That’s true even though Joe Biden will still ultimately be recognized as the winner of the 2020 election. I wish I could say it’s only political theater by Republicans who know it won’t matter, and hence not a big deal. But I can’t. The truth is both more serious and more painful. The concerted effort by a more-than-token number of Republicans reflects a basic willingness to reject the people’s vote and with it, democracy itself. If the Republicans controlled both houses of Congress, they would be in the position to carry out a constitutional coup d’état. The fact that they can’t do it this time isn’t evidence that we don’t have to worry about it the future. It’s evidence that we need to be very worried indeed. The key vulnerability here arises from the Electoral Count Act, which dates to 1887. It allows members of Congress to object to the submitted votes from the state electors, triggering debate on whether to count those votes.

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Trump’s crime spree must not escape investigation

January 5, 2021

An op-ed by Laurence TribeEvery passing day seems to expose more evidence that President Trump is in the midst of a public crime spree. His activities — including pressing Georgia’s secretary of state to “find” nonexistent votes — increasingly bear the stench of criminality, bare-faced and public though they are. History has taught us to expect crimes to be committed in the dark. But Trump has been openly fomenting violence and encouraging actions designed to undo a fair and free election. In plain view and over four years, he has threatened those who fail to join him in this course of action, one that would otherwise quickly be recognized as a seditious coup had his longstanding pattern not numbed observers to the real meaning of his conduct. From early in his presidency, Trump has dangled the prospect of pardons to induce his cronies to remain loyal and do his bidding. On their face, his recent spate of pardons to his former national security adviser Michael Flynn, longtime adviser Roger Stone, and Paul Manafort, his 2016 campaign chairman, appear to consummate deals designed to conceal incriminating information — deals that might well have safeguarded Trump from removal or prosecution. As of now, we don’t know the extent to which the promise of such pardons actually kneecapped the Justice Department and congressional investigations. We need to find out: Although even unsuccessfully attempted “obstruction of justice” is a crime, it’s unlikely to seem serious enough all by itself to warrant prosecuting a former president.

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Federal Judge Rejects Georgia GOP’s Attempt to Prevent Newly Registered Voters from Participating in Senate Runoff Elections

January 4, 2021

A federal judge on Friday rejected the Georgia Republican Party’s request to prevent newly registered voters from casting a ballot in the state’s upcoming Senate runoff elections, reasoning that the party lacked standing. The judge denied a request for temporary restraining order prohibiting new residents who voted for a Senate candidate in another state from voting in the Jan. 5 elections, according to Georgia Public Broadcasting…The GOP’s lawsuit, which claimed that it was “illegal for an individual to vote in the Georgia run-off if he or she already voted in 2020 for U.S. Senator in a different state,” was also based on a misreading of the Voting Rights Act. The complaint selectively quoted from the statute, stating: “The prohibition . . . applies with respect to any general, special, or primary election held solely or in part for the purpose of selecting or electing any candidate for […] Member of the United States Senate […].” … Harvard Law School professor Nick Stephanopoulos, who specializes in election law, similarly told Law and Crime that the complaint appeared to misstate the relevant law. “The statute makes clear that it’s not double voting ‘to the extent two ballots are not cast for an election to the same candidacy or office.’ That would be precisely the situation of someone who moved to Georgia and registered after the general election,” he said. “That person would not have cast two ballots in ‘an election to the same candidacy or office’ — namely the Georgia Senate election.”

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Donald Trump’s pardons must not obstruct justice

January 4, 2021

An op-ed by Laurence TribeIf, as Alexander Pope reflected in 1711, “to err is human, to forgive, divine,” then the US Constitution’s pardon power — the prerogative of forgiveness — should be beyond reproach. Instead, a godless US president who appears incapable of forgiveness has seemingly perverted this instrument of mercy into another grave threat to the rule of law. Donald Trump’s recent twisting of the pardon power risks leaving a damaging legacy: a blueprint for manipulating this vestige of royal prerogative to place presidents and their cronies above the law. But a remedy exists: investigation and potential prosecution. We must treat any obstructions of justice we uncover as the crimes they are. It is critical to distinguish between two types of corrupt pardons. There are those that are merely contemptible for their intrinsic immorality — they may give a free walk to American war criminals (the Blackwater contractors convicted of a massacre), corrupt politicians (former Illinois governor Rod Blagojevich, convicted of trying to sell a Senate seat), and relatives (Mr Trump’s son-in-law’s criminally convicted father Charles Kushner). There are others that pose structural dangers by placing the president and his circle above the law and thwarting investigations into wrongdoing.

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The Outdated Law that Republicans Could Use to Upend the Electoral College Vote Next Time

January 4, 2021

On Monday, amid heightened security measures spurred by threats of violence, the electors of the Electoral College cast their votes to affirm that Joe Biden will become the forty-sixth President of the United States. That vote is a ritual typically of interest only to the electors and their friends and families, but this year the major wire services moved news bulletins as the states tallied their counts. It was one more case of how Donald Trump’s denialism about his electoral defeat, and his continuing attempts to retain power by conjuring a constitutional crisis, have brought Americans into anxious acquaintance with the anachronistic mechanisms of a democracy that they can no longer take for granted…If Democrats were to win control of both the House and the Senate, following next month’s runoff Senate elections in Georgia, “It would be super-wise to rewrite the E.C.A.,” Lawrence Lessig, a law professor at Harvard and a democratic-reform activist, told me. “We need to clear up what exceptional cases there are” that could ever allow state legislatures to intervene on the basis of a “failed election,” how such a determination would be made, and how judgments by legislatures would be subject to review by other political authorities and courts. There are other provisions of the E.C.A. that bear rewriting, too, Lessig said, such as a complicated tie-breaking procedure if disputed slates of electors are sent to Congress.

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Biden’s DOJ Must Investigate Trump’s Relationship to Russia

January 4, 2021

Donald Trump’s recent pardons of several key aides have ignited a crucial debate: Should President-elect Joe Biden’s Department of Justice investigate his predecessor’s apparent obstruction of a potentially damning inquiry into his entanglement with Vladimir Putin’s Russia? Opponents muster numerous arguments. A probe would sharpen our bitter divide. It would smack of reprisal. It would spotlight Trump’s grievances. It would be too complex and time-consuming. It would undermine Biden’s effort to advance a positive agenda that speaks to the future. Restoring our comity, they conclude, precludes launching the unprecedented prosecution of an ex-president…First, the pardons. As Harvard law professor Laurence Tribe points out, they “belong to a distinct and far more dangerous category” than mere political favoritism. Tribe elaborates: “If Mr. Trump has used his pardon power to commit crimes, he must be prosecuted; failing to do so would set a perilous precedent for future administrations. In future investigations of presidential misconduct, essential witnesses might routinely protect the boss in hopes of (or in exchange for) immunity. Worse yet, future presidents could treat their terms in office as four-year licenses to commit heinous crimes with impunity.”

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Trump Gives Clemency to More Allies, Including Manafort, Stone and Charles Kushner

January 4, 2021

President Trump doled out clemency to a new group of loyalists on Wednesday, wiping away convictions and sentences as he aggressively employed his power to override courts, juries and prosecutors to apply his own standard of justice for his allies. One recipient of a pardon was a family member, Charles Kushner, the father of his son-in-law, Jared Kushner. Two others who were pardoned declined to cooperate with prosecutors in connection with the special counsel’s Russia investigation: Paul Manafort, his 2016 campaign chairman, and Roger J. Stone Jr., his longtime informal adviser and friend…Of the 65 pardons and commutations that Mr. Trump had granted before Wednesday, 60 have gone to petitioners who had a personal tie to Mr. Trump or who helped his political aims, according to a tabulation by the Harvard Law School professor Jack Goldsmith. Although similar figures do not exist for previous presidents, legal experts say that those presidents granted a far lower percentage to those who could help them personally and politically.

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Lawfare Live: All the President’s Pardons

January 4, 2021

Wednesday, Dec. 30, at 12pm EST, Jack Goldsmith, co-founder of Lawfare and Learned Hand Professor of Law at Harvard Law School, and Benjamin Wittes, co-founder and editor-in-chief of Lawfare, will join David Priess, Lawfare’s chief operating officer, to answer questions about the president’s recent slew of pardons and commutations.

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Trump’s Last Stand

December 18, 2020

Now that the Electoral College has voted, President Donald Trump’s last stand is anticipated to take place on January 6, 2021, when Congress convenes to officially count the votes of the electors. This final step in the election process is given apparent gravity by a provision of an ancient statute called the Electoral Count Act of 1887 (the “ECA”). The ECA authorizes members of Congress to object to a state’s results and creates a process for resolving any such objections by votes in both the House and the Senate. If majorities of both houses affirm the objection, the ECA provides that the state’s electoral votes will be rejected. If enough electoral votes are rejected to prevent any candidate from getting to 270 votes, the Twelfth Amendmentthrows the election to the House for a state-by-state vote. Since the Republican party controls more state delegations than Democrats do, Trump presumably would be the winner. For a host of reasons, it is almost unthinkable that Trump’s supporters will be able to get an objection through Congress on January 6…Because I haven’t found any scholarly or judicial writing on this specific issue, I checked in with Laurence Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard. Professor Tribe was kind enough to offer this unqualified, definitive response: “[T]he 1887 Electoral Count Act cannot be regarded as an even arguably constitutional path along which the special Joint Session of Congress called for in the Twelfth Amendment might opt to engage in substantive second-guessing of how any given State chose to conduct its Article II function of appointing Electors.” This sounds like case closed.

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