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Laurence Tribe

American lawyer and Harvard Law School professor

Laurence Henry Tribe (born October 10, 1941) is an American constitutional law scholar, the Carl M. Loeb University Professor at the Harvard Law School, and co-founder of the American Constitution Society. He is the author of several books, including a major treatise, American Constitutional Law (1978) and has argued before the United States Supreme Court dozens of times.

    Laurence Tribe
2019

Quotes

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  • If you were to appoint someone like Sonia Sotomayor, whose personal history and demographic appeal you don't need me to underscore, I am concerned that the impact within the Court would be negative in these respects. Bluntly put, she's not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalio/Thomas wing of the Court.
  • Now the country is faced with a president whose conduct strongly suggests that he poses a danger to our system of government. ...[I]mpeachable offenses could theoretically have been charged from the outset of this presidency. ...One important example is Trump’s brazen defiance of the foreign emoluments clause ...The question of Russian interference in the presidential election and possible collusion with the Trump campaign go to the heart of our system and ability to conduct free and fair elections. ...[R]eporting suggests... the... sinister, with Trump insisting that Comey pledge "loyalty" to him in order to retain his job... the president turned to Twitter with a none-too-subtle threat that Comey would regret any decision to disseminate his... conversations... Nixon’s... list of actions... deemed... impeachable obstruction reads like a forecast of... Trump... misleading statements to, or withholding material evidence from, federal investigators or... employees; trying to interfere with FBI or congressional investigations; trying to break through the FBI’s shield surrounding ongoing criminal investigations... [T]he crucial thing is that the prospect now be taken seriously, that the machinery of removal be reactivated, and that the need to use it become the focus of political discourse...
    • "Trump must be impeached. Here’s why." (May 13, 2017) The Washington Post Opinions
  • [T]hat speech... was political genius but jurisprudential danger, because he created an impression that Robert Bork really liked the idea of coat-hanger abortions, that he liked the idea of racial separation of neighborhoods, whereas the fact is that Bork’s philosophy might have led to many of those consequences, but to demonize him the way my friend Ted Kennedy did I thought was going to work politically, but something that people would come to regret later. And, of course, I think that’s what happened, because it rallied a lot of academics and scholars and moderates to Bork’s side, thinking that he had been improperly caricatured...

American Constitutional Law (1978)

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Quotes are from (1988) edition, unless otherwise noted.

Preface to the First Edition

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  • [T]he courts that held slaves to be non-persons, separate to be equal, and pregnancy to be non sex-related can hardly be deemed either final or infallible.
  • [T]he Constitution is an intentionally incomplete, often deliberately indeterminate structure for the participatory evolution of political ideals and government practices.
  • Judicial neutrality necessarily involves taking sides. ...[J]udicial restraint is but another form of judicial activism.
  • The inescapable boundaries of societal context and consciousness argue... that [judges] must raise distinctive voices of principle.
  • [T]he highest mission of the Supreme Court... is not to conserve judicial credibility, but in the Constitution's own phrase, "to form a more perfect Union" between right and rights within the charter's necessarily evolutionary design.
  • [T]he morality of responsible scholarship points not at all to the classic formula of supposedly value-free detachment and allegedly unbiased description. Instead such morality points to an avowal of the substantive beliefs and commitments that necessarily inform any account of constitutional arguments and conclusions.
  • [A]ttempts to treat constitutional doctrine neutrally elide important questions and obscure available answers.
  • Given its remarkable activism in constraining the President vis-à-vis Congress and the courts and in limiting Congress vis-à-vis the States, the current Supreme Court cannot be understood as pursuing a modest institutional role. ...I prefer postulates honestly expressed to analyses whose underlying assumptions are obscured by the jargon of neutral principles and the language of "objective" legal description.
  • [T]he conventional ways even of stating the choices between greater freedom or equality, on the one hand, and greater governmental power, on the other... and particularly the conventional emphasis on "balancing interests"... are remarkably unilluminating as well as misleadingly ahistorical.

Approaches to Constitutional Analysis

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Chapter 1
  • [T]he Constitution is an historically discontinuous composition... the product... of a series of not altogether coherent compromises; it mirrors no single vision or philosophy but reflects instead a set of sometimes reinforcing and sometimes conflicting ideals and notions.
  • I... organize the constitutional principles, rules, and theories... in terms of the seven basic models that... have represented the major alternatives for constitutional argument and decision in American law from the early 1800s to the present.
  • The models... (I) separated and divided powers; (II) implied limitations of government; (III) settled expectations; (IV) governmental regularity (V) preferred rights; (VI) equal protection; and (VII) structural justice.
  • [T]hese models are not... mutually exclusive... discourse in any given period can... draw on... more than one model. ...Their main function is heuristic. ...[T]he models ...grow out of immersion in judicial decisions and lawyers' arguments ...[T]hey should be ...familiar themes ...
  • That all lawful power derives from the people and must be held in check to preserve their freedom is the oldest and central tenet of American constitutionalism. ...[I]t was believed that personal freedom could be secured more effectively by decentralization than by express command.
  • [T]he framers had derived the conviction that human rights could best be preserved by inaction and indirection—shielded behind... deliberately fragmented centers of countervailing power, in a vision almost Newtonian...
  • In the first model, the centralized accumulation of power in any man or single group... meant tyranny; the division and separation of powers, both vertically (...federal, state and local...) and horizontally (...legislative, executive, and judicial...) meant liberty.
  • If the legislature would punish, it must enlist... the other branches—the executive to prosecute, the judicial to try and convict.
  • [A] Bill of Rights directed against federal abuses was thought necessary in addition to the separation and division of powers...
  • [A]lthough the effort was finally rejected by the Senate, the House was sufficiently persuaded by James Madison's fear of state and local oppression... to approve a constitutional amendment... that "no State shall infringe the equal rights of conscience, nor the freedom of speech or of the press, nor of the right of trial by jury in criminal cases." ...[H]e came close to succeeding in 1789, and... it took a Civil War to make the difference.

Constitutional Choices (1985)

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The Nature of the Enterprise

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Part I
The Futile Search for Legitimacy
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Chapter One
  • [J]ust as I am not writing for those who feel confident that canons of appropriate constitutional construction may be convincingly derived from some neutral source, so I am also not writing for those who have convinced themselves that "anything goes" as long as it helps end what they see as injustice; that constitutional law is only a legitimating mask for what those in power can get away with; or that it is only a tame language in which those that would otherwise foment violent revolution can couch their demands in forms the regime might accept without losing face.
  • No one... persuaded that the categories of constitutional discourse, or of law generally, are readily rendered determinate and certain—and no one who believes that those categories are inherently empty, infinitely malleable, and ultimately corrupt—need read any further.
  • I am... moved... by a sense of the ultimate futility of the quest for an Archimedean point outside ourselves from which the legitimacy of some form of judicial review or constitutional exegesis may be affirmed.
  • [I]t is largely because I find all exercises of power by some over others—even with what passes for the latter's consent—are and must remain deeply problematic, that I find all legitimating theories not simply amusing in their pretensions but... as dangerous as they are convincing.
  • [W]hy do thoughtful judges and scholars continue to put forth the process-perfecting theories as though such theories could banish divisive controversies over substantive values from the realm of constitutional discourse by relegating those controversies to the unruly world of power?
  • [M]ost of us would readily concede that the framers of the 1787 Constitution adopted a federal system of government organization in order to, among other goals, help secure the institution of private property. When Madison, in his theory of faction, suggested that shifting the legislative responsibility for certain problems from the state to the national level could help assure that majorities would not trample on minority rights, the problems he had in mind were largely economic; the minority rights... were, for the most part, rights of property and contract.
  • The question whether individuals may insist on being heard by rulemakers, for whom they already (directly or indirectly) voted, has bedeviled administrative law since the turn of the century.
  • [G]overnmental action that burdens groups effectively excluded from the process is constitutionally suspect. In its most sophisticated form, the resulting judicial scrutiny is seen as a way of invalidating governmental classifications and distributions that turn out to be motivated either by prejudiced hostility or by self-serving stereotypes.
  • One cannot speak of "groups" as though society were objectively subdivided... Instead, people draw lines, attribute differences, as a way of ordering social justice—of deciding who may occupy what place, play what role, engage in what activity. Thus, in order to justify the role of chattel that blacks initially played in our society, we may have differentiated that role by describing it in terms of the most obvious distinguishing feature... equating race and role. This equation and thus "group" survived the Civil War and the Thirteenth Amendment... simply by reason of confusion or inertia, but because the role that society allowed remained partially unchanged; thus, the need to justify the role by differentiating it, by seeing not the role but the group—"inferior" blacks capable of nothing better...—persisted.
  • The crux of any determination that a law unjustly discriminates against a group... is... that the law is part of a pattern that denies those subject to it a meaningful opportunity to realize their humanity. ...[S]uch an approach must look beyond process to identity and proclaim fundamental substantive rights—including substantive rights to participate on equal terms in the evolution of law and policy. ...[I]mportant aspects of constitutional law, including the determination of which groups deserve special protection, can be given content in no other way.
  • [I]t is puzzling that purely process-based approaches—designed to deny the need for, and legitimacy of... substantive theory—should... continue to find... articulate proponents and persist in attracting... adherents.
  • The state shapes the society as much as the society shapes the state...
  • Governmental subsidies to "major" political parties... or failure of state governments to provide funds to compensate school districts lacking "rich" property tax bases, are government actions that affirm some aspects of the status quo as inevitable. Such... are at present constitutional... Unable to support a challenge to such... power, a truly procedural... theory seems doomed... for without such challenge government may well be able to shape the "will" of the governed in the image of those who govern, reducing consent and representation to all but empty ideals.

Abortion: The Clash of Absolutes (1990)

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Quotes from the 1992 paperback edition, unless otherwise noted

Approaching Abortion Anew

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Chapter 1
  • This book is about a clash of absolutes, life against liberty.
    No right is more basic than the right to live. ...If infanticide is wrong, is the destruction of a fetus at eight months of gestation, or at five, any different?
  • Nothing is more devastating than a life without liberty. A life in which one can be forced into parenthood is just such a life. Rape is among the most profound denials of liberty, and compelling a woman to bear a rapist's child is an assault on her humanity. How different is it to force her to remain pregnant... because efforts at birth control accidentally failed?
  • If forcing a woman to continue a pregnancy that will almost certainly kill her is impermissible, how different... to compel... a pregnancy that will probably shorten her life? Or... that will leave her life in shambles?
  • Who knows the names of the countless women who have died from painful and illegal abortions? What of the names of the countless babies who would have been born...
  • [T]he woman's right to decide for herself... is now subject to regulation, and possibly even prohibition, by our elected representatives. ...Even as the public agenda is stretched to address... questions as the right to die, no issue threatens to divide us politically in... as powerful a way as the abortion issue...
  • The political stage is... dominated by... well-rehearsed and deeply felt arguments, on either side... The debate is unending. ...[S]ingle-issue campaigning has ...distorted ...national elections. The losers will be the democratic process and the American people.
  • Since it was judges who had read abortion rights into the Constitution, abortion opponents believed, we needed judges who would read abortion back out... [S]ome urged a constitutional amendment that would... have prohibited abortion or... at least have returned the question to each state's legislature, but... consensus and effort... proved elusive.
  • This book challenges the inevitability of permanent conflict... and tries to lay the groundwork for moving on.
  • Since it first came before the Supreme Court... abortion... has been about the Constitution. Whom does it protect? How do we decide..?
  • This is... a book about morality. By offering several perspectives... some rooted in philosophy, some... in science and technology, we may come to see new ways to understand...
  • [W]e may... find more common ground than we currently imagine.
  • For those whose minds are made up, this book offers a window into the way the "other side" sees... of why you have not been able to persuade opponents... insights into what they believe and... why.

The Invisible Constitution (2008)

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Identifying "The Constitution"

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  • So the written Constitution, the one we can see, fails to tell us just what's in it and what's not.
  • [T]he question of whethor a particular amendment has... been lawfully ratified... would matter mightily with amendments as the three passed in the wake of the Civil War—the Thirteenth (abolishing slavery), the Fourteenth (defining citizenship and guaranteeing certain basic human rights to all persons in their dealings even with their own states), and the Fifteenth (abolishing racial qualifications for voting)—whose ratification by the legislatures of the former Confederate states was not exactly voluntary. Their acquiescence was secured by force, having been made a condition for their reentry into the Union from which they had attempted to secede.
  • The visible Constitution... certainly doesn't answer very many of the persistent questions about what it means in any particular case and at any particular time. Indeed, the Constitution even tells us that it doesn't tell us: The Ninth Amemdment... expressly says, "The enumeration in the Constitution of certain rights shall not be construed to deny of disparage others retained by the people." In plain English there's more than meets the eye.

Distinguishing "The Constitution" from "Constitutional Law"

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  • [M]any constitutional scholars, political and moral philosophers, and social and political historians have described over the generations... the "unwritten Constitution," the subject of a classic study by William Bennett Munro published in 1930... "The Makers of the Unwritten Constitution,"... built on a still earlier and highly influential 1890 work by Professor Christopher G. Tiedeman... "The Unwritten Constitution of the United States." ...[S]cholarly work ...lay largely forgotten until ...resurrected in the writing of ...scholars in the 1970s. The focus... responses to the supposedly problematic legitimacy of having unelected and politically unaccountable judges resort to unenacted norms of this "unwritten Constitution" when holding duly promulgated laws and executive actions "unconstitutional."
  • My interest is less in what's invisible "around" the Constitution than in what is invisible within it.
  • I mean to set aside... the complex superstructure of rules, doctrines, standards, legal tests, judicial precedents, legislative and executive practices, and the cultural and social traditions that together constitute what people call "constitutional law."
  • That body of materials, unlike the Constitution itself, is massive and continuously growing... and changing... Many capable scholars have argued that this elaborate edifice is entitled to great respect as the "law" of our Constitution, "law" whose legitimacy ironically is in many ways easier to defend than is the legitimacy of the underlying text itself, and whose role in enabling the Constitution to carry out the important functions in our history is not difficult to demonstrate.
  • [M]y reference to an "invisible" Constitution should not be confused with the way some... are prepared to disregard all or part of the Constitution in times of crisis, real or manufactured. My interest... is in what... the Constitution's words cannot hope to reveal. I'll leave for another day the views of some that—because the Constitution is not... a "suicide pact"—we should sometimes act as though parts of what it says have conveniently become invisible.

Letter to Barack Obama (4 May 2009)

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from Lawrence M. Tribe, Carl M. Loeb University Professor, Harvard University. Source from the Ethics and Public Policy Center
  • I think it very important that you view the vacancy created by Justice Souter's resignation as an opportunity to lay the groundwork for a series of appointments that will gradually move the Court in a pragmatically progressive direction. Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy's mind. David Souter did, and it will take a similarly precise intellect, wielded by someone with a similarly deep appreciation of history and a similarly broad command of legal doctrine, to prevent Kennedy from drifting in a direction that is both formalistic and right-leaning on matters of equal protection and personal liberty.
  • If you were to appoint someone like Sonia Sotomayor, whose personal history and demographic appeal you don't need me to underscore, I am concerned that the impact within the Court would be negative in these respects. Bluntly put, she's not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalio/Thomas wing of the Court.
  • For the Souter seat, I can't think of anyone nearly as strong as Elena Kagan, whose combination of intellectual brilliance and political skill would make her a ten-strike... I've known and worked for her... since she was my student and research assistant in the 1980s, have watched her become a scholar of the first rank and a star... teacher, and have marveled at how skillfully she transformed a school that had long been considerably less than the sum of its parts into a vibrant and wonderful place for students to learn and for faculty to teach, write, and collaborate. Her techniques for mastering the substance of the many fields in which we have made important new faculty appointments during her tenure as dean and for gently but firmly persuading a bunch of prima donnas to see things her way in case after case—techniques she has deployed with a light touch and with an open enough mind to permit others to persuade her from time to time—are precisely the techniques I can readily envision her employing not just with Justices like Kennedy but even with a justice like Alito or, on... rare occasions, with a justice like Scalia or Roberts.
  • It's easy to underestimate how much difference David Souter's analytical prowess and historical command have made within the Court over the past 19 years in shaping both the language of other justice's opinions and on occasion their votes in important lines of cases. Elena Kagan seems to be uniquely suited to perform that task, and to perform it for the next thirty years or longer. Dianne Wood—who is more powerful intellectually than Sonia Sotomayor or any of the others mentioned as plausible prospects... with the sole exception of Kagan, who is even smarter—would be likely to serve nearly a decade less than Elena and doesn't appear... to have the dynamic personality or the extraordinary diplomatic gifts for inspiring confidence and for moving others that have made Elena Kagan the best dean of any major law school in memory and certainly the best Harvard dean in the forty years I have spent on the faculty here.
  • [I]t's easy to forget how much difference the public face of the Supreme Court can make in advancing a humane and yet suitably cautious conception of the rule of law and the role of courts in the pursuit of justice. That's a facet of the Court's role to which few justices over our history have made much of a contribution, given the significant limits on what a sitting justice can suitably say in a public forum. Louis Brandeis, Earl Warren, and Robert Jackson might be cited as exceptions. David Souter certainly couldn't be credited with success in that role, although the conspicuous modesty of his personal style was a plus... Elena Kagan would, however, combine that personal modesty with an appealing public persona and would project a well-grounded image of justice as fairness and of law as codified common sense. In that regard... a Justice Kagan would be a much more formidable match for Justice Scalia than Justice Breyer has been—and certainly than a Justice Sotomayor or a Justice Wood could be—in the kinds of public settings in which it has been all too easy for Scalia to make his rigid and unrealistic formalism seem synonymous with the rule of law and to make Breyer's pragmatism seem mushy and unconstrained by comparison. It is important... for the simultaneously progressive and yet principled, pragmatic and yet constrained, approach to law and justice that you have espoused... since becoming president, to be embodied in the person and voice of your first Supreme Court nominee. Elena Kagan would personify that approach and would ultimately be seen by the American public to exemplify it.
  • For all these reasons, I hope you will reach the conclusion that Elena Kagan should be your first nominee to the Court. ...I can hardly contain my enthusiasm at your first hundred days. I don't underestimate the magnitude of the challenges that remain, and I... hope that I can before too long come to play a more direct role in helping you meet those challenges, perhaps in a newly created DOJ position dealing with the rule of law, but my main sentiment... is one of enormous pride and pleasure in being an American at this extraordinary moment in our history.

Soundings and Silences (2016)

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Michigan Law Review Online Volume 115, Article 3
  • American Constitutional Law... final chapter... "The Problem of State Action," grappled with one of the most perplexing aspects in the law of the U.S. Constitution: its character as a body of law addressing not ordinary private conduct but only government conduct. ...[T]he law of the Constitution is a kind of meta-law. ...many instances of what might be regarded as government inaction pose troubling constitutional questions. ...[T]he Supreme Court has generally interpreted constitutional provisions as having nothing at all to say about non-governmental choices. ...One might ...say that the constitutional principle limiting the Constitution’s reach to "state action" is an unwritten command ...essentially "heard" in the sounds of constitutional silence. ...I closed the book with the question: "[I]s it not fitting that a book about the Constitution should close by studying what the Constitution is not about?"
  • [T]here are plenty of things besides private action that the Constitution is "not about."
  • [M]any of the most important Supreme Court decisions take the form of holding that a particular limit either has not been exceeded or, more fundamentally, that the asserted limit is not in fact part of the Constitution at all.
  • "[C]onstitutional silence"... pervades all of constitutional law.
  • [M]uch of what our Supreme Court does involves filling in the "great silences of the Constitution"...
  • [T]he "dormant Commerce Clause" [is] a set of unwritten constitutional principles limiting state commercial regulation in the face of congressional silence coupled with the Constitution’s delegation to Congress of the power to regulate interstate commerce.
  • [C]onstitutional silences, like silences of other kinds, aren’t just occasional gaps or omissions in an otherwise-seamless design. They’re everywhere and come in as many flavors and varieties as sounds. Ambiguity and multiplicity of meanings are in a sense manifestations of silence.
  • There are as many reasons to be silent as there are to speak, and as many ways to hear meaning in the sounds of silence.
  • Every sentence, every phrase, is in part silent with respect to how a reader or listener is to go about attributing meaning to it...
  • [W]e should beware of "hearing" silences where nearly all readers, setting aside how they would like a particular controversy to end, identify determinative text... "The heart has its reasons," as Pascal famously said, "that reason does not know." Good enough. And those heartfelt reasons deserve a hearing. But when they defy reason, the meaning of living by the rule of law is that reason should prevail.
  • [A]ttempting to organize and give structure to the study of legal silence has been a primary purpose of much of what I have written and taught over the past half-century.

To End a Presidency (2018)

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  • Impeachment haunts Trumpland... Never before has an American leader so quickly faced such credible, widespread calls for his removal...
    • Preface
  • [I]mpeachment does not require proof of a crime... The argument that only criminal offenses are impeachable is deeply and profoundly wrong. It misunderstands the Constitution, U.S. history, and the nature of criminal law in important ways.
  • Impeachment requires good judgment amid uncertainty, not a preprinted checklist of relevant considerations...
  • [W]e’re skeptical that so-called "impeachment precedent" commands deference apart from its power to persuade future generations. Congress isn’t bound by its own prior decisions.
  • While "high Crimes and Misdemeanors" was a term of art dating to 1386, and had thus accumulated centuries of intellectual baggage, there's no reason to think the Framers had all that in mind.
  • [H]igh Crimes and Misdemeanors... involve corruption, betrayal, or an abuse of power that subverts core tenets of the U.S. governmental system. They require proof of intentional, evil deeds that risk grave injury to the nation. Finally, they are so plainly wrong by current standards that no reasonable official could honestly profess surprise at being impeached.
  • [I]t would be strange to pretend we can discuss "high Crimes and Misdemeanors" today without any reference to Donald Trump...
  • Warring partisan tribes now define a dysfunctional system...
  • Americans have moved into ideological echo chambers... everything they read or hear reinforces their predispositions and makes them more intolerant of opposing views...

Laurence Tribe on To End a Presidency (2018)

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Washington Journal (June 3, 2018) C-SPAN.org
  • We would hope that this book would be a point of reference for people, as well as a enjoyable read, twenty... twenty-five years from now, we wrote it... for the ages. I've been teaching for almost fifty years, and I didn't want to write a book about just one president, especially a president who is so far off the charts as this one. We may have more like him, though, and we need to be able to reason together, as Lyndon Johnson... used to like to say... about what it should take to bring a president down. ...[T]here are other ways of trying to reign him in, and we have by no means exhausted them. I'm involved, as is my coauthor [Joshua Matz], with a number of lawsuits against this president for violating the anti-corruption or emoluments clauses of the constitution, and for violating the constitution in a lot of ways.
  • If we eventually win in the Supreme Court, and Trump thumbs his nose at the court and defies it, ...and there is some reason to think he might just do that, because he seems to believe he's above the law, then the whole system will collapse unless he is impeached and removed. But I am... more confident... that even people on his side of the political aisle, who seem completely spineless when it comes to reigning him in now, might get religion at some point, and might conclude, enough is enough. We just can't hitch our wagon to this guy's falling star any longer.
  • [T]he framers were deliberately vague. They didn't want to limit it to treason and bribery because they knew that there were other things that could so violate the basic structure of our constitution, of checks and balances, that they couldn't even predict in advance. So they wanted a general term that would refer to profound abuses of power that threaten the rule of law. Those needn't be crimes. For example, if the president promises to pardon anybody who beats up one of his opponents, or beats up a non-white immigrant, and basically says, "All of you guys have a get out of jail free card." That would be a manifestly impeachable offense, but it wouldn't be a crime. At the same time there are some crimes that are not high crimes and misdemeanors in the sense that the framers used that language, like tax evasion. ...[I]f this president is evading his taxes, that's not an abuse of his official powers. But they resisted going even further and making it a complete free-for-all. That is, at one point they debated making maladministration... impeachable... Well, that could mean any disagreement with the president. There are some countries that say that misconduct is... impeachable... There are some states that, in application to their governor say that misbehavior is... impeachable... Well that would mean that any time the Congress disagrees profoundly with the president on policy... Suppose it passes a law, he vetoes it, they can't override the veto, but if they basically say... we were right and you were wrong, they could just impeach him. ...An effort of that kind was made with President John Tyler. They thought he vetoed too many bills, and that was the impeachable offense. So the framers of the constitution struck a balance and left the judgement to us. They didn't try to create a formula for what was an impeachable offense, but they didn't just say any time you disagree with president, the thing to do is impeach him and try to remove him. They struck a balance in between, and a pretty good one, although it's one that leaves a huge amount of judgement to... we the people.
  • [T]he lesson from the Clinton impeachment is that purely partisan impeachments for offenses like lying under oath about a sexual affair, that don't really shake the Republic and threaten our ability to abide by the rule of law in general; that those kinds of impeachments are going to fail in the Senate and only embolden and empower the acquitted president. So Clinton's popularity just soared after the impeachment was rejected by the Senate. The Andrew Johnson impeachment is rather different. In that one, where he came within one vote of being convicted, most historians have concluded that the impeachment was terribly partisan, that it wasn't based on any real abuse. The basic charge on which he was impeached was his decision to fire the Secretary of War, Edwin Stanton, without the consent of the Senate, in violation of... the Tenure of Office Act. Now that was a technical basis that was cooked up, and it wasn't a very good one, because the... Act, not long afterward was struck down as unconstitutional. The president should not have to consult the Senate for firing a cabinet member. But there was a good reason that could have been used in his case. He was fundamentally trying to undo the Union victory in the Civil War. He was unwilling to pursue Lincoln's program of Reconstruction and he was going to be essentially open to all but re-enslaving African-Americans. His programs.. policies... practices showed that he was ripping the country apart, rather than helping to cement the Union that Lincoln had successfully preserved. That wasn't a crime, but it was what the constitution elegantly calls a high crime or misdemeanor and if he had been charged with that... a conviction in the Senate would have been more likely, and more appropriate. So the lesson... is that we should revisit our history, and not simply take the standard views of it as automatically right, and that we should be careful when we use the impeachment power to frame the right reasons for going after a president who has fundamentally broken his compact with the American people and his oath under the constitution.
  • We... devote... Chapter five to the proposition that there is too much loose impeachment talk, and we think that impeachment... needs to be cautiously and carefully approached.
  • Impeachment is a political process, but it has a legal frame of reference... [O]ne of the things we try [very hard] to do in our book... is explain how law and politics interact in this process, and... if you forget the political side, you're going to make a terrible set of blunders. But if you ignore the legal side, you're going to risk destroying the Constitution and the country. I agree, from a strictly partisan, political point of view... that letting Trump basically do himself in and make all kinds of terrible blunders, (and there seems to be a new one every day with this crazy pardon or a completely weird imposition of a tariff that will lose American jobs) that he will make things worse and worse... for himself. But the Constitution we have is a fragile device and if in the course of doing that, he defies judicial orders... He says he might defy an order to submit to a subpoena, which would be a first in American history... basically presidents are subject to subpoena, but if he is subpoenaed and as his lawyers said in a memo... he says "No, the president is above the law, above the subpoena power." Then, even though it might be politically wise to just do nothing, we would be breaking faith with the constitution to essentially go back to a system where someone is king. ...Tyrants don't easily give up power, and if we simply let this guy get away with anything, and say, "Let's wait til 2020." It may be too late by 2020 to restore a constitutional democracy under the rule of law.
  • A subpoena was issued to Richard Nixon to turn over his tapes. He made the argument that you can't subpoena a sitting president... He lost... in the U.S. Supreme Court in the famous... Nixon tapes case. In Clinton v. Jones, Bill Clinton made the argument that you can't make me testify, and it looked like that was going to go nowhere, so he finally relented and testified "voluntarily." ...[T]he argument that is made in... a memo [to Robert Mueller]... It's basically written to a kind of gullible, nonlegal public. It doesn't make any genuine legal arguments. In fact, there's a rather frightening statement... that it doesn't matter how corrupt the president's motives are. He can do anything with the Department of Justice, as though it's his own private law firm. It says, "I can even use the pardon power." Well, of course he can use the pardon power as a way of showing mercy to people, but he's begun using it as what I have called a giant and loud elephant whistle, basically telling people, "If you have my back and don't cooperate with the investigations into what Russia did, and what I did, and what I knew and when I knew it, I'll have your back." ...[I]t almost sounds like he's saying that he can pardon himself, and thereby evade impeachment. Well, first of all, the impeachment clause itself says that the pardon power does not extend to cases of impeachment. But if all he means is that he can pardon himself so that when he is out of office he can't be convicted, I think he's confusing himself with vice president Pence. Pence can pardon him if he leaves office, the way Ford pardoned Nixon, but as I show in an article with Norm Eisen and others, the self-pardon is ruled out by the structure of the Constitution. The President can say, "Pardon me" if he steps on your toes, but he can't say "Pardon me" as an exercise of official power. That would be the height of regal arrogance, and we don't have a king, we don't have an emperor. In fact, one of our complaints in the Declaration of Independence against King George III was that he was using his royal prerogative to obstruct justice. Well, if this president thinks that obstructing justice in order to corruptly avoid discovering the truth is within his absolute authority, I think he's got a lesson to learn, and I think the American people will teach it.

Wall Street Week (01/15/2021)

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Bloomberg Markets and Finance News channel, 30:58-33:20.
  • [Social media companies] are private platforms. They have... as much right as Bloomberg or as The New York Times... to decide whom they will allow to use their platform. There is no first amendment right to use private property or a private platform to get your views out, and if your views are causing violence and death, the private platform itself ought to be held responsible for not taking you off.
  • I'm not comfortable with there being no restrictions. I'm a member with Carole Cadwalladr and Shoshana Zuboff and others of... the Real Facebook Oversight Board. I think the government should put some limits on them partly because they're so powerful. That does not mean that anybody who wants to has the right to use the platform. The limits are limits that have to be consistent with the first amendment restrictions on the government, but we can't simply transform these platforms into... places that anybody can use, when they are... privately owned, however powerful, however large.
  • [A] governmental regime of guidelines which have to be followed, which do not involve private restraints because they would not enjoin any speech in advance. Those guidelines need to be in place so that we don't unfairly surprise the owners of Facebook, or other platforms, or Twitter, but... avoiding the ex-post facto effect of imposing rules after the fact is not the same as violating the prior restraint doctrine, which basically says you can't muzzle people in advance.

Quotes about Tribe

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  • He helped General Electric argue that being ordered to clean up hazardous waste sites... was a violation of its constitutional rights. He... defended Nike in a suit that claimed the company was lying about its sweatshop practices. Tribe... helped American Trucking Associations and the Petroleum Marketers Association of America fight common-law claims related to global warming. ...[H]e assisted... Bulldog Investors in trying to block the enforcement of... securities laws; his argument... in part... that such laws violated... First Amendment rights. [In the 1990s] ...helping the Bell companies... avoid or nullify telecommunications regulation... 2009 he helped Time Warner Cable fight net-neutrality rules, based on... corporate First Amendment rights. ...Tribe has taken a strong view of individual rights; his view of corporate rights is similar... It seems much harder to swallow the idea that Tribe’s paid work... is properly viewed as work in the public interest... for... it ought to be... in part, on behalf of clients... underrepresented, or... views that would not be heard. This is true of some of Tribe’s work; but in much of it he is empowering the powerful.
    • Tim Wu, "Did Laurence Tribe Sell Out?" (May 6, 2015) The New Yorker

See also

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Wikipedia
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