PROFESSOR LAURENCE TRIBE
~ CARL M. LOEB & UNIVERSITY PROFESSOR
~ ~ HARVARD UNIVERSITY
November 1, 2019
Photo credit: Margaret Fox Photography
ANTHONY W. CROWELL
Dean & President, New York Law School
SYBIL SHAINWALD, ESQ.
KENNETH R. FEINBERG
Introduction of Discussion Participants
PROFESSOR LAURENCE TRIBE
Carl M. Loeb Professor of Constitutional Law, Harvard University
Staff Writer at The New Yorker & Chief Legal Analyst for CNN
ARTHUR N. ABBEY
Chairman of the NYLS Board of Trustees
PROFESSOR LAURENCE TRIBE: Biography
Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard, has taught at its Law School since 1968 and was voted the best professor by the graduating class of 2000.
The title “University Professor” is Harvard’s highest academic honor, awarded to just a handful of professors at any given time and to fewer than 70 professors in all of Harvard University’s history.
Born in China to Russian Jewish refugees, Tribe entered Harvard at 16. He graduated summa cum laude in Mathematics (1962) and magna cum laude in Law (1966); clerked for the California and U.S. Supreme Courts (1966-68); received tenure at 30; was elected to the American Academy of Arts and Sciences in 1980 and to the American Philosophical Society in 2010; helped write the constitutions of South Africa, the Czech Republic, and the Marshall Islands; and has received eleven honorary degrees, most recently a degree honoris causa from the Government of Mexico in March 2011 that was never before awarded to an American, and an LL.D from Columbia University. Professor Tribe has prevailed in three-fifths of the many appellate cases he has argued (including 35 in the U.S. Supreme Court); was appointed in 2010 by President Obama and Attorney General Holder to serve as the first Senior Counselor for Access to Justice.
Professeor Tribe has written 115 books and articles, most recently, “To End A Presidency: The Power of Impeachment” (co-authored with Joshua Matz). His treatise, “American Constitutional Law,” has been cited more than any other legal text since 1950. Former Solicitor General Erwin Griswold wrote: “[N]o book, and no lawyer not on the [Supreme] Court, has ever had a greater influence on the development of American constitutional law,.” The Northwestern Law Review opined that no-one else “in American history has… simultaneously achieved Tribe’s preeminence… as a practitioner and… scholar of constitutional law.”
JEFFERY TOOBIN : Biography
Jeffrey Toobin, a staff writer for The New Yorker and chief legal analyst for CNN, is one of the most recognized and admired legal journalists in the country. His most recent book, American Heiress: The Wild Saga of the Kidnapping, Crimes and Trial of Patty Hearst, was published by Doubleday in 2016 and became an immediate New York Times best-seller. His book, “The Run of His Life: The People v. O.J. Simpson,” was the basis for the acclaimed ten-part limited series, “American Crime Story,” starring John Travolta and Cuba Gooding, Jr., on the FX Network, in 2016. He is currently working on a book about the investigation led by Special Counsel Robert Mueller.
His book, The Oath: The Obama White House and the Supreme Court, was published by Doubleday in 2012 and was also a New York Times best-seller. The Oath followed The Nine: Inside the Secret World of the Supreme Court, which was also a best-seller and earned the 2008 J. Anthony Lukas Prize for Nonfiction from the Columbia Graduate School of Journalism and the Nieman Foundation for Journalism at Harvard University.
Toobin, who is also a noted lecturer, has written several other critically acclaimed, best-selling books including A Vast Conspiracy: The Real Story of the Sex Scandal that Nearly Brought Down a President, and Too Close to Call: The 36-Day Battle to Decide the 2000 Election.
Previously, Toobin served as an assistant U.S. attorney in Brooklyn. He also served as an associate counsel in the Office of Independent Counsel Lawrence E. Walsh, an experience that provided the basis for his first book, Opening Arguments: A Young Lawyer's First Case—United States v. Oliver North. Toobin earned his bachelor's degree from Harvard College and graduated magna cum laude from Harvard Law School where he was an editor of the Harvard Law Review.
KENNETH R. FEINBERG: Biography
Kenneth R. Feinberg is one of the Nation’s leading experts in alternative dispute resolution, having served as Special Master of the 9/11 Victim Compensation Fund, the Department of Justice Victims of State-Sponsored Terrorism Fund, the Department of the Treasury’s TARP Executive Compensation Program and the Treasury’s Private Multiemployer Pension Reform program. He was also Special Settlement Master of the Agent Orange Victim Compensation Program. In 2010, Mr. Feinberg was appointed by the Obama Administration to oversee compensation of victims of the BP oil spill in the Gulf of Mexico. Most recently, he has served as Administrator of the New York State Dioceses’ Independent Reconciliation and Compensation Funds, the One Orlando Fund, the GM Ignition Switch Compensation Program, and One Fund Boston Compensation Program arising out of the Boston Marathon bombings. He is currently the Court-appointed Settlement Master in the Fiat/ Chrysler Diesel Emissions class action litigation in San Francisco. He has been appointed mediator and arbitrator in thousands of complex disputes over the past 35 years.
EXTRAS: Downloadable Files
2019 Public Interest Lecture, Professor Laurence Tribe, Program PDF!
2019 Public Interest Lecture, addition to the Program Excerpt from To End A Presidency: The Power Of Impeachment, by Laurence Tribe & Joshua Matz, PDF!
COMING SOON: 2019 Public Interest Lecture, Conversation TRANSCRIPT PDF!
EXCERPTS FROM TO END A PRESIDENCY: THE POWER OF IMPEACHMENT, BY LAURENCE TRIBE AND JOSHUA MATZ
Impeachment haunts Trumpland. Never before has an American leader so quickly faced such credible, widespread calls for his removal. By early 2018, the list of alleged “high Crimes and Misdemeanors” included abuse of the pardon power, obstruction of justice, assaults on the free press, promotion of violence against racial and religious minorities, receipt of unlawful emoluments, deliberate refusal to protect the nation from cyberattacks, and corrupt dealings relating to Russia. President Donald J. Trump fueled these fires by rejecting bipartisan norms of presidential conduct and by ferociously attacking anyone who dared to challenge him. (p. xi)
While casual calls for #impeachment now litter the Internet, ending a presidency this way remains a very big deal. It’s easy to forget that the United States has never actually impeached and removed a president. (p. xiii)
If we don’t allow presidential impeachment, warned Benjamin Franklin, then the only recourse for abuse of power will be assassination. (p. 1)
Including an impeachment power in the Constitution would prevent corrupt and criminal presidents from seeking victory at any cost. Even if returned to office by loyal supporters, they could still face justice for their wrongdoing. (p. 5)
The impeachment power is not a tool for Congress to eject a president solely because of disagreement with his policies. (p. 20)
If these cases suggest ways in which the impeachment power shouldn’t be used, that leaves the question: When should it be invoked? (p. 21)
Presidential abuses come in many shapes and sizes. Although the events constituting Watergate justified removal, so could many other terrible but very different courses of conduct. As the Framers knew, democracy can fall to charismatic demagogues, would-be monarchs, self-interested kleptocrats, sophisticated criminals, and high-functioning morons. Because threats from the presidency can be so diverse, our vision of the impeachment power must be equally capacious. (p. 22)
Simply put, impeachment is our system’s last resort for avoiding genuine catastrophe at the hands of the president…Impeachment should occur when a president’s prior misdeeds are so awful in their own right, and so disturbing a signal of future conduct, that allowing the president to remain in office poses a clear danger of grave harm to the constitutional order. (p. 23)
In short, when a president commits an impeachable offense, he has done something so awful that we must seriously consider removing him without waiting for the next election. We face that decision because the president has lost legitimacy and viability as our leader, and because we fear he’ll inflict further damage to our polity if he remains in power. (p. 42)
Trump’s flagrant and continuing violation of the Emoluments Clauses is deeply tumbling in its own right. But that pattern of illegal conduct also connects to broader concerns that he has infected our political system with elements of kleptocracy. By undermining the wall of separation between his family business and the US government–and by undeservedly elevating his own children to prominent public positions–Trump has acted more like a third-world dictator than the leader of a democratic nation. Further, since taking office he has used Twitter to attack journalists who criticize his properties; he has repeatedly visited and promoted Trump-branded restaurants, hotels, and golf clubs; and he has directly threatened the business interests of his prominent political critics. (p. 67)
Failing to impeach a president for “high Crimes and Misdemeanors” may result in irreparable damage to the constitutional system. That is particularly clear when the impeachable offenses at issue undermine democracy or threaten the separation of powers. In such cases, only by removing the president from office can Congress undo the immediate damage and prevent continuing constitutional harm. (p. 97)
Power can never be exercised without consequence. That is doubly true for the great powers of the Constitution, including impeachment. When Congress ends a presidency before its natural life span, there’s no avoiding profound and enduring national trauma. If the president’s “high Crimes and Misdemeanors” aren’t widely felt, the removal process itself will be. (p. 100)
In any event, when gauging the risks of an impeachment, it shouldn’t be presumed that weakening the presidency is automatically a bad thing. There’s nothing magical or necessary about the current distribution of power among the branches of government. If anything, modern presidents probably have too much authority in the US constitutional system, not too little. (p. 104)
Whether our nation’s leader is being elected or removed, it goes without saying that who decides the identity of the American president makes an enormous difference. Never has this been a clearer than on December 12, 2000, when five Republican-appointed Supreme Court justices decided that George W. Bush, a Republican, would be the forty-third president. The constitutional reasoning offered to justify this outcome was hard to credit. (p. 109)
The majority achieved its goal, but it paid a high price. As Justice John Paul Stevens prophesied in dissent, Bush v. Gore forever damaged “the Nation’s confidence in the judge as an impartial guardian of the rule of law.” (p. 110)
Whereas members of the House of Representatives are directly elected every two years, presidents have always been chosen by the Electoral College. At heart, the Electoral College is an undemocratic and unrepresentative institution. (p. 118)
To this day, while failing achieve any worthwhile purpose, the Electoral College continues to skew the course and outcome of elections. In practice, it serves mainly to promote minority rule and to provide small states with an undemocratic advantage over larger states. In consequence, when the House rises to accuse a president of “high Crimes and Misdemeanors,” it is fortified by the distinctive legitimacy conferred through frequent, direct elections. Not all presidents can claim a comparable mandate, especially if they took office after losing the national popular vote. (p. 118)
Pulling these objections together, we can develop a sharper sense of what the Framers sought in an impeachment tribunal: (1) independence from the president in its selection process; (2) no other role in judging the president’s misdeeds; (3) enough members to resist corruption; and (4) the legitimacy, competence, and courage to adjudicate disputes between the House of Representatives and the president of the United States. With the Supreme Court disqualified, this left only one viable option in the federal government: the Senate. (p. 123)
Reviewing all of these structural safeguards, you can feel the Framers’ anxiety. Impeachment was the power they most grudgingly included in the Constitution. Unsure who should hold it, they settled on Congress as the least bad option. Then they piled on limits to prevent impeachment from getting out of hand. In total, they devoted six separate clauses to the subject. Those provisions establish important ground rules for ending a presidency. (p. 127)
The Senate’s role begins when it is formally notified by the House that articles of impeachment have been approved. The Senate must inform the House when it is ready to first receive the managers. Subsequently, the managers appear before the bar of the Senate to orally accuse the president of “high Crimes and Misdemeanors,” and to “exhibit” the articles of impeachment against him. (p. 131)
Most famously, the president swears a constitutionally specified oath of office, the only one that the Constitution spells out word for word: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect, and defend the Constitution of the United States.” In addition, Article VI requires that all state and federal officials “shall be bound by Oath or Affirmation, to support this Constitution.” It’s therefore striking that the Framers added an extra oath here. After being sworn into office, legislators can exercise all their other powers without taking additional oaths. Indeed, House members can debate and vote on articles of impeachment in the ordinary course of business. Only in the Senate, and only for impeachments, is a further oath required. The Constitution thus impresses on each senator the unparalleled gravity of his or her decision in the case at bar. It also signifies that the Senate now sits as a court rather than as a legislative body and can exercise adjudicative powers elsewhere denied to it. (p. 133)
In structuring impeachment proceedings, the Senate has virtually unbounded discretion. The Senate’s “sole Power to try all Impeachments” thus includes the authority to redefine or eliminate almost every standard feature of a judicial trial. (p. 135)
Unlike judicial trials, where most procedures and standards are knowable in advance, impeachments are tried before a court that often lacks consistent or agreed-upon rules, changes them midway, or refuses to reveal them to the parties. (p. 138)
Congress’s discretion only makes it more important that legislators adhere to values of justice and fair play. That’s true both of the procedures they establish and the substantive decision they render on removing a president. Legislators will always scheme and skirmish. Party loyalty doesn’t dissipate overnight. But ultimately, the House and Senate have a constitutional duty to reach an equitable, well-supported outcome that can be accepted as legitimate by nearly all Americans. (pp. 138-139)
Impeachment is a political remedy wielded by politicians to address a political problem. Their mastery of politics makes legislators savvy judges—both of the specific charges and of the broader circumstances. Nobody else in the federal government better comprehends the use and abuse of power, or can more capably assess whether the president has truly crossed a line. (p. 141)
It’s unnerving to consider the significance of presidential popularity in impeachments. Approval ratings can be affected by a thousand variables, ranging from economic growth to developments in foreign policy to the president’s general affability. The fact that a president excels at speechifying may have little to do with whether he's a tyrant. Yet in practice, presidents who are good at maintaining a positive public image may have more leeway to get away with “high Crimes and Misdemeanors.” (p. 144)
This leads to another major factor in impeachments: political party control of Congress. The impeachments of Johnson, Clinton, and Nixon all occurred while their opponents controlled both the House and Senate. That isn’t a coincidence. (p. 145)
Although impeachment and proof of “high Crimes and Misdemeanors” don’t always march together, evidence of presidential misconduct certainly matters. Usually there are three key questions: (1) What did the president do? (2) Why did the president do it? (3) Does this conduct justify impeachment? (p. 148)
Compared to the first two hundred years of the nation’s history, impeachment now plays a drastically more important and disruptive role in US politics. Modern Americans live in the post-Clinton age of a permanent impeachment campaign. (p. 153)
After the tempests of the early 1950’s, presidential impeachment returned to the political hinterlands…impeachment talk in this period focused squarely on the Supreme Court. Led by Chief Justice Earl Warren, the Court decided Brown v. Board of Education in 1954. It then spent decades expanding and creating rules to safeguard civil rights. Southern backlash led to a flurry of “Impeach Earl Warren” billboards. Richard Nixon capitalized on that anger in his law-and-order presidential campaign and then set out to impeach Justice William O. Douglas in 1970. . . . Although that particular effort failed, Nixon later succeeded beyond his wildest dreams– or nightmares– in reinvigorating the impeachment power. (p. 169)
Before continuing, let’s pause and review the story from 1950 to 1992. In this period, mainstream interest in presidential impeachment spiked four times: Truman (1951 and 1952), Nixon (1974), and Reagan (1986). There were also two minor calls to impeach, both meant to protest military action: Regan (1983) and Bush (1991). Compared with US history until 1951, this represented a marked increase in formal impeachment activity. Four presidents faced impeachment resolutions in the House across this forty-one-year period, as compared with five presidents in the preceding one hundred sixty-two years. (pp. 173-174)
To our knowledge, 2016 was the first campaign between two non-incumbents marked by open threats of impeachment for whoever won. (p. 185)
After Trump’s surprise victory, many Democrats fell into a state of grief and despair. The sheer enormity of the disaster left them too stunned to plan their next steps. Within weeks of the election, though, early sparks of impeachment talk appeared in liberal blogs and Twitter feeds. Like so much else about the 2016 election, the wave of impeachment sentiment that built from November through January was unprecedented. But so were Trump’s flagrant violations of the Emoluments Clauses, which made it conceivable that he would commit an impeachable offense on his very first day. (p. 186)
To be sure, impeachment talk can sometimes play a valuable role in our constitutional scheme. When a president approaches the outer limits of his power, inspires doubt concerning his mental fitness, or adopts bizarre positions on important issues, demands for his removal may function as an early warning system. In that respect, they might help the American people signal in a peaceful way that opposition to the president has escalated beyond ordinary political disagreement. (p. 193)
American democracy faces many looming threats, but the rejection of truth as a limit on power is the most dangerous. And this trend has accelerated exponentially since Trump took office. Like no president before him, Trump lies constantly, surrounds himself with liars, and exults in bullshit. (p. 212)
History offers an unnerving lesson on this point: without the ideal of objective truth, democracy is doomed. As Professor Timothy Snyder warns in his influential pamphlet, On Tyranny, “to abandon facts is to abandon freedom. If nothing is true, then no one can criticize power, because there is no basis upon which to do so.” (p. 213)
In calling for a clear-eyed view of impeachment, we have emphasized realism over fantasy. Impeachment is neither a magic wand nor a doomsday device. Instead, it is an imperfect and unwieldy constitutional power that exists to defend democracy from tyrannical presidents. (p. 236)
Let’s start with first principles: when faced with an aspiring tyrant, it is essential to call evil by its name. Presidents who abuse their power, betray the nation, or corrupt their office must be confronted and constrained. (p. 238)
The Constitution wisely declines to specify any single approach to combating tyranny… This analysis leads us to a deeper truth about impeachment’s role in American politics. In the first instance, the impeachment power is a constraint on the president and a check against abuse of executive authority. But its most fundamental purpose is greater still: the preservation of American democracy under the Constitution. (p. 239)
Invoking impeachment in ways that destabilize democracy is thus perverse and profoundly irresponsible. This is most obviously true of impeachment proceedings, like those against Bill Clinton, motivated by partisan animus and doomed by lack of public consensus. Yet it can also be true of promiscuous, hyperpartisan, and implausible calls for impeachment that reinforce (and accelerate) a cycle of broken politics. To ensure that the impeachment power supports democracy, rather than erodes it, Americans must rehabilitate the distinction between opposing a president and supporting his removal. This will require unlearning bad lessons of the recent past and adopting a saner, more discerning mindset. (pp. 239-240)
These days, however, our political system is sick and getting sicker. Polarization and partisanship are on the upswing, while extremists on all sides grow even bolder. Younger Americans have started losing faith in our basic plan of government. And the last few years have offered a continuing lesson in the fragility of rules and norms long seen as essential to preserving democracy. These trends evoke the classic lines from W.B. Yeats: “Things fall apart; the centre cannot hold; mere anarchy is loosed upon the world.” Ultimately, our cycle of political dysfunction may well impel us toward tragedy. The same decline and dysfunction that beget a president who threatens democracy itself might also make impeaching that president all but impossible. (p. 240)
This connection between impeachment and democracy runs both ways. As we’ve seen time and again, impeachment depends upon the very same democracy that it seeks to protect. The power to end a presidency will not keep us safe if American politics are so broken that the public cannot recognize and rally against a tyrant. (p. 240)
To avoid this dark trajectory, we must abandon fantasies that the impeachment power will swoop in and save us from destruction. It can’t and it won’t. When our democracy is threatened from within, we must save it ourselves. Maybe impeachment should play a role in that process; maybe it will only make things worse. Either way, reversing the rot in our political system will require creative and heroic efforts throughout American life. And at the heart of those efforts will be the struggle to transcend our deepest divisions in search of common purpose and mutual understanding. We must draw together in defense of a constitutional system that binds our destinies and protects our freedom. (pp. 240-241)