Tribe, Lawrence

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After decisions in two states ruled that Donald Trump was disqualified from the presidential ballot because he “engaged in insurrection” on January 6, 2021, right-wing influencers called for Republican officials to retaliate in kind by dropping President Joe Biden from the ballot. It took only days for them to find someone willing to play the part: Jay Ashcroft, Missouri’s secretary of state and a candidate for governor.

Ashcroft said last week that he would enforce “the new legal standard” against Biden in his state if the Supreme Court sustains Trump’s removal in Colorado. He probably won’t be the last to make such a pitch given the incentives GOP officeholders have to follow the lead of the party’s media propagandists.

Colorado’s Supreme Court generated a legal firestorm when it ruled in December that Trump is ineligible for office under the 14th Amendment’s ban on officials who “engaged in insurrection,” for his “overt, voluntary, and direct participation” in the storming of the U.S. Capitol by his supporters. Maine Secretary of State Shenna Bellows subsequently removed Trump from the primary ballot on similar grounds. Trump has appealed both decisions, and the Supreme Court said Friday it would review the Colorado ruling.

Prominent conservative legal scholars have argued in favor of Trump’s removal on 14th Amendment grounds. As conservative former federal Judge J. Michael Luttig wrote with liberal Harvard Law professor Lawrence Tribe, “any disinterested observer who witnessed that bloody assault on the temple of our democracy, and anyone who learns about the many failed schemes to bloodlessly overturn the election before that” would agree that January 6 was “an insurrection for which Trump bore responsibility.”

But Trumpist propagandists have spent the last three years crafting a bogus alternate narrative of January 6 in which the rioters were victims of a government conspiracy and the then-president who incited them based on lies did nothing wrong. And so they’ve responded to the rulings in Colorado and Maine by urging Republican officials to bump Biden from the ballot in retaliation.

“Due process is not taken into account any more in America in 2023 and certainly going into 2024, so Republicans should say Joe Biden is off the ballot in all the Republican-controlled-AG states because of his links, clearly, to bribery schemes,” Donald Trump Jr. offered on his Triggered podcast on December 28, 2023. “There's far more evidence of that than an actual insurrection.”

“I want to see a secretary of state in the next couple of days just put out the press release,” Turning Point USA’s Charlie Kirk said Wednesday. “Joe Biden's not going to be on the primary ballot. He's not going to be on the general election ballot.”

Like Trump Jr., Kirk made clear that any explanation for why a secretary of state would do such a thing would be a pretext, saying, “Shot across the bow. Power dynamics. Fight power with power.”

“We need a red state secretary of state to kick Biden off the ballot now,” Daily Wire podcaster Michael Knowles added Friday morning. “And they can come up with some explanation. It will probably be a more credible explanation than the one that the Democrats have come up with for kicking Donald Trump off the ballot.”

Knowles went on to say that a GOP secretary of state could cite a 2020 tweet by Vice President Kamala Harris’ campaign asking supporters to donate to a Minnesota bail fund to “help post bail for those protesting on the ground” there following the murder of George Floyd by a police officer.

“Certainly we can say Kamala Harris led an insurrection. She personally fundraised for rioters and criminals who were insurrecting against cities around the country during the George Floyd riots,” he explained. “So OK. Make it Kamala Harris, and then Kamala can't appear on the ticket, and you don't even need to go after Joe Biden.”

The incentive structure on the right is such that once major players like Kirk and Knowles start creating a demand for action, Republican officials will supply it. Ashcroft, who is seeking a promotion to governor but faces a competitive GOP primary against candidates including the state’s lieutenant governor, answered the call later on Friday.

“What has happened in Colorado & Maine is disgraceful & undermines our republic,” the Missouri secretary of state wrote on X (formerly Twitter). “While I expect the Supreme Court to overturn this, if not, Secretaries of State will step in & ensure the new legal standard for @realDonaldTrump applies equally to @JoeBiden!”

He subsequently used the story to direct people to his campaign website, saying on X, “Its time to stand and be counted. The future depends on it.”

It can be difficult to tell whether GOP officials are acting in response to right-wing media figures or if they’re converging on the same idea independently because they’re all swimming in the same milieu of Republican base voters. But notably, when Ashcroft discussed the potential rationale he would use to remove Biden from the ballot in an interview with NBC News, it sounded an awful lot like Knowles’ idea from earlier in the day:

Asked how he would disqualify Biden from the ballot for insurrection, Ashcroft said that he's “let an invasion unstopped into our country from the border.” Vice President Kamala Harris, he added, “supported people that were rebelling against the U.S. government during the riots in 2020,” referring to racial justice protests in the wake of George Floyd's murder.

“If this is the standard, does that suddenly mean she's not allowed to run? None of us can say, because there is no standard,” he said.

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Constitutional law scholar breaks down how Trump lawyer 'completely misused' his work in coup memo

Elizabeth Preza August 10, 2023

Legal scholar and Harvard University Professor Emeritus Laurence Tribe on Tuesday detailed how a lawyer for Donald Trump “completely misused” and “grossly [misrepresented]” his work in a memorandum purporting to proved a legal framework for the former president’s efforts to overturn the results of the 2020 presidential election.

Trump last week was indicted on four felony counts related to those efforts.

Tribe’s breakdown of the Nov. 18, 2020 Memorandum, written by attorneyKenneth Chesebro (or “co-conspirator 5,” according to special counsel Jack Smith), was published in Just Security one day before the New York Times revealed the existence of a Dec. 6, 2020 internal campaign memo that Department of Justice prosecutors “are portraying as a crucial link in how the Trump team’s efforts evolved into a criminal conspiracy.”

READ MORE: 'Veil of legitimacy': Ex-prosecutor shows why this Trump lawyer will likely face charges

The Nov. 18 memo, entitled “The Real Deadline for Settling a State’s Electoral Votes,” is the first in a series of documents that the special counsel laid out in his indictment of Trump, and, Tribe claims, “ relied on a gross misrepresentation” of the constitutional scholar’s work.

“As the title of the November 18 Memorandum indicates, Chesebro focuses on what he considers the ‘real deadline’ under the federal scheme for presidential election,” Tribe wrote. “In the body of the Memorandum, [Chesebro] quotes me completely out of context.”

The constitutional law professor claims Chesebro’s memo “grossly misrepresents what I wrote in my constitutional law treatise on the power of one Congress, through legislation, to bind a future Congress’s ability to pass new legislation,” accusing the Trump lawyer of flipping his conclusion “on its head” and “citing [his] work in support of the very opposite conclusion.”

READ MORE: 'We fear for their union': Dutch MEP blasts US gerontocracy — and warns 'Trump is a serious threat'

Per Tribe:

Specifically, in an apparent effort to get around the obviously binding force of the Electoral Count Act … Chesebro completely misused part of the latest edition of my constitutional law treatise.

…

In those passages I explained my view as to why “the power of Congress legislatively to bind subsequent Congresses is limited, for any statute that purported to direct or to forbid subsequent Congresses to do certain things or to follow certain procedures could be repealed, as could any other law, by another duly enacted statute.” Despite the clearly limited nature of that modest proposition, Chesebro cites my writing as though it stands for the radical claim that it would be wrong “to view the Electoral Count Act as tying the Senate’s hands, unless amended." That is, he averred that the Electoral Count Act could be flouted without a subsequent amendment or revocation by Congress.

What’s worse, as a result of this misrepresentation, Chesebro put me in the (outlandish) camp of those suggesting that the Electoral Count Act can be disregarded – for example, by a unilateral vice presidential decision to deem it “unconstitutional.”

Noting that Chesebro helped him as a research assistant in the “the very parts of [Tribe's] treatise” that the Trump lawyer then “misused,” Tribe argues his “dissection of the November 18 Memorandum shows not only a gross misrepresentation of legal authorities, but more importantly Chesebro’s pivotal role in laying the groundwork for ‘a coup in search of a legal theory.’”

Tribe then unequivocally refuted the very scheme Chesebro sought to enact to help Trump remain in power.

READ MORE: GOP congressional candidate 'wildly plagiarized' and 'entirely made up' portions of his honors thesis: report

“In future elections, removing the guardrails of the Electoral Count Act as Chesebro sought to do could grievously endanger our entire system of self-government under law,” Tribe wrote.

Read Tribe's full analysis at Just Security.

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David Edwards Raw

proof of sellout:~ epa clean power

Laurence H. Tribe argued the case for Petitioner Intervenor

Peabody Energy Corporation. With him on the

briefs were Jonathan S. Massey, Tristan L. Duncan, and

Thomas J. Grever.

CPP

Laurence Tribe, constitutional law professor at Harvard Law School and of-counsel at the firm Massey & Gail LLP, recentlytestified in front of the U.S. House Committee on Energy and Commerce against the proposed U.S. Environmental Protection Agency (EPA) carbon rule.

Currently working as legal counsel for coal industry giant Peabody Energy and helping the company write comments, Tribe submitted a 57-page legal memo to accompany his. In December 2014, Tribe submitted 35 pages worth of comments to the EPA on its proposed rule.

Joining Tribe were both :{New York University School of Law professor Richard :(style="letter-spacing:0.03em"):}:Revesz and Hunton & Williams attorneyAllison Wood, who testified for and against the Clean Power Plan, respectively. But Tribe served as the star witness and fielded most of the questions from the Committee during the question-and-answer session.

Fittingly given his distinguished legal background, Tribe argued against the Clean Power Plan on constiutional law grounds.

“Burning the Constiution should not become part of our national energy policy,” Tribe wrote in the early pages of the legal memo he submitted to the Committee. “At its core, the issue the Clean Power Plan presents is whether EPA is bound by the rule of law and must operate within the framework established by the United States Constitution.”

He also proposed a solution — favored by his client Peabody — in a section titled, “There is a Better Way.”

“The United States could…support carbon capture and storage technologies,” Tribe wrote, not mentioning Peabody's advocacy for so-called “clean coal.”

“An 'all of the above' energy policy can support all forms of domestic energy production that will minimize carbon emissions, protect consumers and American jobs, and ensure that the U.S. remains independent from unreliable foreign sources of energy.”

The Rebuttal

Advocates for the Obama carbon rule, such as the Sierra Club, rebutted Tribe.

“Harvard University may pay Laurence Tribe to teach law school classes, but when it comes to Tribe’s positions on the Clean Power Plan, it’s the coal industry signing the checks,” David DiMartino, advisor to the Climate Action Campaign — which advocates for the Clean Power Plan — and employee of Blue Engine Media, said in an email statement provided to DeSmog.

“Make no mistake: the polluter industry’s attempt to buy a high-profile law professor, just as they’ve contributed hundreds of millions to buy their agenda in Congress, won’t fool the overwhelming majority of Americans who want Congress to take action on climate change.”

Natural Resources Defense Council (NRDC), credited by The New York Times as a key behind-the-scenes author of the Clean Power Plan, has also taken umbrage with Tribe's legal posturing.

“Peabody/Tribe claim that the Clean Power Plan won’t make any difference to climate change. That’s false,”David Doniger,director of NRDC's climate and clean air program, told DeSmogBlog via email. “Everyone knows that curbing climate change requires action by all of the world’s major contributors, including the U.S. The question is how can the U.S. best exert leverage to make this happen.”

In December, Doniger wrote a blog post critiquing Tribe's legal argument contained in the comments he submitted to the EPA.

Tribe, Wood Industry Ties

Tribe currently represents or has recently represented many corporate clients, including fossil fuel industry interests, throughout his storied legal career.

Beyond Peabody, Tribe currently represents the Bill Koch-funded Alliance to Protect Nantucket Sound; 7-Eleven, Inc., QuikTrip Corp., and Kum & Go, L.C; along with the National Association of Manufacturers, the American Petroleum Institute and many others in a class action lawsuit.

In the past, Tribe has also represented the likes of General Electric and Consumer Energy Alliance, an industry front group. An article by the Daily Climate's Marianne Lavelle points out some of Tribe's other corporate legal ties.

Allison Wood, the Hunton & Williams attorney testifying against the Clean Power Plan in concert with Tribe, also has represented (or currently represents) many industry actors. But she did not disclose any of them in her truth in testimony form submitted to the Committee, simply listing herself as a partner at the firm on the form and on her testimony.

Wood's clients have included American Electric Power, Southern Company, a utility industry front group called the Utility Air Regulatory Group, another utility industry front group called the Clean Air Markets Group, Edison Electric, as well asExxonMobil and Murphy Oil.

On her biography page for Hunton & Williams, Wood openly states that she served of counsel for industry clients, calling them “representative” of who she tends to work with.

“Her representative clients include companies and trade associations in the electric generation industry, petroleum industry, manufacturing industries, and transportation and land development industries,” reads the biography.

Neither Tribe nor Wood responded to requests for comment sent via email by DeSmog.

http://www.desmogblog.com/2015/03/20/peabody-coal-lawyer-laurence-tribe-obama-law-professor-testifies-congress-epa-carbon-rule

http://desmogblog.com/2016/02/18/corporate-front-groups-supreme-court-obama-clean-power-plan

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least five Republican governors, including two presidential hopefuls — Scott Walker of Wisconsin and Bobby Jindal of Louisiana — have indicated they may defy new federal rules that are part of President Obama's climate change agenda. The rules — which are meant to reduce the nation's carbon emissions and speed the transition to renewable energy and a low-carbon economy — require existing power plants to reduce their carbon emissions 30 percent by 2030 (from 2005 levels). This goal is to be achieved by federally-enforceable state plans submitted to the EPA.

The gubernatorial response follows Senate majority leader Mitch McConnell's campaign, launched earlier this year, to get state governors to refuse to carry out the new regulations, which are slated to be finalized this summer.

In a March letter to the nation's governors, Sen. McConnell issued a warning:

[S]ubmitting a plan exposes states to the real danger— allowing the EPA to wrest control of a state’s energy policy if they or any other federal agency becomes dissatisfied with a state’s progress in reaching federal emissions goals. As both the EPA and other environmental groups have noted, a state plan must be “federally enforceable.” The meaning of this language is clear: as the EPA sees it, a state-issued plan would give the agency broad new authority to control that state’s energy future — not to mention the ability to place the blame for future consequences squarely on the state itself.

He also quoted Harvard Law School professor Laurence Tribe, who called the EPA’s plan “constitutionally reckless”, saying it “usurp[s] the prerogatives of the States, Congress and the Federal Courts — all at once.” Tribe, a long venerated legal scholar and Constitutional lawyer who was Barack Obama's mentor, has lately been the target of criticism for his representation of Peabody Energy, a coal company, in its fight against the EPA's carbon emissions rules.

http://ecowatch.com/2015/02/12/carl-pope-why-they-hate-clean-power-rule/

carl pope

The vicious coal industry/right-wing attack on President Obama’s proposed Clean Power Rule is not fundamentally about the rule itself. Substantively, the proposal is simply the fulfillment of one of George W. Bush’s 2000 campaign promises—to clean up carbon pollution from power plants.

...

Then there is the argument, best explained by David Roberts in Grist, that states should be able to comply with EPA rules using flexible approaches, but EPA cannot consider these opportunities.

EPA wants to allow states to reduce emissions not only by cleaning up individual power plants, but also by encouraging energy efficiency and other system wide reforms. Critics argue that Section 111(d) of the Clean Air Act allows power companies this kind of flexibility in meeting EPA’s standards once they are set, but that EPA cannot consider such flexibility in setting the standard. Again the courts will decide how the law should be read. But allowing flexibility is clearly good public policy. If inefficiencies in the electric sector are driving up pollution and it’s cheap to clean it up, why shouldn’t state standards reflect that opportunity?

Finally, Peabody Coal hired Harvard constitutional law scholar Lawrence Tribe to thunder that the Clean Power rule will rend the fabric of American society by depriving the states of their autonomy and his client, Peabody, of its property.

This argument is so difficult to make that a lawyer of Tribe’s caliber was clearly needed. (And why Tribe, whose career was built on protecting vulnerable clients like he disabled wrongly deprived of their pension benefits should take Peabody as a client, a company which exploited federal bankruptcy law loopholes to strip thousands of long time workers, many disabled, of health care and pensions is perplexing.

Fortunately Tribe fails. His brief for Peabody offers standard constitutional principles, but applies them to utterly phantasmagoric facts, perhaps provided by Peabody. Ignoring decades of regulation of power plant pollution, and the signature by three US Presidents on international agreements calling for halting global warming, Tribe begins by claiming that there is an established national policy of favoring coal and leaving its pollutants unregulated. He then argues that the Clean Power Rule upends that policy. It thus… represents a radical shift in federal policy that upsets settled, investment-backed expectations…” Therefore the Rule violates the 5th Amendment because it effectively destroys the value of Peabody’s vast coal reserves.

But the rule does not even regulate Peabody. Its only impact will be fewer customers for less coal—but dozens of previous EPA rules have similarly impacted the market for various products, including coal. Tribe bases his 5th amendment taking claim on an allegation that the Clean Power Rule’s “intent” is to shut down all coal usage in the U.S.—which is perfectly preposterous, whatever I and climate scientists might like EPA to do. The rule will leave plenty of coal plants up, running and interested in Peabody’s coal—if the price is right.

Tribe also claims that the rule “seeks to commandeer state governments in violation of the Tenth Amendment.” Why? Because. The Proposed Rule goes to great lengths to appear as though it permits states some degree of freedom, but in truth it offers only Potemkin choices. The state is given leeway to “assign the emission performance obligations to its affected (power plants),” but only “as long as, again, the required emission performance level is met.”

This last sentence is true—and irrelevant. Under the proposed rule EPA sets the emission limit for each state. The standard must be met—or EPA will write its own plan for the state. But this is how the Clean Air Act has worked since 1970. EPA sets standards. States can meet them. If they fail EPA writes its own plan. Tribe never even hints at why carbon pollution from power plants should be different from fluoride pollution from chemical factories.

Tribe’s overall argument on behalf of Peabody is also in shocking contrast to his earlier views on the role of EPA in regulating carbon dioxide. In 2010 he argued that the courts lacked legal standing to take up the issue of nuisance damages from climate change, precisely because EPA had been delegated to regulate global warming pollutions:

“Congress, through the Clean Air Act and other measures, has empowered the Environmental Protection Agency to regulate greenhouse gases, and that agency has begun to do so, prodded by a Supreme Court ruling in favor of Massachusetts when the state sued the EPA to compel it to take up the problem. The courts should reject the political and administrative roles that would be thrust upon them by litigants dissatisfied with Congress’s decision to entrust the EPA with this challenging mission.”

An old legal saw says, “When the facts are on your side, argue the facts. When the law is on your side, argue the law. When neither is on your side, pound the table.” It’s sad to watch Larry Tribe pound the table—but neither the facts nor the law are on his side.

The real arguments against the Clean Power Rule are quite different—they are that carbon pollution should not be regulated at all, because global warming is not a sufficiently serious threat. But these arguments were dismissed by the Supreme Court years ago—so opponents of the EPA plan have been forced back on desperate legalisms to hold back the future—whose outlines I will look at in my next two postings.

http://en.wikipedia.org/wiki/Laurence_Tribe

aurence Henry Tribe (born October 10, 1941) is a professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor at Harvard University. He also works with the firm Massey & Gail LLP on a variety of matters.^[3]

Tribe is a liberal scholar of constitutional law.^[4] He is the author of American Constitutional Law (1978), a treatise in that field, and has argued before the United States Supreme Court 36 times.^[5] On May 22, 2013, he was presented with an honorary doctorate, Doctor of Letters, from Columbia University during the Class of 2013 commencement.^[citation ^needed]

[hide]

Early life and education

Tribe was born in Shanghai, China, the son of Paulina (née Diatlovitsky) and George Israel Tribe.^[6] His parents were Ashkenazi Jews. His father was from Poland and his mother was born in Harbin, to a family of immigrants from Eastern Europe.^[7][8] He was raised in the French Quarter of Shanghai.^[7] He attended Abraham Lincoln High School, San Francisco, California. He holds an A.B. in mathematics, summa cum laudefrom Harvard College (1962), and a J.D., magna cum laude from Harvard Law School (1966), where he was a member of the Harvard Legal Aid Bureau. Tribe won the intercollegiate National Debate Tournament in 1961 and coached the Harvard debating team to another national championship in 1969.^[citation ^needed]

Career

Tribe served as a law clerk to Mathew Tobriner on the California Supreme Court from 1966–67 and as a law clerk to Potter Stewart of the U.S. Supreme Court from 1967–68. He joined the Harvard Law School faculty as an assistant professor in 1968, receiving tenure in 1972. Among his distinguished law students and research assistants while on the faculty at Harvard have been Barack Obama (a research assistant for two years), Chief Justice John Roberts (as a law student in his classes), and Elena Kagan (as a research assistant).^[9]

The Supreme Court ruled against Tribe's client in Bowers v. Hardwick in 1986 and held that a Georgia state law criminalizing sodomy, as applied to consensual acts between persons of the same sex, did not violate fundamental liberties under the principle of substantive due process. However, in 2003 the Supreme Court overruled Bowers in Lawrence v. Texas, a case for which Tribe wrote the ACLU's amicus curiae brief supporting Lawrence, who was represented by Lambda Legal.

In 2004, Tribe acknowledged having plagiarized several specific phrases and a sentence in his 1985 book, God Save this Honorable Court, to a 1974 book by Henry Abraham.^[10][11] After an investigation, Tribe was reprimanded by Harvard for "a significant lapse in proper academic practice" but concluded that Tribe's error was unintentional.^[12]

Tribe represented General Electric in its defense against its liability under Comprehensive Environmental Response, Compensation and Liability Act ("Superfund"), in which GE and Tribe unsuccessfully argued that the act unconstitutionally violated General Electric's due process rights.^[13]

Political involvement

Tribe is noted for his extensive support of liberal legal causes. He is one of the co-founders of the liberal American Constitution Society, the law and policy organization formed to counter the conservative Federalist Society, and is one of a number of scholars at Harvard Law School who have expressed their support for animal rights.^[14] Tribe unsuccessfully argued one case for Al Gore during the disputed 2000 U.S. presidential election.

Tribe actively supported the Barack Obama presidential campaign, and described Obama as "the best student I ever had,"^[1] a sentiment previously reserved for Kathleen Sullivan.^[15]

Alongside Harvard's Cass Sunstein, Tribe served as a judicial adviser to the Barack Obama's 2008 presidential campaign.^[16] In February 2010, he was named "Senior Counselor for Access to Justice" in theDepartment of Justice.^[5][17] He resigned eight months later, claiming health reasons.^[18]

Response re Windsor v. United States

Tribe described Justice Antonin Scalia's response and dissent to the 5-4 Windsor v. United States decision as "intemperate", "extraordinary", and "at the very least, an exercise in jurisprudential cynicism". He posited that Scalia appeared unable to resist "the temptation to use the occasion to insult the Court's majority, and Justice Kennedy in particular, in essentially ad hominem ...terms", to wit:

"[P]rincipally to highlight the extraordinary character of this particularly vitriolic and internally inconsistent dissent ... about how the Court should have decided the very controversy that he says wasn't really before it ... [For Scalia to] accuse the majority of arrogance and then reach the merits after saying that the Court lacks jurisdiction to address the case requires no small dose of chutzpah ... Scalia didn't so much as consider the possibility ... that considerations of federalism might point to a particularly rigorous examination of the purported justifications for a measure like Section 3. ... In predicting that the opinion joined by the five Justices comprising today's Windsor majority would invariably lead to the invalidation of state efforts to limit lawful marriage to opposite-sex couples, Justice Scalia was engaging in a bait-and-switch unworthy of so serious and smart a jurist, one who often displays a principled side that even those who dislike his results would be hard-pressed not to admire ...^[19][20]

Persona

### Laurence Tribe - Wikipedia, the free encyclopedia

en.wikipedia.org/wiki/Laurence_Tribe

Wikipedia

Laurence Henry Tribe (born October 10, 1941) is a professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor at Harvard ...

Early life and education - ‎Career - ‎Political involvement - ‎Personal life

### Laurence H. Tribe | Harvard Law School

hls.harvard.edu/faculty/directory/10899/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 ...

### Laurence Tribe - The Colbert Report - Comedy Central

thecolbertreport.cc.com/videos/amck6x/laurence-tribe

Jan 30, 2012 - Laurence Tribe recalls teaching constitutional law to Barack Obama and Chief Justice John Roberts.

### Tribe's leader: Nestle bottled water plant a good partner

www.desertsun.com/story/news/local/2014/09/12/tribes.../15494811/

Sep 12, 2014 - Martin pointed out that the tribe has submitted reports on a portion of its ... Larry Lawrence, natural resource manager for Nestle Waters, said ...