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Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning again, everyone. We have an opportunity today to talk to the legendary Harvard constitutional law professor, Laurence Tribe, whose influence includes arguing dozens of cases before the US Supreme Court, having as students in his class at one time or another, John Roberts and Elena Kagan, now on the Supreme Court, of course, those two, and Barack Obama when he was in law school.

The Harvard Gazette writes, "As a trusted adviser to Democratic presidents and party leaders, Tribe has influenced nominations to the Supreme Court for nearly half a century, from the late Chief Justice William Rehnquist, to Justice Brett Kavanaugh, much to the delight and dismay of partisans," they write. As much as Tribe can write long, detailed legal briefs for the Supreme Court, and the groundbreaking textbook American Constitutional Law, I see he's also very active in the 280 character form of scholarship known as Twitter.

Two of his latest from the last day, "Department of Justice absolutely must throw all its weight now into a grand jury pursuit of the guy at the top of the criminal conspiracy against the constitution." I think you will know who that is. He wrote "Gorsuch's refusal to mask up on the bench, even when asked by the Chief Justice to do so, in order that the diabetic and hence immunocompromised Justice Sotomayor could attend in person, shows just what kind of a jerk Gorsuch is. I wish he weren't a Harvard Law School alum."

We'll ask Laurence Tribe about that tweet as we go. The reason we have Professor Tribe today is because he will be a featured speaker tomorrow at the second annual State of Democracy Summit, hosted by the Belfer Center at the 92nd Street Y here in New York, and Craig Newmark Philanthropies. It's a virtual summit and you can register for free at 92y.org. Professor Tribe, it's an honor. Welcome back to WNYC.

Professor Laurence Tribe: Thank you, Brian. It's a pleasure to be with you.

Brian: Let's start with a few of your tweets from the last day, if that's okay, and then we'll progress to longer texts. You tweeted, as I read, "DOJ absolutely must throw all its weight now into a grand jury pursuit of the guy at the top of the criminal conspiracy against the constitution." Obviously, that's about Trump. Do you think there's evidence of a crime regarding January 6th, as opposed to political lies about a stolen election, which might be protected free speech, or trying to get Congress to do some controversial things on January 6th?

Professor Tribe: I think that there is serious evidence of a crime. Certainly more than enough evidence to have made it imperative for the Justice Department, through the grand jury in Washington D.C. to investigate all the way to the top. Among the crimes that it looks like the president apparently violated, was corruptly impeding an official proceeding, a crime under 18 US Code section 1512. Conspiring to forcibly hinder the execution of a federal law, which is seditious conspiracy, a violation of 18 US Code section 2384, and inciting insurrection or giving aid and comfort to those who do incite an insurrection, a violation of 18 US Code section 2383. Punishable not only by imprisonment, but by permanent disqualification from office.

The more evidence that comes out from the extraordinarily active January 6 committee, the more we learn about the way in which these various criminal conspiracies interlocked. They were not only involved in the violent attack on our Capitol on January 6th, but they were involved in arm-twisting of officials in the lead up to January 6, in forging electoral certificates. The latest indication from one of the people indicted for insurrection, is that there was communication back and forth between the Oval Office and the War Room in the Willard Hotel, and people who were engaged in trying to have a bloodless coup, and if that failed, a rather bloody one.

The criminal activity that needs to be investigated, without any immunity for a former president or his closest aides, is staring us in the face. I worry that unless we get some indication, and sometimes these things do leak. Washington isn't exactly leak proof. Unless we get some indication that serious investigations all the way to the top are already underway, the clock will run out and the American people are bound to tell themselves, "Well, if nobody if the top has been indicted of a serious crime like seditious conspiracy or insurrection, then maybe the big lie wasn't a lie after all." That falsehood will settle in and make it harder to have full accountability and make it more likely that we will be in even worse shape than the next election for President of the United States in 2024.

Brian: Do you think that Trump sat there for three hours, apparently watching the violent part of the interaction on television, and did nothing to call them off when they were doing this on his behalf, counts legally or could count legally as aid and comfort? You cited that provision.

Professor Tribe: I do think so. Liz Cheney made the point very clearly when she said that even though-- I'm just paraphrasing her. Even though an ordinary citizen watching a violent attack and seeing capitol officers pummeled and squeezed nearly to death, and seeing a gallows. An ordinary citizen would have no obligation to come forward and couldn't be said to be helping to impede an official proceeding. The one person in the United States who has an affirmative obligation to execute the laws, and whose failure to do so is rather like the failure of the fire chief to do anything when he sees a fire, is Donald Trump.

Because under Article 2 of the Constitution, the president has the duty faithfully to execute the laws. For him to just watch and apparently, according to those who are with him, cheer as the violent crowd got ever more violent, for a full, I think it was 187 minutes, and do nothing despite the pleas that were coming his way from his enablers at Fox News and from people in Congress who were helping, and from his own family, right to the Chief of Staff. His failure to do anything, it's not just like the ordinary omission. It's much more like the lifeguard not jumping into the water to save someone who is swimming. It's not like someone who is passing by on the beach.

Brian: Listeners, we invite your constitutional law or state of democracy questions for Harvard law professor Laurence Tribe, ahead of tomorrow's State Of Democracy Summit from the 92nd Street Y that he's participating in. 212-433-WNYC. Remember, that's a virtual summit. Don't show up there. You can register at 92y.org. 212-433-9692. If you've always wanted to ask something of Larry Tribe but never had him over to dinner, or you can tweet your question @Brian Lehrer. If he can tweet rebuttals to Supreme Court decisions, you can certainly get your question done in a few hundred characters and tweet that to us @Brian Lehrer.

Professor Tribe, are you worried at all from a state of democracy standpoint, about becoming one of those countries that imprisons the former head of state, which we have not been in the past, almost regardless of what Trump has done? That that actually rams another hammer into democracy as we've experienced and cherished it in the United States?

Professor Tribe: I have heard the argument that it would make us look like a banana republic if we did anything, but I think we would become a banana republic if we did nothing. Yes, it's true, we haven't prosecuted former presidents. You may know otherwise, Brian, but I can't offhand think of a former president who has helped to foment an insurrection and who has not only questioned the legitimacy of the government that succeeds him, but actually tried to twist arms to make people "find" 11,780 votes that weren't there.

This is unique in our history. It is true that only if there is clear and strong evidence of criminality, should the former president be held accountable. Conversely, if there is clear and strong evidence of criminality for him not to be held accountable, is to send a terrible signal, not only to him and his supporters in the upcoming presidential election, but to every future leader of this country. Barbara Walter, who I think is now particularly famous for a recent book on civil wars around the world, if I'm not mistaken, thinks we're over halfway toward a civil war ourselves. The only way to stop backsliding is with stronger checks on executive power.

There is no stronger check than accountability in criminal court. Accountability begins with criminal investigation, with all the tools available to the FBI and to Attorney General Garland. I think if we don't use those tools, we become some kind of fruity republic. I'm not sure if banana is the right image.

Brian: Listeners, we're going to invite, we're just talking about this in a staff meeting yesterday, Barbara Walter, with her civil war book on the show. For those of you of a certain age, it's not that Barbara Walter from ABC News, it's a different one. Staying on the theme, Professor Tribe, of the state of democracy. How much do you think democracy is really being threatened by these changes in election laws around the country at the state level that has the Democrats really wanting to pass voting rights legislation in Congress?

Versus there are some creepy things going on, but there are always some creepy things going on and it's not like we're on the verge of authoritarianism in our elections. I want to play a clip of John Fortier from the Conservative Think Tank, the American Enterprise Institute, here on NPRs morning edition yesterday.

John Fortier: Look, I can't say on every issue that I would find agreement with either party, but I do think that there is just enough difference out there as to whether states want to run their elections on having lots of voting by mail or not, or be a little more restrictive of the time you can vote early or how you register registration. I think those are important issues, but they're not really fundamental to our democracy in a way that changes in the voting rights were 30 or 40 years ago.

Brian: You want to respond to that, Professor Tribe?

Professor Tribe: Yes. I think he has it wrong. I think things were pretty bad 30 and 40 years ago and then the Civil Rights Act and the Voting Rights Act began to clean them up, but the US Supreme court and the Shelby County case dismantled Section 5, the most important part, the pre-clearance section of the Voting Rights Act, and more recently in the Brnovich case, it made it almost impossible to use the act to really check whether those various restrictions are laser targeted toward minority groups and people that have a hard time voting.

There isn't time on your show for me to catalog all of the ways in which these new rules make it harder for people to vote, but beyond that, what's happening, quite apart from the voting rules themselves is with respect to the people who are counting the votes. All kinds of people who were respectable, responsible, non-partisan public servants, are being replaced quickly with people who are basically taking a loyalty oath to the GOP.

On top of that, there is a move afoot in many legislatures to take advantage of a rather radical theory, the independent state legislature theory, that says that no matter how you vote, and no matter how the vote counters tally the vote, the legislature if it wants to, can pick a different candidate as the one to whom its electors are pledged. On top of all of the distortions of the electoral college, we have things going on at the ground level that the commentator from NPR just didn't take account of.

I think it is clearly true that making voting easier rather than harder is crucial, but also making the vote counting process have real integrity is crucial. I think at 6:30 this evening, there's going to be an attempt not to get rid of the filibuster, but at least to move the issue to debate on the Senate floor, and any Senator who is too cowardly to actually stand up and be counted as opposed to the John Lewis Voting Rights law and other measures to preserve democracy, really doesn't deserve to be a public servant in this country.

Brian: Well then let me follow-up with something else I read in the Conservative press that goes to that moment that you were just anticipating, where presumably all 50 Republicans plus two Democrats will not let that measure go forward, because they won't change the filibuster. There was an op-ed by a Conservative writer I read this week weekend, I think, in the New York Post who said, and I'm paraphrasing because I'm doing this from memory.

The gist was that the ways Democrats are howling about saving democracy, they're actually the ones destroying it, wanting to change the filibuster, how many states there are, how many Supreme Court justices there, whether states can make their own voting laws within limits, or whether that becomes nationalized. Using their power to change the structures of democracy because they don't like the outcomes of the moment, is that critique. Your response to that?

Professor Tribe: I think again, it has it backwards. The number of states is not fixed in the constitution. There can be more states. D.C. should have been a state long ago, so should Puerto Rico. The very fact that they might vote Democratic is the only reason anybody genuinely has for opposing their inclusion in the union. The filibuster is hardly a harbinger or protector of democracy. It's profoundly anti-democratic and it's become worse and worse. Changing the size of the Supreme Court.

Well, that's happened over and over again. It was in fact contracted from nine to eight when the Republicans absolutely refused to consider any Obama nominee in the last year of the Obama term, to fill the vacancy created by Justice Scalia's death. No hearing whatever from Merrick Garland theory. Well, in the last year of a presidency, we shouldn't consider a justice. Then voila, in the very last minutes of the Trump presidency, indeed during the election itself, Amy Coney Barrett is confirmed. I think the shoe is on the other foot when it comes to who is manipulating the rules.

Brian: [unintelligible 00:16:30] in Brooklyn. You're on WNYC with Harvard law professor, Laurence Tribe. Hello, Benish.

Caller: Hi, sir. I was wondering if you could distinguish between how to think about prosecuting Trump under the Brandenburg principles, versus in terms of inciting a riot and what you are talking about here. Is it the same thing? Because from what I understand, the bar is very high when it comes to prosecuting anyone for inciting a riot.

Professor Tribe: Sure. I'd be glad to, Dennis. First of all, most of the prosecutions I talked about have nothing to do with his incitement at the [unintelligible 00:17:09] but have to do with things like twisting [unintelligible 00:17:14] arm or trying to pressure the vice president, or impeding the official proceeding of Congress. But with respect to giving aid and comfort and inciting the riot, the Brandenburg test that you're talking about, a Supreme court opinion in 1969 itself said that there is a deep difference between advocacy in the abstract and incitement in the sense of fomenting violence.

If you look at all the context and the circumstances of what, not only Trump, but Eastman and others who were at the ellipse were doing, it certainly crosses the Brandenburg line. Equally important, the Brandenburg test was designed to protect ordinary citizens. In that case, as it happens, distasteful citizens. Members of the Ku Klux Klan protect private citizens when they are attacking and criticizing the government and other groups of people. Wasn't exactly designed to protect the head of the government when he or she incites a mob to attack another branch of the government.

I don't think the Brandenburg test is anything more than a talking point for the other side in this case, but in any event the question of whether there is a first amendment defense is properly raised at a trial. You don't have a trial without an indictment. You don't have an indictment without a serious investigation. So far, although there are plenty of signs of serious investigation by this department of justice of the boots on the ground, they haven't quite reached the suits. The closest they've come is to the head of one of the groups of Proud Boys. I guess it was the Oathkeepers. I honestly don't think the Brandenburg case is much of an obstacle to full criminal accountability.

Brian: Let's take another call. Here is Craig in Westchester. You're on WNYC with Harvard law professor, Laurence Tribe. Hi, Craig.

Craig: Hi. Thank you, Brian. I'd love to hopefully expand the conversation. I know January 6th is possibly politically the most important thing to happen in the past 20 years, 50 years or 100 years, but Trump has possibly done illegal things beyond that. For example, he was witnessed by the Attorney General, the chief of staff and the White House counsel, when he was told he was being investigated by the FBI related to Russia's interference with the 2016 presidential election, all three of those officials witnessed him saying his famous quote, "Oh my God, this is terrible. This is the end of my presidency. I'm--" and he used the word, the F word. That's more than a little suspicious as people generally don't say things like that, unless they know, in fact they're guilty. Can't we assume that you use this as a point of evidence for his guilt in other things like the Russian interference in our 2016 election? Thank you.

Brian: Thank you. I'll mention that the New York State attorney general made news just yesterday, releasing evidence that Trump committed real estate fraud in New York. We don't know where he's headed legally, but Professor Tribe, what would you say to the caller?

Professor Tribe: Well, I would say the caller is certainly right. That there were serious crimes, probably obstruction of justice, that related to attempts to cover up the way in which Trump became president in 2016 in the first place. The Mueller report identified 10 such instances. William J. Barr lied about them and made it look like he had gotten a clean bill of health. The statute of limitations on those possible crimes is about to run out this spring.

I think the odds that Merrick Garland and this justice department will turn the clock back, even though they have the right and the power to, and I would argue the duty to, pretty slim. I think that their assumption seems to be that, what's past is past, although I fear that what's passed is prologue. There are all kinds of crimes that might be investigated, but the statute of limitations is running.

Apart from that, there's another kind of clock that's running. It's a political clock. Unless we achieve full accountability soon, it's going to be really too late. Certainly after the midterm elections. It's not officially too late in the year following, in 2023. But the point you made earlier, Brian, that it looks a little squishy to go after a political opponent, past president. It's going to look even worse if he's increasingly looking like a candidate for the presidency.

Whatever hesitation people have about going after him now, they're going to have even more later. These indictments don't always result in quick convictions. There was an indictment of people for seditious conspiracy. They went onto The Capitol floor and actually wounded a number of congressmen. They were Puerto Rican separatists. That happened in 1954, and within a year of that seditious conspiracy, they were indicted, tried and sentenced to between 14 and 67 years in prison.

It seems that the wheels of justice don't grind quite so quickly these days. There's delay by everybody. Delay by the Supreme court in ruling on whether Trump has to turn over all the stuff. The archives, that is, have to turn over all of Trump's papers to the January 6th committee. The wheels of justice are grinding rather slowly at the justice department, and I do think that people should wake up. Things don't have to be as slow as they seem to have been lately.

Brian: I want to turn to the Neil Gorsuch story that I mentioned in the intro that you tweeted about, that people are now tweeting us about and calling in about, that was broken by NPRs legal affairs correspondent, Nina Totenberg. Listeners, if you didn't hear that story, she reported, "With the Omicron surge and according to court sources, Sotomayor did not feel safe in close proximity to people who were unmasked. She has diabetes. Chief Justice John Roberts, understanding that in some form, asked the other justices to mask up. They all did, except Gorsuch who as it happened sits next to Sotomayor on the bench. His continued refusal since then has also meant that Sotomayor has not attended the Justice's weekly conference in person, joining instead by telephone."

That from Nina Totenberg's report on this on NPR. You tweeted, Professor Tribe, that this incident shows what kind of a jerk Gorsuch is. Is that a legal term?

Professor Tribe: I think it's a technical legal term that we've developed at Harvard Law School for some of our graduates. Without being facetious about it, I do think it was really, not only thoughtless, but hypocritical of him not to wear his mask. After all, he was one of the justices who voted that you cannot have-- that the OSHA cannot impose a workplace masking requirement without proof that there's something about the workplace, like the proximity of the individual workers, that makes this really a workplace risk.

I was imagining what the administration could do in response to that. What it could do, the president could direct OSHA to, among other things, have a rule that courts of all kinds, state, federal, where judges have to sit next to one another, must wear masks in order to facilitate the conduct of business without infecting their fellow jurists. It'd be interesting to see what Gorsuch would do in voting on a law like that.

Brian: Here's a call on this. Erin in Brooklyn. You're on WNYC. Hi, there. You're on the air.

Erin: Hi, good morning, Brian. A long time listener and 1978 graduate of Harvard Law School. Best regards to Professor Tribe. I wanted to ask professor, is there any possibility that Chief Justice Roberts can request of Justice Gorsuch, that he be placed in a separate room, distinct from the remaining justices, or that it would be he who should be directed to participate by telephone or some other manner, so that he could still hear the oral arguments and participate directly, but not be in proximity.

Brian: Who does the burden fall on, I guess is the question, Professor Tribe.

Professor Tribe: Well, Chief Justice Roberts can certainly ask, but I imagine Gorsuch would say, quite correctly, "You're not the boss of me." Not everybody knows, but the chief justice of the United States is not the employer, or the boss of the Associate Justices. They all work for us, although sometimes they seem to forget that.

Brian: A listener on Twitter asks on this topic. "I assume that what Justice Gorsuch did, refuse to wear a mask, is perfectly legal. Is there any legal course of action available to prevent or at least discourage such behavior in the future?"

Professor Tribe: No. Other than the hypothetical law or regulation issued by OSHA saying that every workplace in the land, and the Supreme Court is after all a workplace. It's bound by various rules. The separation of powers does not entitle it to become rat infested or to become a fire hazard. That every workplace in the land must, when the circumstances require the kind of proximity that exists in a courthouse, impose masking requirements.

Brian: I did want to ask you about the court striking down President Biden's vaccine mandate for all employers with 100 or more employees. They said, as I understand it, that it went beyond the authority of the ordering agency, which you just referred to, I think. The Occupational Safety and Health Administration, OSHA. To me, OSHA made sense because the mandate is first and foremost to protect people at the work site all day from repeated exposures to unvaccinated people, but I'm not a lawyer.

One thing that I was thinking as a parallel, and tell me why it wasn't for the majority of the justices. When New York city mayor Michael Bloomberg instituted his no smoking in restaurants policy, that one too was not to protect the health of patrons, who could choose to eat at a different restaurant, but to protect the workers inside, industrywide, who had no choice while on the job. Why didn't this fall into that category?

Professor Tribe: Well, it certainly would have, and if it had been a local or state rule, there's every indication that this court would've upheld it. It's upheld local and state mask and vaccine mandates. The point is, it was a federal rule and so the court said it needs authority from Congress. The only reason however that that didn't end the argument, was that there was authority from Congress.

Congress had passed a law decades ago authorizing the imposition of rules for workplace safety. It was broad enough to cover this particular regulation. The court didn't and couldn't deny it, so what did it say? Well, it said it's true that this rule does seem to fall within the broad congressional delegation, but we would like the delegation to be more narrowly tailored to COVID perhaps, or to specifics of the year 2022. Well, that's lovely. Asking Congress to pass laws is already hard enough, but asking it to have a crystal ball is a little much. How could they have tailored it more narrowly? Now they're going to have to have a rule that is much more specific. Now they can do it in light of what we now know about COVID, but the right answer in that case would've been the rule is broad enough. OSHA has broad authority and the fact as the Supreme Court said that the risk of COVID is not limited to workplaces, seems to me to be completely beside the point. I can't think of any risk that is present only in a workplace. The risk of fire, the risk of falling down on a work ladder. You could fall down on a ladder at home when you're trying to fix your gutters.

It's a ridiculous argument. It doesn't make sense on its own terms. It just shows how ideologically blind the court is these days, which is one of the reasons I think it needs to be enlarged. Something that the congressional progressive caucus just endorsed. Something that several members of the president's commission on the Supreme Court of the United States, on which I serve, have written op-eds urging, and something that I think needs to happen, even though the odds that it will happen with the current Congress are slim to none.

Brian: We're just about out of time. Let me ask you one final thing, on a lighter note. I mentioned in the intro that you had Chief Justice Roberts, Justice Elena Kagan and President Obama, back when they were law students. When you were teaching--

Professor Tribe: Let's not forget Merrick Garland, whom I have been critical of in various ways, but supportive others.

Brian: When you were teaching, and I realized you got the top of the top at Harvard law school to begin with, but did you feel like you could spot the ones who are most likely to become important national figures?

Professor Tribe: Sure. I said it at the time, I didn't know that Barack Obama would become president, but I was sure he would do important things. Likewise, Elena Kagan, likewise, Merrick Garland, Adam Schiff, Jamie Raskin, any number of people. But my best friends from way back include people you've never heard of. Wonderful people. It's not only important public figures that count for things in this country and I'm really honored and glad to have had the chance to teach so many wonderful people, as well as people who are a little less wonderful. Ted Cruz was one of my students and I don't tend to brag about that.

Brian: Laurence Tribe, Harvard law professor. He will be a featured speaker tomorrow at the second annual State of Democracy Summit. It's a virtual summit hosted by the Belfer Center at the 92nd Street Y and Craig Newmark philanthropies. It is also free and you can register at 92y.org. Professor Tribe, thank you for giving us so much time today. I really appreciate it.

Professor Tribe: Thank you, Brian. It was a pleasure.

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