“He Had No Bruises,” Lawyer in Harvard Assault Case Says of Israeli Victim

Plus, Biden unilaterally amends the Constitution

Elom Tettey-Tamaklo, a Harvard Divinity student from Ghana, is one of two Harvard students facing misdemeanor criminal charges of assault and battery and of interfering with the civil rights of an Israeli student on the Harvard Business School campus. Photo: Ira Stoll, The Editors

Ibrahim Bharmal, center, is one of two Harvard students facing criminal misdemeanor charges for what prosecutors say was assault and battery and a violation of the civil rights of an Israeli student on the Harvard Business School campus. Photo: Ira Stoll, The Editors

Lawyers for two Harvard students facing misdemeanor criminal charges of assault and battery and of interfering with the civil rights of a fellow student argued today that the charges should be dismissed, while a prosecutor in the case said she was working with the FBI and police to identify three other potential perpetrators.

The case involves what prosecutors say was an attack on Yoav Segev, an Israeli student who was walking from his dorm room to a class at Harvard and encountered an anti-Israel protest on the Harvard Business School campus. When Segev walked among the anti-Israel protesters participating in an October 18, 2023 “die in,” he was surrounded, smothered with keffiyehs, and forcibly escorted away, as recorded in a widely shared video of the event.

The video seemed at the top of Judge Stephen McClenon’s mind during the hearing this morning before a packed courtroom in the Brighton division of Boston Municipal Court.

“Would you agree that the video speaks for itself?” McClenon asked Naomi Shatz, a lawyer for Elom Tettey-Tamaklo, a Harvard Divinity student from Ghana.

Shatz replied “the touching appeared unintentional,” mere “bumping and jostling.”

“The complaining witness left and went to his class,” Shatz said, “he had no bruises.”

She said Harvard police officers had been standing by during the interaction and “none of them saw a crime. None of them intervened at all.”

Shatz also rejected the idea that Segev’s civil rights had been interfered with. “There is no right to freedom of movement on private property,” she claimed, adding that there was no evidence of “discriminatory intent” because her client did not know Segev or his background.

A lawyer for Ibrahim Bharmal, Monica Shah, made similar arguments for dismissing the case. “The complainant has not identified any intentional touching by Mr. Bharmal,” Shah said. “He admitted that Mr. Bharmal was just standing there.”

“Any touching” was “accidental or inadvertent,” Shah said, adding, “the freedom of movement is not even a real right.”

The prosecutor in the case, Ursula Knight, rejected the idea that Segev’s freedom of movement was unprotected on private property. “Constitutional rights don’t evaporate whether you are on the Harvard campus or anywhere else in the Commonwealth,” Knight said. She said her office was working with police and the FBI and “making efforts to identify” three other people pictured in the video.

The lawyers for the defendants claimed that their clients were being singled out and treated more harshly than “a group of white pro-choice protesters” who they said “blocked and assaulted a group of pro-life protesters.”

Knight, the prosecutor, said the two cases were apples and oranges.

Judge McClenon appeared skeptical of the racial discrimination claim by the defense lawyers who described their clients as “a Pakistani Muslim student” and “a black student.”

“Was it the two people of color, or was it the two people identified, who happened to be of color?” Judge McClenon asked.

A lawyer representing Harvard, Daniel Cloherty, said Harvard couldn’t disclose disciplinary records in the case because of the Family Educational Rights and Privacy Act, or FERPA. “We believe that Harvard has fully cooperated with the district attorney,” he said. A Harvard University Police Department sergeant who investigated the case had his own lawyer present at the hearing to try to quash a request by defense lawyers to subpoena the sergeant’s personnel record.

Judge McClenon said he’d issue a ruling on the motions to dismiss. He set a February 27 date for the next status conference in the case, and a February 7 deadline for prosecutors to provide discovery materials to the defense lawyers.

Elom Tettey-Tamaklo and Ibrahim Bharmal entered pleas of not guilty back on November 15, 2024. The October 18, 2023 event was a factor in escalating the crisis at Harvard that had been building for a long time but that went to a new level after the October 7, 2023, Hamas-led terrorist attack on Israel. It triggered a letter from prominent Harvard Business School alumni including Joanna Jacobson, Mitt Romney and Seth Klarman, that said, “The videos that have been made public, particularly the most recent violent assault of an Israeli student on the Harvard Business School campus, allow us all to see how Jewish and Israeli students are targets of threats and violence from groups of pro-Palestinian students.”

In the months that followed, Harvard president Claudine Gay was forced to resign, while applications and donations to Harvard declined. Donald Trump made violent campus antisemitism a campaign issue, inviting one of the students suing Harvard, Alexander “Shabbos” Kestenbaum, to speak at the Republican National Convention. The university faces a federal discrimination lawsuit brought by Jewish students who say there is a pervasively hostile climate of antisemitism on campus that interfered with their education.

Biden unilaterally amends the Constitution: Senator Gillibrand, Democrat of New York, has been pushing the flaky theory that the Equal Rights Amendment—“Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article”—is part of the Constitution even though it wasn’t ratified by three quarters of the states within ten years after it passed Congress, as Congress had required.

The archivist of the United States, who has custody of the Constitution, has rejected the theory, saying as recently as December 2024, “As Archivist and Deputy Archivist of the United States, it is our responsibility to uphold the integrity of the constitutional amendment process and ensure that changes to the Constitution are carried out in accordance with the law. At this time, the Equal Rights Amendment (ERA) cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.”

Today, President Biden adopted Gillibrand’s position, issuing a statement that, “the Equal Rights Amendment has become part of our Constitution. In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: the 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.”

The archivist works for the president, so presumably Biden could order the archivist to staple the amendment to the Constitution, or post it to the website. If the archivist refuses, Biden could fire her and install one who will obey his orders.

But it sets up an unusual situation in which the outcoming president and the incoming one, along with Congress and the Courts, disagree about the text of the Constitution as amended. Biden thinks it includes the ERA, while Congress, the Courts, and Trump do not. Biden waited until the Friday before a holiday weekend on the final weekday in office to announce this view, which he could have announced at any point over the past four years. If Biden had announced it on day one of his administration, he might have offered women the constitutional protection of the ERA during the whole four years. Instead, he’s handing his successor as president a political hand grenade, promising a week of headlines about Trump “repealing” the Equal Rights Amendment.

Anyway, they say that Trump is an authoritarian and a threat to democracy and rule of law, and maybe he is. Biden has pushed the limits of presidential power himself, not only with hundreds of billions of dollars in student loan forgiveness unauthorized by Congress but with this on-the-way-out-the-door action. I can’t think of another president who unilaterally declared that the Constitution had been amended.

It actually sets up an interesting constitutional fight: who is the authority about the text of the Constitution—the executive branch, Congress, or the courts? It doesn’t make sense that it’d be up to a subordinate official in the executive branch, the archivist. There are lots of cases about differences in interpreting the text of the Constitution, but I can’t recall a case where there was this level of disagreement over the actual text.

One more on Columbia Professor Franke: Steven Lubet, an emeritus professor at Northwestern University’s Pritzker School of Law, has a piece in the Chronicle of Higher Education headlined, “No, Katherine Franke Was Not Fired.” It lays out some additional facts regarding Franke, who, on her way out of Columbia, contended that too many bankers on the board had degraded the institution. (It turns out her own father was a banker who served on the boards of Yale and the University of Chicago.)

Lubet writes: “Franke’s statement is, at best, misleading. It contains substantial omissions. She was not terminated by Columbia, although she was found responsible for harassing Israeli students on the basis of national origin.”

He writes:

two outside investigators concluded that, in an interview with Democracy Now! on January 25, 2024, she had “subjected Israeli members of the Columbia community to discriminatory harassment.”

Franke’s statement did mention the Democracy Now! interview, but she tellingly failed to include her own words. Here is the actual quotation that formed the basis for the finding against her: “So many of those Israeli students who come to the Columbia campus are coming right out of their military service and have been known to harass Palestinian and other students on our campus.”..

Franke was also found responsible for retaliating against two faculty members who initiated complaints against her…

Recent work: “New York Times State Department Reporter Emerges as Foe of Israel” is the headline over my latest piece for the Algemeiner. Check it out over there if you are interested.