Noah Feldman

An op-ed by Noah Feldman: The impeachment defense brief of former president Donald Trump mostly consists of three elements, each of which I’ve addressed (and rejected) in previous columns: the purported unconstitutionality of trying the president once he is out of office; his supposed First Amendment rights; and his denial that he incited the attack on the Capitol. But there is something new in the brief: the astonishing assertion that if the Senate tries Trump, it will have violated the constitutional rule against bills of attainder. What’s a bill of attainder? Funny you should ask! A bill of attainder, prohibited explicitly by the Constitution in Article 1, section 9, is a law adopted by the legislature that singles out a particular individual or class of people for punishment without trial. The category has been analyzed and defined by the Supreme Court over the years, starting in the aftermath of the Civil War and most recently in a 1977 case involving Richard Nixon’s papers. It’s got nothing to do with the situation faced by Trump in his Senate trial. To start with, a bill of attainder is, as its name suggests, a bill — the kind of legislative act that only has effect when it is adopted by both houses of Congress and signed into law by the president. Impeachment and removal, by contrast, can be accomplished by Congress alone. So it’s legally wrong for Trump’s lawyers to say that conviction by the Senate counts as a bill of attainder. The Senate isn’t voting on any such bill; it’s trying Trump. And President Joe Biden has no role whatsoever in the process.

A podcast by Noah Feldman: Alexis Goldstein, a former Wall Street trader and senior policy analyst at Americans for Financial Reform, discusses why GameStop’s wild ride is not actually a David vs. Goliath story. She discusses the underlying conditions revealed by the GameStop saga, and imagines alternative ways to regulate the markets.

An op-ed by Noah Feldman: Legislatures across the U.S. are considering more than 100bills aimed at restricting voter access, according to a report by the Brennan Center for Justice. The bills represent a direct, partisan reaction to the Democrats’ success in the 2020 election, when high turnout and mail-in voting powered blue victories in closely divided states like Georgia, Arizona and Pennsylvania. How likely are these bills to pass, and how likely are the ones that become law to survive legal challenges? Unfortunately, I don’t have good news for liberals on either of these questions. Where partisan gerrymandering favors Republicans in state legislatures, there is little to stop these bills from passing, or voters from punishing legislators for enacting them. In states where Republican legislators have used sophisticated computer technology to draw districts that systematically favor Republicans, Republicans can expect to keep control of many state legislatures even where the state’s overall voting is trending Democratic. Democrats’ only failsafe is veto by state governors, who are elected statewide. But in closely divided states, governors are as likely to be Republican as Democratic. In Arizona and Georgia, both the legislature and governor are Republican.

President Biden has vowed to reverse many of the immigration policies put in place by his predecessor. It’s a process that could take months or even years, but he’s starting with a number of executive orders expected today. Plus, is it constitutional to impeach a former president? And, the ominous sign when a country cuts its people off from the Internet. Guests: Axios' Stef Kight and Dave Lawler, and Noah Feldman, Harvard Law professor and host of Deep Background.

An op-ed by Noah Feldman: It didn’t take long for the Texas attorney general to sue President Joe Biden’s administration over its immigration policy – nor for a federal judge to issue a nationwide injunction freezing Biden’s 100-day pause on certain deportations. If this movie sounds familiar, it should. Starting at the beginning of President Donald Trump’s administration, federal courts repeatedly struck down Trump’s executive orders, including a large number related to immigration, often using the tool of nationwide injunctions. The big question that emerges from the Texas ruling is this: Will the new, more skeptical legal standards that courts developed over the last four years to combat Trump’s lawlessness now be used by the courts to constrain Biden? Liberals (including me) spent a good part of the Trump era celebrating the judicial system as a bulwark against executive action that was expansive, aggressive — and lawless. Now we may have to confront the shadow side of judicial review of executive action: judicial overreach by conservative judges, many put in place by Trump, who have the ability to block progressive policies using some of the same tools. The order in question was issued by the Biden administration on its first day in office from the desk of the acting secretary of the Department of Homeland Security. The order specified a 100-day moratorium on most removals of non-citizens who were in the U.S. as of Nov. 1, 2020. It contained exceptions for noncitizens suspected of terrorism or espionage. And it also allowed for the removal of anyone whom the director of ICE, in consultation with the agency’s chief lawyer, individually determined to be required by law to be removed.

A podcast by Noah Feldman: Harvard epidemiologist Marc Lipsitch shares his concerns about the emerging COVID variants from the UK, South Africa, and Brazil. He also discusses how these new variants could impact vaccine rollout worldwide, and his cautious predictions for when we might return to something resembling normal.

An op-ed by Noah Feldman: Dominion Voting Systems is suing Rudy Giuliani, President Donald Trump’s former lawyer, for libel, citing Giuliani’s false claims that the company was part of a conspiracy to steal the presidential election. The case isn’t a slam dunk, mostly because of First Amendment protections that make it hard to prove libel where public figures are concerned. But the suit is strong enough that Giuliani should hire a good lawyer — which is to say, a better one than Rudy Giuliani. The strongest claims in Dominion’s 107-page libel complaint arise from comments Giuliani repeated on Twitter, on Lou Dobbs Tonight, and on his own radio show and podcast. In those comments, Giuliani said that Dominion was owned by another company called Smartmatic (in fact, they are unrelated competitors) and that Smartmatic was founded by Venezuelans close to former dictator Hugo Chavez in order to steal elections. On the podcast, Giuliani went a bit further, saying that Dominion had stolen the election “technologically.” There’s no question that the statements were false and that they were defamatory to Dominion. When the person being libeled is a private citizen, that’s enough to prove libel. And if Dominion were a private citizen, it would almost certainly win its suit.

They meet mostly on Zoom, but I prefer to picture the members of this court, or council, or whatever it is, wearing reflective suits and hovering via hologram around a glowing table. The members include two people who were reportedly on presidential shortlists for the U.S. Supreme Court, along with a Yemeni Nobel Peace Prize laureate, a British Pulitzer winner, Colombia’s leading human rights lawyer and a former prime minister of Denmark. The 20 of them come, in all, from 18 countries on six continents, and speak 27 languages among them. This is the Oversight Board, a hitherto obscure body that will, over the next 87 days, rule on one of the most important questions in the world: Should Donald J. Trump be permitted to return to Facebook and reconnect with his millions of followers? ... The board will seriously examine the Trump question, guided by Facebook’s own rules as well as international human rights law. If Facebook accepts its rulings, as it has pledged to do, as well as the board’s broader guidance, the company will endow this obscure panel with a new kind of legitimacy. “Either it’s nothing, or it’s the New World Order,” said a lecturer at Harvard Law School who studies content moderation, Evelyn Douek, who pushed Facebook to send the Trump case to the Oversight Board...Noah Feldman, the Felix Frankfurter Professor of Law at Harvard Law School, who first brought the notion of a Facebook Supreme Court to the company, said he thought conservatives dismayed by the recent crackdown might be surprised to find an ally in this new international institution. “They may come to realize that the Oversight Board is more responsive to freedom of expression concerns than any platform can be, given real world politics,” he said.

An op-ed by Noah Feldman: The storming of the U.S. Capitol on January 6 was a real lowlight for Congress. At least during the sacking of Washington in the war of 1812, the White House burned alongside the Capitol. But on January 6, 2021 the head of the executive branch urged his followers to interfere with the operation of the legislative branch. The entire sequence of events is a reminder that congressional power has been receding relative to the executive branch for almost a century. Now is the time for Congress to stand up for its rights as a coequal branch of government. It’s not only that the January 6 attack has drawn public attention to the importance of the legislature. It’s that President Joe Biden is the first career legislator to occupy the White House in nearly 50 years. Biden’s experience and instincts will guide him into pursuing major legislation, not just governing by executive order. If Congress can find bipartisan issues on which to pass laws, and if a significant bloc of congressional Republicans chooses not to be absolutely obstructionist, we might begin the process of restoring some of the governmental balance envisioned by the Constitution. Congress’s downward slide should matter to Democrats and Republicans alike.

A podcast by Noah Feldman: Presidential historian Douglas Brinkley shares his predictions and warnings for writing historical narratives about the end of the Trump presidency. He also discusses Trump’s decision to not attend the inauguration and how we should apply the 25th Amendment in the 21st century. This is the first installment in a new Deep Background series focusing on power in different fields and forms.

An op-ed by Noah Feldman: Can the Senate try President Donald Trump after he leaves office? The answer to that question lies with, you guessed it, the Senate. In reaching a decision, the Senators may choose to be guided by a precedent: that of William W. Belknap, Ulysses S. Grant’s Secretary of War. Belknap resigned mere hours before the House of Representatives impeached him. The Senate tried him anyway — although a substantial number of senators insisted throughout that they had no authority over a government official who had already resigned. As a consequence the Senate did not convict Belknap by the constitutional two thirds requirement. Belknap’s story is a wild one. There are few scholarly articles about him, although there is a highly instructive, detailed master’s thesis on which I’ve relied. Belknap was born in Newburgh, New York, along the Hudson River. He graduated from Princeton and studied law at Georgetown. As the proverbial young man he went West to Iowa, enlisting in the 15th Iowa Volunteer Regiment not long after the Civil War broke out. He served under General William Tecumseh Sherman during his March to the Sea and showed notable bravery in battle, most famously by capturing a Confederate colonel at the Battle of Atlanta. The episode involved him, then a Colonel himself, leaping over some breastworks into enemy fire. The public lauded him as a hero.

Jonathan Freedland talks to Noah Feldman, who testified for the Democrats in the president’s first impeachment hearing. They discuss the various consequences for Trump after the House of Representatives voted to impeach him for the second time. On Wednesday, members from both sides of the House of Representatives voted to impeach Donald Trump for allegedly inciting a violent insurrection against the government of the United States. This was a historic moment, as Trump became the first US president to be impeached twice. So what happens now? With less than a week to go before Joe Biden’s inauguration, will there be a trial in the Senate? Will Trump be barred from running for office again? Will this create an even bigger wedge between Republicans and Democrats? Freedland speaks to one of the commanding voices on constitutional law, Noah Feldman, who teaches law at Harvard University and hosts the Deep Background podcast. He was the first witness called for the Democrats in the first Trump impeachment hearing. Together, they run through the various scenarios that could now play out.

For the second time, President Donald Trump has been impeached. It will now be up to the Senate to convict or acquit Trump, but a Senate vote probably won't happen until after Jan. 20, when President-elect Joe Biden takes office. Harvard law professor and constitutional scholar Noah Feldman discussed Trump's second impeachment with GBH All Things Considered host Arun Rath.

An op-ed by Noah Feldman: With the House of Representatives having voted to impeach President Donald Trump for incitement to insurrection, it’s time to start contemplating what Trump’s defense will be in a Senate trial. The answer can be summed up briefly: Trump’s lawyers will argue that Trump did not commit a crime of incitement and that his words were protected by the First Amendment. But wait, you may say, if you can remember Trump’s 2020 Senate trial 12 months ago (so much has happened since then that I barely can — and I testified during the House Judiciary Committee proceedings): Impeachment is for high crimes and misdemeanors under the Constitution. That doesn’t require conviction of a federal crime. That means the First Amendment as interpreted by the Supreme Court isn’t relevant and shouldn’t protect Trump. The framers kept the “high crimes and misdemeanors” language intentionally broad so that presidents could be held accountable for a wide array of abuses of power, including interfering with a free and fair election. Yet, still thinking back to the last impeachment, you will also recall that Trump’s lawyers — and some of his Senate defenders — never conceded that basic legal fact. In addition to arguing that Trump had done nothing wrong in his “perfect” phone call with the president of Ukraine, Trump’s defenders also maintained that Trump could not be impeached because he had not committed a federal crime. They insisted, despite the historical and logical evidence, that high crimes and misdemeanors under the Constitution need to be statutory federal crimes.

A podcast by Noah Feldman: Before the 2020 presidential election, Noah Feldman spoke to politician and activist Stacey Abrams about her work on voting rights. In light of the Georgia Senate wins, we are re-sharing that conversation with you today.

Social media users are spreading a variety of claims that President Donald Trump will either impose martial law or invoke the Insurrection Act to prevent Joe Biden from being inaugurated on Jan. 20. The Insurrection Act is a federal law that empowers the president to deploy the military to suppress certain situations including civil disorder, insurrection or rebellion. The act has been used to send the armed forces to quell civil disturbances a number of times during U.S. history, according to the Congressional Research Service...Besides Trump alluding to invoking the Insurrection Act at the height of the protests surrounding the death of George Floyd, he has not made any indication that he’s considering invoking the Insurrection Act or any variation of martial law going forward. Some D.C. officials were worried that Trump could invoke the act to seize control of the city’s police department the day of the Capitol riot, but that didn’t happen. Under Article II of the Constitution, the president has no inherent authority to declare martial law except under the extreme circumstances of a rebellion or foreign invasion, said Noah Feldman, a professor at Harvard Law School. "Losing an election doesn’t count as a basis for invoking this power," Feldman added.

An op-ed by Noah Feldman: Donald Trump might already be ineligible to serve as president of the United States in the future. That’s true even without an impeachment process that ends with a formal ban from future public office. The relevant constitutional provision is Section 3 of the 14th Amendment, enacted in the aftermath of the Civil War and mentioned in the article of impeachment proposed before the House today. The provision bars a person from holding any office “under the United States” if the person has sworn an oath of allegiance to the Constitution and then “engaged in insurrection or rebellion” against the government or “given aid to the enemies” of the U.S. Does this provision to apply to Trump? The first part certainly does: Trump took an oath to uphold the Constitution when he became president. The trickier question is the second part: Has Trump’s conduct amounted to insurrection? You can be sure that, if Trump runs for office in the future, someone will go to court charging that he is ineligible to become president because of his conduct leading up to, on and following Jan. 6, 2021. Because this is a constitutional question, the courts will have to adjudicate it. The first question is whether the attack on the Capitol was an insurrection against the government of the United States. In vernacular terms, it certainly was.

An op-ed by Noah Feldman: It’s perfectly logical to call for the immediate impeachment and removal of President Donald Trump for inciting a mob to storm the U.S. Capitol and interrupt the process of declaring Joe Biden president. Attempting to interfere with the democratic process counts as a high crime and misdemeanor under the Constitution. But I would like to remind us all that the time to remove Trump was a year ago, when he actually was impeached — precisely for attempting to corrupt the 2020 election. What Trump did on January 6, 2021, was no more impeachable than what he did on July 25, 2019, when he phoned Ukraine’s Volodymyr Zelensky and asked him to discredit Biden. Which distortion of democracy is worse? Trying to steal an election secretly, in advance, or publicly inciting the interruption of a largely ceremonial process after the fact? The former could have changed the outcome of the 2020 vote. The latter had essentially zero chance of blocking Biden’s ascent. The Ukraine call was a serious and corrupt effort to misuse the office of the presidency to retain power. It was election cheating, no more and no less. Trump’s highly public post-election conduct, including yesterday’s incitement, has been repugnant and damaging, but it has not been a realistic plan to abuse the presidency to remain in power.

The insurrection caused by pro-Trump extremists at the Capitol on Wednesday has raised a litany of legal and constitutional questions. Democratic Rep. Ilhan Omar of Minnesota announced she was drafting articles of impeachment against President Trump. Omar blamed the president for Wednesday’s chaos, which stalled Congress' certification of the Electoral College vote. Another term that arose in the aftermath of the insurrection was sedition, a technical term defined as conspiring to overthrow the U.S. government, hinder the execution of laws or steal U.S. property, all by using force, says Noah Feldman, professor of law at Harvard University. Feldman says parts of the definition can be twisted to fit what unfolded on Wednesday, but a protester who enters a federal building or breaks a barrier will likely not be charged with sedition, a law that’s “rarely implemented.” For someone from the Capitol mob to be charged with sedition, their intent to overthrow the U.S. government has to be obvious, he says. Feldman says the mob, by the looks of it, was trying to interfere with government operations, which isn’t the same as an attempt to overthrow. “There is a law of the United States that says how we should count the ballots, and the protesters were trying to interfere with that,” he says. “So in that sense, they were opposing the authority of the United States. And the question then is, were they doing that by force?”

An op-ed by Noah Feldman: It’s perfectly logical to call for the immediate impeachment and removal of President Donald Trump for inciting a mob to storm the U.S. Capitol and interrupt the process of declaring Joe Biden president. Attempting to interfere with the democratic process counts as a high crime and misdemeanor under the Constitution. But I would like to remind us all that the time to remove Trump was a year ago, when he actually was impeached — precisely for attempting to corrupt the 2020 election. What Trump did on January 6, 2021, was no more impeachable than what he did on July 25, 2019, when he phoned Ukraine’s Volodymyr Zelensky and asked him to discredit Biden. Which distortion of democracy is worse? Trying to steal an election secretly, in advance, or publicly inciting the interruption of a largely ceremonial process after the fact? The former could have changed the outcome of the 2020 vote. The latter had essentially zero chance of blocking Biden’s ascent. The Ukraine call was a serious and corrupt effort to misuse the office of the presidency to retain power. It was election cheating, no more and no less. Trump’s highly public post-election conduct, including yesterday’s incitement, has been repugnant and damaging, but it has not been a realistic plan to abuse the presidency to remain in power.

Noah Feldman is a guest on this episode of Axios Today, discussing what to watch for as members of Congress officially count the electoral votes for the presidential election.