Noah Feldman

An op-ed by Noah Feldman: Judge Merrick Garland is the right person at the right time to bePresident Joe Biden’s attorney general. If the AP and Politico are correct that he’s Biden’s pick, it isn’t just well-deserved vindication for a dedicated public servant who deserved to be confirmed to the Supreme Court when nominated by President Barack Obama. Garland’s years of experience in the Department of Justice, coupled with his distinguished service on the federal bench, position him to accomplish the historic mission now demanded of him: nothing less than restoring the legitimacy and credibility of federal law enforcement after the disastrous last four years of Donald Trump’s presidency. Garland is an insider’s insider when it comes to understanding how the Department of Justice works — and what its proper function should be. Since 1978, when he clerked for Justice William Brennan at the Supreme Court, he has spent his entire career within the gravitational field of the building known as “main Justice,” located at 950 Pennsylvania Avenue. He was a special assistant to President Jimmy Carter’s attorney general Benjamin Civiletti; a federal prosecutor in Washington, D.C.; a deputy assistant attorney general; and principal deputy associate attorney general. In between, he spent short stints at the venerable D.C. law firm Arnold and Porter. President Bill Clinton put him on the U.S. Court of Appeals for the DC Circuit in 1995. The court is just a few blocks away from main Justice, and it hears many, many cases involving the federal government.

An op-ed by Noah Feldman: It’s really happening: Republicans in the House and Senate are poised to defy reality and try in vain to reverse the presidential election results. Congress will meet on January 6 to certify the election results in what is normally a predictable ritual. A dozen Republican senators and several members of the House have said they plan to object. When they do, it’s going to be a dark day for U.S. democracy. That’s true even though Joe Biden will still ultimately be recognized as the winner of the 2020 election. I wish I could say it’s only political theater by Republicans who know it won’t matter, and hence not a big deal. But I can’t. The truth is both more serious and more painful. The concerted effort by a more-than-token number of Republicans reflects a basic willingness to reject the people’s vote and with it, democracy itself. If the Republicans controlled both houses of Congress, they would be in the position to carry out a constitutional coup d’état. The fact that they can’t do it this time isn’t evidence that we don’t have to worry about it the future. It’s evidence that we need to be very worried indeed.

An op-ed by Noah Feldman: It’s really happening: Republicans in the House and Senate are poised to defy reality and try in vain to reverse the presidential election results. Congress will meet on January 6 to certify the election results in what is normally a predictable ritual. A dozen Republican senators and several members of Congress have said they plan to object. When they do, it’s going to be a dark day for U.S. democracy. That’s true even though Joe Biden will still ultimately be recognized as the winner of the 2020 election. I wish I could say it’s only political theater by Republicans who know it won’t matter, and hence not a big deal. But I can’t. The truth is both more serious and more painful. The concerted effort by a more-than-token number of Republicans reflects a basic willingness to reject the people’s vote and with it, democracy itself. If the Republicans controlled both houses of Congress, they would be in the position to carry out a constitutional coup d’état. The fact that they can’t do it this time isn’t evidence that we don’t have to worry about it the future. It’s evidence that we need to be very worried indeed. The key vulnerability here arises from the Electoral Count Act, which dates to 1887. It allows members of Congress to object to the submitted votes from the state electors, triggering debate on whether to count those votes.

A podcast by Noah Feldman: Michelle Mello, a professor of law at Stanford Law School and a professor of medicine at Stanford University School of Medicine, discusses the practical and ethical questions surrounding the distribution of the COVID-19 vaccines.

An op-ed by Noah Feldman: It’s hard to believe, but exactly year ago, the big news story was President Donald Trump’s impeachment. Twelve months later, a viral pandemic is killing thousands of Americans every day and Republicans are still so loyal to Trump that it took until this week for Senate Majority Leader Mitch McConnell to acknowledge that he’d lost the November election. So it seems worth asking: Did impeachment matter? And what, if anything, was it worth? For one thing, it looks unlikely that the investigation, the impeachment itself or the Senate trial meaningfully affected the outcome of the 2020 vote. Trump emerged with his support from his base roughly intact. And in fact, despite mismanaging the government response to Covid-19 and presiding over an economic meltdown, Trump came nail-bitingly close to winning reelection. It’s easy to conclude that, without the pandemic, Trump would have won. And if that’s correct, it would seem that the impeachment would not have made any difference. As for the congressional races, Democrats lost ground in the House, which could be interpreted as voters’ disapproval of impeachment — although that was not the explanation preferred by the losers. Nor were the handful Republican losses in the Senate read as disapproval of the absurd show trial led by McConnell. But electoral results are not the only measure of the impeachment’s significance. There is also the verdict of history.

An op-ed by Noah Feldman: John Le Carré, who died this week, was one of those rare writers who transcends his genre. His books were about spies, especially British ones. But his best novels were full-blown masterworks that explored enduring themes like betrayal, illusion and (his favorite) late middle age. Since hitting middle age myself, I’ve re-read his three greatest novels in every year. The appeal of Le Carré’s writing can be hard to state simply, because in some sense it is really an anti-appeal. His characters might be spies, but they aren’t dashing or handsome. They don’t take heroic action or engage in leaps of faith. Le Carré’s characters plod. Yet for all their superficial ordinariness, Le Carré’s characters are memorable for the richness and complexity of their inner lives. George Smiley, Le Carré’s greatest creation, is short and “podgy.” He wears clothes that are too big for him and polishes his glasses on the silk lining of his tie. His wife, Ann, is chronically unfaithful. In his mind, however, Smiley bestrides the world like a colossus. He sees all — or at least, all that he is able to see in the light of his limitations. Warning: spoilers ahead. In the first of Le Carré’s great trilogy, “Tinker, Tailor, Soldier, Spy,” Smiley manages to uncover a mole (a word he popularized and possibly invented) in the heart of the British Secret Service. But it takes him longer, much longer than it should — because the mole had an affair with Ann.

A podcast by Noah Feldman: Michael Alexander, a professor of religious studies at the University of California, Riverside and the author of the new book “Making Peace with the Universe,” discusses how different spiritual masters helped guide him through a moment of crisis.

An op-ed by Noah Feldman: Attorney General William Barr has resigned with a little more than a month left in President Donald Trump’s administration. This seems to suggest that Barr thinks what happens in the next five weeks could irretrievably tarnish his legacy. If so, that’s pretty stunning, considering how much Barr has already diminished his reputation and that of the Justice Department with his pro-Trump shenanigans. What’s the January surprise Barr wants no part of? One possibility is that Barr wants to create bureaucratic distance between himself and the president so that he can say he resigned rather than serving out his term. But this seems implausible, even for a canny bureaucratic operator like Barr, given how close he has been to the presidency. And it certainly seems at odds with the fawning tone of his resignation letter. Another option is that Barr realizes that Trump plans to continue challenging the election outcome. Barr has been willing to tolerate Trump’s arguments thus far, even if he himself has refused to say that Justice has evidence of meaningful fraud. Yet the prospect of increasingly wild claims of conspiracy and an inauguration without Trump in attendance might perhaps be enough for Barr to prefer to be out of town — and out of the administration — for the next few weeks. The most likely possibility, however, involves presidential pardons, and perhaps legally questionable executive orders designed to make more permanent some of Trump’s policies.

An article by Noah Feldman: The $900 million Citi-Revlon lawsuit that started on Wednesday is a law professor’s dream. The case, which is being heard by Judge Jesse Furman in federal district court in New York, pits two entirely logical and reasonable principles against one another. On the one hand is the idea that if someone pays you money by mistake, you should give it back. On the other is the intuition that if someone owes you money and transfers it to you — whether by Venmo or by a direct bank transfer — you should be able to keep what you are owed. But what if someone owes you a whole lot of money and, when he means to transfer just the interest payment to you, he accidentally repays the whole debt? That’s roughly what happened in this case. Citi was responsible for sending interest payments to Revlon’s creditors. But through what the bank says was human error, Citi sent the creditors not the interest payments but exactly the total that they were eventually due to receive — down to the penny, more or less. It’s as if instead of paying your monthly mortgage payment online, you accidentally sent the entire outstanding principal to the bank. Could you ask for your money back on the theory that obviously you didn’t intend to pay off your mortgage? Or could the bank keep your payment, on the theory that you do in fact owe them the money and hey, some people pay off their mortgages early?

A podcast by Noah Feldman: Seth Berman, a former state and federal prosecutor and a visiting lecturer at Harvard Law School, discusses how Trump could use his pardoning power before leaving office.

An op-ed by Noah Feldman: Texas has filed an application to the Supreme Court to initiate a lawsuit against Pennsylvania, Michigan, Wisconsin and Georgia — four swing states that Joe Biden won in the presidential election. The lawsuit is a piece of theater, not a credible legal strategy. The lawsuit exploits a quirk in the Constitution that allows a state to sue another state directly in the Supreme Court, without starting in the lower courts. That gives the justices an opportunity to weigh in, in the event that any of them chooses to do so. It’s unlikely that the justices will say anything about this suit, allowing it to become moot once President-elect Biden is sworn in. And if any of the justices do issue a statement, it won’t change the election outcome. So on that level, there is nothing to worry about. Nevertheless, the attempt reflects a deeper perception of the court — and that perception is worrisome. President Donald Trump has made it clear he would like the Supreme Court to somehow find a way to overturn the vote. In Trump’s fantasy world, apparently shared by Texas attorney general Ken Paxton, the Supreme Court will engage in a constitutional coup d’état and give Trump a second term. This idea is based on a view of the court as entirely partisan. It’s disrespectful of the rule of law. And it’s wrong, whether held hopefully on the right or fearfully on the left.

Noah Feldman is a guest on this episode of Axios Today, discussing what we learned from the presidential election about our democratic process and what it can and cannot withstand.

An op-ed by Noah Feldman: Last week, Justice Neil Gorsuch not-so-subtly jabbed at secular liberals by name-checking several “essential” businesses allowed to remain open — liquor stores, bike shops and acupuncturists — even as houses of worship were required to close. “It may be unsafe to go to church,” he wrote. “But it is always fine to pick up another bottle of wine, shop for new bike, or spend the afternoon exploring your distal points and meridians.” His implication was that the law was catering to liberal elites, the kind who ride bikes (guilty as charged) and treat acupuncture as an “exploration.” In the decision that occasioned this pointed comment, the Supreme Court ruled that religious institutions can’t be subject to stricter Covid-19 restrictions than other organizations. It marks a meaningful doctrinal development in First Amendment jurisprudence. The court’s new majority is moving to give religion “most favored nation” status when compared to other public businesses and institutions. But more significant than the change in the law is the cultural and ideological divide it signifies. Gorsuch’s jab is a prime example. The divide can be summed up by the different ways that secular liberals and religiously oriented conservatives react to the core question: Is it wrong to close churches, mosques and synagogues when businesses are allowed to remain open, albeit with restrictions? The two sides respond to this touchstone question radically differently. Each side could benefit from understanding the other’s perspective better.

An op-ed by Noah Feldman: If President Donald Trump wants to avoid federal criminal investigation once he’s out of office, here’s my free advice: Don’t pardon Rudy Giuliani. The New York Times reports that the two men have discussed whether the president should pardon his personal lawyer. But Trump owes Giuliani money for representing him, and pardoning someone to whom you owe money could easily be construed as a criminal act. Under federal law, it would be bribery to offer an official government act, like a pardon, in exchange for a debt, like the money Trump owes to Giuliani. An investigation would have to ensue. And as President Bill Clinton learned after pardoning financier Marc Rich, an investigation into a questionable pardon can be serious business. In response to the report, Giuliani’s spokesperson said that as a lawyer, Giuliani could not comment on any discussions he had with his client, the president. Attorney-client privilege is a real thing, yet it would not shield either Giuliani or Trump from criminal investigation if there were reason to think a criminal exchange had occurred. When a lawyer and a client together conspire to commit a criminal act, the attorney-client privilege evaporates. Evidence of their communication for criminal purposes could be subpoenaed and introduced in court.

A podcast by Noah Feldman: Eric Lander, the head of the Broad Institute and the host of the Pushkin podcast “Brave New Planet,” explains how big data helped scientists in the search for COVID-19 vaccines.

An op-ed by Noah Feldman: A school district in Pelham, NY, is in the news for barring staff from wearing masks depicting thin blue line flags, deeming them a political statement. Is this a violation of the First Amendment? To begin, it’s important to note that a ban on teachers and employees is different from banning students from wearing political symbols. According to Supreme Court precedentgoing back to 1969, public school students have free speech rights, although that right has been limited to circumstances where their speech doesn’t disrupt school operations. As a result, a school district couldn’t constitutionally ban students from wearing political symbols. Employees are a different story. The leading case in this area holds that public employees — including school employees — have much more limited free speech rights while performing of their duties. If they are speaking as employees, not as citizens, their speech rights mostly evaporate. Schools can tell teachers what to say in class and what curriculum to teach without violating the teachers’ First Amendment rights, because while teaching, a teacher is speaking as an employee. To limit school employees’ speech as citizens, as with the Pelham employees wearing thin blue line flags, the government has to show that the employees’ speech substantially interfered with their official responsibilities. Based on this rule, a school district can bar the wearing or display of thin blue line flags, given that some students may associate them with hostility against people of color. The theory would be that a teacher who sends a message associated with racism, even obliquely, can’t educate students effectively.

An op-ed by Noah Feldman: This week’s Michigan election theft scare lasted just about three hours — unless you were checking your screen in real time, it may have passed you by. Yet, brief as the episode was, when historians look back on this strange interregnum in which President Donald Trump has not acknowledged President-elect Joe Biden’s victory, they could do worse than to dig deep into the sorry affair. It carries important lessons about how delicate our system of electoral transitions is, and also about the social forces that preserve the system despite its sometimes precarious-seeming character. The historians will have to start with the weird institution at the heart of the events: the Wayne County Board of Canvassers. On Tuesday, two Republican election officials announced they would not agree to certify the county’s results before reversing themselves after a national outcry. The board has four members, two Democrats and two Republicans. They are technically appointed by the County Board of Commissioners to serve four-year terms. But in effect, they are political patronage appointees chosen by the state political parties. The two-and-two structure is a matter of courtesy. Wayne County, which includes Detroit, is overwhelmingly Democratic. All 83 boards of canvassers in Michigan have the same two-and-two structure. The board’s most important job is to certify the county’s election results. Ordinarily, this is a simple matter; so simple, in fact, that it wouldn’t be unfair to refer to the members of the canvassing board as functionaries. They are part of the vast apparatus of overwhelmingly reliable and conscientious election officials all across the U.S. — the same officials who presided over a remarkably clean electoral process in 2020.

A podcast by Noah Feldman: Dr. Paul Offit, a professor of vaccinology at the University of Pennsylvania and member of the F.D.A.’s vaccine advisory panel, discusses how the Pfizer and Moderna vaccines work and how they could be distributed.

An op-ed by Noah Feldman: President Donald Trump’s refusal to concede defeat and allow an orderly transition doesn’t violate our Constitution, as his Republican allies have pointed out. But it does violate unwritten norms that have attained a quasi-constitutional status in American elections. His defiance is dangerous. Even without violating the letter of the law, Trump’s resistance has the capacity to undercut the democratic legitimacy of this election, and the election process as a whole. From the standpoint of the Constitution (the 12th Amendment, if you’re following along at home), the transition to a new president doesn’t officially begin until the states send their slates of electors to be opened in the presence of the vice president and both houses of Congress. Once those electoral college votes are counted, the candidate who gets a majority “shall be the president.” This election cycle, the electors are supposed to vote in their states on December 14, 2020. Congress is supposed to meet in joint session to count the votes on January 6, 2021. In fact, the modern practice of peacefully transferring power operates quite differently. Concession is usually triggered by a custom that appears nowhere in the Constitution, namely the decision desks of the TV networks and newspapers calling the election for the candidate who amasses an unbeatable lead. That custom has developed into a quasi-constitutional norm, one that has been repeatedly followed for many election cycles. There is even a federal statute that arguably relies upon this norm without expressly mentioning it. The law that governs transitions says that the transition begins when the director of the General Services Administration “ascertains” the “apparent” winner of the election and issues a letter saying so, triggering the statute’s transition provisions. The statute doesn’t give the director of the GSA any guidance on how to ascertain the apparent winner, perhaps because the drafters of the statute — and those who have applied it — think it’s obvious: The winner is apparent by the consensus of the networks and newspapers, and the subsequent concession of the loser.