Noah Feldman

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.

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.