Noah Feldman

An article by Noah Feldman: Everyone understands why Donald Trump and Mitch McConnell are in such a rush to replace Ruth Bader Ginsburg with a new Supreme Court justice: It’s the election, stupid. The date that matters isn’t January 20, Inauguration Day. It’s November 3, Election Day. The president and Senate majority leader want their justice in place in case we see a contested election in a replay of Bush v. Gore. If this prospect terrifies you, your fear is not unreasonable. Until Ginsburg died, those of us who spend our time worrying about scenarios in which the election goes to the courts had some partial solace for our concerns: Chief Justice John Roberts doesn’t want the court to be seen as partisan. Yes, he’s a conservative. Nominated by George W. Bush, he’s had an obvious willingness to issue rulings that have helped Republicans — most notably, his decision eviscerating the Voting Rights Act in the 2013 case of Shelby County v. Holder — but Roberts cares a lot about the reputation of the Supreme Court. It was therefore possible to think that, as the swing vote, Roberts would shy away from joining a conservative majority in a 5-4 decision handing the presidency to Trump. Such a vote would have undermined the chief justice’s whole project of protecting the court from appearing to be a subsidiary of the Republican Party. That’s one reason leading election law scholars like Professor Nathaniel Persily of Stanford Law School, who I interviewed on my podcast this month, expect that Roberts would not want to throw a contested election to Trump. The problem, of course, is that if Ginsburg is replaced by a hard-line conservative, Roberts will no longer be the swing vote. In a contested election, he could vote with the court’s three remaining liberals and still be in dissent.

An article by Noah Feldman: President Donald Trump and Senate Majority Leader Mitch McConnell wasted no time after Justice Ruth Bader Ginsburg died, immediately announcing their intent to nominate and confirm a replacement. Tempting as it is for Republicans to install a third Supreme Court justice during Trump’s first term, it would nevertheless be a serious mistake — and potentially a historic one — for Senate Republicans to go along. The result would not only likely be the long-term erosion of the Supreme Court’s legitimacy as a third branch of government, but also a backlash so strong it would hurt the Republican Party itself. The reason for Republicans to hold off isn’t the extraordinary hypocrisy they’re showing by pushing a rapid confirmation now, despite holding Justice Antonin Scalia’s seat open in 2016. Unfortunately, we don’t live in a world where voters will punish a party for arrant hypocrisy. Republicans and Democrats alike all understood that McConnell was making a specious argument when he claimed the March nomination of Judge Merrick Garland was too close to the November election to deserve a vote. We all knew it was power politics then; and we all know it is power politics now. To be clear, Trump has the constitutional authority to nominate a new justice right now and the Senate has the authority to vote — or not vote — on that nominee. The arguments pro and con are moral and political, as I’ve noted before, not legal. In a rational version of Senate confirmation politics, the party in the majority thinks about how its actions will affect the other party when it takes control. Ideally, that norm leads to balance and some fairness: I don’t take advantage of you so that in turn, you won’t take advantage of me. In our current world of power politics, the norms have eroded to the point of near-disappearance. What that leaves is medium-term self-interest about what the other side will do immediately, as opposed to what both sides would do if norms of fairness applied.

A podcast by Noah Feldman: Richard Primus, a professor at the University of Michigan Law School and a former clerk of Justice Ginsburg, discusses what it was like to work for the Justice, her legacy, and what comes next.

An article by Noah Feldman: Attorney General William Barr can’t seem to get out of the headlines. Maybe he doesn’t want to. Just this week, the Wall Street Journal reported that Barr suggested to federal prosecutors that they consider charging protesters with sedition — an archaic criminal charge that hasn’t been regularly used by federal authorities since the McCarthy era. Barr also reportedly mused about finding a way to prosecute Seattle Mayor Jenny Durkan for establishing a police-free protest zone in her city. Then, in a speech at Hillsdale College, Barr defended his penchant for overruling prosecutors, comparing them to children in a Montessori school. For any normal attorney general, this week’s controversies would have marked a crisis accompanied by demands that he resign and serious speculation that he would be forced to do so. Not so for Barr, who clearly enjoys President Donald Trump’s support. Barr, more than any attorney general in memory, is inserting himself into the business of criminal prosecution by proposing unorthodox strategies that serve the president’s political ends. Start with the sedition prosecution proposal. To my mind, it’s the most shocking of Barr’s statements. Sedition is, roughly speaking, the crime of either rebelling against the government or inciting other people to do so. It’s the sort of crime that weak governments enforce against their citizens when the government is facing an existential threat — or thinks it is. Sedition prosecutions in the U.S. have a particularly shameful history. The 1798 Sedition Act was used in a nakedly partisan manner by John Adams’s Federalist administration to prosecute Republican newspaper editors. Dozens were jailed and fined. Although the law was never formally struck down by the courts, it has come to be a model of the kind of law that violates free speech.

An article by Noah Feldman: Even before Attorney General William Barr’s reportedsuggestion that protesters be prosecuted for sedition, and that the mayor of Seattle could be targeted with a criminal investigation, the AG was up to his usual stunts. His repeated comments on ballots and voting demonstrate his distinctive way of distorting the truth. Call it lying by legalism. Unlike President Donald Trump, Barr rarely makes a statement that blatantly contradicts reality. Instead, he says deeply misleading things that rely on some contorted, technical explanation. The upshot is that he must be able to tell his conscience that he isn’t lying all — while achieving the Trumpian goal of communicating a state of affairs that is contrary to the truth. There’s something distinctively lawyerly about this method. And it’s a big part of why people hate lawyers. Case in point: At a press conference in Arizona, Barr said“there’s no secret vote” when you mail in your ballot as part of absentee or mail-in voting. “The government and the people involved can find out and know how you voted,” he insisted, “and it opens the door up to coercion.” Fact-checkers hastened to point out that Barr was ignoring laws and procedures that are created specifically to ensure that no one can associate your vote on your mail-in ballot with your particular name and identifying information. Some states have you put your ballot inside a sealed envelope that is itself inside another envelope that has your information on it. In other states, laws prohibit revealing the vote on the ballot while the identity of the voter is being verified. Put simply, Barr distorted the truth. Yet Barr could nevertheless defend himself by saying that, strictly speaking, election officials who choose to break the law and ignore their own procedures could conceivably connect a mail-in ballot with the identity of the voter. In this extremely narrow sense, Barr can claim that he wasn’t “lying”: The possibility that he describes does logically exist.

A podcast by Noah Feldman: Nathaniel Persily, a Stanford Law professor who specializes in election law, discusses his biggest concerns about the upcoming election.

An article by Noah Feldman: The news that Elizabeth Holmes’s lawyers plan to present an insanity defense in her federal trial for criminal fraud is frankly astonishing. Maybe the evidence against her is so strong that her lawyers are desperate. Or maybe they are hoping to follow a strategy of making the jury feel sympathy for her, giving them an excuse to acquit. But the reality is that it is extremely difficult for a defendant to prove insanity in federal court. The criteria are extremely difficult to satisfy. A tougher test was adopted after outrage about the successful insanity defense of John Hinckley, the man who shot President Ronald Reagan. The statute says that a defendant can be found not guilty by showing that “at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.” This is an affirmative defense, which means that the defendant has to prove it to the jury by clear and convincing evidence. The federal version of the insanity defense is sometimes called a “cognitive” test. That means it asks about the defendant’s mental state. And it bifurcates mental state into two parts: whether the defendant knew what she was doing, and whether she knew it was wrong. The first question allows an acquittal for a defendant who literally did not know what she was doing when she committed the crime. For example, a defendant who fired a gun while believing she was actually waving hello would count as being unable to appreciate the “nature and quality” of her act. She could be acquitted under the federal definition. I can think of no conceivable way this part of the defense could apply to Holmes. She was running a company and making public statements about her product, and certainly knew that those were the activities in which she was engaged.

An article by Noah Feldman: You’d think it would be easy to determine whether Kyle Rittenhouse can successfully plead self-defense after killing two people and injuring a third during protests in Kenosha, Wisconsin. Turns out that it’s actually pretty complex. Here’s why: When gun rights get involved, the law tends to depart radically from common sense. The legal framework on its own is relatively straightforward. In Wisconsin, as in many other states, you can use deadly force in self-defense if you reasonably believe it’s necessary to prevent imminent death or great bodily harm to yourself or others. You can’t avail yourself of the self-defense argument if you’ve provoked other people into attacking you. Some states have a rule that says before you use lethal force in your own defense, you have a “duty to retreat” — in other words, you have to try to run away before killing your assailant. Wisconsin does not impose this duty. The jury is, however, allowed to consider whether it was possible for you to run away as part of its determination of whether you acted reasonably. The trouble begins when you start applying the legal rules to someone in Rittenhouse’s situation, namely, someone who has carried an AR-15-style weapon to what is intended to be a peaceful protest. In a commonsense universe, this act itself would appear to be a provocation. Yet under Wisconsin law, adults are entitled to carry around their licensed firearms in public places. An open-carry law means that prosecutors would have a tough time convincing a jury that simply carrying an assault rifle counts as a provocation. True, Rittenhouse was only 17, and the law bars minors from gun possession. But there is no reliable way that bystanders could have known that Rittenhouse was underage just by looking at him.

An article by Noah Feldman: The news that Justice Department lawyers are taking over the defense of Donald Trump against a lawsuit by E. Jean Carroll, who says Trump raped her in the 1980s, is even worse than it sounds. On the face of it, it’s outrageous that government lawyers should expend taxpayer dollars to defend Trump against charges that he defamed Carroll by saying he had never met her and that she is a liar. But underneath, in the legal nitty-gritty, the harm is greater still. The Justice Department isn’t just defending Trump. It’s poised to argue that Carroll’s suit should be treated under a federal law that protects government employees from being personally sued for acts taken within the scope of their official duties. This is a gross misconstruction of federal law. Trump’s denial that he ever met Carroll had literally nothing to do with his job as president. If a court were to find otherwise, it would effectively insulate presidents from a range of private lawsuits, undercutting the Supreme Court precedent that says the president may be sued civilly because he isn’t above the law. To understand why what’s going on here is so bad, you have to start with Carroll’s lawsuit. It doesn’t seek damages arising from the rape that she alleges, which she says happened long before Trump was president. There would be no conceivable way for the government to allege that Trump was acting in an official capacity then. Rather, Carroll’s core claim is that Trump falsely and maliciously smeared her when, on several occasions, he denied knowing her and said she was lying for personal gain, “to get publicity … or sell a book.” Carroll is represented by a brilliant and effective cause lawyer, Roberta Kaplan, who gained national attention for representing Edith Windsor in her successful challenge to the Defense of Marriage Act. Kaplan’s legal briefs in Carroll’s case made sure to specify that Trump was being sued only in his personal capacity, not for any conduct he might have committed as president.

A podcast by Noah Feldman: Adrian Hon, the CEO of the gaming company Six to Start, says the conspiracy theory QAnon is compelling to believers because it operates a bit like a virtual quest.

An article by Noah Feldman: With each passing day, there is more reason to think that President Donald Trump’s Food and Drug Administration may issue an emergency use authorization for two or more Covid-19 vaccines in late October. In an ideal world, this would be terrific news. We are, after all, in the grip of a major global emergency. Roughly 1,000 Americans die from the virus every day, or roughly one every 80 seconds. A vaccine would save lives. Yet an emergency use authorization, or EUA, is likely to be met with pervasive skepticism by many Americans, and not only Democrats. The reason isn’t hard to see. Trump has tried over the last four years to politicize nearly every aspect of independent judgment by government officials. He has delegitimized agencies like the Department of Justice and the FBI, which he sees as threats, and attacked institutions from the judiciary to the post office when it has suited his political purposes. Now, Trump (and the rest of us) are about to inherit the whirlwind. At precisely the moment when we could benefit massively from public trust in independent agency judgment, our trust is shot. Trump critics have become accustomed to distrusting Trump’s agencies, much as Trump himself has somewhat successfully convinced his own supporters that there is no such thing as governmental objectivity or independence, but only politics all the way down. Even if there is good reason for the EUA to be issued and for people who have the opportunity to receive the vaccines to do so, some — perhaps many — rational people aren’t going to trust the FDA enough to make that choice.

An article by Noah Feldman: Lawyers for Kyle Rittenhouse, the seventeen-year old charged with murdering two peaceful protesters in Kenosha, Wisconsin, say they are going to raise a Second Amendment defense to one of the six criminal charges he faces — that of unlawful possession of a firearm by a person under the age of 18. As reported in some outlets, the defense would claim that the law doesn’t apply to Rittenhouse because he was a member of a “well regulated militia” under the Second Amendment. Framed that way, the defense is genuinely wacko. The militias contemplated by the Second Amendment were state-controlled units, not armed vigilantes. Ever so slightly more plausible, however, is the related argument that the right to bear arms should treat 17-year olds the same as 18-year olds. Although this argument won’t win in court, it does raise the issue of which constitutional rights should belong to underage teenagers and which kick in at the age of majority. To dispense with the truly crazy part first, rest assured that no court has ever found or will ever find that self-organized vigilante militias are specifically protected by the second amendment. The amendment reads: “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” What the framers had in mind was their deep, small-r republican distrust of standing armies. Drawing on the example of ancient Rome, the framers feared that the generals at the head of standing armies would use their troops’ loyalty as a tool to subvert elected leaders and become dictators. Instead of a standing army, they preferred citizen-militias: official, state-organized and controlled military units made up of ordinary people who held day jobs, ideally as hearty yeoman farmers. The right to “keep and bear arms” in the Second Amendment was, in the original understanding, a collective right of the “people” to belong to these state-run units.

An article by Noah Feldman: It’s big news that an El Al flight carrying Israeli officials, Jared Kushner, and his negotiating team flew from Tel Aviv to Abu Dhabi in three hours and forty minutes. The reason it didn’t take seven hours is that Saudi Arabia allowed the Israeli flight to go through its airspace- the first time that has ever happened. On its own, the overflight is a signal that the Saudi kingdom is prepared to give some more-than-passive validation to the Israel-united Arab Emirates peace deal that is close to being inked. On a deeper level, the subtle Saudi signal raises two all-important questions about the peace deal: Will other Arab states sign on? And will the Gulf states’ willingness to consider peace with Israel without movement toward an Israel-Palestine peace agreement lead to changes in the Palestinian strategy for trying to get a functioning state? To be clear, the Israel-UAE deal is a meaningful foreign policy achievement even if no other Arab state follows the lead of the Gulf confederation. This is the first peace deal between Israel and any Arab state in a diplomatic generation. Achieving it took skill and persistence, especially against the backdrop of the constant drumbeat of criticism that Kushner’s initiative in the region would never bear fruit. Yet it is also true that the UAE is uniquely positioned to make a deal with Israel. Roughly 10 million people live spread out across the seven members of the confederated monarchy, and of these perhaps as few 1.4 million are citizens. That means that Emirati citizens aren’t a cohesive popular force capable of exerting significant influence on the rulership. Put more simply, the rulers can do pretty much what they want regarding Israel without worrying about it making them too unpopular. The conditions in other Arab states, even Saudi Arabia, require rulers to be more attuned to public opinion, which tends to favor the Palestinian cause.

A podcast by Noah Feldman: Dr. Walid Gellad, the Director of the Center for Pharmaceutical Policy and Prescribing at the University of Pittsburgh, discusses a misleading statement from the FDA about convalescent plasma as a treatment for COVID-19. Plus, he lays out a worrisome vaccine announcement scenario.

An article by Noah Feldman: It’s too soon to say with any confidence that Joe Biden will be the next president of United States. But it’s not too soon to start determining what he needs to do on day one if he is elected. Once you get beyond addressing the coronavirus pandemic, it’s pretty clear that the highest priority Biden should have is reversing the disastrous direction that the Department of Justice has taken under President Donald Trump. To regain its credibility, the department needs leaders who will publicly and systematically demonstrate that they are committed to restoring the values, norms and practices established in the nearly half-century since Watergate. The near-total failure of the Justice Department to engage the pressing concerns raised by the Black Lives Matter protesters is only the most recent and dramatic manifestation of how rudderless the once-great department has become. Looking at the violent clashes between federal agents and protesters this summer, you would hardly know that the Department of Justice once worked to desegregate schools and prosecute civil rights violations in the South. Trump’s Department of Justice has taken its cues from a president who ran for office by directing the “lock her up” chant at his opponent. It has increasingly undermined the all-important principle that enforcement, investigation and prosecution should be removed from partisan politics. Trump’s project of delegitimizing the department through politicking goes back to his extended efforts to paint the Russia investigation as politically motivated. His goal was to convince ordinary people that the FBI and DoJ were already completely partisan, in order to undercut any evidence implicating him or his campaign. Hence Trump’s pressure on Attorney General Bill Barr to break Department of Justice norms and reveal the progress of his investigation of the Russia investigation. The very existence of this investigation is a terrible sign of how Trump has successfully turned the initial investigation of Russian interference in the 2016 election into a political football.

Today, Kate Klonick is back as the guest host. She is an assistant professor at St. John’s Law School, a fellow at the Information Society Project at Yale Law School, and researcher of the intersection between law and tech. She’s also co-host of a daily YouTube series called In Lieu of Fun. On the Gist, in 2020, every online company has a community of standards and manually reviews user content. In the interview, Kate talks to Harvard law professor Noah Feldman about his idea for Facebook to create a Supreme Court to adjudicate disputes over speech. They discuss how he came up with the idea and pitched it to Sheryl Sandberg and Mark Zuckerberg, the influences it draws from political systems, and the size of the case it should choose as its first. Feldman hosts the podcast Deep Background. In the spiel, Facebook’s oversight board could be the start of something revolutionary within big tech.

A podcast by Noah Feldman: Elaine Kamarck, a senior fellow at the Brookings Institution who studies the post office and electoral politics, discusses whether the agency can handle a pandemic election.

An article by Noah Feldman: The lawsuit filed by Bytedance, the parent company of TikTok, is a bit of a long shot. Faced with President Donald Trump’s executive order effectively making it impossible for TikTok to do business in the U.S., the platform has few options. Yet, even a long-shot lawsuit may have some strategic value as the parent company tries to figure out whether it will have to sell TikTok to keep the lucrative business alive. The arguments in the lawsuit are not without legal logic. They might conceivably convince a lower court that is unsympathetic to Trump to decide that the executive order should be put on hold until the court can investigate the claims more closely. And even if that legal ploy doesn’t work, the lawsuit at least gives the company the opportunity to identify Trump’s order for what it is: a politicized, election-year effort to play up anti-China sentiment. TikTok’s legal claims can be divided into three groups. The first is the argument that Trump violated due process of law by effectively taking away TikTok’s property right to do business without giving TikTok fair notice and the opportunity to have its arguments heard. This due process claim sounds pretty logical — if you’re not a lawyer. It’s certainly true that the executive order effectively blocks TikTok from doing business. The trouble is, the provision of law on which the executive order relied, known as the IAEE, allows the president to take steps to block foreign businesses that he deems to be national security threats from operating in the U.S. Because Bytedance, the parent company of TikTok, is a Chinese company, it almost certainly does not enjoy a due process right to be heard in court before the IAEE provision is activated against it. This is why the executive order took the form of a prohibition on commercial transactions involving Bytedance.

An article by Noah Feldman: A new narrative is gradually emerging around the balance of power on the Supreme Court. Chief Justice John Roberts may be the nominal boss and the swing vote; Justice Ruth Bader Ginsburg may be the unlikely octogenarian pop icon; and Justice Neil Gorsuch the newest conservative maverick. But according to this story, the real power on the court isn’t any of these headline-grabbing justices. It’s Justice Elena Kagan, the moderate former law school dean and solicitor general. To conservatives, who are the ones pushing the narrative right now, Kagan is a silent strategic genius, tempting and manipulating pliant conservatives like Roberts and now Gorsuch to betray their Federalist Society origins. After Gorsuch and Roberts voted in June to extend antidiscrimination protections to LGBTQ people, the Wall Street Journal editorialized, “Congratulations to Chief Justice Elena Kagan on her big win Monday at the Supreme Court on gay and transgender rights.” The Journal’s editorial board said that Kagan “might as well be” the chief justice and that her ideas were “all over” Gorsuch’s opinion. Writing about a religious liberty opinion that Kagan joined in July, a conservative commentator wrote that she was “a master tactician.” Offering his “rueful praise,” he bluntly stated, “I wish she were on my side.” A right-wing think tank also condemned “the Kagan court” after the court’s refusal to overturn precedent in 2020’s big abortion case. On the surface, this analysis of Kagan’s rule not only sounds insulting to Roberts and Gorsuch, who doubtless believe that they formed their views entirely on their own. It also sounds paranoid: How could carefully vetted conservatives be deviating from conservative orthodoxy if not for the secret influence of a liberal? It’s also possible to hear some hint of sexism in the suggestion that Kagan has tempted the conservative men of the court to tread the unholy path of centrism.

An article by Noah Feldman: President Donald Trump is pressuring Attorney General William Barr to announce the results of the ongoing Russia probe, which would violate Department of Justice guidelines designed to prevent the department from influencing elections. Of course, influencing the election is exactly what Trump wants Barr to do. Trump is once again using the unique power of the presidency to gain an unfair advantage in the 2020 election. The pattern is by now eerily familiar. It’s the same impulse manifest in Trump’s undermining of the U.S. Postal Service at just the moment it faces the responsibility of handling a surge of mail-in ballots. And it’s identical to the conduct for which Trump was impeached by the House of Representatives. Although it may seem like eons ago, it was only last December that Trump was impeached for abusing the power of the presidency to distort the 2020 election by harming the candidacy of Joe Biden. That was, the House determined, the purpose of Trump’s call to Ukrainian president Volodymyr Zelenskiy. And in Trump’s Senate trial, which ended with Republicans declining to remove him from office, the president’s supporters all but admitted to the pattern. As you’ll remember, their main defense was not that the president hadn’t used his office to try to gain an advantage, but that even if he had, the abuse of power didn’t count as an impeachable offense. The latest Barr affair is about as explicit an abuse of presidential power as you can imagine. Long-standing Department of Justice guidelines issued under the authority of the attorney general say explicitly that “politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges.” The guidelines are implemented via a norm that the department should not make disclosures about politically sensitive investigations in the 60 days before an election.