Noah Feldman

An op-ed by Noah Feldman; Today, the Senate is expected to vote against removing Donald Trump from office. But what will be the verdict of history?In the glass half-empty scenario, Trump’s claims to have been completely exonerated will be embraced by future Americans and their presidents. High crimes and misdemeanors will be defined down to a bare minimum, and maybe out of existence altogether. The impeachment provisions of the Constitution will become more or less a dead letter — except, perhaps, in the extremely unusual circumstance where a president’s party holds less than a third of the seats in the Senate. Future presidents will embrace dirty tricks to win re-election, safe in the knowledge that the Trump precedent makes their removal vanishingly unlikely. The Democratic House’s party-line impeachment will be seen as a partisan act, not a genuine manifestation of constitutional outrage.  

An article by Noah Feldman: “Hypocrisy is the tribute that vice pays to virtue.” The public Senate deliberations in President Donald Trump’s impeachment trial reminded me of this famous maxim, coined in the 17th century by the French aristocrat and aphorist François de la Rochefoucauld. From a constitutional standpoint, it would be better if Republican senators who plan to vote against removing Trump say they find the evidence unconvincing — even if they are being hypocritical — than for them to say that Trump’s alleged conduct is fine. That’s because the precedent set by Trump’s trial depends heavily on the senators’ public explanations for their votes. If future observers see that the senators redefined impeachment so that it did not include the President abusing his power to cheat in an election and obstruct Congress, that will profoundly weaken the U.S. constitutional system. It will weaken the political virtue of the republic.

Noah Feldman, Harvard Law Professor who testified at the House Impeachment trial, and Bloomberg Opinion columnist, discusses how the GOP Senate impeachment trial will impact the rule of law. Hosted by Lisa Abramowicz and Paul Sweeney.

An article by Noah Feldman: As Republicans scramble to argue that they don’t need to call witnesses in President Donald Trump’s Senate impeachment trial, one argument seems to be gaining traction: that witnesses are irrelevant, because even if Trump did everything he’s accused of doing, abuse of power is not an impeachable offense. This argument isn’t merely wrong. It is the single most dangerous argument that any of Trump’s defenders have made during the entire impeachment process. If abuse of power isn’t impeachable, what is?

Facebook is a step away from creating its global Oversight Board for content moderation. The bylaws for the board, released on Jan. 28, lay out the blueprint for an unprecedented experiment in corporate self-governance for the tech sector. While there’s good reason to be skeptical of whether Facebook itself can fix problems like hate speech and disinformation on the platform, we should pay closer attention to how the board proposes to make decisions. ... When I spoke with Noah Feldman from Harvard Law School, who came up with the Supreme Court for Facebook concept and advises Zuckerberg, he imagined that other tech companies might one day bring their predicaments to the Oversight Board if they agreed the decision would be binding.

An article by Noah Feldman: This weekend marks a pivot point in President Donald Trump’s Senate impeachment trial. Until now, the impeachment narrative has been driven overwhelmingly by the president’s critics. It started with the impeachment inquiry in the House of Representatives, culminated in the dramatic and almost purely party-line impeachment vote; and it continued with the skillful presentation of the prosecution’s case by the House managers over three long days in the Senate. But all that focus on Trump’s wrongdoing is now over. Trump’s lawyers will have the floor for three days of their own. And after that, if no witnesses are called, the trial will barrel towards a final vote — one the president is expected to win easily. The consequences of the pivot to Trump’s defense team will be deeply significant — both for the politics of the next nine months leading to the 2020 presidential election, and for the construction of American history in the future.

An op-ed by Noah Feldman: If ordinary rules of precedent were being followed, there would be no argument over whether witnesses should be allowed at the Senate impeachment trial of President Donald Trump. Every single Senate impeachment trial, ever, has had witnesses. The precedent is unanimous. But the painful truth is that precedent carries much, much less weight in impeachment than it does in other constitutional contexts, whether in Congress or the courts or even within the executive branch itself. That’s unfortunate, because precedent helps make procedures — like how a trial works — fair and legitimate.

On Monday, President Trump’s chief lawyers in his impeachment trial, Jay Sekulow and Pat Cipollone, submitted a 110-page brief to the Senate laying out the case for his acquittal. The articles of impeachment, they say, are “an affront to the Constitution” brought about by a “rigged” “crusade” against a president who “did absolutely nothing wrong.” ... There are a select few scholars, however, who say the consensus should be reconsidered. One is Nikolas Bowie, an assistant professor at Harvard Law School. In 2018, Mr. Bowie suggested in the Harvard Law Review that impeaching a president without any statutory justification conflicts with a fundamental principle of American law: that a crime cannot be retroactively defined. Impeachment without an underlying legal violation also risks setting a dangerous precedent that “would apply not just to someone as unpopular as President Trump but also to future presidents whose policies happen to misalign with a congressional majority,” he wrote. “The philosophical defense that the president should only be impeachable for a defined statutory crime is probably the strongest defense available to Trump’s supporters,” writes Noah Feldman, a professor at Harvard Law School who testified in the House impeachment inquiry.

Anderson Cooper interviews Noah Feldman on the House managers case laying out abuse of power charge against President Donald Trump. ... "Everyone who is involved with this impeachment process has to understand, even if the outcome is the one most people predict, that's not what really matters on deepest level. It would be nice if Senators would come around, but that Trump is not just impeachable, but deserves to be removed from office. But even if they don't, it's important for the future of American democracy that others in the future, future generations, will be able to look back, watch this footage, watch the commentary, read the transcripts and see exactly what Donald Trump did and that he was impeached for it, to send the message that this kind of conduct just isn't okay, no matter what two-thirds of the Senate decides."

An article by Noah Feldman: President Donald Trump is on trial in the Senate. But the Senate is on trial, too — to see if it’s capable of fulfilling its constitutional duty to hold a credible impeachment trial. James Madison thought the Supreme Court, not the Senate, should try presidential impeachments. Until now, the other framers’ rejection of Madison’s idea seemed to have been wise. Yet the unprecedented degree of partisanship in Trump’s “trial,” and the possibility that for the first time there will be no witnesses, raises the possibility that the framers’ impeachment design has hit a dead end.

Constitutional scholar Noah Feldman tells Christiane Amanpour that President Trump's legal defense amounts to a "linguistic game."

An article by Noah Feldman: President Donald Trump’s legal defense is putting a lot of weight on a brand-new memo from the Office of Legal Counsel. In fact, the memo appears to have been written specifically as part of the president’s defense strategy. That’s noteworthy because the OLC is part of the Department of Justice: It’s supposed to be legally independent, not partisan, and certainly not part of the president’s defense team. The memo’s reasoning borders on egregious. It concocts a technicality to invalidate the subpoenas issued by the House of Representatives during the impeachment inquiry, making it somehow legitimate for Trump to have obstructed Congress — the basis of one of the articles of impeachment the president faces. And then there’s the timing of the memo. It’s dated January 19, 2020, two days before the impeachment trial was slated to begin, and one day before Trump’s legal team issued its own memo summarizing his defense.

An article by Noah Feldman: President Donald Trump’s lawyers have filed a 110-page memorandum sketching out the defenses they intend to raise at his impeachment trial. Overall, it’s a pretty poor showing. The memo includes some political posturing. It also contains specious claims to the effect that Trump did nothing wrong on his July 25, 2019 phone call. The memo’s centerpiece, however, is a handful of dubious legal arguments about why his impeachment is supposedly illegitimate. There’s nothing here to convince Democrats; and precious little that would give Republicans the cover some may want to vote against removing Trump from office.

An article by Noah Feldman:  White House counsel Pat Cipollone will reportedly lead the team that represents President Donald Trump in the Senate impeachment trial.

An article by Noah Feldman: If you’re expecting President Donald Trump’s impeachment trial in the U.S. Senate to be a matter of high drama, it’s time to lower your expectations. The trial won’t look much like “Law & Order,” or for that matter any other criminal trial you’ve seen on TV or in real life: There will be no witnesses in the opening phase, and likely none at any point in the proceedings. Instead, it will look much more like a series of speeches by the House impeachment managers and Trump’s lawyers. How can it be that the impeachment trial will barely be a trial at all? The answer lies in the Senate’s own changing practices over the centuries. Given the Senate’s love for protocol, you might imagine that there would be some time-tested, universally respected procedure for how an impeachment trial should go. The truth is otherwise.

An article by Noah Feldman: Has John Bolton had some sort of constitutional revelation? Back in November, President Donald Trump’s former national security adviser made it clear that he would not testify voluntarily before the House of Representatives’ impeachment inquiry, and that if subpoenaed he would go to court to ask for judicial direction. Yesterday, Bolton issued a statement indicating that if subpoenaed by the Senate during Trump’s trial, he would testify. What changed? Although Bolton gave a constitutional explanation for his flip-flop, it’s difficult to see a coherent argument in it. The most likely explanation is politics: Bolton seems to be calculating that Senate leader Mitch McConnell will do everything he can to avoid allowing Bolton to be called. That would mean Bolton can now present himself as willing to testify without actually having to appear.

An article by Noah Feldman: Mitch McConnell is giving every indication that President Donald Trump’s Senate impeachment trial will not introduce any new evidence. Instead, it will use only the evidence gathered by the House of Representatives and cited in the articles of impeachment. Is this, have some Democrats have argued, a travesty of justice? The short answer is no. There is already more than enough evidence to convict Trump of the high crimes and misdemeanors with which he is charged. And although they’ll protest, this outcome might be better for Democrats politically than striking some kind of deal with McConnell. Of course, it would be preferable for the Senate to call former national security adviser John Bolton, acting chief of staff Mick Mulvaney, Mulvaney’s adviser Robert Blair and budget official Michael Duffey. Bolton has even said he would testify if called — although the timing of his announcement, on the eve of McConnell’s, lends credence to my theory that he only offered to testify on the expectation that he would not actually have to do it.

Hosted by June Grasso. Guests: Frank Wilkinson, Bloomberg Opinion Editor, on gun control. Max Nisen, Bloomberg Opinion health care columnist, on Medicare for All. Noah Feldman, Harvard Law professor and Bloomberg Opinion columnist, on the impeachment hearings. Shira Ovide, Bloomberg Opinion technology columnist, on "techlash." Noah Smith, Bloomberg Opinion columnist, on automation.

An article by Noah Feldman: The year in impeachment was a true roller coaster ride: A slow build to a high peak at the time of special counsel Robert Mueller’s report; a deep and fast dive in its aftermath; a rocket-like ascent following the whistle-blower’s report of President Donald Trump’s call with Ukraine; and now, at year’s end, a harrowing run to an impeachment that itself will likely end in the “pffft” of a Senate vote not to remove the president...But the ride won’t end when the year does. January 2020 will see the Senate trial. It’s hard to imagine that the trial will feel like any kind of roller coast ride at all. The outcome is as close to foregone as it gets in U.S. politics.

An article by Noah Feldman: A presidential impeachment trial in the Senate is one man’s worst nightmare. That man isn’t President Donald Trump, however. He’ll take it in stride. It’s Chief Justice John Roberts, who will have to preside. Roberts has devoted his whole career to trying to keep the Supreme Court from being seen as a partisan body. That started with the famous baseball analogy he offered at his Senate confirmation, according to which the justices are like umpires who call balls and strikes. The comparison is pretty dubious: balls and strikes aren’t infused with controversial moral questions like when life begins and who can marry whom. But Roberts was trying to illustrate his ideal of a justice who stays out of the partisan fray of team spirit.