People
Noah Feldman
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The Supreme Court’s Past Decade Could Be Liberals’ Last Gasp
January 2, 2020
An article by Noah Feldman: The 2010s will go down in history as a contradictory period at the Supreme Court. The decade featured one liberal decision — the gay marriage case, Obergefell v. Hodges — that will be read as long as the justices’ opinions are taught in law schools. Yet the decade also saw the emergence of important new libertarian trends in First Amendment law, regarding both free speech and religious liberty, that are widely seen as conservative. And although the court shifted rightward over the last ten years, that may seem mild compared to the rightward shift we could see in the 2020s.
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Top Democrats on Sunday renewed their demands for witnesses to testify at President Trump’s impeachment trial, citing newly released emails showing that the White House asked officials to keep quiet over the suspension of military aid to Ukraine just 90 minutes after Mr. Trump leaned on that country’s president to investigate former Vice President Joseph R. Biden Jr. The emails, released late Friday by the Trump administration to the Center for Public Integrity, shed new light on Mr. Trump’s effort to solicit Ukraine to help him win re-election in 2020, the matter at the heart of the House’s vote on Wednesday to impeach him...At least one academic, Noah Feldman, a Harvard law professor who testified as an expert for Democrats during the impeachment inquiry, has argued that Mr. Trump will not be impeached until the articles are transmitted. Republicans have cited that position in their demands for Ms. Pelosi to move forward.
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Denial can be an ill-advised, if effective, strategy for temporary coping over the holidays, and it’s one that the White House is reportedly contemplating as part of its impeachment messaging. Like a spouse going off to “work” post-layoff, the White House may soon be arguing that everything is fine and nothing of particular note has happened in the past few weeks. According to CBS News, the Trump administration is considering arguing that Trump has not yet officially been impeached. The idea comes down to a technicality: Because House Speaker Nancy Pelosi has not transmitted the two articles of impeachment to the Senate, Trump officials may claim that the process has not yet been finalized in the House. The argument emerges from an op-ed by Harvard Law professor and House Judiciary Impeachment witness Noah Feldman. “If the House does not communicate its impeachment to the Senate, it hasn’t actually impeached the president,” Feldman, who has endorsed Trump’s impeachment and removal from office, wrote in Bloomberg. “If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all.”
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If Trump’s Impeached, Then Why Can’t a Senate Trial Start Now?
December 23, 2019
An op-ed by Noah Feldman: Call me old fashioned or naïve, but I think my job is to explain what the U.S. Constitution actually means, no matter who likes it or doesn’t. That led me to explain recently that under the Constitution as it was understood by the framers and as it still should be understood today, impeachment isn’t complete when the House of Representatives votes to impeach. Constitutionally, impeachment becomes official when the House sends word of that impeachment to the Senate, triggering a Senate trial. Impeachment was originally understood to take place when someone from the House formally impeached the president “at the bar of the Senate,” which meant a member of the House formally stated to the Senate that the president (or judge, or other officer) was impeached. That practice lasted from the late middle ages until 1912. Since then, the House has instead sent a written message to the Senate stating that the House “has impeached” the defendant, a message that triggers the trial procedures in the Senate.
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A Law Professor’s Provocative Argument: Trump Has Not Yet Been Impeached
December 23, 2019
Maybe President Trump has not been impeached after all, or at least not yet. Impeachment happens, according to Noah Feldman, a Harvard law professor, only when the House transmits the articles of impeachment to the Senate. So “technically speaking,” he said, “the president still hasn’t been impeached.” That idea has left much of the legal academy unconvinced, including Laurence H. Tribe, one of Professor Feldman’s colleagues at Harvard. “The argument is textually bizarre, historically inaccurate, structurally misguided and functionally misleading,” Professor Tribe said. Professor Feldman was one of three constitutional scholars to testify in favor of impeachment before the House Judiciary Committee this month.
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Impeachment live updates: Pelosi invites Trump to deliver State of the Union, potentially during his Senate trial; president lashes out at evangelical magazine
December 20, 2019
President Trump lashed out Friday at Democrats and an evangelical magazine that has called for his removal from office, as the timing and scope of his impeachment trial in the Senate remained in limbo and he prepared to head to Florida for the holidays. ...Republicans have seized on a notion advanced by a law professor called by Democrats to testify during the impeachment inquiry that technically Trump would not be “impeached” if the House does not send articles of impeachment to the Senate. Impeachment as contemplated by the Constitution does not consist merely of the vote by the House, but of the process of sending the articles to the Senate for trial,” Harvard University law professor Noah Feldman wrote in a Bloomberg column on Thursday. “Both parts are necessary to make an impeachment under the Constitution ... If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all.” Feldman’s argument received pushback from other legal scholars, including Laurence Tribe, a constitutional law professor at Harvard. In a tweet on Thursday night, Tribe said Feldman is “making a clever but wholly mistaken point” about the possibility that Trump won’t be impeached. “Under Art. I, Sec. 2, Clause 5, he was impeached on Dec 18, 2019. He will forever remain impeached. Period,” Tribe wrote.
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Trump Isn’t Impeached Until the House Tells the Senate
December 20, 2019
An article by Noah Feldman: Now that the House of Representatives has voted to impeach President Donald Trump, what is the constitutional status of the two articles of impeachment? Must they be transmitted to the Senate to trigger a trial, or could they be held back by the House until the Senate decides what the trial will look like, as Speaker Nancy Pelosi has hinted? The Constitution doesn’t say how fast the articles must go to the Senate. Some modest delay is not inconsistent with the Constitution, or how both chambers usually work. But an indefinite delay would pose a serious problem. Impeachment as contemplated by the Constitution does not consist merely of the vote by the House, but of the process of sending the articles to the Senate for trial. Both parts are necessary to make an impeachment under the Constitution: The House must actually send the articles and send managers to the Senate to prosecute the impeachment. And the Senate must actually hold a trial.
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Trump Impeachment Is a Shot in the Arm for the Constitution
December 19, 2019
An article by Noah Feldman: The House of Representatives’ historic vote to impeach President Donald Trump comes near the end of the president’s third tumultuous year in office — which is also the third year of the prolonged stress test he’s been giving to the U.S. Constitution. It’s an occasion to check in on the most basic question that can be asked in a democracy: What is the state of our Constitution? The short answer is that the Constitution is, so far, holding up in the face of the most extended challenge to its principles and norms that it has confronted since World War II. The impeachment itself is actually a significant improvement in the Constitution’s performance. It signals that at least half the legislative branch — the House — is now taking seriously its own responsibility to uphold the Constitution in the face of presidential contempt for it.
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Trump’s Impeachment Letter Gets Constitution Wildly Wrong
December 18, 2019
An article by Noah Feldman: Impeachment seems to have struck a nerve in President Donald Trump. On the eve of the House’s impeachment vote, he sent a six-page public letter to Speaker Nancy Pelosi, replete with self-justification, recrimination, and accusation. I will leave the psychological profiling to others. My job is to address the constitutional arguments, such as they are, in the extraordinary document. They may or may not be made again on the floor of the Senate in the upcoming trial; regardless, Trump has now made them part of the historical record. The constitutional talk starts right up top, in sentence two, in which Trump writes that “the impeachment represents an unprecedented and unconstitutional abuse of power by Democrat Lawmakers, unequaled in nearly two and a half centuries of American legislative history.”
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Giuliani Hints at New Defense: So What If Trump Did It?
December 18, 2019
An article by Noah Feldman: Slowly but perceptibly, the Trump administration is moving towards a concrete defense in the president’s Senate impeachment trial: Not that Donald Trump didn’t pressure Ukraine to investigate Joe and Hunter Biden, but that he did — and that there’s nothing wrong with it. The latest indication of this direction comes from the president’s personal lawyer, Rudy Giuliani, who in a couple of press interviews has acknowledged his role in advising President Trump to arrange the firing of the U.S. ambassador to Ukraine, Marie Yovanovitch, because Giuliani believed she stood in the way of getting those investigations. If Trump wanted to focus on the impeachment defense that there was no quid pro quo and that he innocently asked for the investigations in order to fight corruption, then it would be genuinely crazy for his personal lawyer to reveal the specifics of how and what he communicated to the president. Giuliani’s statements are terribly harmful to Trump’s case — and he has now effectively waived attorney-client privilege, so he could be called to testify.
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A Brief Guide to the Weird Constitutional Rules on Impeachment
December 17, 2019
An article by Noah Feldman: The jockeying has already begun over the structure of President Donald Trump’s Senate trial. Senate Majority Leader Mitch McConnell has discussed it with the White House counsel; Senate Minority Leader Charles Schumer has sent McConnell a letter proposing detailed protocols. All this action, even before the House of Representatives has formally impeached Trump, might be making you wonder: Isn’t there some pre-existing trial protocol required by the Constitution? Do we really have to have a debate about how the trial is going to run before it actually happens? The short answers are no, there isn’t a clear constitutional mandate for what the Senate trial should look like; and yes, there really does have to be a fight about what procedures the Senate will use in trying Trump. This seems like a crazy way to do things, but it reflects the framers’ recognition that impeachment as they knew it from England had always had a political side, and their reticence about putting too much detail in the Constitution.
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Bloomberg Opinion Radio: Weekend Edition for 12-13-19
December 16, 2019
Hosted by June Grasso. Guests: Liam Denning, Bloomberg Opinion energy columnist: "Saudi Aramco’s $2 Trillion Dream Isn’t About Oil." Noah Feldman, Harvard Law Professor and Bloomberg Opinion columnist: "We Know What the Framers Thought About Impeachment." Leonid Bershidsky, Bloomberg Opinion columnist: "Facebook Just Can’t Seem to Beat the Russians." Faye Flam, Bloomberg Opinion columnist: "Satellites Are Changing the Night Sky as We Know It." Joe Nocera, Bloomberg Opinion columnist: "Fannie and Freddie Make 30-Year Mortgages Possible."
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Mr. Feldman goes to Washington
December 16, 2019
This week, the House Judiciary Committee announced and approved two articles of impeachment. Why two instead of 10? Why is this process moving so quickly? And why are Democrats prioritizing trade deals the same week as impeachment? Vox’s Jen Kirby answers the key questions on Impeachment, Explained. Noah Feldman is a Harvard Law professor and one of the constitutional scholars who testified at the House Judiciary Committee’s hearing. He joins me to talk about what he saw, what he learned, and the Republican argument that truly scared him.
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The Strange Thing About Trump’s Anti-Semitism Order
December 13, 2019
An op-ed by Noah Feldman: President Donald Trump has signed an executive order aimed at combating anti-Semitism on college campuses. What could possibly be wrong with that? The answer is nothing — provided the directive is applied in a way that doesn’t infringe on the free speech rights of student groups that are critical of Israel. But the way the executive order is written opens the possibility for misuse, and the danger of chilling student speech on campus in a way that doesn’t serve the cause of fighting the scourge of anti-Semitism.
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Impeachment articles are ‘high crimes’ Founders had in mind
December 12, 2019
An op-ed by Noah Feldman: The articles of impeachment under consideration by the House clearly allege high crimes and misdemeanors under the Constitution. Apart from the factual truth of allegations, the articles comport with the definition of impeachable conduct. Start with abuse of office for personal advantage or gain, directly aimed at distorting the electoral process. For the Framers, this conduct was the classic form of a high crime or misdemeanor. Their words demonstrate as much. At the Constitutional Convention in 1787, George Mason of Virginia warned of the “danger” that presidential electors could be “corrupted by the candidates.” Corruption meant the conferral of improper benefits for personal gain. James Madison worried about the presidency being used for a scheme of “peculation,” in other words, self-dealing or embezzlement for personal advantage. What is more, the two impeachment trials best known to the Framers both involved abuse of office for improper personal gain.
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William Barr Is Attacking His Own Department
December 12, 2019
An article by Noah Feldman: When President Donald Trump appointed Bill Barr as attorney general back in February, it seemed like good news for the Department of Justice. The department had suffered some serious damage to its public reputation under attorney general Jeff Sessions — much of it inflicted by Trump himself. The president had systematically attacked the department and the FBI, depicting choices of investigation and prosecution as partisan and political. Trump had fired the FBI director, James Comey, and excoriated Sessions for recusing himself from the Russia investigation that Comey had begun. The appointment of Barr, who held the same job under George H. W. Bush, held out the prospect of a strong attorney general who would protect the department and its institutional integrity.
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The Legal Strategy Behind Keeping Impeachment Simple
December 11, 2019
An article by Noah Feldman: The House Judiciary Committee has announced plans to consider two articles of impeachment against President Donald Trump. Because Democrats control the Committee and the House, it is now very close to a foregone conclusion that Trump will be impeached. It’s remarkable and historically significant that the committee will consider just two very focused articles of impeachment. Andrew Johnson’s impeachment featured 11 articles. Richard Nixon, who managed to resign after the House Judiciary Committee approved articles of impeachment but before the House adopted them, faced three. Bill Clinton was impeached with two articles — but they contained four and seven subparts respectively, corresponding to four alleged grand jury lies and seven alleged acts of obstruction of justice. In contrast, Trump will face charges that are extraordinarily simple and compact.
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Evidence Points To Trump Impeachment: Harvard’s Feldman (Radio)
December 10, 2019
Noah Feldman, Harvard Law professor and Bloomberg Opinion columnist, on impeachment and his testimony to Congress. Hosted by Lisa Abramowicz and Paul Sweeney.
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Justice Roberts Will Avoid Partisanship At All Cost (Podcast)
December 10, 2019
Noah Feldman, Harvard Law professor and Bloomberg Opinion columnist, on the impeachment of President Trump, and his testimony to Congress. Anand Srinivasan, Senior Semiconductor and…
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Constitution, not Trump, at the core of American democracy
December 10, 2019
It was Donald Trump’s calculation that a large percentage of Americans resided in a vegetative state that spawned his candidacy for president...So it no longer shocks that nearly half of America remains untroubled by what House Judiciary Committee member Jamie Raskin (D-Md.) described last week as a “one-man crime spree,” conducted by the president of the United States...The Constitution, Trump has proclaimed, permits him “to do whatever I want as president.” Whatever points he earns for candor should surely be subtracted for the open confession to a totalitarian, wholly un-American ideology. This was the point the constitutional scholars called by the Judiciary Committee made effort upon effort to drive home to the American people. The purpose of impeachment, Harvard Law School Professor Noah Feldman noted, was to prevent a monarchy, to ensure that “Congress could oversee the president’s conduct, hold him accountable and remove him from office if he abused his power.”
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The Founding Fathers Were Obsessed With Impeachment
December 9, 2019
An op-ed by Noah Feldman: It was weirdly cold in the room — that was the only thing everyone could agree on. Somehow, despite the bright lights and television cameras in the hearing room where I and three other law professors were testifying on the potential impeachment of President Donald Trump, the temperature remained somewhere between freezing and seriously freezing. It was so cold that the ranking Republican member of the House Judiciary Committee, Doug Collins, took valuable time out of his opening statement to complain about it. The spectacle of four law professors trying to speak on behalf of the Constitution affected each viewer differently. I’ve never received so many warm, supportive messages before; it’s also been years since I’ve been the target of so much raw hate and contempt, much of it along exactly the lines you’d imagine. It’s also a fascinating experience to be subjected to truly bizarre and spontaneously invented conspiracy theories. But that’s a topic for another day.