Noah Feldman

An op-ed by Noah Feldman: To understand where the impeachment inquiry has gone so far, and where it’s likely to go next, you need to keep in mind one key concept. Hint: it’s not quid pro quo. It’s momentum. To date, House Democrats have built on the original whistle-blower’s document by eliciting behind-closed-doors depositions from those officials in the State Department, Defense Department, and White House who are willing to defy Donald Trump’s order not to participate. By leaking the headlines of their testimony, the Democrats have been able to dominate the news cycle for weeks.

Max Nisen, Bloomberg Opinion Healthcare Columnist: "The Democrats Are Fighting for Health in 2020" Noah Feldman, Professor at Harvard Law school and a Bloomberg Opinion Columnist: "Forget Giuliani. Trump’s Abuse of Power Is Clear" Justin Fox, Bloomberg Opinion Columnist: "’Peak TV’ Might Also Mean Peak Jobs in TV and Movies" Jonathan Bernstein, Bloomberg Opinion Columnist: "Why Ocasio-Cortez’s Endorsement Matters" Sarah Green Carmicheal, Bloomberg Opinion Editor: "Men and Women Split on Gender Diversity"

An op-ed by Noah Feldman: White House Chief of Staff Mick Mulvaney admitted Thursday that President Donald Trump conditioned U.S. aid to Ukraine on a politically motivated investigation into the origins of the allegation that Russia hacked the Democratic National Committee. Then he attempted to reverse himself. Regardless of whether the reversal succeeds, Mulvaney’s initial admission signals what looks to become a new direction for defending the president: Admit there was a quid pro quo with Ukraine, but claim the president has the constitutional authority to do such deals with foreign countries. This is a defense that Democrats in charge of the impeachment inquiry should confront head on — sooner rather than later. It’s not enough simply to state that Trump abused his power when he offered Ukraine aid or a White House visit in return for investigating what Trump wanted investigated. The Democrats are going to have to explain why pressuring a foreign power to investigate political rivals subverts the very nature of republican self-government.

An article by Noah Feldman:  Your boss, the president of the United States, directs you not to help Congress in the impeachment inquiry he considers illegitimate. Then you get a subpoena from the House of Representatives Intelligence Committee ordering you to appear and testify under oath — or face contempt charges if you don’t. Other than call a lawyer, what are you supposed to do next? For growing number of Trump administration officials, this isn’t a hypothetical situation. Since White House counsel Pat Cipollone’s Oct 8 letter refusing Trump administration participation in the House impeachment inquiry, five current or freshly resigned foreign policy officials have chosen to testify before the inquiry despite being told to keep quiet. Meanwhile, some officials under subpoena haven’t yet agreed to testify. And the White House has so far blocked the release of many, but not all, of the documents subpoenaed by the House. It’s possible to depict the subpoenaed officials who have agreed to appear as heroes, choosing service to the republic over personal loyalty to the president. That may even be true of some of them. But the legal reality of their dilemma makes things a little more complicated.

An article by Noah Feldman:  If you’re following the House of Representatives impeachment inquiry into Donald Trump, you may be wondering why you aren’t seeing video clips of testimony by crucial witnesses. The answer is: it’s all happening in secret, not so much to protect national security, but to manage the political process of the inquiry. There are some plausible reasons to justify the ongoing secrecy of depositions being made before the House Intelligence Committee. But the secrecy can’t go on indefinitely. As the contours of the case against Trump become known, it’s time for House Democrats to start moving towards public testimony and a more transparent inquiry.

An article by Noah Feldman:  The news that two associates of Rudy Giuliani have been charged with funneling illegal campaign contributions from Ukraine to the United States is inevitably intriguing to Democrats leading an impeachment inquiry against Donald Trump. But it’s important to avoid going down a rabbit hole of Ukraine-Trump connections. That could distract the public from the core issue: That Trump pressured the president of Ukraine to investigate Joe Biden in exchange for releasing military aid.

A war of words and a stalemate in Washington this week, after the White House declared that it will not cooperate with the impeachment inquiry. President Trump tweeted that the Democratic-led House inquiry was "a totally compromised kangaroo court." Democrats said the president is obstructing justice, and vowed to press on. So, what happens now? Guests: Noah Feldman, professor at Harvard Law School. He tweets @noahrfeldman. His piece in the New York Times is called "This Is a Constitutional Crisis. What Happens Next?" He tweets @noahrfeldman. Nancy Gertner, former Massachusetts federal judge, senior lecturer at Harvard Law School and WBUR legal analyst. She tweets @ngertner.

An op-ed by Noah Feldman: For the first time since President Richard Nixon refused to turn over the White House tapes, the United States is facing a genuine constitutional crisis. To be sure, Donald Trump had already created a crisis in the presidency by abusing the power of his office to pressure foreign governments to investigate his political rival Joe Biden. But that act on its own didn’t count as a constitutional crisis, because the Constitution prescribes an answer to presidential abuse of office: impeachment. Now that President Trump has announced — via a letter signed by Pat Cipollone, the White House counsel — that he will not cooperate in any way with the impeachment inquiry begun in the House of Representatives, we no longer have just a crisis of the presidency. We also have a breakdown in the fundamental structure of government under the Constitution. That counts as a constitutional crisis.

An article by Noah Feldman: A federal district judge in New York has held that the Manhattan district attorney may subpoena Donald Trump’s tax records as part of a criminal investigation. Apart from the obvious political implications, there’s something constitutionally significant about the decision by Judge Victor Marrero, a Bill Clinton appointee. The judge took the opportunity to attack two memos written by the Department of Justice, both of which maintain that a sitting president cannot be criminally prosecuted. These memos form the basis for the department’s current policy of not indicting a sitting president in federal court.

An article by Noah Feldman: The Supreme Court is back in session today. And in this mad political season, it somehow seems fitting that one of the first cases it will consider is whether it is constitutional for a state to punish a person who cannot tell right from wrong because of mental illness. On the surface, the question seems like one with obvious liberal and conservative answers: liberals, it would appear, should think that the Constitution protects people with certain serious forms of mental disability, whereas conservatives should think that states may be as harsh as they like in defining crime. And indeed, it seems probable that the court will split roughly on ideological lines in the case, Kahler v. Kansas.

An op-ed by Noah Feldman;  It’s no surprise that a federal judge has held that Harvard University doesn’t discriminate against Asian Americans in its admissions. This case probably ends here: The Supreme Court would be ill-advised to take up this particular case. Yet there will likely be other cases like this one, and a conservative Supreme Court may well take one of those as an opportunity to rule against diversity-based admissions. Evidence of discrimination by Harvard (where I work) was, in the end, extremely weak. The parties introduced competing statistical models, and even the model preferred by the plaintiffs didn’t show much in the way of disparate admissions outcomes. The main troubling finding, that Asian-American applicants were scored slightly lower on a “personal qualities” metric, appears to be mostly explained by high school teacher recommendations, which might well reflect implicit bias – but not discrimination by Harvard.

It's only natural for Americans wrapping their heads around the idea that Donald Trump might actually get impeached to think back to Richard Nixon. This was the premise of the first season of the wildly popular podcast Slow Burn, the animating thread of so many late-night prognostications—on Twitter, at bars, at dinner with your parents—at the height of Robert Mueller's investigation of Russian interference in the 2016 election. ...Well, for one thing, House Speaker Nancy Pelosi has formally launched an impeachment inquiry, a step Democrats never formally took amid Mueller Mania. And as Noah Feldman, a Harvard legal historian who has closely tracked the various investigations into Trump, explained over the course of two conversations this week, Pelosi’s reasoning was transparent: People can understand the idea of Trump bullying someone over the phone to go after a personal rival more easily than they can shadowy political consultants or dimwitted adult sons requesting the aid of hackers backed by Moscow. Or as Feldman—who said we are in "uncharted ground" at this point—put it, "The report produced by the [whistleblower] does in like four pages what Mueller couldn't in 400," adding, "So instead of the Slow Burn, we just had one big download... of the case to impeach."

An article by Noah Feldman: Believe it or not, it’s time for a new special counsel investigation. Not targeting Donald Trump himself: Congress can and will investigate the president in the course of its impeachment inquiry. But as a result of the whistle-blower complaint, a separate investigation does need to get underway immediately. The Department of Justice must investigate Rudy Giuliani’s potential crimes in trying to get Ukraine to interfere in the 2020 U.S. election. It also needs to investigate whether White House officials criminally covered up evidence of Trump’s call with Ukrainian president Volodymyr Zelenskiy. And because the whistle-blower complaint alleges that the top law enforcement official in the federal government, Attorney General William Barr, “appears to be involved” in these events, a special counsel must be appointed.

An article by Noah Feldman:  The whistle-blower complaint against Donald Trump, in just a few pages, establishes the evidence for a quid pro quo between Trump and Ukrainian president Volodymyr Zelenskiy — unfreezing aid payments in exchange for investigating Joe Biden and digging into an unsupported fringe theory about the origins of the Trump-Russia collusion allegation. Second, it provides strong evidence that some in the Trump administration understood that Trump’s call to Zelenskiy was wrong and potentially criminal — and, third, that they took steps to cover it up. Despite its brevity, the whistle-blower complaint does just about everything that Robert Mueller’s report failed to do over several hundred pages: provide proof of Trump soliciting interference in a U.S. election from a foreign government. The complaint also documents Trump abusing his office for personal gain. Abusing one’s office for personal gain is a textbook definition of the federal crime of bribery and extortion. It’s also a textbook definition of an impeachable offense.

An op-ed by Noah Feldman: A White House memo recording Donald Trump’s July phone conversation with Volodymyr Zelenskiy is damning. Trump’s request that the president of Ukraine initiate a corruption investigation into Joe Biden and his son Hunter wasn’t incidental. On the contrary, it appears to have been the point of the call, along with an additional request to investigate the origins of the Russian collusion allegations against Trump. Trump brought up the investigations nearly every time he opened his mouth. Zelenskiy responded positively, suggesting he got the point. There is more than enough evidence here to support an allegation that Trump was not merely asking the president of Ukraine “to do us a favor,” as he put it, but rather proposing a quid pro quo in which U.S. aid for Ukraine would be reinstated in exchange for an investigation into the Mueller investigation, and into Biden. That would constitute an abuse of power by the president of the United States for his own benefit, since Biden was and is the leading contender for the Democratic nomination to challenge Trump in 2020. Such an abuse, if proven, would almost certainly qualify as an impeachable offense.

An article by Noah Feldman:  If it’s true (and we may soon find out) that Donald Trump froze U.S. government aid to Ukraine and made it clear to the Ukrainian president that he would unfreeze it if Ukraine were to investigate Joe Biden, that is certainly an outrage. Depending on how you define the term, it may also be a “high crime” deserving of impeachment under the Constitution. But is it a crime under existing federal law? The answer turns out to be tricky. And if history is a guide, the question will be hotly debated in any process of impeachment.

The president’s critics have found numerous justifications for impeachment throughout his tenure, including obstruction of justice during the Mueller investigation, violations of campaign finance laws in the payment of hush money to two women and what seems to be regular defiance of the Constitution’s emoluments clause...Impeachment is a process whose territory remains largely uncharted, since only two presidents, Andrew Johnson and Bill Clinton, have ever been impeached, and neither was convicted. “Because it has been used so rarely, and because it is a power entrusted to Congress, not the courts, impeachment as a legal process is poorly understood,” Noah Feldman and Jacob Weisberg have written in The New York Review of Books. “There are no judicial opinions that create precedents for how and when to proceed with it.”...But “not all crimes by federal officials have been seen as impeachable,” write Laurence Tribe, a professor of constitutional law at Harvard, and Joshua Matz, an adjunct professor at Georgetown Law, in their book “To End a Presidency.” So where exactly does the line fall? During Bill Clinton’s impeachment trial, Mr. Tribe argued that his conduct did not rise to the level of an impeachable offense because it related to his private life....The argument against this sort of ad hoc impeachment has its roots in Supreme Court Justice Benjamin Curtis’s defense of President Andrew Johnson during his impeachment trial in 1868. As Nikolas Bowie, an assistant professor at Harvard Law School, writes in the Harvard Law Review, Curtis believed that retroactively criminalizing a president’s behavior — inflammatory, racist campaign speeches — would violate a fundamental principle of common law: “There must be some law,” Curtis argued, “otherwise there is no crime.” Mr. Bowie argues that the decision to impeach Mr. Trump without any statutory justification would set 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.”

An article by Noah Feldman: The Trump administration is gearing up for its next big legal fight, taking on California’s long-established authority to set vehicle emission standards for new cars. Because the state is so large, this effectively creates national miles-per-gallon targets for any manufacturer selling vehicles in the U.S. Trump would like to take this power away from California and set lower national MPG standards. The question is, can he do it? Or is this just another example of presidential overreach in an administration that specializes in going too far?

An article by Noah Feldman: Tuesday, Britain’s Supreme Court will start a pivotal hearing related to Brexit. What it decides could tell us just how aggressive judicial review has gotten, and how far it’s spread from its foundations in the U.S.. Over the last 50 years, the American practice of judicial review has made its way around the world. It has become increasingly common for judges in constitutional systems to see themselves as the final decision-makers on constitutional legitimacy.

An op-ed by Noah Feldman:  It’s not often that hedge funds and the Constitution come up in the same sentence — let alone the same judicial opinion. But the two are very much in play in an important opinion issued by the U.S. Court of Appeals for the Fifth Circuit. In it, the court handed a win to hedge funds that are challenging the 2012 decision by the Federal Housing Finance Agency to make Fannie Mae and Freddie Mac transfer their profits to the U.S. Treasury in perpetuity — a transformation of those previously quasi-private entities known as the net worth sweep.

An op-ed by Noah Feldman:  Donald Trump says that the Supreme Court has given him a big win on asylum. Don’t be so sure. True, by a vote of 7-2, the justices allowed Trump’s new asylum regulation to go into effect — the one that says you can’t apply for asylum at the southern border if you’ve passed through Mexico and haven’t tried and failed to get asylum there.  But reversing the lower courts that blocked the regulation, pending litigation, isn’t the same thing as upholding it as lawful. The court of appeals still has to issue a final ruling on whether the rule violates federal immigration statutes and whether the government was authorized to issue it without first seeking notice and comment from the public. Then, after final rulings from the appellate court, the Supreme Court will surely weigh in — and still might strike it down.