Noah Feldman

An op-ed by Noah Feldman: Joaquin Castro’s tweet listing the names of maxed out Trump donors in the San Antonio area has come in for intense criticism, with multiple Republican congressmen sticking to the talking points that by publicizing these names, Castro was “targeting” private citizens. What is fascinating to me is the intuition that there is something inherently wrong with tweeting out information that is already mandated by law to be in the public domain. This feeling transcends partisan politics: Remember when Democrats were upset when Trump tweeted that special counsel Robert Mueller’s investigative team contained “13 hardened Democrats” based on publicly available voter registration information? Is there, in fact, something wrong or worrisome about a public official actively publicizing this kind of information? Federal election law already requires public disclosure of all donations to candidates for federal office.

An op-ed by Noah Feldman:  It’s not often that an act of statutory interpretation says something fundamental about who we want to be as a country. But in the Donald Trump era, the application of immigration law has become a touchstone of our collective identity. And so a decision by Attorney General William Barr that restricts the scope of who can get asylum under the Immigration and Nationality Act has consequences and meaning beyond the people whose lives it will immediately affect.

An op-ed by Noah Feldman:  You can take the letter that the Department of Justice has sent to former special counsel Robert Mueller offering “guidance” on his testimony to Congress as evidence of several interesting things. For one, Mueller seems to have wanted an official document from the Justice Department to help him avoid answering questions. For another, the Trump administration seems worried about questions concerning unindicted persons, such as President Donald Trump and his family.  But whatever you do, don’t take the Justice Department letter as the law. The only legal bars to Congress’s demanding answers from Mueller on Wednesday are the Constitution and federal statutes. Those are invoked in the letter, but without much bite. The core of the guidance focuses on departmental policy.

An op-ed by Noah Feldman:  Questions to former special counsel Robert Mueller from both sides of the aisle in his House Judiciary Committee testimony made one thing clear: The path Mueller took in the section of his report on President Donald Trump’s obstruction of justice was indefensible — from both sides. The most important issue in Wednesday’s hearing was the way Mueller refused to address Trump’s possible guilt based on the legal theory that because the Department of Justice couldn’t indict a sitting president, it would be unfair to conclude that the president had committed a crime. Yet Mueller couldn’t manage a coherent response to either Democratic or Republican criticisms arising from that prosecutorial decision.

An op-ed by Noah Feldman:  There’s been plenty of finger-pointing over the past few days, after Robert Mueller’s testimony before two House committees failed to animate his report on Russian interference in the 2016 election in the way the president’s critics had hoped. But the problem didn’t start with Mueller’s performance, or the lack of attention paid to the report itself, or the efforts made by the attorney general to mischaracterize it. It’s become clear to me that the problems go back even further: The regulations governing the appointment of a special counsel doomed Mueller’s investigation from the start.

An op-ed by Noah Feldman: Questions to former special counsel Robert Mueller from both sides of the aisle in his House Judiciary Committee testimony made one thing clear: The path Mueller took in the section of his report on President Donald Trump’s obstruction of justice was indefensible — from both sides. The most important issue in Wednesday’s hearing was the way Mueller refused to address Trump’s possible guilt based on the legal theory that because the Department of Justice couldn’t indict a sitting president, it would be unfair to conclude that the president had committed a crime. Yet Mueller couldn’t manage a coherent response to either Democratic or Republican criticisms arising from that prosecutorial decision.

An op-ed by Noah Feldman: You can take the letter that the Department of Justice has sent to former special counsel Robert Mueller offering “guidance” on his testimony to Congress as evidence of several interesting things. For one, Mueller seems to have wanted an official document from the Justice Department to help him avoid answering questions. For another, the Trump administration seems worried about questions concerning unindicted persons, such as President Donald Trump and his family. But whatever you do, don’t take the Justice Department letter as the law. The only legal bars to Congress’s demanding answers from Mueller on Wednesday are the Constitution and federal statutes. Those are invoked in the letter, but without much bite. The core of the guidance focuses on departmental policy.

An op-ed by Noah Feldman: The news on Tuesday that the U.S. Department of Justice will not seek civil rights charges against a New York police officer in the death of Eric Garner sounds like grounds for a straightforward controversy. ... Yet there is a less obvious problem lurking in the background here: What should the Department of Justice do about a possible civil rights violation in a close case that also has enormous symbolic importance? Garner’s final words, “I can’t breathe,” became part of Black Lives Matter protests of excessive police force throughout the country. Possibly no more complex, or indeed tragic, problem faces a well-meaning attorney general.

An op-ed by Noah Feldman: The career of Justice John Paul Stevens, who died Tuesday at 99, stands as a reminder of the U.S. Supreme Court of an earlier era, when partisanship was rare, pragmatism reigned, and a moderate Republican like Stevens could evolve into one of the most important liberal justices of the post-World War II era. Even at the height of Stevens’s influence in the late 1990s and early 2000s, when he had become the de facto leader of the court’s liberals, Stevens represented something of a throwback — a connection to a Supreme Court world only dimly remembered or read about in history books.

An article by Noah Feldman:  It’s gratifying when the courts stand up to President Donald Trump’s abuses of executive power. But the federal appeals court that held Tuesday that Trump can’t block users from his personal Twitter account doesn’t fit into that paradigm. Although its decision will be hailed by some as a win for free expression, it’s actually based on a misconception about our social media accounts — one the U.S. Supreme Court is going to have to fix. Here’s the basic problem: The U.S. Court of Appeals for the 2nd Circuit assumed in its opinion that Trump’s Twitter account was either “private” — in effect, Trump’s own property to do with as he wishes — or else “public,” in the sense that the account was a government-controlled space in which the First Amendment should apply...The reality, however, is that Trump’s Twitter account isn’t his private property or a government-controlled space. It’s something else: property controlled by Twitter Inc.

Particular moments in history and strategic breaks with unwritten rules have helped many presidents expand their powers incrementally, leading some to wonder how wide-ranging presidential powers can be. [With comments from Noah Feldman, Mark Tushnet, Michael Klarman, Jack Goldsmith, Daphna Renan, and Neil Eggleston].

With Facebook, Twitter, and YouTube facing widespread criticism for the way they manage hateful, abusive, threatening, or fake content posted by users or content partners on their sites, many question whether private tech companies deserve to wield so much power to control what people can and can’t see on social networks....Facebook first established a massive force of content moderators—mostly employed by third-party companies—to help find and remove toxic content. The company said it had 15,000 content reviewers around the world by the end of 2018. Last November, Facebook CEO Mark Zuckerberg announced that Facebook would also, by the end of 2019, form an external, independent oversight board to oversee its content moderation decisions. The board would be “. . . a new way for people to appeal content decisions to an independent body, whose decisions would be transparent and binding” based on the idea that “Facebook should not make so many important decisions about free expression and safety on its own.”...The whole idea for an oversight board came from outside Facebook, from Harvard Law professor Noah Feldman, who is the main architect of Facebook’s plan. I spoke to him by phone about the details of his plan, and about some of the problems it’s likely to face.

An article by Noah Feldman:  President Donald Trump is politicizing the Fourth of July — so say the president’s critics in tones of frank outrage over his plans for a presidential speech accompanied by fighter jet flyovers. It’s not only, they say, that Trump is promoting militarism by parading some tanks through Washington. Rather, Trump is taking the wholesome, politically neutral, family fun of the holiday and using it to advance his own partisan interests. In place of hot dogs and fireworks, Trump is bringing us Republican elephants. There’s just one problem with this line of criticism: The Fourth of July was a partisan holiday from the time it was first celebrated in the 1790s. It became popular as a self-conscious endorsement of Thomas Jefferson, his Declaration of Independence and the first Republican Party — over George Washington, Washington’s Birthday and the Federalist Party.

An article by Noah Feldman:  We don’t know whether the Department of Justice lawyers working on the census case were fired en masse or quit. Either way, Sunday’s announcement was a genuinely shocking development in President Donald Trump’s efforts to add a citizenship question to the 2020 count. It’s bizarre to the point of being unprecedented for the government to change horses like this in the middle of such a highly time-sensitive legal process. The move signals that the Trump administration is very likely on the way to making some doubtful legal claims — claims that will have to be in stark contradiction to what the Department of Justice has already said to the federal courts, including the U.S. Supreme Court, in a lawsuit brought by civil-rights groups trying to scrap the question.

An article by Noah Feldman: The U.S. Supreme Court issued an important decision Wednesday narrowly declining to overrule an important doctrine of administrative law, with Chief Justice John Roberts joining the liberal justices solely on the basis of stare decisis — the principle that precedent should be respected, even if you don’t agree with it. For those who care deeply about the future of the administrative state, the first half of that sentence is the interesting one. The court is now fully engaged in an epic battle over whether to dismantle administrative law as we know it. That battle pits the insurgent, activist Justice Neil Gorsuch against the court’s liberals, who are very much on the defensive. In the case decided Wednesday, Kisor v. Wilkie, Justice Elena Kagan managed to pull off a successful piece of counterinsurgent strategy, persuading Roberts not to go over to the rebel side.

An article by Noah Feldman: Chief Justice John Roberts split the baby — again. In a dramatic and complicated opinion in a much watched census case, he first held that the Trump administration’s decision to add a citizenship question to the 2020 census was constitutionally and statutorily permissible and was supported by sufficient evidence. He was joined by the U.S. Supreme Court’s other conservatives. Then Roberts switched course. In a separate part of his opinion, in which he was joined by only the court’s four liberals, Roberts held that Secretary of Commerce Wilbur Ross had not given his true reasons for wanting to ask about citizenship on the census, but had instead given a “pretext” — lawyer-speak for a lie. In this part of the decision, Roberts upheld U.S. District Judge Jesse Furman’s decision to send the census case back to the Commerce Department to give a new (and presumably honest) explanation for its actions.

An article by Noah Feldman: When the 2018 Supreme Court term began in October, all eyes were on the confirmation of the newest justice, Brett Kavanaugh. By the time the term wrapped up in June, the center of attention was Chief Justice John Roberts. And that’s where the focus is likely to stay as long as the court continues in this configuration. So far, the retirement of Justice Anthony Kennedy last summer has not had the effect of turning the court into a reliable forum for 5-4 decisions with the conservatives on top. Instead, Roberts seems to be embracing the role of the centrist — as he did most prominently in this term’s marquee case, blocking (at least temporarily) President Donald Trump’s administration from adding a citizenship question to the 2020 census. Not every swing voter is the same, however. Roberts is extremely different from Kennedy.

After 15 years trying to connect the world, Facebook Inc. is attempting to set up a better system for providing oversight of its sprawling platform. That effort is proving to be far from simple. The social-media giant on Thursday published a report on its efforts to create an independent content oversight board to examine some of its most controversial content moderation decisions...On Thursday, Facebook released Mr. Zuckerberg’s video discussion with two experts about governance: Noah Feldman, a professor of law at Harvard University who has been advising Facebook on the design of its oversight board, and Jenny Martinez, a human rights lawyer and dean of Stanford Law School.

It’s been roughly six months since Facebook started collecting global feedback on its proposal to create an oversight board for content moderation decisions. This morning, the platform released the findings of that process in an epic report—almost 250 pages of summary, surveys, public comment, workshop feedback and expert consultations...The report begins by outlining the (relatively short) history of the idea of an oversight board: the process began with Harvard Law Professor Noah Feldman pitching the idea to Facebook in early 2018, followed by CEO Mark Zuckerberg first publicly floating the idea of a Facebook “Supreme Court” on a podcast in April 2018.