Noah Feldman

An op-ed by Noah Feldman: The brewing conflict between the House Judiciary Committee and Attorney General William Barr — over whether he will testify this week as scheduled, and under what ground rules — is a symptom of a much bigger emerging clash between Congress and the president. The most probable outcome is a stalemate: because the framers designed the Constitution that way. We have entered a new phase of the constitutional stress test that began with President Donald Trump’s election and shows no signs of winding down. In the first phases, Trump pushed the limits of executive power on immigration, and went after the criminal justice system in the hopes of delegitimizing it. This time, the initiative comes not from the president, but from a different branch of government.

... After reading the Mueller report, they say, Congress has no option but to fulfill its obligation and impeach Trump. ...  But this view misunderstands impeachment entirely. ... Harvard Law School’s Noah Feldman points out that neither history nor the framers’ intent yields clear lessons on the topic. “It’s quite possible that many founders would have supported impeachment for serious substantive matters like the usurpation of power by the president. By that standard, would [Abraham] Lincoln’s suspension of habeas corpus, FDR’s internment of the Japanese Americans or [Lyndon] Johnson’s massive expansion of the Vietnam War all have been impeachable offenses? Possibly.”

An op-ed by Noah Feldman: Some of President Donald Trump’s critics are saying that, despite special counsel Robert Mueller’s report, Trump could still be prosecuted for obstruction of justice after he leaves office. Don’t believe it. It’s conceivable that Trump could face charges post-presidency by the U.S. Attorney for the Southern District of New York for campaign-finance felonies he may have committed while paying off Stormy Daniels through Michael Cohen. And who knows what financial shenanigans from before his presidency might be investigated and prosecuted by New York prosecutors.

An op-ed by Noah Feldman: After oral argument Tuesday at the U.S. Supreme Court, it seems modestly likely that a majority of the justices is poised to allow the Trump administration to ask a citizenship question on the 2020 census. That would overturn a lower court decision holding, essentially, that Secretary of Commerce Wilbur Ross didn’t state his true reasons for wanting to add the question in the first place.

An op-ed by Noah Feldman: Does the ban on workplace discrimination based on “sex,” as laid out in Title VII of the 1964 Civil Rights Act, include discrimination based on sexual orientation and gender identity? U.S. Supreme Court agreed Monday to take up both questions in its October 2019 term, which means we will have legal answers to these questions sometime before June 2020. It’s potentially a big moment for LGBT rights. It’s also a watershed moment for a question the Supreme Court has been struggling with in recent years: What is the right way to interpret statutes passed by Congress?

An op-ed by Noah Feldman: Why did Robert Mueller pull his punches? In his report, made public Thursday by the Department of Justice, Mueller laid out significant evidence to support the conclusion that President Donald Trump committed obstruction of justice. Yet the special counsel stated that no matter what evidence he found, he wouldn’t directly say that Trump had committed a crime.

An op-ed by Noah Feldman: In the latest setback to the Guantanamo military commissions, the U.S. Court of Appeals for the D.C. Circuit on Tuesday threw out some three years of pretrial rulings by the military judge presiding over the case of the alleged mastermind of the USS Cole bombing. The decision was based on an inexcusable procedural problem: The military judge was pursuing a job in the executive branch while sitting on a case involving charges brought by the executive branch. The appeals court opinion featured a stinging attack on “all elements of the military commission system” for failing “to live up to” the “shared responsibility” of ensuring criminal justice. The ruling highlights an important evolution in the challenges facing the military commissions, which were set up to bring to justice the U.S. detainees at the prison at Guantanamo Bay, Cuba.

An op-ed by Noah Feldman: A group of parents filed suit Monday against the New York City Department of Health to block an emergency order requiring measles vaccinations for everyone in four ZIP codes in the Williamsburg neighborhood of Brooklyn. The threat of measles — and the opposition to vaccination — isn’t coming from the hipsters who populate some parts of the neighborhood. The target is a community of mostly Hasidic, haredi (ultra-Orthodox) Jews, who have refused vaccination for quasi-religious reasons and who are now caught in the middle of a measles outbreak that city health officials fear could spread fast and dangerously. One yeshiva’s preschool program has already been closed as a health hazard. Forced vaccination is a classic instance of a situation where the courts have to balance individual liberties against the public interest. The U.S. Supreme Court’s jurisprudence on the topic goes all the way back to 1904. Under existing law, there is strong reason to think the city will win and will be able to fine refusers $1,000 in an effort to compel vaccination.

An op-ed by Noah Feldman: The arrest of Julian Assange presages a free-speech debate that we’ve been avoiding for the seven years he was living in the Ecuadorean Embassy in London: Can Assange be lawfully prosecuted for somehow facilitating illegal theft of classified information? Or is the organization he founded, WikiLeaks, protected by the First Amendment when it publishes documents supplied by others, like the New York Times when it published the Pentagon Papers?

An op-ed by Noah Feldman: It’s hard to think of a more unlikely human rights hero than Kirstjen Nielsen, the outgoing secretary of homeland security. But if CNN’s reporting is accurate, Nielsen actually did sacrifice her job for the legal rights of asylum seekers when President Donald Trump instructed her to deny entry to immigrants who are protected by international refugee law. Nielsen also reportedly has spent the last several months resisting Trump’s pressure to separate families at the Mexican border, a policy that has been blocked by several courts while litigation against it continues.

An op-ed by Noah Feldman: In a 5-4 decision Monday, the U.S. Supreme Court refused to block the execution of a Missouri man who says the lethal injection may cause him excruciating pain because of a medical condition. The legal commentators have been out in force since, explaining the politics of the justices’ disagreement and the ever-changing technical aspects of death penalty jurisprudence. That analysis is useful, but it’s also beside the point. What’s really at stake is whether and how the Supreme Court should engage with what the late Justice Harry Blackmun memorably called “the machinery of death.” On that question the verdict of history will be clear: All nine justices have gotten it terribly wrong. And so has the Supreme Court itself. The reason is not legal, but moral. It’s morally repugnant for the justices to stage clinical-sounding debates on whether specific methods of execution are constitutional, balancing firing squads against injections, gas chambers and electrocution — all against the historical backdrop of hanging.

Attorney General William Barr concluded that President Trump did not obstruct justice due to lack of evidence to prove that he committed an underlying crime. Does one have to commit a crime to obstruct justice and is it possible that a sitting president can be indicted? Here & Now's Jeremy Hobson talks with Bloomberg opinion columnist and Harvard University law professor Noah Feldman.

An op-ed by Noah Feldman: The news that President Donald Trump’s administration reversed 25 security-clearance denials, as a whistle-blower has now told the House Oversight and Reform Committee, seems outrageous on its surface. For Trump critics, it’s an example of the reckless abuse of executive power over and against the recommendations of the career civil servants who issue clearances. But those critics should think twice before assuming that the denial of access to the government’s confidential or top secret information is some sort of unassailable judgment that cannot be reversed without bad motives. The clearance process is opaque to the point of being almost undemocratic. Those seeking clearance do not learn the reasoning for the decisions, nor do they have any opportunity to make objections. If you are denied clearance, you never know why — and ordinarily, neither does anyone outside the clearance bubble.

An op-ed by Noah Feldman: Democrats are starting to sound serious about expanding the Supreme Court in hopes of reversing its rightward march. They need to stop. Court packing would be bad politics and something worse: a threat to the rule of law. It’s OK to block nominees from the other party on ideological grounds. It’s wrong to destroy the structure of judicial independence that has been built up brick by brick since 1787. It’s OK to block nominees from the other party on ideological grounds. It’s wrong to destroy the structure of judicial independence that has been built up brick by brick since 1787.

An op-ed by Noah Feldman: The slaughter of 50 people at a New Zealand mosque this month by a white-supremacist gunman set off a new round of debate about whether white nationalist violence should be treated like Islamic terror. The discussion has covered various practical and theoretical topics but is missing a key element: the legal structure for dealing with the two is different.

An op-ed by Noah Feldman: The summary of special counsel Robert Mueller’s report submitted to Congress on Sunday by Attorney General William Barr can only be described as a significant win for President Donald Trump. Mueller did not find that the Trump campaign coordinated with or colluded with Russian efforts to subvert the 2016 election. And Mueller did not reach a conclusion on whether Trump himself committed obstruction of justice.

An op-ed by Noah Feldman: Critics upset at U.S. Secretary of State Mike Pompeo for saying that God might have put Donald Trump in office to protect Israel from Iran should take a step back and look at the big picture. Pompeo was responding to a leading question on the Christian Broadcast Network, and his response was actually pretty diplomatic: “As a Christian, I certainly believe that’s possible.” ... Rather than debating God’s plan for the world, it’s far more pragmatically valuable to ask whether there are defensible non-theological reasons for Trump’s policy toward Israel.

An op-ed by Noah Feldman: We don’t know what’s in it yet. But we can already say that the Mueller report is a win for democracy. We can say so definitely because on Friday afternoon, special counsel Robert Mueller officially filed a report with Attorney General William Barr on what he has learned about Russian interference in the 2016 election. Lest we forget, that was far from a foregone conclusion throughout much of the past two years.

An op-ed by Noah Feldman; European regulators are cracking down on the big technology companies — witness the 1.49 billion euro ($1.7 billion) fine against Google on Wednesday. At the same time, however, the U.S. Supreme Court is cautiously entering the business of protecting them. In a decision that on the surface looks minor, but is actually an important signal, the court on Wednesday sent a class-action suit against Google back to the lower courts to determine whether any of the plaintiffs actually had standing to sue.  The justices’ action strongly hinted that a majority thinks the suit should never have been allowed to go forward in the first place. If that’s right, it’s an affirmation of the court’s new constitutional idea that it isn’t enough for Congress to create new legal rights that can be used against tech companies. There must be what the court calls “concrete” harm to users. That determination, crucially, rests with the Supreme Court, not with Congress.

An op-ed by Noah Feldman: With elections looming, Israel is locked in a constitutional struggle for its democratic soul. The latest development: Israel’s high court, in a decision reversing the nation’s elections commission, has banned the leader of a Jewish-supremacist far-right party for running for Knesset while allowing a left-wing Arab party that calls for Palestinian equality and challenges the Jewish nature of the state. The decision matters because of a change to Israel’s unwritten constitution. In 2018, the Knesset enacted a controversial new “basic law” — the closest thing to a constitutional amendment the country has — on the topic of Israel as a nation-state. The basic law declared self-determination to be the right of Israel’s Jews, but not of other Israelis.

An op-ed by Noah Feldman: President Donald Trump apparently caught a rerun of “Saturday Night Live” this weekend, and decided to tweet Sunday morning that the NBC program should be investigated by the Federal Communications Commission for parodying him so much. That’s legally absurd. But Trump’s lament reflects the persistent power of the old idea that television networks should be fair to all political sides and give equal time to all candidates for office. It’s worth asking: What’s the current state of the law on broadcaster fairness? And beyond the law, should fairness be an objective of any kind in the era of cable news and social media?