Noah Feldman

An op-ed by Noah Feldman: William Barr, President Donald Trump’s nominee for U.S. attorney general, has a worrisome theory of executive power. He’s wrong to say that part of the federal obstruction of justice statute isn’t applicable to the president. But on the eve of Barr’s Senate confirmation hearings, it’s also important to recognize that Barr’s view of executive power is not extreme, or at least not outside the range of opinions commonly held by lawyers who have worked for presidents.

An op-ed by Noah Feldman: ... For better or worse, the U.S. Supreme Court has held that someone can be convicted of the crime of material support just by teaching English in coordination with a terrorist group, even if that person never went near a weapon or battlefield. In this instance, however, the best legal option may not be a very good fit for the American’s conduct.

An op-ed by Noah Feldman: This past week, we saw the first concrete evidence that Donald Trump’s 2016 campaign colluded with Russia — and it seemed as if no one cared. That’s a reason to ask a disturbing question: What if the slow burn of Robert Mueller’s investigation ends with a fizzle, not an explosion? What if Mueller, in his role as special counsel, uncovers meaningful proof that the Trump campaign for president knowingly and actively cooperated with Russian efforts to get Trump elected — and the public treats the news as completely unremarkable? That would mark a radical transformation in the nature of contemporary U.S. politics.

An op-ed by Noah Feldman: When senators get to grill William Barr next week, they shouldn’t waste much time on whether President Donald Trump’s nominee for attorney general would fire special counsel Robert Mueller. The key question should be something different: Under what circumstances would Barr advise the president to pardon the targets of Mueller’s investigation? Here’s why: The most significant single act of Barr’s career in the Department of Justice was to advise President George H.W. Bush to pardon six officials from Ronald Reagan’s administration, including Secretary of Defense Caspar Weinberger, for crimes associated with the Iran-Contra affair. At the time, Barr was — you guessed it — attorney general. His recommendation gave Bush the cover he needed to issue the pardons.

An op-ed by Noah Feldman:  History’s verdict on Rod Rosenstein’s tumultuous two years as deputy attorney general will be mixed, if he does leave as expected when a new U.S. attorney general is confirmed. Rosenstein broke the normal rules to save a shred of normality. Usually that kind of compromise doesn’t work. In this case, it did — mostly. Rosenstein is going to be remembered first for naming Robert Mueller as special counsel to investigate Russian interference in the 2016 election.

President Trump is continuing to leave open the possibility that he might declare a national emergency and try to authorize a controversial wall on the southern border on his own if Congress won’t approve the $5.7 billion he’s asking for.... A number of legal experts have weighed in on the concept. Here’s a roundup from around the Web of what they’ve been saying. ... The Constitution, on the other hand, is relatively silent on the topic of emergency powers, Harvard law professor Noah Feldman said in a Bloomberg Opinion column. Feldman notes that Article I, Section 9 allows for the suspension of habeas corpus in cases of rebellion or invasion. But he continued, “From the fact that the suspension clause exists, you can deduce something very basic to the U.S. constitutional system: There are no other inherent constitutional emergency powers.”.... Harvard law professor Mark Tushnet told NBC News, “My instinct is to say that if he declares a national emergency and uses this pot of unappropriated money for the wall, he’s on very solid legal ground.”

An op-ed by Noah Feldman: President Donald Trump has said that he can declare a national emergency and order his border wall to be built. He’s wrong. The U.S. Constitution doesn’t contain any national emergency provision that would allow the president to spend money for purposes not allocated by Congress. And it’s clearer than clear that Congress not only hasn’t authorized money for a wall along the border with Mexico but also doesn’t intend to do so. The upshot is that any attempt by Trump to get around Congress by using invented emergency powers would violate the Constitution. It almost certainly would be blocked by the courts. And it would constitute a high crime and misdemeanor qualifying him for impeachment.

Noah Feldman, Harvard Law professor and a Bloomberg Opinion columnist, discusses his column: "No ‘Emergency’ Will Allow Trump to Build His Wall." Hosted by Pimm Foxx and Lisa Abramowicz.

An op-ed by Noah Feldman: President Donald Trump in a meeting with congressional Democrats on Friday said he was prepared for the partial government shutdown to continue for months — or even years — if he doesn’t get the money he wants for a wall along the Mexican border. It’s not hard to see how that prediction comes true. Both sides have framed the issue such that a victory for one side on funding a border wall entails defeat for the other. Neither side has much incentive to compromise. Suppose Trump is right. The longest shutdown on record is 21 days, from late December 1995 to early January 1996. (This is the 21st in the modern era.) What would a much longer shutdown mean for U.S. political life?

An op-ed by Noah Feldman: We go through life thinking the First Amendment is followed in the U.S. In practice, that isn’t always true. A case in point is that of Gunther Glaub, who is about to go to prison for a quirky protest in which he sent the bill for his new Chevrolet Camaro to the U.S. Department of Agriculture — and scribbled on it, “Thank you for paying this debt.” Astonishingly, prosecutors went after Glaub on the theory that sending the government this invoice and a few other bills, including one for his wife’s student loan and another from his credit union, violated the federal law against submitting false claims to the government.

An op-ed by Noah Feldman: A federal appeals court has dismissed all complaints brought against Justice Brett Kavanaugh as a result of his confirmation hearings—because he’s now on the U.S. Supreme Court. Legally, the decision is probably correct. The federal Judicial Conduct Act, passed by Congress, doesn’t apply to the Supreme Court justices. And the Code of Conduct for U.S. Judges, adopted by the federal courts’ policy-making body, doesn’t apply to the justices either.

An op-ed by Noah Feldman: The decision on Friday by a federal court judge in Texas to block the Affordable Care Act nationwide is a poetically perfect year-end twist in the Obamacare saga. Not since the first New Deal has a generational social change been so mired in judicial interference. Democrats on the streets may think they are pursuing the resistance against President Donald Trump. But the most effective resistance in the U.S. today is judicial resistance — in this case, by a conservative George W. Bush appointee to the signature initiative of Barack Obama’s administration.

Noah Feldman, Harvard Law Professor and Bloomberg Opinion columnist, discussed his column: "Trump’s Tweeting His Post-Presidency Defense Now."

An op-ed by Noah Feldman: President Donald Trump’s three-tweet sequence on Michael CohenThursday morning was different from the usual presidential stream of consciousness. Compact and carefully reasoned, the tweets sound an awful lot like they were written with a lawyer standing at the writer’s shoulder. Taken together, the tweets signal that Trump and his team are genuinely concerned about the possibility of his being indicted after leaving office — totally separate from any danger of impeachment. That’s significant.

An op-ed by Noah Feldman: With Michael Cohen, Donald Trump’s onetime lawyer and “fixer,” sentenced Wednesday to three years in prison, it’s worth asking: What will be the verdict of history on his crimes? Specifically, the felony campaign-finance violations connected to the payoffs to two women who said they had sexual affairs with the future president? Cohen said the payoffs were directed by then-candidate Trump — and the prosecutors of the U.S. Attorney’s Office for the Southern District of New York agreed. The answer depends on which of two competing paradigms for presidential wrongdoing the Cohen payoffs ultimately fall into.

An op-ed by Noah Feldman. Justice Clarence Thomas has a message for Justice Brett Kavanaugh: Let’s roll. Kavanaugh, however, isn’t yet taking up the invitation. The newest member of the U.S. Supreme Court may eventually join a conservative majority of five to roll back large swaths of liberal jurisprudence. Yet it’s noteworthy that Thomas is already impatient with Kavanaugh, just a couple of months into the latter’s life tenure. All this is the takeaway from the tea leaves of an otherwise opaque opinion issued Monday with Thomas dissenting from the court’s refusal to hear a case brought by Planned Parenthood.

An op-ed by Noah Feldman. Repatriating looted art has become an everyday reality. In the last few months alone, U.S. museums returned two statues stolen from India, and Thailand made an official request for the return of 23 works in American collections. Although reasonable people can disagree about the right home for artifacts like the Elgin marbles, which Greece wants back from the British Museum, or the Koh-i-noor diamond, which India believes should be returned from the collection of crown jewels kept in the Tower of London, it’s safe to say that there is often a credible ethical claim to be made in favor of returning works to the nations from which they were once taken.

The pair of lawsuits challenging Harvard’s sanctions rely on unusual and in some cases far-fetched legal arguments — but it is too early to know whether the complaints will be successful, experts say...Harvard Law School professor Noah R. Feldman ’92 said lawyers will have to get “creative” going forward if they hope to argue Massachusetts state law protects students’ right to join social groups. The attorneys are specifically alleging the penalties violate undergraduates’ freedom of association as guaranteed under the Massachusetts Civil Rights Act. Feldman said the freedom of association argument may prove viable. But he also noted Harvard may have its own claim to freedom of association under Massachusetts law: the University could argue that it has the freedom to associate — and not associate — with whomever it chooses, he said. Under this interpretation of the law, Harvard would have broad discretion to sanction social groups.

An op-ed by Noah Feldman. When I heard that Israeli police had recommended the indictment of Prime Minister Benjamin Netanyahu on corruption charges for the third time, I knew my job: sit down and write a column about how Israel faces a definitional moment in its struggle to maintain democracy and the rule of law. I’m still going to write that column...But before I go into the details of the scandal and what the Israeli attorney general’s office ought to do with the police recommendation, I have to pause for an admission. As an American, I hold no moral high ground from which to criticize Israel’s engagement with executive corruption.

An op-ed by Noah Feldman. In the run-up to Saturday’s crucial meeting between U.S. President Donald Trump and Chinese President Xi Jinping at the Group of 20 meeting in Argentina, the U.S. is signaling that cyberespionage will be a crucial part of its grievances against China. The basic complaint is that while both China and the U.S. try to hack each other’s national security apparatus, China also attacks private U.S. companies for the benefit of its own enterprises. The American allegation of asymmetry is accurate — but it’s also starting to seem outdated and more than a little hypocritical.

An op-ed by Noah Feldman. The key revelation of Michael Cohen’s new guilty plea is this: Justice Department Special Counsel Robert Mueller is one step closer to showing links between Donald Trump’s business interests in Russia and his conduct as a candidate for president...But the main takeaway is that Cohen and others in the Trump organization were actively doing a Russia deal that linked Trump’s emerging presidential candidacy with his business interest in a Moscow Trump Tower. And Trump knew about it, to a degree yet to be revealed.