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?

An op-ed by Noah Feldman: After the initial shock from the college admissions cheating scandal passes, university administrators will have to face the unenviable problem of whether to throw out the students who got in under false pretenses. You might think the solution is simple: If the parents cheated, the kids should pay the price. But things are a little more complicated, at least from the standpoint of the universities.

An op-ed by Noah Feldman: The indictment of Paul Manafort by New York state prosecutors on Wednesday is a shot across the bow of the presidency — a warning and possible harbinger of future prosecutions of Donald Trump’s associates, children and even the man himself by the state.

An op-ed by Noah Feldman: Look beyond the juicy stories of rich people and celebrities paying to have their children cheat on the ACT and SAT exams and buying their way into college. The real scandal behind the admissions indictments unveiled Tuesday is the way universities — including some of the greatest on earth — hand off to athletic coaches the power to decide who can attend.

An op-ed by Noah Feldman: Whatever Huawei Technologies Co. is doing by suing the U.S. government and six cabinet officials, it isn’t trying to win in court. The legal arguments mounted in its brief aren’t based on existing precedent. Although the brief cites the Constitution, as written the arguments are barely legal at all.

An op-ed by Noah Feldman: One of the fiercest political flashpoints today is whether to take down old memorials that offend current sensibilities. The U.S. Supreme Court is now considering what to do about that very problem. The case involves a World War I memorial in the form of a 40-foot cross, not a statue of a Confederate soldier. There’s a constitutional dimension because of the potential for establishment of religion. But the issues are nevertheless very much similar.

An op-ed by Noah Feldman: President Donald Trump has indicated that he may not want to comply with a series of 81 requests sent by the House Judiciary Committee as part of a strategy of full-on investigation of the president and his associates. His reaction is understandable, but his ability to resist is much more limited than he seems to think. If the House committee issues subpoenas, as opposed to simple requests, the addressees will have a duty to comply unless the information falls within the zone of a legally recognized privilege. And the relevant possibilities, executive privilege and attorney-client privilege, don’t apply widely.

An op-ed by Noah Feldman: Impeachment investigation without actual impeachment: That’s the strategy House Democrats have unveiled for taking on Donald Trump for the 20 months until the 2020 presidential elections. The Michael Cohen hearings last week were, apparently, just the first salvo. On Monday, the House Judiciary Committee requested documents from 81 agencies, organizations and individuals connected to the president. The committee under Chairman Jerrold Nadler is preparing to leave no stone in Trump’s life unturned. This investigative barrage solves a political problem for the Democrats, namely the danger that impeaching Trump would not lead to his being removed by the Senate and might instead help him win re-election, by energizing his supporters.

An op-ed by Noah Feldman: Free speech on campus is crucially important in a free society, and in some ways under significant threat. But President Donald Trump’s proposal over the weekend to impose free speech on universities isn’t the answer. Rather, any effort from the White House to control campus speech would become part of the problem. Public universities are already bound by the First Amendment. And private ones have their own free speech and free association rights, which presidential intervention would potentially violate. It’s essential to understand that freedom of speech on a university campus isn’t the same as speech in a pure public forum, like on a street corner.

An op-ed by Noah Feldman: Ordinarily it’s bad for democracy when a sitting head of government is notified that he will face corruption charges. But the pending indictment of Israeli Prime Minister Benjamin Netanyahu at the height of an Israeli election season is actually a good thing for the rule of law. ... What’s good about the charges is that they demonstrate that Israel’s governing institutions are robust enough to enforce the criminal laws of the country, even in the face of tremendous political pressure from the country’s longest-serving leader.

An op-ed by Noah Feldman: If you’re looking for the most important sentence in Michael Cohen’s testimony Wednesday to the House Oversight and Reform Committee, here it is: “Mr. Trump did not directly tell me to lie to Congress. That’s not how he operates.”

An op-ed by Noah Feldman: A federal district court in Houston has held that because women are now permitted to serve in combat roles in the U.S. military, all women must be obligated to register for the draft, just as men do. This might sound like a straightforward win for feminism, especially from the perspective of the old-fashioned legal-equality feminism championed by Ruth Bader Ginsburg, both as an advocate and as a U.S. Supreme Court justice. Yet the court’s decision raises the more complicated question of whether women should simply be offered access to traditionally male roles in the military, like combat positions, or whether they should be forced to assume those jobs.

An op-ed by Noah Feldman: One word holds the key to the major Trump-related court cases that you’ll be hearing a lot about in the next few months: deference. In the lawsuits against President Donald Trump’s border wall, and in the U.S. Supreme Court case over whether the census will include a question about citizenship, a central issue will be whether the courts should defer to the assertions that the Trump administration says provide a basis for the decisions they’ve taken.