Noah Feldman

An op-ed by Noah Feldman. When the smoke from the midterm election clears, one thing is certain: You will be seeing the name of Robert Mueller a lot more than you have for the past two months, no matter whether the Democrats manage to take the U.S. House or not.

An op-ed by Noah Feldman. You may find it a little eerie to discover that you are being rated by the companies you buy things from, and that the quality of customer service you receive can be determined by your “customer lifetime value” score. Maybe it reminds you too much of China’s new social credit system, which is intended to allow the government to keep tabs on citizens’ anti-social behaviors — and punish them by cutting off privileges like intercity train travel if they’re noncompliant. Better get used to it. We are no longer rated by only the credit reporting agencies, which are subject to extensive federal regulation...My Harvard Law colleague Jonathan Zittrain and my onetime teacher Jack Balkin have been arguing for some time now that tech companies should be treated by the law as fiduciaries of our data, essentially holding users’ information in trust on their behalf.

An op-ed by Noah Feldman. The global walkout by Google workers, a response to Alphabet Inc.’s reported protection of executives accused of sexual misconduct, may be a harbinger of something new in employer-employee relations: empowered workers’ moral-political protest directed as much against the general culture as against management. Although the walkout is connected in a broad sense to workplace conditions, this isn’t the trade union strike of old. Google’s workers are mainly professionals: engineers, not laborers. They have well-paid, high-prestige jobs at a company known for recruiting top employees. Not all of the thousands of workers who walked out were personal victims of workplace sexual harassment.

An op-ed by Noah Feldman. Whatever he’s being told by his lawyers, President Donald Trump can’t use an executive order to deny birthright citizenship to U.S.-born children of undocumented parents. The Constitution puts Congress, not the president, in charge of citizenship.

An op-ed by Noah Feldman. Justice Ruth Bader Ginsburg, rebranded late in her career as the Notorious RBG, has recently been getting all the love due to a pioneering woman Supreme Court justice. But her colleague Justice Sandra Day O’Connor, who announced Tuesday that she is stepping out of public life at age 88 because of creeping dementia, is just as important in the history of the Constitution. Indeed, measured in terms of impact on the court, O’Connor had a much greater historical effect than Ginsburg, much of whose importance so far comes from her pioneering women’s rights work as a litigator.

An op-ed by Noah Feldman. A South Carolina foster-care agency has asked the Trump administration to rule that it has a constitutional right to discriminate against non-Protestant and gay parents under the religious-freedom guarantee of the First Amendment. Some evangelical Christians will be upset if the agency doesn’t get an exemption from anti-discrimination rules so that it can receive federal money. But other religious groups, not to mention the American Civil Liberties Union and gay-rights organizations, will probably sue if it does. The legal issues are complicated, and it isn’t clear who would win.

An op-ed by Noah Feldman. With the confirmation of Justice Brett Kavanaugh, a majority of U.S. Supreme Court justices have previously served as law clerks to other justices before them — an unprecedented situation on the court. The remarkable and perhaps unjustified rise of this elite-within-an-elite is worthy of discussion in its own right. But it also gives some context to last week’s revelation that the Heritage Foundation had planned a secretive boot camp for conservative law clerks about to start their jobs in the federal courts. It’s not just that the conservative think tank wanted to provide some counterweight to the comparatively liberal law school curriculum. Heritage was aiming to get a head start in its efforts to influence future judges.

An op-ed by Noah Feldman: I’m not proud of it. But I am one of those people who are more viscerally upset by the allegations that journalist Jamal Khashoggi died a brutal death at the hands of Saudi secret police than by the deaths of thousands of people under Saudi bombardment in Yemen. The reason isn’t that Khashoggi was a journalist or that he was a legal U.S. resident or that he may have been dismembered, possibly while still alive. It’s much simpler and much less principled than that: It’s because I knew him.

An op-ed by Noah Feldman. Not for the first time, the First Amendment has saved Donald Trump. A federal district court in California was correct Monday to dismiss Stormy Daniels’s libel suit against the president for using the phrase “total con job” to describe her allegation of being threatened by an unknown man in a parking lot. Not only that, the judge was probably right to make Daniels (or her supporters on CrowdJustice) pay Trump’s legal fees. The president’s style of discourse, with its constant insistence that everyone else is a liar, is path-breaking in its coarseness. But it’s now legitimately part of public rhetoric. Denying Daniels’s claim (with ridicule thrown in) doesn’t come close to the kind of libelous speech that is exempt from First Amendment protection.

An op-ed by Noah Feldman. The consensus on civility emerging from Democratic Party leadership in the wake of Justice Brett Kavanaugh’s confirmation seems to be, if you can’t beat ’em join ’em. Hillary Clinton told CNN that it was impossible to be civil to Republicans until the Democrats win back Congress. And on Wednesday a tape surfaced of Eric Holder, the former attorney general who’s considering a 2020 presidential run, saying that instead of Michelle Obama’s “When they go low, we go high,” the Democratic plan should be “When they go low, we kick them.” Is going low the right choice?

An op-ed by Noah Feldman. Stuck. That’s where almost everyone seems to be when it comes to the nomination of Judge Brett Kavanaugh to the U.S. Supreme Court. We’re in a week of pseudo-calm while the Federal Bureau of Investigation looks into allegations of sexual misconduct against President Donald Trump’s nominee. But let’s be honest with ourselves. It’s almost impossible to imagine anything emerging from the investigation that would make Kavanaugh’s opponents or supporters change their minds.

An op-ed by Noah Feldman. The temperament question has come to the heated debate about the confirmation of Judge Brett Kavanaugh. The basic idea is that by raising his voice during the final part of his confirmation hearing, discourteously interrupting and confronting senators, and depicting the charges against him as politically motivated, the nominee showed himself to have a character not suitable for a U.S. Supreme Court justice. More than 1,000 of my law professor colleagues have signed a letter, addressed to the U.S. Senate and published by the New York Times, opposing Kavanaugh’s confirmation on these grounds...I am nevertheless skeptical of the temperament argument, at least when taken in isolation. It’s not that Kavanaugh’s manner and tactics at the hearing last week seemed normal or acceptable...Rather, what I find doubtful about the temperament argument is that several of the greatest Supreme Court justices had disastrously bad, highly unjudicial temperaments.

An op-ed by Noah Feldman. As of the lunch break in Thursday’s Senate hearing on Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court, it seems as though Republicans’ worst fears are being realized: Christine Blasey Ford is highly credible in describing her alleged sexual assault by the teenage Kavanaugh. Nothing in the ineffectual questioning by sex crimes prosecutor Rachel Mitchell did anything to shake her story...you might think it’s obvious that President Donald Trump should withdraw Kavanaugh’s nomination and substitute another nominee, such as Judge Amy Coney Barrett, who was on his short list. But because this is Trump, the usual political rules don’t apply.

An op-ed by Noah Feldman. The Senate Judiciary Committee hearing Thursday, when Supreme Court nominee Brett Kavanaugh and his accuser Christine Blasey Ford will both face questions about her accusations of assault, is going to be hard to watch for different reasons for different people. The cognitive dissonance stems from the fact that the hearing is functioning on two levels that coexist uncomfortably. On one level, the hearing will be a televised capsule of the #MeToo moment, considering allegations of sexual assault against a significant public figure. On another level, the hearing will be pure political theater, one act of many in these hyperpartisan times.

An op-ed by Noah Feldman. The revelation on Friday that the deputy attorney general, Rod Rosenstein, considered wearing a wire to record President Donald Trump and discussed trying to get the cabinet to invoke the 25th Amendment to remove him is more than merely astonishing. It has consequences.

An op-ed by Noah Feldman. On the surface, it sounds a bit like a coup d’état. An anonymous senior official in Donald Trump’s administration has written an op-ed article for the New York Times saying the official is part of the “resistance” to the president from within. But don’t get taken in by the hype. What the writer describes is a lot like what happens in many, probably most administrations: Officials who share some but not all the president’s goals use bureaucratic tools to avoid or delay implementing presidential initiatives they don’t like. This isn’t a coup. It isn’t unconstitutional. It isn’t even resistance, not really.

An op-ed by Noah Feldman. There is no rule or policy requiring special counsel Robert Mueller to complete his investigation 60 days before the midterm election, despite what the president’s lawyer Rudy Giuliani says. For starters, Donald Trump isn’t on the ballot. Even if he were, there’s no reason that an investigation of him or his 2016 campaign would have to be completed in advance of an election. What is true, however, is that there is a strong unwritten norm for the Department of Justice to avoid taking public prosecutorial action around the time of an election — a period thought to be about 60 or 90 days before it. Mueller and his team are well aware of that norm.

An op-ed by Noah Feldman. The confirmation hearings for Judge Brett Kavanaugh, which began Tuesday morning, mark the culmination of a process that goes back at least 35 years, to the founding of the Federalist Society. Its purpose was to create a conservative majority on the U.S. Supreme Court. Spurred by their disagreement with the abortion-rights decision Roe v. Wade, legal conservatives made judicial selection into the touchstone of their agenda, and gradually convinced the rest of the conservative movement to do the same. When Kavanaugh is confirmed — and I do mean when — their success will be complete, and the court will likely have a stable conservative majority until 70-year-old Clarence Thomas retires.

An op-ed by Noah Feldman. Did the National Enquirer have a right to buy stories about Donald Trump in order not to publish them? And if so, what was the crime in buying Karen McDougal’s report of an affair with now-President Trump — a crime to which Michael Cohen pleaded guilty? These questions have become all the more pressing as it has emerged that the Enquirer has been buying and hiding Trump’s stories for decades. In fact Cohen, Trump’s former lawyer, had wanted to buy the whole archive for Trump to make sure that the stories stayed dead.

An op-ed by Noah Feldman. In the span of one week, we learned that the Office of the U.S. Attorney for the Southern District of New York had both secured a guilty plea from Trump Organization lawyer Michael Cohen and offered an immunity deal to the company’s chief financial officer, Allen Weisselberg. President Donald Trump should be worried. Once the Southern District gets its jaws onto a string of crimes, it doesn’t let go. Weisselberg, as part of his deal, will likely be required to provide information on all criminal activity he knows about. That spells potential disaster for Trump personally, and major problems for his presidency. That’s apart from any potential state-level criminal investigation by the New York district attorney’s office.

An op-ed by Noah Feldman. Lawyers are not supposed to disclose conversations with their clients, at least not without a fight over attorney-client confidentiality. Senior presidential advisers aren’t supposed to discuss consultations with their boss, at least not without first asserting executive privilege. Yet we now know, thanks to the New York Times, that White House Counsel Don McGahn has been cooperating with Robert Mueller’s investigation of Donald Trump. Why is the world of normal procedures being turned upside down? There’s a technical answer; and then there’s the deeper logic (or illogic) behind it: the bizarre nature of decision-making in the Trump presidency.