Noah Feldman

An op-ed by Noah Feldman. Here’s a prediction that is sure to annoy everyone: Now that he’s national security adviser, John Bolton will become more moderate. Some extremists moderate when they take public office because of bureaucratic pushback from the middle. That’s not what I expect for Bolton. He’s made a career of fighting the bureaucracy from the right. I predict Bolton will moderate for the opposite reason: In this stage of President Donald Trump’s administration, there’s almost no one left to push back at Bolton from the center. Without such opposition, Bolton is going to realize that he’s the grown-up in the room, and the closest thing to a realist anywhere in Trump’s foreign policy circles.

An op-ed by Noah Feldman. A professor violates the terms of service to go onto a platform or a website. Once there, he unleashes bots that crawl all over and scrape the data viewable there. You might think this is a nightmare privacy scenario akin to the one in which the researcher Aleksandr Kogan scraped Facebook Inc. data that he later sold to Cambridge Analytica. And you might think the professor’s actions should be prosecuted. But a federal district court in Washington has just held that it’s a professor’s First Amendment right to break a site’s rules to collect data available there -- and that the Computer Fraud and Abuse Act can’t criminalize the conduct.

An op-ed by Noah Feldman. Poland badly needs a way to get rid of its new “memory law” that makes it a crime for anyone anywhere in the world to ascribe Holocaust atrocities to the Polish state or nation. A solution may be emerging: Poland’s constitutional tribunal could strike down the law as a violation of freedom of expression under the country’s constitution and the European Convention on Human Rights. That result would kill two birds with one stone. It would allow the right-wing PiS (“Law and Justice”) government to save face while escaping the global criticism it’s gotten as a result of the law.

An op-ed by Noah Feldman. The death of Judge Stephen Reinhardt last week at age 87 marks the end of an era for the U.S. Court of Appeals for the 9th Circuit, which also saw the abrupt retirement of Judge Alex Kozinski in December. For more than three decades, the largest appeals court in the nation had been the site of an epic legal struggle between the progressive liberal lion and the conservative-libertarian stalwart. The two judges, each brilliant in his own way and each at the extreme end of the ideological spectrum, fought with all the judicial tools available -- and even invented some new ones along the way. Their rivalry defined the 9th Circuit, at least from the perspective of the appellate lawyers who actually care about what appeals courts do. It won’t be the same again.

An op-ed by Noah Feldman. If John Dowd discussed the possibility of a presidential pardon with lawyers for Michael Flynn and Paul Manafort while Dowd was serving as Donald Trump’s personal lawyer, it’s a big deal -- definitely for Dowd, and conceivably for Trump. The president has the inherent power to pardon anyone he wants. But doing so with a corrupt reason -- such as saving the president’s skin -- would be obstruction of justice.

An op-ed by Noah Feldman. It’s understandable that Justice John Paul Stevens would call for repeal of the Second Amendment, as he did Tuesday in an op-ed article in the New York Times, in the aftermath of the U.S. Supreme Court’s misinterpretation of it to protect some gun sales. I have great respect for Justice Stevens, and what’s more I agree with him that the Heller case was wrongly decided by the court in 2008. But it would actually be a terrible idea to attempt a repeal of the Second Amendment just because the Supreme Court got it wrong. Experience shows that the Constitution is weakened if we respond to bad Supreme Court precedent by trying to amend it right away.

An op-ed by Noah Feldman. Before Attorney General Jeff Sessions fired Deputy FBI Director Andrew McCabe for alleged dishonesty, McCabe led an investigation of Sessions for, well, dishonesty. This may or may not be proof of wrongdoing in McCabe’s firing. Sessions’s lawyer says the investigation of the attorney general, which was continued by special counsel Robert Mueller, is over; it’s at least possible that Sessions didn’t know that McCabe was the one investigating him.

An op-ed by Noah Feldman. It was easy to miss it, what with Secretary of State Rex Tillerson being fired and President Donald Trump fueling rumors of more personnel shake-ups. But last week Jared Kushner, presidential adviser and son-in-law, presided over a highly unusual White House conference on the humanitarian crisis in Gaza. Who participated was noteworthy: Israel was there, alongside Arab states with which it does not have diplomatic relations, such as Bahrain, Qatar and Saudi Arabia.

An op-ed by Noah Feldman. Suppose President Donald Trump’s foreign policy is random. I mean really random: Like random luck, designed only in so far as to fluctuate wildly between different, opposing strategic views. In this thought experiment, it’s not a bug but a feature that the U.S. is pulling away from a nuclear nonproliferation agreement with Iran even as it seeks to negotiate one with North Korea. Similarly, it’s an intentional accident that Trump might replace the realist National Security Adviser H.R. McMaster with the conservative idealist John Bolton.

An op-ed by Noah Feldman. To people in the rest of the U.S., California can seem like a foreign country. From Donald Trump’s perspective, the feeling may not be purely cultural. California is pursuing a range of policies designed to thwart the president’s initiatives. Those include blocking offshore drilling that Trump wants to enable; preventing the softening of Obama-era miles-per-gallon standards; and contradicting Trump’s immigration policies with sanctuary laws (a topic I wrote about earlier this week).

An op-ed by Noah Feldman. Donald Trump’s first visit as president to the hostile territory of California highlights his struggle with the state. Most recently that battle has been over the sanctuary laws that the state Legislature has passed and that Trump’s lawyers have challenged in court. Yet it’s worth recalling that California has a long history of acting like a republic unto itself on immigration — and that, not so long ago, the state was more hostile to immigrants than the federal government, not less.

An op-ed by Noah Feldman. The Office of Special Counsel, the federal ethics watchdog, has found that President Donald Trump’s adviser Kellyanne Conway violated the Hatch Act last year by endorsing Republican candidate Roy Moore and opposing Democrat Doug Jones in the Alabama Senate race. Conway did arguably break the rules. But the provision of the law that she broke seems at least borderline unconstitutional as applied to her. The circumstances of the case show why the First Amendment should be interpreted to protect a federal employee who is talking politics in a public forum.

An op-ed by Noah Feldman. President Donald Trump says trade wars are easy to win, but that hasn’t always been true in U.S. history. To the contrary, for the first 40 years of the republic, the founders struggled desperately to establish international trade agreements that Americans would find acceptable. The need for trade leverage was the first factor motivating James Madison to call for a new Constitution. And trade wars had a way of turning into shooting wars. The War of 1812, the first declared war in U.S. history, was the result of a trade fight that the Americans seemed unable to win with economic sanctions alone.

An op-ed by Noah Feldman. The revelation that the New Orleans Police Department quietly used a Silicon Valley company to predict crime raises dilemmas similar to those emerging from artificial intelligence in other spheres, like consumer behavior, medicine and employment. But what's uniquely shocking about the story of New Orleans's partnership with the national security company Palantir is that it has remained largely unreported before now.

An op-ed by Noah Feldman. China’s nearly 30-year experiment with time-limited government is officially coming to an end. The Chinese Communist Party has suggested amending China’s constitution to allow President Xi Jinping to serve more than two five-year terms. Considering that the party rules the country, and Xi rules the party, that means two things: The constitution will be amended. And Xi is going to be president for life, much like Mao Zedong or Deng Xiaoping.

An op-ed by Noah Feldman: Can Twitter Inc. lawfully block racists’ accounts? That’s the question posed in a lawsuit filed last week by Jared Taylor and his New Century Foundation, an organization that, according to the Southern Poverty Law Center, “purports to show the inferiority of blacks to whites.”  The case goes to the very nature of speech on social media platforms. Taylor’s lawyers are arguing that Twitter is a virtual public square in which the First Amendment should apply. If that were so, not only Twitter but all social media would become subject to constitutional norms that usually only prohibit the government from restricting speech. The online world as we know it would be radically transformed. Social media sites would be unable to curb some of the most vile and dangerous postings.

An op-ed by Noah Feldman. The reported struggle over security clearance between White House chief of staff John Kelly and presidential adviser (and son-in-law) Jared Kushner is a fascinating example of palace intrigue. But as engrossing as it may be to speculate about whether Kelly is trying to marginalize Kushner by denying him access to the presidential daily brief, we shouldn’t neglect one basic truth. It’s ultimately up to President Donald Trump to decide who he wants to advise him -- and we should all want those counselors to be able to provide the best advice possible.

Three years ago, as they wore long gowns and exchanged vows surrounded by people who love them, Fatma Marouf and Bryn Esplin imagined a growing family. But like so many couples who dream of having children, they keep hitting roadblocks...So early last year, they turned their attention to the idea of fostering refugee children. They were sure they had found their answer. They didn't get far, though, before they were proved wrong...All those feelings have now fueled a lawsuit against the federal government. The complaint was filed this week in Washington's U.S. District Court by Lambda Legal, which defends the rights of the LGBTQ community...Outside legal experts hinted in emails to CNN that Marouf and Esplin probably won't prevail in this case. "If there were a statute that was being violated that would make it an easy win," said Noah Feldman, a professor at Harvard Law School who specializes in constitutional studies and the relationship between law and religion. "But they are relying on the Constitution. And, in general, the Constitution has not been held to require government grantees not to discriminate when they are private actors."

An op-ed by Noah Feldman. The state of North Carolina is paying $300,000 to a magistrate who quit rather than marry gay couples as ordered by the courts. Something is seriously wrong here. The magistrate was entitled to resign as a matter of conscience. But the religious accommodation that federal law requires of ordinary employers shouldn’t apply to state officials who say that their religion means they can’t obey their oath to the U.S. Constitution.

An op-ed by Noah Feldman. It’s official: Syria has become a war of all against all. The latest proof is the report that U.S. planes killed somewhere between four and 200 Russian “mercenaries” last week. A few days before that news broke, Israel shot down an Iranian drone that came from Syria and then attacked Iranian targets, losing an F-16 in the process. And just a few days before that, Turkey mounted an extensive war against U.S.-backed Syrian Kurds -- probably the same people who called in the airstrikes against the Russians.

An op-ed by Noah Feldman. New York Attorney General Eric Schneiderman effectively blocked a sale of the failing Weinstein Co. on Sunday by suing it for violating state sex discrimination laws. Is he a white knight protecting the interests of Harvey Weinstein’s victims? Or a publicity-seeking politician poised to destroy investors’ value by forcing the company into bankruptcy? The answer depends on a simple principle: Any sale should benefit Weinstein’s victims, not harm them.