Noah Feldman

Despite a global brand as a reckless Twitter addict and loudmouth, Donald Trump has a history of behaving himself in formal legal settings. Before he was president, the real estate heir was deposed dozens of times, mostly in various lawsuits related to his businesses, which have been accused of discriminating against black people, screwing over renters, and stiffing contractors. When pressed to tell the truth under penalty of perjury in formal depositions, Trump has tended to provide something resembling it...For some insight into how presidents have been compelled to testify in the past, what a Supreme Court ruling on a Trump subpoena might look like, and how the thorny question of his testimony is as much a political question as a legal one, I called up Noah Feldman, a legal historian at Harvard Law School.

An op-ed by Noah Feldman. In the past, a president under investigation couldn’t afford to plead the Fifth Amendment. While it’s often a good strategy in a court of law -- especially since it can’t be used to infer guilt -- the court of public opinion is a different matter. What president would want to appear to be hiding guilt behind a legal technicality? All bets are off in the Donald Trump era. The president’s lawyers have reportedly advised him not to cooperate with any request from Special Counsel Robert Mueller’s team to question him. So far, Mueller has not forced the issue with a subpoena, but that could change in the coming days or weeks.

An op-ed by Noah Feldman. The Democrats are right to press for the release of their own House Intelligence Committee memo to counteract the Republican memo about the Russia investigation that was released to great fanfare last week. But the truth is, it doesn’t much matter what the Democrats’ memo says. President Donald Trump has already won this round, even though the Republican memo wasn’t earth-shaking. Trump and the House Republicans have only one goal, which is to refocus the whole conversation around special counsel Robert Mueller’s investigation on the issue of partisanship, not the Trump campaign’s conduct.

An op-ed by Noah Feldman. It’s highly unusual for the FBI director to confront the president publicly -- because technically, the director works for the president. That’s why Christopher Wray generated immediate attention and controversy Wednesday for the bureau’s open statement urging Donald Trump not to release the classified Republican House committee memo that reportedly criticizes efforts by the Federal Bureau of Investigation to obtain a surveillance warrant on a former Trump campaign adviser.

An op-ed by Noah Feldman. By now we’re accustomed to hearing President Donald Trump complain that the Department of Justice and the Federal Bureau of Investigation don’t do what he tells them. The basis for his frustration is a serious mismatch between the U.S. Constitution as it’s written and the unwritten constitutional norms that Trump is blamed for breaking. The written Constitution puts the Justice Department and the FBI squarely under the president’s control. The unwritten, lower case “c” constitution says that the president may not politicize criminal investigations and prosecutions.

An op-ed by Noah Feldman. The web is abuzz with the revelation that President Donald Trump tried to fire special counsel Robert Mueller in June but was blocked by White House counsel Donald McGahn. What information can be gleaned from the leak and its circumstances? Let’s pull on the deerstalker and try to draw some inferences -- both positive and negative.

An op-ed by Noah Feldman. Whether prosecutors and FBI agents are allowed to have political views is a question now of interest on both sides of the political spectrum. Liberals are outraged that President Donald Trump asked Andrew McCabe, then acting director of the Federal Bureau of Investigation, who he had voted for when they met last May in the Oval Office. Conservatives are angry about anti-Trump text messages sent by an FBI agent who was working for the special counsel’s investigation.

An op-ed by Noah Feldman. The U.S. needs to start imagining NATO without Turkey. The latest reason is Turkey’s assault against the Syrian Kurds. The same Kurds who, with U.S. training and support, have borne the brunt of the fighting against Islamic State. Turkey is coordinating its attacks with Iran and Russia -- the very countries the North Atlantic Treaty Organization exists to oppose. U.S. interests appear nowhere in the equation. That’s a long-term strategic problem, which goes beyond the moral outrage every American should feel as our Kurdish allies are murdered from the air by F-16s we sold to Turkey.

An op-ed by Noah Feldman. Steve Bannon’s claim of executive privilege in his refusal to answer questions this week from the House Intelligence Committee is raising a novel and somewhat difficult problem: Should there be executive privilege for communications between the president and his close advisers during the transition period between the election and the inauguration? On the one hand, the president’s need for candid advice starts before he takes office. On the other hand, there’s something strange about applying a constitutionally based executive privilege to someone who is not, after all, the executive.

An op-ed by Noah Feldman. Can an international deal ever really be final? President Donald Trump seems to think the answer is no, given his penchant for withdrawing from agreements made under President Barack Obama -- the Paris climate change accords, the Trans-Pacific Partnership on trade and (maybe) the Iranian nuclear deal. But what about international agreements that actually declare themselves to be irreversible? That’s the case with the 2015 Japan-South Korea deal that was aimed at ending once and for all the conflict between the countries over the sexual enslavement of so-called Korean comfort women during World War II.

An op-ed by Noah Feldman. We have our first confirmed federal Twitter judge, Judge Don Willett of the U.S. Court of Appeals for the 5th Circuit. More than 500 legal scholars both young and old, as well as sophisticated practitioners, use Twitter to comment, analyze and argue. From a practical perspective, legal Twitter is thriving. But is legal Twitter a good thing? The question has been bouncing around on (surprise) Twitter -- but without (surprise) any very sustained engagement.

An op-ed by Noah Feldman. The new federal tax on the investment income of universities with endowments of more than $500,000 per student is terrible policy, raising minimal revenue while imposing costs on financial aid. But it’s also something much worse: To the extent it targets institutions whose faculties skew liberal, the law violates the First Amendment. It’s squarely unconstitutional for the government to impose taxes on the basis of the views expressed by the entities being taxed. Although it might be a challenge to prove it in court, it is common sense that the law was designed to express conservative resentment against the academy.

An op-ed by Noah Feldman. A federal judge in California on Tuesday blocked President Donald Trump from rescinding the Deferred Action for Childhood Arrivals program, which he had planned to phase out in March. The impulse to protect the so-called Dreamers is admirable. But legally speaking, the opinion can’t be correct. If President Barack Obama had the legal authority to use his discretion to create DACA in the first place -- itself a close legal question -- Trump must have the legal authority to reverse DACA on the ground that he considers it to have exceeded Obama’s powers.

An op-ed by Noah Feldman. Prohibition-lite: That’s President Donald Trump marijuana policy set out last week in Attorney General Jeff Sessions’s guidance to U.S. attorneys, encouraging them to enforce federal pot laws even where states have legalized the drug. This is a reversal of President Barack Obama’s approach, which tried to impose some logic on law enforcement policy by discouraging federal charges. The effect of Sessions’s move is to make the law into a roulette game, with luck determining who gets prosecuted and who doesn’t. And that in turn undermines the rule of law itself, which thrives on regularity, predictability, and treating like situations and people alike.

While drafting the Constitution, James Madison strove to ensure the protection of minority rights but also proposed that a slave be counted as three-fifths of a person. The contradiction, etched into the Constitution, would come to define Madison and a nation irreconcilably founded both on slavery and the ideals of liberty and justice. This paradox lies at the heart of “The Three Lives of James Madison,” by Harvard law professor Noah Feldman, who charts Madison’s life as the “father of the Constitution,” a political partisan, and ultimately a statesman in his roles as secretary of state and president.

An op-ed by Noah Feldman. If President Donald Trump would actually sue Steve Bannon for violating a nondisclosure agreement made with his campaign, it would be great for the freedom of speech. That may sound strange, because Trump’s threatened lawsuit is precisely aimed to silence Bannon and other potential leakers who worked on the campaign. Bannon has been extensively quoted in excerpts published this week from the journalist Michael Wolff’s new book, “Fire and Fury: Inside the Trump White House.” But Trump’s suit would almost certainly fail, and that’s why it would serve free speech.

An op-ed by Noah Feldman. Secretary of State Rex Tillerson may think his year-end summary of U.S. foreign policy is a tale of success. But the remarkable op-ed article in the New York Times in fact illustrates the opposite: It shows in chapter and verse how the U.S. lacks leverage over many of the critical challenges it faces globally. From North Korea to China to Russia and the Middle East, American objectives are clear -- and the Donald Trump administration has no credible road map to achieve them.

An op-ed by Noah Feldman. The House of Representatives passed the National Rifle Association’s favorite gun-rights expansion bill earlier this month, and gun-control advocates locked and loaded their favorite legal arguments against it. It’s a terrible measure, to be sure, forcing states to allow people licensed to carry concealed weapons in one state to carry them anywhere else. But that doesn’t mean it’s unconstitutional, and liberals should be careful what they wish for.

...In James Madison’s public career, spanning four exceptionally productive decades, this private passion of his—what he called “the sentiments of my heart”—is the most visible evidence of the force that fueled him. As Noah Feldman, Frankfurter professor of law, writes in his excellent, authoritative, and lucid reassessment of Madison, “Dolley frequently expressed opinions and emotions that Madison hid from view.” He was known as a dispassionate man of reason, systematic and mild-mannered, who preferred the company of ideas and lacked the need for attention many politicians have. Yet his profound sense of purpose made him a statesman of enormous impact. He imagined the United States as a unified nation rather than a confederation of republics with diverging interests in agriculture and trade, and helped shape that country.

An op-ed by Noah Feldman. Charlottesville, Virginia, has rejected permit applications from five organizations, far-right and otherwise, to hold protests in the city’s parks on the one-year anniversary of last summer’s protests there. It’s hard not to feel sympathy for the city, which struggled to manage the rallies and was unable to prevent the terrorist car-ramming that killed one woman and injured 19 other people. There’s just one problem: Denying the permits is unconstitutional.