Noah Feldman

An op-ed by Noah Feldman. There’s something extremely fishy about President Donald Trump’s tweets on Thursday morning about the source of the money his lawyer Michael Cohen paid to Stormy Daniels as part of a nondisclosure agreement. Trump, echoing what his lawyer Rudy Giuliani said Wednesday night on Fox News, seems to be claiming that a $35,000 retainer he paid to Cohen on a monthly basis should be considered reimbursement. But a retainer isn’t reimbursement. A retainer is a fee for services. And a fee paid to a lawyer isn’t normally reimbursement unless there is some agreement saying it is.

An op-ed by Noah Feldman. Libel law is evolving before our eyes. Stephanie Clifford, aka Stormy Daniels, has sued Donald Trump for libel on the ground that the president tweeted that her allegations that she was threatened over their sexual liaison are “a total con job.” The legal theory of the suit, filed Monday in New York, is in line with Summer Zervos’s libel suit against Trump for repeatedly denying her allegations that he kissed and touched her inappropriately. Both lawsuits are creative attempts to push libel law in a direction that fits the #MeToo moment.

An op-ed by Noah Feldman. One thing became clear during Wednesday’s oral argument at the U.S. Supreme Court about President Donald Trump’s travel ban: Justice Elena Kagan has a strategy to persuade swing Justice Anthony Kennedy to vote against the ban. Her approach will be to depict the case as a watershed moment in the court’s jurisprudence about bias — thus making it extraordinarily difficult for Kennedy to find himself on the wrong side of history.

An op-ed by Noah Feldman. Conservative law professor Kevin Walsh, in an intriguing new article, makes the case for repealing the “natural born” citizenship requirement for the presidency. Next month it will be 150 years since such a proposal for a constitutional amendment was first put before Congress. Today it really makes no sense to discriminate against naturalized citizens when it comes to the presidency, assuming it ever did in the first place. I can think of three further reasons that the timing is right. For one, between election cycles, it isn’t about possible candidates who were born abroad: Arnold Schwarzenegger or Jennifer Granholm or Ted Cruz (who probably isn’t barred anyway). It’s about the principle on its own.

An op-ed by Noah Feldman. James Comey’s extraordinary attacks on Donald Trump as “morally unfit” to be president are more than a ploy to sell books. The unprecedented phenomenon of a fired FBI director taking on a sitting president is also a symptom of the most fundamental challenge facing the U.S. political system today. Put simply: There’s no single, nonpartisan trusted source of authority. In the recent past, nonpartisan law enforcement would have been trusted by broad swaths of the American people. Centrist news media would have been accepted by most members of both parties as authoritative.

An op-ed by Noah Feldman. Make no mistake: The presidency of Donald Trump has hit a major inflection point with the investigation of his personal lawyer Michael Cohen by federal prosecutors in the Southern District of New York. Until now, Trump personally was in jeopardy only if special counsel Robert Mueller’s team in Washington finds evidence that he knew about collusion between his campaign and Russia in the 2016 election...Now, however, the Southern District can investigate potential Trump crimes in any area connected to Cohen, a fixer who is known to have arranged payoffs to an adult film star who says she had an affair with Trump. These prosecutors can go back as far as they want before the election, not to mention during and after it.

An op-ed by Noah Feldman. What if Donald Trump tries to fire Robert Mueller -- and fails? The scenario isn’t far-fetched. Under Department of Justice regulations, the special counsel, Mueller, can only be fired “by the personal action of the Attorney General” for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause.” President Trump, who doesn’t much care for legal technicalities, has ramped up his attacks on the investigation into Russian meddling in the 2016 election and on Mueller himself. We know from the New York Times that he has at least twice tried to shut down the probe. Trump might yet try to fire Mueller directly; his press secretary, Sarah Huckabee Sanders said Tuesday that the president “certainly believes he has the power” to do so.

The idea that Donald Trump might fire Special Counsel Robert Mueller and in so doing spark some kind of constitutional crisis has been gaining traction for months now. Political junkies, especially on the liberal side of the spectrum, have breathlessly discussed the scenario in neighborhood bars and on approximately 1,000 different podcasts...For some context on just how bad things are at this moment compared to October 1973—when an embattled Richard Nixon went on his own firing spree in hopes of scuttling the Watergate probe—I called up my favorite legal scholar, Noah Feldman. The historian and Harvard Law professor is usually pretty measured in assessing Trump's presidency, but he said some things that genuinely frightened me.

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.