Noah Feldman

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.

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.