Noah Feldman

An op-ed by Noah Feldman. Can the president fire the director of the Consumer Financial Protection Bureau? That question, considered Wednesday by the full U.S. Court of Appeals for the D.C. Circuit, would be of fundamental constitutional importance under any circumstances. But these aren’t just any circumstances. The case, PHH Corp. v. CFPB, involves the watchdog agency created in response to the 2008 financial crisis. As established by the Dodd-Frank Act, the CFPB has an unusual independent leadership structure, with the president severely restricted in his ability to fire the director. One of the questions raised by mortgage lender PHH in its case challenging an insurance kickback fine is whether the CFPB setup violates the constitutional separation of powers.

An op-ed by Noah Feldman. In a remarkable 10-to-3 decision, a federal appeals court on Thursday affirmed the freeze on the second iteration of President Donald Trump’s executive order on immigration from six majority Muslim countries. The court said that national security “is not the true reason” for the order, despite Trump’s insistence to the contrary. It’s extraordinary for a federal court to tell the president directly that he’s lying; I certainly can’t think of any other examples in my lifetime.

An op-ed by Noah Feldman. Turkish President Recep Tayyip Erdogan has dropped the final fig leaf of democracy, announcing this week that the state of emergency will continue until Turkey achieves “welfare and peace.” The state of emergency, introduced with some justification after the failed coup in July 2016, allows Erdogan to rule by decree, sidelining both the legislature and the constitutional court. By extending it indefinitely, Erdogan is making explicit what had been implicit for months: He’s now officially a dictator. States of emergency are funny things. Many countries keep them on the books, because they are useful in genuine emergencies, and because their presence might, in theory, urge rulers back to democracy when the emergency passes.

An op-ed by Noah Feldman. The news that former National Security Adviser Michael Flynn invoked the Fifth Amendment in response to a Senate subpoena has raised a heated debate about the constitutional right not to incriminate yourself. Is it all right to infer guilt from silence, as Flynn himself and plenty of Donald Trump staffers have suggested in the past? Or does that inference undermine an American right by turning it into a damning admission? It's a complicated question. In a court of law, silence isn’t supposed to count as evidence. In the court of public opinion, however, it’s not so simple.

An op-ed by Noah Feldman. What’s been missing so far in the scandals surrounding the Trump White House is a concrete act taken at the behest of foreign powers. Now there’s strong evidence of one: Michael Flynn reportedly stopped an attack on the Islamic State capital of Raqqa by Syrian Kurds, a military action strongly opposed by Turkey, after receiving more than $500,000 in payments from a Turkish source. The Kurds' offensive had been greenlighted by Barack Obama’s administration, and is now back on track, reapproved by President Donald Trump sometime after Flynn was fired. If this story proves accurate then it’s a game changer for special counsel Robert Mueller’s investigation.

Reports that President Donald Trump asked James Comey, the former FBI director, to end the bureau's investigation into former National Security Adviser Michael Flynn has left lawmakers on both sides of the aisle shell-shocked — and openly discussing the possibility of impeachment proceedings...Noah Feldman, a professor at Harvard Law School specializing in constitutional studies, predicted that Republicans would first "gauge public reaction" to the Comey reports before launching impeachment proceedings. "But we are gradually moving in that direction," Feldman said.

An op-ed by Noah Feldman. During Turkish president Recep Tayyip Erdogan’s visit to Washington, his “bodyguards” viciously beat and kicked Kurdish protesters outside the Turkish Embassy. It happened on a busy news day, to say the least, around the time of the revelation that President Donald Trump had asked the FBI director to stop investigating a former national security adviser's ties to Russia. But this shameful episode shouldn’t be allowed to escape analysis and serious follow-up. Federal law enforcement must investigate and if possible criminally charge the bodyguards -- who should not be allowed to hide behind diplomatic immunity.

An op-ed by Noah Feldman. The American obsession with President Donald Trump and the investigation into untoward Russian influence is distracting us from China’s bid to displace the U.S. when it comes to global leadership. The latest major step is the “Belt and Road” initiative, which officially kicked off this week. Aimed at building infrastructure to connect China to a range of Asian countries, it’s sometime described as a Marshall Plan. But that analogy doesn’t go far enough. Infrastructure is how you dominate. Thus, Belt and Road is more like the 19th-century creation of railroads across continents -- or an effort to build an Eisenhower Interstate System for an entire region of the planet.

An op-ed by Noah Feldman. Former FBI Director Robert Mueller’s appointment by the Department of Justice as special counsel on Wednesday puts him in charge of investigating ties between Russia and the Donald Trump campaign. But if history is any guide, that won’t be the most important part of his inquiry. The letter appointing Mueller also authorizes him to examine and prosecute “any matters that arose or may arise directly from the investigation.” The key words are “any” and “arise” -- remember them. Together they confer exceedingly broad authority, more than enough to let Mueller follow his investigation wherever it leads. Don’t forget Ken Starr’s investigation of President Bill Clinton, which began with the dud lead of the Whitewater scandal and ended with Monica Lewinsky and impeachment.

An op-ed by Noah Feldman. If President Donald Trump asked FBI Director James Comey to stop investigating National Security Adviser Mike Flynn and his ties to Russia, that’s obstruction of justice. But let’s be clear: It’s the impeachable offense of obstruction. It’s probably not the criminal version of that act. With the evidence now available, it’s extremely unlikely that an ordinary prosecutor could convict Trump. This is an outstanding example of a crucial distinction that Americans badly need to keep in mind. High crimes and misdemeanors, to use the Constitution’s phrase, aren’t the same as ordinary crimes. What makes them “high” is their political character. High crimes and misdemeanors are corruption, abuse of power, and undermining the rule of law and democracy.

An op-ed by Noah Feldman. Oh for the days when Donald Trump wasn’t taking the presidential daily brief -- and didn’t know highly classified information that he could give to the Russians. But a bit bizarrely, Trump’s reported disclosure of Islamic State plans to two Russian officials during an Oval Office visit last week wasn’t illegal. If anyone else in the government, except possibly the vice president, had revealed such classified information that person would be going to prison. The president, however, has inherent constitutional authority to declassify information at will. And that means the federal laws that criminalize the disclosure of classified secrets don’t apply to him.

An op-ed by Noah Feldman. Outside the headlines, something remarkable is going on in Syria. The Kurds, making a long-term play for an autonomous region, seem to have decided that their best bet is to buy it from Syrian President Bashar al-Assad. And the U.S. is signaling that it may be on-board -- a startling reflection of its pro-Russian, anti-Turkish policy. The evidence for this reading of events starts with the upcoming fight for Raqqa, the headquarters of Islamic State. The so-called Syrian Democratic Forces, an umbrella group of fighters dominated by the Syrian Kurdish force known as the YPG, has reportedly gotten the green light to go ahead not only from the U.S. but also from Assad and Russia.

An op-ed by Noah Feldman. Calling Donald Trump’s firing of FBI Director James Comey a constitutional crisis is an exercise in crying wolf. At first it was just a few Democratic senators and representatives reacting in the moment, which called for disagreement but not detailed rebuttal. Now, after reflection, some serious constitutional experts are still using the phrase “constitutional crisis” to describe Tuesday’s events. That’s not just analytically mistaken but also potentially dangerous, especially in the Trump era. We need to save the concept of constitutional crisis for situations where there’s a fundamental breakdown in the structure of government.

An op-ed by Noah Feldman. Pity the poor residents of Belle Plaine, Minnesota. They’re about to get a veterans memorial with Satanic symbols in their public park -- and it’s their own fault. They allowed a Christian memorial earlier this year, opening the park to all memorials in order to avoid violating the constitutional prohibition against establishment of religion. Now they have to allow the Satanic memorial as a matter of free speech. Whipsawed between two different clauses of the First Amendment, they probably don’t know what hit them. To understand what’s happening in Belle Plaine -- and why it makes legal sense, if no other kind -- you need to start with the complex, judge-made rules about what happens when religion and free speech interact.

An op-ed by Noah Feldman. It’s not a constitutional crisis. Technically, President Donald Trump was within his constitutional rights Tuesday when he fired FBI Director James Comey. The Federal Bureau of Investigation is part of the executive branch, not an independent agency. But the firing did violate a powerful unwritten norm: that the director serves a 10-year, nonrenewable term and is fired only for good cause. Only one director has ever been removed from office involuntarily: President Bill Clinton fired Director William Sessions in 1993 after an internal report found that he had committed significant ethics violations. There is therefore reason to be deeply concerned about Comey’s firing, which has the effect of politicizing law enforcement -- a risky precedent in a rule-of-law democracy.

An op-ed by Noah Feldman. Plenty of Donald Trump’s decisions have been outside the conservative mainstream. But when it comes to judicial nominees, the Republican president seems to be calling them right out of the Federalist Society playbook. First came his U.S. Supreme Court nominee, Neil Gorsuch, whose selection was predictable based on his elite legal conservative credentials. Now the individuals in his first wave of appellate nominees seem to be cut from the same cloth.

An op-ed by Noah Feldman. When it comes to Middle East policy, usually all roads don’t lead to Rome. But President Donald Trump has good reason to visit the pope on the same circuit as his peace mission to Israel and Saudi Arabia. Trump’s plan, which has a small but not trivial chance of success, depends on creating a grand anti-Iran alliance running through Jerusalem and Riyadh. To put it bluntly, it doesn’t involve too many countries or people that the rest of the world likes. If he can get Pope Francis to bless the idea, even obliquely, that would add a moral dimension to the brutal business of dealmaking that is to come.

An op-ed by Noah Feldman. President Donald Trump’s executive order on religious liberty is a significant win for liberals -- not for what it says, but for what it doesn’t say. For months, evangelical conservatives have anticipated and liberals have feared an order that would have invited anti-gay discrimination under the rubric of religious freedom. A document purporting to be a draft order to that effect began circulating shortly after Trump’s inauguration. Yet the order issued Thursday is silent on gay marriage or gay rights. It includes just three brief substantive sections, none of which is of great practical or symbolic significance. The underlying message of the executive order is that the Trump administration is tired of issuing symbolic orders and then having them frozen in court. This order is constitutionally kosher -- in part because it does so little.

An op-ed by Noah Feldman. With Venezuela on the brink of a constitutional crisis, President Nicolas Maduro has called for the election of a constituent assembly to draft a new constitution. It’s a terrible idea -- potentially more of a power grab than a genuine attempt to resolve the crisis through negotiation. It’s also a reminder that creating a new constitution shouldn’t be an excuse to stop the operation of an existing elected government. An orderly constitutional transition requires an orderly process. The crisis is largely of Maduro’s making. In late March, the Venezuelan Supreme Court, dominated by Maduro supporters, claimed to assume all the powers of the democratically elected National Assembly.

An op-ed by Noah Feldman. As U.S. President Donald Trump prepares to meet Wednesday with Palestinian Authority President Mahmoud Abbas, it appears the two-state solution isn’t dead after all. Hamas, the militant group that rules the Gaza Strip, in a modestly surprising move has said it would accept a Palestinian state in pre-1967 borders. The motives for the announcement, which also came with the group’s distancing from the Muslim Brotherhood, are complex. But the key fact is that the statement is an early win for the Trump administration’s nascent attempt a Middle East peace solution. It’s a sign that Hamas, at least, is taking that potential initiative seriously.

An op-ed by Noah Feldman. President Donald Trump has arrived at his new slogan: “Blame Canada.” But not because anything is actually Canada’s fault. Rather, process of elimination has led Trump to favor symbolic sanctions against America’s closest and best ally. As it turns out, trade is one of the only areas where a president can take significant action unilaterally without violating the Constitution. Trump’s most dramatic executive orders have been struck down by the courts. Congress won’t pass any important legislation. That leaves trade by default -- and since it would be too risky to take on trade with China, the best Trump can do is to make headlines by blaming Canada for trade unfairness on such unexciting products as softwood lumber and dairy.