Noah Feldman

An op-ed by Noah Feldman. Morally, the only proper reaction to last weekend’s events in Charlottesville, Virginia, is outrage. Legally, the analysis has to be more nuanced. To help prevent further violence while preserving freedom of speech, we need to distinguish three categories, all of which seem to have been in play in Charlottesville: terrorism, peaceful protest and provocative action aimed at producing street violence.

An op-ed by Noah Feldman. The consensus right and left seems to be that President Donald Trump’s apocalyptic threat of “fire and fury” should North Korea continue its provocations has actually brought the possibility of nuclear annihilation closer. But hardheaded analysis suggests that, however unpresidential his rhetoric, Trump’s words have not appreciably increased the risk of war between the U.S. and North Korea. True, the New York Stock Exchange closed slightly down after his remarks, and the Nikkei was down 1.3 percent. But those relatively mild reactions probably reflect a reminder that such a war is, in fact, conceivable -- not a change in its probability.

An op-ed by Noah Feldman. A year ago, affirmative action in higher education seemed safe for a generation, after Justice Anthony Kennedy blessed it in a landmark Supreme Court opinion. Now President Donald Trump’s Department of Justice is signaling that it plans to challenge the constitutionality of the practice in a way the federal government has never done before. And with Justice Neil Gorsuch in place and the possibility that Kennedy might retire in the next few years, the challenge could succeed. The legal reality is that higher ed affirmative action is now vulnerable.

An op-ed by Noah Feldman. The short life of Anthony Scaramucci as White House communications director will be remembered with joy by some, or at least by me. His unbridled self-expression, in the grandest traditions of the First Amendment and the New York street corner, was more like a tornado of fresh air than a mere breath. But the era of the Mooch was also guaranteed to be as brief as the life of a mayfly -- for a serious reason. Important jobs like managing the president’s relationship with the press come with norms and customs: unwritten rules that shape social relations in every culture, and that are based on cumulative wisdom and many decades (sometimes centuries) of trial and error.

An op-ed by Noah Feldman. Having failed to repeal the Affordable Care Act, President Donald Trump is now stating openly that his plan is to let Obamacare fail instead. Although the end result may be the same, there’s a vast difference between these two options, constitutionally speaking. Repeal is a normal legislative initiative, completely within the power of Congress and the president. But intentionally killing a validly enacted law violates the Constitution’s order that the president “shall take care that the laws be faithfully executed.”

Robert Mueller's appointment as special counsel to lead the Russia probe in May caught President Donald Trump by surprise. He was given no heads up and, according to The New York Times, said, "what the hell is this all about?...Even if Trump cannot dispense with Mueller easily, the very idea that he might try exposes an inherent flaw in the US Constitution's design, says Harvard Law School Professor Noah R. Feldman. Feldman points out that the president is ultimately in charge of law enforcement as the head of the executive branch -- a structural arrangement that works just fine until the president or those close to him come under investigation. So if the President tries to fire Mueller or gets him fired, "it would expose a deep flaw in constitutional design" says Feldman, because it shows the ability of the president to successfully block an investigation -- not a sign of a democratic society.

...Traitors, even just accused traitors like Gadahn, are exceedingly rare in American history. That's because treason is actually a very narrowly defined crime that's awfully hard to commit. And despite the latest wild revelations in the ongoing Trump-Russia saga—Donald Trump Jr.'s meeting with a Kremlin-connected lawyer who promised information as part of a Russian government effort to damage Hillary Clinton—legal experts say there is no way Junior or any Trump associate will ever get charged with treason...Even Laurence Tribe, a constitutional law expert at Harvard, inveighed that Junior's meeting had the "stench of bribery & treason."...Noah Feldman, a Harvard legal historian who previously suggested Trump may have committed impeachable offenses, agreed. "It's defined in the Constitution, and this isn't even close," he emailed me Tuesday about a possible "treason" charge.

An op-ed by Noah Feldman. President Donald Trump still seems to think that pressuring China to rein in North Korea’s Kim Jong Un is the best way to push back against the rogue state’s nuclear expansion, most recently in the form of testing an intercontinental ballistic missile that could reach Alaska. This approach hasn’t worked so far, and there’s a reason: Chinese President Xi Jinping has no strong reason to object to a North Korean nuclear insurance policy against the threat of being overthrown by the U.S.

An op-ed by Noah Feldman. Does Canada own the internet? The question may sound like a joke, but it’s the serious challenge presented by a Canadian Supreme Court decision issued last week. The court ordered Google to deindex search results that were letting one side of a lawsuit violate the intellectual property rights of the other -- not just in Canada, but worldwide.

An op-ed by Noah Feldman. Is President Donald Trump trying to fire Deputy Attorney General Rod Rosenstein without actually firing him? That’s the logical inference from the president’s tweet Friday morning asserting that he’s being investigated for firing FBI Director James Comey by the person who told him to fire Comey, namely Rosenstein. The immediate effect of the tweet is to pressure Rosenstein to recuse himself from special counsel Robert Mueller’s investigation. Rosenstein will now have to do so -- soon.

An op-ed by Noah Feldman. Justice Neil Gorsuch’s maiden opinion was superficially easy, a decision interpreting a consumer protection statute for the unanimous Supreme Court. Beneath the surface, the opinion has historic significance -- and not just because of the unusual way that Gorsuch got on the court. The case gave Gorsuch the chance to apply pure textual analysis of the law, ignoring policy interests and deciding in favor of big banks that buy up debts and then try to collect them. The fact that all the justices, even the liberal ones, were on board, symbolizes the emerging victory of Justice Antonin Scalia’s practice of ruling on a law’s text alone over approaches that interpret Congress’s purpose in passing the law. That development is unfortunate -- because it rests on an unrealistic assumption about Congress’s ability and willingness to amend ambiguous statutes.

An op-ed by Noah Feldman. Kudos for creativity to the new Knight First Amendment Institute at Columbia University, which has alleged that the First Amendment bars President Donald Trump from blocking followers on his Twitter account. Unfortunately, the law runs to the contrary. There’s no right to free speech on Twitter. The only rule is that Twitter Inc. gets to decide who speaks and listens -- which is its right under the First Amendment. If Twitter wants to block Trump, it can. If Trump wants to block followers, he can.

An op-ed by Noah Feldman. Can President Donald Trump block former FBI Director James Comey from testifying before Congress by invoking executive privilege? The answer turns out to be surprisingly tricky, despite the precedent of U.S. v. Nixon, in which the U.S. Supreme Court made President Richard Nixon hand over the Watergate tapes to a federal judge. On the one hand, a congressional investigation is different from a criminal case -- which makes it less likely that a court would allow Comey to testify if Trump refuses. On the other hand, Trump has spoken about his conversations on Twitter -- which arguably waives his privilege to protect a private conversation with his adviser. The only thing certain is that, if Trump invokes privilege regarding Comey, we’re in for a wild legal ride.

An op-ed by Noah Feldman. The revelation this week that U.S. surveillance in 2016 had captured Russian officials talking about influencing Donald Trump’s advisers might be an important piece of evidence in a growing chain that could lead to Trump himself. But there’s another strong possibility: that Trump and even his campaign advisers were unwitting beneficiaries of Russian President Vladimir Putin’s plot against Hillary Clinton. After all, if American intelligence was listening to the Russians, why haven’t we been told already that there is direct evidence of collusion with the Trump campaign?

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.