Noah Feldman

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.

An op-ed by Noah Feldman. What if the U.S. Supreme Court issued a landmark abortion rights ruling -- and nothing changed? Case in point: Whole Women’s Health v. Hellerstedt, the decision from last June that established a new and improved constitutional rule for when a law unduly burdens a woman’s right to choose. Legally, the ruling struck down a Texas law that forced abortion clinics to close unless they qualified as ambulatory care centers. But now, almost a year later, only two of the clinics closed by the law have reopened. Roughly two dozen others closed during the three years the law was in effect, and many or most of those are unlikely to be revived.

An op-ed by Noah Feldman. Is the Constitution archaic, as President Donald Trump implied recently in an interview with Fox News? The answer is a resounding yes -- if you’re an originalist, as Trump claims to be. The president unwittingly hit on the best possible justification for a living Constitution, which evolves to meet changing times. That evolution, of course, needs to take account of the fundamental elements necessary for life -- such as the separation of powers. And it would be a disastrous idea to amend the First Amendment, as Chief of Staff Reince Priebus hinted in another recent interview. But broadly speaking, the way to avoid archaism is to recognize that the Constitution is alive, and like every living thing, must adapt to changing circumstances.

An op-ed by Noah Feldman. The next fight over the legality of President Donald Trump’s executive orders will be about the designation of national monuments. Trump’s order to review all major monument declarations in the last 20 years sets the stage for reversal of some or all of President Barack Obama’s designations. Previous presidents have treated those decisions as irreversible. But Trump seems poised to break that tradition by claiming the implicit power to reverse anything a prior president has done.

An op-ed by Noah Feldman. A federal district court in California ruled Tuesday that President Donald Trump’s executive order on sanctuary cities would be unconstitutional if used to pull funding from municipalities that don’t do the president’s bidding in reporting undocumented people to the federal government. This result is heartening but not surprising: I predicted the result on constitutional grounds back in November, two months before the order was even issued. What’s noteworthy is how desperate the Trump Department of Justice was to avoid a defeat -- so desperate, in fact, that its lawyers told the judge that the executive order actually had no legal effect at all.

An op-ed by Noah Feldman. What did the president know about the Mar-a-Lago advertisement that appeared for a time on official government websites? And when did he know it? These questions might sound trivial. They aren’t. The webpage about President Donald Trump’s private club, which had all the features of a marketer-drafted puff piece, is a prime example of corruption, namely the knowing use of government means to enhance the private wealth of the president. And corruption is the classic example of a high crime or misdemeanor under the impeachment clause of the Constitution.

An op-ed by Noah Feldman. President Donald Trump’s lawyers are trying to rewrite the First Amendment. In defending a civil suit against Trump by protesters who say they were roughed up in one of his campaign rallies, Trump’s legal team has advanced two claims that either misstate or substantially overstate constitutional doctrine.

An op-ed by Noah Feldman. The Department of Justice under Attorney General Jeff Sessions, according to news reports, is re-evaluating whether to charge WikiLeaks founder Julian Assange for publishing leaked classified material in 2010. This raises a First Amendment flag. The department previously decided it wouldn’t proceed because it couldn’t distinguish WikiLeaks from the New York Times or the Washington Post. So what, really, is the difference between unlawfully leaking information to the press and publishing it directly to the public? If one is unlawful, why can’t the other be?