Media Mentions

A federal judge overseeing the criminal case of President Trump’s former national security adviser Michael T. Flynn opened the door late Tuesday for legal experts and other outside parties to oppose the Justice Department’s motion to drop the case, suggesting he has at least some skepticism about the government’s argument that Mr. Flynn should never have been charged. In a brief order, Judge Emmet G. Sullivan of the United States District Court for the District of Columbia said he would set a schedule for outside parties to present arguments about the government’s request to dismiss the case. He did not directly address the Justice Department’s motion to drop the charge, but legal experts said he appeared open to considering not only the department’s arguments but also those who have challenged its move as politically motivated...But its reversal raised serious questions about whether the Justice Department was treating Mr. Flynn differently from the hundreds of other defendants who are convicted each year of lying to federal authorities. “The judge could be concerned this is cronyism,” said Nancy Gertner, a former federal judge who now teaches at Harvard Law School. “I would predict that he holds a hearing and has the prosecutors justify the decision they made.” “When a defendant has gone all the way down the line to pleading guilty, the bar to dismiss has to be high,” she said.

The U.S. Supreme Court hears arguments Wednesday in a case that could affect the outcome of the 2020 election, and all future presidential elections, in unforeseeable ways. At the heart of the case is the Electoral College, which though it is enshrined in the Constitution, has for the most part been a mere formality for over the past two centuries. Specifically, the question is whether Electoral College delegates are a rubber stamp for the will of American voters in each state, as most people have assumed, or if they have the power to decide for themselves who they want to vote for when the Electoral College meets...The question before the Supreme Court on Wednesday is whether the states have the power to remove or fine such so-called faithless electors. Harvard Law School professor Lawrence Lessig, who has taken the electors case all the way to the high court, says these Electoral College delegates are "not faithless," but instead they were simply doing what the Founding Fathers envisioned, exercising their independent judgment and their consciences. "It's clear that the Framers thought [electors] had discretion," Lessig says...Harvard's Lessig agrees with Smith that the Electoral College has increasingly become a dysfunctional instrument of democracy. But he says, "The way to solve this problem is a constitutional amendment." That, however, could be harder than it seems. A constitutional amendment requires two-thirds of both the House and Senate to approve, and three-quarters of the states.

An article by Cass Sunstein: I love cost-benefit analysis. But for the coronavirus pandemic, cost-benefit analysis and I are going to have to see a marriage therapist. We might be headed for a divorce. Consider the following questions: What kinds of restrictions should states be imposing on work, play and freedom of movement? When should they open up for business? How open should they be, exactly, and exactly when? To answer such questions, governors, mayors and President Donald Trump seem to be engaging in a kind of intuitive cost-benefit analysis as they struggle to balance the value of increased economic activity against the threat to public health. Regulators and executive-branch policymakers try to be more rigorous in their analysis of costs and benefits. They ask: How do you calculate the benefits of restrictions, and what’s the right measure of costs? They try to come up with reliable numbers. The goal is to impose restrictions when (and only when) the benefits exceed the costs — and to adopt an approach that has the highest net benefits, that is, benefits minus costs. You might not think that’s the loveliest way to proceed, but the basic thinking is simple: Official decisions should have the best possible consequences for people. Looking at costs and benefits is the best available way of figuring out what decisions will have the best consequences.

An article by Noah Feldman: You might think that the Supreme Court case regarding President Donald Trump’s tax returns is about him, or least about the power of the presidency. It isn’t. As Tuesday’s live-streamed oral arguments made clear, this is a case about Congress — and whether its oversight authority will be stripped away by an activist Supreme Court. The Constitution gives Congress “all legislative powers herein granted.” The text of the Constitution doesn’t speak of “legislative oversight” because the phrase itself wasn’t used until the 1830s, and didn’t become widespread until after World War II. But make no mistake, Congress has exercised what we call legislative oversight from the very beginning. The way Congress did so was no different from the way it does now: The legislators held hearings, asked questions and subpoenaed documents. The tradition is robust. Today Congress holds a range of different kinds of hearings, including hearings labeled legislative, oversight, investigative, confirmation, ratification and impeachment. All of them include oversight of government in one way or another.

President Trump’s campaign has denied he’d want to move the November election, but even if he wanted to, the president has no power over when America holds federal elections. If not the president, then who does? Congress. Unlike some constitutional language that can be widely interpreted, the founders were unambiguous about how Election Day would be chosen: Congress is charged with choosing the date, and that date must be the same for the entire country. Congress chose a date, the first Tuesday following the first Monday in November, in 1845, and it has never been changed...But haven’t lots of states changed primary election dates? This is different from primary election dates, which are set by states governed by different rules. For general elections for federal offices, states are bound by federal law. Any effort by a state to unilaterally move or cancel the November election would be unlawful, and any results of a future election would be invalid, said Nicholas Stephanopoulos, professor at Harvard Law School.

A podcast by Noah Feldman: Boaz Weinstein, founder of the hedge fund Saba Capital, discusses why the stock market seems to be doing relatively well when the economy is in shambles.

A human rights lawyer in the Philippines, Fulgencio S. “Jun” Factoran LL.M. ’69 served as secretary of the Department of Environment and Natural Resources, appointed by President Corazon Aquino.

Vincent P. McCarthy ’65 began his career managing Bobby Kennedy’s Massachusetts presidential campaign and co-founded the Robert F. Kennedy Children’s Action Corps, a child welfare agency. In the early ’70s, after joining the law firm that became WilmerHale, he came out as one of the few openly gay partners at a major U.S. law firm, battled alcoholism and achieved permanent sobriety. He went on to co-found the Human Rights Campaign (today the nation’s largest advocacy group for LGBT people), the Mass. Lesbian and Gay Bar Association, and the Massachusetts Governor’s Advisory Committee on Gay and Lesbian Youth, and helped organize gay and lesbian alumni throughout Harvard (leading to a university-wide nondiscrimination policy in the early 1980s).

Early in his career, Paul L. Perito ’64 served as an assistant U.S. attorney in the U.S. Attorney’s Office for the Southern District of New York, as chief counsel and later as staff director to the U.S. House of Representatives Select Committee on Crime, and as chief counsel and deputy director of the White House Special Action Office for Drug Abuse Prevention. He went on to a career in private practice as a partner at Paul, Hastings, Janofsky & Walker and was an officer and member of the board of directors at Star Scientific Inc. From 2012 to 2014, Perito served as president of the Harvard Law School Alumni Association.

Jerome E. Hyman ’47 had a long and distinguished career at the firm that is now Cleary Gottlieb Steen & Hamilton, focusing on corporate and securities matters. For many years he was the principal corporate counsel for leading companies including Pan American World Airways, Macy’s and Scientific American. He also was a longtime philanthropist, a participant in civic affairs, and a public-spirited humanitarian. A supporter of Harvard Law School for more than 50 years, he served as a member of the HLS Visiting Committee and on the Advisory Board for the HLS dean.

Election Day is Nov. 3, but the winner of the White House traditionally isn't official until December, when 538 presidential electors confirm the results. On Wednesday, the Supreme Court will consider giving those virtually unknown people more than perfunctory power. The justices, customarily allergic to politics, appear on track to decide a threshold question that haunts the way presidents and vice presidents are chosen: Must the men and women chosen on Election Day to cast ballots for the winner of their state's popular vote keep their pledge? Or can they go rogue? Never before have these electors flipped an election. But 10 electors were disloyal or tried to be in 2016, enough to change the results of five previous presidential elections. And there's a first time for everything...The Supreme Court decided in January to hear both appeals, lest it be forced to intervene in a potential emergency situation after Election Day should an electors' rebellion this fall potentially affect results. "This court should resolve this conflict now, before it arises within the context of a contested election," Harvard Law School professor Lawrence Lessig urged on behalf of the three Washington State electors. "As the demographics of the United States indicate that contests will become even closer, there is a significant probability that such swings could force this court to resolve the question of electoral freedom within the context of an ongoing contest," he warned.

An article by Sabi Ardalan: Sixty people in bunk beds in one room. A communal bathroom. Time in the ‘hole’ – or solitary confinement – if sick. That is how one asylum-seeking client describes the situation in immigration detention during COVID-19. Held in private, for-profit detention centres for more than 16 months, this client has difficulty breathing, a racing heart, and other complications from a stab wound he suffered before fleeing his home country. In recent weeks, he has described constant and debilitating body aches and pain. But despite repeated requests to see a doctor, he has not received any medical attention.  This client’s case is just one example of the disproportionate and devastating impact of the COVID-19 pandemic in the United States – and, as important, the Trump administration’s malicious response to it – on refugees and asylum seekers. Lawsuits challenging immigration detention during COVID-19 have met with varying degrees of success across the country. The judge who heard this client’s case has thus far refused to order his release, convinced by the warden that social distancing was possible. Some judges have, however, mandated the release of immigrants from detention, citing the rapid spread of COVID-19. Others have ordered Immigration and Customs Enforcement to assess whether medically vulnerable immigrants should be detained. But this piecemeal approach has left many of the approximately 50,000 immigrants detained each day in the US at risk of contracting the virus.

An article by Ashley Nunes: Commercial aviation is seeing its darkest period ever. That’s according to Air Canada chief executive officer Calin Rovinescu. Mr. Rovinescu, who has led the airline since 2009, is grappling with a simple yet thorny question. How do you balance the books when no one wants what you’re selling? Airline executives around the world are facing the same challenge as COVID-19 brings air travel to historic lows. So far, the response has been to ground airplanes and furlough workers – that, and tap into taxpayer funds. Yes, in a move that will surprise few, C-suite executives now want government to help. For Air Canada, it’s hardly the first time. After the Sept. 11, 2001, attacks, the carrier received $100-million from Ottawa. In 2009, Air Canada pushed for – and secured – a government commitment for financial relief in the form of lower obligatory payments to its underfunded pension plan. What concessions the carrier extracts this time around are anyone’s guess. One thing is certain: With losses topping $1-billion in the latest quarter, the carrier needs help, and fast. Airlines have already tapped into Ottawa’s emergency wage subsidy, and they could be eligible for a new bridge-financing program for large employers. But make no mistake, more help is coming.

The Department of Justice decided last week that it was dropping all criminal charges against Donald Trump’s former national security advisor, Michael Flynn. In 2017, Flynn pleaded guilty FBI for lying to the FBI about his conversations with the then Russian ambassador and made a plea deal with special counsel Robert Mueller. During her many years of working within the legal system, retired federal judge Nancy Gertner told Jim Braude on WGBH News' Greater Boston that she has never seen the DOJ drop a case like this. “I’ve seen the DOJ dismiss cases, but not after someone pleaded guilty to them, twice,” she said. Attorney General William Barr rationalized the DOJ’s decision during an interview with CBS NEWS Thursday. "People sometimes plead to things that turn out not to be crimes, and the Department of Justice is not persuaded that this was material to any legitimate counterintelligence investigation. So it was not a crime," he said. Gertner said she would not let either Flynn or Barr off the hook if she was presiding over the case. “I would have certainly held a hearing. Bring Barr into the court room,” she said. “Who put their thumb on the scale here?” Gertner is worried that this decision could hold precedent for future criminal cases. “If the standards that Barr used in this memo were applied to other cases across the country, they would all be thrown out,” she said.

An article by Cass Sunstein: In Congress and the executive branch, U.S. officials are about to face an unexpected dilemma, one that will define a range of domestic policy in the coming years, and that has the potential to redefine how Americans think about the modern regulatory state. On the one hand, the coronavirus pandemic has made it unmistakably clear that in some areas, the U.S. needs more regulation, especially to protect health and safety. On the other hand, the economic destruction it has caused will require new caution about costly regulatory mandates. Businesses, large and small, are facing unprecedented challenges. For many of them, survival is at stake, and expensive regulations might prove devastating. It is almost certain that the administration of President Donald Trump will be keenly alert to the second point, while neglecting the first. There’s also a risk that progressives — including those in charge if Joe Biden wins the White House in November — will be keenly alert to the first point, but insufficiently appreciative of the second. Over the past three years, Trump’s regulators have kept down the costs of new regulations. On an annual basis, those costs have been far lower than they were under Presidents Bill Clinton, George W. Bush and Barack Obama. (Regulatory costs were not officially documented before 1998.) The less good news is that Trump’s regulators have also produced unprecedentedly low benefits, a category that includes not only purely economic savings, but also reductions in death and disease.

An article by Noah Feldman: It’s not exactly the Montgomery bus boycott, and Elon Musk is no Rosa Parks. But Tesla is apparently engaged in a highly unusual act of corporate civil disobedience. Ordered by Alameda County health authorities to keep its Fremont, California mega-plant shuttered, the company opened the factory over the weekend and started making cars. On Monday, its employee parking lot was reported to be almost full, suggesting a near-total reopening. CEO Elon Musk had announced two days earlier that the company would be suing the county in federal court. That lawsuit hasn’t yet yielded any results, however. So far as it’s possible to determine, Tesla is knowingly and intentionally breaking the law. If that sounds extreme, it should. Corporations aren’t supposed to engage in unlawful disobedience. The principles of corporate law treat intentional unlawful conduct as a violation of the corporation’s fiduciary duty to its shareholders. A glance at Tesla’s lawsuit is enough to reveal that the company’s case is not a sure winner. The first and central argument seems to be that because manufacturing cars counts as critical infrastructure exempted from a statewide shutdown under the California governor’s guidelines, Alameda County can’t shut down the plant.

A podcast by Noah Feldman: Jacob Weisberg, the CEO of Pushkin Industries, interviews Noah Feldman about his new book "The Arab Winter: A Tragedy" which comes out today.

After two years of discussion and planning, Facebook finally announced the first members of its Oversight Board, the so-called "Supreme Court" that will adjudicate problematic content cases for the social network. The 20 initial members are an impressive group, with a Nobel Peace Prize winner, multiple experts in constitutional law, former judges, etc. But there are still plenty of problematic questions surrounding the board, including: How much power will they actually have? And is their existence just an elaborate fig leaf to redirect blame for Facebook's content decisions and make it look like they care?...Our first guest is Evelyn Douek, who is an S.J.D. candidate at Harvard Law School and an affiliate at the Berkman Klein Center For Internet and Society. Evelyn studies international and transnational regulation of online speech and content moderation institutional design. Prior to coming to HLS, she was a clerk for the Honourable Chief Justice Susan Kiefel of the High Court of Australia. She graduated with First Class Honours from the University of New South Wales with a Bachelor of Commerce/Laws in 2013, and is the host of an interview podcast featuring Professors at Harvard Law School called Leading Questions. She also blogs at Lawfare.

When Ekpar Asat saw his older sister for the last time one winter night in Manhattan, he promised her he would return to the United States in a few months with their parents to watch her graduate with a master’s degree from Harvard Law School — the first ethnic Uighur to do so. But three weeks after returning to China from that trip in 2016, when he was attending a prestigious State Department leadership training program, he disappeared into the shadows of a vast detention system in the country’s northwest. This winter, his sister, Rayhan Asat, heard that he had been sentenced to 15 years in prison on suspicion of inciting ethnic hatred...In early March, two months after finding out about his sentencing, she decided to speak publicly at Harvard Law School about his case and the crisis in Xinjiang. “I know from trying to help Rayhan Asat over the past four years that she is a person of real courage and integrity,” said William P. Alford, the vice dean and law professor who hosted the talk. “The case of her brother, arrested right after returning from the U.S. and largely shrouded by Chinese authorities, is tragic.” Ms. Asat said she was aware her family might suffer reprisals as a result of her speaking out. That has happened to other Uighurs abroad. But she said her brother’s ordeal had made her realize that no matter what she and her family do to conform as model citizens, the Chinese government sees Uighurs “forever as outsiders.”

An article by Laurence Tribe: US District Judge Emmett G. Sullivan unquestionably knows that when a federal defendant pleads guilty but then asks to be relieved of his fate, it is up to the court to decide the merit of his argument — no matter who supports it, including a prosecutor who has switched sides. Sullivan is presiding over the case in which former National Security Adviser Michael Flynn pleaded guilty twice to serious federal crimes and is ready for sentencing. The fly in the ointment is a recent request by Attorney General William Barr that basically says: Never mind. Ignore those guilty pleas; Flynn never should’ve been interviewed about his conversations with Russian Ambassador Sergey Kislyak in the first place, so his admitted lies to the FBI don’t matter. The whole “Russia thing” was a hoax, according to Barr, that we’re now helping President Trump erase from history. Anyone studying the facts would have no doubt this was his message. The emerging consensus, reflected in these pages and in recent columns, is that Barr’s motion to dismiss the Flynn prosecution, however transparently abusive, leaves Sullivan in a pickle. As Jeffrey Toobin put it, “there doesn’t appear to be any way for a judge to force prosecutors to bring a case that they want to drop.” The judge’s options are said to include: examining why the prosecutor in charge of the case for the past several years suddenly withdrew; inquiring whether the Department of Justice’s reasons for treating the entire prosecution as unlawful and the guilty pleas as void were legally sound; granting the request to drop all charges but doing so “without prejudice” so they might be refiled by a future Justice Department; and proceeding to sentence Flynn in a rare and courageous exercise of discretion under the Federal Rules of Criminal Procedure.

A for-profit college received millions of dollars from the federal government to help low-income students whose lives have been upended by the coronavirus outbreak, but that same school, Florida Career College (FCC), is also accused of defrauding students. A federal class-action lawsuit filed on behalf of students in April calls FCC "a sham" and alleges that, long before the pandemic, the college was targeting economically vulnerable people of color. The plaintiffs say the vocational school enticed them with false promises of career training and job placement — but spent little on instruction while charging exorbitant prices and pushing students into loans they cannot repay. The lawsuit comes as thousands of colleges across the country are receiving federal emergency relief in response to the coronavirus pandemic. Through the CARES Act, FCC has been allotted $17 million. The law requires that at least half of that money goes directly to students, but makes few stipulations for the rest of it...The complaint alleges that Florida Career College, along with its parent company, specifically targets economically vulnerable people of color. "They are recruiting at majority Black high schools," says Toby Merrill, director of the Project on Predatory Student Lending at the Legal Services Center of Harvard Law School, one of the organizations representing the plaintiffs. "They are putting up billboards in towns where the population is mostly Black. And they're doing a lot of advertising on social media where you can choose to target your ad essentially by race."