Media Mentions

An article by Noah Feldman: Slowly but perceptibly, the Trump administration is moving towards a concrete defense in the president’s Senate impeachment trial: Not that Donald Trump didn’t pressure Ukraine to investigate Joe and Hunter Biden, but that he did — and that there’s nothing wrong with it. The latest indication of this direction comes from the president’s personal lawyer, Rudy Giuliani, who in a couple of press interviews has acknowledged his role in advising President Trump to arrange the firing of the U.S. ambassador to Ukraine, Marie Yovanovitch, because Giuliani believed she stood in the way of getting those investigations. If Trump wanted to focus on the impeachment defense that there was no quid pro quo and that he innocently asked for the investigations in order to fight corruption, then it would be genuinely crazy for his personal lawyer to reveal the specifics of how and what he communicated to the president. Giuliani’s statements are terribly harmful to Trump’s case — and he has now effectively waived attorney-client privilege, so he could be called to testify.

New York City is on track to have one of the nation's more widespread commercial organics diversion mandates in the latest sign of ambitious local policy to boost this growing sector. Earlier this fall, the city's Department of Sanitation (DSNY) proposed a new rule that would expand its existing requirements for the third time to cover approximately 8,000 new businesses and 100,000 tons of annual food waste. In a release marking the announcement, Commissioner Kathryn Garcia described this as the "final phase" of a 2013 law targeting commercial organics in the waste stream...DSNY's latest proposal is also viewed as part of a steadily growing trend around the U.S. As described by a recent report from Harvard's Food Law and Policy Clinic and the Center for EcoTechnology (CET), such regulations are quickly "emerging as a new and effective policy tool" to deal with the numerous detrimental effects of wasted food.

Democratic presidential candidates are promising to fight climate change, but whether they succeed will hinge on their ability to shape an obscure federal agency that has overseen an explosion of fossil fuel infrastructure over the last few decades. The FERC, an independent regulator of pipelines and power markets, derives its authority from decades-old laws that largely predate worries about climate change and were focused primarily on ensuring that energy supplies remain cheap and reliable. But that mandate may interfere with some of the more aggressive climate plans Democrats are contemplating, and candidates are facing pressure to overhaul the agency if elected... “I could imagine doing [climate legislation] in such a way where you don’t need to reform FERC,” said Ari Peskoe, Director of the Harvard Electricity Law Initiative. “If there was just a national [renewable energy standard], you would just need someone to make sure utilities are complying. That could be FERC, but it could also be [the Department of Energy] or EPA as well.”

Republicans have handed Democrats a political gift by making it clear they plan on acquitting President Trump after the most minimal Senate impeachment trial possible. The question is whether Democrats can seize this opportunity. In a divided Congress, House Democrats control one important weapon...they can withhold the articles of impeachment from the Senate — meaning that no impeachment trial can occur until the Republican Senate leadership agrees to some approximation of a fair and thorough process...Harvard Law professor Laurence Tribe recently tweeted that if McConnell “rejects these reasonable ground rules and insists on a non-trial, the House should consider treating that as a breach of the Senate’s oath and withholding the Articles until the Senate reconsiders.” He later clarified in a follow-up tweet that “by ‘withholding’ the Articles I don’t mean not voting for them — I mean voting for them but holding off on transmitting them to the Senate.” Tribe elaborated on this idea further in an email to Salon, comparing this process to a corrupt trial in criminal court: "Imagine this scenario: A prosecutor about to obtain a grand jury indictment learns that the foreman of the trial jury (whose members, for purposes of this thought experiment, we’ll have to assume are known in advance, as is the case with the Senate though not in the typical criminal case) has threatened to let the accused decide how the trial will be conducted — and has intimated that it will be a 'trial' in name only, one orchestrated in close coordination with defense counsel. Other key jurors also announce that they don’t intend to listen to any evidence but have already made up their minds to acquit."

An op-ed by Laurence Tribe: For some time now, I have been emphasizing the duty to impeach this president for abuse of power and obstruction of Congress regardless of what the Senate might end up doing. Now that President Trump’s impeachment is inevitable, and now that failing to formally impeach him would invite foreign intervention in the 2020 election and set a dangerous precedent, another option seems vital to consider: voting for articles of impeachment but holding off for the time being on transmitting them to the Senate. This option needs to be taken seriously now that Majority Leader Mitch McConnell (R-Ky.) has announced his intention to conduct not a real trial but a whitewash, letting the president and his legal team call the shots. Such an approach could have both tactical and substantive benefits. As a tactical matter, it could strengthen Senate Minority Leader Charles E. Schumer’s (D-N.Y.) hand in bargaining over trial rules with McConnell because of McConnell’s and Trump’s urgent desire to get this whole business behind them. On a substantive level, it would be justified to withhold going forward with a Senate trial.

An article by Noah Feldman: The jockeying has already begun over the structure of President Donald Trump’s Senate trial. Senate Majority Leader Mitch McConnell has discussed it with the White House counsel; Senate Minority Leader Charles Schumer has sent McConnell a letter proposing detailed protocols. All this action, even before the House of Representatives has formally impeached Trump, might be making you wonder: Isn’t there some pre-existing trial protocol required by the Constitution? Do we really have to have a debate about how the trial is going to run before it actually happens? The short answers are no, there isn’t a clear constitutional mandate for what the Senate trial should look like; and yes, there really does have to be a fight about what procedures the Senate will use in trying Trump. This seems like a crazy way to do things, but it reflects the framers’ recognition that impeachment as they knew it from England had always had a political side, and their reticence about putting too much detail in the Constitution.

An article by Susan Crawford:  The current state of rules for use of facial recognition technology is literally all over the map. Next month, the city council in Portland, Oregon will hold a public meeting about blocking use of the technology by private companies, as well as by the government. San Francisco, Oakland, Calfornia, and Somerville, Massachusetts, already have banned the use of facial recognition technology by city agencies; Seattle’s police stopped using it last year; and Detroit has said facial recognition can be used only in connection with investigation of violent crimes and home invasions (and not in real time). State governments have their own rules too. In October, California joined New Hampshire and Oregon in prohibiting law enforcement from using facial recognition and other biometric tracking technology in body cameras. Illinois passed a law that permits individuals to sue over the collection and use of a range of biometric data, including fingerprints and retinal scans as well as facial recognition technology. Washington and Texas have laws similar to the one in Illinois, but don't allow for private suits. In other words, we’re headed for a major clash.

An article by Jack Goldsmith and Bob Bauer:  Inspector General Michael Horowitz’s report last week told a complex story about extraordinary events related to the investigation of officials in Donald Trump’s 2016 presidential campaign. Its publication predictably ignited a contest between Democrats and Republicans to extract from the 429-page opus what was most serviceable in the construction of competing political “narratives.” But there is something much more important in the Horowitz report than evidence for political vindication. The report shows that serious reforms are vitally needed in how the FBI and the Department of Justice, of which it is a component, open and conduct investigations—especially those related to politicians and political campaigns. The report prompted concerns from both sides of the aisle, suggesting that there’s an opportunity for serious reflection and reform—if Congress and the executive branch can seize it.

Democrats and President Trump have finally found something they agree on — but a powerful Republican may block their dream from coming true. With the House expected to impeach Trump this week, all eyes will turn to the Senate, where the president is set to face a trial in the new year. And both Democrats and the president, for their own reasons, are hoping for a full-blown trial, replete with bombshell testimony that would keep Americans glued to their TV sets. ... “The last thing they want is something that really exposes the details of how Trump abuses his power. They really don’t want to risk that,” said Laurence Tribe, a constitutional law professor at Harvard University who privately advised House Democrats when they drew up the impeachment articles earlier this month.

Americans were gripped when news broke in September that an anonymous intelligence officer had reported concerns to Congress that President Donald Trump seemed to be trying to use the power of his presidency to exchange investigations into his political rivals for U.S. support of Ukraine. The consequences of the whistleblower’s actions have dominated headlines for months, but in many ways, the complaint, which may lead to Trump’s impeachment by the House this month, was a historical moment that was centuries in the making. ...However, critical gaps remained. While the First Amendment could theoretically protect a government employee who wants to voice irritations with something outside of the purview of their job, it would not necessarily protect them if they spoke out about topics related to their work. “The First Amendment rights of public employees — generally, bureaucrats, civil servants and others — are somewhat limited, because the theory is that although they have rights of expression, they don’t automatically have a right to the job that they hold,” says Laurence Tribe, a prominent Constitutional law professor at Harvard. “If there’s somebody in the [Environmental Protection Agency] who decides that climate change is this grave problem, contrary to the views of the current Administration… They could be fired for that.”

In an interview with MSNBC Ari Melber, Constitutional law expert Laurence Tribe said: "If Trump is impeached "it will be the first time that any president who has been impeached is on trial before a Senate of his own party."

Harvard constitutional law professor Laurence Tribe explained Friday why he believes Senate Majority Leader Mitch McConnell’s (R-Ky.) plan to coordinate with President Donald Trump’s defense team in a Senate impeachment trial may backfire. ...Tribe told MSNBC’s Ari Melber the next day on “The Beat” that it was “disgusting” that McConnell looked like he “is going to conduct this trial as though he’s a member of the defense team.” “You know, it’s an ancient principle — centuries-old, actually over a millennium old — that you can’t be a judge on your own case, and effectively, to allow Donald Trump to call the shots violates that principle,” said the scholar, who has been advising top House Democrats on the impeachment process.

Donald Trump appears to have the full support of Senate Majority Leader Mitch McConnell, leading many to believe that an impeachment trial in the Senate could never result in a conviction. Laurence Tribe, constitutional scholar and author of, ‘To End a Presidency,’ joins Joy Reid to discuss saying, ‘I do think the Democrats should press hard to make this a real trial.’

In recent years, the Northeast region has discussed matching state-driven climate ambitions with ISO-NE's market design. States are working to deploy greater amounts of renewable resources, and a group of U.S. senators from New England wrote ISO-NE about the adoption of renewable energy in the region on Nov. 18. Their letter came after many renewables advocates and states in the region were dismayed to see federal regulators allow a fuel capacity rule go into effect in ISO-NE... "It is not easy to engage on these issues, they're very technical," Ari Peskoe, director of Harvard University's Electricity Law Initiative, told Utility Dive. "A first step is just making people aware of the existence of this organization."

An article by Krista Oehlke '20: The Department of Justice on Oct. 15 proposed a rule that would enable the DNA collection of noncitizens in immigration detention and the transfer of that information into a national criminal database. The rule would affect the more than 40,000 people currently held in immigration detention facilities. Civil rights groups have already warned that the rule may implicate serious privacy concerns and denigrates the civil rights and liberties of the most vulnerable.

One of the biggest divides in the race for the Democratic presidential nomination is whether Donald Trump is a cause or a symptom of the current dysfunction in American politics... Two new books -- "They Don't Represent Us," by Lawrence Lessig, and "The Great Democracy," by Ganesh Sitaraman -- are firmly in the big, structural change camp, making a strong case that there is no normal to go back to. "The crisis in America is not its president," Lessig writes in his opening pages. "Its president is the consequence of a crisis much more fundamental." That crisis is the state of democracy itself. You could fill an entire bookshelf with works about the crisis of democracy in the Trump era, but Lessig, a professor at Harvard Law School, has been eloquently hammering this point longer than most. He isolates the problem with American democracy to one word: "unrepresentativeness." Voter suppression undermines free and fair elections, gerrymandering allows politicians to pick their preferred electorate, the Senate and the Electoral College favor small states and swing states over the rest of the country and the post-Citizens United campaign-finance system gives a tiny handful of billionaires far more clout than the average small donor. "In every dimension, the core principle of a representative democracy has been compromised," he writes. This is by now a familiar critique, but Lessig tells it with skill, citing a plethora of studies and historical examples to make a persuasive case about the unrepresentativeness of America's political institutions. He suggests a wide range of policies to fix this, ranging from practical ideas like universal automatic voter registration and a $100 "democracy coupon" for every voter, to more controversial ones, like scrapping the Electoral College and reducing federal funding for states like Georgia that disenfranchise their voters.

In the future, the medication you take will not only be a matter between you and your doctor. Pills with built-in electronic sensors are already a reality in both Europe and the US, and in the future, they will fill pharmacy shelves. The new electronic pills can collect data, for example, on the state of the stomach and intestines, and this creates new opportunities for diagnosing diseases. The pills can also be used to monitor medication e.g. in patients with mental disorders. In an article published in Nature Electronics, a group of researchers point out that the use of the new electronic pills is not without problems. The researchers, Professor Timo Minssen and Assistant Professor Helen Yu from the Centre for Advanced Studies in Biomedical Innovation Law (CeBIL) at the University of Copenhagen, together with Professor Glenn Cohen and CeBIL’s Research Fellow Sara Gerke from Harvard Law School, point out that the new methods of treatment create both ethical and legal challenges.

Hosted by June Grasso. Guests: Liam Denning, Bloomberg Opinion energy columnist: "Saudi Aramco’s $2 Trillion Dream Isn’t About Oil." Noah Feldman, Harvard Law Professor and Bloomberg Opinion columnist: "We Know What the Framers Thought About Impeachment." Leonid Bershidsky, Bloomberg Opinion columnist: "Facebook Just Can’t Seem to Beat the Russians." Faye Flam, Bloomberg Opinion columnist: "Satellites Are Changing the Night Sky as We Know It." Joe Nocera, Bloomberg Opinion columnist: "Fannie and Freddie Make 30-Year Mortgages Possible."

This week, the House Judiciary Committee announced and approved two articles of impeachment. Why two instead of 10? Why is this process moving so quickly? And why are Democrats prioritizing trade deals the same week as impeachment? Vox’s Jen Kirby answers the key questions on Impeachment, Explained. Noah Feldman is a Harvard Law professor and one of the constitutional scholars who testified at the House Judiciary Committee’s hearing. He joins me to talk about what he saw, what he learned, and the Republican argument that truly scared him.

An op-ed by Noah Feldman: President Donald Trump has signed an executive order aimed at combating anti-Semitism on college campuses. What could possibly be wrong with that? The answer is nothing — provided the directive is applied in a way that doesn’t infringe on the free speech rights of student groups that are critical of Israel. But the way the executive order is written opens the possibility for misuse, and the danger of chilling student speech on campus in a way that doesn’t serve the cause of fighting the scourge of anti-Semitism.

Advocates for students and veterans lauded a record $191 million settlement reached in a case against one of the country’s largest for-profit college chains this week as an important step forward in protecting students, but said the compensation was “a drop in the bucket” compared to the total debt borrowers owe. ... Toby Merrill, the director of the Project on Predatory Student Lending at Harvard Law School, said federal student loans were "by far the largest component of debt created" by for-profit schools. "Unfortunately, because such enforcement actions are directed against the school, they don't directly cancel the loan debt," she said.