Media Mentions

An op-ed by David J. Harris and Jean Trounstine: Last week we joined 200 other Massachusetts residents for a hearing of the Legislature’s Joint Committee on the Judiciary. The hearing, set to cover sentencing, corrections, and criminal records, had a list of 60 bills under consideration. As is common practice, verbal testimony was limited to three minutes per person, with the committee chairs retaining the right to take people out of turn. This, of course, is not unusual. The rationale is that with three minutes of testimony, all of the hundred or so people who wanted to testify would have their say. We have both been through this before and understand it is general operating procedure for our legislative process. But there was something so deeply flawed here that it forces us to question this approach to crafting legislation to guide the Commonwealth.

Adam Smith is mad at his co-worker. His boss is on the list, too. “Everyone keeps taking credit for my accomplishments, so no one knows what great work I do,” says the 24-year-old business analyst. He wants to say something, but when he tried to subtly complain to a colleague at the downtown investment bank where they both work, “I got a stupid response, something like ‘There’s no ‘I’ in team,’ ” he says. ... But workers must learn to have difficult dialogues, regardless of how uncomfortable they might feel, because the need will come up many times during one’s career, says Sheila Heen, a lecturer at Harvard Law and co-author of New York Times business best seller “Difficult Conversations, How to Discuss What Matters Most.”

An article by Cass Sunstein: In terms of public health, one of the worst air pollutants is fine particulate matter. From 2009 to 2016, average levels of these particulates in the ambient air in the U.S. plummeted by 24.2 percent. That’s the good news. The bad news is that from 2016 to 2018, average levels jumped by 5.5 percent. As a result of that increase, 4,900 Americans died prematurely in 2017, and 9,700 died prematurely in 2018, according to the government’s own estimates of the likely effects of exposure to fine particulate matter. In short, the air got a lot cleaner during the years when Barack Obama was president (preventing tens of thousands of premature deaths), and has become a lot dirtier under President Donald Trump. But instead of scoring political points or assigning blame, let’s try to understand what is happening, with the help of new research from economists Karen Clay and Nicholas Muller of Carnegie Mellon University.

Book reviews by Cass Sunstein: President Donald Trump has a favorite epithet, a term of contempt: “like a dog.” Mitt Romney could have been president, but he “choked like a dog.” Broadcaster David Gregory was “fired like a dog.” In a presidential debate, Senator Marco Rubio started to “sweat like a dog.” Brent Bozell of the National Review came “begging for money like a dog.” In their Senate testimony, former Director of National Intelligence James Clapper and former acting Attorney General Sally Yates started “to choke like dogs.” Referring to his former assistant Omarosa Manigault Newman, the president writes, “Good work by General Kelly for quickly firing that dog!” What does it actually mean, to be “like a dog”? ... But in view of recent research, it is increasingly difficult to believe that people domesticated dogs. It is far more likely that dogs domesticated themselves. We did not choose them. They chose us.

There are so many outrages to keep track of with the Trump administration, so many officials determined to gut the very departments they lead, that it’s hard to keep up. For example, Education Secretary Betsy DeVos still exists. Did you forget that or, like me, wish you could? This particular fox continues to guard a henhouse crammed with students battling soaring debts, a crushing burden that harms the entire economy. Luckily, the judiciary also still exists, and it is not yet completely stacked with underqualified Trump toadies. On Thursday evening, a federal judge in San Francisco held DeVos in contempt and slapped her department with a $100,000 fine for continuing to squeeze victims of shady for-profit colleges to pay back their loans after she had been ordered to stop. ... The Project on Predatory Student Lending at Harvard Law School sued, and that was supposed to freeze collections. Except the department continued to put the squeeze on 16,000 students, even garnishing some of their wages and tax refunds. “They have been cheated and lied to by both the schools and the government,” said Toby Merrill, director of the Project. The Department said billing the students had been an innocent mistake, and that they have returned the payments.

The couple walk shoulder to shoulder, stride for stride, like two people who have walked together a long time. The man looks steadily ahead and moves with purpose. The woman turns to him, smiling, and speaks quietly. He nods his head slightly but does not reply. His silence would have once surprised her, but it is expected now, painfully familiar, four years into their life with Alzheimer’s. The great man at her side goes days sometimes without speaking. She isn’t certain, now, if he knows her name, or if he always recalls his own. His name is Charles J. Ogletree Jr., and he was, not long ago, a dazzling, dominating legal mind, a theorist and scholar internationally revered for his brilliance and compassion. He inspired generations of students as a Harvard Law School professor, including the young Barack and Michelle Obama. He was a crusader for civil rights, the founder of the Charles Hamilton Houston Institute for Race and Justice, and a prolific author who investigated police conduct in black communities and the role of race in capital punishment, long before the rise of the Black Lives Matter movement.

An op-ed by Benjamin Eidelson: In two weeks, the Supreme Court will consider President Trump’s decision to end the Deferred Action for Childhood Arrivals policy, better known as DACA. Many expect a sharply divided decision in the spring, just as the presidential campaign picks up steam. But a different path would better serve both the court and the country. By resolving the case on narrow grounds, the justices could steer clear of the political fray and their own jurisprudential divisions. Such a ruling would leave DACA in place for now, but leave the policy’s ultimate fate to the political process — reaffirming the vital distinction between law and politics.

This week has seen some of the most damning testimony yet in the impeachment inquiry into President Trump. Meanwhile, some House Republicans took it upon themselves to storm into a secure briefing room to complain about the levels of transparency in the process. Harvard Law Professor Noah Feldman joins Walter to explain why the impeachment fight tests the very limits of the U.S. constitution.

Sen. Lindsey Graham's resolution to the Senate condemning the House impeachment inquiry into President Donald Trump has "absolutely no substance," said a constitutional scholar, and is full of "phony objections." The resolution brought by the South Carolina Republican is co-signed at the time of writing by 46 of his party colleagues in the Senate. It accuses House Democrats of a lack of due process and transparency in their impeachment inquiry. ... "Senator Graham's resolution has absolutely no substance," Laurence Tribe, Carl M. Loeb University Professor and professor of constitutional law at Harvard, and a prominent critic of Trump, told Newsweek. "I looked at it carefully to see if any of its process complaints made sense historically, legally, or morally. I could find nothing in it worthy of being taken seriously. "And the fact that it focuses entirely on phony objections to a completely fair and traditional process speaks volumes about how little the Republican senators have to say in defense of what the president has done in shaking down a vulnerable ally for his own personal benefit."

A federal judge on Thursday fined Education Secretary Betsy DeVos for contempt of court, ruling that she had violated an order to stop collecting on loans owed by students from a now-defunct for-profit chain of colleges. ...The decision stems from a class-action lawsuit filed in 2017 by the Project on Predatory Student Lending of the Legal Services Center of Harvard Law School and the group Housing and Economic Rights Advocates, both of which represent former Corinthian students. For more than a year, the students’ lawyers argued that Ms. DeVos had illegally punished thousands of cheated students who were owed relief from the federal government. Toby Merrill, director of the project, said that the ruling demonstrated “the extreme harm” of Ms. DeVos’s actions. “Secretary DeVos has repeatedly and brazenly violated the law to collect for-profit college students’ debts and deny their rights, and today she has been held accountable,” she said.

A person familiar with the matter stunningly confirmed the following on Thursday: the U.S. Department of Justice (DOJ), the nation’s highest law enforcement organization, is now criminally investigating whether former special counsel Robert Mueller‘s Russia probe was based on improper activity by the Federal Bureau of Investigation (FBI). Legal experts were astonished. ... Harvard Law Professor Laurence Tribe told Law&Crime that he also has his doubts about the legitimacy of the probe, suggesting that it could be a ploy to distract from impeachment. “Durham’s reputation is very solid, but then so was Barr‘s before he came into the Trump orbit. In any event, it’s hard for me to imagine what federal crime Barr purports to be investigating,” he said. “It looks very much like this is simply a way of giving President Trump some talking points about the Russia probe being under criminal investigation.”

A constitutional scholar tells CNN’s Fareed Zakaria that American democracy is in real danger of failing if the House of Representatives fails to impeach President Donald Trump. In a clip aired on CNN Friday morning, Harvard Law School professor Noah Feldman tells Zakaria that the mechanics of the Constitution make it clear that impeachment is the sole way an American president can be held accountable for high crimes and misdemeanors. In particular, Feldman says that he believes it is wildly implausible to argue that Trump was not seeking a thing of personal value from Ukraine when he asked its government to launch an investigation into former Vice President Joe Biden. “It’s extremely clear that it is a quid pro quo,” he said. “It’s laughable to think that the president was not trying to gain personally by investigating Joe Biden.”

As the FBI’s top lawyer, Jim Baker once butted heads with Apple Inc. and CEO Tim Cook over the tech giant’s refusal to help law enforcement unlock the San Bernardino, California, shooter’s iPhone. Now, three years later, Baker has done an apparent about-face—he’s espousing strong encryption as being vital to national security.  Baker wrote earlier this week in a blog post for Lawfare that he’s had time to reflect and make “efforts to embrace reality with respect to some aspects of several interrelated subject areas that have comprised a substantial part of my career: national security, cybersecurity, counterintelligence, surveillance, encryption and China. “In the face of congressional inaction, and in light of the magnitude of the threat, it is time for governmental authorities—including law enforcement—to embrace encryption because it is one of the few mechanisms that the United States and its allies can use to more effectively protect themselves from existential cybersecurity threats, particularly from China,” he added. “This is true even though encryption will impose costs on society, especially victims of other types of crime.”  Baker was the FBI’s top lawyer from 2014 until late 2017. He left the bureau last May and now serves as director of national security and cybersecurity for the R Street Institute, a nonprofit, nonpartisan, public policy research organization based in Washington, D.C. He’s also a CNN legal analyst and lecturer at Harvard Law School.

An op-ed by Noah Feldman: To understand where the impeachment inquiry has gone so far, and where it’s likely to go next, you need to keep in mind one key concept. Hint: it’s not quid pro quo. It’s momentum. To date, House Democrats have built on the original whistle-blower’s document by eliciting behind-closed-doors depositions from those officials in the State Department, Defense Department, and White House who are willing to defy Donald Trump’s order not to participate. By leaking the headlines of their testimony, the Democrats have been able to dominate the news cycle for weeks.

Education Secretary Betsy DeVos was held in contempt of court and the Education Department must pay a $100,000 fine after a federal judge ruled it failed to stop collecting student loans on a now-defunct college. The rare rebuke came after U.S. Magistrate Judge Sallie Kim was "astounded" to discover that DeVos and her department continued to chase more than 16,000 former students from the bankrupt Corinthian Colleges Inc. for funds allegedly owed earlier this month despite a 2018 order to stop. ...In an interview with Newsweek prior to this week's hearing, Harvard lawyer Toby Merrill said that such a finding would be inevitable as there was "no factual question" that DeVos violated the 2018 order. Merrill is the director of the Project on Predatory Student Lending at Harvard University who brought about the class action suit on behalf of 80,000 affected students against the Education Department. ..."Taking this rare and powerful action to hold the Secretary of Education in contempt of court shows the extreme harm Betsy DeVos' actions have caused students defrauded by for-profit colleges," she said. "Secretary DeVos has repeatedly and brazenly violated the law to collect for-profit college students' debts and deny their rights, and today she has been held accountable.  

Professor Laurence Tribe told Anderson Cooper if there were ever an example of a high crime or misdemeanor the call President Trump had with Ukrainian President Zelensky is it. Tribe said Wednesday night the Ukraine call makes the "Nixon situation" look silly in comparison. "If there were ever a model case for an impeachable offense, a high crime and misdemeanor that includes bribery this is it," Tribe declared. "This is just the most transparently clear abuse of power and an impeachable offense that I can remember in the history of the United States," Tribe said. "And I've studied it pretty thoroughly. This makes the Nixon situation look silly by comparison. This is way more serious."

Defenders of President Donald Trump have gone past their “no quid pro quo” claim to allege “hearsay” to denounce the testimony of acting ambassador William Taylor that further implicated the president in the growing Ukranian scandal. Also on the defensive, Sen. Lindsey Graham told reporters Thursday that he and Senate Majority Leader Mitch McConnell will introduce a resolution to condemn the impeachment inquiry. He is urging the House to make the hearings public and allow for cross-examination — something Democrats are reportedly planning to do sometime in November. To discuss, Jim Braude was joined by Jennifer Taub, a professor at Vermont Law School and a visiting professor at Harvard Law this semester who also serves on the Board of Advisors for the group Impeach Trump Now, and William Weinreb, former acting U.S. Attorney and lead prosecutor of Boston Marathon bomber Dzhokhar Tsarnaev.

Pulitzer Prize-winning reporter James B. Stewart ’76 talks about his new book, “Deep State: Trump, the FBI, and the Rule of Law," and the president's ongoing battle with the nation’s top law enforcement agencies.

...Only a few years ago, such “deepfakes” were a novelty, created by hobbyist coders. Today, they are increasingly commodified as yet another service available to those with even a little disposable cash. ...One way to deal with this would be through enacting clear regulation. Mutale Nkonde, a fellow at the Berkman Klein Center at Harvard University, was among those involved in helping draft the Defending Each and Every Person from False Appearances by Keeping Exploitation Subject (DEEPFAKES) to Accountability Act. “It became incredibly important to enter a piece of legislation,” she says. “As we move towards 2020, we may be subject to supposed video evidence and we need a way of identifying what may look real [but is not].” She says that there are fears that both China and Iran could turn to deepfakes as a tool to attack the US.

In the summer of 2016, Hillary Clinton was heavily favored to become the next president of the United States. And one story was dominating coverage of her campaign: her emails. Following Donald Trump’s election, researchers at Harvard University’s Berkman Klein Center for Internet & Society found that media coverage of the Clinton campaign overwhelmingly focused on scandals surrounding her campaign, rather than policy issues. Coverage of the Trump campaign, on the other hand, favored policy over scandals.

Facial-recognition software correctly matched photos of research volunteers to unidentified medical scans of their heads, in a new study of images that are commonly used in brain research. The finding draws attention to a privacy threat that will increase with technology improvements and the growth of health-care data, experts in medical imaging and facial recognition said. ...The findings suggest existing privacy protections don’t go far enough, the study’s authors said. They also point to the continuing challenge of anticipating new risks from emerging technology, as well as to the need for caution in handling medical data, said I. Glenn Cohen, director of Harvard University’s Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics. “Our imaginations are only so good,” he said.