Media Mentions

Alex Whiting has joined the Specialist Prosecutor’s Office (SPO) as Head of Investigations. Whiting, 54, is a prosecutor of French and US nationality with extensive experience of both domestic and international prosecutions, including stints at both the International Criminal Court (ICC) and the International Criminal Tribunal for the former Yugoslavia (ICTY), as well as a distinguished academic career, the SPO announced on Thursday. According to the SPO Whiting came to the SPO from Harvard Law School, where he had been a professor of practice since 2013.

In an interview with NPR, Sen. Kamala D. Harris (D-Calif.) opined that if the facts warrant it, President Trump should be indicted for crimes outlined in Robert S. Mueller III’s report: "There has to be accountability," Harris added. "I mean look, people might, you know, question why I became a prosecutor. Well, I'll tell you one of the reasons — I believe there should be accountability. Everyone should be held accountable, and the president is not above the law." ... Constitutional scholar Laurence Tribe agrees that another look at the OLC memo is needed. “The 2000 OLC memo, which basically echoed the 1973 OLC memo and its reasoning, should certainly be revisited by whatever presidential administration succeeds the one now in power. To begin with, the OLC memo was analytically flawed from the start and rested on a theory fundamentally incompatible with the core constitutional premise that nobody, and certainly no president, is above the law.”

President Trump has threatened to take legal action if Democrats try to impeach him, musing that he’ll “sue.” He has peppered confidants and advisers with questions about how an impeachment inquiry might unfold. And he has coined his own cheeky term — “the I-word” — to refer to the legal and political morass that threatens to overshadow his presidency as he heads into his 2020 reelection campaign. ... Trump’s assertions that he would sue to prevent impeachment have prompted some criticism in the legal community, with Laurence Tribe, a constitutional law professor at Harvard who has called for Trump’s impeachment, describing the idea as “idiocy” in a tweet. “Not even a SCOTUS filled with Trump appointees would get in the way of the House or Senate,” Tribe wrote.

A letter to the editor by Charles Fried: The media, including, I regret to say, The New York Times, have slipped into the habit of referring to people like Clarence Thomas, the justices who often vote with him, the Senate majority leader and those he leads, and journalists like Sean Hannity as “conservatives.” Of course they have nothing to do with conservatism as it has been known in the life of our country. True conservatives share the mind and temperament of Edmund Burke. They are men and women like Dwight D. Eisenhower, John Marshall Harlan, Sandra Day O’Connor, Bob Dole, Howard Baker and many more. Those who today are called conservatives for ease of reference are nothing of the sort. The historical and correct term is reactionaries.

Half of U.S. adults consider fake news a major problem, and they mostly blame politicians and activists for it, according to a new survey. A majority also believe journalists have the responsibility for fixing it. Differences in political affiliation are a major factor in how people think about fake news, as Republicans are more likely than Democrats to also blame journalists for the problem...Republicans take the idea of made-up news to “mean news that is critical of Trump,” rather than nonsense stories, said Yochai Benkler, a Harvard Law School professor who wrote a book on disinformation and right-wing media.

President Donald Trump's unscripted musings about the transgender military ban in an interview with Piers Morgan earlier this week could complicate his administration's efforts to argue in support of the policy in federal court. Legal experts told Newsweek that plaintiffs in several of the cases challenging the ban will take note of Trump's commentary, but cautioned that a conservative-leaning Supreme Court might be disinterested in interjections from the commander-in-chief...."What he is saying is actually inconsistent with what the government said on appeal," retired federal judge and Harvard Law School lecturer Nancy Gertner observed. "The government said that this did not apply to people in the process of getting gender dysphoria surgery, that it didn't sweep that broadly. The president's comments suggest that he wants it to sweep as broadly."

The kids’ climate lawsuit faces a critical inflection point: A trio of federal appellate court judges could breathe new life into the case or kill it altogether. The lawsuit—brought in 2015 by 21 youth plaintiffs ranging in age from 10 to 21—has already faced a yearslong winding road. The June 4 oral arguments mark the second time that judges on the U.S. Court of Appeals for the Ninth Circuit will consider whether to halt the case before trial. The Supreme Court has twice weighed in, the last time just 10 days before a trial was slated to begin. The case, Juliana v. United States, tackles a consequential issue, climate change, by asking novel questions involving big legal dogmas—the Constitution and the public trust doctrine—with potentially significant consequences. If the kids are successful, it could force the government to develop a comprehensive plan to reduce greenhouse gas emissions across multiple sectors of the economy...“I think the only way they lose” on standing “is if the court basically concludes that no one ever has standing to bring cases about climate change,” said Shaun Goho, deputy director and senior staff attorney at Harvard Law School’s Emmett Environmental Law & Policy Clinic. Goho helped write an amicus brief with a group of public health professionals backing the plaintiffs.

For much of her life, Linda Fairstein was widely viewed as a law enforcement hero. As one of the first leaders of the Manhattan district attorney’s sex crimes unit, later the inspiration for “Law & Order: Special Victims Unit,” she became one of the best known prosecutors in the country. She went on to a successful career as a crime novelist and celebrity former prosecutor, appearing on high-profile panels and boards. But since last Friday and the premiere of “When They See Us,” Ava DuVernay’s Netflix series about the Central Park jogger case, Ms. Fairstein has become synonymous with something else: The story of how the justice system wrongly sent five black and Latino teenagers to prison for a horrific rape...In a statement, a lawyer for Ms. Fairstein, Andrew T. Miltenberg, accused Netflix and Ms. DuVernay of “misrepresenting the facts in an inflammatory and inaccurate manner” and threatened to take legal action. (John C.P. Goldberg, a Harvard law professor and expert on defamation law, said that Ms. Fairstein’s position as a public figure would make it difficult for her to win a defamation suit.)

One day, a building designer told Aladdine Joroff about a way to help buildings adapt to floods. It involved letting water flow through the ground floor of a building, like a parking garage. Joroff: “And I asked, ‘Well, if it’s parking that has electric vehicle charging infrastructure, you know, what’s the impact?’ and he said it was something he hadn’t thought about.” That concerned Joroff, an attorney at Harvard Law School’s Emmett Environmental Law and Policy Clinic. Joroff: “It was just imagining infrastructure standing in a foot or 2 of salt water, particularly.”

Not long before Attorney General William P. Barr released the special counsel’s report on Russian interference in the 2016 election, he strategized with Senator Lindsey Graham, the Republican chairman of the Senate Judiciary Committee, about one of his next moves: investigating the investigators...Less than two months later, Mr. Barr began his cleanup with the most powerful of brooms: a presidential order commanding intelligence agencies to cooperate with his inquiry, and sweeping power to declassify and make public their secrets — even if they objected...Given the president’s threat to indiscriminately declassify every document related to the Russia investigation, Mr. Barr’s ability to persuade Mr. Trump to outsource those judgments to him is comforting, said Jack Goldsmith, a conservative former senior Justice Department official who has repeatedly criticized Mr. Trump. “There is no way to know now what Barr will find in his investigation or whether or how he will use this power,” said Mr. Goldsmith, who is also a Harvard Law School professor. “But Barr is not someone inclined to harm our national security bureaucracy.”

The Supreme Court has another big environmental case on its docket, as the justices today agreed to review a Superfund fight that could affect cleanup efforts across the country. The court will hear Atlantic Richfield v. Christian, a battle over an old copper processing site in Montana. At issue in the case is whether landowners can go to state court to seek money for restoration when EPA is already overseeing an effort under the Superfund law, officially known as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)...Harvard Law School professor Richard Lazarus said he was surprised by the Supreme Court's decision to take the case against the administration's recommendation. "That the U.S. Supreme Court nonetheless granted review is not good news for the respondents and strongly suggests that the minimum of four Justices who favored review are currently inclined to rule in favor of Atlantic Richfield," he said in an email to E&E News.

In just the last few weeks, activists have helped shut down fraternities at Swarthmore, ousted a dormitory leader at Harvard who had signed on as a lawyer for Harvey Weinstein and pushed Princeton to review the way it handles sexual assault complaints. Administrators have initiated talks with the protesters to address their concerns...Janet Halley, a legal and feminist scholar at Harvard, said she supported the right of students to demand that Ronald Sullivan Jr., a fellow law professor, be removed from his dormitory position for representing Mr. Weinstein. But she thought it “cowardly” of the university not to be more forceful in defending the legal principle at stake. “We’re living in a hyper-polarized time,” Dr. Halley said. “If we can all be fired because of people who can be offended, there’s going to be a gigantic housecleaning around here.”

Harvard Law School has formed a new partnership with Service to School’s VetLink program, an initiative that directly connects transitioning military veterans seeking higher education with partner schools that align with their academic goals, aspirations, and potential. This partnership aims to further grow the veteran student body of HLS, and provide guidance and opportunity to veterans who may be considering a law degree...Hailing from all services and both the officer and enlisted ranks, veterans form an important and growing community at Harvard Law School...During the 2018-2019 academic year, 45 U.S. military veterans were enrolled at HLS. This fall, HLS is projected to have approximately 20 veterans in the incoming class, the largest group in recent years.

Just hours before a panel of prosecutors and former Watergate figure John Dean was set to testify before the House Judiciary Committee, its chairman, Rep. Jerrold Nadler (D-N.Y.), announced that a deal had been struck to make available the “most important” underlying materials that were the basis for report by special counsel Robert S. Mueller III. ... Third, strong supporters of impeachment have put out a false narrative that casts the House as relatively helpless. Far from it. The House can get relief in the courts. Moreover, it seems Barr thinks that being held in contempt of Congress is enough of a threat to pry loose at least some evidence. “At least at first glance, this is a very promising development. It strongly suggests that even Bill Bar has his limits in terms of facing down a threat of being held in contempt by the House of Representatives,” says constitutional scholar Laurence H. Tribe. “This is incremental movement, and the pace is glacial, but the glass, though far from half full, no longer seems entirely empty.”

An article by Jack Goldsmith: President Trump’s delegation of a narrowly defined declassification authority to Attorney General Bill Barr has attracted criticism, notably on this site by my colleagues David Kris and Benjamin Wittes. I think these criticisms tell only one side of the story, and that the matter is more complicated than they let on.

In March the religious journal First Things published a short manifesto, signed by a group of notable conservative writers and academics, titled “Against the Dead Consensus.” The consensus that the manifesto came to bury belonged to conservatism as it existed between the time of William F. Buckley Jr. and the rise of Donald Trump: An ideology that packaged limited government, free markets, a hawkish foreign policy and cultural conservatism together, and that assumed that business interests and religious conservatives and ambitious American-empire builders belonged naturally to the same coalition...Then alongside these practical power plays and policy moves, the post-fusionists want something bigger: A philosophical reconsideration of where the liberal order has ended up. How radical that reconsideration ought to be varies with the thinker...Maybe it means reinventing the Catholic anti-liberalism of the 19th century, and embracing the “integralism” championed by, among others, Adrian Vermeule of Harvard Law School.

An op-ed by Noah Feldman: Increased scrutiny from antitrust regulators represents a meaningful threat for the biggest tech companies. That’s what the market seems to believe: Alphabet Inc., Apple Inc., Amazon.com Inc. and Facebook Inc. 1 all lost value Monday, presumably on the expectation that all have at least some monopolistic features that might be reined in by newly vigilant regulators. But keep in mind that there’s a big difference between President Donald Trump’s administration stepping up regulation and the existential threat of breakup. The way to think of the difference is this: Under existing antitrust law, the big tech companies won’t be broken up. If, however, regulators and the courts decide to reimagine antitrust law in new ways, then the risk of breakup would rise precipitously.

An op-ed by Noah Feldman:  Senate Republicans are learning to rue the day Congress gave presidents extensive authority in the International Emergency Economic Powers Act. The latest nail in the coffin of legislative influence is President Donald Trump’s invocation of his emergency powers to impose a tariff on Mexican products to force the country to crackdown on Central American asylum-seekers trying to reach the U.S.  No Senate Republican has come out in support of Trump’s action, and many are vocally opposed. Yet despite the certainty of legal challenges if the tariff goes into effect as planned Monday, odds are reasonably high that Trump can get away with it.

A real estate firm owned in part by Jared Kushner reportedly received $90 million in foreign funding from "an opaque offshore vehicle" after the son-in-law of President Donald Trump began working as a senior adviser at the White House. ... "The conflicts that have swirled around Jared Kushner have only grown more distressing with time," Harvard Law School professor Laurence Tribe told Salon by email. "Besides being the president’s son-in-law, he is a scion of a family, whose wealth is intertwined with Jared’s many roles in the Trump administration, roles that have put him virtually in bed with, among other bloody despots, Saudi Crown Prince MBS, with whom Jared hobnobbed right after MBS sent a team of thugs to brutally torture, murder and dismember a Washington Post critic of the Saudi regime. It would take a long time to enumerate the conflicts we know about. Those we don’t yet know about are neatly hidden away in the Cadre company, in which Kushner apparently has holdings valued at as much as $50 million."

An op-ed by Cass Sunstein:  New Zealand’s Labour coalition government has done something that could prove historic. Led by Prime Minister Jacinda Ardern, it has produced the world’s first “well-being” budget, focused explicitly on a single goal: using its limited funds to promote the well-being of its citizens.  Among other things, a lot of money will be devoted to three problems: mental illness, child poverty and family violence.

In the wake of Special Counsel Robert Mueller’s public statement that he was not confident President Donald Trump did not commit a crime, calls for impeachment have grown increasingly louder. ... Trump’s contention that the courts would bar Congress from impeaching him garnered a great deal of backlash in the press and amongst legal scholars, many of whom pointed out that the courts do not play a role in the impeachment process. Harvard law professor emeritus and frequent Trump defender Alan Dershowitz, however, penned an op-ed for The Hill on Friday arguing that the Supreme Court could, indeed, overrule the impeachment. ... Laurence Tribe, a renowned constitutional law professor at Harvard who recently authored the book To End a Presidency: The Power of Impeachment, previously told Time that Trump’s suggestion about judicial intervention was “idiocy,” adding that the Supreme Court is “very good at slapping down attempts to drag things out by bringing it into a dispute where it has no jurisdiction.”