Media Mentions

Good Sunday morning, and welcome to a special edition of the DealBook Briefing, where we’ll take a deep dive into Pinterest’s upcoming public offering. It’s the second of many decacorns — $10 billion-plus start-ups — to go public this year. And it could be an indicator of what’s to come during the rest of 2019. ... But the practice is increasingly controversial among governance experts. And Kobi Kastiel and Lucian Bebchuk from Harvard Law School have warned that the dual-class structure may “significantly decrease the economic value of Pinterest’s low-voting shares.”

Nearly a decade after Army intelligence analyst Chelsea Manning shared classified materials with WikiLeaks, the site’s founder, Julian Assange, was arrested in London for his role in the disclosures. The Harvard Gazette recently spoke with three faculty members, including Yochai Benkler, the Harvard Law professor who has publicly defended the disclosure as whistleblowing.

“Reaching out to others is how you find out who you really are,” said Daniel Nagin, vice dean of experiential and clinical education and faculty director of the WilmerHale Legal Services Center of Harvard Law School (HLS). He was quoting the late HLS Professor Gary Bellow, LL.B. ’60, who in 1979 co-founded the Jamaica Plain center with his wife, senior lecturer in law Jeanne Charn, J.D. ’70. On April 5, Nagin and others celebrated the center’s 40th anniversary, and the quote strikes at the heart of the center’s mission of improving the legal profession through experiential learning while working with community organizations to enact real and lasting change.

Nearly a decade after Army intelligence analyst Chelsea Manning shared classified materials illegally downloaded from Defense Department computers with WikiLeaks, the site’s founder, Julian Assange, was arrested in London for his role in the 2010-11 disclosures. ... To better understand the legal, national security, and journalistic tensions at issue, the Gazette spoke with Harvard faculty members Yochai Benkler, Rolf Mowatt-Larssen, and Nicco Mele.

Backing off a confrontation with the Trump administration, judges at the International Criminal Court said Friday that they had rejected their own prosecutor’s request to open an Afghanistan war-crimes investigation, which could have implicated American forces. ... “The perception will be that the court cowed to Washington, but the judges are being realistic,” said Alex Whiting, a former American prosecutor at the court who now teaches at Harvard Law School. He said that lessons drawn from recent setbacks and failed cases at the court showed it must focus on situations where it can succeed. “The prosecution has already come to that realization and now the judges are too,” he said.

An article by Alex Whiting: In a surprise decision, a Pre-Trial Chamber at the International Criminal Court (ICC) has rejected the Prosecutor’s request, filed nearly 18 months ago, to open an investigation of war crimes and crimes against humanity in Afghanistan, including of allegations that U.S. forces and the CIA committed acts of torture there. In light of recent threats from both National Security Advisor John Bolton and Secretary of State Mike Pompeo to retaliate against the ICC if such an investigation proceeded, and the U.S government’s recent cancellation of the ICC Prosecutor’s visa to travel to the U.S., there is already a perception that the Court caved to U.S. pressure. An examination of the larger context of the case, however, and the ICC’s current challenges, suggests that this view is incomplete. In fact, this decision will likely come to be seen as the beginning of a broader effort by the judges and the Prosecutor to orient the Court’s very limited resources toward those investigations where there exists some meaningful prospect of success.

A book review by Randall Kennedy: Valerie Jarrett was a senior adviser to President Barack Obama during both his terms; is a close friend to Michelle Obama; directed an important real estate firm; and has served as chair of the Chicago Transit Authority Board, chair of the Chicago Stock Exchange and chair of the board of trustees of the University of Chicago Medical Center. She chaired the White House Council on Women and Girls and co-chaired the White House Task Force to Protect Students From Sexual Assault. She sits on the boards of directors of Ariel Investments and Lyft and is a distinguished senior fellow at the University of Chicago Law School. Jarrett is, in short, a big deal.

When more than 100 members of Congress raised worries in 2014 over plans to include Brunei in a sweeping Pacific trade deal, envoys from the tiny sultanate rushed to Washington with a message: We may be thinking about stricter Islamic laws, but we won’t really enforce them. The damage-control mission by Brunei — an oil-and gas-rich patch of coast and rain forest on the island of Borneo — came after its sultan began the first phase of sharia-inspired laws, U.S. officials said. At the time, the Obama administration was deep in negotiations over the Trans-Pacific Partnership, or TPP, with Brunei and others in the historic deal. “It hasn’t come out of nowhere. Brunei has gradually developed in this direction,” said Dominik Müller, a social anthropologist at the Max Planck Institute in Halle, Germany, and a visiting fellow at Harvard [Program on Law and Society in the Muslim World] who studies Islam’s impact in Southeast Asia. He pointed to a 2011 speech where the sultan said implementing sharia law was a “divine obligation” that he may be “asked about on judgment day.”

The charge sheet accusing Julian Assange of engaging in criminal theft of US state secrets contains a direct assault on fundamental press freedoms and could have a devastating effect on the basic acts of journalism, leading first amendment scholars and advocacy groups have warned. ... Yochai Benkler, a Harvard law professor who wrote the first major legal study of the legal implications of prosecuting WikiLeaks, said the charge sheet contained some “very dangerous elements that pose significant risk to national security reporting. Sections of the indictment are vastly overbroad and could have a significant chilling effect – they ought to be rejected.”

WikiLeaks founder Julian Assange was arrested in London on Thursday, after hiding out in the Ecuadorian Embassy in London since 2012. U.S. authorities now want to charge the man whose website had published hundreds of thousands of classified and sensitive U.S. government documents. U.S. lawmakers have long regarded the large-scale leaks published by WikiLeaks as a threat to national security, but it was not entirely clear what crime they would be able to charge him with—Assange himself, so far as anyone knew, had not stolen any information but instead merely published it. ... That was the extent of Assange’s involvement in anything technical—a single failed attempt to help Manning figure out a password. That could make it difficult to pin a CFAA charge on Assange since there’s no evidence that he ever used a stolen password or cracked it (or even really tried to crack it!) to access a computer without authorization. But a person can be found guilty of conspiring to commit a crime even if they do not actually commit that crime, Harvard Law School lecturer Kendra Albert explained. “A successful conspiracy charge does not require you to actually violate the underlying statue,” Albert told me. “The government doesn’t need to prove that the CFAA was actually violated.”

An uphill fight awaits defense lawyers who are representing former congressman Robin Hayes and campaign donor Greg Lindberg in a pending federal corruption case, legal experts say. Still, those lawyers are likely to use court motions to challenge the government’s central assertion — that Hayes, Lindberg and two of Lindberg’s associates took part in a scheme to bribe North Carolina insurance commissioner Mike Causey. ... Several legal experts agreed that at least some of the defendants will likely plead guilty instead of going to trial. That’s what happens in 97 percent of federal criminal cases, said Harvard Law School professor Nancy Gertner, a former federal judge. “In a situation where the government has tapes, the pressure to plead guilty is substantial,” Gertner said.

An op-ed by Noah Feldman: The arrest of Julian Assange presages a free-speech debate that we’ve been avoiding for the seven years he was living in the Ecuadorean Embassy in London: Can Assange be lawfully prosecuted for somehow facilitating illegal theft of classified information? Or is the organization he founded, WikiLeaks, protected by the First Amendment when it publishes documents supplied by others, like the New York Times when it published the Pentagon Papers?

President Trump’s move Wednesday to limit the power of states to block oil and gas pipelines is representative of what critics say is his administration’s hypocritical approach to “cooperative federalism.” The Trump administration has rejected former President Barack Obama’s muscular approach of using federal government power to combat climate change — deferring action to states to plan for reducing greenhouse gas emissions in the electricity sector. ... “Instead of pulling up the laggards and unleashing the leader states to do more, Trump is empowering the laggard states while blocking the leaders [like California],” said Jody Freeman, a Harvard Law School professor who served as counselor for energy and climate change in the Obama White House. “It’s a remarkable turnaround.”

A conversation with lawyer David McCraw about the legal issues behind the news stories and his experiences at The New York times defending freedom of speech. In October 2016, when Donald Trump’s lawyer demanded that The New York Times retract an article focused on two women that accused Trump of touching them inappropriately, the letter of refusal went viral. But for a first amendment lawyer, this is just another day at the office. McCraw is Deputy General Counsel at The New York Times. He is an adjunct professor at the NYU School of Law and a visiting lecturer at Harvard Law School. He is the author of Truth in Our Times: Inside the Fight for Press Freedom in the Age of Alternative Facts.

Last fall, Laurence Tribe fell headlong into love. Legalistic love, that is. It was a platonic affair of the mind at the New York Theatre Workshop in the East Village, where he had secured a ticket to Heidi Schreck’s whip-smart piece about the framers’ masterpiece: “What the Constitution Means to Me.” So smitten was Tribe — a renowned constitutional scholar who has taught at Harvard Law School since 1968 — that he decided he had to meet Schreck. A journey through Google and other related searches led to an email exchange and a get-together, where the academician and the artist exchanged ideas and vowed to meet again, sometime soon.

The Post reports: Attorney General William P. Barr said Wednesday he thought “spying” on a political campaign occurred in the course of intelligence agencies’ investigations into Russian interference in the 2016 election — a startling assertion by the nation’s top law enforcement official. ... This is the language of a PR spinner, not the attorney general of the United States. As my colleague Aaron Blakepoints out, “spying” is a loaded phrase and a political accusation. ... Constitutional lawyer Laurence H. Tribe tells me, “Attorney General Barr is surely among the ‘civil Officers of the United States’ subject to removal pursuant to the impeachment clause, Art. II, §4, and I don’t doubt based on his March 24 letter, his subsequent shifting and shifty pronouncements, and his disgraceful testimony yesterday and today (including his wild and unsubstantiated accusations against the Obama Justice Department) that, whatever highly redacted document he releases as Mueller’s report next week, Barr has been gravely abusing the powers of his office, possibly (although not, in my view, certainly) to the degree of committing ‘high Crimes and Misdemeanors.’”

An op-ed by Cass Sunstein: After winning the presidential election, the White House finds itself under criminal investigation. It cries “witch hunt.” It attacks the Justice Department as “partisan.” It tries to discredit the “lying” press.” It refers to federal prosecutors as “liberal Democrats” and as “biased.” What is the attorney general to do? The question was posed in 1973, when Richard Nixon’s vice president, Spiro T. Agnew, was under federal investigation for corruption. Agnew was alleged to have accepted hundreds of thousands of dollars in kickbacks and bribes when serving as country executive, governor and vice president. Nixon, Agnew and other White House officials tried to terminate the investigation – even more fiercely, to discredit it. Everything depended on the choices of Nixon’s new attorney general, Elliot Richardson.

An op-ed by Noah Feldman: It’s hard to think of a more unlikely human rights hero than Kirstjen Nielsen, the outgoing secretary of homeland security. But if CNN’s reporting is accurate, Nielsen actually did sacrifice her job for the legal rights of asylum seekers when President Donald Trump instructed her to deny entry to immigrants who are protected by international refugee law. Nielsen also reportedly has spent the last several months resisting Trump’s pressure to separate families at the Mexican border, a policy that has been blocked by several courts while litigation against it continues.

Regulations preventing nonlawyers from holding equity in a law firm are just one piece of an outdated culture holding law firms back, and the market won’t wait for them to come around, two law professors warned a conference of legal industry marketers on Tuesday. Nonlawyers—or “allied professionals” in the speakers’ preferred language—within law firms are increasingly vital to the successful operations of the firm, according to Bill Henderson, a professor at Indiana University Maurer School of Law, and Scott Westfahl, professor of practice and faculty director at Harvard Law. ABA Model Rule 5.4, which prohibits non-lawyer ownership in a firm, has held these professionals back from full participation and investment in the organization—often to the firms’ detriment, the professors said. According to Westfahl, there was little basis for the logic behind the regulation — namely, that non-lawyer owners would put the commercial interests of the firm over those of the clients.

President Donald Trump had high praise for the nation’s attorneys general when he invited them to the State Dining room in March. “You are very special people and doing a very special and important job,” Trump told the gathering. Increasingly, however, their job is suing Trump. ... But it’s the partisan lawsuits against presidential administrations that are the biggest departure from the past. One reason, says former Maine Attorney General James Tierney, stems from a 2007 Supreme Court decision siding with Massachusetts and 11 other states against the EPA. The states successfully argued that the EPA is required to regulate greenhouse gases as pollutants.

Two law professors and a former law school dean have offered their public support to an Emory law professor suspended over the use of a racial slur. Affidavits from Harvard University’s Randall Kennedy, Princeton’s Keith Whittington, and Talbot “Sandy” D’Alemberte, the former president of Florida State University where he also served as the law school’s dean, were included in formal complaints calling for Emory’s censure. ... Kennedy—a former law clerk for U.S. Supreme Court Justice Thurgood Marshall and the author of a book on the use of the slur as a “linguistic weapon”—said Zwier’s use of the word “was neither careless nor malicious.”