Media Mentions

Criminal prosecution exacts punishment; impeachment upholds the Constitution and prevents further assaults on it. Many Americans, but far from a majority, think President Trump has committed impeachable acts but are wary of impeaching without hope of removal. However, if there is an indication that severe damage to the Constitution will occur unless Trump is removed, the House must act, and then engage public opinion to pressure the Senate. ... Constitutional scholar Laurence Tribe tells me, “Even if the district court’s order to release the Flynn-Kislyak transcripts goes further than justified by the sentencing matter before the court, I would’ve thought that, in a government of laws, the only way to avoid compliance is to take an appeal to a higher court.” The government made its arguments to the court, did not obtain a stay to our knowledge and did not seek an emergency appeal. From all appearances, the Trump administration has deliberately and willfully defied a court order.

An oped by Noah Feldman: When the government takes your property, the Constitution entitles you to “just compensation.” But should the value of your property be computed based on market value, which would normally incorporate predictions about future government action? Or should the value of your property be determined without any reference to what the government might do — including take your property?

The Jewish festival of Purim was in full swing: Music was blasting, family and friends were bouncing to the beat, and 6-foot-3 Cory Booker was laughing and dancing while carrying a 5-foot-6 Orthodox rabbi in a clown suit on his back. ... “Within about five minutes of meeting Cory, I went over to someone and said, ‘Let me introduce you to the guy who is going to be the first black president of the United States,’ ” said Noah Feldman, now a Harvard Law School professor.

BlackRock Inc. (BLK), Vanguard, and State Street Global Advisors, a division of State Street Corporation (STT), were the subject of a May 2019 treatise from Harvard’s John M. Olin Center for Law, Economics, and Business. The report, entitled “The Specter of the Giant Three,” asserts that corporate voting will be dominated by the “the big three,” given that index funds are expected to continue to grow at a rapid pace. Report writers Lucian A. Bebchuk and Scott Hirst “document that the Big Three have almost quadrupled their collective ownership stake in S&P 500 companies over the past two decades.” More importantly, “they have captured the overwhelming majority of the inflows into the asset management industry over the past decade.”

An op-ed by Cass Sunstein: Parody and satire are a legitimate part of public debate. Doctored videos are all over the place. Some are funny. Some are meant to make a point. Arguments of this kind are being made to support Facebook’s decision not to take down the doctored video of House Speaker Nancy Pelosi, in which she was made to appear drunk or otherwise impaired. One version, posted on the Facebook page Politics WatchDog, was seen over two million times in just a few days. There is no question that many viewers thought that the video was real. Acknowledging that it was fake, Facebook said, “We don’t have a policy that stipulates that the information you post on Facebook must be true.”

An op-ed by Noah Feldman: The sphinx finally spoke: But much like his ancient predecessor, special counsel Robert Mueller didn’t resolve any mysteries. At his surprise news conference Wednesday to announce his retirement, Mueller essentially repeated what he had written in his report. He didn’t take questions. He said he didn’t plan to say anything more in public. And he warned Congress that if called to testify, he wouldn’t say anything beyond what was in the report — which he called “my testimony.”

Attorney General William P. Barr and the Trump White House banked on precisely the sloth we saw after release of the report from special counsel Robert S. Mueller III. They correctly anticipated that the public wouldn’t read it, that cable-news coverage would be superficial at best (and at worst misleading), and that President Trump’s cult would take on faith whatever he said either was or wasn’t in the report. The headlines and screen crawlers announcing “Mueller couldn’t indict!” and “Mueller says it’s up to Congress!” — who knew!? — suggest they were right. ... In an email, constitutional scholar Laurence H. Tribe told me, “Expressed in plain English, Mueller said: ‘READ MY REPORT. It says I COULDN’T indict a sitting president. If my office could’ve concluded he was innocent of criminal conduct, we would’ve said so. We couldn’t so we didn’t. Only Congress can hold this sitting president accountable. The ball is in Congress’s court now.’”

If a Supreme Court vacancy opens up during next year’s election cycle, Senate Majority Leader Mitch McConnell (R-Ky.) said he would take a markedly different approach than he did in 2016. “Oh, we’d fill it,” McConnell said on Tuesday at a lunch talk in Paducah, Kentucky, that was streamed online by WPSD. CNN first called attention to the remarks. In 2016, within hours of Justice Antonin Scalia’s death, McConnell issued a statement saying that “this vacancy should not be filled until we have a new president.” McConnell went on to successfully block President Barack Obama’s Supreme Court nominee Merrick Garland from receiving a hearing. ... “The stakes are enormous because if you replace Scalia with an Obama appointee, then you probably have five justices on the court that are going to move the court in a much more progressive direction,” Jack Goldsmith, U.S. assistant attorney general during the George W. Bush administration, told FRONTLINE.

Artificial intelligence coupled with satellite imagery could soon deliver plaintiffs in climate litigation real-time data on carbon dioxide emissions from power plants around the world. It potentially opens a new front in holding the energy industry accountable for the impacts of those emissions on the climate. ... Shaun Goho, deputy director of the Emmett Environmental Law and Policy Clinic at Harvard Law School said the technology could make it easier for plaintiffs to establish that power plants are violating their permit limits. It would depend on whether judges accept its results as reliable, he said. “I am sure that defendants would contest it at first, but if courts start to accept the data from this technology, then it could lighten the information-gathering burden on plaintiffs,” Goho said.

This year's Harvard Law School Class Day had many firsts: Roberta “Robbie” Kaplan ’88 was the first openly gay person to speak at the occasion, addressing the school’s first majority-woman graduating class, whose members had performed a record-breaking 390,095 hours of pro bono work. ... Former president Bill Clinton has called Kaplan a “true American hero” for her role in the case, and Loeb University Professor Laurence Tribe, a leading constitutional-law scholar, has said that he cannot “think of any Supreme Court decision in history that has ever created so rapid and broad a lower-court groundswell in a single direction as Windsor.”Windsor in turn laid the groundwork for the 2015 case Obergefell v. Hodges, which established marriage equality nationwide.

An op-ed by Noah Feldman:  Abortion rights aren’t appreciably more in danger after Tuesday’s U.S. Supreme Court ruling on two Indiana laws than they were before. But it’s clear that the drums are beating — and judicial war over abortion is coming, like it or not. The court upheld an Indiana law that says fetal remains can’t be “incinerated” with other medical waste but may be simultaneously “cremated.” Seven of the nine justices agreed with this judgment, signaling that the court’s liberals (except Justice Ruth Bader Ginsburg) didn’t want a fight over the law. Avoidance was made easier by the fact that abortion-rights activists did not claim the law unduly burdened a woman’s right to choose. At the same time, the Supreme Court refused to reconsider a court of appeals decision that struck down Indiana’s law banning abortion providers from knowingly aborting a fetus for reasons of its race, sex or disability. That means the law will never take effect, and selective abortions will remain legal in Indiana.  

A book review by Noah Feldman; This year is a propitious time for Stephen Budiansky’s new biography of Justice Oliver Wendell Holmes Jr. Exactly a century ago, dissenting in the case of Abrams v. United States, Holmes invented the metaphor of the marketplace of ideas, single-handedly laying the groundwork for the modern constitutional protection of freedom of speech. A year later, writing for the Supreme Court’s majority in Missouri v. Holland, Holmes inaugurated the metaphor of the living Constitution. Such a constitution should properly be interpreted “in the light of our whole experience, and not merely in that of what was said a hundred years ago.” Not bad for a man who was already 78 years old in 1919 — and who had been three times wounded in the Civil War, escaping an early death by just inches. When Holmes wrote in the Missouri case that it had cost the framers’ successors “much sweat and blood to prove that they created a nation,” it was his own blood and that of his closest friends that he had in mind.

Kenya’s High Court on Friday upheld laws that criminalize gay sex, declining to join the handful of nations that have recently abolished a prohibition imposed by Britain during the colonial era. ...“A sad day for the rule of law and human rights,” said [HLS S.J.D. candidate] Eric Gitari, a co-founder of the National Gay and Lesbian Human Rights Commission, a Kenyan civil rights group, who was one of the petitioners in the case. He said he and others would appeal the ruling.

Kenya's High Court has chosen to uphold colonial-era laws that criminalize gay sex, dashing the hopes of activists who believed the judges would overturn sections of the penal code as unconstitutional and inspire a sea change across the continent. ... The case stems from to a petition filed in 2016 by activist Eric Gitari [HLS S.J.D. candidate], with the support of organizations serving LGBTQ Kenyans. They argued that two sections of Kenya's penal code violated people's rights: Article 162 penalizes "carnal knowledge ... against the order of nature" with up to 14 years in prison, and Article 165 castigates "indecent practices between males" with the possibility of five years' imprisonment. The judge in that case concluded Gitari's concerns were "weighty and require debate," sending it to a bench of judges.

An op-ed co-written by David J. Harris, managing director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, and Monica Cannon-Grant, founder and director of Violence in Boston: Boston Mayor Marty Walsh recently submitted his proposed fiscal 2020 operating and capital budget to the Boston City Council. From April 22 to May 21, the City Council held hearing after hearing on specific line items and proposed capital improvements. In all of this deliberation, there was one glaring omission: no hearing, and not a single line-item, on violence prevention. As temperatures rise and city officials hold forth about plans to combat an anticipated increase in violence, the city lacks any comprehensive plan for violence prevention.

The United States' largest interstate electricity market will soon hold a multibillion-dollar auction to determine which power plants will supply it in the years to come. But more than six months after FERC tossed out the rules PJM had planned for the capacity market over the fairness of nuclear subsidies, federal regulators have yet to approve a rewrite — leaving some power players on edge ... Others are less concerned FERC will alter the results of the auction even if it proceeds under the invalidated rules. Ari Peskoe, director of the Harvard Electricity Law Initiative, said the commission typically avoids issuing refunds in wholesale power markets and is unlikely to order the auction be re-run. The most probable conclusion, he said, is that PJM runs its auction under invalidated rules this year, and then FERC approves new rules PJM proposed last year ahead of next year's auction.

An op-ed by Cass Sunstein: Andrew Wheeler, administrator of the Environmental Protection Agency, recently released an important memorandum that makes terrific sense. In principle, it should improve the EPA’s performance -- and receive bipartisan applause. In practice? Well, that might be another story. The background is provided by two Supreme Court decisions. In 2009, the court ruled that whenever a congressional enactment is ambiguous, the EPA has the authority to consider the costs of its regulations and to weigh them against the benefits.

An op-ed by Nancy Gertner and P. Sabin Willett: Federal officials roaming the states, seizing persons deemed “illegal” under federal law, detaining them, transporting them elsewhere. States objecting; communities declaring themselves “sanctuary cities.” This narrative did not begin with the Trump administration’s immigration enforcement. It hearkens to an earlier time, an infamous chapter of American history. Once before, residents of Massachusetts and other northern states were deemed “illegal” under federal law, rounded up by federal authorities and shipped south — to the slave states whence they had escaped. While slavery disappeared from Massachusetts soon after the republic was founded, it survived in many southern states. Free or not, Massachusetts citizens were subject to federal law, and that meant the reach of the federal Fugitive Slave Acts, a pair of laws passed in 1793 and 1850.

An op-ed by Joi Ito, an affiliate of the Berkman Center, and is the director of the MIT Media Lab: I was on the board of the International Corporation for Names and Numbers (ICANN) from 2004 to 2007. This was a thankless task that I viewed as something like being on jury duty in exchange for being permitted to use the internet, upon which much of my life was built. Maybe people hate ICANN because it seems so bureaucratic, slow, and political, but I will always defend it as the best possible solution to something that is really hard—resolving the problem of allocating names and numbers for the internet when every country and every sector in the world has reasons for believing that they deserve a particular range of IP addresses or the rights to a domain name. ... Originally early Internet pioneer Jon Postel ran the root servers that managed the names and numbers, and he decided who got what. Generally speaking, the rule was first come first serve, but be reasonable about the names you ask for. A move to design a more formal governance process for managing these resources began as the internet became more important and included institutions such as the Berkman Center, where I am a faculty associate. The death of Jon Postel accelerated the process and triggered a somewhat contentious move by the US Commerce Department and others to step in to create ICANN.

An op-ed by Noah Feldman:  Impeachment has jumped the shark. The episode that proves it is the one in which serious, informed politicians are wondering if President Donald Trump actually wants to be impeached for political advantage and is trying to goad Democrats into obliging him. It would be impossible to imagine a more preposterous scenario under the Constitution and in the history of the presidency. Impeachment was intended by the constitutional framers as a highly serious option reserved for only the most extraordinary, egregious violations of the rule of law. Today’s discussion treats impeachment as a trivialized gambit within the ordinary game of electoral politics. The undermining of the constitutional ideal is near-total. It’s almost laughable.

If and when journalists read the best analysis to date of the second part of special counsel Robert S. Mueller III’s report, they’ll be in for a shock. ... Enter Harvard Law Professor Jack Goldsmith, widely regarded as a leading expert — perhaps the leading expert working today — on national security law. Formerly the assistant attorney general for the Office of Legal Counsel (where Justice’s brightest minds gather), Goldsmith now teaches at Harvard and writes for the website Lawfare, which he co-founded.Two weeks ago, Goldsmith issued an assessment of the second part of the special counsel’s report; on Thursday, he posted a follow-up to that assessment. In both pieces, with logic and detail, Goldsmith destroys claims of obstruction of justice by those unwilling to come to grips with the fact that the Mueller investigation is over. His analysis is tough, slogging through statutes, opinions and high principles of constitutional law, but at the end of the second essay, Goldsmith bluntly concludes that “the talented lawyers in the special counsel’s office ... include[d] at the center of the legal analysis in Volume II a transparently weak argument — so weak that it has no defenders.”