Media Mentions

President Trump said today he is seriously considering declaring a national emergency to secure funding for a southern border wall. Harvard law school professor, Laurence Tribe and NBC news national security and justice reporter Julia Ainsley discuss questions surrounding the legality with Katy Tur. "Only an unforeseen crisis is a national emergency," says Tribe.

The current federal government shutdown, like all previous ones in the last century, was caused by an obscure law called the Anti-Deficiency Act. The law prohibits federal agencies from spending money that Congress hasn’t specifically appropriated and exists to prevent the president or agency heads from writing hot checks. The law was codified in 1905, but provisions of it date almost to the nation’s founding, as it developed from the long-running struggle between the executive branch and Congress over control of federal spending. ...One attempt to pursue a criminal complaint not only failed, but ended up creating a new loophole in the law. Professor Laurence Tribe agreed in 1987 to draft a legal memo for the special prosecutor looking into the Iran-Contra matter during the Reagan administration. Tribe did this for free, prompting three conservative groups active at the time, Citizens for Reagan, the Conservative Campaign Fund, and the the National Defense Council Foundation, to file charges with the Justice Department alleging that he was violating the Anti-Deficiency Act.

An amended complaint filed Monday in the lawsuit against the Harvard Law Review, Harvard Law School, and Harvard adds an additional plaintiff to the case, along with new charges alleging the Law School illegally uses affirmative action policies in its faculty hiring process. The new complaint marks the latest development in the ongoing lawsuit alleging the Law Review discriminates in its editor selection process. The University and the Law Review filed separate motions to dismiss the case in late December.

The Department of Justice's recent effort to toss lawsuits it says it wasted hundreds of hours investigating is emblematic of a strategy under President Donald Trump to rein in trial lawyers who are using a federal whistleblower law to seek millions of dollars. ...Prominent qui tam lawyers are now questioning the nomination of William Barr as attorney general, citing comments he made nearly 30 years ago questioning the constitutionality of private relators under the FCA. Some of the lawyers who signed a recent letter to U.S. Sen. Chuck Grassley criticizing Barr, including Harvard Law School Professor Nancy Gertner, participated in litigation against Celgene that the government declined to join but nevertheless generated $280 million in settlements and more than $30 million in legal fees.

On Sunday evening, in a time slot perfectly orchestrated to capture Golden Globes viewers and those aimlessly scrolling on social media, Kendall Jenner revealed – by way of a much-hyped announcement – that she is the newest face of Proactiv. In furtherance of the undoubtedly big-money endorsement deal, Jenner and Proactiv released a video promoting in which the 23-year old model promotes the 23-year old skincare company, the latter of which is known for its affordable acne solutions and longstanding direct-to-consumer subscription model.   ... As Rebecca Tushnet, a Harvard Law School professor specializing in false advertising (among other things), told TFL, “Endorsers generally have to be truthful about their use of the product they endorse.” In particular, she points to the Federal Trade Commission’s guidelines, which state, “When the advertisement represents that the endorser uses the endorsed product, the endorser must have been a bona fide user of it at the time the endorsement was given.”  

An op-ed by Noah Feldman: When senators get to grill William Barr next week, they shouldn’t waste much time on whether President Donald Trump’s nominee for attorney general would fire special counsel Robert Mueller. The key question should be something different: Under what circumstances would Barr advise the president to pardon the targets of Mueller’s investigation? Here’s why: The most significant single act of Barr’s career in the Department of Justice was to advise President George H.W. Bush to pardon six officials from Ronald Reagan’s administration, including Secretary of Defense Caspar Weinberger, for crimes associated with the Iran-Contra affair. At the time, Barr was — you guessed it — attorney general. His recommendation gave Bush the cover he needed to issue the pardons.

An op-ed by Noah Feldman:  History’s verdict on Rod Rosenstein’s tumultuous two years as deputy attorney general will be mixed, if he does leave as expected when a new U.S. attorney general is confirmed. Rosenstein broke the normal rules to save a shred of normality. Usually that kind of compromise doesn’t work. In this case, it did — mostly. Rosenstein is going to be remembered first for naming Robert Mueller as special counsel to investigate Russian interference in the 2016 election.

On the latest episode of Recode Media with Peter Kafka, Recode’s Peter Kafka spoke with Harvard Law School professor Susan Crawford about her new book, Fiber: The Coming Tech Revolution—And Why America Might Miss It. On the podcast, Crawford explained why nationwide access to high-speed fiber internet — already standard in parts of Asia and Europe — is important for everything from the future of work to the successful deployment of 5G wireless networks. She also talked about why Google’s ambitious attempt to compete with the telecom giants, Google Fiber, is all but dead. “They’re like Verizon, which did exactly the same thing, backed off from installing fiber,” Crawford said. “Their shareholders are impatient with the long-term capital needs involved in making sure that there’s great last-mile access in America.”

The breakage of “norms” by President Trump has become a dominant theme of his critics. What a norm actually is when it comes to the presidency is now the subject of considerable academic research. But as the late Supreme Court Justice Potter Stewart said of pornography, we know it when we see it, and we saw it Wednesday. ... That norm, now broken, could be considered a subcategory of a presidential norm lay people might just call “thinking.” We know that when we see it, too. A more elevated version came from Daphna Renan, who in the Harvard Law Review identified the norm of the “deliberative presidency.” “The deliberative-presidency norm requires a considered, fact-informed judgment,” she wrote, a collective effort in which experts are consulted and meetings held before a president acts. In other words, a president is supposed to know what he’s talking about.

In an interview with MSNBC Chief Legal Correspondent Ari Melber on the government shutdown and the president's authority to build a wall without congressional approval, Harvard Law Professor Laurence Tribe said: "This is unlike any National Emergency we have seen, it's an attempt by the President to assume powers that belong to the other branches."

President Trump is continuing to leave open the possibility that he might declare a national emergency and try to authorize a controversial wall on the southern border on his own if Congress won’t approve the $5.7 billion he’s asking for.... A number of legal experts have weighed in on the concept. Here’s a roundup from around the Web of what they’ve been saying. ... The Constitution, on the other hand, is relatively silent on the topic of emergency powers, Harvard law professor Noah Feldman said in a Bloomberg Opinion column. Feldman notes that Article I, Section 9 allows for the suspension of habeas corpus in cases of rebellion or invasion. But he continued, “From the fact that the suspension clause exists, you can deduce something very basic to the U.S. constitutional system: There are no other inherent constitutional emergency powers.”.... Harvard law professor Mark Tushnet told NBC News, “My instinct is to say that if he declares a national emergency and uses this pot of unappropriated money for the wall, he’s on very solid legal ground.”

An op-ed by Stephen Mihm: How safe is Federal Reserve Chair Jerome Powell’s job? After President Donald Trump threatened to fire him several weeks ago, Powell upped the ante by declaring that he would refuse to resign if Trump tried to get rid of him, effectively drawing a line in the sand. ... The court also drew a hard and fast distinction between executive officers under the direct control of the president (e.g. cabinet heads) and the officers of independent agencies. And yet, as the Bloomberg Opinion columnist Cass Sunstein and his fellow legal scholar Lawrence Lessig observed in a 1994 law review article, the court “has not said what ‘good cause’ means. The Court has also failed to define “inefficiency, neglect of duty, or malfeasance in office … There is no controlling judicial decision on how ‘independent’ the independent agencies and officers can legitimately claim to be.”

In late 2017, Susan Crawford was visiting Seoul, South Korea, about six months before it hosted the 2018 Winter Olympics. Although she’s an expert in telecommunications policy, Crawford was stunned at what she witnessed in Korea, which she describes as “the most wired nation on the planet” — flawless cellphone coverage even in rural areas, real-time data transmission, driverless buses using the latest communications technology to smoothly avoid pedestrians and evade obstructions. “I’ve never been embarrassed to be American before,” Crawford told me recently. “But when Korean people tell you that going to America is like taking a rural vacation, it really makes you stop and worry about what we’re up to.”

On Jan. 1, a treasure trove of classic literature, along with other artistic works, entered the public domain as copyright protections expired.  ... Why now? As so often in American life, the answer begins with the Constitution. Section 8 of Article 1 provides Congress with the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The first Copyright Act in the United States was passed in 1790, with a maximum term of 28 years. And as also so often in American life, a simple idea evolved over the years into a system described as “mind-numbingly complex” by the Times and “worse than the tax code” by Rebecca Tushnet, an expert in intellectual property at Harvard Law School.

Medicine is at a turning point, on the cusp of major change as disruptive technologies such as gene, RNA, and cell therapies enable scientists to approach diseases in new ways. The swiftness of this change is being driven by innovations such as CRISPR gene editing, which makes it possible to correct errors in DNA with relative ease. ... Yet as I. Glenn Cohen, faculty director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School, has said, gene editing comes in many varieties, with many consequences. Any deep ethical discussion needs to take into account those distinctions.

Last month, I was extremely fortunate to attend the conference on Progressive Halacha hosted by the Julis-Rabinowitz Program on Jewish and Israeli Law at Harvard Law School. With distinguished guests from across virtually all Jewish denominations, this event provided a remarkably comprehensive view of how contemporary halacha is understood, practiced, and taught in a wide variety of environments. Perhaps because the conference took place on neutral ground–which is to say, an academic setting as opposed to a specific Jewish institution–participants engaged in dialogue even when they were in disagreement. No single position was advanced as a definitive approach.

As President Trump readies his Oval Office address on the Government shutdown, the Russian lawyer who met with Paul Manafort, Jared Kushner and Donald Trump Jr. at the 2016 Trump Tower meeting, is indicted by Federal Prosecutors. MSNBC Chief Legal Correspondent Ari Melber breaks down how we are now at the point where two people from the Trump Tower meeting have been indicted by the feds – one on the Trump side and one on the Russia side. Harvard Law Professor, Laurence Tribe, tells Melber that the Russian lawyer, Natalya Veselnitskaya, has been “clearly exposed as an agent of the Kremlin”.

Paul Manafort shared Trump campaign polling data with an associate tied to Russian intelligence during the 2016 campaign, prosecutors alleged, according to a court filing unsealed on Tuesday. ...  The plea agreement gives the prosecutors the power to almost unilaterally decide whether Mr. Manafort has violated it. Unless Mr. Manafort can show they acted in bad faith — a high bar — their judgment stands. The prosecutors could also decide to file new charges against Mr. Manafort for lying to them, but do not plan to do so, according to the defense lawyers’ filing, unsealed Tuesday. “They have him so deeply in the soup here that what both sides are almost saying is that this doesn’t matter,” said Nancy Gertner, a Harvard Law School professor.

An op-ed by Cass Sunstein: Suppose that in the next few weeks, a federal agency wanted to issue a new regulation that would cost the American people $5 billion in 2019. Under both Republican and Democratic administrations, the agency would be required to submit its regulation to the White House Office of Information and Regulatory Affairs, seeking its approval. OIRA, as the regulatory office is known, would be highly skeptical.  By any calculation, $5 billion is a huge amount. In fact, it would exceed the reported annual cost of all federal regulations approved by OIRA in some recent years.

An op-ed by Noah Feldman: President Donald Trump has said that he can declare a national emergency and order his border wall to be built. He’s wrong. The U.S. Constitution doesn’t contain any national emergency provision that would allow the president to spend money for purposes not allocated by Congress. And it’s clearer than clear that Congress not only hasn’t authorized money for a wall along the border with Mexico but also doesn’t intend to do so. The upshot is that any attempt by Trump to get around Congress by using invented emergency powers would violate the Constitution. It almost certainly would be blocked by the courts. And it would constitute a high crime and misdemeanor qualifying him for impeachment.

Americans can expect to get tax refunds during the partial government shutdown after all, following a decision by the White House Office of Management and Budget. ... Sen. Ron Wyden, the top Democrat on the Senate Finance Committee, has requested a briefing on whether Treasury and the IRS can process refunds during a shutdown and has not yet received a response, a spokeswoman told MarketWatch. Over Twitter, Harvard Law professor Laurence Tribe said the Supreme Court has held such responses unconstitutional. "This is just a line-item veto in drag. SCOTUS held such cut-and-paste presidential responses to congressional spending flatly unconstitutional in Clinton v. NY (1998)."