Media Mentions

The enduring legacies of Thurgood Marshall, Charles Hamilton Houston, Patricia Roberts Harris and countless other graduates of the Howard University School of Law (HUSL) are on full display this year as the historic school celebrates its Sesquicentennial anniversary. ... Dr. David Harris, managing director of the Charles Hamilton Houston Institute for Race and Justice and a lecturer at Harvard Law School, said that Howard Law School is a critical piece of legal framework in the country.

QUESTION: Can Congress pass a spending bill to end the shutdown without the President? ANSWER: Yes. ... Under Article 1 Section 7 of the Constitution, the president can veto a bill, but Congress can override the president's veto with a two-thirds majority vote in both chambers. The clause is meant "to strike a balance between Congress and the Presidency," Laurence Tribe, Professor of Constitutional Law at Harvard Law School explained.  "The Framers’ view was that they wanted a check on Congress," Amanda Frost, Professor of Law at American University Washington College of Law, said. "The Framers were worried about Congress having too much power, though for the last 50 years I believe the problem is that the President has accrued too much power."

... In 2012, the Iowa legislature passed a law banning the collection of evidence of crimes like those. And Iowa isn’t alone. Several states have passed — and many others have considered — so-called “ag gag” laws, which criminalize the undercover investigations that reveal abuses on farms. Legislators have been forthright about their motives too. They’re worried that evidence of what goes on on these farms will outrage Americans — so they want to ban it. ... That means that in practice, no misconduct can ever be proven on only the first day of investigating. “Say you have a DEA agent who spends months undercover to infiltrate a drug cartel,” Chris Green, the executive director of Harvard Law School’s Animal Law & Policy Program, told me. “This is like requiring them to reveal themselves the first time they see a $5 drug buy.” You’ll never get to the heart of the abuses that way — which, of course, may be exactly what the industry, which backs quick-reporting, wants.

Two blockbuster stories have cast an entirely new light, and new urgency, on the investigation by special counsel Robert S. Muller III. ... Mueller inherited the FBI investigation, meaning whatever the FBI learned or concluded went into his bank of evidence in an investigation that was both a criminal and a counterintelligence inquiry. Constitutional scholar Larry Tribe tells me, “Under settled FBI protocol, no such investigation, whose purposes include protecting America from future attack, can be opened without a strong evidentiary basis and careful internal clearance or closed without either effectively ‘neutralizing’ its target — an impossibility with a sitting president as long as he remains in office — or clearing that target.”

House Democrats are aggressively exploring a possible legal challenge should President Trump declare a national emergency to build a U.S.-Mexico border wall, scouring federal law and court precedents — including a recent attempt by a Republican-controlled House to undermine the Obama-era health-care law. ... Laurence Tribe, a constitutional scholar at Harvard Law School, said in an email that the Burwell ruling “does indeed provide a strong argument the House could make to support its standing to sue President Trump if he were to carry out this threat to spend money pursuant to a declaration of national emergency.”

What started as a touchpoint for presidential candidate Donald Trump to visualize immigration concerns has become the linchpin behind a government shutdown and a possible legal challenge to sweeping presidential power. ...Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School: "Courts would allow leeway, but then there’s the public. If we think about what the courts would say if the president declared an emergency, the answer would be that the courts will give the president a great deal of discretion and leeway in his evaluation of whether there is an emergency. That’s different from asking whether, as a fundamental constitutional matter, there are standards for determining whether there’s an emergency and, in particular, whether a president can declare an emergency without having substantial reasons for characterizing the situation as requiring immediate, urgent attention. The courts will enforce this standard. As a matter of fundamental constitutional principle, the president has to offer reasons to the public explaining why this is something that requires urgent attention. He would have a decent case defending [an emergency] declaration in court. He clearly has more difficulty defending it before the public — and the latter is constitutionally relevant."

News broke today that President Trump’s former "fixer" and lawyer, Michael Cohen, will be testifying in front of Congress — following his guilty plea and December sentencing to three years in prison for a range of crimes committed while working for Trump.... To discuss the latest on the Mueller investigation and what it all means, Jim Braude was joined by retired federal judge Nancy Gertner, who is now a senior lecturer at Harvard Law; and former U.S. attorney Don Stern, who worked alongside Robert Mueller both during his stint with the Department of Justice and in private practice at Hale and Dorr.

In an effort to get critical parts of the US government funded, the House of Representatives is going to vote today on a bill, H.R. 265, that would pay for health inspectors, food stamps, and drug approvals, according to Politico. It would also would renew the prohibition on genetically modified human beings in the US. ... By blocking any-and-all DNA changes to an embryo, I. Glenn Cohen, a professor at Harvard Law School, says American legislation has taken a "meat axe" approach when what's needed is a "scalpel" to separate good uses of technology from bad. Congress is again missing a chance “to craft a better, more subtle policy” that could allow real public debate on new reproductive technologies, Cohen says.

Several power producers joined the Electric Power Supply Association on Monday in petitioning the U.S. Supreme Court to review appellate court rulings upholding the New York and Illinois zero-emission credit programs. ... Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School, said, “These arguments about the text of the FPA and the court’s 2016 Hughes decision largely repeat the generators’ briefs filed at the 2nd and 7th Circuits. In rejecting these arguments, the 2nd Circuit panel found it ‘telling that [the generators] cannot persuasively explain why FERC’s holding [disclaiming jurisdiction over RECs] does not apply equally to ZECs.’”

After roughly 3,000 graduate students received an erroneous stipend payment from Harvard in December, some incurred overdraft fees when administrators reversed the error. Mistaken deposits appeared in students’ accounts beginning Dec. 14, and University officials discovered the error on Dec. 17. The Central Payroll Office — which handles wage and stipend payments for Harvard employees — informed current and former students who received the deposits about the error on Dec. 18. ...Tsitsi M. Mangosho, a PhD candidate in History and a Law School student, said she got a notification about the deposit in mid-December, but, with her busy schedule and multiple accounts, did not realize it was an error. After she paid her credit card bills with the deposited funds, she incurred a $105 overdraft fee when Central Payroll withdrew her stipend payment.

An op-ed by Jennifer Rubin: President Trump’s visit to Texas for a photo op at the southern border reminds us that the politics of the wall in Texas, a state that reelected Sen. Ted Cruz (R-Tex.) by less than 3 points and flipped 2 House seats from Republican to Democratic, is not what Republicans would have you believe. ... “I think the most difficult issue isn’t whether the House of Representatives, or a particular member (like Chairman Adam Smith of the [House] Armed Services Committee) would have standing to sue on the ground that the president is nullifying their right to vote on spending measures and usurping their role as holders of the power of the purse (they might well) but something else altogether,” says constitutional scholar Laurence Tribe. “It’s whether any lawsuit, even a suit brought by someone injured in a more conventional sense (the way the ranchers who might eventually be subject to eminent domain along the border would eventually be), would be deemed to present a ripe ‘case or controversy’ simply because the president, by making an emergency declaration under the 1976 Act, would arguably open up some statutory options — e.g., under 10 U.S.C. §2808 — not previously open to him.”

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."