Media Mentions

An op-ed by Cass Sunstein. On both sides of the political spectrum, a new argument is gaining traction: The impeachment of Bill Clinton is a strong precedent for the impeachment of Donald Trump. It’s a bad argument, unfair to both presidents.

An op-ed by Noah Feldman. In the span of one week, we learned that the Office of the U.S. Attorney for the Southern District of New York had both secured a guilty plea from Trump Organization lawyer Michael Cohen and offered an immunity deal to the company’s chief financial officer, Allen Weisselberg. President Donald Trump should be worried. Once the Southern District gets its jaws onto a string of crimes, it doesn’t let go. Weisselberg, as part of his deal, will likely be required to provide information on all criminal activity he knows about. That spells potential disaster for Trump personally, and major problems for his presidency. That’s apart from any potential state-level criminal investigation by the New York district attorney’s office.

President Trump blamed the Justice Department on Thursday for the investigations surrounding him, criticized the deal struck with his former lawyer Michael D. Cohen and lashed out at Attorney General Jeff Sessions, who countered with a rare public rebuke of the president...The president’s comments showed that his feud with federal law enforcement has taken on a new urgency. “What is different now is that the Justice Department noose is tightening around the president’s neck,” said Jack L. Goldsmith, a Harvard law professor who headed the Justice Department’s Office of Legal Counsel under President George W. Bush. “That context makes this confrontation more significant, for it might indicate that the president is finally going to follow through on his threats and insinuations, over many months, about firing Justice Department officials or taking other actions against the Mueller investigation.”

A federal district judge in Washington struck down most of the key provisions of three executive orders that President Trump signed in late May that would have made it easier to fire federal employees....Sharon Block of the Labor and Worklife Program at Harvard Law School, who is a former senior Labor Department official and National Labor Relations Board member during the Obama administration, called the decision a “stinging rebuke.” “Judge Jackson reminds us that it is in fact the policy of our laws that public sector public bargaining is in the public interest,” she said.

A little-noticed court case stemming from the apparent murder of a Columbia University professor six decades ago could keep special counsel Robert Mueller from publishing any information about the Trump campaign and Russia that he obtains through a Washington grand jury. The substance of the case is entirely unrelated to Mueller’s investigation into whether any of President Donald Trump’s associates aided Russia’s efforts to intervene in the 2016 election. But if a Washington appeals court set to hear the murder-related case next month sides with the Justice Department and rules that judges don’t have the freedom to release grand jury information that is usually kept secret, it could throw a monkey wrench into any plans Mueller has to issue a public report on his probe’s findings...“It is a sleeper case,” Harvard Law professor Alex Whiting said. “If the D.C. Circuit were to accept the Department of Justice’s arguments…that would have potentially enormous implications for the future of the information from the Mueller investigation. That could close out a path by which that information becomes public.”

The Trump administration’s move to gut President Barack Obama’s signature coal pollution rule could clarify an unresolved legal dispute about the federal government's authority to regulate carbon dioxide, the chief contributor to climate change...Joseph Goffman, an environmental law professor at Harvard University who was a chief architect of the Clean Power Plan, argues the Clear Air Act anticipates a system-wide rule since the power grid is tied together, meaning plants should not be regulated separately. “These sources [power plants] operate subject to the interconnected grid of which they are a part,” Goffman told the Washington Examiner. “Common sense tells you the best way to address emissions is on a system basis.”

The Environmental Protection Agency openly admits in its proposal for new emission guidelines that the plan could lead to up 1,400 more premature deaths a year...A former EPA official who worked on the Clean Power Plan accused the EPA under the Trump administration of trying to confuse the public about the ACE rule's anticipated consequences. "This is a double-barreled assault on climate policy," Joseph Goffman, who is now executive director of the Environmental & Energy Law Program at Harvard University, told CBS News. "At exactly the time we should be sending a comprehensive signal for clean energy, we're totally squelching that signal," he added.

...Laurence Tribe, a professor of constitutional law at Harvard and a co-author of “To End a Presidency: The Power of Impeachment,” told The Globe Post that an ordinary citizen in Trump’s position, “without doubt,” would likely be indicted for conspiracy to commit a federal crime. A sitting president, however, has never been indicted. The Department of Justice holds the position that indicting the president “would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.” Tribe argued that other than precedent, there is no legal reason why a president cannot be indicted. “All the reasons people have offered make no sense and have no basis in the Constitution’s text, structure or history,” he said.

...“People recite the mantra ‘No one is above the law,’ yet fail to acknowledge the tension between the principle and the idea that a president could be immune from indictment until he’s out of office,” said Laurence Tribe, professor of constitutional law at Harvard. If the concern is that a criminal trial would be too inundating, Tribe suggested indicting a president, but delaying any criminal proceedings until the end of his term, an option other legal experts have agreed with.

...“Cohen’s sworn allocution in [the Southern District of New York courtroom] in support of his pleas of guilty to having feloniously manipulated the 2016 election at Trump’s direction point directly to impeachable ‘high crimes and misdemeanors’ by Trump,” argues Harvard Law School professor Laurence Tribe, who noted that the wrongdoing in question is “entirely apart from Russiagate and Obstructiongate.” Tribe explains that “Trump’s ‘no collusion’ mantra is now ludicrous. Collusion—indeed, conspiracy—with Michael Cohen and others to defraud the American people by criminally manipulating the presidential election is now clear from Cohen’s guilty pleas—even without Russia’s involvement.”

The practice of allowing criminal defendants to cooperate, or “flip,” and get reduced punishment in exchange for their testimony against others, which President Trump criticized on Wednesday, is a valuable, commonly used tool in a prosecutor’s tool box, experts say...“The reason that prosecutors focus on the top person is, first, that they are considered to be more culpable, more guilty, more responsible,” said Harvard Law School professor Alex Whiting. "They are both committing crimes and directing others and organizing others to commit crimes. So their responsibility is greater. They’re more at the center of the operation than at the lower level or periphery,” said Whiting.

An op-ed by Philip Heymann and Charles Fried. Dear Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein: Our experience over many decades of working in the Department of Justice tells us that a career service — sometimes called a civil service system — plays an essential role in our justice system. It often provides the necessary conditions of wise policy: the knowledge of history and of operations in each of a multitude of areas regulated in some way by federal law; the awareness of the stakes and beliefs of those private citizens who work in those areas; the integrity to tell the truth as a career official sees it, and to do that without political spin; and the independence to speak frankly even when disagreeing with those who can control their careers. For over a century these conditions have been guaranteed by rules of the federal career services forbidding hiring or firing for political reasons and now expanded to guarantee procedural protections against political abuses in revoking a security clearance. These protections are essential in all aspects of federal employment; they are especially necessary for the investigators and prosecutors pursuing a possible obstruction of justice by a superior.

...Now that the school has admitted the first cohort of students under the GRE and expanded deferral programs, I rang up associate dean for strategic initiatives and admissions Jessica Soban to see how it went. She gave an enthusiastic thumbs up to both initiatives. Here's what Soban told me about the GRE pilot. "We had a lot of theories going in about what populations might find this to be an interesting option. What we found was exactly that. Our GRE pool of applicants was more likely to be international, and more likely to have significant work experience. They were more likely to have a graduate degree. They were more likely to have a STEM background, and they were more likely to come from an underrepresented racial group."

An op-ed by Laurence Tribe. Imagine if in 1972, President Richard M. Nixon, rather than routing his opponent, had barely won the presidential election. In that world, when evidence came to light that Nixon had committed impeachable offenses during his campaign, it would have been plausible to suppose that those offenses were essential to his victory. And the stakes would then have been even higher than they were when, in 1974, the Supreme Court was deciding whether Nixon had to comply with a grand jury demand that he deliver up subpoenaed tapes and documents that would prove whether those offenses, and abuses of executive power to cover them up, had indeed been committed by the president. As we all know, United States v. Nixon came out 8 to 0, sounding the death knell of Nixon’s presidency, once he produced the incriminating tapes. A similarly unanimous outcome would be less likely today, however.

...In a new report published jointly by Human Rights Watch and Harvard Law School’s International Human Rights Clinic, the organisations have stated that fully autonomous weapons would violate the Martens Clause – a well established provision of international humanitarian law...“Permitting the development and use of killer robots would undermine established moral and legal standards,” said Bonnie Docherty, senior arms researcher at Human Rights Watch, which coordinates the Campaign to Stop Killer Robots. “Countries should work together to preemptively ban these weapons systems before they proliferate around the world.

But legal scholars said that committing crimes aimed at undermining the integrity of an election could well satisfy the constitutional standard for impeachment, which is set out in Article II, Section 4: “The president, vice president and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery or other high crimes and misdemeanors.”...“If the president bribes members of the Electoral College in order to obtain office, it was clear from the debates that that was thought to be an impeachable offense,” said Cass R. Sunstein, a law professor at Harvard and the author of “Impeachment: A Citizen’s Guide.” “That’s an exception to the general proposition that it has to be abuse of the authority you have by virtue of being president,” he said. “It was an effort to protect the sanctity — and I think sanctity is the right word — of the process by which someone becomes president.”...Of course, bribery is not the same thing as depriving voters of information by paying hush money. But both interfere with the democratic process, said Laurence H. Tribe, a law professor at Harvard, the other author of “To End a Presidency” and a frequent critic of Mr. Trump. “The felonies of which Cohen, in statements that were self-incriminating and thus particularly trustworthy, accused his former client, the president, didn’t literally involve bribery,” he said, referring to Michael D. Cohen, Mr. Trump’s former lawyer, “but certainly involved criminal conduct designed to reduce the risk that disclosure of his extramarital affairs and dalliances on the eve of the election would cost him the votes he ended up needing in places like Michigan, Pennsylvania and Wisconsin.”

Supreme Court nominee Brett Kavanaugh has demonstrated a deep suspicion of government regulation, a pattern aligned with the Trump administration and perhaps best exemplified by his dissent in the case of a killer whale that attacked a SeaWorld trainer...Kavanaugh, as well as some of the Supreme Court's more conservative justices, question a longstanding legal principle dictating that judges defer to agencies' interpretations of vague and open-ended statutes, as long as the interpretations are reasonable. They counter that if there's new problem to solve, Congress should address it with a new law. That would inevitably lead to less regulation, observes Harvard law professor Jody Freeman, who specializes in administrative law and environmental issues. "If you hamstring the agencies and say every time there's a new issue, every time there's a new problem ... you have to go back and get express permission from Congress, that's a way of saying, you don't want the agencies to do very much. Congress doesn't produce much new law now."

An essay by Jeannie Suk Gersen. Last Tuesday, Michael Cohen, Donald Trump’s former lawyer, pleaded guilty to breaking campaign-finance laws by helping to pay two women, in the fall of 2016, not to disclose affairs that they’d had with President Trump. He claimed that he had made these payments at Trump’s behest, and that he had done so primarily to influence the Presidential election, which made his violation a criminal offense. Cohen’s plea has been hailed as the strongest reason yet to remove Trump from office, mostly because, unlike the other crimes of which several people in Trump’s circle have been convicted or accused, these particular acts were done in concert with the President. But the truth is that Cohen’s confession of a criminal motive does not necessarily establish Trump’s. In fact, a lifetime habit of behaving sleazily may very well help the President.

An op-ed by Jesse Fried. American president Donald Trump and Democratic senator Elizabeth Warren rarely see eye-to-eye. But both seem to believe that American public companies are overly focused on the short-term, and that the solution is to reduce investor power. Ms Warren this month introduced legislation — the Accountable Capitalism act— that would force all US-domiciled businesses with revenues exceeding $1bn to hand over at least 40 per cent of board seats to employees, and require directors to consider all stakeholders, not just shareholders. President Trump, meanwhile, asked the Securities and Exchange Commission to study the possibility of eliminating quarterly disclosure requirements for public companies. The apparent consensus around corporate short-termism is mistaken. It is powered by myths and misconceptions, not facts and careful analysis.

Legal heavyweight Laurence Tribe is bowing out of the litigation over the Obama administration's Clean Power Plan. The Harvard University professor today filed paperwork notifying the U.S. Court of Appeals for the District of Columbia Circuit of his withdrawal. Tribe made waves in environmental law circles for his legal critiques of the Clean Power Plan, the centerpiece of the Obama administration's plan to address climate change. A former mentor to Obama at Harvard University, Tribe represented coal company Peabody Energy Corp. in the litigation attacking the 2015 rule in the D.C. Circuit.

An op-ed by Robert C. Pozen and Mark J. Roe. President Trump tweeted on Friday that he had directed the Securities and Exchange Commission to study a suggestion from a business leader, later revealed as outgoing Pepsi CEO Indra Nooyi : “Stop quarterly reporting & go to a six month system.” The popular theory is that quarterly reporting discourages firms from making long-term investments. But switching to semiannual reporting wouldn’t help. Find us CEOs with stockpiles of good, long-term projects that they are not pursuing—but that they would, if only they had three extra months to report earnings. Reporting every six months is nobody’s definition of “long term.” Besides, investors have waited patiently as Amazon, Netflix and many biotech firms have followed long-term strategies.