Media Mentions

An op-ed by Noah Feldman. Lawyers are not supposed to disclose conversations with their clients, at least not without a fight over attorney-client confidentiality. Senior presidential advisers aren’t supposed to discuss consultations with their boss, at least not without first asserting executive privilege. Yet we now know, thanks to the New York Times, that White House Counsel Don McGahn has been cooperating with Robert Mueller’s investigation of Donald Trump. Why is the world of normal procedures being turned upside down? There’s a technical answer; and then there’s the deeper logic (or illogic) behind it: the bizarre nature of decision-making in the Trump presidency.

Bayer AG unit Monsanto faces long odds on an appeal blaming an “inflamed” jury and “junk science” for a verdict of $289 million in damages to a man who said the company’s Roundup weed killer caused his cancer, according to some legal experts...David Rosenberg, a professor at Harvard Law School, said editorializing by lawyers in a courtroom needed to be truly egregious for a judge to even consider throwing out a verdict. “Such remarks are part of the game during trials and I can’t see a single reason why Monsanto would think an appeal would be helpful on those grounds,” Rosenberg said.

Trump says he wants to consider requiring companies to report their earnings every six months instead of every three. It would ultimately cut back on the amount of paperwork companies have to contend with, but it would also mean investors would get updated less often about how a company is doing. [Mark Roe] is a professor at Harvard Law School..."The problem is if the firm has gone dark for six months instead of three months, the chances of the stock market's expectations being out of line with what really happens increases."

Paul Manafort’s lawyers declined Tuesday to call any witnesses to defend him against charges of bank and tax fraud. Mr. Manafort, President Trump’s former campaign chairman, also told the judge that he did not want to testify, clearing the way for closing arguments from both sides and the start of jury deliberations on Wednesday. The decision by the defense to rest without presenting its own evidence was not unusual. “The defense believes it has made its point through cross-examination,” said Nancy Gertner, a Harvard Law School professor and a former federal judge.

Harvard Law School Professor Laurence Tribe joins Katy Tur to discuss how the President’s threat to strip former intelligence officials of their White House security clearances fits into the Special Counsel’s investigation.

...“It’s idiotic if its purpose is to prevail in the arbitration,” says constitutional scholar Larry Tribe. “It’s not necessarily idiotic if its only purpose is to continue deflecting attention from vastly more serious issues — like what Trump and Putin said to one another during that two-hour meeting in Helsinki, or which version of [Rudolph W.] Giuliani’s defense of Trump’s conversation with [former FBI director James] Comey about going easy on [Michael] Flynn the president wants us to accept.”

...the S.G.—no matter the administration—has become more political. How did this esteemed post, which the Court long regarded as the keel keeping the government balanced when it threatened to heel too far to the left or right, come to contribute to forceful tacks one way or the other, to the Court’s seeming indifference? A comparison of the divergent approaches of Harvard Law School’s late Archibald Cox ’34, LL.B. ’37, LL.D. ’75, as S.G. in the 1960s and Charles Fried in the post in the 1980s (he is the Beneficial professor of law) illuminates these important changes.

President Trump plans this week to unveil a proposal that would empower states to establish emission standards for coal-fired power plants rather than speeding their retirement — a major overhaul of the Obama administration’s signature climate policy...Joseph Goffman, executive director of Harvard Law School’s Environmental Law Program and one of the architects of the Obama-era rule, said in a phone interview that the higher emissions that would result from the Trump proposal would damage the climate as well as public health. “These numbers tell the story, that they really remain committed not to do anything to address greenhouse gas emissions,” said Goffman, who served as associate assistant administrator for climate in the EPA’s Office of Air and Radiation between 2009 and 2017. “They show not merely indifference to climate change but really, opposition to doing anything about climate change.”

The Labor Department has shown scant signs of progress on revising an Obama-era rule to expand overtime pay eligibility, more than a year after embarking on its mission...“When you do it right, this kind of rulemaking is hard,” said Sharon Block, who coordinated the 2016 overtime rulemaking as head of the Obama DOL’s policy shop. “I don’t think this Department of Labor has shown themselves to be able to do this kind of complex difficult rulemaking. I have no idea if they have the capacity to do it in the time they have left.”

After the New York Times reported that White House counsel Donald McGahn had spent 30 hours with special counsel Robert S. Mueller III and his team, the Trump spin machine came up with two (both false) responses...The assertion that “lawyers made a mistake” or “Trump was just being transparent” in letting McGahn testify is largely hogwash. Constitutional scholar Larry Tribe tells me: “There is no attorney-client privilege for communications between the president and counsel for a government entity like the office of the presidency. That is of course McGahn’s role, in contrast with Giuliani’s.”

An op-ed by Jack Goldsmith. President Trump’s revocation of former CIA Director John Brennan’s security clearance brings together in an unfortunate way two pathological trends in the Trump era, and highlights the conundrum of the former intelligence official who wishes to speak out against the president’s attacks on the Russia investigation and the intelligence community more generally. The first trend is the politicization of intelligence.

...perhaps another body of Kavanaugh’s work warrants closer inspection: the twenty-four articles that he wrote, from 1983 to ’86, as a sports reporter for the Yale Daily News...Laurence Tribe, a Harvard Law professor who mentored Barack Obama, zeroed in on the lead sentence in Kavanaugh’s account of a midseason game against Cornell: “In basketball, as in few other team sports, it is possible for one person to completely dominate a game.” Was this a harmless observation? Tribe noted, “Kavanaugh’s seeming fascination with single-player domination might be a muscular view of executive power.” On the other hand, he found a departure from Kavanaugh’s typical jurisprudence in “Dartmouth Rally Upends Streak.” “Kavanaugh complained that the refs let the game ‘get completely out of control’ as Dartmouth players ‘consistently hammered’ a Yalie ‘without the whistle blowing’ once,” Tribe said. “One might see in that a rare early condemnation of judicial restraint.”

An op-ed by Nancy Gertner. It is not unusual for judges to intervene in court proceedings from time to time — to direct the lawyers to move the case along or to admonish them that evidence is repetitive. The judge's role is to act not as a "mere moderator," as the Supreme Court noted in Herron v. Southern Pacific in 1931, but as the "governor of the trial" responsible for assuring the proper conduct of all participants. The performance of U.S. District Court Judge T.S. Ellis III in the trial of Paul Manafort on bank fraud and tax evasion charges has been decidedly unusual. During the trial, Ellis intervened regularly, and mainly against one side: the prosecution. The judge's interruptions occurred in the presence of the jury and on matters of substance, not courtroom conduct. He disparaged the prosecution's evidence, misstated its legal theories, even implied that prosecutors had disobeyed his orders when they had not.

Elizabeth Warren has a big idea that challenges how the Democratic Party thinks about solving the problem of inequality. Instead of advocating for expensive new social programs like free college or health care, she’s introducing a bill Wednesday, the Accountable Capitalism Act, that would redistribute trillions of dollars from rich executives and shareholders to the middle class — without costing a dime...This is, of course, not an uncontested view. Jesse Fried and Charles Wang argued earlier this year that the real amount of buybacks is overstated by politicians who focus on gross share repurchases that are partially offset by new share issuances.

...To this day, Ginsburg's opinion in EPA v. EME Homer City Generation LP remains the only time the Supreme Court has reversed one of Kavanaugh's environmental rulings on the U.S. Court of Appeals for the District of Columbia Circuit. A George W. Bush appointee, Kavanaugh has been on the D.C. Circuit for a dozen years. The case provides a glimpse into the nominee's broader approach to environmental law and how that may translate on the Supreme Court bench. "It's a very significant case. It's a huge environmental regulation at stake," said Richard Lazarus, a professor at Harvard Law School who has argued in front of the Supreme Court more than a dozen times. "It shows you exactly the potential divide between Kennedy and Kavanaugh, and also between Roberts and Kavanaugh. "That's why it's the most significant data point for environmental law in thinking about Kavanaugh's nomination," he said.

...Two new papers look at the effects of the programme in its earlier incarnation. They find that it succeeded in its stated goal of removing undocumented workers—but it also reduced access to jobs, health care and nutrition for migrants and citizens alike...Marcella Alsan of Stanford University and Crystal Yang of Harvard University looked at access to welfare and health-care enrollment...Ms Alsan and Ms Yang found that the rollout of Secure Communities was associated with a 10% decline in food-stamp use among eligible Hispanic households. They also estimate that health-care coverage under the Affordable Care Act would have been 22% higher among eligible Hispanic households had Secure Communities not been in place, because of fears that any interaction with officials might lead to friends or family being deported.

At least 125 Republican campaigns and conservative political groups spent more than $3.5 million at President Donald Trump’s resorts, hotels and restaurants since January 2017...“Trump’s use of his high office to exact tribute from the multitude of American politicians and hangers-on who are quite willing to fill his coffers in order to win him to their side doesn’t violate the emoluments clauses or constitute high crimes and misdemeanors (unless out-and-out bribery can be proven), but [it] stinks to high heaven anyway,” says constitutional scholar Laurence H. Tribe. “Trump’s selling of the presidency is of a piece with the self-serving and self-aggrandizing approach he has taken to his entire adult life as a user, cheater, and exploiter of others. It’s neither criminal nor impeachable for Trump to besmirch the highest office in the land, but it certainly highlights his unfitness for that office and the burden that his leaving it will lift from America’s soul.”

...In 2008, Harvard Law professors Cass Sunstein and Adrian Vermeule penned an article on conspiracy theories and how they work. They argued that conspiracy theories — which they define as “an effort to explain some event or practice by reference to the machinations of powerful people, who have also managed to conceal their role” — are, in their own way, quite rational. “Most people are not able to know, on the basis of personal or direct knowledge, why an airplane crashed, or why a leader was assassinated, or why a terrorist attack succeeded,” they wrote. As a result, they search for information that fits what they already believe about the world and is confirmed by people they trust. Conspiracy theories, Sunstein and Vermeule argued, spread in a variety of ways. One of these pathways, called an “availability cascade,” happens when a group of people accept a conspiracy theory because their preexisting beliefs about the world make them likely to believe it.

One of the internet’s most odious conspiracy theorists has had his videos and podcasts removed from Apple, YouTube, Spotify and Facebook. Alex Jones (pictured), who has a radio show and runs a few websites, including Infowars, has raised doubts about the murders of 26 children and teachers in the Sandy Hook mass shooting, claiming the story was manufactured by gun-control advocates...Laurence Tribe, a constitutional-law expert at Harvard, points out a small but fascinating caveat to this bright line between governmental and private censorship. “A very limited set of nominally private actors have been recognised as essentially governmental,” he says, in a few narrow contexts. For example, in Marsh v Alabama (1946), a company-owned town was told the First Amendment prevented it from arresting a Jehovah’s Witness for distributing religious pamphlets near a post office. The Supreme Court ruled that the town, though privately owned, functioned like a traditional municipality and needed to respect the proselytiser's constitutional rights.

Medicaid home care aides — hourly workers who help the elderly and disabled with daily tasks like eating, getting dressed and bathing — are emerging as the latest target in the ongoing power struggle between conservatives and organized labor...A proposed rule from the federal Centers for Medicare & Medicaid Services would prohibit home health aides paid directly by Medicaid from having their union dues automatically deducted from their paychecks, though it doesn’t name the fees explicitly...“When a state pays a worker, and the worker pays the union, it’s the worker’s money going into the union,” said Benjamin Sachs, a professor at Harvard Law School who studies labor law. “CMS doesn’t have the authority to decide.”

Even as the White House began cracking down on U.S. work visas, major Silicon Valley technology firms last year dramatically ramped up hiring of workers under the controversial H-1B visa program, according to newly released data...Vivek Wadhwa, a distinguished fellow at Harvard Law School and Carnegie Mellon’s School of Engineering at Silicon Valley, believes the solution is to give H-1B preference to start-ups and tech companies — not third-party agencies. “I’m a strong proponent of skilled immigration,” said Wadhwa, who studies the positive contributions of immigrants. “The only H-1Bs should be direct employees of these companies.”