Media Mentions

There is an actual art (and science) to deal making. And after three-plus weeks of government shutdown, it should be clear by now ― if it wasn’t already― that President Donald Trump is uniquely terrible at the practice.  Trump is so out of the ordinary when it comes to negotiation, in fact, that the quarterly published by the Program on Negotiation at Harvard Law School, devoted its latest issue to him. For the first time in the Negotiation Journal’s 35-year history, it’s used a whole issue to talk about a U.S. president.

... Remy, an orange tabby, wanders the school in search of patches of sunlight, snuggly boxes, and friendly interactions. He’s wildly popular — a Facebook page dedicated to “Remy the Humanities Cat” has more than 2,500 followers. He was featured in a Harvard Gazette article in the fall that was among the campus news site’s best-read stories of 2018. And he recently was the star of his own Twitter moment. ... Still, not everyone is familiar with Remy. Law professor Annette Gordon-Reed tweeted a photo Tuesday of Remy slinking along a hallway at the law school and said this was the first time she had seen the feline on campus. Remy’s many fans and supporters quickly spoke up to let Gordon-Reed know that the kitty is well-traveled and a Remy appreciation fest promptly began.

More than 25 years after serving as attorney general under George H.W. Bush, William Barr is set to return to the role this week. What should we expect? And what should the senators at the confirmation hearing be asking? Guest: Noah Feldman, professor of constitutional law at Harvard University and columnist at Bloomberg.

President Donald Trump is set to face intense political opposition through the end of his term in 2021, under the cloud of an ongoing investigation into his ties to Russia — which has resulted in the indictments or pleas of several close aides — and with newly empowered Democrats in Congress. Even so, as history shows, a sitting commander-in-chief resigning or being ousted early is highly unlikely. “The framers of the Constitution realized that you couldn’t just get rid of a president because you disagree with him. That would change our whole system of government,” Larry Tribe, a professor of constitutional law at Harvard Law School, tells PEOPLE.

An op-ed by Cass Sunstein: Does President Donald Trump have the legal authority to declare a national emergency, and order the military to build a wall between Mexico and the United States? We are dealing with a novel question here, which means that any judgment has to have a degree of tentativeness. But the best answer appears to be no.

An op-ed by Noah Feldman: William Barr, President Donald Trump’s nominee for U.S. attorney general, has a worrisome theory of executive power. He’s wrong to say that part of the federal obstruction of justice statute isn’t applicable to the president. But on the eve of Barr’s Senate confirmation hearings, it’s also important to recognize that Barr’s view of executive power is not extreme, or at least not outside the range of opinions commonly held by lawyers who have worked for presidents.

Our digital learning community needs a cause. Some fight that strikes an optimal balance between self-interest and doing the right thing. Reading Susan Crawford's deeply reported and passionately argued Fiber, I think the battle for universal fiber broadband might be the fight we need.

An op-ed by Cass Sunstein: Whenever the Trump administration proposes to eliminate a regulation, many people are tempted to give it a standing ovation. Many others are tempted to boo and hiss. Sometimes it’s right to do one or the other. But with respect to the Environmental Protection Agency’s recent decision to rethink its controversial mercury regulation — well, it’s complicated and unusually interesting.

An op-ed by Noah Feldman: ... For better or worse, the U.S. Supreme Court has held that someone can be convicted of the crime of material support just by teaching English in coordination with a terrorist group, even if that person never went near a weapon or battlefield. In this instance, however, the best legal option may not be a very good fit for the American’s conduct.

An op-ed by Noah Feldman: This past week, we saw the first concrete evidence that Donald Trump’s 2016 campaign colluded with Russia — and it seemed as if no one cared. That’s a reason to ask a disturbing question: What if the slow burn of Robert Mueller’s investigation ends with a fizzle, not an explosion? What if Mueller, in his role as special counsel, uncovers meaningful proof that the Trump campaign for president knowingly and actively cooperated with Russian efforts to get Trump elected — and the public treats the news as completely unremarkable? That would mark a radical transformation in the nature of contemporary U.S. politics.

An article by Jack Goldsmith: The New York Times reported on Jan. 11 that the FBI “began investigating whether President Trump had been working on behalf of Russia against American interests” soon after Trump fired FBI Director James Comey in May 2017. In other words, the FBI opened a counterintelligence investigation on the president. ... If the story is accurate, then what the FBI did was unprecedented and possibly—I emphasize possibly, since many relevant facts are not included in the Times reporting—an overstep, or at least imprudent. The reason the FBI step might have been imprudent is that it was premised on an inversion of the normal assumptions of Article II of the Constitution.

President Donald Trump might end one conflict with Congress over funding for his long-sought Mexican border wall by invoking national emergency powers, but he’s almost certain to ignite another, with repercussions Republicans may regret in the future. ... "Something that supposedly becomes a ‘national emergency’ only when Congress fails to give the president what he demands, but hasn’t been an emergency until that point, is obviously no emergency at all,” said Harvard law professor Laurence Tribe, a frequent Trump critic. "The claim that there’s an immigration crisis at the border is totally fake -- apart from the humanitarian crisis created by President Trump himself."

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.’”