Media Mentions

An op-ed by Noah Feldman. Did the National Enquirer have a right to buy stories about Donald Trump in order not to publish them? And if so, what was the crime in buying Karen McDougal’s report of an affair with now-President Trump — a crime to which Michael Cohen pleaded guilty? These questions have become all the more pressing as it has emerged that the Enquirer has been buying and hiding Trump’s stories for decades. In fact Cohen, Trump’s former lawyer, had wanted to buy the whole archive for Trump to make sure that the stories stayed dead.

The conservative majority on the Supreme Court today is similarly blinded by a commitment to liberty in theory that ignores the reality of how Americans’ lives are actually lived. Like the Supreme Court of that era, the conservatives on the Court today are opposed to discrimination in principle, and indifferent to it in practice...“For large portions of American life people of color have been treated unjustly, and for most of that period the Supreme Court has found ways to rationalize that, and make us think that is consistent with promises of liberty and equality,” says the Harvard Law professor and legal scholar Randall Kennedy. “That’s what it’s typically done. Is it doing that today? Yup.”

An op-ed by Alex Whiting and Ryan Goodman. Since Paul Manafort was convicted last week, the president and his associates have encouraged speculation about it. Rudy Giuliani, President Trump’s personal lawyer, claims that he has agreed not to pardon anyone related to the investigation by Robert Mueller, the special counsel, until it is completed. Mr. Giuliani explained that he and the president were concerned that a pardon at this stage could be viewed as obstruction of justice. Yet other reporting suggests that Mr. Trump remains eager to move forward on a pardon and is even considering cutting the White House counsel, Don McGahn (who is opposed to it), out of the process. Whether and when he acts, it appears that Mr. Trump has already embarked on a strategy of using his pardon power to silence witnesses in the Mueller investigation.

A Harvard Law School lecturer is suing the Louisiana State Police to release a purported list of members of antifa that originated on white supremacist and Neo-Nazi websites. The roster itself appears to be a hoax that originated a year ago on Neo-Nazi websites like Stormfront and the far-right conspiracy theory website 8Chan, according to the lawsuit filed by Harvard Law School Lecturer Thomas Frampton in Baton Rouge state court on behalf of New Orleans civil rights attorney William Most.

The 60-plus Harvard Law School professors who filed into an auditorium-style room on the first floor of Pound Hall on that February 1993 afternoon had a significant question to answer: Should they offer a job to Elizabeth Warren?...The Globe examined hundreds of documents, many of them never before available, and reached out to all 52 of the law professors who are still living and were eligible to be in that Pound Hall room at Harvard Law School...“By the unwritten rules that most schools played by at the time, none of this should have happened,” explained Bruce Mann, Warren’s husband of 38 years, who joined her for the interview with the Globe. “Law faculties hired in their own image. . . except for those rare occasions when someone came along that was just so stunningly good that they couldn’t ignore her.”...She dazzled Andrew Kaufman, a Harvard Law School professor who recalled meeting her at a conference she organized at the University of Wisconsin Law School in the mid-1980s. “I was blown away,” Kaufman said, recalling his first interaction with Warren. “I thought she was a real whiz.”...“The views had a lot to do with the methodology she was using,” recalled David Wilkins, a Harvard Law professor who voted to offer Warren a job. “Was it the right methodology?” ...“She was not on the radar screen at all in terms of a racial minority hire,” [Randall] Kennedy told the Globe. “It was just not an issue. I can’t remember anybody ever mentioning her in this context.”...“It had nothing to do with our consideration and deliberation,” said Charles Fried, the former solicitor general to president Ronald Reagan and a member of the Harvard Law School appointments committee at the time. “How many times do you have to have the same thing explained to you?”

An op-ed by Robert C. Pozen and Mark Roe. On August 17, President Trump waded into another complex area by a short tweet. He had apparently asked several top business leaders how to “make business (jobs) even better in the United States.” He then directed the Securities and Exchange Commission to study one business leader’s reply: “Stop quarterly reporting and go to a six-month system.” Trump’s tweet reflects the belief of many corporate executives and commentators that quarterly reporting pushes public companies away from attractive long-term investments. However, the long-term benefits of semi-annual reporting are doubtful, while its costs are significant.

An op-ed by Susan Crawford. It's common knowledge that city curbs are fiercely contested places, what with Ubers and Lyfts hovering inconveniently and blocking traffic; piles of shared bikes and scooters being dropped off and picked up; rapidly climbing numbers of deliveries being made by double-parked trucks; and buses and taxis pulling up—not to mention all the private-car parking going on. These daily dramas will only get more boisterous and difficult in the years to come, when fleets of city-licensed driverless cars join the fray.

The Washington conventional wisdom presupposes a kind of symmetry between our polarized political parties. Liberals and conservatives, it is said, live in separate bubbles, where they watch different television networks, frequent different Web sites, and absorb different realities. The implication of this view is that both sides resemble each other in their twisted views of reality. Rachel Maddow and Sean Hannity, in other words, represent two sides of the same coin. This view is precisely wrong, according to a provocative new book by Yochai Benkler, Robert Faris, and Hal Roberts that will be published next month by Oxford University Press. The book’s title, “Network Propaganda: Manipulation, Disinformation, and Radicalization in American Politics,” is a mouthful, but the book’s message is almost simple. The two sides are not, in fact, equal when it comes to evaluating “news” stories, or even in how they view reality.

How much economic damage will global warming cause? That’s one of the key questions embedded in the Trump administration’s recent proposals to weaken Obama-era regulations on greenhouse gas emissions from both vehicles and power plants...“Typically, an agency gets some latitude to set standards a bit more or less stringently,” said Jody Freeman, director of the environmental law program at Harvard Law School. “But if you can show the agency to be glaringly wrong in its analysis — they ignore obvious counterarguments, they cherry-pick the data to support their outcome, they make numbers up — you can get a court to strike the standards down.”

An op-ed by Susan Crawford. Policymakers at all levels of government are struggling to thoughtfully harness data in the service of public values. Many public servants grew up in an era of firmly separate disciplines: You were either an engineer or an economist, either a programmer or a social worker, but never both. In an era in which data is everything, the risks to core democratic principles—equity, fairness, support for the most vulnerable, delivery of effective government services—caused by technological illiteracy in policymakers, and policy illiteracy in computer scientists, are staggering. This has happened because traditional academic disciplines, as they currently operate, often aren't designed to help students study and apply technical expertise to advance the public interest

...It’s true that “identity politics” are to some degree inherent to all politics. Adrian Vermeule, a constitutional-law professor at Harvard, recently said, There is nothing that isn’t “identity politics” of one sort or another, including the identity of “one who stands above tribalism.” The legitimate objection isn’t that “identity politics” is bad, but that it is an inescapable and therefore vacuous description. Vermeule is correct — even a belief in God or in the rule of law is an aspect of one’s personal makeup and identity, and allows oneself to be classified in a particular political or social category.

An op-ed by Jack Goldsmith. It’s much clearer now why Donald Trump has been furious with Attorney General Jeff Sessions ever since he recused himself from the Russia investigation in March 2017. That recusal set in motion events that eventually resulted in deputy attorney general Rod Rosenstein’s appointment of special counsel Robert Mueller to investigate Russian election meddling and “ any matters that arose or may arise directly from the investigation.” Once the straight-arrow Mueller started sniffing around Trump’s campaign, he discovered lots of criminal behavior that had nothing to do with Russian influence operations. This week yielded the most dramatic fruits yet: The conviction of Trump’s campaign manager, Paul Manafort, for bank and tax fraud, and a guilty plea by Trump’s personal lawyer, Michael Cohen, for fraud and campaign violations, including some that directly implicate the president.

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.