Media Mentions

...“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.

Information about Elon Musk's efforts to take Tesla Inc private is scarce. But some small investors wonder if top funds have an edge...Harvard Law School professor John Coates said U.S. Securities and Exchange Commission rules on fair disclosure allow the selective sharing of some details if recipients agree not to trade until what they are told becomes public. But it is hard to know how those limits might play out for Musk's outreach. "With Tesla however nothing normal is normal. So who knows," Coates said via email.

President Trump proposed Friday that public companies should report their financial results only twice a year instead of quarterly...“If companies report only every six months, then there could be more damage, not less,” says Mark Roe, a professor of corporate and business law at Harvard Law School. Without quarterly updates, “the stock price could drift even farther out of whack from fundamentals, and then the temptation for management to distort earnings could potentially be even greater.”

The Trump administration rolled out its proposal for gutting former President Barack Obama’s most sweeping climate change regulation Tuesday — a move that could also block any future Democratic president from trying to put it back together....Former Obama White House climate aide Jody Freeman expressed some concern that the court battle to follow could leave EPA with diminished authority to regulate greenhouse gases at all, unless Congress steps in with a new law. “There’s certainly a legal pathway in which a court could lock in such a narrow reading that it would be very problematic for a future administration,” said Freeman, who is now director of Harvard Law School’s environment and energy program. “There’s also a pathway in which a court could uphold what one administration does and leave room for another to change its mind.”

A conversation with Bonnie Docherty. When drafting a treaty on the laws of war at the end of the 19th century, diplomats could not foresee the future of weapons development. But they did adopt a legal and moral standard for judging new technology not covered by existing treaty language. This standard, known as the Martens Clause, has survived generations of international humanitarian law and gained renewed relevance in a world where autonomous weapons are on the brink of making their own determinations about whom to shoot and when. The Martens Clause calls on countries not to use weapons that depart “from the principles of humanity and from the dictates of public conscience.”

An op-ed by Cass Sunstein. A major source of the opioid crisis is overprescribing by well-meaning doctors who want to relieve patients’ pain, but are insufficiently focused on the risks. Could behavioral economics help change that — and save lives?...What can be done? Led by the University of Southern California’s Jason Doctor, a team of researchers found a dramatic way to nudge doctors to reduce opioid prescriptions. Their starting point was simple: When patients die, clinicians often don’t find out.

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.