Media Mentions

President Trump is a compulsive liar who scorns the rule of law...What even some smart people don’t know is that the statement’s truth is, arguably, grounds to impeach Trump, even without his having committed a crime...For non-lawyers, that’s the big takeaway from “Impeachment: A Citizen’s Guide,” a new book by Harvard Law professor Cass Sunstein. The slim manual is a tour of the history behind the spare words the Constitution offers for when to remove high officials: ”treason, bribery, or other high crimes and misdemeanors.” Sunstein disavows what he calls the “fundamentally wrong” belief, uttered by many liberals (even House Democratic Leader Nancy Pelosi), that a president must break a law to be impeached.

Speculation has been simmering for months that the Trump administration might ask the Supreme Court to ban public sector unions from collecting mandatory fees. Calling for a decision that could significantly reduce labor movement finances and political influence would be a major shift in approach for the federal government. The question will be answered by midnight Dec. 6. That’s the deadline facing the Justice Department if the solicitor general wants to file a friend-of-the-court brief supporting the National Right to Work Legal Defense Foundation in its decades-long crusade against government unions...“If they were to take such a radical step to undermine workers’ rights, I have no doubt that it would be motivated not by a genuine concern about constitutional rights but by a desire to destroy the labor movement,” Sharon Block, who was both a National Labor Relations Board member and DOL policy official in the Obama administration, told Bloomberg Law.

Corporations are the cornerstone of both the House and Senate versions of the tax overhaul. Both bills propose deep cuts in the corporate tax rate — from 35 percent to 20 percent. The bills also call for a territorial tax system to replace the current worldwide tax system, in which multinational corporations with headquarters in the United States are required to pay the U.S. tax rate if they want to bring profits back into the country..."The corporate tax currently is broken," said Mihir Desai, a professor at Harvard Business School and Harvard Law School, whose work was cited (albeit somewhat misinterpreted) by the White House Council of Economic Advisers. "Bringing down the rate and switching the territorial regime so we don't tax corporations on their worldwide income -- both of those are really smart moves."

...In 2011, following an investigation by NPR and the Center for Public Integrity on campus assault, the Obama administration decided to act. The Office for Civil Rights sent a “dear colleague letter” reminding colleges that sexual harassment and assault create an environment so hostile that women’s access to education is jeopardized, violating their civil rights...“O.C.R.’s rationale” was that preponderance of evidence “was the standard for suits alleging civil rights violations like sexual harassment,” wrote Nancy Gertner, a retired federal judge and current Harvard law professor, in The American Prospect in 2015. “True enough, except for the fact that civil trials at which this standard is implemented follow months if not years of discovery.” She continued: “It is the worst of both worlds, the lowest standard of proof coupled with the least protective procedures.”

The Labor Department wants to remove an Obama-era regulation that restricted the circumstances in which employers could force workers to share tips. The DOL’s Wage and Hour Division, in a proposed rule released Dec. 4, calls for rescinding the 2011 regulation that prohibited restaurants, bars, and other service industry employers from requiring front-of-house employees, such as servers, to share tips with back-of-house workers, such as cooks and dishwashers...The proposal would eliminate from the Fair Labor Standards Act language under the 2011 rule that said tips are the property of the employee regardless of whether the employer has applied a tip credit. The department’s analysis that unwinding this rule will improve workplace conditions for restaurant employees was immediately opposed by worker advocates and former DOL officials in the Obama administration. “There is nothing” in the proposed rule “that would preclude an employer from keeping the tips of workers as long as he’s paid them $7.25 an hour,” Sharon Block, who ran the DOL’s policy shop in the Obama White House, told Bloomberg Law.

...On Friday, Trump's former national security adviser pled guilty to lying to the FBI. That alone is a big deal, but the real bombshell was that Michael Flynn had agreed as part of a plea deal to work with the FBI in its investigation into Russia's attempts to swing the 2016 U.S. election. The next day, a tweet appeared about the news...Tweets have already been used in plenty of cases, including against Trump — particularly in relation to his attempts at issuing travel bans on certain Muslim-majority countries. Even deleted tweets have been used in court cases. With Twitter, the main challenge is to show that the account belongs to a particular person, according to Alex Whiting, a law professor at Harvard University and a former prosecutor at the International Criminal Court. That's not an issue when it comes to Trump.

President Donald Trump’s personal lawyer’s legal arguments in defence of the president’s tweets about former U.S. national security advisor Michael Flynn have been greeted with some scepticism by legal experts. In seeking to explain a Trump tweet on Saturday lawyer John Dowd told Reuters on Sunday that he wrote and “bollixed up” the president’s tweet in which Trump said he fired Michael Flynn for lying to the FBI and not just misleading U.S. Vice President Mike Pence...But several lawyers said, regardless of whether Yates explicitly said Flynn lied to the FBI, the White House counsel should have seen that possibility and communicated it to the president. “It’s not every day that the acting attorney general comes over to the White House with that sort of message,” said Alex Whiting, a former federal prosecutor now teaching at Harvard Law School. “It had to have been obvious to McGahn that Flynn probably lied to the FBI whether Yates said it or not.”

An op-ed by Lawrence Lessig. American politics is strikingly bi-polar. We are firmly divided. We are firmly united. Yet the dynamic of the divided part makes the union part almost irrelevant. We are divided by party. Democrats are as far from Republicans as they have ever been in modern American history. We are loyal to our tribe; we punish the disloyal. The machines of our social life  —  Facebook and Twitter  —  feed us ideas we like, and discipline us for deviance from those ideas. If we signal improperly, “friends” may “unfriend” us. So we speak as we should. “Hey, like me! Because, like you, I hate them.” Thus the politics of hate wired to our emotions. Yet at the same time, we are as united as we have ever been. Overwhelmingly, whether Democrat or Republican, we are angry with our government. Overwhelmingly, we see our “representatives” as not representing us.

An article by Jack Goldsmith...This is all depressing enough. But another sharp cost of Trump’s caustic tweets has been largely neglected: The slow destruction of the morale of federal government employees, especially executive branch employees. Just about everyone I knew when I worked in the Justice Department had an idealistic sense of mission—about the importance of law enforcement to the country’s welfare, about the integrity of the department’s actions, and about commitment to the rule of law.

An op-ed by Noah Feldman. The debate over the weekend about whether President Donald Trump or his lawyer wrote a tweet saying National Security Adviser Michael Flynn was fired for lying to the FBI is fascinating -- and beside the point. Despite the enthusiasm of administration critics, a tweet can’t and shouldn’t be the basis of a “confession” of a high crime for impeachment purposes. In other words, regardless of authorship, the tweet can’t be used to prove Trump obstructed justice because he knew about Flynn lying to the Federal Bureau of Investigation when he urged Director James Comey to go easy on Flynn and then fired Comey.

An op-ed by Jesse Fried and Eugene Kontorovich. Emails unearthed in a federal lawsuit appear to show that the American Studies Association’s decision to boycott Israel was orchestrated by a small cadre of academics who infiltrated the ASA’s leadership to demonize the Jewish state. The ASA website says the scholarly group “promotes the development and dissemination of interdisciplinary research on U.S. culture and history in a global context,” but in December 2013 it endorsed an academic boycott of Israel. The ASA’s leadership, called the National Council, backed the boycott resolution and put it to a membership vote. A third of the members voted, and two-thirds of those endorsed the resolution.

An op-ed by Sharon Block and Terri Gerstein. We can all imagine the legion of politicians, media executives and entertainment moguls who are not getting a lot of sleep these days, wondering when their turn in the sexual harassment spotlight will come. That’s a good thing – hopefully, that fear is reforming behavior for them and their peers. An important question is, however, how do we instill the same fear in the hearts of men whose misdeeds won’t land them on the front pages or in the midst of a Twitter storm because they don’t have a public profile. What we’ve learned from the current flurry of revelations about sexual harassment is that public shaming may reform behavior but the law, as is, won’t. That means we need a broad agenda to change the law to protect the millions of women who don’t work for a famous boss.

At a recent Harvard Law School panel discussion on appellate advocacy that included Chief Justice John Roberts Jr., Topic A was how to prepare for and survive oral argument at the U.S. Supreme Court. Advice ranged from writing out and repeating your first sentence—you might not get to say anything else before being interrupted—to wearing the same pearls to every argument, and eating fish the night before and bananas the morning of oral argument. Yes, lots of bananas...Roberts, who argued 39 cases before becoming a judge, urged advocates not to overstate their case at argument. “It’s uncomfortable if you’re a judge and one side comes in and says, ‘This is absolutely clear, only an idiot would think otherwise,’ and the other side says the same thing. Because you’re thinking, ‘Well I’m an idiot one way or the other.’ If you can be fair to the case and not take an immediately extreme position, I always like it when lawyers give something up when they should.

Over 30 technology companies including Alphabet Inc, Amazon.com Inc, and Facebook Inc. on Friday urged a U.S. patent court to disregard drugmaker Allergan Plc’s contention that its transfer of some of its patents to a Native American tribe shields them from the court’s review. Two trade groups comprised of tech industry leaders argued in a joint brief submitted to the U.S. Patent Trial and Appeal Board that the board has the right to review the validity of patents covering the dry eye medicine Restasis that Allergan transferred to the Saint Regis Mohawk Tribe in a deal announced in September...A group of prominent law professors, including Laurence Tribe of Harvard Law School and Erwin Chemerinsky of the University of California at Berkeley, submitted a brief on Friday siding with the tribe and Allergan. “Far from being a scheme to shield patents from review, the agreement from the Tribe’s perspective is part of its economic development plan,” the academics said.

An interview with Catharine Mackinnon. One of the tornados we're seeing today is against sexual harassment — and as the person who first got it recognised as illegal, what do you make of this moment? [Mackinnon]: We're seeing that cataclysm, and it's been building all along. It's about creating a perception that public disclosure will be heard, that women's voices will be listened to. It's partly that we are the backlash to Trump — that his open misogyny and white supremacist appeals were ultimately rewarded awakened a lot of people. Women like Ashley Judd made it possible for other women to speak about their experiences. That has set off this chain reaction, this butterfly effect that is bringing out all the pain, violation, hurt, anger and humiliation.

Donald Trump is increasingly vulnerable to charges of obstructing justice and may have inadvertently confessed following the prosecution of his former senior aide Michael Flynn, according to legal experts and senior Democrats. The US president said in a tweet on Saturday that he fired Flynn as national security adviser in February “because he lied to the vice-president and the FBI” about his discussions with Russia’s ambassador to the US last December. Flynn pleaded guilty in court on Friday to lying to FBI agents...“That’s a confession of deliberate, corrupt obstruction of justice,” said Laurence Tribe, a professor in constitutional law at Harvard University.

Blocks away from Harvard Law School, renowned civil rights attorney and law professor Charles J. Ogletree Jr. was at home with family, readying himself for a celebration in his honor...In his decades-long career, Ogletree’s mind has been his weapon in legal cases that took him from D.C. Superior Court to the U.S. Supreme Court. He represented Anita Hill when she made her 1991 sexual harassment claims against then-Supreme Court nominee Clarence Thomas. And he was a longtime moderator of a 1990s PBS series on ethics, where he challenged some of the nation’s top business and political leaders in debate...Now Ogletree’s mind is battling him. Four years ago, when he was 60, family and colleagues noticed he had begun stumbling over names and repeating stories. The following year, he was diagnosed with Alzheimer’s, a disease that usually ensnares victims 65 and older...Ogletree, sitting next to her, is optimistic. “This disease hasn’t done nothing. It doesn’t bother me,” he said with a large smile.

Colorado soon will begin treating needy hepatitis C patients with the latest antiviral drugs instead of waiting until they are sick enough to qualify. Friday’s decision by the state Medicaid department comes in the midst of a class-action lawsuit filed by the American Civil Liberties Union of Colorado and after top health officials asked the department to lift restrictions that determined which patients could receive life-altering treatment...Colorado’s previous policy, which required Medicaid recipients with the virus to have advanced liver damage in order to receive treatment, was “unconscionable,” said Kevin Costello with Harvard Law School’s Center for Health Law and Policy Innovation, a partner in ACLU’s suit. “Were a cure for cancer to be discovered, no one would tolerate insurance providers telling patients: ‘We need to wait until you get really sick before we treat you,'” he said in a statement after Colorado’s announcement.

Stamford’s largest biotech company is mostly known by government officials and the general public because of one drug. As the maker of OxyContin, Purdue Pharma has been pummeled by controversy since the opioid hit the market in 1996. The company has poured many millions of dollars into promoting Oxy, and made billions in return. But an increasing number of public officials and medical professionals see the revenues as tainted because they say Purdue has knowingly stoked the escalating epidemic of opioid abuse by consistently making false claims about a drug linked to thousands of deaths...In 2007, Purdue pleaded guilty in federal court to illegally misbranding OxyContin to mislead and defraud physicians and patients. The company agreed to pay some $600 million in criminal and civil penalties and other payments. Despite the perception that settlements represent at least some admission of guilt, companies see agreements with plaintiffs as preferable to the risks associated with a case going to trial. “Jury decisions are very unpredictable,” said John Goldberg, a professor at Harvard Law School. “It’s very possible that they’d lose their shirts if they went to trial. There could be some catastrophic punitive damages awarded. They want the closure. What businesses tend to hate the most is uncertainty.”

TV cameras swarmed a federal courthouse on Friday to witness former national security adviser Michael Flynn arrive to plead guilty to a felony count of lying to the FBI about conversations he had with then-Russian ambassador Sergey Kislyak. The stunning news comes only a month after a federal grand jury indicted two top Trump campaign staffers—Paul Manafort and Rick Gates—on charges related to their foreign lobbying work, while lower-level aide George Papadopoulos also pleaded guilty to lying to the FBI. Flynn is now cooperating with special counsel Robert Mueller’s investigation, and the court documents say he had called Kislyak on the orders of an unnamed senior transition official...[Alex Whiting]: Flynn’s plea and cooperation agreement is a very significant development in the Mueller investigation for at least three reasons. First, Flynn admits that when he spoke with Russian Ambassador Kislyak in December 2016, in violation of the Logan Act, about sanctions imposed on Russia and a vote concerning Israeli settlements, he did so under the direction of senior Trump transition team officials.

An op-ed by Cass Sunstein. Talk of impeaching President Trump surged after Michael Flynn, his former national security adviser and transition aide, pleaded guilty to lying to the FBI. But what is the real meaning of the Constitution’s mysterious provision authorizing removal of the president and other federal officials for “treason, bribery, or other high crimes and misdemeanors”? Is the growing interest in impeachment simply wishful thinking by Trump's political opponents?