Media Mentions

If President Trump ordered a senior government official to support the firing of special counsel Robert S. Mueller III, how should that person respond?...Presidential orders cannot ordinarily be ignored or dismissed. Our system gives the commander in chief extraordinary power. Jack Goldsmith, a Harvard University law professor and former assistant attorney general, explained in an email: “A subordinate in the executive branch has a presumptive duty to carry out the command of the president. If one doesn’t want to for any reason, one can resign — or refuse the order and face a strong likelihood of being fired.”

An op-ed by Noah Feldman. The short life of Anthony Scaramucci as White House communications director will be remembered with joy by some, or at least by me. His unbridled self-expression, in the grandest traditions of the First Amendment and the New York street corner, was more like a tornado of fresh air than a mere breath. But the era of the Mooch was also guaranteed to be as brief as the life of a mayfly -- for a serious reason. Important jobs like managing the president’s relationship with the press come with norms and customs: unwritten rules that shape social relations in every culture, and that are based on cumulative wisdom and many decades (sometimes centuries) of trial and error.

...Cable providers are among the most despised businesses in the country, regularly coming in below airlines, banks, and drug companies in public-opinion polls. A mini industry of intermediaries has sprung up to help consumers deal with the providers’ notoriously terrible customer service, offering to negotiate bills and publishing online scripts for getting rates cut (“The fleecing of the U.S. continues!” a representative comment reads)...Cable is essentially a monopoly now in urban areas,” Susan Crawford, a professor at Harvard Law School and a former policy adviser to President Obama on science, technology, and innovation, told me.

Bankruptcy protections tailored to large financial institutions in crisis are back on the agenda in Congress, but using Chapter 11 in these situations has its drawbacks, some scholars and practitioners say. Bipartisan legislation passed by the House and now wrapped into a larger appropriations measure may improve its chances in the Senate if it should get there...Mark J. Roe, a professor at Harvard Law School, believes so strongly that bankruptcy alone can’t handle a financial crisis from collapsed banks that he and co-author Jeffrey Gordon of Columbia Law School wrote congressional leaders. Their May 23 letter was endorsed by 120 financial market and bankruptcy academics...“To repeal OLA and its supporting provisions would be a dangerous error,” Roe and Gordon state in the letter. FIBA in its current state, however, doesn’t repeal OLA. One of the main problems with FIBA is that it “doesn’t allow the regulators to start the bankruptcy,” Roe told Bloomberg BNA July 14.

An op-ed by Trey Herr and Bruce Schneier. Software and computer systems are a standard target of intelligence collection in an age where everything from your phone to your sneakers has been turned into a connected computing device. A modern government intelligence organization must maintain access to some software vulnerabilities into order to target these devices. However, the WannaCry ransomware and NotPetya attacks have called attention to the perennial flipside of this issue—the same vulnerabilities that the U.S. government uses to conduct this targeting can also be exploited by malicious actors if they go unpatched.

An interview with fellow Jessamyn West. Among many other records, Vermont can boast more public libraries per person than any other state in the union. How those libraries get their funding is far from uniform; it can vary greatly from town to town. We're talking about how libraries get the money they use, how they deal with funding challenges, and how it all affects the services they offer to Vermonters.

In this, the summer of our discontent, many college presidents are breathing a sigh of relief that they made it through a politically fraught spring without their campuses erupting...Law deans, in sharp contrast, have reason to be cheery. Their campuses have been largely exempt from ugly free-speech incidents like these...There may be a reason why law students haven't resorted to the extreme tactics we've seen on college campuses: their training. Law school conditions you to know the difference between righteousness and self-righteousness...The rituals of respect shown inside and outside the courtroom come from this training. Those rituals are so powerful that they can trump even the deepest divides. As Kenneth Mack recounts in his book Representing the Race: The Creation of the Civil Rights Lawyer, Thurgood Marshall was able to do things in court that a black man could never do in any other forum, like subjecting a white woman to cross-examination.

Jared Kushner, the son-in-law of Donald Trump, who acts as his senior White House adviser, secured a multimillion-dollar Manhattan real estate deal with a Soviet-born oligarch whose company was cited in a major New York money laundering case now being probed by members of Congress. A Guardian investigation has established a series of overlapping ties and relationships involving alleged Russian money laundering, New York real estate deals and members of Trump’s inner circle...Constitutional experts are also demanding an official inquiry. “We need a full accounting by Trump’s justice department of the unexplained and frankly outrageous settlement that is likely to be just the tip of a vast financial iceberg,” said Laurence Tribe, Harvard University professor of constitutional law.

President Trump is considering pardoning family members and staffers caught up in the Russia investigation, but legal experts warn that it could backfire by making it harder for them to avoid testifying. Under the Fifth Amendment to the Constitution, Americans are protected against self-incrimination, but people who have been pardoned are no longer under any legal jeopardy, Harvard Law School Professor Laurence Tribe told TIME. "Anyone pardoned by Trump would lose most of the 5th Amendment’s protection against compelled testimony that might otherwise have incriminated the pardoned family member or associate, making it much easier for DOJ and Congress to require such individuals to give testimony that could prove highly incriminating to Trump himself," Tribe said in an email.

President Trump’s lawyers are exploring the potential uses of presidential pardons — including whether the president can pardon himself — as part of an effort to undermine special counsel Robert Mueller’s Russia investigation, according to a new Washington Post report. I reached out to 15 legal experts and asked them if the president has the constitutional authority to pardon himself. As it turns out, this is something of a legal gray area... [Mark Tushnet]: The president's constitutional power to pardon "offenses against the United States" is limited only by excluding "cases of Impeachment." A self-pardon for ordinary criminal offenses does not fall within that exception, on my understanding.

An op-ed by Noah Feldman. Having failed to repeal the Affordable Care Act, President Donald Trump is now stating openly that his plan is to let Obamacare fail instead. Although the end result may be the same, there’s a vast difference between these two options, constitutionally speaking. Repeal is a normal legislative initiative, completely within the power of Congress and the president. But intentionally killing a validly enacted law violates the Constitution’s order that the president “shall take care that the laws be faithfully executed.”

An op-ed by Cass Sunstein. All over the world, private and public institutions have been adopting “nudges” -- interventions that preserve freedom of choice, but steer people in a particular direction. A GPS device nudges you. So does a reminder from your doctor, informing you that you have an appointment next Wednesday; an automatic enrollment policy from your employer, defaulting you into a 401(k) plan; and a calorie label at fast-food restaurants, telling you that a cheeseburger won’t be great for your waistline. Recent evidence demonstrates that nudges can be amazingly effective -- far more so, per dollar spent, than other tools, such as economic incentives. But a big question remains: Across different nations, do nudges have the same impact? Here’s a cautionary note.

An op-ed by Jack Goldsmith. We don’t yet know why Mark Corallo, the spokesman for President Trump’s personal legal team, resigned yesterday. Politico, citing anonymous…

A judge in Tennessee is giving inmates a unique way to reduce their sentences: Have a vasectomy. The program was issued in May after Judge Sam Benningfield signed a standing order, which permitted inmates to have their sentences shortened by 30 days in exchange for the sterilizing procedure...Glenn Cohen, a professor at Harvard Law School, said the program was a "bad policy," and pointed to prior court rulings, which set a precedent that could make Benningfield's order unconstitutional. "The approach of this judge is constitutionally questionable. In Skinner v. Oklahoma, the Supreme Court indicated it violated the Constitution to impose sterilization as a punishment for a criminal," Cohen wrote in an email. "This case is slightly different, though, in that it involves sentencing."

Robert Mueller's appointment as special counsel to lead the Russia probe in May caught President Donald Trump by surprise. He was given no heads up and, according to The New York Times, said, "what the hell is this all about?...Even if Trump cannot dispense with Mueller easily, the very idea that he might try exposes an inherent flaw in the US Constitution's design, says Harvard Law School Professor Noah R. Feldman. Feldman points out that the president is ultimately in charge of law enforcement as the head of the executive branch -- a structural arrangement that works just fine until the president or those close to him come under investigation. So if the President tries to fire Mueller or gets him fired, "it would expose a deep flaw in constitutional design" says Feldman, because it shows the ability of the president to successfully block an investigation -- not a sign of a democratic society.

Mark Erlich was a familiar figure at construction sites as executive secretary of the state’s carpenters union. Now Erlich is hitting the hallowed halls of Harvard. He’s joining the Labor and Worklife Program at Harvard Law School as a fellow. He’ll be working with professors and researchers at Harvard and other universities on issues of wages and the underground economy. It’s a topic, he said, that is important not just for the construction industry but for the broader economy.

Economic and Harvard professor Mihir Desai uses philosophy, film, literature, and history to analyze finance as an institution built on morality and humanity. His book explores how the financial industry can be understood through culture, and how deeply finance impacts our personal lives.

The White House’s new communications director, Anthony Scaramucci, isn’t scoring high marks from the school he brags about attending. A Harvard Law School professor was stunned to see Scaramucci bragging on his national television debut Sunday about getting good grades in his constitutional law course about 30 years ago. “I was surprised to hear Anthony Scaramucci mention on CNN the A- he received in the constitutional law course he took from me at Harvard in the late 1980s,” Professor Laurence Tribe told the Daily News. “The syllabus that year apparently didn't cover the issues associated with abusing the pardon power to obstruct justice. Either that, or Mr. Scaramucci has forgotten some of what he learned.”

An op-ed by Andrew Crespo. The New York Times recently unearthed a thorough legal memo, prepared twenty years ago for Independent Counsel Kenneth Starr, that advances the view that a sitting president can be indicted while still in office. For those keeping score, this new memo sharpens an internal divide within the Department of Justice on this important question. Two memos authored by the Office of Legal Counsel—one in 1973, in the midst of the Nixon impeachment saga, the other in 2000, on the heels of the Clinton impeachment saga—take the view that a sitting president is immune from indictment. By contrast, two different memos—authored by the Office of Special Counsel investigating Nixon, and the Office of Independent Counsel investigating Clinton—reach the opposite conclusion.

...The practice of commissioning a cheaper surrogate from a poorer country has long been a controversial one...While it’s impossible to know “what’s presented to you versus what’s really occurring,” Harvard Law School Professor I. Glenn Cohen said, fertility tourists should ask about the welfare of surrogates, including the conditions of their housing, how much of the fee they’re allowed to keep and whether they’ll be penalized for getting an abortion if something goes wrong with the pregnancy. The commissioning couple also should ask about guarantees that their sperm and eggs will be used to make their embryos. Additionally, they should investigate the parentage laws of the country they’re visiting ― and returning home to ― and whether both people in a same-sex marriage will be listed on the birth certificate.

A Democratic watchdog group is accusing President Trump's top environmental law enforcer of misusing funds to rail against the Paris climate agreement. In a letter to the U.S. Government Accountability Office (GAO) sent Thursday, the American Democracy Legal Fund said Environmental Protection Agency head Scott Pruitt, one of the Trump administration's most outspoken critics of the climate deal, violated an obscure grassroots-lobbying law called the Antideficiency Act, which bars federal agencies from spending federal money before it has been appropriated by Congress (or in excess of such funds)...The issues raised in the letter "will likely, in my view, be taken seriously by the comptroller general and his staff," said Howell E. Jackson, a law professor and expert on federal budget policy at Harvard, referring to GAO head Gene L. Dodaro.