Media Mentions

An op-ed by Noah Feldman. Oh for the days when Donald Trump wasn’t taking the presidential daily brief -- and didn’t know highly classified information that he could give to the Russians. But a bit bizarrely, Trump’s reported disclosure of Islamic State plans to two Russian officials during an Oval Office visit last week wasn’t illegal. If anyone else in the government, except possibly the vice president, had revealed such classified information that person would be going to prison. The president, however, has inherent constitutional authority to declassify information at will. And that means the federal laws that criminalize the disclosure of classified secrets don’t apply to him.

An op-ed by Noah Feldman. Outside the headlines, something remarkable is going on in Syria. The Kurds, making a long-term play for an autonomous region, seem to have decided that their best bet is to buy it from Syrian President Bashar al-Assad. And the U.S. is signaling that it may be on-board -- a startling reflection of its pro-Russian, anti-Turkish policy. The evidence for this reading of events starts with the upcoming fight for Raqqa, the headquarters of Islamic State. The so-called Syrian Democratic Forces, an umbrella group of fighters dominated by the Syrian Kurdish force known as the YPG, has reportedly gotten the green light to go ahead not only from the U.S. but also from Assad and Russia.

An interview with Kristin Turner `17. Why are mixed-race colleges having black-only graduation ceremonies? We’ll ask. Harvard will host its first ever university-wide black commencement. On campuses across the country, there are also Lavender Ceremonies for LGBT students and RAZA celebrations for Latino students. Student organizers say the goal is to have a safe space to honor unique student achievements. Critics say it's segregation and there should be one commencement for everyone. This hour On Point, a big rethink of graduation ceremonies.

When Supreme Court Justice Antonin Scalia had to decide in 2006 which wetlands and waterways make up the "waters of the U.S." protected by the Clean Water Act, he reached for his trusty Webster's New International Dictionary: Second Edition. What, he asked Webster's, is the meaning of the word "waters"? The dictionary, which the late conservative icon loved so much it appears in his official Supreme Court portrait, was the basis for Scalia's opinion in Rapanos v. United States, concluding that Clean Water Act protection extends only to relatively permanent surface waters and wetlands connected to larger water bodies...Harvard Law School professor Richard Lazarus agrees, saying arguing about Webster's dictionaries "is probably not a viable argument" as long as Kennedy remains on the bench. But dictionary definitions of "waters" could once again become significant if Kennedy leaves the court during the Trump administration, Lazarus said.

The National Football League should consider providing treatment to any player caught using performance-enhancing drugs, according to a new Harvard University study. The recommendation was one of several put forward by researchers from the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School...“NFL football has a storied history and holds an important place in this country,” the authors wrote, while noting the NFL is the top-grossing pro sports league in the United States with 2017 revenues expected to reach $14 billion. “The men who play it deserve to be protected and have their health needs met and it is our fervent hope that they will be met.”

...The sport of football, in 2017, is in a state of intense self-scout. The reasons are many: self-preservation, love for the game, fear of the game, concern for the livelihood, a desire to find concrete answers to nebulous questions. Etc. It’s in this landscape that Harvard researchers released a new report today about the health and safety practices for players at the game’s highest level. It’s part of the Football Players Health Study, a long-term project funded through the NFL Players’ Association by money set aside in the 2011 collective bargaining agreement...“We are in a moment where [because of] people’s attitudes toward football and toward the health risks of football, these conversations have to happen,” says I. Glenn Cohen, Harvard Law School professor and a co-author of the study.

The physical demands are different. The types and severity of injuries are different. And the economics can vary wildly. But there are several common threads shared by professional sports leagues when it comes to health and safety issues, and a new report from the Harvard Law School is seeking to identify, study and compare them...“In terms of employee benefits, we think the NFL actually offers many employee benefits that Fortune 500 companies and many good employers do not,” said Harvard’s Glenn Cohen, one of the study’s co-authors...“Where players have only played one or two seasons (and perhaps games), there might be questions as to whether it is appropriate to provide lifetime health insurance to someone who was employed for such a short period of time,” states the report, which was co-written with Christopher Deubert and Holly Fernandez Lynch.

A decades-old settlement in Manhattan federal court serves as a measuring stick for how far Big Law has come in the fight for gender equality...The case, Blank v. Sullivan & Cromwell, was part of a series of lawsuits and complaints filed in the 1970s that put law firms on notice that women expected equal treatment in the legal profession under the relatively new law, Title VII of the 1964 Civil Rights Act, which prohibited employment discrimination based on race, color, religion, sex, and national origin...Blank “was one of the handful of cases that opened up the law firm world to women,” said Tomiko Brown-Nagin, a Harvard Law School professor who studied the case as part of her work on a biography of Constance Baker Motley, the Southern District of New York judge who oversaw it.

Ed Robinson, Stein’s attorney, countered with his fake news defense: His client’s fears about Somalis were a byproduct of screeds on Facebook and conspiracy theories not only from right-wing web sites, but from Donald Trump himself...Whatever impact Trump’s rhetoric had on the Crusaders, it has little basis in fact. A study conducted by Nora Ellingsen [`18], a Harvard Law School student, identified a total of 97 terrorism suspects arrested as part of FBI counterterrorism investigations over the past two years. Only two involved refugees from countries on Trump’s list of majority-Muslim countries...“Since January 2015,” Ellingsen concludes, “the FBI has arrested more anti-immigrant American citizens plotting violent attacks on Muslims within the United States than it has refugees, or former refugees, from any banned country. The empirical data indicate that foreign nationals simply aren’t plotting attacks within U.S. borders at the same rate as U.S. citizens. Indeed, the rates aren’t anywhere close to comparable.”

...To Americans of a certain age, Washington’s atmosphere recalls the Watergate crisis that made Richard Nixon the first man to resign the presidency. Laurence Tribe, a professor of constitutional law at Harvard Law School and a former counsellor to Mr Obama, says the first article of the impeachment against Mr Nixon accused him of obstructing justice. Most Republicans in Washington have only loose ties to Mr Trump, a populist who executed a hostile takeover of the party. If his standing deteriorates, more Republicans could embrace the idea of a special counsel to investigate the Russia links. “The ability of the system to dust itself off and move forward cannot be taken for granted,” says Mr Tribe. “It is a dangerous time.”

The WikiLeaks publication of hacking tools and malware the CIA has allegedly used continues to stir the ire and fear of those concerned about the possible risk of the US government’s backdoor access to private data. But WikiLeaks’ publication of alleged CIA-created malware instructions, which the CIA has not confirmed as authentic, diverts attention away from how numerous other state-sponsored agents are aggressively seeking to steal intellectual property and other data, security experts say...Tools developed by governmental agencies also often eventually trickle down for use by hackers once they are leaked. The hacking tools revealed in the Vault 7 data, have been “around for a while” because of the dates on the files, Bruce Schneier, the chief technology officer of IBM Resilient and a fellow at Harvard’s Berkman Center, told Intellectual Property Watch. “Today’s top-secret NSA programs become tomorrow’s PhD theses and tomorrow’s hacker tools,” Schneier said. “These capabilities goes downhill.”

An op-ed by Noah Feldman. Calling Donald Trump’s firing of FBI Director James Comey a constitutional crisis is an exercise in crying wolf. At first it was just a few Democratic senators and representatives reacting in the moment, which called for disagreement but not detailed rebuttal. Now, after reflection, some serious constitutional experts are still using the phrase “constitutional crisis” to describe Tuesday’s events. That’s not just analytically mistaken but also potentially dangerous, especially in the Trump era. We need to save the concept of constitutional crisis for situations where there’s a fundamental breakdown in the structure of government.

An op-ed by Vivek Krishnamurthy. Since President Trump’s surprise firing of FBI Director James Comey on Tuesday evening, there’s been a lot of talk about appointing a special prosecutor to continue investigating Russian interference in the 2016 election, but little discussion of who should be the next FBI director. Important as it is to have an impartial investigation of whether a foreign power tilted the last election, it’s even more important that the nation’s next top law enforcement official be a woman or man of the utmost integrity who has the courage to stand up to an imperious president.

An op-ed by Hal Scott. Somewhere in the United States right now, an entrepreneur is having trouble getting a small-business loan for expansion. The reason? The bank is committed to keeping a large portion of its money in government debt instead. After the financial crisis, the government, in the form of the Federal Reserve, the Comptroller of the Currency and the Federal Deposit Insurance Corporation, imposed liquidity requirements that force American banks with assets over $50 billion to hold huge amounts of government debt as liquid assets...American banks are truly awash in government debt at five times pre-crisis levels. If President Trump wants to follow through on his promise to increase lending to small businesses, he should start by scaling back these requirements.

An interview with Laurence Tribe. President Trump's firing of FBI Director James Comey has led to renewed calls by Democrats for a special prosecutor to investigate Russia's influence on the presidential election and ties between the Trump campaign and Russia. There are also calls for the president's impeachment.

An op-ed by Nancy Gertner and fellow Chiraag Bains. Last week, Attorney General Jeff Session instructed the nation’s 2,300 federal prosecutors to pursue the most serious charges in all but exceptional cases. Rescinding a 2013 policy that sought to avoid mandatory minimums for low-level, nonviolent drug offenders, Sessions wrote it was the “moral and just” thing to do. Sessions couldn’t be more wrong. We served as a federal prosecutor and a federal judge respectively. In our experience, mandatory minimums have swelled the federal prison population and led to scandalous racial disparities. They have caused untold misery at great expense. And they have not made us safer.

The Trump administration's story of why FBI director James Comey was fired, which began to twist almost as soon as it was told, took another turn on Thursday when the president said this to NBC News:"And in fact, when I decided to just do it, I said to myself, I said, 'You know, this Russia thing with Trump and Russia is a made-up story.'"...That has led to speculation that the president may have obstructed justice - a criminal offense. But experts say that suspecting obstruction of justice and proving it are two very different things...The key legal statute in this case is 18 US Code Section 1512, which contains a broad definition allowing charges to be brought against someone who "obstructs, influences, or impedes any official proceeding, or attempts to do so". "The statutes are quite broadly written," said Alex Whiting, a former prosecutor and law professor at Harvard Law School, "but the key factor, certainly in this case, is intent."

An op-ed by Delcianna Winders. More than two decades ago, with the aim of “foster[ing] democracy by ensuring public access to agency records and information,” Congress amended the Freedom of Information Act to require agencies to proactively post frequently requested records online. As the legislative history makes clear, the purpose of this mandate was to “prompt agencies to make information available affirmatively on their own initiative in order to meet anticipated public demand for it.”...Now, in an attempt to persuade a court to dismiss a lawsuit filed by myself and others challenging the blackout, the USDA has asserted that it was never under any legal duty to post the records — this despite the clear statutory mandate that agencies proactively post frequently requested records, the agency’s acknowledgement that the records at issue were the single most frequently requested, and even its prior recognition that it was legally required to post the records.

Leading civil rights and education groups directed a torrent of criticism at a Malden charter school Friday for disciplining black and biracial students who wear hairstyles that administrators say violate the school’s dress code...The school’s desire to erase economic differences among students — to, in effect, create a level playing field — is reasonable, said Tomiko Brown-Nagin, a Harvard Law School professor who teaches education law and policy. But such policies, she said, can rub up against the equally reasonable imperative to be non-discriminatory. Brown-Nagin said courts have given employers and schools wide discretion in grooming codes but have challenged schools’ discretion when grooming codes infringe on cultural expression. “It strikes me as a laudable goal to try to reduce visible economic disparities among students,” Brown-Nagin said.

Since the news broke on Tuesday that Donald Trump had fired FBI Director James Comey, Harvard Law School’s Laurence Tribe has been arguing that the president’s conduct, in and of itself, is illegal and amounts to impeachable “high crimes and misdemeanors.” Tribe has been acting as citizen attorney general in the “shadow Cabinet” formed by progressive leaders in response to the Trump Administration and tweeting from the @ShadowingTrump handle. Tribe’s tweets (from @tribelaw) have become their own form of must-see TV for the resistance.

The Senate Intelligence Committee’s subpoena of Michael Flynn’s private documents sets up a potential battle between the legislative and executive branches over whether the Justice Department will enforce Congress’s will. The Justice Department is charged with enforcing congressional subpoenas. But it is led by Attorney General Jeff Sessions, and the Flynn subpoenas are related to investigations of Russia’s involvement in last year’s election, a sore spot for President Trump...Charles Fried, a professor at Harvard Law School and a former solicitor general of the United States, says that practically speaking the Congress doesn’t have much recourse if the Justice Department refuses to enforce a contempt citation. “They can declare various officials in contempt," Fried noted but ultimately “Congress has no power of prosecution.”