Media Mentions

Gold Star father and constitutional rights advocate Khizr Khan spoke at Harvard University’s Kennedy School of Government and Politics on Wednesday evening about immigration, civil rights, Islamophobia and the future of the United States....Intisar Rabb, a professor of law at Harvard Law School and the director of the Islamic Legal Studies Program, spoke at the forum as well and asked Khan several questions. “It’s powerful to focus on and encourage us to not only read the Constitution, but to live its values,” Rabb said. “What is your favorite clause or the one part of the Constitution that you might point someone to? Particularly if they’re more interested in 140 characters or less?” she asked, alluding to President Trump, provoking laughter from the crowd.

As the search for a new Harvard Law School dean enters its second month, students at the school continue to demand further involvement in the selection process and have started to hone in on their priorities for the search...Law School professors Carol S. Steiker, Kristen A. Stilt, Randall L. Kennedy, and Gabriella Blum represented the committee at the second of the two forums, held Tuesday. Dean of Students Marcia L. Sells also attended, according to Law School student Amanda Lee. Lee said about 30 students attended the wide-ranging discussion. Law School faculty at the meeting told students that Faust would be most receptive to emailed feedback...Peter D. Davis ’12, a second-year Law School student who attended the forum, said students focused primarily on three issues at the event. Students at the forum said they were interested in the selection of a dean who will bolster public interest career training and financial support for those careers. They also discussed better integrating international students into the Law School and said the next dean should prioritize transparency with students, according to Davis.

The arrest and threatened deportation of a 23-year-old Mexican immigrant who was brought to the country illegally when he was 7 — but had a valid work permit under President Obama’s deferred-action program — has rekindled the fears of undocumented college students nationwide....Laurence H. Tribe, a constitutional law professor at Harvard Law School who is helping represent Mr. Ramirez, said in an email to The Chronicle that the message the Trump administration is sending to DACA recipients is "a dismal and frightening one. It’s telling them that this government isn’t committed to living up to the promises the Obama administration made to these recipients to induce them to come out from under the shadows."

President Donald Trump’s executive order barring US entry by immigrants and refugees from seven Muslim-majority nations dominated the global conversation. But it’s just one of several important executive orders the Trump administration has made to change the processes and rights available to undocumented people, including refugees, a new report says. Deborah Anker, a Harvard Law School professor and director of the Harvard Immigration and Refugee Clinical Program, wants to draw attention to the interior and border enforcement executive orders that have not gotten a lot of publicity. What they amount to, she says, is “massive detention and deportation without the priorities set out by previous administrations.” The president “has called for the construction of detention facilities across the southern border,” given agents license to make arrests on the “mere suspicion” of undocumented status and greatly diminished the possibility for appeal. For her, all of these moves are troubling, but it’s most problematic for refugees.

Less than a month into his presidency, Donald Trump has faced no shortage of controversies. Donald McGahn — the fiery lawyer who has represented the president since before his election — has been at the center of virtually every one....Jack Goldsmith, a Harvard Law School professor and co-founder of the Lawfare blog, said that part of McGahn’s job is “ensuring that the president avoids legal controversy or related political controversy.” “The White House counsel’s responsibilities go far beyond technical legal compliance,” said Goldsmith, a former assistant attorney general heading the Office of Legal Counsel. “He is supposed to ensure compliance with ethics rules. And he is supposed to anticipate political problems related to legal issues that might adversely affect the president and take steps to protect the president. That McGahn clearly did not do.”

A federal magistrate judge has ordered officials to defend the arrest of an undocumented immigrant who has protection from deportation during a raid last week, BuzzFeed News has learned. Daniel Ramirez was detained by US Immigration and Customs Enforcement (ICE) in Seattle, Washington, on Feb. 10 and threatened with deportation, despite being a recipient of the Deferred Action for Childhood Arrivals program, also known as DACA, a lawsuit filed on Monday alleges...“In granting Daniel DACA status, the federal government has twice determined — after intensive scrutiny — that he presents no threat to national security or public safety,” said another one of Ramirez’s attorneys, Theodore J. Boutrous, a partner at Gibson Dunn. He is joined in the lawsuit by Erwin Chemerinsky, Laurence Tribe, lawyers from Public Counsel, Barrera Legal Group, Hawkins Law Group, and Northwest Immigrants Rights Project.

The resignation under pressure on Monday night of President Trump’s national security adviser, retired Lt. Gen. Michael T. Flynn, centers on the F.B.I.’s scrutiny of his phone calls in late 2016 with the Russian ambassador, Sergey I. Kislyak...But even if Mr. Trump sanctioned the conversation, on its face the Logan Act appears to apply to a president-elect and his top aides, said Laurence Tribe, a Harvard Law School constitutional law professor. A president-elect is not an official of the United States,” Mr. Tribe said. “There is no reason why the Logan Act would not apply to the president-elect since it applies to all private citizens, and the people working on the transition are all working in a private-citizen capacity. They have not taken the oath, so they are covered by the act — to the extent that matters.”

An op-ed by Noah Feldman. Wednesday’s White House visit by Israeli Prime Minister Benjamin Netanyahu has raised speculation that U.S. President Donald Trump will try to tackle Middle East peace, perhaps relying on the efforts of his counselor and son-in-law Jared Kushner. Putting aside the national security turbulence in the administration right now, can it really be done? It’s a given that the odds are long against a comprehensive deal involving the Israelis and the Palestinians. But if everything went just right, and the Trump administration was prepared to make both sides offers they couldn’t refuse, it’s just barely possible that it could generate -- or really, impose -- a regional agreement that would be an improvement over the status quo and might last for some time. To do so, however, the Trump administration would have to offer inducements much greater than have been offered in the past and make credible threats that have been considered unthinkable by previous American leaders.

Federal judge David J. Barron also has a nice literary career. Barron is this year's winner of the William E. Colby Award, a $5,000 honor given for a fiction or nonfiction book about the military, intelligence operations or foreign policy. Barron, a judge for the First Circuit Court of Appeals, was cited for "Waging War: The Clash Between Presidents and Congress, 1776 to ISIS." The Colby prize is named for the late CIA director and is presented by Norwich University in Northfield, Vermont.

An article by Dahlia Lithwick and Jack Goldsmith. One of the central questions animating Jeff Sessions’ bid to be the attorney general of the United States was an abiding sense that—having worked closely with the Trump campaign and having given legal cover to some of Donald Trump’s most radical ideas—he could not be truly independent of the president. Before he was confirmed, Senate Democrats questioned Sessions repeatedly on whether he was capable of acting as an independent check on the executive branch, and Sessions repeated over and over again that he believed he could be. In some sense this debate obscured a deeper truth: The attorney general has a dual and complicated role with respect to the president, and it’s always been a fraught proposition to demand perfect independence. In 2007, Dahlia Lithwick and Jack Goldsmith, responding to a very different attorney general and very different questions about independence, attempted to explain why the relationship isn’t a simple one and how cures nevertheless exist. The original is below.

An op-ed by Jeff Clements and John Coates. Why is the attorney general of Massachusetts, Maura Healey, being forced to justify to a Texas judge why and how she is doing her job? In the latest instance of the corporate takeover of the First Amendment — and other constitutional rights — Exxon Mobil, the world’s largest oil and gas corporation, has invented a constitutional right to obstruct state investigations into allegations of fraud. Investigations by the Massachusetts and New York attorneys general began late last year after the Los Angeles Times reported that Exxon scientists and executives have known for decades about the connection between fossil fuel consumption and the likelihood of catastrophic changes in the Earth’s atmosphere and climate.

U.S. Supreme Court Justice Stephen Breyer has given a talk — entirely in French — about the artistry of courtroom sketches. Breyer spoke in French on Monday during the hour-long forum at the French Cultural Center in Boston. The event was a dialogue with artist Noëlle Herrenschmidt, who draws courtroom scenes in France. Holger Spamann, a Harvard Law School professor who attended the talk, says Breyer also made a case for the professionalism of judges and the importance of their detachment from politics.

Put the records back on the internet. That’s the demand made in a lawsuit filed today against the U.S. Department of Agriculture (USDA) by an animal law expert at Harvard University, together with the People for the Ethical Treatment of Animals (PETA) and several other animal welfare groups. The plaintiffs allege that USDA violated the federal Freedom of Information Act (FOIA) earlier this month when it removed thousands of animal welfare inspection reports and other records from a publicly accessible website. “Our lawsuit seeks to compel the USDA to reinstate the records, which it had no right to remove from its website in the first place,” said Delcianna Winders, currently the Academic Fellow of the Harvard Animal Law & Policy Program, in a statement. “The government should not be in the business of hiding animal abusers and lawbreakers from public scrutiny."

Shortly after Thursday’s appeals court decision blocking his travel ban, President Trump vowed to fight on. “SEE YOU IN COURT,” he wrote on Twitter. But which court? Here is a look at Mr. Trump’s options...Richard J. Lazarus, a law professor at Harvard, said the justices should take a different approach in this case if the administration files an emergency application, recalling that the court heard arguments in very short order when the Nixon administration in 1971 unsuccessfully sought to block The New York Times and The Washington Post from publishing a secret history of the Vietnam War. “The court should receive briefs from both sides, hear oral argument, deliberate among themselves in person and then decide,” Professor Lazarus said. “They can do so quickly, as they have done in the past, for example in the Pentagon Papers case.”

When online crowdfunding sites like Kickstarter and GoFundMe debuted, people hoping to invent and sell a better bottle opener, those in need of help with medical bills and all sorts of personal would-be fundraisers talked about the concept in grand, world-changing ways. This, they said, was a disruptive, potentially transformative financial development. A new website aims to mash up that kind of popular Internet fundraising with legal work, hoping to turn legal cases into publicly funded — and backed — social causes...Third-party litigation finance — such as crowdsourcing — is a relatively new field, one that has emerged within the past decade, said Bruce Hay, a Harvard law professor who specializes in procedures and ethics. In the past three years, Hay said, he has seen some of his students graduate and become litigation financiers focused on corporate cases, not public-interest law and nonprofit causes. Regulators and courts have been generally accepting of the practice, so long as firewalls are established to keep the financiers out of decisions lawyers must make, Hay said. Before such funding practices, lawyers sometimes took out bank loans to finance cases, Hay said.

...Over the past couple of years, a small number of people have been sneaking across the border at Manitoba from the United States and then filing for asylum, Canadian Border Service Agency statistics show. But since the fall, refugee workers in Winnipeg say, there has been a noticeable surge...On Wednesday, the immigration and refugee clinical program at Harvard Law School issued a report stating that Mr. Trump’s executive orders on immigration made the United States “not a safe country of asylum” for people fleeing persecution and violence.

“Hidden Figures” was the big winner at the 48th NAACP Image Awards...Special honors were presented to Harvard Law School professor Charles J. Ogletree Jr. and Lonnie G. Bunch III, the director of the National Museum of African American History and Culture in Washington, who won the chairman’s award and the president’s award, respectively. Both received standing ovations. “I’m very honored to receive this amazing award, thank you very much,” said Ogletree

Donald Trump has long talked about reining in the Environmental Protection Agency (EPA), which is in charge of enforcing federal laws on air and water pollution. It’s a top priority for his supporters in the fossil-fuel industry...By the way, it’s unlikely that Pruitt can tear up the EPA’s Endangerment Finding, the 2009 analysis establishing that greenhouse gases were a threat and therefore need to be regulated, without Congress. “That has a voluminous scientific foundation behind it,” said Jody Freeman, a Harvard law professor and former Obama climate advisor. “The Trump administration couldn’t just come in and say nope, no more endangerment! There’s almost no chance that would be upheld [in court].” Plus, in a weird twist, if the EPA’s authority were repealed, that could open the door for common law suits against polluters in the states — a potential nightmare for companies.

Are we in a constitutional crisis?...Luckily, the legal literature has developed other, arguably clearer, categories for talking about heated conflict like this. In 2004, Mark Tushnet, now at Harvard Law, introduced the concept of "constitutional hardball": when political actors are clearly acting within their legal and institutional limits, but are violating past practices or norms in a way that feels unprecedented and provides advantage to their side...“In the current spat, if there is hardball going on, it takes the form of White House people bypassing the established systems for vetting executive orders,” Tushnet told me. “Not submitting them to career people in the Office of Legal Counsel, but sending it apparently only to the political, shadow person they sent over there. They can say, ‘We did send it to OLC,’ but the person who got it is not the kind of person who’d ordinarily be used to vet these issues.”

An op-ed by Noah Feldman. U.S. President Donald Trump’s phone call with Chinese President Xi Jinping and the weekend visit of Japanese Prime Minister Shinzo Abe are important reminders of a basic reality: While we Americans obsess over the constitutionality of the president’s executive order on immigration, the rest of the world keeps on going. Measured by number of people it affects, foreign policy outranks domestic affairs. If Trump manages to create diplomatic chaos in Asia, history won’t pay much attention to the rest of his presidency.

An op-ed by Martha Minow and Robert Post. Last Saturday, President Trump tweeted, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” In mocking Judge James L. Robart, the federal district court judge who stayed the president’s executive order banning travel for individuals from seven predominantly Muslim countries, Trump risks making an enemy of the law and the Constitution. He then expressed contempt for the deliberations of the three-member appellate court convened to review Robart’s order, calling the legal argument “disgraceful,” and remarking that a “bad high school student would understand this” — before the appellate panel unanimously left Robart’s order in place. Now Trump is attacking anyone who calls him to account — senators, scientists, the civil service, the media, and the Democratic Party, to name a few.