Media Mentions

An op-ed by Cass Sunstein. In light of the recent White House controversies, it is inevitable that some people are starting to wonder whether, at any point, President Donald Trump might be impeachable. The best way to answer that question is to bracket controversies about any particular president and to ask: What, exactly, does the Constitution say about impeachment? As we shall see, Nancy Pelosi, the House minority leader, was altogether wrong to proclaim that the president cannot be impeached unless he has broken the law. But Gerald Ford was even more wrong to say, in 1970 (when he was minority leader), that the House of Representatives can impeach the president on whatever grounds it likes.

An op-ed by Noah Feldman. If the U.S. Supreme Court were to reverse Roe v. Wade, individual states could still permit abortion. But, in theory, the Supreme Court could go further, and rule that laws permitting abortion violate the equal protection rights of unborn fetuses. That may seem far-fetched -- but in his book on assisted suicide and euthanasia, Judge Neil Gorsuch lays out an argument that could easily be used to this end. Gorsuch, President Donald Trump’s nominee for a seat on the Supreme Court, carefully avoids discussing abortion rights directly in his book. Yet his disparagement of what he calls “ageism” amounts to a principle that could easily be applied to fetuses.

An op-ed by Noah Feldman. The resignation of National Security Adviser Michael Flynn grew out of Department of Justice concerns that he had violated the Logan Act, a law from 1799(!) that bars private citizens from engaging in international diplomacy. The law as written applied to Flynn even though he was working for the president-elect when he engaged in a phone call with Russian ambassador to the U.S. But there’s a more serious problem, which should be kept in mind in case there’s an investigation of whether Donald Trump violated the law: It is probably unconstitutional. Enacted by the Congress that brought you the Alien and Sedition acts, the law is too vague for enforcement. And it violates free-speech standards that are the law today but went unrecognized by the John Adams administration.

The six largest U.S. banks could see annual profit jump by an average of 14 percent if President Donald Trump delivers on his promise to cut corporate taxes. The lenders, which stand to benefit more than other industries because they typically have fewer deductions, could save a combined $12 billion a year, according to data compiled by Bloomberg. Trump has called for cutting the corporate tax rate to 15 percent from 35 percent...While the cost of borrowing has been low since 2008, interest expenses can be much higher. Banks incorporate net-interest income -- interest earned on assets less interest paid on deposits and other debt -- in their revenue calculations. Revenue would balloon if interest expenses were excluded from this calculation. "Without the interest-expense deduction, many mainstream banks would go out of business," said Mark Roe, a professor at Harvard Law School. "They'd be paying tax on gross revenue, not profits."

Black children account for eight out of 100 Los Angeles County children, yet they make up 28 out of 100 foster children, according to Department of Children and Family Services data. The reason for that difference is a subject of dispute among child welfare professionals...Elizabeth Bartholet, the director of Harvard Law School’s Child Advocacy Program, was among the skeptics of the path Los Angeles had chosen. As a young lawyer, Bartholet had worked for the NAACP Legal Defense Fund and had, over her career, mentored a generation of civil rights attorneys. Bartholet marshaled data to argue that when poverty and neighborhood characteristics are used to analyze foster care rates, race disappears as an explanatory factor.

There could soon be something new to check out at your grocery store. The food industry is working to simplify labels on perishable food. Date stamps like “best by,” “sell by,” “use by” and “best before” can be confusing for shoppers...“There’s always this habit of going to the back of the shelf and taking the milk with the date that’s furthest out,” said Emily Broad Leib, director of Harvard Law School Food Law and Policy Clinic. “I think this will really help consumers know when does that date matter and when does it not really matter for safety reasons.”

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.