This Charge Is Different

January 18, 2019

It’s not just the collusion. It’s the conspiracy. Thursday evening, BuzzFeed News dropped a bombshell, reporting that President Donald Trump told Michael Cohen, his former personal attorney, to lie to Congress about the Trump Organization’s pursuit of a real-estate project in Moscow during the 2016 election, during a period in which the Russian government was seeking to aid Trump’s presidential campaign. … “If it is true, and can be proven, that Trump directed Cohen to lie to Congress, then he has no wiggle room,” said Alex Whiting, a law professor at Harvard and a former federal prosecutor. “There has been some debate about whether acts by the president to curtail a criminal investigation can be obstruction, since he is the head of the executive [branch] … but instructing or encouraging another person to lie under oath to Congress falls outside of that debate. There is no question that it was a crime for Cohen to lie to Congress, and Trump’s role in soliciting or directing that lie makes him criminally liable as well.”

Eminent domain, the big-government tactic Trump needs to use to build the wall, explained

January 18, 2019

The practical realities of building new physical barriers along the US-Mexico border are bringing two cherished conservative principles into conflict — loyalty to Donald Trump and the sanctity of private property. … Laurence Tribe, a professor of constitutional law at Harvard Law School, told me that when a private landowner is approached by a government agency that wants their land, that agency“typically gives them a deadline by which they must either sell the designated parcel of land to the federal government at the price offered by the government, or have it involuntarily taken by eminent domain at fair market value.”

Harvard affirmative action case pits Asian Americans against each other — and everyone else

January 18, 2019

An op-ed by Megan Liu ’19: Comedian Hasan Minhaj dedicated the premiere episode of his Netflix show “Patriot Act” to villainizing the Asian American plaintiffs in the Harvard anti-Asian bias lawsuit. He closes out the episode by calling them “the worst kind” of American for potentially jeopardizing affirmative action. I was alarmed and dismayed at this hostile critique from one of the few politically outspoken Asian Americans in Hollywood. Minhaj’s depiction of the plaintiffs perfectly highlights how Asian Americans still struggle to find a collective voice in America’s black-and-white racial discourse.

The Supreme Court should reject requests for a do-over on state clean energy programs

January 18, 2019

An op-ed by Ari Peskoe, Director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program: Last week, power generation companies asked the Supreme Court to review a pair of lower court decisions upholding states’ Zero Emission Credit (ZEC) programs. Nearly identical ZEC programs enacted by New York and Illinois require utilities to compensate certain nuclear plants for their emission-free power by purchasing credits that represent the environmental benefits of zero-emission energy.

Faced With Bad Optics, Trump Recalls Workers

January 18, 2019

From tax return processors to food inspectors, the Trump administration this week ordered tens of thousands of federal employees back to work – many without pay – at agencies involved with the most politically sensitive of issues. More than 40,000 IRS employees were told to report for work after criticisms that tax returns would not be processed in time – a development that assuredly would have sparked outrage among taxpayers. … “There’s nothing in the statute that I’m aware of, or any regulations that have interpreted the terms of the emergency exception, to include a ‘Really Important Things That We Think the Government Should be Doing and Would be Really Unpopular if They Don’t Do Them’ exception,” says Richard Lazarus, law professor at Harvard University. “I don’t know how that possibly fits – but they know there will be hell to pay if people don’t get their tax refunds.”

Why It Took 277 Pages to Cut One Question From the Census

January 17, 2019

An op-ed by Noah Feldman: There’s no such thing as a perfectly bulletproof judicial opinion. But the 277-page decision blocking the Trump administration from asking about citizenship on the 2020 census comes close. The opinion, issued Tuesday by Judge Jesse Furman of the U.S. District Court for the Southern District of New York, is a masterpiece of factual and legal analysis, both detailed and duplicative, that is designed to withstand an expedited appeal to the U.S. Court of Appeals for the 2nd Circuit and potential blocking or review by the Supreme Court. Its bottom line is clear: Secretary of Commerce Wilbur Ross broke the legal rules when he ordered the citizenship question to be added to the census. Whatever his real motive was, it wasn’t to find out how many noncitizens live in the U.S.

Another blow to Trump’s self-enrichment scheme

January 17, 2019

The General Services Administration “ignored” concerns that President Trump’s lease on a government-owned building — the one that houses his Trump International Hotel in Washington — might violate the Constitution when it allowed Trump to keep the lease after he took office, according to a new report from the agency’s inspector general. . .  The report does not recommend that Trump’s lease be canceled. Instead, the inspector general recommends a new legal review of the deal. … Constitutional scholar Larry Tribe finds that “It’s notable and admirable that GSA has recognized, however belatedly, that all public officials and agencies — from the president on down — are bound by Article VI to follow the U.S. Constitution.” He tells me: “That GSA should have addressed the constitutionality of the lease itself, given that the president was both landlord and tenant, is true, but I wouldn’t let the perfect be

Walsh And College Presidents Oppose Proposal To Offer More Due-Process Protections To Students Accused Of Sexual Assault

January 17, 2019

Boston Mayor Marty Walsh and presidents of three colleges in the city are lining up against a Trump administration proposal to offer more protections to students accused of sexual assault. … “The single-investigator model … is a star chamber,” said former federal Judge Nancy Gertner, who’s now a senior lecturer at Harvard Law School. “[It] is an enormously unfair model. It doesn’t offer any protections to either side. It’s not the way you get at the truth.”

Pelosi’s Letter Effectively Bans Trump From Delivering Traditional State of the Union

January 16, 2019

… Larry Tribe, professor of Constitutional law at Harvard Law School, says that as long as Pelosi is opposed to the State of the Union happening, as scheduled, on Jan. 29, it won’t happen. “Pelosi was basically uninviting the President, but doing it diplomatically,” Tribe tells Fortune. “The form in which the State of the Union address is delivered isn’t constitutionally specified, but if it’s to be delivered as a Joint Session of Congress as has become the custom, the House and Senate must jointly adopt a resolution to schedule it. Without that, he can’t come. Neither chamber has adopted such a resolution yet, and as long as Pelosi opposes it, it’s DOA.”