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News@Law, 05/11/2017

News@Law is a selection of the day's news clips regarding Harvard Law School.
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Today's News

The Washington Post
Rosenstein and Justice Department lawyers now have special obligations
...To put it bluntly, Rosenstein was tasked with overseeing an investigation in which — for arguably false, pretextual reasons — he assisted in and recommended the firing of the lead investigator. What he thought he was doing or why he thought this was remotely acceptable has former Justice Department lawyers flummoxed...Rosenstein might consider resigning, perhaps the one act that could save his reputation and restore the integrity of the Justice Department. At the very least, Rosenstein “could partially redeem himself by asking a 3-judge court to appoint a genuinely independent prosecutor to investigate the Russia-Trump connection,” says constitutional expert and Harvard Law professor Laurence Tribe.
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The Atlantic
What Happens to the FBI’s Russia Investigation Now?
About a week ago, FBI Director James Comey went before the Senate Intelligence Committee to testify on two FBI investigations: one of Hillary Clinton and her emails, and another of Russian meddling in the 2016 election and any connections the Trump campaign may have had to the Russians. The former investigation was conducted and closed amid much public scrutiny and controversy. The second, no less controversial investigation is ongoing, but Comey refused to go into it in detail. And this Tuesday, Comey was fired, having never wrapped up the second investigation. So what happens to that still unfinished Russia investigation?...“The investigation will go forward in the short run,” said Jack Goldsmith, a professor at Harvard Law School and an assistant attorney general under George W. Bush. “The question is how vigorous it will be.”
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Harvard Gazette
The fallout from Comey’s firing
In a major and surprising shift, the Trump administration late Tuesday fired FBI Director James Comey. Citing recommendations by Justice Department officials, President Trump said Comey was dismissed for mishandling the investigation into Hillary Clinton’s email practices. Skeptics of that rationale were quick to note that Comey oversaw the criminal and counterintelligence investigation into alleged ties between Trump associates and Russian officials, as well as Russia’s involvement in hacking the 2016 election. Comey had earned the ire of both political parties for his unusual pronouncements late in the campaign confirming the FBI’s probe into Clinton’s use of private emails for some public business while she was secretary of state....Alex Whiting is a professor of practice at Harvard Law School who focuses on complex international and domestic prosecutions...Whiting spoke with the Gazette about the legal issues surrounding Comey’s dismissal.
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U.S. News & World Report
FBI Director Firing in Early ’90s Had Some Similarities to Comey Ouster
Less than a year into the new president's administration, the FBI director was fired. His conduct had been scrutinized before the election, but when the opposition party won, it took months for him to be out of a job. William S. Sessions, fired in July 1993, was until Tuesday the only FBI director dismissed in the middle of a 10-year term. He claimed politics led to his ouster, a view held to this day by some supporters. There are many similarities between President Bill Clinton's firing of Sessions and President Donald Trump's firing of James Comey, as well as many foundational distinctions...Still, "they could have stood by Sessions longer than they did," says Harvard Law School professor Philip Heymann, deputy attorney general at the time. Heymann can’t recall personally lobbying one way or the other but says in retrospect he believes politics were at play.
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Bloomberg
First He Came for the FBI. What’s Next?
An op-ed by Cass Sunstein. Taken by itself and out of context, President Donald Trump’s decision to fire FBI Director James Comey was hardly unreasonable. Hillary Clinton might have done the same thing. No one should doubt that Comey is an honorable man. But fairly or unfairly, he had lost the trust of the American people, largely because of his controversial choices with respect to the investigation of Clinton’s emails and Russia’s role in the presidential election. In a highly polarized period, when so many decisions are regarded suspiciously, trust is an essential commodity, especially for the head of the Federal Bureau of Investigation.
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First Things
Restraining Populism
An article by Samuel Moyn. German Chancellor Angela Merkel wrote Donald Trump a public letter the day after his election. “Germany and America are connected by values of democracy, freedom and respect for the law and the dignity of man, independent of origin, skin color, religion, gender, sexual orientation or political views,” she said. “I offer the next President of the United States close cooperation on the basis of these values.” It was a restatement of ideals that many Americans regard as obvious. But the fact that she felt it necessary to return to fundamentals reveals something important about our present circumstances. A rising populism is challenging the postwar system in Europe, and perhaps in the United States, and this may threaten some deep principles.
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Newsweek
What do the Flynn Subpoenas in Virginia Mean?
An op-ed by Alex Whiting. CNN is reporting that a federal grand jury sitting in Alexandria, Virginia, has issued subpoenas in the last weeks seeking documents and records from associates of Michael Flynn pertaining to Flynn’s activities after he was forced out as head of the Defense Intelligence Agency in 2014 and before he became Trump’s National Security Advisor in 2017. Does this development represent a significant escalation in the investigation of Flynn? The answer is, not necessarily.
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AP
Trump asserts Comey told him he’s not under investigation
President Donald Trump asserted in his extraordinary letter firing James Comey that the ousted FBI director told him three times he’s not under investigation, a questionable claim that if true would be a startling breach of protocol...Harvard Law School professor Laurence Tribe, who served in the Obama Justice Department, wrote, “That self-serving assertion was completely implausible. To put it bluntly, it appears to have been a blatant lie.” Tribe said “it would have violated well-established DOJ rules and policies for the director to offer any such assurance to anyone, especially the president. In addition, given Comey’s dependence on the president for retention of his role as head of the FBI, offering that assurance would be highly unethical and at odds with Comey’s reputation as a man of integrity.”
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France 24
Trump Fires Comey: Russia probe looms large in FBI director’s dismissal (video)
An interview with Alex Whiting. Is this Trump’s Watergate moment? Just as the FBI is investigating his administration's present and past ties to Russia, director James Comey heard on the news that he'd been fired. The official reason: Comey's handling of the investigation of Hillary Clinton’s emails. How will the sacking define Trump's presidency, his way of governing, and his relations with his own government agencies? Will this latest twist play to Vladimir Putin's advantage?
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ThinkProgress
Trump’s firing of FBI director could be an impeachable offense, constitutional law experts say
Constitutional law experts say that while President Donald Trump’s decision to fire Federal Bureau of Investigation Director James Comey was legal, it appears to be an abuse of power that could constitute an impeachable offense. Trump’s decision to terminate Comey, the head of the nation’s top law enforcement agency, was announced Tuesday and sent shockwaves throughout the political sphere...Laurence H. Tribe, a professor of constitutional law at Harvard Law School went one step further. In an email to ThinkProgress, Tribe said that Trump’s firing of Comey has triggered a constitutional crisis. Only a fully independent investigation can prevent this crisis from “engulfing our democracy,” wrote Tribe.
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Law.com
The Changing Legal Profession: An Insider’s View of the Future of Legal Services
The corporate legal services industry is in need of massive change to address fundamental shortcomings, according to panelists at Wednesday’s “Magna Carta for the Corporate Legal Services Industry” session at the Corporate Legal Operations Consortium’s (CLOC) annual institute in Las Vegas. But what exactly are the changes needed and who can really drive them?...Billing is another area in legal that is often cited as in need of revision because while there’s been a push for alternative fee arrangements in recent years, it’s still often the case that top firms charge high hourly rates and legal departments pay them...This is where law schools come in, according to Scott Westfahl, a professor at Harvard Law School and the director of its executive education program. “Legal education, the cost is incredibly high and the reason graduates are going into large law firms and need to be paid $180,000 is so that they can start paying that back,” he said.
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USA Today
Firing Comey is worse than breaking a law
An op-ed by Laurence Tribe, Richard Painter, and Norman Eisen. If President Trump’s shockingly sudden firing of FBI Director James Comey had violated some statute or constitutional provision, our judicial branch could easily have remedied that misstep. What the president did was worse. It was a challenge to the very premises of our system of checks and balances precisely because it violated no mere letter of the law but its essential spirit. No one, not even a president, is above the law. And thus no public official, high or petty, can simply fire those our system trusts to investigate and remedy that official’s possible bribery, treason, or other disloyalty to the nation.
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McClatchy DC Bureau
Sources: Comey sought to expand Trump-Russia probe of former campaign officials
The FBI-led probe into whether Russian influence operations helped put Donald Trump in the White House is on a knife’s edge and could easily veer into either of two distinct directions...Some career investigators may not take kindly to the political pressure, said Alex Whiting, a former federal prosecutor who now teaches at Harvard Law School. “If they feel like this was designed to push them back, they will be emboldened,” Whiting said, and may confront Deputy Attorney General Rod J. Rosenstein, who has taken the reins of the Russia probe because Attorney General Jeff Sessions withdrew from involvement in the inquiry after it was disclosed that he met twice with Russia’s ambassador last year.
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Huffington Post
Trump Once Again Invites Questions And Doubts About His Stability
In the hours after he sacked the very man investigating his ties to Russia, sparked a media firestorm, and engendered political blowback fierce enough to imperil his legislative agenda, President Donald Trump spent his time firing off 140-character insults at U.S. senators. For Trump’s critics, the sequence of events ― from the firing to the tweeting ― was both dizzying and further cause to question the mental state of the man in the Oval Office...“At first glance it looks crazy,” said Laurence Tribe, the Carl M. Loeb University Professor and professor of constitutional law at Harvard. What he worries about, he said, is if it’s “crazy like a fox.” “He is yet again changing the headline from what was disadvantageous for him; namely what a pistol [former AG] Sally Yates was” in testifying about Trump’s former top national security adviser’s ties to Russia, Tribe said.
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Cambridge Day
Safe Communities Act needs more support to survive Legislature vote, supporters say
Worried undocumented immigrants got a boost locally this week, but immigration advocates say it won’t matter much if the Safe Communities Act doesn’t find more support at the state level...Along with underlining the message that undocumented immigrants are safe going to police for help or even to help police fight crime with tips or eyewitness testimony, state-level action can reassure immigrants that they can go on getting health care, housing aid and using school resources without fear, said Lusardi and Amy Volz [`18], co-organizer of the recently formed Harvard Law School Immigration Response Initiative. “One of the clients I work with is a victim of domestic violence who has been too scared to call the police for fear that she will be deported,” said Volz, who works with immigrants in Cambridge and surrounding cities.
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