Jack Goldsmith

An op-ed by Jack Goldsmith. President Trump’s revocation of former CIA Director John Brennan’s security clearance brings together in an unfortunate way two pathological trends in the Trump era, and highlights the conundrum of the former intelligence official who wishes to speak out against the president’s attacks on the Russia investigation and the intelligence community more generally. The first trend is the politicization of intelligence.

An article by Bob Bauer and Jack Goldsmith. We have complementary articles about the proper conception of lawyering for the president in times of crisis in the most recent issue of the Georgetown Journal of Legal Ethics that we thought might be of interest to Lawfare readers.

An op-ed by Jack Goldsmith. The July 25 resolution by 11 House Republicans introducing articles of impeachment against deputy attorney general Rod Rosenstein is not a serious legal document. It is filled with embarrassing factual errors. Most notably, the fifth article charges Rosenstein with responsibility for the Justice Department’s supposed obfuscation of the Steele dossier’s origins as opposition research on behalf of the DNC and Hillary Clinton’s presidential campaign: “Under Mr. Rosenstein’s supervision, Christopher Steele’s political opposition research was neither vetted before it was used in October 2016 nor fully revealed to the FISC.” The problem is that Rosenstein became deputy attorney general in April 2017, long after the Steele dossier was used in the Carter Page FISA application. He was not, and could not have been, responsible for the alleged obfuscation—an allegation that the recent release of the Carter Page application revealed is baseless.

An op-ed by Jack Goldsmith...But behind the indictment, and the congratulatory reaction to it, lie some uncomfortable unanswered questions about blowback toward U.S. officials, reciprocal interference by the United States in other nations' political affairs, the lack of preparation for renewed electoral interference in this country, and U.S. journalists’ publication of stolen U.S. government information. These questions have heightened significance and more difficult answers in light of President Trump’s astounding performance Monday in Helsinki.

An op-ed by Jack Goldsmith. “A judge must be independent and must interpret the law, not make the law,” said Judge Brett Kavanaugh during his speech accepting the nomination to replace his former boss Anthony Kennedy as an Associate Justice on the Supreme Court. This may sound like a rhetorical pose, but you should take it literally, not just seriously: Kavanaugh, whom I know primarily through his teaching at Harvard, is one of the most principled jurists I have ever studied.

President Trump will announce his nominee for the Supreme Court tomorrow. Democrats fear his pick, should they be confirmed, will push the court to the right on social issues like affirmative action and abortion. Republicans are excited about the possibility of locking in a conservative majority on the court. Not so fast, says Jack Goldsmith. The Harvard law professor and former assistant attorney general under George W. Bush writes in The Weekly Standard that both those hopes and fears should be tempered.

An op-ed by Jack Goldsmith. Anthony Kennedy’s retirement has sparked a free-fall panic among progressives, Democrats, and others who for five decades have enjoyed the fruits of rule-by-judiciary on the nation’s most contested social issues. Left-of-center commentators have proclaimed that Roe is dead, that Kennedy’s famous gay rights opinions and saving fifth vote for affirmative action are on life support, and that we are on the verge of a radical conservative constitutional revolution. Many conservatives agree with these assessments but are measured in their glee so as not to lend credence to attacks on whomever President Trump nominates to replace Kennedy. Both sides are too confident. There is little doubt that Kennedy’s replacement will be conservative and little doubt, too, that the Court will have a conservative bent for the next few years. Beyond that, it is too early to tell.

An op-ed by Jack Goldsmith. Justice Anthony M. Kennedy’s retirement from the Supreme Court after more than 30 years of service is the most consequential event in American jurisprudence at least since Bush v. Gore in 2000 and probably since Roe v. Wade in 1973. For three decades, he has been a guiding force on the court’s most consequential decisions, conservative and liberal. His departure leaves the future of U.S. constitutional law entirely up for grabs.

An op-ed by Jack Goldsmith. “The President is to have the laws executed,” wrote the Chief Executive. “He may order an offence then to be prosecuted,” but if he “sees a prosecution put into a train which is not lawful, he may order it to be discontinued.” That’s not a tweet from Donald Trump. It’s a letter from Thomas Jefferson, in 1801, explaining the President’s broad authority to supervise and control federal criminal prosecutions.

For nearly a year, President Trump has been relentlessly attacking his handpicked attorney general for recusing himself from the Russia investigation that has so nettled him. And so in that sense, his tweet on Tuesday morning was simply the latest in a long string. “The Russian Witch Hunt Hoax continues, all because Jeff Sessions didn’t tell me he was going to recuse himself,” Mr. Trump wrote. “I would have quickly picked someone else. So much time and money wasted, so many lives ruined … and Sessions knew better than most that there was No Collusion!”...Still, even some scholars who are not on Mr. Trump’s payroll argue that the legal situation is not that clear-cut, even if the intent of Tuesday’s tweet was. The president, in this view, does not need to browbeat Mr. Sessions about ending the investigation when he could simply order it scuttled on his own. “Yes, that is an explicit statement that Trump wanted an attorney general who would shut down the Russia investigation and is mad at Sessions for recusing himself and not shutting it down,” said Jack L. Goldsmith, a Harvard Law School professor and top Justice Department official under President George W. Bush.

Before President Trump authorized U.S. airstrikes on three Syrian military sites in April, the Justice Department advised him that the strikes were legal because he had “reasonably” determined they were “in the national interest” and would not constitute a war, according to a department document released Friday. In a broad interpretation of presidential powers, the Office of Legal Counsel (OLC) told Trump that he did not need congressional authorization...Harvard Law School professor Jack Goldsmith, who served as assistant attorney general in the OLC and special counsel to the Defense Department under President George W. Bush, noted that the new Justice Department document also outlines an expanded definition of “national interest” that again dates to the Obama administration. The OLC opinion, signed by Assistant Attorney General Steven A. Engel of the OLC, refers to a previously unpublished Obama-era opinion that approves “an interest in mitigating humanitarian disaster as a basis for unilateral presidential force,” Goldsmith wrote Friday on the Lawfare blog, even if no Americans are affected by it.

Ask people with deep knowledge of the US justice department about the damage Donald Trump might be doing to the country, and the conversation quickly flips back to Watergate. Following Richard Nixon’s failed attempt to pull the plug on a special prosecutor who turned out to be on to something, the need for investigators to work free from White House interference was recognized by the public and reinforced by elected officials. But now Trump is president, the public can seem apathetic or amnesiac and the norms governing justice department independence are being tested...“We’ve never had a president attack the intelligence and law enforcement agencies that work for him in this way,” Jack Goldsmith, a Harvard law professor and former assistant attorney general under George W Bush, said in an email.

President Trump’s lawyers have for months quietly waged a campaign to keep the special counsel from trying to force him to answer questions in the investigation into whether he obstructed justice, asserting that he cannot be compelled to testify and arguing in a confidential letter that he could not possibly have committed obstruction because he has unfettered authority over all federal investigations. In a brash assertion of presidential power, the 20-page letter — sent to the special counsel, Robert S. Mueller III, and obtained by The New York Times — contends that the president cannot illegally obstruct any aspect of the investigation into Russia’s election meddling because the Constitution empowers him to, “if he wished, terminate the inquiry, or even exercise his power to pardon.”...“We don’t know what the law is on the intersection between the obstruction statutes and the president exercising his constitutional power to supervise an investigation in the Justice Department,” said Jack Goldsmith, a Harvard Law School professor who oversaw the Justice Department’s Office of Legal Counsel during the Bush administration. “It’s an open question.”

As his deputy headed to the White House last week to handle a high-profile confrontation over an FBI informant, Attorney General Jeff Sessions was en route to a law-enforcement summit in Bulgaria, followed by meetings with the prime minister to talk about terrorism and border security. A few days later, when Deputy Attorney General Rod Rosenstein hosted an unusual follow-up briefing for lawmakers to discuss intelligence material on the informant, Mr. Sessions was meeting with the interior minister of Croatia about Justice Department training programs that help overseas police and prosecutors fight corruption. The split-screen display of the two most senior Justice officials stems from Mr. Sessions’ recusal from any investigation into President Donald Trump’s 2016 campaign, having been a high-profile backer of the candidate...“If Sessions stands up too forcefully to the president, he risks his job,” said Harvard law professor Jack Goldsmith, an official in the George W. Bush Justice Department. “But at some point it should become intolerable for a person of integrity to work for a president who is so hostile to him, the institution he leads and its values.”

Bob Bauer, Jack Goldsmith and David Kris join Benjamin Wittes to discuss the sequence of events between the Justice Department, the FBI, the House intelligence committee and the White House over the last few days and the resolution arranged at the White House on Monday afternoon.

On Sunday, in an extraordinary series of tweets, President Donald Trump declared that “I hereby demand, and will do so officially tomorrow, that the Department of Justice look into whether or not the FBI/DOJ infiltrated or surveilled the Trump Campaign for Political Purposes - and if any such demands or requests were made by people within the Obama Administration!” This was in response to stories about the FBI’s use of an informant to examine ties between the Trump campaign and Russia—although the stories pointed out this was not done for political purposes. In response, the Justice Department—in what the Washington Post called “a remarkable step officials hoped might avert a larger clash between the president and federal law enforcement officials”—announced that its inspector general would look into the matter. For perspective on what all this means for the Mueller investigation and the integrity of the Justice Department, I exchanged emails with Jack Goldsmith, a professor at Harvard Law School and a senior fellow at the Hoover Institution who served in and then resigned from the George W. Bush administration’s DOJ.

As President Trump and his allies repeatedly take aim at the Justice Department investigation into his campaign’s possible links to Russia’s election meddling, Rod J. Rosenstein, the deputy attorney general overseeing the inquiry, has mostly evaded the attacks through inventive maneuvers. To protect the inquiry, Mr. Rosenstein has agreed to meet increasingly onerous demands from Mr. Trump and his allies on Capitol Hill. But legal scholars and former law enforcement officials fear that the measures Mr. Rosenstein has resorted to could weaken the Justice Department’s historic independence, allowing the department to be used as a cudgel to attack the president’s political enemies...“Rosenstein is in the very tricky position of supervising and protecting the integrity of an investigation of the president’s associates even though the president, his boss, possesses lots of constitutional power to control investigations and is trying to wreck this one,” said Jack Goldsmith, a Harvard law professor who headed the Justice Department’s Office of Legal Counsel under President George W. Bush.

The Justice Department has asked its internal watchdog to review President Trump's charge on Twitter that the FBI spied on his 2016 election campaign. Amna Nawaz gets analysis and reaction from former Attorney General Michael Mukasey, former Justice Department official Jack Goldsmith and retired FBI agent Frank Montoya.

For decades, leakers of confidential information to the press were a genus that included many species: the government worker infuriated by wrongdoing, the ideologue pushing a particular line, the politico out to savage an opponent...But now this disparate cast has been joined by a very different sort of large-scale leaker, more stealthy and better funded: the intelligence services of nation states, which hack into troves of documents and then use a proxy to release them. What Russian intelligence did with shocking success to the Democrats in 2016 shows every promise of becoming a common tool of spycraft around the world...Yet that sobering experience does not suggest easy remedies. Jack Goldsmith, a former Justice Department official now at Harvard who has written extensively on the press, says he thinks journalists will find it difficult to withhold authentic, compelling material simply because they know or suspect the source is a foreign intelligence service. “It shouldn’t matter whether the source is the Russians or a disgruntled Hillary Clinton campaign worker,” he argues.