Jack Goldsmith

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.

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.”

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.

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.

If you wanted to feel the full force of the intellectual whirlpool that is American politics in 2018, the place to go on February 25 was the Village Underground, a nightclub beneath East 3rd Street, where Alan Dershowitz, the longtime Harvard Law professor and civil liberties lion, was debating the future of American democracy on the side of President Donald Trump...The woman behind us in line took her free book, turned to her husband and asked, “What happened to Alan Dershowitz?”...“People everywhere ask what happened to him,” said Nancy Gertner, a former federal judge and lecturer at Harvard Law School who has known Dershowitz for years. “I get that from everyone who knows I know him.”...Dershowitz’s supporters see his position on Trump as consistent with the rest of his career. “If you look objectively at what he’s doing, he’s applying neutral civil liberties principles to Trump, as he would to anyone else,” said Harvey Silverglate, a civil rights lawyer in Boston and a longtime friend of Dershowitz’s. Harvard professor Jack Goldsmith told me, similarly, “Alan has obviously throughout his entire career been a principled defender of civil liberties, especially for those under criminal investigation. His commentary in the last year is entirely consistent with that lifelong commitment.”

An op-ed by Jack Goldsmith. The particular manner in which President Obama crafted the Iran deal paved the way for President Trump to withdraw from it. Obama made the deal on his own presidential authority, in the face of significant domestic opposition, without seeking or receiving approval from the Senate or the Congress. He was able to do this, and to skirt constitutional requirements for senatorial or congressional consent, because he made the deal as a political commitment rather than a binding legal obligation.

As we lurch through the second year of Trump administration, it’s hard to know whether to just give up the whole rule-of-law thing or rejoice at the very faint stirrings of conscience appearing on Capitol Hill...Jack Goldsmith of Harvard Law School, who during the George W. Bush Administration forced the withdrawal of the infamous “torture memos,” wrote in an email that the debate over AUMF renewal is “political theater.” He wrote, “I do not think passage of the Corker-Kaine bill matters to anything real. The nation supports, or at least acquiesces in, the stealth Forever War, for better or worse.”

An op-ed by Jack Goldsmith. “I am reluctant to write a memoir and would rather write about leadership,” my friend Jim Comey told me in an email on June 16, 2017, about five weeks after Donald Trump fired him as Director of the Federal Bureau of Investigation...Comey did end up writing a memoir in the sense that his book is nominally about the story of his eventful life, from his childhood in Yonkers to his June 8, 2017 testimony before the Senate intelligence committee about his interactions with President Trump. But his book—which I saw for the first time after publication—is really about what he really wanted to write about: ethical leadership. It is the best book on leadership I have ever read.

An op-ed by Jack Goldsmith. I’m grateful for James Freeman’s kind words about my recent essay in the Guardian warning about Deep State leaks, and relieved that he thinks I am “not nearly as far to the left as most Guardian editors.” We agree that there is a serious danger in the Deep State leaks of classified intelligence intercepts that contains U.S. person information and that were clearly designed to sabotage the Trump presidency. And we agree that in many ways those abuses were greater than the political leaks (and threats of leaks) during the Hoover era. But in contrast to Freeman, I don’t see how the evils of intelligence bureaucracy leaks detract from the evils in Trump’s many, many norm violations that I wrote about in a long critical essay on Trump in the Atlantic last Fall.

An op-ed by Jack Goldsmith. America doesn’t have coups or tanks in the street. But a deep state of sorts exists here and it includes national security bureaucrats who use secretly collected information to shape or curb the actions of elected officials. Some see these American bureaucrats as a vital check on the law-breaking or authoritarian or otherwise illegitimate tendencies of democratically elected officials. Others decry them as a self-serving authoritarian cabal that illegally and illegitimately undermines democratically elected officials and the policies they were elected to implement. The truth is that the deep state, which is a real phenomenon, has long been both a threat to democratic politics and a savior of it. The problem is that it is hard to maintain its savior role without also accepting its threatening role. The two go hand in hand, and are difficult to untangle.

An op-ed by Jack Goldsmith. I think the question of whether the U.N. Charter is law is misleading or meaningless or both, for reasons that I hope this post will make apparent. But now that I have your attention, I want to sketch a few thoughts about the varied reactions to the airstrikes in Syria by the United States, Great Britain, and France. As Oona Hathaway and I have argued, the U.N. Charter clearly prohibits the strikes, and none of the three recognized exceptions—consent, self-defense, Security Council authorization—are present here. But is that the end of the matter?

An op-ed by Jack Goldsmith and Oona Hathaway. Last night, the United States, United Kingdom, and France launched a coordinated attack in Syria, reportedly aimed at sites related to Syria’s chemical weapons program. President Trump stated that he “ordered the United States armed forces to launch precision strikes on targets associated with the chemical weapons capabilities of Syrian dictator Bashar al-Assad.” The president emphasized that “Assad launched a savage chemical weapons attack against his own innocent people,” noted that “[l]ast Saturday the Assad regime again deployed chemical weapons to slaughter innocent civilians near the town of Douma near the Syrian capital of Damascus, and stated that “[t]he purpose of our actions tonight is to establish a strong deterrent against the production, spread, and use of chemical weapons” (emphasis added). As we wrote before Trump’s announcement, there is no apparent domestic or international legal authority for the strikes.

...Trump is said to be near a “meltdown” in his fury at what he describes as “an attack on our country” — by which he means the ongoing criminal investigation of him. It’s a phrase that he has not used about Russia’s interference with our elections, and my guess is that at some point Trump will fire Robert Mueller, directly or indirectly, or curb his investigation...Trump’s supporters are saying that he could fire Rod Rosenstein, to whom Mueller reports, and appoint an acting replacement who could quietly rein in Mueller. Such a replacement could even go one step further and actually try to “bring an end” to the entire investigation, as Trump’s former lawyer John Dowd urged last month. But it’s not so simple. “Everything about this is legally uncertain,” Jack Goldsmith, who was an assistant attorney general in George W. Bush’s administration and is now a professor at Harvard Law School, told me.

An op-ed by Jack Goldsmith. The raid on the office of Donald Trump’s lawyer Michael Cohen, the president’s latest tweet-complaints and related rant, and the White House press secretary's claim that the President believes he has the authority to fire Special Counsel Robert Mueller, have many people spun up about that possibility that Trump will soon fire Mueller, or Attorney General Jeff Sessions, or Deputy Attorney General Rod Rosenstein. Sen. Chuck Schumer and other Trump critics warned yesterday that firing Rosenstein or Mueller would spark a “constitutional crisis.”...Are we really in or near a constitutional crisis, or even a real confrontation? Will Trump really fire Sessions or Rosenstein or Mueller this time? It sure seems from the news coverage in the last 24 hours that something momentous is about to happen. But might the Republican warnings dissuade the President from acting?