Jack Goldsmith

...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?

As President Trump continued to fume on Tuesday about the Justice Department’s raids on the office and hotel room of his longtime personal lawyer, the White House press secretary, Sarah Huckabee Sanders, made a provocative claim: The president, she said, believes he has the legal authority to fire Robert S. Mueller, the special counsel leading the Russia investigation...Still, Jack L. Goldsmith, a Harvard Law School professor and former head of the Office of Legal Counsel in the Bush administration, said the previous Supreme Court statements did not arise in a context exactly like a situation in which Mr. Trump said he had the constitutional power to fire Mr. Mueller directly and then tried to do it. Mr. Goldsmith said it was unclear what would happen then. “I agree that the proper and most legally sound route would be to order Rosenstein to dismiss Mueller and then fire him if he doesn’t comply,” Mr. Goldsmith said.

An op-ed by Jack Goldsmith. Unnamed sources in a Washington Post story last week claimed that Special Counsel Robert Mueller told President Trump’s lawyers that “he is preparing a report about the president’s actions while in office and potential obstruction of justice.” The Post added that “Mueller’s investigators have indicated to the president’s legal team that they are considering writing reports on their findings in stages—with the first report focused on the obstruction issue.” The second and later report, according to the “president’s allies,” would concern “the special counsel’s findings on Russia’s interference.” Assuming the Post story accurately captures Mueller’s intentions, it raises two questions: First, is Mueller authorized to prepare an interim report on obstruction?; and second, under what circumstances can the report be sent to Congress or made public? The answers are not obvious.

A lawyer for President Trump broached the idea of Mr. Trump’s pardoning two of his former top advisers, Michael T. Flynn and Paul Manafort, with their lawyers last year, according to three people with knowledge of the discussions. The discussions came as the special counsel was building cases against both men, and they raise questions about whether the lawyer, John Dowd, who resigned last week, was offering pardons to influence their decisions about whether to plead guilty and cooperate in the investigation...But even if a pardon were ultimately aimed at hindering an investigation, it might still pass legal muster, said Jack Goldsmith, a former assistant attorney general in the George W. Bush administration and a professor at Harvard Law School. “There are few powers in the Constitution as absolute as the pardon power — it is exclusively the president’s and cannot be burdened by the courts or the legislature,” he said.

An op-ed by Jack Goldsmith and Maddie McMahon `19...While the matter is certainly not crystal clear, we think that the regulations in historical context almost certainly preclude some of the more aggressive models of disclosure, especially by the special counsel himself. The special counsel regulations do not apply to Mueller’s investigation directly. Rather, Rosenstein appointed Mueller pursuant to his general authorities under 28 U.S.C. §§509, 510, and 515, and then pursuant to these authorities made “Sections 600.4 through 600.l0 of Title 28 … applicable to the Special Counsel.”

As rumors swirled over the weekend that the White House would soon undermine and eventually remove special counsel Robert Mueller, Sen. Lindsey Graham predicted on CNN that doing so would be the beginning of the end for the Trump presidency. “We’re a rule-of-law nation,” he declared...Harvard Law School’s Jack Goldsmith has speculated that Mr. Trump could fire Mr. Mueller directly by invoking his constitutional Article II powers to “bypass or invalidate” Justice Department procedure. But other experts disagree, and even Mr. Goldsmith says the president would be “committing political suicide” if he were to go down this path.

...Today, the political atmosphere is different enough that if President Donald Trump triggers the firing of special counsel Robert Mueller, the fate of the Russia investigation would be thrown in doubt...Former prosecutors and legal analysts disagree about the fallout of a possible firing of Mueller, who led the FBI first during the administration of Republican President George W. Bush and then Democratic President Barack Obama...Harvard law professor Jack Goldsmith, also a former assistant attorney general, does not believe the situation would be so dire, if it comes to that. He predicted that current FBI Director Christopher Wray would continue the Russia investigation and that a new special counsel would be named. Goldsmith also emphasized the legal hurdle Trump faces. "If Trump wished to stop the Mueller investigation, he couldn't just tweet a declaration that it is over," Goldsmith wrote in a Lawfare column earlier this year.

An op-ed by Jack Goldsmith. The Trump administration on Thursday accused Russia of infiltrating by digital means “energy and other critical infrastructure sectors” in the United States. “We now have evidence they’re sitting on the machines, connected to industrial control infrastructure, that allow them to effectively turn the power off or effect sabotage,” Eric Chien, a security-technology director at Symantec, said to Nicole Perlroth and David Sanger in the New York Times. “From what we can see, they were there,” Chien added. “They have the ability to shut the power off. All that’s missing is some political motivation.”

An article by Jack Goldsmith. Tuesday is the release date for an extraordinary collection of essays published under the title: Can It Happen Here? Authoritarianism in America...My essay traces the history of the national security Deep State from J. Edgar Hoover's FBI to the present; shows how the Deep State’s reaction to Trump has been norm-defiant and damaging yet at the same time possibly necessary; and concludes pessimistically by explaining how and why the battle of “Trump v. Deep State” has been harmful to our national security institutions. Collections of essays are often dull affairs, but this one isn’t.

The day after Donald Trump fired Acting Attorney General Sally Yates over her refusal to defend his hastily conceived travel ban, the White House counsel, Donald McGahn, tried some damage control of his own. ... When the White House was caught in a tug of war with the Justice Department and the FBI over the release of a four-page set of talking points about the Steele dossier prepared by Devin Nunes’s staff on the House Intelligence Committee, it was McGahn who provided cover for the document’s declassification and release — while ignoring the staunch opposition to disclosure from Trump’s own law enforcement agencies. Jack Goldsmith, a former Office of Legal Counsel attorney under George W. Bush and now a law professor at Harvard, took McGahn to task for signing off on the stunt, suggesting in no uncertain terms that he is, at worst, an enabler rather than a public servant who cares about what’s best for the American people. “The view is not that McGahn is doing anything unlawful,” Goldsmith wrote in Lawfare, where he’s already offered his share of biting commentary about the current White House counsel. “It is that he is acting dishonorably, and is personally and ethically on the hook for Trump’s mendacious, institution-destroying efforts.”

The Trump administration has decided that it needs no new legal authority from Congress to indefinitely keep American military forces deployed in Syria and Iraq, even in territory that has been cleared of Islamic State fighters, according to Pentagon and State Department officials. In a pair of letters, the officials illuminated the Trump administration’s planning for an open-ended mission of forces in Syria beyond the Islamic State fight...The executive branch’s claim that the 2001 and 2002 laws provide authority for the United States to indefinitely keep combat forces in Syria amounts to “a tenuous legal justification atop of another tenuous legal justification,” said Jack Goldsmith, a Harvard Law School professor and former Justice Department lawyer in the Bush administration.

An op-ed by Jack Goldsmith. Special Counsel Robert Mueller’s Russia indictment represents “a remarkable rebuke of the president’s claims” that the Russia investigation was a “phony Democrat excuse for losing the election,” the Lawfare team concluded. The indictment also educates the American public about the reality and scale of the Russian threat to the American political process more credibly than last year’s intelligence community report on the matter. Perhaps it will help the United States build resilience against future attacks.

An op-ed by Jack Goldsmith. The Nunes memo was thoroughly debunked less than 12 hours after its publication. The sources of this debunking transcended politics, and ranged from The Intercept and Marcy Wheeler to Paul Rosenzweig and David French. I want to focus here on two other writings related to the memo: The cover letter to the release of the Nunes memo written by White House Counsel Donald McGahn, and President Trump’s Friday morning tweet.

In the days before the 2016 election, Donald J. Trump expressed “great respect” for the “courage” of the F.B.I. and Justice Department for reopening the investigation into Hillary Clinton’s private email server. Sixteen months later, he has changed his mind. The agencies have been “disgraceful” and “should be ashamed,” President Trump declared Friday...At the start of his administration, Mr. Trump targeted the intelligence community for his criticism. But in recent months, he has broadened the attacks to include the sprawling federal law enforcement bureaucracy that he oversees, to the point that in December he pronounced the F.B.I.’s reputation “in tatters” and the “worst in history.”...“I can’t think of another time when this has happened,” said Jack L. Goldsmith, a Harvard law professor who headed the Justice Department’s Office of Legal Counsel under President George W. Bush.

As President Trump hammers away at the Justice Department’s credibility, one voice has been notably absent in the department’s defense: the one at the top. The attorney general, Jeff Sessions, has been largely quiet and even yielding as the president leads the most public and prolonged political attack on the department in history, a silence that breaks with a long tradition of attorneys general protecting the institution from such interference. “What is unusual is the F.B.I. and the Justice Department being attacked, the president leading the charge and the attorney general missing in action,” said Jack L. Goldsmith, a Harvard law professor who headed the Justice Department’s Office of Legal Counsel under President George W. Bush. “Why isn’t he sticking up for the department?”

An op-ed by Jack Goldsmith. Over the weekend some conservative commentators pushed back on my tweet-claim that President Trump has “threaten[ed] DOJ/FBI over and over in gross violation of independence norms.” The Justice Department and its component the FBI “aren’t independent, nor should they be,” argued Sean Davis of The Federalist. “Few things are more damaging to a democratic republic than men with guns and badges and wiretaps believing they are accountable to no one,” he added. Or, as Kurt Schlichter of Townhall stated more succinctly, “When did bureaucrats become ‘independent’ of elected officials. Never.”

President Trump reportedly ordered the dismissal of special counsel Robert Mueller last June, but backed down after White House counsel Don McGahn said he would quit rather than carry out the order, according to The New York Times and others. In Davos, the president dismissed the report as "fake news." John Yang reports and Judy Woodruff talks to Jack Goldsmith of Harvard Law School.

When Donald F. McGahn II, the White House counsel, moved into his corner office on the West Wing’s second floor last January, he chose not to decorate its walls or fill its glass-paneled shelving with personal items...Now, Mr. McGahn has been thrust squarely into the public eye by the disclosure that in June he threatened to resign in order to stop President Trump from firing Robert S. Mueller III, the special counsel leading the investigation into Russia’s interference in the 2016 election and into whether Mr. Trump committed obstruction of justice...Jack Goldsmith, a Harvard Law School professor and a former top Justice Department official in the George W. Bush administration, wrote last year on the Lawfare blog that Mr. McGahn was either incompetent or ineffective — giving bad advice, or advice that his client ignored. Mr. Goldsmith said on Friday that there were too many unanswered questions about what happened in June to judge what it means for Mr. McGahn. He might “have acted to protect the president, or himself, or both, from legal trouble,” Mr. Goldsmith said.

An interview with Jack Goldsmith. The Harvard law professor shares his perspective on the state of American institutions during the Trump presidency.