Jack Goldsmith

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.

An op-ed by Jack Goldsmith and Benjamin Wittes. Jonathan Swan of Axios reported Monday night, based on “three sources with direct knowledge,” that FBI Director Chris Wray “threatened to resign” if FBI Deputy Director Andrew McCabe “was removed” from office. The threat apparently came in response to pressure on Wray by “Attorney General Jeff Sessions—at the public urging of President Donald Trump” to fire McCabe.

A new legal challenge seeks to end indefinite detention without trial at Guantanamo Bay, as lawyers for 11 men who have been held at the military facility for up to 16 years argue that their imprisonment has gone on too long...Jack Goldsmith, a professor at Harvard Law School who has written extensively about national security issues, said that assertion, and the argument that the Trump administration has failed in its responsibility to examine each detainee’s case individually, is unlikely to succeed in court. “It is doubtful but conceivable that those arguments could get traction,” Goldsmith said in an email, also referring to the motion’s argument that Trump has already lost legal challenges that assert he has demonstrated bias against Muslims.

The New York Times reported Thursday that President Donald Trump had his White House counsel try to convince Attorney General Jeff Sessions not to recuse himself from the Russia investigation. Julie Hirschfeld Davis of the Times and Jack Goldsmith, a Harvard law professor, tell William Brangham what the revelations mean for the president and whether they amount to obstruction of justice.

An op-ed by Jack Goldsmith. One puzzle that deepens with Mike Schmidt’s New York Times story on “Trump’s Struggle to Keep [a] Grip on [the] Russia Investigation” is why Deputy Attorney General Rod Rosenstein has not recused himself from overseeing the Mueller investigation...Recall that Rosenstein is the acting attorney general for this matter because Attorney General Jeff Sessions recused himself. As a result, Rosenstein appointed Mueller and, under the relevant Order and incorporated regulations, supervises him.

An op-ed by Jack Goldsmith. One of most remarkable stories of 2017 was the extent to which President Donald Trump was prevented from executing his many pledges—both on the campaign trail and in office—to violate the law. As predicted, courts, the press, the bureaucracy, civil society, and even Congress were aggressive and successful in stopping or deterring Trump from acting unlawfully. But will these checks continue to work in the new year?

Robert Mueller's appointment as special counsel to lead the Russia probe in May caught President Donald Trump by surprise. Seven months later, the President's defenders have gone into overdrive hoping to discredit the investigation as Trump insists publicly he has no plans to fire Mueller...Harvard Law School Professor Jack Goldsmith, former head of the Justice Department's Office of Legal Counsel during George W. Bush's administration, has suggested the President will only come under further scrutiny if he tries to fire Mueller. "I don't see how firing Mueller gives Trump relief from the investigation. More likely the opposite, since it would call Trump into greater suspicion. Just as it got worse for him after he fired (former FBI Director James) Comey, it would get yet worse for him if he fired Mueller," Goldsmith tweeted.