Jack Goldsmith

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.

President Trump on Sunday sought to douse speculation that he may fire special counsel Robert S. Mueller III amid an intensifying campaign by Trump allies to attack the wide-ranging Russia investigation as improper and politically motivated. Returning to the White House from Camp David, Trump was asked Sunday whether he intended to fire Mueller. “No, I’m not,” he told journalists, insisting that there was “no collusion whatsoever” between his campaign and Russia...“If Rosenstein refused, Trump could fire him and keep firing everyone who replaced him until he found someone who would fire Mueller,” said Harvard Law School professor Jack Goldsmith, former head of the Justice Department’s Office of Legal Counsel and co-founder of the Lawfare blog.

Arpaio’s pardon unleashed a surge of criticism from lawyers, who argued the move undermined the independence of the judiciary. Jack Goldsmith, the Harvard Law professor and former head of the DOJ’s Office of Legal Counsel in the President George W. Bush administration, called Trump’s decision an “irresponsible (but lawful) exercise of the presidential pardon power.”

An article by Jack Goldsmith. I wrote Monday morning about costs within the Justice Department when its leaders stay silent in the face of the President’s caustic attacks on the department’s independence and integrity. I mentioned in particular the silence of Attorney General Jeff Sessions, Deputy Attorney General Rod Rosenstein, and FBI Director Christopher Wray...Since I wrote these words, Wray and Rosenstein spoke in ways that are widely seen as a response to the President and a defense of the Justice Department and FBI workforces.

An article by Jack Goldsmith...This is all depressing enough. But another sharp cost of Trump’s caustic tweets has been largely neglected: The slow destruction of the morale of federal government employees, especially executive branch employees. Just about everyone I knew when I worked in the Justice Department had an idealistic sense of mission—about the importance of law enforcement to the country’s welfare, about the integrity of the department’s actions, and about commitment to the rule of law.

An op-ed by Jack Goldsmith and Adrian Vermeule. Drew Gilpin Faust, the president of Harvard University, has been lobbying in Washington against a Republican proposal to tax large university endowments and make other tax and spending changes that might adversely affect universities. Faust says the endowment tax would be a “blow at the strength of American higher education” and that the suite of proposals lacks “policy logic.” Perhaps so, but they have a political logic. We hope that Harvard and other elite universities will reflect on their part in these developments.

President Trump did not need to send a memo or telephone his attorney general to make his desires known. He broadcast them for all the world to see on Twitter. The instruction was clear: The Justice Department should investigate his defeated opponent from last year’s campaign. However they were delivered, Mr. Trump’s demands have ricocheted through the halls of the Justice Department, where Attorney General Jeff Sessions has now ordered career prosecutors to evaluate various accusations against Hillary Clinton and report back on whether a special counsel should be appointed to investigate her...“I have no idea what will happen but this letter is entirely consistent with the A.G. later saying, ‘we followed normal process to look in to it and found nothing,’” said Jack L. Goldsmith, a former top Justice Department official under Mr. Bush. “The letter does not tip off or hint one way or another what the A.G.’s decision will be.”

The Harvard Law Review launched a new online blog Tuesday aimed at providing more accessible, timely content alongside their usual long-form fare...“We’ve been publishing long-form, in-depth analysis in our print volume for over a century,” said Kathleen S. Shelton [`18], the Law Review's Blog Chair...Harvard Law professor Jack L. Goldsmith and legal journalist Benjamin Wittes wrote in a Tuesday post that the new medium will “foster better debates.” “Blogs are not, as they are often dismissed to be, shallow,” Goldsmith and Wittes wrote. “Of course they can be, just as an 80-page article can be. But to write well in this format, one must be expert enough to articulate the heart of an argument quickly and persuasively. That is not easy.”

Consider what is, for the moment, an entirely hypothetical question: What might Defense Secretary Jim Mattis do if he received an order from President Trump to launch a nuclear attack on North Korea in retaliation, say, for a hydrogen bomb test that had gone awry?Certainly, Mattis could try to talk the president out of the attack, if he thought the action was unwise...“The president’s view, and whatever orders stem from that view, carry the day,” wrote Jack Goldsmith, a Harvard University professor and a widely respected authority on national security law, in a recent post on the Lawfare blog. (Harvard law student Sarah Grant [`19] co-wrote the post.)

Last November, some political commentators predicted that Donald Trump’s unconventional candidacy might give way to a much more conventional presidency. Harvard Law professor Jack Goldsmith argues that perhaps the opposite is true – that eight months into his term, Donald Trump is fundamentally changing the office of the president.

Almost nothing is publicly known about the American ISIS fighter who is now in the custody of the U.S. military, but one fact has already made the case extraordinary: The Trump Administration has declared him an enemy combatant, according to a military spokesman...The designation of the American ISIS fighter as an enemy combatant would become more consequential if the Trump administration seeks to detain him indefinitely under that status, legal experts say. If that happens, "then it's a big deal," said Jack Goldsmith, a Harvard Law School professor and former Bush administration lawyer.

An op-ed by Jack Goldsmith. Donald Trump is testing the institution of the presidency unlike any of his 43 predecessors. We have never had a president so ill-informed about the nature of his office, so openly mendacious, so self-destructive, or so brazen in his abusive attacks on the courts, the press, Congress (including members of his own party), and even senior officials within his own administration. Trump is a Frankenstein’s monster of past presidents’ worst attributes: Andrew Jackson’s rage; Millard Fillmore’s bigotry; James Buchanan’s incompetence and spite; Theodore Roosevelt’s self-aggrandizement; Richard Nixon’s paranoia, insecurity, and indifference to law; and Bill Clinton’s lack of self-control and reflexive dishonesty.

In announcing the Trump administration's phase-out of the Deferred Action for Childhood Arrivals (DACA) program Tuesday, Attorney General Jeff Sessions called DACA "an unconstitutional exercise of authority by the executive branch" under former President Barack Obama and argued that President Trump was pushed to review the program by "imminent litigation" from 10 state attorneys general...As Harvard law professor Jack Goldsmith points out, the 2014 OLC opinion declaring DACA "a permissible exercise" of executive "discretion to enforce the immigration laws" is still up on the OLC website, "implying that it's still valid for the executive branch." If the office has written a new opinion on DACA, it hasn't posted it to the website yet. "Did Sessions consult OLC on this? If so, did OLC revise its views and/or withdraw the 2014 opinion?" Goldsmith asked on Twitter, adding, "If Sessions didn't consult OLC, what's the status of 2014 opinion? Will it be withdrawn?"

If President Trump ordered a senior government official to support the firing of special counsel Robert S. Mueller III, how should that person respond?...Presidential orders cannot ordinarily be ignored or dismissed. Our system gives the commander in chief extraordinary power. Jack Goldsmith, a Harvard University law professor and former assistant attorney general, explained in an email: “A subordinate in the executive branch has a presumptive duty to carry out the command of the president. If one doesn’t want to for any reason, one can resign — or refuse the order and face a strong likelihood of being fired.”