Jack Goldsmith

A little over a year ago, Benjamin Wittes, the editor in chief of the blog Lawfare, made the case that Donald Trump, as a Republican presidential candidate, represented nothing less than a national-security threat...The warning was an early sign of the opposition to Trump that has since hardened among the national-security professionals and observers for whom Lawfare serves as a kind of bulletin board...Lawfare observes rules that most publications don’t, including a pledge never to publish classified information. Contributors generally tend to be hawkish and “more sympathetic to the executive, and more accepting of the seriousness of the counterterrorism threat and the need for tools like targeting and surveillance, than a lot of writers in the national-security space,” [Jack] Goldsmith says.

An op-ed by Jack Goldsmith. Many critics of President Trump, including a sizable number of Democrats in the Republican-controlled Congress, are wary about the incipient congressional investigations of Russia’s interference in the 2016 presidential election and the possibly related Russian entanglements with the Trump administration and campaign. They suspect that an independent investigation from outside the government is the only hope for checking a president who seems oblivious to press criticism, whose party controls Congress and who has the executive branch under his thumb. These worries are understandable but misplaced.

An op-ed by Jack Goldsmith. Former National Security Advisor Michael Flynn’s possibly criminal failure to register last year as a foreign agent is but the latest of many White House ethics lapses in the first seven weeks of the Trump presidency. Responsibility for this problem—like so many others in the young Trump presidency—lies at the feet of White House Counsel Donald McGahn.

Less than a month into his presidency, Donald Trump has faced no shortage of controversies. Donald McGahn — the fiery lawyer who has represented the president since before his election — has been at the center of virtually every one....Jack Goldsmith, a Harvard Law School professor and co-founder of the Lawfare blog, said that part of McGahn’s job is “ensuring that the president avoids legal controversy or related political controversy.” “The White House counsel’s responsibilities go far beyond technical legal compliance,” said Goldsmith, a former assistant attorney general heading the Office of Legal Counsel. “He is supposed to ensure compliance with ethics rules. And he is supposed to anticipate political problems related to legal issues that might adversely affect the president and take steps to protect the president. That McGahn clearly did not do.”

An article by Dahlia Lithwick and Jack Goldsmith. One of the central questions animating Jeff Sessions’ bid to be the attorney general of the United States was an abiding sense that—having worked closely with the Trump campaign and having given legal cover to some of Donald Trump’s most radical ideas—he could not be truly independent of the president. Before he was confirmed, Senate Democrats questioned Sessions repeatedly on whether he was capable of acting as an independent check on the executive branch, and Sessions repeated over and over again that he believed he could be. In some sense this debate obscured a deeper truth: The attorney general has a dual and complicated role with respect to the president, and it’s always been a fraught proposition to demand perfect independence. In 2007, Dahlia Lithwick and Jack Goldsmith, responding to a very different attorney general and very different questions about independence, attempted to explain why the relationship isn’t a simple one and how cures nevertheless exist. The original is below.

The Trump White House is nearing completion of an order that would direct the Pentagon to bring future Islamic State detainees to the Guantánamo Bay prison, despite warnings from national security officials and legal scholars that doing so risks undermining the effort to combat the group, according to administration officials and a draft executive order obtained by The New York Times...“It raises huge legal risks,” said Jack Goldsmith, a Harvard Law School professor and former senior Justice Department official in the Bush administration. “If a judge says the Sept. 11 authorization does not cover such a detention, it would not only make that detention unlawful, it would weaken the legal basis for the entire war against the Islamic State.”

...for more than two weeks, President Donald Trump and his top White House aides have been obsessed with highlighting a threat that does not exist: jihadist refugees and immigrants from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. It’s true that both worldwide terrorist attacks and terrorism-related cases against plotters in the United States have spiked since 2013, an increase largely attributed to the fallout from the Syrian civil war and the rise of the Islamic State...Jack Goldsmith, a former senior Justice Department official in the George W. Bush Administration, who helped design the post-9/11 anti-terror legal architecture, recently suggested that Trump might actually want his travel ban to be overturned. That way, in the wake of an attack, he can use the judiciary as a bogeyman and justify any new efforts to push through more extreme measures. I asked Goldsmith and others what the menu of options might be for a President Trump empowered by the justifiable fears Americans would have in the aftermath of a serious attack. “If it is a large and grim attack, he might ask for more surveillance powers inside the U.S. (including fewer restrictions on data mingling and storage and queries), more immigration control power at the border, an exception to Posse Comitatus (which prohibits the military from law enforcement in the homeland), and perhaps more immigration-related detention powers,” Goldsmith wrote in an e-mail. “In the extreme scenario Trump could ask Congress to suspend the writ of habeas corpus, which would cut off the kind of access to courts you are seeing right now for everyone (or for every class of persons for which the writ is suspended).”

Even before Donald Trump entered the White House, many were predicting federal courts would serve as an important check on his use of presidential power, particularly given his aggressive style and a GOP-led Congress that has so far been loath to confront him. But few expected the first constitutional clash would occur in Trump’s third week on the job...Jack Goldsmith, a national security lawyer in the Bush administration and professor at Harvard Law School, predicted Trump’s tweets “will certainly backfire” against him. “The tweets will make it very, very hard for courts in the short term to read immigration and constitutional law, as they normally would, with significant deference to the president’s broad delegated powers from Congress and to the president’s broad discretion in foreign relations,” Goldsmith wrote Monday on the Lawfare blog.

...The 45th president, Donald Trump, might pose the gravest threat to the constitutional order since the 37th. Of course, he might not...“Civil society had a huge and unprecedented impact during the Bush administration,” [Jack] Goldsmith told me. The networks that constrained Bush are still there, and Trump has put them on red alert. “Every single thing he does will be scrutinized with an uncharitable eye,” Goldsmith said. “That’s true of most presidents, but it’s true to an even greater degree with Trump.”

President Donald Trump's personal attack on the federal judge who blocked his controversial travel executive order could undermine public confidence in an institution capable checking his power, say legal experts...Harvard Law Professor Jack Goldsmith said on his blog that Trump's order actually has a "surprisingly strong basis in law but was issued in haste, without proper inter agency coordination, without proper notice, without adequate consideration of its implications." But, Goldsmith added, Trump's aggressive tweets "will certainly backfire." "The tweets will make it very, very hard for courts in the short term to read immigration and constitutional law, as they normally would, with the significant deference to the President's broad delegated powers," he wrote. And yet, having a judge strike down the executive order might have been exactly what Trump was aiming for, Goldsmith wrote — "assuming that he is acting with knowledge and purpose." "The only reason I can think of is that Trump is setting the scene to blame judges after an attack that has any conceivable connection to immigration," Goldsmith wrote.

President Trump is barreling into a confrontation with the courts barely two weeks after taking office, foreshadowing years of legal battles as an administration determined to disrupt the existing order presses the boundaries of executive power....Charles Fried, solicitor general under Ronald Reagan, said the ruling by a Federal District Court in Washington State blocking Mr. Trump’s order resembled a ruling by a Texas district court stopping Mr. Obama from proceeding with his own immigration order. But rarely, if ever, has a president this early in his tenure, and with such personal invective, battled the courts. Mr. Trump, Mr. Fried said, is turning everything into “a soap opera” with overheated attacks on the judge. “There are no lines for him,” said Mr. Fried, who teaches at Harvard Law School and voted against Mr. Trump. “There is no notion of, this is inappropriate, this is indecent, this is unpresidential.”...Jack Goldsmith, who as head of the Justice Department’s Office of Legal Counsel under Mr. Bush argued that some of the initial orders went too far and forced them to be rolled back, said on Sunday that there were similarities. “But Bush’s legal directives were not as sloppy as Trump’s,” he said. “And Trump’s serial attacks on judges and the judiciary take us into new territory. The sloppiness and aggressiveness of the directives, combined with the attacks on judges, put extra pressure on judges to rule against Trump.”

Donald Trump has had a fixation on Iraq’s oil—and America’s right to seize it—for at least six years...But the legal scholars I consulted challenged this interpretation. “The issue is complicated in its details, but basically what Trump has in mind—pillaging during occupation—is prohibited,” Jack Goldsmith, a Harvard Law School professor who served in the Bush Administration’s Justice Department, told me.

A day after firing his acting attorney general for refusing to defend his new immigration order, President Trump mocked his Democratic congressional critics Tuesday and demanded that the Senate confirm his pick to lead the Department of Justice, Jeff Sessions...Legal analysts such as Jack Goldsmith — a Harvard Law School professor and Justice Department official during the George W. Bush administration — said Yates should have resigned rather than force Trump's hand.

An executive order apparently drafted by the Trump administration calls for a policy review that could authorize the CIA to reopen “black site” prisons overseas and potentially restart an interrogation program that was dismantled in 2009 after using methods widely condemned as torture...“The president would get a huge symbolic boost with his base while not violating the law and while changing nothing of substance,’’ Jack Goldsmith, a former head of the Justice Department’s Office of Legal Counsel and a Harvard Law School professor, said in an interview. “He would get maximum symbolic value while doing nothing. Trump’s a genius at this.” But Goldsmith, who as the OLC chief rescinded some of the Bush administration’s torture memos, also predicted that Trump would “regret” this executive order, if it is issued, and that the “symbolic bang that Trump sought would backfire” on the administration.

The Trump administration is looking into bringing back torture, according to a draft order published by the The New York Times and the The Washington Post on Wednesday. ...Jack Goldsmith, a Harvard Law professor and former Bush Justice Department official, wrote on the legal blog Lawfare: “I am confident that the report that Trump gets from his top intelligence officials will advise him that a return to the bad old days is not legally available,” adding that “I am also confident that if President Trump ordered waterboarding, neither the CIA Director nor the Secretary of Defense would carry out the order.”

It didn’t take long after BuzzFeed leaked an intelligence dossier detailing shocking allegations of collusion between Russian officials and the Trump campaign (as well as claims that Russia has sexual blackmail against Donald Trump himself) for critics of the president-elect to start dropping the “t” word...But when I asked a few lawyers specializing in national security about the BuzzFeed memorandum, they mentioned that its contents — if true, which is a very big “if” indeed — could bring other laws into play. It’s much too early to speculate about actual indictments, but if the dossier is confirmed, there are a few statutes that would be worth examining. One, according to Harvard law professor and Lawfare co-founder Jack Goldsmith, is the Logan Act, an obscure 1799 law that prohibits citizens of the United States from negotiating with foreign governments and trying to influence their policies vis-a-vis a dispute with the United States...Many legal observers don’t take the Logan Act particularly seriously, however, given that it seems to rather clearly violate the First Amendment and would stand a good chance of being struck down should it even actually lead to a prosecution, according to Goldsmith and other legal observers

Twelve days before the presidential election, FBI Director James B. Comey dispatched a senior aide to deliver a startling message to the Justice Department. Comey wanted to send a letter to Congress alerting them that his agents had discovered more emails potentially relevant to the investigation into Hillary Clinton’s private email server...Jack Goldsmith, a Harvard Law School professor and senior fellow at Stanford University’s Hoover Institution, said that the controversy shines a light on Lynch’s compromised position and failed leadership as attorney general. “If she thought [the letter] violated department policy or was otherwise a bad idea, she could have ordered him not to send the letter,” said Goldsmith, who noted that soon after the letter was released, Justice officials proceeded to criticize Comey when Lynch had the power all along to stop him. “It was an astonishing failure of leadership and eschewal of responsibility, especially if Lynch really thought what Comey did was wrong.”

As he does with considerable regularity, Donald Trump has elevated the eyebrows of the foreign policy establishment with his practice of undergoing intelligence briefings only once a week on average, instead of daily. Now his team says that he is getting the President's Daily Brief three times a week, along with daily briefings from his appointee for national security adviser...Jack Goldsmith, an avid consumer of the process when he was in the Bush administration, stresses that, "It is hard to overstate the impact that the incessant waves of threat reports have on the judgment of people inside the executive branch." Former CIA Director George Tenet says that, "Virtually every day you would hear something about a possible impending threat that would scare you to death." This, writes Goldsmith, captures "the attitude of every person I knew who regularly read the threat matrix." Every person.

Time spoke with Jack Goldsmith, a Harvard Law School professor, a senior fellow at the Hoover Institution and former Assistant Attorney General in the George W. Bush Administration, about the role of executive power in a Donald Trump presidency. What checks will there be on a Donald Trump presidency? The potential checks are many, including Congress and the Courts, the free press and many internal Executive branch watchdogs like inspectors generals, lawyers and the permanent bureaucracy. And of course the people in the next election.

Until this past weekend, it was easy to construe FBI Director James Comey’s extraordinary intrusions into the presidential campaign this year as consistent with a career defined by bureaucratic turf protection, and defensiveness of the institutions he’s served. These aren’t always the most high-minded or important principles, but they’ve helped distinguish him from scores of unprincipled opportunists who’ve held and hold positions of high power in our government...As his former Justice Department colleague Jack Goldsmith explains, Comey hasn’t really “reopened” the Clinton email investigation. “[T]he language Comey used in his letter suggests something less than a full reinvigoration of the investigation…something more like a preliminary inquiry to figure out what, if any, aspects of the earlier investigative conclusions might require revisiting.”