Jack Goldsmith

The most powerful figure in the Republican Party is still Donald Trump. Despite his attempts to overturn the results of the presidential election, his friendliness…

Jack Goldsmith, who served in Office of Legal Counsel under George W. Bush, says laws regulating presidents must be reformed before Trump can be reelected.

Steve Bannon, former President Donald Trump’s political strategist, was indicted by a grand jury Friday on two charges of criminal contempt for defying a House subpoena. ...Biden told reporters Oct. 15 he hoped the committee “goes after” people who defy subpoenas “and holds them accountable criminally.” Asked whether they should be prosecuted, Biden replied: “I do, yes.” Biden told a CNN town hall Oct. 21 that what he said wasn’t appropriate. He said the department would make its own decision about whether to prosecute. “I did not, have not, and will not pick up the phone and call the attorney general and tell him what he should or should not do in terms of who he should prosecute,” Biden said. Jack Goldsmith, a Harvard law professor, tweeted that any prosecution of Bannon, which he considered legally justified, “will be tainted by Biden’s remark.”

Few people have made their names in Washington more differently than Attorney General Merrick Garland and the Republican political operative Steve Bannon. ... In the days and weeks ahead, Garland must decide whether to criminally prosecute Bannon, a step that could result in one of Trump’s top allies being sent to jail. Last Thursday, the House held Bannon in contempt for refusing to testify before its select committee investigating the January 6th insurrection. ... Until now, the Justice Department has generally declined to prosecute former Administration officials who defied Congressional subpoenas... Jack Goldsmith, a Harvard law professor who served as a senior Justice Department official during the George W. Bush Administration, predicted that Garland will be criticized for whatever action he takes, saying, “Both prosecuting contempt and not doing so have downsides and will invite criticism.”

An article by Bob Bauer and Jack Goldsmith: At the top of the list of those responsible for executive branch accountability in the 21st century are the statutory inspectors general that now populate every major executive branch agency. On Wednesday, Oct. 6, the Senate Committee on Homeland Security and Government Affairs will consider three bills—the Securing Inspector General Independence Act of 2021, the IG Testimonial Subpoena Authority Act and the IG Independence and Empowerment Act—that would expand the independence and power of inspectors general in important respects. This post reviews the central reforms, urges the passage of one of them, and assesses the others.

An op-ed by Bob Bauer and Jack Goldsmith: House Democrats late last month introduced the Protecting Our Democracy Act — a bill to curb presidential power that has been widely characterized as a “point-by-point rebuke of the ways that President Donald J. Trump flouted norms,” as the New York Times put it. Trump did indeed aggressively flout norms, but this is a misleading lens through which to view many of the important reforms to the presidency in the bill. The truth is that the bill’s central tenets address problems that arose during recent presidencies of both parties, and that Congress as an institution should want to check. Consider the bill’s proposals to qualify the presidential pardon power by making it a crime to offer a pardon in exchange for a bribe. Trump issued a number of politically and personally self-serving pardons that many commentators thought might rise to the level of bribery. But former President Bill Clinton faced these criticisms at the end of his term after he pardoned Marc Rich, whose wife had previously donated $450,000 to the Clinton Foundation. In fact, the Southern District of New York instituted a federal criminal investigation. The PODA provision would have a powerful and salutary effect in prohibiting pardons as part of a bribery scheme involving presidents.

The Biden administration has nearly completed a policy to govern counterterrorism drone strikes and commando raids outside conventional war zones, but the abrupt collapse of the Afghan government and a recent flurry of strikes in Somalia have raised new problems, according to current and former officials. ... But creating any bureaucratic system and planning for drone strikes cut against Mr. Biden’s repeated statements that he wants to end the forever war, said Jack Goldsmith, a Harvard Law School professor who frequently writes about national security legal policy. “I don’t blame them because I think real threats persist,” he added. “It’s better to have a system for dealing with them than just letting the Pentagon do whatever it wants. But creating a system for drone strikes doesn’t sound like the path to winding down the forever war.”

When President Biden announced the nomination of Merrick Garland as the next attorney general, Biden criticized incendiary rhetoric against the press as contributing to the Jan. 6 assault on the U.S. Capitol. A new president—and new leadership at the Department of Justice—will mean turning a corner on a strenuous four years, in which the Justice Department was repeatedly drawn into then-President Trump’s attacks on journalists and First Amendment rights...Though the concern over politicized regulatory actions will wane with Trump’s departure, we urge the Biden administration to support concrete steps to prevent antitrust or other common regulatory tools (for instance, the securities laws, tax audits by the IRS, or oversight of the telecommunications industry) from being misused in this way. In their recent book “After Trump,” which was published by the Lawfare Institute, former White House counsel Bob Bauer and Harvard law professor Jack Goldsmith propose amending the Inspector General Act to empower inspectors general to investigate official acts that constitute a “reprisal against or an attempt to harass or intimidate” news media organizations or journalists. Given the Justice Department’s resistance to permitting discovery into facts that might support selective enforcement defenses, the Bauer-Goldsmith proposal would be a welcome check against executive branch overreaching in any administration.

As recently as 10 years ago, Jeannie Suk Gersen was still telling people that the area of law she specialized in—sexual assault and domestic violence—didn’t hold much interest for the general public. A quiet corner of the profession, she thought. Remembering that now, she laughs. “But, you know,” she adds, “every area of law does end up moving into focus. Because, in the end, law is really about every aspect of our lives.” Which is partly why Gersen, J.D. ’02, has always taken it so seriously. “Words don’t just describe things,” she explains. In the law, “words actually do things.” ... “Jeannie is intellectually fearless,” says Bemis professor of international law Jonathan Zittrain. That’s a common sentiment among her colleagues... “There are a lot of people who are afraid to say things in our business,” says Learned Hand professor of law Jack Goldsmith, “and she’s not afraid to say what she thinks.” ... “Her whole response to Title IX has been very, very striking—and I think completely correct,” says Beneficial professor of law Charles Fried, who was Gersen’s teacher before he was her colleague ... Says her former teacher, Loeb University Professor emeritus Laurence Tribe, “I was always impressed by how both meticulous and yet unconventional her insights were. She would often come at issues in a kind of perpendicular way. Rather than finding a point between A and B, she would say that maybe that axis is the wrong axis.” ... “She has one of those amazing brains,” says Williams professor of law I. Glenn Cohen, who worked on the Harvard Law Review with Gersen. “She was a year ahead of me in law school, and we all regarded her more like a faculty member, even back then. She just seemed to know everything.”

An op-ed by Gary Corn and Jack Goldsmith: Today the technology and law programs that we supervise at the American University Washington College of Law and the Hoover Institution at Stanford University, are publishing a report entitled “Chinese Technology Platforms Operating in the United States.” The report sets forth a framework for understanding the various threats posed by Chinese-owned technology platforms operating in the United States (e.g. TikTok), and for assessing the various costs and benefits of proposed responses to these threats. The report is a joint-product by a group of people with diverse backgrounds, experiences, and perspectives on these matters: Jennifer Daskal, Chris Inglis, Paul Rosenzweig, Samm Sacks, Bruce Schneier, Alex Stamos, Vince Stewart and the two of us. Some background and elaboration: Among the many challenges the Biden administration has inherited, a frayed U.S.-China relationship figures prominently. The Trump administration's approach to China was driven by China’s emergence as a great power competitor, and frictions inherent in that recognition manifested across a range of issues not the least of which were trade and regulation of Chinese technologies. The Trump administration took direct aim at a number of technologies, from Huawei’s 5G to Chinese manufactured small drones. In late 2020 and early 2021, it took steps to effectively ban TikTok, WeChat and other Chinese-owned apps from operating in the United States, at least in their current form.