Jack Goldsmith

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.

Even as the Biden administration has moved aggressively to undo Donald J. Trump’s policies and dislodge his loyalists from positions on boards and civil-service jobs, it has hesitated on a related choice: whether to remove two inspectors general appointed by Mr. Trump under a storm of partisan controversy. At issue is whether the new administration will keep Eric Soskin, who was confirmed as the Transportation Department’s inspector general in December, and Brian D. Miller, a former Trump White House lawyer who was named earlier in 2020 to hunt for abuses in pandemic spending. Both were confirmed over intense Democratic opposition after Mr. Trump fired or demoted a number of inspectors general last year,saying he had been treated “very unfairly” by them...Still, Jack Goldsmith, a Harvard Law School professor who co-wrote a book proposing post-Trump reforms to government, said that no matter how well Mr. Biden might couch a justification to remove such an inspector general, it would further damage the notion that presidents ought not remove them without cause. “If Biden refrains from firing Senate-confirmed but disfavored inspectors general, that will buck up the norm of independence,” Mr. Goldsmith said. “The ostensible norm is not an actual norm if it doesn’t constrain the president in painful ways.”

In the months leading up to the November election, the social media platform Parler attracted millions of new users by promising something competitors, increasingly, did not: unfettered free speech...The giants of social media — Facebook, Twitter, YouTube, Instagram — had more stringent rules. And while they still amplified huge amounts of far-right content, they had started using warning labels and deletions to clamp down on misinformation about Covid-19 and false claims of electoral fraud, including in posts by President Trump...Why, for example, hasn’t Facebook suspended the accounts of other leaders who have used the platform to spread lies and bolster their power, like the president of the Philippines, Rodrigo Duterte? A spokesman said suspending Trump was “a response to a specific situation based on risk” — but so is every decision, and the risks can be just as high overseas. “It’s really media and public pressure that is the difference between Trump coming down and Duterte staying up,” says Evelyn Douek, a lecturer at Harvard Law School. “But the winds of public opinion are a terrible basis for free-speech decisions! Maybe it seems like it’s working right now. But in the longer run, how do you think unpopular dissidents and minorities will fare?” ... “I’m afraid that the technology has upended the possibility of a well-functioning, responsible speech environment,” the Harvard law professor Jack Goldsmith says. “It used to be we had masses of speech in a reasonable range, and some extreme speech we could tolerate. Now we have a lot more extreme speech coming from lots of outlets and mouthpieces, and it’s more injurious and harder to regulate.”

An op-ed by Jack Goldsmith and Samuel Moyn: After years of Donald Trump’s boorish defiance of presidential norms, his incitement of the violence at the Capitol closed his term with a demented rave that shamed American democracy. Tomorrow Joe Biden will return the presidency to a more decorous and honorable choreography. But in important respects, Biden cannot restore normalcy. Trump’s most profound and least recognized contributions to the office he abused are a reorientation of some of the presidency’s important powers and responsibilities. Once-fringe understandings about the role of the president approached acceptance under Trump in ways that Biden cannot dismiss, and they could transform how the great office functions for years to come. True, Biden’s time in office will witness reversals by conservatives and progressives on some of the uses and limits of presidential power. The Harvard law professor Adrian Vermeule predicted at the dawn of the Trump administration that the sides would reverse their positions about aggressive uses of presidential administration. He compared the pattern to two lines of dancers in a Jane Austen novel who move to opposite sides of the ballroom and then continue dancing as before. “The structure of the dance at the group level is preserved; none of the rules of the dance change; but the participants end up facing in opposite directions.”

President Trump’s last-minute pardons betray what the Constitution’s pardon power is all about. While he has not decided to try to pardon himself (at least, not as far as we know), the pardons he issued during his term taken together serve as a microcosm for his presidency. They take a noble part of our Constitution and warp it in the service of Trump’s ego and future personal interests...These final pardons do not arrive shorn of history here. Trump’s prior pardons, like Tuesday’s, largely fall into two buckets. Bucket 1 is friends of Donald Trump — people like Roger Stone, George Papadopoulous, Paul Manafort, Charles Kushner (yes, Jared’s dad) and Michael Flynn. These folks never even bothered formally requesting a pardon; they got one through back channels to the Oval Office. Bucket 2 are rogues who aspire to be in Bucket 1 — people like Dinesh D’Souza and former Maricopa County, Ariz., sheriff Joe Arpaio. The conservative Harvard Law School professor Jack Goldsmith examined all of Trump’s pardons before his final days in office and found a whopping 91 percent of them went to people with personal or political connections to Trump. An outsize number of Trump’s pardons were for white-collar criminals, revealing again Trump’s proclivity to benefit those who look and act like him. For decades, criminal justice had been moving in the direction of greater parity between white-collar and other offenders, only to have Trump come along and reverse the trend.

The latest episode of Reasonably Speaking brings together a panel of top scholars in U.S. presidency and political science to discuss the future of the U.S. presidency Post–Trump. In “The U.S. Presidency: Looking Forward,” ALI President David F. Leviis joined by David M. Kennedy and Terry M. Moe of Stanford University, and Jack Landman Goldsmith and Daphna Renan of Harvard Law School for a timely conversation on the most important office in our government.

Scrutiny increased on Monday on how President Trump sought to foment anger at a rally of his supporters and then dispatched them to the Capitol shortly before they rioted last week, as House Democrats on Monday unveiled an article of impeachment accusing him of inciting an insurrection. Here is an overview of some of the broader forms of legal jeopardy the president may be facing...Jack Goldsmith, a Harvard Law professor, flagged another potential hurdle for prosecutors: The Justice Department’s Office of Legal Counsel — including Mr. Barr, when he ran it in 1989 — has written several legal policy memos holding that laws sometimes do not apply to a president engaged in official acts unless Congress has made a “clear statement” that it intended that. That legal policy raises difficult questions for Justice Department prosecutors — and, potentially, the courts — including whether Mr. Trump’s speech to supporters about a political issue counts as an official act. “The whole thing is, in truth, clouded with uncertainty,” Mr. Goldsmith said.

With pressure mounting from all sides, President Trump is reportedly telling aides — once again — that he wants to pardon himself...Harvard Law professor Jack Goldsmith has examined all of Trump's pardons and sentence commutations. "We determined that at least 85 of the 94 have some personal or political connection to Trump and were self-serving in that way," he says. Goldsmith, who served as head of the Office of Legal Counsel in the George W. Bush Justice Department, notes that pardon controversies are hardly unique. What's new is the "massive extent" to which Trump has circumvented the Justice Department office charged with processing pardon applications. "Trump loves to exercise the hard powers of the office of the presidency and he especially loves to do so if he thinks there's something in it for him personally and ... if he thinks it will make the political elites' heads explode," he says...Goldsmith notes that the incoming Biden administration is already facing a lot of pressure to investigate and potentially prosecute Trump for some of his actions, and that while President-elect Joe Biden has not previously indicated any great enthusiasm for that idea, Goldsmith says that "if Trump pardons himself, it's going to make it more likely that they will go forward." The Justice Department, he says, "is not going to want to acquiesce in what they think is an unconstitutional assertion of the pardon power."

The U.S. president has vast constitutional power to grant clemency in the form of pardons and commutations. The process is often tinged with politics. George H.W. Bush pardoned six men involved in the Iran-Contra scandal, while Bill Clinton pardoned Marc Rich, a Democratic Party donor who had fled to Switzerland after being accused of tax crimes. But clemency under Donald Trump has been unusual in multiple respects, including how recipients are evaluated and how announcements are timed. There’s even renewed speculation that Trump, before leaving office on Jan. 20, might try to preemptively pardon himself as a shield against any future prosecution for alleged federal crimes...Of Trump’s first 94 pardons and commutations, only seven appeared to have come on recommendation of the pardon attorney, and at least 84 were granted to people with “a personal or political connection to the president,” according to a review led by Harvard Law School Professor Jack Goldsmith. Trump’s first pardon, for instance, was given to Joe Arpaio, the former Maricopa County, Arizona, sheriff who had been found guilty a year prior of criminal contempt of court. Arpaio hadn’t applied for the pardon.

As the Trump era comes to a close, many Americans will breathe a sigh of relief as the chaos, divisiveness and cloud of corruption that have characterized this presidency recede. In spite of Trump’s unprecedented attempts to undo democracy, by and large our institutions held. The courts did not overturn the election, the press has not been nationalized or silenced, and civil servants stood up to the president on issues from the infamous Ukraine telephone call to the approval timeline for Covid-19 vaccines...But a healthy democracy needs constant tending. It’s time to look at our entire democratic system and see where changes should be made. As I have argued before, reforming the primary system to re-insert some element of peer review into our nomination system would go a long way towards preventing people like Trump from getting a shot at the presidency in the first place...Another area of concern is the legal constraints or lack thereof on the presidency. Here one should turn to Bob Bauer and Jack Goldsmith’s invaluable book, After Trump: Reconstructing the Presidency. The book is a comprehensive agenda for those who would like some means of preventing or coping with Trump-like presidents in the future. Bauer is one of Washington’s most famous election lawyers. He represented the Democratic National Committee and the Biden campaign, and served as White House Counsel in the Obama Administration. Goldsmith is a professor at Harvard Law School who played key roles in the second Bush Administration and is considered one of the best conservative legal minds in the country. Together they provide a very sensible roadmap for reform.

An op-ed by David Priess and Jack Goldsmith: The hours since Wednesday afternoon have seen a tidal wave of calls for Donald Trump to lose the powers and duties of the office for his role in the historic storming of the U.S. Capitol. There is a new push for impeachment. And news reports suggest that members of Trump’s Cabinet are considering invoking the 25th Amendment to take from Trump, in the words of the Amendment, “the powers and duties of the office” he holds. (We should note that this reporting is thinly sourced; Maggie Haberman of the New York Times reported last night that a source merely says “the 25th Amendment discussions are staff-based within the administration and with some Republicans on the Hill, and that they're not particularly focused.”) This comes on the heels of a very strange series of events from inside the executive branch, including a statement on Wednesday afternoon by the Secretary of Defense that after consulting with Vice President Pence and top congressional leaders—but seemingly not President Trump—he was “activating D.C. National Guard to assist federal and local law enforcement as they work to peacefully address the situation.” Shortly before 4 a.m. this morning, a reconvened Congress finally confirmedPresident-elect Biden’s presidential victory. And then President Trump issued this statement: “Even though I totally disagree with the outcome of the election, and the facts bear me out, nevertheless there will be an orderly transition on January 20th.” But it is far from clear that Trump will stick by, or do what it takes to carry out, this pledge.