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Jack Goldsmith

  • Why Is Big Tech Policing Free Speech? Because the Government Isn’t

    January 26, 2021

    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.”

  • The Presidency Won’t Go Back to How It Was

    January 20, 2021

    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.”

  • Trump’s final pardons warped presidential powers for his own benefit

    January 20, 2021

    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 U.S. Presidency: Looking Forward

    January 15, 2021

    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.

  • Does Trump Face Legal Jeopardy for His Incendiary Speech Before the Riot?

    January 12, 2021

    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.

  • Can Trump Pardon Himself?

    January 11, 2021

    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."

  • Why Presidential Pardons Are Normal, Trump’s Less So

    January 8, 2021

    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.

  • How can we prevent Trump-like presidents in the future?

    January 7, 2021

    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.

  • Can Trump Be Stopped?

    January 7, 2021

    An op-ed by David Priess and Jack GoldsmithThe 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.

  • Time Is Running Out to Get a Pardon From Trump

    January 5, 2021

    The week before Christmas, President Donald Trump issued a series of pardons and commutations, many of them for his personal associates and political loyalists: his son-in-law’s father, Charles Kushner; former operatives Roger Stone and Paul Manafort; and two former GOP congressmen. Hardly any of the 49 people who received clemency were vetted by the U.S. Department of Justice’s pardon office. Trump has largely wrested the clemency process from the Justice Department, turning it into a lobbying bonanza that has outraged Democrats...Trump has granted a total of 94 pardons and commutations, far fewer than Barack Obama or George W. Bush issued, and only seven of those cases appear to have been recommended by the pardon attorney, according to data compiled by Harvard Law School Professor Jack Goldsmith. More than 14,000 clemency seekers are waiting for verdicts on their applications to the Justice Department. But that backlog is hardly a new phenomenon. In 2014, the Obama administration unveiled a clemency initiative that created new criteria for commutations, with as many as 10,000 inmates expected to qualify.

  • Trump Gives Clemency to More Allies, Including Manafort, Stone and Charles Kushner

    January 4, 2021

    President Trump doled out clemency to a new group of loyalists on Wednesday, wiping away convictions and sentences as he aggressively employed his power to override courts, juries and prosecutors to apply his own standard of justice for his allies. One recipient of a pardon was a family member, Charles Kushner, the father of his son-in-law, Jared Kushner. Two others who were pardoned declined to cooperate with prosecutors in connection with the special counsel’s Russia investigation: Paul Manafort, his 2016 campaign chairman, and Roger J. Stone Jr., his longtime informal adviser and friend...Of the 65 pardons and commutations that Mr. Trump had granted before Wednesday, 60 have gone to petitioners who had a personal tie to Mr. Trump or who helped his political aims, according to a tabulation by the Harvard Law School professor Jack Goldsmith. Although similar figures do not exist for previous presidents, legal experts say that those presidents granted a far lower percentage to those who could help them personally and politically.

  • Lawfare Live: All the President’s Pardons

    January 4, 2021

    Wednesday, Dec. 30, at 12pm EST, Jack Goldsmith, co-founder of Lawfare and Learned Hand Professor of Law at Harvard Law School, and Benjamin Wittes, co-founder and editor-in-chief of Lawfare, will join David Priess, Lawfare’s chief operating officer, to answer questions about the president’s recent slew of pardons and commutations.

  • How to Reform the Presidency After the Wreckage of Trump

    December 18, 2020

    An op-ed by Bob Bauer and Jack GoldsmithNow that Donald Trump’s time in the White House is ending, an urgent task is the reform of the presidency that for four years he sought to shape in his image and to run in his personal and political self-interest. What the those years have shown is that the array of laws and norms that arose after Watergate and Vietnam requires an overhaul. Any program for reform of the presidency must give precedence to our health and economic crises. It must also acknowledge political realities. Some reforms can be carried out by the executive branch, but others require legislation. Those must attract at least modest bipartisan support in the Senate. With these constraints in mind, an agenda for reform of the presidency could realistically reflect the following priorities: Executive Branch Reforms. These reforms should focus on restoring the integrity of the rule of law, especially to check presidential interventions in law enforcement for self-protection or to harm political enemies. The Constitution vests executive law enforcement power in the president, so the executive branch must institute most of these reforms. Internal branch reforms lack legal enforceability but can establish or reinforce guardrails that constrain even norm-breaking presidencies, especially by influencing presidential subordinates. Because President Trump defied them regularly, and sometimes his Justice Department did, too, there’s a lot of skepticism about norms. But actually norms succeeded more in checking him than has been appreciated — for example, in ensuring that Robert Mueller, despite Mr. Trump’s opposition, could complete his inquiry; in protecting federal prosecutors in New York in any investigation of matters related to Mr. Trump; and in preventing the Justice Department from carrying out the president’s desire to prosecute his enemies.

  • Quick Thoughts on the Russia Hack

    December 16, 2020

    An op-ed by Jack GoldsmithDavid Sanger, building on a Reuters story, reports in the New York Times that some country, probably Russia, “broke into a range of key government networks, including in the Treasury and Commerce Departments, and had free access to their email systems.” The breach appears to be much broader. “[N]ational security-related agencies were also targeted, though it was not clear whether the systems contained highly classified material.” The Department of Homeland Security appears to be one of those agencies. Sanger says that the “intrusions have been underway for months” and that “the hackers have had free rein for much of the year.” The original Reuters story on Dec. 13 noted that people familiar with the hacks “feared the hacks uncovered so far may be the tip of the iceberg.” On the evening of Dec. 13, the Cybersecurity and Infrastructure Security Agency issued an Emergency Directive to all federal civilian agencies to review their networks for indicators of compromise. This attack is the latest in a long string of other serious breaches of government networks by insiders and outsiders in the past decade—for example, the Office of Personnel Management (OPM) in 2014-2015; the White House, State Department, and Joint Chiefs email breach during those same years; the 2016 theft of CIA hacking tools; the Shadow Brokers theft of National Security Agency tools in 2017; and Edward Snowden’s mammoth disclosures in 2013 and beyond. These events constitute a stunning display of the U.S. government’s porous defenses of sensitive government networks and databases.

  • On the Bookshelf: HLS Library Book Talks, Spring 2018 2

    On the bookshelf

    December 15, 2020

    In the unusual year of 2020, Harvard Law authors continued to do what they always have: Write.

  • The Failed Transparency Regime for Executive Agreements

    December 14, 2020

    An article by Curtis Bradley, Jack Goldsmith, and Oona Hathaway: In late October, the United States and Sudan reportedly signed a bilateral agreement “to resolve claims arising from the 1998 East Africa embassy bombings in Tanzania and Kenya.” This agreement apparently requires Sudan to pay hundreds of millions of dollars and commits the United States to enact legislation that would restore Sudan’s immunity under the Foreign Sovereign Immunities Act, which it lost when it was deemed a state sponsor of terrorism. A side agreement apparently even included specific legislative text and gave Sudan a veto over any changes to it. The Sudan agreement was not concluded as an Article II treaty, which must be submitted to the Senate for the advice and consent of two-thirds of the senators present. (The Article II process, as we have previously discussed, is now practically dead.) Instead, like hundreds of other agreements concluded in recent years—and thousands concluded in recent decades—the agreement appears to have been concluded through what is known as an “executive agreement”—a binding international agreement made by the president based on his own constitutional authority or authority granted in advance by Congress. Despite its importance, the public currently has no access to this agreement. The executive branch is not required to publish executive agreements until 180 days after they have entered into force. Nor is this agreement subject to review or approval by Congress. In fact, the executive branch is not even legally obligated to disclose such agreements to Congress until after the agreements are already binding on the United States.

  • Fixing The Norms That President Trump Has Broken

    December 3, 2020

    The Trump presidency has exposed many vulnerabilities in the laws and norms that govern presidential behavior. His brazen disrespect demands action to protect against a future president who might build on Trump's playbook. President Trump has flouted norms against conflicts-of-interest and courting foreign interference, abused his pardon power, threatened nuclear war, used the office to attack political foes, the press, and the judiciary, and refused to concede an election that he lost. He's not the first president to abuse presidential power and he's not the only problem. Congress has abdicated too much of the power they once used to better oversee and constrain presidential power. The good news is that we now have an opportunity to codify certain norms most vulnerable to abuse. Do we have the political will? Guest: Jack Goldsmith is a professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. He served as the head of the Office of Legal Counsel during the George W. Bush Administration. Administration. He’s the co-author, with Bob Bauer, of “After Trump: Reconstructing the Presidency”.

  • Reining in growing powers of the presidency

    November 23, 2020

    Both Republicans and Democrats have voiced concerns over the past few decades about the expansion of presidential powers — some of it ceded by Congress looking for political cover, much of it a result of White House legal interpretations of constitutional gray areas. The balance of power now tilts in favor of the Oval Office, but since President Richard Nixon leaders have held themselves largely in check, respecting long-established informal rules and norms. Then came President Trump...In a new book, “After Trump: Reconstructing the Presidency,” attorneys Bob Bauer ’73 and Jack L. Goldsmith, veterans of Democratic and Republican White Houses, respectively, propose what they say are long-overdue reforms to the Office of the President that can rein in future presidents who try to exploit the position for their political or personal benefit. Goldsmith, Learned Hand Professor of Law at Harvard Law School, served as assistant attorney general in the Office of Legal Counsel during the George W. Bush administration. He writes frequently about national security, government, and politics, and is a founding editor of Lawfare. Bauer, a longtime legal adviser to President Barack Obama who is now advising the Biden campaign, is widely regarded as a leading authority on executive branch powers. He served as White House counsel from 2008 to 2011 and is now a professor of the practice and distinguished scholar in residence at NYU Law.

  • Jack Goldsmith on why fears of a Trump coup are nonsense

    November 19, 2020

    An op-ed by Jack Goldsmith: Long before Donald Trump became president it was widely believed that he would spark a “constitutional crisis” if elected. And during his term in office there were panicked claims that he was just on the verge of destroying the American constitutional order: when Mr Trump threatened to defy judicial orders related to the Muslim ban, and to fire or stop Special Counsel Robert Mueller; and when he made absolutist executive-power claims in defying congressional subpoenas for his tax returns and urged prosecution of his political enemies. In these and many other contexts, Mr Trump’s verbal assaults and threats, incessant norm-defiance and claims of absolute power provoked four years of vertiginous panic. Mr Trump was so discombobulating that relatively few noticed that these and many other worst-case scenarios never played out. Mr Trump has left enormous damage in his wake—to the psyche of many Americans, to many institutions of American democracy and to beaten-down citizens’ confidence in these institutions. There is much repair work to be done. Yet the most remarkable fact about his presidency is how well the American constitutional system stood up to and survived it. This was true, most importantly, in the recent presidential election. Hundreds of stories and reports warned about foreign hacking, domestic and foreign disinformation, violence, insecure voting machines, voter suppression and pandemic-related problems. Yet more Americans than ever (approximately 150m) voted for president. And the election “was the most secure in American history,” according to federal election infrastructure experts.

  • illustration--presidents desk with scafolding in front of it

    Reforming the Presidency

    November 16, 2020

    Jack Goldsmith speaks with the Bulletin about the most effective approach to regulating the executive branch, “the absolute low point” of presidential relations with the press, and the one issue on which he, an independent, and his co-author, a Democrat, could not agree.

  • The Abnormal Presidency

    November 11, 2020

    At a frenetic and freewheeling rally in Macon, Ga., in mid-October, with less than three weeks to go before the election, President Trump turned introspective. He reflected on what sets him apart from every other president in American history: his refusal to be presidential...One of the things Trump has forced presidential scholars to realize “is the extent to which shamelessness in a president is really empowering,” says Jack Goldsmith, a former Justice Department official in the George W. Bush administration who teaches at Harvard Law School. The current presidency also reveals “the extent to which the whole system before Trump was built on a basic assumption about a range of reasonableness among presidents, a range of willingness to play within the system, a range of at least a modicum of understanding of political and normative constraints.” Goldsmith and others argue that Trump’s steamrolling of norms could do lasting damage to both the stature of the presidency and the institutions of democracy if reforms aren’t devised to bolster the fragile tissue of these shared understandings... “When you pound the Justice Department and pound the intelligence community as being corrupt, incompetent, making up stories about what they do, it’s enormously demoralizing for those institutions,” says Jack Goldsmith, the former Justice Department official. “It reduces the legitimacy of those institutions in the eyes of the country.”