Jack Goldsmith

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.

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.

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.

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.

An op-ed by Bob Bauer and Jack Goldsmith: Now 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.

An op-ed by Jack Goldsmith: David 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.

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.

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”.

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.

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.

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.”

Since Election Day, President Trump has stayed on the attack, repeatedly accusing Democrats of seeking to steal the election and calling the continued counting of votes a “fraud on the American public.” He has said he would appeal to the Supreme Court to intervene, and promised to carry on the fight. Now, with Joe Biden declared the next president, Trump has a choice: Will he concede, making the hard and humiliating choice all his predecessors as presidential also-rans have had to make? Or will he continue to wage a scorched-earth battle in an effort to overturn the results or to poison the well as Biden takes over? ... No matter what he hears, Trump is facing legal peril if he leaves office and loses his immunity from prosecution as a sitting president. Trump is facing two investigations by law enforcement officials in New York. Manhattan District Attorney Cyrus Vance Jr. and New York’s attorney general, Letitia James, have been independently investigating potential crimes in Trump’s business practices before he became president...Jack Goldsmith, a professor at Harvard Law School, said it’s unclear whether a president could pardon himself. “The question is entirely novel,” he said. “The Justice Department has suggested in passing, without analysis, that a president cannot self-pardon. Scholars are all over the map.” But presidential pardons don’t extend to charges emerging from state investigations. If Trump were to try to escape charges by fleeing to another country, it’s unclear what would happen. Trump has mused about leaving the country if he loses. “Extradition treaties will determine this,” Goldsmith said. As the president continues to discredit the election results, the future of the nation’s democracy could hang in the balance.

The President was despondent. Sensing that time was running out, he had asked his aides to draw up a list of his political options...The downfall of Richard Nixon, in the summer of 1974, was, as Bob Woodward and Carl Bernstein relate in “The Final Days,” one of the most dramatic in American history...No American President has ever been charged with a criminal offense. But, as Donald Trump fights to hold on to the White House, he and those around him surely know that if he loses—an outcome that nobody should count on—the presumption of immunity that attends the Presidency will vanish...Though Trump doesn’t have the power to pardon or commute a New York State court conviction, he can pardon virtually anyone facing federal charges—including, arguably, himself. When Nixon, a lawyer, was in the White House, he concluded that he had this power, though he felt that he would disgrace himself if he attempted to use it. Nixon’s own Justice Department disagreed with him when it was asked whether a President could, in fact, self-pardon. The acting Assistant Attorney General, Mary C. Lawton, issued a memo proclaiming, in one sentence with virtually no analysis, that, “under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative.” However, the memo went on to suggest that, if the President were declared temporarily unable to perform the duties of the office, the Vice-President would become the acting President, and in that capacity could pardon the President, who could then either resign or resume the duties of the office. To date, that is the only known government opinion on the issue, according to Jack Goldsmith, who, under George W. Bush, headed the Justice Department’s Office of Legal Counsel and now teaches at Harvard Law School. Recently, Goldsmith and Bob Bauer, a White House counsel under Barack Obama, co-wrote “After Trump: Reconstructing the Presidency,” in which the bipartisan pair offer a blueprint for remedying some of the structural weaknesses exposed by Trump. Among their proposals is a rule explicitly prohibiting Presidents from pardoning themselves. They also propose that bribery statutes be amended to prevent Presidents from using pardons to bribe witnesses or obstruct justice. Such reforms would likely come too late to stop Trump, Goldsmith noted: “If he loses—if—we can expect that he’ll roll out pardons promiscuously, including to himself.”

An article by Jack Goldsmith: Four years after Russia’s interference in the 2016 US presidential election, more countries seem to be joining the game in the run-up to this year’s vote on November 3. In August, William Evanina, director of the US National Counterintelligence and Security Center, warned about “ongoing and potential” electoral influence efforts by Russia, China, and Iran. Last week, Director of National Intelligence John Ratcliffe and FBI Director Christopher A. Wray disclosed that Russia and Iran had obtained US voter registration data. “[T]he two countries are stepping in to try to influence the presidential election as it enters its final two weeks,” concluded the New York Times. Americans have been understandably outraged and alarmed about foreign electoral interference. But the practice is not new; in fact, the United States was for a long time its leading exponent. As Dov Levin shows in his book, Meddling in the Ballot Box, the US and the Soviet Union (and subsequently Russia) engaged in 117 covert or overt foreign electoral interventions to help or hinder candidates or parties between 1946 and 2000, with the US accounting for 81 of these cases (or 69% of the total). One of the most famous examples of US foreign electoral interference came at the dawn of the Cold War in 1948, when the CIA (in its first covert action) secretly subsidized public efforts to ensure that communist candidates were defeated in elections in Italy. It also spent millions of dollars on propaganda efforts and supporting favored Italian politicians. These and similar practices, covert and overt, continued throughout the Cold War. CIA historian David Robarge told David Shimer, author of the book Rigged, that during this period, the Agency “‘hardly ever’ altered votes directly,” which implies that it sometimes did.

After the twin traumas of the Vietnam War and the Watergate scandal came a period of change in the nation’s capital. The system set about reinventing itself to realign the balance of power, establish new guardrails for those in high office and try to enforce greater accountability. Two weeks before an election that will determine whether President Trump wins another term or is repudiated by voters, some in both parties are already looking beyond him to map out a similar rewriting of the rules. After four years in which the old post-Watergate norms have been shattered, the would-be reformers anticipate a counterreaction to establish new ones. “It’s pretty obvious that Trump has, through his actions and words, exposed a number of weaknesses in the normative and legal restraints on the presidency,” said Jack L. Goldsmith, a Harvard Law School professor. “He has revealed that there are a lot of gaps in presidential accountability and that norms are not as solid as we thought. He has revealed that the presidency is due for an overhaul for accountability akin to the 1974 reforms.” Mr. Goldsmith, an assistant attorney general under President George W. Bush, has teamed up with Robert F. Bauer, a White House counsel under President Barack Obama, to produce what they hope could be a bipartisan blueprint for what such an overhaul would look like. Among their ideas are empowering future special counsels; restricting a president’s pardon power and private business interests; and protecting journalists from government intimidation. They are not the only ones looking ahead.

This summer, a bipartisan group of about a hundred academics, journalists, pollsters, former government officials and former campaign staff members convened for an initiative called the Transition Integrity Project. By video conference, they met to game out hypothetical threats to the November election and a peaceful transfer of power if the Democratic candidate, former Vice President Joe Biden, were to win...The idea was to test the machinery of American democracy...Along with disinformation campaigns, there is the separate problem of “troll armies” — a flood of commenters, often propelled by bots — that “aim to discredit or to destroy the reputation of disfavored speakers and to discourage them from speaking again,” Jack Goldsmith, a conservative law professor at Harvard, writes in an essay in “The Perilous Public Square,” a book edited by David E. Pozen that was published this year. This tactic, too, may be directed by those in power...Concerns about the harm of unfettered speech have flared on the left in the United States since the 1970s. In that decade, some feminists, led by the legal scholar Catharine A. MacKinnon and the activist Andrea Dworkin, fought to limit access to pornography, which they viewed as a form of subordination and a violation of women’s civil rights. In the 1980s and ’90s, scholars developing critical race theory, which examines the role of law in maintaining race-based divisions of power, called for a reading of the First Amendment that recognized racist hate speech as an injury that courts could redress...The Supreme Court has also taken the First Amendment in another direction that had nothing to do with individual rights, moving from preserving a person’s freedom to dissent to entrenching the power of wealthy interests. In the 1970s, the court started protecting corporate campaign spending alongside individual donations. Legally speaking, corporate spending on speech that was related to elections was akin to the shouting of protesters. This was a “radical break with the history and traditions of U.S. law,” the Harvard law professor John Coates wrote in a 2015 article published by the University of Minnesota Law School. Over time, the shift helped to fundamentally alter the world of politics.

On this week’s episode of Stay Tuned, “The Post-Trump Clean-Up,” Preet answers listener questions about the hypothetical pardoning of President Trump, the presidential native-born citizen requirement, and the process for impeaching a Supreme Court Justice. Then, Preet is joined by legal scholars Bob Bauer and Jack Goldsmith, authors of After Trump: Reconstructing the Presidency, to discuss their ideas for strengthening the rule of law and reforming our government. In the Stay Tuned bonus, Bauer (who reportedly played President Trump on Biden’s debate prep team) gives his observations of the first presidential debate, and Goldsmith offers his concerns about the line of presidential succession. To listen, try the CAFE Insider membership free for two weeks and get access to the full archive of exclusive content, including the CAFE Insider podcast co-hosted by Preet and Anne Milgram.

President Trump publicly pressured the Justice Department on Friday to move against his political adversaries and complained that Attorney General William P. Barr is not doing enough to deliver results of a probe into how the Obama administration investigated possible collusion between Russia and the 2016 Trump campaign. The delayed report is “a disgrace,” and Trump’s 2016 Democratic opponent, Hillary Clinton, should be jailed, Trump said in a rambling radio interview, one day after he argued on Twitter that his current Democratic opponent, Joe Biden, is a criminal who should be barred from running. Three weeks before the election and as he trails Biden in polls nationally as well as in key states, Trump is issuing a new torrent of threats and demands for federal action against Democrats, including former president Barack Obama, that go beyond his familiar and often erroneous claims of wrongdoing by his perceived political enemies...The president’s calls for the Justice Department to target his political opposition in the heat of a presidential campaign is a jarring moment without precedent in modern American history. But it is in keeping with Trump’s actions when he has faced adversity, which now includes testing positive for the coronavirus last week after for months minimizing the threat posed by a deadly virus that has killed more than 213,000 Americans. “The behavior would be shocking in a normal presidency, but Trump has literally been doing this for years,” Harvard Law School professor Jack Goldsmith, a Justice Department official in the George W. Bush administration, said of Trump’s calls to go after Democrats. “So it is reprehensible, but not shocking.”