Jack Goldsmith

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.”

After Donald Trump's recent hospitalization, the president and his team took a variety of steps to produce images of a "performative show of strength," as CNN's Brian Stelter put it. Referring to North Korea's political model, Stelter added, "This is the kind of thing you see from strongmen who want to appear to be leading -- it's a 'Dear Leader' sort of approach." A Washington Post report went on to note over the weekend, "[A]nalysts who study authoritarian regimes said critics are right to posit that Trump has borrowed from the playbooks of strongman leaders in his messaging. Ruth Ben-Ghiat, a historian at New York University, said Trump shares the authoritarian urge for "constant public adoration," and she emphasized that he is 'very savvy about how the authoritarian leader-follower relationship works.'" But as important as it is to appreciate the degree to which the Republican incumbent emulates an authoritarian style, the substance of Trump's authoritarian tactics is more terrifying...The Times' report noted that this takes Trump's presidency "into new territory -- until now, occupied by leaders with names like Putin, Xi and Erdogan." Indeed, I made the case last week that if this were happening in another country, the world would look to the United States to condemn the authoritarian antics. Except, in 2020, the authoritarian antics, unlike anything in the American tradition, are coming from our own White House. Jack Goldsmith, who led the Justice Department's Office of Legal Counsel in the Bush/Cheney era and who is now a professor at Harvard Law School, added, "It is crazy and it is unprecedented, but it's no different from what he has been saying since the beginning of his presidency. The only thing new is that he has moved from talking about it to seeming to order it."

President Trump’s positive coronavirus test has raised the possibility, however remote, that he could become incapacitated or potentially die in office if his symptoms worsen. While that outcome remains highly unlikely, and few in Washington were willing to discuss it on Friday, when Mr. Trump was taken to Walter Reed National Military Medical Center for treatment, the Constitution and Congress long ago put in place a plan of succession to ensure that the nation is protected from adversaries and internal conflict when the elected president cannot serve. The Constitution makes clear that the vice president is first in line to succeed the president should he or she die in office, and can step in to temporarily take on the duties of the presidency should the commander in chief become incapacitated. Vice President Mike Pence, 61, tested negative for the coronavirus on Friday...Some constitutional scholars have raised doubts about whether the speaker of the House and the president pro tempore of the Senate are eligible to step in for the president, arguing that the framers intended for only executive branch officials — an “officer” is the term in the Constitution — to qualify. Jack L. Goldsmith, a Harvard Law School professor, warned this year that the seemingly arcane dispute could cause a clash. It is possible, for instance, that Ms. Pelosi and Secretary of State Mike Pompeo, the next executive branch official in line, could make competing claims to the presidency. “These are all nightmare scenarios because these points of constitutional law have really never been tested,” Mr. Goldsmith said... “You think about ambiguity in the chains of command when we have adversaries around the world,” he said. “We could end up with some real issues and a government in effect adrift with some competing power players.”

John Durham has said almost nothing about his 15-month probe into the FBI’s investigation of the Trump 2016 campaign. Not so Durham’s boss, Attorney General William Barr, who has called “Crossfire Hurricane” one of the “greatest travesties in American history.” Now, as America heads into the final weeks of a contentious presidential campaign, experts say it is Barr who will control how, and possibly when, Durham’s findings are presented to the country. That has Democrats feeling deja vu. In 2016, former FBI Director James Comey infamously revealed that the bureau had reopened an investigation into Hillary Clinton’s private email server just days before the election. With Trump’s intense interest in Durham’s work, Barr’s controversial comments and a fast-approaching presidential election, the timing and manner of the end of this probe could affect voters as they go to the polls...In theory, some norms control whether and how Durham’s findings would become public. If Durham does not have any other criminal indictments resulting from his work, typically the Justice Department would refrain from making much information public. The Department tends not to release information about what it has found about someone if that person isn’t going to be criminally charged. (This was the norm Comey broke in his public statements about Clinton’s email investigation in 2016.) On the other hand, if people are charged as a result of Durham’s work, the Justice Department has an unwritten “60-day rule” that urges caution on taking major action in any politically significant cases within a window of time before an election if it could affect the results. But in practice, it’s up to Barr how much deference to give to these traditions. “Other than those soft norms, he basically can do what he wants,” says Jack Goldsmith, professor at Harvard Law School who served in the Justice Department’s Office of Legal Counsel (OLC) under President George W. Bush. Unlike Robert Mueller, whose investigation was governed by the special counsel regulations, Durham has no formal roadmap to follow for how he needs to present his findings. Barr “has enormous discretion,” says Goldsmith. “There are no express Justice Department rules governing this.”

An article Bob Bauer and Jack Goldsmith: The final report on Russian electoral interference by the Senate Select Committee on Intelligence notes “several ways in which hostile actors [are] able to capitalize on gaps in laws or norms and exert influence.” And it highlights in particular the problem posed by “a campaign’s status as a private entity intertwined with the structures of democracy.” The report calls on campaigns to build protections against becoming channels for illicit foreign state influence. It urges future campaigns to “perform thorough vetting of staff, particularly those [with] responsibilities that entail interacting with foreign governments”; “ensure that suspicious contacts with foreign governments or their proxies are documented and can be shared with law-enforcement”; and reject the “use of foreign origin material, especially if it has potentially been obtained through the violation of U.S. law.

If Joe Biden wins the presidency, his Justice Department will face a decision with huge legal and political implications: whether to investigate and prosecute President Trump. So far, the candidate is approaching that question very carefully...Based on those remarks, Biden seems to be on the way to adopting the position of former President Barack Obama. Back in 2009, the newly elected Obama said he didn't want to get hung up on prosecuting wrongdoers. He was referring to people who had engaged in torture and warrantless wiretapping during the previous administration. Instead, Obama told ABC News at the time, his instinct was to make sure those practices never happened again. "I don't believe that anybody is above the law," he said, "On the other hand, I also have a belief that we need to look forward, as opposed to looking backwards." ..."It's not at all clear that looking forward and not looking backward is an available option," Harvard Law School Professor Jack Goldsmith said. Goldsmith said most people aren't talking about how a Biden Justice Department might handle Trump but said he thinks they should be...But the Justice Department twice has opined that prosecutors can't seek an indictment against a sitting president. That's left open the question about whether he might face prosecution once he leaves office. It's never happened before, and it's a political time bomb. Bringing a criminal case against a former president could widen the divide in the country. "Whether that's good for the country is a very hard question that's going to be very messy," Goldsmith said. "Whether it's good for the Biden administration, whether it wants to be, you know, absorbed in being the first administration to ever prosecute a prior president — those are very hard questions."

The Justice Department celebrates its 150th anniversary this month, but thousands of agency veterans aren’t really feeling the love these days. Instead, they worry President Trump has demolished the norms that were supposed to insulate prosecutions from politics. At the center of the debate is Attorney General Bill Barr, who’s scheduled to testify Tuesday on Capitol Hill. Barr has become a lightning rod for critics who argue he’s not an independent officer in the way the boss of the Justice Department should be, but acting too much like a sympathetic counselor for the president...Barr also has complained publicly about the appearances created by Trump’s public comments and posts on Twitter and sought to make it known that he had contemplated resigning. For skeptics, those kinds of statements have become meaningless as Trump keeps tweeting, encouraging Justice to go easy on his allies and target his enemies. The problem of perception endures even if political interference actually isn’t taking place, department veterans said. “It does look like something untoward is going on at the Justice Department, there’s no doubt about that,” said Jack Goldsmith, a Harvard Law School professor who worked at the Justice Department during the George W. Bush administration. “The problem is that he seems to be acting as the bag-man for the president who has been attacking these prosecutions for years,” Goldsmith said. “And whether there’s the reality of carrying the president’s water, there’s clearly the appearance of it, and it has a terrible effect, I think, on the Justice Department’s legitimacy and everything it does.” In September, Goldsmith and former Obama White House counsel Bob Bauer plan to publish “After Trump: Reconstructing the Presidency,” a book about how the country might move on after Trump, whenever that time comes.

President Trump has said he learned lessons from President Richard M. Nixon’s fall from grace, but in using the power of his office to keep his friend and adviser Roger J. Stone Jr. out of prison he has now crossed a line that even Mr. Nixon in the depths of Watergate dared not cross. For months, senior advisers warned Mr. Trump that it would be politically self-destructive if not ethically inappropriate to grant clemency to Mr. Stone, who was convicted of lying to protect the president. Even Attorney General William P. Barr, who had already overruled career prosecutors to reduce Mr. Stone’s sentence, argued against commutation in recent weeks, officials said. But in casting aside their counsel on Friday, Mr. Trump indulged his own sense of grievance over precedent to reward an ally who kept silent. Once again, he challenged convention by intervening in the justice system undermining investigators looking into him and his associates, just days after the Supreme Court ruled that he went too far in claiming “absolute immunity” in two other inquiries...Jack L. Goldsmith, a Harvard Law School professor and Justice Department official under President George W. Bush, said those cases could be seen as parallels to Mr. Stone’s commutation but pointed to the larger pattern under Mr. Trump. In 31 of his 36 pardons or commutations, he noted, Mr. Trump advanced his political goals or benefited someone with a personal connection, whose case had been brought to his attention by television or was someone he admired for their celebrity. “This has happened before in a way,” Mr. Goldsmith said. “But there has been nothing like Trump from a systematic perspective.”

An op-ed by Jack Goldsmith and Marty Lederman: The U.S. government filed a civil suit on June 17 against former National Security Adviser John Bolton. It primarily seeks an injunction against the planned June 23 publication of Bolton’s book, “The Room Where It Happened: A White House Memoir,” and a “constructive trust” that would give the United States the right to all of Bolton’s profits from the book. The case has been assigned to Judge Royce Lamberth of the U.S. District Court for the District of Columbia. This post explains the case and offers our initial thoughts. The big news to us about the government’s case is that it’s weaker than we expected. We should emphasize, however, that these views are preliminary and incomplete. The case implicates a complex and in some ways unsettled area of law. The most important thing to understand about the case is that the government is suing Bolton for a breach of contract—two contracts, in fact. As the government’s complaint describes, the contracts in question are nondisclosure agreements (NDAs) that Bolton signed on April 5, 2018, when he entered government service as national security adviser. These NDAs are included as attachments to the complaint. The first NDA, Standard Form 312, contains obligations Bolton assumed as a condition of obtaining access to classified information generally, that is, a “security clearance.” Two are pertinent here.

An article by Jack Goldsmith: In recent months, President Trump has fired or removed five inspectors general and sought to replace at least four of them with officials he perceives to be more loyal. Members of Congress have responded with bills to check the president through “for-cause” removal restrictions on inspectors general. I argued in the Washington Post last week that these efforts might not be constitutional and are destined to fail in any event. A better approach, I maintained, is for Congress to limit the president’s discretion to temporarily fill vacant inspector general slots either to someone already confirmed for an inspector general position in another agency or to a senior career official in the agency’s Office of Inspector General. This post explains why this and similar approaches are clearly constitutional. The Constitution specifies two basic paths for the president to appoint officers: the Appointments Clause, which requires Senate advice and consent; or the Recess Appointments Clause, which requires that the Senate be in recess. The executive branch has taken different positions (pp. 4-7) on how much authority Congress has to specify qualifications for these offices. In recent decades, it has taken a particularly narrow view of Congress’s authority. Notably, then-head of the Office of Legal Counsel (OLC) William Barr’s 1989 memorandum on “Common Legislative Encroachments on Executive Branch Authority” criticized qualification requirements and stated that the “only congressional check that the Constitution places on the President’s power to appoint ‘principal officers’ is the advice and consent of the Senate.” One can expect the Barr Justice Department in 2020 to hold this view.

An article by Jack Goldsmith: Inspectors general are under attack. President Trump’s recent termination of State Department Inspector General Steve Linick was the fifth time in two months that Trump has fired or removed inspectors general and sought to replace them with officials he perceives to be more loyal. Congress, including important Republicans, is finally stirring to protect these internal agency watchdogs. But the focus on trying to make it harder for the president to remove inspectors general is misplaced. Instead, lawmakers should concentrate on restricting how a president can fill vacant inspector general positions. The modern inspector general dates to 1978, when Congress gave many inspectors general extraordinary internal investigative powers, required them to be confirmed by the Senate and tasked them with reporting to Congress. All this was controversial as a constitutional matter. President Jimmy Carter signed the 1978 law even though his Justice Department concluded that the dual reporting obligations to the executive branch and Congress “violate the doctrine of separation of powers.” Over the decades, constitutional concerns have faded as inspectors general have proved their worth in rooting out agency waste, fraud and abuse, and in conducting credible investigations of controversial agency actions. The 2003 Central Intelligence Agency report on black sites, the 2012 General Services Administration report on federal employee extravagances, the 2012 Justice Department report on the “Fast and Furious” gun-running program, and the 2019 Justice Department report on the investigation of the Trump campaign are exemplars that led to important reforms.

An article by Jack Goldsmith and Ben Miller-Gootnick '21: On Friday, May 15, President Trump announced in a letter to Speaker of the House Nancy Pelosi that he was firing State Department Inspector General Steve Linick. Several sources have reported that Stephen Akard, the Senate-confirmed director of the State Department’s Office of Foreign Missions, will replace Linick in an acting capacity. Trump’s firing of Linick is almost certainly lawful. However, it is unclear whether Trump can immediately replace Linick with Akard, if that is the plan. 1. Is the Firing Lawful? Bracketing for a moment the question of retaliation, which we discuss briefly below, Trump’s firing of Linick appears to be lawful. The State Department inspector general is governed by the Inspector General Act of 1978, as modified by the Inspector General Reform Act of 2008 (IGRA). The amended statute states that an inspector general “may be removed from office by the President” but requires the president to “communicate in writing” to both houses of Congress “the reasons for any such removal” at least 30 days before the removal. The reason that Trump provided for the removal in his letter to Pelosi was that he “no longer” had the “fullest confidence” in Linick. This was the exact reason and language Trump used when he fired Michael Atkinson as inspector general of the intelligence community in April.