Jack Goldsmith

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.

President Trump on Friday fired the inspector general of the State Department. It was the fourth time he had fired or removed an inspector general in just the last six weeks. As he explained in a letter to Capitol Hill leadership, he had lost confidence in the inspector general, though Democrats were quick to point out that he appeared to be investigating Mike Pompeo on a number of matters, and Mike Pompeo, in turn, had requested his removal. To discuss the Trump administration's removals of inspectors general, Benjamin Wittes spoke with Mike Bromwich, who was the inspector general of the Justice Department during the Clinton administration; Jack Goldsmith, professor at Harvard, who wrote a piece on Lawfare about the legality of removals of inspectors general; and congressional guru Margaret Taylor, who examines the congressional reaction to the moves. They talked about many aspects of the controversy: Is this unprecedented? When have prior presidents removed inspectors general? And what, if anything is Congress going to do about it?

In a pair of recent podcasts, Rid joined members of the Brookings community to discuss his new book, "Active Measures: The Secret History of Disinformation and Political Warfare." First up, Rid chats with Harvard Law School Professor Jack L. Goldsmith about the early history of disinformation through the 1980s.

An article by Jack Goldsmith and Andrew Keane Woods: Neither of us has ever written anything that has been as misinterpreted as this piece in the Atlantic. People construed the essay to call for “an end to freedom of speech in America”; to endorse “China’s enlightened authoritarian approach to information” and “lament the US’ provincial fealty to the First Amendment”; as an attempt to surrender a “model of social organization predicated on individual liberty”; to argue that “the United States’ response to coronavirus would have been better had Big Tech and the U.S. government, like the Chinese communist regime, been able to control speech more effectively on the internet”; and to overlook that the “US & China are not equivalent” because “Americans are not at risk of being sent to a goulag [sic] if they breach YouTube’s terms of service [but in China] the risk is real.” And those were the nice comments. We did not say or imply any of these things. If you read the article, you will see that we do not remotely endorse China-style surveillance and censorship, or claim that the United States should adopt China’s practices. The piece was meant as a wake-up call about how coronavirus surveillance and speech-control efforts were part of a pattern rather than a break in one, and why, and what the stakes were. Let us try again.

An article by Jack Goldsmith and Andrew Keane Woods: Covid-19 has emboldened American tech platforms to emerge from their defensive crouch. Before the pandemic, they were targets of public outrage over life under their dominion. Today, the platforms are proudly collaborating with one another, and following government guidance, to censor harmful information related to the coronavirus. And they are using their prodigious data-collection capacities, in coordination with federal and state governments, to improve contact tracing, quarantine enforcement, and other health measures. As Facebook’s Mark Zuckerberg recently boasted, “The world has faced pandemics before, but this time we have a new superpower: the ability to gather and share data for good.” Civil-rights groups are tolerating these measures—emergency times call for emergency measures—but are also urging a swift return to normal when the virus ebbs. We need “to make sure that, when we’ve made it past this crisis, our country isn’t transformed into a place we don’t want to live,” warns the American Civil Liberties Union’s Jay Stanley. “Any extraordinary measures used to manage a specific crisis must not become permanent fixtures in the landscape of government intrusions into daily life,” declares the Electronic Frontier Foundation, a digital-rights group. These are real worries, since, as the foundation notes, “life-saving programs such as these, and their intrusions on digital liberties, [tend] to outlive their urgency.”

President Trump’s claim that he wielded “total” authority in the pandemic crisis prompted rebellion not just from governors. Legal scholars across the ideological spectrum on Tuesday rejected his declaration that ultimately he, not state leaders, will decide when to risk lifting social distancing limits in order to reopen businesses. “When somebody’s the president of the United States, the authority is total,” Mr. Trump asserted at a raucous press briefing on Monday evening. “And that’s the way it’s got to be.” But neither the Constitution nor any federal law bestows that power upon Mr. Trump, a range of legal scholars and government officials said...For Mr. Trump, the legal emptiness of his assertion fits with a larger pattern in his handling of the pandemic and more. Where President Theodore Roosevelt liked to invoke an African proverb to describe his approach to wielding executive power — “speak softly and carry a big stick” — Mr. Trump sometimes talks as if he has a big stick but with little to back it up. Despite his “extreme, proud rhetoric about how he can do whatever he wants,” said Jack Goldsmith, a Harvard law professor and senior Justice Department official in the George W. Bush administration, the story of the Trump presidency has been, with few exceptions, “talking a big game, but not in fact exercising executive power successfully.”

Why do certain countries make certain decisions? What are the interests of the players in question? What are the consequences and, of course, the legality of foreign policy choices. In a new book, Joseph Nye, professor emeritus and former dean of the Harvard Kennedy School, asks another question about foreign policy. Do morals matter? Jack Goldsmith sat down with Nye to discuss his new book, 'Do Morals Matter?: Presidents and Foreign Policy from FDR to Trump.' They discussed the ethical and theoretical factors by which Nye judged each president before going through many of the cases he focuses on in the book.

If Michael R. Bloomberg is elected president, he says he would be “extremely reluctant” to order the military to attack another country without congressional authorization or an imminent threat to the United States. But he left himself wiggle room, stopping short of saying it would be unconstitutional for him to use force without lawmakers’ approval in other situations...Jack Goldsmith, a Harvard Law School professor and former senior Justice Department official in George W. Bush’s administration, said that while many of Mr. Bloomberg’s responses were fairly conventional, his stated inclinations about when he would unilaterally use force abroad seemed narrower than recent presidents of both parties. “While preserving wiggle room, the thrust is that the president should not use force except in cases of self-defense, pretty narrowly conceived,” he said. “That position would rule out Trump’s use of force in Syria in response to chemical weapons attacks, Obama’s use of force in Libya and in some strikes in Iraq, and some of the broader statements of self-defense power made during the George W. Bush administration.”

NPR's Noel King talks to former Justice Department official Jack Goldsmith about Attorney General William Barr's public rebuke of President Trump for his Twitter attacks on the Justice Department.