Jack Goldsmith

Jimmy Hoffa disappeared July 30, 1975...During the coming months, watch for more excellent reporting on the Hoffa case...And get ready for the upcoming, highly anticipated book—In Hoffa's Shadow: A Stepfather, a Disappearance in Detroit, and My Search for the Truth—by Jack Goldsmith, a Harvard law professor, which will be released in September.  Goldsmith is the stepson of Charles “Chuckie” O’Brien, whom many believe had driven the car that took Hoffa to the scene of his murder.

Particular moments in history and strategic breaks with unwritten rules have helped many presidents expand their powers incrementally, leading some to wonder how wide-ranging presidential powers can be. [With comments from Noah Feldman, Mark Tushnet, Michael Klarman, Jack Goldsmith, Daphna Renan, and Neil Eggleston].

In public remarks and classified briefings, Trump administration officials keep emphasizing purported ties between Iran and Al Qaeda. Some lawmakers suspect that the executive branch is toying with claiming that it already has congressional authorization to attack Iran based on the nearly 18-year-old law approving a war over the Sept. 11, 2001, attacks...“If Iran has, in fact, been harboring Al Qaeda operatives, especially recently, then the A.U.M.F. by its terms plausibly authorizes the president to use force against Iran,” said Jack Goldsmith, a Harvard law professor who ran the Justice Department’s Office of Legal Counsel for a year under President George W. Bush. He cautioned that even if the Sept. 11 war law could be invoked, it would satisfy only the domestic law requirements for an attack and leave open a separate international law problem: The United States would also seem to need permission from the United Nations Security Council or a self-defense rationale to attack Iran. But once the two countries were engaged in an armed conflict, Mr. Goldsmith said, the United States could lawfully strike nuclear installations with a military dimension. Still, he said, if that is the only sort of attack the Trump administration has in mind, that would mean any invocation of purported Qaeda links to justify the conflict would seem “pretextual.”

Not long before Attorney General William P. Barr released the special counsel’s report on Russian interference in the 2016 election, he strategized with Senator Lindsey Graham, the Republican chairman of the Senate Judiciary Committee, about one of his next moves: investigating the investigators...Less than two months later, Mr. Barr began his cleanup with the most powerful of brooms: a presidential order commanding intelligence agencies to cooperate with his inquiry, and sweeping power to declassify and make public their secrets — even if they objected...Given the president’s threat to indiscriminately declassify every document related to the Russia investigation, Mr. Barr’s ability to persuade Mr. Trump to outsource those judgments to him is comforting, said Jack Goldsmith, a conservative former senior Justice Department official who has repeatedly criticized Mr. Trump. “There is no way to know now what Barr will find in his investigation or whether or how he will use this power,” said Mr. Goldsmith, who is also a Harvard Law School professor. “But Barr is not someone inclined to harm our national security bureaucracy.”

An article by Jack Goldsmith: President Trump’s delegation of a narrowly defined declassification authority to Attorney General Bill Barr has attracted criticism, notably on this site by my colleagues David Kris and Benjamin Wittes. I think these criticisms tell only one side of the story, and that the matter is more complicated than they let on.

An article by Jack Goldsmith: Jan Crawford’s extraordinary CBS interview with Attorney General William Barr was released on Friday, May 31. In it Barr said some good things about why his investigation of the Trump campaign investigation is needed. He also said some bad things about his attitude toward his investigation that reveal the depressingly ugly state of U.S. intelligence and law enforcement institutions.

If a Supreme Court vacancy opens up during next year’s election cycle, Senate Majority Leader Mitch McConnell (R-Ky.) said he would take a markedly different approach than he did in 2016. “Oh, we’d fill it,” McConnell said on Tuesday at a lunch talk in Paducah, Kentucky, that was streamed online by WPSD. CNN first called attention to the remarks. In 2016, within hours of Justice Antonin Scalia’s death, McConnell issued a statement saying that “this vacancy should not be filled until we have a new president.” McConnell went on to successfully block President Barack Obama’s Supreme Court nominee Merrick Garland from receiving a hearing. ... “The stakes are enormous because if you replace Scalia with an Obama appointee, then you probably have five justices on the court that are going to move the court in a much more progressive direction,” Jack Goldsmith, U.S. assistant attorney general during the George W. Bush administration, told FRONTLINE.

If and when journalists read the best analysis to date of the second part of special counsel Robert S. Mueller III’s report, they’ll be in for a shock. ... Enter Harvard Law Professor Jack Goldsmith, widely regarded as a leading expert — perhaps the leading expert working today — on national security law. Formerly the assistant attorney general for the Office of Legal Counsel (where Justice’s brightest minds gather), Goldsmith now teaches at Harvard and writes for the website Lawfare, which he co-founded.Two weeks ago, Goldsmith issued an assessment of the second part of the special counsel’s report; on Thursday, he posted a follow-up to that assessment. In both pieces, with logic and detail, Goldsmith destroys claims of obstruction of justice by those unwilling to come to grips with the fact that the Mueller investigation is over. His analysis is tough, slogging through statutes, opinions and high principles of constitutional law, but at the end of the second essay, Goldsmith bluntly concludes that “the talented lawyers in the special counsel’s office ... include[d] at the center of the legal analysis in Volume II a transparently weak argument — so weak that it has no defenders.”

An article by Jack Goldsmith: I argued earlier this month that Special Counsel Robert Mueller’s report misapplied the presidential clear statement rule and improperly exposed many of President Trump’s actions in response to the Russia investigation to potential criminal liability. The argument drew disagreement from Benjamin Wittes, Andrew Kent and Marty Lederman, which in turn provoked a response by Josh Blackman, who holds views similar to mine. Here I offer my final thoughts on this issue. I am more convinced than ever that the Mueller report misapplied the governing clear statement rule.

President Trump’s escalating demands for investigations into his political opponents have intensified debate over whether his often-transparent calls for action by the Justice Department amount to abusing his power to bolster his re-election prospects. ... “It’s a terrible breach of norms for the president to publicly advocate prosecutions of his opponents,” said Jack Goldsmith, a professor at Harvard Law School who was an assistant attorney general during President George W. Bush’s first term. Mr. Goldsmith pointed out that this was not the first time Mr. Trump has intimated he might intervene in the functions of the criminal justice system. But Mr. Goldsmith said that, to date, “his White House and Justice Department subordinates have basically ignored him. Trump has violated norms, but his executive branch officials thus far have not.”

An article by Jack Goldsmith: Someone on Twitter recently asked: “What is your most [fire emoji] take that absolutely infuriates people and you know deep down in your heart is 100% true”? I was inclined to respond: “The statutory interpretation analysis in the Mueller report is one-sided and weak.” I instead decided to try to explain why I believe this, knowing full well that it will infuriate the vast majority of legal elites who are convinced that the only things preventing President Trump from going to trial today are the Office of Legal Counsel’s ruling that a sitting president cannot be indicted and Attorney General William Barr’s “lack of inner strength.”

An article by Jack Goldsmith: I’ve been in a cave for several weeks crashing to complete my new book and am only now emerging to read Special Counsel Robert Mueller’s report and the commentary on it. I’ll hopefully have more to say on the report, especially on its legal analysis of criminal obstruction of justice as applied to the president. But for now I want to comment on the reaction to Attorney General William Barr’s handling of the report in his March 24 letter and his May 1 testimony. It seems over the top to me.

The last thing the world needs is more of Robert Mueller’s commentary, but Congress is determined to have him hold forth at a public hearing.  ... On obstruction, Mueller reached no such decision, and he didn’t write a confidential report, either — his report was clearly meant for public consumption. Besides that, he’s a stickler for the rules. “Mueller’s action,” Jack Goldsmith of Harvard Law School writes at the website Lawfare, “seems inconsistent with what the regulations tried to accomplish, which was to prevent extra-prosecutorial editorializing.”

A newly filed lawsuit is challenging a censorship system the government uses to ensure that millions of former military and intelligence officials spill no secrets if they decide to write articles and books after they move on from public service. ... The legality of the censorship system is “unsettled” in part because “the practice of prior restraint by the government has grown enormously” since that case was decided, said Jack Goldsmith, a Harvard Law School professor and former Bush administration Justice Department official who has cowritten several articles critical of the process. At the C.I.A. alone, the agency went from reviewing about 1,000 pages a year in the early 1970s to about 150,000 in 2014, the lawsuit said, citing documents the A.C.L.U. and Knight Institute obtained under the Freedom of Information Act. “This is a huge problem,” Mr. Goldsmith said. “The government’s system of prior restraint is wildly overbroad, undisciplined and subject to inconsistent standards. It results in lots of important information that doesn’t threaten national security not being made public. It chills people from writing things that would help people understand how the government works.”

On Sunday, Attorney General William Barr released a summary of the “principal conclusions” of a report by the special counsel, Robert Mueller, on his investigation into Russian interference in the 2016 election. ... For some preliminary thoughts on Barr’s letter, I exchanged e-mails with Jack Goldsmith, a professor at Harvard Law School. ... What do you make of Mueller’s decision not to come to a judgment on obstruction of justice? I think it was prudent, in light of the deep uncertainties about the law in this area. Barr says Mueller thoroughly laid out the evidence for and against obstruction, but Mueller did not resolve what he viewed as “difficult issues” of both law and fact.

Time and again — when President Trump stood by Saudi Arabia after the killing of a Virginia-based journalist, when it looked as if he might intervene in the special counsel’s Russia investigation and when he threatened to declare a national emergency to pay for his border wall — lawmakers on Capitol Hill warned him not to push them too far. This week, in a remarkable series of bipartisan rebukes to the president, Congress pushed back. ... The rejection of Mr. Trump’s national emergency declaration could also give ammunition to a half-dozen legal cases challenging the president’s exercise of that power under the 1976 National Emergencies Act, said Jack L. Goldsmith, a Harvard law professor who led the Justice Department’s Office of Legal Counsel under President George W. Bush. “Some judges may count that as evidence of congressional intent,” Mr. Goldsmith said, though he added that he disagreed with that view.

... Co-founded in 2010 by Harvard Law School (HLS) Professor Jack Goldsmith; Robert Chesney, a professor at the University of Texas School of Law; and Brookings Institution fellow Benjamin Wittes, the national security website [Lawfare] has become a go-to source for timely expertise on a host of related legal issues, from surveillance and cybersecurity to interrogation and war powers. ... Though its masthead is stocked with seasoned legal firepower from across the country, two of Lawfare’s most widely discussed stories in the past few months — an exhaustive analysis of the so-called Steele dossier and a look at efforts to obstruct justice during Watergate — were co-authored by Sarah Grant, a highly accomplished yet stunningly modest third-year at HLS.

The United States responded weakly after Russian cyber operations disrupted the 2016 presidential election. US President Barack Obama had warned his Russian counterpart, Vladimir Putin, of repercussions, but an effective reply became entangled in the domestic politics of Donald Trump’s election. That could be about to change. ... Jack Goldsmith of Harvard Law School has argued that the US needs to draw a principled line and defend it. That defense would acknowledge that the US has itself interfered in elections, renounce such behavior, and pledge not to engage in it again. The US should also acknowledge that it continues to engage in forms of computer network exploitation for purposes it deems legitimate. And officials should “state precisely the norm that the United States pledges to stand by and that the Russians have violated.”

Many legal analysts who watched Donald Trump declare a national emergency over immigration on Friday thought the president had weak legal grounds for doing so. In particular, many thought Trump hurt his own case by admitting, right there in the White House Rose Garden: “I didn’t need to do this, but I’d rather do it much faster.” ... “The legality of Trump’s decision will probably turn on highly technical provisions involving the use of funds for military construction projects,” wrote Harvard law professor Cass Sunstein, a former White House official under Barack Obama. ... Jack Goldsmith, Sunstein’s colleague at Harvard and a veteran of the justice department under George W Bush, said presidents have broad leeway in declaring emergencies. “‘Emergency’ isn’t typically defined in relevant law, presidents have always had discretion to decide if there’s an emergency, and they’ve often declared emergencies under circumstances short of necessity, to address a real problem but not an emergency as understood in common parlance,” Goldsmith tweeted.