Jack Goldsmith

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.

An article by Jack Goldsmith and Maddie McMahon '20: “I don’t think there’ll be a report,” President Trump’s former attorney, John Dowd, recently told ABC News. “I will be shocked if anything regarding the president is made public, other than ‘We’re done.’” Referring to a possible report by Special Counsel Robert Mueller, Dowd suggested Mueller won’t release a detailed public accounting of the results of the investigation because he has nothing on Trump. Another reason there might not be a public report—or, at least, not much of one—is because William Barr, who will likely be attorney general by the end of the week, might not release one.

In May 2014, then-Attorney General Eric Holder announced charges against five members of the Chinese military. They'd allegedly hacked the computer networks of American companies and stolen everything from intellectual property and trade secrets to the firms' litigation strategies. ..."They embarrass the people that they name and they show that the United States has the ability to find people who are hacking into our country," said Jack Goldsmith, a Harvard law professor and former DOJ official in the George W. Bush administration. "But by themselves, that's a very, very small cost compared to the billions of dollars in secrets that our government says the Chinese are stealing." Goldsmith says the indictments not only have failed to deter China from further hacking, they may even send a signal of weakness because so few of those who have been charged actually are prosecuted.

An article by Curtis Bradley and Jack Goldsmith: President Trump is making noises again about withdrawing the United States from the North Atlantic Treaty, which established NATO. Last week the House of Representatives voted 357-22 in support of the NATO Support Act. The bill does three things. First, it states the “sense of Congress” that the president “shall not withdraw the United States from NATO,” and that “the case Goldwater v. Carter is not controlling legal precedent.” Second, it states that “the policy of the United States” is to remain in NATO, to reject efforts to withdraw from NATO, and to work with and support NATO. Third, and most importantly, it prohibits funds “to be appropriated, obligated, or expended to take any action to withdraw the United States from the North Atlantic Treaty.”

The 2020 presidential contest has already begun, with several Democratic candidates declaring their intention to challenge Donald Trump for the Oval Office and more on the way. Unlike in 2016, we now know what kinds of chaos America’s adversaries are capable of sowing, especially during campaign season. That means it’s time to contend with the threat of foreign intervention in our elections and in our democracy more broadly—before it’s too late. ...Let’s begin by acknowledging the voices of skepticism—those who question whether Russia’s behavior of today is really all that out of step with historical norms of great power behavior. Scott Shane raised these doubts last year in the New York Times, contrasting what he portrayed as most Americans’ shock at “what they view as an unprecedented attack on our political system” with the characterizations by a CIA veteran and two intelligence scholars of Moscow’s current campaign as “simply the cyber-age version of standard United States practice for decades, whenever American officials were worried about a foreign vote.” Next came Harvard Law Professor Jack Goldsmith, who, writing for Lawfare, provocatively asked, “Is there a principled basis on which the United States can object to the Russian interference?” Goldsmith continued, “U.S. interferences abroad raise the question: What is the U.S. objection in principle if others do to us as we do to them?”

Former Attorney General William Barr underwent his confirmation hearing on Tuesday before the Senate Judiciary Committee under the new chairmanship of Sen. Lindsey Graham, R-S.C., and emerged without a scratch, scrape or bruise. He came across as a consummate professional and a deeply knowledgeable, capable, and very experienced attorney – someone former Attorney General Michael Mukasey has called “probably the best-qualified nominee for U.S. attorney general since Robert Jackson in 1940.” ... Barr did not back down during the hearing in explaining his view on this issue, which former Justice Department Assistant Attorney General and Harvard law professor Jack Goldsmith says has “significant support in Supreme Court case law and executive branch precedent.”

An article by Jack Goldsmith: The New York Times reported on Jan. 11 that the FBI “began investigating whether President Trump had been working on behalf of Russia against American interests” soon after Trump fired FBI Director James Comey in May 2017. In other words, the FBI opened a counterintelligence investigation on the president. ... If the story is accurate, then what the FBI did was unprecedented and possibly—I emphasize possibly, since many relevant facts are not included in the Times reporting—an overstep, or at least imprudent. The reason the FBI step might have been imprudent is that it was premised on an inversion of the normal assumptions of Article II of the Constitution.

The resignation of Defense Secretary Jim Mattis has sent shockwaves through the Pentagon, with senior staff heading toward the exits. After announcing a plan to immediately withdraw from Syria, President Donald Trump and National Security Advisor John Bolton are downplaying plans to pull out immediately. A major hack is rocking the German political scene. Vietnam may play host to the next U.S.-North Korea summit meeting. And American and Chinese trade negotiators reconvene. ...The indictment strategy. American prosecutors have rolled out a number of indictments in recent months targeting Chinese cyberespionage, but two scholars aren’t convinced the legal campaign is providing any measure of deterrence. “On the basis of the public record in light of its publicly stated aims, the indictment strategy appears to be a magnificent failure,” Jack Goldsmith and Robert D. Williams write in Lawfare.

An op-ed by Jack Goldsmith: Daniel Hemel and Eric Posner have harshly criticized William Barr’s memo on Special Counsel Robert Mueller’s obstruction of justice theory. They say (in the New York Times) that the memo “seriously damages [Barr’s] credibility and raises questions about his fitness for the Justice Department’s top position” and (later, on Lawfare) that the memo is “poorly reasoned.”

An article by Jack Goldsmith and Robert D. Williams: Just before Christmas, the U.S. Department of Justice unsealed an indictment against two Chinese nationals who allegedly conducted a twelve-year “global campaign[ ] of computer intrusions” to steal sensitive intellectual property and related confidential business information from firms in a dozen states and from the U.S. government. According to the indictment, the defendants conducted these acts as part of the APT10 hacking group “in association with” the Chinese Ministry of State Security.

As the US Senate has invoked the War Powers Act – a 1973 law by which Congress sought an end to the war in Vietnam – as a way to disengage the US militarily from Yemen, it is relevant in this context to examine whether the executive has stepped into the sphere of the legislature. ... In this context, legal experts such as Jack Goldsmith, a former US assistant attorney general and current professor at Harvard Law School, wrote on the Lawfare blog that planned use of military force in Syria without the authorization of Congress would have set a precedent for presidential unilateralism, in part because “neither US persons nor property are at stake, and no plausible self-defense rationale exists.”