Jack Goldsmith

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.”

An op-ed by Jack Goldsmith: When President Trump forced Attorney General Jeff Sessions to resign on November 7 and appointed the unqualified Matthew Whitaker as acting attorney general, just about everyone assumed that special counsel Robert Mueller’s Russia investigation was in trouble. ... These are but the latest in an 18-month-long string of extraordinary achievements by the Department of Justice in investigating the chief executive and his associates despite Trump’s objections, threats, and firings of important DoJ officials. There has been feverish concern that Trump’s actions would destroy the department’s independence. Quite the opposite has happened. Trump’s efforts have failed entirely. And DoJ independence is stronger than ever.

Jack Goldsmith is a professor of law at Harvard University and served as Assistant Attorney General in the Office of Legal Counsel (2003-2004). In this Conversation, Goldsmith shares his perspective on America’s vulnerabilities to cyber attack—the complex and systemic threats to our digital and physical infrastructures, as well as to our politics via hacking and digital espionage. As Goldsmith explains, we have not done nearly enough to counter cyber threats through better defense or employment of countermeasures against adversaries. Finally, Kristol and Goldsmith consider what the government and private sector can do to improve our cybersecurity.

U.S. archivists on Wednesday revealed one of the last great secrets of the Watergate investigation — the backbone of a long-sealed report used by special prosecutor Leon Jaworski to send Congress evidence in the legal case against President Richard M. Nixon...Sirica’s modern-day successor, Chief Judge Beryl A. Howell, of the U.S. District Court for the District of Columbia, on Oct. 11 ordered the disclosure of Jaworski’s report by the National Archives and Records Administration — with limited redactions — in response to petitions by California author and former Nixon deputy Watergate defense counsel Geoffrey Shepard and by Brookings Institution senior fellow Benjamin Wittes; Jack Goldsmith, a Harvard University law professor who led the Justice Department’s Office of Legal Counsel under President George W. Bush; and Stephen Bates, a professor at the University of Nevada at Las Vegas, who co-wrote the Starr report with Justice Brett M. Kavanaugh years before his rise to the Supreme Court, as well as other members of Starr’s team.

An article by Jack Goldsmith and Benjamin Wittes. In neat script near the top of the document, someone has written, “Filed under seal, March 1, 1974.” Above that, red typed letters read, “Unsealed October 11, 2018 by Chief Judge Beryl A. Howell, United States District Court for the District of Columbia, Order No. 11-mc-44 (BAH). The Jaworski “Road Map,” the last great still-secret Watergate document, became public Wednesday when the National Archives released it under Judge Howell’s ruling from earlier this month. It sees the light of day for the first time in four and a half decades at a remarkable moment, one in which a different special prosecutor is considering the conduct of a different president and reportedly contemplating—as Watergate Special Prosecutor Leon Jaworski once did—writing a report on the subject. The document’s release owes a great deal to the legal team at Protect Democracy, which represented Stephen Bates and the two of us in seeking its unsealing.

A federal judge on Thursday ordered the partial release of a report that that a federal grand jury sent in 1974 to the House Judiciary Committee that was a key part of the Watergate scandal that drove President Nixon from office. ...The request for the release was made by Stephen Bates, a University of Nevada journalism professor and former Whitewater investigation prosecutor; Jack Goldsmith, a Harvard law professor and Lawfare editor Benjamin Wittes.

Frontline: Trump’s Showdown (Tuesday, PBS, 10 p.m.) is your life jacket. A two-hour special report, it brings coherence to an incoherent narrative. It steps away from the panels of pundits on CNN or Fox News who simply want to pummel other opinions. It does, mind you, have some familiar faces from those panels. But, it being PBS, this is a lengthy commercial-free analysis. Its agenda is to straighten out the tangled tale and prep viewers for what will probably happen next. That is, the showdown...While few talk openly about a looming constitutional crisis, that idea is advanced. "One thing we know about this president, he doesn’t care about collateral damage. And he doesn’t care about collateral damage on associates. And he doesn’t care about collateral damage on American institutions. And so the stakes could not be higher,” says Jack Goldsmith, assistant attorney-general during the George W. Bush administration.

...Echoing a move by the Watergate prosecutor in March 1974, the grand jury with which Mr. Mueller has been working could try to send a report about the evidence it has gathered directly to the House Judiciary Committee. And on Friday, seeking to draw more attention to that option, three prominent legal analysts asked a court to lift a veil of secrecy that has long kept that Watergate-era report hidden...The petition was filed by Benjamin Wittes, a Brookings Institution senior fellow and the editor in chief of Lawfare, an online publication that specializes in national security legal policy issues; Jack Goldsmith, a Harvard Law School professor and senior Justice Department official in the George W. Bush administration; and Stephen Bates, a University of Nevada, Las Vegas, law professor who, as a federal prosecutor working for Ken Starr, the independent counsel who investigated President Bill Clinton, co-wrote the report to Congress recommending that Mr. Clinton be impeached. The three are represented by Protect Democracy, a government watchdog group...In another declaration, Mr. Goldsmith noted the incongruity that the Watergate-era document has a better historical reputation than the Starr report and yet is unavailable for public scrutiny. He argued that making it public would help inform discussion of any effort by Mr. Mueller to send information to Congress, a task that could require navigating “difficult and sensitive issues of executive power, separation of powers and individual rights.”

An op-ed by Jack Goldsmith. It’s much clearer now why Donald Trump has been furious with Attorney General Jeff Sessions ever since he recused himself from the Russia investigation in March 2017. That recusal set in motion events that eventually resulted in deputy attorney general Rod Rosenstein’s appointment of special counsel Robert Mueller to investigate Russian election meddling and “ any matters that arose or may arise directly from the investigation.” Once the straight-arrow Mueller started sniffing around Trump’s campaign, he discovered lots of criminal behavior that had nothing to do with Russian influence operations. This week yielded the most dramatic fruits yet: The conviction of Trump’s campaign manager, Paul Manafort, for bank and tax fraud, and a guilty plea by Trump’s personal lawyer, Michael Cohen, for fraud and campaign violations, including some that directly implicate the president.

President Trump blamed the Justice Department on Thursday for the investigations surrounding him, criticized the deal struck with his former lawyer Michael D. Cohen and lashed out at Attorney General Jeff Sessions, who countered with a rare public rebuke of the president...The president’s comments showed that his feud with federal law enforcement has taken on a new urgency. “What is different now is that the Justice Department noose is tightening around the president’s neck,” said Jack L. Goldsmith, a Harvard law professor who headed the Justice Department’s Office of Legal Counsel under President George W. Bush. “That context makes this confrontation more significant, for it might indicate that the president is finally going to follow through on his threats and insinuations, over many months, about firing Justice Department officials or taking other actions against the Mueller investigation.”