Jack Goldsmith

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.”

An op-ed by Jack Goldsmith. President Trump’s revocation of former CIA Director John Brennan’s security clearance brings together in an unfortunate way two pathological trends in the Trump era, and highlights the conundrum of the former intelligence official who wishes to speak out against the president’s attacks on the Russia investigation and the intelligence community more generally. The first trend is the politicization of intelligence.

An article by Bob Bauer and Jack Goldsmith. We have complementary articles about the proper conception of lawyering for the president in times of crisis in the most recent issue of the Georgetown Journal of Legal Ethics that we thought might be of interest to Lawfare readers.

An op-ed by Jack Goldsmith. The July 25 resolution by 11 House Republicans introducing articles of impeachment against deputy attorney general Rod Rosenstein is not a serious legal document. It is filled with embarrassing factual errors. Most notably, the fifth article charges Rosenstein with responsibility for the Justice Department’s supposed obfuscation of the Steele dossier’s origins as opposition research on behalf of the DNC and Hillary Clinton’s presidential campaign: “Under Mr. Rosenstein’s supervision, Christopher Steele’s political opposition research was neither vetted before it was used in October 2016 nor fully revealed to the FISC.” The problem is that Rosenstein became deputy attorney general in April 2017, long after the Steele dossier was used in the Carter Page FISA application. He was not, and could not have been, responsible for the alleged obfuscation—an allegation that the recent release of the Carter Page application revealed is baseless.

An op-ed by Jack Goldsmith...But behind the indictment, and the congratulatory reaction to it, lie some uncomfortable unanswered questions about blowback toward U.S. officials, reciprocal interference by the United States in other nations' political affairs, the lack of preparation for renewed electoral interference in this country, and U.S. journalists’ publication of stolen U.S. government information. These questions have heightened significance and more difficult answers in light of President Trump’s astounding performance Monday in Helsinki.

An op-ed by Jack Goldsmith. “A judge must be independent and must interpret the law, not make the law,” said Judge Brett Kavanaugh during his speech accepting the nomination to replace his former boss Anthony Kennedy as an Associate Justice on the Supreme Court. This may sound like a rhetorical pose, but you should take it literally, not just seriously: Kavanaugh, whom I know primarily through his teaching at Harvard, is one of the most principled jurists I have ever studied.

President Trump will announce his nominee for the Supreme Court tomorrow. Democrats fear his pick, should they be confirmed, will push the court to the right on social issues like affirmative action and abortion. Republicans are excited about the possibility of locking in a conservative majority on the court. Not so fast, says Jack Goldsmith. The Harvard law professor and former assistant attorney general under George W. Bush writes in The Weekly Standard that both those hopes and fears should be tempered.

An op-ed by Jack Goldsmith. Anthony Kennedy’s retirement has sparked a free-fall panic among progressives, Democrats, and others who for five decades have enjoyed the fruits of rule-by-judiciary on the nation’s most contested social issues. Left-of-center commentators have proclaimed that Roe is dead, that Kennedy’s famous gay rights opinions and saving fifth vote for affirmative action are on life support, and that we are on the verge of a radical conservative constitutional revolution. Many conservatives agree with these assessments but are measured in their glee so as not to lend credence to attacks on whomever President Trump nominates to replace Kennedy. Both sides are too confident. There is little doubt that Kennedy’s replacement will be conservative and little doubt, too, that the Court will have a conservative bent for the next few years. Beyond that, it is too early to tell.

An op-ed by Jack Goldsmith. Justice Anthony M. Kennedy’s retirement from the Supreme Court after more than 30 years of service is the most consequential event in American jurisprudence at least since Bush v. Gore in 2000 and probably since Roe v. Wade in 1973. For three decades, he has been a guiding force on the court’s most consequential decisions, conservative and liberal. His departure leaves the future of U.S. constitutional law entirely up for grabs.