Jack Goldsmith
@jacklgoldsmith
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Prof @Harvard_Law ; Co-Founder @Lawfareblog ; Non-res. sr. fellow @AEI ; Co-Dir., Presidential Reform Project. Opinions mine alone. Likes ≠ agree; = save to read
Cambridge, MA
Joined April 2013
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I’ve been thinking whether in American presidential history there’s ever been an act of cowardice and impotence as brazen as
@realDonaldTrump
's “I don’t take responsibility at all” comment, followed by his efforts—3+ years into his term—to blame his predecessors. 1/
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Stone is Trump's 36th pardon/commutation, a record low number, by far, for the modern presidency. An unusually high number of these (31/36 by my count), like Stone's, were based on a personal or political connection. Both are forms of abuse of an undoubted presidential power.
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1/ Trump’s actions since January, & especially in last month, take us so far beyond normal that it’s hard to have any faith in Exec branch.
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1/ I just watched the *amazing* Mulvaney press conference. It was an extraordinarily weak and damning performance. I think he set out to deny a quid pro quo w Ukraine but he tied himself in knots and strongly suggested there was one. But that was not the only problem.
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Not for the first time, I don't understand this WH threat. WH has no legal leverage except to review manuscript for classified information w/in 30-biz-day window, which ends in a few weeks. It cannot get prior restraint. And it is only building up significance of Bolton book.
White House has issued formal threat to Bolton to keep him from publishing book
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It is hard to exaggerate how demoralizing this is for people who work in DOJ. It's not just that the President says this. It's also, and especially, that the Attorney General does not stand up for the Department, either because he can't, or does not care.
Many people in our Country are asking what the “Justice” Department is going to do about the fact that totally Crooked Hillary, AFTER receiving a subpoena from the United States Congress, deleted and “acid washed” 33,000 Emails? No justice!
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That would be the "Deep State Justice Dept" run by
@realDonaldTrump
appointees Jeff Sessions, Rod Rosenstein, and Chris Wray.
Crooked Hillary Clinton’s top aid, Huma Abedin, has been accused of disregarding basic security protocols. She put Classified Passwords into the hands of foreign agents. Remember sailors pictures on submarine? Jail! Deep State Justice Dept must finally act? Also on Comey & others
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This and other POTUS tweets today has the obvious aim of inducing AG Barr to resign.
“Judge Jackson now has a request for a new trial based on the unambiguous & self outed bias of the foreperson of the jury, whose also a lawyer, by the way. ‘Madam foreperson, your a lawyer, you have a duty, an affirmative obligation, to reveal to us when we selected you the.....
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@benjaminwittes
11/ The impulsive, uncontrolled, ill-informed President infects the legal soundness of everything his administration does.
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1/ Most revealing in today's big WP story: "Trump, appearing frustrated and at times angry, has complained to confidants and aides in recent weeks that he does not understand why he cannot simply give orders to "my guys" at what he sometimes calls the 'Trump Justice Department.'"
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From personal experience I can attest that, despite 28 CFR 17.18(h), the exec branch often circulates manuscripts submitted for prepub review widely, including to political officials, & it often asks for deletions for reasons having nothing to do w/ disclosure of classified info.
Letter Bolton’s lawyer, Chuck Cooper, sent to WH on Dec 30 for pre publication review.
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God I hope not. If this represents a decent percentage of typical errors, then FISA cannot continue without radical reform, if at all. I think you are dramatically underestimating the gravity of what Horowitz found.
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@benjaminwittes
12/ As best I can tell, no President’s actions have ever so adversely affected trust in his administration, including Nixon during Watergate
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Trump is unusual in a third way. He has almost entirely bypassed/ignored the pardon attorney in DOJ who is supposed to vet and recommend pardons. Past presidents have done this occasionally, Trump has done so as a way of life, to paraphrase Bolton.
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2/ In the last month alone he has told many lies, fired Comey related to Russia probe, dissed long-time allies, re-attacked courts,
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Many presidents have tried to deflect responsibility for various acts, of course. But I cannot think of another episode that, adjusted for the high-stakes context, comes close to Trump’s remarkable combination of gutlessness and weakness. (Am I missing something?) 2/
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3/ Shut out & viciously attacked the press, reacted whole inappropriately to London attack, spilled deep secrets to Russians,
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1/ I have written a legal opinion in government and many pieces out of government on presidential war powers. And FWIW I have grown very, very cynical about legal constraints on those war powers. Here are some thoughts as the lawyers begin to weigh in.
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5/ Given POTUS’s instability, it is not just courts that have reason to relax presumption of regularity for this Prez.
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4/ Called appointment of Mueller by his DAG Rosenstein a “witch hunt,” called honorable former officials liars, etc. etc. etc.
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@benjaminwittes
17/ And: How long should they apply normal executive branch principles to buck up this president? END.
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“In the long run democracy will be judged…by the quality of its leaders, a quality that will depend in turn on the quality of their vision. Where there is no vision, we are told, the people perish; but where there is sham vision, they perish even faster.” 4/
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6/ We all have reason to do so about everything the Executive branch does that touches, however lightly, the President.
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The attacks on Amy Barrett due to her Catholicism are ... going to get her nominated.
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Updated pardon/commutation chart (still WIP).
Total by Trump: 65.
Breakdown:
1) Advance political agenda? 42/65
2) Personal Connection? 31/65
3) TV/TV Commentator? 12/65
4) Celebrity? 16/65
Personal or Political Connections (i.e. 1,2,3 or 4): 60/65
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4/27: Career official says Bolton book contains no classified info
5/2: Political appointee (Ellis) begins review of manuscript.
6/9: Ellis completes review.
6/10: Ellis receives mandatory training “in proper classification (including avoidance of over-classification)” (oops)
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The current predicament—and in particular Trump’s claim that “the system is not really geared to what we need right now” – invites this comment from Schlesinger’s great essay, “Democracy and Leadership” (all of which is worth a read): (END)
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@benjaminwittes
13/ My sympathies for the honorable people (especially the honorable attorneys) working around Trump are greater than ever.
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I worked with R. Mueller. He's a man of extraordinary integrity. He's not afraid to stand up to POTUS when the law demands. Great choice.
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This episode, more than any other to date in the Trump presidency, reveals the vital importance of leadership in our democracy, and the woeful absence of it now. It calls to mind these words from Irving Babbitt’s great book “Democracy and Leadership” 3/
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What's remarkable about Trump’s attack on Sessions re GOP congressmen is that, like similar episodes, (a) he openly abuses his office, (b) his abuse is verbal, not operational, (c) he's ineffective in executing his corrupts aims, (d) his openness is one key to his ineffectiveness
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Honored to be a member of this important commission.
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Much to say about yesterday’s pardons and commutations. Before getting to the updated chart, some general reflections.
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My twelve tweets from this a.m. w/ more thoughts on DNC hack collected here, , and below.
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7/ .
@benjaminwittes
took this view on 11-6: “DT does not enter office with a presumption of regularity in his work.”
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Whatever it is, it exceeds all prior precedents under domestic and international law.
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As the 25th Amendment grows into a real possibility, one question is whether Trump can issue the remaining anticipated self-serving pardons (including self-pardon) before he is disabled from exercising (in the words of 25th Am) "the powers and duties of the office" of President.
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@benjaminwittes
9/ One thing DT behavior entails (as predicted, ) is many losses in court, and not just on the immigration EOs.
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@benjaminwittes
16/ And: To the extent that they can’t, how long do they continue to serve?
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@benjaminwittes
15/ Thus the question: How much can *executive branch officials* indulge the presumption of regularity in their work?
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“It doesn’t matter if it was lawful if it was a terrible idea,”
@BobbyChesney
said. “It’s a huge mistake to equate legality with wisdom.”
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@benjaminwittes
14/ Every hour they face the qu whether doing the normal thing in protecting presidential prerogatives is, with this POTUS, appropriate.
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18/ The most important point: Our country has, quite self-consciously, given one person, the President, an enormous sprawling military and enormous discretion to use it in ways that can easily lead to a massive war. That is our system: one person decides. END
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@benjaminwittes
10/ Everything else Executive would normally win—reversing Clean Power Plan, terminating treaty, new regs, etc.—will be much, much harder.
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@benjaminwittes
8/ I don’t know about 11-6, but this view is certainly warranted now and has been for a while.
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4/ But what really stunned me was how Mulvaney damaged the ongoing Barr/Durham investigation into the origins of the 2016 investigation of the Trump campaign.
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The WH is asserting no legal authorities, and does not appear even to be trying to manage what executive officials can and cannot say. The WH has no juice, no tools. The Cipollone letter was pure bluster. In so, so many ways, Trump is a weak, not a strong, president. 6/
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17/ Barr or Durham needs to say--at a podium or in an attributed statement--that they lack any interest in Ukraine and reject POTUS's efforts to cloak his increasingly problematic Ukraine machinations in their investigation. Otherwise investigation is hopelessly compromised.
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11/ And DOJ called him on the baloney. “If the White House was withholding aid in regards to the cooperation of any investigation at the Department of Justice, that is news to us,” a DOJ official said.
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6/ I've noted before the remarkable degree to which Trump's senior officials "act as if Trump were not the chief executive. Never has a president been so regularly ignored or contradicted by his own officials."
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13/ The lack of coordination between WH and DOJ and such a hugely important issue touching on impeachment, and Mulvaney’s predictably self-defeating statements, are stunning.
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I’ve long said (w/ others) that the WH and especially the president are astoundingly, even historically, weak in their ability to assert executive power to control what happens within the administration. The Executive branch response to the impeachment inquiry is revealing.1/
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9/ Two problems with this. First, Barr has stated that he is not looking at Ukraine, probably because the Ukraine link has been entirely discredited. Second, no evidence yet of wrongdoing. The explanation given by Mulvaney is thus baloney.
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I'm seeing a few people say that this interesting thread shows that the attacks were unlawful. Perhaps, but the US has since 9/11, all three administrations, embraced a very stretchy principle of “imminence.” Congress has done nothing in response.
1. I’ve had a chance to check in with sources, including two US officials who had intelligence briefings after the strike on Suleimani. Here is what I’ve learned. According to them, the evidence suggesting there was to be an imminent attack on American targets is “razor thin”.
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2/ I was watching try to figure out how what he said about the reasons for delay in releasing the Ukraine funds, to see whether the reasons were consistent with OMB’s legal obligations, as outlined in this post yesterday.
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Dead-on right, and everyone should adjust expectations accordingly.
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Whichever way you look at it, is shameful for Trump’s “conservative” allies in the House to accuse Rosenstein of “high crimes and misdemeanors.” END.
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6/ The investigation’s credibility was damaged much more by Trump’s infamous call with the Ukrainian president Zelensky, whom Trump encouraged to contact Barr. This made it appear that Barr and his investigation were tied to Trump’s problematic Ukraine machinations.
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3/ At first glance it does not appear that the reasons he gave for the delay are consistent with OMB’s obligations to release money under the relevant statutes discussed in yesterday’s post. More on that when I figure it out.
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10/ That may the lesson (and the point) of the McGahn threat. When Trump finally gets tired of being ignored and follows through on something stupid, the Executive branch meltdown will be severe, to his enormous detriment (and hopefully not the country's). END.
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10/ Mulvaney doubled down later in the presser when he said that one of three justifications for the delay in the funds was “whether or not [Ukraine was] cooperating with in an ongoing investigation with our Department of Justice.” Again, obvious baloney.
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1/Prediction: The interpretation of a criminal statute used to convict hundreds of J6 rioters, 18 U.S.C. 1512(c)(2), won't survive appellate review. The Sup Court—which interprets statutes like this narrowly—will eventually interpret 1512(c)(2) in this way.
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As I told WP: “Other presidents have occasionally issued abusive, self-serving pardons based on insider connections. Almost all of Trump’s pardons fit that pattern. What other presidents did exceptionally, Trump does as a matter of course.”
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12/ DOJ officials were reportedly “utterly confused” and “angry.” I’m sure they were that, and much more.
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The pardon power perfectly marries Trump’s privatization of the presidency to serve his personal interests with his love of exercising hard unilateral presidential powers in ways that make his enemies heads explode.
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15/ But now his Department—which determined that the president’s phone call with Zelensky did not implicate a crime—is stained by the president’s effort’s to cloak itself in the legitimacy of the Durham/Barr investigation.
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5/ This investigation, if conducted properly, is entirely legitimate. Durham was a credible choice, though Barr damaged the investigation when he appeared to slyly prejudge it. .
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My damage assessment of the Trump presidency.
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Brett Kavanaugh is immensely qualified for the Supreme Court: an outstanding lawyer and judge; a great teacher and serious scholar of the law; and a generous, honorable, kind person.
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8/ But Mulvaney brought it up again today. “There’s an ongoing [DOJ] investigation byinto the 2016 election. So you’re saying that the President … cannot ask somebody to cooperate with an ongoing public investigation into wrongdoing.”
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Trump has upended the traditional criteria for clemency: . The traditional guiding principle: “a pardon is granted on the basis of the petitioner's demonstrated good conduct for a substantial period of time after conviction and service of sentence.”
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2/ But it shows, again, how much our constitutional structure assumes a minimally conscientious, responsible, ethical POTUS, which we lack.
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16/ I believe that DOJ has to do much more than release one-sentence distancing denials, followed by unattributed expressions of anger.
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7/ DOJ said at the time that Trump had not spoken with Barr about Ukraine or the Bidens It also said that Barr has not communicated with Ukraine.
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3/ What is remarkable, as many have now noted, is that despite the President's threats over many months to fire Sessions, or Rosenstein, or Mueller, they ignore him, and DOJ and FBI keep plodding along. Trump's threats are amazingly ineffectual.
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V few of Trump’s clemency decisions meet these criteria. His pardons usually based on insider contacts, & are for v serious crimes that often dont satisfy 5-year rule, usually for people who do not express remorse. They almost always serve Trump’s personal or political interests.
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Wrong perspective. Trump elevates himself by inducing his critics to behave like him. When the press shows that it is (in Woodward's words) “binge-drinking the anti-Trump Kool-Aid,” it lends credence to Trump’s attacks on the bias and shortcomings of “the fake-news media.”
Whatever one might think of Michelle Wolf's performance, it's clear that anyone who works for or supports Trump has no basis for complaining about vulgarity or personal insults. Your house is made of very thin glass.
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There are dozens of books about how Trump has wrecked the presidency. Here is one that explains how to fix the presidency once he leaves the scene.
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18/ There were other problems with the presser, but that is enough for now.
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I'm surprised so many are surprised about the delegated authority Congress gave POTUS in IEEPA. The entire global trade war—practically every move Trump has made—was an exercise of power that the Constitution gave to Congress but that Congress gave to POTUS, with few constraints.
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Total pardons/commutations by Trump: 94.
Breakdown:
1) Advance political agenda? 68/94
2) Personal Connection? 40/94
3) TV/TV Commentator? 13/94
4) Celebrity? 20/94
Personal or Political Connections (i.e. 1,2,3 or 4): 86/94 (91%)
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14/ DOJ now has a big problem. Barr is already under fire—with some justification, but also with some overstatement, in my view—for the manner in which he is conducting the review into the opening of the 2016 investigation.
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Request for pardon presumptively must wait 5 years after conviction or release. Traditional criteria include superlative post-conviction conduct & character; acceptance of responsibility & remorse; and hesitation to pardon serious offenses (violent crime, white collar fraud, etc)
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As best that we can tell (the data is obscure, we draw lots of inferences here), only 7/94 of Trump's pardons/commutations were recommended by the DOJ Pardon Attorney.
Thanks as always to
@matthew_gluck
for his work on the chart.
Let us know if we got anything wrong, please.
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7/ Hard to know what's more notable: (a) The president threatening DOJ/FBI over and over in gross violation of independence norms; or (b) DOJ and WH officials ignoring his threats or threatening to resign over them, and Trump backing down.
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4/ Indeed, McGahn essentially ignored Trump's order to fire Mueller. . McGahn told WH officials he was confident "that Mr. Trump would not follow through on the dismissal on his own." Trump seems like all bark and no bite even to his closest aides.
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8/ The growing and dizzying array of threats by Trump, and threats by officials to resign in response to Trump's threats, suggest that this is not a stable situation (how could it be?).
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The story is strangely encouraging for those who think it would be a disaster if DT fired Mueller. The willingness of officials to quit is what keeps POTUS in check here. If loyal McGahn is threatening to resign, others would too. It worked here.
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2/ But this anger & frustration w/ DOJ/FBI aren't "recent" phenomena. They've been apparent in tweets & interviews & speeches ever since he fired Comey, and Rosenstein appointed Mueller, and the investigation got worse for him. As
@benjaminwittes
wrote:
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1/ I unfortunately lack the time to weigh in properly on the whistleblower complaint which, says the NYT, “involves a commitment that Mr. Trump made in a communication with another world leader, according to a person familiar with the complaint.” So here are too-brief reactions.
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8/ Trump has been challenging this principle, in various guises, for almost three years. He has shown time and time again the extent to which our constitutional system assumes and relies on a president with a modicum of national fidelity, and decent judgment, and reasonableness.
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It’s the pardon power unleased to serve private gratification, score-settling, and eye-poking. And more transactional pardons are on the way. "Trump has told aides, advisers, allies, lawmakers and others to bring him names for consideration.” .
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9/ The overt disrespect that top folks in WH and DOJ have for him indicate that if and when he actually follows through again with a bite akin to the Comey firing, they will not be with him.
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7/ As in many contexts, Trump by his willingness to push the envelope, combined with his shamelessness and lack of hypocrisy, shines the brightest of lights on how much power Congress has given away, and how much extraordinary power presidents have amassed.
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Amazing (to me) fact: If Trump wins confirmation for new nominee, Republican presidents will have chosen 15/19 Justices since Earl Warren retired in 1968. The four Democratic appointees: Ginsburg, Breyer, Kagan, Sotomayor. (Rehnquist not counted twice).
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I’m working on a book that required me to review Giuliani’s actions as U.S. Attorney for SDNY in the 1980s. He was a showman then as now. But the difference between then and now in his relative competence, buffoonery, and dignity is astonishing.
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