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Harvard Law Professor And Co-Founder of Lawfareblog Jack Goldsmith On The FBI’s Actions In 2016

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Jack Goldsmith is the Henry L. Shattuck Professor of Law at Harvard Law School one of the most respected voices on presidential power, national security law, internet law and much more. He was formerly the Assistant Attorney General for the Office of Legal Counsel in the Department of Justice. He is also one of the founders on the indispensable




HH: So pleased to have join me this morning the Honorable Jack Goldsmith, who is the Henry L. Shattuck professor at the Harvard Law School, a senior fellow at the Hoover Institution, co-founder of the indispensable  Professor Goldsmith teaches and writes about national security law, presidential power, cybersecurity, international law, internet law, foreign relations law. I call him honorable, because he was confirmed by the United States Senate as the assistant attorney general for the office of legal counsel, which is where they always put the big brain, whether it’s Mike Luttig or Ted Olson or Jack Goldsmith to make sure the rest of us know what we’re doing. Professor Goldsmith, good morning. Thank you for getting up early and joining me.

JG: Good morning. It’s great to talk to you.

HH: I want to begin by saying I don’t know who thought up, but it’s changed my life. Yesterday, I actually spent two hours in the afternoon listening to the Lawfare Podcast special edition, Bill Barr v. The Committee with no bull, Part 1. That’s an amazing podcast.

JG: Yeah, it’s really good that sometime spent a lot of time editing that down.

HH: People ought to go and listen to it. Now I want to quote your article from this week. “One danger in what the FBI apparently did is that it implies that the unelected domestic intelligence bureaucracy holds itself as the ultimate arbiter over and above the elected president, who is the Constitutional face of U.S. intelligence and national security authority about what actions do and don’t serve the national security interests of the United States. It further suggests that the FBI claims the authority to take this step on the basis of the president’s exercise of another clear presidential prerogative – the firing of the FBI director in connection with the Russia investigation which the Times, the New York Times, says was the final predicate for the FBI’s action. And it took this step without any formal guidance on the books for applying counterintelligence rules to the president akin to the special counsel regulations. Beyond the organizational and legal questions raised by these steps, if the FBI can open up a secret counterintelligence investigation of the president based on its belief that his actions threaten national security, it would chill controversial foreign policy actions that the Constitution says are solely the president’s decision to make for better and worse.” When I read that, Professor Goldsmith, I said “Jack Goldsmith does not write things like this very often.” This must have very much, that New York Times article of a week ago, must have really disturbed you.

JG: It did a little bit. I mean, one thing about the story is it was a little bit thin on the facts. And we don’t really know what happened. But the thing that bothered me was that the FBI appeared to open up a separate file, a counterintelligence investigation, on the president which was premised literally on their disagreement or their assessment that the president constituted a threat to national security. And it’s possible in some senses that a president could constitute a threat to national security, obviously. But it’s very dangerous, I think, if, that the FBI can open up a secret investigation to collect secret evidence on a president based on its assessment of his threat.

HH: Why is that? Would you explain, and we’ve got some Steelers fans listening, Professor. Why is that dangerous?

JG: It’s dangerous, because it implies just because the president is the elected head of the executive branch. All of the executive power is vested in him. The Supreme Court in our Constitutional traditions have long made it clear that the president has complete control within the executive branch of the conduct of foreign policy, of the control of the intelligence apparatus, of the conduct of secret operations abroad. Presidents all the time engage in secret actions, sometimes controversial, to effectuate the national security and the foreign policy of the United States. And if a president has to worry about taking a secret action that his intelligence bureau is going to open up a secret investigation on him, first of all, that inverts the way Article II is supposed to work, and I think it has a serious possibility of chilling controversial but sometimes necessary foreign policy actions.

HH: Recently, it emerged that Bruce Ohr, former deputy assistant associate attorney general, testified in August of 2018 that two years earlier, he, Bruce Ohr, had met with Christopher Steele on July 30th, 2016, and that according to Kim Strassel in today’s Wall Street Journal, and John Solomon writing in The Hill earlier this week, Ohr then briefed Andrew McCabe, Lisa Page on July 31. And later in August of 2016, he briefed, among others, Andrew Weissmann, who’s now on Special Counsel Mueller’s team. First of all, do you know Mr. Ohr?

JG: I don’t.

HH: Okay. Good. But you do know Bob Mueller, I assume?

JG: Yes. I worked with him.

HH: And I, I think you agree with me that he ought to be left alone, that he’s going, you can trust him completely. He’s a straight arrow, and the Mueller report will be the currency of the realm. Do you agree with me on that?

JG: I do believe that, yes. I think it’s in the President’s interest as Bill Barr said the other day to allow this investigation to be completed as soon as it can.

HH: So in light of that, where you and I are on Mueller, and where most responsible people are, I am still disturbed by this report of Bruce Ohr meeting with Steele and then briefing McCabe and Page, and especially Andrew Weissmann. What’s your reaction?

JG: I haven’t studied that story. I really can’t assess it. There’s a difficult line here, because the FBI, you know, historically, one of the things it was most focused on in counterintelligence was Russian espionage and Russian influence. So if something like that comes on the FBI/DOJ screen, they’re going to take it seriously, that any FBI would take it seriously. So on the one hand, and to the extent that the information might have involved the President, they had some difficult choices to make. On the other hand, I don’t, we don’t know whether they, we don’t know what procedures they followed. We don’t know if they were, you know, had a pointed investigation of the President even before this file was opened. We just don’t know. And I just think it’s a very murky area, and it’s potentially very problematic. One thing that we certainly need growing out of this is much more guidance for the FBI about when and how, and in DOJ, also, about when and how they can act in counterintelligence investigations involving the president.

HH: I agree.

JG: But I just don’t know, I just don’t know enough about what happened there.

HH: Do you think that Lindsey Graham, now chair of Judiciary, ought to lead a special hearing into just this dossier and its handling, making clear it doesn’t exonerate the President or Manifort. None of this does, all right? You can hold two thoughts in your mind at one time, that Manifort did terrible things, but the FBI lost its grip in ’16. Do you think a Senate-led committee, like the Church Committee looked into CIA abuses, or there were looks into COINTELPRO, do you think that would be useful right now?

JG: I think it, my judgment is it would not be useful right now, that we need to get through the Mueller investigation. And I worry about Congress stepping on Mueller’s toes. There could be time for that either from the Senate or maybe from the House. I mean, they might want to take it from a different angle. Or I expect what will happen is that there will be an inspector general investigation. There might already be into elements of this. I definitely think there should be ex-post review of these processes. They’re very murky. And there’s a lot of allegations flying around. I also think that with this investigation going on, Mueller has all the information. And I, I’m not saying Congress can’t go forward if it wants to. I just think it’s prudent to allow him to finish. And I hope he finishes soon.

HH: I’m talking with Jack Goldsmith, professor of law at Harvard, who was also confirmed as the Assistant Attorney General for the Office of Legal Counsel, so he knows what he’s talking about, about Justice. I was a special assistant to two Attorneys General, Jack.

JG: I know.

HH: And I did every FISA warrant for the last part of the Smith years and the beginning of the Meese years, the special assistant who reviews FISA warrants. And then they send them into the Attorney General to sign. And I cannot understand how this FISA warrant about Carter Page, based on what we know, and it’s murky, as you pointed out, but are you surprised that that FISA warrant did not more fully completely declare the origins of the material on which it was based?

JG: You know, Hugh, I don’t have enough experience with FISA warrants. I was involved in a few. I don’t have enough experience with FISA warrants to know, I just don’t know the answer to that question. I mean, they disclosed that it may have, I think you’re going to be more expert on this than I, they disclosed that it may have been based on a source with adverse interests or something like that.

HH: True.

JG: But they weren’t specific about it. They weren’t specific about it. I just don’t know whether that’s common practice or unusual. I just am not in a position to answer that. I don’t know.

HH: It was the practice at least in the ’80s that any piece of information that the Bureau, and there was no national security division then, it went from the Bureau director to the special assistant.

JG: Right.

HH: Any piece of information that the FISA Court judge, the FISC judge, might deem useful to the exercise of this extraordinary power was laid bare before them, because it is extraordinary power. But again, let’s move on. You know Special Counsel Mueller. I do not, but I know everybody who knows him says he’s a straight arrow. As soon as the Strzok-Page texts came out, he dismissed Strzok from his investigation.

JG: Right.

HH: On his team is Andrew Weissmann. Do you know Mr. Weissmann?

JG: I do not.

HH: On his team is a fellow that if the report by Kim Strassel in the Journal and John Solomon in The Hill is correct, Weissmann was briefed on the Steele dossier by Ohr. That’s very controversial. What standard of conduct can you infer that Special Counsel Mueller is using that would lead him to dismiss Strzok, but keep Weissmann?

JG: Again, I’m sorry I’m not being able to answer your questions very well. I don’t know the answer to that. I do know that Muller, I do believe that he’s a stickler for conflicts of interest.

HH: Yeah.

JG: And I imagine that, you know, we, he made a judgment about the FBI agents whom he dismissed. And he made a judgment about Weissmann. And I have to say presumptively, I trust Mueller’s judgment. I think he’s a by the book person. But I just can’t explain the difference.

HH: All right. So we’ll wait, and we’ll hear about that. Now to the biggest question of all. This actually transcends any particular episode, but goes to the nature of having a centralized federal police force. Is it eventually always and inevitably going to, “go Hoover” as J. Edgar Hoover did with COINTELPRO, and as apparently the FBI went off the rails in 2016 at least in their enthusiasm for tracking down what they believed was a national security threat? Is this inevitable in any centralized police organization?

JG: I think it’s always a danger that when you have a secret domestic police organization that it will do the things that Hoover did. And Hoover basically used his extraordinary powers of intelligence collection to collect information on politicians and democratically-elected leaders, and to use that information to influence them. I think that is an ever-present danger. I actually don’t believe, I just don’t know. I don’t know enough information to know what the FBI did, but I don’t believe that it was anything remotely approaching the Hoover model. I do, however, think that appearances matter, and there have been a lot of appearance problems in the FBI. And I also think, and this is why I wrote that story, I also think that the step of purporting to second guess the president’s national security bona fides is a step very much in the direction of the FBI arrogating power to itself to basically make judgments about the president, and to open up intelligence investigations on the president. And I was worried about the appearance of that step, and that’s why I wrote the story. It’s an ever-present danger. I just don’t think we know enough, yet, to know whether the FBI went that way. I don’t believe that it did, but there’s a lot of smoke. I agree.

HH: There’s a lot of smoke. But is James Comey a friend of yours? I don’t know James Comey.

JG: He’s a good friend of mine.

HH: All right, so I don’t think he’s Hoover in personality, but it might be Inspector Clouseau meets Hoover in 2016 for a variety of reasons. What do you think?

JG: I don’t think so. No, Comey is not remotely like J. Edgar Hoover. And in fact, he ran the FBI with the notion in mind of not being like J. Edgar Hoover. So I don’t accept that judgment. But we’re just going to have to wait and see. We’re going to know eventually, the problem with all of this, Hugh, with the Mueller investigation, with what the FBI did, with the Steele dossier, with everything is we’re all making judgments necessarily on the basis of slivers of information that have leaked out from various people…

HH: True.

JG: …probably not Mueller, but various other people who have slivers of information. And I try to withhold judgment on these things until we know more. The reason that I wrote that story about the FBI and opening up a counterintelligence investigation on the President is it seemed to be based on quotes from FBI officials. So…

HH: And I’ll tell you, what really got to me here, I always thought Andrew McCabe was a straight shooter. I knew, I always understood James Comey’s reputation as a straight shooter. I know Mueller’s a straight shooter. But the Strzok-Page texts shook my faith in the FBI, which was heretofore unmovable given my experience with them in the 80s. And did that not do the same thing to you? The Strzok-Page texts…

JG: Yes, I didn’t like those texts. I don’t think anybody will defend them. The inspector general was harsh on them. And it had, it had the terrible consequence once they came out of calling the FBI’s integrity into question. Whether they were actually biased, whether their personal views actually influenced the investigation, probably impossible to tell. But they were hugely irresponsible, and I think that that’s the reason that Mueller kicked them off the investigation. That’s the reason the inspector general was so harsh. And I think there’s no doubt that it damaged the reputation of the FBI. I mean, it, the FBI has to be, because of its powers, it has to be above board in reality, way above board in reality and in appearance. And of course, let me say one more thing. Of course, any of us in our private texts and private emails say things that might embarrass us if they became public. But they had a special duty to not even go there in private, I think. And I think that was really damning for the FBI, and I think it’s really hurt the FBI, called a lot of things into question.

HH: I want to switch very briefly to William Barr. His testimony was amazing. I’ve sent people to, to listen to all of it.

JG: I completely agree.

HH: He would not surrender, yeah, he would not surrender his authority. He repeated cited the evolution from the Richardson in 1973 testimony on standards for sensitive investigations. Do you think he ought to be confirmed?

JG: Oh, it’s a no-brainer. I thought he was excellent.

HH: And how about him calling up Mike Luttig to come be the deputy attorney general? What would you think of that?

JG: I think it would be great. That would, I mean, for one, I think it would be great. One of the things I loved about seeing Barr up there is it was someone, maybe I’m misremembering, but it’s the first time we’ve seen someone in a while come up for attorney general who really has a ton of experience with the department, a real knowledge of executive power, someone who’s going to protect the powers of the presidency, but not go too far. I just thought that his testimony was excellent. And having Luttig as deputy would be great.

HH: I want him to staff up. Are you willing to go back in, Jack Goldsmith?

JG: No, I’m not.

HH: Now come on, now pause for a second. Everyone said, but really, if the new attorney general called you up and said I need a DAG, I need an OLC, come take your two year leave from Harvard, you’ve got to serve the country in a time of crisis, would you do it?

JG: First of all, Steven Engel is doing an excellent job as OLC. Second of all, I’m quite sure they don’t want me. And third of all, I wouldn’t do it. No. I served my time in government.

HH: That was Shermanesque. That’s what I always say. I always also add I did my time. I’m out. I’m on parole.

JG: I’ve done my time.

HH: I have not broken my condition.

JG: Right.

HH: Jack Goldsmith, thank you. Please come back. I appreciate it very much for you joining me today.

JG: Thank you so much, Hugh.

HH: Be well.

End of interview.


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