Saturday, May 4, 2019

UPDATED: Goldsmith On Barr

I've cited the views of Jack Goldsmith several times in the past--the most extensive discussion of his views can be found in the first three listed posts here. Somewhat belatedly, Goldsmith has weighed in on the discussion of AG Barr's handling of the Mueller Dossier, in a lengthy article at Lawfare: Thoughts on Barr and the Mueller Report.

Goldsmith is widely respected as a legal scholar, served in the Bush Justice Department, and has had wide experience in national security law--including FISA. You can read his Wikipedia biography here. I think its fair to place Goldsmith in the NeverTrump camp, and that's part of what makes his "thoughts on Barr and the Mueller report" interesting. For those interested in the legal discussion surrounding the whole issue of what Special Counsels are supposed to do or not do, I highly recommend his article.

A few comments, however.

Goldsmith has made it absolutely clear in the past that, despite his own NeverTrump views, he considers Bill Barr to be eminently qualified to serve as Attorney General. He also attempts to give Mueller every benefit of the doubt and strongly disapproves of Trump's behavior toward Mueller--the tweets and criticisms. He offers criticisms of both Barr and Mueller, but makes it clear that he agrees with Barr's views on what the nature of the Special Counsel office is really about as well as Barr's criticism of Mueller for failing to make a call on obstruction. He also agrees with Barr's interpretation of what constitutes obstruction:

First, Barr believes that the Justice Department’s job in this context is to decide (as he told Sen. Richard Blumenthal) “whether or not there is a crime” and nothing more. That is what the special counsel regulations and Justice Department traditions counsel as well. This is why Barr objected to Mueller’s strange in-between decision “not to make a traditional prosecutorial judgment.” No U.S. attorney would ever do that, and Barr clearly thinks it odd, and probably wrong, that Mueller did that. Whether one thinks Barr is right or wrong (I think he’s right), this is a perfectly respectable judgment for an attorney general to make.

Significantly, Goldsmith is also of the view that there is support for the view that Mueller did engage in politics, especially with regard to obstruction, and he specifically refers to Emmet Flood's "powerful rebuttal" of Mueller's conduct. In fact, he refers to Flood's letter twice, so he was clearly impressed by Flood's reasoning. Thus it comes as no surprise that Goldsmith also strongly deprecates the "overheated" and "over the top" criticisms of Barr.

I have two major--and related--disagreements with Goldsmith in all this.

The first is that Goldsmith expresses the view that

the contemplated system of coordination and oversight between the attorney general (for most of the time, Acting Attorney General Rod Rosenstein) and Special Counsel Robert Mueller worked well during the conduct of the investigation.

While that may be true in a strictly formal sense, it utterly fails to take into account what so many experienced observers have seen and found so troubling--that the predication for the investigation was fatally flawed from the very beginning and that Mueller himself could not help but be aware of that fact no later than the end of 2017. And yet he continued. In light of that (as I believe it) fact, lauding the coordination between Rosenstein and Mueller is ... strange. This was a grotesque miscarriage of justice, an unwarranted attack on the President and thus the Executive Branch itself. To praise the cooperation between the two men most responsible for perpetrating this outrage on the country is simply incomprehensible to me.

My second disagreement basically follows from that. Goldsmith agrees that an investigation is necessary to get to the bottom of what the "intelligence community" was up to, but he seems to view this as purely concerned with institutional reforms and even argues that prosecution of criminal actions would be "politicized retaliation":

The country needs a full accounting of what the intelligence community did in the 2016 presidential campaign and in other presidential campaigns, as a basis for needed reform in this area. I just hope that Barr conducts this review in a way that is and appears to be scrupulously fair to all involved, so that it does not seem like political payback that would weaken the important Justice Department norm against politicized retaliatory investigations. That argues, I think, for inspector general review, not attorney general review. I am not sure Barr agrees, however.

Inspector General review hardly seems to fit the bill in a situation where every day brings new revelations of intentional criminal misconduct by high officials at our intelligence and law enforcement agencies as well as at DoJ itself. Few on either side of this matter seem to doubt that this was all about an attempt to remove the President by virtually any means--Rosenstein's unbalanced invocation of the 25th Amendment is a perfect example, if any were needed. Indeed the criminal misconduct is now leading inexorably toward the Obama White House and in the last few days appears to be touching the conduct of Mueller's own Special Counsel team. It really seems bizarrely unbalanced, in view of all this, that Goldsmith should be perfectly content with a two to three year hamstringing of a POTUS with a highly aggressive criminal investigation that came up totally empty, but now wants to limit any further examination of what happened to an IG review--when extraordinarily serious crimes are plain to see and cry for a full Grand Jury investigation.

I'll cut this short--there's a lot more that could be said--but I'll close with Goldsmith's own  concluding paragraph, in which his NeverTrumpism is on full display, but in which he nevertheless does credit to Barr:

I don’t buy Benjamin Wittes’ suggestion that Barr may be acting “to preserve his position in the mad king’s court.” To the contrary, I think Barr is trying to limit the damage to Article II that has resulted from Trump’s unfathomably stupid, impulsive, self-defeating efforts to wield executive power to control the Russia investigation, and Mueller’s overzealous reading of obstruction law and odd non-traditional prosecutorial decision in response. Sometimes Justice Department independence means standing up to the president. And sometimes it means taking unpopular positions in defense of the presidency. I am pretty confident that the latter is what Barr is up to.

ADDENDUM: For an excellent counterpoint to what I see as Goldsmith's very unrealistic, at times willfully blind, views--despite his high praise for Emmet Flood's letter and approval of most of Barr's actions--see Adam Mill's trenchant piece: Leaky Bob is Desperate to Slow the Reckoning:

This is high stakes stuff. If the elites can continue using intelligence and law enforcement to interfere in American elections, they will eventually get good at it and we will lose our republic. The deep state allies are fighting like the “Unsullied” protecting the gates of Winterfell to cover for the bad actors still fumbling for their golden parachutes. Bottom line, the report, these new leaks, they’re just desperate attempts to delay the reckoning. The attorney general is now subject of a campaign of smear and intimidation and he must be protected so he can hold these villains to account.
That reckoning cannot come soon enough.

UPDATE: Don Surber, a very shrewd observer, launches a full frontal assault on Goldsmith: Quit lying about our Constitution. While Surber gives Goldsmith none of the credit that I do--and despite my disagreement, I do think there is merit in Goldsmith's observations--he does get to the heart of the matter:

Goldsmith detests Donald John Trump in a manner that is so childish it undermines his stature as a college law professor.

Yes, characterizing Trump, as Goldsmith does (and has done in the past), as "unfathomably stupid," is so obviously counter factual as to be "childish" and self diminishing. Yes, in the final analysis, Goldsmith pretty clearly comes down in defense of Barr--both of his legal reasoning and of his integrity. Yes, Goldsmith recognizes Emmet Flood's letter as a "powerful rebuttal" of fully one half of the Mueller Dossier, and yet Flood's letter is more than merely a rebuttal--it's a full on indictment of Mueller's lack of integrity. That lack of integrity has been on display throughout Mueller's career, and was on full display in the vicious framing and coercion of innocent men in the Russia Hoax, above all of General Flynn and George Papadopoulos. How can Goldsmith fail to see these abuses that are so apparent to so many, that strike at every value in the rule of law that he should hold dear?

Perhaps Holman Jenkins explains this weird phenomenon of NeverTrumpism in: Joe Biden Misses His Chance: Along with every other Democrat, he surrendered his advantage when he lied about Donald Trump. Jenkins is another NeverTrumper, but one who lately seems to be coming to terms with his disability, coming back to some semblance of reality. Jenkins begins by noting that Biden began his campaign with an outrageous and easily documentable lie about Trump (re the Charlotte rally). But he concludes with some more general observations, which I've liberally edited to remove the childish NeverTrumpisms:

Mr. Trump is said to upset the norms of our political life, but how exactly? By lying? By engaging in demagoguery? By making absurd claims? His real trick has been to be a one-man satire of our politics. And so far he has yet to find an opponent or critic—whether Mr. Biden, or Hillary Clinton or Mitt Romney—who doesn’t prove his point.
Democrats have turned themselves into a party of Adam Schiffs, who, whatever his previous virtues, now is wholly defined by his promotion of the collusion canard. ... 
.... In their eagerness to traffic in falsehoods about Mr. Trump, his media critics lend him strength. We face the weird prospect now of a world-class scandal involving the FBI and the intelligence community being aired even while much of the press is committed to being part of the coverup. 
Maybe this explains why Democrats seem especially prone to flavor-of-the-month candidates, in their search for somebody who doesn’t validate the Trump electorate’s disregard for our political class. ...

And isn't this the trap that Goldsmith has not fallen but jumped into?  His NeverTrumpism leads him, even while defending Barr, to trash everything he should value. He has bizarrely exposed himself as valuing legal caste solidarity above ... the rule of law!


  1. Goldsmith's essay reminds me of where Andrew McCarthy was in 2017- too naive for his own good.

    1. That's a good comparison. After I published, I kinda regretted that I didn't express more of my criticisms. For example, look at the Flynn and Papa-d cases. There's a disproportion in the careers of these two men, but the grotesque misuse of government resources both of them is just appalling. How could Goldsmith, with his vast experience, fail to see that and understand that the measures he's recommending are a travesty compared to the injustices--and harm to the body public and constitutional order--that have been suffered. It's NeverTrump blindness. I can't really think of another explanation.

    2. To ask your question, Mark W. is to answer it.

      "How could he not see....? He does see. It is not NeverTrump blindness.

      Goldsmith is a member of the Deep State like so many others. The masks have/and still are slipping. He sees what is going on and he approves. Right now he is trying to at least appear dispassionate and professional. He isn't.

    3. Oh, I'm very much aware of that: If Confirmed, Barr Will Be The Attorney General In Full, in which I discuss Goldsmith's views on the Deep State.

  2. Robert Mueller's main obstruction-of-justice goal was to goad President Trump into firing Mueller and/or Rod Rosenstein. Mueller's spectacular, televised raid on Roger Stone's home happened near the end of this effort.

    I think that by the time this raid happened, Rosenstein had abandoned ship. I think he abandoned ship when Andrew McCabe revealed Rosenstein's offer to wear a wire when talking with President Trump.

    I wonder what Rosenstein would have done if Mueller's spectacular, televised raid on Stone's home had provoked President Trump to fire Mueller.

    I think that Rosenstein would have joined Trump's side decisively. If Rosenstein could not talk Trump out of firing Mueller, then Rosenstein himself would have fired Mueller.

    I hope that Jack Goldsmith will discuss this situation in one of his future articles.

    1. Interesting, Mike. We may get some clues about Rosenstein's posture in all this going forward when, hopefully, some indictments start coming down.

  3. I appreciate Jenkins' comments, coming from a Never-Trumper. Democrats like Mark Penn and Alan Dershowitz have also spoken and written courageously. But I disagree with Dershowitz' oft-voiced support for one commission of public servants to assess the evidence and report The Truth. Sounds too much like the Warren Commission to me. No doubt the likes of Mike Rogers (the Bad One) would people or staff such a commission.

  4. Absolutely--Deep State commissions, because that's what they tend to be, are usually a bad idea.