Preet Bharara:              From CAFE, welcome to Stay Tuned. I’m Preet Bharara.

Jack Goldsmith:            The real question here, this is not going to happen from the executive branch. Constraining the president will happen in one of two ways, electing a president who feels that the United States should be more constrained and then a congress that’s going to stand up and exercise its constitutional responsibilities. Both of those things are easier said than done.

Preet Bharara:              That’s Jack Goldsmith. He’s an expert in national security law, a professor at Harvard Law School, and a co-founder of the Lawfare blog, one of the leading legal resources out there today. Goldsmith is also a prolific author. While his previous books have touched on the power of the president, his new book, In Hoffa’s Shadow, is about his personal connection to one of the greatest unsolved mysteries of the 20th century. We get into all of that plus Goldsmith’s analysis of the legality of Qasem Soleimani’s targeted killing, his tenure at the helm of the Office of Legal Council and the Bush administration, and the state of the law as it stands today. That’s coming up, stay tuned.

Preet Bharara:              Here’s the first question I’m answering in 2020. Comes from Twitter user Mrs Frith who asks, “@PreetBharara, will this madness ever end?” My answer is no.

Don Wiggins:                Hi Preet, this is Don Wiggins from Spotswood New Jersey. I’m calling you Monday evening, so we just heard today that John Bolton says he will be willing to testify if subpoenaed. That strikes me as fairly specific language, and what I think I’m hearing is that if you ask me to testify, I won’t, but if you subpoena me, I will. Why would a witness do that? Love the show, thanks very much.

Preet Bharara:              Don, thanks for your question. It’s a common one, but it’s also a common practice for witnesses to take that approach and have that stand. There are many reasons for it, but it’s actually some witnesses do not want to look like they’re dying to come testify, they’re dying to come say nasty things or cast aspersions on their former colleagues, including their boss, which in this case is the president of the United States. But if issued a subpoena, take the posture that they will comply with legal compulsory process. Then it’s not their choice, they’re just complying with legal requirements and they don’t want to defy a subpoena and go to court, and potentially get reprimanded by a court and forced to testify after a long protracted process.

Preet Bharara:              I know it seems odd to a lot of folks, but even in my old practice, there were various times where individuals would say, “I’m not excited to come talk to you, but of course, if you go to the trouble of issuing a subpoena, I’ll show up.”

Preet Bharara:              Now, just to repeat again, in John Bolton’s case, there is a certain amount of gamesmanship I think you can infer from his conduct, including that he was quiet for a while, including that he has a book deal, including that he waited until various other things took place before saying that he’s prepared to testify, including that he seems only willing to testify in front of the Senate where we know that the likelihood of his being issued a subpoena is pretty low, and not saying the same thing about the House. While it is true that this standard procedure for a lot of witnesses who don’t want to look too eager to testify, in John Bolton’s case there’s maybe some amount of self-interested strategizing going on as well.

Preet Bharara:              This question comes from Twitter user Casual Joker, who asks, “Since the articles of impeachment haven’t been transmitted, can the House open back up the inquiry and call additional witnesses?” My understanding is that they truly can call additional witnesses, continue their inquiry. I’m not aware of any rule that says that their inquiry has to have ended at the time that they voted on articles of impeachment. I guess someone could make such an argument, but I don’t know who would have standing to object. I guess the Republican minority might, but I think Nancy Pelosi has made clear, Adam Schiff has made clear, Jerry Nadler has made clear that they will continue to look at evidence and continue to fight for documents.

Preet Bharara:              I have been speculating, as have others, that in light of John Bolton’s recent proclamation that he would comply with a subpoena if issued by the Senate, that the House should issue a subpoena to John Bolton because I don’t understand on what basis you can decide to comply with one chamber’s subpoena but not another chamber’s subpoena.

Preet Bharara:              I don’t know that it makes a difference whether or not the articles of impeachment have been transmitted or not, but the various committees in the House continue to have oversight authority, and whether or not it’s related to impeachment, I think they can continue to ask questions and get documents, and bring more light to events that happened under the Trump presidency.

Preet Bharara:              This next question comes in a tweet from Twitter user [Scott in Shaker 00:04:41], who asks me, “Please explain why it’s not correct Preet Bharara. I’m neither an attorney nor a constitutional scholar, I’d love to hear you expand on this.” What he’s referring to is my tweet saying, “Not correct,” responding to Senator Marco Rubio’s tweet in which he said, “The testimony and evidence considered in a Senate impeachment trial should be the same testimony and evidence the House relied upon.” The reason I said that’s not correct, as virtually everyone else who has a law degree has also opined on Twitter and elsewhere, is that in no case that I’ve ever worked on did you have the exact same witnesses and only the same witnesses who went into the grand jury to provide a basis for the charges to be filed, namely the indictment, which is the equivalent, in this scenario, of the articles of impeachment compared to the witnesses that are called at the ultimate trial to prove guilt, or fail to prove guilt.

Preet Bharara:              To the extent that those things are analogous, a criminal case versus impeachment and trial in the Senate, there’s no rule, there’s no regulation, there’s no constitutional principle, there’s no basis in fairness or justice to limit arbitrarily the witnesses in the Senate trial to the very same that were heard from in the House. Especially because various witnesses who have direct knowledge, including, among other people, John Bolton, were prevented from testifying in the House. Marco Rubio doesn’t know what he’s talking about and is making a political statement founded on nothing other than some partisan self-interest that he seems to be embracing.

Preet Bharara:              This question comes from Twitter user Terry Post who asks, “@PreetBharara, what are your thoughts on a possible six month sentence for Michael Flynn?” You’ll recall Michael Flynn was the first national security advisor to President Trump, was charged with a crime, namely lying to the FBI, and has been awaiting sentencing for a long time. The last time he was awaiting sentencing was in December of 2018, so it’s been more than a year. In the middle of that hearing the judge decided to adjourn that hearing for various reasons, which we don’t have to rehash here. Now Michael Flynn is ready to be sentenced this month, on January 28th.

Preet Bharara:              Now the first time around, as I discussed on this podcast, the prosecutors in the case did not seek jail time with respect to Michael Flynn’s conduct, even thought it was serious conduct. Among the reasons for that, among the reasons for prosecutor being lenient in that case is that the range counseled by the sentencing guidelines was only zero to six months. They noted that Michael Flynn had a long history of public service to the United States of America in uniform, not withstanding the lying more recently, and that he’d accepted responsibility. If you listen to the podcast with any frequency, you know that that’s an important element in a judge’s decision making about a sentence. They want to know that if you pled guilty, that not only is there a factual basis for that, but also that you have remorse and you’ve accepted it, and you’re being upfront about it.

Preet Bharara:              The prosecutors this time around are no longer saying that the sentence should be at the lowest end of the guideline range, meaning no jail time, they are now saying that he should be sentenced, Michael Flynn should be sentenced up to six months, so possibly up to the maximum end of the guidelines range. They are not specifically saying it should be six months, but they are explicitly saying that they’re withdrawing their prior recommendation of no jail time. The principal reason for that is that they believe, and I think the evidence is clear on this, that Michael Flynn has no longer shown an acceptance of responsibility. In fact, he’s tried to withdraw his guilty plea. He tried to blame other people. As the prosecutors wrote in their submission to the court, quote, “Far from accepting the consequences of his unlawful actions, he has sought to blame almost every other person and entity involve in this case, including his former counsel.” As we know, Judge Sullivan has not seemed particularly patient with these kinds of shenanigans.

Preet Bharara:              Here’s how the New York Times put it, “Mr. Flynn’s cooperation took a stark turn. He fired his well respected lawyers and hired Sidney Powell, a truculent former federal prosecutor who embraced right-wing conspiracy theories suggesting Mr. Flynn had been a target of a politically biased FBI cabal, and accused prosecutors of misconduct in his case.” Now every allegation of that kind of behavior has been rejected by the judge, so what are my thoughts on a possible six month sentence? Given his conduct, given his counsel’s conduct, given the nature of the underlying conduct for which he was charged, I think six months would be fair but we’ll see what the judge does.

Preet Bharara:              Stay tuned, there’s more coming up right after this.

Preet Bharara:              Hey Stay Tuned listeners, sure the holiday season may be over, but that doesn’t mean you should stop giving the gift of understanding law and politics to your friends or to yourself. With the New Year bringing in new legally complex issues, start 2020 off right by joining the CAFE Insider community. We’re here to help you make sense of the latest news with the CAFE Insider Podcast. A weekly note from me, bonus content from Stay Tuned and more. Head to cafe.com/gift to join today. That’s cafe.com/gift.

Preet Bharara:              My guest this week is Jack Goldsmith. He’s a professor at Harvard Law School where he teaches a notoriously difficult course. He’s also a senior fellow at the Hoover Institution and a co-founder and active contributor to Lawfare. Goldsmith joined me on Monday to talk about the implications of Trump’s decision to launch a strike targeting Iranian general Qasem Soleimani. We get into whether the decision was lawful and whether that even matters, the significance of prior OLC opinions, the power of precedence and the stretchy concept of imminent threat. We also talk about his new book in which Goldsmith writes about the fact that his step-father was a top suspect in the disappearance of one of history’s leading labor organizers, Jimmy Hoffa. That’s coming up, stay tuned.

Preet Bharara:              Jack Goldsmith, thanks so much for being on the show.

Jack Goldsmith:            Thank you for having me.

Preet Bharara:              This is a long time coming. I’ve wanted to have you on for a very long while. I don’t know if you remember this, but many years ago when I worked in Washington DC, we’re going to talk about this new book that you have which is really an impressive book and very interesting book, but I came to a book party of yours back in Washington, I guess in what, it’d have been 2005? No.

Jack Goldsmith:            ’07 I think, for The Terror Presidency?

Preet Bharara:              The Terror Presidency, and you gave a nice talk, so it’s nice to have you on finally.

Jack Goldsmith:            I don’t remember you coming to the book talk, but I remember having a beer afterwards.

Preet Bharara:              Yes, I remember that also. I’ll keep that secret. What happens over a beer stays there. You have this amazing book, which is different from your other books, and I want to get to that in a few minutes, but let me just mention it now, called In Hoffa’s Shadow, A Stepfather, a Disappearance in Detroit, and My Search for the Truth. What makes it fascinating, we’ll get into it in some detail shortly, is that it’s a book about law and about crime, but also personal to you. We’ll come back to that, but congratulations on writing that book.

Jack Goldsmith:            Thank you.

Preet Bharara:              We set up this interview some weeks ago and I thought we’d talk about certain topics including the book, which we will, but in the interim, just last Thursday, recording this on Monday afternoon, January 6th, it turns out that you are the perfect guest to talk about a whole bunch of other issues relating to the United States killing of an Iranian general, Qasem Soleimani. May we start with that?

Jack Goldsmith:            Sure.

Preet Bharara:              I know you’ve made some statements and you’ve written some things about the legal aspects of it, which is what I’m interested in talking to you about. I’m going to ask you a over-broad, simple question first and then we’ll break it down because there are a lot of things that are confusing to people, even to lawyers who don’t necessarily practice in this area. It’s confusing. But the question is was it lawful for the United States to intentionally kill General Soleimani outside of the Baghdad airport?

Jack Goldsmith:            Let me start with a caveat. The answer I’m going to give is yes, under US precedence and the US understanding of domestic and international law. But when people ask, “Is this lawful?” They assume that there’s some objective answer or there’s some final adjudicator that can tell us what the governing principles are, and the truth is that both the president’s constitutional powers under Article Two and the relevant international law principles are just contested all the way to the bottom. The United States takes a pretty aggressive view on the use of force consistent with the UN Charter, so that’s the background.

Jack Goldsmith:            I’ll just say this, I think that the strike is easy to justify legally, and I want to distinguish between whether it was lawful and whether it was a good idea, I think it’s easy to justify legally based on the precedence that have been established since 9/11.

Preet Bharara:              Because let’s talk about the Constitution and Article Two, which pertains to the executive branch for those at home who haven’t been paying attention to civics in a while. What does Article Two say about what the president can and cannot do in this context?

Jack Goldsmith:            Article Two says practically nothing on its face about the president’s military powers. It designates him as the commander and chief. The original understanding of that provision was simply that he would be the top military commander. It was really about civilian control of the military and it didn’t really have a whole lot of content in terms of presidential military powers, except possibly, and this is the core presidential military power, the president’s power to use military force in self-defense. That can be self-defense of the nation or it can be self-defense of troops.

Jack Goldsmith:            Ever since, the founding presidents have interpreted this commander and chief clause to give them more and more power to use unilateral force abroad, ever expanding theories across the decades and centuries and across administration, and presidents have built up, through OLC opinions and practice and congressional acquiescence, a very robust set of precedence that give the president wide discretion to use force without congressional authorization. But I don’t think that actually comes into play here in the way that we usually talk about it, and I can explain why if you want.

Preet Bharara:              But I will say you’re referring to the Office of Legal Counsel, which we’ve discussed a lot in the show.

Jack Goldsmith:            Right.

Preet Bharara:              Within the Justice Department, and of which you were the head for about nine months.

Jack Goldsmith:            Right.

Preet Bharara:              During the Bush administration. With respect to the OLC office, there have been opinions over time that do bear on this question right? What do those opinions say?

Jack Goldsmith:            They’re hard to summarize, and again, I don’t think that what I’m about to tell you is necessarily on point for this strike, but here’s what they basically say in recent years. They basically say that the president has very broad powers under Article Two, to use unilateral military force without congressional authorization if there’s a so-called national interest. OLC has defined what a national interest is in ever broader ways, to the point where I can’t think of a national interest that the president would want to use force for that wouldn’t count.

Jack Goldsmith:            OLC has interpreted that power very broadly and it’s only suggested one check on that, and the check is that if the power that the president reports to use rises to the level of war, if it threatens a long-term conflict, if it threatens danger to US forces, if it threatens ground troupes, then in that circumstance the president might have to seek authorization from Congress.

Preet Bharara:              But that’s very speculative.

Jack Goldsmith:            It’s speculative, yes. In the opinions it’s somewhat speculative. It’s speculative as to what the triggers are, how intense it has to be to go to Congress. The main thing, this theory has been used primarily to justify what some people call war at a distance, because the basic theory is if there’s no danger of US troupes being harmed and there’s not a whole huge danger of escalation, then the president can basically use force when he wants. That basically means that the type of force we’ve been using in the last 15 years, really since Obama became president I guess, force from the air, special operations on the ground and cyber, these are things that the president basically can do, and I’m generalizing a bit, but basically can do without congressional authorization.

Preet Bharara:              OLC opinions have become controversial, and the average person in America doesn’t fully understand why we should be according those opinions weight, for example, in the controversial case of the president of United States and whether or not he can be indicted. [inaudible] this long-running commentary on this. While Bob Mueller was doing his investigation people would say, “Well just because there are two OLC opinions that say something about this, that’s not law. That’s not a statute. That’s not a regulation. That’s not a Supreme Court decision.” How do you explain to people why and for what purpose OLC opinions carry any weight?

Jack Goldsmith:            Yeah, so it’s a very fair question and a very fair concern, and I think there’s a straightforward answer. The straightforward answer is that the president of the United States, when he acts, has to make sure that he acts consistent with the law, and that means that the executive branch, and that means not just the president but all executive branch actors, and that means they need to figure out what the law is. So much of the law that’s relevant to executive branch practice, there’s no Supreme Court jurisprudence on, so there’s no Supreme Court jurisprudence on the question of whether the president can be indicted.

Jack Goldsmith:            It falls to only one actor, that the executive branch has to figure that out for itself, and they’ve done this, the executive branch has interpreted law for itself going back to the founding. It is something that actually the framers almost certainly contemplated, but there are reasons to worry about it. As I’ve written in other books, OLC tends to interpret presidential power broadly, it tends, at the margins, to protect the president, it tends to have a separate jurisprudence from the Supreme Court. It’s just a feature of our constitutional landscape and it is what it is.

Jack Goldsmith:            But let me just say one more thing, in the Mueller investigation especially, the reason that those opinions were bonding on Mueller is because the regulations basically said so, and this is what Mueller said in his report. The regulations basically said, and this is the way Mueller interpreted it, that he was bound by OLC opinions because he had to follow the policies and practices of the department. OLC had ruled on this twice, once in the Clinton administration and once, I believe, in the Nixon administration or maybe just after, and Mueller said he was bound by that because that’s what the special counsel regulations specified. That explains why he was bound by these opinions.

Jack Goldsmith:            Now let me say one more thing, citizens don’t have to agree with this, and it’s important to understand this. These are issues that don’t come up in court. They’re issues on which Congress has a hard time legislating, so we don’t have to just lie down and accept them, I’m not suggesting that, but there’s a very practical need for why the executive branch needs to do this. In the Mueller case, he was actually legally bound by it.

Preet Bharara:              Because there are gaps. In one sense, OLC opinions fill gaps that are not provided for. Scenarios are not provided for in the constitution or another statute and regulation because they don’t get litigated.

Jack Goldsmith:            Exactly. That’s exactly the point. So much of what I did at OLC was addressing questions that had never come up in court, and that frankly could never come up in court.

Preet Bharara:              In one sense it’s a guidance giving exercise.

Jack Goldsmith:            Right.

Preet Bharara:              You hope where everyone is acting in good faith, where the president is acting in good faith and wants good faith advice, and good faith advice is being given. But you’ve read obviously a million OLC opinions, you’ve written OLC opinions, you’ve criticized OLC opinions, even while in office, and even sought to withdraw OLC opinions right?

Jack Goldsmith:            Correct.

Preet Bharara:              They’re not infallible.

Jack Goldsmith:            They’re not infallible any more than judicial opinions are.

Preet Bharara:              Except there’s no review of these, so that’s what causes, I think, people [crosstalk] pause.

Jack Goldsmith:            Well, I was thinking about Supreme Court decisions. OLC overturning itself or criticizing itself is akin to the Supreme Court doing so, because there’s no higher authority. Unless of course, an issue OLC opines on does come up in court, in which case the judges get the last call.

Preet Bharara:              Right. I think you once referred to an OLC opinion, maybe even in your book, because I read lots of sources so I’m forgetting now, and you had an interesting description of some kinds of OLC opinions, which essentially give an advanced pardon for certain kinds of conduct. Because it is very difficult, indeed maybe impossible, to prosecute someone for action that they have taken in the executive branch, relying in good faith on an OLC opinion.

Jack Goldsmith:            That’s correct. That’s a feature of our system and it’s a lot of people think that’s hugely problematic, and it is.it has the danger of course, and some people think this is what happened in the early Bush administration, OLC simply going off the rails and writing a blank check for agencies to do anything. It’s very important who’s in that office, it’s very important that that office adhere to its processes and the cultural rules that its developed over the years. I’ve written a lot about this. OLC tends to interpret the law more broadly for the president, just like courts tend to interpret law broadly for themselves.

Jack Goldsmith:            But there is that consequence in the criminal law context. When the Justice Department through OLC says that a practice is lawful and people engage in this, then they can’t be prosecuted later. The best example of this is with the interrogation memos that were so controversial when Eric Holder became Attorney General under Obama, and they looked back at the Bush era practices, which itself was controversial. They decided right off the bat that they were not even going to investigate CIA practices that had been approved by the Justice Department, they were only going to investigate practices that went beyond the opinions. That’s an example of that impact.

Preet Bharara:              Let’s go back to the killing of Soleimani. We talked about Article Two of the Constitution, which is pretty open ended, OLC opinions that do some gap-filling, but there are other bases of authority that I think the administration has or will rely upon. One of those is the AUMF, or I guess a couple of AUMFs. The authorization of use of military force dating back to right after 9/11. Do those provide any basis for justifying the killing of Soleimani?

Jack Goldsmith:            I think they do in combination with a self-defense power, and let me explain what I mean. The first question you have to ask yourself is what are US troupes doing in Iraq in the first place? Why do we have troupes on the ground and troupes in the air in Iraq? The basic answer is, legally, is that Congress has authorized them to be there to use force against Al-Qaeda and the Islamic State. This authority traces back to the original 9/11 AUMF.

Jack Goldsmith:            The 9/11 AUMF did not authorize or contemplate war against the Islamic State, but the Obama administration interpreted it to extend to the Islamic State. Congress has since, quite self-consciously through appropriations, approved that interpretation, so there’s no doubt that US forces are lawfully in Iraq pursuant to that AUMF. They’ve also received the consent, limited consent, and I’ll get to that later if we talk about international law, a limited consent from Iraq to be there.

Jack Goldsmith:            The question is, and this is what I think the administration’s justification will be when they get their act together, they’ve been terrible so far in explaining the legal basis for what they’ve been doing. I think the argument is simple and it’s been used before, and I want to emphasize before I make it, that just because something is lawful does not mean it’s a good idea, but the argument is that US troupes are there lawfully, they’re engaged in conflict with the Islamic State and other terrorist organizations, and in the course of that presence they’ve been attacked by forces backed by Iranian militia forces. It’s an old principle that forces, wherever they are, when attacked by any entity can use self-defense in response to those attacks. That’s a principle that the United States has relied on in Iraq, in Syria, in Somalia, to use force against entities that attacked us once we were there, even though we weren’t in a conflict with those entities.

Preet Bharara:              Do you think it makes a difference that Soleimani was killed while he was in Iraq, where US troupes are, versus a different scenario in which we tried to target him and kill him while in Iran?

Jack Goldsmith:            I don’t think it makes a difference from the domestic law perspective, which is talking about whether Congress has authorized this and whether the president is acting lawfully. No, I don’t think so. It’s simply a matter of once you determine that you’re acting in self-defense I think, then I can go after members of the forces that are attacking you, and Soleimani was alleged to have led this.

Jack Goldsmith:            Now I’m assuming lots of facts here. I’m assuming that these attacks have been carried out by Iranian forces for a month, and indeed for years the United States and Iran has been skirmishing in various places. That’s the main assumption here, but if that’s the assumption, then the argument will be and that the United States was exercising its self-defense rights.

Preet Bharara:              But self-defense rights require, among other things, do they not? A finding of imminent threat. Or can you take an action and justify it by self-defense when there’s no future threat, but you are just punishing someone or retaliating against someone for a prior bad act? Does there have to be some anticipation of future harm?

Jack Goldsmith:            There doesn’t have to be. I can string off a list of presidents. The bombing in Libya in ’86 in response to Libya’s bombing in Germany in the German nightclub. Bill Clinton’s use of force in Iraq in response to the attempted assassination of George H.W. Bush. When there is an attack and you don’t need as much of an imminence predicate if there’s a pattern of attacks, which has happened in Iran.

Jack Goldsmith:            Moreover, the United States has interpreted imminence to be a very broad and stretchy concept. Again, going back-

Preet Bharara:              Yeah, you called it stretchy, yes.

Jack Goldsmith:            Yeah. Basically the test is articulated by the Obama administration most clearly, is a multifactor test that takes into account a whole bunch of things, but one of the things it includes is has there been a pattern of attacks before? The idea is if there has been a pattern of attacks, then you can act in self-defense, even without evidence of something specific that’s coming in the near term.

Jack Goldsmith:            Let me put this another way. imminence in the law, at least as interpreted by the United States, does not mean what our ordinary concept of imminence is. When the United States, for example, I think it was in 2014, used force against an obscure terrorist group in Syria, the Khorasan group, they claimed that there was in an imminent threat, and when they defended this they said, “Well, there was planning and we didn’t want them to get to execution. We weren’t sure if it was going to happen in weeks or months, or even six months.” We have a very stretchy conception of imminence.

Preet Bharara:              Given patterns and practices and the AUMF and various other things, and [inaudible] opinions since 9/11, would your analysis be different or would the question be a closer one if you went back in time and we were discussing the same exact strike in 1999?

Jack Goldsmith:            That’s a great question. The answer is that there were precedents on the books going back, for example, to there was a 1998 planned covert operation against Bin Laden in Afghanistan that raised a lot of these questions, especially the hard question about whether a targeted killing is an assassination. There was a ruling back then by OLC, that it’s not an assassination if it’s an exercise of self-defense.

Jack Goldsmith:            But let me extract from that and answer your question a different way. The point of going back to ’98 or ’99 is a good one because there have been so many precedents, so many actions, so many expansions of authorities in the post 9/11 context, both through Congress and especially through executive interpretation, that as I’ve written elsewhere, the constraints on executive power under the [inaudible] that the executive has developed and that Congress has done not much to push back against, those constraints, just they’re not very powerful.

Preet Bharara:              You had a tweet, and by the way, I should tell listeners that you should follow Jack Goldsmith on Twitter. Very informative and instructive. But you wrote in the last day or two, “When a former administration, especially the Obama administration, does the legal analysis and then takes the strike, and there is no pushback, that precedent suffices the next time.” Want to elaborate on that?

Jack Goldsmith:            Sure. The way it works inside the government generally is it’s a precedent-based system, and when you’re looking around for, in DOD or in OLC or in CIA, you’re looking around for authorities to do something, what you’re looking for are precedents. Precedents that have been upheld and that maybe that there’s an opinion on. Something that’s on point or nearly on point. The Obama administration came into power after the Bush administration and it was very skeptical of a lot of the Bush administration legal theories, it threw a lot of them out, but it developed a lot of its own very powerful and robust theories. The Obama administration had a patina of virtue about it, so that if you’re in the Trump administration and you’re looking back at these Obama precedents, they’re like gold. Precedents are always gold in these context, but especially coming from the Obama administration because they had such an emphasis on law, such a heavy emphasis on legal process. There were a lot of speeches about it.

Jack Goldsmith:            I just think that, again, this is not quite a point about legality, it’s a point of how the government operates. If there’s a precedent in the past, and especially from another administration, from a different context for what you want to do, then that’s powerful support for its legality within the US context.

Preet Bharara:              With respect to Bin Laden and Baghdadi versus Soleimani, I guess one difference in their characteristics is that not withstanding the fact that people are referring to Soleimani correctly and in good faith as a terrorist and responsible for a lot of bad things, I don’t think anyone has said there’s anything good about that person and anyone in this country who’s unhappy about his death, separate from what the consequences will be, it doesn’t make a lot of sense to me. But the difference between UBL for example, and Baghdadi versus Soleimani is that Soleimani is in fact a government official of a sovereign state. Forget about the wisdom of it because we’re separating that out, does that affect the legal analysis?

Jack Goldsmith:            I’ve thought about this a lot and I don’t think so, but I’m not sure. I have not been able to figure out a reason why it should matter under the theory that I articulated, namely if our forces are somewhere for a reason and they’re attacked from another source, we can use force against that source, whether it’s a state actor or a non-state actor.

Jack Goldsmith:            This is kind of what we’ve been doing in Syria. We are there, this was in the past, I think in the Obama administration, we’re training troupes there, we have US troupes on the ground supporting those troupes, those forces get attacked by Syrian forces and we use force and self-defense against state actors, Syrian forces.

Preet Bharara:              Does that mean then, by that logic, can Donald Trump, at many moment, decide to launch a strike against the supreme leader of Iran?

Jack Goldsmith:            I think on the same logic the answer is yes, and that’s disastrous. No, I understand.

Preet Bharara:              That will surprise some people.

Jack Goldsmith:            I understand.

Preet Bharara:              Just to be clear again, you said it a few times but we should say it one more time, there’s lots of things that are lawful or that you can make a legal argument for, that would be a bad idea, perhaps maybe even a catastrophic idea to do, but as just a matter of legal reasoning, you think we could launch a strike against the supreme leader?

Jack Goldsmith:            [inaudible 00:31:13], yes, but I want to really emphasize the distinction I’ve made twice now. I’m talking about US understandings of the law and US precedents. Really what we’re seeing now, what we’re seeing with Donald Trump using force here in a very different and much higher stakes context than the past president did, certainly Obama did, is something that a lot of people warned about under Obama when they were developing these precedents about targeted killing and these understandings about self-defense, and I’m willing and I’m able, and using force to protect forces that were in another country when they’re attacked by a third party. All these principles and precedents that were developed, a lot of people warned, in the hands of a president who is less scrupulous, can lead to disaster.

Jack Goldsmith:            I’ve been waiting and waiting for Donald Trump, for his impetuousness to extend to the commander and chief’s discretion to use military force, and he’s got a lot of running room given the US precedents that have developed for the last 12, 15 years. I don’t think that’s a good thing. The expansion of these precedents have been worrisome to me, especially the domestic law precedents, but that’s where we are and there’s plenty of US law to support what he’s doing.

Preet Bharara:              On this question of assassination, which I see a lot of people on TV talking about, which is not necessarily a legal term of art in the authorities that we’ve talking about, as I understand it, there has been for some time a policy adopted by the executive branch, to not engage in, quote, unquote, and assassination. Was this an assassination?

Jack Goldsmith:            Not on the executive branch’s understanding. That policy goes back to the 70s and the church committee and the CIA’s assassination adventures in the 60s and 50s. To stave off a statute that would have prohibited assassination, Gerald Ford put a prohibition on the use of assassination by the US government. But the question is what is an assassination?

Preet Bharara:              Yeah. What does that prevent? It’s not clear to me what that prevents.

Jack Goldsmith:            Yeah. I think, again, there’s no sacrosanct or settled definition. I think the core idea is that you don’t kill leaders of other countries for political reasons and in peace time. That builds up to the exception that I’m about to tell you about, and it had a prehistory, but it really had its most important interpretation from 1998. Again, this is a pre-9/11 precedent. This is all, what I’m about to tell you is all discussed in the 9/11 Commission report.

Jack Goldsmith:            There was a covert action approved by the Clinton administration to capture, and if necessary, kill Bin Laden in Afghanistan in 1998. Their lawyers struggled with the question whether that would be an assassination, just to go in there and kill this guy, and the lawyers concluded in a memorandum that OLC was involved in, they may have written it, I’m not sure, the lawyers concluded that if you’re acting in self-defense then you’re not committing an assassination. It’s not political, it’s military. Whether that’s right or wrong, that’s been the US understanding for many decades now.

Preet Bharara:              This really seems quaint now, 18 years on from 9/11, that Bin Laden, even at that point, three years before 9/11, had engaged in terrorism, had caused suffering and loss of human life, that that was a real legal debate. It’s odd right?

Jack Goldsmith:            It was, but the 9/11 Commission [inaudible] a couple of pages on the hand-wringing that went over that issue.

Jack Goldsmith:            Again, as Bobby Chesney pointed out to me in a tweet yesterday, it actually goes back to the 1980s and some interpretations in the CIA in the 1980s that made that same legal move. But that’s the definition that’s been given to assassination.

Preet Bharara:              I’m just wondering also, on the broad legal theory that you’ve sketched out, if the United States has some intelligence-based reason to believe that some state that may be hostile to the United States is on the verge of developing nuclear weapons, then everything’s fair game with respect to the leaders of that country?

Jack Goldsmith:            It would depend upon the imminence of the threat, but you’re pushing me into a bunch of scary hypotheticals and I’m quite happy to go there.

Preet Bharara:              Don’t you do this in class?

Jack Goldsmith:            Yes I do, and I’m quite happy to say that based on, again, on the practices and precedents established in the last 20 years and even going back further, it would really depend on what the nature of the threat was and what the nature of the buildup was. But there’s an OLC precedent written on 2002, in the George W. Bush administration, that it was not withdrawn by the either the Bush administration or the Obama administration, that basically justifies the use of force in Iraq without congressional authorization, consistent with international law, in the face of the threat of development of weapons of mass destruction. We’ve already crossed that Rubicon in terms of OLC opinion.

Jack Goldsmith:            A lot of people think that’s a bad opinion. It’s not the most rigorous OLC opinion ever written, but I think we should just step back and say there’s a bigger lesson here, and the bigger lesson is the law permits the president of the United States to do all sorts of horrible, unthinkable things that he shouldn’t do, and that presidents normally would never think about doing.

Jack Goldsmith:            We’ve always assumed that there’s a modicum of, and it’s been a fair assumption, of reasonableness and self-discipline, listening to experts and the like in our presidents. These precedents are frankly quite scarier under President Trump, who doesn’t pay heed necessarily to experts, who is impetuous and mercurial, who seems vengeful, who seems very reactive, so the law’s not going to save us here.

Preet Bharara:              That leads me to my question here, I know that you don’t want to talk about the wisdom of the actions being taken, we’re talking about what the law is.

Jack Goldsmith:            I actually don’t have an informed view about that.

Preet Bharara:              But what about your review of the wisdom of the state of the law as it stands now? I know you’re saying the law’s not going to save us because of what the landscape has become, is that a good thing? Should there be, in future years, much greater constraint?

Jack Goldsmith:            Yes. A little plug for my next book, I’m writing a book with Bob Bauer who was Obama’s White House counsel, and we’re writing a book-

Preet Bharara:              Also a former guest of the show.

Jack Goldsmith:            Oh great. We’re writing a book called After Trump, and we have a chapter on war powers. We have a chapter on these very issues because I’m a believer in robust executive power to defend the country period, but I do think that the precedents and the practices have gotten out of control.

Jack Goldsmith:            I want to really underscore that there’s another institution here, that is Congress, that has gone along with this. They’ve not only acquiesced in the face of this growing presidential power and these growing precedents and the expansion of this below the radar screen war around the world, they’ve actually, on the sly, approved it. There was a lot of hand-wringing when President Obama extended the AUMF to the Islamic State, but the fact is that Congress has consistently appropriated in support of that war ever since, that legally suffices.

Jack Goldsmith:            The real question here, this is not going to happen from the executive branch. Constraining the president will happen in one of two ways, electing a president who feels that the United States should be more constrained, and then a Congress that’s going to stand up and exercise its constitutional responsibilities. Both of those things are easier said than done.

Jack Goldsmith:            But the answer to your question is yes, I do think we’re basically at a point where there aren’t a lot of things, this is going to be a remarkable statement, but there aren’t a lot of things that I can imagine a president realistically wanting to do, either in the national defense or for regional security or to promote American interests militarily, that I would have a terribly hard time writing an OLC opinion about. The precedents are very, very permissive.

Preet Bharara:              It’s like a lot of other contexts. We give a lot of authority to certain kinds of people. We do that for prosecutors and certainly we do that with the president of the United States. We rely upon the electorate to make sure that you put in those positions people who will observe rationality and act in good faith, and exercise wise judgment.

Jack Goldsmith:            Exactly. I couldn’t agree more and I think at the top of the list of the things that we’ve learned about the Trump presidency is the importance of that assumption. It’s absolutely it’s so much more important than I realized or that anyone realized. It was invisible because it wasn’t really challenged.

Preet Bharara:              Because it wasn’t tested.

Jack Goldsmith:            it wasn’t tested, yeah.

Preet Bharara:              Nobody went to the brink.

Jack Goldsmith:            Right.

Preet Bharara:              Look, I guess one way to wrap up this discussion between two lawyers who are going through what the landscape is and what the precedents are is how much does this even matter? I think someone said on social media over the weekend, all these folks who are complaining that this was a violation of law, or that some rule was transgressed are missing the point that, I don’t want to put words in your mouth, this is me speaking and paraphrasing the person on the internet, the real story here is that you have an out of control president who may not be fit for the job. That where the debate should be taking place, not on whether particular protocols or OLC opinion, phrases have been violated.

Jack Goldsmith:            I couldn’t agree more with that. We always tend, the lawyers tend to dominate these discussions and they tend to yell back and forth about it is legal, it isn’t legal, it is legal, it isn’t legal. That’s just practically irrelevant to what’s actually happening and what the real danger is. I have to say, with regard to Trump, is all the things, of all the norms he’s broken and all the institutions he’s attacked, this is the most worrisome thing he’s done. Using force here in a seemingly impetuous way, at least as the early news reports suggest, his follow-up threats to commit war crimes against Iran, his follow-up threats against Iraq, these are all things that technically fall within the discretion of the commander and chief, but they’re outlandish things that no commander and chief should be doing. The focus needs to be on, I think, on the rightness or wrongness of what the president’s doing and how to change that.

Preet Bharara:              You mentioned war crimes. I presume you’re talking about what everyone has been discussing, Donald Trump’s tweet where he suggested that there would be 52 sites that have been designated for retaliation, and among them there would be sites that are important culturally to Iran.

Jack Goldsmith:            That’s one war crime that he’s threatened. Another one is, I think in one tweet he said that if they use force against us, we would use force back, and it wouldn’t be proportionate. In other words, a core requirement of the laws of war, proportionate use of force, he said quite clearly we wouldn’t do that.

Jack Goldsmith:            Now I have to say I seriously doubt, I would be very surprised if the Defense Department would follow either of those orders. I think you would see massive pushback and resignations before that happened. I don’t expect that to happen.

Preet Bharara:              Like all that pushback we’ve seen so far?

Jack Goldsmith:            We’ve seen a lot of pushback.

Preet Bharara:              [crosstalk 00:41:48].

Jack Goldsmith:            I think one of the most remarkable things about the Trump administration is the extent to which people ignore him in the executive branch.

Preet Bharara:              I guess that’s true.

Jack Goldsmith:            I’m serious.

Preet Bharara:              [crosstalk 00:41:57].

Jack Goldsmith:            There’s a long list. Volume two of the Mueller report was all about Trump’s loyal confidants not carrying out his obstruction of justice wishes.

Preet Bharara:              But they did listen to him on Soleimani, and if you believe the reporting, it has been suggested that military officials, like they sometimes do, put a wide spectrum of choices on the menu for a president, and sometimes they put the most outlandish ones on there as well to make the more moderate ones seem even more palatable. Do you buy that? If that’s so, was it a mistake with this president to put certain options on the menu?

Jack Goldsmith:            I have found that to be hugely surprising. Yes you give a menu of options, but when you are talking about a strike of this significance and a president like this, you should not offer options unless you thought that they were within the realm of acceptable, reasonable options. This idea that’s been reported in the New York Times, that the DOD offered this option but didn’t expect him to take it, I really am not sure if that’s true, and if it is, it speaks very badly for the people who put that option on the table.

Preet Bharara:              Well because here’s the funny thing, I think, that happens not just in this instance, in this example that I’m putting to you, but also in all sorts of other ones. Everyone else is acting like the world is the same and the president is a normal president. You have people like Mattis and others who are adhering to the principle that a former military official doesn’t speak badly or divulge information about his time in service, and conversations with a president, and that presidents don’t take the most outlandish option. Maybe a lot of the people around the president who are in government, haven’t adjusted their behavior. They’re still adhering to norms when they had a president who does not, and so maybe the folks around the president need to change more radically. Is that fair?

Jack Goldsmith:            Maybe. I don’t even know how to begin to understand working in the Trump administration, especially in the White House. I think you’ve seen two sets of reactions. Clearly some people, and you’ve seen stories like this coming out of the White House and books have been written about this, about the extent to which his subordinates, and there are a million examples, his subordinates in the White House and in the agencies have just ignored him or deflected his requests and the like.

Jack Goldsmith:            On the other hand you see people who are seeking to curry his favor and who are carrying out his wishes, and that’s what you’re supposed to do in a traditional administration. It’s a tough cal if you’re working for a president and you stay in office, and you don’t resign, what your job is. Are you supposed to listen to him and carry out his wishes? Are you supposed to try to deflect them in the name of some higher good? That has dangerous consequences as well.

Preet Bharara:              Can we talk about the War Powers Act for a minute?

Jack Goldsmith:            Sure.

Preet Bharara:              I believe it’s your view, and it’s the view of a lot of folks, even if you didn’t like the strike on Soleimani, that it did not implicate the War Powers Act. Correct?

Jack Goldsmith:            Well, I’m not sure what you mean by implicate.

Preet Bharara:              Well do you believe that the president was required to go to Congress?

Jack Goldsmith:            Before?

Preet Bharara:              And seek its approval?

Jack Goldsmith:            No.

Preet Bharara:              [crosstalk 00:44:43].

Jack Goldsmith:            Not under the War Powers Resolution, no.

Preet Bharara:              Right.

Jack Goldsmith:            The War Powers Resolution, there’s a whole bunch of reasons why, the War Powers Resolution gives the president basically a 60 day window, under certain circumstances, to use force, but more importantly, the War Powers Resolution only kicks in for non-authorized wars, and this war, I think that the ultimate justification for this is going to be that this was a self-defensive action and an authorized war.

Jack Goldsmith:            There was a War Powers Resolution report. I haven’t seen it yet, but there’s nothing in the War Powers Resolution that prevented this strike, no.

Preet Bharara:              What about going forward? Suppose that things, not withstanding the rhetoric of de-escalation, there doesn’t seem to be much de-escalating, but there’s another strike tomorrow, [inaudible] a few days later, Iran retaliates, and then we do another strike and we send more troupes in. Can we end up in a more traditional war footing without having to go to Congress?

Jack Goldsmith:            It’s not clear. There are OLC precedents that say that is a war is escalating, then you have to get congressional authorization. Now it’s not clear the extent to which that principle applies if the war is escalating in self-defense, but again, let’s not focus too much on the law, the answer is the president should definitely go to Congress.

Jack Goldsmith:            There are precedents [inaudible 00:46:04], and in both Gulf Wars, President Bushes, north of whom claimed they didn’t need to go to Congress did go to Congress. Again, the OLC opinions are a little bit all over the map on this question, but I will say this, the circumstance in which there’s the best, most powerful argument that the president has to go to Congress to get approval is if it turns into a hot war with lots of threatened losses of life, ground forces, threats to the nation and the like. The higher the temperature or the higher the stakes, the greater the argument to get Congress’ authorization.

Preet Bharara:              People keep talking about what the law requires if we get the prudential aspects of this, in the same way that people have been complaining that Donald Trump didn’t let all of the gang of eight know about this strike. Somebody said, “Well we didn’t have to tell Senator Schumer or Nancy Pelosi or other people,” forgetting that it’s in the interests of the president, it’s in the interests of the executive branch to go to Congress and to inform Congress of things. Why? To get their buy-in and to get their approval because you’re going and taking action as a nation. Then everyone shares responsibility and is invested in the game plan right?

Jack Goldsmith:            Yes. Absolutely. There is a consultation requirement under the War Powers Resolution. I thought you were talking about an authorization requirement. But the broader point is absolutely true, and presidents understand this, is that when you take the nation into a very dangerous situation, it’s just prudent, it’s good for the nation, it’s good for the president to get Congress responsible. To make Congress be accountable and responsible and by informing them, and then that puts Congress on the spot where it often doesn’t want to be. That’s what a normal president would have done I think.

Preet Bharara:              Last question on this point. We didn’t talk about international law. Does that matter? Under international law, is this strike against Soleimani a closer question?

Jack Goldsmith:            I do think it’s a closer question under international law. International law does matter. It matters a lot to the Defense Department. To do this strike I believe, and this is my effort to figure it out because again, the Trump administration has not explained what’s going on here, I think we have to rely on two concepts that we’ve been relying on for a while now, but that are pretty controversial in the international law. One is, is that we have the power to use self-defense in a country, despite their sovereign control over the country, if that country is unwilling or unable to check a threat to our nation or troupes from that country. That’s called the Unwilling or Unable Doctrine. Then, going back to something similar I said about Article Two, we rely on a very permissive conception of imminence. I think both of those concepts are at play here.

Jack Goldsmith:            The answer is international law matters, but it’s not been much of a constraint on precedents in the last 15, 20 years. Again, we’ve developed precedents that basically have allowed us to shape international law to serve our interests. The rest of the world sees it quite differently though, or many nations in the word.

Preet Bharara:              All right, well that was a really helpful discussion, I think, for a lot of people, including for me. Let’s turn to your book, In Hoffa’s Shadow. I’ve known you for a long time. We’re not in close contact, but I think fair to say that a lot of folks may not appreciate until this book came out, your association with the Jimmy Hoffa case. Not you personally, but through a relative. Let’s take first steps first, remind folks, some of whom are young, who Jimmy Hoffa was.

Jack Goldsmith:            Jimmy Hoffa was the leader of the Teamsters union, truckers, warehouse workers and others, which was the largest union in the nations. Almost a couple of a million people in the 50s and 60s. He was the leader of that union at a time when unions were consequential, powerful forces in the country. He was an outsized public figure, he was hugely charming and charismatic, and much beloved by the people, the workers in the union. He was very powerful, he was one of the most powerful people in the country because if you control the trucks, you control transportation routes and you basically control the economy.

Jack Goldsmith:            On the labor side, Hoffa was a labor hero. He was a working class hero. He brought hundreds and hundreds and hundreds of thousands of people into the middle class and he was much beloved. That’s the one side of Jimmy Hoffa.

Jack Goldsmith:            At the same time, Hoffa was corrupt by any standard. He broke the law a lot. He paid off politicians and judges, he gave out loans from the Teamsters pension fund and took a bit for himself here and there. Quite a lot actually. He was always being chased by the law, and especially by Bobby Kennedy, and so he finally went to jail. Kennedy finally nailed him and he went to jail in ’67, then he came out of jail in 1971, again, still a very prominent public figure, and during his efforts to win back control over his union in the years after he got out of jail, he became increasingly threatening towards the mob about revealing their ties to the Teamsters if he couldn’t get control of the union.

Jack Goldsmith:            Then very famously and very mysteriously, on the afternoon of July 30th 1975, he was in a parking lot outside a suburban Detroit restaurant, waiting for a meeting with a few mobsters, and he disappeared and nobody knows what happened to him. You could read a lot of books and see a lot of movies, but I can tell you, based on my research and talking to a lot of FBI agents, there’s not a single shred of evidence about what happened to him that day. Direct evidence.

Preet Bharara:              Although there’s been speculation for decades.

Jack Goldsmith:            Speculation going back to the week of the disappearance. 44 years.

Preet Bharara:              There has been one person who has been labeled as a suspect involved in the disappearance/murder of Jimmy Hoffa, and that person is who?

Jack Goldsmith:            That person happens to be my step-father. A man named Charles “Chuckie” O’Brien. My mother married Chuckie six weeks before Hoffa disappeared. I was 12 years old, we were living in West Memphis, Arkansas. I had known Chuckie for three or four months and I had come to revere him, and I continued to revere him after the disappearance, but basically, six weeks after my mom married him, he was in Detroit packing up his belongings because we were moving the Florida, Hoffa disappeared. I should say that Chuckie was Hoffa’s closest aid for about two and a half decades. He met Hoffa when he was nine years old and the men were practically inseparable for decades.

Jack Goldsmith:            Then about a week or 10 days, about a week after the disappearance, Chuckie became really the leading suspect. The person that the FBI focused on primarily as the person that they believed picked up Hoffa that afternoon at the Machus Red Fox, and drove him to his death.

Preet Bharara:              Pause there for a second. Hoffa disappears in 1975, your mother and your step-father married just a few weeks before that.

Jack Goldsmith:            June of ’75, yeah.

Preet Bharara:              Your how old?

Jack Goldsmith:            12.

Preet Bharara:              What’s your memory of hearing about the disappearance of Hoffa and how that affected your family?

Jack Goldsmith:            Well, I was actually fishing on a lake in Arkansas and came home, and my grandmother said, “I just heard on the news that Hoffa disappeared.” That was the first time I’d ever heard Hoffa’s name mentioned. But basically, after my step-father became the main suspect, unless you’re 55 or 60 years old or older, you don’t remember, but the Hoffa disappearance was a complete circus. It was a national sensation, front page news for weeks, it ked the evening news every night, it was a massive, one of the biggest FBI investigations ever. All of this, a lot of it centered on my step-father. Our lives turned into basically a circus because of the pressures of the investigation, because of all the reporters, things like that. It was wild and not very pleasant.

Preet Bharara:              Did you form a view of the guilt or innocence of your step-father when you were a kid?

Jack Goldsmith:            When I was a teenager, I was extremely close to and loyal to Chuckie, and he was really, as I write about in my book, he was really an extraordinary father at a time when I had never had a male figure in my life. He gave me all sorts of love and attention that I’d never had and really was just a rock in my life at a very important time in my life.

Jack Goldsmith:            Not surprisingly I guess, I accepted his world view. I loved the Teamsters and thought they were a great organization. I was very close with a bunch of mobsters, famous mobsters that he was friends with, and indeed leading suspects themselves in the Hoffa disappearance. I accepted his world view about the mob not existing or not being what the government said it was, and I never really believed that he was involved in the killing, despite the circumstantial evidence against him. One, because he was my step-father and I loved him, but two, the way he talked about Hoffa. I’m thinking about when I was a teenager, I had different views later. The way he talked about Hoffa in such reverential and loving terms, Hoffa was really like a father to him. Many people thought he was Hoffa’s illegitimate son they were so close, that I never really believed he could be involved in killing him. At least that’s what I thought at the time.

Preet Bharara:              But as you write in the book in very personal terms, you didn’t, at least for a while, remain close to Chuckie, your step-father.

Jack Goldsmith:            Not only did I not remain close to him, I basically cut him out of my life for about 20 years.

Preet Bharara:              Why’s that?

Jack Goldsmith:            What I just described was my attitude towards Chuckie in high school. I went to college, and in college I started to see Chuckie in a different light. Basically I started reading some books about the Hoffa disappearance and thinking about it. It turned out the mafia did exist, it turned out that my uncles Tony Giacalone and Tony Provenzano were famously violent gangsters. It turned out that my step-father had a criminal past that I wasn’t fully aware of. For a whole bunch of reasons I became worried about that association.

Jack Goldsmith:            I also became, and what I’m about to tell you I’m not proud of but it’s true, I became embarrassed by Chuckie. I used to revel in his union identity and his malapropisms, and I just loved the way he was and he’s a genuine, and he’s an America original, but when he came to college he embarrassed me with my professors.

Jack Goldsmith:            Anyway, for a whole bunch of reasons I grew distant from him, and I basically decided for career reasons, that it would be terrible to have an association with him. I basically broke with him when I was in law school, and didn’t speak to him for 20 years.

Preet Bharara:              Did you have a conversation with him or did you ghost him as the young kids say?

Jack Goldsmith:            It happened over time. The first indication was the week after I graduated from college. My name was Jack O’brien at the time because he adopted me when I was 13. I was Jack O’brien in college. The first move in the direction I just described was the week after college, to change my name back to Jack Goldsmith, which is the name I was born with. I wrote Chuckie a Father’s Day card in June of, I guess it would have been 1984, basically telling him that I was… I told him on the phone, but explaining to him that I was going to change my name. Hope he didn’t take it the wrong way. I still loved him, he was still a great father and the like. But it was devastating to him and he wrote me back a devastating 10-page letter, which I reproduced in the book, explaining just how much it had hurt him.

Jack Goldsmith:            That was the beginnings, and then over time, I just stopped talking to him, stopped answering the phone, and then I just developed a policy of not talking to him. I didn’t go visit my mom when he was there, I just basically cut him out of my life completely.

Preet Bharara:              You make a lot of, I think, heartfelt and personal admissions, including referring to, I think what you say is quote, “Your own selfish careerism,” because you decided on a career in the law, and then ultimately going to the Justice Department. Did that make you more concerned about the association for those reasons?

Jack Goldsmith:            Well, the association was something of a hurdle as you can imagine.

Preet Bharara:              I was going to ask, and this is a little bit inside baseball, but when I’m reading to book I’m thinking how did you fill out the SF-86?

Jack Goldsmith:            Well the first time I did, so that’s the form when you’re getting a security clearance, the first time I filled it out I was naïve. It was just after law school, I was in a clerkship with J. Wilkinson and the Fourth Circuit. I to get a clearance for a case I was assigned to. I fill out the form and they ask you for your aliases and for your step-fathers and the like, so I told them my name was Jack O’Brien for a certain number of years and that my step-father was Charles O’Brien. I didn’t say that he was the leading suspect in the Hoffa disappearance.

Preet Bharara:              We should also just note for people that the individuals who do the vetting and do the background check are actually in the FBI.

Jack Goldsmith:            Yeah. The FBI gets this form, I actually got a Privacy Act request and found their deliberations about it. It actually set off a small alarm in the FBI and they sent down two organized [inaudible 00:58:58]. I don’t know if it was an alarm or an opportunity, but they sent down organized crime investigators who I spent a rough day with, asking me about everything I knew about Chuckie, everything I knew about all the gangsters that I knew, what my attitude towards them were and the like, and basically, and again, I reproduce this in the book too because there’s a summary of what I said, I basically tossed Chuckie under the bus pretty thoroughly and I got the clearance. That’s basically what happened every step of the way until I got the most difficult and high level security clearance, working in the Office of Legal Counsel.

Preet Bharara:              Are you surprised as you think back, that you got the security clearance?

Jack Goldsmith:            I don’t fully understand what they’re looking for. I can tell you what the document said. The document said, at least the ones that I got my hands on, that this kid has separated himself entirely from this man, and everything else we know about him suggests that he’s not under his influence and doesn’t have any relationship with him. Therefore, we don’t think he’s a threat for blackmail or any other kind of threat, and therefore we think that this should be no bar to him getting a security clearance.

Jack Goldsmith:            I have to tell you, when I was being vetted to be the head of the Office of Legal Counsel in the White House, and they always ask you that question at the end, “Is there anything in your background that might embarrass you or the president during your confirmation proceedings?” I mentioned that, “Well, not unless you think that my step-father being the leading suspect in the Hoffa disappearance would get in the way.” That caused everyone’s eyes to bulge, but it didn’t get in the way by that point, because I had so clearly distinguished myself from him.

Preet Bharara:              But it’s fascinating to me. On a personal level, that part of the reason you were able to get over the hurdle is you separated yourself from him, and I take it from the book and today, you’re not so proud of that, and ultimately you reconciled and then you wrote this book. I want to ask you about that, and this book is a bit of a product of lots and lots of conversations in more recent times with your step-father. How do you feel about the decision to separate yourself from him so totally now? Because had you not done that, then maybe your career path would have been different. I wonder how you think about that today.

Jack Goldsmith:            Yeah, I can tell you very clearly how I think about it. I don’t admire what I did. There were a lot of ways I could have handled it differently. I didn’t know what my career was going to be like. I only had a very dim sense of what law school was about and what working in the government was about. I wasn’t even sure I wanted to work for the government, I just knew that the association wasn’t going to help my career. But there’s no doubt that some of the most important things I did in my legal career were only made possible because of this separation.

Jack Goldsmith:            But, and I open the book with this, once I got to this exulted position at the head of the Office of Legal Counsel, it turned out that first of all I stumbled upon an old, when I was working on the Stellar Wind case, I stumbled upon an old decision in which Chuckie had actually won a case in the Supreme Court, and he won a case in the Supreme Court because the government had been illegally surveilling him. This was shocking to me because he’d always told me about this but I didn’t really believe him, and he’d always complained about illegal government surveillance and how the government could cut corners in secret, even when they were enforcing the law against others. Low and behold, there I am in the Justice Department, working on a surveillance case, and it turns out that was deeply, legally problematic.

Jack Goldsmith:            That was the event that brought Chuckie back into my consciousness and led me to begin to rethink him, and over the next year, for a whole bunch of reasons that I describe in the book, I came to think that what I had done was wrong, what I’d done to him was wrong for a whole bunch of reasons, and so I sought his forgiveness one night in 2005. 2004 actually. When I saw him again for the first time really, maybe the second time, and he completely accepted me back into his life without question. He was just wonderful about it.

Jack Goldsmith:            Then we grew close again. We were very close when I was a teenager and then we grew very close again after that moment. We talked a lot about the Hoffa case over the next years, and his life, and at some point I became convinced that he had been falsely accused of the crime. I didn’t have all the information I had by the time I finished the book.

Preet Bharara:              Although he was never formally accused of the crime.

Jack Goldsmith:            Well he was not formally accused in an indictment, he was formally accused in an affidavit to seize a car ads being the person who picked up Hoffa and kidnapped him, and through leaks over the decades, he was definitely accused by the FBI through leaks of internal documents and internal theories, usually non-attributed federal government sources. But he’s been, from the very beginning, and this has been conventional wisdom not questioned by anyone, repeated in every book and most articles about the Hoffa disappearance, as the person who picked up Hoffa that day and drove him to his death.

Preet Bharara:              When you set out to write this book, what was your purpose? I guess another way of asking that is how do you describe what this book is?

Jack Goldsmith:            Well I can tell you how it started, what my purpose was, but then it grew into something much bigger. My purpose was just fairly narrow, and I said this to him when I asked him did he want me to write a book? He was telling me all these old stories about him and Hoffa, they were really interesting, and when I became convinced that he might not have done what he was accused of, I basically said, “Why don’t you let me write a book about this? I can give you a much fairer shake than history has given you.” That’s what I set out to do, to basically look at the evidence against him, to try to give an objective account of the Hoffa disappearance, which has never been done frankly. There are a lot of books about it, but they’re all basically fiction. They all repeat the early theory of the FBI, which has been basically repudiated within the FBI.

Jack Goldsmith:            That was my original goal, was to do the deepest dive possible into what actually happened. I interviewed every FBI agent that had worked the case, I became friends with many of them, I looked at hundreds, probably thousands of pages of internal government documents.

Preet Bharara:              Was it easier in some ways, to get access to documents and to people because of your former career in the Justice Department?

Jack Goldsmith:            There’s no doubt that it was, and that’s another irony. I blew off Chuckie and that enabled me to get to this top job in the Justice Department, I got to the top job and realized when I was there, maybe Chuckie was right and I was too harsh on him. Then frankly I think it had a lot to do with my Justice Department job gave me… the FBI took me more seriously, I was able to get documents from people, the fact that I’d written that book, The Terror Presidency. There’s no doubt that I think that my career in the Justice Department led these people to talk to me, yes.

Preet Bharara:              What else did the book become?

Jack Goldsmith:            It started off as a book to clear Chuckie’s name, and then it turned into a whole bunch of things. It turned in, first of all, to a reflection on father-son relationships because I went through various stages with Chuckie. I was disloyal to him I think and he maintained his loyalty to me, but we had a lot of ups and downs and fathers and sons, and he had a lot of ups and downs as a son with his two fathers, Jimmy Hoffa and Anthony Giacalone. It’s really the whole book weaves in and out of these very different father-son relationships and the lessons I learned about them.

Jack Goldsmith:            It also turned into a book about the origins of the surveillance state, which Chuckie and Hoffa were very much involved in back in the 50s and 60s. It’s a book about the rise of labor and mob, and then their decline, and they both went hand-in-hand, both the rise and the decline. It’s got a chapter about Nixon and his machinations in releasing Hoffa, and some Watergate-like corruption that he was involved in.

Jack Goldsmith:            My investigations took me in a whole bunch of directions, but the main thing I wanted to do, and I believe I’ve succeeded, is to show that it’s almost certain that Chuckie wasn’t involved in the disappearance. I have lots of FBI agents on the record saying that. That’s the current FBI view is that he was not involved. They have different a theory now that they haven’t told the world about. Lots of circumstantial evidence that he wasn’t involved. The circumstantial case against him fell apart. The main thing I set out to do is what I think I achieved about as well as I could, but then, as I say, these other things happened along the way.

Preet Bharara:              What did Chuckie think of the book?

Jack Goldsmith:            He went through various stages of the book, but by the end… He doesn’t understand the need for… He sees books about Hoffa over the decades, and for him, as far as he’s concerned, they’re all fictional. They’re all just made up stuff because they say stuff that he knows isn’t true, and he sees people reading this and talking about it and treating it as true, so he doesn’t understand my need as an author to be credible, and so he didn’t understand why I had to tell the truth about him about certain things he didn’t want me to tell about or why I had to tell the truth about me about certain things I didn’t want to tell about. He was skeptical and not terribly pleased about that.

Jack Goldsmith:            But I have to say, since the book has come out, he has been enormously gratified and very thankful. He called me a couple of days after the book was published and he said he had been avoiding reading it. He read the book, he said he read it three times and he’s not an emotional guy, he’s a tough guy, and he was in tears and he said to me he doesn’t know how I did it, how I figured out all this stuff. He apologized for being so difficult with me because he deflected a lot of my questions. He had lots of commitments to omertà that he tried to negotiate while talking to me.

Preet Bharara:              By omertà you mean the vow of silence.

Jack Goldsmith:            The vow of silence. There he told me a whole bunch of things about organized crime and his relationship with people, and then there’s some things he didn’t tell me and didn’t want to tell me, and this was a constant presence in our conversations, which is, again, a constant theme in the book. How much can he tell me? How much is he telling me the truth and the like?

Jack Goldsmith:            But in any event, he was basically enormously gratified by the book, in a way that really, and you asked what the book was about, that’s all I wanted. A lot of this book was me trying to make up for what I had done to him for 20 years. It was my effort to do something for him to make up for what I had done to him that was bad. When he, at the end, expressed in ways that are hard to describe, how emotional and powerful it was, enormous thankfulness for it, it just made me very happy and it’s what the book was about. I consider it a success just on that ground.

Preet Bharara:              Was this the hardest? You have written, this is your fifth or your sixth?

Jack Goldsmith:            I don’t know if it’s my fifth or sixth book, something like that, and yes, it’s by far-

Preet Bharara:              You’ve written so many you can’t keep up.

Jack Goldsmith:            Well I could count them if you wanted me. One, two, three, four. I think it’s my fifth book.

Preet Bharara:              Is it the hardest one?

Jack Goldsmith:            Oh, by far. Most of my other books took about a year to write because I knew what I was talking about, and this one took seven years to wrote because it’s hard to exaggerate how much misinformation and falsehood surrounds the Hoffa disappearance, and I had to wade through all these documents. I talked to Chuckie for many, many hundreds of hours about everything I could think of, I interviewed everybody that was involved, I had to learn about the history of the mob and the history of labor, history of the surveillance state, which I didn’t know all about. There’s just a whole bunch of learning that went into the book and a lot of research, and then a lot of time trying to figure out the truth. Then, on top of that, trying to write a story, it’s a complicated story and trying to make it accessible, that all took some time.

Preet Bharara:              It’s page-turning, which you don’t often expect from a law professor.

Jack Goldsmith:            Thank you.

Preet Bharara:              Has anything about the process of researching and writing this book changed the way you think about teaching?

Jack Goldsmith:            It changes the way I think, not about teaching, but about it’s furthered my belief about writing. Namely I’ve become, for a whole bunch of reasons, increasingly of the view that writing, especially about technical legal issues and hard issues should be more accessible. Lawyers tend to write in turgid prose, they tend not to tell stories, they tend not to appreciate the power of stories, they tend not to think enough about audience understanding. It definitely changed, it furthered my belief about what type of writing is good writing.

Jack Goldsmith:            Some of my [inaudible] views about things changed. I’m more cynical than ever, which is not to say I’m completely cynical, but more cynical than I used to be about law enforcement and government processes. Chuckie was really given an unfair turn over the course of his 40 years. Maybe I think more of labor unions than I used to, so I rethought quite a few things.

Preet Bharara:              What about the personal aspects of it? What I find wonderful about the book is that it is very personal. There’s a legal whodunit aspect to it and there’s a discussion of law and law enforcement, which is always near and dear to my heart, but you talk a lot about yourself. There’s a perception of people about folks like you, academics. I had a great historian on the show not too long ago, who told some personal stories and wrote a personal piece unlike any of the other things that she had written, and you’ve done that here. Even though some of the stuff is not rigorous analysis of the law, it tells people something about you, and to me, when I read things like that about Jack Goldsmith by Jack Goldsmith, it makes me respect, understand and trust your more turgid writing even more. Does that make sense?

Jack Goldsmith:            I think it does. Let me just say this, I tried to be as truthful and candid as I could about myself and about Chuckie, and I was pretty self-critical in parts of the book and I was pretty critical of him in parts of the book. I thought that was important for the times, especially when I was trying to make an argument for Chuckie and why I believed him in certain contexts. It’s actually very hard to be candid and honest about motivations and ambitions and fears and things like that, and I tried to be as candid as I could because I thought the book demanded it.

Jack Goldsmith:            Maybe, I don’t know, I tried to be credible. I thought it was very important to be credible because I’m basically arguing that my step-father was innocent of something he’s been accused of, of 44 years, and I’m obviously an interested party, so I thought it was hugely important for me to be honest and credible.

Preet Bharara:              Well I think you were, and I think that comes across loud and clear on every page of the book.

Jack Goldsmith:            Thank you.

Preet Bharara:              There was this big OIG, Office of Inspector General report that came out in recent weeks, that listed, among other things, a series of errors, I think that’s the word that they used, with respect to the FISA surveillance of Carter Page. It also said in top line analysis that overall, the Russia investigation was not opened improperly. You have said some things about that investigation, that report, what do you take away from it?

Jack Goldsmith:            Yeah. It’s complicated. It was a very discouraging report to me, for the identification of all of the errors and misrepresentations and omissions on the FBI side in what has to be one of the most consequential FISA applications ever in one of the biggest FBI cases ever. For those of us who have defended the FISA process as a rigorous one and one that can be trusted even though it takes place in secret, that report is a body blow. I found it very discouraging on that front.

Jack Goldsmith:            I found it unsurprising and correct that the inspector general said the investigation was properly predicated. I don’t understand why Attorney General Barr and John Durham, who’s investigating the origins of the Trump investigation for Barr, I don’t understand why they think it wasn’t properly predicated. I actually think that’s a very important qualifier. I think there’s more to come.

Jack Goldsmith:            But let me just widen the scope a little bit. I think the inspector general, Michael Horowitz has had four reports now, related to… four long reports and detailed reports, mostly focusing on the FBI related to the Hilary Clinton investigation in 2016, the Trump campaign investigation and some openings of the investigation in 2017, the Comey leaks and the like. I think that in the aggregate they paint a picture of a need for reform in the FBI. There’s some individual failings. Nobody’s perfect and in hindsight, any of the work I did in government or that you did in government, if it’s looked at after the fact and they’re pouring through your emails and your phone calls, it’s not hard to paint a complicated picture.

Jack Goldsmith:            The main thing that’s very important is we need a much better system for investigating campaigns and politicians, and because the FBI was basically operating with very, very little guidance in these respects, a lot of the mistakes they made, or what looked like mistakes in retrospect, were from a lack of guidance. I think, and this is a chapter in my book with Bob, there’s a real need to rethink not just some aspects of FISA, and we’re going to see what Horowitz finds when he does an audit to see of these failures were typical or unusual, but really the whole process of opening investigations against politicians and campaigns, and how they should be conducted and what the process should be and what the standard should be, because the FBI was making it up as they went along based on very general standards that didn’t apply to these concrete situations.

Preet Bharara:              Because it doesn’t come up that often.

Jack Goldsmith:            Yes. It doesn’t come up that often. It came up twice weirdly, and then how often does it come up that you think the president is a Manchurian candidate? Never. I don’t blame them for that. I think it was actually probably, a mistake is too strong a word, but I think it’s very fraught to open up a counter intelligence investigation on the president as they did, based on the view that he was not serving the national interest of the United States because he defines the national interest. But on the other hand, from the perspective of where the FBI was sitting, it looked like, they didn’t say this, but it seems to me it looked like that they, given all the evidence that was coming in, that they had a possible Manchurian candidate or something like that in his campaign. It’s never come up before actually, and I’m afraid going forward, that we need to think about these and related issues a lot more carefully and give the FBI a lot better guidance.

Preet Bharara:              The problem is, and you point this out in some of your writing, that on the one hand you want to give people guidance and you want to make sure that they’re reaching the proper thresholds for opening an investigation, they’re proceeding with various tools that law enforcements get, whether it requires going to court or otherwise. But at the same time, you don’t want corrupt politicians to be able to get away with it.

Jack Goldsmith:            Correct.

Preet Bharara:              And you don’t want to cause law enforcement officials to have undue risk aversion and figure you know what? It’s not worth my time. All that’s going to happen is I’m going to get in trouble, even though there’s a good faith basis to believe that this politician, maybe all the way up to the president or a nominee of a party, has engaged in criminal activity. How do you balance those concerns? Because they’re both real.

Jack Goldsmith:            Yeah, it’s a great question. There’s no general answer and this is a common problem in government. You’re trying to come up with accountability mechanisms and guidance mechanisms that don’t unduly chill investigations. I will only say that the FBI needs more guidance than no guidance, which is basically what it was operating under. Special investigative matters get higher procedural treatment up the ladder of the FBI, but that’s basically all the guidance that was given in these cases.

Jack Goldsmith:            For me, there’s an important evil here to be avoided, and that is the Hoover, the J. Edgar Hoover syndrome. The worry that the FBI is using its extraordinary powers of investigation and surveillance for political ends. That has to be guarded against both in reality, which I actually worry about less than appearance. It seems to me in a democracy, that is a very serious problem that should have a high priority of being avoided, so that’s the reason why I think we need to think about more elaborate procedures and more elaborate standards, fully realizing that it runs the risk of not being able to investigate and pursue at the margins, people that maybe should be pursued. I just think that right now the balance is out of whack and it needs to go in the other direction a little bit if that makes sense.

Preet Bharara:              Do you have any concern that by adding hoops or other threshold requirements, that it makes it easier for some future bad act or bad political appointee to stop an investigation?

Jack Goldsmith:            Yes I do. I do worry about that very much. Bob Bauer and I write an essay in the Atlantic. There are all sorts of possible mechanisms for guarding against this, so when… There are just risks in every direction and it’s a question of balancing them. Every potential reform has downsides and can be weaponized, and I really don’t want to deny that. There are ways to deal with these problems. You can have reporting not just to a senior Justice Department official, but to a senior career official. You can have reporting to Congress. Those run risks in various directions.

Jack Goldsmith:            It’s a complicated process that has a lot of balancing, but I just think where we’ve been in the last three or four years cannot be the right place to be. It’s just the controversies that have come up that go to the heart of our democracy and the FBI’s role in investigating politics has just been a disaster. Again, I’m not blaming that on any individual, I just systemically it hasn’t worked and there has to be reform. It may come at the cost of these other things and we have to figure out how to deal with those costs, but I do think there are ways to mitigate these risks.

Preet Bharara:              I want to go back to the Office if Legal Counsel that you headed for nine months, and we made reference to it at the beginning of the conversation. Probably the opinion that the America public had never heard of before, two opinions I guess that the America public had never heard of before, and now probably sit in their minds as the two most controversial things ever to come out of that office are the conclusions that a sitting president of the United States cannot be indicted. That was binding on Bob Mueller, which is a point of some contention and controversy. To anticipate, maybe this is a subject of one of the chapters in the book you’re writing with Bob Bauer, for after Trump. My recollection is that the first OLC opinion on that point came after Nixon, and the second one came after Clinton. Do we need to have and is it appropriate to have another opinion and a review of the body of law within the OLC after Trump?

Jack Goldsmith:            Actually I don’t want to speak for Bob, but I think he and I actually have different views about this. I think that, for very practical reasons, those opinions are probably correct. I can get into it if you want, but the basic idea is that it’s very hard for the president who controls law enforcement for the country under the constitution to effectively indict himself. That’s what you’re talking about and I think that the president can control that indictment if he wanted to exercise his executive powers.

Jack Goldsmith:            There is, of course, another remedy, which is impeachment. Let me just say, I don’t think there’s a crystal clear, obvious answer from the Constitution about this question, but your question was should we rethink it? I think invariably it’s going to be rethought, especially is a Democrat wins the election. Several candidates have already said that they’re basically going to order it to be rethought, I think one said that they were going to order it to be reversed. I think that’s actually a bad model for how OLC should operate. We can’t rely on law enforcement to deal with every problem with the presidency and it’s just mechanically very, very hard to see how you indict and prosecute a president while he’s in office. Again, there’s another mechanism for that, and it’s called impeachment.

Preet Bharara:              But okay to investigate a president while in office?

Jack Goldsmith:            I think it is. We’ve had many investigations of presidents while in office, yes. Again, this raises complications too. There are no easy answers here because the situation Mueller was in is I think there might be criminal wrongdoing here, I can’t indict the president, so basically he collects the evidence and leave it for another day. Although Barr made the determination that there were no prosecutable crimes.

Jack Goldsmith:            Again, we’re talking about design of constitutions and design of accountability systems. Frankly there’s never a perfect solution, it’s always a question of mitigating risks at the margins. Look, I think that the OLC opinion will be rethought eventually. Whether it will be reversed I don’t know. It depends on who the president is, it depends on who the head of OLC is, but I actually think those opinions… Randy Moss, who’s an extraordinary legal mind, head of the Office of Legal Counsel now and federal district court judge, he was the one that wrote the opinion in the Clinton administration. He was not a lackey for Bill Clinton. His opinion is very powerful and it’s also very candid about the weaknesses and the arguments and the reasons for it. It wouldn’t be my view that we should rethink that, but I think it will be rethought.

Preet Bharara:              Jack Goldsmith, you have been very generous with your time. I really appreciate… I could go on for another couple of hours.

Jack Goldsmith:            Thank you Preet. It was a good conversation. I appreciate it.

Preet Bharara:              The conversation continues for members of the CAFE Insider community. To hear the Stay Tuned bonus with Jack Goldsmith and get the exclusive weekly CAFE Insider podcast and other exclusive content, head to cafe.com/insider. Right now you can try a CAFE Insider membership free for two weeks at cafe.com/insider.

Preet Bharara:              Let me end the show this week with something that has nothing to do with either Iran or impeachment. It’s about a case that we talked about on the CAFE Insider and I think also on the Stay Tuned podcast some months ago, I think last summer, involving a person named Curtis Flowers. Curtis Flowers had been charged years ago with killing four people inside a furniture store in Winona, Mississippi. The reason we were talking about Curtis Flowers is that his case had taken a long and winding road and had just landed in the Supreme Court because Curtis Flowers’ lawyers claim that he was treated unfairly in prior trials. The Supreme Court voted seven to two that the prosecutor in the case, the district attorney named Douglas Evans, had violated Flowers’ constitutional rights.

Preet Bharara:              How had he done that? Over the course of six different trials of Curtis Flowers, Doug Evans, the prosecutor, struck 41 out of 42 potential black jurors. At the final trial, Doug Evans asked potential black jurors an average of 29 questions each, he asked the 11 white jurors only an average of a single question. What’s also notable about the case is that the district attorney, Doug Evans himself personally tried the cases, which is not so ordinary.

Preet Bharara:              The Supreme Court, as I said, ruled in favor of Curtis Flowers. The justice who wrote the opinion for the majority, the seven-two majority, no liberal, it was Justice Brett Kavanaugh who stated, quote, “The state’s relentless determined effort to rid the jury of black individuals strongly suggests that the state wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all white jury. We cannot ignore that history.” Close quote. That’s Brett Kavanaugh.

Preet Bharara:              Now at the time that Anne and I were discussing the case, we were not necessarily optimistic about what the future held because the Supreme Court, by its decision, did not set Curtis Flowers free, it merely set aside the last verdict and said he had to be tried again. We were left with the prospect of the case going back for a seventh time to the same district attorney in Mississippi, who would again try the case, and who at this point, Anne and I discussed, had lost all claim to being fair and impartial and committed to a fair trial for Curtis Flowers. By the way, at the same there’s been other evidence, aside from the procedural issues relating to the jury, that suggest maybe Curtis Flowers was not guilty.

Preet Bharara:              Why am I telling you all of this? Well, this past Monday, Doug Evans, the Mississippi district attorney asked to be recused from the prosecution of Curtis Flowers. His letter is pretty short. Among other things he wrote, quote, “While I remain both confident in both the investigation and jury verdicts in this matter, I have come to the conclusion that my continued involvement will prevent the families from obtaining justice and from the defendant being held responsible for his actions.” Close quote. From my perspective, his recusal will make it more likely that there will be a fair trial for both the government and Curtis Flowers.

Preet Bharara:              Now some people may argue well, what difference does it make that he recuses himself, assuming he abides by the recusal? Which means he cannot oversee the prosecution or the trial, he cannot direct people, he cannot make the assignment, that there is for all purposes an acting district attorney who is someone other than himself, they will make independent decisions. Hypothetically, the next prosecutor assigned to the case, even without the involvement of Doug Evans, could engage in constitutional misbehavior, but we hope and expect that won’t happen given the track record, given the Supreme Court’s rebuke and given public attention.

Preet Bharara:              One more note, some of the public attention that came to the case grew out of a podcast produced by ame Public Media called In The Dark. During the second season of that podcast released in 2018, they explored Douglas Evans’ pursuit of the Flowers case and examined a lot of issues relating to forensic evidence, so who says podcasts don’t have power? We’ll continue to follow the case and tell you what happened.

Preet Bharara:              Well that’s it for this episode of Stay Tuned. Thanks again to my guest, Jack Goldsmith. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics and justice. Tweet them to me, @PreetBharara with the hashtag ask Preet, or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET. Or you can send an email to staytuned@cafe.com. The executive producer is Tamara Sepper, the senior audio producer is David Tatasciore, and the CAFE team is Julia Doyle, Matthew Billy, David Kurlander, Calvin Lord and Jeff Isenman. Our music is by Andrew Dost. I’m Preet Bharara, stay tuned.