Targeted Killings: Suleimani & Hoffa (with Jack Goldsmith)


From cafe welcome to stay tuned. I'm pre- Berrara so the real question. Here this is not going to happen from the executive branch constraining. The president will happen in one of two aways electing a president who feels that the United States should be more constrained and then a congress. That's going to stand up exercises constitutional responsibilities. Both of those things. Things are easier said than done. That's Jack Golson. He's an expert in national security law. A professor at Harvard Law School and a CO founder of the Law Fair Block Doc. 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 shadow is about his personal connection to one of the greatest unsolved mysteries of the twentieth century. We get into all of that. Plus Goldsmiths analysis of the legality of Qasim Salamis targeted killing his tenure at the helm of the office of Legal Counsel in the Bush administration and the state of the law as it stands today. That's coming up. Stay tuned this episode is brought to you by personal capital. Personal capital provides financial advice from a team of registered advisors and gives you the online financial tools so you can get a three sixty degree view of all your money all in one place get more information at personal capital dot com personal capital invest with logic land with heart. It's hard not to feel bombarded by an endless stream of bad news but have hope check out the podcast future. Hindsight you can listen to host meal. ATMOS- interview activists and experts in justice democracy and equality each week. You'll discover why these citizen change makers have hope and passion as well as gained insight on what we can do to bolster elster our civic life. Listen now at future hindsight DOT COM or wherever. You enjoy podcasts. Here's the first question answering in twenty twenty comes from twitter user. Mrs Frith who asks at Pre Berrara will this madness ever ever end. My answer is no hi. This is Don Wiggins from spotswood New Jersey pointing Monday evening so we just heard today that John Bone says he will be willing to testify if fifteen. That's right for me is fairly specific language. And when I think I'm hearing is that if you ask me testify I won't but if you subpoena me I will. Why would we do that? Love the show. Thanks very much 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 essentially some witnesses do not WANNA look like. They're dying to come testify. They're dying trying 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? That's not their choice. They're just complying with legal requirements. And they don't want to defy subpoenaed and go to court and potentially potentially get reprimanded by a court and forced to testify. After a long protracted process I know it seems odd to a lot of folks but even my own 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 now. Just repeat again in John. Bolton's case there's a certain amount of gamesmanship James Manship. 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 us so while it is true that the standard procedure for a lot of witnesses. Who Don't WANNA look too eager to testify in John Bolton's case maybe some amount of self interested strategizing going on as well well? This question comes from twitter user casual joker who asks since the articles of impeachment haven't been transmitted can house open backup the inquiry call additional witnesses. My understanding is that they truly can call additional witnesses. Continue their enquiry. I'm not aware of any rule. Oh that says that. They're inquiry has to have ended at the time that they voted on articles of impeachment. 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's made clear that they will continue to look at evidence and continue to fight for documents. Yes I have been speculating. As have others that in light of John Bolton's recent proclamation that he would comply with subpoenas issued by the Senate that the house should issue subpoena the John Bolton because I don't I don't understand on what basis you can decide to comply with one chamber subpoena but not another chamber subpoena so I don't know that it makes a difference whether 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. This next question comes into tweet from twitter. User Sir Scott in Shaker. Who Asks Me? Please explain why. It's not correct primavera. I'm neither an attorney Nora constitutional scholar I'd love to hear you expound on this and what he's referring to is my tweet saying not correct responding to Senator Marco Rubio's tweet in which he said. The testimony evidence considered in the Senate impeachment trial should be the same testimony and evidence the house relied upon. And the reason I said that's not correct as virtually everyone else who has a law. Degree has also pint on twitter and elsewhere is a 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 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 out and to the extent that those things analogous the criminal case versus impeachment and trial in the Senate. There's no rule is 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 we heard from in the house especially early because various witnesses who have direct knowledge including among other people. John Bolton were prevented from testifying in the house. So Marco Rubio does know what he's talking about and is making a political statement founded nothing other than some partisan self interest that he seems to be embracing This question comes from twitter. User Terry Post who asks at Premera. What are your thoughts on a possible? six-month sentence from Michael Flynn Ciller 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 in December of two thousand eighteen. 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 twenty eighth and 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 though it was serious conduct and among the reasons for that among the reasons for prosecutors being sort of lenient in that case is that the range council by the sentencing guidelines was only zero to six months. They noted the Michael. Flynn had a long history of public service. The United States of America in uniform notwithstanding the lying more recently and that he'd accepted responsibility. And 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 WANNA WANNA know that if you've pled guilty that not only factual basis for that but also that you have remorse and you've accepted it and you're being front about it so the prosecutors this time around are no longer saying that the Senate should be at the lowest end of the guideline range meaning no jail time. They are now saying that he should be sentenced. Michelson should be sentenced up to six months. Wants so possibly up to the maximum to 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 and 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 in acceptance of responsibility. In fact 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 he has sought to blame almost every other person entity involved in his case including his former counsel and as we know. Judge Sullivan has not seen particularly patient with these kinds of shenanigans. Here's how the New York Times put it. Mr Flynn's cooperation took a star turn. He fired his well. Respected lawyers and hired. Sidney Powell a truculent former federal prosecutor embraced right wing conspiracy theories suggesting Mr Flint had been a target of politically biased. FBI Cabal and accused prosecutors of misconduct in his case every allegation of that kind of behavior has been rejected by the judge. So what am I thought. Possible six months sentence given his conduct giving his counsel's conduct given the nature of the underlying conduct for which he was charged. I think six months would be fair. The we'll see what the judge does Stay tuned there's more coming up right after this. Hey Stay tuned listeners. Sure the holiday season maybe 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. We're bringing in new legally complex issues. Start Twenty twenty 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 weekly note from me bonus content from stay tuned and more head to cafe dot com slash gift to join today. That's cafe dot com slash gift. My guest this week is Jacqueline Smith. He's a professor at Harvard Law. School Katina's are notoriously difficult. Course he's also a senior fellow at the Hoover Institution and a CO founder and active contributor to l'affaire Goldsmith. Join me on Monday to talk about the implications of trump's decision to launch a strike targeting and Ronnie and General Qassem Sulamani. We get into whether the decision was lawful and whether that even matters the significance ends of prior. LLC OPINIONS The power a precedent and the stretchy concept of imminent threat. We also talk about his new book in which Goldsmith writes about the fact. His stepfather was a top suspect in the disappearance. Of One of history's leading labor organizers Jimmy Hoffa. That's coming up stay. Two It tackles myth. Thanks so much for being on the show. Thank you for having me. This is a long time coming. I wanted to have you on for a very long while. I don't know if you remember. 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 Ashington I guess in two thousand and five seven I think the terror presidency the terror presidency and you gave a nice talk so it's nice to have you on. Finally I don't remember you come into the book talk but I remember having a beer afterwards. Yes I remember that I remember that. Also keep that secret. What happens over beer stays stays there so 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 mentioned it now called in Hoffa's shadow a stepfather disappearance in Detroit and my search for the truth? And 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 so we'll come back to that. But congratulations on writing that book. Thank you we set up this interview some weeks ago and I thought we talk about certain topics including the book which we will but in the interim just last Thursday Thursday recording this on Monday afternoon January sixth it turns out that you are the perfect guest to talk about a whole bunch of other issues relating to the United States killing wing of an Iranian General Kassim Selemani. So maybe we start with that sure and I know you've you've made some statements and you've written some things about the legal aspects aspects of it. Which is what I'm interested in talking about? I'm GonNa ask you eight overbroad simple question first and then we'll we'll break it down. There are a lot of things that are confusing to people. Even to lawyers don't necessarily practice in this area too confusing but the question is was it lawful for the United States to intentionally kill General Sulejmani outside the Baghdad airport. So let me start with a caveat the answer I'm going to give is yes under. US precedence in the 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 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 national principles or 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 and so I'll just say this. I think that the strike is easy to justify legally and I wanted to distinguish between whether it was lawful and whether it was a good idea I I think it's easy to justify legally based on the president's that have been established since nine eleven so let's talk about the constitution and article two would pertain to the executive branch for those at home. We haven't been paying attention to civics in a while. What does article to say about what the president can and cannot do in this context so article? A two says practically nothing on its face about the president's military powers designates him as the commander in chief the original understanding of that provision was 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 the presidential military powers except possibly and this is the core presidential military power the president's power to use military force in self defense. And that can be self defensive. The Nation or it can be self-defensive troops ever since the founding presidents have interpreted this commander in chief Klaus to give them more and more power to US unilateral lateral force abroad ever expanding theories across the decades and centuries and across administrations and presidents have built up through. Well I'll see opinions and practice. In congressional acquiescence a very robust set of precedence that gives the president wide discretion to use force without congressional authorization. And 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 by referring to the office of Legal Counsel which we've discussed a lot on the show all right within the Justice Department and of which you were the head for about nine months? During the Bush administration with respect to the Oval Office. There have been opinions over time that do bear on this question right. And what are those opinions say. So they're hard to summarize And again I don't think that when I'm about to tell you is necessarily on point for this strike but here here's they basically say in recent years the basically say that the president has very broad powers under article two to US unilateral military very force without congressional authorization. If there's an so-called national interest and Elsie has defined what a national interest is in ever-broader waterways to the point where I can't think of a natural national interest that the president would want to use force for that wouldn't count so Elsie is interpreted read 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 have it threatens ground troops that in that circumstance the president might. I'd have to seek authorization from Congress. But very speculative that's 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. That's the main thing that this theory has been used primarily to justify what some people call war distance because the basic theory Correa's if there's no danger of US troops being harmed and there's not a whole huge danger of escalation then. The president can basically use force when he wants and and that basically means that the type of force has been using the last fifteen years. Rosen's Obama became president. I guess force from the Air Special Operations on the ground and cyber Weber. These are not things These are things that the president basically can do and I'm generalizing bit but basically can do without congressional authorization. LLC opinions have become come controversial and the average person in America doesn't fully understand you know why we should be. According those opinions wait for example in the controversial case of the the United States and whether or not he can be indicted. Long running commentary on this. While Bob Muller was doing is investigation people would say will just. Because you're too we'll see opinions that say something about this. Yes 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 or we'll see the opinions carry any weight. Yes it's very fair question in a very fair concern. I think there's a straightforward answer and the straightforward answer. Is that the President 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 and so much of the law that's relevant to executive branch practice there's no spring court jurisprudence on so there's no bream court jurisprudence on the question of whether the president can be indicted so it falls to only one actor 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 or else he tends to interpret presidential power broadly it tends at the margins to protect the president. It tends to have a separate jurisprudence comes from the Supreme Court just a feature of our constitutional landscape and it is what it is but let me just say one more thing in the investigation especially the reason that those those opinions were binding on Muller is because the regulations basically said so and this is what Muller said in his report the regulations basically said and this is the way muller interpreted it that he was bound by O. L. C. opinions because he had to follow the policies and practices of the Department of L. C.. Had ruled on this twice once in the Clinton administration and once I believe leave the Nixon administration or maybe just after and Muller said he was bound by that because that's what the special counsel regulations specified. So that explains why he was bound by these opinions. Now let me say one more thing you know. 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. Their issues on which Congress has a hard hard time legislating so we don't have to just lie down and accept them I. I'm not suggesting that. But there's a very practical need for why the executive branch needs to do this and in the case he was actually legally bound by it. Because there are gaps in one sense. We'll see opinions fill gaps that are not provided for scenarios are not provided for in the constitution or another statute action regulation. Because they don't get litigated. He's that's exactly the point so so much of what I did it. Oh well see was addressing questions that had never come up in court and that frankly could never ever come up in court so in one sense it's a guidance giving exercise you hope where everyone is acting in good faith where the president is acting in good faith and want to good faith advice and in good faith advice of being given. But you've you've read obviously a million alcee opinions you've written Elsie opinions you've criticized. We'll see opinions even while in office and even sought to withdraw alcee the opinions right correct. So they're not the not infallible. They're not infallible anymore than judicial opinions are except there's no review of these causes. I think I was thinking about Supreme Court Decisions Nations I mean a LLC overturning itself or criticizing itself as Ken to the Supreme Court doing so. Because there's no higher authority unless of course an issue oil pines on does come up in court. In which case the judges get the last call I think you you once referred to an LLC opinion maybe even in your book. Because I read lots of sources. So I'm forgetting now and you had an interesting zing description of some kinds of old see 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 opinion that's correct that's a feature of our system and it's a lot of people think that's usually problematic matic and it is. It has the danger of course and and some people think this is what happened in the early Bush administration of oil see simply kind of going off the rails rails and writing a blank check for agencies to do anything so it's very important who's in that office it's very important that that office adhere to its processes season. The cultural rules that has developed over the years. I've written a lot about this. Oilseed tends to interpret the law. More broadly for the president just like courts tend to interpret law broadly for themselves. But there is that consequence in the criminal context when the Justice Department through. LLC says that practice 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. So that's an example of that impact. Let's go back to the killing of of Sulejmani so we talked about Article Co two of the Constitution which is pretty open ended A. We'll see opinions. That do some gap filling but there are other bases of authority that I think the administration has or will rely upon on one of those is the F. A. couple of Ao maps the authorization of use of military force. Dating back to right after nine eleven. Do those provide any basis for justifying the killing of Silla money. I think they do in combination with a self defense power and let me explain what I mean so the first question you have to ask yourself is what our troops doing in Iraq in the first place. Why do we have troops on the ground and troops in the air in Iraq? The basic answer is legally. Is that Congress has authorized them to be there to to use force against al-Qaeda and the Islamic state And this authority traces back to the original nine eleven a. m. f. the nine eleven a. m. f. did not authorize contemplate war against the Islamic state but the Obama Administration interpreted it to extend the Islamic state. Congress has the sense quite self consciously through appropriations approved that interpretation. So there's no doubt the. US forces are lawfully in Iraq pursuant to that a UMF and they've also also received the consent eliminated consent. And I'll get to that later if we're talking about international law elimidate consent from Iraq to be there so the question is and this is where I think the administration's nations 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 for and I want to emphasize before I make just because something is lawful does not mean it's a good idea but the argument is that. US troops are there lawfully. They're engaged in conflict with the Islamic state and other charity organisations and in the course of that presence they've been attacked by forces backed by Iranian militia forces. And it's an an old principle that forces wherever they are when attacked by any entity can use self defense in response to those attacks. That's the principle that the United States is relied on in Iraq and Syria and Somalia to use force against entities. That attacked us once we were there. Even though we weren't in a conflict with those entities so do you think it makes a difference that Sulejmani was killed while he was in Iraq where troops are versus a different scenario in which we tried to target him and kill them while in Iran. I don't think it makes a difference from the domestic law perspective from that. We're just talking about whether Congress has authorized the president's acting lawfully. No I don't think so. It's simply simply a matter of once. You determine that you're acting in Self-defense. I think then you can go after members of the forces that are attacking so monty was alleged to have led this now. I'm assuming coming 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. So 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 but self defense events rights require among other things do they not a finding of imminent threat or can you take an action and justified by self defense when there's no future threat but you were just punishing someone or retaliating against someone for a prior bad act as it. Does there have to be some anticipation of future harm. There doesn't have to be. I can string off the list of precedents. The the bombing in Libya in eighty six in response to Libya's bombing in Germany and the German nightclub Bill Clinton's use of force in Iraq in response to the attempted into this assignation of George H W Bush when there is an attack and you don't need as much of a of an imminence product if if there's a pattern of attacks which has happened in on and moreover the United States has interpreted imminence to be very broad and stretchy concept again going you call it a stretch. Yes yeah and it. Basically the test as articulated by the Obama Administration most most clearly is a multi factor test that takes takes into account a whole bunch of things but one of the things that includes is. Has there been a pattern of attacks before and the idea is if there has been a pattern attacks then you can act in self defense even without evidence of something specific this coming in the near term so let me put this another way imminence in the law at least as interpreted interpreted by the United States does not mean what are ordinary concept of imminence is when the United States for example. I think it was in two thousand. Fourteen used force against an obscure terrorist group in Syria the correspond group. They claim that there was an imminent threat and when they defended this they said well they were planning and we didn't want to get them to get to execution and we weren't sure if it was going to happen in weeks or months or even six months so we have a very stretchy conception of Eminence so given patterns and practices and the am and various other things alcee opinions since nine eleven. Would your analysis different over the question. Be Closer one if you went back in time and we were discussing the same exact strike in nineteen ninety nine. That's a great question. The answer is that there were for precedence on the books going back for example to there was a nineteen ninety eight planned covert operation against Bin Laden and Afghanistan that raise. There's a lot of these questions especially the hard question about whether a targeted killings and assassination and there was a ruling back then bio L. C.. That it's not an assassination if it if if it didn't exercise of self defense but let me extract from that and ask your question a different way. The point going back to ninety eight or ninety nine is a good one because does there have been so many precedents so many actions so many expansions of authorities in the post nine eleven context both con through Congress and especially through executive interpretation tation that written elsewhere. The constraints on executive power under the doctors at the executives developed and the Congress's done not much to push back against against this constraints. Just they're not very powerful. You had a tweet and by the way I should tell listeners that you should follow jackals on twitter during formative instructed us you wrote in the last day or two. When a former administration especially the Obama Administration does the legal analysis and takes the strike and there was no pushback that precedent suffices the next time well elaborate on it? 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 or CIA you're looking around for authorities to do something which are looking for a precedence precedence incidents that have been upheld and maybe there's an opinion on something that's on point or nearly on point and the Obama Administration came into power after the Bush administration and it was very skeptical. A lot of a lot of the Bush administration legal theories it through a lot of them out but it developed a lot of its own very powerful and robust theories and you know the Obama Administration had a kind of of a Patina of virtue about it. So if you heard the trump administration and you're looking at back at these Obama precedents there like gold. Precedents are always gold in these contexts but especially coming from the Obama administration because they had such an emphasis on law such a heavy emphasis on legal process. US There were a lot of speeches about it has so I just think that In an again this is not quite a point about legality. Appointed how the government operates if. There's a precedent president in the past and especially from another administration from a different context. For what you WANNA do. Then that's powerful support for its legality within the US U. S. context with to Bin Laden and by daddy versus Sulamani. I guess one difference in their characteristics is that notwithstanding the fact that people referring Sumani correctly and in good faith as terrorists and responsible for a lot of bad things. I don't think anyone said anything. Good about that person and anyone in this country who's unhappy about his death separate from what the consequences will be doesn't make a lot of sense to me but the difference between UBS for example and Baghdadi versus money is that Sulejmani is in fact a government official all of a sovereign state. Forget about the wisdom of it. Because we're separating that out does that affect the legal analysis. I 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 why it should matter. Under the theory that articulated namely if our forces are somewhere for a reason and their attack from another source we we can use force against that source. Whether it's a state actor or a non-state actor this is kind of what we've been doing in Syria. We are there this is in the past I think in the Obama Administration Gratien were training troops there. We have troops on the ground supporting those troops. Those forces get attacked by Syrian forces. And we use force in self-defence against state actors Syrian enforces. Does that mean then by that logic can donald trump at any moment decide to launch a strike against the supreme leader of Iran. I mean I think on the same logic. The answer's Yes and that's I understand. I understand just to be clear again. You said a few times but we should say once more one more time time. There's lots of things that are lawful. You can legal argument for that would be a bad idea. Perhaps maybe even a catastrophic idea do but as a matter of of legal reasoning using we could launch a strike against the supreme. I wrote it. 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 presidents. And and 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 then. The past president is certainly Obama. Did is something that a lot of people warned about under Obama. They when they are developing these precedents about target killing and these understandings about self defense. And I'm William Unable 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 talked a lot of people warned in the hands of a president who is less scrupulous can lead to disaster and I've been waiting and waiting for Donald Trump for his impetuous nece to extend to The commander in chief discretion to use military force and he's got a lot of running room given the US precedence that have developed the last twelve. Fifteen years I don't think that's a good thing. The expansion of these precedents have been worse to me for especially the mastic law precedents. But the that's where we are and there's plenty of US law to support what she's doing so on this question of nation 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 been talking about as I understand it. There has been for some time a policy adopted by these ECO branch to not not engage in quote unquote assassination. Was this assignation not on the executive branches. Understanding that policy goes back to the seventies and the church committee and the CIA as assassination adventures in the sixties and fifties and to stave off a statute. That you 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. Yeah what does that. What does that prevent? It did not clearly what that so 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 peacetime and that builds up to the exception that I'm about to tell you about and it dries it had a prehistory but it really had. Its it's the most important interpretation from nineteen ninety eight again. This is pre nine eleven precedent. And this is all what I'm about to tell you all discussed in the nine eleven commission report. There was a covert action approved by the Clinton administration to capture and if necessary kill bin Laden in Afghanistan in Nineteen Ninety eight and their lawyer 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 oils he was involved. It may have written it. I'm not sure the lawyers concluded that if you're acting in self-defence then you're not committing assassinations. Not Political it's military whether that's right or wrong that's been the US understanding for many decades. Now it's sorta seems quaint. Now you know nine eleven that Bin Laden even at that point three years before nine nine eleven had engaged in terrorism and caused suffering and loss of human life. That was a real legal debate. Kind of odd. It wasn't but it was a the nine eleven commission commission. I spent a couple of pages on the hand wringing that that Whenever that that issue again as as Bobby Chesney pointed out to me in a tweet yesterday a it actually goes back to the nineteen eighties and intimate interpretations in the in the nineteen eighties? That made that same legal move. But that's the definition that's been given two assassination summation I mean. 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 the May eight maybe 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 I mean it would depend upon the imminence of the threat right. But you're pushing me into a bunch of scary you're pushing me into a bunch of scary hypotheticals and I'm quite happy to go there. Don't do this class I do. And I'm happy to say based ASED on again on the practices and precedents established in the last twenty years and even going back further it would really depend on what the nature of the threat was and what the nature of the build up was us. But there's no elsie precedent written in two thousand and two in the George W Bush administration that it was not withdrawn by 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 the threat of development of weapons of mass destruction. So we've already crossed that Rubicon in terms of oil C- of in a lot of people think that's a bad opinion it's not the most rigorous. Oh Elsie opinion ever written but I think we should just step back and say that is a bigger lesson here and the bigger lesson is the law permits the president of the United States to do all sorts of horrible all unthinkable. Things that he shouldn't do and that presidents normally would never think about doing. We've always assumed that there's a modicum of and has BENEFA- assumption there reasonableness and self-discipline listening to experts and the like in our presidents and these precedents are frankly quite scarier here under President trump who doesn't pay he necessarily experts who his impetuous and mercurial who seems vengeful who seems very reactive active. So it's it's the law's not gonNA save us here so that leads me to my question here. I know that you don't WanNa talk about the wisdom of the actions being taken we're talking about the law is it's actually. Don't have an informed view about that but what about your view of the wisdom of the state of the law as it stands now. I know you're saying the law is not going to save us. Because of what the landscape has become is. Is that a good thing. Should there be in future in future years much greater constraint. Yes little plug from next book. I'm writing a book with Bob. Our with with Obama's White House counsel and writing a book former guest of the show. Oh great we're writing a book called after trump and we have a chapter on more powers and we have a chapter on these very issues. Because because I'm a believer in robust executive power to defend the country period. But I do think that the precedence and the practices have gotten gotten out of control and 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 uh of this growing presidential power and these growing residents and the expansion of this kind of below the radar screen war around the world. They've actually kind of on the sly. Hi approved it. There was a lot of hand wringing when President Obama extended the AMF to the Islamic State. But the fact is that Congress has consistently appropriated in support of that war ever since that legally suffices. So the real question here. This is not going to happen from the executive branch constraining. The president will happen one of two ways. Electing a president who feels is that the United States should be more constrained and then a congress. That's going to stand up and exercises constitutional responsibilities. Both of those things are easier said than done 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 remarkable statement but there aren't a lot of things folks 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 hard time writing elsie of anything about the president's are very very permissive. 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 would do that with the president of the United States rely on the electorate to make sure that you put in those positions people who will observe rationality and acting good faith an exercise. Wise judge exactly. I couldn't agree more and I think one of the top of the list of the things that we've learned about. The trump presidency is the importance importance of that assumption. It's absolutely it's so much more important than I realized or that anyone realized it was kind of invisible because it wasn't really challenge because wasn't tested did it wasn't nobody went to the break. I guess one way to wrap up this discussion between two lawyers who are going through what the landscape is and what the president's are you're is. How much does this even matter? You know I I think someone said on social media over the weekend you know all these folks were complaining that this was a violation of law or this rule rule was transgressed are missing the point that I don't WanNa put words. Your mouth is as me speaking in paraphrasing the person on the on the Internet. The real story here is that you have an out of control. President didn't who may not be fit for the job and that's where the debate should be taking place not on whether particular protocols or oil see opinion phrases have been violated. I couldn't agree more with that. We always tend. The lawyers tend to nominate these discussions and they tend to yell back and forth about it is legal L. It is legal. It isn't isn't legal and that's just practically irrelevant to what's actually happening. And what the real dangerous and I have to say. With regard to trump trump of all the things all the norms he's broken and all the institutions attacked. This is the most worse than thing he's done. I mean using force here in in a seemingly emily impetuous way at least the early news reports suggest his followup 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 in chief but their outlandish things that no commander in chief should be doing and the focus needs needs to be on. I think on the rightness wrongness what the president's doing and how to change that you mentioned war crimes. I presume you're talking about what everyone has has been discussing. Donald Trump's tweet where he's existed that they would be fifty two sites that have been designated for retention in among them. There would be sites that are important culturally truly to Iran. That's one more 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 and 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 now. I have to say EH. I seriously doubt I would be very surprised if the Defense Department would follow either of those orders. I think you would see massive. Push back and resignations before that happened. I don't expect that to happen like all that. All that pushback. We've seen so far we've seen a lot of pushback. There's been I think the I think. The trump one of the the most remarkable things about the trump administration is the extent to which people ignore him in the executive branch. Long List the volume two of the Muller report it was all about trump's loyal confidants not carrying out his obstruction of justice wishes. But they did listen to him on Sulejmani. If you believe the reporting it has been suggested that 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 modern are at ones seem even more palatable. Do you buy that. And if that's so was a mistake with this. President put certain options on the menu. I found that to be hugely surprising. Yes can you give a menu of options but when you were talking about a strike of this significance in a president like this you should not offer options unless so you thought that they were within the realm of acceptable reasonable options. And this idea there'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. Well because here's the funny thing that happens. Not just in this instance and this example that I'm putting to you but also in all sorts of other ones everyone else's acting like the world is the same and the president is a normal president so people like Madison and others who are adhering into the principle that before military official doesn't speak badly or divulge information about his time in service and conversations with the president and that presence don't take the most outlandish option and maybe a lot of the people around the president who are in government having adjusted their behavior. They're still during two norms when they have a president who does not and so maybe the folks around the president need to change radically. Is that fair. Maybe I I don't even know how to begin to understand working in the trump administration especially in the White House. I mean I think we'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 ordinance and we've seen examples his subordinates in the White House and in the agencies just ignored him or deflected his request and the like on the other hand. You see people people who are You know seeking curry favor. And who were carrying out his wishes. And that's what you're supposed to do in a traditional administration and it's a tough call if you're working for president and you stay in office and you don't resign what your job is supposed to listen to him and carry out his wishes. He supposed to try to deflect them and and in the name of some higher good that has dangerous consequences as well. Can we talk about the war powers. Act For a minute. Sure so I I believe it's your view as if you have a lot of folks even if if you didn't like the strike on Sulejmani that it did not implicate the war powers act. Well it correct but I mean implement mature implicate. Well do you believe that the president was required to go the congress before and seek its approval. Lucien no war powers resolution. I mean there's a whole bunch of reasons why the resolution gives the president basically a sixty day window under certain circumstances to use force but more importantly the war powers resolution only kicks in for non authorized wars us and this war I think that the ultimate justification for this is going to be that this was a self-defensive action and authorized war and there was a war powers resolution report. I haven't seen it yet. But there's nothing in the war powers resolution that prevented the strike now. And what about going forward. It's suppose that things with the rhetoric of de Escalation doesn't seem to to be much de escalating that there's another strike tomorrow in a few days later Iran retaliates and then we do another strike and we send more troops in our. Can we end up up in a more traditional war footing without having to go to Congress so it's not clear there elsie precedence that say that if the war is escalating than you have to get congressional authorization now. It's not clear. The extent to which that principle applies if the war is escalating and self defense. But the answer the again let's not focus too much on the law. The answer is the president should definitely go to Congress and their precedence for doing it in both Gulf wars President Bush's both of whom claim they didn't need to go to Congress did go to Congress again the O.. LLC 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 turned into a hot war with lots of threatened losses of life ground forces threats to the nation and the like the higher the temperature the higher the stakes the greater the argument that Congress's authorization people keep talking about what the law requires me. Forget the prudential aspects of this in the same way that people have been complaining that Donald Trump and let all of the gang of eight mill about the strike. And somebody said well we didn't have to tell Senator Schumer's or Nancy Pelosi or other people forgetting that it's in the interests of the president. It's in the the interest of the executive branch to go to Congress and to inform Congress of things why to get their buying and to get their approval because you're going and taking action as a nation and then everyone shares responsibility as invested in the game plan right yes absolutely I mean. There is a consultation requirement under the war powers resolution. I thought you were talking about authorization requirement but the broader point is absolutely true and president. Understand this is that when you when you take the nation into a very dangerous Chris situation it 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 last question on this point we. We didn't talk about International. The national law does that matter and under international law is the strike against the lamantia. Closer question 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 the strike. I believe and this is my effort to figure it out because again the trump administration's not explain explain. What's going on here? I think we have to rely on to concept's that we've been relying on for a while now but that are pretty controversial in international law. One is is that we have the power to use self defense in the country despite their sovereign control over the country if that country is unwilling or unable to check a threat to our nation or troops from that country that's call the unwilling or unable doctrine and then as a going back something similar I said what about article too. We rely very permissive conception of imminence and I think both of those concepts are at play here. So the answer's dancers international law matters but it's not been much of a constraint on presidents in the last Fifteen twenty years again. We've developed precedence. That basically have a lot to shape shape international law to serve our interests the rest of the world sees it quite differently though or many people many nations in the world. All right. Well that was. That was a really helpful discussion. I think for a lot of people including clued me. Let's turn to your book in Hoffa Shadow. So 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 the book came out your association with Jimmy Hoffa case not you personally but through a relative so let's take the first steps I remind folks. Some of whom are young who Jimmy Hoffa was. So Jimmy Hoffa was the leader of the teamsters union trucker's warehouse workers and others which was the largest union in the nation. Almost a couple of million people in the fifties and sixties. He was the leader of that union. At a time minions were consequential powerful forces in the country he was an outsized public figure. He was hugely terming and charismatic and much beloved by The people though the workers in the Union and he was very power is one of the most powerful people in the country because if control the trucks you control transportation routes and you basically control the economy and the Labor side. Hoffa was a labor hero. He was a working class hero. He brought hundreds 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 at the same time. Hoffa was corrupt by any 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 air quite a lot actually and he was always being chased by the law and especially by Bobby Kennedy and so he finally went to jail Kennedy Eddie finally nailed him and he went to jail and sixty seven and he came out of jail in one thousand nine hundred ninety one Against Tiller very prominent public figure and and it wouldn't during his efforts to win back control reunion in the years after he got out of jail he became increasingly threatening towards the mob about revealing their ties. Hi to the teamsters. If he couldn't get control of the Union and then very famously. Very mysteriously on the afternoon of July Thirtieth nineteen seventy five. He he was in a parking lot outside a suburban Detroit restaurant waiting for a meeting with few mobsters and he disappeared and nobody knows what happened open to him. You see you can 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 thread of evidence about what happened to him that day. Direct evidence although there's been speculation for decades speculation going back to the week of the disappearance forty four years. So there's been one person who has been labeled as the suspect involved in the disappearance slash murder of Jimmy Hoffa and that person is who that person happens to be my stepfather. A man named Charles Else Chuckie. O'Brien my mother married Chucky six weeks before Hoffa disappeared. I was twelve years old. We were living in West Memphis Arkansas and I known contract 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 in Detroit packing up his belongings. Because we were moving to Florida Hoffa disappeared. I should say that Chucky was Hoffa's closest aide for about two and a half decades. He met off when he was nine years old and the men were practically inseparable for decades and then about a week or ten days about a week after the disappearance unstuck. You became really leading. Suspect the person that the FBI focused on primarily as the person that they believed picked up off of that afternoon at the Marcus Red Box and drove him to his death. Positive for second HAFA disappears. Nine hundred seventy five your mother and your father married just a few weeks before that Judah seventy ninety five year old twelve and what's your what's your memory of hearing about the disappearance of Hoffa and how that affected your family it. It was So I I have actually Fishing on a lake in Arkansan came home and my grandmother said that I just heard on the news that Taufa disappeared. That was the first time I've ever heard his name mentioned but basically after my stepfather became the main suspect. I mean unless you're fifty I five or sixty years old or older. You don't remember but the Hoffa disappearance was complete circus. It was a national sensation. front-page news for weeks. Six led the evening news every night it was a massive one of the biggest FBI investigations ever and all of this a lot of it centered on my stepfather. So there was it was our lives turned into basically a circus Because of the pressures of the investigation because of all the reporters Things like like that it was it was wild and not very pleasant and did you form view of the guilt or innocence of your stepfather when you were a kid. When I was a teenager I I was extremely close to and loyal to Chucky and he was really as a write about in my book? He was really an extraordinary father at a time. When I never had a male figure in my my life he gave me all sorts of love and attention that I never had and It really was just kind of rock in my life at a very important time in my life and not surprisingly I guess I kind of accepted his worldview. I I love the teamsters and thought they were a great organization was very close with a bunch of mobsters. Famous mobsters That he was friends with and indeed leading suspects themselves in the office appearance I kind of accepted his worldview about the mob not existing or not being with 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 stepfather and I loved him but to the way he talked about Hoffa. When I was thinking about when I was a teenager I had different views? Later the way he talked about Hoffa in such reverential reverential and loving terms Hoffa was really like a father to him. Many people thought he was his office. Illegitimate son they were so close that I never really believed he could be involved in killing him. At least that's not. That's what I thought at the time but then you didn't as you write in the book in very personal terms you didn't at least for awhile. Remain close to Chucky your stepfather. Not Not only did I not remain close to I basically cut him out of my life for about twenty years wiser so what I just described with my attitude towards check in high school I went to college and in college I started to see Chucky in a different light I started to basically I started. Arena some books about the Hoffa disappearance thinking about it. It turned out the Mafia did exist. It turned out that my uncles. Tony Tony Tony Province. Zano were famously. Violent violent gangsters. It turned out that my stepfather had a criminal path that I wasn't fully aware of for a whole bunch of reasons. I became worried about that association. I also became an about to tell you. I'm not proud of but it's true. I kind of became embarrassed by Chucky. I used to revel in his union identity and is kind of Malapropisms and I I I just love the way he was and he he's genuine. He's an American original but when he came to college he kind of embarrassed me with my professors and 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 and I basically broke with them when when I was in law school and didn't speak to twenty years. Did you have a conversation with him or did you just sort of. Did you ghost him as the young kids say I it happened over time 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 thirteen I was Jack. O'Brien in college college and the first move in the direction I just described was the week after college to Change My name back to Jack Goldsmith which name I was born with and I wrote Chucky. Lucky a father's Day card in June of I guess it would have been nineteen eighty-four 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 you didn't take it the wrong way. Still love him he was still a great father and the like but it was devastating to him and he wrote me back. A devastating ten pays letter which I reproduced in the book explaining how much it had heard him and So that was the beginnings and then over time I just stopped talking to him stopped venturing the phone and then I just kind of developed a policy of not talking to him and I didn't. I didn't go visit my mom and he was there. Just basically cut him out of my completely. You make a lot of I think heartfelt and personal admissions including referring to I think what you say is quote your own selfish selfish careerism because you decided on a career in the law and then ultimately going to the Justice Department and did that make you more concerned about association for those reasons. Well the association was does something of a hurdle is you can imagine everyone's GonNa ask. This is a little bit inside baseball but when I'm read it when I'm reading the book I'm thinking how did you fill out the SF eighty six well The first time I did so this is the form to when you're getting a security clearance the first time I filled it out. I was kind of naive. It was just after law school. I was in a clerkship with Jay Wilkinson the fourth circuit ahead A to get clearance for case I was assigned to fill out the form and they ask you for your aliases and for your stepfather's in likes listed. I told them my name is Jack. O'Brien for certain number of years in that. My stepfather was Charles. O'Brien I didn't say that. He was the leading suspect in the Hoffa disappearance which also does not for people that the individuals who do the vetting and do the background check or actually in the FBI. Yeah so the FBI gets this form. I actually got a privacy act request and found on their deliberations about it and actually set off a small alarm in the FBI and they sent down to organize. I don't know if it was an alarm or an opportunity. I mean but they sent down to organized crime investigators who I spent a rough day with asking me about everything I knew about chucky. Everything I knew about all the gangsters that I knew what my attitude toward them were and the like and basically and again I reproduced this in the book too. Because there's a summary of what I said I basically toss jockey. DOC ended the bus pretty thoroughly and I got the clearance. And that's basically what happened every step of the way until I got the most difficult and high high-level security clearance working in the office of Legal Counsel. Surprise as you think back that you got the security clearance I don't fully understand what they're looking for. I can tell you what the 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 them and therefore we don't think he's a threat for black male or any gather kind of threat and therefore we think that this should be no bar to him getting a security clearance. I had to tell you and I was being vetted to be the head of the office legal counsel in the White House and they always ask you that question at the the end. Is there anything in your background that might embarrass you or the President during your confirmation proceedings and I mentioned that well not unless you think that my stepfather being the leading suspect the half of the spirits we get in the way that caused Everyone's eyes divulge but it didn't get away by that point because I had so clearly distinguished myself from him but it's sort what a fascinating to me on a personal level that part of the reason you you were able to get over the hurdle is you separate yourself from him and I take it from the book and today you're not so proud of that and ultimately reconciled reconciled and then you wrote this book and had lots and lots I wanna I wanna ask you about that and this book is a bit of a product of lots and lots of conversations and more recent times with your stepfather. So how do you feel about the decision to separate yourself from him so totally now. Because had you not done that that maybe your career path would have been different. I wonder how you think about that today. I can tell you very clearly how I think about it. I don't admire what I did. There are a lot of ways I could have handled differently. I didn't know what my career is going to be like. I only had a very dim sense of what law school was about. And what legal you know 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 GonNa help my career career but there's no doubt that some of the most important things I did in my legal career only made possible because of the separation but and I opened the book with this. You know once I got to this exalted position at the head of the office of Legal Counsel. It turned out the 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 chucky had actually won a case in the Supreme Court and one occasion the Supreme Court because the government had been illegally surveilling him and 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 how the government could cut corners and secret even when they were enforcing the August others and Lo and behold there I am And the Justice Department working under surveillance case and it turns out and that was deeply legally problematic so that was the event. Went that route chucky back into my consciousness and led me to begin to rethink him and over the next year for all bunch of reasons that I described in the book. I came to think doc that what I had done was wrong. Done to him was wrong for a whole bunch of reasons and so I saw his forgiveness One night in two thousand five and Two thousand four actually and when I saw him again for the first time really maybe the second time and he completely exempted me back into his life without question he was just wonderful full about it and then we grew close again. We were very close in the teenager. And then we grew very close again. After that moment we talked a lot about the holidays over the next years in his life and at some point I became convinced that he had been falsely accused of the crime again. I didn't have all the information I had by the time I finished the book. Although he was never formally accused of the crime while he was he was not formally accused in an indictment. He was formally accused in an affidavit to sees a car as being the person in 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 series 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 articles about the Hoffa disappearance as the person who picked up for that day and drove him to his death. So Y when you set out to write this book. What was your purpose? I guess another way of asking. That is how you describe what this book is. Well I can tell you how it started when my purpose was then it grew into something much bigger so my purpose was just fairly narrow and I said this to him him when I asked him to. Do you want me to write a book. When he was telling me all these stories about him and Hoffa they're really interesting? When I became convinced that there were 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 fair shake than history has given you. And that's what I set out to do to basically look at the evidence against him to try to give an objective account of 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 right which has been basically repudiated within the FBI. That was my original goal. So do the deepest dive possible into what actually happened. I interviewed every FBI agent. That's worked at work. The case became friends with many of them. I looked at hundreds of thousands of pages of internal government documents. Was it easier in some ways to get access to documents into people because of your former career in the justice. There's no doubt that it was. And that's that's another irony. I blew off Chucky and that enabled me to get to the top job in the Justice Department. I got to the top job and realized when I was there maybe chucky was right now is too harsh on him and then it was frankly it was my. I think it had a lot to do 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 doc that my career in the Justice Department led these people to talk to me. Yes and what else did the book become. So it started off as a as a book to clear his name and then he turned turned into a whole bunch of things. It turned in first of all to kind of a reflection on father son relationships because I went through various stages with Chucky I was Disloyal to him I think and he maintained his loyalty to me but we had a lot of ups and downs as fathers and sons and he had a lot of ups and downs as has a son with his two fathers. Jimmy Hoffa Anthony Jack. Loney so it's really the whole book. Weaves in and out of these very different bothersome relationships in the lessons learned about them. It also turned into a book about the origins of the surveillance. State which Chucky in Hoffa were very much involved in back in the fifties and sixties. It's a book about the rise of labor and the mob and then their decline and they both went hand in hand both the rise in the decline it's got a chapter about Nixon in his machinations in releasing Hoffa and some Watergate light corruption that he was involved in my investigations took me in a whole bunch of directions but the main thing I wanted to do and I believe I succeeded is to show that it's almost certain chucky wasn't involved in the disappearance I have lots of B. is on the record saying that that's the current. FBI was was that he was not involved. They have different 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. And so the main thing I set out to do is what I think achieved about as well as I could but then as I say these other things happened along the way what chuck you think of the book. He went through various stages of the book but by the end so he he. He doesn't understand the need for. He sees books about Hoffa over the decades ads and they for him as far as he's concerned they're all fictional. They're all just made up stuff because they say stuff that's not 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 is an author to be credible and so he didn't understand why I had to tell the truth about him about certain things you 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 him out so he was skeptical. Not Terribly pleased about that but I have to say since the book has come out he has been enormously gratified in Berry Thankful. He called me. a couple of days after the book was published and he said he had been avoiding reading it and 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 the stuff. He apologized for being so difficult with me because he deflected a lot of my questions had lots of commitments to America that he tried to negotiate while talking to me and biomonitoring vow of silence silence and so there he you told me a whole bunch of things about organized crime and his relationship with people and then there's some things you didn't tell me and didn't want to tell me and this was a constant presence in our conversations nations which is again a constant theme in the book. How much can you tell me? How much is he telling me the truth? And the like. But in any event he was basically enormously gratified by the book in a way that really really and the book was about. That's all I wanted. I just wanted a lot of this book was kind of me trying to make up for what I'd done to him for twenty a years worth my effort to you know. Do something for him to make up for what I had done to him. That was bad and when he had the end expressed in 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 so I consider it a success. It's just on that ground was the hardest you've written. This is your fifth or sixth additives. My fifth or sixth or something like that and yes by you've written so many you can't keep count the take me one two three book The hardest one. Oh by far I mean. 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. There's two right because it's hard to exaggerate how much misinformation and falsehoods around the office appearance. And I had to wade through all all these documents. I've talked to Chucky for many many hundreds of hours about everything I can think of. I interviewed everybody that was involved and 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 and 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. It's page turning which you don't often expect from a law professor. Thank you As anything about the process of researching writing this book change the way you think about teaching. It changes the way I think not about teaching but about It's furthered my belief. That right about writing and namely I become for a whole bunch of reasons increasingly of the view that writing being especially about technical legal issues and heart issues should be more accessible. Lawyers tend to write in turgid prose that tend not to tell stories that to not do appreciate the power of stories the tend not to think enough about audience understanding. It definitely changed it. Furthered my belief about what type of writing is good writing. Some of my substance abuse about things changed. I'm more cynical than ever which is not to say I'm completely cynical but more more cynical than it used to be about. Law Enforcement and government process. He chucky was really given an unfair turn over the course of his forty years. Maybe think more of labor unions news than I used to rethought quite a few things. What about the personal aspects of what I find wonderful about the book is that it is very personal? There's illegal illegal whodunnit aspect to it and a discussion of law and law enforcement which is always near and dear to my heart but you talk a lot about yourself and does it. Perception people about folks like academics had a greater story in on the show not too long ago who told some personal stories and wrote a personal peace unlike unlike any of the other things that she had written. And you've done that here. And even though some of the stuff is not rigorous analysis of the law. It tells people something about you and to me when when I read things like that about Jacqueline Smith by Jacqueline Smith it makes me respect understand. And Trust. You're more turgid writing than more does does that make sense. I think it it does I mean let me just say this. I tried to be as truthful and candidates I could about myself and about chucky and I was pretty self of critical and parts of the book and pretty critical of him in parts of the book and I thought that was important for the Times especially when I was trying to make an argument for Chucky in Wia yeah 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 candidates I could because I thought the book demanded it so maybe I don't know maybe I tried to be credible. I thought it was very important to be credible. Because you know I'm basically arguing that my stepfather was innocent or something. He's been accused of a forty four years and I'm obviously an interested Party so I I thought it was hugely important for me to be honest. Incredible well I think you were and I think that comes across loud and clear in on every page of the book. Thank you so there was this big. Oh I G Office of Inspector General report that came out in recent weeks that listed among other things a series of errors. That's the word that they used with. Respect to the Pfizer surveillance on sort of Carter page. It also said and sort of top line analysis that Overall the Russia investigation was not opened improperly properly. You have said some things about that investigation that report. What what do you take away from it? Yeah so kind of complicated. I mean it was very discouraging. foraging report to me for the identification of all of the errors and misrepresentations and omissions on the FBI. I side in what has to be one of the most consequential FIS applications ever in one of the biggest FBI cases ever and you know for those of us who have have defended the visor process as rigorous one and one that can be trusted even though it takes place in secret. That report is a body blow so I found it very discouraging on that front I find it unsurprising and correct that the inspector general said the investigation was properly predicated. I don't understand why I. Attorney General Bar and John Durham who's investigating the origins of of the trump. Investigation four bar. 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 but let me just why in the scope a little bit. I think you know these spectra. General Michael Horowitz has had four reports now related to for long reports and detailed reports mostly focusing on the FBI related to the Hillary Clinton Investigation Nation in two thousand sixteen the trump campaign investigation and some openings of the investigation. Two thousand seventeen the Komi leaks and the like Mike and I think that in the aggregate they paint a picture of the need for reform in the FBI. I don't there's some individual failings that I'm nobody's perfect and in hindsight Any of the work I did in government or the government if it's looked at after the fact and they're pouring through emails and phone calls. It's not hard to paint complicated picture. The main thing that's very important is we need a much better system for investigating campaigns and politicians uh-huh and because the FBI was basically operating with very very little guidance. In this in these respects a lot of the mistakes they made or what looks like mistakes. In retrospect where from a lack of of guidance. And so I think this is a chapter in my book with Bob. There's a real need to rethink. Not just some aspects of is is. We're going to see what he doesn't audit to see if these failures were typical or unusual but really the whole process of opening investigations against politicians in campaigns pains and how they should be conducted. And what the process should be and what the standards should be because the FBI was kind of making it up as they went along based on very general standards that didn't apply to these concrete situations because it doesn't come up that often. Yes it doesn't come up that often. It came up twice weirdly and then how often do you think the president is a mentoring candidate. Never so I don't blame blame them for that. I mean I. I think it was actually probably a mistake is too strong a word but I think it's very fraught to open up counterintelligence 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 you know from the perspective of where the FBI was sitting. It looked like they didn't say this but it seems to me that looked like that. A given all the evidence that was coming in they had a Manchurian. Can't possible Manchurian candidate or something like that in his campaign so 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. The problem is and you point this out in some of your writing that on the one hand you want to get people guidance and you WANNA make sure they're reaching the proper thresholds for opening an investigation that proceeding with various tools that law enforcement agents get with required to quarter otherwise. But at the same time you don't want politicians to be able to get away with it. Correct don't WanNA cause law enforcement officials to have undue risk aversion and figure. You know what it's not worth my time all it's going to happen is I'M GONNA get in trouble even though there's good faith basis to believe that this politician maybe all the way up to the president or nominee party has engaged in criminal activity. How do you? How do you balance those concerns? Because they're both real. Yeah it's a it's a great question. There's no general answer and this is a common problem. Woman government and trying to come up with accountability mechanisms and guidance mechanisms that don't unto unduly chiller investigations so I will only say that the FBI needs more guidance the no guidance which is basically what it was operating under a special investigative matters get higher procedural treatment the ladder of the FBI but that's basically all the guidance that was given in these cases for me there's an important evil here to be avoided and that is the kind of the Hoover J. Edgar Hoover Syndrome though the worry that the F. B. is using its extraordinary powers of investigation and surveillance for political ends. That has to be guarded against both in in reality which I actually worry about less than appearance and it seems to me a democracy. That is a very serious problem. Should have a high priority of being avoided. So Oh that's the reason why I think we need to think about more elaborate procedures. More elaborate standards fully realizing that it runs the risk of of not being able to investigate him pursue at the margins. People that maybe should be pursued. I just think that right now the balances out of whack and needs to go in the other direction a little bit. If that makes sense do you have any concern that by adding hoops or other threshold requirements. That it makes it easier for some future. Bad actor bad political appointee easy to stop an investigation. Yes I do I do worry about that. Very very much Bob Our and I wrote an essay in the Atlantic. They're all sorts of of possible mechanisms regarding against this so win. They're just risks in every direction and it's a question of bouncing them in every potential reform has downsizing could 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 senior career official you can have reporting to Congress those run risks in various directions. I mean 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 it goes to the heart of our democracy and the FBI's role in investigating getting politics. It's just been a disaster and I'm not blaming that on any individual I just think systemically it hasn't worked and there has to be reform and it may come at the cost to 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 so only go back to the office of Legal Counsel that you had for nine months and we made reference to it at the beginning of the conversation probably the opinion that the American public had never heard of before two opinions. I guess did the American public never heard 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 sitting president of the United States cannot be indicted and binding on. Bob Muller is a point of some contention controversy to anticipate. Maybe this is a subject of one of the chapters in the book. Your wedding with Bob. Our for after trump my recollection is that the first opinion on that point came after Nixon. Listen and the second one came after Clinton do we need to have an. Is it appropriate to have another opinion in review of the body of law within the. Oh we'll see after trump so actually I don't want to be 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 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. And that's what you're talking about and I think that the president it can control that indictment if he wanted exercises executive powers and there is of course another remedy which is impeachment. I don't think there's let me just say I don't think there's a crystal clear obvious. Answer 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 Democrat wins. The election. Several candidates have already said they're basically going to order it to be rethought and I think one said that they were going to order it to be reversed I think that's actually a bad model for our LLC. She should operate. We can't rely on law enforcement to deal with every problem with the presidency. And it's just it's just mechanically very very hard to see how you a you. Indict him prosecutor President while he's in office and again. There's another mechanism for that and it's called impeachment but okay to investigate prevalent office. I think it is. We've had many investigations instigation of presidents while in office. Yes and that again. This raises complications. Too there are no easy answers here because the situation Muller's in is. I think there might be Komo Komo wrongdoing here. I can invite the president so basically he you know collects the evidence and leaves it for another day. Although bar made the determination nations. There were no prosecutable crimes. So again we're talking about design of constitutions in design of accountability systems. Frankly there's never a perfect solution. It's always is a question of mitigating risks at the margins. I think that the the the oil C- Opinion Welby rethought. Eventually whether it will be reversed I don't know it depends on who the president is. It depends on the head of all see as but actually think those opinions but Randy Moss. WHO's an extraordinary legal? Mind head of the office of Legal Counsel now at Federal District Court judge. He was the run 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 in the arguments and the reasons for it so it wouldn't be my view that we should rethink that. But I think it will be rethought. S- Gecko Smith. You've been very generous with your time. I really appreciate could go on for another couple of hours thank you. It was a good conversation. I appreciate the conversation. Continues for members of the cafe insider community to hear the stay tuned bonus with Jack Smith and get the exclusive weekly cafe insider podcast and other exclusive content head to cafe dot com slash insider. Right now now you can try a cafe. Insider membership free for two weeks at CAFE DOT com slash insider To on 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 in the cafe inside and I think also on the stay tuned podcast. Some months ago I think last summer involving a person named curtis flowers. Curtis flowers have been charged with killing four people inside a furniture store in Winona Mississippi. Be and 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 claimed that he was treated it unfairly in prior trials and the Supreme Court voted seven to two that the prosecutor in the case the district attorney named Douglas Evans had violated flowers. Constitutional Constitutional Rights. How has he done that? So over. The course of six different trials of Curtis Flowers Doug Evans. The prosecutor struck forty one out of forty forty two potential black jurors at the final trial. Doug Evans asked potential black jurors in average of twenty nine questions each. He asked the eleven wijers. Only an average of a single question. Also notable about the case. Is that the district attorney. Doug Evans himself personally. Tried the cases which is not so ordinary ordinary Supreme Court. As I said ruled in favor of Curtis flowers the justice who wrote the opinion for the majority seven to majority no liberal. It was justice. Breyer Cavanaugh 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 Act jurors as possible. And ideally before an all white jury we cannot ignore that history close quote. That's Brad Kavanagh. Now at the time I and I were discussing the case. We're not necessarily optimistic about what the future held. Because the Supreme Court by its decision did not set curtis flowers free it merely really set aside the verdict and said he had to be tried again so 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 at this point and I discussed had lost all claim to being fair and impartial and committed to a fair trial for curtis flowers. And by the way at the same time there's been other Evans aside from the procedural issues relating to the jury suggest maybe curtis flowers was not guilty. 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 the jury verdicts in this matter. I've come to the conclusion that my continued involvement will prevent the families families from obtaining justice and from defendant being held responsible for his actions. Close quote from my perspective. His recused will make it more likely that there will be a fair trial for both if the government and Kurdish flowers. Now some people may argue. What difference does it make that? He recused himself assuming he abide by the refusal 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 and acting district attorney. who was someone other than himself? They will make independent decisions. I mean 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 aspect that won't happen given the track record given the Supreme Court's rebuke given public attention. One more note some of the public attention that came to the the case grew out of a podcast produced by American public media called in the dark. During the second season of that podcast released in two thousand eighteen they explored Douglas Evans's pursuit pursuit of the flowers case exam. A lot of issues relating to forensic evidence so who says podcasts don't have power we'll continue to follow the case until you what happened. Well that's it for this episode of stay tuned. Thanks again into 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. Sner find the show. Send me your questions about news. Politics Injustice tweet them to me at eight Berar with the Hashtag ask pre or you can call and leave me a message at six six nine two four seven seven three three eight six six nine two four prete or you can send an email to stay tuned. A CAFE DOT COM. The executive producer. Is Tomorrow Seper. Her senior audio producer is David Tagore and the cafe team is Julia. Doyle Matthew Billy David Kurland Cow Lord and Jeff is our music his by Andrew. Dost I'm pre- Ferrara stay tuned breath.

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