Alberto Gonzales Lectures Jack Goldsmith about Perception versus Reality in a Democracy

I never, never imagined I’d see the day when Alberto Gonzales would school Jack Goldsmith on how to defend democracy.

Once upon a time, remember, it fell to Goldsmith to school Gonzales that the President (or Vice President) could not simply unilaterally authorize torture and surveillance programs that violate the law by engaging in cynical word games.

But now, Goldsmith is the one befuddled by word games and Gonzales is the one reminding that rule of law must operate in the realm of truth, not propaganda.

In a widely circulated NYT op-ed last week, Goldmith warned that democracy may suffer from the January 6 indictment of Donald Trump because of the perceived unfairness (Goldsmith doesn’t say, perceived by whom) of the treatment of Trump.

This deeply unfortunate timing looks political and has potent political implications even if it is not driven by partisan motivations. And it is the Biden administration’s responsibility, as its Justice Department reportedly delayed the investigation of Mr. Trump for a year [1] and then rushed to indict him well into the G.O.P. primary season. The unseemliness of the prosecution will most likely grow if the Biden campaign or its proxies use it as a weapon against Mr. Trump if he is nominated.

This is all happening against the backdrop of perceived unfairness in the Justice Department’s earlier investigation, originating in the Obama administration, of Mr. Trump’s connections to Russia in the 2016 general election. Anti-Trump texts by the lead F.B.I. investigator [2], a former F.B.I. director who put Mr. Trump in a bad light through improper disclosure of F.B.I. documents and information [3], transgressions by F.B.I. and Justice Department officials in securing permission to surveil a Trump associate [4] and more were condemned by the Justice Department’s inspector general even as he found no direct evidence of political bias in the investigation. The discredited Steele dossier, which played a consequential role in the Russia investigation and especially its public narrative, grew out of opposition research by the Democratic National Committee and the Hillary Clinton campaign. [5]

And then there is the perceived unfairness in the department’s treatment of Mr. Biden’s son Hunter, in which the department has once again violated the cardinal principle of avoiding any appearance of untoward behavior in a politically sensitive investigation. Credible whistle-blowers have alleged wrongdoing and bias in the investigation [6], though the Trump-appointed prosecutor denies it. And the department’s plea arrangement with Hunter Biden came apart, in ways that fanned suspicions of a sweetheart deal, in response to a few simple questions by a federal judge [7]. [my emphasis; numbers added]

Rather than parroting perceptions, in his op-ed, Gonzales corrects a core misperception by pointing out a key difference between Hillary’s treatment and Trump’s: Hillary cooperated.

I recently heard from friends and former colleagues whom I trust and admire, people of common sense and strong values, who say that our justice system appears to be stacked against Trump and Republicans in general, that it favors liberals and Democrats, and that it serves the interests of the Democratic Party and not the Constitution. For example, they cite the department’s 2018 decision not to charge Hillary Clinton criminally for keeping classified documents on a private email server while she was secretary of state during the Obama administration.

I can understand the skepticism, but based on the known facts in each case, I do not share it.


A prosecutor’s assessment of the evidence affects decisions on whether to charge on a set of known facts, and government officials under investigation, such as Clinton, often cooperate with prosecutors to address potential wrongdoing. By all accounts, Trump has refused to cooperate.

By contrast, Goldsmith simply ignores the backstory to virtually every single perceived claim in his op-ed.

  1. Aside from a slew of other problems with the linked Carol Leonnig article, her claims of delay in the investigation do not account for the overt investigative steps taken against three of Trump’s co-conspirators in 2021, and nine months of any delay came from Trump’s own frivolous Executive Privilege claims
  2. Trump’s Deputy Attorney General chose to release Peter Strzok’s texts (which criticized Hillary and Bernie Sanders, in addition to Trump), but not those of agents who wrote pro-Trump texts on their FBI devices; that decision is currently the subject of a Privacy Act lawsuit
  3. After Trump used Jim Comey’s gross mistreatment of Hillary in actions that was among the most decisive acts of the 2016 election as his excuse to fire Comey, DOJ IG investigated Comey for publicly revealing the real reason Trump fired him
  4. No Justice Department officials were faulted for the Carter Page errors, and subsequent reports from DOJ IG revealed that the number of Woods file errors against Page were actually fewer than in other applications; note, too, that Page was a former associate of Trump’s, not a current one
  5. Investigations against both Hillary (two separate ones predicated on Clinton Cash) and Trump were predicated using oppo research, but perceptions about the Steele dossier ended up being more central because in significant part through the way Oleg Deripaska played both sides
  6. One of the IRS agents Goldsmith treats as credible refused to turn over his emails for discovery for eight months when asked and the other revealed that he thought concerns about Sixth Amendment problems with the case were merely a sign of “liberal” bias; both have ties to Chuck Grassley and one revealed that ten months after obtaining a laptop that appears to have been the result of hacking, DOJ had still never forensically validated the contents of it
  7. In the wake of that organized campaign against Hunter Biden, a Trump appointed US Attorney limited the scope of the plea which led to a Trump appointed judge refusing to accept it

For each instance of perceived unfairness Goldsmith cites — again, without explaining who is doing the perceiving — there’s a backstory of how that perception was constructed.

Which is the more important insight Gonzales offers: That perceived unfairness Goldsmith merely parrots, unquestioned? Trump deliberately created it.

[A]s I watched a former president of the United States, for the first time in history, be arraigned in federal court for attempting to obstruct official proceedings and overturn the results of the 2020 presidential election, I found myself less troubled by the actions of former president Donald Trump than by the response of a significant swath of the American people to Trump’s deepening legal woes.


While Trump has a right to defend himself, his language and actions since 2016 have fueled a growing sense among many Americans that our justice system is rigged and biased against him and his supporters.

Sadly, this has led on the right to a growing distrust of and rage against the Justice Department.


We have a duty as Americans not to blindly trust our justice system, but we also shouldn’t blindly trust those who say it is unjust. Our government officials have a duty to act at all times with integrity, and when appropriate to inform and reassure the public that their decisions are consistent based on provable evidence and in accordance with the rule of law.

Defendants do not have the same duty. They can, and sometimes do, say almost anything to prove their innocence — no matter how damaging to our democracy and the rule of law. [my emphasis]

Trump’s false claims of grievance, his concerted, seven year effort to evade any accountability, are themselves the source of damage to democracy and rule of law, not the perception that arises from Trump’s propaganda.

Which beings me back to the question of who is perceiving this unfairness. By labeling these things “perceived” reality, Goldsmith abdicates any personal responsibility.

Goldsmith abdicates personal responsibility for debunking the more obvious false claims, such as that Hunter Biden, after five years of relentless attacks assisted by Bill Barr’s creation of a way to ingest known Russian disinformation about him without holding Rudy legally accountable for what he did to obtain it, after five years of dedicated investigation by an IRS group normally focused on far bigger graft, somehow got a sweetheart deal.

More troubling, from a law professor, Goldsmith abdicates personal responsibility for his own false claims about the legal novelty of the January 6 indictment against Trump.

The case involves novel applications of three criminal laws and raises tricky issues of Mr. Trump’s intent, his freedom of speech and the contours of presidential power.

One reason the investigation took so long — one likely reason why DOJ stopped well short of alleging Trump incited the violence on the Capitol and Mike Pence personally, in spite of all the evidence he did so deliberately and with malign intent — is to eliminate any First Amendment claim. One might repeat this claim if one had not read the indictment itself and instead simply repeated Trump’s lawyers claims or the reports of political journalists themselves parroting Trump’s claims, but not after a review of how the conspiracies are constructed.

As to the claim that all three statutes are novel applications? That’s an argument that says a conspiracy to submit documents to the federal government that were identified as illegal in advance is novel. Kenneth Chesbro wrote down in advance that the fake elector plot was legally suspect, then went ahead and implemented the plan anyway. John Eastman acknowledged repeatedly in advance that the requests they were making of Mike Pence were legally suspect, but then went ahead and told an armed, angry crowd otherwise.

The claim that all three charges are novel applications is especially obnoxious with regards to 18 USC 1512(c)(2) and (k), because the application has already been used more than 300 times (including with people who did not enter the Capitol). The DC Circuit has already approved the treatment of the vote certification as an official proceeding. And — as I personally told Goldsmith — whatever definition of “corruptly” the DC Circuit and SCOTUS will eventually adopt, it will apply more easily to Trump than to his 300 mobsters. And if SCOTUS were to overturn the application of obstruction to the vote certification — certainly within the realm of possibility from a court whose oldest member has a spouse who might similarly be charged — the response would already be baked in.

To argue that 300 of Trump’s supporters should be charged and he should not is simply obscene.

American democracy, American rule of law, is no doubt in great peril and the prosecutions of Donald Trump for the damage he did to both will further test them.

But those of us who want to preserve democracy and rule of law have an ethical obligation not just to parrot the manufactured grievances of the demagogue attempting to end it, absolving ourselves of any moral responsibility to sort through these claims, but instead to insist on truth as best as we can discern it.

120 replies
  1. corq says:

    I’m old enough to realize how much this country has suffered for not prosecuting Nixon, while certainly some of his operatives were. Seems simple enough to me: when you take down a criminal operation, you roll up the minions first to collect evidence, and testimony on the kingpin.

    No sense in trapping the all bait fish, if you’re just going let the the big fish get away with the rest.

    • Knox Bronson says:

      Nixon said that Watergate would lead back to the the “Bay of Pigs thing.” H.R. Haldeman, Nixon’s chief of staff, said that “the Bay of Pigs thing” was Nixon’s code phrase for the JFK murder. Gerald Ford altered the entry wound illustrations of JFK to support the single bullet theory. He was on the Warren Commission. Of course he pardoned Nixon. There is a direct line, a super highway, between the murders of JFK, RFK, MLK, and more, and the election of Trump. Part karma, part intent.
      Yes, we are paying the price for ignoring it all.

        • Knox Bronson says:

          From the Washington Post, 7/3/1997: “As a member of the Warren Commission that investigated the 1963 assassination of President John F. Kennedy, Gerald R. Ford suggested that the panel change its initial description of the bullet wound in Kennedy’s back to place it higher up in his body.
          The change, critics said, may have been intended to support the controversial theory that a “single bullet” struck Kennedy from behind, exited his neck and then wounded Texas Gov. John B. Connally Jr.”
          I’m used to being called conspiracy nut, but I’ll tell you this, back in 1974 during Watergate, I worked at the SF Examiner as an editorial assistant and down at the bar I told the older people there, reporters, etc., that everybody involved in Watergate had been involved in the Bay of Pigs and the whole thing went back to JFK’s murder and they said I was nuts, like you all are. Ten years later, most of them admitted I was right.
          I’m happy to provide links, books to read, whatever. All I wrote is public record. Maybe you don’t want to connect the dots. Maybe you are lone-assassin fundamentalists, there are plenty of them among the left, but i’m not disconnected from reality all.
          One thing is for sure and that is that, with JFK’s murder, the industrial-military complex, that Ike warned the nation about, took control and gave us Nixon, and then Reagan, and then Bush and Bush again, and then Donald Trump.
          I submit this respectfully to you.

        • Nota Robot says:

          Gerald Posner, Case Closed

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        • Robot-seventeen says:

          And Viet Nam. That is no longer inquestion. JFK was withdrawing prior to 1965. I’m out of this because it’s off topic but is something I feel I can comment on with some authority (I usually don’t comment here unless I believe I have something to add). I suggest you keep the OT stuff out likewise as it’s not appreciated here (your choice of course).

      • earlofhuntingdon says:

        Starting from, “Of course he pardoned Nixon,” is the conspiracy theory twaddle. There’s evidence for the earlier stuff. Even the Nixon pardon bit, for example, should be tied to the needs of the GOP, not the needs of society, in 1974, not 1964.

        As for the Warren Commission Report, whatever the truth is, it’s not in it. Thanks to spymaster and inveterate liar Allen Dulles and others, it was an exercise in normalization, not fact finding.

      • BosnianBill says:

        Long-term lurker (and supporter) here…. THIS one coaxed me outta the weeds tho. Just when I thought think I’d seen wackiness climax, THIS comes along. Somebody needs to get back on their meds. Today.

        • algebraist says:

          @BosnianBill … maybe you could recommend a lock or two to keep that guy secured with? ;)

          (love your work esp. with lock picking lawyer)

        • subtropolis says:

          Bill?! Gosh, you’ve been missed, brother. I hope that life is good for you. And that you’re well supplied with obscure eastern European candies. (But i repeat myself.)

          Any thoughts about another field trip with the lawyer?

      • IconDaemon says:

        “… Wow! I just had the craziest dream about the Kennedys … Milhous was there … and the Bumbler … and the smell of bacon … please tell me what it means, Auntie Em …”

      • Commentmonger says:

        Wow, I’m impressed. and that was before “white out”. Gerald Ford was more talented than I thought. are you suggesting that if they needed a false flag, he could have sewn it?

    • narog907 says:

      “No sense in trapping the all bait fish, if you’re just going let the the big fish get away with the rest.”
      Been saying this since at least 1995. Start from the TOP and work your way down. But no… Main Justice would never consider it because, horror of horrors, you might lose. They always want it all wrapped up with a nice bow so nobody has to write 200 memos explaining why a jury (12 randos dragged off the street) acquitted a guilty person.

  2. Sallie_curious says:

    I do not often read newspaper opinion pieces, but I haphazardly read this one and was so annoyed and thought this person should not be allowed this large platform. Thank you for working through the details of this opinion’s lies. You provide a great public service to our nation.

  3. Spencer Dawkins says:

    I’m old enough to have watched the congressional hearings on Watergate, the court cases, Nixon’s resignation, and Ford’s pardon on TV as they happened. Being in college was super convenient.

    There’s at least one point of view that Ford and many other Republicans were decent guys, and Nixon, who was fundamentally indecent exploited that decency.

    Trump is also fundamentally indecent, but there are no more decent Republicans left for him to exploit.

    • eyesoars says:

      I recently remembered one of the catch-phrases of the Watergate era, and it seems apropos at the moment: “The end justifies the means.” Perhaps it’s my imagination, but it seems like this was most often uttered with regret, as a falsehood one lost sight of (perhaps at sentencing) by many of the participants.
      The utter disregard for methods seems to be the hallmark of both fascism and the current crop of Republicans in their laser-focus on results.

  4. Doctor My Eyes says:

    A country looking to Alberto Gonzales as a bulwark against corruption and for ethical behavior is a country in trouble. It’s a debate between two guys who embrace different kinds of corruption. Gonzales seems to prefer the kind that maintains the facade of functional democracy. I appreciate his words, and I also remember his corrupt behavior.

      • earlofhuntingdon says:

        Thankfully, this is not FB or the dead bird site. If you want to “like” something, please say so. We’d all like to read about it.

        The quality of a comment or post lies in its writing, in the accessible learning and context it provides in few words, not in clicks and statistics.

    • Shadowalker says:

      It might be helpful to remember that Gonzales himself “actually” mishandled classified material. And that was far worse than what Clinton was investigated for, and was also cited as a reason charges should not be brought in her case.

  5. Yogarhythms says:

    Thank you for this timely thread. Ironic doesn’t do justice to Jack Goldsmith’s new found zeitgeist “realism”. AGAG’s expert observations of contemporary DOJ actions in historical antecedent context shows the demagogue’s see through apparel. Jack Goldsmith’s implicit warning of societal danger ahead from DOJ indictments pales in historical comparison. April 24 1971 showed the world National Peace Action Coalition’s movement of millions of marchers on both coasts in protest of governmental inaction to stop the war. Trump’s 2023 rage against the machine of democracy based on the rule of law is winning in R’s minds and Harvard it appears. Hard to predict where all that winning leads legally?

    • timbozone says:

      Where was Goldsmith’s handwringing when the seditionists were ginning up their January 6, 2021 insurrection? “The riot is just a political meeting of disagreement. A meer petition of grievances… Such lovely tourists!”?

  6. StevenL says:

    I don’t know why Goldsmith has the reputation that his writings for a broad audience are worth reading. I presume he’s a highly competent lawyer and scholar, but his writing is generally some combination of sloppy, insincere and slyly deceitful.

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  7. JonathanW says:

    I can’t find the article on the NYT website anymore, but I have a clear memory of reading something with the label “news analysis” that was about how divided we are as a country and how we can’t deal with facts anymore. Of course, the article stated something along the lines of (and this isn’t a direct quote because I can’t find the article anymore) “Democrats believe the Russia Investigation was real when it is a fact that it was just a hoax sponsored by the Clinton Campaign”. I don’t think they used the word hoax, but some other euphemism. I wish my NYT search skills were better (or that I remembered more keywords from the article) because it felt to me like a great example of Dr Wheeler’s theme of journalists not doing their jobs.

      • JonathanW says:

        Thanks drhester! But I think that you linked to the same article that is the subject of this post, and I was trying to find a different one. Yargelsnogger below has a better memory than me and it was indeed an Opinion piece by Rich Lowry, and not a “news analysis” piece. So I guess that dilutes my point a little because at least it wasn’t pretending to be journalism. But still, I found the article annoying. The link is below (moderators I hope I didn’t do something bad by posting the link like I did below).

      • PhredEph says:

        Well, I read it. Metaphorically it reminded me of an “Everything” pizza that, having been thrown against the wall, fails to stick and slides off leaving only an oily stain. I had hoped to find out the nature and substance of the grave danger(s) posed by the various indictments reported in the news. It seems that they look bad and should have been taken up some other time, reminiscent of the New Yorker cartoon: “how about never, does never work for you?”

    • Yargelsnogger says:

      I think I read that one – if not, a very similar one. If your recent one was the one I read, it was a piece by Rich Lowry (Nat’l Review editor), and it was crap. However, that is only the most recent example. At least one of their regular non-Trumpey conservative columnists (I think Ross Douthout) regularly treats the Russia investigation as a hoax. He derides Trump’s Jan 6 protestations of innocenceas the “Big Lie”, but in efforts to appear even-handed (or just because he is a conservative and can’t help himself) he supports Trump’s Hoax narrative about the the Russia investigation.

      Seriously, Imagine a scenario where China had hacked and released internal Trump communications. During which time Hilary publicly encourages them to do more of it, while taking secret meetings with them, and her campaign manager is passing private info and strategy to one of their intelligence operatives. Following this she pardons the people most directly involved who had refused to cooperate with the investigation. Is there any universe where the media would let her get away with calling any investigation of these acts a hoax?

      • Fancy Chicken says:

        Short answer no because Republicans would have a conniption fit and rev up their propaganda machine.

        Those Republicans are the same ones that requested on more than one occasion for Garland to appoint David Weiss as special counsel and now that he has are claiming that he’s unfit and biased to fulfill that role.

        No matter what happens these entitled democracy damagers are always right and the victim of the “deep state” and the radical left. Same as it ever was since Nixon.

    • wa_rickf says:

      Mueller found evidence of Russian interference and Barr lied about it in his “summary” of the Mueller Report. The US-led Republican Senate report spoke of Russian interference.

      You can lead a horse to water, but in this case, you can’t make him believe.

      Rwing media has done a good job of obfuscation of the 2016 election realities.

  8. Sussex Trafalgar says:

    Jack Goldsmith, like former AG William Barr, believes in the Unitary Executive Theory. Goldsmith, unfortunately, has also been exposed over his lifetime to the power of both domestic and international organized crime syndicates that, by their very nature from an organizational perspective, embrace authoritarianism at the expense of democratic decision making. That is a very dangerous combination.

    The biggest problem the USA faces today is its citizenry does not understand the extent to which international organized crime syndicates, e.g., Putin in Russia, Xi in China, Kim Jong Un in North Korea, have infiltrated the USA, both in body and in mind.

    Attorneys like Goldsmith and also the six un-identified Trump Co-Conspirators (likely all attorneys) in the Trump J-6 Indictments by SC Jack Smith, have become intoxicated by the power inherent in authoritarian dictatorships.

    Regarding the USA, they see the Unitary Executive Theory has the best means of implementing a form of authoritarian dictatorship that prevents those who they perceive as enemies from achieving political, legal and financial power in the USA.

    • HoosierGirl says:

      Assuming the speaker wants to keep our democracy, who in their right mind could support the ‘unitary executive’ philosophy?? Even if so inclined, after watching djt’s dictatorial transgressions (with democracy intact), who could possibly think the unitary theory was a good idea??

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    • notjonathon says:

      These people believe in the Unitary Executive Theory only when the President is a Republican. When the President is a Democrat, he is a dictator who violates all the principles of Constitutional separation of powers. So it might be better to say they believe in the Selective Unitary Executive Theory.

  9. Savage Librarian says:

    For reasons he may or may not acknowledge, Goldsmith seems to have joined a large swath of the GOP who expend immense effort on trying to have their cake and eat it too. Apparently he finds some benefit or comfort in taking this approach. Maybe living in la-la land is appealing to his ego and he just doesn’t have the chops to admit he can’t support democracy and the rule of law.

  10. RipNoLonger says:

    I must have missed where Goldsmith talked about the real fact that not prosecuting trump will let the country and the world know that this democracy does not uphold the rule of law – for everyone.

    “Perceived” by some quantity of people is the same language that trump uses when he says “people tell me….” The reality is that the law is the law.

    • SteveBev says:

      Exactly this.

      The formula “many people believe, many people tell me ..” is the demagogue’s appeal to authority – here the ‘wisdom of crowds’ ;
      implying ‘other people like you believe this and thus you have cause to follow suit’.
      This mechanism is the means by which normal modes of determining facts of objective reality and truth are displaced , and are effectively substituted by whatever is passed off as the shared belief of the crowd as the basis for determining what constitutes authenticity.

      It is also an element of this methodology that the passing off of whatever in the moment serves the demagogue’s interest as being something widely shared and believed, gives the demagogue almost infinite flexibility in manipulating and subsequently adapting what is asserted to constitute ‘truth/fact/reality’ to their own advantage.

      While cult like belief systems have real world consequences, it is depressing in the extreme that commentators like Jack Goldsmith do not address the imperative that the existence and consequential effect of such beliefs should never be treated as if they have gained a validity or represent authentic methods for accurately investigating or portraying reality.

      • John Paul Jones says:

        Indeed, and of bureaucrats everywhere too. One of the ways it typically works is to strip away agency, so you have verbs doing things, but no specified agent who performs the action. Shit just happens.

  11. vinniegambone says:

    How much more can Democracy be damaged when the life blood in GOPLAND is not that perception is reality but rather it is deception is reality.

    They blame the never defined deep state for every turn of events they don’t like. It’s not the deep state sickening democracy, it is the deep fake. .

    • rbba says:

      Great words!

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    • wa_rickf says:

      The Founders were students of the Age of Enlightenment. The AoE is the antithesis of “keep the status quo” – a guiding principle of conservatism. At every step of the way, conservatives have fought progress in America.

      • Rayne says:

        Which exactly how William F. Buckley Jr. defined conservatives:

        “A conservative is someone who stands athwart history, yelling Stop, at a time when no one is inclined to do so, or to have much patience with those who so urge it.”

        Unfortunately, we’re not dealing with Buckley conservatives who want to simply stop history. We’re dealing with fascist revanchists — they want to go backward.

        • SteveBev says:

          And backwards to a mythologised history in which they and theirs abide in a state of civic grace while visiting perpetual retribution on their enemies

      • SelaSela says:

        The GOP is no longer a conservative party. Their current ideology is reactionary populism. They do not want to preserve the status quo. They aim to turn back the clock and return to an imaginary past that never existed.

    • vinniegambone says:

      Finally suscribed, cheap bastid that I am, but on this one condition;
      some portion must go to the tastiest tail wagonist June Bug treats because, really, Dr. Wheeler would likely admit she is at her best after June Bug takes her for a walk.
      Yay June Bug.
      Yay Dr Wheeler.
      Yay Emptywheel community.

  12. sohelpmedog says:

    In a more rational world, the number of readers of the NY Times and of this blog would be the reverse of what it is.

  13. Dustbowl Observer says:

    Jack Goldsmith deploys a cynical right-wing slight-of-hand. He calls the application of various laws to Trump’s illegal conduct “novel.” He distracts from what is really novel: a mobster as president of the United States.

    • Bobby Gladd says:

      “A mobster as president of the United States.”

      Indeed. I don’t see how you can conclude otherwise, if you look rationally at the voluminous credible evidence in sufficient detail.

    • earlofhuntingdon says:

      The novelty line is only partly true. It’s been heavily exaggerated by legions of GOP propagandists. In reality, Donald Trump is an out-of-work, disgruntled, former government employee. The criminal justice system sees and handles them frequently. What is novel is that he led a nationwide campaign to overthrow an election – and the Republican Party remains behind him 100%. That’s criming, not politics. Imagine the criming he would do if he regains the White House.

      • Rugger_9 says:

        The GOP in its current incarnation is behind Defendant-1 because it has to be, with the same Russian kompromat, the same sketchy if not outright illegal activities and gerrymandering combined with voter suppression. Several have also been rolled up in various plots to undermine democracy including J6, and we have the town in AL that locked out its elected mayor because he was one of ‘those people’.

        The GOP is clear that if Trump goes down in flames, they all do.

        • earlofhuntingdon says:

          It starts with Trump. He is being clear that if he goes down, the GOP goes down. The GOP believes him, and is responding to his call.

        • Rugger_9 says:

          Well IMHO it started before, but I would agree with you that the current GOP knows only Defendant-1 can save their butts now with pardons.

  14. Rapier says:

    As the first semi organized waves of political, racial violence begin, Goldsmith and the NY Times will be proudly be able to say, ‘We told you so.’ Admittedly then bothsiderism will be a more difficult task but I’m sure they are up to it.

      • Knowatall says:

        And I often wonder if this ‘cribbing’ (parroting) is of the same ilk that the RWNJs complain of, when referencing Biden’s “plagiarism”.

  15. earlofhuntingdon says:

    Jack is letting the cat out of the bag: he’s a courtier. I don’t suspect that he or Harvard cares much about Donald Trump. But they do care about Not holding power to account. That’s the most likely perceived unfairness.

    Holding power to account is not likely to be a popular idea in the Harvard Faculty Club Lounge, or on its multifarious boards of governors and advisers. It would make it harder, for example, to exercise power without accountability, to recruit new faculty from among former executives, government lawyers, and politicians, and – the greatest sin – to increase Harvard’s already massive endowment.

    • RipNoLonger says:

      Succinct and accurate. “Not holding power to account.”

      While the Ivy League endowments are probably OK, the vested “friendships” may be at risk (looking at Clarence Thomas and confederates.) The Powers spent lots of good money and deserve their just desserts.

        • RipNoLonger says:

          I wrote that thinking of Clarence enjoying his post-prandials with his rich “friends”, and Donnie two-dips. Thanks for the notice!

        • chrisanthemama says:

          We kids used to ask what was for dessert; dad would say “we’re going to desert the table”.

  16. 3balls2strikes says:

    “… as I personally told Goldsmith — whatever definition of “corruptly” the DC Circuit and SCOTUS will eventually adopt, it will apply more easily to Trump than to his 300 mobsters.”

    Are you free to share Goldsmith’s reply?

    • timbozone says:

      The point is that Goldsmith has been made aware of his disjointed logical fallacy by Dr. Wheeler. Similarly, Goldsmith has seen pushback from conservatives who are not in the seditionists Trump supporting camp, Professor Luttig being just one of many, who have appealed to Goldsmith’s thinking brain, appealed to whatever remaining sense of legal sense remains within that spinning top, but have instead found that there is a dense brick-wall where reason should be, over which is thrown such slop as Goldsmith’s most recent essay in authoritarian appeasement.

      Thus, EW’s statements here are to point out that Goldsmiths public statement is not occurring in an intellectual debate vacuum but are intentional; facts and the rule-of-law seeming to not dissuade Goldsmith from providing aid and comfort to the seditionist wing of the GOP’s “Trump or die!” faction, as demonstrated by his hackneyed attempt to be a propagandist for same.

      Instead of calling on his fellow hackneyed seditionist friends to respect the rulings of over 60 federal and state courts, Goldsmith instead feels that we should all just not care that he and his seditionist buddies are continuing their nonsense in violation of the spirit and nature of how our Constitutional form of government is supposed to work. And if anyone who opposes the sedition then, to Goldsmith, it is the opposition to their lawlessness, not the seditionist conspirators, that are the problem. Such is Goldsmith’s continence of sedition and insurrection.

  17. earlofhuntingdon says:

    Bears repeating:

    [T]he…important insight Gonzales offers: That perceived unfairness Goldsmith merely parrots, unquestioned? Trump deliberately created it.

    • GlennDexter says:

      I’ve always considered Facebook to be a danger. It wasn’t until 2016 that I realized how many people were parroting what they’d seen or read on there. I finally questioned a few friends about their source of information and they all said they got it from FB. I’d been so naïve only using it for family stuff. I don’t even do that anymore.

    • John Lehman says:

      Amen…and especially the marching orders should be carved in stone…

      ” But those of us who want to preserve democracy and rule of law have an ethical obligation not just to parrot the manufactured grievances of the demagogue attempting to end it, absolving ourselves of any moral responsibility to sort through these claims, but instead to insist on truth as best as we can discern it.”

      Any stone masons around?

  18. Unabogie says:

    It’s astounding that Trump’s DOJ, which has now run a 5 year investigation of Joe Biden’s son, and whom Trump repeatedly asked to investigate his perceived enemies, is not routinely called out every time the GOP whines about a “weaponized DOJ”

    The party of “LOCK HER UP” is aghast at a President prosecuting a defeated rival? It’s gaslighting.

    • paulka123 says:

      For the record, the president isn’t prosecuting a defeated rival. The DoJ is pursuing an investigation of crimes (many which were witnessed live on TV) and indicting those individuals that the evidence documents committed crimes. It just so happens one of those individuals is TFG and current republican front runner.

  19. earlofhuntingdon says:

    A great ending, a great skewering of an insincere, propagandistic argument from a writer who holds the Learned Hand chair at HLS, is a scholar at the hard right Hoover Institute, and for a crucial year was head of the BushCheney DoJ’s OLC:

    “To argue that 300 of Trump’s supporters should be charged and he should not is simply obscene.

    “American democracy, American rule of law, is no doubut in great peril and the prosecutions of Donald Trump for the damage he did to both will further test them.

    “But those of us who want to preserve democracy and rule of law have an ethical obligation not just to parrot the manufactured grievances of the demagogue attempting to end it, absolving ourselves of any moral responsibility to sort through these claims, but instead to insist on truth as best as we can discern it.”

  20. Nessnessess says:

    Seems to me there is no way to avoid the perception if not some reality of politicization of the DOJ when the DOJ is investigating a political crime, or a crime subject to politicization.

    If the DOJ is part of the executive branch, then it will be controlled/owned/captured/etc by the political party of the president. (“Trump’s DOJ,” “Biden’s DOJ”)

    Crimes such as federal election fraud or foreign influence peddling are inherently “political,” likely with intention to influence or alter political power.

    News and public knowledge about DOJ investigations into those crimes will have disparate impacts on the two political parties.

    The DOJ is structurally part of an executive branch, and so those crimes will inescapably be investigated by a DOJ that is controlled, depending on the timing of events and elections, by one of the political parties.

    Politicization seems built-in to a system that sets up a test of personal integrity and intellectual honesty where nearly all incentives point in the wrong direction.

    How is this not a doom loop? Please forgive my despair.

    • Chetnolian says:

      The politicisation is the act not the prosecution, If Trump had not kept documents he should not have, not tried to disrupt democracy, or indeed not persecuted women, no one would be prosecuting him. Then Trump says it is all political and it becomes so. Seems pretty simple to me.

    • earlofhuntingdon says:

      You’ve been reading too much right wing propaganda; easy to do, as much of it is filtered unmodified through the mainstream media.

      I agree with Chetnolian. The DoJ is part of the executive branch, but it has often been insulated from the politics of the day. Trump’s abuse of it should now be legendary. It was more political in the 1950s, too. But it has more than once stood up to presidential overreach. For every power-loving Robert Bork or Bill Barr, there has been more than one Archibald Cox and Elliot Richardson.

  21. dpa3.14159 says:

    Wow Marcy!

    “… to insist on truth as best as we can discern it.”

    The gospel in miniature.

    Thanks for all you do. And everybody here.

  22. RitaRita says:

    Trump could shoot Lady Justice on 5th Avenue and Jack Goldsmith would say, “Nothing to see here, folks. Move along.”

    Why is it that those nervous about government actions inciting unrest, don’t talk about actions Trump should take to lower the temperature? How do these handwringers propose to rein the Dangerous Mr. Trump?

  23. john gurley says:

    “the [Justice] department’s 2018 decision not to charge Hillary Clinton criminally for keeping classified documents on a private email server while she was secretary of state during the Obama administration.”

    Except, Mr Gonzales, Clinton never had “classified documents” on her home computer. She received her email from the unclassified State Department server, which, of course, was not even authorized to send classified documents. The intelligence community upon reviewing Clinton’s unclassified emails decided to mark a number of them as classified, retro-actively, two years after Clinton received them. There was also an email sent to Clinton which had a mysterious (c) marking on one paragraph, which Clinton critics have contended indicated classified material.

  24. c-i-v-i-l says:

    People might be interested in this amicus brief filed by “former judges and attorneys who were appointed by or served as senior legal officials in Republican administrations,” arguing that “Under the Constitution and the laws of the United States, the Nation is entitled to and deserves an expeditious resolution of the criminal prosecution of the former president for his alleged election interference and his prevention of the peaceful transition of power for the first time in American history. … [B]ased on the extensive experience of amici, a speedy trial on the schedule proposed by the United States government appears both practicable and to satisfy the former president’s constitutional and statutory right to a speedy trial. The former president is entitled to this speedy trial as a matter of law. He is not entitled to an unjust delay in his trial to serve his purely personal and political interests in the delay of his trial.” —

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