Targeted Killings: Suleimani & Hoffa (with Jack Goldsmith) | Stay Tuned with Preet Transcripts

From cafe welcome to stay too. I am preparing for the real question here. This is not going to happen from the executive branch, constraining them. That will in one or two ways electing a president who feels that the United States should be more constrained and then a congress? That's going to stand been exercises constitutional responsibilities, both Things are easier said than done. That's Jack Ultimate he's sport and national security law, a professor at Harvard LAW, school and a co found The law fear block one of the lead legal resources out there today Goldsmith has also prolific author, while his previous books have touched on the power of the president is new book in half as shadow That his personal connection to one of the greatest unsolved mysteries of the twentieth century, we get into all of that plus Goldsmith. losses of legality of

some 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 too. 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 Miller, had interview activists and experts and justice, democracy and equality. each week will discover why these citizen change makers have hope and passion as well as inside on what we can do to bolster our civic life. Listen now future hindsight dot, com or wherever joy podcast. This episode is brought to you by personal capital. personal capital, provides financial advice from a team of registered advisers and gives you the online financial tools. So you can get it

three hundred and sixty degree view of all your money, all in one place, get more information at personalcapital, dot, com, personal capital, invest with logic land with heart. Here's the first question: I'm answering in twenty twenty comes from twitter user misses Frist, who asks Preetbharara? Will this madness ever end? My answer is no

I think this is a downwards from spots with New Jersey Mccoy Monday evening till we just heard today, the jumble says he will be willing to testify is subpoenaed. That strikes me as very specific language and when I think I'm hearing is that, if you asked me to testify, I want but a few subpoena me. I will. Why wouldn't do that? Lobby show thanks very much dont x, Ray question as a common one, but is also common,

practice for witnesses to take that approach and have that stand. There may reasons for it, but actually someone as they do not want to look like their dying to come testify their dying to come, say. Nasty things were cast aspersions on their former colleagues, including their boss, which in this case is the president of the United States, but if issue to subpoena take the posture that they will comply with legal compulsory process does not their choice. There is complying with legal requirements and they don't want to defy a subpoena and go to court and potentially get commanded by a court and forced to testify after a long, protracted process. I know it seems odd to a lot of folks, but even in my old practice there were various times where individuals would say. I'm not excited to come talk to you, but of course, if you go to the trouble of issuing a subpoena now. Just a repeat again in job opens case: there is a certain amount of gamesmanship. I think you can infer from his conduct, including that he was quite for awhile include that he has a book deal.

putting that he waited until various other things took place before saying that is prepared to testify, including that he seems only willing to testify in front of the Senate, where know that the likelihood of his being issued a subpoena is pretty low and not saying the same thing about the house. So, while it is true that the standard procedure for a lot of witnesses who don't want to look too eager to testify and John Bolton's case, maybe some of that himself strategizing going on as well. This question comes from twitter user, casual Joker who asks since the articles of impeachment haven't been transmitted. Can the house open back up the inquiry and call additional witnesses? My understanding is that they truly can

all additional witnesses continue their inquiry. I am not aware of any rule that says that their inquiry has to have ended at the time that they voted in articles of impeachment. I guess I'm a could make such an argument better know who would have standing to object? I guess the republican minority might, but I think Nancy Policy has made clear out of ship has made clear during never has made clear that they will continue to rise at evidence and continue to fight for documents, I haven't speculating as I've others that, in light of John Bolton's recent proclamation tat, he would comply with a subpoena issued by the Senate that the House should issue a subpoena to John Bolton. Could I don't understand 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 or not

because of impeachment, have been transmitted or not, but the various committees in the house continue to have oversight authority in whether or not its related to impeachment. I think they can continue to ask questions and get documents and bring more light to events have happened under the term presidency. This next question comes in a tweet from Twitter User Scott in Shaker, who asked me. Please explain why it's not correct breed Bora, I'm neither an attorney nor a constitutional scholar. I'd love to hear you expand on this, and what he's referring to is my tweet saying correct responding to a senator marker, Rubeus Tweet, in which he said the testimony and evidence considered in the Senate. Impeachment trial should be the same testimony in evidence the house relied upon, and the reason I said, that's not correct, as virtually everyone else who has allowed agree has also opined on twitter and else, Is it in no case that I've ever worked on? Did you have the exact same witnesses and only the same witnesses

who went into the grand jury to provide a basis for the charges to be filed, namely the indictment which is the equivalent in this scenario of the articles of appeasement compared to the witnesses, recalled that the ultimate trial to prove guilt or fail to prove guilt and to the extent that those things are analogous to Cripple case versus impeachment and trial in the Senate? There's no rule is no regulation. There's no constitutional principle. There is no basis in fairness or justice to limit arbitrarily the witnesses and set a trial to the very same that were heard from in the house, especially because various witnesses who have direct knowledge, including among other people, John Bolton, were prevented from testifying in the house, so Morocco, Rubio, doesn't always talking about and is making a political statement.

founded in nothing other than some partisan self interest that he seems to be embracing. This question comes from twitter Is your Terry post to asks at Pre Pereira? What are your thoughts on a possible six month sentence from Michael Flynn still recall, Michael Flynn was the first national security adviser to present Trump was charged with crimes, namely line FBI and has been awaiting sentencing for a long time. The last time he was awaiting sent was in December of twenty eighteen, so has been more than a year in the middle of that hearing, the judges to adjourn that hearing for various reasons which we don't have to rehash here now, Michael than is right to be sentenced this month on January, twenty Eightth, that's the first time around. As I discussed this podcast, the prosecutors in the case did not seek jail time with respect to Michael flints conduct, even though a serious conduct, and among the reasons for that, among the reasons for prosecutors, beings would have lenient in that case

is it. The range council by the sensing guidelines was always here to six months. They know the Michael Flynn had a long history of public service, see Knights of America in uniform, notwithstanding the lying more recently and that he'd accepted responsibility and if you listen to the park as with any frequency, you know that that's an important element in a judge's decision making about a sense. They want to know that if you guilty. That nowadays are factual basis. For that, but also that you have remorse and you ve accepted it and your being a front about it, so the prosecutors this time around, are no longer saying that the centre should be at the lowest ended. The guideline range, meaning no jail. Time

are now saying that he should be sense. Michael fund should be sent up to six months, so possibly up to the maximum men to the guidelines rich. They are not specifically sang, it should be six months, but they are explicitly saying that their 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 than Michael Flynn has no longer shown and acceptance of responsibility. In fact, he's tried to withdraw his guilt deeply. He tried to blame other people, as the prosecutors wrote in their submission to the court.

Quote far from accepting the consequences of his unlawful actions. He has sought to blame almost every other persons and entity involved in his case, including his former council and, as we know, just Sullivan has not seem particularly patient with these kinds of shenanigans Q. Southern Europe times put it. Mr Flynn Cooperation took a star turn. He fired his well respected lawyers and hired Sidney Power, a truculent former federal prosecutor who embraced rightwing conspiracy theories, suggesting Mr Flynn had been a target of a politically biased FBI Cabal and accused prosecutors and misconduct. In his case, every allegations of that kind of behaviour has been rejected by the judge. So what am I thought and a possible six month sentence, given his conduct in the council's conduct, given the nature of the underlying conduct for which he was charged, ethics six months will be fair, but we'll see what the judged us stay tuned theirs, coming up right after this,

they stated losers. sure the holiday season maybe over, but that doesn't mean you should stop giving the gift of understanding long politics to your friends or to yourself. With the new year bring 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 a cafe insider podcast, a weekly note from me on its content from stay tuned and more had to cafe dot com, slash gift to join. Today, that's cafe: dot com, slash gift My guess this week is Jack. Goldsmith he's a professor at Harvard law. School right teaches a notary difficult course: he's also senior fellow the Hoover institution and a co founder and active contributor to Lothar Goldsmith jointly on Monday to talk about the implications of trumps decision to launch

targeting Iranian General Carr, some salami? We get in whether the decision was lawful and whether that even matters, the significance of prior see opinions the power, a precedent and stretching concept of imminent threat. We also talk about his new book, in which Goldsmith writes about the fact that his stepfather, tops us back to the disappearance of one of histories leading labour organizers, Jimmy Hoffa, that's coming up stated Jack Goldsmith 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 there are a few remember. This many years ago when I worked in Washington DC we're going to talk about this new book that you have, which is really an impressive book and very interesting book. But I came to a book party of yours back in Washington. I guess it would have been two thousand and five seven. I think of the terror presidency that are Pres.

and you gave a nice talk so nice to have you won't final? I don't remember you go into the book talk, but I remember having a beer afterwards Remember that I remember that also I'll keep that secret. What happens, overbear stays stays there, so you have this amazing book which is different from where the book- and I want to get to that in a few minutes. But let me just mention it now called in half as shadow a step farther disappearance in Detroit in my search for the truth, and what makes it fascinating we'll get into in some detail shortly. Is that it's a book law and about crime, but also personal to you. So I will come back to my congratulations on re. Never thank you. We set up this interview some weeks ago, and I thought we talk Bout certain topics, including the book which we will, but in the interim just last Thursday recording this. Monday afternoon, generally. Sixth, it turns out that you were the perfect gas to talk about a whole bunch of other issues relating to.

Nice dates, killing of an iranian general chasm salami. So we start with that shirt and are you you made some statements and you ve written some things about the legal aspects of it, which is what I am interested in talking to bout, I asked you what aid over broad simple question: first them with full rights, The dogs are a lot of things that are confusing the people even to lawyers who then known ass, really practice in this area too confusing. But the question is: wasn't lawful for the United States to intentionally kill general salami outside Baghdad airport. So let me start with the kaweah- are the answer I'm gonna give his? Yes under? U S precedents and the? U S, understanding of domestic and national law. But when people ask, is this love all this? that there is some objective answer or there's some vinyl adjudicators. They can tell us what the governing principles are, and the truth is that both the president's constitutional

hours under article two and there. international law principles or just contested all the way to the bottom of the United States, takes a pretty aggressive view on the use of force consistent with EU and charter. So that's the background and saw just say this. I think that the strike is easy to justify legally and I wanted to stay with something whether it was lawful and whether is a good idea. I think it's easy justify legally based on the precedents that have been established since nine eleven. So let's talk about the constitution and article two, which pertains to the exact French versus those at home. You haven't been paying attention to civic, and while what is article who say about what the president can and cannot do in this context, so article who says practically nothing on its face about the president's military powers, it designates him as the commander. In chief the. Ritual understanding of that provision was simply that he would be the top military commander. It was really about civilians.

The military it didn't really have a whole lot of content in terms of presidential military powers except possibly- and this is the core presidential military power- the presence power to use military force in Self Defence and that can be self defense of the nation or can be self defence of troops ever since the first the president's have interpreted this commander in chief clause to give them more and more power to use unilateral force abroad ever expanding theories across the day. AIDS and centuries and across administrations and present a built up threw away see opinions and practice and congressional acquiescence a very robust set of precedents that give the president why discretion to use force without congressional authorization, but I dont think that actually comes into play here in the way that we usually talk about it.

Explain why, if you want, by also referring to the off the legal counsel, what we discussed a lot in the shop right it within the Justice Department and of which you were the head for about nine months right during the Bush administration with respect to the Old Sea office, There have been opinions, overtime that do baroness question right and one of those opinions. So they're hard to summarize and again I dont think, but we're about to tell you is necessarily on point for this strike, but he hears what they basically say in recent years. The basically say that the present has very broad powers under article two unilateral military force without congressional authorization. If and so called national interest and a well see has defined and what a national interest is in ever broader ways to the point where I can't think of a natural national interest that the president would want to use force for that wooden count. So

well see is interpreted that power very broadly, and it's only suggested one check on that and the check is that, if the power that the president reports do you rises to the level of war. If it in the long term conflict if it threatens danger to. U S. Forces threatens ground troops that, in that circumstance the president might have to seek authorization Congress, but every speculative, yet spit speculative, yes in the opinions somewhat speculative its speculative as to what the triggers our how intense it has to be to go to Congress the main thing that this He has been used primarily to justify what some people call war distance, because the the theory is it No danger of? U S true being harmed, is not of hope, huge danger of escalation. Then the present, basically use force when he wants, and that basically means that the type of work? you've been using in the last fifteen years. Really, since Obama became president, I guess for from the air

I shall operations on the ground and cyber. These are not things. These are things that the present basically and I'm generalizing a bit, but basically can do without congressional authorization, LLC opinion to become controversial and the average person in America doesn't fully understand. Why wish according those opinions, wait. For example, in a controversial case of the presidency and whether he can be indicted. You may was long in commentary on this, while that Malta was doing as it is, investigation people would say we'll just because to oversee opinions that say something about this? That's not law! That's not a statute, a regulation, does not a Supreme court decision? How do you explain to people why and for what purpose or will see opinions carry any weight? Yes, it is very fair question in a very fair concern, and I think there is a straightforward answer and the straight What answer is that

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 at present but all executive, doctors, and that means they need to figure out what the lawyers and so much, the law that relevant to executive branch practice there's no springport jurisprudence on. So there's no Supreme Court's jurisprudence. On the question of whether the President may indeed, So it falls to only one actor that the executive branch has to figure that out for itself, and they ve done this in the executive branches interpreted law for itself going back to the founding it is something that actually the framers almost certainly contemplated. But there just to worry about it is I've written in other books. O Elsie tends to interpret president your power broadly, it tends at the margins to protect the president. It tends to have a separate jurisprudence from Supreme Court. I just a feature of our constitutional landscape and it is what it is, but only to say one more thing in the Mueller investigation, especially the reason

those opinions were binding on Mahler is because the regulations basically said so- and this is what mother said in his report- the regulations based we said- and this is the way Mahler interpreted it- that he bound by a opinions because he had to follow the policies and practices of the department I will see had ruled on this twice. In the Clinton administration and once I believe in the next administration, or maybe just after and mother said he was bound by that with his eyes with the special council regulations are specified so that by his- why he was bound by these opinions. Now, let me say one more thing: citizens. Don't have to agree with this and its important unrest, these are issues that don't come up in court where issues on which Congress has our time legislating. So we don't have You just lie down and accept them. I am not suggesting that, but there is a very practical need for why the executive branch needs to do this and in the latter case he was actually

play bound by it. Cuz they're gap send me zero dollars and one cents. I will see a pinions fill gaps that are not provided for you, seniors are not provided for in the constitution or another. and regulation because I dont get litigate he's after that's exactly the point, so so, Much of what I did it a well see was addressing questions that I never come up in court and that brightly could never come up in court. So in one sense it's a guidance giving exercise break. You hope where everyone is act good faith where the president is acting in good faith and want good faith, advice and good faith advice of being given. But you you obviously million oversee opinions. You ve written oversee opinions. You criticise Elsie. the news, even while in office, and even sought to withdraw all the opinions right, Gregg, so they're, not the not infallible. Not infallible anymore than judicial opinions are except there's no review of these, so that what causes I think plan I was thinking balancing court decisions a minute at a well see overturning itself or criticising itself is akin to the Supreme Court doing so, because there's no higher authority, unless, of course,

an issue. A pines on does come up in court, in which case it, the judges get the last call thank you. You once referred to in overseeing and maybe even in your book. I read lotta sources on forgetting now and you had interesting description of some kinds of all see opinions which are essentially give an advanced pardon for certain kinds of conduct, because it is very difficult, indeed may be impossible to prosecute someone for action that they have taken in the executive branch, relying good faith and Elsie opinion. That's correct! That's a feature of our system and its lot of people think that's usually problematic, and it is The danger, of course, and then some people think this is what happened in the early Bush administration of a well see simply going off the rails. In writing a blank cheque for agencies to do anything, so it's very important issues in that office is very important, that that office adhere to its processes in the cultural rules that has developed over the years. I have written a lot about this oil seed

tends to interpret the law more broadly for the president, just like courts tend to interpret lobby for themselves, but there is that consequence in the criminal act context. When the Justice Department, through our sea, says that a practice is lawful and people engaged in this, then they can't be prosecuted later. The best example of this is with the interrogation memos that were so controversial when agriculture became attorney general under Obama, and they looked back at the Bush era, practices which itself was a controversial. They did right off the bat that they were not even going to investigate CIA practices that have been approved by the Justice Department. There were only go 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 salami, so we talked about article two of the constitution, which is pretty open, ended. I will see opinions that do some gap felling. but there are other basis of authority that I think the administration has or will rely upon one

This is the Eu Imf think as a couple of eighty or maps, the authorization of use of military force dating two right after nine eleven? Do those provide the basis for justifying the killing us all. 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 are you s 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 authorize them to be there to use force against Al Qaeda and the islamic State, and this authority traces back to the original nine eleven, a you enough. The nine eleven a young man did not authorize were contemplate war against islamic State, but the Obama administration interpreted it to extend the Islamic State Congress has since quite self consciously through appropriations approve that interpretation

so there's. No doubt that U S forces are lawfully in Iraq pursuant to that, a u a math and they ve also receive the consent, eliminate consent and I'll get to that later. If we talk about international law, a limited consent from Iraq to be there so the question is, and this is why, when I think the administrations 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, The argument is simple and has been used before, and I want to emphasise before I make it they just because something is lawful does not meet is a good idea, but they are and is that? U S? Troops are there are lawfully their engaged in conflict with the islamic state and other terrorist organisations, and in the course of that presents they ve been attacked by forces back by iranian militia forces and it's an old principle that forces wherever they are, when attacked by any entity can use self defence in response to those attacks. That's the principle that the unit, states has relied on in Iraq and Syria

in Somalia to use force against entities that attacked us one Were there, even though we weren't and accomplished for those entities? So you think it makes a difference that ceremony was killed while he was in Iraq, where your troops are verses, a different scenario in which we tried to target him and kill him while in IRAN I dont think it makes a difference from the domestic law perspective from that were just talking. Whether congresses authorizes whether presence acting awfully, not think so it simply a matter of once. Determine the you're acting self defense. I think, then you can go after members of the forces that are attacking you and so money was alleged to have led this? Now, I'm assuming lots of facts here, I'm assuming that these attacks have carried out by iranian forces for a month. Indeed, for years, the United States in 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 of self defence rights, but

defence rights require, among other things, do they not a finding of imminent threat, or can you take it and action and justified by self defence when there's no future threat. But you are just punishing someone or retaliating and someone for a prior bad act as it does have to be some anticipation of future harm. Their doesn't have to be his string off the list of President's the bombing in Libya and eighty six in response to Libya's bombing Germany in the german night Club Bill Clinton's use of force in Iraq in response to the attempted assassination of George H double Bush when there is an attack, and you dont need as much of a of an over and eminence predicate. If there is a pattern of attacks which has happened, on, and, moreover, the United States has interpreted eminence to be a very broad and stretching concept again going. Are you called it stretching yes ya at it? Basically, the task, as article

It by the Obama administration must most clearly is a multi factor test that takes into account a whole bunch of things, but one of the things that includes is has been a pattern of attacks before and the idea is if there has been a pattern of attacks than you can act in self defence. even without evidence as something specific, this coming in the near terms, so Let me put this another way: Eminent in the law, at least as interpreted by the United States, does not mean what our ordinary concept of eminences when the United States, for example, I think it was in two thousand fourteen used force against an obscure terrorist group in Syria, the course on group. They claim. Then that there was an imminent threat and when they defended this day said well, there was planning and we didn't want, want to get them to get the execution and if it Sherbert going, can happen in weeks or months or even six months, So we have a very stretching conception of eminence so given patterns and pray

This is an EU, a math and various other things and also opinions since nine eleven. Would your analysis be different over the question? Be closer one. If you went back in time, and we were discussing the same exact strike in ninety. Ninety nine. That's a great question The answer is that There were precedents on the books going back, for example, to there was a nineteen. Ninety eight planned covert operation against Bin Laden in Afghanistan that raise love these questions, especially the hard question about whether a targeted killings as an assassination. it was a ruling back then by a well see that it's not an assassination if it impotent exercise of self defence. But let me extract dramatic and at your question, way. The boy back to ninety eight or ninety. Nine is a good one, because there have been so many precedents. So many actions. So many expansions of authority.

he's in the post, nice Levin context, both can't through Congress and especially through executive interpretation. As ever, it elsewhere the constraints on executive power? or under the doctors at the executive has developed, and the Congress has done not much to push back against those constraints, just they're not very powerful. You had a tweet and by the way she told listeners that you should follow Jacqueline Smith on Twitter, four informative, instruct abuse, you wrote in the last day or two when a former administration, especially the Obama, has, Does the legal analysis and then takes the strike, and there is no push back. That precedent suffices the next time when elaborate on a sure, the way it works inside the garment generally? Is it's a precedent may system and when you're looking around for India D or in a well see or and CIA you're. Looking for one slash four orbeez to do something. What you're looking for a president's presidents that have been upheld, and it may be that there's an opinion on something, that's on point or nearly on point,

And the Obama administration came in the power after the Bush administration and it was very sceptical alot of a lot of the Bush administration legal theories it through a lot of mount, but it develops out of its own. Very powerful, and robust theories and the other bhamo had a kind of patina virtue about it, so the heavier the trumpet ministration and, Looking at back at these Obama precedence there, like gold present, throw away gold in these contexts, but especially coming from the Obama administration, because you know that such emphasis on law such a heavy emphasis on legal process. There were large speeches about it as I just that in an again. This is not quite a point about legality, its appointed how the government operates. If there is a precedent in the past, specially from another administration, from a different context, for what you want to do, then that's powerful support

virtual reality within the Eu S context with spec to Bin Laden and by Daddy Verses Salami. I guess one difference in their characteristics. Is that, notwithstanding the people referring to salami correctly and in good faith as a terrorist and responsible for a lot of bad things, and I think anyone who said getting good about that person and anyone in this country whose unhappy about his death, separate from what the consequences will be is doesn't make a lot of sense to me there is between you B L, for example, in Baghdad versus alimony. Is that too, is? In fact, a government hell of a sovereign state forget about the wisdom of it because we're separating it does not affect the legal analysis. I thought about this a lot and I d think so, but I'm not sure I have not been able to figure out a reason why? Why should matter the theory that articulated, namely if our four, These are somewhere for a reason in their attack from another source. We can use force against that source, whether its state actor or non state actor. This is kind of we ve been doing in Syria. We are there

are we? This is in the past and think in the Obama administration, retraining, troops there. We have? U S, troops on the ground, supporting those troops, those forces get it. by syrian forces and we use force in self defense against state actor. Syrian forces, Does that mean them by that logic? Can doubt any moment decide to launch a strike against the Supreme leader of IRAN. I think, on the same logic, the answer is yes, and that said that at that, neither I nor my price. I understand I understand just to be clear again. You said a few times, but we should say once more one more time. Lots of things that are lawful or you can make a legal argument for that would be in order. add idea, perhaps maybe even a catastrophic idea to do, but as a disadvantage of legal reasoning using, we could launch a strike against the supreme. Run it yes, but our really emphasise the distinction made twice now, I'm talking about you. understanding of the law. In. U S president's and

What we're seeing now will resume saying Donald Trump, using force here in a very different, a much higher stakes context. Then. The past presidents hurt me Obama It is something that a lot of people warned about under Obama there when they were developing these precedents about tat killing in these understandings about self defence and unwilling or unable and using force to protect forces that were in another country when they are attacked by a third party. All these principles impressiveness ever develop a lot of people warned in the hands of as into his less scrupulous can lead to disaster and I've been waiting and waiting for Donald Trump for his impetuous to extend to the commander in chief discretion to use military force and he's got a lot of running room. Given the: U S, presence that have developed the last twelve fifteen years. I don't think that's a good thing. The expansion of these precedents have been worrisome to me, for especially their master clock present

But the that's where we are and there's plenty of U S, law, to support what he is doing. So in his question of assassination, which I see a lot of people on tv talk, about which is not necessarily a legal term of art in the the authorities we ve been talking about. As I understand it, there has been for some time A policy adopted by these equity branch to not engage in court in court assassination. Was this an assassination now, on the executive branches, understanding that policy goes back to the Seventys and the church Committee and the CIA is assassination adventures in the sixties and fifties and to stave off at a statute that would have prohibit the assassination Gerald Ford, put a prohibition on the use of assassination by the? U S, government, but the question what is an assassination yet What is it, what does not prevent? It did not clearly without preventing. So I,

again. There is no sacrosanct. Her 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 the build up to the exception that I'm about value about and it does eyes had a pre history, but a really at its most important interpretation from ninety. Ninety eight again, this is a premium and precedent, and this is all what I'm about to tell you is all discussed in the nine Slash Eleven Commission report. There was a covert action approved by the Clinton administration to capture and, if necessary, kill Bin Laden in Afghanistan in ninety. Ninety eight and their lawyer struggled with the question whether that would be an assassination just to go in there and kill this guy. lawyers concluded a memorandum that, or else he was involved in may- have written and I'm not sure lawyers included that if you're acting in self defence then you're not committing assassinations, not political, its military

that's right or wrong. That's been the! U S, understanding for many decades now it seems quite now. You know it. years on from nine eleven that Bin Laden. Even at that point, free before nine Levin had engaged in terrorism had caused suffering and loss of human life, that that was a real legal debate, kind of words, but it was a denial of intuition there's a couple of pages on The hand wringing that that whenever that that issue again as Bobby chose me pointed out to me in a tweet yesterday. It actually goes back to the nineteen eighties and some interpret the CIA and the nineteen eighty is that made that same legal move, but that's the definition been given to assassination. I am wondering also on the broad legal fear they ve sketched out. If the United States has some intelligence based reason, too Leave that some state, but made may be hostile to United States, is on the verge of developing nuclear weapons, then everything's fair game with respect to the leaders of their country.

I really would depend upon the imminence of the threat, but you made by just scare you, but you may know bunches Gary hypotheticals and I am quite happy to go there do this in class. I do- and I am quite happy to say, based on again on the practices and precedents established in the last one there is no going back further literally depend on what the nature of the threat was and what the nature of the build up was. But there's no elsie pray written in two thousand and two and 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 threat of development of weapons, destruction, so we ve already crossed that Rubicon in terms of saving. Is a lot of people think that's bad opinion, if not the most rigorous I'll see if anyone ever written but other wishing to step back and say that is a bigger in here and the bigger lesson is the law permits the

the United States to do all sorts of horrible unthinkable things that he shouldn't do and then residents normally would never think about doing we ve, is assume that there's a modicum of and has been affairs reasonableness land discipline listening to experts and the like, and our presidents and these precedents are, frankly, quite scarier under President Trump, who doesn't pay heed. Essentially, experts who is impetuous, mercurial, who seems vengeful, who seems very reactive, so it's it's! The laws not gonna save us here That leads me to my question here. I don't even want to talk about the wisdom of the actions being taken for time. What the law is. It was actually don't have an informed view about that. But what about the review of the wisdom, of the state of the law, as it stands now You say that the law is not gonna. Save us because of what the landscape has become is heading. Is that a good thing

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 Obama's Whitehouse Council in writing, Famagusta show a great wearily a book called after Trump, and we have after a more powers and we have a chapter, on these very issues. Because I'm a believer and robust executive power to defend the country period, but I do think that the president's and the bright since I ve gotten out of control- and I want to really under score- that is another institution here, that is, Congress that has gone along with this. they have not only acquiesced in the face of this growing presidential power and these growing residents and the expansion of this kind of Lo, the radar screen war around the world. They back we can have on the sly approved there was hand, wringing when President Obama extended the EU after the islamic state. But the fact is, the Congress has consistently appropriated in support of that war ever since that

it suffices so the real question here this is not going to happen from the executive ranks constrained as it will happen in one of two ways, electing a president who feels that the United States should be more constrained and then a Congress, that's going to stand up and exercises constitutional responsibilities. both of those things are easier said than done, but the engineer Yes, I do think who were basically at a point where, There are a lot of things. This is gonna, be remarkable statement, but There are a lot of things that I can imagine and president realistically wanting to do, either in the national defence or for regional security or to promote american interests militarily I would have a terribly hard time. Writing no elsie of anything about the precedents are very. Very permissive is like a lot of other cunt. We have a lot of authority to certain kind people we therefore prosecutors, and certainly we do that with the President of the United States revealed,

upon the electorate to make sure that you put in those positions, people who will observe rationality and act in good faith and exercise wise got exactly. I couldn't agree more and I think one of at the top of the list, the things that we ve learned about the trunk presidency presidencies. The importance of that assumption is absolutely it. So more important than I realized, or that anyone realized it was kind of invisible, because it wasn't really challenges wasn't it was, nobody went to the brig right. Look. I guess when we to wrap up this discussion between two lawyers who are going through what the landscape is and what the precedents are. Is how much does this even matter, I think someone said on social media over the weekend. You all these folks were complaining that this was a violation of law or the same rule was transgressed are missing the point that- and I want to put words. Your mouth is as me speaking, raising the person on the on the internet, the real story. Here

You have an out of control president who may not be fit for the job, and that's where the debate should be taking place. not on whether you, no particular protocols or all see opinion phrases have been violated. I couldn't degree more. That that we always tend the lawyers and denominate these discussions and tender he fell back and forth about. It is legal. Reality is legal, it is illegal and that's just practically irrelevant to what is actually happening in what the real dangerous and I have to say with The trump of all the things of all the norms he's broken and all the institutions he's attacked. This is the most were something he's done. I mean using force here and in a seemingly impetuous way at least. Has the early news reports suggest his follow up threats to commit war crimes against

in his power threats against rock. 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 to be on, I think, on the other right, MR wrongs, what the President's doing and how to change that, war crimes. I presume you're talking about whenever one has been discussing, doll, trumps tweet or he suggested that there would be fifty two sites that have been designated for retailers in among them there would be sites that are important culturally to IRAN, that's one war crime that is threatened. Another one is, I think, one tweet. He said that if they use force against us, we would use force back and it wouldn't be prepared in other words, a core requirement of the laws of war, proportionate use of force quite clearly. We wouldn't do that now. I have to say

I am seriously doubt I would be very surprised at the defence department- would follow either those orders. I think you would see massive pushed back resignations before that happened. I don't expect that to happen, like all that, all that pushed back so far, we seen a lot of back in five minutes. I think that I think the problem is one of the most remarkable things about the Trump Administration is the extent to which people ignore him in the executive branch There really is a particular along with the mother volume. Two of the Mulder report was all about trumped loyal confidence, not carrying out his obstruction of justice wishes. But they did listen him on ceremony and if you believe the reporting, it has been suggested that military officials like they sometimes do put a wide spectrum of choices on the menu for a president. and sometimes they put the most outlandish ones. On there as well to make them more, moderate ones seem even more palatable deep do by that, and, if that, so within a mistake with this president to put certain options on the menu I found that to be

usually surprising. Yes, you gave a menu of options, but when you we're talking about a strike of this significance. In a present like this, you should not offer options unless you thought were within the realm of acceptable, reasonable options in this idea has been reported in the New York Times that the deity offered this option but didn't expect to take it. I Roy Mushroom, that's true, and if it is, it speaks very badly for the people, but that option on the table, because here's the funny thing if it happens not just in this instance and this exam I am putting to you, but also in all sorts of other ones. Everyone else is acting like the world is the same and the president is in nor the President so yeah like matters and others who are adhering to the principle that you know what the former military official doesn't speak badly or divulge information about his time in service and conversation with a president and that price don't take the most outlandish option and maybe a lot of people around the present

government haven't adjusted their behaviour there still adhering to norms. We have a president who does not, and so maybe the folks around the President need to change more radically at fair, maybe I mean I don't even know how to begin to understand working in the problem. In a strange, and especially in the White House, I've ever give seen two sets of reactions. Clearly, some people and you seen store, like this, coming out of the White House and books have been written about this about the extent to which his subordinates and with their million examples his subordinates in the White House and in the agency's, I just ignored him or the flag did his request and the like. On the other hand, you see people who were in seeking to carry his favor and who are carrying out his wishes and that's what you're saying to do in a traditional administration, and it's a tough call if you working for a president and you stay in office and you dont resign. What your job is supposed to listen to him and carry out his wishes are disposed to. Try to deflect their men in the name of some high

good that has dangerous consequences as well carried out by the war. hours act for a minute, or so I believe it's your view as if you have a lot of folks. Even if you don't like the strike on solar money, that it did not implicate the war powers act. Well, it correct, but I mean, but I'm not sure to me by obligate how well do you believe that the present was required to go to Congress before and seek its opponents have not over the were passed resolution now what our resolution there's a whole bunch of me Why? The workhouse 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 author, wars and this war. I am, I think, that the ultimate justification for this is going to be that this was a self defence of action and an authorized. And there was a war part resolution report? I haven't seen her yet but there's nothing We're part resolution that prevented the strike now and what about going forward is suppose that things with the aim of the rhetoric of de escalation doesn't seem to be

the escalating but there's another shrike tomorrow in a few days later, IRAN retaliates and then we do another strike and we send more troops in are, can we in a more traditional war footing without having to go Congress. So, it's not clear there. Oh Elsie precedents. That say If a war is escalating, then you have congressional authorization. Now, it's not clear the extent to which that principle applies. If the war is escalating in self defence, but the answered again: let's not focused too much on the law. The answer is, the president should definitely go to Congress and me precedents for doing it in the both Gulf Wars, President Bush's, both of whom claim they didn't you gotTa Congress did gotTa Congress and the oil

opinions are a little bit all over the map on this question, but I will say this: the circumstances in which 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 for threats to the nation in the like the higher the temperature of the higher the stakes, the greater the argument that Congress has authorization. People keep talking about what the law requires and may forget. The prudential aspects of In the same way, the people have been complaining that downtrodden, let all the gang of eight know about the strike and somebody so we don't have to tell Senator Humours or Nancy plus your other people, forgetting that in the interests of the president, is in the interests of the executive branch to go to Congress and to inform Congress of things why to get their buying and they 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

There is a constitutional government under the were passed resolution. I thought you were talking about an authorization requirement, but the broader point is absolutely true as in its interest in this, is that when you, when you take the nation into a very dangerous situation, is just prudent. It's good for the nation is good for the president to get Congress responsible commit to make hunger. be accountable and responsible and by informing them- and then you know that puts Congress on the spot, where an often doesn't want to be that's what, more present would have done. I think last question on this point. We we didn't talk by international law. Does it matter and under international law is the strike against the Le Monnier closer question. I do think it's a closer question under international law the international does matter in matters a lot to the fence department to do that, strike. I believe- and this is my ever to figure it out because again the trumpet ministrations not explained what's going on here I think we have to rely on two concept-

TAT. We ve been relying on for a while now, but that are pretty controversial in international law. One is that we have the power to you self defence and a country, despite their sovereign controller, the country, if that country is unwilling or unable to check a threat to our nation or troops from that country. It's called the unwilling or unable doctrine and then, as going back something somewhere, I set about article two. We rely on a very permissive conception of eminence acting both those concepts her play here. So the answer is international matters, but it's not been much of a constraint on president in the last fifteen. Twenty years again, we develop precedents that Basically, I'm am allowed to shape international law deserve our interests. The rest of the world sees a quite differently. There are many people in many many nations in the world, or it will. I was there, was a really helpful discussion, nothing for a lot of people, including for me. Let's turn to your book in half a shadow

Oh yeah, I've known you for a long time, we're not in close contact, but I think fair to save a lot of folks may not appreciate until this book came out. Your association with the Jimmy Hoffa case- not you personally, but through a relative to the sick for first steps- first remind folks, some of whom are young who Jimmy Hoffa was so Jimmy. Hoffa was the leader of the teams, virginian truckers, warehouse workers and others, which was the largest in the nation. Almost a couple of million people in the fifties and Sixtys he was the leader of that union. At a time when unions were consequential, powerful forces in the country he was an outsider public figure. He was hugely charming and charismatic and much beloved by the people.

though the workers in the union- and it was a very power- is one of the most powerful people in the country, because if you control the trucks, you control transportation routes and basically control the economy, and on the labor side, Hoffa was a labor hero. He was a working class hero. He brought hundreds and hundreds and hundreds of thousands of people into the middle class and he was much beloved. So that's the one side of Jimmy Hoffa, same time, half a- was corrupt by any standard He broke the law, a lot. He paid off politicians and judges. He gave out loans from the Teamsters pension fund and took a bit for himself here and there quite a lot actually and he was always being chased by the law and especially by Bobby Kennedy, and so he finally went to Jail Kennedy finally nailed him. Many went to jail and sixty seven I'm out of jail in eighteen. Seventy one again, still a very prominent public figure

and in it will during his efforts to win back control controller reunion in the years after he got out of jail. He became increasingly threatening towards the mob about revealing their ties to the Teamsters. If he couldn't get control of the union. And then very famously and very mysteriously on the afternoon of July 30th, one thousand nine hundred and seventy five. He was in the parking lot outside of suburban Detroit. Strong waiting for a meeting with the few mobsters Annie disappeared and nobody knows what happened to amuse. You can read a lot about. and see a lot of movies, but I can tell you based my research and talking to a lot of FBI agents? There's not a single. read amendment is about what happened to him that day direct evidence. Although Lisbon speculation for decades regulation going back to the week of the disappearance? Forty four years so there has been one person who has been labelled as a suspect involved in the disappearance, Slash murder of Jimmy Hoffa, and that person is who at first

happens to be my stepfather, a man named Charles Jutty, o Brien. My mother married Chuckie, six weeks before half a disappeared, I was twelve years old. We were living in West Memphis Arkansas and I had known check your we have four months and I had come to revere him and I continued to review them after the disappearance, but basically Six weeks after my mom married him, he was in Detroit packing up his belongs because we were moving. The Florida Hoffa disappeared. I should say that Chuckie was offers closest aid for about two and a half decades he met for when he was nine years old and the men were practically inseparable for decades. And then about a week or ten days out about a week after the disappearance, Chuckie became really the leading suspect the person that the F b I focused on primarily as the person that they believed picked up, offer that afternoon at democracy, Red Box and drove him to his death pause. Every second half a disappears, and they

seventy five, your mother and yourself father married just a few weeks before that Judo seventy five and in your howled twelve, and what you're? What your memory of hearing about the disappearance of half on how that affected your family, where it was so, I first I was actually fishing on a lake in Arkansas and came home, and my grandmother said They differ on the news that offer disappeared. That was the first time I've ever heard of his name mentioned, but basically my stepfather- became the main suspect amid am, I sure, fifty five or six years old or older, you don't remember, but their half his appearance was a complete circus. It was a national sensation. Front page news for weeks led the evening news every night. It was a mass it where the biggest the investigations ever and all of this a lot of its centred on myself.

Other so there was it was our lives turned into basically a circus because the pressures of the investigation, because of all the reporters things like that it was it, was wild and not very pleasant and did you form of you of the guilt or innocence of her stepfather. When you were a kid when I was a teenager, I was extremely close to and loyal to Chuckie, and he was really as a right about in my book. He was really an extraordinary father. At a time when I never had a male figure, my life, he gave me all sorts of love and attention that I never had and in a really wishes and rock in my life, at a very important time in my life, and not surprisingly, I yes, I kind of accepted his role. Do I love the Teamsters thought they were. Great organization was very close with a bunch of mobsters famous mobsters on that he was friends with and indeed leading suspects themselves in the half of his appearance.

I kind of accepted his world view 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 he was my father, I loved him, but to the way he talked about however, when I think about when I was a teenager had different views later, the way talk about having such reverential in loving terms, Hoffa was really like a father to him. Many people thought he was. Is Hafez, EL legitimate son? There was, close, then I never really believed he can be involved in killing him at least ass, not worthwhile. I thought at the time but then you didn't room as you right in the book. You very personal terms. You didn't at least while remain closed to Chuckie your stepfather. Not only did I not remain closed to my baby, he caught him out of my life for about twenty years wiser, so when I just described was my attitude towards Turkey in high school. I went to college,

and in college. I started to see Turkey in a different light. I started to basically, after a ring some books about Bobby appearance and thinking about it. It turned out them. you did exist. It turned out that my uncle's, Jack Bologna and Tony province honour were famously violent gangsters. It turned out there the father, had a criminal path and I wasn't fully whereof for her. On two reasons I became worried about that association. I also became a matter about which I am not proud of, but it's true, I gotta became embarrassed by he used to revel in his union identity and his kind of Malaprop Isms and bad. I love the way he was neither a genuine is an american original, but when he came to college, he kind of embarrass me with my professors and anyway for a whole bunch of reasons. I grew distant from him and are basically decided for career reasons that it will be too

gumball to have an association with him and I basically broke with him, and I was in law school and didn't speak to him for twenty years. Did you have a conversation with him, or did you just order? Did you ghost him? As the young kids say, I would. It happened over time. The first indication was the week after I graduated from college. My name was Jack, o Brien at the time because he adopted me when I was thirteen. I was Jack, o Brien in college. and the first move in the direction I just described was the week after caused to change my name back to Jack Goldsmith, which the name I was born with air wrote, Chuckie left Thursday card in June. I guess it would have been nineteen eighty four basic. telling him when I was. I told him on the phone but explain him. I was gonna change. My name hope it. Take it the wrong way. I still loved him. He was still a great father and the like, but it was devastating to him and he wrote me back at the devastating ten base letter which are reproduced in the book explaining just how much it had heard him and

So if that was the beginnings and then overtime, I stopped talking to him stopped answering the phone and then I just kind of developed, a policy of not talking to him, and I didn't adding of my mom and he was there. I just basically cut him out of my life completely. You make a lot of, I think heartfelt in and personal admissions, including referring to, I think what you say is quote your own selfish careers and because you decide on em- the law and ultimately going to the Justice Department and that making more concerned about the association. For those reasons, Well, the association was something of a hurdle gives. You can imagine I was. It is little but inside baseball. But when I read it, when I'm reading the book, I'm thinking, how did you fill out the ESA eighty six? Well, the first time I did so. This is death. The form do when you're getting a security clearance, the fur.

I filled it out. I was kind of naive. It was just after law school. I was in a clerkship with Jay Wilkinson in the four circuit I had to get a clearance for case I was assigned to. I fill out the form and they ask you for your aliases and for your step, fathers in the like, so I ll Did I tell them. My name is Jack O Brien for a certain number of years and that my stepfather was Charles, O Brien. I didn't say that he was the legal aspect in the half of his parents, We also note for people that the individuals who do the vetting into the background check or actually in the Ep Bianca, so the FBI gets this warm. I actually got a privacy act request and found their lives nations about it and it actually set off of small arms and the FBI and they sit down to organize good that I don't know if it was an alarm on opportunity, I mean, but they sent down to organized crime investigators, who has been a rough day with. Asking me about everything. I know about Chuckie everything. I know about all the gangsters that I knew, but my ass

the doors were and alike and base. Lena yet reproduce this in the book to because there's a summary of what I said, I basically pass Georgiana the mass pretty thoroughly and I got the clearance and that's basically would happen, every step of the way until I got the most difficult and high level security clearance working in the Office of legal counsel. Any surprises, you think, back that you got the security clearance I don't really understand what they're looking for what I can tell you at the with the documents and the document said at least Once I got my hands on that this kid has separated himself Charlie from this man and everything else. We know about him, suggest that he's not under his influence and doesn't have any relationship with him and therefore we don't think he's a threat for blackmail or any other kind of thread, and therefore I think that this should be no bar him. Getting a security clearance had to tell him when I was being vetted to be that of the offices, legal counsel in the White House, and they always ask you that

at the end. Is there anything in your background that might embarrass you? Are the president during your confirmation, proceeding I mention that, while not unless you think that much Father being the leads us back in the half of his spirit, we get in the way that caused everyone's eyes to bulge, but it didn't get nowhere by that point because I had so clearly distinguish myself from him it's sort of fascinated me on a personal level that part of the reason you you were able to get over the hurdle? Is you separated yourself from him, and I take it from the book and today you not so proud and ultimately you reconciled, and then you wrote this book in Hell So what I want to ask you about that in this book is a bit of a product of lots and lots of conversations in 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, maybe your career path would have indifferent. Does I wonder how you think about that today? You I can tell you very clearly, 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 was gonna be like

I only had a very dim sense of what law school was about and what legal working never was about. I wasn't sure I wanted to work for the government. I just knew that the association was out my career, but there is no doubt that Some of the most important things I did in my legal career were only may possible because of the separation, but- and I opened the book with this here once Again- to this exalted position at the head of the Office of legal counsel, it turned out reversible. stumbled upon an old when I was working on the stellar wind case. I stumbled upon an old decision and which Chucky had actually want a case in the Supreme Court, and he want a case in the Supreme Court because the government had been illegally surveilling. And this was shocking to me- because you always told me about this, but I didn't really believe him and he always complained about illegal government surveillance. Alec armoured could cut corners and, great, even when they were enforcing the law against others. And lo and behold there. I am in the Justice Department working under surveillance case and it turns out- and that was deeply legally problematic,

so that was the event that brought Chuckie back into my consciousness and led me to be to rethink him and over the next year, for all bunch of reasons that I described in the book. I came to think that what I Was wrong? What I done to him was wrong for a whole bunch of reasons, and so I sought his given this one night in two thousand and five and two dozen for actually and when I saw again for the first time really, maybe the second time, and he completely except me back into his life without questioning which have wonderful about it. and then we grew close again. We were very close and I was a teenager and then we grew very close again after that moment we talked a lot about half the case over the next two years of his life and at some point I became convinced that he had been false accused of a crime- and I didn't have all the information. I have other tolerant finish the book. never formally accused of a crime while he was was not formally you. In an indictment he was born. accused in,

David to seize a car as being the person new picked up, often kidnapped, kidnapped him and leaks leaks over the decades. He was definitely used by the FBI through leaks of internal documents and internal theories, usually nodded The federal government sources, but he's been from the very beginning and Lisbon. Ancient wisdom, not questioned by anyone repeated and every book and most articles about the Hoffa disappearance as the person who picked up off of that day and drove him to his death so quit when you set out to write this book. What was your purpose and that's another way of asking? That is how you describe Well, I can tell you how it started what my purpose was, but then it grew into something much bigger, so my purpose was just fairly narrow, and I said this to him when I asked him did you want me to write a book? when he was telling me all these old stories about him and half. Are there really interesting and 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 right

about this, I can give you a much fairer shaken. History has given you and that's what but I have to do to Beijing. Look at the evidence against him to try to give an objective account over half a disappearance which has never been done. Frankly there a lot of books about it, but they're all basically fiction. They all repeat: early theory of the FBI would spend basically repudiated within the FBI my original goes into the deepest dive possible into what actually happened reviewed every FBI agent that work work. The case I became friends of many of them. I looked at hundred five thousand the pages of internal government documents with an easy. In some ways to get access to documents into people because of your former careering addresses, they have no doubt that it was an that's that's another irony, I blew off Chuckie and that enable me to get to the top in the Justice Department. I got to the top job and realized when I was there may be. Chuckie was right now to harsh on him

Then it was frankly with my. I think it has a lot to do in my justice department. Job gave me the FBI took me more seriously. I was able to get documents from people the fact that written that book the terror presidency. There is no doubt that I think that my career and the just apartment- let these people to talk to me. Yes And what else did the book become? So it started off as up as a book to clear Chucky's name and it turned into a whole bunch of things it turned in. First of all, to kind of action on fathers on relationships, because in I went through various stages with Chuckie, I was disloyal damn. I think 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 a sun with his two fathers Jimmy Hoffa Anthony Jack Aloni. So it really, the whole book waves in and out of these very different bothersome relationships and the lessons I learned about them.

It also turned into a book about the origins of the surveillance state which Chuckie and half overbearing involved in back in the fifties and Sixtys it's a book about the rise of labour and the mob and then their decline and they both went hand in hand with the rise in the decline. It's got a chapter about Nixon in his machinations and releasing half and some Watergate like corruption that he was involved in. To my investigate to me in a whole bunch of directions. But the main thing I wanted to do- and I believe as acceded is too short. Do that it's almost certain that Chucky wasn't involved in the disappearance. I have lots of FBI agents on the record saying that that's the current FBI view is that he was not involved. They have different theory now that they haven't told the world about. lots of circumstantial evidence that he wasn't involve the circumstantial case against him fell. Apart so that the main thing I set out to do is what I think I achieved about ass. Well, ass, I could but then say these other things happened along the way, we're trying to think of the book. He went through various stages.

but by the end, so you she doesn't understand the need for tee. He sees books about hover over the decades and they for him. As far as urgencies concern there, all fictional barometers made up stuffed as they say. the thought that he knows isn't true. He see people reading this in talking about it and treating it is true, so he doesn't understand my need as an author to be credible, so he didn't understand why I had to tell the truth about him about certain things. You don't want me to tell about a wire to tell the truth about me about certain things at a monitor all about, so he was sceptical on not terrible pleased about that. but I have to say, since the book is come out, he has been enormously gratified and very thankful. He called me a couple 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 is a tough guy and he was in tears and he said,

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. He had lots of commitments to America that he draw, negotiate while talking to me and by American mean Devout silent, allow silence, and so there He told me a whole bunch of things about organised crime and its relationship with you. and then there's one thing she didn't tell me, and I want to tell me- and this was a constant presence in conversations which is again a constant theme in the book. How much can you tell me how much time with the truth, I believe that he was basically enormously gratified by the book in a way that really and the U S with the book was about That's all I wanted I just wanted. A lot of this was book was kind of me trying to make for what I done them for twenty years. With my efforts to introduce thing for him to make up for what I had done him? That was bad.

And when he have the ends express in Reno 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 just on that ground was just the hardest you've written. This is your fifth. I don't know if my fifth or sixth book something like that and yes is buddy what you've written so many you can't keep well, I could count them if you want to be one hundred and twenty three, most of my other books took about a year to right, because I knew what I was talking about, and this one took seven years to right because it's hard to exaggerate how much misinformation and falsehood surrounds often disappearance and I had to wait through all these documents, I talked to Chucky for many many hundreds of hours about everything I can think of. I interviewed everybody, those involved and by the history, the mob and the history of labour history? The surveillance state which ended in all about

there's a whole bunch of learning the way into the book and a lot of research and then lot of time trying to figure out the truth and then, on top of that trying to the story, the complicated story in trying to make it accessible than all took some time, it's page, turning which are often expect from allow professor thank as anything the process of researching running this book change. The way you think about teaching it changes the way I think not about teaching, but about its further my belief that right about writing

and, namely I become for a whole bunch of reasons increasingly of the view that writing, especially about technical legal issues and hard issues, should be more accessible. Lawyers tend to write, Interjet, turgid, prose that tend not to tell stories that cannot appreciate the power of stories that tend not to think enough about audience understanding a definite changed if furthered. My belief about what type of writing is good writing so myself into views about things, change them more cynical than ever, which is not the same, pretty cynical but more cynical, thou used

about law enforcement and government process, even Chuckie was really given an unfair turn over the course of his forty years. Maybe think more of labour unions and I used to feel rethought quite a few things. What about the personal aspects of it me? What, but I find wonderful about the book is that it is very personal, does illegal who done it aspect to it and as a discussion of law and law enforcement, which is always nearing dear to my heart. But you talk a lot about yourself and there is a perception of people about folks, like you, academics, ahead of the great historian on the show not too long ago, who have told some personal stories and wrote a personal peace, unlike any other things that she had written, and you ve done that here and even though some of this stuff is not rigorous analysis of the law, it tells people something about you and to me when I writhings like that about Jack Goldsmith by Jack Goldsmith. It makes me respect, understand and trust your more turgid right

even more does that. Does that make sense? I think it does. I mean just say this: I tried to be as truthful and candid as I could about myself and about Chucky, and I was pretty self critical and parts of the book and I was pretty critical of him in part to the I that was important for the times, especially when I was trying to make an argument for Chuckie him. Why I believed him in certain contexts. It's actually very hard to be candid and honest about motivations and ambitions and fears, and things like that and I tried to be, as can I could, but I thought the book demanded it. So maybe I don't know, maybe I'm trying to be credible. I thought it was very be credible, because I am basically arguing that my stepfather was innocent or something he's been accused of forty four years and

we see an interested party, so I thought it was hugely important for me to be honest, incredible. Well, I think you were at an act that come to cross lab in clearing and on every page of the book. Take you So there is a big o. I office of Inspector general report that came out in recent weeks that listed among the things a series of errors. Vanessa word that they used with respect to the Pfizer surveillance of Carter paid. I also said and sort of top line analysis that overall, the rush investigation was not opened improperly. You have said some things about that investigation. That report. What would you take away from yeah, so kind of complicated, and there was a very discouraging report to me for the identification of all of the errors, an misrepresentations and omissions on the FBI side in what has to be one of the most consequential five applications ever in one of the biggest FBI cases ever and

for those of us who have defended the Pfizer process as a 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 found it unsurprising incorrect that these better general said the investigation was properly predicated I don't understand why attorney General BAR and John Durham, whose investigating the origins of the Trump investigation, bar, I dont understand why they think it wasn't probably predicated actually think that's a very important qualifiers there's more to come, but let me just why in this global over, but I think you know, inspector General Michael Horwitz has had four reports now related to four long reports in detailed reports, mostly

focusing on the FBI related to the Hillary Clinton investigation into the oven. Sixteen, the Trump campaign investigation and some openings of the investigation, two thousand seventeen, the communists. And the like, and I think that in the aggregate they paint a picture of the need for reform, the FBI, I don't know, there's some kind of rule feelings that nobody's perfect and in any the work. I didn't government me that you didn't government is looked at after the fact in their pouring through emails in phone calls, it's not hard to paint a complicated picture, The main thing that's very important is We need a much better system for investigating campaigns and politicians and because the EP I was basically operating with very very little guidance in this in these respects a lot of the mistakes they made or what look like mistakes in retrospect or from a lack of guidance, and so I think this is a chapter in

good bob, there's a real need to rethink, not just some aspects of five. I am we're gonna see what or with finds me doesn't audit to see if these failures were typical or unusual, but really the whole process of opening investigations against stop politicians and campaigns and how they should be conducted with the process should be and what the standard me, because you happy, I was kind of making it up as they went along based on very general standards that didn't applauded these concrete situations because it doesn't come yes, it doesn't come come about. Often it came up twice weirdly and then how often do come up that you think the president is a mentoring. Can never don't blame them. For that I mean, I think it was actually probably mistake is to strong, whereby think it's very fraught open up a counter intelligence masturbation on the president, as they did, based on the view that he was not serving the national interests of the United dates because he defines the national interest. But on the other hand you know from the perspective,

where the F b I was sitting with like its eye. They didn't say this, but it seems to me like the bay given all the evidence that was coming and they had a man we think it possible measuring candidate or something like that in his campaign. So it's never come up before. Actually, and I'm afraid going for that. We need to think about these and related issues lot more carefully and give the FBI lot better guidance. The problem is a new point, out in some of your writing, that, on the one hand, you wanna get people guidance and you're gonna make sure that their reaching the proper thresholds for open an investigation that proceeding with various tools that law enforcement agency get with requires going to court or otherwise. But at the same time you dont want corrupt politicians to be able to get away with. Correct in want to cause cause, want officials to have undue risk risk, aversion and figure. You know what now with my time- all is going to happen. Is I'm going to get in trouble even though there's a good faith basis to believe that this politician, maybe all the way up to the president or a nominee of a party

engage in criminal activity. Had he had you balanced those concerns because we're both real is agreed to great question. There's no general answer- and this is a common problem in government in trying to come up with accountability, mechanisms and guidance mechanism said don't unto unduly till investigations, So I will only say that the FBI needs or guidance the no guidance which is basically what it was operating under the Vienna Special creative matters get higher procedural treatment up the ladder of the FBI, but that's basically all the guidance that was given in these cases for me, there is an important evil here to be avoided, and that is the kind of the Hoover J Edgar Hoover Syndrome, though the worry- at the FBI is using its extraordinary powers of investigation and surveillance for political ends. That has to be guarded against both in reality, which I actually worry about less than appearance. and it seems to me in a democracy that is a very serious problem that should have a high priority of being avoided.

Oh that's the reason why I think we need to think about more elaborate. teachers and more elaborate standards, fully realising that it runs the risk of not being able to investigate impressed at the margins, people that maybe should be pursued. I just think that, right now the balances out of wax needs to go. The other national government at that make sense, give any concern in that by adding hoops or other threshold requirements that it makes it easier for some future vat actor bad political appointee to stop an investigation. yes, I do. I do worry about that very very much barbarian. I wrote an essay on the Atlantic they're all sorts of possible mechanisms regarding. They're so win their just risks redirection and is a question of a balancing them in every potential reform. Downsizing to be weapon. Ized, an error,

don't want to deny that there are ways to deal with these problems. You can have reporting not just to a senior just form, an official but to a senior career official. You can have reporting the Congress Those run risks in various directions. I mean it's a complicated process that has a lot of balancing, but I just need 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 with that it go to the heart of our democracy and the FBI's role in investigating politics. It's just been faster and I'm the guy not blaming that on in the individual. I just think systemically it has worked and there has to be reformed in it may come at the cost of these other things. we have to figure out how to deal with those costs, but I do think there are ways to mitigate these risks. So the office of legal counsel that you headed for nine months and we made reference to it at the beginning of the conversation, probably the in the american public can never heard before two opinions. I guess the american public. It never heard it before, and now progress in their minds is the two most controversial things ever come out of office are

the conclusions that are sitting presently United States cannot be indicted and there was binding on by Malta, which is now appoint some contention controversy to anticipate. Maybe this is a subject of one of the chapters in the book, your wedding with our Bauer for after Trump my recollection, is it the first. I will Can you on that point came after Nixon and the second one came after Clinton? Do we need to have, and is it appropriate, to have another opinion in a review of the body of with a mere will see after trump site. Hey. I don't speak for bar, but I think he and I actually have different views about this. I think that, for very practical reasons, those opinions are probably correct. I can get into it if you want, but the basic idea is that it's very hard for the president who controls at Bonn Fortune for the country under the constitution to effectively indict himself and that's what you're talking about

I think that the president can control that indictment. If you wanted exercises executive powers and their, of course, another remedy which is impeachment. I don't think let me say I don't think, there's a crystal clear, obvious answer from the constitution about this question, but you're why should we rethink it? I think in burial, He is going to be rethought, especially of a Democrat wins the election. Several candidates have already said that their Maisie in order to be rethought and by the. and said that there was an ordered to be reversed. I think that bad model for our seas should operate, can't rely on law enforcement to deal with every problem of the presidency and just it's just dumb mechanically very, very hard to see how you indict him prosecuted president, while he's in office and again there's another mechanism for that. It's called impeachment, but okay to investigate present while in office. I think it is we ve had many investigations are present on office yesterday and again this raises complications. Do there are no easy answers here because

situation mullah regime is, I think there might be criminal wrong doing here. I can invite the president, so basically he collects the evidence and lose it for another day, although bar may the determination that there were no prosecutable crimes. Failure in return about design of constitutions and sign of accountability systems? Frankly, there never a perfect solution. that is a question of mitigating rests at the margins, but I think that they leave the oil and you will be rethought eventually whether will be reversed. I don't know it depends on. The president is independent of the ETA Ballsy is, but I actually think his opinions and Randy more Susan, extraordinarily go mine had of the obsolete council. Now that honest your court judge, he was the road, the opinion and the Clinton administration. He was not quite a lackey for Bill Clinton. his opinion is very powerful on its also very candid about this is 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. Tackle Smith, you ve been very generous with you too, I really think I could go on for another couple of hours and eighty three: do there really is a good conversation. I appreciate it Conversation continues for members of the Cathy Insider Community to hear the state and bonus with jackals myths and get the exclusive weekly Cathay insider part cast and other exclusive content had to cap. It all calm, slash in right now. You can try Cathay insider membership free for two weeks, a cafe dot com, slash insider taught me on show this week with something that has nothing to do with either IRAN for impeachment. It's about a case. We talked him.

In a cafe inside and, I think also on the statesman podcast. Some months ago I did last summer involving a person in Curtis flowers. Curtis flowers have been charged years ago with killing for people inside of furniture store in well known in Mississippi, and the reason we were too. my criticism, ours is, at his case, had taken a long and winding road and had just landed in the Supreme Court, because Curtis flowers, lawyers claim that he was treated unfairly in prior trials and the Supreme Court voted. Seventy two that the prosecutor in the case, the district attorney named Douglas Evans, had violated flowers, constitutional rights. How had he done that so over the course of six different trials of Curtis Flowers, Doug Evans, the prosecutor struck forty one

out of forty two potential black jurors at the final trial, Doug Evans, ass potential, black jurors, an average of twenty nine questions. Each he asked the eleven watchers. Only an average of a single question was also notable about the case is that the district attorney Doug Evans himself personally tried. The cases It's not so ordinary Supreme Court, as I said, ruled in favour of kurdish flowers, the justice who wrote the opinion for the majority, the seven to majority, no liberal. It was just as Brick Cavanaugh who stated quote States, relentless determined effort to rid the jury of black individuals, strongly suggests that the state wanted to try flowers before a jury with as few black jurors as possible and, ideally before in all white jury. We cannot ignore that history close quote, That's bread Cavanaugh now at the time that in an hour discussing the case, we will not This fairly optimistic about the future held because the Supreme Court by its decision did not set Curtis flowers. Free

It merely set aside the last verdict and said he had to be tried again, so we were left with the prospect of the case going back for the seventh time to the same district attorney in Mississippi. Who would again try the case and who, 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, the same time, there's been other evidence. Aside from the procedural issues relating to the jury, that 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 refused from the prosecution of kurdish flowers. His letter is pretty short, among other things, he wrote quote while I remain both confident in both, destination in the jury verdicts in this matter. I have come to the conclusion.

My continued involvement will prevent the families when I'm painting justice and from the defendant being held responsible for his actions close book. From my perspective, his refusal to make it more likely that there will be a fair trial for both the government. Curtis flowers. Now some people may argue, whatever's is a make that he refuses himself whom he abide by the refusal, which means he cannot oversee the prosecution of the trial. He cannot direct people. He cannot make the assignment that there is for all purposes and acting district attorney. Who is someone other than himself? They will make independent decisions that mean hypothetically. The next prosecutor, sign to the case, even without the involvement of Dog Evans could engage in constitutional must behavior, but we hope and expect that won't happen. Given the track record, given the Supreme Court's rebuke and giving public attention one more know, some of the public attention they came to the case grew out of a pod cast produced by american poet.

media called in the dark during the second season of that podcast released in twenty eighteen? They explored Douglas Evans's pursuit of the flowers case and examined a lot of issues relating to forensic evidence. So who says podcast don't have power will continue to follow the case until you. What happened Well, that's it for this episode of stay tuned, thanks again to my guest Jack Goldsmith. If you like what we do, rate and review the show an apple pie casts or wherever you listen, every pause, review helps new listeners, find the show send me. since that use politics, injustice, tweet them to me. Prepared with the hashtag asked priest, or you can call Leave me a message at six hundred and sixty nine, two hundred and forty seven, seven thousand three hundred and thirty, eight at six, six thousand nine hundred and twenty four preet or you can send an email to stay tuned at cafe dot com, the executive producer.

Is tomorrow, supper. The senior audio producer is David TAT ashore and the cafe Miss Julia Doyle, Matthew, Billy, David Car, landlord, Calvin, Lord and Jeff eyes. Our music is by Andrew Dust. I'm prepared statement