The Week That Was

The Bizarre, Endless, and Oh-So-Disturbing Week that Was: All of Lawfare in One Endless Post

By Matthew Kahn
Saturday, May 20, 2017, 8:23 AM

It has been a very, very long week.

It was only Monday that Jack Goldsmith, Susan Hennessey, Quinta Jurecic, Benjamin Wittes, Matt Kahn, and Elishe Wittes posted initial thoughts on the Trump disclosure of shared foreign intelligence with the Russians in the Oval Office. Paul Rosenzweig shared the news of the Washington Post story. Amira Mikhail and Russell Spivak rounded up public statements on the disclosure. Dan Byman wrote about the importance of liaison relations with foreign intelligence partners, and former DNI General Counsel Robert Litt reviewed the statements made by H.R. McMaster, underscoring his failure to address the propriety of the disclosure.

Then came Tuesday when Helen Murillo, Jack, Susan, Quinta, Matt, Paul Rosenzweig, and Ben expounded on President Trump’s request to Comey to close the investigation into Michael Flynn. Bobby Chesney dismissed the suggestion that Comey may have broken the law by failing to report Trump’s request.

Then there was Wednesday, when Jane Chong, Quinta, Susan, Matt, and Ben put forth initial reactions to the appointment of Bob Mueller as Special Counsel on the Russia Connection matter. David Kris described his thoughts separately. And Quinta posted the statement and order by Rosenstein and Trump on Mueller’s designation.

And then Thursday: Ben wrote about his conversations with Comey about Trump’s behavior toward the former FBI Director.

Many others contributed important thoughts on the administration and the goings on:

Paul Rosenzweig expressed concern over the routine violation of norms during the Trump presidency and emphasized the importance of concurrent special counsel and congressional investigations. Helen Murillo wrote about how Congress could obtain access to the Comey memos. Susan and Helen Murillo summarized Congress’s options when someone refuses to comply with a subpoena.

Nada Bakos and Dennis Gleeson hypothesized about what a foreign intelligence analysis of the United States might look like right now.

Dan Maurer wrote about the relationship between between presidents and the generals who serve them.

Jack explained the complications of serving as a lawyer under President Trump. Former White House Counsel Robert Bauer provided his view on the President's labeling the Russia investigation a “witch hunt” and wrote about the factors causing the “crisis” of the administration. Selena MacLaren overviewed the different kinds of leak investigations.

Keith Whittington argued that impeachment should not be a partisan affair and gave some advice on how to get out of impeachment territory.

It was also a week of many podcasts. First, Jack interviewed Mark Moyar for the Lawfare Podcast about Moyar’s new book on the history of special operations forces.

Then things got wild. In an emergency edition of the Lawfare Podcast, Susan and Ben talked to former DNI General Counsel Robert Litt about the Trump intelligence disclosure:

Bobby and Steve Vladeck addressed the same issue in Episode 18 of the National Security Law Podcast: "Disclosing Secrets to the Russians Makes Me WannaCry." Quinta posted a special edition of the Lawfare Podcast, featuring a conversation between Ben and former Attorney General Michael Mukasey and former White House Counsel Neil Eggleston at the Federalist Society:

And Ben posted this week’s Rational Security: The “Chatterbox-in-Chief” Edition, discussing the many, many news stories that had broken by Wednesday:

Commenting on the role of the FBI director, Jack and Ben made the case for why partisan political figures cannot hold that role. Susan argued that precedent would support the appointment of a respected federal judge to take the position, even if that judge is not Merrick Garland. Andrew Kent, Susan, and Matt examined the legislative and political background behind the FBI director’s ten-year term. Quinta posted Deputy Attorney General Rosenstein’s statement to the House of Representatives regarding Comey’s dismissal, and she and Ben noted multiple unanswered questions arising from Rosenstein’s remarks.

And no, the world did not stop while the United States gazed at the presidential navel.

Addressing tensions in East Asia, Stephen Krasner described the most plausible option for dealing with North Korea, and Luke McNamara posted about the challenges of handling cyber-capable nuclear states. Jimmy Chalk wrote about steps China is taking to increase its regional power as the U.S. public and administration are focused elsewhere. Julian Ku wrote about congressional responsibility for the U.S. policy toward Taiwan as the executive branch becomes embroiled in scandal.

Concerning the WannaCry ransomware attack, Herb Lin wrote a response to Microsoft’s blog post about the government’s obligations to disclose vulnerabilities. Bobby Chesney also wrote on the effect of WannaCry on future thinking on unpatched operating systems and third-party harm. Nicholas Weaver posted about the Shadow Brokers’ decision to release their remaining NSA exploits through a subscription service.

Jeffrey Rosen described a contemporary framework for conceptualizing digital privacy. Susan Landau lauded the Senate Sergeant at Arms’s decision to approve Senate staffers’ use of Signal, the encrypted communications application.

Jordan Brunner, Emma Kohse, Helen Klein Murillo, Amira Mikhail, and Ed Stein summarized the FISC’s approval of new and amended targeting and minimization procedures.

Mailyn Fidler and Trey Herr evaluated the PATCH Act, a bill that would codify the Vulnerability Equities Process as law.

Covering travel ban litigation, Jane summarized the oral arguments in Hawaii v. Trump. Peter Margulies analyzed the arguments made that related to the Immigration and Nationality Act. Josh Blackman argued that even if the government fails in the circuit courts, it may prevail at the Supreme Court. Josh also posited that an analogy raised between the travel ban and Korematsu supports the government’s position.

In terrorism news, Quinta Jurecic posted the decision by the District Court for the Eastern District of New York to dismiss a lawsuit seeking to hold Facebook liable for attacks by Hamas. Bobby responded to a U.S. News and World Report story about the Presidential Policy Guidance on hostilities against ISIS.

Patrick Johnston and Colin Clarke analyzed the potential financial postures of ISIS in the coming years.

Steve Vladeck reviewed James E. Pfander’s book, Constitutional Torts and the War on Terror.

In military commissions coverage, Russell Spivak analyzed the Supreme Court’s denial of Mohammed Jawad’s petition for certiorari. Quinta noted an upcoming change to Lawfare’s military commission coverage and published the statement of Military Commissions Chief Prosecutor Mark Martins. A summary of this week's proceedings will appear on Lawfare as soon as all of the week's transcripts are released.

Commenting on developments in the Middle East, Dana Stuster wrote in the Middle East Ticker about Syria, Yemen, and the Iranian election.

Paul Rosenzweig reflected on reports that Syrian President Bashar al-Assad built a crematorium to dispose of evidence of mass murder at a regime prison.

Alice Hill wrote on the for serious U.S. invesment in biodefense to prepare for the next pandemic.

The Lawfare editors posted an exchange between Aaron Fellmeth and Tom Dannenbaum on Fellmeth’s new book, Paradigms of International Human Rights Law.

Jack highlighted a note in the Harvard Law Review on an upcoming Supreme Court case addressing corporate liability under the Alien Tort Statute.

And that was the very long, impossibly busy and completely insane week that was.