The Week That Was

The Week That Was

By William Appleton
Friday, November 18, 2022, 5:23 PM

Scott R. Anderson, Seraphim Dhanani, Quinta Jurecic, Tyler McBrien, Natalie K. Orpett, and Benjamin Wittes analyzed Attorney General Merrick Garland’s Nov. 18 order appointing a special counsel to oversee two investigations related to former President Donald Trump. They discussed which portions of the Justice Department investigations will be taken over by the special counsel, the special counsel's unique professional background, and the significance of the attorney general's order. 

Katherine Pompilio shared Attorney General Merrick Garland’s Oct. 18 order appointing John (Jack) L. Smith, a longtime federal prosecutor, to serve as special counsel for the Justice Department’s two ongoing investigations of former President Donald Trump. Pompilio also shared Smith’s statement regarding his appointment that was released following Garland’s announcement of the order.

William Appleton shared former President Donald Trump’s Nov. 10 brief in the Justice Department’s appeal to the Court of Appeals for the Eleventh Circuit of U.S. District Court Judge Aileen Cannon’s Sept. 5 special master order. The brief requests the court to affirm the lower court's ruling which enjoined the Justice Department’s use of materials recovered in the Aug. 8 search of the former president’s Mar-a-Lago residence.  

Hyemin Han shared the Justice Department’s and former President Donald Trump’s briefs to Special Master Judge Raymond J. Dearie on “global issues” that pervade seized Mar-a-Lago materials. The briefs, intended to assist Dearie in his review, were filed under seal on Nov. 8 and unsealed on Nov. 14 by District Court Judge Aileen Cannon.  

Pompilio also shared United States District Court Judge Donald M. Middlebrooks Nov. 10 order sanctioning former President Trump’s attorneys for “frivolous” claims made in the former president’s lawsuit against Hillary Clinton, former FBI Director James Comey, Rep. Adam Schiff (D-Calif.), and others. 

Alan Rozenshtein sat down with Jedediah Purdy, a law professor at Duke Law School, to discuss his new book  “Two Cheers for Politics: Why Democracy Is Flawed, Frightening—and Our Best Hope.” They spoke about the book, Purdy’s thoughts on the state of American democracy, and how to achieve a healthier democratic future:

Jurecic also discussed the state of American democracy after the 2022 midterm elections, former President Donald Trump’s announcement of his 2024 presidential bid, and the losses of many 2020 election denying candidates that ran for key positions in the 2022 midterms.

Stewart Baker sat down with Adam Klein, Nick Weaver, and Chinny Sharma to discuss the results of the 2022 midterm elections, the British government's plan to scan all the country’s internet-connected devices for vulnerabilities, the Russian sanctions imposed on Dmitri Alperovitch, and more:

Anderson also examined the use of the 2002 Authorization for Use of Military Force (AUMF) and the gradual expansion of its use by the executive branch in the first of a two-part series on the history and interpretation of the AUMF. 

Anastasia Bradatan discussed the case of Asadullah Haroon Gul, a former detainee at Guantanamo, and how his case illustrates the legal complexities of detaining members of an “associated force.” 

Han also shared the 9/11 Commission’s notes of an April 2004 interview of former President George W. Bush and former Vice President Dick Cheney on the White House’s response to the 9/11 attacks. The notes, which remain partially redacted, were declassified on Nov. 9. 

Anderson and Wittes discussed the Nov. 15 incident in Poland in which a Ukrainian missile inadvertently struck the town of Przewodów. Anderson and Wittes considered the framework of international law surrounding similar incidents, discussed how international law would have shaped the response if the missile was Russian, and the North Atlantic Treaty Organization’s (NATO) decision making process for responses to armed attacks on NATO member states.   

Solon Solomon questioned whether oblique intent can trigger Article 5 of the North Atlantic Treaty if a NATO member state is attacked as a result of conflict between two other states. Solomon argued that oblique intent cannot substantiate the magnitude of an attack required to invoke Article 5 and that the use of oblique intent to justify armed attacks under Article 5 would lead to difficult legal and operational situations.  

Wittes also sat down with Georgii Dubynskyi, Ukraine’s deputy minister of digital transformation, to discuss the ministry’s original purpose and the role its taken on during the Russian war, how Ukraine has maintained resiliency against Russian kinetic and cyberattacks, why Russian cyberattacks have been less effective than expected, and more: 

Peter Pascucci and Kurt Sanger discussed the challenges to United Nations norms related to nation-state cyberspace in the context of the war in Ukraine and argued that Ukraine’s decision to disregard those norms during hostilities with Russia is consistent with international law. 

Wittes also sat down with Matt Tait to discuss how the Ukrainian internet still functions despite the Russian invasion, why Russia has been so ineffective in the cyber arena, if U.S. support for Ukraine is threatened with Republican control of the House, and more:

Kim Cragin discussed the fluidity between white power and anti-government movements and how these groups take advantage of virtual and physical “free spaces” to organize and recruit. Cragin also argued that the civil case in Bernalillo County, New Mexico against the New Mexico Civil Guard, a paramilitary group, can serve as a potential model for disrupting recruitment efforts by such groups. 

Eugenia Lostri discussed the International Counter Ransomware Initiative (CRI)—a cybersecurity initiative of the Biden administration—and assessed the efforts of the CRI to address the ever evolving ransomware threat. Lostri highlighted the adaptability of methods used by cybercriminals, the importance of public-private cooperation, and concluded that the CRI could potentially be a useful tool for disrupting criminal cyber activity. 

David Priess sat down for a chat with Aaron Bateman, historian at George Washington University, to discuss early satellite technology and attempts at anti-satellite activity, the Outer Space Treaty and Anti-Ballistic Missile Treaty, the problem of space debris, and more:

Brad Carney and Olivia B. Hoff provided a detailed summary of the 2022 National Defense Strategy, Nuclear Posture Review, and Missile Defense Review. 

McBrien also sat down with Rebecca Herman, assistant professor of history at UC Berkeley, to discuss her new book “Cooperating with the Colossus: A Social and Political History of US Military Bases in World War II Latin America.” They discussed the history of U.S. military policy in the region, questions of legal jurisdiction, and the difficulty of reconciling national sovereignty with international cooperation:

Scott Moore discussed the economic issues that China faces, including the need for increased innovation (both to boost the Chinese economy and aid global economic recovery) and the contradictions between the economic creativity needed and the political control sought by Chinese President Xi Jinping.  

Wittes also sat down with Sophia Yan to discuss her recent podcast for The Telegraph about the rise and rule of Xi Jinping, her hasty exit from China, how Xi is different from other recent Chinese leaders, and more:

Jordan Schneider sat down with Moore to discuss U.S.-China cooperation in the coming century. They spoke about medical cooperation between the two nations, if global challenges can be combated without China, leapfrogging or innovating as a means of technological development, and more:

And Justin S. Mankin and Christopher W. Callahan presented a scientific basis for climate liability and loss and damage claims in context of the legal and political challenges of pursuing climate reparations. They described how they trace the link between emissions and economic losses, as well as the implications of their scientific findings on collective climate action.

And that was the week that was.