The Week That Was

The Week that Was: All of Lawfare in One Post

By Alex Potcovaru
Saturday, July 22, 2017, 7:09 AM

On Wednesday, President Donald Trump gave a stunning interview to The New York Times in which he criticized the leadership of the FBI, the Justice Department, and the special counsel’s office. Benjamin Wittes analyzed what the interview demonstrated about Trump’s understanding of independent law enforcement, contending that Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein should both resign and issue a strong statement in defense of the integrity of law enforcement.

Jack Goldsmith responded, disagreeing with Wittes’s position on resignation. He also expressed his concern over the optics of the political leanings of the individuals on Special Counsel Robert Mueller’s legal team. He followed up his thoughts on the ethics of resignation on Friday.

Bob Bauer analyzed what the interview revealed about the nature and structure of Trump’s legal defense, as well as any damage he may have done to it.

Jane Chong, Quinta Jurecic, and Wittes explored how Trump’s public public threats towards Mueller and his investigation may condition the way Mueller conducts his inquiry.

Lawfare published a chapter from Charles Black Jr.’s 1974 guide Impeachment: A Handbook covering the parameters of what constitutes an impeachable offense. Jane Chong applied Black’s analysis to the current issues presented by the Trump administration.

Last week, President Donald Trump argued that most people would have taken Trump Jr.’s meeting with Kremlin-linked attorney Natalia Veselnitskaya at Trump Tower in June 2016, chalking it up to “politics.” Bob Bauer questioned which ethical standard Trump tried to defend in his comments—dirty hands, dirty tricks, or dirty politics.

Michel Paradis posted an excerpt of his [email protected] piece further exploring the Trump Tower meeting and whether Donald Trump Jr., Jared Kushner, or Paul Manafort may have violated the Espionage Act if they took material from Veselnitskaya.

Jared Kushner has twice failed to correctly file the SF-86, the form needed to obtain a security clearance for national security positions in the government. Paul Rosenzweig noted that the form is quite complex and that mistakes, like those which Kushner blamed for his having to file corrections, are within the realm of possibility.

In this week’s Lawfare Podcast, Wittes interviewed Mieke Eoyang and Evelyn Farkas about a at Third Way paper they co-authored with Ben Freeman and Gary Ashcroft on how the U.S. should respond to an aggressive Russia.

A civil suit filed against the Trump campaign and associate Roger Stone alleges the defendants conspired with Russia to release the plaintiffs’ personal contact information following the DNC hack, violating their privacy rights. Wittes predicted that if the case reaches the discovery phase, which he believes to be likely, its rich pleading will create plausible discovery requests for a wide range of sensitive documents and information that will draw the attention of journalists and investigators.

Last week, Andrew Kent suggested increasing the FBI director’s independence by requiring cause in order to remove him or her. This week, Robert Litt argued against the suggestion, citing concerns over limiting presidential power to direct enforcement priorities and the investigation of specific cases. Kent responded to Litt’s objections.

Wittes posted Rational Security: The “Wray of Sunshine” Edition, in which the gang discussed the leaked email suit against the Trump campaign, the UAE’s supposed role in the hacking and subsequent spread of misinformation that led to the Gulf diplomatic crisis, and Christopher Wray’s nomination to serve as the next FBI director:

Matthew Kahn posted Wray's submission of his written responses to questions from the Senate Judiciary Committee.

Keith E. Whittington discussed the concept of the “constitutional crisis” and argued that if the system of checks and balances is to properly function, breached constitutional norms must be repaired rather than ignored.

J. Dana Stuster posted the Middle East Ticker, covering the UAE hacking allegations and other Gulf diplomatic crisis developments, Israel’s rejection of the ceasefire in southwestern Syria, and the U.S.’s caveated reaffirmation of Iran’s compliance with the Joint Comprehensive Plan of Action (JCPOA).

In response to the UAE hacking story sourced to “U.S. intelligence officials,” Rosenzweig urged members of the intelligence community to stop leaking.

In this week’s Foreign Policy Essay, Ariane Tabatabai and Annie Tracy Samuel examined what the lessons of the 1980-88 Iran-Iraq War can reveal about the future of JCPOA compliance and U.S.-Iran relations.

Matthew Kahn posted the indictment of Al Qaeda suspect Ali Charaf Damache on terrorism-related charges. The Justice Department brought Damache to Philadelphia to face federal prosecution in the Eastern District of Pennsylvania.

In cyber news, the Australian Parliament plans to introduce legislation forcing companies to break into end-to-end encrypted communications. John Villasenor explained why this move would raise issues of cybersecurity, civil liberties, and extraterritoriality. In some cases, he argued, it could prove mathematically impossible.

Responding to Rosenzweig’s piece from last week, Herb Lin argued that cooperation with “bad actors” in cyberspace such as Russia can establish common vocabulary and concepts for cyberconflict and also produce approaches to dealing with catalytic cyber conflict.

Some corporations have begun to shift their cybersecurity practices toward “active cyber defense.” Wyatt Hoffman and Ariel E. Levite examined the benefits the practice could provide, as well as its potentially destabilizing effects.

Lin responded to a recent C4ISRNET series on U.S. Cyber Command suggested that attribution is of little concern when conducting an offensive cyber operation in a warfare scenario. He argued that avoiding “getting caught” when conducting a cyber attack matters during insertion and anytime after.

UC Irvine’s new Cybersecurity Policy & Research Institute has launched a number of recent cyber initiatives, which John Bellinger noted.

Rosenzweig posted an extensive reply to Scarlet Kim and Mailyn Fidler’s critique of a proposed U.S.-U.K. agreement on cross-border law enforcement data requests. Rosenzweig concluded that the agreement is actually quite good.

Andrew Keane Woods introduced his Aegis Paper Series paper on alternatives to encryption, both for law enforcement hoping to mandate encryption backdoors and for privacy advocates looking for greater protection.

Trey Herr and Bruce Schneier discussed the findings of their recent study on “rediscovery”—the likelihood that multiple parties will independently discover the same software vulnerabilities. They found that rediscovery happens more often than previously reported and when combined with other data, suggests that rediscoveries kept secret by the U.S. government could account for one-third of all zero-day vulnerabilities detected each year.

Stewart Baker posted the Steptoe Cyberlaw Podcast, in which the group discussed the federal de-listing of Kaspersky Labs, federal IT procurement, theories about NotPetya, the Chinese cyber crackdown, and much more:

Bobby Chesney and Steve Vladeck published the National Security Law Podcast, in which they did a deep dive on the 2001 AUMF:

With FISA Section 702 set to sunset at the end of December and a reauthorization vote looming, David Forscey examined the Senate voting record to predict the likelihood of a “clean” reauthorization.

The Supreme Court issued an order on Wednesday regarding the Trump administration’s Refugee Executive Order. Peter Margulies explained how the court’s decision balanced the equities in the case: it allowed the district court’s expanded list of family relationship exemptions from the ban to stay in place, but also permitted the Trump administration to prevent entry of refugees without “close” family relationships to U.S. individuals, even if they have received assurances from refugee resettlement agencies in the U.S. The day before, Hawaii had filed its response to the government’s request for a stay of the district court’s ruling. The case is now headed for the Ninth Circuit.

One year ago, the Arbitral Tribunal ruled on territorial claims in the South China Sea, striking a blow against China’s assertions in the region. In Water Wars, Jimmy Chalk and Sarah Grant reviewed the ruling, compiling some of Lawfare’s best analysis on the topic.

In another edition of Water Wars, Jared Drummitt and Eliot Kim described recent Chinese military operations in and around Japanese, Taiwanese, and American territorial waters.

Murray Scot Tanner analyzed China’s recent National Intelligence Law which he said problematically shifts towards an offensive balance of legal obligations, exposing both Chinese and foreign entities to new risks.

Rosenzweig noted a New York Times story covering China’s recent legal actions to crack down on parliamentary supporters of Hong Kong independence.

Matthew Kahn explained the perils of invoking the national security exception under the WTO to circumvent restrictions on tariffs and nontariff barriers as Trump considers his next move on steel imports from China.

And that was the week that was.