The Week That Was

The Week That Was: All of Lawfare in One Post

By William Ford
Saturday, April 14, 2018, 8:51 AM

Following the FBI’s raids on the home, office, and hotel room of the president’s personal lawyer, Michael Cohen, President Trump is reportedly contemplating firing Deputy Attorney General Rod Rosenstein. Susan Hennessey, Matthew Kahn, and Benjamin Wittes offered six takeaways from the president’s threats to remove Rosenstein. Jack Goldsmith examined the cycles of panicked reactions to Trump’s threats to dismiss senior Justice Department officials.

Wittes argued that the FBI’s raids on Cohen and Trump’s vociferous reactions indicate that a confrontation between the president and the Justice Department draws nearer. Paul Rosenzweig dissected the attorney-client issue and the crime-fraud exception at the heart of the FBI’s raids on Cohen.

Harry Larson and Sabrina McCubbin scrutinized four recent examples of prosecuting attorneys alongside their clients. Quinta Jurecic posted Cohen’s filing for a temporary restraining order to prevent federal investigators from reviewing the material collected during the raids; she posted the government’s opposition to the motion.

Kahn posted the latest installment of Rational Security: The "On the Edge of Our Seats" Edition.

In broader news related to federal law enforcement, Jack Goldsmith argued that it is unclear whether Special Counsel Robert Mueller has the authority to prepare an interim report or if such a report would reach Congress or the public.

David Priess shared that his experience briefing Mueller suggests that the special counsel will continue to conduct the Russia investigation diligently, honorably, and without distraction.

William Ford posted the livestream of the business meeting during which the Senate Judiciary Committee considered Mueller protection legislation.

Bob Bauer argued that Trump’s pardoning of Scooter Libby might constitute an attempt to build precedent for a future decision to exercise presidential power to protect himself.

Kahn posted the report issued by the Justice Department Inspector General on its investigation of allegations against Andrew McCabe, the former deputy director of the FBI.

In this week’s Middle East Ticker, J. Dana Stuster examined the Assad regime’s chemical weapons attack in Douma, an Israeli airstrike on a Syrian military airbase, President Trump’s weighing how best to respond to the chemical weapons attack, and protests along the Israel-Gaza border.

Jack Goldsmith and Oona Hathaway outlined five legal and practical downsides to bombing Syria in response to the chemical weapons attack. Chris Meserole argued that even if Trump bombs Syria, the strike is unlikely to deter future chemical weapons attacks by the Assad regime. Kahn shared the Lawfare Podcast, a conversation between Scott Anderson, Daniel Byman, and Tess Bridgeman about the president's weighing whether to strike Syria and more:

Tore Refslund Hamming and Pieter Van Ostaeyen argued that the split between al-Qaeda and its Syrian affiliate is real and that al-Qaeda’s presence in the Syrian conflict remains limited and locally-focused.

Daniel Byman proposed several steps for the administration to consider if it decides to push back against Russia in the Middle East.

Ed Stein dissected the latest sanctions imposed by the Treasury Department on various Russian entities, outlining who the department sanctioned and the effect the sanctions have had.

Elizabeth McElvein shared the newest polling data on election security, finding that most Americans are concerned by the state of U.S. election infrastructure and believe that Russia tried to interfere in the 2016 election.

Kahn posted another episode of the Lawfare Podcast, a conversation between Alina Polyakova and Vladimir Kara-Murza on Russia’s recent presidential election.

Robert Chesney and Steve Vladeck shared this week's National Security Law Podcast, in which the pair discuss a Russian steel company’s suit against the Trump administration over its steel tariffs, the military commissions, and, among other things, the Senate Foreign Relations Committee’s decision to renew debate around the Authorization for the Use of Military Force.

Elena Chachko flagged a new paper she wrote exploring the relationship between courts and policymakers in the foreign and security domain.

Ford posted the livestream of and the prepared testimony from CIA Director Mike Pompeo’s confirmation hearing to be secretary of state.

Quinta Jurecic suggested that President Trump’s failure to understand why the CIA waited to avoid civilian casualties before authorizing a drone strike underscores the moral void at the heart of his presidency.

In response to public outcry that Facebook CEO Mark Zuckerberg explain and answer for massive breaches of Facebook users' privacy, the tech mogul appeared before Congress twice this week. William Ford posted the livestream of and prepared testimony from Zuckerberg’s appearance before the Senate. Matthew Kahn shared Zuckerberg’s prepared testimony for the House Energy and Commerce Committee hearing and Ford posted the live video.

Stewart Baker posted the Cyberlaw Podcast, which included an interview with Chris Bing and Patrick Howell O’Neill.

Charles Duan proposed a new framework for considering encryption policy.

Alan Rozenshtein argued that the government needs access to encrypted data to solve crime, not to combat terrorism.

Kahn posted another episode of the Lawfare Podcast, a conversation between Benjamin Wittes and Tim Maurer about Maurer’s new book, “Cyber Mercenaries: The State, Hackers, and Power.”

Robert Chesney explored issues related to Title 10 and Title 50 and the impact of computer network operations on third countries.

Ford shared the livestreams of and prepared testimony from the House Armed Services Committee hearing on cyber operations and the Senate Armed Services Committee hearing on special operations.

Hayley Evans summarized the legal and technical developments related to lethal autonomous-weapons-systems (LAWS). She also outlined the U.S. and U.K. positions on LAWS.

Ashley Deeks argued that the U.S. military’s use of predictive algorithms mirrors law enforcement’s use of algorithms in the criminal justice context.

John Bellinger and his colleagues at Arnold & Porter filed an amicus brief on behalf of Evan McMullin—a former presidential candidate and CIA officer—and a number of scholars and commentators which contends that the president’s travel ban violates the congressional intent of the Immigration and Nationality Act’s non-discrimination clause.

Chimène Keitner reviewed Yascha Mounk’s new book, “The People vs. Democracy: Why Our Freedom Is in Danger and How to Save It” (Harvard, 2018).

And that was the week that was.