The Week That Was

The Week That Was: All of Lawfare in One Post

By Rachel Bercovitz
Saturday, May 5, 2018, 10:43 AM

On Monday evening, the Washington Post reported that Special Counsel Robert Mueller had threatened to subpoena President Trump to appear before a grand jury should Trump refuse to speak with federal investigators. Benjamin Wittes turned to game theory in examining how the special counsel's challenge to the president would likely unfold. Wittes and Steve Vladeck concluded that the special counsel would likely prevail in a legal challenge from the president. Meanwhile, Keith Whittington urged reflection on the wisdom of issuing a subpoena, arguing that key constitutional and policial challenges could hamper the judiciary’s power to compel testiomy.

Wittes assessed the “49 questions” that Mueller reportedly has for President Trump. Along with the announcement of White House lawyer Ty Cobb’s departure, the questions inspired this week’s Rational Security, the “49 Questions Mueller Mustache” edition:

Quinta Jurecic evaluated legislation introduced in recent weeks by the House and Senate to compel the special counsel to report to Congress in the event of his dismissal.

Last Friday, the House intelligence committee released the committee majority’s report on Russian interference in the 2016 elections. Carrie Cordero dissected the report, arguing that it contributes little to our understanding of the scope and nature of Russian activities.

Grayson Clary suggested that the Democratic National Committee’s lawsuit against Russia could be brought through a noncommercial tort exception of the Foreign Sovereign Immunities Act. Daniel Byman set forth the consequences of designating Russia a state sponsor of terrorism.

Scott Anderson highlighted the repatriation of Guantanamo detainee Ahmed al-Darbi to Saudi Arabia—the first detainee transfer under Trump. U.S. officials had delayed al-Darbi’s transfer, previously set for Feb. 20, pending “assurances from the Saudi Arabian government”—a move, critics charged, reflecting the administration’s unwillingness to carry out transfers.

Following a report this Wednesday of efforts by National Security Council personnel to annul a presidential directive governing interagency coordination on cyber matters, Bobby Chesney counseled caution in taking steps to remove interagency checks. David Kris dissected the laws and norms governing information and intelligence sharing with Congress and the President.

Saturday’s Lawfare podcast featured a recording of last Thursday’s Georgetown Law panel on norms governing relations between the White House and Justice Department.

Later in the week, Wittes spoke with Steven Levitsky and Daniel Ziblatt, authors of "How Democracies Die."

In the latest Middle East Ticker, J. Dana Stuster addressed France, Germany, and Israel’s attempts to sway Trump’s posture regarding the Iran deal; outlined the escalating confrontation between Israel and Iran in Syria; and highlighted the upcoming elections in Lebanon (May 6), Iraq (May 12), and Turkey (June 24).

Lebanese voters prepare to cast their ballots in parliamentary elections this Sunday—the first in nine years. Hady Amr assessed the good and the bad of Lebanon’s electoral system, concluding that while hampered by a contentious consociational system and gerrymandering, the system—“warts and all”—has kept the country intact and may create an opening for surprise reforms down the road.

Meanwhile, as Turkey gears up for its June 24 snap general elections, Kemal Kirisci and Kutay Onayli argued that free and fair elections are critical to assuring Erdoğan’s continued grip on power. The prospect of credible elections remains uncertain, however, given government crackdowns on the opposition and constraints on freedoms of assembly and the press.

Stewart Baker posted the latest episode of the Cyberlaw Podcast.

In the latest Foreign Policy Essay, Katerina Papatheodorou argued the U.S. should develop a comprehensive strategy to prevent and counter violent extremism. Michael Glennon contested Jack Goldsmith’s comparison of the U.N. Charter to Article II war powers. Philip Bobbit flagged his new Hoover Institution report, “A Helsinki Conference for Asia,” in which he proposes a series of agreements to address the threat of North Korea’s nuclear ambitions.

Sophia Brill returned to last Wednesday’s Supreme Court oral argument in Trump v. Hawaii, evaluating the solicitor general’s claim that the travel ban applies only to countries that have not met the U.S.’s “baseline of information” standard for evaluating entrants.

Goldsmith highlighted former FBI director James Comey’s “principles of ethical leadership” set forth in Comey’s memoir, “A Higher Loyalty: Truth, Lies, and Leadership.”

Jennifer Daskal and Peter Swire outlined recommendations for the negotiation of executive agreements under Section 5 of the Cloud Act, legislation facilitating law enforcement’s access to data stored abroad. Matthew Kahn argued that the possible fragmentation of the WHOIS database would be detrimental for U.S. law enforcement, which relies on the database to identify and track malicious internet domains.

Dan Efrony proposed a strategy for reducing cyberconflicts and improving cybersecurity, an alternative to the respectable yet impractical aims of Microsoft president Brad Smith’s proposed “digital Geneva Convention.” Herb Lin and Max Smeets identified critical missing elements from the U.S. Cyber Command’s new command strategy, released in March.

Ryan Budish flagged the latest Aegis paper, presenting a framework for considering the international implications of domestic encryption policies. Evelyn Douek suggested the European Commission’s communication on confronting disinformation, which calls for social media platforms to regulate disinformation on their sites, would curtail online speech.

Anderson and Megan Reiss discussed findings from their recent public opinion survey on the alignment of public attitudes concerning the use of force with domestic and international law. In the first of several posts on the survey, the authors examined how public opinion responded to three key variables: necessity, proportionality, and congressional authorization.

In this week’s SinoTech, Wenqing Zhao and David Stanton flagged the U.S.’s recent export ban on Chinese telecom ZTE as the latest in a series of U.S. and Chinese actions bearing implications for their respective tech sectors, and discussed Chinese President Xi Jinping’s increasing regard for domestic tech innovation as central to Chinese development. Zhao and Stanton also highlighted the recent entrance of Chinese ridesharing firm Didi Chuxing into the Mexican market, where Uber holds a nearly 90% market share.

Eric Posner reviewed Samuel Moyn’s book “Not Enough: Human Rights in an Unequal World” (Harvard, 2018).

Chesney and Vladeck posted the latest episode of the National Security Law podcast, tackling Military Judge Col. James Pohl’s April 25 ruling denying defendant Mustafa al-Hawsawi’s defense motion to dismiss in United States v. al-Hawsawi; the legal weight of reports that “major combat operations” have concluded in Iraq; and the contours of Defense Secretary Jim Mattis’s report on the future of detainee policy, among others.

Orin Kerr considered whether the House intelligence committee majority report on election interference showed that Donald Trump Jr. had admitted to violating the Computer Fraud and Abuse Act, a misdemeanor that under certain circumstances could amount to a more serious felony.

Rudy Giuliani made headlines with his statement Wednesday night that the president had repaid personal lawyer Michael Cohen for a $130,000 settlement with Stormy Daniels. Bob Bauer evaluated Giuliani’s assertion that Trump’s repayment was carried out to dispel possible concerns about campaign finance.

Kahn posted the Office of the Director of National Intelligence’s 2017 transparency report.

And that was the week that was.