The Week That Was

The Week That Was: All of Lawfare in One Post

By William Ford
Saturday, August 25, 2018, 6:43 AM

On Friday, August 17, the Office of Special Counsel Robert Mueller filed a sentencing memorandum in the case of George Papadopoulos, who pled guilty to lying to the FBI. Quinta Jurecic posted the memorandum; she and Benjamin Wittes then unpacked it.

On Saturday, the New York Times reported that White House Counsel Donald McGahn has logged more than 30 hours of interviews with Mueller’s team, cooperating slightly more than the president had apparently anticipated. Bob Bauer responded to the Times’s story, observing that the reporting leaves unclear the role and obligations of the White House counsel when asked by a special prosecutor to supply information pertinent to an ongoing criminal investigation.

Benjamin Wittes convened Bauer, Carrie Cordero, and Paul Rosenzweig for a special edition of the Lawfare Podcast to discuss these revelations, the continued deliberation of the jury in Paul Manafort’s trial, and new murmurings about the president’s former personal lawyer and fixer, Michael Cohen:

On Tuesday, following days of tense deliberations, a jury in the Eastern District of Virginia convicted Paul Manafort on eight felony counts of bank fraud and tax evasion. The same hour, Michael Cohen pleaded guilty to eight felony counts of his own: five counts of tax evasion, one count of bank fraud, and two counts of campaign finance violations involving payments to secure the silence of Stormy Daniels and Karen McDougald. Cohen later admitted in court that he paid Daniels “at the direction of” Donald Trump “for the principal purpose of influencing the election.”  

Quinta Jurecic posted Cohen’s plea agreement, the criminal information, and the waiver of indictment. Mikhaila Fogel, Susan Hennessey, Jurecic, and Wittes assessed what Cohen’s plea deal and Manafort’s conviction mean for the president and the special counsel investigation. Bob Bauer considered the possible meanings of the campaign finance counts against Cohen.

Analysis of the events continued on this week’s Rational Security: “The “Individual-1 and the Terrible, Horrible, No Good, Very Bad Day” Edition:

Despite the conviction of his former campaign manager, Donald Trump made a series of public statements on Wednesday praising Manafort for not cooperating with the Mueller investigation and “flipping” on the president. Sarah Grant, Sabrina McCubbin, Yishai Schwartz, and Benjamin Wittes questioned whether the statements amounted to the president’s tampering with a witness.

Trump also tweeted Wednesday that the two counts of campaign finance violations to which Cohen pleaded guilty “are not a crime.” Recalling the president’s constitutional authority to “take care that the laws be faithfully executed,” Jim Baker wondered whether president’s tweet constitutes a legal determination that is binding on the executive branch.

In broader L’Affaire Russe news, Mikhaila Fogel shared the livestream of and prepared testimony from the Senate Banking, Housing, and Urban Affairs Committee hearing on Russian sanctions.

Former Facebook security chief Alex Stamos explained how the U.S. has failed to secure the 2018 elections and outlined four steps it can take to protect the 2020 elections.

Jack Goldsmith examined the conundrum of the former senior intelligence officials who wish to push back against the president’s attacks on the Mueller investigation and the intelligence community; he offered four suggestions for how best these officials can do so.

In news outside the whirlwind of L’Affaire Russe this week:

In response to a Freedom of Information Act request submitted by the nonprofit organization Protect Democracy, the D.C. District Court ruled that the Trump administration need not disclose the legal basis for its airstrikes in Syria in April 2017.

After almost a year of litigation, military commissions judge Col. James Pohl ruled that the government cannot introduce to the trial of the alleged perpetrators of the 9/11 attacks any statement that the accused made to FBI Clean Teams. Sarah Grant dissected Pohl’s ruling, which dealt the government’s case a significant blow.

Grant also provided an update on the last four months of litigation surrounding the administration’s proposed transgender service member ban, which is currently blocked by preliminary injunctions in each of the four cases challenging it.

Scott Anderson analyzed President Trump’s signing statement to the National Defense Authorization Act, in which the White House identified “constitutional concerns” with more than 50 of NDAA’s final provisions.

The National Security Division at the Justice Department accused two individuals—Majid Ghorbani and Ahmadreza Mohammadi-Doostdar—of acting as covert agents of the Iranian government. Mikhaila Fogel posted the criminal complaints and affidavits against Ghorbani and Mohammadi-Doostdar respectively.

Delving further into the topic of covert interference, Christopher Porter argued that the U.S. should embrace a cyber counterinsurgency strategy to beat back everyday cyberattacks that fail individually to rise to the level of acts of war. This cyber counterinsurgency strategy, he proffered, would serve the U.S. better than would doubling down on the current strategy of working to deter cyberattacks targeting specific critical infrastructure.  

Travis Moore called for applications to the TechCongress fellowship, an initiative that brings technologists to Congress through a one-year fellowship.  

In this week’s SinoTech, David Stanton and Wenqing Zhao examined U.S.-China trade negotiations, China’s intensifying regulation of video games and mobile apps, and other news related to U.S.-China tech policy.

In Water Wars, Nathan Swire collated the latest news, analysis, and opinions related to the ongoing tensions in the South and East China Seas, paying particular attention to the State Department’s $300 million in new security assistance for the Indo-Pacific region and the Defense Department’s Indo-Pacific Maritime Security Initiative.  

Masahiro Kurosaki contended that Japan’s approach to collective self-defense offers the best framework for maintaining the peace and security of global commons, particularly the freedom of the seas and cyberspace.

Rhiannon Smith and Jason Pack warned that Libya’s upcoming elections might exacerbate violence in the country rather than help resolve it.

Quinta Jurecic posted the now-unsealed 1999 special master’s report on possible leaks from the office of the independent counsel in the Starr investigation.

And Benjamin Wittes announced the creation of the official Lawfare Challenge Coin, a token of the site’s gratitude to those who donate to it and help sustain its work.

And that was the week that was.