The Week That Was

The Week that Was: All of Lawfare in One Post

By William Ford
Saturday, September 8, 2018, 11:02 AM

On Friday, Sept. 7, Judge Randolph Moss of the U.S. District Court for the District of Columbia sentenced former Trump campaign adviser George Papadopoulos to 14 days in jail for lying to the FBI about his contacts with individuals linked to the Russian government. In advance of Friday’s sentencing hearing, Mikhaila Fogel posted the defense team’s sentencing memo, which tried to paint Papadopoulos as a man “out of his depth” when dealing with the Trump campaign and Russian officials.

That same day, the U.S. Attorney for the Southern District of New York charged Andrei Tyurin, a Russian citizen, with participating in a campaign to hack U.S. companies. Matthew Kahn posted the two unsealed superseding indictments against Tyurin, who was extradited to the U.S. by the government of Georgia.

Friday also marked the beginning of the 60-day countdown to the 2018 midterm elections. In the lead-up to Friday, Trump’s personal lawyer Rudy Giuliani argued that the approach of the 60-day period preceding the midterms meant that Special Counsel Robert Mueller must either conclude a substantial portion of his investigation or lie low until after the November elections. Citing Justice Department inspector general Michael Horowitz’s recent report on the FBI’s conduct during the Clinton email investigation, Quinta Jurecic explained why Giuliani’s reasoning is simply wrong.

Attacks from the president and his allies on the investigation into potential collusion between the Trump campaign and the Russian government continued with condemnations of the FISA Court’s alleged failure to hold a hearing on merits of the Carter Page FISA warrant application. According to the declassified application, the government had reason to believe that Page, a former foreign policy advisor to the Trump campaign, was the subject of a “targeted recruitment by the Russian government.” In response, David Kris explained how the FISA court actually works, and why the lack of a hearing on the application to surveil Page does not mean that the court failed to scrutinize the application sufficiently or ask “tough, probing questions” about it.

Following the president’s announcement that White House Counsel Donald McGahn will leave his post this fall, former White House counsel Bob Bauer gave an early appraisal of McGahn’s tenure, his understanding of the role of the White House counsel and the agenda McGahn developed for his office despite the reported chaos of the West Wing.

On Wednesday, Sept. 5, the Senate intelligence committee held a hearing on foreign influence operations’ use of social media platforms. The hearing—part of the panel’s broader inquiry into Russian interference in the 2016 election campaign—included testimony from Sheryl Sandberg, Facebook’s chief operating officer, and Jack Dorsey, the chief executive officer of Twitter. Matthew Kahn shared the livestream of the hearing. Evelyn Douek lauded the progress that Congress and tech companies have made in understanding and starting to combat foreign influence operations, but warned that more work must be done. Herb Lin explained how researchers can design new ways to fight information warfare and foreign influence campaigns.

Ahead of Sweden’s upcoming national elections, Johan Sigholm recounted his experience being targeted by a troll campaign in the wake of an article he and a colleague published on Russia’s attempts to meddle in democratic elections.

According to reporting from the New York Times, the CIA’s human sources in Moscow “have largely gone silent,” leaving the CIA and other intelligence agencies uncertain about Russian President Vladimir Putin’s plans to influence the U.S. midterm elections in November. Last weekend, Benjamin Wittes sat down with John Sipher, a former CIA officer who was stationed in Moscow in the 1990s, to discuss the Times story, the fragility of human source operations and what the government can do to minimize negative impacts on intelligence collection:

Kahn posted the criminal complaint filed by the Justice Department against Park Jin Hyok, a North Korean spy charged with the hacking of Sony Pictures in 2014, the hacking of Bangladesh’s central bank in 2016, and the WannaCry attacks of 2017.

Barbara McQuade, a veteran federal prosecutor, explained how President Trump’s comments on “flipping” witnesses damage law enforcement’s ability to convict criminals and protect the public.

On Tuesday, Sept. 4, the Senate Judiciary Committee held the first of four confirmation hearings on the nomination of Judge Brett Kavanaugh to serve as an associate justice of the U.S. Supreme Court. Democratic senators decried the committee’s lack of access to a series of documents from Kavanaugh’s time in the George W. Bush White House, some of which the Trump administration has withheld under an implied assertion of executive privilege and some of which were not requested by the committee majority on the grounds that they were irrelevant to the confirmation process. Before Kavanaugh’s testimony began in earnest on Wednesday, Fogel provided an overview of the three different caches of documents at issue.

Following the second and third days of hearings, the Lawfare Podcast aired condensed versions of Kavanaugh’s testimony before the Senate Judiciary Committee. These special editions of the Lawfare Podcast included only the committee’s questions on and the judge’s answers to legal matters related to national security, presidential power, and presidential investigation.

Jurecic shared the first of the two features, Kavanaugh vs. the Committee With No Bull, Part 1:

And Kahn posted Part 2:

Following the fourth day of hearings, Kahn also posted Rebecca Ingber’s testimony on Kavanaugh’s approach to executive deference on matters related to national security and international law, as well as former White House Counsel John Dean’s testimony on executive power.

In this week’s Middle East Ticker, J. Dana Stuster examined the Assad regime’s coming offensive against the rebel enclave in Idlib province; the coalitions vying for control of Iraq’s parliament; and the Trump administration’s decision to sever U.S. funding to UNRWA, the U.N. agency responsible for supporting Palestinian refugees in the West Bank and neighboring countries.

Close scrutiny of the decision to pull funding from UNRWA continued on this week’s Rational Security, The ‘New Digs’ Edition. The group also discussed Bob Woodward’s upcoming book “Fear,” which reportedly shows the Trump presidency on the verge of a nervous breakdown, and the president’s anger at Attorney General Sessions for indicting two of the president’s congressional supporters:

Jim Baker, former general counsel to the FBI, outlined how we can identify, understand, and protect our most valuable artificial intelligence assets.

In response to the growing feud between Washington and Ankara, Kemal Kirisci observed that while Turkey might not like the West, it will need the help of the U.S. and Europe to escape its worsening economic crisis.

Daniel Byman examined the fraught peace between Israel and Lebanon and questioned whether it will last.

Fogel posted a motion to preclude capital punishment in the case of Sayfullo Saipov, who is charged with killing eight people and injuring 12 in a vehicular terrorist attack in New York last year. According to the defense counsel, the motion was prompted by a series of Trump’s tweets.

Zann Isacson explored how Congress, the executive branch and technology companies can combat terrorism online.

In a paper for the Hoover Institution’s Aegis Series, Danielle Citron and Quinta Jurecic delved further into the subject of content regulation on major technology platforms, outlining the dangers and possibilities of legislative and technological solutions to content moderation.

Hayley Evans and Shannon Togawa Mercer argued that the current tug-of-war between the U.S. and the EU on Privacy Shield will offer clues about the future of global privacy regulation.

In this week’s SinoTech, David Stenton and Wenqing Zhao addressed Chinese telecommunications company Huawei’s appeal to the Federal Communications Commission for access to U.S. markets and recent U.S.-China trade negotiations.

Stewart Baker and Alan Cohn examined all things blockchain and cryptocurrency on the latest episode of the Cyberlaw Podcast:

Phil Caruso assessed how the experience of developing American airpower can inform current debates about the Trump administration’s proposal to establish a Space Force.

Bobby Chesney and Steve Vladeck dissected the Supreme Court’s landmark 1952 decision in Youngstown Sheet & Tube Co. v. Sawyer, the steel seizure case, on this week’s National Security Law Podcast:

Jack Goldsmith called on former intelligence community employees who have had bad experiences with their agencies’ prepublication processes to share these experiences with the Knight Institute and the American Civil Liberties Union.

And Susan Hennessey announced that Lawfare is now accepting applications for a two-year, joint Brookings-Lawfare fellowship covering congressional activity on national security issues.

And that was the week that was.