The Week That Was

The Week That Was: All of Lawfare in One Post

By Anushka Limaye
Saturday, November 10, 2018, 10:29 AM

On Wednesday afternoon, Attorney General Jeff Sessions resigned at the request of Donald Trump, and his chief of staff, Matthew Whitaker, replaced him on an acting basis. Matthew Kahn shared Sessions’s resignation letter; Mikhaila Fogel, Susan Hennessey, Quinta Jurecic, Matthew Kahn, Anushka Limaye and Benjamin Wittes provided a comprehensive summary and analysis of Sessions’s firing, Whitaker’s rise, and the attorney general’s role in the Mueller investigation.

Whitaker previously served as a campaign chairman for Sam Clovis, a witness in special counsel Robert Mueller’s investigation into Russian collusion. This connection may represent a conflict of interest, and on Friday, Scott R. Anderson and Benjamin Wittes sent in FOIA requests on whether or not Whitaker has sought ethics advice on the issue. John E. Bies also explored the potential obligation of Whitaker to recuse himself, as well as the constitutionality of Whitaker’s appointment and the president’s authority to appoint him under the FVRA.

Wittes posted a special edition of the Lawfare Podcast on Sessions, Whitaker, and the Mueller investigation:

This week’s episode of Rational Security, posted on Wednesday evening by Jen Patja Howell, also featured a discussion of former Attorney General Jeff Sessions’s resignation, and covered Tuesday’s midterm elections, too:

Whitaker’s first day as acting attorney general saw an amended Justice Department rule and presidential proclamation on asylum at the Southern Border. The new rules make border ports of entry the only locations in which asylum-seekers can apply for asylum, and render ineligible for asylum those who enter the U.S. in violation of U.S. law. Matthew Kahn shared the interim rule and the text of the proclamation, and Peter Margulies analyzed how the courts might view the new rules on asylum. Kahn also shared a lawsuit by three immigrant advocacy organizations represented by the ACLU in the Northern District of California challenging the legality of the proclamation.

On Thursday, oral arguments took place in the U.S. Court of Appeals for the D.C. Circuit for Andrew Miller’s suit challenging the constitutionality of Robert Mueller's appointment as special counsel. Jeremy Gordon provided a preview of the oral argument, and George Conway and Benjamin Wittes provided a summary of the argument.

Stephen Bates argued that Special Prosecutor Leon Jaworski’s Watergate Road Map may be a bad model for Special Counsel Robert Mueller.

Tuesday’s midterm elections saw a Democrat takeover of the House and Republican retention of the Senate. The day before the election, Molly E. Reynolds explored the motivations behind a sudden upswing in House members trying to join the House intelligence committee.

Daniel Byman argued that having a Democrat-controlled House can help decrease the risk of terrorism, limit the endless post-9/11 wars, and restore some coherence to the U.S.’s Middle East policy.

The Cyberlaw Podcast this week, posted by Stewart Baker on Tuesday, focused on a discussion of whether foreign governments would hack the election:

On the topic of election security, Mikhail Fogel flagged the Office of the Director of National Intelligence, the Department of Homeland Security, the Department of Justice and the FBI’s election day joint statement affirming their efforts to combat foreign influence efforts.

On Monday, the U.S. released another round of sanctions on Iran. Hilary Hurd provided a comprehensive analysis of what the Treasury Department is doing, and how various parties to the deal are responding. Suzanne Maloney assessed the Trump administration’s goals and end game for Iran sanctions. J. Dana Stuster posted this week’s Middle East Ticker, which also covered the sanctions along with a new wave of Islamic State Attacks and the escalating violence and calls for ceasefire in Yemen.

The Department of Justice released a 2014 Office of Legal Counsel opinion approving airstrikes against the Islamic State under the president’s Article II authority, and Mikhaila Fogel shared the opinion.

In cybersecurity news this week, Matthew Kahn shared the National Security Agency General Counsel Glenn Gerstell’s keynote address to the 2018 ABA National Security Law Conference, Chris Meserole discussed the security dilemma that artificial intelligence presents and what it will take to mitigate the risks of the technological arms race, and Michael P. Fischerkeller and Richard J. Harknett argued that the U.S. should pivot its doctrinal approach to cyber conflict towards persistent engagement and tacit bargaining.

On Wednesday, Evelyn Douek assessed Business for Social Responsibility’s report on the the effect of Facebook’s presence on the violence in Myanmar. In other social media news, Paul Rosenzweig reviewed P.W. Singer and Emerson T. Booking’s book, “LikeWar: The Weaponization of Social Media”.

The National Security Law podcast this week, posted by Robert Chesney and Steve Vladeck on Wednesday, was the final episode in Chesney and Vladeck’s trilogy of deep dives, exploring the history and evolution of foreign-intelligence collection legal architecture:

Sunday marked the anniversary of St. Clair’s defeat in the Indian Wars, by some measures the worst defeat the U.S.’s worst battlefield defeat ever. Matthew Waxman explored the history of the incident’s effect on executive-congressional relations, war powers and a national military establishment.

On Monday, Matthew Kahn flagged the Congressional Research Service’s report on the 25th amendment and the many controversies around its treatment of presidential disability, and David Priess argued that those who undermine the presidency from within risk subverting the rule of law.

And that was the week that was.