The Week That Was

The Week that Was: All of Lawfare in One Post

By Mikhaila Fogel
Saturday, December 8, 2018, 11:00 AM

It was a busy Friday on Lawfare: the special counsel’s office filed a submission in the U.S. District Court for the District of Columbia providing more detail on Paul Manafort’s alleged breach his plea agreement, and both Mueller’s team and the U.S. Attorney’s Office for the Southern District of New York filed their sentencing memorandums against former Trump Organization lawyer Michael Cohen. Mikhaila Fogel shared all three documents, and Victoria Clark, Fogel, Quinta Jurecic and Benjamin Wittes analyzed the documents and what they might mean for the president.

Friday wasn’t the only day for Mueller investigation filings. The special counsel’s office filed a sentencing memo against Michael Flynn, which Quinta Jurecic shared on Lawfare. Jurecic and Wittes then discussed the memo’s intriguing contents. And when President Trump praised Roger Stone on Twitter for refusing to testify against him in the Mueller probe, Jurecic and Susan Hennessey and explored whether the tweets amounted to witness tampering, and Wittes outlined what he thought a federal judge should ask prosecutors about the tweets in court.

While the investigation over election interference in 2016 may be heating up, historian Dov Levin explored how the alleged election interference in 2016 compares with Soviet and American election interference during the Cold War.  

The president also announced his nominee for the next attorney general: former attorney general William Barr. Victoria Clark provided an overview of the legal challenges faced by the office’s current occupant, Acting Attorney General Matthew Whitaker. Meanwhile, Scott Anderson and Wittes shared the results of their Freedom of Information Act (FOIA) request showing that someone within the Department of Justice has sought and received ethics guidance regarding whether Whitaker ought to recuse himself from the Mueller investigation.

There was a surprise special edition of the Lawfare Podcast this week: Benjamin Wittes got on the phone with Preet Bharara to discuss a recent report Bharara has published along with the National Task Force on Rule of Law & Democracy. Before they knew it, the conversation had turned to presumptive attorney general nominee William Barr and, of course, the Mueller investigation. Mikhaila Fogel shared the episode.

Meanwhile, Robert Williams contextualized the arrest of Huawei’s CFO in Canada—reportedly at the request of the United States. In the third post on their series on the geoeconomics world order, Anthea Roberts, Henrique Choer Moraes and Victor Ferguson discussed how advancing how technological advancement and cybersecurity figure into China’s geoeconomic strategy.  And Charles Duan discussed how a legal dispute between Apple and Qualcomm could set up a potentially revealing showdown in the larger context of the Trump administration’s foreign economic policy.

Scott Anderson sounded the alarm on Israeli-Palestinian security cooperation, arguing that the recently enacted Anti-Terrorism Clarification Act (ATCA) threatens key U.S. foreign assistance to Palestinians. Elena Chacko analyzed on the Israeli Supreme Court’s recent decision in Tabish v. Attorney General further dilutes the restrictions on the use of force famously established by Public Committee Against Torture v. Israel.

In this week’s Middle East Ticker, J. Dana Schuster discussed the hearing new testimony on the Khashoggi Killing, Yemen peace talks, Qatar leaving OPEC and Israeli Prime Minister Benjamin Netanyahu’s new political and legal challenges. Daniel Byman noted that withdrawal of the Saudi-led coalition in Yemen would not completely solve the problems faced by the country in the grip of civil war.

It was Wednesday, so Jen Patja Howell shared this week’s episode of Rational Security, Tamara Cofman Wittes, Benjamin Wittes, Susan Hennessey and Shane Harris had a very legal and very cool chat about Michael Flynn, Michael Cohen and the tenuous political situation in Israel.

Arthur P.B. Laudrain analyzed French President Emmanuel Macron’s new cyber initiative: The Paris Call for Trust and Security in Cyberspace. Meanwhile, Lawfare’s Crypto essay series continued with Mayank Varia providing a roadmap for Exception Access research and policy.

Stewart Baker shared this week’s episode of the Cyberlaw Podcast, featuring a discussing of trolling and adtech.

Howell shared an episode of the Lawfare Podcast featuring a discussion from the Crypto 2018 Workshop on Encryption and Surveillance in Santa Barbara.

Quinta Jurecic shared an order from the U.S. District Court for the District of Columbia declining to grant the government's motion for a stay of the court's preliminary injunction halting implementation of the ban on military service by transgender individuals. She also shared an unusual Justice Department filing, in which the department, arguing that the court should not take President Trump’s tweets about the Carter Page FISA seriously or literally. And Clark shared the petition for a writ of certiorari filed by the defense team for Moath Hamza Ahmed al-Alwi—a Yemeni citizen who was captured in Pakistan in 2001 and has been detained at Guantanamo Bay since 2002—challenging the basis for al-Alwi’s detention under the 2001 Authorization for the Use of Military Force.

Two of Lawfare’s founding editors published two helpful legal resources. Bobby Chesney shared his new 62-page syllabus on cybersecurity law and policy. And Jack Goldsmith shared the Winter 2018 Supplement for Bradley & Goldsmith, Foreign Relations Law: Cases and Materials (6th ed. 2017).

Former Acting Attorney General Mary McCord argued that, it the wake of the Pittsburgh shooting, it’s time for Congress to make domestic terrorism a federal crime.

Gabriel Schoenfeld reviewed David Priess recent book “How to Get Rid of a President: History’s Guide to Removing Unpopular, Unable, or Unfit Chief Executives.”

Natalie Salmanowitz provided an overview of the use and legal implications of lie detection at U.S. airports.

And that was the week that was.