The Week That Was

The Week That Was: All of Lawfare in One Post

By William Ford
Saturday, December 22, 2018, 9:17 AM

On Thursday, Dec. 20, in a concise letter that outlined the differences between his worldview and the president’s, Defense Secretary Jim Mattis announced his resignation, effective Feb. 28, 2019. Quinta Jurecic posted the letter, which came just one day after President Trump ordered the total withdrawal of U.S. ground forces from Syria. Daniel Byman offered an analysis of the president’s decision. Shane Harris, Amanda Sloat, Benjamin Wittes and Tamara Cofman Wittes discussed the announcement on this week’s Rational Security, The “Syria Later” Edition:

John Bellinger reminded Lawfare’s readers of the warning he and other former national security officials delivered on August 8, 2016: that if elected, “Donald Trump would be the most reckless President in American history” for he has “little understanding of America’s vital national interests, its complex diplomatic challenges, [and] its indispensable alliances.”

Steve Slick offered a preliminary roadmap for repairing the damage Trump has wrought on the U.S. intelligence community.

On this week’s Lawfare Podcast, David Priess examined how presidents have been removed from office in the past:

Back in June, we learned this week, the president’s nominee for attorney general, William Barr, sent an unsolicited memorandum to the Justice Department describing Special Counsel Robert Mueller III’s investigation into whether Trump obstructed justice as “fatally misconceived” and “legally insupportable.” Jurecic posted the memo, and Mikhaila Fogel and Benjamin Wittes dissected it, asserting that Barr’s argument is premised on made-up facts.

On Thursday, the Justice Department explained in a letter to Congress why Acting Attorney General Matthew Whitaker, a vocal opponent of the Mueller investigation before joining the Trump administration, will not recuse himself from the Russia probe. Jurecic shared the letter.

Amidst this tumult, prosecutors in the Special Counsel’s Office logged a busy week in court.

On Tuesday, Dec. 18, a little over a year after he pleaded guilty to one count of making false statements to the FBI, former National Security Adviser Michael Flynn appeared before Judge Emmet Sullivan to receive his sentencing. In recognition of Flynn’s extensive cooperation with federal prosecutors—evinced most recently by a grand jury’s indictment of two of Flynn’s former associates, Bijan Rafiekian and Kamil Ekim Alptekin, for attempting to secure the extradition of Turkish cleric Fethullah Gulen to Turkey—both the Special Counsel’s Office and the defense proposed a light sentence for Flynn. Both parties opposed jail time.

But as Tuesday’s sentencing hearing approached, a number of conspiracy theories sought to cast doubt on Flynn’s culpability for the crime of lying to the FBI in a January 2017 interview. Thus, at the request of Judge Sullivan, the Special Counsel’s Office released a redacted version of the report FBI agents produced immediately after their interview with Flynn. Jurecic shared the report. During the sentencing hearing on Tuesday, Judge Sullivan threatened to impose jail time on Flynn and suggested that Flynn might have committed treason. Jurecic and Wittes criticized the judge’s behavior.

Later on Tuesday, the D.C. Circuit Court of Appeals issued a ruling in a sealed case related to a grand jury matter believed to be linked to the special counsel investigation. Jurecic shared the mysterious ruling; Jurecic and Scott Anderson then unpacked it. Ingrid Wuerth later discussed what this case says about criminal prosecutions of foreign state-owned enterprises.

In the wake of Michael Cohen’s sentencing earlier this month, Bob Bauer and Jurecic argued that Trump’s involvement in the campaign finance violations Cohen committed constitutes an impeachable offense. Their argument generated a number of critical responses, which the pair addressed in an essay defending their initial contention.

In response Laurence Tribe’s argument that a sitting president can be indicted, Philip Bobbitt asserted the opposite. Tribe then responded to Bobbitt’s counterargument.

The Senate Select Committee on Intelligence released two reports this week on the Internet Research Agency (IRA), the Russian troll farm that the Special Counsel’s Office indicted in February on charges of conspiracy to defraud the United States. Mikhaila Fogel shared the reports, which examined the IRA’s influence operations in detail.

Jurecic highlighted a passage from one of the reports indicating that the IRA, in the process of recruiting assets to spread disinformation, appears to have sought to stockpile material for the sextortion of those assets. To Jurecic’s knowledge, this marks the first state-sponsored effort to use online sextortion for intelligence purposes.

To combat the type of information operations Russia undertook before, during, and after the 2016 presidential election, Sen. Mark Warner (D-Va.) proposed a “New Doctrine for Cyberwarfare & Information Operations” in a speech at the Center for a New American Security. Jen Patja Howell shared the speech on the Lawfare Podcast

Margaret Taylor argued that the administration’s decision to lift the Treasury Department’s sanctions on Russian oligarch Oleg Deripaska highlights the role Congress should play in decisions related to foreign affairs.

On Thursday, the Justice Department charged two hackers linked to the Chinese government with economic espionage. Fogel posted the indictment, and Matthew Kahn shared the livestream of the press conference announcing the indictment.

As both state and non-state hackers continue to launch cyberattacks at the U.S., Gregory Falco and Herb Lin examined what it might mean for “hacking back”—defined broadly as a counter-cyberattack against the initial attacker’s computer—to be considered a violation of the Computer Fraud and Abuse Act.

Allison Peters praised the “Paris Call for Trust and Stability in Cyberspace” as an important step toward outlining common principles for securing cyberspace, but noted that the norms advanced by the Call will only be as strong as their enforcement.  

Stewart Baker shared the latest episode of the Cyberlaw Podcast, which addressed recent regulatory developments in cryptocurrency and blockchain:

In this week’s Middle East Ticker, J. Dana Stuster discussed the partial ceasefire in Hodeidah, Yemen; reports that the Trump administration is considering extraditing Turkish cleric Fethullah Gulen to Turkey; and Turkish President Recep Tayyip Erdogan’s recent threat to launch a new military offensive in eastern Syria, which would target areas held by U.S.-backed Kurdish forces.

Sarah Grant flagged the conviction of Nicholas Slatten, a former Blackwater guard, for the 2007 massacre of Iraqi civilians that killed or wounded 31.

Michael Kugelman and Adam Weinstein argued that to prosecute the new type of Pakistani extremist who challenges state institutions but does not reject the state, the Pakistani government must launch a comprehensive response that includes both short-term legal action and long-term efforts to undermine the ideological appeal of the country’s extremists.

Assaf Moghadam and Michel Wyss debunked five myths about proxy war and advanced a more sophisticated way to understand the phenomenon.

Karen Young argued that Gulf states and China are becoming closer partners, forming relationships that will change regional trade, investment, and reconstruction practices. 

Elsa Kania examined U.S. policy toward Chinese telecommunications giant Huawei, placing genuine American concerns about the powerful tech company in the broader context of U.S. competition with China in the development of 5G and other emerging technologies.

On this week’s National Security Law Podcast, Bobby Chesney and Steve Vladeck closed out 2018 with a deep dive into the state secrets privilege:

Zach ZhenHe Tan surveyed the impact of the Supreme Court’s ruling in Jesner v. Arab Bank.

Orin Kerr flagged two draft chapters he wrote on implementing the Supreme Court’s decision in Carpenter v. United States, and welcomed feedback on those chapters.

Peter Margulies unpacked Judge Jon Tigar’s decision to grant a preliminary injunction against the Department of Homeland Security’s rule precluding the government from granting asylum to individuals who enter the U.S. at undesignated border locations.

And Paul Rosenzweig thanked all those who serve our country and sacrifice on our behalf. He wished Lawfare’s readers the happiest of holidays.

And that was the week that was.