The Week That Was

The Week That Was: All of Lawfare in One Post

By William Ford
Saturday, January 12, 2019, 7:52 AM

On Friday evening, the New York Times reported that in the days after President Trump fired then-FBI Director James Comey, federal law enforcement officials become so concerned with the president’s conduct that they opened a counterintelligence investigation into whether Trump was acting on behalf of Russia against U.S. interests. In response to the Times’s bombshell, Benjamin Wittes revisited the relationship between the “collusion” and obstruction components of the special counsel investigation, arguing that the two are far more related than Wittes and others previously understood. Wittes posed the following question to Lawfare’s readers: what if the president’s obstruction was the collusion?

On Tuesday, Jan. 8, Judge Katharine Parker of the U.S. District Court for the Southern District of New York unsealed an indictment charging Natalia Veselnitskaya, the Russian lawyer who took part in the 2016 Trump Tower meeting, with obstruction of justice in a civil asset forfeiture proceeding apparently unrelated to the Mueller investigation. Matthew Kahn posted the indictment, which details Veselnitskaya’s close ties to the Kremlin. And Wittes talked with Jaimie Nawaday, a former federal prosecutor who handled the case Veselnitskaya is charged with obstructing, about the indictment on a special edition of the Lawfare Podcast:

Following the discussion, Mikhaila Fogel, Kahn, and Wittes argued that Veselnitskaya’s indictment tells an extraordinary tale about the Russian government’s abuse of the U.S. judicial system.

In a separate court filing unsealed on Tuesday, attorneys for former Trump campaign manager Paul Manafort inadvertently revealed that their client shared campaign polling data with Konstantin Kilimnik, a business associate linked to Russian intelligence. While some suggested that the disclosure confirmed that the Trump campaign colluded with the Russians, Wittes offered a note of caution, arguing that we will not fully understand the disclosure until the special counsel investigation situates it within the broader pattern of interactions between the Trump campaign and Russia.

Following the Supreme Court’s decision not to intervene in In re: Grand Jury Subpoena, the mystery case of the subpoena that Special Counsel Robert Mueller is trying to enforce against an unnamed foreign state-owned company, the D.C. Circuit made public its decision to uphold the contempt citation against the bank. Matthew Kahn shared the D.C. Circuit’s ruling, and Ingrid Wuerth observed that the ruling fails to resolve the question of whether the Foreign Sovereign Immunities Act provides immunity to foreign countries and state-owned enterprises in criminal cases.

In response to Jack Goldsmith’s qualified defense of William Barr’s memo to the Justice Department criticizing the special counsel’s investigation into whether the president obstructed justice, Daniel Hemel and Eric Posner explained why they continue to believe Barr’s arguments are radical and wrong.

As Barr’s confirmation approaches, and as White House Counsel Pat Cipollone works to reinforce his office with competent lawyers in advance of looming confrontations with the special counsel investigation, commentators have begun to worry that the public may never see Robert Mueller’s final report. Confident in the special counsel’s ability to evade any efforts to suppress his investigation’s findings, Wittes explained how Mueller can write a report that neither the White House nor the Justice Department can squelch.

Regardless of how close the Mueller investigation is or is not to releasing its conclusions, the 116th Congress will continue to investigate possible links between the Trump campaign and the Russians. Accordingly, Anne Tindall and Jessica Marsden assessed how Congress’s experience with past investigations of criminal activity by a sitting president can inform the body’s ongoing role in the Russia probe.

Following the Russian government’s arrest of American Paul Whelan on charges of espionage, David Priess sat down with his former CIA colleague John Sipher to discuss Whelan’s case, the Russian government’s potential interest in Whelan as leverage to secure the release of Maria Butina, and the history of spy swaps between the two countries:

Donald Clarke examined China’s analogous use of hostage diplomacy, arguing that the Chinese may exploit the prosecution of Canadian Robert Schellenberg, in addition to the detention of two other Canadians, for leverage to force Canadian authorities to release Huawei executive Meng Wanzhou.

As the partial government shutdown enters its fourth week, President Trump continues to weigh whether to declare a national emergency to secure the funding needed to build his proposed border wall. Robert Chesney provided an overview of the legal framework that would apply if the president declared a national emergency to obtain funding for the wall. Margaret Taylor suggested that the president’s statutory authorities to construct a wall at the southern border are more expansive than they initially seem. Quinta Jurecic argued that, despite concerns, the decision to declare a national emergency to build a border wall would not constitute a step toward authoritarianism.

Discussion of the wall, the government shutdown, and the recent diplomatic work of non-furloughed federal employees such as National Security Adviser John Bolton and Secretary of State Mike Pompeo continued on this week’s Rational Security: The “No One’s Shutting Us Down” Edition:

On Friday morning, the U.S. officially began the withdrawal of all American ground forces from Syria. Nicholas Norberg assessed what the withdrawal might mean for Washington’s Kurdish partners. On this week’s National Security Law Podcast, Robert Chesney and Steve Vladeck decried the abruptness of the withdrawal and discussed the uncertain future of the ISIS fighters held captive by the Syrian Democratic Forces (SDF):

Seamus Hughes and Alexander Meleagrou-Hitchens told the story of Warren Christopher Clark, one of two American ISIS fighters the SDF reportedly captured on Jan. 6. Hughes and Bennett Clifford later flagged the reported capture of a 16-year-old American ISIS fighter, prompting the pair to question how the government plans to prosecute an underage foreign fighter.

Emma Broches and Julia Solomon-Strauss provided an update on federal prosecutions of international terrorism crimes in 2018. Though the trials of individuals affiliated with ISIS received the majority of the public’s attention, the pair noted that federal prosecutors also tried, convicted and sentenced individuals associated with al-Qaeda affiliates and other organizations.

During President Trump’s first address to a joint session of Congress in Feb. 2017, he claimed that a Justice Department report showed that the majority of individuals convicted of terrorism or related offenses in the U.S. came here from other countries. Following up on Lawfare’s extensive analysis of the now-debunked claim, Benjamin Wittes flagged the Justice Department’s recent letter to him and other people who criticized the report, which all but admitted that the department engaged in disinformation about immigrants and terrorism.

Wittes also sat down with Mary McCord and Jason Blazakis to discuss criminalizing domestic terrorism, which is not currently a federal crime, on an episode of the Lawfare Podcast:

In a recent essay for the Hoover Institution’s Aegis Paper Series, Peter Swire, Jesse Woo and Deven Desai considered whether governments can justifiably treat targets of surveillance differently on the basis of their nationality.

Chinmayi Sharma dissected the growing role of artificial intelligence in immigration enforcement. 

Cameron Kerry argued that Democratic and Republican leaders in Congress may work together to pass federal data privacy legislation.

Matthew Kahn posted the U.S. Court of Appeals for the Fourth Circuit’s ruling in Davidson v. Randall, which held that a Virginia county official who blocked a constituent from accessing her Facebook page violated the First Amendment.

Stewart Baker shared this week’s Cyberlaw Podcast, which consisted of a news roundup:

In this week’s SinoTech, Rachel Brown and Preston Lin discussed U.S.-China trade negotiations, the Fives Eyes allies’ coordinated attribution of a 12-year campaign of cybertheft and espionage to the Chinese government, and Apple’s decision to reduce its revenue projections for the first quarter of the fiscal year.

Jung Pak dissected Kim Jong Un’s New Year’s speech, as well as the North Korean leader’s trip to China.

Alvin Cheung suggested that the decision handed down by Hong Kong’s Court of First Instance in a December 2018 case should prompt a critical reevaluation of the legitimacy of the city’s judicial system.

Michelle Melton shared the second post in her ongoing series on climate change and national security, which analyzed the magnitude of the climate threat.

Matthew Waxman remembered the Ludlow Amendment, a proposed constitutional amendment that would have added a referendum requirement to Congress’s power to declare war, on the anniversary of its defeat on Jan. 11, 1938.

Sara Bjerg Moller contended that the potential deployment of U.S. forces to Poland would not solve the basic security challenges facing the country, and would instead create problems for the U.S.

Curtis Bradley, Jack Goldsmith and Oona Hathaway argued that the U.S. has not yet crafted an adequate system of oversight and accountability to govern its administrative regime for creating international agreements.

And David Priess issued a call for part-time freelance copy editors to come work for Lawfare.

And that was the week that was.