The Week That Was

The Week That Was: All of Lawfare in One Post

By Lev Sugarman
Saturday, January 19, 2019, 11:28 AM

Former Attorney General Bill Barr testified before the Senate judiciary committee in his confirmation hearings to serve as President Trump's attorney general on Tuesday and Wednesday. Matthew Kahn shared Barr’s prepared testimony. Drawing on lessons from Watergate, Mikhaila Fogel, Quinta Jurecic and Benjamin Wittes proposed 15 questions for senators to ask Barr. Fogel shared a livestream of the hearing, Matthew Kahn shared a special edition of the Lawfare Podcast featuring a condensed version of the hearing including only the segments focusing on national security and legal issues—with all the senatorial posturing and repeated questions cut out.

In the context of Barr’s nomination, Bob Bauer discussed the dilemma of balancing the maintenance of norms and pragmatic responses to norm-busting. Stephen Bates also unpacked Barr’s refusal to promise a release of Special Counsel Robert Mueller’s report. And on the Rational Security podcast, Shane Harris, Susan Hennessey and Tamara Cofman Wittes explored the Barr hearing, along with new stories on Trump’s relationship with Russia and a report that Trump explored withdrawing from NATO.

After the New York Times reported on Jan. 11 that the FBI opened a counterintelligence investigation into the president following his firing of FBI Director James Comey, David Kris explored the revelations while Jack Goldsmith weighed whether the opening of the investigation cut against the premise of Article II. Jurecic shared an excerpt from an August 2018 essay by Jim Baker exploring the fundamental issues of counterintelligence, and Stewart Baker argued that the Justice Department Inspector General should independently review the FBI’s move. On a special edition of the Lawfare Podcast, Benjamin Wittes discussed the Times report with Carrie Cordero, Chuck Rosenberg, David Kris, Jack Goldsmith and Susan Hennessey.

On a similar note, Philip Bobbitt examined the issues at stake in indicting and prosecuting a sitting president. 

News continued to break this week in the Russia investigation. Fogel, Hennessey, Jurecic, Kahn and Wittes delved into Friday’s BuzzFeed News report that Trump directed Michael Cohen to lie to Congress about a proposed real estate project in Moscow—though the special counsel's office is now disputing the report. Additionally, Robert Litt commented on a leak investigation conducted by U.S. Attorney John Durham, stating that the inquiry is unrelated to the Russia investigation and the Steele dossier.

Jack Goldsmith and Washington Post reporter Greg Miller called into the Lawfare Podcast to discuss Miller’s new book, “The Apprentice: Trump, Rusia, and the Subversion of American Democracy.”

This week has also not been quiet for Paul Manafort. Matthew Kahn shared a partially redacted memorandum from the Special Counsel’s Office detailing false statements given by Manafort. And Mikhaila Fogel shared a settlement agreement between the Justice Department and the law firm Sadden, Arps, Slate, Meagher & Flom LLP regarding the firm’s violations of the Foreign Agents Registration Act related to its work with Paul Manafort in Ukraine.

In cybersecurity news, Paul Rosenzweig commented on the report that a Kaspersky Labs tip led to the arrest of an NSA contractor accused of classified data theft. And Stewart Baker discussed Russian intrusions into the U.S. electricity grid with Matthew Heiman and Nick Weaver on the Cyberlaw Podcast.

Herb Lin and Amy Zegart announced the publication of their edited volume on the strategic elements of offensive cyber operations and shared the first chapter. Bruce Schneier evaluated a GCHQ proposal on government backdoors in encrypted messaging platforms, while Jack Watson and Beau Woods analyzed the U.K.’s new Code of Practice on internet-of-things security.  Chesney outlined the three FISA authorities that will sunset in December, detailing each and what to expect from Congress.

In military justice, Sarah Grant unpacked a judge’s rejection of an unlawful influence claim in the 9/11 military commission. Charlie Dunlap examined the Maj. Matthew Golsteyn case and its implications for civilian oversight of the military. And on the National Security Law Podcast, Bobby Chesney and Steve Vladeck spoke to members of the defense team in the al-Nashiri military commission and discussed Trump’s threatened national emergency declaration.

Moving abroad, Brookings’ Amanda Sloat continued her series on Brexit, explaining what’s at stake for embattled Prime Minister Theresa May and her latest Brexit deal. In light of Trump’s comments on the Soviet invasion of Afghanistan, Seth Jones more closely examined the historical record. Hilary Hurd analyzed Iran’s recent development of space-launch vehicles in the context of international law. Amichai Cohen and Yuval Shany explored recent decisions from the Israeli Supreme Court over house demolitions in the West Bank. And Thomas Kellogg assessed the international legal implications of China’s use of exit bans.

Mieke Eoyang, Ben Freeman, Ryan Pougiales and Wittes presented the most recent installment of their polling data on public confidence in government institutions and related issues—and Eric Parajon, Susan Peterson, Ryan Powers and Michael Tierney examined the results of a survey they conducted with IR scholars on attitudes towards the U.S.-led international order.

And that was the week that was.