The Week That Was

The Week That Was: All of Lawfare in One Post

By Lev Sugarman
Sunday, February 24, 2019, 7:16 AM

Editor's Note: "The Week that Was" is being posted a day late this week because Lawfare Editor in Chief Benjamin Wittes is a bonehead who was so overwhelmed by the week that he just clean forgot that it not only happened but had been summarized.

In response to President Donald Trump's declaration of a national emergency on the U.S.-Mexico border to fund a border wall, Jack Goldsmith analyzed the legally significant—and insignificant—aspects of the emergency declaration. Annika Lichtenbaum discussed the Office of Legal Counsel’s involvement in reviewing the form and the legality of the order. And Bob Bauer reviewed the role of the White House counsel’s office in issuing the declaration. Josh Blackman outlined ways that Congress could improve the National Emergencies Act, the partial basis for Trump’s action.

In light of litigation that has arisen in response to the emergency declaration, Robert Chesney highlighted the role of judicial deference to the executive branch in current and future legal challenges. Richard H. Pildes unpacked the implications of the 1983 INS v. Chadha Supreme Court decision for presidential emergency authority. And Robert Chesney and Steve Vladeck shared an episode of The National Security Law Podcast featuring discussion of the emergency declaration and corresponding litigation, along with the potential application of the 2001 AUMF in the use of force against Iran and more:

In L’Affaire Russe, multiple news outlets have indicated that Special Counsel Robert Mueller is expected to submit his final report to Attorney General Bill Bar in the near future. Mikhaila Fogel, Susan Hennessey, Quinta Jurecic and Benjamin Wittes proposed some principles to keep in mind when reading the report. And Mikhaila Fogel shared a Lawfare Podcast Shorts episode featuring a reading of the post by Hennessey:

Mueller’s team filed its sentencing memorandum in Paul Manafort’s case before the U.S. District Court for the Eastern District of Virginia. Quinta Jurecic posted the memorandum. Jack Goldsmith commented on Acting Attorney General Matthew Whitaker’s role in maintaining the independence of the Department of Justice. And Quinta Jurecic and Benjamin Wittes wrote on former FBI Acting Director Andrew McCabe’s 60 Minutes interview and its contributions to the overall public understanding of the Russia investigation.

This week in foreign policy, Evanna Hu discussed methods for measuring the effectiveness of countering violent extremism programs in the weekly Foreign Policy Essay. Ryan Scoville commented on troubling trends in presidential appointments of ambassadors. Elizabeth Allan and Scott Anderson analyzed congressional war powers activity relating to limiting U.S. support for the Saudi-led coalition in Yemen. And Haley Evans wrote on the ability of German courts to prosecute Syrian officials complicit in torture committed during the civil war.

John Bellinger commented on a declaration of democratic principles released by retired government leaders at the Munich Security Conference.

For the biweekly SinoTech series, Rachel Brown and Preston Lim summarized recent developments in U.S.-China trade talks, the new U.S. artificial intelligence strategy and more.

And Herb Lin discussed news reports on the existence of a covert U.S. program that has penetrated Iranian missile supply chains.

The House Oversight Committee released a report outlining alleged attempts of Trump administration officials, including Michael Flynn, to sell nuclear power technology to Saudi Arabia over the objections of White House lawyers and national security officials. Quinta Jurecic posted the report, and Jen Patja Howell shared an episode of Rational Security in which Tamara Cofman Wittes, Shane Harris, Susan Hennessey and Benjamin Wittes discussed the story, along with other topics:

Some notable criminal complaints came to light this week. A Coast Guardsmen was arrested in Maryland on firearms and drug charges, and detained while awaiting trial after the government said he presented a domestic terrorism threat. Mikhaila Fogel shared the criminal complaint, affidavit and the government’s motion for pre-trial detention. Elsewhere, a criminal complaint was unsealed in the U.S. District Court for the Northern District of California alleging that an IRS employee leaked financial records relating to Michael Cohen. Lev Sugarman posted the complaint.

Benjamin Wittes shared an episode of the Lawfare Podcast featuring the first episode of the new Culper Partners Rule of Law Series, in which David Kris and Nate Jones discussed rule of law issues with Senior Judge John Bates, the former presiding judge of the Foreign Intelligence Surveillance Court:

In technology and cybersecurity policy, Michael P. Fischerkeller and Richard J. Harknett discussed the logic of agreed competition in the context of cyberspace. Caleb Watney dissected Trump’s launch of a national artificial intelligence strategy. Tom Wheeler and Robert D. Williams evaluated U.S. attempts to secure 5G networks by limiting access to Chinese technology. And Stewart Baker shared an episode of the Cyberlaw Podcast featuring discussion of Federal Trade Commission negotiations with Facebook over a major fine, Trump’s artificial intelligence executive order and more:

Mary McCord and Eric Tirschwell discussed the Bureau of Alcohol, Tobacco, and Firearms’s prohibition on bump stocks.

Jen Patja Howell shared a Lawfare Podcast episode featuring a conversation with David Priess, Bill Harlow and Marie Harf on the public affairs office at the CIA:

And Robert Chesney announced a job announcement with UT-Austin’s Robert Strauss Center for a cybersecurity fellowship.

And that was the week that was.