The Week That Was

The Week That Was: All of Lawfare in One Post

By Mikhaila Fogel
Saturday, May 4, 2019, 9:03 AM

It was another contentious week between Congress and the Trump administration. John Bies argued that the Trump administration’s “stonewalling” of congressional investigations flouts constitutional norms. Jonathan Shaub analyzed how the two branches have historically viewed their constitutional authorities, and how that affects questions regarding congressional subpoenas. Shaub also dove into the issue of whether former White House counsel Don McGahn will testify before Congress about the Mueller report.

Benjamin Wittes discussed all things Congress vs. the Trump administration with Margaret Taylor and Molly Reynolds in an episode of the Lawfare Podcast shared by Jen Patja Howell:

On Wednesday, Attorney General Bill Barr sparred with the Senate Judiciary Committee. Fogel shared a livestream of the hearing, and Elena Kagan cut out the non-substantive parts of the six-hour hearing to give us a one-hour bonus episode of the Lawfare Podcast:

On Thursday, Speaker of the House Nancy Pelosi accused Barr of criminally lying to Congress at a difference hearing—Mikhaila Fogel and Quinta Jurecic asked if there’s an actual criminal case.

Patja Howell also shared this week’s episode of Rational Security, featuring a discussion on Barr, Rod Rosenstein and National Security Advisor John Bolton:

Analysis of the Mueller report and investigation continued with Jurecic exploring Mueller’s interpretation of the Take Care Clause. Josh Blackman argued that Mueller's theory on the Take Care Clause has no basis in precedent and probed whether the special counsel’s constitutional analysis might chill the president’s performance of Article II duties. Scott Anderson examined Barr’s assertion that President Trump’s cooperation with the special counsel investigation is evidence that he did not intend to obstruct the investigation. And Wittes sat down with Anthony Cormier and Jason Leopold of Buzzfeed News for an after-action report on their coverage of the Trump Organization and the Mueller investigation—Patja Howell shared the podcast:

On the National Security Law Podcast, Bobby Chesney and Steve Vladeck discussed Jewel v. NSA, Trump’s subpoena litigation and (you guessed it) the Mueller report:

Speaking of Mueller, the D.C. Circuit declined to rehear Roger Stone associate Andrew Miller’s case challenging the constitutionality of the special counsel’s appointment; Fogel shared the court’s orders. Mueller also apparently sent a letter—shared by Matthew Kahn—to the attorney general, expressing concerns about Barr’s public analysis of the investigation’s conclusions. White House lawyer Emmet Flood wrote a letter to the attorney general taking issue with Mueller’s obstruction analysis, which Fogel posted.  

On immigration, Peter Margulies analyzed Trump’s new restrictions on asylum seekers, and Jurecic shared a federal court order denying the dismissal of a travel ban case.

Jarod Taylor examined the escalating tensions between the U.S. and Turkey over the suspended delivery of  F-35s.

Eric Halliday inaugurated a new series on transnational organized crime and national security.

Tyrone Goh explored the utility of proxy wars.

James N. Miller and Neal A. Pollard argued that a strategy of persistent engagement in cyberspace requires a coherent campaign that cuts across domains and government authorities not just in cyberspace. And on the Cyberlaw podcast, Stewart Baker and the gang discussed all things blockchain:

Steve Slick called for submissions to this year’s “Bobby R. Inman Award” scholarship competition.

Kahn shared the Office of the Director of National Intelligence’s annual statistical transparency report for 2018, and Fogel shared the Defense Department’s annual report on civilian casualties.

And that was the week that was.