The Week That Was

The Week that Was: All of Lawfare in One Post

By Gordon Ahl
Saturday, October 12, 2019, 12:55 PM

Susan Hennessey, Molly Reynolds and Margaret Taylor analyzed the ongoing impeachment inquiry, suggesting that Congress should carefully consider its procedural strategy to maintain the legitimacy of the inquiry.

On Tuesday evening, White House counsel Pat Cipollone sent a letter to House Democrats indicating that the President “cannot participate” in the ongoing impeachment inquiry. In response, Keith Whittington argued that it is constitutionally valid for the House to begin an impeachment inquiry without a vote, contrary to the assertions in Cipollone’s letter. Bob Bauer commented further on the letter’s bizarre and misleading claims, suggesting that the letter weakens the norms governing the position of White House counsel.

The White House letter did not stop Congress from continuing its work on impeachment. The chairmen of three House committees issued subpoenas for documents to Secretary of Defense Mark Esper, Acting Director of the Office of Management and Budget Russell Vought, Energy Secretary Rick Perry and two business associates of Rudy Giuliani—Lev Parnas and Igor Fruman—who were also indicted this week on campaign finance charges. The same House Committees also heard testimony on Friday from former Ambassador to Ukraine Marie Yovanovitch, who stated that her departure as ambassador came as a result of pressure from President Trump.

In the latest episode of the National Security Law Podcast, Bobby Chesney and Steve Vladeck started with a discussion of the White House counsel’s letter on non-cooperation but then transitioned into the other major development of the week regarding Trump’s decision to withdraw U.S. troops who were supporting Kurdish allies in northern Syria:

Chesney also wrote a piece suggesting the U.S. withdrawal from Syria could trigger the release of thousands of Islamic State detainees currently held by the Kurds. Emma Broches commented on three long term solutions for handling these ISIS detainees, assuming the security situation does not collapse as a result of Turkish operations against the Kurdish forces.

This week’s episode of Rational Security also featured commentary on the situation in Syria following Trump’s withdrawal announcement, along with topics related to L'Affaire Ukrainienne:

Mikhaila Fogel shared the second volume of the Senate Intelligence Committee’s report on Russian interference in the 2016 election, which focused on Russia’s use of social media. Meanwhile, Susan Hennessey and Benjamin Wittes posted episode eleven of The Report which covers President Trump’s reaction to the appointment of Robert Mueller as special counsel, Don McGahn’s refusal to help fire Mueller and the president’s anger directed at Jeff Sessions for his recusal:

Peter Margulies analyzed the legality of Trump’s new proposal to bar entry into the United States for otherwise qualified visa applicants who are unable to obtain health insurance. Gordon Ahl posted a district court ruling declaring unlawful President Trump’s declaration of a national emergency at the southern border to redirect funds to building a border wall.

President Trump also received unfavorable rulings related to his desire to block the release of his tax returns. Mikhaila Fogel shared the federal district court dismissal of Trump’s lawsuit attempting to remove a case involving the Manhattan District Attorney to federal court. Later in the week, Ahl posted a separate appellate decision granting the House Committee on Oversight the authority to subpoena Trump’s financial documents from his accounting firm.

Joshua Rovner argued that intelligence officials should resist speaking out against policies with which they disagree. Austin Carson considered responded that officials must be willing to speak out when presidential claims clearly contradict intelligence reports.

In other intelligence-related news, Ahl shared the indictment of a Defense Intelligence Agency employee on charges of leaking top secret information to journalists. Fogel posted several newly released decisions from the Foreign Intelligence Surveillance Court showing that the FBI’s protocols on certain Section 702 database queries concerning information about U.S. citizens were inadequate. Ahl also posted an ACLU brief alleging that warrantless Section 702 surveillance of an Uzbek refugee was unconstitutional.

Liron Libman discussed the specific components of a mutual defense treaty between Israel and the United States that would be necessary to benefit Israel. Yuval Shany explored a recent Israeli case involving potential harm to a terrorist detainee to comment on the inadequacies of the legal regime governing interrogations in Israel.

Jennifer Daskal and Peter Swire provided an overview of the U.K.-U.S. CLOUD Act Agreement that will better facilitate cross-border data sharing to investigate serious crimes.

Jen Patja Howell shared another episode of The Lawfare Podcast, in which Benjamin Wittes sat down with Susan Landau of Tufts University and Jim Baker of the R Street Institute to discuss encryption policy:

In the latest edition of Water Wars, Sean Quirk commented on growing tension in the South China Sea between Vietnam and China over oil drilling. With the biweekly update on U.S.-China policy news, Richard Altieri and Benjamin Della Rocca considered the impact that Trump’s encouragement of China to investigate the Biden family could have on trade talks.

Avinash Paliwal discussed the shifts in Indian policy on Afghanistan and the Taliban from 2015 to the present.

Patrick McDonnell explained how the Treasury Department’s newly proposed rules on CFIUS’s jurisdiction provide much-needed clarity on the implementation of provisions from the Foreign Investment Risk Review Modernization Act of 2018.

Finally, Howell shared a second episode of The Lawfare Podcast this week featuring a discussion with Jack Goldsmith on his new book "In Hoffa’s Shadow."

And that was the week that was.