The Week That Was

The Week That Was: All of Lawfare in One Post

By Jeremy Gordon
Saturday, December 14, 2019, 10:45 AM

This week, the House Judiciary Committee approved articles of impeachment against President Trump for abuse of power and obstruction of justice, recommending their ratification by the House. But that wasn't all: The Department of Justice Inspector General also released a report reviewing the FBI’s investigation into possible coordination between the Trump campaign and Russian efforts to interfere in the 2016 election.

For the Lawfare Podcast, Benjamin Wittes spoke with Margaret Taylor, Quinta Jurecic, Jack Goldsmith and David Kris about the articles of impeachment and the inspector general's investigation.

Robert Chesney and Steve Vladeck also discussed impeachment and the Inspector General’s report on the National Security Law Podcast—as well as the 2020 National Defense Authorization Act (NDAA), Amazon’s lawsuit related to Defense Department cloud contract bid selection, and other topics. Gordon Ahl posted the text and summary of the final version of the NDAA for the 2020 fiscal year.

Before the articles of impeachment were unveiled, Lawfare contributors had some suggestions. Barbara McQuade provided the House Judiciary Committee a guide for drafting the articles, arguing that the committee should keep in mind the need to frame the evidence and persuade fact-finders of the necessity of holding the accused accountable. Hennessey wrote that Democrats should include in the articles of impeachment one particular instance of wrongdoing uncovered in the Mueller report: The president’s effort to get White House Counsel Don McGahn to falsify evidence.

Ahl shared the articles of impeachment themselves, while Jurecic posted the House Judiciary Committee’s report on “Constitutional Grounds for Impeachment” in advance of its hearings continuing the impeachment process. Scott R. Anderson, Hennessey, Jurecic, Taylor and Wittes weighed the trade-offs between competing priorities reflected in the articles of impeachment. And four of the same authors critiqued suggested changes to the draft articles that would strengthen the House's case.

More documents related to impeachment are also in play: Mikhaila Fogel compared the House Intelligence Committee report on impeachment and the report prepared by the committee’s Republican minority, and concluded the parties substantially agree about the actions the president took. She also posted an Office of Management and Budget memo defending the legality of its decision to withhold military aid to Ukraine–about which questions have been raised in connection with the impeachment inquiry. Jurecic and Jacob Schulz noted that the House Intelligence Committee report on the impeachment investigation engaged minimally with the conspiracy theories propagated by the president’s defenders, appearing to signal a strategy by Adam Schiff to deny disinformation the attention it needs to grow.

Now that the House Judiciary Committee has passed articles of impeachment, it's time to start thinking about what a Senate impeachment trial might look like. Responding to an analysis by Hilary Hurd and Benjamin Wittes Seth Barrett Tillman argued that Senate rules do not require a full trial, and do not equate “removal” with “disqualification.” Meanwhile, Charles Edel wrote that the Constitution’s framers viewed impeachment as a tool to strengthen national security by charting a middle path between an unlimited and unaccountable presidency and one that was insufficiently powerful to protect the nation.

Elena Kagan posted two bonus editions of the Lawfare Podcast—one that cut out grandstanding and theatrics from House Judiciary Committee hearings on impeachment, and one from the Senate Judiciary Hearing on the Department of Justice Inspector General’s report, capturing only the questions and answers readers need to hear.

Mikhaila Fogel posted the inspector general report and compiled notable statements about the report from President Trump, Attorney General Barr, FBI Director Wray, and U.S. Attorney Durham. Wittes analyzed the report, arguing that while it turned up some serious problems in the investigation, it did not support the “witch hunt” narrative around the FBI’s Russia investigation. Peter Margulies considered what institutional reforms at the FBI should take place in the wake of the report's description of concerning flaws in the FISA process.

Jen Patja Howell released the ‘Beast of Burden’ edition of the Rational Security podcast, covering impeachment, the inspector general’s report, and the Washington Post’s report that senior officials knew the U.S. wasn’t making progress in Afghanistan—contrary to their public claims.

Victor Cha argued that the NBA, and the world, should take a firmer stance against China's use of economic coercion to try to silence critical international voices. And in the latest Fault Lines podcast, the Rum Bunch offered a China-focused episode about protests in Hong Kong and oppression in Xinjiang. Richard Altieri and Benjamin Della Rocca separately outlined potential congressional and executive actions available to U.S. lawmakers in response to China’s human rights abuses in Xinjiang.

Continuing the conversation on sanctions, William Ford argued that the Senate Foreign Relations Committee’s Dec. 3 hearing on the future of the U.S.-Russia relationship revealed stark differences in lawmakers’ views on the role sanctions should play in Washington’s strategy toward Moscow.

In an episode of the Lawfare Podcast, Susan Hennessey sat down with John Watts and J.D. Work to discuss planning for the future of cyberspace, and value of envisioning multiple scenarios.

Jed Rubenfeld replied to Alan Rozenshtein as part of an ongoing debate about whether Section 230 of the Communications Decency Act has turned internet mega-platforms into state actors when moderating content, arguing that that the statute seeks to induce private parties to take action that would violate constitutional rights if governmental actors did it directly.

Stewart Baker shared a new episode of the Cyberlaw Podcast, in which panelists debate the FISA Section 215 metadata program in light of the apparent terror attack at Naval Air Station Pensacola.

Chesney called for closer attention to be paid to the domestic legal framework for gray zone competition in cyberspace that Congress is extending to the broader context of information operations in the 2020 NDAA. And in an episode from Lawfare's Arbiters of Truth series on disinformation in the run-up to the 2020 election, Quinta Jurecic, Evelyn Douek, and Alina Polyakova spoke with privacy scholar Tiffany Li about the interaction of privacy law and policy with platform governance.

Also on the subject of privacy, Krista Oehlke described what we know so far about a new rule proposed by the Trump administration to collect DNA from detained noncitizens.

U.S. politics may be troubled right now—but across the pond, the U.K. is also roiling. Amanda Sloat assessed the implications of the Conservative Party’s victory in the British elections on Brexit and the constitutional future of the U.K.

This month marks the tenth anniversary of one of the most successful al-Qaeda attacks against the CIA ever. Bruce Reidel told the story of the triple agent who blew himself up at Forward Operating Base in Khost, Afghanistan, killing seven CIA officers and one Jordanian officer. Also looking back across the past decade, Michael O’Hanlon argued that The Washington Post went too far in arguing that successive administrations deliberately lied to the American people about the progress of the Afghanistan war.

Brian Greer reviewed the movie ‘The Report," pointing out its distortions and fabrications about how the CIA acted toward the investigation into the history of its use of enhanced interrogation techniques under the Obama administration.

The week was a busy one for Lawfare-related publications. Goldsmith announced the Summer 2019 Supplement for Bradley, Deeks, & Goldsmith, Foreign Relations Law: Cases and Materials (6th ed. 2017), which covers legal issues related to the travel ban, the border wall, and the Trump administration's withdrawal from international agreements, and other topics. And David Priess announced 'The Troubled U.S.-NATO Relationship," a new Lawfare e-book that features chapters originally published as articles on Lawfare.

It was a busy week for litigation, too. Ahl posted the complaint of former FBI lawyer Lisa Page against the Department of Justice and the FBI for alleged violations of the Privacy Act related to the disclosure of information about her to the media. Schulz posted a ruling by a federal judge in the Western District of Texas that Trump's border wall emergency proclamation was unlawful. And Samatha Fry provided a roundup of cases in which government officials are seeking information regarding the president—specifically, Trump’s financial records and tax returns, witness testimony and the Mueller report grand jury material.

And that was the week that was.