The Week That Was

The Week That Was: All of Lawfare in One Post

By Hyemin Han
Friday, September 23, 2022, 5:32 PM

Subscribe to receive this newsletter directly to your inbox.

Quinta Jurecic, Natalie K. Orpett, and Benjamin Wittes explained how the Wednesday evening ruling by a unanimous panel of the U.S. Court of Appeals for the Eleventh Circuit granting the Justice Department's motion for a partial stay puts the Mar-a-Lago investigation “back on track.”

Before the Eleventh Circuit issued its opinion on Sept. 21 granting the Justice Department’s motion for a partial stay, Kel McClanahan predicted it would do so. And he analyzed what other issues would remain to be resolved by the special master, Judge Raymond J. Dearie.

Orpett shared the Eleventh Circuit’s order granting the Justice Department’s motion for partial stay, allowing it to restart review and use of approximately 100 classified documents in its ongoing investigation of former President Donald Trump.

Hyemin Han shared Special Master Judge Raymond J. Dearie’s case management plan for the review of documents seized at Mar-a-Lago

Katherine Pompilio shared an order from U.S. District Judge Aileen Cannon striking two provisions in her Sept. 5 order and modifying the original injunction to exclude the 100 documents labeled classified, pursuant to the order from the Eleventh Circuit that granted the Justice Department’s partial stay. 

Han also shared former President Donald Trump’s response to the Justice Department’s motion in the Eleventh Circuit for partial stay of U.S. District Judge Aileen Cannon’s Sept. 5 order.

Jen Patja Howell shared an episode of The Lawfare Podcast in which Quinta Jurecic sat down for a live conversation on Twitter Spaces with Wittes, Scott R. Anderson, and Alan Rozenshtein to talk through U.S. District Judge Aileen Cannon’s latest ruling. They recorded before the Justice Department filed its appeal, but the conversation is a useful breakdown of Cannon’s somewhat off-the-wall orders. Namely: what, exactly, is this judge doing? And where is the case headed next?

Han also shared the settlement that was reached by Trump and the U.S. House of Representatives’ Committee on Oversight and Reform regarding the congressional subpoena served on Mazars, Trump’s longtime accounting firm.

Wittes sat down with Geoffrey Berman, former U.S. Attorney for the Southern District of New York during the Trump administration. They spoke about political interference in the Southern District court’s work by Bill Barr, Donald Trump, and other government officials, contextualizing the Trump era against other famous instances of political interference.

Seth Tillman considered whether a plea bargain tied to Section 2071 could bar Trump from running for or holding the presidency again, concluding that the difficulties of crafting and enforcing such a plea bargain would render it unlikely to succeed.

Jonathan Shaub discusses how previously disclosed Office of Legal Counsel (OLC) memoranda cover the scope and nature of executive privilege as well as the question of how constitutional disagreement between Congress and the executive branch about privilege can and should be resolved.

Rozenshtein argued that the Fifth Circuit opinion—released last Friday—in NetChoice v. Paxton overreaches in upholding Texas’s social media moderation law and makes a hash of the First Amendment in the process. 

Jurecic sat down with Rozenshtein and Alex Abdo to discuss the recent ruling by the U.S. Court of Appeals for the Fifth Circuit in NetChoice v. Paxton, upholding a Texas law that binds large social media platforms to certain transparency requirements and significantly limits their ability to moderate content.

Han also shared the independent review of Meta's content moderation policies during the May 2021 escalation on the Gaza Strip, which found that Meta's content moderation policies had an "adverse human rights impact" on Palestinian users' rights—which include their freedom of expression, freedom of assembly, and political participation.

In the latest installment of Lawfare’s Digital Social Contract paper series, Dan Byman presented content moderation options for technology companies, discussing how they work in practice, their advantages, and their limits and risks.

Howell shared an episode of The Lawfare Podcast in which Rozenshtein sat down with Byman to discuss the ongoing debate about how much social media platforms should be doing to moderate extremist content, and how that debate often lacks nuance about the ways that platforms can moderate—especially in suggesting that moderation is an all-or-nothing proposition. 

Andrew Fink and Marina Petrova discussed how search data provided by databases such as Yandex, Russia’s top search engine, can provide insights into Russian public opinion, something otherwise notoriously difficult to measure.

Han also shared the Biden administration’s executive order giving national security direction to the Committee on Foreign Investment in the United States

Tricia Bacon and Elizabeth Grimm wrote about the importance of the founders of terrorist organizations in establishing frameworks for the future leaders and explored the role of safe havens.

Amichai Cohen analyzed the Israeli Defense Forces’ final report on the killing of Palestinian-American journalist Shireen Abu Akleh and its implications for rules of engagement in Israel-Palestine.

Esti Tambay and Sarah Yager argued that amid bipartisan support of the proposed Justice for Victims of War Crimes Act—which would give the United States the ability to prosecute suspected war criminals discovered within U.S. borders regardless of nationality—Congress must work to close other loopholes to promote justice for international crimes.

Howell shared an episode of Rational Security in which Anderson, Jurecic, and Rozenshtein  sat down to discuss the week’s big national security news stories including: gang warfare and political instability in Haiti, a Fifth Circuit judge’s ruling in NetChoice v. Paxton, and more.

Aaron R. Cooper argued that cross-border data requests between states for abortion-related investigations may start to resemble cross-border requests between countries and trigger new conflicts of law following the Supreme Court's June ruling in Dobbs v. Jackson Women's Health Organization.

Justin Sherman discussed data brokers’ targeted ads for women seeking abortions, arguing that this collection and monetization of health information underscores how data privacy laws focused on these harms are sorely needed—and how state attorneys general may be able to punish or even preempt these abuses.

Howell shared the latest episode of The Lawfare Podcast in which Jurecic spoke with Wittes and Paul Rosenzweig about Ken Starr’s legal legacy.

Howell also shared an episode of The Lawfare Podcast in which Orpett sat down with Alex Iftimie, partner at the law firm Morrison Foerster, and a former Department of Justice attorney specializing in national security matters, including the Foreign Agents Registration Act. They discussed the criminal trial of Thomas Barrack, who served as an informal advisor to the 2016 Trump campaign and then as chair of Trump's inaugural committee, and allegedly acted as a foreign agent of the United Arab Emirates to influence U.S. policy. 

David Priess shared an episode of Chatter in which Shane Harris sat down with Damien Lewis, author of “Agent Josephine: American Beauty, French Hero, British Spy,” to discuss Josephine Baker’s remarkable and little-known espionage career as an agent for French counterintelligence during WWII. 

Jordan Schneider spoke to former Defense Department staffer Greg Allen about artificial intelligence technology in China and whether it gives China a military advantage.

And Nicol Turner Lee shared an episode of TechTank in which she was joined by Xochitl Torres Small, the United States Department of Agriculture’s (USDA) Under Secretary for Rural Development, to discuss ongoing work to close the urban-rural digital divide, how the USDA has been working to meet different communities’ hyperlocal needs, and more.

And that was the week that was.