The Week That Was

The Week That Was: All of Lawfare in One Post

By William Appleton
Friday, December 9, 2022, 4:25 PM

Brandon D. Fox, Rachael A. Goldman, and Erica Sedler explored the various statutes that the Department of Justice could potentially use to charge former President Donald Trump and how those charges would provide the department discretion in deciding which venue to bring them. Fox, Goldman, and Sedler argued that even though the department can bring charges in D.C., it should consider the politically charged nature of a case against the former president when deciding where to file charges.  

Benjamin Wittes sat down with Natalie Orpett and Scott R. Anderson to discuss the 11th Circuit Court of Appeals Dec. 1 ruling in Trump v. United States of America, which vacated a U.S. District Judge Aileen Cannon’s order appointing a special master to oversee the review of documents seized from former President Trump’s Mar-a-Lago residence.. They discussed the substance of the decision, what impact the ruling could have on ongoing investigations, and what message the 11th Circuit is sending through its decision:

Chuck Rosenberg discussed two concerns regarding the Justice Department’s recent appointment of a special counsel to oversee two investigations related to former President Trump. Rosenberg argued that the special counsel regulations may not provide enough independence in allowing the special counsel to make final determinations in investigations and that the investigations could have been handled through normal channels.

Alan Z. Rozenshtein discussed Blassingame v. Trump, a case that went before the U.S. Court of Appeals for the District of Columbia on Dec. 7 to determine whether former President Trump should have civil immunity for his actions on Jan. 6, 2021. Rozenshtein analyzed the judges’ skepticism of the hard-and-fast rules presented by both parties and argued that the panel is likely to come down with a narrow ruling that avoids defining the precise contours of presidential civil immunity. 

Wittes sat down with Rozenshtein to discuss oral arguments in Blassingame v. Trump, an appeal of a civil lawsuit against the former president over his actions on Jan. 6, 2021. They discussed the origins of the appeal, how the case played out in the district court, and what the Supreme Court might have to say if it confronts this issue:

Kristina Lorch and John Sullivan Baker previewed the arguments in former President Donald Trump’s appeal of the D.C. District Court ruling which found that his conduct during the Jan. 6 2021 “Save America” rally did not qualify for immunity. Oral arguments were heard before the U.S. Court of Appeals for the District of Columbia on Dec. 7. 

Hadley Baker shared an episode of Lawfare No Bull which featured oral arguments from Dec. 7, 2022 in Blassingame v. Trump, a case before the U.S. Court of Appeals for the District of Columbia to determine if former President Donald Trump should receive absolute civil immunity for his conduct on Jan. 6, 2021:

Jen Patja Howell shared an episode of Rational Security in which Anderson, Rozenshtein, and Quinta Jurecic sat down to discuss the verdict in the first Oath Keepers trial, the continued protests in Iran, the recent 11th Circuit Court of Appeals ruling reversing U.S. District Court Judge Aileen Cannon’s appointment of a special master to oversee the review of documents seized from former President Trump’s Mar-a-Lago residence, and more:

Roger Parloff discussed an appeal of a district court ruling which dismissed charges of alleged corrupt obstruction of an official proceeding brought against three Jan. 6 defendants and the impact the case could have on other Jan. 6 prosecutions if the appellate court upholds the district court’s dismissal. 

Anderson sat down with Ned Foley, professor at The Ohio State University Moritz College of Law, and Derek Muller, professor at the University of Iowa College of Law, to discuss the recent oral arguments in Moore v. Harper. They discussed how they think the justices seem to be leaning, how they might approach different aspects of the party’s arguments, and what it might mean for 2024:

Jack Goldsmith shared the Winter 2022 Supplement for Bradley, Deeks, & Goldsmith, Foreign Relations Law: Cases and Materials (7th ed. 2020). The Supplement covers foreign relations law issues on a range of topics such as the Biden administration's reversals of various Trump era foreign policies, lower court decisions relating to sovereign immunity, U.S. actions taken against Russia in response to the invasion of Ukraine, and more. 

Obaidullah Baheer discussed the Afghan political environment and the international community’s possibilities for engagement with the Taliban. He explained how historical approaches to engagement with the Polish communist regime can be used as models by the international community for initiating reform within the Taliban’s regime.

Raffaello Pantucci and Kabir Taneja discussed the waning significance of al-Qaeda following Ayman al-Zawahiri’s death in July 2022. Pantucci and Taneja contemplated the various explanations of al-Qaeda’s silence on the matter and the organization's declining global capacity.  

Dominic Solari and Hannah Sweeney discussed the recent release of two policies by the North Atlantic Treaty Organization (NATO), the NATO 2022 Strategic Concept and the “Human Security: Approach and Guiding Principles” document. Solari and Sweeney highlighted key portions of the policies such as the acknowledgement of the era of strategic competition, the growing threat of hybrid tactics, and the integration of gender perspectives into NATO policies. 

Shane Harris sat down with Andrew Weiss, author of “Accidental Czar: The Life and Lies of Vladimir Putin,” to discuss why Weiss was drawn to studying Russia at an early age, the unconventional approach Weiss took in his new biography of Putin, and how viewing Putin as Putin wants to be portrayed makes it more difficult to confront the challenges posed by Russia

Mehari Taddele Maru discussed the upcoming U.S.-Africa Leaders Summit and criticized the invitation of African leaders accused of crimes against humanity and flouting constitutional restraints. Maru highlighted the need for accountability in order to meet U.S. objectives in the region, the failure of international institutions to effectively respond to the atrocities in the region, and the prioritization of stability over accountability. 

Jordan Schneider sat down with Doug O’Laughlin and Jon Y to discuss the basics of semiconductor chips, why starting with something’s history can help you understand how it works, making videos on Taiwanese 7-Elevens, and more:

Anderson sat down with Alex Engler to discuss the Biden administration’s “Blueprint for an AI Bill of Rights.” They spoke about the challenges AI poses for policymakers, the strategy the United States might pursue, and how the strategy is different and similar to the approach taken by the European Union: 

Matt Perault and Berin Szóka discussed three proposed bills that would create special competition rules for big tech companies and alter how they approach content moderation. Perault and Szóka also highlighted the challenges of bipartisan regulation of tech companies and the resulting restrictions on platforms' ability to moderate harmful content.

Charles Corbett and Michelle Melton furthered the argument for continued research into solar geoengineering, particularly stratospheric aerosol injections (SAI), as a method of climate mitigation. Corbett and Melton argued that the variety of potential benefits and drawbacks related to the use of SAI—such as its ability to reduce global average temperatures or its potential adverse effects on agricultural crops—and the lack of knowledge regarding the consequences of its deployment on the environment necessitate further research. 

Goldsmith sat down with Beverly Gage, professor of history at Yale University, to discuss J. Edgar Hoover’s role in American politics in the 20th century, how Hoover managed to maintain his popularity during his time as director of the Federal Bureau of Investigations, and the role he played in the elimination of McCarthyism:

And Stewart Baker sat down with Jamil Jaffer, Mark MacCarthy, and Nick Weaver to talk over the use of technology in the lockdown protests across China, industry complaints about the Department of Homeland Security’s proposed cyber incident reporting regulation, Elon Musk’s lack of understanding of how hard content moderation is, and more:

And that was the week that was.