Today's Headlines and Commentary

The Week That Was: All of Lawfare in One Post

By John A. Emmons, Avery Schmitz
Friday, May 19, 2023, 5:03 PM

Scott R. Anderson, Quinta Jurecic, Alan Rozenshtein, and Benjamin Wittes analyzed the Supreme Court’s rulings on companion cases Taamneh v. Twitter and Gonzalez v. Google, arguing that the Court’s avoidance in answering key questions about the interpretation of Section 230 of the Communications Decency Act is likely to be a relief for internet companies and good news for those who care about speech rights.

Hyemin Han shared the Supreme Court’s decisions in Taamneh v. Twitter and Gonzalez v. Google. The court ruled in Twitter’s favor in Taamneh, finding petitioners had not demonstrated the company had “intentionally provided any substantial support” to the terrorist attack in question. In light of its finding in Taamneh, the court remanded Gonzalez to the Ninth Circuit for reconsideration.

Sasa Jovanovic, Alexis Jori Shanes, and Hannah Sweeney reviewed Thursday’s Supreme Court rulings in Taamneh v. Twitter and Gonzalez v. Google.

Lindsay Hundley, Yvonne Lee, Olga Belogolava, and Sarah Shirazyan—policymakers at Meta—proposed a framework for mitigating the spread of harmful information from state-controlled media organizations online. They considered how platforms designate and then interact with state media, and how these approaches should be adjusted to address major geopolitical crises.

Jack Goldsmith identified ill-defined legal guardrails and norms that could be challenged during a second Trump presidency, and emphasized opportunities for legislation to proactively address these gaps.

Jurecic and Tyler McBrien discussed the takeaways from the media’s failures in covering Donald Trump’s presidential campaign and administration in light of CNN’s recent town hall with the former president. They pondered whether the media has learned from their failures in recent years, or if they are bound to repeat the same mistakes.

Josh Blackman and Seth Barrett Tillman analyzed various arguments for Trump’s motion to move the New York State prosecution against him to federal court under the federal officer removal statute. They concluded that as president, Trump was not an “officer of the United States” and therefore  cannot have his case removed to federal court.

Wittes shared his initial thoughts on Special Counsel John Durham’s report on his investigation into the conduct of the 2016 Russia investigation, which was released on Monday. This installment focuses on the report’s introduction and executive summary. The reading diary will be updated as Wittes continues his close reading of the report.

Avery Schmitz shared Durham’s public report, in which he finds no verified evidence of Russian collusion in the 2016 presidential election.

Anna Bower and Katherine Pompilio shared a filing from Fulton County District Attorney Fani Willis, in response to former President Donald Trump’s motion to quash the ongoing special purpose grand jury investigation into his interference in the 2020 Georgia election.

Pompilio also shared a court filing submitted on behalf of 10 top media companies, in opposition to former President Donald Trump’s motion to quash the Fulton County special purpose grand jury’s report.

On the Lawfare Podcast, Molly Reynolds and Jurecic sat down with Nick Schwellenbach to discuss law enforcement failures preceding the Jan. 6 attack, how Capitol Police intelligence gathering procedures have changed after Jan. 6, and more:

George Croner weighed constitutional arguments against reauthorizing Section 702 of the Foreign Intelligence and Surveillance Act (FISA), and forecasted their likely impacts on FISA renewal later this year.

McBrien shared a memorandum opinion from the Foreign Intelligence Surveillance Act (FISA) court, unsealed this afternoon, revealing that the FBI improperly accessed the FISA database over 270,000 times while querying victims of crimes, suspects connected to protests stemming from the 2020 murder of George Floyd, and those arrested at the Jan. 6 attack on the Capitol. 

On Rational Security, Anderson and Rozenhstein were joined by Rational Security Host Emeritus Shane Harris to discuss the week’s big national security news stories, including leaked intelligence reports indicating that Wagner Group leader Yevgeniy Prighozin has been in contact with Ukrainian intelligence and offered information on Russian positions in return for concessions in the city of Bakhmut, Twitter owner Elon Musk’s decision to censor content on the site at the behest of the Turkish government in the run-up to major national elections, blowback against CNN for the network’s decision to host a town hall featuring former President Donald Trump before a crowd of his supporters, and more:

Andrew Fink and Matthew Johnston discussed how Russian “international companies” (MKs) are used to evade international sanctions. They highlighted how the rapid introduction and utilization of the new designation shows Russian adaptation to international sanctions and the need for a response from sanctioning states.

In the latest installment of Lawfare’s foreign policy essay series, Marcel Berni discussed how Switzerland’s decision—in concert with E.U. allies—to levy economic sanctions against Russia deviates from the country’s historic neutrality in international conflicts.

Mireya Solis analyzed Japan’s resolve to unite world leaders and reinforce diplomatic networks ahead of its hosting of the G-7 Summit in Hiroshima this week.

On the Lawfare Podcast, McBrien sat down with Surabhi Ranganathan to discuss how environmental changes like rising sea levels and global temperatures necessitate changes to international law of the sea:

Stephanie Pell sat down with Alex Iftimie on the Lawfare Podcast to discuss the Justice Department’s efforts to disrupt malicious cyber actors, the technical foundations for these operations, and the importance of these interventions for the Biden administration:

Eugenia Lostri explained the conclusions of the European Parliament’s PEGA committee, which investigated the detriments of invasive spyware, and its commitment to enhancing limitations, oversight, and transparency of these technologies.

On the Lawfare Podcast, McBrien sat down with Quinn Slobodian, author of the new book “Crack-Up Capitalism: Market Radicals and the Dream of a World Without Democracy.” They discussed Slobodian’s study of novel legal spaces: the city-states, havens, enclaves, free ports, high-tech parks, duty-free districts, and other spaces Slobodian calls ‘zones,’ why states give up these slivers of sovereignty, and how the world really works, as Slobodian sees it:

Goldsmith sat down with Steve Vladeck on the Lawfare Podcast to discuss his new book, “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.” They discussed the origins of the shadow docket in 1973 emergency orders related to the bombing of Cambodia, why the shadow docket has grown in prominence in recent years, what’s wrong with the system, and how it can be fixed:

And on Chatter, Pompilio sat down with Wittes to discuss his “special military operations” —light shows projected onto embassy walls and other forms of protest—at the Russian Embassy in Washington, DC. They discussed the genesis of the operations, what it’s like conducting international negotiations with Russian diplomats via the U.S. Secret Service, the international law of light protests, and more:

And that was the week that was.