Lawfare Daily: Ask Us Anything About 2024

[Intro]

Caller 1: I am calling to see what you think the status of Section 230 will be by the end of the year in 2025.

Caller 2: Does the banning of TikTok in the U.S. mean the idea of the global internet is truly dead?

Anna Hickey: It's the Lawfare Podcast. I'm Anna Hickey, Associate Editor of Communications at Lawfare, bringing you Lawfare's yearly Ask Us Anything podcast.

Caller 4: I have a question around Bitcoin and what its regulation might look like in the future.

Caller 3: With the Trump administration's plans for mass deportations, I'm interested in the legal basis for arresting someone for being an undocumented immigrant.

Caller 5: What are the constitutional and statutory limitations on presidential authority to deploy military forces domestically under the Insurrection Act?

Anna Hickey: Lawfare contributors answered your questions on topics like the domestic deployment of the military, the risks of AI, presidential pardons for Jan. 6ers, and so much more.

[Main podcast]

Caller 6: Hi guys, I'm Elijah, and I'm a longtime listener from the Bay Area. I find myself surrounded by a lot of people who worry about the more sci-fi sounding AI risks, and given that those risks are considered existential, do you think they fall under Lawfare's national security ambit? How seriously do you take those risks, and do you think that they are something that Lawfare will cover more in the future? Thank you.

Kevin Frazier: This is Kevin Frazier, Senior Research Fellow in the Constitutional Studies Program at the University of Texas at Austin, and a Tarbell Fellow at Lawfare.

It's important to start by defining existential risk, or as some shorthand it, X-risk. Per the Global Catastrophic Risk Management Act of 2022, an existential risk is one that has the potential for an outcome that would result in a human extinction. That, of course, leaves a lot of room for interpretation, and a lot of folks have a lot of opinions about what may qualify as an X-risk under that definition.

Some, for example, argue that because we will likely develop mitigatory steps to prevent climate change from leading to extinction, it does not qualify as an X-risk. Others think that's a load of hooey and interpret extinction to apply to situations less extreme than the complete annihilation of the population.

That said, some commonly agreed upon sources of existential risk include bioweapons and, more generally, pandemics. A future pandemic, of course, could theoretically wipe all of us out. Another commonly agreed upon source of X-risks are nuclear weapons. I don't have a lot to add there—it's pretty self explanatory.

Lawfare has long published pieces on the threats posed by bioweapons and nuclear proliferation, and I think that's the case because there are clear historical examples of how and why those sources of risk could manifest and imperil humanity.

Whether AI risks fall within our jurisdiction is dependent upon the nature of the risk itself. Do I think that Lawfare would publish a piece on a rogue AI turning us into paperclips? No. Do I think that Lawfare would run a podcast analyzing the militarization of AI and the possibility of significant harms? You bet. And I say so with confidence because we have and we will continue to do so.

As to my own two cents, I'm very sympathetic to the idea that advanced AI models can cause a significant amount of harm. But I'm not sold on the idea that we're close to producing the sorts of models that can cause those X-risks. So, this is not the top item I'm focused on when we're thinking through how Lawfare should cover AI news.

The leading stories in the next administration will likely involve three broad themes. First, the AI arms race between the US and China. Second, the tension between what's required to win that race and the Little Tech Agenda as set out by a16z and embraced by some members of the administration. And third and finally, how Congress and states respond to disinformation and political interference made worse by AI.

All that's to say, stay tuned for some great AI coverage in 2025. Thank you so much for your question.

Caller 1: Hi, this is Emily Emery. I am calling to see what you think the status of Section 230 will be by the end of the year in 2025 and if there are significant and lasting changes, whether it will be through legislative action or a decisive action by the Supreme Court. And would love to have Quinta weigh in particular. Wishing you all a very happy new year. Thank you.

Quinta Jurecic: This is Lawfare senior editor Quinta Juricic.

Section 230 of the Communications Decency Act has come under a fair amount of political pressure in recent years from both the left and the right. Critics have gone after the law for its core purpose, which is shielding technology platforms from liability for third party content.

When people talk about internet policy reform, tech reform, Section 230 is often what they have in their crosshairs. And there's been a flurry of interest in reforming Section 230 in recent years, following the kind of critical turn against tech companies that really follows the 2016 election. To people who follow Section 230 closely, it's been pretty shocking because since it was passed in 1996, until about 2016, 2017, Section 230 was relatively uncontroversial among the mainstream of people who thought about tech policy and law.

We did have this spurt of interest in reforming 230, which is what the question I think is referring to; to some extent, that has actually ground to a halt. I would pinpoint the place where it kind of stopped in the Supreme Court's 2023 decision in Gonzalez v. Google. Gonzales was really this case that was kind of meant to be the big flagship case for paring back 230's liability shield. And the Supreme Court basically punted on it and saved that question for another day.

And in the immediate period of time, while the Court was considering the case, and then after that decision, things have been pretty quiet. There's also been a shift legislatively on the part of Congress to focus Less on Section 230 specifically and more on legislation about child safety and on legislation regarding specific platforms. So of course I have in mind the TikTok ban.

But I do think there's reason to think that interest in reforming Section 230 may pick up again. There's a recent case in the U.S. Court of Appeals for the Third Circuit, TikTok v. Anderson, that found platform liability for algorithmic recommendations with a very similar fact pattern to what we actually saw in Gonzalez. So I think we're kind of waiting to see where that will go.

We also have indications that President-elect Trump's pick to lead the Federal Communications Commission, Brendan Carr, that he might be interested in this. In the past, he'd indicated support in the Project 2025 write up from the Heritage Foundation for trying to rework 230, not through legislation or litigation, but through FCC interpretation of the statute to really substantially narrow its protections. And this was something that was tried at the very end of the first Trump administration, but just never really got off the ground because there wasn't enough time.

It's hard to say whether any of these efforts will be successful or not. Any effort to reform 230 is going to run into the same problem that it faced the last time around with Gonzalez, which is that reforming 230 is really hard. The internet is kind of built on the expectation that it's there, and so any changes to it could have a potentially really dramatic cascade of effects in ways that people might not want or expect. And so even though there's kind of bipartisan agreement that the statute should be revised, it's difficult to actually do once you move past the level of rhetoric in a way that would actually have, you know, a good policy result and would make both sides happy.

I think this is particularly going to be difficult now that the GOP has a big ally in Elon Musk, who is, of course, now running a major social media platform, because a change that limits liability protection would directly affect him as well, and he may not want that, so that complicates the party's kind of crusade against Big Tech.

Then there's another issue, which is that if the FCC tries to move forward with its reinterpretation of Section 230 under Commissioner Carr, I think there's a pretty substantial likelihood that it would run into litigation challenging its authority to do so. There's no history that the agency was ever intended to have that kind of power, and so courts, particularly conservative judges, may be very skeptical of that kind of power grab.

Overall, I would say I would not at all be surprised if Section 230 finds itself back in the spotlight, but I will be pretty surprised if those reforms actually go anywhere.

Caller 4: Hi, my name is Noah. I'm calling from California, Los Angeles.

I have a question around Bitcoin and what its regulation might look like in the future. Seeing as it just crossed $100,000, my personal view is that Bitcoin, to me, is a speculative currency that is used in order for bad state actors, like Russia and other sanctioned countries, as well as illegal cartels, in order to funnel money and essentially wash it, as old school companies might have done, or bad actors might have done through shell companies, but now through digital currency.

What sort of regulations are legal and what might regulation look like in the future for Bitcoin or any such digital currency?

Eugenia Lostri: I'm Eugenia Lostri, senior editor at Lawfare. As with many other issues, what will happen with cryptocurrency regulation over the next four years requires a little bit of speculation.

What we do know is that Donald Trump has expressed support for the industry and so far has nominated cryptocurrency supporters to some key positions. For example, David Sacks, who is slated to be AI and crypto czar, opposed the Biden administration's plans to increase regulation of cryptocurrency and other technologies. Trump's pick to chair the Securities and Exchange Commission, Paul Atkins, is also a cryptocurrency advocate, likely to shift the current SEC approach to virtual coins.  Under the current chair, the SEC has brought several enforcement actions against the industry, alleging violations of federal securities laws. That is likely to change under the new chair.

Now, Trump's support for the industry also seems to be informed by his children's support of the industry. Eric Trump was recently at a cryptocurrency conference in the United Arab Emirates, where he said that Trump will be the most pro-crypto president in history. This seems to echo Trump's June promise to make the U.S. the crypto capital of the planet. It's worth mentioning that the Trump family also has their own cryptocurrency project. So they're quite invested in the industry.

Now, reporting indicates that some individual billionaires with crypto interests spent millions in support of Trump and that industry super PACs spent about $131 million in congressional races this election cycle to help elect pro crypto lawmakers.

All of this to say that with a friendly executive, a friendly Congress, any regulation that we see is likely to be friendly to industry. Now, how far that will go remains an unknown, and it might be worth remembering that supportive winds can easily shift in politics, and it was not that long ago that Trump was himself a cryptocurrency skeptic.

Caller 2: This is Bob Diedrich in Westchester County, New York. My question for the group is, does the banning of TikTok in the U.S. mean the idea of the global internet is truly dead, not only in countries like Russia and China, but also in the West?

Alan Rozenshtein: I'm Alan Rozenshtein, Associate Professor at the University of Minnesota Law School and senior editor and research director at Lawfare.

So the TikTok ban, I think, does represent a significant moment in internet history. And I suspect also that looking back, historians will view this as the point where America officially abandoned its long held vision of a borderless internet. But I also think that's more of a culmination than a sudden shift.

The vision of a global internet was deeply rooted in America's unique position as both the Internet's creator and also home to its dominant companies. And during the 1990s, particularly in the time of post Cold War optimism, American policy makers and academics championed a kind of borderless digital world that would naturally spread American economic and cultural influence, while also promoting democratic values globally.

But cracks in this vision started appearing pretty early. So Jack Goldsmith and Tim Wu argued in their excellent 2006 book, “Who Controls the Internet?”—I highly recommend reading it if you're interested in this issue—hey argued that the idea of a truly borderless internet was Major emerging powers, like China, Russia, Brazil, India—they started pushing back against American digital hegemony, asserting their own rights to regulate their digital spaces according to their own values and interests.

Now, Europe further added to internet fragmentation in the early 2010s, though from a different angle. So rather than political control, what the Europeans focused on was data privacy and consumer protection, effectively creating a distinct European digital space through regulations like GDPR and data localization requirements.

Now, what makes the TikTok situation noteworthy, at least in my eyes, is that it represents America adopting a perspective that it long criticized—the recognition of the internet isn't a separate borderless realm, but rather an extension of national sovereignty into the digital world. And I think this marks America's formal acknowledgement that the internet is fundamentally tied to physical geography, national interests, and state power.

So in other words, while the TikTok ban may seem like the death knell for the global internet and in some ways it certainly is, that vision has been gradually eroding for years. The ban simply represents America finally accepting what much of the world already understood—that digital spaces, like physical ones, are inherently subject to national sovereignty and regulation.

Anna Hickey: This question is from Jack from Pennsylvania. He asks why was Russian political technology so successful in the 2024 election? What can we do to negate its effectiveness in future elections, since we can expect it to be used again?

Quinta Jurecic: This is Lawfare senior editor Quinta Jurecic.

There was a lot of anxiety ahead of the 2024 election about the potential for foreign interference. And overall, in very good news, this actually turned out to be a relatively minor issue. Election day went smoothly. We have every indication that the election was completely secure, and despite political pressure, the federal government overall, I think, did a really good job in rapid response and kind of identifying instances of potential interference in, practically in real time, which is very unusual and quite impressive and calling them out publicly in order to alert people to those issues.

The main disruptive Russian tactic that was used this time around was a string of bomb threats to polling locations in swing states, and the FBI put out information linking those threats to .ru email domains, so Russian email domains. That's perhaps certainly an indication of Russian involvement or perhaps sloppy tradecraft, but there you have it.

The threats caused the temporary closure of polling places, but people were able to come back to vote, in many cases, I think, thanks to polling places actually extending their hours to kind of make up for that lost time. And I haven't seen any indication that this affected the vote count, that it prevented anybody from voting.

It's a good reminder, I think, that, you know, election workers and government officials spend a lot of time trying to ensure the integrity of the election. And both in 2020 and 2024, we had, despite, you know, concerns both domestic and foreign about interference, every indication that this election really really was secure.

So I think, you know, if there's concern that there hasn't been a deep dive into Russian election interference, that actually may be that it wasn't that big a story. Certainly, it's a big deal that Russia tried these things, and it's good that the federal government was able to push back against it. That certainly has been reported on by, you know, cybersecurity reporters who cover elections, reporters who cover the information environment. But if you haven't seen reporting beyond that, it may just be because it sort of wasn't that big a factor. And again, I think that's a good thing.

You know, sometimes you'll hear from people who work on election integrity and foreign interference issues, this idea that the point of foreign election interference, certainly from Russia, is really less to change the result of the election and more to cause chaos and sow distrust in the system among Americans. And so it's important to be able to respond to foreign interference efforts effectively, but we also need to draw a distinction between the fact that foreign interference happened and whether it actually affected the result. And part of remaining resilient to this kind of interference as a country is not allowing ourselves to confuse the two.

Caller 7: Hi, my name is Andrew. I'm originally from Rhode Island, although currently I'm studying in Switzerland at ETH Zurich. I had a question for Scott, because it's about geopolitics.

I wanted to ask specifically about to what extent you believe the Iranian regime has been boxed in or constrained in its actions over the last few months, specifically due to threats against their personnel. That is, there's a long list of alleged Israeli operations against Iranian scientists, and recently alleged Israeli operations against Hezbollah personnel.

And I've been wondering recently if Iran's reluctance to assert itself in the geopolitical realm has anything to do with suspicion on the part of the regime that leadership might be independently targeted or individually targeted by operations and not just on the level of the government itself.

Thanks so much for organizing a super great publication. I listen all the time and I hope you have a nice end of year.

Scott R. Anderson: Andrew, thanks so much for your question This is Lawfare senior editor Scott R. Anderson, gonna take it take a stab at answering it.

So I think you're onto something, although I would tie certain constraints about Iran's behavior that have really shown themselves recently to actually broader systemic factors as opposed to targeting of individual leadership.

The target of individual leadership we know is a thing, is something that particularly Israel—which is Iran's, you know, main regional rival—has been engaged in for a very long time, very effectively, very successfully that we've seen as recently as this year with Ismail Haniyah, a number of other kind of high profile targets.

And these are significant actions, right? Targeting leadership or people with real technical expertise in targeted ways can be disruptive for organizations. It can knock them on their heels. It can take away key operational or technical capabilities if you're hitting somebody that has certain skills that aren't as widely distributed in the organization or that are particularly charismatic or particularly significant. But I don't know if they do much to interrupt their operational capacity.

And I sometimes think they can be a little bit of a double edged sword because essentially you're trading the devil that you know, for the devil that you don't you're creating chaos and organization at the same time, doing something that often can ramp up hostilities or beg for some sort of response, and you're just knocking them, often temporarily, out of whack and inviting a more violent response.

So I'm not sure these things really change the terrain on the ground, and for the Iranian leadership and figures, I think they're kind of baked in. Because they're not new and they haven't really done that much to deter Iran recently, any more than they have over the last 30 years that Israel's been doing it pretty successfully and effectively, in my mind. And the same goes, you know, Israel's done that much more aggressively against Hezbollah and Hamas and same deal, neither group was really heavily deterred.

But I do think that Iran in particular and a lot of other regional actors are operating a totally different strategic environment now, and that is because of the dramatic effectiveness of Israel's military campaign against Hezbollah, and to a lesser degree, Hamas.

This is something I was pretty skeptical about early on in part because it seemed to simply beg a sort of response from Hezbollah. You know, it would have a similar effect of like knocking them a little bit off kilter, but then inviting a much more serious response a little further down the road. So short term gains in security, but trade off with potentially short to medium term.

That's—and I still think that could have been right, except that by undermining Hezbollah and creating a scenario where Iran was clearly pretty impotent to pose a serious military response to intervene on Hezbollah's behalf, wasn't willing to take the risk, wasn't able to in a meaningful way. The rocket vollies it sent at Israel really didn't do meaningful damage at a national level. They were serious, but not really crippling.

It really revealed Iran to be a little bit of a regional paper tiger when it came to backing up these regional proxies against serious military efforts. And that led to the much more significant development, which is the collapse of the Assad regime, I think, in my mind. It indicated to rebels clearly that they were in a position where they could take military action against Assad, and you probably were not going to see the levels of Iranian intervention.

And they knew from Ukraine and monitoring events there and other places around the world that Russia probably was not in a position to launch the sort of intervention that it pursued in 2015 to back and stabilize the Assad regime, and maybe perhaps also could be bargained with to some extent, as we saw some bargaining happen with the HTS-led interim administration and the Russian government over the maintenance of Russian port access, which is Russia's biggest, often seen as its biggest strategic kind of objective in the region, which is a relatively finite and limited one.

All those things kind of add together to say, you know, the real thing that's changed for Iran's strategic posture, I think in the last few months, and it's really going to have ripple effects going out, is that all of a sudden Iran doesn't have access to its proxies close to Israel, which has been its big strategic focus and a big pressure point for it for a long time.

It can't get to Hezbollah and resupply them as readily because Syria is no longer an overland route and supply route and air route that it could use to do that. So it's not able to put that sort of pressure on Israel, which is one of its big pressure valves that it's used to try and push back against the West, the United States, and other allies of Israel. And, you know, it also has lost its partner Hamas in Gaza because of the Gaza offensive there.

That's not to say that they're, you know, minimize a lot of the downsides of this for Israel and for the broader national community, including really pretty devastating humanitarian costs, particularly in the Gaza conflict, but also in Lebanon, we shouldn't overlook those.

From a strategic perspective, though, Iran is in the weakest position it's been. And I think it's hard to say many Israelis will view, and I think it's probably correct to say that the offensive against Hezbollah looks right now, at least I guess, a dramatic success in part because it led to the conditions that led to the collapse of the Assad regime that dramatically changes Iran's whole regional posture.

What that means moving forward, I don't know. I don't know if that redounds to urge a change in leadership within Iran, either at more the operational level or even at, you know, larger national political leadership level. Obviously, we've seen at various points, you know, popular resistance against the Iranian regime. But I don't know if this is going to contribute to that or not. You'd have to ask a true deep Iran expert, perhaps, and I doubt even they really know.

I think one thing we can expect that it means that Iran's going to double down in places that still has influence that are still, it can work through proxies. That's like the Houthis in Yemen and with various armed groups in Iraq that are significant and it probably will try and re-establish some sort of connections in Lebanon and Syria to the extent it can. It's just going to be a much more difficult operating environment for it because it's not friendly with those actors that appear to be more or less in control there for the most part.

So, it really, Iran is definitely in a totally different operating environment, much more constrained than it was just a few years ago, frankly, just a few months ago. But a lot of that is because of real strategic changes in the regional picture. I don't think the target of the leadership is the real thing to focus on.

Caller 8: Hi, this is Justin from Eastern North Carolina. I'd like to know kind of ignoring political and national security considerations, what powers does the executive branch give up the moment a Guantanamo detainee enters the U.S. to be held at a detention facility near a federal courthouse? What detention considerations are exclusively under executive control at Gitmo that open up to federal court and legislative challenges once on U.S. soil? Thank you.

Natalie Orpett: This is Natalie Orpett. I'm the executive editor of Lawfare.

This is a great question. The first thing I have to say is that for now, it's purely a hypothetical one. That's because there is legislation that's been in place since 2010, which prohibits the Defense Department from using U.S. government funds to transfer Guantanamo detainees to the United States for any reason. It's usually referred to as the travel ban. Congress passed it after the Obama administration tried to move the alleged perpetrators of 9/11 to the Southern District of New York to stand trial there. The current iteration for anyone following along at home is Section 1031 of the 2024 National Defense Authorization Act, the NDAA.

What this means for this question is that unless that law expires or Congress changes it, there's no way to physically get any of the detainees into the United States. And the statutory language is incredibly broad. It defines detainee as anyone who's basically not a U. S. citizen or in the military who is or was held at Guantanamo since January of 2009.

So all of that is to say that there's no chance that any current detainee is going to see the inside of a federal courtroom or even a federal detention center. And this is a really good example of the layers upon layers of laws that perpetuate the problem and make it so hard to close Guantanamo.

So all of that said, back to your question: what powers does the executive branch give up if detainees are moved to the U.S. and how are the detention authorities different? So to start, it's important to know that there are three different categories of detainees right now at Guantanamo because the legal implications for this hypothetical are different for each of them.

The first category are people who have been cleared for transfer, which means the US government has determined through an interagency process that they no longer pose a threat and they have to be set free. There are 15 people in this category; many of them have been there for years and years while the government is trying to figure out where to send them. There's no legal authority to continue to hold them unless criminal charges are brought against them if they're brought to the U.S. So if they get onto U.S. soil, they have to be set free.

The second category of detainees are people being held in law of war detention, but not criminally charged. There are three people in this category. And generally speaking, the government can't continue to hold them once they are on U.S. soil. That's because the two major sources of detention authority, the AUMF and the NDAA, only allow the military to hold them.

There are already a lot of challenges to these detention authorities on various grounds in different detainees’ habeas cases. And let's just say it would get a lot more complicated if the government was trying to use that authority on U.S. soil, even if they were trying to keep the detainees in military detention rather than civilian detention.

So there are various constitutional arguments that the government could make here. For example, the commander in chief power allows for continued detention. But in any event, it would raise a whole new world of legal challenges. And, in my view, many of them would be successful.

And the third category is the one that I think most people think of when they think of Guantanamo, which is the people who have been charged with crimes and are in proceedings in the military commissions system. But there are actually only nine people in that category, two of whom have already been convicted and are serving sentences. Even for those two, if the government tries to transfer them to civilian custody in the U.S., it would be challenged on a number of constitutional and other grounds. So that leaves the seven people in active proceedings in the military commissions, which of course includes the so called 9/11 defendants.

So the commissions are completely independent as a legal system from criminal law in the U.S. And for various reasons, it basically can't just be imported onto U.S. soil. So that means that if the government wants to continue to detain them, it's going to have to charge them with crimes under regular criminal law, civilian criminal law.

And that raises a bunch of questions about, for example, which crimes would fit, because there aren't always clear analogs between those defined in the Military Commissions Act and those in the Federal Criminal Code. There may be statutes of limitations, problems, and so on. It also introduces a huge number of procedural and due process issues because criminal defendants in the civilian system have constitutional rights they don't have in the commissions.

And prosecutors are also much more constrained. One of the main hurdles for prosecutors relates to the evidence they'll need to make their case. So among other things, protections against evidence obtained through violations of the defendant's rights are much stronger. That evidence can't come in, and because every one of these cases involves torture, that's a huge problem for prosecutors, but there are a lot more.

So basically, even if the government could be successful in bringing criminal charges, there would be years upon years of pre-trial litigation challenging every aspect of the prosecution.

So I think that barely scratches the surface in terms of answering your question, but I hope it was helpful.

Anna Hickey: This question is from Gabriel Armas Cardona. He asks, what is the impact of the regionalization of international law? Will only stronger politically aligned international law like NATO be well respected while weaker international systems like the WTO or any non codified treaties become viewed as more optional?

Scott R. Anderson: Lawfare senior editor Scott R. Anderson here. Gabriel, thank you for your question, which is a very sophisticated one and a really interesting one. I'm glad you put it forward to give me an opportunity to think about and talk about this.

I generally think you're right that you are seeing a–, we are seeing a regionalization of legal arrangements and it's as much law and policy interrelated, but I think it's less geographically bound and more about political blocs in that we are seeing the Balkanization of the global order.

This is something that's kind of been a trend for like the last decade or two, but we're really beginning to see it particularly in the last four or five years, driven by major power competition, particularly with China, also with Russia, but mostly with China, where the reaction to that is we say, hey, instead of pursuing big, global, kind of neoliberal economic arrangements that these other actors, we believe, are free riding off of or otherwise not playing by the rules of in a way that we think is fair, or that just gives them politically strategic advantages if they're using them in totally acceptable economic ways—but because of the nature of this new competition, we're not comfortable with that anymore.

And we're setting out these rules that says we're going to deal with the states that agree with us, that have similar strategic interests, similar value systems, similar perspectives on a variety of things. And those are the people we're going to deal with more on these.

And it ranges a little bit on the issue set. So like sometimes you'll see arrangements where, you know, security coordination is something that states will only do with a small bundle of states that really agree with them strategically and politically. If it's more conventional economic relations, states are much more willing to have a broader universe of connections that they'll deal with, including states they may not always get along with politically, but we're seeing more hedging on that because supply chains and other factors tie economic well being to national security and to the ability to be manipulated by foreign rivals.

And so, there is this question about saying, well, how much interdependency is good, how much is bad. And it's a real shift in mentality from the 90s and the 2000s where the kind of underlying assumption is that neoliberalism—the expansion of free borders and free trade and global interdependence—is a big contributor towards peace.

And I'll say, I think there's a danger in overlearning that lesson of the pendulum swinging too far back. Because I think that's generally true. I generally think, you know, global liberalization of trade and financial exchanges has actually contributed to a lot of prosperity around the world and elevated a lot of very poor people out of the depths of poverty. And I think it has done a lot to diffuse global conflict. That doesn't mean that there aren't downsides as well that need to be hedged and calibrated for. But we don't want to go too far in the opposite direction either.

But what it ends up looking like is that you see politically aligned states increasingly having different rules because they have a different density of relations and interactions, and they're not always willing to allow other states into those spheres. Right now those are predominantly political strategic and economic relationships, but they're going to get codified in treaties and other sorts of relationships.

And more and more, I think we're seeing, going to see international agreements and perhaps even more likely and more often just kind of handshake, non-binding international arrangements, creating different rule systems and operational relationships within these different blocs in very different ways. And it's a product of, you know, living in this era of global major power competition.

It's a similar thing kind of happened during the Cold War, but we don't think of it that way because it's been so far in our past and we didn't really see a lot of the same legal, international legal relationships in particular evolve in the same way in the Soviet bloc. But, you know, I think that's the trend we're going and I think you're onto something here and it's something we're gonna have to look forward to.

Again, there's upsides and downsides of that. But the truth is we're just going into an era of increasingly Balkanized international relations. That includes international law as well. And that's the reality we're going to be navigating, I think, for the foreseeable future.

Caller 3: Hi, this is Jerry Ahouyate from Nyack, New York.

With the Trump administration's plans for mass deportations, I'm interested in the legal basis for arresting someone for being an undocumented immigrant. If ICE raids the home or business, what particular actions can they legally take to detain and question individuals?

My understanding is that the burden of proof is on the government to prove that someone is in the country illegally. If I stop someone, can't that person simply refuse to reveal their immigration status or answer questions about where they were born? Thank you.

Amelia Wilson: This is Amelia Wilson, clinical professor and director of the Immigration Justice Clinic at Pace Law School.

So any non-citizen who is present in the United States without authorization or whose authorization has expired or was revoked is subject to immigration detention. Immigration law is a federal matter and immigration law is an exclusively executive question. So that means that any administration has absolute dominion over how aggressively they want to enforce that law.

Some detention of undocumented persons is discretionary, meaning the Department of Homeland Security can elect to target or not target classes of people for detention. So we see detention numbers increase or decrease depending on a particular administration's priorities. Other detention, meanwhile, is what they call mandatory and covers immigrants who have been convicted of certain crimes that are listed within the Immigration and Nationality Act. So it is really within that discretionary realm that we see the greatest fluctuation of detention numbers.

Immigration officers have a wide authority to detain individuals who are suspected of being in the country without authorization, whose authorization has expired, or who have been convicted of certain crimes. Also those who have a prior order of deportation. That authority is derived from federal law and empowers ICE officers to approach and question someone even upon mere suspicion that person is not a native or citizen of the United States.

To enter someone's home or business, though, the occupant or business owner's permission will suffice to enable ICE to enter and then, of course, ask anyone inside that dwelling or inside that business any question they like. However, barring permission, ICE does need a warrant to do so. We do see warrantless arrests and entries, but they do create a later opening for non-citizens to challenge that arrest or the evidence that ICE obtained during that warrantless arrest.

My understanding is that the burden of proof is on the government to prove that someone is in the country illegally. If they stop someone, can't that person simply refuse to reveal their immigration status or answer questions about where they were born?

So the answer is yes to both questions. Establishing what is called alienage is one of the Department of Homeland Security's only burdens to prove in the deportation process. The burden shifts to the non-citizen thereafter to prove almost each and every element of their defense moving forward.

Now, a person who's been stopped and questioned by an ICE officer does not need to answer the officer's questions, and refusal to answer the officer's questions does not justify or give rise to their arrest.

You can find examples of this, of these sorts of interrogations on YouTube. They're created by activists and attorneys and the videos were created to demonstrate how to not answer an officer's questions related to citizenship and also not face reprisals for the same. At the conclusion of these videos you will see that the officer unable to secure an affirmation of alienage has to let the individual continue on their way.

Caller 5: Hello, my name is Rob Carl. I'm calling from Vienna, Virginia. And my question is what are the constitutional and statutory limitations on presidential authority to deploy military forces domestically under the Insurrection Act, Posse Comitatus Act, and how will these legal frameworks balance national security concerns with civil liberty protections?

I ask this as an American and also as a soldier. Thank you.

Anna Hickey: This question is from Thomas Merrick. He asks, it seems likely that there will be opposition to President Trump's efforts to use state national guards or even the US military to deport immigrants lacking legal status, which could potentially even result in armed conflict. What is the role of federal courts and the Supreme Court in preventing this type of armed conflict?

Scott R. Anderson: Rob and Tom, thanks so much for your two questions. They really intersect in terms of subject matter so I thought I'd tackle them together. This is Lawfare senior editor Scott R. Anderson. I published a piece on this earlier this year originally published with The Unpopulist and then republished on Lawfare, crossposted on Lawfare under the title, “The Real Legal Limits on Domestic Military Deployments.” So check that out for a little deeper dive in this.

The long and short version of answering both your questions is essentially that you know, Congress has imposed certain limits on how the military can be used domestically, and the Constitution really puts it in Congress's hands to set limits or not on how it's used.

The main limit is the Posse Comitatus Act, which sets up a criminal prohibition to say you can't direct US military forces for various law enforcement purposes domestically without authorization from Congress or in the Constitution. But then Congress has also installed a bunch of exceptions to that in a variety of regards, a bunch of statutory authorities, including the Insurrection Act, including other statutory provisions that allow the use of military for border security, for counter narcotics efforts.

And then they've also set up a structure with the National Guard where there are authorities that DOD has at least interpreted to allow the president to request governors to voluntarily contribute troops under the gubernatorial command, meaning National Guard forces that are not in national status, to do varied missions that are federally funded and kind of at federal direction, even though the chain of command technically runs for the governor. This is pretty notable because when they're under state command, unlike with another federal command, they're not covered by the Posse Comitatus Act, so they can do whatever they want.

The Supreme Court has traditionally taken a pretty deferential position towards interpreting when the conditions are met under these statutes to allow the executive branch, the president, to call up these forces. So there's case law in the context of the Insurrection Act that says, this is deferential, this is a decision that Congress has clearly given to president and the courts aren't going to second guess the president on that. You know, we've seen the courts push back a lot more on congressional delegations to executive branch in the context of administrative law and Loper Bright these last few years. Maybe that has some suggestion that courts will be a little, give a little more scrutiny to these sorts of determinations, but I kind of doubt it.

And the statutes themselves are very broadly written. They essentially allow the troops to call up federal troops for use for various law enforcement and stabilization purposes, where there's an insurrection or there's an external invasion, where there's a failure to enforce constitutional rights at the state level by state authorities, a failure of the courts, or generally an inability to enforce federal law.

And what does that mean—an inability to enforce federal law? Does that mean, you know, the state has to be actively resisting it? Does it mean they have to, you know, they just don't have the capacity? Does it mean they're just not willing because they don't agree with the interpretation law? All these are possibilities the courts have suggested the executive branch is going to get to decide.

So, I suspect, and the thrust of my piece I published is that there probably is a lot of authority on the part of the president. to actually decide I'm going to deploy troops domestically. And that's not prohibited by the Constitution, and it's the way Congress has set up the law with its authority to regulate that sort of thing.

But there's nothing the President can do with troops deployed domestically that he can't do with existing FBI agents or other federal officials. Using troops does not get you out of any constitutional requirements. First Amendment, Fourth Amendment, Fifth Amendment—federal government still has to abide by these, even if it's using troops domestically.

And when you use troops domestically, it's not like you're using them overseas because so many more people involved in any military action have constitutional rights, and they're operating in an environment where state laws and federal courts are going to apply and be open in a lot of cases.

So we know in prior domestic military deployments, for example, where we've seen American citizens end up getting killed because of military action—this is the Hernandez case in the 90s, early 2000s, the 90s, on the border with Texas and then the Kent State shootings in the 70, 1970, if I recall correctly. Both those cases, people were criminally investigated. They faced serious civil lawsuits. The government ended up having to pay substantial settlements. The Kent State case, people actually were criminally tried. I think they were ultimately acquitted.

But so all these mechanisms are here and are much more constraining on what the president can do with those troops. So the marginal advantage of using troops is pretty limited. We see them get called up and used often because there is a need for personnel in times there's just a manpower shortage for like in times of national emergency. Maybe there are cases where, you know, they're perceived as having some sort of intimidation effect and that's always constitutionally questionable and can butt up against the First Amendment where there's an undue chilling effect.

But the long and short of it is using the military isn't an escape clause from the rest of the Constitution. And all those things still apply. So while we, there's good reasons to be concerned about domestic deployment to the military, we have to bear in mind that legal context and people need to be ready to sue over it if this is something that a future president decides to use at greater scale and push against those constitutional limits.

The same tools that we use that keep other federal authorities at bay and within their constitutional constraints are the same ones we should use against domestically deployed military and should be able to, and I expect will be able to.

And so that's, if we see, you know, President Trump or future president pursuing this route and pushing the limit of what is doable, I think we'll see it eventually be fought out in the courts.

Anna Hickey: This question is from Susan Dillon. She asks, since the DOJ memo stipulates that a sitting president cannot be prosecuted, does this mean that a president who murders his or her spouse in the White House could get away with murder?

Anna Bower: Hey Susan, it's Lawfare senior editor Anna Bower.

In my view, the Office of Legal Counsel memo stating that a sitting president cannot be prosecuted would not necessarily mean that a president could get away with murder for killing his spouse. The reason why is that the policy only shields the president from prosecution temporarily, meaning while he's still in office.

So the president could be prosecuted, but it would have to be after he leaves office, either because his term expires or because he resigned or because he was impeached and removed from office on account of the fact that he murdered his spouse. Whatever the case, he could be prosecuted once he is no longer a sitting president, because the OLC policy only applies to sitting presidents.

That said, in the hypothetical that you've described, prosecutors could face some evidentiary hurdles under the Supreme Court's immunity decision if the president murdered his spouse while he was the president. So on one hand, I think it's pretty unlikely the courts would hold that such a murder is an official act of the president and therefore would be subject to absolute or presumptive immunity, but there could be some circumstances in which the president's conduct would be immune.

For example, what if the president had his spouse murdered by ordering SEAL Team 6 to assassinate the spouse? At least under some readings of the majority's opinion in the immunity case, the president may very well be immune from prosecution in that scenario because he's effectively giving an order within his official duties as commander in chief to Seal Team 6 to assassinate his spouse. At least under Justice Sotomayor's reading of the majority's opinion, the president in that scenario would be acting within his official duties—he would be immune and thus could get away with murder.

Of course, all of that is quite separate from the OLC opinion that you initially asked about. But I did just want to mention that there are some interpretations of the immunity decision that could effectively allow a president to get away with murder in the hypothetical that you've described.

Caller 9: Hi, this is Ken from Washington state. What I'd like to know is this: if Donald Trump does proceed with his promise to wreak vengeance on the FBI and Justice Department, is there any way to actually preserve the institutional knowledge that will be lost as he fires all the existing staff?

Benjamin Wittes: I'm Benjamin Wittes, editor in chief of Lawfare.

I'm afraid the answer to that question is no. If Trump's form of revenge and attacks on the institution take the form of firing people as the question assumes, there is no substitute for humans who've served a long time for preserving institutional memory, and one of the consequences of it getting rid of a large number of people who've served a long time is that you lose a lot of institutional memory, you lose a lot of expertise, you lose a lot of knowledge about the way things are done traditionally, but that of course is precisely the point.

Now, that of course raises the question of whether Trump's war on the institution will A) take place at all, and  B) if it does take place, will it take place in that form? You know, he's very nonspecific about these things, what he wants to do precisely and how he wants to do it. You know, the last time it really was in the form—not of getting rid of large numbers of people who work at the organizations at the career level—but in getting rid of certain people at the tops of the organizations. That, of course, does not destroy institutional memory in the same way.

So it very much depends, I think, on how precisely he goes about it. But I don't think if he does get rid of a large number of career people by one means or another, institutional memory is one of the things that is going to go with them.

Anna Hickey: This question is from Mike from Maryland. He asks, how much does our legal system and our foreign affairs rely on the participants acting in good faith? How does the system handle bad faith actors, especially if they are high ranking government officials?

Natalie Orpett: This is Natalie Orpett. I'm the executive editor of Lawfare.

The short answer to these questions is number one a lot and number two not as well as we might like, especially when we're talking about really bad faith actors.

The longer answer is that these are complicated questions because I think they're fundamentally about the limitations of what law and social strictures can accomplish. I'm sure philosophers would have a lot to say about that, but I'm guessing you're looking for a different angle, and I'll stay in my lane. I'm just going to have to narrow the question to be able to say anything specific. So, with apologies, I'm just going to focus on the legal system.

I think what this question gets at really helpfully is the space between what's expected—that is, how much the legal system assumes about the actors that compose it—and on the other hand, what can be done when reality diverges from those expectations. So in other words, if you have norms or unwritten rules or expectations or whatever around how people in positions of power will behave, what mechanisms do you have to actually enforce those expectations?

And it turns out there's a huge gap. It sort of makes sense because if you think about it, how are you going to come up with a set of written enforceable rules that basically translate to, you know, be a good person or care more about other people than yourself.

That said, of course, there are some things that the legal system does or tries to do to ensure that people in positions of power act in good faith. At the most basic level, having a democratic system means that normal people can vote bad faith actors out of office. That doesn't suffice, for obvious reasons, but there are other tools as well. So the First Amendment gives people the right to petition the government and creates a lot of protections for the media and other forms of speech, which can create a lot of political pressure on bad faith actors, and our structure of government and institutions can impose pressure in a lot of ways too.

But to be a little less conceptual, I thought I'd talk about two things that came to my mind when I heard this question. The first is, you know, maybe, obviously, the immunity decision out of the Supreme Court, Trump v. United States. In oral argument, Justice Sotomayor actually talked specifically about how a stable democratic society needs the good faith of its public officials.

And I think her point was that in a legal regime where the criminal law doesn't apply to the president, at least some of the time—because presidents either have absolute immunity or presumptive immunity for all official acts—there are no legal mechanisms to ensure that the president doesn't commit crimes.There are non criminal remedies like impeachment or arguably the 25th amendment. But at the end of the day, the only thing that's left is the hope that presidents will act in good faith and will abide by the laws even that don't technically apply to them most of the time.

The other example that came to mind for me is the oath of office. So everyone in our government takes an oath to the Constitution. Actually, all lawyers have to as well. The oath that the president takes is actually in the Constitution. The one that members of Congress and federal law enforcement take dates back to the Civil War when, you know, suddenly became incredibly important that officials confirm their loyalty to the Constitution.

Oaths are obviously not law, and they're certainly not enforceable in any sort of legal way, but there's a sort of ceremony around it. You know, you say specific words in front of witnesses at a designated time and place, and it's meant to confer a sort of moral weightiness, I think. It's supposed to make people feel like they will be shamed and dishonored if they don't live up to this promise that they're making.

If someone just doesn't care about any of that, there's not much you can do in terms of controlling that person's behavior prospectively. But because oaths are public, I think maybe it's a way to formulate an expectation of good faith so that when government officials fail, we can see that they fail. We have a common definition of what they have failed, and we can try to hold them accountable. It's not law, but at least it's something.

Caller 10: Hi, my name is Linda, and I'm in Orlando, Florida. And I don't understand how Todd Blanche and Emil Bove can represent the United States on behalf of the Justice Department, having so recently been personal attorneys for Donald Trump, who's now the president.

How do those conflicts of interest—which I'm assuming exist as a result of the prior representati–, representation of Donald Trump as a private citizen—how do they get resolved? Is it simply a matter of Donald Trump saying, I don't care, it doesn't matter to me. But what about the people of the United States? Don't we have a stake in this conflict of interest situation, assuming there is one? Thank you very much.

Benjamin Wittes: I'm Benjamin Wittes, editor in chief of Lawfare.

So the answer to this question is that they cannot represent the United States, ethically at least, in matters that involve their former client. That is true, by the way, of a lot of lawyers at the Justice Department at the political level; they come in with prior client representations and they have to recuse from the matters that they represented their clients in, as well as matters that, you know, they, their prior representation may affect their judgment, or in some cases, the perception of their judgment. It's odd, of course, for those to be presidential representations, but it's—I doubt it's unheard of. There are senior Justice Department officials who've represented other senior officials in the past, and the traditional means we have of dealing with this is recusal.

Now, if they were not to recuse in situations that required it. That would raise significant ethical issues that would be handled traditionally through bar complaints, but the Justice Department's own internal mechanisms for making sure people recuse when necessary are pretty robust.

The oddity of this situation, of course, is that one of the Justice Department's early decisions may—depending on how the matters progress—involve how to handle residue from Trump's own cases, and these would, of course, they would have to be recused from those, which is precisely, of course, the issue that caused Donald Trump to become infuriated with former Attorney General Jeff Sessions.

But this short answer is that the mechanism to handle this sort of thing is recusal and it is not optional, it is required.

Anna Hickey: This question is from Robert Winslow. He asks, reporting indicates that Trump had formally restricted data at Mar a Lago. How would the case against him be different if he had had RD?

Anna Bower: Hey, it's Lawfare senior editor, Anna Bower.

This is a question about classification authority. So let's zoom out for a second and talk about classified documents. Typically it falls within the purview of the executive branch to classify or declassify information. There is an executive order that governs this and most of the time it is true that the president has authority to declassify any document, though there are some well established procedures for doing so. And in Trump's case, there's no evidence that he actually did take any of these steps to declassify the documents for which he was charged in the Mar-a-Lago documents case.

But there are some categories of information concerning U.S. nuclear capabilities that are classified by virtue of a statute rather than through the executive branch. The statute is called the Atomic Energy Act. Those categories include documents, designated restricted data, and formerly restricted data.

Confusingly though, formerly restricted data does not mean that the data is unclassified or that it is no longer national defense information. It just means that the information is no longer designated under the category known as restricted data, which is subject to more stringent protections. Instead, formerly restricted data can usually be treated like other types of classified information as opposed to having the increased protections that restricted data does.

But what's really important about both of these categories of information, whether it's restricted data or formerly restricted data, is that neither of them can be automatically declassified by the president. There's a process instead that would need to involve the relevant secretaries in the Department of Defense and the Department of Energy—it's not what is referred to as at will declassification by the president.

So how does all of this relate to Trump's case? Well, one document specifically —-Document 19 in the indictment—is described as formerly restricted data concerning us. And when the indictment came down, that document was singled out as a very important part of the prosecution's case, because Trump has at times claimed that he could have, and in fact did, declassify all these documents before he left office. Of course, there's no credible evidence that I'm aware of that Trump did in fact declassify any of the charged documents or that he declassified them with his mind.

But even if there was something to this declassification defense that Trump has at times toyed with, document 19 really throws a wrench in that defense because formerly restricted data is classified by statute and the president cannot automatically declassify those documents at will.

Now, I am not aware of any other significant way that the case against him might change if the document he was charged with was restricted data rather than formerly restricted data. While that is a designation that means the document would have been subject to tighter protections, both restricted data and formerly restricted data are not subject to automatic declassification as I've explained, and that really seems to be what's most important about the inclusion of Document 19 in the indictment.

But if you are interested in this subject, I would suggest checking out a piece that Matt Tait wrote for us and that was also on his site Substack. And it goes through a lot of different documents that Trump was charged with and what the classification status was of each and also he does a great job explaining the distinction between restricted data and formerly restricted data and the importance of Document 19. So certainly would check that out if you're interested in this topic.

Caller 11: Hey, it's Kevin Shields from Seattle, Washington. My question is, could Trump have preemptively pardoned the people that stormed the Capitol on Jan. 6, back during this first term before it ended?

Roger Parloff: This is Roger Parloff. I'm a senior editor at Lawfare.

So this raises the question of preemptive pardons which are pardons granted before someone has been charged with any crime. I think the answer is probably yes. I think most people would say it has, based on historical examples, but it's never been tested.

So, most pardons are granted after both conviction and sentence. We do have a few examples otherwise, for instance, Sheriff Joe Arpaio was pardoned after conviction, but before sentence, and of course, President Biden just pardoned his son Hunter after convictions but before sentence as well.

There was one case we know of a pardon after a charge, but before even conviction, at least one case—-that was George H. W. Bush pardoning Casper Weinberger, who had been a defense secretary that related to his testimony before relating to Iran Contra.

Then we've had a few historical examples of pure preemptive pardons. The famous one is President Ford, Gerald Ford, pardoning President Richard Nixon in 1974. So Nixon had not yet been charged with anything. Similarly George Washington pardoned a great number of people who participated collectively in the Whiskey Rebellion before they had been charged with anything. President Jimmy Carter pardoned Vietnam War draft dodgers. There might've been 50-100,000 who fled to other countries like Canada.

And again, more recently, President Biden pardoned his son Hunter much more broadly than just the two, the charges that had been brought against him in the two cases. He pardoned him for anything that might've happened over the past 11 years. That's, that one's controversial.

So now it could be that we will finally get some clarity on this question because it's conceivable that somebody will try to charge Hunter Biden again for something new. And in that case Biden would, Hunter Biden would produce his pardon to the court, say you have to dismiss and the court would rule and say is a preemptive pardon, or at least that preemptive pardon, valid and that could be appealed. That would be the first time in 200 years we'd have judicial guidance on this.

As far as why Trump didn't pardon the Jan. 6 defendants before they were charged, I think I have a pretty good idea. It's just a hypothesis. But at that time, he was impeached on Jan. 13 by the house. And he had not yet—the Senate had not yet voted and it wouldn't yet vote until Feb. 13.

So, so, his stance at the time was that he was opposed to what had happened. And in fact, he gave a speech on the afternoon of Jan. 13 after his impeachment. And he said, there is never a justification for violence, no excuses, no exceptions. America is a nation of laws. Those who engaged in the attacks last week will be brought to justice.

So, that was his stance at the time. So, I think that's why he did not want to be seen to be granting preemptive pardons, but I think he could have.

Anna Hickey: This question is from Andy from Los Angeles. He asks, Is there any chance that Trump will be prosecuted either at the state or federal level for his role in the fake electors plots?

Quinta Jurecic: This is Lawfare senior editor Quinta Jurecic.

Trump actually already has faced criminal charges over the fake electors scheme. Although the question of whether those charges have been successful is a very different story. In the federal indictment, the Jan. 6 case brought by Special Counsel Jack Smith, the conspiracy that Smith is alleging that Trump was involved in actually involves the fake electors scheme as part of a kind of a broader set of efforts that Smith sets up to overturn the 2020 election.

In particular, the fake electors scheme is really crucial to the efforts that Smith describes and that you see described in the Jan. 6 committee report to pressure Mike Pence into blocking the counting of the electoral vote. Trump's allies in Congress needed there to be these quote unquote alternative electoral certificates signed by the fake electors in order for Pence to claim that there was some kind of uncertainty about the electoral count, which would have been the excuse for upending the count in whatever way. Obviously, Pence didn't take that approach.

Clearly, of course this federal indictment is not going anywhere. The special counsel dismissed it after the election. There is kind of a possibility hinted at that they might try to pick it back up after Trump leaves office, but I think that's so far in the future that it's kind of difficult to think about and the likelihood is pretty slim.

Then to move on to state prosecutions—so the fake elector scheme was of course also part of the Georgia indictment which was a indictment of Trump along with a range of other co-conspirators. That case is, of course, also on ice given Trump's election. It's also facing some other questions as I'm recording this—the Georgia Court of Appeals has just disqualified Fulton County D.A. Fonny Willis from overseeing the case, so I think we can sort of write Georgia off for the moment.

Then there are other prosecutions at the state level of those involved in fake electors schemes. Right now there are four: Michigan, Arizona, Nevada, and Wisconsin. In Michigan and Arizona, Trump has either been outright named as an unindicted co-conspirator, or he is there, there's an unindicted co-conspirator listed that is clearly referring to Trump.

It's a little unclear what's going to happen with those cases going forward. There's no indication that state prosecutors are planning to drop those prosecutions into the other defendants—who, of course, aren't shielded by the presidency—but it's hard to imagine that a prosecutor would want to bring additional charges against Trump at the state level while he's in office, given all the problems that they're would come up regarding presidential immunity from prosecution, especially after the Supreme Court's immunity decision.

So I would also put this in the category of maybe we might see some kind of charge against Trump after he leaves office in 2029. That very well, I would expect, would run potentially run into problems with the statute of limitations. So overall, this is again in the category of probably not going anywhere. It might, but don't hold your breath.

Anna Hickey: This question is from Robert Winslow. He asks, is offering to pardon an insurrectionist abetting them? Is pardoning an insurrectionist aiding them?

Roger Parloff: This is Roger Parloff. I'm a senior editor at Lawfare.

The question has two parts. So the first part I'm gonna reword a little bit. Is offering a pardon to an insurrectionist after the insurrection has occurred abetting them. And the answer is no. To aid and abet, you need to help somebody commit a crime and have the same intent as the person committing the crime has, so merely offering a pardon after the fact won't do it.

Now, slightly changing the question—is offering somebody a pardon before the insurrection, if they will commit an insurrection on your behalf, is that abetting insurrection? I think it is. If you're saying I'll grant you a pardon if you'll commit an insurrection on my behalf. Yes, that's aiding and abetting.

The problem is that if you, to do that, you probably have to be president. And if you are president, you're protected by at least presumptive immunity as of July 1 the Supreme Court's ruling in Trump v. United States. And there are certain powers for which presidents have absolute immunity. And those are called his preclusive and conclusive powers, and one of those is the pardon power.

So there's a lot about pardons that cannot, that we just can't look into anymore, assuming we ever could have before Trump v. United States. And this would certainly be the test, ultimate test case where somebody, where a president is authorizing a new crime, whether that is even protected by absolute immunity. That one—I just don't know if even the Trump v. United States majority would go that far.

Another permutation of the question might be, suppose somebody commits insurrection on the president's behalf and is arrested. And the president gets antsy that the person is going to implicate the president is going to rat him out, basically. Can the president sort of dangle a pardon before him to keep him silent? And is that obstruction of justice?

That's the issue that was discussed a lot during Trump's first term, that when there were suspicions by some that he was dangling pardons to Michael Cohen, for instance, to keep him from talking about the hush money arrangement or to perhaps his campaign manager, Paul Manafort, to keep him from telling prosecutors something even worse, something worse about Trump. That too has never been resolved, whether that sort of obstruction of justice is protected or not. It seems that again, after Trump v. United States, it's hard to make even that argument anymore, that would be obstruction of justice.

The other half of the question was—I think the simpler part—is pardoning an insurrection aiding them. No, pardoning somebody after the fact is clearly protected. That's sort of what the pardon power is all about. So you can show arbitrary mercy. You can use that for good or for bad, and that's protected.

Thank you very much.

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