The Lawfare Podcast: Ask Us Anything About 2023

Anna Hickey: Why won't the White House and Democrats do serious border security reform? Were members of Congress directly invovled with planning the insurrection? Does requesting a formal UN process open up Israel to complaints of war crimes themselves?

Jim Norton: Why hasn't Moss and Freeman sued for defamation?

Anna Hickey: Do you think any of Donald Trump's trials will come to a conclusion before the next election? What decisions might the Biden administration make differently as it defends the integrity of U.S. elections and pursues its other obligations to the American people? How do we tolerate a justice system that takes months and years to prosecute cases? What are the obligations of defense attorneys regarding reciprocal disclosure? Given what happened during Watergate, why does it seem like the legal response to his apparent malfeasance was so muted?

Roger Parloff: If a person is detained because of a bench warrant, can a president or governor use the pardon power to free them?

Anna Hickey: If Trump were to pardon himself, who would have standing to bring a case challenging a self pardon? What are the implications of the Ukrainian hack on the Russian tax system for cybersecurity globally?

I'm Anna Hickey. Associate Editor of Communications for Lawfare, and this is the Lawfare Podcast, January 2nd, 2024.

Welcome to our annual Ask Us Anything episode, a hallowed Lawfare tradition. Every news alert in 2023 seemed to bring new questions, but fear not, because Lawfare has answers.

Lawfare senior editors answered listener submitted questions on the Israel -Gaza War, military aid to Ukraine, the Trump Trials, gag orders against the former president, the presidential pardon ability, violence against elected officials, efforts to combat corruption, and more. What a year. It's the Lawfare Podcast, January 2nd, Ask Us Anything about 2023.

This question is from John Ford. Are there any updates on the administration's alleged efforts to combat strategic corruption? There was a lot of talk about the issue back in the Trump administration, but besides a push toward a global minimum tax, we haven't seen much else since.

Natalie Orpett: This is Natalie Orpett, Executive Editor at Lawfare. This is a great question, John. The Biden administration has been talking about corruption as a core national security threat since the very early days of his presidency. Usually folded into that discussion is at least some reference to, quote unquote, strategic corruption, which is the idea that states sometimes use corruption as a tool of foreign policy. So in other words, the corruption is not just for trying to get some economic benefit, it's for trying to pursue a national interest or target international rivals. Usually when the Biden administration has talked about combating strategic corruption, it has done so in the context of talking about working with international partners.

It often references the need to prevent interference in democratic processes in the United States and abroad, which of course is a nod to the reason that this became such a focus, which was around the 2016 election and concerns about Russian interference. It's difficult to assess how the Biden administration is doing with respect to strategic corruption specifically, because it's not always obvious what's strategic corruption and what's just run of the mill corruption.

You know, someone may be paying bribes just because it will make them rich, or they may be paying bribes because they're acting directly or indirectly on behalf of their government to pursue some sort of national interest. The only thing I could find in recent administration announcements that was specifically about strategic corruption, said that the State Department oversaw research on the topic and is planning to initiate a small grants program to fund quote unquote anti-corruption learning products in 2024.

With respect to anti-corruption efforts more generally, I can say there is a fair amount that's been done. There's actually a conference going on this month in Atlanta. The U.S. is hosting a convening of the state's parties to the U.N. Convention Against Corruption. So that may be an example of the administration focusing on strategic cooperation, since it said it would prioritize doing so by working with international actors for that purpose.

There have been a bunch of institutional changes within the executive branch to make sure that resources are deployed effectively to combat corruption, to make sure that it's getting adequate focus. I think it's safe to assume that strategic corruption is a high priority within that broader category.

So there's a new anti-corruption coordinator at state, a new center at USAID, a bunch of programs to provide technical assistance to foreign countries, partnerships with civil society and private sector actors. So on, several agencies have used enforcement powers to recover money from corrupt actors.

That includes $500 million in penalties and disgorgements under the Foreign Corrupt Practices Act. One of the more concrete things that I think is certainly worth noting is a new rule from the Treasury Department, which will require certain companies to report information about their beneficial owners.

So this is intended to close a loophole where individuals or companies could hide ill-gotten funds through things like shell corporations or other sort of convoluted ownership structures. So, the idea is that FinCEN will know who the beneficial owners are, which is a way of uncovering potential corruption and being able to investigate.

So the idea is knowing who actually controls or who actually owns the company, even if indirectly, can help you uncover those bad actors and hold them accountable. That one is not solely a Biden administration initiative, though. It's actually implementing a law that Congress passed in 2021 called the Corporate Transparency Act.

There are plans to issue proposed rulemakings next year early as well. One is to address corruption in residential real estate, where as we know, a lot of oligarchs and kleptocrats. Park their money. Another is focused on investment advisors, which I think is part of a strategy that developed after the Panama Papers, which is to combat corruption by targeting its so called enablers.

But thank you for asking about this. I think it's definitely something to watch.

Anna Hickey: Catherine Watkins asks, Judge Gorsuch's opinion upholding tribal sovereignty in the Indian Child Welfare Act, ICWA, was a welcome surprise in an otherwise difficult SCOTUS term. Were there any other decisions from the three Trump appointees that were of a similar surprise, showing a willingness to break from the expected conservative doctrine?

Quinta Jurecic: I'm Quinta Jurecic. I'm a senior editor at Lawfare and a fellow at Brookings. So let me focus here on a couple of cases that are really within the core Lawfare issue set. First, I would like to point to Moore v. Harper. This is the case that involves the independent state legislature theory, under which the Constitution grants state legislatures a particular degree of authority in administering federal elections within their states.

There was a lot of concern regarding Moore that the Supreme Court would potentially embrace a variation of this theory that has been championed by some on the right that would allow state legislatures a pretty wide degree of authority to potentially, really disrupt election proceedings. In ways that could not only raise concerns about the administration of elections, access to the franchise, but also just, you know, creating chaos in ways very similar to those which were used to create chaos in, in 2020 and raise doubts about the integrity of the vote.

So it was a very welcome surprise when the court really slapped down the most extreme manifestations of that theory in a 6-3 ruling. There is an opinion written by Chief Justice Roberts, dissenting were Justice Thomas, Justice Gorsuch joined in full, and Justice Alito joined in part. That 6-3 ruling you did have Justice Kavanaugh and Justice Barrett join in.

Justice Kavanaugh also wrote a concurrence. And I think what that showed to me is that there was really a willingness of on the part of that group of conservative justices, including Kavanaugh and Barrett, the Trump appointees, to think about the potential negative consequences of this theory, which I would argue in its most extreme variations is quite radical and quite concerning. And to really push back against those extreme interpretations.

The second case that I'd like to point to is actually a pair of cases. This is Gonzalez v. Google and Twitter v. Taamneh. These were two cases that had to do with the legal, potential legal liability for social media platforms for terrorist content that appears on their services. The way that they interact is a little bit complicated but the short version is that these cases really had the potential to kind of upend the internet as we know it by opening social media companies up to a significant amount of potential liability for material for which they previously hadn't been liable.

And that could have created genuine problems, I'd argue because if you allow social media companies to potentially be held liable for, for content on their services, they now have an incentive to remove that content. And so there is a risk that even if you create liability for material that's, you know, that's bad, that you don't want on there, the content at issue in these cases was produced by ISIS, that you could really do violence to the, the internet as we know it. And I think there was a lot of concern in advance of these rulings that the conservative justices and potentially the liberal justices would respond to a sort of rising cultural and political discontent with social media platforms. And kind of slap them down in ways that could have bad consequences for the internet.

I'm of course thinking particularly about right wing conservative critiques of platforms as, you know, censoring conservative speech and so on and so forth. Instead, what we got was a 9-0 opinion in Taamneh that found that the platforms were not liable under the particular statute that was at issue, the Justice Against Sponsors of Terrorism Act, and that kind of allowed the justices to dispose of Gonzales in a way that allowed them to kind of kick the really difficult question there down the road.

I think what you see in that decision and what really came through at oral arguments was a genuine willingness on the part of all of the justices to really grapple with these questions seriously in ways that were not politically inflected much, if at all. If you were listening to oral arguments in those cases, I think it would have been very, very difficult to guess, you know, who was asking the questions, which president, you know, which justice had been appointed by and what the political affiliation of those presidents was.

It was really a genuine good faith effort by justices to grapple with a seriously tough legal question that had big implications. And I, I found that pretty hardening in terms of the ability and the willingness of the court, at least in this case, to address these questions seriously and without political blinders on.

Anna Hickey: This question is from Antti Ruokonen from Finland. Why won't the White House and Democrats do serious border security reform? It seems that that would take one of the few substantive policy cudgels away from the Republicans and solve an actual national security issue. Additionally, why isn't the White House and the Biden administration constantly communicating about their strong support to Ukraine and Israel?

Shouldn't there be a constant stream of Biden surrogates going on Fox News and Newsmax talking about how much military aid to these nations is making the U.S. stronger? Is this an impossible equation, or is the White House simply not doing enough?

Molly Reynolds: My name is Molly Reynolds. I'm a senior fellow at the Brookings Institution and a senior editor at Lawfare.

The central question here is basically why haven't Democrats compromised more and faster on changes to immigration law in order to secure additional assistance for Ukraine and Israel? But wrapped up in that one question are actually two distinct, but related ones. The first is why have we reached a point where potentially massive changes to immigration policy are seen as the necessary trade off to secure additional foreign assistance funds?

Here, the story is one of steadily declining support for assistance to Ukraine among congressional Republicans, especially in the House. Add in the fact that in September, when faced with the choice of avoiding a government shutdown without admittedly limited funds for Ukraine or holding out for additional Ukraine funding, but probably causing a shutdown the Senate, most importantly, Senate Republicans took keeping the government open.

The removal of Kevin McCarthy as speaker soon followed. And once Republicans finally installed Mike Johnson, he found himself unable to pass a funding package for Israel out of the House without cuts to IRS funding that are political nonstarters for Democrats. In short, the escalation to border policy changes or no foreign assistance supplemental has been driven by divisions within a Republican conference over these priorities as much as has been driven by the immigration debate itself.

The second question boils down to how do we get to a point where the on the ground situation vis-a-vis individuals seeking asylum in the United States and otherwise entering the country as undocumented is so politically potent that it is seen as a viable legislative hostage in these negotiations?

The substance here is beyond my expertise, but I will say that the last decade plus of attempts at changing immigration law, even around politically sympathetic populations like the Dreamers or individuals brought to the United States without documentation by their parents as minors, demonstrates that changing immigration law is hard.

It was hard before President Trump. It was hard in the shadow of his xenophobic messaging and harsh policies. And it has been hard during the Biden administration. Writing new law is substantively complicated, and building a durable coalition to pass something has proven elusive. But perhaps more importantly, and especially because writing new law in this area is hard, the president isn't a magician.

Or to use a reference popular with American political scientists who also know something about comic books, he's not the Green Lantern. He can be an important player in negotiations, absolutely, and making clear that he's, what he's willing to accept is certainly central to deal making, but legislative negotiations do not usually sink because the president didn't try hard enough.

What's more, an aggressive public campaign in favor of something can backfire as the president's opponents don't want to be seen as supporting something he embraces. The current Republican coalition seems especially vulnerable to making this pivot, suggesting that an all out PR effort targeted at, say, Fox viewers wouldn't help matters.

The time I'm recording this, deliberations remain very much in progress. Given that House Republicans have claimed, at least, that they would only vote for something that goes even farther than what appears to be on the table, it's not entirely clear that more compromise by Democrats or a more aggressive push by the White House is what makes or breaks a final deal.

Anna Hickey: This question is from Jared Freights from Texas. In 2022, the fate of the Afghan people who aided the US was a major topic of discussion, but it seems to have fallen by the wayside, at least publicly. Where does the program stand, especially in light of Pakistan's stated intent to send back hundreds or thousands or even millions of Afghans living in Pakistan, many thousands of whom are likely eligible for the SIV program?

Scott Anderson: Hey there, Lawfare Senior Editor, Scott R. Anderson here. Jared, thanks so much for this question. A topic close to my heart, as it is to a lot of folks who work at Lawfare and listen and read Lawfare. So, you know, good news and bad news, as is always the case on this particular front. The Afghan SIV, Special Immigrant Visa Program, that has operated as the main kind of statutory vehicle for providing refuge to Afghans who worked with the United States government in various capacities and their family members and associates is still in place.

It was extended to the end of 2024 by the Consolidated Appropriations Act enacted at the end of last year and they still have space in the existing kind of visa allocations. You know, I think the total number allocated after the, the bump up that was done by that Appropriations Act is somewhere in the 35, 000 vicinity, a little bit north of that.

As of June 30, 2023, it's the last report I could find. The State Department publishes kind of quarterly reports on progress on the SIV program, the Afghan SIV program. It looked like about 25,000 visas had been used, these SIVs, and about 13,000 remained available and they were processing them, at least the clip of like 5,000 a quarter.

Although I'm not sure the math works when I was looking at a few of these reports across quarters. So there may be some fudging or some confusion there because the numbers didn't quite seem to line up as I was looking at the prior quarters report. Regardless, the program is ongoing. That's not to understate a lot of the challenges of implementing it now, the challenges of Afghans getting access to it and particularly getting access to the information that's required. As you noted, you know, obviously a lot of Afghans are living in different corners of the world including in Pakistan where some may yet be returned and then have to seek eligibility for the SIV program. And notably the SI V program, it takes about a year, over a year right now to get processed through it.

I do believe at least this was the way prior potential expirations of SIV programs work that if you get your application and before the expiration period, you know, you can still be considered kind of so long as there are visas available. So, you know, people still have time to apply, but it still takes time for that to run down.

I haven't heard any chatter about extending it this year, although I, I can't say I looked out for it actively. But the fact that extends till next year may mean that that's a debate we'll have over this coming year, as people decide whether this program needs to stay open or whether this is a community that can, whose needs can be met through other more conventional legal vehicles. Regardless, hope that answers your question for you.

Anna Hickey: Amy Mellai from Maryland asks about members of Congress and their involvement in January 6th. Given what we know about Scott Perry's texts, Ronnie Jackson's involvement, and other information that has come in bits and pieces from court filings, what is your best guess about what happened that day? Were members of Congress directly involved in the planning of the insurrection? And if so, will any of them be held accountable?

Quinta Jurecic: I'm Quinta Jurecic. I'm a senior editor at Lawfare and a fellow at the Brookings Institution. This is a great question and I think it's really one of the lingering issues that remain kind of unsettled about January 6th. We had some early suggestions that members of Congress might have welcomed insurrectionists in or given tours ahead of time to sort of help them case the Capitol.

We haven't really seen much further evidence of that. What we know about involvement from members of Congress is really more in the way of how they encouraged and helped coordinate objections to the electoral vote count. The January 6th committee found, among other things, that 10 Republican members of Congress attended a White House meeting on December 21, 2020 seeking to pressure Mike Pence into upending the electoral count.

Those members included Jim Jordan, Scott Perry, Andy Biggs, and Marjorie Taylor Greene, among others. And I think it's notable that the January 6th committee referred to Jordan, Biggs, and Perry to the House Ethics Committee for refusing to comply with subpoenas about their conduct. The committee also referred now former Speaker of the House Kevin McCarthy for refusing to comply with subpoenas, that was more regarding his communications with Trump on the day of the insurrection rather than anything he did in advance.

The Jordan, Biggs, and Perry communications that the committee was interested in really had to do with giving credence to, encouraging falsehoods about the 2020 election in advance of January 6th and in some cases helping push particular avenues of seeking to somehow upend or block the electoral count. The most detail we have may be about Representative Scott Perry because Special Counsel Jack Smith has been seeking Representative Perry's phone records. This has actually been held up in court for quite a while, although a federal judge in D.C. recently ordered most of the materials in question disclosed to prosecutors.

The main details of what we know so far indicate that Perry was attempting to coordinate challenges to the electoral count in Congress and in Pennsylvania as well. And most interestingly, I think, that he was coordinating quite extensively with Jeffrey Clark, who of course was the Justice Department official who would go on to attempt to oust the acting Attorney General and himself become the Attorney General in an effort to kind of leverage the Justice Department to back Trump's allegations of election fraud. And so I think it's, it's quite interesting that Representative Perry appears to have been involved in sort of coordinating with Clark and pushing that effort forward.

Beyond that, I think it's really unclear. It's possible that we may get more information as the prosecution of Trump in the January 6th case unfolds. It's possible that we won't. And all this will remain sort of a weird question mark around January 6th.

Anna Hickey: Kay Landau from New York asks, Israel has asked the United Nations to investigate Hamas's use of rape of Israeli women when it attacked Israeli settlements. Israel has never recognized the ICC or the ICJ and refuses to comply with the UN in the past. Did requesting a formal UN process open Israel up to be investigated for complaints of war crimes themselves?

Scott Anderson: Lawfare Senior Editor Scott R. Anderson here. Kai, thank you for this question on this on this heavy topic. You are correct. Israel did at one point recently, I think earlier this month, ask the United Nations to investigate, or more assert the United Nations had not done enough to investigate, allegations of sexual violence being used on October 7th that we've seen a lot of evidence come forward or suggested they're quite credible allegations that Hamas was engaged in pretty horrific forms of sexual violence as part of the attacks of October 7th.

Israel, did it suggest the UN should do more to investigate this? It's worth noting, this is part of kind of an ongoing criticism that Israel has pointed at the United Nations suggesting that they are more focused on Israel, Israeli conduct in Gaza than they are on the horrible actions of Hamas on October 7th. It's worth noting the United Nations Commissioner for Human Rights Volker Türk did come out and say we want to pursue this investigation. Actually said, I think as of December 7th, it's the last update I saw that they were actually seeking access to their staff to Israel to conduct an investigation into these attacks, particularly the allegations of sexual violence.

I, I haven't seen any reporting that suggests whether that access has been granted or not, but there is a stated interest by UN bodies to pursue this investigation. Hopefully it will happen. But as you know, Israel has a difficult relationship with the international community generally, particularly with UN institutions.

It does, it's not that doesn't recognize the ICC or the ICJ but it doesn't participate in the ICC much like the United States doesn't. And it doesn't accept the compulsory jurisdiction of the ICJ. I don't believe, much like the United States doesn't as well, actually. That said, both bodies are exercising jurisdiction to substantial extent over the Palestinian territories, Gaza Strip and the West Bank.

The ICC has an ongoing investigation there and has for several years based on the consent of the Palestinian Authority and the PLO. The ICJ is holding a hearing, I think, early this coming year and has opened a matter at the request of the General Assembly for an advisory opinion on the conduct of Israel in what, the Occupied Palestinian Territory since 1967 that would cover a lot of these allegations.

So there are kind of these UN processes or international institution processes happening that could cover potential war crimes investigations. You know, we have also seen at times other commissions of inquiry or other bodies set up by UN bodies to investigate different types of allegations and these aren't always done with Israeli consent. In fact, they're often done over Israeli objections, but you could see another body like that. There, I don't think there's a direct one to one between, you know, opening up Israel to investigations of these allegations of sexual violence. And then also Israel having to open itself up to investigations for other conduct.

Maybe that would be part of the negotiations. Maybe the investigators would say, well, we have to investigate the full picture. We can't just focus on certain crimes here. Certainly that's a posture the ICC takes when it's a certain exercise and kind of jurisdiction over a given territory. And I wouldn't be surprised by that.

But you know, it does seem like there's a willingness to look specifically into these incidents as they occurred in Israel on October 7th. And again, whatever arrangement is worked out there won't actually have a bearing on the ICC and ICJ processes that are already underway, nor do I suspect much of a bearing on other inquiries that might yet arise.

Although there, again, there might be some, a little bit of, of negotiation that happens there. Hope that helps answer your question for you.

Anna Hickey: S. Margrave asks, from an analysis on the war in Gaza, I've gotten the impression that Israel is operating with, at a minimum, a far looser calculus of proportionality and distinction than what the U.S. uses or than that the Israel previously used. My understanding is this is very difficult to prove other than in outlier cases, as the legality is being decided inside a command room based on internal legal analysis and subjective impressions of intelligence from commanders and military personnel.

Could the U.S. hypothetically condition further offensive aid to Israel on American JAGs being given access to where these decisions are being made as a form or oversight? Or is that something no military would accept? Or is that infeasible for other reasons?

Scott Anderson: Lawfare Senior Editor Scott R. Anderson here to try and field this very complicated and difficult question.

This has been a really hotly debated issue over the last three months about how exactly Israel is approaching its lawful armed conflict obligations in relation to proportionality and distinction, military necessity, among other, the other variables that come into play in these sorts of decisions. I think there's growing body of evidence that does suggest Israel approaches these questions pretty differently than at least the United States has and other countries like the United Kingdom have in similar sort of urban combat environments. There are differences, of course Gaza is denser even than Mosul and some other of the dense urban fights we've seen and Hamas is in some ways more dug in although that can be a little I think contested as well.

You know, there are differences that people can say, oh, this is why this is going better or worse. But you know even kind of by the Israelis accounts you've seen a lot of civilian casualties. I think the official Israeli acknowledgement was that they have about a two to one civilian to combatant ratio by their estimate in this first phase of the operation.

If I recall correctly, the Israeli official quote on that, I think this was in a Times of Israel article recently suggested that they were hoping to, to get that ratio down in this next phase through a kind of lower tempo and more targeted operations.

Israel also, you know, there's been fairly compelling evidence that, in prior conflicts Israel takes a different approach to thinking about infrastructure, thinking about dual use civilian and potentially militant purpose equipment facilities, is willing to target things that might be civilian facilities. In part perhaps credibly, perhaps somewhat dubiously, because they are or could be used by militants, usually used by militants in various ways.

There are very credible allegations Hamas certainly does that to a certain extent, but there's also a reasonable basis for some people to question whether that alone justifies the full scale of the sort of, of combat or the scale of civilian devastation. It's really infrastructure devastation that's been here.

So it's a hotly contested issue as to where the exact line is. You know your question as to whether the United States could condition offensive aid on on, essentially giving American JAGs the ability to do oversight over these sorts of decisions, you know it could certainly. I mean the United States isn't obligated to give assistance to anyone and could can set all sorts of conditions on it. What I will say it, it. And it's worth noting actually that the United States had an arrangement not entirely unlike this in regards to assistance given to Saudi Arabia for the Yemen conflict.

You had American advisors embedded with targeting cells in the Saudi UAE led kind of coalition, helping them pick targets you know, the, the position was in part helping them pick targets to pick them in a way that's more consistent with the law of armed conflict and to reduce civilian casualties.

You know, people can test whether that's actually what they're doing or how effective they were at doing it, but that was part of the official justification. You know, I think realistically that's something Israel is really going to buck at. Israel just doesn't have the same sort of relationship with the United States.

That's a very close one, but a very different type of close one than I think the Saudis and the UAEs do, than the Emiratis do, excuse me. And this conflict in particular is heated and contentious, and there's already such a clear divide between U.S. preferences and Israeli preferences on how the operation is being pursued. That we've seen really since the earliest days of this operation since we saw U.S. military advisors leave relatively quickly and, and giving a strong suggestion to the media that, that the Israelis were going a different direction than, than they had advised. So, you know, that all combined makes me think this is probably politically not feasible.

Whether any military could accept it, you know, I think that's the sort of thing that the United States would buck at. A lot of militaries would buck at. I suspect the Israelis would buck at. But the Israelis have a very serious, like, international law culture in their military, and they do have lawyers kind of embedded very thoroughly throughout. So it's not that they're resistant to any sort of dialogue international on around this. In fact, Israel like really robustly engages in dialogue on these issues. And part of the reason why I think a lot of people give them give them credit and a lot of benefit of doubt around these issues because they do engage in dialogue on them. On the flip side of that though, you know Israel also embraces some idiosyncratic views of that law of armed conflict and you know, lawyers don't always make the full range of decisions in terms of how rules lawyers develop are implemented on the ground.

And so there's lots of ways that a serious commitment by a legal cadre doesn't necessarily translate one to one to actually effects on the ground in all cases. All that to say, it's a very complicated picture. And it's an idea, again, not unprecedented, not unreasonable, legally feasible, but I think politically something that, not something that the Israelis are likely to welcome or the Americans are likely to want in part because it would put them in this very difficult position. And particularly as tensions over this conflict heats up and pressure to put conditions or limit U.S. assistance grows.

Jim Norton: Yes, this is Jim Norton from Charlotte, North Carolina. My question is, why hasn't Moss and Freeman sued Trump for defamation? Thanks.

Anna Bower: It's Anna Bower, Lawfare's Legal Fellow, and I'm here to answer the question, why didn't Ruby Freeman and Shaye Moss sue Trump for defamation? Freeman and Moss, of course, are the Georgia election workers who just won a $148 million verdict for damages against Rudy Giuliani.

Giuliani spread false claims that Moss and Freeman stuffed ballots and changed votes at the State Farm Arena where they worked the polls during the 2020 election in Fulton County, Georgia. I do not know exactly why Moss and Freeman limited their case to naming Giuliani as a defendant, but if I had to guess, there might be a few reasons why they decided not to sue Trump himself.

One reason, for example, might have something to do with concerns that Trump could drag out the litigation and the expense of the litigation by raising a number of arguments about various immunities or privileges that relate to his capacity as the then president of the United States. I certainly don't think that Trump would ultimately be immune from suit in these circumstances, but I do think some of the privileges he could raise could make it difficult to obtain some aspects of discovery in the case. So that might be one reason why they decided to forgo suing Trump.

Additionally, I think that Trump's own statements about Freeman and Moss came at a time after the false claims about them had already proliferated and were quite widespread. So in terms of showing reputational harm caused by the statements, it may be that Freeman and Moss strategically chose to focus on the individual's or the news outlets who are the most responsible for initially spreading the false claims.

At the trial, for example, Freeman and Moss argued that Rudy Giuliani was quote, patient zero for the spread of the falsehoods. And they still have an ongoing suit against the Gateway Pundit, which is a right wing news outlet, which was the first to name Freeman and to spread the false allegations about her related to the State Farm Arena video.

So with all of that said, it is important to note that as a part of the suit against Giuliani, it was alleged that the defamatory statements were part of a civil conspiracy against Freeman and Moss that was carried out by Giuliani, Trump and others in the Trump campaign. So while Trump wasn't a named defendant in the suit, there is an element of all of this that involved a court finding that Trump was part of a civil conspiracy to defame Freeman and Moss.

I am really hopeful though that during the new year, we might be able to get Freeman or Moss's attorneys on the Lawfare Podcast. So Jim, maybe this is a question that we can get an answer from when they come on the podcast. In the meantime, that's my two cents about why Freeman and Moss didn't sue Trump for defamation.

Thanks for the question.

Anna Hickey: This question is from Mike Kobielski. Do you think any of Donald Trump's trials will come to a conclusion before the next election? All his strategic delay tactics seem to continue to work. His attorney's briefs constantly get denied for a variety of reasons, but each takes so much time.

Our system certainly is demonstrating a great flaw in the lack of speedy justice that can easily be obtained. I realize this is an up in the air question, but from your perspective, are any of them on track to be accomplished?

Benjamin Wittes: I'm Benjamin Wittes, Editor-in-Chief of Lawfare. So I continue to believe that at least one of the cases will be tried by the time of the election. First of all, notwithstanding the delay for this Supreme Court appeal, I do believe that the Supreme Court delay on the January 6th Washington case will be brief and that we will have a trial, if not in March, then in April, May, June. And that case is a case that will be tried and done by the time the, the election happens in November.

I also think that there is a strong likelihood that the New York criminal case, the one brought by State Prosecutor Alvin Bragg, New York DA Alvin Bragg on the Stormy Daniels matter will be able to be tried by the time the election goes forward.

I'm less confident of the Georgia Fulton County case. Currently, we have a request from District Attorney Fani Willis for an August trial date. Even if she gets that, it's not clear to me that it'll be done by election day. And furthermore, I'm least confident in the ability of the Mar-a-Lago case to go to trial by then. Not because it couldn't, but because the judge, Judge Aileen Cannon does seem to be moving at a snail's pace.

But I think the likelihood is that two cases will be tried by then. I do think the overwhelming likelihood is that at least one will.

Anna Hickey: These questions are from John Halloran. First he asks, If the Supreme Court rules in Trump's favor regarding absolute immunity from criminal liability for acts taken while he was president, then they would also be recognizing that Biden has the same immunity for the remainder of his term, correct?

As a follow up, he asks, if the question to Part 1 is yes, then what decisions might the Biden administration make differently as it defends the integrity of U.S. elections and pursues its other obligations to the American people? Pre emptive detention of Trump, Kash Patel, Bannon, Clarence and Ginny Thompson, suspension of voting in Texas and Florida?

As his final question, he asks, recognizing that a full analysis of how the freedom from criminal liability should change the president's behavior could require significant effort, which think tanks would be best positioned to analyze and plan for the situation, as Heritage is planning for the next Trump administration?

Benjamin Wittes: I'm Benjamin Wittes, Editor-in-Chief of Lawfare. So it is true that if the Supreme Court rules that Trump has absolute immunity from criminal for acts taken in his capacity as president, that would also mean that Joe Biden has immunity for acts taken in his capacity as president for the remainder of his term, and actually, retrospectively, it would mean that all presidents have, as an inherent feature of the presidency, whatever degree of criminal immunity the Supreme Court affords to Trump.

That said, I wanna challenge the premise of the rest of your questions. So the idea that you might therefore do preemptive detentions of people like Trump, Kash Patel, or Steve Bannon, or suspension of voting, the fact that you cannot be criminally punished for it doesn't mean the courts would tolerate it as legal. So, for example take your example of a preemptive detention of Donald Trump. Donald Trump would presumably file for a writ of habeas corpus. That's not a criminal action.

It doesn't say, I want the person who's imprisoning me to go to prison. It says, hey, I want to be freed if I am not legally detained. Similarly, if you imagine the suspension of voting in Texas or Florida, that would presumably be redressable not by criminal prosecution of Joe Biden, but by injunctive relief and the correct claim that the federal government has no authority to do that.

Similarly, as regards the third part of your question, which is what think tanks would be best positioned to think through how to abuse presidential power under Joe Biden, I don't think any think tank should be engaged in that activity, and I don't speak for any think tanks, save my own role at Brookings. And I would just say I can't really tell if the question is a joke or not, but look, I don't think the Heritage Foundation should be planning to the extent that it is illegal or improper activity on behalf of Donald Trump in his next administration.

And I certainly would not countenance any organization including any that I'm associated with planning for such activity over the course of the remainder of any other administration.

Anna Hickey: Michael Ryan from Ireland asks Benjamin Wittes, on the Jack Smith cert petition to the Supreme Court, you seem to acknowledge that the reason for going straight to the Supreme Court, rather than waiting for the D.C. Circuit to rule, is for reasons of speed because of the election in November 2024. Is there not some merit to the claims that Smith is thus being influenced by political considerations, i.e. the election, rather than solely prosecuting the case as if Trump was any other citizen who is not seeking electoral office?

A counterfactual being that if Trump was not running for president, then this petition would not have been filed. Is this not a bad thing?

Benjamin Wittes: I'm Benjamin Wittes, Editor-in-Chief of Lawfare. So the simple answer to this question is yes, you are right. We are all dancing around the reality that political considerations are playing a role in, in this case.

And they, inevitably play a role for the simple reason that if you don't get this case done and by the time of the election and President Trump were to be re-elected as president, he could make the case go away. And so the, the analysis just within the four corners of how do you litigate the case so as to, from a prosecutorial point of view, so as to ensure that justice be done, you cannot be entirely blind to the fact that one thing this case has, that very, very few criminal cases have, is the possibility that the defendant will become capable of causing the dismissal of the case or even pardoning himself.

Now, that said, it is very improper, and here's where things get sticky, it is very improper to acknowledge that, and to say we have to get this case done by November because, you know, he could become president and win. That would sound very political, and Jack Smith has been careful never to say that. I do think that's something of an elephant in the room, however, and everybody acts like it is understood that that is part of the equation, even if they don't ever say that it's part of the equation.

And, you know, is there some better way that we should be talking about this that's more candid on that subject? I don't know honestly. We've never dealt with this problem before, and you know, it is genuinely uncomfortable for everybody involved. The one party that is completely unashamed of it, of course, is the defense.

In a bunch of these cases, Donald Trump has specifically asked for the case to be pushed back beyond the election, and he does that with varying degrees of, of directness with respect to the electoral season. I think there's something a little bit gross about that. But, you know, defense attorneys should make the arguments that are best for their clients.

And if they think that's an appropriate one to make here, that's, appropriate for them. I do think for Jack Smith, the right answer is to never acknowledge, and for Tanya Chutkan as well, the right answer is to never acknowledge that you have your eye on the electoral calendar and yet also to you'd be a fool not to have your eye on the electoral calendar.

You shouldn't say it out loud, but it's inevitable that you're going to pay some attention to it.

Anna Hickey: This question is from Michael Ryan from Ireland. On the podcast between Scott Anderson and Ben Wittes, they discussed how Trump might get rid of a federal case where he had been convicted. I do not believe the possibility of him filing an appeal and ordering the DOJ not to fight that appeal was raised.

Is that something he could do, as presumably if the DOJ does not fight the appeal, then the conviction is vacated? This would seem to be the cleanest way of getting rid of the problem.

Scott Anderson: Senior Editor Scott R. Anderson here. Michael, thank you so much for your excellent question. It's a good question to say, okay, if former President Trump appeals and then directs the Justice Department not to contest the appeal, does that mean he wins? And the answer is, I don't think it necessarily does. While generally it's true, if, you know, a legal proposition, legal motion is uncontested, that often means that the person advancing it wins like in the context of a default judgment.

That's not necessarily the case in the, in the context of a criminal appeal. In the case of appeal, the burden is still on the movement, movement, the person, you know, appeal or the appellant to actually prove that whatever the threshold for appeal is for reversing the lower court's determination, in this case, the criminal conviction, varies depending on the issue, whether it's a factual or legal matter, matter, et cetera, et cetera, particularly if it's a jury factual question, a very high threshold, they don't have to meet that threshold.

So, it's not quite as easy to say that former President Trump could say DOJ doesn't contest it, that he would automatically win. He probably had a much better chance of winning, certainly. I mean, I think he could direct DOJ to support his appeal, maybe, arguably, although I suspect you get a lot of resignations and other you know, political factors that might make that harder or unlikely.

But, you know, in a legal matter, perhaps he could do that or at least fire people until he gets someone willing to do that. The other issue here is that you probably, courts aren't unaware of the political context of this sort of thing. And my guess is you would probably get them opening the door to people filing briefs as interested parties at the amicus or perhaps, you know, depending on the context, other sorts of intervenors in the matter to make these arguments that the Justice Department might otherwise make as to why the appeal is invalid or should be rejected by the court in line with relevant legal standards.

So those arguments would still get in there. So, you know, I think you're right, a hundred percent. As Ben and I note in our conversation, lots of ways that Trump's control of the DOJ complicates the ability to, you know, maintain any sort of accountability measure. But I still don't think it's quite that easy to get rid of a criminal conviction once it's on the books, because simply, you know, at that point, the court plays a strong role.

It's got a pretty actually meaningful standard of review that appellate courts have to do in reviewing those convictions, and that's a high bar to meet even if DOJ isn't willing to play along in defending the trial court's determination.

Roger Parloff: This question is the fourth question actually from Michael Ryan from Ireland.

He asks, purely an academic question on CIPA prosecutions, that is Classified Information Procedure Act prosecutions. My understanding is that sometimes the defendant's lawyer gets to see documents that the defendant does not get to see. How does that work if the defendant is representing themselves?

So that's a great question. And you're right, as we've seen in the Florida Trump case, there are all right now, Walt Nauta and, and Carlos de Oliveira are not being permitted to see certain documents that their cleared counsel are being permitted to see. And that is a common thing in CIPA prosecutions.

I have not seen a case where this actually, the facts you, you describe, happened. But I think, pretty obviously, the, the, for anyone who is representing themselves, the judge can appoint what's called a standby lawyer, and usually does. It's somebody that he has available there for them in case they want to make an inquiry.

And for some other minimal purposes. And in, in that case, he would have a, he would appoint a cleared, a counsel with security clearance, or he would appoint counsel who would then apply for security clearance, which as we've seen, doesn't take forever. And then presumably they would disclose the documents to the standby lawyer.

Perhaps it would make the person reconsider whether he wants to continue pro se. But and I'm sure the judge would be reminding him every 10 minutes of his right to, to have an appointed counsel, because judges do not like pro se cases. But a great question. That's how I think it would be resolved, but I don't actually know of such a case.

Thanks for asking.

Anna Hickey: Doug Evans from Southern California has two questions. His first is, how do we tolerate a justice system that takes months and years to prosecute cases, especially as we face the potential of our democracy collapsing? Am I wrong to feel that we should not tolerate this? And if so, why?

Natalie Orpett: This is Natalie Orpett. I'm executive editor at Lawfare. Thanks for this question, Doug, and I can very much relate to the frustration that is sort of implicit in your question. My colleague Quinta and I wrote a piece back in July 2022 arguing that there was a lot of damage that was being done by the apparent lack of urgency to investigate Trump's personal criminal liability for January 6th because people would lose faith in the criminal justice system.

So, you know, at this point, we know that DOJ got there. We have federal indictments of Trump in two different places, but it took a long time. And in the intervening years, it seems likely that a lot of people concluded DOJ was either powerless or cowardly. Personally, I don't think either is true, but I worried a lot about public perception because there really is something to the adage that justice delayed is justice denied.

So all of that said, it's also true that criminal investigations take time and then criminal prosecutions take time and they really should. There's an enormous power imbalance that favors the government and we have to have a system that takes that into account. So why do they take a long time? I think it's actually worth explaining that a little at the risk of boring people.

It is very boring. That's why TV shows about lawyers skip over all the unglamorous stuff, but you know, criminal investigations, just figuring out whether someone should even be charged with something involve things like going to a judge to get warrants and then conducting interviews and then reviewing documents, millions and millions of documents sometimes.

And then conducting more interviews and getting more warrants and then designing a legal strategy and figuring out which laws apply, looking at how courts have treated that in the past. And all the while it has to be done very, very carefully so a defendant can’t later challenge the process or the evidence that it produces.

So it may seem excessive sometimes, but you know, it really doesn't take too much research or sort of walk through the history books to find examples of really terrible conduct by law enforcement that was trying to cut corners or abuse their power or was corrupt in some way. Law enforcement and, and prosecutors have a lot of power, so the rules are there for a reason.

And then the prosecution itself, that's time consuming for a lot of reasons. One of which is all of the procedural requirements that we've implemented to ensure due process in our legal system. It's also the first time that defendants have the opportunity to have anything to say in the matter, right?

The law enforcement and prosecutors have been going around building a case, doing a lot, going before a grand jury, putting everything together. And until the defendant is actually indicted and arraigned, they don't have anything to say about what has happened. So it's not just about whether the defendant will have the opportunity to effectively convince a jury that the government hasn't met its burden to prove them guilty.

It's also, I think, less appreciated, it's one of the only mechanisms that we have to make sure that the government is acting lawfully when it conducts investigations and prosecutions. If, you know, if prosecutors and law enforcement thought that they could get away with cutting corners, some of them would.

So they need to know, just for example, that if they obtain evidence in a dubious way, the defendant is going to file a motion to exclude the evidence and the government's going to have to explain itself to a judge. So, you know, this probably all seems really hypothetical or maybe just beside the point if you're thinking of it in the context of our democracy potentially collapsing.

I think at the end of the day, it's a question of degree. You know, how do you best balance a genuine and really probably unprecedented need for urgency with the need to build, the need the prosecutors have to build a strong case that will be able to actually result in a conviction? Because doing that latter part is what takes so much time.

Anna Hickey: His second question is, what are the obligations of defense attorneys regarding reciprocal disclosure? Can they hide incriminating facts or evidence that implicates their clients or potential witnesses? Can they advise clients or witnesses to withhold a priori the disclosure of incriminating facts or evidence?

If the answer to either is yes, how does this serve justice?

Natalie Orpett: This is Natalie Orpett, executive editor of Lawfare. I fear my response may be disappointing to you on this one, Doug, but I'll try to explain. So, as you probably know, prosecutors are required to give defendants any exculpatory evidence under a case called Brady v. Maryland. It's a constitutional requirement, it's under the Due Process Clause, but the reverse is not true.

So as a general matter, defense attorneys have very narrow obligations to disclose information to the prosecution. And they relate to things like expert opinions or physical evidence that the defense is planning to introduce at trial.

Some jurisdictions do have additional discovery rules. They're often called reciprocal discovery rules, where defense attorneys are required to turn over some additional information. In California, they have a specific statute outlining what defense attorneys need to give prosecutors. Florida has a requirement that if prosecutors ask, defense attorneys have to provide notice of an alibi defense.

But those only apply in those respective jurisdictions. So they're in state court in California, in state court in Florida. One thing that's worth mentioning here, though, is the even though we are often focused on criminal cases in federal court, the vast majority of criminal cases in the United States are in state courts.

So the rules I just mentioned in individual state jurisdictions have much more of an impact on the overall criminal justice system than it may seem from first glance. And I just don't know enough about the rules in all 50 states to really get a sense of the range of disclosure rules or have a sense of where defense attorneys may have the most or fewest obligations to provide information to prosecutors.

It's also worth keeping in mind that the vast majority of federal criminal cases end in plea agreements, like 98 percent of them. Which means that for a good number of criminal defendants in the federal system, they don't even necessarily get to the stage where disclosure of kind of evidence would be on the table.

I'm not saying that's a good thing, but it's something to consider here. In any event, the, the basic answer to your question is no. Defense attorneys are not required to help prosecutors prove their case. That's because all criminal defendants have a constitutional right under the Fifth Amendment not to incriminate themselves.

There are definitely limits. Defense attorneys cannot ever lie. They have a duty of candor to the tribunal as a matter of professional responsibility, and they can be disbarred for not abiding by that duty. And they cannot actively or affirmatively hide information from law enforcement or prosecutors. At a certain point, if it's not protected by the Fifth Amendment, then hiding information could become obstruction of justice.

So how does this serve justice? I don't have a pithy answer for that, and I don't think there is one. I guess at a conceptual level it's because we've designed our legal system around the principle that people are innocent until proven guilty. We have an adversarial system. The, the theory is that truth is found and justice is secured when two parties fight it out in front of a judge.

Other countries have inquisitorial systems where the judge conducts a kind of official inquiry and that is what is supposed to get to the truth, but that's just not the system that we've chosen here.

Anna Hickey: This question is from Nefarious Newt from Spoutible. From everything we've seen and heard, President 45 is looking at some unprecedented convictions.

The question is, given what happened during Watergate, why does it seem like the legal response to his apparent malfeasance was so muted? Is it just a matter of so many judges he appointed?

Quinta Jurecic: I'm Quinta Jurecic. I'm a senior editor at Lawfare and a fellow at Brookings. I think I would dispute the premise of the question here a little bit.

I'm not sure that the legal response to what Trump has done is muted. It's certainly true that many people are frustrated by how long it's taken. Of course, we're now heading into the 2024 election and Trump is now really facing accountability in criminal court from actions that took place in 2021 or earlier.

But the court system, the criminal justice system, takes a long time to move through. You know, these are investigations that needed to be carried out carefully in order to bring the strongest case possible. That doesn't mean that the Justice Department couldn't have been quicker in conducting the federal investigations into wrongdoing by Trump, in both the Mar-a-Lago case and the January 6th case.

But I do think that if you just look at the fact that Trump has been indicted four times, twice in federal court. That's completely unprecedented. He's now facing litigation attempting to bar him from the ballot under Section 3 of the 14th Amendment on the grounds that he's not qualified to hold the presidency as an insurrectionist.

He, of course, has been impeached twice. We're not even talking about that. I think that you know, this is a case where the wheels of justice grind slowly, but they do grind. I don't want to say, you know, he'll finally be held to account and his opponents will see the accountability that they want. But if you just look at how the legal system has responded in terms of the criminal cases against him, I think it's actually pretty striking.

In terms of the questioner's point about judges that Trump appointed, it is certainly true that to some extent, that appears to be shaping the litigation against him. Of course, I'm thinking here about Judge Aileen Cannon in Florida, whom Trump appointed and who certainly seems to be quite skeptical of the special counsel's efforts in that case.

That said, you know, I don't think that the fact that Trump appointed quite so many judges should mean that we think that, you know, there's, there's no possibility of accountability. I think it's worth pointing out that, you know, in a lot of the litigation in 2020, attempting to overturn the election or throw sand in the gears of the election process, a lot of the judges who rejected those efforts by the Trump campaign and by Trump allies were Republican appointees, were Trump appointees.

So that I think is, is worth noting. It's also worth noting that, you know, judges are only one set of actors here. We also have the Justice Department and of course we also have the voters as well. So I think it's, it's worth kind of dividing up those different elements of the political system and thinking about them separately when we consider what accountability means and how we seek it.

Roger Parloff: So anonymous has two questions. What happens to the two Trump gag orders? One, once closing arguments are over and Judge Engoron mulls over his ruling, does it stay in full force and effect until the ruling is issued? And before getting to two, I'll just address that part of it. Yes, the gag order in his case stays until his ruling.

Because the idea, in that case, the order is pretty narrow and it really focuses on court personnel and especially his law clerk. And the idea is that these statements he's making are harassing her, causing others to harass her and interfering with her work. So as soon as they're done with, as soon as his verdict comes out, her work on this case is over. And that would have to be lifted as a First Amendment matter.

But if he persists then there might be other ways of other forms of court order that might be available or indeed criminal prosecutions for harassment. With the second part of the question is, Judge Chutkan asserts jurisdiction over her protective orders while the stay is in effect to decide the interlocutory immunity appeal in order to safeguard the integrity of the proceedings, but she admits there is little precedent or case law to instruct her and that the defendant could raise this issue in appeal.

If not overturned, would the protective orders remain in effect however long the appellate court and/or SCOTUS take to rule on immunity? And the answer is, as, as you suggest, the answer is yes, because the goal is to, and you're right, as long as she, she was uncertain whether she had this power. And so we'll have to see if the D.C. circuit or even the Supreme Court gives any other guidance, but she is going to assume that she has that authority because as you say, to protect the integrity of the proceedings.

So, yeah, it will stay in effect and it's because otherwise he could be, if this does go back to trial, he could be intimidating witnesses the whole time. And, and so he could do lasting damage, for instance. So, that's that's the theory.

This question is from Peoria Bummer. And the question is, if a person is detained because of a bench warrant, can a president or governor use the pardon power to free them? What if someone has detained, was detained by the sergeant at arms for contempt of Congress? Basically, I'm wondering if pardon powers work, if a person is imprisoned, but there's not technically a criminal charge.

So, that's a great question. A bench warrant, the bench warrants I'm familiar with are actually pursuant to criminal charges. There will be an arrest. A warrant filed, and somebody will have missed a court date, and a bench warrant is issued for their arrest. They'll be out, they'll be out on bail, and a bench warrant will be issued. So there yes, whoever the, you know, the governor or the president depending on if it's a state or federal government, could pardon them.

But you're right. There are other warrants there that are pretty rare. There's a material witness warrant that's possible in extremely rare circumstances where there's a crucial witness and you think they're going to flee, you can detain them. And I assume this might vary state to state, but certainly in the federal system, I, I wouldn't see, see that the, I don't think the president's pardon power reaches them.

And it might I, I don't know about the states that might vary, as I say, state to state. Similarly with the sergeant at arms, I'm almost certain that the I mean, the president certainly would have no jurisdiction. That's a different branch. Couldn't pardon. And I also think that technically a contempt of Congress is civil, even though you can be, there are civil contempts where you can go to jail.

You know, it's not the contempt of Congress that has matured into a federal prosecution, like the prosecutions of, of Steve Bannon and, and Peter Navarro. But there are civil contempts where you could say, put somebody in jail saying, if somebody is refusing to testify, you could find them guilty of civil contempt, put them in jail, and say, you can come out as soon as you're ready to testify.

In other words, they say that the keys are to the cell are in your mouth, they say. So, there again, I don't think anyone would have a pardon power. But those are very interesting questions and that's the best I can do with them. Thank you.

This is a question from Richard Klein. He asks, my question has to do with the collegial culture of district court judges and the like.

I'm thinking particularly about Judge Cannon down in Florida, but in general. Do circuit and district and other groupings of judges convene to discuss cases in progress? Do they meet and assess possible issues encountered or looming that might affect a particular judge on a particular case? If a judge was unsure of a specific legal issue and how to handle it in a case, would or could they reach out to their colleagues on the bench to seek informed counsel, experience, etc.? Or are they isolated once assigned to a case and just have to do the best they can?

So this is a really good question and I wasn't sure of the answer, so I emailed a couple judges I know, and one of them got back to me in the requisite time frame. And so, I'll read portions of what he wrote. He said only infrequently, and then only casually over lunch, for example, do district judges discuss their cases with each other.

There is nothing whatsoever inappropriate about their doing so, but as a practical matter, it is usually all but impossible. First, the district judges, even within a particular state, are not typically located in even the same cities and towns, let alone in the same building, as they are in D.C., in fact. We do have a lot of district judges in D.C. Second, so that's an unusual situation.

Second, only if they have served on the court together for many years, do they know each other well, personally.

Third, they are exceedingly busy in trials most of the time and have little time to discuss their cases with anyone other than their law clerks.

Fourth, because they are presiding over different trials of entirely different matters, criminal and civil, other judges would rarely be able to intelligently discuss a case with one of their colleagues. And I'll just, this is my own voice now, what he means is you'll quickly get into such detail that you, it would be quite a coincidence if some other judge really had ran across the particular problem you're running across.

Then he continues, contrast this with the Court of Appeals, where at least three judges are deliberating on the same case at the same time. And then of course they're supposed to discuss it with each other. District judges don't have the time to bring a colleague up to speed on a pending trial for the purposes of seeking his or her advice.

On the other hand, he acknowledges, I asked as a tricky, as a follow up, wouldn't it be tricky for a district judge to talk to an appellate judge since the appellate judge might later have to sit and review? And he said, and he said indeed, yeah, it is trickier. So he says my hunch is that even if the district judges had the time and opportunity to discuss a case with their appellate colleagues, they might hesitate to do so for the reasons you suggest. But that's, that's the answer and I was interested in it because I didn't know and I hope that you are. Thanks for asking and for reaching out and hope that helps.

Anna Hickey: This question is from Alejandro Gonzalez. If Trump were to pardon himself, who would have standing to bring a case challenging a self pardon? Presumably, a Trump Justice Department would not do so.

Scott Anderson: Lawfare senior editor Scott R. Anderson here. Alejandro, thank you so much for your question. It's a tricky one, a really hard one. One that led me to digging a little bit to think who would have standing to challenge a self pardon. And the answer is, I'm not sure a lot of people would.

I'm not aware of any case or any clear legal theory that would allow, you know, any sort of private party to challenge a pardon because there's no real legal entitlement to serving out a sentence of a third party, you know. It'd be different if there's like some sort of giving an award or some sort of compensation directly to a third party.

That's not really the case when you're talking about a criminal conviction, right? Obviously, they can be made to make restitution. Then you might have more of an argument. But here I'm, I'm not sure that really holds. There is case law that says a prosecutor can challenge the, an improper pardon or the terms of which a pardon was offered or the scope of it.

But I think you're right. A Trump DOJ presumably would not do that, do so. But I do think the real risk here is that a Trump DOJ won't be in place for the full duration of whatever sentence or whatever potential you know, risk of, of, of indictment until the statute of limitation runs out, former President Trump might be under in this hypothetical.

You know, former President Trump can only be in office one more term for another four years, barring something changing the Constitution. And if that's the case, then a lot of allegations and crimes might extend past that period or convictions might extend past that period.

There's also the possibility that there might be an argument that certain of those timelines would toll while there was an improper pardon. And you know, I don't know this issue well enough to know for certain. But I suspect the real risk here is that if there were a self pardon, the real person would stand standing to challenge will be the Justice Department under a different administration.

Or maybe there might be an enterprising U.S. Attorney that could insulate themselves enough and avoid getting fired long enough to do this. But I kind of doubt it. I think it really comes down to a new DOJ under a new president. But that is a substantial risk and a reason why self-pardoning may not be the kind of easy out that some people think former President Trump thinks it might be.

Roger Parloff: So, Ramey in Oregon has this question. I am appalled by the threats against elected officials, etc. Who is responsible for stopping the threats and why does it seem we rarely hear of prosecutions?

So, in the, with the federal judge, like Judge Chutkan, the U.S. Marshals probably have the initial job of protecting her and other judges. And if there's a problem, they'll get the FBI involved and federal prosecutions can occur, as you may know. You remember Judge Chutkan was threatened. She got a, a voicemail left for her very soon after the Trump case before her, the federal, the criminal case was filed August 5th, 2023. Abigail Jo Shree called her and left a threat in the evening.

And she was arrested and charged with a federal charge of interstate threat. She was from Texas. But, you're right, it doesn't happen very often. Probably two hurdles. One is figuring out who it was that called and tracking them down. This particular woman didn't take many precautions, so her home phone was, number was on, you know, captured on Judge Chutkan's phone, and the FBI could easily pursue her.

Many people take more precautionary measures. The other problem is that there are hurdles to, First Amendment hurdles to bringing threat cases. You need to what's called a true threat. And in fact, the Supreme Court just ruled on that this last term in Counterman v. Colorado. So you'll have a, in that case, you had a statute that makes it a threat to Say things that in a manner that would cause a reasonable person to suffer emotional distress, and that does cause emotional distress, and the court ruled that was not enough, you need a subjective element as well some recklessness. So, she has to, you have to also prove that the person who did it, quote, consciously disregarded a substantial risk that his communication would be reviewed as threatening violence.

So, it's a, it's some hurdles. So I think it's the combination of those two things to, that is the reason you don't see many prosecutions. Thank you.

Anna Hickey: This question is from Dennis Donnahue. What are the implications of the Ukrainian hack on the Russian tax system for cybersecurity globally and the Russia Ukrainian war?

Eugenia Lostri: Hi, I'm Eugenia Lostri, Lawfare’s Fellow in Technology Policy and Law. On December 12th, the Ukrainian Defense Intelligence Directorate claimed to have carried out a successful hack of Russia's tax system and of a Russian IT company that operates the Federal Tax Services Database. The Ukrainian statement includes several claims.

That these two cyber attacks allowed them to completely destroy the agency's infrastructure, eliminating the configuration files that ensured the functioning of the Russian tax system. They also claim that the attacks paralyzed the internet connection between the agency's office in Moscow and its regional branches.

Now, according to Ukraine, the Russians have been unsuccessful in restoring service, and they anticipate that the tax system agency's work will remain paralyzed for at least a month. And again, per this statement, they will never fully recover from the attack. Although the claims have not been verified and the Russian government has been silent about the hack, it is still useful to unpack some of the hack's implications.

Although it is not the first time that the Ukrainian Defense Intelligence Directorate has taken credit for a cyber operation against Russia, this is highly unusual. When we look back throughout the conflict, the cyber actors that are more likely to claim that they have conducted specific activity are hacktivists.

So, it is relevant to note that Ukraine is, at least in some cases, taking responsibility for cyberattacks. Another issue is that the Ukrainian claim is not just that they were able to access the Russian system, but rather that they destroyed data. This makes the cyberattack pointedly different from, for example, a cyberespionage operation through which Ukraine could have attempted to gain information about Russia through the tax records.

And that raises a few issues. On the one hand, the destruction of data raises one of the big pending questions in international law when it applies to cyberspace. Is data an object under IHL? As Dr. Kubo Mačák discusses in his own analysis of this hack, there's a wide range of views on this. And depending on what answer you're most compelled by, the legal assessment of whether data is a protected civilian object will change as well.

While some may say that the data is not a material thing, others will argue that the grave harm that its destruction can cause to civilians requires that we use an updated lens to answer the question. Now, the implications of that answer are important, because they will also help us determine if the tax system infrastructure is a lawful, valid military target.

The Ukrainian statement is not explicit about whether they understood this as a military or a civilian target, or even what the military objective of the operation was. As Mačák points out, it's incidents like this one that will push the international community towards one of very different interpretative approaches.

And so the significance of this operation extends beyond the specific conflict and is instead that it will help shape our future understanding of the role of cyber operations in conflict and what is permissible or not.

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