The Week That Was: All of Lawfare in One Post

Anna Bower and Ben Wittes unpacked the “elusive” footnote 3 of Chief Justice John Roberts’s opinion in Trump v. United States. They examined how the reasoning articulated in the footnote might affect the admissibility of evidence related to the Jan. 6 case against former President Donald Trump and discussed a potential loophole that could be exploited by Special Counsel Jack Smith on remand.

Katherine Pompilio shared a report published by the Department of Justice Office of the Inspector General about the department’s handling of Roger Stone’s sentencing memoranda in 2020. The report concluded that prosecutors’ decision to significantly reduce Stone’s sentencing recommendation was due to “improper leadership” by Interim U.S. Attorney Timothy Shea and found “no evidence” of misconduct from Trump or other Justice Department officials.

Kyle Langvardt and Alan Rozenshtein analyzed the Supreme Court’s decision in Moody v. NetChoice. They explained that by raising the bar for facial First Amendment challenges to technology regulations, the Court has potentially curtailed social media companies’ ability to swiftly obtain broad judicial protections against new regulatory measures.

Michel Paradis argued that Large Language Models—such as ChatGPT, Claude, Llama, and so on—encode curated compilations of speech originally created by others and therefore any laws intended to regulate these artificial intelligence systems should be subject to strict scrutiny under the First Amendment.

On Lawfare Daily, Rozenshtein and Matt Perault spoke with Alexander “amac” Macgillivray about making artificial intelligence policy in a world of technological uncertainty.

On Lawfare Daily, Kevin Frazier sat down with Cullen O’Keefe to discuss a novel artificial intelligence governance framework focused on regulating supply chains and explored the feasibility of such governance proposals in the current geopolitical and legislative climate.

On Lawfare Daily, Quinta Jurecic spoke with David Lazer and Kevin Esterling about their recent paper determining whether Twitter’s ban of 70,000 users who promoted election misinformation successfully reduced the spread of false claims. They discussed the findings of their paper, what it means about the influence and responsibility of social media platforms in shaping political discourse, and more.

Paul Barrett reviewed “The Death of Truth” by Steven Brill, which describes Brill’s frustrations with rampant misinformation and extreme ideological polarization in the age of the internet and his choice to build an online content rating company in response. Barret called the book “well worth the time of anyone concerned about the deleterious effects of technology on politics and civic discourse.”

Tom Ellison explained how climate misinformation exacerbates the impacts of climate change, disrupts recovery efforts, and undermines security and policy responses.

Barath Raghavan and Bruce Schneier discussed the recent global tech outage caused by a CrowdStrike software glitch. They argued that market incentives encourage companies to prioritize short-term profits over resilience and redundancy, leading to single points of failure in complex, interconnected systems.

Dan Geer discussed the CrowdStrike outage, which crashed millions of Windows devices and caused global disruption, knocking airports, banks, hospitals, and other critical infrastructure offline. He highlighted the risks of interdependence and the challenges that have emerged from a consolidated cybersecurity market, and he stressed the need for reliable failure detection and mitigation.

In the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren discussed a cyber crime supply chain with connections to Chinese organized crime, a potential Cyber Safety Review Board inquiry into the CrowdStrike outage, and more. 

On Rational Security, Scott Anderson, Rozenshtein, Eugenia Lostri, and Molly Reynolds discussed the week’s big national security news stories, including President Joe Biden’s decision to withdraw from the 2024 presidential race, CrowdStrike’s faulty software update that crashed Windows computers around the world, Israeli Prime Minister Benjamin Netanyahu’s speech before a joint session of Congress, and more.

On July 24, Julien Berman shared a livestream of Netanyahu’s speech before a joint session of Congress.

Yuval Shany and Amichai Cohen analyzed the International Court of Justice’s recent advisory opinion, which concluded that Israel’s policies in the Occupied Palestinian Territory violate international law. They questioned whether the opinion will contribute positively to resolving the Israeli-Palestinian conflict and emphasized the need for a negotiated settlement.

Olivia Flasch discussed due process concerns in South Africa v. Israel before the International Court of Justice. Flasch highlighted several procedural irregularities in the case, including unequal time allocations and “disregard” for Israel’s lack of legal representation, and evaluated whether they breached Israel’s due process rights.

Ania Zolyniak argued that U.S. piracy law has not kept pace with modern developments in international maritime law. To address the issue, she suggested that the Supreme Court should overrule its outdated definition of piracy in United States v. Smith, and that Congress should amend the criminal piracy statute to align with current international law. 

David Bosco reviewed Isaac Kardon’s “China’s Law of the Sea: The New Rules of Maritime Order,” about China’s efforts to alter maritime rules in the South China Sea and beyond. 

On Chatter, Shane Harris sat down with Courtney Kube and Gordon Lubold to discuss the highlights from the recent Aspen Security Forum, a conference for global leaders to discuss the most pressing national security and foreign policy challenges. They covered the upcoming U.S. presidential election, the assassination attempt on Trump, the Russia-Ukraine war, and more.

In this week’s edition of Lawfare’s Foreign Policy Essay series, Marcel Plichta and Christopher Faulkner assessed the current state of the Wagner Group—now rebranded as Africa Corps—which has been fully integrated into the Russian state. They examined the group’s operations in Africa, which undermine regional security and make it harder for Western countries to counter Russian influence and support democratic governance and stability. 

On Lawfare Daily, Wittes sat down with Eric Ciaramella and Anastasiia Lapatina to discuss recent developments in the war in Ukraine, including the bombing of a children’s hospital in Kyiv, Hungarian Prime Minister Viktor Orban’s international peace mission, the NATO summit in Washington, and more.

And to support Lawfare’s coverage of the Trump Trials—a first-of-its-kind project dedicated to providing in-depth coverage of the ongoing criminal proceedings against Trump in Washington, Florida, New York, and Georgia—please consider making a contribution here. Lawfare’s talented correspondents and analysts discuss the latest developments in the cases, explain the complex legal issues they raise, and consider what might come next in a wide range of content, including written analysis, podcasts, live and recorded virtual events, primary source document repositories, and infographics.

And that was the week that was.