The Week That Was

Quinta Jurecic outlined how American legal and political elites—specifically those in the Justice Department, Senate, and Supreme Court, among others—failed to use the tools afforded to them by the Constitution to address President Donald Trump’s role in Jan. 6, democratic erosion, and to “defend against a demagogue.”

Nick Bednar detailed how Trump’s executive actions pertaining to federal personnel—including the return of Schedule F, tightened control of the Senior Executive Service, and more—seek to politicize and shrink the civil service. Bednar assessed that the administration hopes to enshrine constitutional authority over the federal workforce by winning the inevitable legal battles these orders will precipitate.

On Lawfare Daily, Roger Parloff sat down with Alexis Loeb, former Deputy Chief of the Justice Department's Capitol Siege Section, to discuss her experience prosecuting the Jan. 6 cases in light of Trump's blanket pardons and commutations for those involved in the attack.

Parloff shared a proclamation from Trump that pardons almost all of those convicted in connection with the Jan. 6 attack and commutes the sentences of 14 others.

Benjamin Wittes observed that despite Trump’s sweeping executive order granting clemency for over 1500 people who participated in the Jan. 6 attack on the Capitol, Trump cannot erase the history of the event and the violence perpetrated by those now pardoned.

Parloff shared notable preemptive pardons that former President Joe Biden issued on his last day in office for Gen. Mark Milley (ret.), Dr. Anthony S. Fauci, the Select Committee that investigated the Jan. 6 attack, and members of his family.

Jurecic broke down Trump’s executive orders purporting to end censorship and the weaponization of the federal government. Jurecic explained that although the orders compel reviews and investigations into the Biden administration, the scope and manner of any such actions are unclear.

Jurecic shared Trump’s executive order on “Ending the Weaponization of the Federal Government,” which orders review of various departments’ and agencies’ conduct for instances of “weaponization” over the last four years.

Jurecic also shared an executive order titled “Restoring Freedom of Speech and Ending Federal Censorship” that forbids government agencies from using federal resources to abridge free speech and directs the attorney general to investigate any such activity over the last four years.

Katherine Pompilio shared an executive order reinstating Schedule F in the Excepted Service, a class created in his first term that strips employment protections from federal workers.

Natalie Orpett shared the National Treasury Employees Union’s (NTEU) complaint challenging Trump’s executive order reinstating Schedule F.

Chris Mirasola unpacked the range of legal theories cited in Trump’s recent executive orders on immigration, and how they might be used to justify the use of military force at the southern border.

Jurecic shared an executive order that purports to end birthright citizenship, which has been long understood to be protected by the Fourteenth Amendment.

Anna Hickey shared an order from a federal judge in the Western District of Washington at Seattle granting an emergency motion to enjoin Trump’s executive order ending birthright citizenship. The restraining order lasts for 14 days and applies nationwide.

Anna Bower shared four lawsuits filed against Trump’s executive order purporting to end birthright citizenship. The litigants include the American Civil Liberties Union, a coalition of 18 state attorneys general, a coalition of four other state attorneys general, and Lawyers for Civil Rights.

Bower also shared an internal email from the acting attorney general to Justice Department attorneys instructing them to investigate and potentially prosecute state and local officials who refuse to enforce Trump’s immigration policies.

Olivia Manes shared an executive order titled “Securing Our Borders” that allows for deployment of personnel to the border and directs the detainment of illegal immigrants.

Manes also shared an executive order that declares a national emergency at the southern border, authorizing the secretary of defense to oversee military constructions and deploy National Guard reservists.

Scott Anderson shared Trump’s proclamation on “Guaranteeing the States Protection Against Invasion” which –using statutory and novel constitutional authority–declares the activity at the southern border as an invasion and orders new restrictions on immigration.

On Jan. 23 at 4 p.m. ET, Wittes spoke to Anderson, Bower, Jurecic, Alan Rozenshtein, and Amelia Wilson about Trump’s first batch of executive actions in his second term, including the birthright citizenship order, the declaration of a national emergency at the southern border, and the reinstating of Schedule F. Lawfare material supporters were able to submit questions to the panelists and watch the livestream without ads. Become a material supporter of Lawfare on Substack or Patreon.

On Rational Security, Anderson sat down with Wittes, Jurecic, and Rozenshtein to discuss the major national security news from the past week, including Trump’s flurry of executive orders, the ceasefire in Gaza, Trump’s order to delaying the TikTok ban and its implications, and more.

Kevin Frazier shared an executive order rescinding nearly 80 executive orders from the Biden Administration, notably including the 2023 Executive Order on Artificial Intelligence.

Eugenia Lostri shared Trump’s executive order establishing the “Department Of Government Efficiency,” which calls for “modernizing Federal technology and software to maximize governmental efficiency and productivity.”

Bower shared four lawsuits that advocacy groups filed against the Department of Government Efficiency (DOGE), three of which allege that DOGE violates federal transparency law and one that seeks to compel the disclosure of certain DOGE records.

Orpett shared a presidential action granting the highest level interim security clearances—without full investigations—to certain individuals hired to work in the Executive Office of the President.

Kenton Thibault outlined how the United States’s reactionary approach to technology regulation—driven by a focus on Chinese security risks—is unconducive to developing an effective policy regime that engages a wide range of stakeholders and achieves domestic innovation goals.

On Lawfare Daily, Aram Gavoor joined Frazier to discuss the Trump administration’s actions on artificial intelligence (AI policy) so far, including rescinding the Biden administration’s 2023 executive order on AI and the recently announced Stargate Project.

Also on Lawfare Daily, Lostri sat down with Frazier to discuss the ongoing investigations into disruptions of undersea cables. They talked about the challenges that weather, cooperation, and jurisdiction present and the plans in place to protect the cables from accidents and sabotage.

Rozenshtein explained how Trump’s first-day executive order suspending the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACAA) and providing retroactive protection to TikTok’s service providers goes against established legal frameworks on executive non-enforcement promises. Rozenshtein further described the immense legal risks that companies who continue to provide service to TikTok may incur.

Rozenshtein shared an executive order issued by Trump that directs the Justice Department to suspend PAFACAA implementation for 75 days and declares "no violation" for companies providing services to TikTok.

On Lawfare Daily, Anderson sat down with Natan Sachs, Daniel Byman, Joel Braunold, and Dana El-Kurd to discuss the ceasefire between Israel and Hamas in Gaza. They discussed the terms of the ceasefire, what will determine its success or failure, what to expect in the weeks and months to come, and more.

Stephen Coulthart and Guillermo Vázquez del Mercado charted three scenarios for the future of the U.S.-Mexico intelligence partnership. They predicted that it is most probable that the two countries will sustain their current contentious relationship, with heightened cooperation or an end to the intelligence sharing relationship also possible, but unlikely.

In the latest installment of Lawfare’s Foreign Policy Essay series, Madiha Afzal discussed Pakistan’s decreased diplomatic importance to the U.S. since the end of the war in Afghanistan. Afzal assessed that U.S.-Pakistani relations will continue to be defined by coordination with the Pakistani military rather than its civilian government.

Delaney Simon argued that despite the steps the United States has taken to ease sanctions in Syria after the fall of the Asssad regime, obstacles such as designation of Hayat Tahrir al-Sham as a foreign terrorist organization and the time-bound nature of the measures block Syria’s path to economic and humanitarian recovery.

Pompilio shared a national security presidential memorandum outlining specifications for the current administration's National Security Council, including its organization, purpose, function, and more.

Anderson shared an executive order directing the secretary of state to recommend whether certain international cartels should be designated as Foreign Terrorist Organizations or Specially Designated Global Terrorists.

Manes shared an executive order directing the secretary of state to “issue guidance” that will bring the Department of State “in line with an America First foreign policy.”

Manes also shared Trump’s executive order initiating the United States’s withdrawal from the World Health Organization (WHO), citing WHO’s handling of the pandemic and “onerous” financial obligations on the U.S.

Lostri shared an executive order rescinding the U.S. International Climate Finance Plan and withdrawing the United States from the Paris Agreement and other climate commitments.

Pompilio shared an executive order on “Reevaluating and Realigning United States Foreign Aid” that orders a 90-day pause in foreign aid programs pending review of their efficiency and consistency with U.S. foreign policy, and more.

Manes shared Trump’s memorandum on “America First Trade Policy” that directs the Departments of Commerce and the Treasury to review trade agreements and recommend measures to “defend” U.S. national and economic security.

Nick Robinson reviewed the Department of Justice’s proposed revisions to the Foreign Agents Registration Act (FARA). He asserted that the revised regulations pose potential threats to civil liberties and threaten to make the already “overbroad” law even more ambiguous.

Paul Rosenzweig announced his resignation from his position as a special advocate to the Data Protection Review Court, citing his commitment to never serve under Trump, whom he labels a threat to democracy.

Bower reported from Fort Pierce, Florida, where Judge Aileen Cannon held a hearing on Jan. 19 on whether to enjoin the release of Volume 2 of Special Counsel Jack Smith’s final report—which deals with the classified documents case—to four members of Congress.

In a review of “Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform After the Civil War,” Pamela Brandwein evaluated author Mark A. Graber’s argument that Republican framers of the Fourteenth Amendment were indifferent to rights and instead sought to secure political power via constitutional design.

On Lawfare No Bull, Caroline Cornett shared the audio from Secretary of Homeland Security Nominee Kristi Noem’s confirmation hearing in front of the Senate Committee on Homeland Security and Governmental Affairs on Jan. 17.

And Wittes shared seven principles for keeping up with news about the second Trump presidency, including slowing your consumption, choosing trusted sources, and more.

And that was the week that was.

Compiled by Caroline Cornett.