The Week That Was

Quinta Jurecic sat down with Eloise Pasachoff of Georgetown Law School and Zachary Price of the University of California College of Law San Francisco to discuss the Trump administration’s freeze on federal funds, which has sparked profound questions about the congressional power of the purse and limitations on presidential power under the Impoundment Control Act.

Price outlined the history and statutory framework of the 1974 Impoundment Control Act (ICA). Price also discussed the constitutional challenges previously levied against the ICA that the Trump administration is likely to reraise.

On Rational Security, Kevin Frazier, Peter Harrell, and Eugenia Lostri joined Scott Anderson for a deep dive into the week’s national security news, including the U.S.-Colombia spat, the Stargate Project, a freeze on foreign assistance, and more.

Caroline Cornett shared a memorandum ordering a temporary pause in all federal financial assistance except for Medicare, Social Security, and “assistance provided directly to individuals.”

Nick Bednar broke down the terms of the “deferred resignation” program the Office of Personnel Management offered to federal employees this week as part of President Donald Trump’s attempts to downsize and politicize the federal workforce. Bednar further assessed that the program appears to conflict with the Administrative Leave Act, existing statutes governing the use of “voluntary separation incentives payments,” and more.

On Lawfare Daily, Alan Rozenshtein spoke with Bednar about the wave of Day 1 executive orders affecting the civil service, which Bednar recently analyzed in a piece for Lawfare. They discussed what the orders say, how they might be challenged in court, and what this means for the next four years and beyond.

Harrell argued that the International Emergency Economic Powers Act (“IEEPA”) is not sufficient legal basis for the Trump administration’s expansive tariff plans, citing emerging Supreme Court doctrine, statutory interpretations of IEEPA, and more.

Anna Bower and Benjamin Wittes compiled an overview of controversies throughout FBI director nominee Kash Patel’s career. Bower and Wittes utilized only the public record to assemble this detailed history, which addresses his connections to Jan. 6, denying Russian interference in the 2016 election, and more.

On Jan. 30 at 4 p.m. ET, Wittes spoke to Bower, Jurecic, and Roger Parloff about the confirmation hearings of Kash Patel to be FBI director, Tulsi Gabbard to be the director of national intelligence, and Robert F. Kennedy to be the health and human services secretary. 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.

Wittes discussed the upcoming confirmation hearings for Tulsi Gabbard, Robert F. Kennedy Jr., and Kash Patel and the troubling way in which each nominee has grounded their view of reality in falsehoods and conspiracy theories.

Wittes further warned that the combination of Kash Patel as FBI director and the firing of career prosecutors who worked on the cases against Trump will cement the president’s control over the Department of Justice—and with it, his capacity for political retribution.

On Lawfare No Bull, Cornett shared the audio from Secretary of Health and Human Services nominee Robert F. Kennedy, Jr.’s confirmation hearing in front of the Senate Finance Committee and the Senate Committee on Health, Education, Labor and Pensions on Jan. 29 and 30. 

On Lawfare No Bull, Cornett shared the audio from Director of National Intelligence nominee Tulsi Gabbard’s confirmation hearing in front of the Senate Intelligence Committee on Jan. 30. 

Daniel Richman explained why the Trump administration lacks the legal authority to enlist state and local authorities in its mass deportation efforts and how the federal government has failed to compel local law enforcement’s participation in the past.

Chris Mirasola explained the Trump administration’s first deployment of military personnel to the border, noting that it relies on non-emergency authorities and is broadly in line with directives from past administrations.

On Lawfare Daily, Anderson sat down with Mirasola to talk through the ways that the Trump administration is using the military to enforce its new immigration policies. They talked through actions such as transporting migrants on military flights to threatening to send them to Guantanamo Bay; legal theories the Trump administration may use to justify military involvement; and the implications for the rule of law and civil-military relations.

Olivia Manes shared a memorandum directing the secretary of defense and the secretary of homeland security to expand the migrant operations center at Guantanamo Bay Naval Station to “full capacity” in order to detain “high-priority criminal aliens.”

Dean Ball explained why the release of Chinese artificial intelligence (AI) company DeepSeek’s new language model—which has led many to question whether export controls failed to contain China—should prompt the U.S. to take action on the patchwork AI regulatory system developing domestically as well as AI governance worldwide.

Greg Nojeim and Silvia Lorenzo Perez warned that Trump’s firing of the Democratic members of the Privacy and Civil Liberties Oversight Board (PCLOB) leaves PCLOB without quorum, preventing it from conducting investigations, providing oversight, and enforcing U.S. obligations under the EU-US Data Privacy Framework.

Keegan McBride and Adam Thierer suggested that the United States should be wary of international agreements that purport to ensure alignment of artificial intelligence (AI) across countries, warning that such treaties could introduce restrictions that hinder AI innovation and reduce U.S. AI dominance.

On Lawfare Daily, Peter Hyun, then-acting Chief of the Enforcement Bureau at the Federal Communications Commission, joined Justin Sherman to discuss the FCC’s data security and cybersecurity enforcement authorities and how those authorities fit into addressing national security threats to the communications supply chain. They talked about how technology supply chains, national security risks, and entanglement with China may evolve in the years to come.

Peter Margulies evaluated the merits of Biden Defense Secretary Lloyd Austin’s effort to block the government’s plea agreement with alleged 9/11 mastermind Khalid Shaikh Mohammad and two other defendants. Margulies suggested that the U.S. Court of Appeals for the D.C. Circuit—which hears oral arguments in this case on Jan. 28—should uphold the agreement because Secretary Austin provided reasonably specific and concrete guidance and the negotiations resulted in reciprocal material concessions.

Manes reported from the U.S. Court of Appeals for the D.C. Circuit, where oral arguments took place on Jan. 28 regarding the government’s request for a writ of mandamus recognizing the validity of Defense Secretary Lloyd Austin’s decision to withdraw from pretrial agreements with three Sept. 11 defendants.

In the latest installment of Lawfare’s Foreign Policy Essay series, Tanya Mehra explained how efforts to combat antisemitism and Islamophobia, such as classifying perpetrators as terrorists, risk increasing polarization and infringing on civil liberties.

Seth Stern argued that the Biden administration’s use of federal criminal statutes to prosecute Julian Assange and Tim Burke diminishes the former president’s efforts to protect media freedom and hands Trump new tools with which to attack the press.

Jack Goldsmith explained why Trump’s late night purge of 17 inspectors general is likely legal despite the requirement that he notify Congress in advance. Goldsmith noted that Congress does have authority to limit the president’s choice of replacement, but suggested that Congress is unlikely to do so.

Paul Rosenzweig discussed how President Donald Trump’s invocation of the presidential communications privilege delayed the Special Counsel’s case against him and whether the Supreme Court decision granting presidential immunity renders the privilege absolute.

On Lawfare Daily, in a live conversation on Jan. 23, Wittes spoke to Anderson, Bower, Jurecic, Rozenshtein, and Amelia Wilson about Trump’s first batch of executive orders. They discussed orders suspending enforcement of the TikTok ban, ending birthright citizenship, and more, as well as the legal challenges some of these orders are facing.

And Tyler McBrien shared an executive order that directs the secretary of defense to update guidelines on the medical standards for military service and reverses a 2021 directive allowing transgender troops to serve openly.

And that was the week that was.