The Week That Was

On Feb. 24, Benjamin Wittes moderated a live discussion with Fiona Hill, Anastasiia Lapatina, Tyler McBrien, and Constanze Stelzenmüller on President Donald Trump’s return and the fate of Ukraine. The event also served as the launch of Escalation, Lawfare and Goat Rodeo's new narrative podcast series chronicling the surreal twists and turns in the United States and Ukraine’s relationship over the years. A recording of the discussion is available as a podcast on Lawfare Daily.

In the first episode of Escalation, co-hosts McBrien and Lapatina discussed the end of the Cold War and the U.S. fears about the dangers Ukrainian independence could bring.

Wittes reflected on the making and the launch of Escalation, which lays bare the stakes of the Ukraine-Russia War through powerful storytelling and compelling voices and reveals the forgotten promises and fragile alliances that have shaped the U.S.-Ukraine relationship.

On Rational Security, Scott R. Anderson sat down with Lapatina, Natalie Orpett, and Wittes to discuss the week’s big national security news, including the Trump administration’s push for a stake in Ukraine’s rare earth minerals (while not offering hard security guarantees), Germany’s new chancellor Friedrich Merz’s call for European independence from the U.S., migrant detention at Guantanamo, and more.

Mykhailo Soldatenko argued that a ceasefire or other agreement to end the Russia-Ukraine war must include dependable security provisions that will remedy the gap left by the Budapest Memorandum. Soldatenko discussed the terms of the 1994 agreement, in which Ukraine gave up its nuclear weapons in exchange for commitments from the U.S., United Kingdom, and Russia that they ultimately did not uphold.

Julia Kepczynska and Ania Zolyniak warned against conflating a ceasefire in Ukraine with an end to the conflict and sustained peace. Kepczynska and Zolyniak highlighted the legal complexities of a ceasefire, including the responsibilities of the state governing occupied territory, Ukraine and Russia’s dueling goals for a ceasefire, the implications of recognizing an agreement, and more. ​​

Lindsay Cohn explained how Trump’s recent firing of Chairman of the Joint Chiefs of Staff Gen. CQ Brown Jr. and other military leaders—including the judge advocates general of the Army, Navy, and Air Force—makes the military a less effective fighting force and signals the administration’s desire to eliminate resistance to potential actions, such as using the military to suppress civilian demonstrations.

Suzanne Goldberg explained the difference between temporary restraining orders (TROs) and preliminary injunctions, both of which are forms of provisional relief that courts have granted in various cases brought against the Trump administration. A TRO lasts no more than 14 days and is granted to prevent the defendant from causing irreparable harm, while a preliminary injunction is long term and can only be granted if the plaintiff's case is likely to succeed.

Anna Bower reported from a preliminary injunction hearing in Alliance for Retired Americans v. Bessent, which concerns the Department of Government Efficiency’s (DOGE) access to sensitive Treasury Department systems. Bower highlighted the government’s inability to answer questions about the structure and leadership of the U.S. DOGE Service, as well as concerns about DOGE’s transparency and constitutionality.

Nick Bednar outlined the essential role the Office of Special Counsel (OSC) plays in protecting the rights of federal employees and upholding the merit system, including investigating prohibited personnel actions, petitioning the Merit Systems Protection Board (MSPB), and more. Bednar explained how Trump’s attempt to fire OSC head Hampton Dellinger imperils the agency’s work and undermines employees’ constitutional due process rights.

Jessica Bulman-Pozen and Emily Chertoff discussed the longstanding asymmetry between attacks on the regulatory side of the administrative state (responsible for regulations and benefits) compared to the expanding power of physical force and surveillance side (home to law enforcement, corrections, and intelligence agencies).

In a live conversation on Feb. 28 at 4 p.m. ET, Wittes spoke to Bower, Chris Mirasola, and Roger Parloff about the status of the civil litigation against Trump’s executive actions, including the birthright citizenship executive order, detaining immigrants at Guantanamo Bay, and the dismantling of the U.S. Agency for International Development, the firing of probationary employees, and more.

On Lawfare Daily, Wittes spoke to Anderson, Bower, and Parloff about the status of the civil litigation against Trump’s executive actions, including the attempts to dismantle USAID, the firing of probationary employees, and more. This discussion is a recording of a live conversation on Feb. 21.

Jonathan Shaub proposed the creation of an independent commission for White House inspection, citing limits on special counsels and the attacks levied against them, Congress’s lack of authority to enforce its oversight functions, and more as impediments to current efforts to ensure executive accountability.

Anderson and Elena Chachko broke down the implications of a Feb. 12 executive order that asserts a maximalist view of the president’s authority over foreign affairs under the vesting clause, iterations of which courts have previously rejected in United States v. Curtiss-Wright and Youngstown Sheet & Tube Company v. Sawyer. Anderson and Chachko also considered the adverse consequences this order will have on the foreign service, such as shuttering internal dissent channels.

On Lawfare Daily, Anderson sat down with Kathleen Claussen and Peter E. Harrell to discuss the ambitious set of tariffs the Trump administration has imposed so far. They talked about what other tariffs seem to be coming over the horizon, how they all line up with the legal authorities Trump is using to impose them, and more.

Wittes discussed the Federal Bureau of Investigation in the era of Kash Patel and Dan Bongino. Wittes asserted that the elevation of the latter—a conservative podcast host—to acting deputy director this week furthers the rapid and unabashed politicization of the Bureau’s leadership and the denigration of its integrity, effectiveness, and more.

In the latest installment of Lawfare’s Foreign Policy Essay series, Moritz Graefrath discussed the German election and incoming chancellor Friedrich Merz’s pledge to “strengthen Europe” and ultimately “achieve independence” from the U.S. Graefrath observed that Merz will have to overcome strong domestic political opposition and longstanding German aversion to rearmament in order to fulfill his promise.

In an earlier installment of Lawfare’s Foreign Policy Essay series, Paul Cormarie considered how, despite France’s fragile domestic political situation, President Emmanual Macron has been and continues to be a leader in Europe’s foreign policy due to the substantial authority over foreign affairs that the French constitution vests in the president.

Richard Gowan evaluated member states' responses to the current period of stagnation in the United Nations despite increased global conflict through the lens of the decline-renewal paradox. Gowan assessed that some states seek to change the UN from the inside through Security Council reform, while others increasingly rely on regional organizations and international institutions such as the International Court of Justice.

On Lawfare Daily, McBrien sat down with journalist Rachel Chason and John Lechner to discuss the current state of the Sahel and the many forces that have converged in the region over the past couple of years. They talked about Chason’s recently published profiles of Sahel actors and Lechner’s upcoming book.

Mirasola responded to Randy Barnett’s and Ilan Wurman’s claim that there is a legal conundrum about how to apply the Fourteenth Amendment to children of U.S. citizens born in occupied territory or children born to foreigners on foreign-flagged vessels in U.S. waters. Mirasola argued that the limits of states’ jurisdiction over occupied military territory and territorial waters is enshrined in international law, thus debunking Barnett and Wurman’s theory that birthright citizenship is conditional upon allegiance to the sovereign.

Susan Landau evaluated the U.K.’s demand for access to iCloud data—which threatens Apple’s end-to-end encryption of data via Advanced Data Protection for iCloud (ADP)—and Apple’s subsequent decision to strip ADP protections from U.K. users. Landau warned that this bulk communications collection will weaken security and create new vulnerabilities.

In the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren discussed reports that a White House advisor wants to expel Canada from the Five Eyes, legislation in Sweden that would require encrypted messages to be preserved, continued activity by sanctioned Russian-linked crypto entities, the Pentagon’s embrace of cyber operations, and more.

On Lawfare Daily, Alexandra Reeve Givens, Courtney Lang, and Nema Milaninia joined Kevin Frazier to discuss whether the Paris Artificial Intelligence (AI) Action Summit marks a formal pivot away from AI safety to AI security, and if so, what an embrace of AI security means for domestic and international AI governance.

Richard Salgado highlighted the impropriety of the Justice Department’s tactic of refusing to consider objections to surveillance demands until the service provider files a motion with the court, at which point the demand is withdrawn and made moot. Shaub examined three cases in which the government used this strategy to prevent warrants of a questionable nature from undergoing review.

Preston Marquis discussed Judge LaShann DeArcy Hall’s ruling in United States v. Hasbajrami, which found that the U.S. government violated the Fourth Amendment when conducting U..S. person queries under Section 702 of the Foreign Intelligence Surveillance Act (FISA) without a warrant. Marquis broke down key parts of the opinion, including Judge Hall’s finding that the exception to querying did not apply, refusal to exclude the unlawfully obtained evidence according to the good-faith exception, and more.

And Abby Smith Rumsey reviewed Steve Benen’s “Ministry of Truth: Democracy, Reality, and the Republicans’ War on the Recent Past” and Jason Stanley’s “Erasing History: How Fascists Rewrite the Past to Control the Future.” Rumsey highlighted Stanley’s argument about fascist regimes’ use of education to shape youth and Benen’s identification of the “brute force rhetorical strategy” utilized by Republicans as particular strengths, but suggested that both authors’ accounts could benefit from providing more backstory.

And that was the week that was.