The Very Long Week That Was: All of Lawfare in One Post

It’s been a very long week.

It was only last Sunday that France voted in centrist candidate Emmanuel Macron as the next president over the far-right National Front leader Marine Le Pen. Laura Dean considered what’s next for Le Pen, and Matt Tait analyzed the hacking and leaking effort against Macron’s campaign.

It was only on Monday that former Acting Attorney General Sally Yates testified before the Senate Judiciary Committee alongside former Director of National Intelligence James Clapper, and the U.S. Court of Appeals for the Fourth Circuit heard oral argument in International Refugee Assistance Project v. Trump. Lawfare liveblogged both events, and Jane Chong summarized the oral argument. Jack Goldsmith pondered Yates’ changing account of her decision not to support Trump’s travel ban executive order, along with her testimony on her conversations with White House Counsel Don McGahn on former national security advisor Lt. Gen. Michael Flynn’s contacts with Russian officials. Peter Margulies and Josh Blackman both weighed in on the IRAP argument.

And it was Tuesday, of course, when President Trump announced that he had dismissed James Comey from his position as FBI Director.

Benjamin Wittes and Susan Hennessey analyzed Comey’s dismissal as the “nightmare scenario.” An all-star team including Ben, Susan, Carrie Cordero, Jack Goldsmith, and Paul Rosenzweig sat down for an emergency edition of the Lawfare Podcast on the subject:

The Rational Security gang also devoted this week’s entire episode to the firing...

...and the National Security Law Podcast put out a special episode as well.

Bobby Chesney ran through the relevant information on the President’s power to remove the FBI Director. Helen Murillo considered whether Comey’s dismissal constitutes a potential case of obstruction of justice, and Philip Bobbitt weighed in as well. Susan and I examined whether Attorney General Jeff Sessions’ involvement in the firing violates his pledge to recuse himself from investigations relating to the presidential campaigns. Michael Linhorst and Russell Spivak rounded up key public statements on Comey’s firing in the hours immediately afterward.

Ben made the case that Deputy Attorney General Rod Rosenstein, who drafted the memo on which the White House initially relied in explaining Comey’s firing, should appoint a special prosecutor and resign. Paul examined the substantive failures of Rosenstein’s memo, while Daphna Renan and David Pozen argued that the memo bears the hallmarks of exactly the procedural failures of which Rosenstein accused Comey. Bob Bauer considered the procedural failings of Comey’s dismissal more broadly.

Bob also wrote on whether President Trump’s conduct constitutes obstruction of justice, considering both Trump’s apparent linking of Comey’s dismissal to the Russia investigation and his tweet yesterday morning threatening the existence of “tapes” of conversations between him and Comey.

Jack Goldsmith and Helen Murillo took a look at the role of the Department of Justice Inspector General, whose role has now taken on a new importance. Meanwhile, Molly Reynolds asked what procedural options congressional Democrats now have to respond to the dismissal, and Paul Rosenzweig mourned the loss of the filibuster as a potential tool to prevent the appointment of a political FBI Director.

Acting FBI Director Andrew McCabe testified before the Senate Intelligence Committee on Thursday in an unexpectedly exciting hearing. I liveblogged the hearing and wrote up some key points from McCabe’s testimony.

Our attention may have been elsewhere, but some other things happened this week, too. Ben and Steve Vladeck presciently examined the state of presidential immunity under Trump. Justin Florence of Protect Democracy announced his organization’s FOIA suit to obtain information on the Trump administration’s legal justification for airstrikes in Syria, and Bobby examined the text of a new AUMF introduced by Representative Adam Schiff. David Bosco updated us on the status of the potential International Criminal Court investigation in Afghanistan. Alex Thurston argued that considering a group’s links to al-Qaeda may not be the most useful metric in Libya, and J. Dana Stuster noted the most recent developments in the region in the Middle East Ticker. Jared Dummitt gave us the latest on the South China Sea in Water Wars, and Paul noted an upcoming expansion of the ban on travelers taking laptops into the United States from certain airports.

In the non-emergency edition of the Lawfare Podcast, a group of former intelligence officials pondered the status of the relationship between the Trump administration and the intelligence community:

David Kris argued that digital network technology threatens not just privacy and security, but both, while Paul flagged a new paper on hacking back. Helen summarized the Trump administration’s new executive order on cybersecurity—which was released right after the usual suspects on the Steptoe Cyberlaw Podcast complained about the order’s failure to appear:

As if enough hadn’t already happened this week, the Office of the Director of National Intelligence released a tranche of new documents on FISA Section 702 collection. Friday also saw a major ransomware attack spread across Europe and Asia. Nicholas Weaver analyzed the most notable features of the attack, and Ben Buchanan, Stuart Russell, and Michael Sulmeyer asked what the attack can tell us about the VEP debate.

And that was the exhausting week that was.