The Week That Was: All of Lawfare In One Post

Tyler McBrien reported from inside New York Supreme Court Justice Juan Merchan’s courtroom on Trump’s motion to dismiss the criminal charges brought against him by District Attorney Alvin Bragg. Merchan denied former President Donald Trump’s motion and ordered the trial to proceed on March 25, 2024.

Jack Goldsmith discussed the difficult issues that the Supreme Court will have to confront as Special Counsel Jack Smith rushes to prosecute former President Donald Trump for Jan. 6. 

Anna Bower previewed the evidentiary hearing in Fulton County, Ga. that took place on Feb. 15, regarding District Attorney Fani Willis’s alleged relationship with special prosecutor Nathan Wade and whether the two profited financially from the prosecution of former President Donald Trump.

On Lawfare No Bull, Maya Nicholson shared Michael Roman’s Motion Hearing that took place on Feb. 12, 2024 in Fulton County Superior Court. Judge McAfee held the hearing, which centered on several motions to quash filed by individuals who received subpoenas to testify or produce documents ahead of an evidentiary hearing on whether district attorney Fani Willis should be disqualified from prosecuting Donald Trump and others. Judge McAfee did not immediately rule on the motions to quash:

Hyemin Han shared former President Donald Trump's 110-page application for a stay of the D.C. Circuit's mandate on presidential immunity, pending a petition for a writ of certiorari.

Matt Gluck shared the government’s response to Trump’s application for a stay of the U.S. Court of Appeals for the D.C. Circuit’s mandate rejecting his claim of absolute immunity in the federal election interference case.

Gluck also shared Trump’s reply brief in support of his application for a stay of the D.C. Circuit’s mandate rejecting his claim  of absolute immunity from criminal prosecution in the Jan. 6 case.

On Friday, Feb. 16 at 4 p.m. ET, Benjamin Wittes sat down with Roger Parloff, Bower, and McBrien for this week’s episode of “Lawfare Live: Trump’s Trials and Tribulations.” 

On Rational Security, Alan Rozenshtein, Quinta Jurecic, Scott R. Anderson and Wittes discussed this week’s big national security news stories, including the Supreme Court oral arguments in Trump v. Anderson, Special Counsel Robert Hur’s recent report on President Biden’s alleged mishandling of classified documents, Trump’s recent comments about Russia and the defense spending level of NATO members, and more:

Gluck and Wittes compared Robert Hur’s report on President Joe Biden’s mishandling of classified files to former President Donald Trump’s alleged misconduct. They summarized the key facts of the report, how Hur concluded that Biden should not be charged, and what should be done in terms of policy moving forward. 

Goldsmith examined President Joe Biden’s violations of norms against commenting on Justice Department investigations. He argued that Biden’s statements have contributed to the perceived polarization of the department. 

Preston Marquis outlined the Reforming Intelligence and Securing America Act (H.R. 7320), the new bill proposed by Rep. Laurel Lee (R-Fla.) to authorize Section 702 of the Foreign Intelligence Surveillance Act, and how it will affect the reauthorization vote. 

Glenn Gerstell explained why requiring the FBI to obtain a court order before it looks at its own legally acquired information could threaten U.S. national security by damaging cybersecurity, endangering counterterrorism efforts, and more. 

Sarah Harrison evaluated President Joe Biden’s new National Security Memorandum 20, which aims to establish written assurances and congressional reporting on arms assistance to restate standards of current law and policy, in light of the ongoing conflict in the Middle East. 

In the latest installment of Lawfare’s Foreign Policy Essay series, Benjamin Ryan examined Russian President Vladimir Putin’s decision to withdraw Russia from New START and revoke the ratification of the Comprehensive Test Ban Treaty. He explained how Putin’s decisions are part of a strategy to exploit a “grey area” between withdrawal and noncompliance to put pressure on the United States and avoid ramifications for violating treaties.

On Chatter, Anna Hickey sat down with Christopher Miller to unpack his book, “The War Came to Us: Lie and Death in Ukraine,” which tells the story of the past 14 years in Ukraine through Miller’s personal experiences living and reporting in the country. They also covered what led to Russia’s full scale invasion of Ukraine in 2022, the 2014 capture of Crimea, and more:

On the Lawfare Podcast, Jurecic sat down with Vaclav Masek to discuss how the new president of Guatemala Bernardo Arévalo triumphed in August elections as an anti-corruption reformer, the significance of his victory for Guatemala and the region, and what all this might tell us about the ability of democracies to resist authoritarian backsliding around the world:

On the Lawfare Podcast, Goldsmith sat down with Daryl Levinson to discuss his new book, “Law for Leviathan: Constitutional Law, International Law, and the State.” They talked about the challenge of regulating the state through both international law and constitutional law and what constitutional law theory can learn from international relations theory about how this happens. They also discussed how IR balance of power theory is like Madison's conception of constitutionalism, the implications for his theory for understanding how to hold states accountable for illegal action, and more:

Kenneth Propp examined the changes in U.S. digital trade policy, noting a shift toward the European Union’s position of increasing the regulation of Big Tech.

Again on the Lawfare Podcast, Stephanie Pell sat down with Jonathan Cedarbaum and Gluck to talk about the key cyber provisions of the NDAA for Fiscal Year 2024. They discussed new cyber provisions that are intended to address threats from Mexican criminal organizations and China, as well as how some new provisions expand the military’s role in protecting against threats to critical infrastructure, and more:

Pamela Samuelson discussed three types of remedies sought in generative AI copyright complaints: claims for awards of statutory damages, court orders to destroy models trained on infringing works, and court orders to establish a regulatory regime.

Alan Charles Raul and Alexandra Mushka examined the U.S.’s increasingly active role in global AI policy and governance, such as the Biden Administration’s Executive Order on AI, Vice President Kamala Harris’s leadership at the Bletchley Summit on AI, and other federal initiatives taken to establish an effective and safe framework in the field. 

Eugenia Lostri sat down with Itsiq Benizri on an episode of the Lawfare Podcast to discuss the EU’s AI Act, how domestic politics shaped the final text, how governments and businesses can best prepare for new requirements, and more: 

In the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren discussed a report by Google’s Threat Analysis Group which sheds light on the commercial surveillance industry that sells spyware to bad actors, Ukraine’s cyber forces switching to the offensive to “act proactively,” why banning ransomware payments has negative consequences, and more.

On Feb. 13 at 1:00 p.m. ET, the American Bar Association's Task Force for American Democracy hosted a livestream event on Georgia’s election administration and election integrity issues nationwide. You can watch a recording of the event here:

On the Lawfare Podcast, Katherine Pompilio sat down with Bruce Hoffman and Jacob Ware to unpack their book, “God, Guns, and Sedition: Far-Right Terrorism in America.” They discussed the historical trajectory of violent right-wing extremism, Donald Trump’s effect on these groups and the threat of far-right terrorism heading into the 2024 election, how to address the issue, and more.

And Lawfare is now accepting applications for our Summer 2024 internship program. Apply here.

And that was the week that was.