The Week That Was: All of Lawfare in One Post

Matt Tait offered a counterargument to the claim that former President Donald Trump’s indictment violates norms against former presidents. Tait evaluated fundamental, emergent, and derived norms of the U.S. government and its history, and concluded that there is no basis prohibiting the prosecution of former presidents of the United States.

Eric Columbus examined former President Donald Trump’s claim that the Presidential Records Act and its application in former President Bill Clinton’s “Socks” case exonerate him from wrongdoing in relation to his unlawful retention of classified documents.

Tyler McBrien shared a motion submitted by Special Counsel Jack Smith for a protective order to limit the disclosure of discovery information in the case of United States of America v. Donald J. Trump and Waltine Nauta.

Katherine Pompilio shared a new page, “Docket Watch: Trump Prosecuted in Florida.” The page tracks primary source documents or other materials related to the indictment of former President Donald Trump and subsequent proceedings in connection with the investigation into the improper removal of classified documents from the White House to Mar-a-Lago.

On the Lawfare Podcast, Alan Rozenshtein sat down with Stephanie Pell and Brian Kalt to discuss the many roles of former President Donald Trump: president, candidate, defendant, and more. They discussed how these roles interact on a logistical and legal level, the consequences they pose for his campaign, and their impact on his potential presidency, if he is reelected in 2024. 

On Chatter, Benjamin Wittes sat down with Roger Parloff to discuss his experience covering the Jan. 6 trials. They explored what it was like to give play-by-play accounts of the Proud Boys and Oath Keepers trials, the Venue Transfer Motions filed by many Jan. 6 defendants, the other journalists who have been crucial in gathering information on the Jan. 6 cases, and more. 

On Tuesday, all of season one of The Aftermath became available. Listen here, or wherever you get your podcasts. To mark the release of the first season, Wittes and Pompilio sat down with Natalie Orpett and Ian Enright to discuss the purpose of the series, episode production, and more. Watch a recording of the discussion here.

Hyemin Han shared a U.S. District Court of Delaware filing in which Hunter Biden pleaded guilty to two misdemeanor charges of willful failure to pay income taxes. The filing also indicates that he will likely enter a pretrial diversion agreement on a charge of unlawful gun possession.

On Lawfare No Bull,  Hadley Baker shared edited audio of the House Judiciary Committee’s hearing on Special Counsel John Durham’s recently released report. The report examined the origins and conduct surrounding the FBI’s Crossfire Hurricane investigation into allegations of Russian interference in the 2016 presidential election. The hearing included testimony from Durham.

On the Lawfare Podcast, McBrien sat down with Joel Simon and Katy Glenn Bass to discuss a new report from the Knight First Amendment Institute that addresses the arrest and physical attack of journalists covering social justice protests. They discussed the long legacy of law enforcement attacks against journalists in protest settings, the legal definition of members of “the press,” and the steps necessary to better protect press freedom.

Michael Stern discussed the Supreme Court’s decision to hear a case on whether the U.S. solicitor general has the ability to review whether members of Congress have the right to sue the executive branch for information. Stern argued that the case’s stakes extend beyond the federal statute, as a ruling in favor of the solicitor general could severely diminish Congress’s access to information and increase the president’s power.

Jack Goldsmith discussed how the Biden administration could avoid an obligation to present a potential nuclear anti-proliferation agreement with Iran for a congressional vote. He concluded that President Biden has the best chance of skirting the Iran Nuclear Agreement Review Act by making the agreement verbally rather than by invoking Article II of the U.S. Constitution. 

Michael Walzer discussed the judicial reform debate in Israel through the lens of how it would unleash extremism both in Israel and abroad. He argued that support for protests against judicial reform is centered in the domestic, geopolitical, and moral-political implications of the agendas of ultrareligious political parties and ultranationalist members of government.

On the Lawfare Podcast, Anderson sat down with Richard Gowan to discuss the Biden administration’s anticipated UN Security Council reform proposal. They discussed the connection between the Ukraine conflict and heightened interest in Security Council reform, what the reform might look like, and who will benefit most.

In this week’s installment of Lawfare’s Foreign Policy Essay series, Caileigh Glenn assessed four Russian strategies to limit the impacts of sanctions on its government’s function and decision-making. She argued that the protection of potential targets of sanctions, retaliation, and de-dollarization largely failed to “sanction-proof” the Russian government, while reliance on partnerships with non-sanctioning countries produced more effective results.

Mark Nevitt discussed the legal crisis within the climate crisis. He examined how existing laws, statutes, and doctrines hide climate risk and incentivize risk-taking.

On Rational Security, Anderson, Rozenshtein, and Quinta Jurecic sat down with Paul Stephan to discuss this week’s close-calls in national security news, including Secretary of State Antony Blinken’s meeting with President Xi Jinping in Beijing, what to do with $300 billion of frozen Russian-related assets, President Biden’s attendance at a summit of AI industry leaders, and more.

Ben Nimmo and Eric Hutchins discussed their newly-developed kill chain for online operations. They argued that in the face of a growing number of cross-platform attacks, the kill chain will help defenders disrupt threats, compare different operations, and share information.

Josh A. Goldstein and Andrew Lohn assessed five potential strategies to identify the use of artificial intelligence language models in disinformation campaigns: human detection, automated detection, infiltration of propagandist units, monitoring by AI providers, and state-backed hacking. They concluded that while each approach can contribute to conquering short-term problems, none of the strategies are long-term solutions for detecting AI disinformation.

On the Lawfare Podcast, Rozenshtein sat down with Jane Bambauer, Derek Bambauer, and Mihai Surdeanu to discuss the harm caused by large language models. They covered what it means for an LLM to breach its duty of care and under what conditions Section 230 may shield the output of LLMs.

And Anupam Chander and Joe Jones discussed the Irish Data Protection Commissioner’s recent order requiring Meta to stop transferring EU personal data to the United States. They analyzed the 10-year legal history leading to this decision, potential operational consequences for Meta, and next steps for policymakers.

And that was the week that was.