The Week That Was

Benjamin Wittes laid out Lawfare’s mission during a second term under President-elect Donald Trump, reaffirming the nonprofit’s commitment to nonpartisan analysis and substantive debate. Wittes emphasized the importance of readers’ support in enabling Lawfare to continue providing expert analysis and challenging the erosion of democratic norms.

Wittes addressed what he calls “a screaming,” the failure of the American criminal justice system to prevent a democratic catastrophe, and suggested six essential methods of maintaining one’s sanity and rationality during Trump’s looming second term.

Bob Bauer responded to Wittes’s suggestion that the criminal prosecutions against Trump may have been pointless in light of his reelection. Bauer argued that while elements of the system—both “laws and men”—certainly failed to bring the former president to justice, the complex and unprecedented nature of the special counsel’s task made successfully prosecuting Trump an unlikely outcome from the outset.

Wittes discussed Trump’s surprising nominations of Matt Gaetz, Tulsi Gabbard, and Pete Hesgeth to prominent roles within his incoming administration, and the presidential adjournment power that could allow Trump to install these candidates via recess appointment—without congressional oversight.

On Nov. 15 at 12 p.m. ET, Wittes talked to Scott R. Anderson, Alan Z. Rozenshtein, Quinta Jurecic, and Mary B. McCord about Trump's picks for his cabinet and senior-level administration positions, including Gaetz as attorney general, Hegseth as secretary of defense, and more. Lawfare material supporters on Patreon and Substack received a Zoom invitation to join the conversation live and had the opportunity to submit questions for the panelists in advance. Become a Lawfare material supporter here. A recording is available on Lawfare’s YouTube channel. 

Wittes warned that the firing of FBI Director Chris Wray by Trump is almost inevitable, but that Congress can and must muster political courage and protect the proper advice and consent process to fill the vacancy, such that Trump cannot appoint a loyalist who will weaponize the FBI.

On Rational Security, Anderson was joined by Anna Bower, Roger Parloff, and Eugenia Lostri to talk through the week’s big national security news, including the possible dismissals of criminal prosecutions against Trump, Trump’s nominations of Musk and Sen. Marco Rubio (R-Fla.) to senior positions in his administration, the Biden administration’s support of the forthcoming UN cybercrime treaty, and more.

On Lawfare Daily, Jurecic and Molly Reynolds spoke with Wittes about what Congress might look like after the 2024 election and how congressional accountability may function during the second Trump term. The episode was recorded live, and is also available in unedited video format on Lawfare’s YouTube channel.

On Lawfare Daily, Jack Goldsmith sat down with Keith E. Whittington to discuss Whittington’s new book, “The Impeachment Power: The Law, Politics, and Purpose of an Extraordinary Constitutional Tool.” They considered what the Constitution says about the impeachment power, Congress’s preeminent role therein, whether Trump should have been convicted and disqualified in the second impeachment, and more.

On Chatter, Catherine Steel joined David Priess toexplore the political history of the Roman Republic and its eventual development into an empire, including bouts of political violence in the second and first centuries BCE, the lead-up to Julius Caesar, Roman citizens' awareness of changes in the Republic, implications for the modern day, and more.

On Lawfare Daily, Tyler McBrien was joined by Madeleine Baran and Parker Yesko to discuss In the Dark: Season 3, which investigates a group of Marines who killed 24 civilians in Haditha, Iraq, in 2005. The group also talked about “The War Crimes That the Military Buried,” a new database of potential American war crimes committed in Iraq and Afghanistan, which Baran and Yesko compiled over the course of their four-year investigation. 

Evin Stovall examined the military’s ability to regulate political extremism within its ranks. Stovall suggested that, while the military’s regulations on extremist conduct may have a narrow national security-oriented focus, the limitations on their scope serve the principles of civilian control over the military and protecting the First Amendment where possible.

In this week’s installment of Lawfare’s Foreign Policy Essay series, Kolby Hanson and Austin Knuppe discussed support among the American people and military officers for deploying the military as domestic law enforcement. They explored the considerable divide between civilian and military attitudes on the issue and how that divide may have formed as a result of years of training in professional norms in the armed forces. 

Kevin Frazier explored possible safeguards against a military artificial intelligence (AI) complex in the United States, including government adoption of AI to ensure a competitive market, a de-escalatory AI strategy toward China and other adversaries, thoroughly vetted models, and more.

On Lawfare Daily, Lostri sat down with Jonathan Horowitz to discuss his recent article, “The Business of Battle: The Role of Private Tech in Conflict.” They talked about how international humanitarian law principles can affect the private digital sector, risks for tech companies in providing services during armed conflict, possible risk mitigation, and more. 

Katie Harbath reviewed two books about Elon Musk’s takeover of Twitter: “Character Limit: How Elon Musk Destroyed Twitter” by Kate Conger and Ryan Mac, and “Breaking Twitter: Elon Musk and the Most Controversial Corporate Takeover in History” by Ben Mezrich. Harbath concluded that, while both books could benefit from exploring the contradictions inherent to managing social media platforms, Character Limit’s comprehensive detail, and Breaking Twitter’s more dramatic narrative provide crucial insight into how Musk’s X may affect American democracy.

On Lawfare Daily, in the latest episode of our special series, “The Regulators,” co-sponsored with Morrison Foerster, Anderson and Brandon Van Grack sat down with Devin DeBacker, the chief of the Foreign Investment Review Section at the U.S. Department of Justice, to talk about the new program his office is setting up to regulate foreign transactions involving bulk data on Americans.

Rozenshtein discussed three ways Trump could prevent a TikTok ban in the United States, including convincing Congress to repeal the imminent ban, instructing the attorney general not to enforce the ban, or declaring—whether true or not—that ByteDance has performed a “qualified divestiture” of TikTok.

In the latest installment of the Seriously Risky Business cybersecurity newsletter, Tom Uren broke down the news, including Trump’s possible covert cyber strategy, the U.S. and U.K.’s support for the controversial UN cybercrime treaty, Canada’s TikTok expulsion order, and more.

On Lawfare Daily, Justin Sherman sat down with Jacqueline Ford and Ronnie Solomon to discuss the Federal Trade Commission’s (FTC) recent report on the data practices of nine social media and video streaming companies. The group discussed the report’s findings on data collection, retention, and use practices, privacy impacts, intersections with FTC regulatory powers, what the report authors recommend next, and more.

Susan Landau argued that the Communications Assistance for Law Enforcement Act (CALEA) was passed and implemented with little forethought, enabling significant security breaches. Landau explained the history behind CALEA’s inception, how regulators and law enforcement failed to see the inherent dangers that access to digital communications could create, possible methods of damage control, and more.

And to support Lawfare’s coverage of the Trump Trials—a first-of-its-kind project dedicated to providing in-depth coverage of the ongoing criminal proceedings against Trump in Washington, Florida, New York, and Georgia—please consider making a contribution here. Lawfare’s talented correspondents and analysts discuss the latest developments in the cases, explain the complex legal issues they raise, and consider what might come next in a wide range of content, including written analysis, podcasts, live and recorded virtual events, primary source document repositories, and infographics.

And that was the week that was.