The Week That Was

Benjamin Wittes discussed Special Counsel Jack Smith’s decision to file for dismissal of the Jan. 6 case in federal court in the District of Columbia, marking the end of a long-term effort to hold President-elect Donald Trump accountable for his crimes. Wittes argued that—though the prosecutions against Trump may have failed and can’t be maintained now that he is due to take office—it is dangerous to suggest that they shouldn’t have been pursued in the first place.

Wittes laid out fourteen things he’s thankful for—even as the second administration of Trump fast approaches—from the separation of powers that stopped Matt Gaetz from becoming attorney general to the diversity of federal judges, civil society writ-large, and more.

On Lawfare Daily, Wittes sat down with Chris Mirasola to discuss the legal and practical considerations surrounding a president’s ability to deploy the military at the U.S. southern border, including the implications of declaring a national emergency, the existing legal framework and historical context, the National Guard, building detention facilities, the Insurrection Act, and more.

On Lawfare Daily, Molly Reynolds sat down with Donald Sherman, and Michael Stern to discuss the Senate confirmation process and congressional oversight in the 119th Congress, including tools available to the Senate, legal questions around recess appointments, issues of congressional oversight to watch next year, and more.

Andrew Koppelman reviewed “American Heretics: Religious Adversaries of Liberal Order” by Jerome Copulsky. He describes the book as an “engaging historical survey” on the history of Christian theocratic opposition to liberalism in the United States that “unveil[s] the deep historical roots of contemporary postliberalism and national conservatism.”

On Chatter, David Priess was joined by Rachel Shelden to talk about the disputed presidential election of 1876, including the prevention of another civil war in 1877, Reconstruction by 1876, what happened on election day and night, Congress’s handling of contradictory election returns from three states, the creation and operation of the special commission created to resolve the issue, how Rutherford B. Hayes won, and more.

Chimène Keitner examined the International Criminal Court’s (ICC) decision to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu, former Israeli Minister of Defense Yoav Gallant, and Mohammed Diab Ibrahim Al-Masri, also known as Deif, the commander of Hamas’s al-Qassam Brigades. Keitner explained the ICC’s justification for each warrant, the details of the substantive charges, Nethanyahu and Gallant’s likely future as “fugitives from the international rule of law,” and more.

In this week’s installment of Lawfare’s Foreign Policy Essay series, Nadav Pollak discussed Hezbollah’s failure to anticipate Israel’s recent attacks in Lebanon. Pollak explained how senior Hezbollah leaders operated under the misconception that Israel would be unwilling to pursue aggressive military action to preserve its national security, and how Hamas’s Oct. 7, 2023, attack led to a “profound change” in Israel’s military strategy.

Justin Sherman discussed the recent expose published by WIRED, Bayerischer Rundfunk, and Netzpolitik.org detailing how U.S. data brokers legally provide foreign actors with affordable and reliable ways to track the movements of American military and intelligence personnel. Sherman discussed how U.S. data brokerages and aggregated geolocation data pose an active operational national security threat, potential ways to address this problem, and more.

Francesca Lockhart and Karl Lockhart pointed to the lack of coordination in cybersecurity incident disclosure, suggesting that existing regulation fails to provide useful information to the public, overburdens companies, and poses national security risks. The Lockharts suggest that the Cybersecurity and Infrastructure Security Agency’s (CISA) current rulemaking proposal under the Cyber Incident Reporting for Critical Infrastructure Act (CIRCIA) may provide a more harmonized cybersecurity incident disclosure framework, especially in light of the Loper Bright decision.

Itsiq Benizri and Ekaterina Fakirova examined former President of the European Central Bank Mario Draghi’s report, evaluating his theory that the EU’s comprehensive digital regulation may be acting as a barrier to Europe’s progress in the digital revolution. Benizri and Fakirova suggested that the Draghi report is unlikely to produce regulatory change as a result of its timing and a lack of political will.

On Lawfare Daily, Paul Ohm sat down with Alan Z. Rozenshtein, Chinmayi Sharma and Eugene Volokh for a conversation on artificial intelligence (AI) regulation and free speech, AI liability, and more.

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And that was the week that was.