The Week That Was

Benjamin Wittes cautioned against apportioning blame for President-elect Donald Trump’s victory in the 2024 presidential election, suggesting energy is better spent considering the dangers of Trump’s intended reforms—especially those that fall within the well-established legal authority of his presidential powers. Wittes urged the use of careful legal and political strategies that—although unlikely to entirely prevent the damage that Trump and his appointed officials can inflict—may be able to slow down the administration’s efforts to undermine democracy. 

On Lawfare Daily, Wittes sat down with Alan Z. Rozenshtein, Scott R. Anderson, Anna Bower, and Quinta Jurecic to discuss what to expect now that Trump has won the 2024 presidential election, including potential policy goals of the second Trump administration, what to keep an eye out for during the transition, and more. The episode was recorded live, and is also available in unedited video format on Lawfare’s YouTube channel.

Wittes argued that justice was not served in the four criminal prosecutions of Trump. Wittes suggested that, while they may have created a comprehensive record of his alleged crimes, and the convictions in the New York case may have delivered a moment of significant humility, the Trump trials ultimately demonstrated that the justice system cannot rein in a tyrant if the American people do not want it to.

On Lawfare Daily, Wittes sat down with Anderson, Bower, and Roger Parloff to discuss how Trump’s victory in the presidential election will affect the criminal cases against him, his ability to pardon himself and his co-defendants, and more. The episode was recorded live, and is also available in unedited video format on Lawfare’s YouTube channel.

On Nov. 8 at 3 p.m. Lawfare Senior Editors Molly Reynolds and Jurecic spoke with Wittes about what Congress might look like after the 2024 election and how congressional accountability may function during the second Trump term. 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.

Larry Schwartztol considered the debate surrounding the constitutionality of the Electoral Count Reform Act (ECRA), analyzing language in the 12th Amendment to demonstrate that Congress does have the authority to pass legislation regulating the counting of electoral votes. Schwartztol also emphasized that the 20th Amendment, despite some contention, does not undermine the legal structure that underwrites the vote-counting process.

William Bernstein, Arianna Bufalino, Robert Debenedetti, and John Greenbergconsidered the complexities that would emerge in the case of a “contingent election” in which neither presidential candidate received a majority of electoral votes. The group evaluated four critical decisions lawmakers would need to make before conducting a contingent election, including voting thresholds, confidential proceedings, the death of a candidate, and uncertainties surrounding the Senate’s election of the vice president.

Anderson explained how the process for selecting a new president and resolving election disputes has changed since the enactment of the ECRA. Anderson explored the rules that govern the states’ selection of electors, how Congress regulates the casting of votes in the Electoral College, what rules affect how Congress counts these votes to determine the winner, and more.

Jurecic argued that, despite the failure of the two impeachment trials against Trump, the lethargic pace of the criminal prosecutions against him, and the willingness of the Republican Party to once again embrace him as their nominee, the House of Representatives—and the Jan. 6 Committee in particular—represents a crucial barrier against authoritarianism in the United States. Jurecic emphasized that this pushback against authoritarianism within the political sphere must be fortified by voters themselves through elections.

On Chatter, Shane Harris was joined by Tim Naftali to discuss Americans’ fascination with the presidency, including when the “modern presidency” began, when voters and the press became fixated on presidents’ private lives, what people get wrong about the nation’s highest office, and more.

In this week’s installment of Lawfare’s Foreign Policy Essay series, Riley McCabe analyzed U.S. domestic terrorist attacks and plots against the government since 2016, highlighting partisan political beliefs as the primary motivator for these incidents. Riley warned that, though attacks against government targets have been largely unsuccessful in causing mass casualties, the threat of violence can have detrimental effects on democracy. 

On Lawfare Daily, Anderson sat down for a special episode discussing Lawfare and Protect Democracy’s series “The Dangers of Deploying the Military on U.S. Soil,” with guests Alex Tausanovitch, Laura A. Dickinson, Joseph Nunn, Chris Mirasola, Mark Nevitt, Elaine McCusker, and Lindsay P. Cohn. Anderson and the guests explored several features of domestic deployment of the military, including the how and why, legal complexities, possible national security consequences, and more.

Matt Gluck and Hyemin Han discussed the ongoing case of Abd al-Rahim Al-Nashiri, the alleged mastermind of the 2000 bombing of the U.S.S. Cole. Gluck and Han analyzed the defense’s strategy, specifically their decision not to invoke changes to a key statute of the Military Commission Act (MCA)—which could force the court to exclude testimony from Salim Ahmed Hamdan alleging that Nashiri tested explosives. Under the revised 2009 MCA, Hamdan’s account could now be considered hearsay evidence as a result of cruel, inhuman, or degrading treatment, with explicit torture no longer forming the minimum threshold.

On Lawfare Daily, Wittes sat down with Daniel Byman and Tim Mak to talk through the latest news from Russia, including an old Soviet bioweapons lab showing new signs of life, thousands of North Korean soldiers arriving in Russia to fight against Ukraine, and Russian President Vladimir Putin’s apparently direct line of communication with Elon Musk.

In the latest installment of Water Wars, Aaron Baum, Nikhita Salgame, and Ania Zolyniak discussed news from the Indo-Pacific, including a joint patrol drill in the Arctic Sea between China and Russia, the recent BRICS+ summit, the conclusion of a Sino-Indian border agreement, U.S., Canadian, and Chinese naval activity in the Taiwan Strait, and more.

On Lawfare Daily, Eugenia Lostri sat down with Dakota Cary to discuss Chinese hacking group Volt Typhoon, including U.S efforts to deter the group, why Volt Typhoon won’t stop its intrusions against critical infrastructure, whether other hacking groups can be deterred, other ways to counter malicious activity, and more

In the latest installment of the Seriously Risky Business cybersecurity newsletter, Tom Uren broke down the news, including cybersecurity firm Sophos’s counterintelligence efforts against malicious Chinese hacking groups, the alleged Snowflake hacker’s arrest in Canada, the REvil ransomware gang’s sentencing in Russia, and more.

Pablo Chavez explored how governments around the world have begun to advance “sovereign artificial intelligence (AI)” by developing their own large language models. Chavez discussed governments’ motivations of self-reliance, sociocultural and linguistic preservation, desires to have a voice in the international governance of AI, and more. 

Kevin Frazier discussed SEC chair Gary Gensler’s warning against AI flash crashes, which result from selling spirals induced by algorithmic decisions. Frazier noted that while myriad regulatory solutions have been proposed to deal with AI flash crashes, action must be taken to avoid Gensler’s prediction from becoming a reality.

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.