The Week that Was: All of Lawfare in One Post

It’s been another crazy week, this one dominated by former FBI Director James Comey’s testimony before the Senate Select Intelligence Committee on Thursday. Benjamin Wittes and Susan Hennessey first answered the most frequently asked questions about Comey’s testimony in anticipation of Thursday’s session. On Wednesday, the committee released Comey’s written testimony: Susan Hennessey, Matthew Kahn, and Quinta Jurecic analyzed key takeaways from the written statement and Wittes gave his preliminary comments. Jack Goldsmith provided his reflections. And Robert Bauer examined what information the statement provided about a possible obstruction of justice charge against the President regarding his suggestion that Comey drop the investigation into Michael Flynn.

On Rational Security, the gang gave a pre-testimony roundup of the blizzard of new Comey news, including a dramatic reading of Comey’s written testimony by Shane Harris:

Jane Chong, Wittes, and Jurecic liveblogged Comey’s testimony on Thursday. For convenience, Kahn posted a special edition of the Lawfare Podcast, cutting the three-hour testimony down to just 75 minutes of hard exchanges about the facts.

Chong, Hennessey, and Jurecic took at look at what new information the Comey testimony provided, while Shannon Togawa Mercer and Sarah Grant provided updates on the reactions of prominent lawmakers. Hennessey and Timothy Edgar argued that there was nothing improper about Comey’s decision to disclose the contents of his memo documenting his meeting with Trump about Flynn to a friend, Daniel Richman, who passed the information to the New York Times.

Wittes provided his analysis of the testimony overall, and presented this question: “If you believe that Comey—whatever his faults and whatever his errors may be—is an honorable and decent human being, what do these three hours of testimony convey about the group of people in charge of what the Constitution quaintly calls ‘the Executive Power’ of the country in which we live?”

The Comey testimony seemed to keep the possibility of an obstruction of justice probe open, to mixed responses. Rick Pildes took issue with Alan Dershowitz’s recent argument that the President has complete control over all federal law-enforcement investigations, even those that impact himself and those around him. Adrian Vermeule argued that the use of Morrison v. Olson by Pildes and others is misplaced, as Morrison is now bad law.

Paul Rosenzweig commented on the mens rea aspect of an obstruction of justice offense—and how Trump’s best defense may just be, “I’m ignorant.” He also noted Special Prosecutor Robert Mueller’s addition of Deputy Solicitor General Michael Dreeben to Mueller’s team as “the worst thing that happened to Donald Trump this week.”

In the leadup to the testimony, Bob Bauer posted Part II of his analysis of how Trump’s private interests will interact with his constitutional duties as the investigation proceeds. And just in case, Russell Spivak gave us a “premature primer” on the details of how impeachment proceedings work.

Trump has also tapped Christopher Wray to serve as the next director of the FBI, pending Senate confirmation. Goldsmith praised Wray as “smart, serious, and professional,” and Chris Mirasola provided a more detailed background on Wray’s past experience. On a different note, John Bellinger noted the selection of Lawfare contributor Cully Stimson as Trump’s pick for General Counsel of the Navy.

Section 702 of the Foreign Intelligence Surveillance Act also had a big role in the news this week, including its implications for the Russia investigation, but the statute—which is due to expire at year’s end—was virtually buried by #ComeyDay.

On Tuesday, Jurecic posted about Senator Tom Cotton’s (R-AR) newly introduced legislation that would make Section 702 permanent. This came just a day before the Senate Intelligence Committee’s hearing on 702 which Chong and Jurecic liveblogged. Although the hearing was supposed to focus on 702, the panel of Director of National Intelligence Dan Coats, NSA Director Admiral Michael Rogers, Deputy Attorney General Rod Rosenstein, and Acting FBI Director Andrew McCabe unsurprisingly led to many questions regarding the Russia investigation. Jurecic pulled transcript highlights from the most crucial sections that dealt with L’Affaire Russe.

Robert Litt took issue with Coats’ and Rogers’ struggles to explain their refusal to answer senators’ questions about whether Trump had asked them to stop the Russia investigation, arguing that supportable response would have asserted that presidential communications privilege protected the contents of the conversations.

Wittes talked with Matt Olsen, former Director of the National Counterterrorism Center, about the future of Section 702 in this week’s Lawfare Podcast:

In travel ban news, the Trump administration filed for writ of certiorari in International Refugee Assistance Project v. Trump at the end of last week. Amira Mikhail and Jordan Brunner summarized the petition, as well as the government’s applications for a stay in both IRAP and Hawaii v. Trump. Josh Blackman posted the final two sections of his analysis of the Fourth Circuit’s en banc decision in IRAP, and considered how a recent Trump tweetstorm could impact the process. Alex Loomis also analyzed possible impacts of Trump’s tweets on travel ban litigation.

The Supreme Court granted certiorari in Carpenter v. United States, a major Fourth Amendment case. Jurecic posted background documents on the case, and Brunner and Emma Kohse gave us a summary of the case so far. On the National Security Law Podcast, Bobby Chesney and Steve Vladeck discussed just what’s so important about Carpenter. Chesney and Vladeck also talked about the arrest of Reality Leigh Winner, the government contractor accused of leaking a top secret NSA document to the media regarding alleged Russian interference in the 2016 election:

Nicholas Weaver took a look at what we can learn from the Winner case, arguing that this isn’t the start of a “war on leaks.”

In the Cybercrime Roundup, Sarah Tate Chambers reviewed the latest litigation. On the Steptoe Cyberlaw Podcast, the usual suspects weighed in on FISA, online censorship, and the U.S. Court of Appeals for the Fourth Circuit’s recent decision in Wikimedia v. NSA:

The U.K. had a general election Thursday as Prime Minister Theresa May attempted to gather support before looming Brexit negotiations. Michael Leiter provided pre-election analysis of May’s most recent proposals following the London terror attack. Mercer provided a primer on the election and gave us a rundown on the exit polling’s prediction of a hung Parliament.

In other European developments, Anders Henriksen and Jens Ringsmose reported on recent, highly unusual criticism of the U.S. government from the Danish prime minister.

J. Dana Stuster reviewed the week’s happenings in the Middle East, including the ongoing diplomatic crisis in Qatar. Suzanne Maloney analyzed the recent ISIS attacks in Iran, while Kenneth Anderson took a look at the recent report that the French military has been targeting French citizens fighting for ISIS in Iraq. In the Foreign Policy Essay, Zach Abels asked whether the Trump administration is casting aside the civilian side of counterinsurgency in the fight in Iraq.

David Bosco examined the Palestinian Authority’s recent approach to the International Criminal Court’s inquiry in Israel. Meanwhile, Chesney noted the recent arrest of two Hezbollah agents within the United States.

In this week’s Water Wars, Jared Dummitt and Eliot Kim noted Secretary of Defense Jim Mattis and Secretary of State Rex Tillerson visit to Sydney. Elsa Kania studied the Chinese military’s use of artificial intelligence.

And that was the week that was.