Lawfare Daily: Ask Us Anything About 2025

[Intro]

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Audience Member: Would it be legal under the law of war for the United States to blockade oil to China in a Taiwanese invasion?

What are the pieces of legislation that are needed from Congress in order to constrain the executives?

Congress can delegate some of its power to the executive, so why can't the executive delegate some of its power to the Congress?

Anna Hickey: It's the Lawfare Podcast. I'm Anna Hickey, associate editor of communications at Lawfare, bringing you Lawfare’s yearly ‘Ask Us Anything’ mailbag episode.

Audience Member: As we watch institutions fall, do you believe the legal institution comprised of all its entities, large and small, scattered around the country is currently withstanding the onslaught our civic institutions are facing?

Does the pipe bomb defendant have a colorable argument that he's pardoned?

I'm wondering, after the Trump presidency related to the Emoluments Clause and other laws, if there can be any clawback?

How, how could, how can they be expected to keep their bar license when everything's said and done? Because everything they're doing is, is the antithesis to the Constitution?

Anna Hickey: This year, Lawfare contributors answered your questions on topics like the Trump administration's airstrikes on alleged drug smuggling votes in the Eastern Pacific Ocean and Caribbean Sea, President Trump's pardons of the January 6th defendants the deployment of the National Guard in cities around the country, and so much more.

[Main Podcast]

Audience Member: Hi, my name's Chad Bailey. I'm calling from Ann Arbor, Michigan, and I'm calling about a potential future conflict between United States and China over Taiwan. I recently heard a podcast with Professor Williams Daniel of University of Pittsburgh, in which he said that part of China's decision to embrace green technology, including a lot of electric vehicles, is to reduce its reliance on oil that it has to have shipped in through choke point.

First of all, would it be legal under law of war for the United States to blockade oil found to China in the case of a Taiwanese invasion? And secondly, if any of the military thinking about, you know, future strategy are considering that with the United States, so stepping away from electrification, it's handing China more, somewhat of a more strategic advantage in the island chain around China?

Because the Chinese are less reliant on oil while we, well, our, our bases and our troops and our forward deployed bases are all more reliant on oil than that had us an advantage. Anybody think about that in Washington? I would love to hear perspectives on it especially the legal angle to it of whether the blockade would even be legal. Thanks. Bye-bye.

Scott R. Anderson: This is Lawfare Senior Editor Scott R. Anderson. Chad, really interesting questions here about Taiwan. It's kinda two different sets of questions. Lemme break them up and take them into kind of two chunks.

First, about the legality of a blockade. This is like a little bit more of a straightforward question. A blockade is an act of war under an international law permissive one, if it meets various conditions including that's properly noticed that it's effective, that's relatively neutral, but it has to be, have a legal basis under international law. That means like much like any military response, it would have to be justified barring UN security council authorization, which almost certainly would not happen here 'cause China has veto power as an act of self-defense, individual collective self-defense under international law pursuant to Article 51 of the UN charter and the, the inherent right of self-defense that it recognizes that kind of predates the UN charter and, and is a product of customer international law that right. Is a little complicated in the Taiwan case, 'cause that's Taiwan.

Of course, the United States does not recognize Taiwan as an independent country that can make those self-defense claims. My strong suspicion is that if there were a war over Taiwan, the United States wanted to pursue a military response, it would not have trouble very quickly recognizing Taiwan as an independent country and then acting in collective self-defense with it. That is a possibility. The U.S. carefully worded U.S. position on Taiwan actually hasn't expressly excluded that the U.S. position officially recognizes the Chinese view that there is, but one China on both sides of the Taiwan straits.

I forget the exact formulation, but something to that effect. It's essentially deferring to the Chinese perspective. It's not ruling out the possibility that maybe we would recognize Taiwan as an independent country at some point. And so, you know, I, I do think that's actually the argument that would most likely get rolled out.

Or if China were to take, you know, preemptive military action against the United States or against Japan or the Philippines or other places. The United States has relationships, the United States could act in collective self defense of them. Then there would have to be a relationship between, at least to be lawful for between the blockade and, you know, the military objectives that China's pursuing with oil.

If it really is being used in a, a Chinese military campaign that the United States. Is acting in self-defense in response to collective or individual. That's not a super hard line to draw. So I don't think that would be, I suspect that that would be, there would be a lawful way for the United States to do that if it came down to it.

Practically it might be very difficult given the sheer avenues China has of accessing the Senate. Of course, as you know in your question, they have been developing alternative energy sources in part to limit reliance on oil. Your question about the U.S. reliance on oil is an interesting one. 'Cause you're right, you know, reliance on oil obviously does post certain strategic concerns.

Even for a country like the United States, which has its own substantial oil and other kind of carbon based fuel resources that are brought to bear and very strong aligned systems to, to have access to it internationally if it needed it particularly in the event of a conflict. This poses a practical logistical challenge in that you do have to move oil places in substantial volumes to rely on it heavily, and that is actually a huge logistical challenge for any military endeavor, not to mention commercial and civilian endeavors as well.

This is part of the reason why a lot of people in the defense department have talked about alternative energy sources for a long time. They've been part of U.S. strategic and defense planning for a couple decades under Republican and Democratic administrations, precisely because they really do have strategic benefits as an alternative there.

That's also why you see things like nuclear submarines, right? So they don't have to rely on it so they can stay underneath the water and don't have to refuel as frequently. And there's talk about, you know, using similar fuel vehicles in other contexts or certainly in outer space in places where logistically getting fuel there is not practical in the volumes you would need at for substantial space operations.

So it's a long and short way of saying essentially this is part of the strategic planning and discussion. The politics around climate change really, I think, make it difficult because, again, this isn't just about. Greening the defense department, or you know, making it more energy efficient and environmentally friendly.

Although it does have that consequence in many cases, it really is about effective war fighting. And so I don't think it's gone away entirely. And by any means, even under this administration, my suspicion is that it's being framed differently, discussed differently, and frankly just deemphasized. But it's been a pretty consistent theme by my understanding in a lot of us defense planning for a number of years now. I don't think that's gone away.

Anna Hickey: This question is from Jonathan Crom. For the boat strikes, it's been reported that some of the boats are in the Pacific Ocean. Venezuela doesn't have a coastline in the Pacific. Is there any rationalization for how this is connected to Venezuela?

Natalie Orpett: This is Natalie Orpett. I'm the executive editor at Lawfare. Thanks for this question, John.

I'll say as a preliminary matter, that part of what's confusing about all of this is that the administration's legal explanation of its boat strikes has been muddled and sometimes contradictory. So sometimes it sounds like we're in an armed conflict with Venezuela, though the administration has avoided saying that we're actually in a war. It's instead calling it a pressure campaign on Venezuela sometimes.

On the other hand, it sounds like we're in a conflict with what the administration is calling narcoterrorists or designated terrorist groups or things like that. And there's actually some overlap there in a way, because one of the more than a dozen different groups that the administration has grouped into this category of narco terrorists is a Venezuelan gang called Tren de Aragua.

And in a completely different legal context, the administration has tied Tren de Aragua to Maduro, who's the president of Venezuela. And that's been for the purposes of an entirely different legal regime, which is the Alien Enemies Act, which the administration is trying to use to deport immigrants, especially Venezuelans on an emergency basis.

But back to the boats the boat strikes, the administration is not actually pointing to Venezuela as the ultimate target. It's pointing to these narco terrorists. So if you're accepting that view, then Venezuela as a geographical area doesn't make a difference. So it wouldn't matter if the boat strikes are happening off of its coast or somewhere else, entirely.

Either way, if the administration wants to claim that basically using drones to kill potentially unarmed people in boats is not just straight up murder. It needs to be able to argue that as a legal basis, we're in some kind of armed conflict which is a legal term of art for war. So the legal rationale that the administration is offering for the boat strikes is that we are in what's called a non-international armed conflict, which is a legal term of art that distinguishes wars with non-state armed groups, which it's calling these narco terrorists from international armed conflicts, which are the more traditional kind of war between one country and another country.

And that's the type of war that we would be thinking about if the administration were saying we were at war with Venezuela, which it's not saying. So the administration is defending these boat strikes as legal on the grounds that number one, the boats are carrying drugs, which are an imminent threat to Americans and should be thought of the same way you could think of bombs or chemical weapons or things like that.

And number two, that the people in the boats are terrorists, which makes them legitimate targets for the use of force. And here, I can't resist a quick note on that second point because it really can't be emphasized enough. This is something that is just pure legacy of the legal arguments the U.S. government made after September 11th.

The administration is acting like once you call someone a terrorist, that makes it okay to use military force against them. That's not actually how the law works. The designation of terrorist is something that has a domestic context. It's for things like imposing sanctions. If you want to legally target someone with military force, you can't just call them a terrorist.

They have to meet the requirements under international law of being a combatant and in a non-international armed conflict, which again is what the administration is claiming we are in. To be a combatant, you have to be in what's called an organized armed group, and there's a lot of explanation here for why these multiple different cartels that the government has designated don't fit the definition of an organized armed group.

But I won't do that here. I will just end on one last note, which is to say that this whole discussion is relevant only in so far as you're willing to accept the administration's claim that we're in a non-international armed conflict at all. But you shouldn't because we're not. From an international law perspective, the conditions for a non-international armed conflict are simply not met for a number of different reasons.

From a domestic law perspective, Congress has not declared war and hasn't even passed legislation authorizing the president to use military force the way that it did after nine 11. So the bottom line really is that the boat strikes are illegal under international law and domestic law, whether they're happening off the coast of Venezuela or they're happening in the Pacific.

Anna Hickey: This question is from Matthew. I was curious if anyone had tracked down the two survivors of the recent boat attacks, given the administration declined to bring them into custody to prosecute them for drug running. It would seem they weren't involved in smuggling. Wouldn't it be easy to track them down, establish who they are, and put another hole in the administration's justification for the attacks?

Natalie Orpett: This is Natalie Orpett. I'm the executive editor of Lawfare. Thanks for this question, Matthew. I think you're talking about the two survivors of a boat strike in October, whom the administration captured and repatriated to their homes in Columbia and Ecuador. There was a New York Times story last week or the week before.

So talking about the decision making in the Pentagon about that. If there was another one more recently with two survivors I apologize, but I'll be talking about that one. The media did track both of them down and identified them by name and we know that they were both hospitalized and then released and that neither country chose to prosecute them.

I haven't seen any reporting about either of them since then, though of it's possible. Of course, it could be in Spanish language press, so I don't think we quite know what facts we could or couldn't establish about them. But yeah, I think in theory if someone tracked them down and figured out that they were not drug runners for example, that would certainly undermine the administration's legal theory.

I don't think it's quite accurate to say that just because Columbia and Ecuador didn't prosecute that necessarily proves that they weren't smuggling drugs. Those countries could have determined that they didn't have jurisdiction to prosecute a crime for some reason, like if the activity had never touched their territory or something like that.

It would depend on those countries, criminal and jurisdictional laws. And of course, it's also always a matter of discretion whether to prosecute. I think the more important thing about the situation is that it really exposes that the administration knows its legal theory is wrong, or at least it's likely to fail if it somehow ends up before a court.

It's arguing that we're in a non-national armed conflict. It's designated a bunch of drug cartels as terrorists, and that's supposedly who the conflict is against. That's the legal justification for why it's okay to kill them on boats rather than doing what has always been done in the past, which is to send the Coast Guard to intercept the boats, arrest the suspected drug runners, file criminal charges, and try them in U.S. courts.

The thing is, if this is a war like the administration is claiming, in order to be able to shoot them, we're out of the realm of U.S. criminal law and into the realm of the law of war, which makes sense if you think about it. When you're at war, it's not always illegal to kill someone, whereas it generally is under regular criminal law.

Under the law of war, you would have authority to detain the survivors of boat strikes without having to prove a crime. Which of course raises the question of why the United States is not simply retrieving the survivors and putting them in military detention. And the reason is that the government tried to do that with Guantanamo, and the Supreme Court eventually said you can't just put people in there without some sort of process.

So to be more specific, what happened is that the Bush administration sent hundreds of people to Guantanamo without making any showing to anyone that they were legally detaining them. And under the law of war, you can't detain civilians or non-combatants. So just because you're war doesn't mean you can throw anyone in detention.

So some of the detainees Guantanamo filed habeas corpus cases in regular U.S. Article III courts. The government tried to argue that the detainees weren't entitled to habeas rights, and the Supreme Court said, no, that's wrong. They do get habeas rights. So all of that is to say that if the Trump administration detained survivors of boat strikes in a law of war framework under detention authority, that comes with the law of war, the U.S. law now clearly says that those survivors would have a right to be heard in court and the government would have to provide sufficient proof that they were being lawfully detained.

So here that means they'd need to have proof that these people were combatants and they'd probably need to have to convince a court that were even in a law of war context at all, which I think we're absolutely not. So the fact that the administration is not detaining the survivors is to me, really just a demonstration of the fact that it doesn't think it can successfully prove that these people are combatants at all or that we're in an armed conflict or probably both.

The alternative option for the government would be to bring the survivors to the United States and bring criminal charges against 'em. But that would introduce all sorts of problems too, which is probably, again, why the administration is not doing that. And most of those problems are because the defendants in criminal trials have certain rights, whether they're American nationals or residents or not.

So for example, the evidence that the government could use in a criminal trial against survivors of boat strikes the evidence that they could use to show that those people committed crimes would have to comply with the Fourth Amendment and other evidentiary requirements. And the survivors would absolutely have claims on the basis of how they were treated before getting to court.

And from the broader context, which would again, get all of these questions about the viability of the administration's legal theory before a court. And to your point, this would obviously get to the factual questions as well. Those would have to go before a court as well, like whether these individuals were even smuggling drugs at all.

So I guess the bottom line is yes, it is certainly the case that if we could get more facts, it's possible that it could really blow a hole in the administration's legal theory and justification for the boat strikes, and particularly for the ones involving these two individuals in October. But the administration is very clearly, very intentionally and for very obvious reasons, avoiding at all costs, getting before a court.

And it's not only because they may not be able to prove that the people were smuggling drugs.

Anna Hickey: This question is from Woon-Wah Siu. Assuming the answer is that the defense department can't strike boats in international water without congressional authorization, is there any way Congress or others can challenge such actions?

Scott R. Anderson: Hey, Senior Editor Scott R. Anderson here. This is a great question and it really gets to the heart of a lot of the debates around constitutional war powers and the separation of powers in the United States. The president asserts really broad authority to use military force without congressional authorization, not unlimited, but, but fairly broad.

And, and to a threshold that seems to not readily be met by even these maritime strikes. There's usually the three limitations are it has to be pursuant to U.S. interests, which is a very broad deferential standard, has to be of a nature scope. And duration that does not rise to the level of a war for constitutional purposes.

A lot of terms of art in there, but essentially it means it can't be a major, major conflict the Korean War, Vietnam War, maybe something shy of that. But that's kind of the, the standard you've seen the executive branch talk about the most is the threshold for that line.

And the third kinda implicit requirement, but it's there in most of the executive branch legal views to some extent and its approach to things like the war powers resolution 1973 is Congress can't have contravened it. The president's broadest scope of authority without congressional authorization comes in the context of congressional silence.

And that reflects the famous Youngstown framework that is often used in foreign relations, separation of powers, disputes that says essentially where the President is acting pursuant to congressional authorization. He's at the maximum authority. One, he is acting in congressional exile. He may still have substantial authority based on historical practice and other factors.

And often practically modern Supreme Court seems to suggest the president has a lot of authority to act where Congress is silent, but where Congress restrict something and the president's acting contrary to that, a restriction, the president is supposed to be acting at his lowest of authority. So he is supposed to be kinda at his weakest point, and he is really only supposed to be able to do that if the Constitution gives him exclusive authority to do that in a way that Congress can't touch, and that's not something that's clearly exists in regards to the use of military force.

The executive branch has really only asserted that exclusive authority. In the very limited context, or ex exclude, I should say, asserted and relied on it in certainly really narrow context regarding the acts in defense of U.S. nationals in the United States. Like very core self-defense acts, there's take lots of other military actions in pursuant to self-defense, but most of those don't have to make that exclusivity argument.

Here we're really thinking about things like the Mayaguez incident that occurred shortly after the end of the Vietnam War. And to some extent this is discussed in the legal opinion supporting the Soleimani strike in 2020, although not clear relied upon. This all becomes important because this is the lens through which congressional action pushing back on presidential uses of military forces is gonna be viewed.

Right now the president is still acting in his zone where Congress hasn't acted to restrict his authority. So it's still in that middle zone, often called the zone of twilight, the Youngstown framework where the president has brought authority. I've argued in a piece for Lawfare that actually, there's reason to see these strikes as much closer to the third category, the most restrictive category, because this is a sort of action that is usually prohibited by murder statutes and the exception for murder statutes that's usually applied to U.S. overseas.

Military action is usually constrained actions that are consistent with international law as applied by the United States under the public authority exception, and that these aren't, that, that the maritime strikes because they're targeting criminal activity. It's something the United States really has not done in the past, and it is in real tension with a lot of us views historically, and practices historically.

So I've argued that there actually is a foundational constitutional question whether the president even has this authority, but that would be made even weaker or the, the, the president's story would be even more demonstrably weaker. If Congress were to enact a contrary legislation that restricted, that could, could be through an NDAA or conventional legislative process, or it could be through the expedited procedures that exist under the War Powers Resolution and related legislation enacted a years afterwards, which basically say in the Senate, there's a process for expediting joint resolutions, which have the force of law, but still require or subject to penitential presidential veto, where you can force a number of votes on these.

We've seen this happen in a number of contacts, including Iran and Yemen during the first Trump administration, there was efforts to have a vote on some re resolutions related to Venezuela, but they haven't been adopted or gotten past that first procedural hurdle yet. If a joint resolution were enacted and were to overcome a presidential veto, that would be a pretty clear sign that the President's authority is restricted by statute, by Congress.

Short of that, even if it's veto by the president, I still think it's an indicator that the president's authority is more limited. But the problem then you run into is you gotta get this in front of a court for a court to rule that that's the case, and to issue restrictions on the president and say the president's authority is restricted.

Notably, courts have really been historically reticent to intervene in war powers disputes. But the number one condition that most of the courts have refused or declined to do so on a variety of just disability grounds. The circumstance where they say they would get involved is if there's a clear conflict between the branches.

So if Congress did something to clearly restrict what the president's acting on and shoved everything into that category three of Youngstown where the president's authority at its lowest tab, then they say, well, that's not a political question that warrants the, the sort of judicial intervention that usually we try and avoid.

And notably, the Roberts Court has actually said something very similar in the context of the Alvarez decision in 2012 that essentially narrowed the political question doctrine in cases of clear conflict between the two political branches. All that is to say in the U.S. legal system, to get a court to rule on these sorts of fundamental questions, you're probably gonna need to see a pretty clear sign that there's a conflict between Congress and executive branch, and that means Congress enacting restrictions or maybe the fact that murder statutes are on the book are intention with what the Trump administration is doing.

And by the way, they're also past that 90 day war powers resolution line that the war powers resolution says if you go past 90 days, you need to get congressional authorization. There are lots of legal arguments. Executive branches used to bust pass that in the past that could be used here, but you know they've never really been tested in the court.

Maybe that combination of things is enough that some court somewhere will step in and say, yeah, we actually will say we need to restrict this. Now to get you to that point, to get to the point where a court can't even consider raising this, you also need to get a cause of action that will get this before the court.

Now maybe that is a service member suing to try and not have to execute an unlawful order. We saw that in the Smith v Trump cases about deployments to Syria, that that actually never reached the merits, but it's a possibility. Maybe it'll come if there is from someone killed or someone whose family member is killed or injured.

One of these attacks, particularly if they're a U.S. national. I haven't really been able to figure out a clear legal path by that, which that's likely to happen, but maybe you could see an alien tort statute case at least proceed up to a certain point in the lower courts. And although we know that Supreme Court is fairly hostile to that.

The other things you could see is in detention if they end up detaining people. So far, the Trump administration has avoided that quite deliberately by repatriating the only two people who have survived attacks and been captured to their home countries instead of detaining them. But if they did detain someone, you could see a habeas action result in judicial avenues.

These aren't the only three paths. These are just the three we're most familiar with from the global counter-terrorism operations. So there are other litigation risks out there. I think that no novel litigant will come up with a theory and persuade some court. Yeah, you know what? There is some legs here and maybe we'll get all the Supreme Court, but it could cause a lot of awkward litigation in the meantime.

Long story short, that's why the executive branch really does try and lawyer these things. They actually do try and have legal arguments to support stuff, even though they rarely get meaningfully contested in the courts, and they will push the envelope. But this maritime strike campaign pushes the envelope way further than the executive branch has before in my view.

And that's something that may come back and bite the Trump administration, particularly if Congress steps up and starts expressing its contrary views. More assertively.

Audience Member: Hi, this is Ann Wayne Scott. I'm calling from Oxford, Ohio. I use Ben Wittes Law and the Long War book in my class on terrorism and counter-terrorism, and I've been wondering in recent months to what degree the dynamics he described in that book applied to the present moment.

In particular, I'm interested in his description of how when the legislature fails to legislate, we see executive overreach and that same dynamic exists under the second Trump administration. And if so, what are the pieces of legislation that are needed from Congress in order to constrain the executive? Thanks.

Benjamin Wittes: So that is a book I wrote a rather long time ago, and the world has changed quite dramatically since I wrote it. The book was about counterterrorism policy in the late Bush administration, and I, in retrospect, disagree with a lot of the specific policy conclusions that I drew at the time. The more detailed that the policy issue gets, the more specific that it gets, the more likely one I am to think of what I wrote at that time as wrong or even really wrong depending on what the issue is.

That said the specific dynamic that you ask about, I do think the book is still spot on about, which is that in the context of the counter-terrorism policies of the period, there was this propensity of Congress to kind of ignore things and let the executive branch develop these whole fabrics of law until the Supreme Court steps in and kind of forced it to act.

And you ended up with the major policy making engine being a dialogue between the executive branch and the courts with Congress kind of piping in after the fact often to largely ratify settlements that the courts and the executive had already reached. There were important exceptions to that.

But that does seem to me to be a fairly good harbinger of the environment now, at least in which the president and the Congress are of the same party and Congress is therefore not playing a significant oversight role, let alone a legislative role. By the way, nothing like the role that it played in the context of the war on terror where it, it did play a substantial oversight role in important ways.

Here you have Congress largely sitting out the major policy questions of the day, the executive acting very robustly and often very illegally. And the courts are the principle response in inverse relation to their level of authority. So the district courts are both the frontline response and the most aggressive.

The circuit courts are less aggressive, and of course the Supreme Court is the most deferential. And I think that is a pattern that follows the one that I laid out in Law and the Long War only. It is accelerated very dramatically. And the important thing that's missing from it is Congress coming in at the end and passing regimes like the Military Commissions Act or the various detention authorizations or the authorization for the, what was originally the warrantless wire tapping program and ultimately evolved into the 7 0 2 program, largely through congressional action.

So whether Congress will ultimately come to play the role that that book called on it to play as a general matter, although obviously I, I do repent some of the specific policy recommendations for Congress to enact. I don't repent at all the sense that it was an underperforming actor then it did better after the book was published actually. And whether it will play that role in the future or not is I think the ultimate answer to the question of whether that dynamic described in the book is still an accurate one.

Anna Hickey: This question is from Connor Craft. Could Congress strip appellate jurisdiction from the Supreme Court over certain cases, say appeals from injunctions against executive branch agencies or officials while still leaving jurisdiction over the underlying cases with lower courts? I know Congress can generally strip jurisdiction from the courts as a whole for certain classes of cases, but would stripping jurisdiction from only the Supreme Court and not lower federal courts violate Article Three because the Supreme Court would in effect no longer be Supreme at all with respect to the relevant cases.

Eric Columbus: I am Eric Columbus, a senior editor at Lawfare, and I'm gonna give you an unsatisfying answer, which is that nobody knows law professors have pondered this issue for a long time, especially over the past 75 years or so. And there are not many Supreme Court cases on this, and it's really a big imponderable.

So there's the exceptions clause in the Constitution, which you may know about in Article three, section two, clause two which after it sets forth the scope of the Supreme Court's original jurisdiction. It says in all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact with such exceptions and under such regulations as the Congress shall make.

So that contemplates exceptions and. Some said that Congress has implicitly made exceptions by giving the Supreme Court jurisdiction statutorily that is somewhat less than the full scope of what it's arguably entitled to under Article three or whether what it, what's allowable to it. Under Article three, starting with the Judiciary Act of 1789, Congress made affirmative grants of jurisdiction and one might say that the gap between those grants and the full scope of Supreme Court Power under Article III constitutes exceptions under the exceptions clause.

Now. arguably stripping jurisdiction from the Supreme Court for a certain specific issue is easier to justify than stripping that jurisdiction from all courts because there would still be some courts that is lower courts available to dispense justice and vindicate rights. On the other hand, that is somewhat in conflict with language in Article Three at the beginning of Article III that says that the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain an established which suggests that to the extent there is judicial power, it has to be vested in, in a Supreme Court.

So you begin to see why this is, is perplexing. Again, is the Supreme Court really gonna let Congress interfere in this way and, and take cases away from it? Especially in this, in, in your hypo, which I, I presume means that a situation where Congress is withdrawing jurisdiction, not for administrative or bureaucratic reasons, but because it doesn't like how it thinks the court is going to rule in that class of cases.

There there is one 1872 case called Klein, in which the Supreme Court invalidated Congress's attempt to restrict its jurisdiction where it was clear that Congress was doing so in order to dictate the outcome of one specific, of the specific case before the court. So, your hypo is a little bit different from that, but there is some similarity that might give reasons to suspect that the court would not, not like it, but.

It's tough to say. There are a lot of interesting law review articles on this if you are so inclined to read. And also president Biden's Supreme Court Commission in 2021 discussed the issue as one of various Supreme Court reform proposals, and they too concluded that basically no one knows what the result would be if Congress attempted to go down that road.

Audience Member: This is John from Battle Creek, Michigan. Congress can delegate some of its power to the executive, so why can't the executive delegate some of its power to the congress? I mean by signing legislation, creating the Consumer Financial Protection Bureau has not, the president voluntarily limited his power to unilaterally fire board members to only being able to fire them for just cause.

And that's even assuming the unitary executive theory is correct. There's something I don't understand. Thank you.

Benjamin Wittes: It's a very clever question, but I'm afraid the answer is, it's a little bit too clever by half. And here is why when Congress creates a, a delegation it is because there is some interpretive and interstitial legislative power inherent in the act of executing.

So when you, when you authorize the president to execute the following law. There's necessarily some degree of interpretive function in what is covered by the law. And when you do that, there is some degree of filling in the gaps. What is sometimes called an interstitial legislative function that is inherent in the act of enforcement.

We're applying it to this situation, but not this situation. There is no reciprocal relationship where the act of appointing somebody or the act of signing a, a law creates a, a functional delegation of the authority to, you know, to to execute the law. And so this is a little bit of a one-way ratchet, which is why for a long time there have been, there's been a discussion of what legislative power Congress can and cannot delegate to the executive, but there is no reciprocal discussion of what executive power the president can give to Congress.

Now, there is a question of course, and John's question here flags that question, which is what executive power and specifically in the form of the appointments clause Congress can seize from the president by limiting his ability to appoint or remove people.

But I have never seen the argument made that there is consent in the act of signing the bill. And I think the reason for that is that the president of course, might be able to consent on his or her own behalf, but presumably cannot consent on behalf of all future holders of the presidency. And so, by the way, Congress, when it passes a law that effectuates a delegation.

It can't delegate on behalf of all future congresses either. The delegation is either a proper one or it is an improper one. And if it's improper, it's improper vis-a-vis itself as well as all future congresses. So again, that lack of parallelism between the branches matters here. And just as one Congress cannot bind the next Congress, one Senate or a Senate, the Senate is a continuing body in its own rules, but not for legislative purposes, right? Congress cannot bind the next Congress with respect to giving away its powers. And similarly, a president cannot bind the next president.

Anna Hickey: This question is from Edward Dunley. One sees musing or foreboding that a Republican House speaker, presumably Mike Johnson might refuse to seat some Democrats elected in the midterms in 2026, but how would that occur on January 3rd, 2027, there will be no speaker unless the new members of the House elect someone.

Eric Columbus: I'm Eric Columbus, a senior editor at Lawfare, and you're right, Mike Johnson couldn't refuse some Democrats who were elected at the start of the next Congress because as you note, he wouldn't be speaker then. There's no speaker until the members are seated and vote to elect the speaker.

But there could, in theory still be shenanigans on that day, unlikely but possible. Theoretically the House clerk, a man named Kevin McCumber, who has served in that role since 2023, is required by law to make a, a list of the representatives elect, and including only people whose credentials show that they were regularly elected in accordance with the laws of their states or the laws that the United States that statute can be found at 2 U.S.C. 26.

But what if there's a dispute at the state level about who actually won the race? Now, this has happened twice before at the beginning of Congresses in 1839 and in 1863. During the 1838 election, there was a dispute as to the winner of certain races, New Jersey, which at the time elected its representatives at large that is statewide rather than by district.

The dispute basically threw the house into chaos, which resolved only when Representative John Quincy Adams, the former president, basically climbed into the chair and helped steer the conflict to a resolution. The whole saga took about two weeks in the 1862 election in the middle of Lincoln's term, and thus in the middle of the Civil War.

Democrats hoped to exclude 16 Republican seats in which they claimed the military had improperly interfered to disenfranchise voters. The clerk at the time was a Republican, but one who apparently had soured on Lincoln. He did exclude the 16 Republican seats. But then the members who were seated voted to overrule him and seat them, and the Republicans retained control of the house.

For more information on these historical sagas I recommend an excellent book by a man named Edward Foley called Ballot Battles, the History of Disputed Elections in the United States. And he just revised the book in 2024. I hope he does not need to revise it again after 2026.

Anna Hickey: This question is from Hillary Altman. What would happen if the governors of California, North Carolina, Georgia, Illinois, et cetera, proactively asked the National Guard troops to come into their states to protect citizens trying to vote legally for the 2026 election? Would the governors then retain control of the troops on the ground if the president tried to federalize them as well as their purpose for being there?

Loren Voss: This is Lauren Voss, Public Service Fellow at Lawfare. First, what missions the National Guard are allowed to do at the order of their governor, including protect citizens trying to legally vote depends on state law. So whether or not they could do the mission depends on various state laws and might vary from state to state.

To your core question, governors proactively deploying their National Guard troops would not prevent the president from having the authority to federalize them and redeploy them for a different mission. First, if governors use their own national guards are invited in another state's National Guard, they'll be doing so under a state active duty status.

If the president wants to activate troops in a hybrid Title 32 status, remember that's a federal mission, but the state retains command and control. The president would need the governor of the troops to approve. However, if he activates those troops in a Title 10 federal status, he does not need the approval of any governor.

He can do so, even if they're currently activated in another status like state active duty. We explicitly saw this with some invocations of the Insurrection Act in the civil Rights era, and the Insurrection Act is part of Title 10. Probably the most famous example was President Kennedy. In 1963, Governor Wallace of Alabama deployed his Alabama National Guard to prevent desegregation at schools in three cities, which violated numerous court orders on desegregation.

President Kennedy federalized the National Guard and then ordered them to withdraw from the schools, allowing black students to enter. Obviously this isn't factually comparable to this scenario in your question. In the President Kennedy case, the governor was using the National Guard to defy court orders and was violating the rights of black students.

However, from a legal standpoint, the president can federalize National Guard members as long as the predicate situations in whatever statute he's using are met. I will note that some states, California, Texas, Florida, Virginia, to name a few, have what they call state guards or state defense forces that are not part of the National Guard and can be called up by the governor, but cannot be federalized by the president.

You also have state and local law enforcement that could be used to protect citizens. Thank you for asking your question.

Anna Hickey: This question is from Tiffany Sito. As we watch institutions fall, do you believe the legal institution comprised of all its entities, large and small, scattered around the country? Is currently withstanding the onslaught our civic institutions are facing? If yes, do you foresee it withstanding three and a half more years? What are the weak points and strengths of the legal bulwark in this country?

Natalie Orpett: This is Natalie Orpett. I'm the executive editor of Lawfare. Thanks, Tiffany. This is such an important issue and to be honest, it's really been breaking my heart.

I've been really ashamed of a lot of lawyers. There have been times when some DOJ lawyers have avoided questions or made misrepresentations or just straight out lied in court. Apparently there are lawyers in DOD or the White House who are okaying blatantly illegal military actions, and apparently there are lawyers in other agencies who are creating legal theories that rationalize facially absurd things like deporting people to CECOT and ending birthright citizenship and things like that.

I guess that's sort of a weak point. Lawyers have the intellectual training to make any argument. That's just part of the training. But we're also supposed to have the ethics to refuse to make the ones that are facially absurd. I'm particularly ashamed of the big law firms that made deals with the Trump administration.

They let themselves be extorted, even though they knew that what Trump was doing was completely illegal, and frankly, even if it hadn't been agreeing to those kinds of conditions, was just a pure abdication of the role that lawyers are supposed to play in a society like ours that's supposedly built on the rule of law.

And I know this doesn't seem all that important to some people because it's just a bunch of fancy, big law firms, but it's really impossible to see all of the damage that it's doing. Because people who need lawyers aren't getting them. So you're not seeing who's not in court. That means their rights are not being protected.

But it it means also that the media and the public are not learning about what happened to them. So if you think about it, the, the only reason we know about things like CECOT is because lawyers brought those cases to court. The press can't report on everything. Some things only come out in court. And lawyers are vehicles for justice ideally, but also they're just vehicles for truth telling and transparency.

I think another piece of this is the Supreme Court unfortunately deserves a lot of blame too, and I'm actually not talking about the outcome of cases or legal reasoning that they use, though I have a lot of problem with those two. I'm really just talking about the fact that the justices know that a lot of people think they're just reflexively doing whatever Trump wants, and instead of being circumspect about how to restore the court's legitimacy, they're lashing out.

They're using the shadow docket for things that it was not designed to do, which means they're not giving the sides the hearings that they're due and they don't write opinions that will actually be informative to the public. And they're accusing lower court judges of willfully defying orders that are completely unclear, and some of them are actually just writing ad ho minimum attacks on other judges.

It's, it's really distressing. So all of that said, other parts of the legal profession have been really inspiring. I think a lot of lower court judges and state judges are doing their jobs with integrity and really continuing to uphold their oaths despite what's happening, even as they're facing death threats and violence.

And a lot of lawyers are still playing by the rules. They're still representing worthy causes and clients, and they're still taking their oaths and their ethical responsibilities seriously. And all of those people are making a really huge difference. I think they are, as you put it, the the legal bulwarks of the country.

There's a famous scholar of international human rights law whose name is Louis Hankin, believe me, this is relevant. He had this great response to people who argued that international law is meaningless or illusory or aspirational or whatever he said, quote, almost all nations observe almost all principles of international law and almost all of their obligations, almost all of the time.

I always understood that to mean that no matter what laws are being broken, there's something inherent or internalized about the structure of law. And I think that's true to some extent in the United States as well. The, the concept of rule of law is deeply embedded in American culture, and people obviously have different definitions of what that means, but in general, people don't object to the principle that we are and, and should be governed by laws.

So in some ways, in a philosophical sense, I guess that gives me some hope. You know, legal institutions in this country are premised on the idea that we will argue about things. That's the adversarial system. But as long as people are willing to subscribe to the idea that arguments should happen within certain strictures.

They're actually helping to bolster the concept of rule of law, even if they abuse procedure and violate rights and make all sorts of frivolous legal arguments. So can it withstand the next three and a half years? I really, really hope so.

Audience Member: Hi there. My name is Joe Silver Wide. I am calling from Utah. My question is on January 20th of this year, President Trump granted a, what he said with a full, complete, unconditional pardon to all other individuals convicted of offenses related to events that occurred at or near the United States Capitol of January 6th, 2021 instructed the AG to pursue dismissal with prejudice to the government of all pending indictments, et cetera, et cetera.

And then this morning it's December 4th, the FBI arrested somebody under suspicion that they were responsible for placing pipe bombs at or near, I would say the, the capitol on January 6th. That person was neither convicted or indicted when the pardon was issued. But then I thought about a future, say Attorney General Letitia James starts prosecuting January 6th rioters that Merrick Garland declined to prosecute. For one reason or another, those individuals would point to this January 20th, pardon and say, no, no, no, you can't charge me. I was pardoned by President Trump of this on January 20th, and I can't really draw a distinction between those two.

So my questions are, does the pipe bomb defendant have a colorable argument he's been pardoned? Does he have a procedural way to press it? And then I guess even broader, what about like a guy who robbed a convenience store that morning near the capitol? Was he pardoned? Is there a legal precedent for evaluating like vagueness in pardons?

Can a president clarify, modify, or narrow the scope of a pardon? Can President Trump say, no, no. I didn't mean him. I got everybody else. And if that's true, well then can a future president modify a vague pardon? I don't know. I don't the answer to any of these questions or if there's legal precedent, I thought you guys would, would know more than I do about it.

And then my last question is, what are law professors gonna do? Whether this administration uses up all the interesting hypos cause it seems like every day another hypo falls to, to this administration's jumping the shark on, on every legal issue. Appreciate your time, love everything that Lawfare does and looking forward to hearing the podcast whether our on or not. Bye.

Roger Parloff: This is Roger Parloff, a senior editor at Lawfare, and I'm answering a question that Joe asked about pardons. And I think the question is exactly right that there are actually two sets of very, very broad pardons that Trump issued that will create questions about whether the bomber might be covered by them.

I think in the that if the government contests it, and I think they will that they will win, that they, they will prevail and say that neither pardon covers it, but I do think that his lawyers will raise it. The, the pardons that you mentioned in your question are those from January 20th, and you're right, there are two relevant paragraphs.

The first says, in essence, I hereby do dot, dot grant, a full, complete, and unconditional pardon to all other individuals convicted of offenses. Offenses related to events that occurred at or near the United States Capitol on January 6th, 2021. Because it says individuals convicted, I think the government will argue that means people that were already convicted at the time the proclamation was issued as of January 20, 2025.

But I do think that he could make a claim that it should mean individuals convicted at any time. So as soon as he becomes convicted, it would apply to him. The other paragraph I further direct the Attorney General to pursue dismissal with prejudice to the government of all pending indictments against individuals for their conduct related to the events and so on.

It says pending indictments. So again, the government I think, will argue that that means pending as of the proclamation, as of the pardon, which was January 20th, 2025. However, on November 7th, there was another set of pardons, also very broad and, and very clearly not backward looking. In other words, it very clearly applied to people who had not been charged as of that moment.

It was about the false elector scheme or the alternate elector scheme, and it says it applies to any us citizen dot, dot, dot for conduct relating to, and then it describes in essence, the false elector scheme do dot, or any conduct or any conduct relating to their efforts to expose voting fraud in the 2020 presidential election.

So if the pipe bomber is convicted and then says, well, look, the evidence shows that I was trying to delay the certification in order to give state legislators a chance to expose voting fraud, it would seem to be covered. So I think that's a stronger, maybe a stronger argument. On the other hand, that word or any conduct relating to their efforts, it's unclear whether their means goes back to the word U.S. citizen, any U.S. citizen, or whether it means people involved in the false electors scheme.

So, there's that ambiguity. There have been, as, as you say, these, these are so vague that there have been disputes already. And the government has taken the position, for instance, with Jeremy Brown in Florida and Dan Wilson in Kentucky. These were guys who were being pursued for their activity on January 6th.

And when they were arrested, there were the, the FBI had search warrants and they found guns that the people weren't supposed to have or weapons. Jeremy Brown's case. There was a sought of shotgun, there was a grenade, that sort of thing. And they were convicted and the government took the position that those separate crimes in Florida and Kentucky were covered by the pardon.

And so those were, they were released. Two other cases where it did not apply. Taylor, Toronto. These were people that tried to use the pardons but could not. Taylor Toronto was arrested in 2022 and he had not yet been arrested for January 6th. He was arrested for a different offense, and at the time then he was arrested for January 6th.

The different offense was having weapons in the Kalorama neighborhood of D.C. he was looking for, seemed to be looking for Barack Obama who he believed lived there and who might live there. Also Ed Kelly, who was arrested and then plotted to murder FBI agents while the FBI agents were investigating him.

Even the government considered that separate. So those two were not covered. Can the president clarify or modify? He can certainly expand. He can issue, he can issue a new pardon that covers if there's an ambiguity and the government and Trump wants the crime to be covered. Also, it's easy to expand by telling the Justice Department to take the position that it's covered.

So, that's sort of, what happened with Jeremy Brown and Dan Wilson. So anyway I think those are the best I can do in terms of answers. I I don't think there's a lot of law on this because it's such an unusual situation. But thank you for the question. Very good question, and I hope that was helpful.

Audience Member: Hi, lot there. This is Reed in Jacksonville, North Carolina. I'm wondering after the Trump presidency related to the emo clause and other laws, if there can be any clawback on the Trump family. Grift. Thank you very much. Look forward to hearing it.

Molly Roberts: So the Constitution doesn't say anything about penalties for violating the emoluments clause, but there's always the obvious one, impeachment.

Of course, that doesn't answer your question specifically about clawback or about what happens after this presidency. To that point last term, states, members of Congress and watchdog groups did sue President Trump over what they allege were unconstitutional payments, both foreign and domestic is there are actually two emoluments clauses.

There was particular focus on the money he received through his downtown D.C. hotel, the Trump International, where foreign dignitaries often stayed from visiting the capitol and so did domestic ones, including the governor of Maine. The trouble is the Supreme Court discarded all these cases as moot because Trump wasn't in office anymore, and when they were active, they were tangled up in standing disputes.

All this is a shame because the Trump International Hotel may be gone, but Trump's international entanglements are not gone. He's still a real estate mogul, and now he's turned himself into a crypto tycoon too. There's a law in place that governs the acceptance of gifts and honors of minimal or symbolic value.

And ones that are of real value, but obviously that isn't enough because it doesn't cover hotels, it doesn't cover meme coins. It doesn't cover any proceeds from a public officials businesses. Congress could pass legislation to codify the emoluments clause. In doing so, they could make clear that the definition is broad and crucially, they could put penalties in place That also make it clear who's responsible for enforcement and what that enforcement looks like lawsuits could say lead to discouragement of profits, but obviously Congress has not done that yet. Doesn't seem like it's doing that anytime soon. So any clawback, as you put it, is unlikely for now as other laws go, the federal bribery and gratuity statutes are the place to look. Federal bribery is punishable by up to 15 years in prison and fines of up to $250,000 or triple the bribe value and gratuity by up to two years in prison in the same amount in fines.

Briber is a bit tough, or rather proving it is has to be a direct quid pro quo for a specific official act. Gratuities, little bit easier. They only require a link between a thing of value conferred on a public official and an identifiable act. There's still going to be barriers there, though a future Department of Justice would have to prosecute Trump for federal bribery violations, his obviously isn't going to do it.

And even then, there's the matter of the immunity for official acts conferred on him, on the President by the Supreme Court, and he'd almost surely throw up as a defense. Another problem is that for Trump himself to be held accountable, he'd have to be accepting a bribe or gratuity himself, but he shielded himself from that by having others, including his sons, run his businesses.

So those most likely to get in trouble here would actually be the bribers, not the bribes.

Anna Hickey: This question is from Joost Lambregts. Why is only the president immune? If I understand correctly, the main motivation for presidential immunity is separation of powers. So if immunity is motivated by a concern for infringement of Congress on the authority of the executive branch, why does this logic only apply to the president? Could the prosecution of any executive branch official, not quote, pose dangers of intrusion on the authority and functions of the executive branch unquote.

Anna Bower: Hey Joost, it's Senior Editor Anna Bower. Thanks so much for your thoughtful question. It's an important one because I think it exposes a major tension in the Supreme Court's decision in Trump versus United States, but it's also one that has already been raised in a number of proceedings, including, for example, Jeffrey Clark has raised this question in his bar disciplinary proceedings in dc.

So it's one that I think will come up in the future, and it's very much worth unpacking. So the idea in Trump v. United States, as you point out, is that the president needs to be able to act decisively without constantly worrying that every official decision he takes could later lead to criminal charges.

And in the Supreme Court's view, fear of prosecution could cause a president to act with undue caution, which would hinder the functioning of the executive branch. And technically, this ruling only applies to the president himself. The court didn't address whether it would extend immunity to the officials who carry out the president's orders.

But that raises an obvious question. If the court is so worried about chilling executive action at the very top, why would it be comfortable with that same chilling effect applying to everyone below the president in the executive branch? And remember, this is a court that strongly supports the idea of a unitary executive.

The idea that executive power is concentrated in the president alone. From that perspective, it's hard to see how the court can cleanly draw a line between immunity for the president and no immunity for those acting on his behalf. That said, I do think there are some arguments the court could rely on to make that distinction.

So for example, there's a strong argument that the framers expected subordinate officials to remain subject to criminal law. Historically, we have examples of executive officials who have been prosecuted for official acts. And even if you go back to the English constitutional system, there was this idea that the king could do no wrong, but his ministers still could be held to account.

And then there are a number of practical reasons why we'd really want subordinates to be subject to criminal law. So for example, if a president orders a subordinate to carry out an unlawful act, the president may be immune, but if the subordinate is not, that creates a really crucial accountability check.

It effectively ensures that someone in the executive branch has both the legal obligation and the incentive to refuse illegal orders rather than treating presidential directives as a blanket shield from criminal responsibility. So those are just a few things that I think maybe a court could rely on to distinguish between presidential immunity and subordinate official acts immunity.

But we will see what the court says when this question eventually does come before it, as I expect it will. I hope that answers your question, but if not, I suggest that you check out a helpful student note in the Yale Law Journal on this very subject. It is by Carter Squires, and it's called Writing a Rule for the Ages, Subordinate Criminal Liability After Trump v. United States.

Audience Member: Hello, my name is Addison Morrow. I currently live in Arizona. My question is this, my understanding of a lawyer or when someone becomes a lawyer, they have to take an oath to the constitution. How can all of these lawyers that are helping this administration do what they're doing? 'cause they wouldn't be able to do any of this without lawyers doing it for them, right?

How can these lawyers, how, how can, how can they be expected to keep their bar license when everything's said and done? Because everything they're doing is, is the antithesis to the Constitution. So, I mean, they, they, they've broken their sworn oath and I'm just wondering if you think there's gonna be any consequences for this.

You know, Lindsay Halligan, for example, great example. Is she gonna get disbarred? She's just an example. I don't really want you to talk about her. I, I really appreciate your thoughts on that.

Molly Roberts: The question is more general than the Lindsay Halligan debacle, and it should be 'cause the Department of Justice has more generally not been complying with courts by, for instance, making material misrepresentations or plainly unsupportive legal arguments.

DOJ attorneys are bound by the federal rules of civil and separately criminal procedure, as well as American Bar Association rules. There are plenty of examples of violations of these rules besides Lindsay Halligan, think Greg Bovino lying about being hit in the head by a rock before deploying tear gas against Chicago protestors or Drew Ensign dissembling about Guatemalan parents wanting their children to be deported so that they could reunite or about whether he knew removal flights to El Salvador were imminent.

So who can do something about this and what the most obvious, who is the Department of Justice's Office of Professional Responsibility that was established in 1975 in response to Watergate? The office is supposed to investigate exactly the allegations of misconduct you're talking about, except that political appointees at the Department of Justice started this term by booting a host of career officials, including, you guessed it, the head of the OPR, and you may have guessed it again, there is, as of yet, no replacement.

You can even check the office's website under leadership, it just says the title Council with a blank space next to it. So internal checks probably aren't coming, and that leaves external ones of those, the courts themselves are in the best position to push back. Typically, courts have afforded a presumption of regularity and good faith to DOJ attorneys.

In other words, they assume things are being done by the books, but that's changing because the DOJ has changed. Judges can, in some cases, have rejected requests for warrants or subpoenas. They can dismiss charges and appellate courts of courts can overturn convictions if there's been misconduct, and judges can hold attorneys in contempt, which could result in a fine or even imprisonment.

Grand juries, by the way, have some power too. They can refuse to return true bills on indictments. Think the Letitia James case multiple times now. There's one last outlet which you mention in your question. State bar associations do have a role to play upon receiving referrals or complaints. They can conduct investigations of government attorneys and they can determine whether they should be disbarred.

Technically, it's the state's highest court that actually takes the action of disbarring, but it's at the Bar Association's recommendation discretion. Oftentimes now, state bar associations take complaints about DOJ attorneys to the Department of Justice's Office of Professional responsibility, but Well, we already talked about that.

Anna Hickey: This question is from David McDonald. What can other nations, through their diplomatic engagement, international cooperation and bilateral relationships do to help support and reinforce the rule of law in functioning democratic institutions within the United States?

Michael Feinberg: This is Michael Feinberg, senior editor. This is actually a pretty tough question to answer in any way that does not seem defeatist or demoralizing for the simple reason that other nations do not have under current circumstances. A whole lot of options for supporting the rule of law within the United States. There are a couple reasons for this.

The primary one, of course, being that this administration and many of its congressional allies has made very clear that it is not particularly interested in what our traditional allies have to say. We see this most clearly in the recently propagated national security strategy, which reserves most of its ire, not for China or Russia, or traditional adversaries, but rather the governments of Western Europe.

So I'm just not sure that those countries are going to have much influence on American policies, particularly those in the domestic space for the next few years. Compounding this difficulty is the fact that the organization which traditionally provided the most significant bulwark in support of the rule of law, the Department of Justice, has really been defanged as an independent force for a variety of reasons, most of which will be familiar to our listeners already.

The department has for most of our lifetimes, viewed itself as somewhat outside the rest of the executive branch, and really fiercely defended its ability to stand up to the White House when rule of law principles dictated such a course of action. The current occupants of its highest offices, to say the least, do not share that philosophy and view themselves as little more than an enforcement arm for the president's favored policies.

And the last reason that other nations cannot really do much for the rule of law within the United States is that there could be real negative externalities to them attempting to do so. They can stop sharing intelligence, for example, with American law enforcement and intelligence agencies. As the British reportedly have done with respect to the executions of those unfortunate enough to be on boats which have drawn Pete Hegseth's attention.

But at a certain point and in certain circumstances that could result in a terrorist attack that goes thwarted in espionage plot that results in real damage to the five eyes or unchecked criminal enterprises gaining footholds. So unfortunately, I think that the best bet for other nations concerned about rule of law within the United States is simply to provide emotional soccer and rhetorical support to individual citizens fighting for the principle and to fervently hope that our citizenry, we ourselves, are able to clean up our own political messes.

Anna Hickey: This question is from Sam Alonso. There was a time, many thought the U.S. would lead the way in AI safety. With that seemingly off the table, what now will the U.S. cuts to the UN kill AI safety? How does AI safety fit in with the SDGs on ai?

Jakub Kraus: I am Jakub Kraus. I am a Tarbell fellow at Lawfare writing about artificial intelligence first, to address the premise.

I wrote previously about how I see liberal democracies retreating from AI safety, and I think the Trump administration has played some role in this. The G seven, the Munich Security Conference, NATO, the International AI Safety Institutes, the AI Safety Summit. I think we've all seen across all of those, emphasis on opportunities with AI and deploying AI and adoption of the technology, and less emphasis on safety measures and regulation and combating risk.

Now, the question is specifically focused on the un. And it asks, will the U.S. cuts to the UN kill AI safety? So what I know about the U.S. Cuts is that the U.S. is a major funder of the UN and there's been cuts to a lot of humanitarian programs, things like UNICEF or the World Food Program. And this has contributed to the loss of employees in UN humanitarian agencies.

I haven't seen as much on how this might affect the UN's AI efforts, but my guess is that the UN will still continue to hold its various AI projects. So there are some significant lines of effort there. In August, the UN General Assembly agreed on an international scientific panel on AI and setting up a global dialogue on AI governance.

And so this will lead to a lot more building of consensus, which I see as one of the UN's biggest roles and adding in more international dialogues. Beyond what's been happening. Initially sponsored by the uk and then France had an AI action summit, and then India held a summit and I believe Switzerland will hold a summit next.

Now, having the UN focus on taking some of these summits and supporting them seems like an important development as to how the. Concept of AI safety fits in with the UN sustainable development goals, which is the last bit of this question. I think if we construe AI safety broadly to talk about AI models causing harm and simply reducing the risk of that, then there's lots of important ways.

The focus on health and wellbeing can certainly include AI causing harm in medical advice, or we've seen lawsuits around chatbot suicides. And the way to fix that in some ways is to make the technology stronger and more reliable. And in other ways it's to make sure it's used properly. And I think the UN Global Digital Compact from September 24 set out pretty clearly.

Another angle on how the UN views AI in the context of the sustainable development goals. The global digital compact began by saying, and I'll quote, digital technologies are dramatically transforming our world. They offer immense potential benefits for the wellbeing and advancement of people and societies and for our planet, and they hold out the promise of accelerating the achievement of the sustainable development goals.

So on the flip side of trying to prevent AI from causing harm, there is using AI to improve safety and using AI to achieve the sustainable development goals. So overall, my personal take on what the UN should be doing on AI safety is continuing to build consensus and continuing to discuss the risks and ways to mitigate them and making that a key component of international dialogues.

Anna Hickey: This question comes from Heather Alexander. I've enjoyed your and your affiliate Scaling Laws coverage of California's AI legislation. New York has two bills passed, and to my knowledge one still pending regarding ai. What jurisdiction does New York have to enforce these AI laws, and do you anticipate a nationwide Brussels effect from these California New York laws?

What might be the value in general of these transparency based laws? And how much do you expect AI companies to react for trade secrets? Finally, how might legislatures balance wanting transparency, but also not wanting sensitive testing or evaluating information to circulate too widely and be accessed by potential bad actors?

Kevin Frazier: So the start of 2025 posed two real questions with respect to AI governance. Who should govern and what should they govern? So our choices were the federal government or state governments, and then the regulation of the development of AI tools, like the training of AI models versus the deployment or end uses of ai and.

Come the end of 2025, even though we had a lot of great analysis by many Lawfare contributors, we still don't have an answer to either one of those questions. There's still a lot of contestation going on around what sorts of regulations the federal government should oversee with respect to AI and those that should be left to the state level.

There have certainly been a lot of developments in the interim. At the state level. We've continued to see a rush to regulate many aspects of ai, and in many regards, the hundreds of bills that have been proposed by state legislators have dealt with those end uses of ai. How should your doctor use ai?

How should AI be integrated into school systems? What sorts of training should we expect before AI is used in sensitive use cases? All of those things have been covered by many states. Some of those proposals have been signed into law about 100 or so, AI specific bills were signed just in the 2025 session, but some states wanted to push even further, so we saw, for example.

California moved forward with SB 53, which was a frontier AI transparency bill that came in the shadow of SB 10 47. SB 10 47 for our law Fair listeners was again that bill that received so much attention in California in 2024 after Governor Newsom vetoed that bill, he created a task force to study how best to move forward with AI regulation in 2025, and that culminated with SB 53, which deals with transparency requirements on the largest AI models.

Then in a late breaking plot twist, we saw that the governor of New York. Also adopted similar language in that state's main transparency, frontier AI bill. So we saw the raise act, which was initially going to impose a wider set of standards on AI developers before they deployed tools be morphed into a sort of copycat bill of SB 53.

So that's all to say that states are moving ahead and continuing to regulate both AI development and AI deployment at the federal level. Things have been quite murky. In June, we saw that there was a potential move by the house to impose a 10 year moratorium on certain AI state AI bills. Ultimately, that failed by a vote of 99 to one in the Senate.

Then came July where we had the release of the AI action plan by the Trump administration, focusing on developing a national framework, making sure that there were checks in place at the federal level of making sure that ongoing research into AI safety, into mechanistic interpretability, into the weeds of AI was ongoing at the federal level, and also making sure that we could see many efforts at the federal level to make sure that the U.S. was a leader when it came to AI innovation, AI research, and AI adoption for militaristic purposes and national security purposes.

Then the story doesn't end. We get a executive order from the Trump administration late in the year, specifying again, the need for Congress to enact a national framework for AI governance that would in many ways, but not across the board preempt states from imposing certain AI related laws. So this executive order is still very fresh.

We're still waiting to see how it's going to be implemented, particularly with respect to the AI litigation task force it calls for, which is going to, in theory, challenge state laws that are unconstitutional or otherwise unlawful with respect to AI governance. So there's plenty to keep an eye on in 2026, and I know that our wonderful cast of Lawfare contributors will be sure to tackle this issue, and I look forward to reporting on it via Scaling Laws via Lawfare podcast, and of course, plenty of Lawfare essays. All right. Thank you.

Anna Hickey: This question is from Jay. Regarding the Scot Studio, who is the artist, and what is the name of the painting behind Roger?

Roger Parloff: This is Roger Parlo. So this is a question that has a answer and I'll be able to get you the answer, but unfortunately not in time for this recording. I'm overseas and I have the information you need in a cabinet in my apartment at home.

What I can tell you here is that I think the name of it is something like Midnight in Vermont. And my parents bought it in about 1964. And so it was part of my home growing up as a kid, and I always loved it. And it's a, a pretty good artist. I, they might have bought it on a trip we, we all took to New England around 1964 when I was a kid.

I know he had some things exhibited at one time in, in MoMA in New York. He was a apparently a pretty good artist. But I will get you his name and then get that to you either. Maybe I can just say it on one of our future things or I can get this information to you by email or something. But thank you for asking. I love that painting. And I, I hope I hope you do too.

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