The Week That Was

Benjamin Wittes discussed the government’s mix of misconduct and ineptitude in its criminal case against former James Comey, as highlighted in Magistrate Judge William Fitzpatrick’s recent opinion granting Comey’s request for disclosure of grand jury materials.

Wittes assessed still more instances of prosecutorial incompetence in the Comey case, including a recent revelation that the operative indictment was never specifically seen or approved by the full grand jury.

Roger Parloff reported on a Nov. 13 hearing on the legality of Lindsey Halligan’s appointment as U.S. attorney. Parloff relayed a notable exchange between Judge Cameron Currie and government counsel over whether Attorney General Pam Bondi had honestly reviewed relevant grand jury minutes, then summarized arguments raised by attorneys for Comey and Letitia James.

On Lawfare Live, The Now, Wittes sat down with Parloff to discuss Magistrate Judge Fitzpatrick ordering all grand jury minutes and recordings turned over to Comey's defense team by close of business Monday due to potential irregularities in the proceedings.

On Lawfare Live, Wittes sat down with Parloff, Anna Bower, and Molly Roberts for a live conversation on a Nov. 19 hearing on the grand jury proceedings in the Comey prosecution.

On Lawfare Live: The Trials of the Trump Administration, Nov. 21, Wittes sat down with Roberts, Parloff, Eric Columbus, and Loren Voss to discuss new court filings in the Comey prosecution, updates in the litigation challenging the federalization and deployment of the National Guard, and more.

Roberts explained why dismissals of cases for selective and/or vindictive prosecution are so hard to secure and examined the arguments Comey and James marshaled to demonstrate that their prosecutions would not have proceeded without the president’s personal animus.

On Rational Security, Scott R. Anderson sat down with Bower, Parloff, and Michael Feinberg to discuss a federal magistrate judge’s finding that the government may have made substantial misrepresentations before the grand jury in the Comey case, congressional moves to disclose investigative files related to Jeffrey Epstein, the recent scuffle between right-wing news outlet The Blaze and senior FBI officials after a Blaze story purported to link an intelligence officer to the attempted pipe-bombing of the DNC and RNC headquarters on Jan. 6, 2021, and more.

Nick Bednar argued that, while recent provisions for back-paying furloughed federal workers and staying reductions in force are both important, the Trump administration’s legally dubious attacks on the federal workforce during the shutdown require a significantly stronger congressional response.

On Lawfare Daily, Bower sat down with Feinberg and Columbus to discuss extraordinary actions that Congress and the Department of Justice have taken in response to calls to release investigative files related to Epstein. The three discussed the Justice Department’s unusual “review” of the Epstein files, the oversight role of Congress, proposed legislation aimed at compelling the files’ release, and more.

Feinberg and Natalie Orpett analyzed a sweeping provision in the recent shutdown deal that would create a civil cause of action for senators whose data is subpoenaed without their knowledge. Orpett and Feinberg parsed the unusual features of the provision, from the high sticker price of damages it would allow senators to collect over lawful investigations to its capacity to hamper standard law enforcement activities.

Jason Healey and Paul Rosenzweig warned that President Trump’s moves to designate “Antifa” as a terrorist group—coupled with his lack of scruples about deploying military forces domestically—might soon be used to justify offensive cyber operations against domestic political enemies. The authors evaluated a possible role for Big Tech in thwarting unconstitutional operations.

Chris Mirasola evaluated the Trump administration’s theory that the president’s “protective power” allows him to deploy active-duty military to execute federal law in a manner unconstrained by the Posse Comitatus Act.

Luke Schumacher criticized states’ emphasis on the absence of gubernatorial consent in their objections to National Guard deployments, arguing that governors have no statutory or constitutional power to stop the president from deploying the Guard to execute federal law.

In the latest installment of Lawfare’s Foreign Policy Essay series, Jacob Sharpe and Sam Denney argued that the United States should strengthen its defense industrial base against China through closer integration with Europe. The authors outlined different pathways toward that integration and cautioned members of the Trump administration against a short-term view that casts European states as dependents rather than critical allies.

Rodrigo Pérez-Alonso broke down how United Kingdom and European Union regulatory architecture shaped responses to the ransomware attack that crippled Heathrow and multiple European airports this September. Pérez-Alonso characterized American cyber incident response policy as piecemeal by comparison and cautioned that discrepancies between U.S. and EU regulations could leave critical transatlantic infrastructure vulnerable to cyberattacks.

Milena Sterio reviewed Chile Eboe-Esuji’s “The End of Immunity: Holding World Leaders Accountable for Aggression, Genocide, War Crimes, and Crimes Against Humanity.” Sterio contextualized and evaluated Eboe-Esuji’s central argument—that customary international law has never recognized immunity for heads of state who commit international crimes while in office—and praised the author’s ability to transform a thorough historical account into a passionate call to action.

On Lawfare Daily, Anderson sat down with Joel Braunold and Jeffrey Feltman to discuss Resolution 2803, which the UN Security Council adopted earlier this week to endorse and help implement President Trump’s peace plan for Gaza. The three discussed how the resolution conforms to and departs from typical international practice, what it says about the political positions of various parties involved, the likelihood it will help end the conflict and inform a potential path to Palestinian self-determination, and more.

Holly Berkley Fletcher discussed the legacy of Kenyan political giant and former Prime Minister Raila Odinga, who passed away in October. Fletcher reflected on the state and future of the Kenyan political landscape Odinga helped define.

Anastasiia Lapatina analyzed a corrupt scheme uncovered by Ukraine’s National Anti-Corruption Bureau, in which high-profile Ukrainian officials close to President Zelensky extorted payments from nuclear power plants central to the country’s energy system. Lapatina noted that, while the scandal is egregious, the fact that the Bureau had enough investigative power to bring it to light is itself a sign of progress.

On Lawfare Daily, Wittes and Lapatina discussed Russian attacks on the Ukrainian power grid, the corruption scandal unfolding in Ukraine’s energy sector, the origins of the power outage that hampered recording this podcast, and more.

Elise Thomas presented the results of her investigation into A7, a cross-border payments service headed by a Moldovan fugitive that one Russian state bank may be using to evade sanctions. Thomas described how integrating operations such as A7 into legitimate banking institutions might affect foreign counterparts’ willingness to do business in Russia.

On Lawfare Daily, Emily Hoge joined Wittes to discuss the Russian mobsters released from prison to fight in Ukraine, the subsequently skyrocketing Russian crime rate, how these developments are changing Putin’s status as the leader who brought Russia’s organized criminals to heel, and more.

Irene Loewenson analyzed a Fourth Circuit decision expanding data breach victims’ standing to sue where the information leaked is not "embarrassing or salacious.” Loewenson described the challenge of determining the concrete harms of data breaches and reflected on how this broader conception of standing might influence companies’ data practices.

On Scaling Laws, Jeff Bleich joined Kevin Frazier to discuss how the practice of law looks at the edge of the artificial intelligence (AI) frontier, Bleich’s earlier work in the autonomous vehicle space, legal uncertainties in AI governance, and more.

And in the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren discussed why a recent Claude-powered cyberattack suggests AI espionage will appeal to attackers who value scale over precision, Google’s legal disruption campaign against Lighthouse’s phishing-as-a-service, how Google’s adoption of the Rust coding language is mitigating memory safety vulnerabilities, and more.

And that was the week that was.