The Week That Was

Benjamin Wittes and Anna Bower examined the newly articulated substance of the government’s case against former FBI Director James Comey, arguing that the facts alleged fail to show that Comey lied to Congress. 

Roger Parloff reported from a Nov. 5 hearing in Comey’s ongoing criminal trial, in which parties sparred over the government’s request for a filter protocol to govern investigators’ review of potentially privileged material.

Bower argued that Daniel Richman’s employment status at the FBI—which public records indicate expired halfway through 2016—may weaken the government’s case against Comey, which hinges on Comey’s authorizing someone “at the FBI” to act as an anonymous source.

Molly Roberts examined the federal proceedings against Sean Charles Dunn, who was acquitted of misdemeanor assault after throwing a sandwich at a Customs and Border Patrol officer this summer.

On Lawfare Live: The Trials of the Trump Administration, Wittes sat down with Scott R. Anderson, Bower, Parloff, Roberts, Eric Columbus, and Loren Voss to discuss the criminal trial of “sandwich guy,” new developments in the criminal case against James Comey, legal challenges to federalizing the National Guard, and more.

Bryna Godar analyzed whether federal officials are immune from state prosecution, explaining that courts have historically treated state-level criminal prosecutions as a limited but important check on federal power. Godar examined the two-pronged test that governs prosecuting federal actors and criticized the Justice Department’s threatened tit-for-tat prosecutions against state and local officials.

Aaron S.J. Zelinsky, John Connolly, and David Reiser broke down the procedure for prosecuting federal actors under state criminal law, explaining that such prosecutions would be removed to federal courts but remain beyond the constitutional pardon power of the president.

On Lawfare Live, The Now, Anderson sat down with Peter Harrell, Marty Lederman, and Kathleen Claussen to discuss oral arguments in the legal challenge to President Trump’s tariffs at the Supreme Court. A live video recording is available on YouTube and Substack. You can also listen to the discussion as a podcast here.

Wittes argued that conservative justices’ skepticism of Trump’s tariffs during oral arguments in Learning Resources, Inc. v. Trump (Tariffs)  is not surprising, not heartening, and in no way redemptive of the Court’s enabling of the destructiveness of the second Trump administration.

Alan Rozenshtein reflected on the twists and turns of the Tiktok deal, which would require the platform’s transfer from Chinese control. Rozenshtein explained that, while he stands by his initial analysis of the deal’s legality and importance to national security, he failed to anticipate how executive lawlessness, congressional weakness, and private sector appeasement would warp the process of transferring control.

On Rational Security, Anderson sat down with Wittes, Kate Klonick, and Rozenshtein to discuss tensions over anti-Semitism within the American right, the U.S.-China TikTok deal, parallels between the war on terror and the Trump administration’s current campaign against narcotics traffickers in the Caribbean, and more.

Trent Buatte analyzed the international legal status of the two men who have survived U.S. boat strikes in the Caribbean. Buatte examined the legality of repatriating or transferring detained survivors elsewhere, the challenges of defining alleged cartel members as combatants under the law of armed conflict, and the lessons policymakers should draw from the war on terror.

In an installment of Lawfare’s Foreign Policy Essay series, Samuel Seitz and Caitlin Talmadge argued that President Trump’s deliberately erratic bargaining style degrades trade negotiations’ efficacy without signaling a strategically advantageous indifference to costs.

In the latest installment of Lawfare’s Foreign Policy Essay series, Astrid Chevreuil and Doreen Horschig argued that President Trump’s announcement on the resumption of U.S. nuclear testing risks eroding decades of global nonproliferation architecture. The authors urged Europe’s nuclear and non-nuclear states to pressure the U.S., Russia, and China to reaffirm their commitments to the Comprehensive Nuclear Test Ban Treaty.

Daniel Byman reviewed Aviva Guttmann’s “Operation Wrath of God: The Secret History of European Intelligence and Mossad’s Assassination Campaign,” which chronicles intelligence-sharing between Israel and Europe as Israel targeted Black September terrorists involved in the Munich massacre. Byman praised the book’s detail, insight, and value as a historical study of Israeli counterterrorism.

Stefan Soesanto and Wiktoria Gajos urged Western powers—despite commitments to responsible behavior in cyberspace—to learn from Ukraine’s far-ranging, flexible, and creative cyberattacks on Russian military and civilian infrastructure. 

On Lawfare Daily, Anastasiia Lapatina and Francis Farrell discussed the ongoing fighting in the Ukrainian city of Pokrovsk, recent transformations on the front line, whether Ukraine can ever give up Donbas, and more.

On Lawfare Daily, Tyler McBrien sat down with Joseph Kellner to discuss Kellner’s new book “The Spirit of Socialism: Culture and Belief at the Soviet Collapse.” The two discussed how shifting senses of epistemic authority, cultural identity, and history informed post-Soviet civilians’ search for spiritual meaning, the belief systems that gained prominence, the relationship between the fall of a political superpower and the decline of shared meaning, and more.

Iain Nash analyzed the European Union General Court’s decision to uphold the EU-U.S. Data Privacy Framework (DPF) following a legal challenge from French parliamentarian Philippe Latombe. Nash explained why the court rejected Latombe’s three core arguments and assessed the DPF’s chances of surviving challenges in the future.

On Lawfare Daily, Klonick sat down with Rick Pildes to discuss Pildes’s recent article “Political Fragmentation in the Democracies of the West.” The two discussed the democratic and antidemocratic effects of social media; how social media adoption compares to the communications revolutions sparked by the printing press, radio, and cable TV; platforms’ power to both polarize information ecosystems and bolster small-donor campaigns; and more.

In the latest issue of the Seriously Risky Business cybersecurity newsletter, Tom Uren discussed the limits of cyber operations as a tool for regime change in Venezuela, the ways that unconstrained U.S. advertising technology endangers national security personnel around the world, how cybercriminals and organized crime groups are tag-teaming logistics companies to steal cargo, and more.

And on Scaling Laws, Gabriel Nicholas joined Kevin Frazier to discuss the emerging world of artificial intelligence (AI) agents, the challenges of incorporating them into sensitive tasks, possible policy frameworks for governing them, and more.

And that was the week that was.