The Week That Was

Benjamin Wittes discussed the stakes of the current government shutdown, advising congressional Democrats not to relent until they achieve concessions on executive branch compliance with federal statutes.

Nick Bednar evaluated the Trump administration’s plan to use the looming government shutdown to reduce the federal workforce permanently. Bednar broke down how reductions in force (RIFs) linked to a temporary lapse in appropriations would break with traditional RIFs and discussed how Congress could protect federal employees.

Bednar provided an update to his Sept. 29 piece, detailing the potential legal issues raised by Trump administration efforts to reduce the federal workforce during a government shutdown. Bednar analyzed challenges that might emerge under the Antideficiency Act, the Government Employee Fair Treatment Act, and prohibitions on unlawful impoundment.

On Lawfare Daily, Molly Reynolds sat down with Bednar and Sam Berger to discuss which government functions keep operating during a shutdown and why, the causes of government shutdowns, how the Trump administration is using this shutdown to pursue novel cuts to the federal workforce, and more.

Kori Schake examined Secretary of Defense Pete Hegseth’s address to the military’s top brass—which included a proposal to “straighten out” U.S. cities and accusations of a “woke military”—and highlighted the danger of politicizing the armed forces.

On Lawfare Live: The Day After, Kate Klonick sat down with Wittes, Anna Bower, and Bob Bauer to discuss the Trump administration’s politicization of the Justice Department, former FBI Director James Comey’s indictment, the future of politicized criminal prosecutions, and more.

Michael Feinberg argued that politicized hiring practices and political weaponization have degraded the integrity of the FBI. Feinberg reflected on Comey’s indictment, the dismissal of special agents who took a knee during George Floyd protests, and the path ahead for new agent trainees at Quantico.

Renee DiResta critiqued the equivalency some legislators have drawn between the pressure FCC Chair Brendan Carr exerted on ABC to fire Jimmy Kimmel and the pressure the Biden administration exerted on Google to suppress Covid-19 misinformation. DiResta argued that Google’s confident and successful resistance to Biden administration outreach—versus ABC’s immediate acquiescence—reflects the difference in coercive power employed in each case.

On Lawfare Live: The Trials of the Trump Administration, Wittes sat down with Loren Voss, Roger Parloff, and Eric Columbus to discuss Judge William G. Young’s ruling that the Trump administration unlawfully targeted noncitizens for pro-Palestinian views, immigration enforcement conditions on federal grants, litigation over the National Guard’s deployment in Portland, a suit challenging expected reductions in force during the government shutdown, and more.

Thomas Brzozowski analyzed the civil liberties dangers raised by President Trump’s executive order designating “Antifa” as a domestic terrorist organization. Brzozowski emphasized that, while the designation is not likely to survive legal challenges, its announcement is an effective way to chill dissent among the American public.

Wittes discussed two recent executive orders, one purporting to designate Antifa as a domestic terrorist organization and the other directing counterterrorism investigative resources toward alleged institutional and individual funders of left-wing political violence. Wittes analyzed the second executive order’s threat to civil society and the factual and legal absurdities that ground both.

On Rational Security, Scott R. Anderson sat down with Bower and Alan Rozenshtein to discuss California’s new law banning masking for law enforcement, the weaponization of the Justice Department, California’s first-of-its-kind artificial intelligence (AI) safety law, and more.

Gabor Rona argued that the Trump administration’s lethal strikes on alleged drug traffickers are legally indefensible, but that the rationale behind them is a predictable extension of legal justifications crafted during the war on terror.

Vinita Singh analyzed the national security risks raised by selling video game studio Electronic Arts to a consortium that includes Saudi Arabia’s sovereign wealth fund. Singh argued that the involvement of Affinity Partners—an investment firm managed by Jared Kushner—in the consortium makes it unlikely the acquisition will be properly scrutinized by the Committee on Foreign Investment in the United States.

Paul Stephan argued that tariffs are a form of property seizure distinct from the asset freezing permitted under the International Emergency Economic Powers Act (IEEPA), whose scope the Supreme Court will consider in Learning Resources, Inc. v. Trump. After examining IEEPA’s text, history, and structure, Stephan also contended that Congress—not the judiciary—should decide whether the statute empowers the executive to levy new tariffs and taxes.

On Lawfare Live, Anderson sat down with Joel Braunold to discuss President Trump’s proposed peace plan for Gaza, the international reaction to it, what it means for the war in Gaza, and more.

Theodore Christakis discussed European Union (EU) policymakers’ concerns about U.S. companies shutting off digital services in Europe. Christakis described how—ironically—EU regulations functionally flipped a kill switch on Microsoft services to the Indian energy company Nayara, then called for new international legal architecture to avert disruptive kill-switch situations in the future.

In the latest installment of Lawfare’s Foreign Policy Essay series, Jesse Humpal explained how clarifying state laws could make U.S. energy grids more secure, highlighting the value of mandatory signage, clear penalties for energy facility trespassing, and joint training between police and utility operators.

On Scaling Laws, at a conference hosted by the Institute for Humane Studies, Kevin Frazier, Gus Hurwitz, and Neil Chilson discussed how academics can overcome silos and incentives that hamper AI research, the challenges of defining “AI policy,” the merits of an interdisciplinary approach to AI law, and more.

Alan Wehler and  Jon Tran broke down how Section 3 (a) of the Open Markets Act—which is designed to facilitate connections with third-party apps—could inadvertently compromise security for users and supply chains alike.

Gregory M. Dickinson and Frazier warned against hasty regulation of AI tools, arguing that laws designed for current AI capabilities will be ill-equipped to regulate the AI of the future. The authors proposed mechanisms for curbing new laws’ unintended effects on AI development and highlighted the value of courts in AI governance.

And in the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren discussed how Russian hackers recruit European locals for cyberespionage, a spam service in New York state that seems to have concealed a foreign intelligence operation, an oversight report from Senate Democrats criticizing the Department of Government Efficiency’s data-handling and governance practices, and more.

And that was the week that was.