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The Week That Was: All of Lawfare in One Post

Maya Nicholson
Friday, April 12, 2024, 4:11 PM

Your weekly summary of everything on the site.

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Tyler McBrien and Benjamin Wittes discussed the jury selection process and dissected the juror questionnaire in the New York criminal trial against former President Donald Trump for his alleged hush money payments made during and after the 2016 election—which is set to begin next week, on Monday, Apr. 15. 

On the Lawfare Podcast, Wittes sat down with Anna Bower, Roger Parloff, and Quinta Jurecic to talk about Judge Aileen Cannon's order denying both former President Donald Trump's motion to dismiss the classified documents case based on the Presidential Records Act and Special Counsel Jack Smith's request for a ruling on jury instructions prior to trial. They also discussed the preliminary ruling in Jeffrey Clark's bar discipline hearing, Judge Scott McAfee's order denying Trump's motion to dismiss criminal charges in Fulton County on First Amendment grounds, and more:

Hyemin Han shared the unsealed transcript of an FBI interview with Waltine Nauta, Trump’s former valet and a c0-defendant in the Mar-a-Lago classified documents case.

On April 11, Jurecic sat down with Parloff and Bower for this week’s episode of “Lawfare Live: Trump’s Trials and Tribulations,” where they discussed the upcoming jury selection in Trump’s New York hush money criminal trial, Judge Cannon’s ruling on whether to unseal witness names, and more. If you couldn’t attend the live event, the recording is available on Lawfare’s YouTube channel or over the weekend on the Lawfare Podcast feed:

On the Lawfare Podcast, Han sat down with Jack Goldsmith and Bob Bauer to talk about the Insurrection Act, a provision—which hasn’t been reformed in centuries—that allows the president to deploy the U.S. military for domestic law enforcement. They discussed the history of the Insurrection Act, recommendations for reform prepared by a group of legal experts co-chaired by Goldsmith and Bauer and published by the American Law Institute, potentially reforming the act in 2024, and more:

Alan Z. Rozenshtein—in the context of upcoming oral argument before the Supreme Court regarding whether Trump can be prosecuted for his attempt to subvert the results of the 2020 election—explained why the absolute immunity precedent established in Nixon v. Fitzgerald should not be extended to criminal cases. Rozenshtein argued that instead of absolute immunity, presidents should receive qualified immunity for official acts in both civil and criminal cases. 

Jurecic discussed United States v. Mackey—a case concerning the user behind a pro-Trump Twitter page that spread disinformation to disenfranchise Hillary Clinton supporters in 2016—which is now on appeal. In light of recent oral argument before the Second Circuit, Jurecic examined the First Amendment implications of the case, the Justice Department’s decision to charge Mackey under a Reconstruction-era civil rights statute, and what the case means for the future of litigation concerning election disinformation. 

Ori Lev argued that as the 2024 presidential election approaches, the Supreme Court should take the opportunity to establish clear legal rules on when government “jawboning” violates the First Amendment. Lev examined two cases before the Court, National Rifle Association (NRA) v. Vullo and Murthy v. Missouri, and argued that the former case is a more effective vehicle for instituting a legal standard to clearly identify abuses of power. 

On Rational Security, Rozenshtein and Jurecic were joined by Molly Reynolds to talk over the week’s national security news. They discussed how Congress is still arguing over whether and to what extent the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act should reform the bulk surveillance authority, Speaker of the House Mike Johnson’s prolonged dispute with his caucus over the U.S. aid to Ukraine, a single software engineer that prevented a catastrophic cyber attack after stumbling upon malicious code inside a key piece of Linux software, and more: 

Also on the Lawfare Podcast, McBrien sat down with Sarah Harrison to discuss the conditionality of U.S. offensive arms transfers to Israel, given the recent outrage from democratic members of the House of Representatives to President Joe Biden over an Israeli airstrike that killed seven aid workers from the World Central Kitchen. They talked about the laws and policies that govern U.S. security assistance, what recent reporting may or may not tell us about Israel’s law of war compliance, and more:

In this week’s installment of Lawfare’s Foreign Policy Essay series, Matt Ferchen considered the growing concerns of economic securitization as a central, yet dominating, component of U.S.-China relations, and what policymakers should do instead to find a sustainable balance between coercive economic security measures and interdependence.

Adam Chan and David Rader explained how a little-known government agency, the Office of Information and Regulatory Affairs, could be a key tool for the executive branch in the ongoing strategic competition with the People’s Republic of China.

Jürgen Altmann explained how verification systems—such as secure “black boxes” to record activity—can prove that attacks by uncrewed vehicles were conducted under human control

Stefan Soesanto and Wiktoria Gajos examined the activities of the alleged Ukrainian state-coordinated cyber group, Kyber Sprotyv, against Russian military officers, civilians and politicians. They discussed how to define the group’s role in the Ukrainian information ecosystem and the emerging legal challenges that arise from armed conflict in cyberspace. 

Justin Sherman evaluated the new data broker bill passed by the House, Protecting Americans’ Data from Foreign Adversaries Act of 2024, which aims to limit the sales of U.S. persons data to entities or individuals in North Korea, China, Russian and Iran. To further the bill’s effectiveness, Sherman argued that the Senate—which will soon consider the bill—should make amendments to the legislation to broaden its scope beyond just a national security framework. 

On the Lawfare Podcast, Stephanie Pell sat down with Jim Dempsey and John Carlin to talk about the current U.S. cybersecurity regulatory landscape and the progression of the Justice Department's strategy relating to takedown and disruption efforts. They discussed the Securities and Exchange Commission’s cyber disclosure rule, the new executive order focused on preventing access to Americans’ bulk sensitive personal data, and more:

Bruce Scheiner explained how an unpaid volunteer maintaining xz Utils—an open-source data compression library on hundreds of millions of computers—discovered a backdoor that could have had cybersecurity consequences nationwide. He argued that open-source projects need to be funded and treated by the government and tech companies as a national security problem.

On another episode of the Lawfare Podcast, Wittes sat down with Alicia Wanless and Chinmayi Sharma at Verify 2024—which brings together journalists and cyber and tech policy experts to discuss critical issues in cybersecurity to talk about information ecology, 19th-century naturalism, and more:

In the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren discussed the honeypot-style phishing campaign against several U.K. parliament members after they received unsolicited Whatsapp messages with explicit photos, how a new bipartisan bill aimed at federal privacy reform blames Big Tech for mishandling American data, and more. 

On the Lawfare Podcast, Matt Gluck sat down with Juliette Kayyem to discuss the bridge that collapsed in the early morning hours of March 26 in Baltimore, how authorities responded to it, and what it all means for the resilience of U.S. critical infrastructure and the state of crisis response. They talked about whether or not the bridge was adequately protected, how governments and the private sector should prepare to prevent crises and respond to the aftermath when they inevitably occur, and more:

Emily Berman and Chris Mirasola described how interstate military support for Gov. Greg Abbott’s (R-Texas) controversial security operations along the Southern Border—amid rising tensions between Texas and the federal government—highlights states’ significant (albeit restricted) independent authority to deploy military personnel domestically.

On Chatter, Shane Harris spoke with Joseph Thompson to discuss his new book, “Cold War Country,” which focuses on the close relationship between country music and the U.S. military, showing how the leaders of Nashville’s Music Row found ways to sell their listeners on military service, at the same time they sold country music to people in uniform. They talked about how Nashville and the Pentagon “created the sound of American patriotism,” how singers like Roy Acuff, Elvis Presley and Merle Haggard forged the close bonds between their genre and the military, and more:

And on April 3, Lawfare announced another auction item on the Givebutter campaign— the “Black Hole of Awful” Post-It by Jurecic, one-of-a-kind Lawfare sketch born from a conversation with Wittes that illustrates the extent to which trial delay is advantageous to Trump. Other items of exclusive Lawfare merchandise up for auction include an autographed Lawfare jigsaw puzzle and Wittes’s Twitter sensation and protector of democracy #BabyCannon. Place your bids to support Lawfare’s Trump Trials coverage. You can also support Lawfare’s Trump Trials coverage by making a contribution here

And that was the week that was. 

Maya Nicholson is Lawfare's Spring 2024 editorial intern. She graduated cum laude with a B.A. in International Relations from New York University in 2023. Maya has interned in several law firms including Farris LLP, McLaughlin and Stern, and was previously a UN Advocacy Intern at the International Crisis Group.