The Lawfare Podcast

The United States, the European Union, and China are involved in intense conflicts to control the digital economy, both within their borders and globally. Anu Bradford, the Henry L. Moses Professor of Law and International Organization at Columbia Law School, provides a framework for understanding and assessing these conflicts in her new book, entitled “Digital Empires: The Global Battle to Regulate Technology.” 

Jack Goldsmith spoke to Bradford about why the EU rights-driven model is in ascendancy in the West and what this means for the U.S. tech companies that are the primary targets of EU regulation—and for innovation more generally. They also spoke about the tech wars between the United States and China, whether U.S. techno-protectionism is a good idea, how far the United States has departed from its 1990s-style Internet freedom agenda, and how well China's state-driven model is faring in authoritarian countries. 

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How much influence do social media platforms have on American politics and society? It’s a tough question for researchers to answer—not just because it’s so big, but also because platforms rarely if ever provide all the data that would be needed to address the problem. 

A new batch of papers released in the journals Science and Nature marks the latest attempt to tackle this question, with access to data provided by Facebook’s parent company Meta. The 2020 Facebook & Instagram Research Election Study, a partnership between Meta researchers and outside academics, studied the platforms’ impact on the 2020 election—and uncovered some nuanced findings, suggesting that these impacts might be less than you’d expect.

Today on Arbiters of Truth, our series on the information ecosystem, Lawfare Senior Editors Alan Rozenshtein and Quinta Jurecic are joined by the project’s co-leaders, Talia Stroud of the University of Texas at Austin and Joshua A. Tucker of NYU. They discussed their findings, what it was like to work with Meta, and whether or not this is a model for independent academic research on platforms going forward.

(If you’re interested in more on the project, you can find links to the papers and an overview of the findings here, and an FAQ, provided by Tucker and Stroud, here.) 

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This week on Rational Security, Alan, Quinta, and Scott celebrated the second anniversary of Rational Security 2.0 by bringing back everyone's favorite game show edition: the Hot Take Takedown! But this year, instead of being contestants, they sat in judgment on the following hot takes from their Lawfare colleagues:

• Molly Reynolds, on whether there will be a government shutdown this month;
• Tyler McBrien, on what should happen with overseas U.S. troop deployments; and
• Benjamin Wittes, on who will be held accountable first, Russian President Vladimir Putin or former President Donald Trump.

Which of these hot takes will be deemed too cold, which too hot, and which just right? Listen in to find out!

Meanwhile, for object lessons, Alan shared one of his new favorite uses for superfluous fruits. Quinta shared just the sort of story you expect to hear out of Burning Man: alleged Jan. 6 co-conspirator and criminal defendant Jeffrey Clark casting judgment on former Deputy Solicitor General (and beanie-wearing Burning Man attendee) Neal Katyal. And Scott urged even non-vegetarian listeners to check out the new, updated edition of Peter Singer's classic work on animal rights, "Animal Liberation Now!"

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It's another episode of our weekly live stream series, “Trump's Trials and Tribulations,” which takes place on YouTube each week on Thursday afternoons at 4 p.m. ET. 

This week, Lawfare Editor-in-Chief Benjamin Wittes sat down with Lawfare Senior Editor Roger Parloff and Lawfare Legal Fellow Anna Bower, to talk about the latest events in Proud Boys sentencing and in Georgia. They talked about the hefty sentences that Enrique Tarrio and other Proud Boys received this week in federal district court in Washington, about how these sentences compare to those received by Oath Keepers and other Jan. 6 perpetrators, and about the machinations in Georgia—removal, immunity, severance, and all the other stuff that is going on with poor Judge McAfee trying to deal with a 19-defendant trial.

Please join us next time by becoming a Material Supporter at our website, lawfaremedia.org/support, or subscribing to our YouTube channel.

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From January 19, 2021: In the wake of the January 6 mob attack on the Capitol, some have called for the invocation of Section 3 of the 14th Amendment. Section 3 disqualifies anyone who has engaged in rebellion or insurrection against United States from public office. In particular, critics of President Trump have seized on this as a potential way of preventing him from running in 2024. Alan Rozenshtein spoke about Section 3 with professors Daniel Hemel of the University of Chicago Law School and Gerard Magliocca of the Indiana University Robert H. McKinney School of Law.

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Liberalism today is under attack, as it often has been. Samuel Moyn, the Chancellor Kent Professor of Law and History at Yale University, believes that liberalism's failures, and a path to its better future, can be discerned through a study of how liberal intellectuals reacted to the rise of fascism and Nazism during the World War II period, and especially to Soviet communism during the Cold War. Jack Goldsmith sat down to talk to Moyn about his new book on the topic, “Liberalism Against Itself: Cold War Intellectuals and the Making of Our Times.” They discussed how and why Cold War liberals such as Isaiah Berlin and Gertrude Himmelfarb transformed liberalism, and why he thinks the transformation has had deleterious effects on U.S. foreign and domestic policy. They also discussed the aims of intellectual history and the relationship between his project and recent anti-liberal projects from the right.

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When he was 18 years old, Ted Hall, then a Harvard undergraduate, was recruited to join the Manhattan Project, becoming the youngest physicist on the U.S. team racing to build an atomic bomb before the Nazis. When it became clear that Germany would lose the war, Hall feared that the Americans might maintain a monopoly over nuclear weapons, an imbalance he thought could lead to global tyranny. So he decided to share secret designs with the Soviet Union, which was then an ally of the United States on its own path to build a bomb.

That fateful action, and the life-long consequences for Hall and his wife, Joan, are the subject of filmmaker Steve James’ new documentary, “A Compassionate Spy.” Using original interviews with members of Hall’s family, and archival footage of the now deceased physicist, James explores Hall’s motivations for sharing nuclear secrets and the FBI’s attempts to charge him with that crime. It’s a complex story about espionage, idealism, and ultimately the love between Ted and Joan that helped to keep the truth hidden for decades.

Shane Harris spoke with James about the film and his career as a documentary filmmaker. James directed several acclaimed films, including “Hoop Dreams,” “Life Itself,” and “Abacus: Small Enough to Jail.”

“A Compassionate Spy” trailer: https://participant.com/film/compassionate-spy

Steve James’ filmography: https://www.imdb.com/name/nm0416945/  

Also discussed in this interview:

“Mission to Moscow,” the surprising pro-Soviet film from “Casablanca” director Michael Curtiz: https://www.imdb.com/title/tt0036166/?ref_=nm_flmg_t_39_dr

“Bombshell: The Secret Story of America's Unknown Atomic Spy Conspiracy,” by Joseph Albright and Marcia Kunstel https://www.amazon.com/Bombshell-Secret-Americas-Atomic-Conspiracy/dp/081292861X

The Venona program, which helped to finger Hall as a spy for Moscow

https://www.nsa.gov/Helpful-Links/NSA-FOIA/Declassification-Transparency-Initiatives/Historical-Releases/Venona/

https://www.osti.gov/opennet/manhattan-project-history/Events/1945-present/venona.htm

Chatter is a production of Lawfare and Goat Rodeo. This episode was produced and edited by Cara Shillenn of Goat Rodeo. Podcast theme by David Priess, featuring music created using Groovepad.

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On July 26, the Securities and Exchange Commission adopted a final rule with new compliance and disclosure obligations surrounding material cybersecurity incidents. Lawfare Senior Editor Stephanie Pell sat down with Kate Hanniford, partner at Alston & Bird, to talk about the requirements and challenges this new rule presents. They talked about some of the problems and concerns that caused the SEC to engage in a rule-making process, when an incident rises to the level of a material cybersecurity incident, and whether the new rule is consistent with the National Cybersecurity Strategy’s goal of harmonizing disclosure and reporting requirements for companies. 

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As the 2024 presidential election inches closer, legal scholars are hotly debating whether former President Trump’s actions in relation to Jan. 6 might have disqualified him (and many others) from public office under Section 3 of the 14th Amendment. But far less attention has been given to how precisely this disqualification should be implemented so as to bring the ultimate issue to the Supreme Court for decision—preferably before the 2024 election is under way. 

To discuss these issues, Lawfare Senior Editor Scott R. Anderson recently sat down with two leading election law experts and friends of the podcast: Professor Ned Foley from The Ohio State University’s Moritz College of Law; and Professor Derek Muller of the University of Notre Dame Law School. They discussed how Section 3 might be interpreted, the ways it might be implemented in relation to former President Trump, and what other avenues for enforcement might apply against other people facing a similar possibility of disqualification.

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There is no more consequential technological development in recent years than widely accessible artificial intelligence. And there are few more consequential contemporary figures in the artificial intelligence field than Mustafa Suleyman, who is the co-founder of DeepMind Technologies, an early leading artificial intelligence firm later bought by Google, and more recently, co-founder of Inflection AI, a firm devoted to personalizing artificial intelligence.

Jack Goldsmith sat down with Suleyman to talk about his new and somewhat frightening book, “The Coming Wave: Technology, Power, and the Twenty-first Century's Greatest Dilemma,” which is his take on the novel threats posed by artificial intelligence and synthetic biology. They focused on the artificial intelligence components of the book, discussing AI's promises—and especially its dangers—to both individuals and the state, and what governments and firms can realistically do to redress the dangers.

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From February 12, 2021: Lost in the shuffle of an impeachment trial here in the United States was big news from Canada last week. Canada’s Minister of Public Safety added the Proud Boys to Canada’s terror entity list. The listing might be in Canada, but the group had a role in the January 6 storming of the U.S. Capitol. The listing has all sorts of interesting legal and national security implications, so Jacob Schulz talked it through with two Canadian national security experts. Jessica Davis is a former senior strategic intelligence analyst with the Canadian Security Intelligence Service who is now the president of Insight Threat Intelligence and a PhD student at the Norman Paterson School of International Affairs at Carleton University. And Leah West is an assistant professor of International Affairs at Carleton University and serves as counsel with Friedman Mansour LLP. They talked about right-wing extremism in Canada, what the consequences of the listing might be and what it reveals about the relationship between Canada and the United States.

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This week, Alan, Quinta, and Scott reunited to talk through the week’s big national security news, including:

• “Pack Your Knives and Go Home.” Vladimir Putin’s top chef has been eliminated. Wagner mercenary chief and Kremlin caterer Yevgeny Prighozin was killed in a plane crash this past week alongside a number of associates, in what the government has conceded might have been a deliberate act. If this was Putin’s revenge, what led him to take this step now? And what will it mean for his Wagner mercenary group—and the stability of Putin’s regime?
• “The Down Mexico Way.” At the first Republican presidential primary debate last week, there was surprising unity around one point: using the military to go after drug cartels in Mexico, whether it cooperates or not. What should we make of the villainization of America’s southern neighbor? And how realistic are these sorts of proposals?
• “(Re)Movin’ On Up.” Mark Meadows spent this past Monday trying to move his prosecution for crimes relating to 2020 election interference from Fulton County, Georgia, to federal court, so he can claim a form of immunity stemming from the Supremacy Clause. And some of his co-defendants are not far behind. What should we make of these arguments? Are they likely to succeed?

For object lessons, Alan recommended literary puzzle box and joy to read " Trust" by Hernan Diaz. Quinta shared the HBO show, "How to with John Wilson." And Scott dug into the historical archive to endorse Stanley Karnow's "Vietnam: A History." 

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Today we’re bringing you a special edition of the Lawfare Podcast: another episode of our series, Trump Trials and Tribulations, recorded live on YouTube before an audience of Lawfare Material Supporters. On Thursday, Lawfare Editor-in-Chief Benjamin Wittes sat down with Lawfare Senior Editor Quinta Jurecic and Lawfare Legal Fellows Saraphin Dhanani and Anna Bower to get an update on everything that's been going on in the Mar-a-Lago case, in the Georgia Fulton County case, and in the Jan. 6 case in Washington. They talked about that marathon hearing in Georgia where Mark Meadows testified, about Judge Chutkan setting a trial date in Washington, about why Judge Cannon in Florida is not doing anything, and about the non-criminal cases—the attorney discipline cases—that a number of lawyers involved in Jan. 6 are facing.

Please join us next time by becoming a Material Supporter at our website, lawfaremedia.org/support, or subscribing to our YouTube channel.

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From September 3, 2016: Michel Paradis, a senior attorney in the Department of Defense’s Office of the Chief Defense Counsel and counsel for Abd al-Rahim al-Nashiri, came on the podcast to talk about the D.C. Circuit Court of Appeals' recent ruling in the Al-Nashiri case. So did Bob Loeb, a partner at Orrick, Herrington and Sutcliffe and the former Acting Deputy Director of the Civil Division Appellate Staff at the Department of Justice. Along with Benjamin Wittes, Michel and Bob discuss the ins and outs of the court's ruling from both a legal and a policy perspective.

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The National Intelligence Strategy is out, and David Kris, a founder of Culper Partners, sat down to talk about it with Michael Collins, the acting head of the National Intelligence Council. They discussed many aspects of U.S. national security, defense, cyber, and intelligence strategy, including the increasing geopolitical significance of non-state entities, and even the meaning of the word intelligence itself. They also cover Mike's long and illustrious career inside the U.S. intelligence community and his thoughts about the future of U.S. intelligence.

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The English language has recently developed a historically unique dominance in the global marketplace--a situation that brings plenty of benefits and just as many downsides. Rosemary Salomone, Kenneth Wang Professor of Law at St. John's University, has researched and analyzed various perspectives on English's supremacy in her recent book The Rise of English, which has a paperback version with a new preface coming early in 2024.

David Priess spoke with Rosemary about her background in linguistics and education studies, the origins of the English language's dominance, the role of pop culture in the balance between English as spoken in the United States and as spoken in the United Kingdom, divergent official language policies of international organizations like the United Nations and the European Union, the Anglophone bubble, English as a marketable skill, the debate about the English language within France, French vs Chinese inroads in Africa, the role of the French and English languages in the Rwandan genocide and its aftermath, the controversy over the People's Republic of China-funded Confucius Institutes, the rise of English as the language of protest internationally, the culture around foreign language learning in the US, views about computer coding as a "foreign langauge," Ukrainian President Zelensky's use of the English language, the possibility of Spanish replacing English as the most global language, and more.

Among the works mentioned in this episode:

The book The Rise of English by Rosemary Salomone

The book True American by Rosemary Salomone

The book Visions of Schooling by Rosemary Salomone

The book Madam Speaker by Susan Page

Chatter is a production of Lawfare and Goat Rodeo. This episode was produced and edited by Noam Osband and Cara Shillenn of Goat Rodeo. Podcast theme by David Priess, featuring music created using Groovepad.

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Yesterday marked the two-year anniversary of the U.S. withdrawal from Afghanistan. Around 80,000 Afghans were relocated during the withdrawal, and many do not have a pathway to permanent citizenship here in the United States. To get a sense of those immigration challenges and the potential for congressional action on those issues, Bryce Klehm sat down with Shala Gafary, the Managing Attorney of Project: Afghan Legal Assistance at Human Rights First, and Jennifer Quigley, the Senior Director of Government Affairs at Human Rights First. They talked about the current legal status of those relocated persons in the United States, the challenges faced by those still in Afghanistan, and the potential passage of the Afghan Adjustment Act, a bill that could help alleviate some of those legal obstacles.

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What do we mean when we talk about "cybersecurity"? There's clearly a technical component: can someone prevent, through clever hardware and software, someone else from accessing some device or data? But that just raises the question of who should have access. And that's not a technical question. It's a legal, social, and moral one.

This, at least, is the argument made by Josh Goldfoot, Principal Deputy Chief at the Department of Justice's Computer Crime and Intellectual Property Section, the nerve center of the federal government's attempt to prosecute cyber criminals. A litigator and policy lawyer with decades of experience thinking about cybersecurity and digital surveillance, Josh just published a paper for Lawfare's ongoing Digital Social Contract research paper series making his case for why cybersecurity isn't just a technical problem. Alan Rozenshtein, Associate Professor of Law at the University of Minnesota and Senior Editor at Lawfare, spoke to Josh about his paper and what viewing cybersecurity as a social, not just engineering, problem means for our ongoing efforts to secure our digital lives.

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Yesterday, August 28, was a busy day in court. In federal court in Atlanta, Donald Trump’s former chief of staff Mark Meadows made the argument for why the charges against him in Fulton County should instead be tried before a federal judge. And in Washington, D.C., Trump’s attorneys tangled with the special counsel’s office in a hearing in the Jan. 6 case, which resulted in Judge Tanya Chutkan scheduling a trial date for March 4, 2024. 

Lawfare’s devoted team headed to both courtrooms—so we’re bringing you a double dispatch from both Georgia and D.C. Lawfare Senior Editor Quinta Jurecic sat down with Anna Bower, who spent her day in the Georgia courtroom, and Saraphin Dhanani and Hyemin Han, who held down the fort in D.C., to talk through the two hearings.

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On August 20, Guatemalans elected a new president, Bernardo Arévalo. His landslide victory was also a major win for the country’s struggling democracy. An unexpectedly strong candidate who ran on an anti-corruption platform, Arévalo triumphed despite months of dirty tricks by institutional actors seeking to preserve the country’s status quo.

To discuss Arévalo’s victory, the wild months that led up to it, and the challenges ahead, Lawfare Senior Editor Quinta Jurecic talked to Manuel Meléndez-Sánchez, a PhD candidate in Political Science at Harvard University who studies emerging challenges to contemporary democracy, with a focus on Latin America. Guatemala isn’t out of the woods yet, but in a moment of worldwide anxiety over democratic backsliding, the Guatemalan election might be the rarest of things: a good news story.

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This week on Rational Security, Quinta and Scott were joined by Lawfare Executive Editor Natalie Orpett to break down the week’s big national security news stories, including:

• “Home to Roost.” A judge in the military commission trying Abdul Raheem al-Nashiri, a suspect in the 2000 USS Cole bombing, has ruled that his confession is inadmissible on the grounds that it was tainted by his prior torture and interrogation at the hands of U.S. officials, even though the confession itself was extracted from a non-coercive “clean team.” What does this mean for the future of the Nashiri trial? And of the military commissions as a whole? 
• “Disqualification, Qualified.” A pair of leading conservative constitutional scholars has reignited the discussion surrounding Section 3 of the 14th Amendment, arguing that it is self-executing and excludes former President Trump from the presidency. How persuasive are their arguments? And what impact will they actually have on the 2024 election?
• “A Distinctive Musk.” The New Yorker has run a profile of Elon Musk, focusing in substantial part on the complicated but central role he and his company SpaceX have come to play in Ukrainian military efforts, despite his frequent flirtations with Russian President Vladimir Putin. What should we make of Musk’s important role in national security affairs? And are there better ways for the U.S. government to approach it?

For object lessons, Quinta shared a profile of the weirdest Jan. 6 co-conspirator to date. Scott endorsed the new true spy thriller podcast series, “Spy Valley.” And Natalie shouted out her most recent favorite delicious treat, Nightingale ice cream sandwiches.

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Today we’re bringing you a recording of our live virtual event from this past Thursday. It’s part of our series, Trump Trials and Tribulations, where we provide regular updates on what’s going on in the criminal trials of Donald Trump in DC, Florida, and Georgia. Please join us next time by becoming a Material Supporter at our website, lawfaremedia.org/support, or subscribing to our YouTube channel.

This week, Lawfare Executive Editor Natalie Orpett sat down with Lawfare Senior Editors Quinta Jurecic and Scott R. Anderson and Lawfare Legal Fellow Anna Bower to talk about mug shots in Georgia, conflicts of interest in Florida, trial dates in DC, and violent threats against a judge.

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From May 15, 2017: This afternoon, the Washington Post broke a major story: Donald Trump disclosed highly classified material to the Russian ambassador and Foreign Minister in the Oval Office last week, compromising a highly sensitive counterterrorism program run by an allied intelligence service. This evening, we got former DNI General Counsel Robert Litt on the line for a discussion with Susan Hennessey and Benjamin Wittes of the latest mess. Litt helped coordinate and manage the intelligence community's response to the Edward Snowden revelations, so he knows a little something about responding to massive intelligence disclosures. They talked about how bad the disclosure may be, what the remedies for it are, and what we still don't know.

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Earlier this month, there was big trouble in little Marion, Kansas, where an entire police department raided the offices of the Marion County Record, a small, family-owned newspaper about 60 miles north of Wichita, with seven employees and a circulation of about 4,000. 

To discuss this alarming violation of press freedom, Lawfare Managing Editor Tyler McBrien sat down with Caitlin Vogus, Deputy Director of Advocacy at the Freedom of the Press Foundation. They talked about what motivated the raid, how it went down, and the chilling effect this kind of thing can have on small town newspapers and big media organizations alike. They also discussed what journalists—from lone freelancers to sizable newsrooms—can do to protect themselves from all manner of press freedom violations. 

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On April 13, 2022, in the wake of the Russian invasion of Ukraine, Lawfare Editor in Chief Benjamin Wittes conducted his first “special military operation” at the Russian embassy in Washington, DC. Now, Wittes is conducting these protests abroad on what he calls the ERAS (Eradicating Russian Ambassadorial Sleep) Tour. In his conversation with Katherine Pompilio, one of Lawfare’s associate editors and this week’s Chatter guest host, Wittes talks about his most successful special military operation yet, dealing with international law enforcement, NATO’s impact on Baltic countries, the American versus European understanding of the war in Ukraine, and more.

Works mentioned in this episode:

• Ben’s Substack Dog Shirt Daily
• Ben’s speech at a rally in Stockholm
• The work of Nikita Titov

Chatter is a production of Lawfare and Goat Rodeo. This episode was produced and edited by Cara Shillenn of Goat Rodeo. Podcast theme by David Priess, featuring music created using Groovepad.

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This week, the UN ad hoc committee tasked with elaborating a cybercrime convention is meeting in New York. Delegates will be involved in in-depth negotiations of the draft convention, ahead of the concluding session in January 2024. The cybercrime convention is only one of many initiatives in the growing field of cyber diplomacy. Looming over this work is a big question: Is there enough common ground to pave the path for consensus?

Lawfare’s Fellow in Technology Policy and Law Eugenia Lostri sat down with Ambassador Nathalie Jaarsma, the Netherlands Ambassador at-Large for Security Policy and Cyber. They discussed the tensions plaguing the cyber negotiations in the UN, how diplomacy can help ensure accountability for malicious state behavior in cyberspace, and how to think about progress in the field.

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In May 1984, former U.S. Marine, engineer, and early Silicon Valley entrepreneur James Harper was sentenced to life in prison for his central role in an audacious scheme to sell a bevy of classified documents relating to U.S. missile defense to the Soviet bloc and its allies. Four decades later, his story was almost forgotten, until it was rediscovered and investigated by national security reporter Zach Dorfman with help from some of the men who helped catch Harper—and the spy himself. Now, with help from our friends at Goat Rodeo, Dorfman has turned this story into a six-part podcast series entitled “Spy Valley,” which takes a close look at Harper's seminal spy case. Lawfare Senior Editor Scott R. Anderson sat down with Dorfman to talk over Harper's story and what it can tell us about the relationship between America's national security and those working at the bleeding edge of technological development.

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In 2003, President Bush created the President’s Emergency Plan for AIDS Relief, or PEPFAR, and in the twenty years since, the program has been credited with saving over 25 million lives and stabilizing health systems around the world. On Sept. 30, 2023, the program will expire if Congress doesn’t act, putting millions of people at risk of losing access to HIV/AIDS treatment.

Lawfare Associate Editor of Communications Anna Hickey sat down with Emily Bass, a writer and activist who has spent more than twenty years writing about and working on HIV/AIDS. In 2021, she wrote “To End a Plague,” a book on America's war on AIDS in Africa. They discussed how PEPFAR has changed over the past two decades, why it is at risk of expiring this fall, and what the expiration would mean for the millions of people who depend on it.

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It’s only been a few weeks since Special Counsel Jack Smith indicted Donald Trump. But both he and his lawyers have already been previewing their case in defense: that he was protected by the First Amendment, that he relied on the advice of counsel, and—the glue holding it all together—he really believed what he was saying. 

We recently published two articles on the subject. The first, by Lawfare Editor-in-Chief Benjamin Wittes and Legal Fellow Saraphin Dhanani, assesses Trump’s likely defenses. The second, by Lawfare Senior Editor Roger Parloff, argues that a jury may well see through them. Lawfare Executive Editor Natalie Orpett sat down with Ben, Saraphin, and Roger to talk through it all.

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This week on Rational Security, Alan, Quinta, and Scott were joined by Fulton County correspondent Anna Bower to talk through the week’s big news down south, including: 

• “Waiting on a Midnight Complaint in Georgia.” Late on Monday night, Fulton County District Attorney Fani Willis finally indicted Donald Trump alongside eighteen co-conspirators for attempting to interfere with the state of Georgia’s 2020 election results. What does this fourth criminal indictment mean for the universe of legal cases against the former president?
• “Hunter Becomes the Hunted.” Earlier this week, Attorney General Merrick Garland took the unexpected step of appointing Delaware U.S. Attorney David Weiss as a special counsel to investigate Hunter Biden. What led to this move? And what does it mean for the investigation into the president’s son?
• “Why So CFIUS?” President Biden has finally issued a long-expected executive order installing some controls on outbound U.S. investments, particularly in relation to China and certain sensitive technology sectors. How big a deal is this new policy?

For object lessons, Alan shouted out his latest favorite thriller about a bunch of falsely accused Brits, “Suspicion.” Quinta brought the listeners’ attention to an entertaining court transcript about “fleets.” Scott celebrated the late Paul Reubens’ legacy as Pee-Wee Herman, including his phenomenal 1979 debut on “The Dating Game.” And Anna endorsed her latest courtroom treat, Papa John’s Pizza.

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From May 16, 2022: In order to tell you this story, we need to start at the beginning, just before the U.S. invasion. After 9/11, the CIA set their sights on al-Qaeda’s base in Afghanistan. After a military invasion that fall, people up and down the chain of command learned that in order to fight this war the US needed local partners to help.

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Listeners of this podcast are probably familiar with Molly Reynolds’s work on Congress. She’s a Senior Fellow at Brookings and a Senior Editor at Lawfare—and she has a new report out at Brookings, with Naomi Maehr, on “How partisan and policy dynamics shape congressional oversight in the post-Trump era.” Molly and her team have collected an enormous amount of data over the years about how Congress conducts oversight, and the report is a thought-provoking overview of what the legislature got up to during the 117th Congress. 

Today on the show, Lawfare Senior Editor Quinta Jurecic talked with Molly about her report and what patterns she’s found in oversight from the 116th Congress through today. For fans of the Jan. 6 Committee’s work, they also discussed that committee’s investigation and what it does and doesn’t tell us about congressional investigations going forward.

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Dr. Calder Walton, assistant director of the Applied History Project and Intelligence Project at Harvard University's Belfer Center for Science and International Affairs, has become one of the world's most highly respected intelligence historians. His most recent book, Spies: The Epic Intelligence War Between East and West, describes the long history of Russian spying--placing it into the wider context of the hundred-year espionage war between the East and West. And this gives him a remarkable perspective on how Soviet and Russian operations against the West have been portrayed in movies and television.

David Priess spoke with Calder about his path to researching and writing within the intelligence history subfield; the story of the Mitrokhin archive; the Cambridge Five; the Rosenbergs; Oleg Penkovsky; Aldrich Ames; Robert Hanssen; Russian disinformation campaigns in historical context; enduring popular myths about the master recruits of the KGB; and much more.

Among the works mentioned in this episode:

• The article "How Oppenheimer's Atomic Bomb Secrets Were Really Stolen by Soviet Russia," Fortune (July 24, 2023), by Calder Walton
• The play Hamilton and book Alexander Hamilton by Ron Chernow
• The book The Sword and the Shield by Christopher Andrew
• The book The Mitrokhin Archive by Christopher Andrew and Vasili Mitrokhin
• The book Defend the Realm: The Authorized History of MI5 by Christopher Andrew
• The book The Secret History of MI6 by Keith Jeffery
• The book Behind the Enigma: The Authorized History of GCHQ by John Ferris
• The book Empire of Secrets by Calder Walton
• The book Spies -- digital expansion website
• The book Spies, Lies, and Algorithms by Amy Zegart

Chatter is a production of Lawfare and Goat Rodeo. This episode was produced and edited by Cara Shillenn of Goat Rodeo. Podcast theme by David Priess, featuring music created using Groovepad.

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Lawfare Fulton County Correspondent Anna Bower is the author of the Lawfare article entitled, “What the Heck Happened in Coffee County, Georgia?” It is a detailed look back at the computer intrusion that shows up rather prominently in Fulton County District Attorney Fani Willis’s election interference indictment. Anna joined Lawfare Editor-in-Chief Benjamin Wittes to talk it through. How did all of this information—depositions, court filings, etc.—fall into her lap and reveal this incredible yarn? Why did people associated with the Trump campaign get interested in what happened in Coffee County, Georgia? And how did a team end up taking election system data from the county—in broad daylight—despite it being computer intrusion and theft?

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On July 18, Michigan Attorney General Dana Nessel unveiled criminal charges against 16 people—the “fake electors” from that state who featured in Trump’s effort to hold onto power in 2020. Just a few weeks later, a special counsel in Michigan announced additional charges related to the 2020 election, this time against three people who allegedly accessed voting machines in the state without authorization. So if you’ve been tracking developments when it comes to accountability for misconduct surrounding the 2020 election, it’s best not to take your eye off Michigan.

To discuss, Lawfare Senior Editor Quinta Jurecic sat down with Clara Hendrickson, a politics reporter at the Detroit Free Press. They talked through the backstory behind these prosecutions and why Michigan became such a hotbed of conspiracy theories and alleged crimes in 2020.

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On Monday, August 14th, former President Donald Trump was indicted by a grand jury in Fulton County for his alleged attempts to manipulate the electoral vote count in the state of Georgia during the 2020 presidential election. For this emergency edition of the podcast, Lawfare Editor-in-Chief Benjamin Wittes sat down on Lawfare Live with Legal Fellow Anna Bower and Senior Editors Quinta Jurecic and Scott Anderson to unpack it all.

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The district attorney for Fulton Co., Georgia, issued a fourth criminal indictment of former President Donald Trump late last night, for crimes relating to efforts to manipulate the 2020 election results. Lawfare will be hosting a live online discussion of the indictment and what it means. Check our website, lawfaremedia.org, for details and links to watch. Become a Material Supporter of Lawfare to join the conversation live and ask us your questions.The audio from that session will be released as an episode of the Lawfare Podcast after the event.

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On Aug. 6 former President Donald Trump announced on social media that he would “immediately” seek a “venue change ... out [of] D.C.” of his recent four-count federal indictment in Washington, D.C., for allegedly conspiring to overturn the results of the 2020 presidential election. He cited the city’s overwhelmingly majority liberal political demographics as a reason for transferring the trial’s venue, and called the city “a filthy and crime ridden embarrassment to our nation.”

Is Trump likely to succeed in court if he files a motion to transfer venue? Is there any precedent for this? Have other Jan. 6 defendants made similar claims? And how is the Supreme Court likely to interpret this issue?

To answer all of these questions and more, Lawfare Associate Editor Katherine Pompilio sat down with Lawfare Senior Editor Roger Parloff, who has been closely tracking Jan. 6 prosecutions, and recently published a piece on Lawfare unpacking this issue. They discussed what Jan. 6 defendants have argued in their motions to transfer venue, how the Justice Department has responded, and why if Trump files a motion to transfer venue in his Jan. 6 case, it is likely, as Roger puts it, “dead on arrival.” 

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This week, Alan, Quinta, and Scott beat back the heat to dig into the week's big national security news stories, including:

• “ECOWAShed?” We are now several weeks into a coup in Niger, a country once seen as one of the more reliable Western partners in the Sahel region and home to French and U.S. troops who have been helping the Nigerien military combat a local Islamist insurgency. Even as the Nigeria-led Economic Community of West African States, or ECOWAS, has threatened sanctions and intervention to unwind the coup, neighboring states like Burkina Faso and Mali with close ties to Russia and its Wagner Group have threatened a military response in kind. What might this coup mean for the future of the Sahel? And how should the United States be responding?
• “A Tale of Two Sittings.” Former President Donald Trump is now the subject of two different criminal indictments, each of which is being overseen by a very different judge in very different ways. What should we make of their divergent approaches thus far? And what does it mean for the effectiveness and legitimacy of the justice system in these highly polarizing cases?
• “KOSA, No Sir.” A bipartisan coalition in Congress has rolled out a new version of the Kids Online Safety Act, or KOSA, that seeks to respond to concerns raised by digital rights and civil liberty groups while still taking steps towards protecting children online. But many on the right and left aren’t having it. What should we make of this new proposal and the reactions it’s provoked?

For object lessons, Alan invoked his father-of-a-son credentials to recommend Christine Emba's recent piece, "Men Are Lost. Here's a Map Out of the Wilderness." Quinta recommended the Neil Gaiman and Terry Pratchett mash-up, "Good Omens" (the book, not the TV show). And Scott shared plans for his homemade improvised pizza oven, which he set up on his gas grill with just some fireproof bricks, two baking steels, and a heavy dose of grit.

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From June 16, 2020: The 2020 presidential election is less than five months away. As the election inches closer and closer, concerns have grown about the possibility that President Trump, should he lose the election, would refuse to recognize the legitimacy of the result. How can we think about that risk? Do we have adequate statutory and constitutional guardrails that protect us from electoral catastrophe? Jacob Schulz sat down with Lawrence Douglas, James J. Grosfeld Professor of Law, Jurisprudence and Social Thought at Amherst College, and author of the new book “Will He Go? Trump and the Looming Election Meltdown in 2020.” They talked about the vulnerabilities in our electoral system, historical examples of mishaps in presidential elections and how to think about the president’s continued hostility toward elections and, in particular, mail-in voting.

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Former President Trump has been arguing for some time now that the criminal charges he’s facing in New York, Florida, and D.C. are politically motivated. At a campaign event in New Hampshire a few days ago, he also complained that the cases are forcing him “to spend time and money away from the campaign trail.” The cases haven’t even gotten to trial yet, but two of them are scheduled to take place during campaign season.

Which raises the question: does Trump have to actually attend all of these trials while he’s also running for president? 

Lawfare Executive Editor Natalie Orpett sat down with Dan Richman, the Paul J. Kellner Professor of Law at Columbia Law School, to discuss. As it turns out, it’s a complicated question.

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Katie Benner is a features writer for the New York Times, who covered the Justice Department for a number of years beginning in 2017. In a wide-ranging conversation, she sat down with Lawfare editor-in-chief to talk about the challenges of walking into the Justice Department beat during the Trump administration and covering the post-election uprising within the department. She also gave a textured assessment of the department’s criminal investigation of Trump and other Jan. 6 defendants. And she talks about what makes a Justice Department source, and how the department has changed in the era of Merrick Garland.

Among the works mentioned in this episode:

• The article, "Trump and Justice Dept. Lawyer Said to Have Plotted to Oust Acting Attorney General," by Katie Benner.
• The article," Louisiana School Made Headlines for Sending Black Kids to Elite Colleges. Here’s the Reality," by Erica L. Green and Katie Benner

Chatter is a production of Lawfare and Goat Rodeo. This episode was produced and edited by Cara Shillenn of Goat Rodeo. Podcast theme by David Priess, featuring music created using Groovepad.

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The Task Force for a Trustworthy Future Web was put together by the Atlantic Council for a sprint study of the future of trust and safety in the ever-evolving internet. It issued its report, “Scaling Trust on the Web,” at the end of June. Lawfare Editor-in-Chief Benjamin Wittes sat down with two members of the task force to talk all about it. Rose Jackson is the Director of the Democracy in Tech Initiative at the Atlantic Council, and Camille François is the Global Director of Trust and Safety at Niantic. They talked about how the task force came to be; about what has been learned about trust and safety from a lot of areas to date, including and especially gaming; and about the challenges in the future as trust and safety scales to new ecosystems.

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The increasingly pervasive use and abuse of spyware by governments around the world has led to calls for regulation and even outright bans. How should these technologies be controlled? Asaf Lubin, an Associate Professor of Law at Indiana University's Maurer School of Law, thinks that the best path forward is an international agreement that would regulate, but not outlaw, these important national security and crime-fighting tools. He's just published a paper for Laware's ongoing Digital Social Contract research paper series making his case for what he calls the Commercial Spyware Accreditation System. 

Alan Rozenshtein, Associate Professor of Law at the University of Minnesota and Senior Editor at Lawfare spoke with Asaf about why current efforts to control spyware are insufficient and why only a global regime can do the job.

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Just weeks ago, the U.S. Court of Appeals for the D.C. Circuit upheld the life sentence of a Yemini national serving out his time at the Guantanamo Bay detention center. He had appealed this life sentence, in part on the grounds that his conviction was based on evidence obtained by torture. Meanwhile, at the Guantanamo military commissions, another detainee tried to appeal charges against him on the basis that torture-obtained evidence was used in his referral for trial by the military commissions—but in June, the body that reviews referrals for trials at Guantanamo denied this appeal. He and his co-defendants are currently set to have pre-trial hearings in October. 

All of this is happening despite the fact that in 2022, in a case about a different Guantanamo detainee, the Biden administration’s Justice Department committed to a reinterpretation of a key statute that blocks the use of torture-obtained evidence in Guantanamo litigation and reaffirmed that it would not try to admit statements that the detainee gave while in CIA custody. 

So how and why is it that torture-obtained evidence still seems to be being used in certain GTMO cases? To understand the issues, Lawfare Associate Editor Hyemin Han spoke to Scott Roehm, Director of Global Policy and Advocacy at the Center for Victims of Torture, and an Adjunct Professor of Law at Georgetown Law School. They talked about the history of torture evidence at GTMO, dove into a few cases in context of the Justice Department’s 2022 re-interpretation, and discussed what this all might mean for other GTMO detainees moving forward.

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In the last year, the ADL and GLAAD tracked at least 356 incidents of anti-LGBTQ+ hate and extremism in the U.S. This marks an alarming rise over the past two years of anti-LGBTQ+ sentiment and violence. 49% of all incidents were perpetrated by individuals associated with extremist groups. This seems to point toward a much larger recent focus on the LGBTQ+ community by far-right extremists.

Lawfare Intern Gia Kokotakis sat down with Meghan Conroy, a Research Fellow at the Atlantic Council's Digital Forensic Research Lab who leads its domestic extremism research portfolio, and Jon Lewis, a Research Fellow at George Washington University's Program on Extremism. Both Jon and Meghan have done significant research on far-right extremist groups and ideologies, as well as their intersections with anti-LGBTQ+ violence. They discussed the role far-right extremist groups previously played in anti-LGBTQ+ violence, what may have caused a spike in violence against the queer community, and how the extremist groups committing these acts of violence differ from our traditional conception of the far right.

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This week on Rational Security, Alan, Quinta, and Scott were joined by co-host emeritus Benjamin Wittes to talk through the week's YUGE national security news, including:

• “So THAT’s What the Insurrection Act is For.” Former President Trump has been indicted for conspiring to overthrow the results of the 2020 election, including through the insurrection on Jan. 6. And while they haven’t been charged, the indictment names six co-conspirators who were allegedly willing to go to the mat—including former Justice Department official Jeffrey Clark, who, in one of the darkest moments in the indictment, suggested that the Insurrection Act would be used to deploy the military against anyone who protests the Trump administration’s actions. What does this indictment mean, historically and politically? And where will the trial go from here?
• “The Spy Who Nagged Me.” The intelligence community is knocking on Congress’s door, hat in hand, asking once again for the renewal for the controversial-but-essential section 702 surveillance authority. But odds seem slimmer than ever this year, not least because the political dynamics around federal law enforcement and intelligence changed so dramatically over the course of the Trump administration. What are the odds of renewal? And what conditions are likely to come if it happens?
• “Hunter and the Fox.” President Biden’s son Hunter, who has wrestled with substance abuse and mental health issues, is back in the news for at least attempting to plead guilty to an array of criminal offenses—and for congressional testimony alleging that he parlayed access to his father into lucrative business deals. The stories have become a mainstay in conservative media circles and right-wing attacks on President Biden. But how much is smoke and how much is fire?

For object lessons, Alan recommended the period thriller “Operation Mincemeat” and its focus on Colin Firth's double-breasted period suits. Quinta sang the praises of the Star Wars section at Disneyland, Galaxy's Edge. Scott endorsed “The Thief Collector,” a charming documentary about a real-world heist and a retired couple's dark double-life. And Ben celebrated his decision to bring "The Orb" out of retirement for the big Trump indictment.

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With the indictment and arraignment of former President Donald Trump this past week, Jan. 6 and its aftermath are very much on people's minds. So for today's Lawfare Podcast archive episode, we're bringing you the first episode of our narrative podcast series on precisely that topic. It's called The Aftermath.

In this first episode, we looked at the events of Jan. 6 itself and all of the questions about accountability that followed. We recorded this first episode in 2021, long before we knew that Trump would eventually be indicted for his role in all of this. It's a reminder of how things looked at the time.

You can listen to the whole first season of The Aftermath on our website, or wherever you get your podcasts.

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On July 27, the Justice Department announced a sprawling civil rights investigation, also known as a pattern or practice investigation, into the City of Memphis and the Memphis Police Department. The announcement came just weeks after the department’s Civil Rights Division released a report of a similar investigation into abuses at the Minneapolis Police Department. Both investigations were motivated, at least in part, by the murder of black men at the hands of police—Tyre Nichols in Memphis and George Floyd in Minneapolis. 

In a recent article for Lawfare about the Minneapolis report and another report looking at the Louisville Metro Police Department, Christy Lopez wrote: “As with past police investigations, the abuse these reports document is chilling, partly in its frequency and perhaps even more so in conveying how casually abuse can occur in policing.” And yet she remained hopeful, writing that the Civil Rights Division of the Justice Department “heralded what could be a new era in police reform.”   

Lawfare Managing Editor Tyler McBrien sat down with Christy, a Professor from Practice at Georgetown Law and former Deputy Chief in the Special Litigation Section of the Civil Rights Division at the U.S. Department of Justice, to talk about her extensive experience conducting pattern or practice investigations into police departments and negotiating consent decrees. They talked about the history of these investigations stretching back to the Rodney King beating, the common trends of police abuse that pattern or practice investigations find, and whether or not we’re in the midst of a broader reckoning with ideas of policing and public safety. 

Please note that this episode contains content that some people may find disturbing, including graphic depictions of police violence. Listener discretion is advised.

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In June 2017, FBI agents arrived at the home of Reality Winner, a translator working for the NSA, to question her about an unauthorized leak of classified information concerning Russian interference in U.S. elections. Six years later, Tina Satter’s new film, “Reality,” tells the story of that fateful day, which led to Winner’s imprisonment. 

Satter’s screenplay relies almost entirely on a verbatim transcript of Winner’s conversations with the FBI agents. The dialogue is by turns quotidian and suspenseful. "Reality" is partly a psychological thriller as well as an exploration of the mind and motivations of Winner herself. She received the longest prison sentence ever given by a federal court for the unauthorized release of government information to the media. 

Shane Harris talked with Satter about her film, which is based on her stage play, “Is This a Room.” Satter says she became fascinated with Winner after reading about her arrest in the press. She thought the transcript had dramatic potential. To Satter, it read like the script for a play, with a list of characters and dialogue. “Is This a Room” received critical praise and won important theatre awards. The movie, “Reality,” is streaming on Max. 

Satter began her theatrical career in Portland, Oregon, and has worked with some of the biggest names in experimental theatre. She now lives and works in New York. 

Among the works mentioned in this episode:

“Reality” on Max: https://www.hbo.com/movies/reality 

“Is This a Room” review: https://www.nytimes.com/2021/10/11/theater/is-this-a-room-review.html 

The New York magazine article that first got Satter interested in Winner's story: https://nymag.com/intelligencer/2017/12/who-is-reality-winner.html 

Satter’s production company, Half Straddle: http://www.halfstraddle.com/ 

Reality Winner’s interview with Rolling Stone: https://www.rollingstone.com/politics/politics-features/reality-winner-interview-prison-nsa-1261844/ 

Chatter is a production of Lawfare and Goat Rodeo. This episode was produced and edited by Noam Osband and Cara Shillenn of Goat Rodeo. Podcast theme by David Priess, featuring music created using Groovepad.

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