The Lawfare Podcast
Gabe Rottman on the Justice Department's New Guidelines on Press Subpoenas
It's been about six months since the Attorney General issued new guidelines on compulsory process to members of the press in criminal and national security investigations, and two officials of the Reporters Committee for Freedom of the Press—Bruce Brown and Gabe Rottman—wrote a detailed analysis of the document in two parts for Lawfare.
Rottman joined Lawfare Editor-in-Chief Benjamin Wittes to go through the document carefully: the long history that led to it, the shifting policies that have gotten more restrictive over the years since the Supreme Court ruled in Branzburg v. Hayes, the ramp-up of leak investigations and reporter subpoenas in the Obama and Trump administrations, and the new policy that creates a red line policy against them under most (but not all) circumstances. They talked about the document, about why the Justice Department has forsworn a historic and upheld authority, and about what it means for reporters and criminal investigations going forward.
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An Update on Fulton County from Anna Bower45:19It's been an eventful few days in Fulton County with a flurry of orders, a flurry of briefings, the former president deciding he wasn't going to seek removal to federal court, waiting for the 11th Circuit to rule on other people's removals, and other removals being denied—there’s just been a lot going on. To catch up, Lawfare Editor-in-Chief Benjamin Wittes sat down with Lawfare Legal Fellow Anna Bower. They talked about whether we’ll really see this case going to trial on October 23, about bail bondsman Scott Hall’s plea agreement, about whether other people will take the plea, about why Donald Trump is not seeking removal, and about all the people who want removal who just can't seem to get it.
Checking In on Congress55:35If you’ve been following the news out of Congress recently, you’ve probably been focusing on the narrowly averted government shutdown and the indictment of Democratic Senator Bob Menendez—and, perhaps, the House Republicans’ decision to begin an impeachment inquiry against President Biden. But there have also been some notable updates when it comes to the continuing fallout from Jan. 6. Recently, the U.S. Court of Appeals for the D.C. Circuit unsealed an opinion limiting the ability of the special counsel’s office to access phone records from Rep. Scott Perry under the Speech and Debate Clause. Meanwhile, Trump’s onetime advisor Peter Navarro was finally convicted of contempt of Congress for defying the Jan. 6 committee. Lawfare Senior Editors Quinta Jurecic and Molly Reynolds sat down with two of our favorite guests to call when there’s news about Congress and the law: Mike Stern, former Senior Counsel to the House of Representatives, and Eric Columbus, who recently served as Special Litigation Counsel in the House Office of General Counsel. They discussed Perry, Navarro, how exactly one should define an impeachment inquiry, and, of course, the Menendez indictment.
War Crimes, Tribunals, and Reparations: A Conversation with Ukraine’s Prosecutor General56:23Russia’s war against Ukraine is the most documented conflict in history. In every part of Ukraine from which Russian forces have retreated, Ukrainian officials and civil society groups have found shocking evidence of mass atrocities and war crimes: torture, rape, summary executions, forced disappearances, looting, and the destruction of Ukrainian cultural heritage sites. The Ukrainian government is working around the clock to seek justice for the victims, even as the war rages on.In this special podcast episode, Lawfare Contributing Editor Eric Ciaramella brings you audio from a recent event at the Carnegie Endowment for International Peace featuring Ukraine’s Prosecutor General, Andriy Kostin. In his discussion with Carnegie President Tino Cuéllar, Kostin laid out a compelling case for why Ukrainians believe that peace without justice and accountability would be a false peace. Kostin discussed how his office is dealing with the overwhelming caseload and the help it needs from international partners. This event was organized in partnership with the American Society of International Law and the Embassy of Ukraine in Washington.
Rational Security: The “So Much for that Menendez Rest Stop” Edition01:06:19This week on Rational Security, Alan, Quinta, and Scott reunited to discuss the week’s big national security news, including:“Do as I Menendsez, Not as I Menendo.” New Jersey Senator and, until recently, chairman of the Senate foreign relations committee Bob Menendez was indicted alongside his wife last week, on charges that they accepted money from Egyptian businessmen in exchange for information and favors arising from Menendez’s official duties. How serious are these charges? Where will they lead?“…with a Silver Spoon.” D.C. federal district court judge Tanya Chutkan is weighing a gag order on former President Trump, aimed at restraining him from commenting on the proceedings or attacking various officials involved in them. Trump and his attorneys, meanwhile, see the gag order request as an attack on his First Amendment rights. Who is likely to prevail? And what are the broader stakes?“The Forever Chore.” The House foreign affairs committee is set to hold the latest in a long series of hearings on a topic that has been on Congress’s agenda for more than a decade: reforming the 2001 AUMF that provides the legal basis for most global counterterrorism operations. But despite near-universal agreement on the need for change, progress has been limited. Is there reason to think this time will be different?For object lessons, Alan recommended the Dear Committee Trilogy, which even non-academics will find hilarious. Quinta urged listeners to check out the recent New York court decision concluding that former President Trump and his businesses misrepresented the value of various properties. And Scott log-rolled for his new law review article digging into some of the tricky constitutional issues raised by the prospect of defending Taiwan.
Trump’s Trials and Tribulations: A Trip Through Four Courts01:09:40It's another episode of Lawfare's live Thursday show, “Trump’s Trials and Tribulations,” a tour around four courts. This week, Lawfare Editor-in-Chief Benjamin Wittes sat down with Lawfare Legal Fellow Anna Bower and Lawfare Senior Editors Scott R. Anderson and Roger Parloff. They talked about what's going on in Fulton County, about that judgment against Donald Trump and the Trump Organization in the civil case in New York, about Tanya Chutkan’s refusal to recuse herself, and about CIPA, CIPA, CIPA—classified materials in Mar-a-Lago. This is a live conversation that happens online every Thursday at 4:00pm Eastern Time. If you would like to come join and ask a question, be sure to visit Lawfare’s Patreon account and become a Material Supporter.
Lawfare Archive: General Austin as Secretary of Defense36:35From December 9, 2020: President-elect Joe Biden has selected a new defense secretary, retired general Lloyd Austin, former commander of Central Command. The selection has received somewhat mixed reviews, and to discuss why, Benjamin Wittes sat down with Brookings senior fellow Mike O'Hanlon, a defense policy analyst, and Kori Schake, the head of defense and foreign policy at the American Enterprise Institute. They talked about why people are upset about General Austin's nomination, his background, the experience he has and doesn't have, who would have been a better choice and whether it matters that this is the second administration in a row that begins by putting a retired general at the head of the Pentagon.
Robert Silvers on the Cyber Safety Review Board41:17The Cyber Safety Review Board was created by a Biden administration Executive Order entitled, “Improving the Nation’s Cybersecurity.” The Board reviews major cyber events and makes concrete recommendations that can drive improvements within the private and public sectors. Lawfare Senior Editor Stephanie Pell sat down with Robert Silvers, Under Secretary for Strategy, Policy, and Plans at the Department of Homeland Security and Chair of the Cyber Safety Review Board, to discuss the Board’s mission and work. They talked about the two reports that the Board has issued, one that it’s currently working on, and a legislative proposal from DHS that seeks to codify the Board in the law and ensure that the Board receives the information it needs to continue to advance the overall security and resiliency of our digital ecosystem.
Chatter: Governing Space Settlements Ethically with Erika Nesvold01:31:05As humanity builds settlements beyond Earth, myriad ethical issues will arise--many in a different way than they do terrestrially. Astrophysicist and space communicator Erika Nesvold has devoted extensive thought and research to how to ethically govern space settlements, most notably on her podcast Making New Worlds and in her book Off-Earth.In a conversation that pairs well with Shane Harris's March 2022 Chatter discussion with astrobiologist Lucianne Walkowicz about ethical space exploration, David Priess spoke with Erika about her grounding in Star Trek and other science fiction, the JustSpace Alliance that she co-founded with Lucianne, that alliance's interactions with space industrialists, Erika's application to be an astronaut, conflicting motivations for humanity to settle space, how we should select space settlers, the Outer Space Treaty of 1967, the concept of legal personhood for non-terrestrial bodies, labor law and criminal justice in space settlements, how motivations for settling space influence openness to various forms of government, and more.Among the works mentioned in this episode:The podcast Making New WorldsThe book Off-Earth by Erika NesvoldThe Chatter podcast episode Ethical Space Exploration with Lucianne WalkowiczThe Star Trek universeThe Foundation book series by Isaac AsimovThe Dune book series by Frank HerbertThe YouTube video All TomorrowsThe movie 2012The book 2010 by Arthur C. ClarkeThe book Artemis by Andy WeirThe movie SunshineThe book A Brief History of Equality by Thomas PinkettyThe book series The Wheel of Time by Robert JordanThe book Doomsday Book by Connie WillisChatter 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.
Ken Chesebro’s Upcoming Trial01:08:40Next month, Kenneth Chesebro—the alleged architect of the fake electors plot—is set to be tried in Fulton County, Georgia, on racketeering and other charges. This week, Lawfare Editor-in-Chief Benjamin Wittes and Lawfare Legal Fellow and Courts Correspondent Anna Bower sat down with Chesebro’s defense attorneys, Scott Grubman, Manny Arora, and Robert Wilson. In a wide-ranging conversation, they discussed why Chesebro demanded a speedy trial, debated the merits of several pending motions, and chatted about the prospect of a settlement in Chesebro’s case.