A Conversation With JVL

On the important stuff: the rule of law and Ukraine

Good Evening:

The estimable

Jonathan V. Last

had me on his very estimable Substack live show today. It’s a good conversation.

I have to say, I like the Substack live thing a lot. I have used it only in a limited fashion to date, for a livestream of a #SpecialMilitaryOperation. It has certain limitations that make it not ideal for #DogShirtTV, specifically, a limitation on how many people can be onscreen at once. That said, it’s pretty cool, and I plan to start experimenting with it.

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Today on #DogShirtTV, the estimable Alicia Wanless, the estimable Eve Gaumond and I welcomed the estimable Brian Rosenwald, an American political historian, to talk to us about the history of talk radio and how the far right took it over. We discussed Rush Limbaugh, podcasts, radio frequencies, the Fairness Doctrine, and a whole swath of media history.

Also, I was late. And simultaneously early. And I did an opening monologue not apologizing for the confusion.

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Today On Lawfare

Compiled by the estimable Caroline Cornett

The Use and Abuse of Administrative Leave

Nick Bednar discusses the history of and discrepancies between the Administrative Leave Act and Biden-era Office of Personnel Management regulations used to justify the Trump administration’s purge of the federal workforce. Bednar highlights problems that arise from inconsistencies in administrative leave across the government, as well as the constitutional concerns the administration’s use of it creates:

Ultimately, the Trump administration’s actions do not comport with either the text or the spirit of the Administrative Leave Act. In a Jan. 20 memo, OPM Acting Director Charles Ezell stated, “The flexibility given to agencies in using administrative leave reflects the fact that ‘heads of Executive agencies have broad authority to manage their organizations, including the authority to grant administrative leave, unless prohibited by law.’” This statement cites a fact sheet that relies on the federal housekeeping statute. The legislative history shows that Congress sought to prevent agencies from using the federal housekeeping statute to escape the requirements of the Administrative Leave Act.

Musk Poses Cybersecurity Risks

Jeffrey Vagle details how Elon Musk and the Department of Government Efficiency’s (DOGE) access to government systems violates fundamental principles of cybersecurity and endangers critical government information infrastructure:

Over the past few weeks, stories have been emerging about several (very) young employees and associates of Elon Musk—operating under Musk’s controversial Department of Government Efficiency (DOGE)—being given access to federal government data systems. These systems contain highly sensitive information or are critical to the day-to-day funding and operation of the complex machine that is the United States. There are many legal and ethical concerns arising from these reports, but one area in particular deserves special attention: cybersecurity. Some sources claim that the access granted to several DOGE associates—none of whom appear to be government employees or possess appropriate security clearances—includes “administrator-level privileges.” This level of access gives the holder the ability to read, modify, or delete anything on that computer system. To grant these kinds of system privileges to unqualified, unauthorized personnel is a significant cybersecurity risk to U.S. critical information infrastructure.

Can Trump Invoke the Alien Enemies Act?

Ania Zolyniak outlines the history of the Alien Enemies Act (AEA) and the power it vests in the president. Zolyniak explains that although Trump’s justification for invoking it is tenuous, challenges to it also face an uphill battle given courts’ deference to foreign relations exceptionalism and the political question doctrine:

Trump’s order appears to specifically contemplate an AEA invocation based on a “qualifying invasion or predatory incursion”; however, his decision to designate cartels and other organizations as terrorists might be leveraged by his administration to support a “declared war” argument. The act does not specify whether the United States must be the one to declare war, and it is (hopefully) uncontroversial to say that no country—or cartel—has declared war on the United States. Thus, to trigger the AEA using the “declared war” option, Trump would need to argue that Congress, with whom the power to declare war exclusively sits, has declared war against a foreign nation or government. This raises two issues: Has there been a declaration of war and, if so, against what nation or government? Again, it would appear uncontroversial to say that Congress has not “declared war” since 1942. Even if Congress were to do so, it’s not clear what “foreign nation or government” would be the supposed targeted belligerent. Trump’s previously stated intention to use the AEA to “remove all known or suspected gang members, drug dealers, or cartel members from the United States” and return them to their unspecified countries of origin would require identifying the “alien enemies” to be removed not by their status as citizens of a belligerent nation or government, as required by the act, but by their membership in a non-state group. Moreover, his unsubstantiated—and definitely contested—allegations of the cartels’ “alliance” with Mexico does nothing to patch this flaw.

Podcasts

Natalie K. Orpett sits down with me to discuss my recent Lawfare article “Are the Courts Up to the Situation?” We talk about the courts' role in the face of unprecedented assertions of executive power, how they're faring so far, and what comes next:

Videos

On Feb. 14 at 4 p.m. ET, I will speak to Scott R. Anderson, Anna Bower, and Roger Parloff about the status of the civil litigation against President Trump’s executive actions, including the attempts to dismantle U.S. Agency for International Development and the Consumer Financial Protection Bureau, his firing of inspector generals, and the attempt to fire FBI agents and employees:

Documents

Tyler McBrien shares an executive order directing the secretary of state to reform recruiting, performance, evaluation, retention, and other diplomatic service standards, effectively reshaping the foreign service.

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Today’s #BeastOfTheDay is a lemming who is going to get the skier out of its territory whatever it takes:

Video Source

In honor of today’s Beast, remember that democracy is our territory, and, when our territory is invaded, you should not hesitate to scream about it—even if that means screaming at something much bigger than you.

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Last week, we drew attention to the non-publication of the CDC’s Morbidity and Mortality Weekly Report, which is supposed to be a weekly update on important public health information. The Trump administration blocked publication of the MMWR completely for two weeks, and, while publication has resumed, last week’s issue did not include crucial bird flu research that was set for publication a month ago.

Today, we bring good news and bad news. The good news is that today’s MMWR did include one of the bird flu updates we’ve been waiting for. The bad news is that:

Among 150 bovine veterinary practitioners, three had evidence of recent infection with HPAI A(H5) virus, including one who only practiced in two states (Georgia and South Carolina) with no known HPAI A(H5) virus infection in cattle and no reported human cases … These findings suggest that there might be HPAI A(H5) virus–infected dairy cattle in states where infection in dairy cattle has not yet been identified…

No practitioners with positive HPAI A(H5) serology results in this study reported influenza-like symptoms, including conjunctivitis. Detection of HPAI A(H5) antibodies in persons without reported symptoms suggests that surveillance of symptomatic exposed workers might underestimate human infection.

This is exactly the sort of crucial public health information that needs to be published as soon as possible, not delayed for a month out of political pique.