Good Afternoon:
Friday on #DogShirtTV, the estimable Anastasiia Lapatina gave us an update on Slava Kurbanov’s family and discussed whom to buy batteries for. The estimable Holly Berkley Fletcher wanted to talk about Trump and butts:
Monday on #DogShirtTV, the estimable Holly Berkley Fletcher and I discussed pink hair, pre-election analysis, and pettiness:
Tuesday on #DogShirtTV, the estimable Holly Berkley Fletcher brought on the estimable Jose Melendez (Dan Kobayashi) to distract us from election day by talking about various messes in various African countries:
Wednesday on #DogShirtTV, Na-na-na Boo Boo:
Recently On Lawfare
Compiled by the estimable Athena Smith
Can the Attorney General Remove Assistant U.S. Attorneys at Will?
Nick Bednar analyzes District Judge Jesse Furman’s decision in Maurene Comey’s lawsuit against the Trump administration, in which Comey alleges that she was removed under Article II because her father—former FBI Director James Comey—is critical of President Trump. Bednar explains how Judge Furman allowed Comey to file her lawsuit in district court and, if the ruling holds, the hope it may offer for other federal employees removed from their positions.
Furman closed by warning that accepting the government’s theory would “risk a return to the spoils system that Congress has sought to end since the nineteenth century.” Congress enacted the Due Process Amendments to protect attorneys, such as AUSAs, from arbitrary or politically motivated removals. Whether those protections survive depends on whether the Supreme Court is prepared to hold, for the first time, that Congress may not protect inferior officers from removal.
Assume Speech: A First Amendment Approach to Regulating AI Model Weights
Ben Vagle argues that the government faces a dilemma in regulating open-weight artificial intelligence (AI) tools, because currently the only realistic tool, the export control system, could damage the AI ecosystem by allowing the government to restrict models with few checks. Vagle outlines how a government export control regime could be configured if model weights themselves—which are trained on text and generate speech—are protected under the First Amendment.
That is dangerous territory. As a matter of policy, does the government want to risk losing? And does the public want to risk the government winning? Neither outcome is appealing. A loss would remove the government’s ability to regulate the release of model weights at all in the near term and might smother any energy Congress had to create a regime that can survive a First Amendment challenge.
Washington’s Overlooked Leverage Over China’s Chip Ambitions
Ethan Chiu explains how China’s leading chipmakers are making steps towards acquiring a domestically built advanced lithography machine. Chiu describes how China has not yet put the machine into practice, so the U.S. and allied chipmaking still has an advantage. He notes, however, that export control restrictions still allow Dutch, Japanese, and nonrestricted Americans to service Chinese DUV machines, which risks allowing Chinese toolmakers to close this gap.
EUV access remains a major U.S. and allied chipmaking advantage. But potential homegrown DUV machines still matter. If Chinese engineers make those scanners reliable enough for mass production, China’s fabs could significantly expand advanced domestic chip production. Because advanced fabs use both DUV and EUV for different chip layers, DUV would remain incredibly useful even if China eventually develops viable EUV machines.
Newly Public IG Report Sheds Light on Biden Administration Arms Transfers to Israel
Tyler McBrien reports that Lawfare obtained a newly public report that revealed how in September 2025, the State Department’s Office of the Inspector General determined it would take the government over 12 years to review allegations of human rights violations against Israel Defense Force units receiving U.S. assistance. McBrien describes how vetting procedures were underdeveloped and raised the risk of U.S. aid reaching ineligible units.
The inspector general found that the State Department lacked a system or process to verify that ineligible units are not receiving U.S. assistance. It also found that the Israel Leahy Vetting Forum (ILVF), a specialized internal State Department group charged with reviewing allegations of human rights violations committed by Israeli military and police units, was operating without final rules that would guide that process.
Hitler’s ‘Flood the Zone’ Strategy
Benjamin Carter Hett reviews Timothy Ryback’s book “53 Days: How Hitler Dismantled a Democracy,” describing it as a readable account of Hitler’s shockingly fast transformation from newly sworn-in chancellor to dictator. Hett notes Ryback’s argument that 1930s Germany offers parallels to democratic erosion in the United States today and that Hitler seized power by following a formulaic plan to dismantle German democracy.
What followed Hitler’s appointment as chancellor was a kind of “flood the zone” strategy—an early election call, a blizzard of executive orders curtailing press freedom and giving Hitler’s paramilitaries police powers, a crescendo of violence, then the shock of the Reichstag fire followed by thousands of arrests. The election of March 5 produced somewhat underwhelming results for the Nazis—contrary to their own expectations, they fell short of a majority—but at the end of the month they got their Enabling Act anyway.
Fraudfare: Weaponized Fraud Under International Law
Tymur Mykhailov details the growth of patriotic, Ukraine-based scam centers that target Russian citizens with fraudulent calls. Mykahilov explores whether “fraudfare”—scam campaigns as part of war—can be justified under international law, the extent to which it can be attributed to Ukraine, and the due diligence obligations Ukraine owes Russia. He concludes that there is limited justification for these scams, as they target civilians and do not qualify as cyberattacks.
While the factual details of fraudfare as criminal activity are not yet clear, cyber fraud is both legally and morally wrong, and Ukraine remains obligated to prevent, investigate, and prosecute it. However, even if this selective targeting existed, as the aggressor state, Russia is unlikely to succeed in pursuing an international legal remedy based on harm flowing from the war it initiated: Under the principle ex injuria jus non oritur, together with its treaty-based and customary law analogues, a state should not be permitted to derive a legal advantage from its own wrongful conduct.
Chinese AI Can Learn to Love the West
In the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren explains how new research suggests that pro-Chinese Communist Party bias can be removed from Chinese open-weight artificial intelligence (AI) models, how AI tools continue to discover long-standing PHP software, and more.
From a narrow technical perspective, Hirundo’s research potentially points out a neat solution for American companies that want to use Chinese open-weight models: Test, assess, reeducate. If empirical testing shows that a model’s pro-CCP bias is a problem, adjust it to make the models love the West! Off to the pro-democracy reeducation camp for you, comrade!
Elections as a Source of Violence
Daniel Byman describes the history of election-related violence in the United States and past lessons that still apply today. Byman notes that American election violence during periods such as Reconstruction was driven by prejudice but also rumor and deliberate misinformation. He concludes that, although there is greater mainstream tolerance in America today, support for political violence may be growing as the country becomes more politically divided.
America’s past is replete with election-related violence that drove its citizens farther apart, and the good news is that much of this appears to have stayed in the past. The bad news is that some trends are running in the wrong direction, with an increase in election-related threats, a more poisonous information sphere, and a nastier partisan environment.
Congressional Oversight after Trump v. United States
David Manners-Weber explains that although the 2024 Supreme Court decision in Trump v. United States limited executive branch oversight, Congress may push back against these limits if Democrats take control of one or both houses. Manners-Weber illustrates how a new Congress could confront these constraints and how the executive branch may react.
The full ramifications of Trump are not yet known. But, should Democrats retake one or both houses of Congress in the 2026 midterms, the executive branch will almost certainly wield the Trump decision aggressively to resist congressional investigations. Congressional Democrats will undoubtedly reject these broad readings of Trump. But congressional Democrats will also likely make creative arguments to circumvent the decision’s strictures, including potentially by invoking Congress’s power to investigate pursuant to its power to propose constitutional amendments.
Russia’s Partnership With Iran: Short-Term Gains, Long-Term Losses
In the latest edition of Lawfare’s Foreign Policy Essay Series, Carol R. Saivetz and Kimberly Marten analyze the current strategic partnership between Russia and Iran and find that, because the core interests of the two countries do not align, this relationship is likely temporary. Saivetz and Marten break down the partnership’s short-term benefits to each country, the ways it may burden Russia as the stronger party, and how this security cooperation could play out in the future.
It may seem that Russia and Iran are destined for a long alliance because of their tight cooperation in current war-fighting. Yet history suggests that a deep vein of distrust runs through their relationship, and their core interests do not always align. It is probably a mistake to assume that their current security cooperation will be permanent, especially because Russia is fundamentally so much stronger than Iran and over the long term will likely need the relationship less.
How to Steal an Election
Molly Roberts and Loren Voss outline the findings of the Strategic Threats to Elections and Electoral Legitimacy Working Group, which has spent the past year mapping out the possibility of interference in the elections. Roberts and Voss describe the various strategies which could be taken by state, non-state, or federal actors to intervene and how each strategy could be deterred. Even meddling which has no direct impact on election results, the authors note, may confuse the public.
The group found that any strategy to meddle in the election cannot be understood as a master plan concocted in a smoke-filled room to steal the election in one fell swoop. Instead, the threats are scattered and usually asynchronous, and each could be carried out by one or more of a diverse array of actors—government officials at the federal, state, or local levels; foreign actors; non-state actors. These election-meddling strategies often complement each other, but usually by coincidence. They tend to be uncoordinated.
American Troops at the Polls: A History
Aimee Chun, Tim Vanable, Niharika Vattikonda, and Joshua Villanueva walk through the history of American troop deployments at polling places. The authors analyze how the Reconstruction period in the antebellum South saw sustained federal deployments to election sites in order to help newly enfranchised Black men vote in elections. They conclude that the following long period of non-intervention built the modern understanding that federal troops have had no role in elections.
The legal regime that evolved over the course of U.S. history is complex, but the modern framework reflects an unequivocal principle: With extremely limited exceptions, the military should have no role in elections. In this piece, we explore the historical context that shaped that evolution. Where has the United States been in the area of election-related military deployments?
Where the Weight Lies: A Balancing Act for the Governance of Open-Weight AI Models
Jennifer Tridgell, Chinmayi Sharma, and John Speed Meyers argue that restrictions on foreign open-weight artificial intelligence (AI) models would not keep foreign influence out of the American AI ecosystem and could weaken U.S. influence abroad. The authors contend that the binary between open Chinese AI and closed American AI misdescribes the competition, since influence also lies in compute and other layers of the AI stack, not only in the weight file.
Policymakers, hawks, and much of the press frame the open-weight debate as a simple binary. Open-weight models are often portrayed in a way that flatters a favored narrative: two superpowers locked in an epic technology trade war with the U.S. as champion of its closed models (e.g., Anthropic, OpenAI) versus China as the insurgent pushing for openness (e.g., Moonshot AI, DeepSeek). Even those resisting restrictions accept the frame: Industry voices insist the geopolitical question and the open-versus-closed question “have nothing to do together.”
Musk’s Minnesota Deepfake Fight Could Define AI’s First Amendment
Jeff Kosseff breaks down the legal battle between Elon Musk’s xAI and Minnesota over a state law that lets the state’s attorney general seek fines from a tech company each time it enables a user to download a nudified image. Kosseff explains the First Amendment problems the law may raise and why a ruling in the case could reach well beyond nudification.
When laws impose liability on speakers or speech intermediaries, courts examine whether those laws apply only to defendants who act with a particular state of mind, such as intent, recklessness, or knowledge. Generally, the more rigorous the state-of-mind requirement, the more likely the law is to pass constitutional muster. What courts have yet to answer is what state-of-mind requirement applies to the regulation of speech generated using artificial intelligence.
Podcasts
On last Wednesday’s Lawfare Daily, Justin Sherman sits down with Andy Hendrickson and Alice Jou to discuss the process for testing and certifying devices in the United States, the national security risks of offshoring of that apparatus, and the future of the supply chain and risk space.
On Thursday’s Lawfare Daily, Natalie Orpett sits down with Joel Braunold, Natan Sachs, and me to discuss the Oct. 27 Israeli elections, whether longtime Prime Minister Benjamin Netanyahu has a path to staying in power, whether opposition parties can stay unified, whether there is any prospect of a governing coalition, and more.
On Rational Security, Scott Anderson sits down with Natalie Orpett, Michael Feinberg, and Molly Roberts to discuss how the Justice Department has escalated from warning about election fraud to actively shaping how votes are counted and certified; foreign election meddling, including Kremlin-linked deepfake videos falsely accusing Texas Democratic Senate Candidate James Talarico of sexual abuse; and more.
On Friday’s Lawfare Daily, Peter E. Harrell sits down with Sander Tordoir to discuss the recent deal between the European Union and China involving quotas on hybrid cars, an apparent pause in supply chain warfare, the new trade instruments the E.U. is developing, and more.
On Tuesday’s Lawfare Daily, Anastasiia Lapatina sits down with Anton Antonenko to discuss the energy infrastructure in Kyiv and why the upcoming winter may be the toughest yet for the Ukrainian capital.
On Scaling Laws, Kevin Frazier sits down with Alex Bores and Stacey Abrams to discuss Leader Abrahams’s framework for rebuilding democratic power, her efforts to connect people with opportunities to participate, and the role artificial intelligence might play in those efforts.
On Wednesday’s Lawfare Daily, Justin Sherman sits down with Katherine Dunn to discuss navigation technologies and bombing in World War II, satellites during the Cold War, and the birth and evolution of the U.S. government’s GPS program.
Videos
On Lawfare Live, I sit down with Molly Roberts, Roger Parloff, and Eric Columbus to discuss recent developments in litigation against the Trump administration, including former FBI Director James Comey being charged for a third time, a judge ruling that Maureen Comey was unlawfully fired as an assistant U.S. attorney, updates in the Kennedy Center litigation, and more.
On our Lawfare Live Midterm Debrief, at Wednesday, Nov. 4, at 1:30 p.m. ET, I sat down with Julia Curlee, Molly Reynolds, Loren Voss, Scott Anderson, Eric Columbus, and Michael Feinberg to discuss the results of the midterm elections.
Today’s #BeastOfTheDay is the armadillo, seen here being a cannonball:
In honor of today’s Beast, don your armor.
Tell Me Something Interesting
One of the very first Tell Me Something Interesting pieces I—EJ Wittes—wrote, way back in January 2025, was about the 1919 Boston Great Molasses Flood. It sounds like a joke, because it really seems like you ought to be able to outrun a molasses flood, but it really, really wasn’t. The aftermath looked like this:
I am delighted (I think) to announce that, as of mid-October, we have a Great Molasses Flood update.