Good Evening:
This was the scene at Dulles airport this evening, when I landed back in Washington after spending the weekend away with friends. Also this:
Not much has happened yet. And I’ve committed myself to not freaking out over atmospherics. So I’ll just say this: Welcome to the apocalypse. We’re gonna have a good time with it.
I also want to say something to all my friends who—in the Washington parlance—ran through the tape and stayed in government until noon today and didn’t spend any time job hunting and now found themselves having stopped on a dime driving 80 mph. Welcome back to the world. Take some deep breaths. Have a cup of tea. Sleep until 11:00. Get a massage. For you guys, the apocalypse can wait.
Friday on #DogShirtTV, we did our last show before today’s apocalypse by rambling about bipartisanship, tariffs, assassinations in Canada, Judge Aileen Cannon, and an old Finnish miner who lived near my uncle in Montana once upon a time.
The estimable Eve Gaumond, the estimable Alicia Wanless, the estimable Richard Wattenbarger, and the estimable Anna Bower all joined me to ask questions, provide answers, and generally keep me company.
Rome’s burning, and we’re fiddling.
Tomorrow on the show, the estimable Minna Ålander joins to discuss just how insane the apocalypse looks from overseas. Information on how to join live and pose questions is available below the paywall.
Speaking of the estimable Minna Ålander, she has a very estimable new Substack, to which you should subscribe:
I have added it to my list of recommendations because, well, I recommend it.
The Situation: Merrick Garland Takes His Leave
In my column on Friday, I reflect on Attorney General Merrick Garland’s farewell address, in which he spoke about the importance of an independent Department of Justice. Despite the criticisms that has been levied against Garland’s approach on all sides, I find his message more compelling than those of his critics:
I do, however, share the enthusiasm for doubling down on these norms—rather than abandoning them while insisting that one’s opponents observe them. I share it because the alternatives are all horrible. I share it because I can neither forgive the politicization of justice Trump is promising—and find the lies in defense of it disgusting—nor do I aspire to imitate that politicization, not even to get Trump. And I share it because I don’t expect the justice system to save us all from our reckless political choices.
Friday On Lawfare
The Supreme Court Rules Against TikTok—Now What?
Alan Rozenshtein describes the ramifications of the Supreme Court’s unanimous decision to uphold the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACAA), which bans TikTok from operating in the United States. Rozenshtein discusses the immediate effects the law will have on TikTok users and U.S.-based servers, the fate of other Chinese-owned video apps, and the limited actions President-elect Donald Trump could take to keep the platform afloat:
Despite Trump's opposition to the ban, he has limited options for helping TikTok. He could try to facilitate a divestiture, but there's no indication that China will permit ByteDance to sell TikTok, with or without the algorithm, the sale of which is expressly restricted under Chinese export control laws. This isn't surprising: TikTok's primary value to the Chinese government lies precisely in the national security threats that motivated PAFACAA—the ability to collect sensitive data on Americans and influence the content they see through ByteDance's (and thus ultimately Beijing's) control. A sale would eliminate these strategic benefits.
Three Lessons From the Supreme Court’s TikTok Decision
Andrew Woods argues that the Supreme Court’s ruling against TikTok marks the end of internet freedom in U.S. technology policy and may set a precedent for foreign countries to justify their own bans on American technology companies. Woods also suggests that the decision—which justifies a speech ruling on privacy grounds—creates a pathway for constitutional contestation for other cases concerning platform content regulation practices:
It will take time to digest the TikTok decision. (For immediate next steps, see here.) But at the dawn of a new administration, the case paints a picture of a very new kind of American technology policy. One that cares an awful lot about borders. One where “foreignness” is a legitimate justification for greater scrutiny. And one where government concerns about privacy justify speech restrictions—after decades of speech concerns imperiled nearly every effort at regulating the internet.
The Trump Administration Should Not Mess With the EU-U.S. Data Privacy Framework
Cameron Kerry and Shane Tews argue that the incoming administration should not revoke or make changes to Executive Order (EO) 14086—which forms the basis for the EU-U.S. Data Privacy Framework—because any disruptions to the framework would threaten data flows crucial to both the U.S. and European economies:
The incoming administration should avoid disrupting EO 14086 as it was carefully calibrated to fit elements of privacy protection essential under EU law into the confines of U.S. law and the constitutional separation of powers. The order does not change intelligence collection or procedures significantly but clarifies and codifies long-standing practices developed over multiple administrations. As Project 2025 has recognized, the Data Privacy Framework will inevitably face a challenge in the CJEU. Any significant changes to EO 14086 would jeopardize the Data Privacy Framework, potentially throwing commercial data transfers from Europe back into chaotic uncertainty and exacerbating distrust in the U.S. digital economy.
Podcasts
On Lawfare Daily, Lennart Heim and Janet Egan join Kevin Frazier to discuss the interim final rule on artificial intelligence (AI) diffusion announced by the Bureau of Industry and Security on Jan. 13, which could have major ramifications on the global race for AI dominance:
Documents
Katherine Pompilio shared the Supreme Court’s 9-0 decision upholding the constitutionality of PAFACAA, which bans TikTok from app stores and certain services unless its parent company, ByteDance, divests.
Tell Me Something Interesting
In a just world, an inauguration would involve the new president going birdwatching. Why?
explains.The word inauguration derives from the Latin word “inauguro,” a verb referring to the act of taking the omens, a necessary precondition to any public ceremony in the Roman state religion. Thus, the verb for “to take the omens” came to mean essentially “to officially begin,” since taking the omens was the starting point for official action.
So how does one take the omens? Well, you watch birds for a while. The Romans had lots of methods for watching birds. You could watch birds flying in the sky and see which directions they went (Cic. De Div. I.17). You could watch birds fighting each other and see who won (Val. Max. I.4.7). You could watch birds eating or not eating and observe how much food they dropped on the ground (Cic. De Div. II.33-34). All of these processes had careful procedures and immensely detailed technical vocabularies. Roman birdwatching was serious business
And bad things happened to you if you don’t watch the birds. As Valerius Maximus tells us:
P. Claudius, in the First Punic War, being ready to join battle, yet wishing to know the auspices in the traditional manner, when he that kept the birds told him that the chickens would not come out of the pens, commanded them to be cast into the sea, saying, "If they will not eat, let them drink."
P Claudius then proceeded to lose an entire fleet and be convicted of treason for ignoring the birds.
Now, this is not a just world, so we don’t get to see Donald Trump trying to feed chickens, let alone being convicted of bird-related official negligence. But keep an eye on the birds today.
Someone needs to.
Today’s #BeastOfTheDay is the bat-eared fox. Some beasts have names that don’t really fit. The Gila monster, for instance, is really just a small, slow, unthreatening lizard. But today’s beast is exactly what it sounds like. We say, “bat-eared fox” and the image that pops into your head looks exactly like this:
In this era of obfuscation and misinformation, let us celebrate the bat-eared fox for being named with scrupulous, painstaking accuracy. To honor today’s Beast, be precise in your language. Let your every sentence convey your exact meaning. The bat-eared fox will be proud of you.
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