Do I Dare To Eat A Peach?
Do I dare to do a #SpecialMilitaryOperation?
Good Morning:
Because, Duo, I do not dare.
I will instead wear white flannel trousers and walk along the beach.
“I grow old ... I grow old ...
I shall wear the bottoms of my trousers rolled.
Shall I part my hair behind? Do I dare to eat a peach?
I shall wear white flannel trousers, and walk upon the beach.
I have heard the mermaids singing, each to each.
I do not think that they will sing to me.”
T.S. Eliot
I cannot confirm or deny that a #SpecialMilitaryOperation will take place this evening. That is all I have to say on the matter for the present time—save that you might keep your eye on my Substack around 5:30 pm for whatever livestream I obviously cannot confirm or deny that I might do if, hypothetically speaking, said operation were to take place.
It has been a packed few days and I have gotten a bit behind on #DogShirtDaily posts. Here’s a bit of catch-up. More will come tomorrow. I am aware as well that I have fallen behind on Operation Brahms. I will rectify that soon.
Wednesday on #DogShirtTV, I had a very busy day. I was filming a video. I was turning into Lindsay Halligan. I was in the Epstein files. The estimables Katherine Pompilio and Tyler McBrien and various Greek Chorus members were along for the ride:
Thursday on #DogShirtTV, we went back to our Greek philosopher roots and debated the nature of virtue:
Recently On Lawfare
Compiled by the estimable Isabel Arroyo
No, Trump Doesn’t Need Governors’ Consent to Deploy the National Guard
Luke Schumacher criticizes states’ emphasis on the absence of gubernatorial consent in their objections to National Guard deployments, arguing that governors have no statutory or constitutional power to stop the president from deploying the Guard to execute federal law.
In their briefs to the Court, both Illinois and California contend that the president’s orders are unconstitutional, in part because the states’ governors did not consent to the deployments. Absent such consent, they argue, federalizing National Guard units commandeers state institutions for federal law-enforcement ends in violation of the 10th Amendment. This structural argument is flawed. Section 12406’s text requires no such consent, and the history behind it shows that no such requirement was ever intended. Far from impinging on state sovereignty, the power exercised by the Trump administration is among the federal government’s few and defined prerogatives enumerated in the Constitution. If the statute’s predicates are satisfied, state consent is legally irrelevant.
Tracing the statute’s lineage—from the Constitutional Convention in 1787 to its present-day codification in U.S. Code Title 10—shows that states have never possessed a veto over the federalization and use of the National Guard to execute federal law.
After Odinga, Kenya at a Crossroads
The estimable
discusses the legacy of Kenyan political giant and former Prime Minister Raila Odinga, who passed away in October. Fletcher reflects on the state and future of the Kenyan political landscape Odinga helped define.Odinga’s Kenya moved from dictatorship to fledgling democracy in part by creating an incentive structure for the political elite to sustain a new system. The question for Kenya after Odinga is whether the next generation of political leaders, under increasing popular pressure, can transition to a new phase of democracy, in which they see their interests connected to the public good and their personal ambitions fulfilled by their performance and accountability, not their ability to cobble together alliances and deals among themselves. The risk is that they will instead retreat back into autocracy in order to entrench their position.
Time is of the essence, before a younger generation of Kenyans grows too disillusioned and divested for constructive political engagement. Will they see a brighter future in civic participation or in burning tires? The next wave of Raila Odingas holds the answer to that question.
The Law Allowing Senators to Sue Over Phone Searches is Worse Than You Thought
Natalie Orpett and Michael Feinberg analyze a sweeping provision in the recent shutdown deal that would create a civil cause of action for senators whose data is subpoenaed without their knowledge. Orpett and Feinberg parse the unusual features of the provision, from the high sticker price of damages it would allow senators to collect over lawful investigations to its capacity to hamper standard law enforcement activities.
The topline effect of the Senate’s controversial new revisions to the Legislative Branch Appropriations Act legislation is to create a civil cause of action—that is, the ability to sue in court—if a senator is not notified when providers receive a subpoena for his or her data, or that of his or her staff. Media reports, not inaccurately, have focused largely on the possibility that it paves the way to a significant payday for the eight senators whose data was obtained in 2023. The legislation, which provides that this new cause of action is retroactive to January 2022, appears to allow those senators to recover a minimum of $500,000 merely because their data proved relevant to a criminal investigation.
But these media reports actually undersell the potential magnitude of the new law.
Comey, James, and ‘Animus Through a Megaphone’
Molly Roberts explains why dismissals of cases for selective or vindictive prosecution are so hard to secure, and examines the arguments James Comey and Letitia James marshaled to demonstrate that their prosecutions would not have proceeded without the president’s personal animus.
Selective and/or vindictive prosecution claims almost never succeed. But these two defendants may beat the odds: The president has furnished them with ample evidence of animus and procedural abnormalities alike—making both Comey and James, depending on how one looks at it, either extremely lucky or extremely unlucky.
Taken together, their motions outline a campaign led from the Oval Office to deploy the justice system against the administration’s political enemies. They argue that the government has gone in search of semi-plausible bases on which to prosecute people the president has preemptively deemed “guilty as hell.”
The similarities between the Comey and James cases help prove the point. The cases are completely distinct in the conduct they cover—but nonetheless they’ve been lumped together in one tweet and one district where a Trump loyalist has conveniently been endowed with the authority to grant his vengeful wishes. The differences, meanwhile, showcase the sheer variety of ways in which the government has been willing to manipulate the justice system to serve its aims.
Confronting the Protective Power
Chris Mirasola evaluates the Trump administration’s theory that the president’s “protective power” allows him to deploy active-duty military to execute federal law in a manner unconstrained by the Posse Comitatus Act.
For the first time, the Supreme Court is poised to weigh in on the legality of President Trump’s decision to deploy military personnel in a range of American cities. The question before the Court is whether the president properly invoked the authority provided by 10 U.S.C. § 12406 to bring National Guard personnel into federal service. But in the course of briefing, another issue has arisen: whether the president has inherent constitutional authority to deploy active-duty forces domestically, free from the constraints of the Posse Comitatus Act.
The Supreme Court need not answer this question at this time, nor should it attempt to, given the importance and complexity of the issue and the scant briefing it has received. But it seems increasingly likely the question will eventually come before the Court. If and when it does, the answer to this question should be an emphatic “no.”
Podcasts
On Rational Security, Scott R. Anderson sits down with Anna Bower, Michael Feinberg, and Roger Parloff to discuss a federal magistrate judge’s finding that the government may have made substantial misrepresentations before the grand jury in the Comey case, congressional moves to disclose investigative files related to Jeffrey Epstein, and the recent scuffle between right-wing news outlet The Blaze and senior FBI officials after a Blaze story purported to link an intelligence officer to the attempted pipe-bombing of the DNC and RNC headquarters on Jan. 6, 2021.
On Wednesday’s Lawfare Daily, Emily Hoge joins me to discuss the Russian mobsters released from prison to fight in Ukraine, the subsequently skyrocketing Russian crime rate, and how these developments are changing Putin’s status as the leader who brought Russia’s organized criminals to heel.
On yesterday’s Lawfare Daily, I sit down with Anastasiia Lapatina to discuss Russian attacks on the Ukrainian power grid, the ongoing corruption scandal unfolding in Ukraine’s energy sector, and the origins of the power outage that hampered recording this podcast.
Videos
On Lawfare Live, I sit down with Bower, Parloff, and Molly Roberts for a live conversation on today’s hearing on the grand jury proceedings in the James Comey prosecution.
Today’s #BeastOfTheDay is a seal named Sei-chan, seen here playing the trumpet with great enthusiasm:
In honor of today’s Beast, please enjoy some actual music from today’s non-Beast, the cello:
Today’s #BeastOfTheDay is not the cello, which is disqualified on account of not being a member of Kingdom Animalia. However, this particular cello, upon which four people can simultaneously play Ravel’s Bolero, is a Beast of great distinction and worthy of honor:
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