Introducing "Escalation"

A podcast on the United States and Ukraine from Lawfare and Goat Rodeo

Good Evening:

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Today on #DogShirtTV, the estimable Holly Berkley Fletcher and I welcomed the estimable Max Johnston, producer of Lawfare's new podcast series on US-Ukrainian relations, to introduce the series, which launched today. Today marks three full years of genocide, but hey, at least we get a podcast out of it.

The cactus is AWOL. The cactus is spying on Holly’s houseguests. What is the cactus planning?

And here is episode 1 of the podcast itself:

In case you need teasers, here are two of them:

Here is video of the Brookings event this morning at which the project launched:

And here is my “The Situation” column about the podcast:

Some of the story the series tells is familiar and comfortable. A plucky ally struggles against a gargantuan neighbor that threatens its existence, and the United States is there to support its struggle for independence. The two sides spat over how aggressive to be in confronting Russia, to be sure, but one expects that. Allies and friends don’t have to get along all the time, after all. In the end, there are good guys and bad guys, and the good guys ultimately have each other’s backs.

But the story turns out to be a bit more complicated than that, for a number of reasons—even before the United States upped and switched sides a week ago. The first is that the United States has always looked at Ukraine with one eye on Moscow. It was reticent about Ukrainian independence in the first instance—as the first episode details. The Soviet Union was big and scary, but it was also a stable, known, and unitary adversary. Moscow was familiar. Dealing with local nationalists, by contrast, raised all kinds of issues, so the United States hedged in a big way during the push for Ukrainian independence as the Soviet Union was collapsing. Americans don’t have a lot of reasons to remember this episode, but Ukrainians do.

There are other such examples, which the podcast series treats in episodes to come. The so-called Budapest Memorandum—in which Ukraine agreed to give up its nuclear weapons in exchange for security “assurances,” which was translated into Ukrainian as “guarantees,” as to its sovereignty and borders—looms large in the Ukrainian political consciousness as an example of why nothing less than full-NATO membership will protect it from further Russian attack. It is hardly remembered in the United States.

And at Bucharest, NATO offered Ukraine and Georgia a hazy promise of eventual membership without being willing to chart that path with any definitiveness.

All of which is to say that the American promises were always made haltingly and with an eye on not offending Russia too much. They were always with an eye toward avoiding “escalation.” And they primed Ukrainians to a certain degree for the notion that America was not all in on their struggle.

But the story isn’t just one of American fickleness. Ukraine was not always the picture of stalwart democratic and anti-Russian constancy it is today. It flirted with Russia numerous times itself. It tolerated massive corruption often driven by oligarchs close to Russia. Its leaders were sometimes frankly authoritarian, even murderous. And just as Americans have now voted for Trump despite his solicitude for Vladimir Putin, Ukrainians not that long ago elected a Russian puppet themselves—one they eventually deposed and who fled, of course, to Russia.

The relationship, in other words, was a little bit messy, even before Trump’s most recent and most dramatic betrayal, and there is no kinder word for it than betrayal. It is a relationship to which neither side committed fully—in part, because the other side did not seem fully committed and because the risks of offending Russia without arms fully locked were too high.

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The Situation: A List

In yesterday’s “The Situation” column, I reflect on the state of the rule of law at the close of a turbulent week that saw further consolidation of executive power. I emphasize that the situation is defined not only by the administration’s actions, but also the public’s response.

None of this has yet reached a steady state yet, either in law or in politics. All of it remains contested, and the shape of American democratic government turns dramatically on how much of this power grab succeeds and how much fails and on which branches of government accede to and reject the specific claims that underlie it.

It also depends on the people—what the public does and does not accept. Because in the end, in a democracy, the people tend to get what they want if they are insistent enough about it for long enough.

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Today On Lawfare

Compiled by the estimable Caroline Cornett

Temporary Blocks: What You Need to Know about TROs and Preliminary Injunctions

Suzanne Goldberg explains the difference between temporary restraining orders (TROs) and preliminary injunctions, both of which are forms of provisional relief that courts have granted in various cases brought against the Trump administration. A TRO lasts no more than 14 days and is granted to prevent the defendant from causing irreparable harm, while a preliminary injunction is long term and can only be granted if the plaintiff's case is likely to succeed:

But a TRO is essentially a short-term, partial band-aid for a party that fears irreparable harm, since lawsuits ordinarily last far longer than two weeks. For protection from irreparable harm throughout the litigation, a party will ask for a preliminary injunction in addition to or instead of a TRO. (That choice depends on how quickly the harm is likely to occur—if it’s right away, the party will usually request a TRO to keep the status quo in place while the court decides whether to grant a preliminary injunction.) Unlike when granting a TRO, a court may impose a preliminary injunction only after the party that would be restrained has a chance to argue that the preliminary injunction should not be issued.

All’s Well That Ends Well? Legal Complications of a Russia-Ukraine Ceasefire

Julia Kepczynska and Ania Zolyniak warn against conflating a ceasefire in Ukraine with an end to the conflict and sustained peace. Kepczynska and Zolyniak highlight the legal complexities of a ceasefire, including the responsibilities of the state governing occupied territory, Ukraine and Russia’s dueling goals for a ceasefire, and the implications of recognizing an agreement:

Indeed, the question of when armed conflict ceases to exist can be as challenging to answer as how and is a continued source of much consternation for international humanitarian lawyers. As explained in a seminal report from Harvard Law School’s Program on International Law and Armed Conflict, contemporary written law offers fragmented and enigmatic guidance at best on discerning the relevant duties, rights, authorities, and protections arising prior to, at the moment of, or after the termination of the armed conflict. This opacity is particularly complicated in the Ukraine context because of the uncertain positions of the parties and the relative novelty of the situation, which prevents the drawing of parallels to other territorial contestations that differ along several critical dimensions. This unmitigated confusion portends several cascading uncertainties with tangible consequences for the affiliated communities. Discussions about a possible “end” to the war thus spotlight the demerits of the favorite geopolitical strategy of kicking the can down the road and the underdevelopment of jus post bellum, particularly where the two contentions meet in the context of ceasefires.

The Administrative State’s Two Faces

Jessica Bulman-Pozen and Emily Chertoff discuss the longstanding asymmetry between attacks on the regulatory side of the administrative state (responsible for regulations and benefits) compared to the expanding power of the physical force and surveillance side (home to law enforcement, corrections, and intelligence agencies):

These arguments about delegation, deference, and democracy concern the administrative state’s first face. But first-face agencies are already quite constrained in relevant respects. It is second-face agencies that enjoy expansive delegations, sweeping judicial deference, and near-complete exemptions from public accountability mechanisms. These agencies act without specific statutory warrant, as claims about presidential authority empower a cadre of low-level agency officials. They receive deference from invocations of plenary power and other permissive frameworks. And they largely set policy without either the front-end engagement provided by notice-and-comment rulemaking or the back-end monitoring envisioned by transparency statutes.

Can Macron Be Europe’s Delegate?

In the latest installment of Lawfare’s Foreign Policy Essay series, Paul Cormarie considers how, despite France’s fragile domestic political situation, President Emmanual Macron has been and continues to be a leader in Europe’s foreign policy due to the substantial authority over foreign affairs that the French constitution vests in the president:

Macron has since led many international initiatives on various key issues ranging from the AI Action Summit, to the Notre Dame reopening, to the European leaders’ emergency meeting. With so much going on, it is almost possible to forget the political instability in Paris right now. And as the negotiations over the war progress, France seems to be a likely interlocutor for European diplomacy. Not only was the U.S. president’s first foreign visit after his 2024 victory to Paris, but both leaders spoke directly to one another before and after the emergency European leaders summit.

Podcasts

In a recording of a live conversation on Feb. 21, I 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 the U.S. Agency for International Development and the firing of probationary employees:

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Today’s #BeastOfTheDay is the bison, seen here frolicking merrily in a meadow like little lambs:

Video Source

In honor of today’s Beast, get a group of friends together and jump around in the grass. If you can’t remember how, ask your local dog or your local five-year-old to teach you.

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Tell Me Something Interesting

The Guardian reports:

The Lives of the Caesars, translated from Latin by The Rest Is History podcast co-host Tom Holland, made the Sunday Times hardback nonfiction chart this week. Publisher Penguin Classics said that the book is the first of their hardback nonfiction classics to appear on the list.

The book is a collection of 12 biographies covering the rule of Julius Caesar and the first 11 Roman emperors. On hearing that it was in the charts, Holland was “delighted for Suetonius, to see the lad is capable of getting on the bestseller list after two millennia”.

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Holland cites several reasons for the continued fascination. Rome has “always” been the ancient civilisation that people in Britain and the west have been most interested in, partly because Britain was part of the Roman empire, and the English alphabet is Latin. “We feel closer to the Romans, perhaps, than we do to the Egyptians or the Assyrians.”

However, “it’s also partly because our understanding of power derives from Rome more than anywhere else.” The US “Republican system was modelled on that of ancient Rome, but the [Roman] Republic ended up becoming an autocracy, and so in America, there’s always been this anxiety that a Republican system of government may end up an autocracy, and I guess that at the moment, that anxiety has a particular salience.”

I (EJ Wittes) have always been a big Suetonius fan, and, inspired by the “particular salience” Holland remarked on, decided to revisit the Lives with an eye to the current Situation. I present, with no particular commentary, an excerpt from each of the first six books of Suetonius, with thanks to the University of Chicago for their online edition.