Lending a Beak to Help Others

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Good Evening:

Time for some tiling and hearth-building at the Cabin in the Woods.

It is important to retreat from the world, when it is horrible—as well as to confront it.

For some people that means psychological retreat—yoga, exercise. For me, it often means physical retreat.

I have missed the Cabin in the Woods ever since it was destroyed in a flood a couple of years ago. Now it is partially restored, enough so that I can camp out in it on a mattress on the floor even as I work on its restoration. Tomorrow’s project: building a hearth. And some tiling.

That and doing Lawfare work.

Retreat and confront.

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Today on #DogShirtTV, I was joined by the estimable Roger Parloff, who—inspired by the pardoning of everyone who’s ever done anything wrong in their lives—has decided to dump criminal law and focus on civil litigation and the new administration. I’m only sort of joking. Clearly, it’s not effective anymore. Everybody gets pardoned.

Everyone, that is, except Rudy Giuliani. He can’t be pardoned out of his troubles. How it must suck to be him:

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Today On Lawfare

How American Institutions Failed to Meet the Moment

Quinta Jurecic details how American legal and political elites—specifically those in the Department of Justice, Senate, and Supreme Court, among others—failed to use the tools afforded to them by the Constitution to address President Trump’s role in Jan. 6, democratic erosion, and to “defend against a demagogue”:

As [Bob] Bauer rightly points out, however, the Justice Department is far from the only institution whose actions “made some difference in voters’ perception of the rule-of-law values at stake in the Jan. 6 cases.” He notes, among other things, the Senate’s failure to convict Trump and bar him from office during the second impeachment and the Supreme Court’s handling of the Fourteenth Amendment case, Trump v. Anderson. I would go further and say that these are examples of other institutions that failed to respond adequately to the magnitude of what happened on Jan. 6. The casualness with which all nine members of the Court dispatched serious arguments about the Fourteenth Amendment’s disqualification provision, and their willingness to toss the provision aside on the basis of a manifestly unconvincing rationale, was a particularly discouraging instance of an institution abdicating its responsibilities. As Bauer writes, it may well be the case that voters, faced with extensive evidence that their government did not take Jan. 6 very seriously, decided that they need not do so either.

An Emerging Roadmap for Trump’s Use of the Military to Combat Immigration

Chris Mirasola unpacks the range of legal theories cited in President Trump’s recent executive orders on immigration, and how they might be used to justify the use of military force at the southern border:

None of these executive orders direct an immediate military deployment. But they do make such deployments almost a certainty. And they reveal the range of legal theories we should expect to play out over the months to come. Some of these legal theories are recycled from Trump’s first term. Others are far more extreme (and dubious) interpretations of statutory authorities and the president’s constitutional powers.

FARA Is a Catchall Statute—and That’s a Problem

Nick Robinson reviews the Department of Justice’s proposed revisions to the Foreign Agents Registration Act (FARA). He asserts that the revised regulations pose potential threats to civil liberties and threaten to make the already “overbroad” law even more ambiguous:

This underlines perhaps the fundamental problem with FARA— the act serves as a type of a catchall statute. Advocates of such a sweeping law might argue that it provides the Justice Department the discretion it needs to prioritize enforcement in certain areas, like foreign government lobbying, where it is seemingly most needed. However, as the Justice Department has increased FARA enforcement and the U.S. has become more politically polarized, the act functions increasingly like a sword of Damocles hanging over broad sections of U.S. civil society, the business community, and the country’s political class, with no one being quite sure if—or when—it might drop on them.

Podcasts

On Lawfare Daily, Scott Anderson sits down with Natan Sachs, Daniel Byman, Joel Braunold, and Dana El-Kurd to discuss the ceasefire between Israel and Hamas in Gaza. They discuss the terms of the ceasefire, what will determine its success or failure, and what to expect in the weeks and months to come:

On Rational Security, Anderson sits down with me, Jurecic, and Alan Rozenshtein to discuss the major national security news from the past week, including Trump’s flurry of executive orders, the ceasefire in Gaza, and Trump’s order to delaying the TikTok ban and its implications:

Videos

On Jan. 23 at 4 p.m. ET, I will speak to Anderson, Anna Bower, Jurecic, Rozenshtein, and Andi Wilson Thompson about Trump’s first batch of executive actions in his second term, including the birthright citizenship order, the declaration of a national emergency at the southern border, and the reinstating of Schedule F:

Announcements

Lawfare has launched a new page to keep track of Trump’s executive actions related to national security and foreign policy. Find all relevant documents, as well as Lawfare analysis of the orders and the legal challenges against them, here.

Documents

Anderson shares Trump’s proclamation on “Guaranteeing the States Protection Against Invasion” which—using statutory and novel constitutional authority—declares the activity at the southern border as an invasion and orders new restrictions on immigration.

Anderson also shares an executive order directing the secretary of state to recommend whether certain international cartels should be designated as Foreign Terrorist Organizations or Specially Designated Global Terrorists.

Bower shares four lawsuits filed against Trump’s executive order purporting to end birthright citizenship. The litigants include the American Civil Liberties Union, a coalition of 18 state attorneys general, a coalition of four other state attorneys general, and Lawyers for Civil Rights.

Olivia Manes shares Trump’s executive order initiating the United States’s withdrawal from the World Health Organization (WHO), citing WHO’s handling of the pandemic and “onerous” financial obligations on the U.S.

Katherine Pompilio shares an executive order on “Reevaluating and Realigning United States Foreign Aid” that orders a 90-day pause in foreign aid programs pending review of their efficiency and consistency with U.S. foreign policy, and more.

Manes also shares Trump’s memorandum on “America First Trade Policy” that directs the Departments of Commerce and the Treasury to review trade agreements and recommend measures to “defend” U.S. national and economic security.

Bower shares an internal email from the acting attorney general to Justice Department attorneys instructing them to investigate and potentially prosecute state and local officials who refuse to enforce Trump’s immigration policies.

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Today’s #BeastOfTheDay is a crow helping chop and store firewood:

Video Source

It’s cold outside, and things suck. Be like the crow. Lend a hand—or a beak, as the case may be—to someone in need. It won’t make the world less nasty, but the firewood will help keep your house warm. Also, working together is fun. The crow is having fun helping people. You can too.