Rule O’ Law Roundup: May 3, 2026
Plus, a lot of catching up—and a MARA Book Club meeting this evening
Good Afternoon:
Yes, absolutely. You have to pour coffee over your spouse—or you are a bad person.
We begin this dog shirt with an important reminder. We have a Make America Read Again (MARA) Book Club meeting this evening at 5:00 pm with Karen Masterson, author of “The Malaria Project: The U.S. Government’s Secret Mission to Find a Miracle Cure.” We will be discussing both her book and its fiction wine pairing, Albert Camus’s “The Plague.”
MARA Book Club meetings are for paid subscribers only. So if you want to join the event, there’s a button you need to press. Let me make it easy for you.
Information on how to access the event is below the paywall.
Next up on the agenda. I have a lot of catching up to do. I got very behind this week and didn’t post any dog shirts all. I have been consumed with Lawfare’s first annual fundraising drive, which we launched this week. Lawfare has gotten big over the last few years. And keeping it growing and financially stable takes up a substantial amount of my time. This year, we decided to use the month of May to make a major financial push to get new support, renew support from former material supporters who have dropped off our rolls, and bring in a bunch of new people to the project. That turns out to be very time-consuming. You should help with this, if you’re not already a material supporter. You can do that by pushing this button:
I have also been working on my vibe-coding project, creating a giant database of all federal litigation since the beginning of the Trump administration. I now have a fully operative prototype of the initial software product, which I will demonstrate on #DogShirtTV sometime in the coming days. That too has been time-consuming. But there is no button to push for that one—yet.
Anyway, my own writing has suffered a bit as a result of the cumulative flood. I apologize for that.
Here’s a week’s worth of catch-up.
Monday on #DogShirtTV, the estimable John Hawkinson and I discussed the unexpected effects of federal privacy regulations on public access to important court records that are not under seal. Other members of the Greek Chorus joined the conversation, which followed a Lawfare get-together in Brooklyn, as well:
Tuesday on #DogShirtTV, Holly returned from her latest round of travels:
Wednesday on #DogShirtTV, are all ethical federal officers obligated to resign? The estimable Holly Berkley Fletcher, the estimable Mike Feinberg, and the estimable Jonathan Rauch discussed:
Thursday on #DogShirtTV, the estimable Holly Berkley Fletcher, the estimable Antti Ruokonen, and I discussed Ukraine, Mali, and Andrew Tate’s presence on Substack:
And Friday on #DogShirtTV, the estimable Anastasiia Lapatina has a new podcast with a hilarious name:
You can find that podcast—and you should—right here:
Recently On Lawfare
Compiled by the estimable Marissa Wang
The Grand Conspiracy’s New Prosecutor Is the Case’s Biggest Liability
Anna Bower and Molly Roberts unpack the role of former U.S. Attorney Joseph DiGenova in the “Grand Conspiracy” investigation, an inquiry that delves into a supposed plot against President Trump and his supporters. Bower and Roberts explain how diGenova’s public statements over the course of eight years on the conspiracy may now cast doubt on his ability to act as an impartial prosecutor in its legal proceedings.
On April 20, the same day he was sworn in, diGenova appeared on WBAL Radio and said the president “personally asked” him to accept the role running what he called “the Russia hoax investigation.” Later—sketching out the Grand Conspiracy in full—he noted “the historical significance of what happened in 2016, 2020 and 2024, where it’s very evident…that there was a very brazen plot against a private citizen, and then a president, and then a post-president, and then a sitting president again, Donald Trump, to deny him his civil rights.”
These statements are only the latest in a litany of accusations diGenova has lodged against the president’s perceived enemies over the years. The volume and, indeed, the vitriol of his grievances cast real doubt on his ability to act as an independent or impartial prosecutor in the Grand Conspiracy case or any related matter.
Trump’s New Tariffs Expand the Boundaries of Section 232
Peter E. Harrell analyzes the legality of Trump’s recently announced changes to his tariffs on metals and his new pharmaceutical tariffs. Harrell argues that Trump’s new tariff actions warrant greater legal and congressional scrutiny under Section 232 of the Trade Expansion Act of 1962.
Earlier this month, President Trump announced significant changes to his tariffs on U.S. imports of steel, aluminum, and copper, some of which had been in place dating to his first term, and a new set of tariffs on imports of certain pharmaceutical products.
Trump is implementing these “product” tariffs under a different legal regime than the “IEEPA tariffs” Trump levied last year on imports from most U.S. trading partners, which the Supreme Court ruled unlawful in late February and which Trump is now trying to recreate under other statutes. The Trump administration is implementing the product tariffs pursuant to Section 232 of the Trade Expansion Act of 1962, which authorizes the president to take action to “adjust the imports” of an “article” if an investigation by the Department of Commerce finds that U.S. imports of the article “threaten to impair the national security.”
Reframing the Conversation on Climate Intervention and Security
Erin Sikorsky and Shuchi Talati examine the warnings published in two new national security reports on solar radiation modification. The two explain how both reports’ single-track security perspective in analyzing the risks of the developing climate intervention technology may undermine productive research and governance and amplify perilous conspiracy rhetoric.
SRM can and should be viewed through an array of lenses, including climate, emerging technology development, scientific infrastructure, and more. Far from advancing the cause of SRM research and governance, viewing SRM through the lens of bellicose security rhetoric alone is likely to poison the international environment in which that research and governance must ultimately take place, amplify the conspiracy theories that already imperil legitimate atmospheric research, and render the reports’ otherwise sensible policy recommendations dead on arrival in the eyes of the allies and multilateral institutions whose cooperation any serious governance framework requires.
The Counterterrorism Toolkit for Cutting the Cartels’ Arms Pipeline
In the latest edition of Lawfare’s Foreign Policy Essay series, Henry Ziemer assesses the scope and importance of arms trafficking for cartel power in the Western hemisphere and argues that the Trump administration should crack down on the flow of high-powered weapons from the U.S. to Mexico in order to achieve its goal of dismantling transnational criminal organizations.
The issue of arms trafficking has been a persistent source of tension in the U.S.-Mexico relationship, with both sides often talking past one another. While the United States pushes Mexico to take more decisive action against criminal groups within its borders, Mexico bemoans the continued flow of arms that makes effective law enforcement astronomically more challenging. But neither country disagrees with the position that violent transnational criminal organizations should not have access to lethal weapons. The current moment presents an opportunity for Washington and Mexico City to affirm their commitment to this shared principle, and align on a set of policies to get weapons out of cartel hands, and keep them out.
Racial Animus Claims May Play a Key Role in the TPS Cases
Roger Parloff assesses the key claims made in Mullin v. Dahlia Doe and Trump v. Fritz Emmanuel Lesley Miot, two cases that will be heard by the Supreme Court on April 29 on the issue of Temporary Protected Status for Syrians and Haitians living in the U.S. Parloff argues that even if the two cases fail on procedural claims, the equal protection claims based on the Trump administration’s anti-immigrant statements may survive.
In all the challenges to Noem’s TPS cancellations to date, the plaintiffs have alleged that Noem did not remotely comply with the procedural dictates of the TPS statute, and that her cancellations were, therefore, “arbitrary and capricious,” “beyond statutory authority, and “contrary to law,” in violation of the Administrative Procedure Act.
Nevertheless, much of the Supreme Court argument in Doe and Miot will likely have nothing to do with either Noem’s compliance with procedural mandates nor the dangerousness of the conditions in Syria or Haiti. Instead, it will revolve around dry textual analysis of a provision of the TPS law that limits courts’ jurisdiction over the secretary’s TPS-related determinations. If the Court agrees with the government that that provision—8 U.S.C. § 1254a(b)(5)(A)— simply renders Noem’s terminations unreviewable, then most of the migrants’ claims will fail, no matter how severely Noem may have flouted procedural mandates or how catastrophic the resulting humanitarian consequences might be.
However, even if the government wins the reviewability argument, some of the migrants’ claims will likely survive to another day in court. That’s because the plaintiffs in virtually every TPS case and, certainly, in both Doe and Miot have also raised constitutional arguments in their complaints. Specifically, they allege that Noem’s actions were motivated, at least in part, by racial or ethnic animus, in violation of the equal protection component of the Due Process Clause. Under prior Supreme Court precedent, the TPS law’s jurisdiction-stripping provision most likely cannot bar those—a fact the government appears to begrudgingly concede in its Supreme Court reply brief. (“Only constitutional claims would conceivably not be barred,” U.S. Solicitor General John Sauer writes.)
The Homeland Security Shutdown and the Power of the Purse
Scott Levy examines the ongoing 10-week long shutdown of the Department of Homeland Security and how it demonstrates a key structural asymmetry in the balance of power between the president and Congress, due to the executive’s power to impose discretionary exceptions that allow certain agencies and functions to continue operating during a congressional shutdown.
While not a regular tool of congressional control, shutdowns enable Congress, in extreme cases, to cut off funding for unlawful executive action. That function matters most for coercive government functions—immigration enforcement, law enforcement, and the military. Yet those functions are precisely where the emergency exception is most likely to apply. As a result, they can continue at substantial capacity even during a shutdown. This produces a structural asymmetry: The executive can maintain detention, removal, and enforcement operations while other government activities are curtailed. The very exercises of government power that most threaten individual liberty—and that Congress may be seeking to constrain—are often the easiest for the executive to sustain during a shutdown.
Oral Argument Preview: When Are Companies Liable for Aiding Human Rights Abuses?
Michael Endrias and Bertina Kudrin unpack the arguments presented in Cisco Systems, Inc. v. Doe I, a case that was heard by the Supreme Court on the morning of April 28 centered on whether the Alien Tort Statute and the Torture Victim Protection Act allows for victims of the Chinese government’s detainment and torture to file a lawsuit against Cisco Systems for allegedly aiding and abetting violations of human rights and international law.
On April 28, the Supreme Court will hear oral argument in Cisco Systems, Inc. v. Doe I to decide whether two federal statutes allow lawsuits against parties for aiding and abetting violations of international law. The petition was brought by a group of Chinese Falun Gong practitioners, proceeding under pseudonyms, who allege that Cisco Systems and two of its executives helped China’s government build and refine a surveillance system used to identify, detain, and torture them in violation of human rights law. They argue that Cisco’s alleged conduct, constituting aiding and abetting, is sufficient to trigger the Alien Tort Statute (ATS) or Torture Victim Protection Act (TVPA).
What Does the Correspondents’ Dinner Have to Do With Trump’s Ballroom Project?
Eric Columbus and Molly Roberts explain how the attempted shooting at the 2026 White House Correspondents’ Dinner could have significant legal implications in the ongoing lawsuit centered on the construction of President Trump’s “Militarily Top Secret Ballroom.” Columbus and Roberts contend that how Judge Richard Leon decides may test how far the courts are willing to go in giving national security deference to the executive.
The intensity with which President Trump has pursued his ballroom—a tally by the Washington Post found that he has invoked the project on roughly a third of the days this year—has finally given rise to a congressional effort to fund construction with taxpayer money, just as Judge Leon suggested in the conclusion of his initial injunction: “Not a bad outcome, that!” If it passes, such legislation would effectively moot the case. But unless the longshot effort succeeds, litigation will continue. The outcome will turn on the question not only of whether the judges believe the government has convincingly shown the ballroom’s essentiality to presidential safety—but also of how much deference the judiciary will afford the executive when it isn’t convincing at all.
“On top of everything else, this project is a gift to our Country from President Trump, and other Donors. It is free of charge to the American Taxpayer,” the Justice Department’s latest motion concludes. “Who could ever object to that?” This appears to be a rhetorical question—but the courts may well answer it.
Ukraine’s AI Gambit Shows Middle Powers How to Play a Weak Hand
Jake Steckler and Sam Winter-Levy examine how middle powers can learn from Ukraine’s leveraging of its drone manufacturing ecosystem and its valuable data generation capabilities to uniquely position itself as a critical component of the international military artificial intelligence (AI) supply chain.
On March 12, Mykhailo Fedorov, Ukraine’s minister of defense, announced that the Ukrainian military would make available millions of drone videos and other battlefield data to Ukrainian companies and allied nations to help train artificial intelligence (AI) models. “We must outperform Russia in every technological cycle,” Fedorov said, and “artificial intelligence is one of the key arenas of this competition.” According to the defense minister, partners would be able to train AI models on the data but would not be allowed to take possession of the videos themselves. The arrangement is also intended to accelerate Ukraine’s own development of autonomous drones and deliver new capabilities to the front line.
The announcement was easy to miss amid the daily churn of war news. But it deserves attention far beyond the battlefield. Ukraine is doing something that most of the world’s middle powers have so far failed to do: identifying a concrete source of leverage in a global AI race between the great powers that threatens to leave them behind.
AI Companies Can’t Regulate Themselves. They Should Regulate Each Other.
Mark Thomas argues that AI companies should look to successes in financial regulation frameworks and create a mandated collective statutory authority, inspired by the finance industry’s self-regulatory organizations, to effectively coordinate AI risk management and regulation amongst companies with government oversight.
Creating an SRO would not be easy, but it is the most politically viable path to regulation. Right now, neither the innovation nor the safety camp can get what it wants alone. Innovation advocates cannot achieve federal legislation preempting state AI regulation without safety advocates’ support. Safety advocates cannot get enforceable rules if industry blocks all legislation. An SRO can satisfy both: It has binding rules and real enforcement for the safety camp, direct participation for industry in writing those rules, and uniform standards that allow labs to invest in safety without facing a competitive penalty.
China’s Legal Warfare Against Taiwan
Eyck Freymann argues that China is using “lawfare,” in the form of domestic statutes, international institutions, and legal pretexts, to pressure Taiwan incrementally. Freymann urges the United States and its allies to develop coordinated legal and operational plans before a crisis forces the countries to improvise a response.
There is a temptation in certain corners of Washington to dismiss the legal dimension of this problem. The Trump administration has a track record of little reverence for international institutions. The World Trade Organization’s (WTO’s) Appellate Body is paralyzed. Why should Americans care what Beijing does at the UN or in its domestic courts?
Because Beijing is pursuing its strategy through lawfare precisely because legal framing has political value. International law may not constrain great powers directly, but it shapes the calculations of every other state. Many smaller countries genuinely want the major powers to be bound by rules. But just as importantly, having international law on its side gives Beijing the fig leaf that third countries need to reason their way toward accommodation.
The Legal Framework for Accession
Nas Lawal explains the constitutional and historical pathways through which new entities can join the United States. Lawal examines how accession has occurred through treaties, congressional acts, referenda, and negotiation rather than any single constitutional process.
What began as one of President Trump’s most ridiculed foreign policy ambitions during his first term—a “large real estate deal” to acquire Greenland—has resurfaced during his second term as a genuine possibility. As the Trump administration floats the prospect of acquiring Greenland, a straightforward question lurks beneath the geopolitical drama: Could the U.S. actually do it, and if so, how? The Constitution says nothing about how a country, an island, or a territory becomes part of the United States. Yet it has happened dozens of times—through purchase, conquest, referendum, and negotiation—and the legal machinery for doing it again is still very much in place.
Maurene Comey’s Firing Exposes the Limits of Thunder Basin
Nick Bednar explains how the firing of Assistant U.S. Attorney Maurene Comey reveals a major weakness in the doctrine requiring federal employees to route employment disputes through the Merit Systems Protection Board before going to court. Bednar contends that Comey’s case serves as a broader test of whether the executive can use Article II power to bypass longstanding civil service protections.
Assistant U.S. Attorney Maurene Comey prosecuted some of the most high-profile defendants of the 21st century: Sean “Diddy” Combs, Jeffrey Epstein, and Ghislaine Maxwell. By all accounts she was an extraordinary prosecutor. Like other career employees, assistant U.S. attorneys enjoy tenure protections that limit their removal. Nevertheless, the Department of Justice removed Comey without cause, citing only “ARTICLE II OF THE CONSTITUTION.” Given her stellar record, the most plausible explanation for her removal has nothing to do with her performance and everything to do with her father, James Comey—the former FBI director who has been in President Trump’s crosshairs since 2017. In the U.S. District Court for the Southern District of New York, Maurene Comey challenged her removal as an unlawful, politically motivated firing that violated her constitutional rights.
U.S. Meddling in European Domestic Politics Is Backfiring
John Drennan and Ariane Tabatabai examine the Hungarian parliamentary elections as a case study for how the Trump administration’s overt attempts to shape European elections and empower far-right, nationalist allies are failing. Rather than weakening Europe and boosting MAGA-aligned governments, the duo explains how U.S. intervention is strengthening European unity, autonomy, and backlash against Washington.
This approach is backfiring. Rather than fragmenting the EU and empowering nationalist governments, U.S. interventions have thus far helped further consolidate Europe’s political identity and commitment to greater strategic autonomy vis-a-vis the United States while also accelerating a rupture in transatlantic relations. In treating European electorates as passive recipients of U.S. political messaging, the administration has underestimated a basic dynamic: Overt U.S. interference is galvanizing precisely the sovereign autonomy and national self-determination that the administration’s NSS claims to be defending. And if the Trump administration thought this approach would be replicable in future European elections, and Orbán’s government was a model to export elsewhere, the results in Hungary reveal its limitations.
Executive Branch AI and the Rule of Law: An Emerging Research Agenda
Cullen O’Keefe, Alan Z. Rozenshtein, and Christoph Winter argue that artificial intelligence (AI) tools will likely expand executive branch power by increasing efficiency and reducing friction. Keefe, Rozenshtein, and Winter call for a new legal research agenda to ensure AI adoption in government preserves checks and balances, civil liberties, and the rule of law.
We are not necessarily opposed to this. Each of us has differing opinions about to what extent an AI-enabled government is practically or theoretically desirable, but none of us think that AI should have no role in public administration. Indeed, some of us think that role should be expansive and that AI has the potential to ameliorate many of the problems of the modern administrative state. But it is essential that governmental adoption of AI safeguards the rights and liberties enshrined in America’s customs, laws, and constitution—not least the separation of powers on which those liberties depend. And we are concerned that striking the right balance between governmental adoption of AI and preservation of liberty may require more forethought than is commonly assumed—or currently underway.
U.S. Vows to Fight Distillation Attacks
In the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren unpacks the White House’s promise to counter Chinese attempts to steal proprietary capabilities of American frontier AI models, how Chinese threat actors are using botnets of compromised smart devices to facilitate cyber attacks, and more.
Chinese threat actors are moving en masse to using botnets of compromised smart devices to facilitate their operations. This makes a network defender’s job more difficult but presents opportunities for government disruption.
On April 23, the U.K.’s National Cyber Security Centre (NCSC) and a host of international cybersecurity authorities jointly released an advisory detailing a “major shift” in the way Chinese cyber actors are operating. These actors have shifted from rolling their own individual infrastructure to using large-scale networks that are sometimes managed by third parties. The networks are made up primarily of compromised small office, home office (SOHO) routers and Internet of Things devices. The NCSC refers to them as “covert networks.” They are commonly known as botnets.
Podcasts
Lawfare Daily: The Trials of the Trump Administration, April 24: I sit down with Eric Columbus, Troy Edwards, Roger Parloff, and Bower to discuss the indictment of the Southern Poverty Law Center, the Department of Justice’s decision to drop its investigation into Jerome Powell, the government’s renewed attempt to deport Kilmar Abrego Garcia, and more.
Lawfare Daily: The Shadowy World of Ransomware with Professor Anja Shortland: Jonathan G. Cedarbaum sits down with Anja Shortland to discuss the latter’s new book, “Dark Screens: Hackers and Heroes in the Shadowy World of Ransomware,” and the emergence and operations of organized crime groups specializing in digital extortion and ransomware-based cyber crime.
Scaling Laws: Eliminating Barriers to AI Adoption with Clarion AI’s Bennett Borden: Bennett Borden joins Kevin Frazier to discuss artificial intelligence (AI) firm Clarion AI Partners’s interdisciplinary approach to AI adoption, the importance of their work, and the developments underway at major AI labs to align model use with user expectations.
Lawfare Daily: The Explosive Mystery That Rocked Rural Georgia: I sit down with Tyler McBrien, Charles Minshew, and Megan Nadolski to discuss a new narrative podcast series from Goat Rodeo and the Atlanta Journal Constitution called “Who Blew Up the Guidestones?”
Lawfare No Bull: Supreme Court Hears Oral Arguments on the Constitutionality of Geofence Warrants: Marissa Wang shares audio from the oral arguments at the Supreme Court in Chatrie v. United States, a case focusing on a Fourth Amendment privacy challenge to the use of geofence warrants.
Lawfare Daily: The Dangers of Privatized, Automated Immigration Enforcement: Chinmayi Sharma joins Tyler McBrien to discuss Sharma’s forthcoming law review article, “Immigration Enforcement Intermediaries,” which centers on the U.S. federal government’s increasingly privatized and automated system of immigration enforcement.
Rational Security: The “Tavern Style” Edition: Scott R. Anderson sits down with Natalie K. Orpett, Joel Braunold, and Ariane Tabatabai to discuss updates in the U.S.-Israel-Iran conflict and the Lebanon ceasefire, King Charles’s visit to the U.S. and the state of the U.S.’s relationship with its NATO allies, the political implications of the attempted violence at the 2026 White House Correspondents’ Association Dinner, and more.
Scaling Laws: An EU-perspective on America’s Approach to AI with Marietje Schaake: Kate Klonick and Frazier sit down with Marietje Schaake to unpack the growing role of tech giants in democratic functions, the “privatization of policy,” and why Schaake believes that without urgent intervention, the “rule of law” will be replaced by the “rule of code.”
Videos
At 4 pm ET on May 1, I sat down with Anna Bower, Molly Roberts, Roger Parloff, and Bednar to discuss the Department of Justice’s second indictment of former FBI Director James Comey, updates in the litigation to halt the construction of the White House ballroom, and more.
Today’s #BeastOfTheDay is the Asiatic cheetah, whose population numbers may (possibly) be increasing—albeit from a very low base:
Iran has recorded a jump this year in its official number of Asiatic cheetahs, a subspecies, now found only in Iran, that has been on the brink of extinction for years.
Last year, the Iranian authorities were aware of just 17 wild cats. But in 2026, Bagher Nezami, the project manager for the Conservation of the Asiatic Cheetah Project, told Iranian state media that conservationists had recorded 21 new adult cheetahs and six cubs.
The Asiatic cheetah is one of the world’s fastest land animals. It has a smaller head, shorter legs and a stronger neck than the African cheetah. The Asiatic cheetahs used to roam the Arabian Peninsula, the lands around the Caspian Sea, and South Asia. Now, a species once favored by kings prowls only Iran’s eastern desert and is under the constant threat of hunters, speeding highway drivers and wild dogs.
In honor of today’s Beast, please keep Dr. Iman Memarian, an Iranian veterinarian and environmental activist, in your thoughts and prayers. He was reportedly arrested last week in Tehran on unknown charges. Let’s not let watching the Iranian regime oppose Trump prevent us from remembering exactly how horrible that regime is.
Here’s one of Dr. Memarian’s papers on Asiatic cheetah conservation strategies.
The Rule O’ Law Roundup, May 3, 2026
United States v. Comey, No. 4:26-cr-16 (E.D.N.C., U.S. District Judge Louise W. Flanagan)
If it’s Tuesday, it must be time to indict James Comey.
Well, it’s not Tuesday, but it was on April 28, so a federal grand jury in the Eastern District of North Carolina handed up a two-count indictment against the former FBI Director, charging him with making threats against the President of the United States, in violation of 18 U.S.C. § 871(a), and transmitting a threat in interstate commerce, in violation of 18 U.S.C. § 875(c). Each count carries a maximum sentence of ten years’ imprisonment.
The case has been assigned to Judge Flanagan, a George W. Bush appointee. Comey is represented by former U.S. Attorney for the Northern District of Illinois Patrick Fitzgerald.
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