Good Morning:
And no, the Sprite of Mischief was not me.
Friday on #DogShirtTV, the estimable Shane Harris came on the show to make sense of the Comey indictment with me. Spoiler alert: it doesn’t make much sense.
The Situation
In Friday’s “The Situation” column, I examine James Comey’s indictment, including what the charges imply about the prosecution’s strategy and the likeliest paths forward for Comey’s legal team. I highlight the prosecutor’s refusal to allege a specific factual scenario.
Anna Bower and I anticipated a false statements charge of this type yesterday, and ran through some possibilities of what it could be about. We discussed three such possibilities. The specific wording here seems to exclude one of them—leaving two others. It could be a reference to Dan Richman’s outreach to the press in connection with aspects of the Russia investigation. More likely, based on a number of factors related to the wording of the indictment, it appears to be a reference to Andrew McCabe’s disclosures to the Wall Street Journal concerning an investigation of the Clinton Foundation.
Either way, the case is grotesquely, abusively weak—for reasons we described in some detail yesterday.
For present purposes, the relevant point is that the prosecutor, Lindsey Halligan, will not even identify what factual scenario she is alleging—which has the effect of preventing anyone from assessing it specifically.
Yes, that works today, but it won’t work for long.
Yesterday, in “The Situation,” I analyze two recent presidential executive orders designed to menace leftist groups:
The two orders are a weird mix of nonsense and menace.
They are nonsense because all of one of the documents and most of the other consists of factual and legal gibberish. At the same time, they are menacing because factual and legal nonsense nonetheless is routinely being implemented as the basis for changing the reality in which Americans live.
In a world in which the president can declare that immigration from Venezuela is a “predatory incursion” and deport people summarily on that basis, in which he can use the same theory to blow up civilian boats in the Caribbean and kill the people in them, in which he can file indictments against political enemies just because he hates them, and in which he can simply refuse to implement inconvenient acts of Congress like appropriations and the TikTok ban, one can’t be too certain that nonsensical words like the ones in these documents can’t be made flesh too by force of presidential will and the flaccid response of others to that will.
So let’s take a look at what’s in these two documents, and spend a little time thinking about what they do, what they can’t do, and what they’ll likely be used to do. Most important, let’s consider what they’re for.
Friday On Lawfare
Compiled by the estimable Isabel Arroyo.
A TikTok ‘Deal’?
Kate Klonick and Alan Rozenshtein analyze the TikTok divestiture deal’s compliance with the TikTok ban. The authors consider several possibilities for how the deal may skirt the problem of algorithmic licensing, and explain why the ban’s limited requirement that compliance be certified by the president will likely allow key portions of the deal to remain confidential.
Perhaps the most unsettling part of all this is that we may never actually know which option (if any) the deal has picked. Because the certification of whether the divestiture requirements have been met is done by the President, the public may never see the licensing agreement or even any of the key documents relating to the deal at all. The details are likely to remain confidential, shielded by the private companies involved and both the U.S. and Chinese governments. This opacity creates a significant accountability problem.
The Bolsonaro Trial Has Far-Reaching Consequences for Democracy
Emilio Peluso Neder Meyer and Thomas da Rosa de Bustamante unpack the proceedings against former Brazilian President Jair Bolsonaro and analyze what his conviction means for Brazilian democracy, Brazil-U.S. relations, and the broader international community.
One thing is clear: The importance of Bolsonaro’s trial goes far beyond the decision itself. The awareness of the importance of democracy and the value of the rule of law is at stake, and the court took a major step to enhance its institutions and constitutional structure. But Bolsonaro still enjoys support in Congress and from radicalized supporters whom he was able to mobilize—and Brazil’s long history of authoritarianism could haunt its democratic future. The 1988 Constitution enabled the longest period of continuous democracy in Brazilian history, with over three and a half decades. Preserving this inherited democratic framework is the country’s most important challenge and lesson—one that, if successful, can be taught to the rest of the world.
The Kids Aren’t Alright
In the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren discusses the increasingly destructive—yet less technically skilled—nature of today’s young cybercriminals, a CSIS report encouraging new forms of retaliation against state-authorized cyberattacks, faster cybersecurity hiring at the Department of Defense, and more.
When you compare Urban’s path to the one taken by teenage hackers a decade ago, the difference is striking. A 2023 Wired article described how three teenagers built the Mirai botnet in the mid-2010s, got caught by the FBI, and were reformed. All three now work in the security industry.
One key difference is the Mirai kids were technically adept. One was using his coding skills to develop and sell Minecraft mods, another had created a Minecraft server denial-of-service attack, and the third had created a denial-of-service attack that he ran against his own high school.
By contrast, a decade later, technical nous is barely required to be a successful cybercriminal. Urban was not a hacker. Instead, he was very good at social engineering.
Podcasts
On Lawfare Daily, Justin Sherman sits down with Gavin Wilde to discuss how deepfakes impact information ecosystems, the history of fakery in audiovisual technologies, deepfake concerns during 2024 elections, and how institutions might pursue a less tech-centric approach to deepfake mitigation.
Documents
Eric Columbus shares the indictment against James Comey issued by a grand jury in the Eastern District of Virginia.
Videos
I sit down with Columbus, Scott R. Anderson, Michael Feinberg, Anna Bower, and Roger Parloff to discuss politicization of the Justice Department, investigations into James Comey and Letitia James, the Supreme Court granting certiorari in FTC Commissioner Rebecca Slaughter’s challenge to President Trump’s attempt to fire her, and litigation around removing immigrants to third countries.
Your Music of the Day: Operation Brahms
Today’s Operation Brahms piece is his Piano Sonata No. 2, Opus 2, which really should be sonata number 1 because it was written before Op. 1, which should be Op. 2. But the young Brahms thought the one he wrote second was a better piece than the one he wrote first, so he published the later one as Op. 1 and the earlier one as Op. 2.
He was right. Op. 2 is definitely a lesser work than Op. 1. Here’s Sviatoslav Richter’s recording of it from 1987.
I could not find a live performance I wanted to share.
Today’s #BeastOfTheDay is the cockatoo, seen here helping to clean the kitchen:
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