Good Afternoon:
Translation: “Very bad people!”
Yesterday was our second meeting of the Make American Read Again Club:
MARA Book Club: The Information Ecosystem
Alicia Wanless leads our discussion on her new book, The Information Animal, and the novel she chose to pair it with, V. E. Schwab’s The Invisible Life of Addie LaRue.
For those who still haven’t watched the first book club meeting, it is available here:
MARA Book Club: Spy Drama
Former FBI counterintelligence agent Mike Feinberg leads discussion on Ben Macintryre’s “A Spy Among Friends” and John LeCarre’s “Tinker Tailor Soldier Spy.”
Yesterday on #DogShirtTV, the estimable
and I discussed the upcoming indictment of James Comey—now no longer upcoming. We also talked attempted magical assassinations, which was frankly much more fun.The Situation
In a late night The Situation column yesterday evening, I wrote the following on the Comey indictment:
There are so-called speaking indictments and then there are indictments that don’t even try to tell a story, merely allege in bare terms that conduct took place on a specific day of a nature that violated an identified law.
The Comey indictment speaks less than any charge you are ever likely to see against a prominent person in a high-profile criminal matter.
One can only speculate as to the reason for that. But imagine that you just started a brand new job. Imagine you didn’t know what you’re doing, and your relevant experience was non-existent. Imagine that all of your employees have counseled against the course you are taking. But imagine as well that you have no choice because the only reason you have the job is that you agreed to pursue this indictment. Imagine that your predecessor lost the job you now have because he would not do this particular piece of dirty work. Imagine you have been warned that the evidence just isn’t there to proceed with the case.
Under such circumstances, you might also choose not to show a lot of your work.
Yesterday On Lawfare
Compiled by the estimable Isabel Arroyo
Are Military Lawyers Being Sidelined?
Dan Maurer explains why the administration’s lethal strikes on alleged drug traffickers imply that judge advocates general (JAGs)—the lawyers tasked with providing principled counsel to commanders and others within the Defense Department—are being dangerously sidelined in military decision-making.
If these lawyers were kept in the dark during the strike, it would reflect a serious breach of a norm (and established administrative and military doctrinal processes) meant to ensure U.S. military operations are vetted for legality constantly. If they did review the strike and determined it was lawful under domestic and international law, I believe (and a great many others do too) that they were clearly wrong. This leaves open several possibilities: They were not consulted; they were ignored; they succumbed to groupthink despite a duty for independence; or similarly, they were directed to accept a high-level legal conclusion, depriving them of the opportunity to exercise independent legal judgment.
The secretary of defense’s notable contempt for JAGs, his unprecedented relief of the top JAG generals in the Army and Air Force in February, and the current plan to shift 600 JAGs out of their military assignments and into temporary immigration judge robes justifies suspicion that either JAGs in the chain of command were not invited to the planning of this attack or their legal advice—which surely would have pushed back on this plan—was ignored. The worst, but entirely foreseeable, case is that the military would bypass JAGs’ legal advice and follow an unlawful order from the president—hastened by Trump’s executive order declaring his, or the attorney general’s, interpretation of any law is final and dispositive within the executive branch.
Nationwide Injunctions Are a Bipartisan Problem
Samuel Estreicher and Malcolm Girand argue that nationwide injunctions thwart the percolation of cases through courts, invite partisan forum-shopping, and prematurely nationalize issues in a way that excessively constrains presidents from both parties. They examine how the Supreme Court’s ruling in Trump v. CASA fell short of the structural change needed to balance inter-circuit dialogue with checks on executive overreach, then propose a three-part plan for striking that balance in the future.
The proliferation of nationwide injunctions has, in turn, conscripted the Supreme Court into resolving major policy disputes on its emergency docket, often with limited briefing and without a written opinion. This is bad for both parties, bad for sound government, and bad for the quality of the Court’s jurisprudence and, consequently, the law.
This problem operates across three distinct dimensions: judge shopping within district courts (including strategic refiling), circuit shopping, and premature nationalization of difficult legal issues. Both Republican- and Democratic-aligned litigants consistently exploit these mechanisms, demonstrating the widespread nature of this pathology, which is best conceived as a procedural quandary to be solved and not a partisan issue.
Podcasts
On Lawfare Daily and Scaling Laws, Alan Rozenshtein, Renee DiResta, and Jess Miers discuss the mental health and safety risks generative AI systems pose to children, the legal implications of those risks, and the role of media literacy and parental guidance.
On Rational Security, Scott R. Anderson, Eric Columbus, and Kate Klonick discuss Jimmy Kimmel’s removal from ABC, the TikTok deal, cryptocurrency deals with the United Arab Emirates, and immigration czar Tom Homan’s reported acceptance of $50,000 from undercover FBI agents.
Today’s #BeastOfTheDay is a seal having an existential crisis:
In honor of today’s Beast, look into the abyss.
Tell Me Something Interesting
YouTube audience statistics do not usually warrant a Tell Me Something Interesting, but I—
—stumbled across this particular morsel yesterday and feel compelled to share it with you all.As of the moment of writing, the DogShirtTV episode on Charlie Kirk’s death has exactly 1,292 views on YouTube. YouTube provides a breakdown of how viewers found the video—notifications, external links, recommendations, etc.—which tells me that 8.7 percent of those views arrived by way of YouTube search. It also provides a list of the search terms leading viewers to the video:
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