The Lawfare Podcast: Patreon Edition

On Aug. 6 former President Donald Trump announced on social media that he would “immediately” seek a “venue change ... out [of] D.C.” of his recent four-count federal indictment in Washington, D.C., for allegedly conspiring to overturn the results of the 2020 presidential election. He cited the city’s overwhelmingly majority liberal political demographics as a reason for transferring the trial’s venue, and called the city “a filthy and crime ridden embarrassment to our nation.”

Is Trump likely to succeed in court if he files a motion to transfer venue? Is there any precedent for this? Have other Jan. 6 defendants made similar claims? And how is the Supreme Court likely to interpret this issue?

To answer all of these questions and more, Lawfare Associate Editor Katherine Pompilio sat down with Lawfare Senior Editor Roger Parloff, who has been closely tracking Jan. 6 prosecutions, and recently published a piece on Lawfare unpacking this issue. They discussed what Jan. 6 defendants have argued in their motions to transfer venue, how the Justice Department has responded, and why if Trump files a motion to transfer venue in his Jan. 6 case, it is likely, as Roger puts it, “dead on arrival.” 

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This week, Alan, Quinta, and Scott beat back the heat to dig into the week's big national security news stories, including:

• “ECOWAShed?” We are now several weeks into a coup in Niger, a country once seen as one of the more reliable Western partners in the Sahel region and home to French and U.S. troops who have been helping the Nigerien military combat a local Islamist insurgency. Even as the Nigeria-led Economic Community of West African States, or ECOWAS, has threatened sanctions and intervention to unwind the coup, neighboring states like Burkina Faso and Mali with close ties to Russia and its Wagner Group have threatened a military response in kind. What might this coup mean for the future of the Sahel? And how should the United States be responding?
• “A Tale of Two Sittings.” Former President Donald Trump is now the subject of two different criminal indictments, each of which is being overseen by a very different judge in very different ways. What should we make of their divergent approaches thus far? And what does it mean for the effectiveness and legitimacy of the justice system in these highly polarizing cases?
• “KOSA, No Sir.” A bipartisan coalition in Congress has rolled out a new version of the Kids Online Safety Act, or KOSA, that seeks to respond to concerns raised by digital rights and civil liberty groups while still taking steps towards protecting children online. But many on the right and left aren’t having it. What should we make of this new proposal and the reactions it’s provoked?

For object lessons, Alan invoked his father-of-a-son credentials to recommend Christine Emba's recent piece, "Men Are Lost. Here's a Map Out of the Wilderness." Quinta recommended the Neil Gaiman and Terry Pratchett mash-up, "Good Omens" (the book, not the TV show). And Scott shared plans for his homemade improvised pizza oven, which he set up on his gas grill with just some fireproof bricks, two baking steels, and a heavy dose of grit.

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Former President Trump has been arguing for some time now that the criminal charges he’s facing in New York, Florida, and D.C. are politically motivated. At a campaign event in New Hampshire a few days ago, he also complained that the cases are forcing him “to spend time and money away from the campaign trail.” The cases haven’t even gotten to trial yet, but two of them are scheduled to take place during campaign season.

Which raises the question: does Trump have to actually attend all of these trials while he’s also running for president? 

Lawfare Executive Editor Natalie Orpett sat down with Dan Richman, the Paul J. Kellner Professor of Law at Columbia Law School, to discuss. As it turns out, it’s a complicated question.

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Katie Benner is a features writer for the New York Times, who covered the Justice Department for a number of years beginning in 2017. In a wide-ranging conversation, she sat down with Lawfare editor-in-chief to talk about the challenges of walking into the Justice Department beat during the Trump administration and covering the post-election uprising within the department. She also gave a textured assessment of the department’s criminal investigation of Trump and other Jan. 6 defendants. And she talks about what makes a Justice Department source, and how the department has changed in the era of Merrick Garland.

Among the works mentioned in this episode:

• The article, "Trump and Justice Dept. Lawyer Said to Have Plotted to Oust Acting Attorney General," by Katie Benner.
• The article," Louisiana School Made Headlines for Sending Black Kids to Elite Colleges. Here’s the Reality," by Erica L. Green and Katie Benner

Chatter is a production of Lawfare and Goat Rodeo. This episode was produced and edited by Cara Shillenn of Goat Rodeo. Podcast theme by David Priess, featuring music created using Groovepad.

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The increasingly pervasive use and abuse of spyware by governments around the world has led to calls for regulation and even outright bans. How should these technologies be controlled? Asaf Lubin, an Associate Professor of Law at Indiana University's Maurer School of Law, thinks that the best path forward is an international agreement that would regulate, but not outlaw, these important national security and crime-fighting tools. He's just published a paper for Laware's ongoing Digital Social Contract research paper series making his case for what he calls the Commercial Spyware Accreditation System. 

Alan Rozenshtein, Associate Professor of Law at the University of Minnesota and Senior Editor at Lawfare spoke with Asaf about why current efforts to control spyware are insufficient and why only a global regime can do the job.

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Just weeks ago, the U.S. Court of Appeals for the D.C. Circuit upheld the life sentence of a Yemini national serving out his time at the Guantanamo Bay detention center. He had appealed this life sentence, in part on the grounds that his conviction was based on evidence obtained by torture. Meanwhile, at the Guantanamo military commissions, another detainee tried to appeal charges against him on the basis that torture-obtained evidence was used in his referral for trial by the military commissions—but in June, the body that reviews referrals for trials at Guantanamo denied this appeal. He and his co-defendants are currently set to have pre-trial hearings in October. 

All of this is happening despite the fact that in 2022, in a case about a different Guantanamo detainee, the Biden administration’s Justice Department committed to a reinterpretation of a key statute that blocks the use of torture-obtained evidence in Guantanamo litigation and reaffirmed that it would not try to admit statements that the detainee gave while in CIA custody. 

So how and why is it that torture-obtained evidence still seems to be being used in certain GTMO cases? To understand the issues, Lawfare Associate Editor Hyemin Han spoke to Scott Roehm, Director of Global Policy and Advocacy at the Center for Victims of Torture, and an Adjunct Professor of Law at Georgetown Law School. They talked about the history of torture evidence at GTMO, dove into a few cases in context of the Justice Department’s 2022 re-interpretation, and discussed what this all might mean for other GTMO detainees moving forward.

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In the last year, the ADL and GLAAD tracked at least 356 incidents of anti-LGBTQ+ hate and extremism in the U.S. This marks an alarming rise over the past two years of anti-LGBTQ+ sentiment and violence. 49% of all incidents were perpetrated by individuals associated with extremist groups. This seems to point toward a much larger recent focus on the LGBTQ+ community by far-right extremists.

Lawfare Intern Gia Kokotakis sat down with Meghan Conroy, a Research Fellow at the Atlantic Council's Digital Forensic Research Lab who leads its domestic extremism research portfolio, and Jon Lewis, a Research Fellow at George Washington University's Program on Extremism. Both Jon and Meghan have done significant research on far-right extremist groups and ideologies, as well as their intersections with anti-LGBTQ+ violence. They discussed the role far-right extremist groups previously played in anti-LGBTQ+ violence, what may have caused a spike in violence against the queer community, and how the extremist groups committing these acts of violence differ from our traditional conception of the far right.

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This week on Rational Security, Alan, Quinta, and Scott were joined by co-host emeritus Benjamin Wittes to talk through the week's YUGE national security news, including:

• “So THAT’s What the Insurrection Act is For.” Former President Trump has been indicted for conspiring to overthrow the results of the 2020 election, including through the insurrection on Jan. 6. And while they haven’t been charged, the indictment names six co-conspirators who were allegedly willing to go to the mat—including former Justice Department official Jeffrey Clark, who, in one of the darkest moments in the indictment, suggested that the Insurrection Act would be used to deploy the military against anyone who protests the Trump administration’s actions. What does this indictment mean, historically and politically? And where will the trial go from here?
• “The Spy Who Nagged Me.” The intelligence community is knocking on Congress’s door, hat in hand, asking once again for the renewal for the controversial-but-essential section 702 surveillance authority. But odds seem slimmer than ever this year, not least because the political dynamics around federal law enforcement and intelligence changed so dramatically over the course of the Trump administration. What are the odds of renewal? And what conditions are likely to come if it happens?
• “Hunter and the Fox.” President Biden’s son Hunter, who has wrestled with substance abuse and mental health issues, is back in the news for at least attempting to plead guilty to an array of criminal offenses—and for congressional testimony alleging that he parlayed access to his father into lucrative business deals. The stories have become a mainstay in conservative media circles and right-wing attacks on President Biden. But how much is smoke and how much is fire?

For object lessons, Alan recommended the period thriller “Operation Mincemeat” and its focus on Colin Firth's double-breasted period suits. Quinta sang the praises of the Star Wars section at Disneyland, Galaxy's Edge. Scott endorsed “The Thief Collector,” a charming documentary about a real-world heist and a retired couple's dark double-life. And Ben celebrated his decision to bring "The Orb" out of retirement for the big Trump indictment.

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