The Lawfare Podcast: Patreon Edition

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There's been a lot of discussion about whether Donald Trump should be indicted. Lately, that discussion has focused on the documents the FBI seized from Mar-a-lago or the Jan. 6 committee's revelations about his efforts to overturn the 2020 election. But what about his speech on the ellipse on Jan. 6 when he told a crowd of thousands to “fight like hell,” and they went on to attack the Capitol? Isn't that incitement? 

Lawfare executive editor Natalie Orpett sat down with Alan Rozenshtein, a senior editor at Lawfare and an associate professor at the University of Minnesota Law School, and Jed Shugerman, a professor at Fordham Law School. Alan and Jed explained the complicated First Amendment jurisprudence protecting political speech, even when it leads to violence, and why they believe that given everything we know now, Trump may in fact be criminally liable. They also reference Alan and Jed’s law review article in Constitutional Commentary, “January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution” (forthcoming 2023).

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Claudia Swain is Lawfare’s digital strategist—but before coming to Lawfare, she worked at the Federal Railroad Administration, deep in the bureaucracy. She recently wrote an article for Lawfare called, “The Emerging Cyber Threat to the American Rail Industry,” which is a bit of a chilling read about the threat that the American rail industry faces as a result of, of all things, new computerized safety systems. 

Benjamin Wittes sat down with Claudia for a fascinating conversation about Positive Train Control, this new computerized system, and the potential cybersecurity threats it poses. 

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This past weekend, the Chinese Communist Party held its 20th National Congress, an event held every five years at which it appoints its senior leadership who in turn holds the reins of China's government. This year, the event focused on one man, Xi Jinping, the current president of China, who secured an unprecedented, third consecutive five-year term as the party’s senior-most official and was able to staff the party apparatus with hand-chosen loyalists, even at the expense of his predecessors and other factions in the party.

To discuss these events, Lawfare senior editor Scott R. Anderson sat down with Sophia Yan, China correspondent for The Telegraph, and Julian Ku, Professor of Law at Hofstra University. They discussed what went down at the National Congress, where it says China is headed in the next five years, and what it might mean for its relationship with the United States.

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In two weeks, millions of Americans will head to the polls for the 2022 midterm election. During that time, an estimated one million poll workers will help administer the election and ensure the process runs safely and smoothly.

Ahead of the midterms, Lawfare managing editor Tyler McBrien sat down with Rachel Orey, associate director of the Bipartisan Policy Center Elections Project, and Grace Gordon, a policy analyst on the project, to talk through their latest report, “Fortifying Election Security Through Poll Worker Policy.” They discussed how elections are fundamentally a human enterprise, why poll workers are so important, and how states can better safeguard against efforts to use poll workers to undermine election credibility.

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Olivia Troye has worked in the Republican National Committee, the Pentagon, the Coalition Provisional Authority in Baghdad, the National Counterterrorism Center, and the Department of Homeland Security. But it was her role on the small team directly supporting Vice President Mike Pence that brought her the most challenging experiences of her career while making her all too aware of the surprisingly thin staffing for the next in line to the presidency.

Lawfare publisher David Priess spoke to Troye about her path from El Paso to Philadelphia to Washington, her experience on Capitol Hill on 9/11, serving in Baghdad after the U.S. invasion, working at the National Counterterrorism Center and the Department of Homeland Security, differences between core National Security Council staff and the support staff for the vice president, the many different tasks that support to a vice president entails, Mike Pence as a customer of the President's Daily Brief, the value of civil service professionals, the ups and downs of working with Pence during the COVID-19 pandemic, the inappropriate handling of classified material she saw during her final years on the job, the ethical reasons spurring her to leave government service, the importance of reasonable gun control, and more.

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

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From February 5, 2021: Some countries don't just abuse their citizens within their own borders; increasingly, they target individuals after they have gone abroad. A range of nefarious acts play a role here, and together they make up a phenomenon called transnational repression.

Nate Schenkkan, the director of research strategy at Freedom House, and Isabel Linzer, Freedom House's research analyst for technology and democracy, are the two authors of "Out of Sight, Not Out of Reach: Understanding Transnational Repression," a new report detailing the practice and Freedom House's research on the topic. David Priess sat down with them to discuss the variety of forms transnational repression can take; whom is targeted and why; examples from the governments of Russia, Saudi Arabia, China, Rwanda, and even Equatorial Guinea; and recommendations to buck this growing trend.

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Recently, Charlie Savage of the New York Times reported that the Biden administration had finalized a new policy governing drone strikes used in counterterrorism operations outside war zones. The policy tightens up rules established under the Trump administration—which themselves replaced an earlier guidance set out by President Obama. President Biden’s policy is the latest effort to calibrate America’s use of force in a 21st-century conflict outside the traditional battlefield.

To talk through Charlie’s reporting, Lawfare senior editor Quinta Jurecic sat down with him and Lawfare cofounder Bobby Chesney, who has closely observed this area of U.S. law and policy. They discussed how U.S. counterterrorism operations have changed in recent years, how Biden’s approach compares to the Obama and Trump policies before it, and the significance of these changes for U.S. counterterrorism going forward. 

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