The Lawfare Podcast

Episode: Lawfare Archive: Ask Us Anything About 2024
Original Air Date: January 2, 2025 (Archived December 27, 2025)
Host: The Lawfare Institute
Panel: Benjamin Wittes, Quinta Jurecik, Eugenia Lostri, Scott R. Anderson, Natalie Orput, Anna Bauer, and others

Main Theme

This "Ask Us Anything" (AUA) episode features Lawfare’s editors and contributors responding to a wide range of listener questions concerning national security, law, and policy—a special focus on legal issues raised by the turbulent political environment heading into and out of 2024. Topics range from AI risks and Section 230 reform, to TikTok and the international order, presidential powers, pardons, and much more.

Key Discussion Points & Insights

1. AI as an Existential Risk and Lawfare’s Coverage

Speaker: Kevin Frazier
Timestamp: 03:28

• Definition: Existential (X) risk is per the Global Catastrophic Risk Management Act of 2022—"an outcome that would result in human extinction."
• Accepted X risks: Bioweapons (pandemics), nuclear weapons; Lawfare historically covers these due to historical precedence and realistic scenarios.
• AI’s Risk:
  • Super-speculative risks (e.g., "turning humans into paperclips") are outside Lawfare’s focus.
  • Realistic concerns about AI’s militarization and political interference are covered and will remain a focus.
• Three major 2025 AI stories:
  1. US-China AI arms race
  2. Tension between AI competition and domestic tech agendas
  3. Congressional and state responses to AI-driven disinformation
• Quote:

  “Do I think that Lawfare would publish a piece on a rogue AI turning us into paperclips? No. Do I think that Lawfare would run a podcast analyzing the militarization of AI and the possibility of significant harms? You bet.” (04:43)

2. The Future of Section 230

Speaker: Quinta Jurecik
Timestamp: 06:45

• Background: Section 230 shields platforms from liability for third-party content.
• Current Status: Bipartisan attacks since 2016; waned after Gonzalez v. Google (2023), in which the Supreme Court "punted," causing momentum for reform to stall.
• Recent developments:
  • Legislation has shifted focus more toward child safety and platform-specific measures, e.g. TikTok ban.
  • Notable circuit court (Third Circuit, TikTok v. Anderson) opened new liability for algorithmic recommendations.
  • Possible renewed push from a Trump FCC appointee (Brendan Carr), aiming for regulatory reform via FCC, not Congress.
• Obstacles:
  • Deep structural reliance on 230, bipartisan difficulty creating reforms that don’t have massive, unpredictable repercussions.
  • Potential for legal challenges against FCC action.
  • Political cross-currents: e.g., GOP’s alliance with Elon Musk.
• Quote:

  “Any effort to reform 230 is going to run into the same problem...the Internet is kind of built on the expectation that it’s there. And so any changes to it could have a potentially really dramatic cascade of effects …” (09:47)

• Forecast: Expect more debate, but real reform is unlikely.

3. Bitcoin, Cryptocurrency, and Upcoming Regulation

Speakers: Eugenia Lostri, Quinta Jurecik
Timestamp: 11:57

• Trump Administration: Pro-crypto appointments (David Sacks, Paul Atkins) likely to promote industry-friendly regulation.
• Policy Context:
  • Prior SEC enforcement likely to recede.
  • Trump's and family's public and financial interest in crypto underlines support.
  • Industry heavily involved in campaign financing.
• Forecast: Expect favorable industry regulation, but political winds can shift—Trump was once a skeptic.
• Quote:

  “With a friendly executive, a friendly Congress, any regulation that we see is to be friendly to industry.” (13:30)

4. The TikTok Ban and the Global Internet

Speakers: Alan Rosenstein, Quinta Jurecik
Timestamp: 14:34

• Significance: TikTok ban marks formal US abandonment of a borderless Internet.
• Historical context:
  • “Global Internet” always part illusion—China, Russia, and other major powers asserted sovereign control long ago; EU carved its own regulatory path (e.g., GDPR).
  • US is now explicitly prioritizing national sovereignty in digital affairs.
• Quote:

  “The ban simply represents America finally accepting what much of the world already understood, that digital spaces, like physical ones, are inherently subject to national sovereignty and regulation.” (16:29)

5. Russian Political Technology in US Elections

Speaker: Quinta Jurecik
Timestamp: 16:59

• 2024 Experience:
  • Widespread concern; actual interference minimal.
  • Russian bomb threats caused polling-place closures but did not impact vote counts.
• Lesson: Election integrity depends on distinguishing between attempts and successful impact, and on not overreacting to the chaos sown by foreign actors.
• Quote:

  “The point of foreign election interference, certainly from Russia, is really less to change the result...and more to cause chaos and sow distrust in the system among Americans.” (19:21)

6. Constraints on Iranian Regional Policy

Speaker: Scott R. Anderson
Timestamp: 21:08

• Key Argument: Attacks on Iranian leadership rattle, but don’t fundamentally change the regime’s calculus—real change comes from broader regional shifts.
• Recent Trends:
  • Israel’s military campaigns have weakened Iran's regional proxies, with collapse of Assad regime cutting off Iran’s logistical routes.
  • Iran now “a regional paper tiger,” losing access to major pressure points against Israel.
  • Iran likely to double down in remaining proxy strongholds (Yemen, Iraq).
• Quote:

  “From a strategic perspective… Iran is in the weakest position it’s been for years.” (26:27)

7. Guantanamo Detainee Transfer—Legal Implications

Speaker: Natalie Orput
Timestamp: 27:30

• Present reality: Since 2010, congressional “travel ban” prohibits funding for transferring Guantanamo detainees to US soil.
• If transferred:
  • Those cleared for transfer must be freed.
  • Those in law-of-war detention (no charges) likely must be released; current military detention authorities don’t work on US soil.
  • Those charged must be prosecuted under civilian law—major evidentiary/procedural problems.
  • Military commissions cannot just be moved to the US.
• Quote:

  “Prosecutors are also much more constrained...because every one of these cases involves torture, that's a huge problem for prosecutors…” (31:24)

8. The Regionalization ("Balkanization") of International Law

Speaker: Scott R. Anderson
Timestamp: 33:27

• Trend: Power blocs are creating increasingly separate rulebooks—no longer just geographical regions, but ideological/political alliances.
• Past vs present: Previously, global economic interdependence promoted peace and prosperity. Now, skepticism is rising and blocs are setting their own rules.
• Quote:

  “We are just going into an era of increasingly balkanized international relations that includes international law as well.” (36:55)

9. Legal Basis for Arresting Undocumented Immigrants

Speaker: Amelia Wilson
Timestamp: 37:54

• Authorities: ICE can question/detain with mere suspicion; permission or warrant needed to enter homes/businesses.
• Burden of proof: Government must establish non-citizenship (“alienage”); individuals do not have to answer questions about status.
• Quote:

  “Refusal to answer the officer's questions does not justify or give rise to their arrest.” (40:16)

10. Presidential Authority to Deploy the Military Domestically

Speaker: Scott R. Anderson
Timestamps: 49:01

• Legal base: Posse Comitatus Act prohibits law enforcement by military without congressional authority; many exceptions (Insurrection Act, border, counternarcotics).
• National Guard: When under state command, not subject to Posse Comitatus; President can request state-contributed manpower for federally funded missions.
• Courts: Traditionally defer to President; legal/constitutional constraints (First/Fourth/Fifth Amendments) always apply.
• Quote:

  “Using the military isn’t an escape clause from the rest of the Constitution, and all those things still apply.” (53:01)

11. Presidential Immunity—Could a President "Get Away With Murder"?

Speaker: Anna Bauer
Timestamp: 54:35

• OLC Memo: Temporarily precludes prosecution of a sitting president.
• Not a shield: President can be prosecuted after leaving office, barring official immunity claims.
• Hypothetical: If president ordered a killing via official act (e.g. orders to SEAL Team 6), some readings of the Supreme Court's July 2025 immunity decision could protect him.
• Quote:

  “Under some readings of the majority’s opinion in the immunity case, the president may very well be immune from prosecution in that scenario…” (56:09)

12. Preservation of Institutional Knowledge at DOJ/FBI

Speaker: Benjamin Wittes
Timestamp: 57:29

• Main point: If mass firings occur, institutional knowledge is irrevocably lost; only personnel retention preserves it.
• Prior precedent: Trump’s first term focused more on removing leaders, less on mass firings.
• Quote:

  "There is no substitute for humans who've served a long time for preserving institutional memory." (57:40)

13. The System’s Reliance on Good Faith

Speaker: Natalie Orput
Timestamp: 59:34

• Short answer: The legal system relies heavily on good faith at all levels, especially in top government positions; tools for enforcing good conduct are limited.
• Mechanisms: Democratic accountability (elections), First Amendment, oaths of office, but legal system has limits in handling entrenched bad faith.
• Quote:

  "If someone just doesn't care...there’s not much you can do in terms of controlling that person’s behavior prospectively." (63:20)

14. DOJ Conflicts and Recusal—Trump’s Former Lawyers as Government Lawyers

Speaker: Benjamin Wittes
Timestamp: 65:20

• Ethics rule: DOJ lawyers must recuse from matters involving their former (Trump) client, or any matter creating even a perception of a conflict.
• Enforcement: Non-recusal triggers bar complaints; DOJ internal mechanisms for maintaining recusals are strong.
• Quote:

  "The mechanism to handle this sort of thing is recusal, and it is not optional. It is required." (66:19)

15. Trump Indictment—Restricted Data vs. Formerly Restricted Data

Speaker: Anna Bauer
Timestamp: 67:50

• Classification: Some info (e.g., nuclear secrets) classified by statute (Atomic Energy Act); President cannot unilaterally declassify.
• Trump's defense: Claim he declassified does not apply to "formerly restricted data."
• Quote:

  "Formally restricted data is classified by statute, and the president cannot automatically declassify those documents at will." (71:20)

16. Preemptive Pardons—Could Trump Have Pardoned Jan 6th Attackers?

Speaker: Roger Parloff
Timestamp: 72:21

• Answer: Preemptive pardons are likely constitutional—historical examples exist (Nixon, Whiskey Rebellion, Carter’s Vietnam draft pardons), but untested at Supreme Court.
• Why didn’t he: Trump’s stance on Jan 6th at the time was oppositional; issued statements condemning the attack.
• Quote:

  “I think he could have [offered preemptive pardons].” (75:55)

17. Trump and “Fake Electors”—Prosecution Possibilities

Speaker: Quinta Jurecik
Timestamp: 76:40

• Federal case: Smith’s federal indictment included fake elector scheme, but was dropped after Trump’s election.
• State prosecutions: On hold or stalling, e.g., Georgia (DA disqualified), other states’ prosecutions unclear.
• Outlook: Unlikely to be prosecuted while in office due to immunity issues and practical hurdles like statute of limitations.
• Quote:

  “I would also put this in the category of maybe we might see some kind of charge against Trump after he leaves office in 2029...” (78:47)

18. Pardoning Insurrectionists—Is it Abetting?

Speaker: Roger Parloff
Timestamp: 80:11

• After the fact: No, offering pardons post-insurrection isn’t abetting a crime.
• Conditional in advance: If offered for conducting an insurrection, yes, but might be shielded by presidential immunity, especially after Trump v. US (July 2025).
• Obstruction of justice?: Unclear—courts haven’t definitively ruled on whether dangling pardons to silence witnesses constitutes obstruction after the recent Supreme Court opinion.
• Quote:

  “After Trump versus United States, it's hard to make even that argument anymore that that would be obstruction of justice.” (82:20)

Notable Quotes by Timestamp

• On AI coverage: "Do I think that Lawfare would publish a piece on a rogue AI turning us into paperclips? No... we have, and we will continue to." – Kevin Frazier (04:43)
• On Section 230: “Any effort to reform 230 is going to run into the same problem...the Internet is kind of built on the expectation that it’s there...” – Quinta Jurecik (09:47)
• On TikTok and national sovereignty: “The ban simply represents America finally accepting what much of the world already understood, that digital spaces, like physical ones, are inherently subject to national sovereignty and regulation.” – Quinta Jurecik (16:29)
• On Iran’s weakening: “From a strategic perspective… Iran is in the weakest position it’s been for years.” – Scott R. Anderson (26:27)
• On military use at home: “Using the military isn’t an escape clause from the rest of the Constitution, and all those things still apply.” – Scott R. Anderson (53:01)
• On institutional knowledge: "There is no substitute for humans who've served a long time for preserving institutional memory." – Benjamin Wittes (57:40)
• On legal system and good faith: "If someone just doesn't care...there’s not much you can do in terms of controlling that person’s behavior prospectively." – Natalie Orput (63:20)
• On preemptive pardons: "I think he could have." – Roger Parloff (75:55)

Segment Timestamps (For Key Questions and Answers)

• AI existential risk and Lawfare’s coverage: 03:28 – 06:16
• Section 230 and its future: 06:45 – 11:15
• Bitcoin/crypto regulation under Trump: 11:57 – 14:17
• The end of the global Internet (TikTok ban): 14:34 – 16:45
• Russian political “technology” in 2024 US election: 16:59 – 20:02
• Iran’s regional strategy and Israeli actions: 21:08 – 27:03
• Guantanamo detainee transfer: 27:30 – 33:27
• Regionalization of international law: 33:27 – 37:20
• Legal basis for arresting undocumented immigrants: 37:54 – 40:59
• Domestic deployment of US military (Insurrection Act/Posse Comitatus): 49:01 – 54:21
• Presidential prosecution/immunity (murder hypothetical): 54:35 – 57:05
• Institutional knowledge at DOJ/FBI: 57:29 – 59:34
• Good faith and government/legal actors: 59:34 – 64:24
• DOJ ethics and recusal: 65:20 – 67:37
• Trump/classified docs: restricted vs. formerly restricted data: 67:50 – 72:01
• Preemptive pardons for Jan 6: 72:21 – 76:29
• Fake electors prosecutions: 76:40 – 80:01
• Pardoning insurrectionists/aiding abetting: 80:11 – 84:13

For Listeners:

This episode offers a tour d’horizon of legal, policy, and constitutional challenges facing the US in the wake of 2024’s election, and the legal complexity wrought by evolving technologies, executive power, and global fragmentation. While some questions remain unresolved, Lawfare's experts lay out the landscape and legal reasoning behind each issue, making this a must-listen for those invested in the intersection of law, security, and governance.