The Lawfare Podcast: "Ask Us Anything About 2025"
Date: January 2, 2026
Host: The Lawfare Institute
Summary by Lawfare Podcast Summarizer
Episode Overview
This annual “Ask Us Anything” episode features Lawfare’s senior contributors responding to listener-submitted questions on big legal, policy, and national security issues facing the U.S. in 2025. The conversation ranges from the legality of U.S. military operations, complex pardons, and bar discipline, to specific questions on AI regulation and the resilience of American legal institutions. The tone is candid, occasionally somber, and deeply analytical—a signature of Lawfare’s commitment to sober assessment in turbulent times.
Key Discussion Points and Insights
1. Legality of a U.S. Blockade of Oil to China (re: Taiwan conflict)
- Question from Chad, Ann Arbor (05:00): Would it be legal under the Law of War for the United States to blockade oil shipments to China in the event of a Taiwan conflict? Is the U.S. military accounting for strategic disadvantages due to reliance on oil compared to China’s electrification push?
- Scott R. Anderson (06:34):
- Blockades are acts of war under international law, lawful if they meet conditions: properly noticed, effective, and neutral.
- The U.S. could lawfully blockade in "collective self-defense" if China attacked or in defense of an ally—recognition of Taiwan as independent would be a prerequisite.
- The U.S. officially recognizes only the “One China” perspective but hasn’t foreclosed recognizing Taiwan.
- Reliance on oil remains a logistics challenge; the U.S. military has considered alternative energy for strategic reasons.
- “This is part of the strategic planning and discussion. The politics around climate change...make it difficult...It really is about effective war fighting.” (Scott R. Anderson, 10:05)
2. Legal Basis for Striking Boats Allegedly Linked to Venezuela
-
Jonathan Crumpfield (11:08): Why are boat strikes in the Pacific allegedly tied to Venezuela when Venezuela has no Pacific coast?
-
Natalie Orpet (11:22):
- The administration’s legal explanations are “muddled and sometimes contradictory.”
- Strikes are justified not as war with Venezuela, but against “narco-terrorists.”
- U.S. claims a “non-international armed conflict” against armed groups, not Venezuela directly.
- The legality is tenuous: “Just calling someone a terrorist...doesn’t make it okay to use military force against them.” (Natalie Orpet, 13:40)
- Orpet concludes the strikes are illegal under both international and domestic law.
-
Follow-up on Two Survivors of Boat Strike (16:14):
- Survivors were repatriated and not prosecuted, which undermines but doesn't wholly discredit U.S. legal theory.
- “The fact that the administration is not detaining the survivors...is...a demonstration of the fact that it doesn’t think it can successfully prove...that we’re in an armed conflict...” (Natalie Orpet, 19:02)
3. Congressional Checks on Unauthorized Military Force
- WW (22:46): Can Congress challenge unauthorized executive military action?
- Scott R. Anderson (23:01):
- The President has broad power where Congress is silent (“zone of twilight” in Youngstown framework).
- Congressional restrictions, if enacted, would push presidential authority to its lowest, subject to stronger judicial review.
- Real legal clashes need a clear inter-branch conflict to get courts involved; most war powers disputes are rarely litigated.
- “The maritime strike campaign pushes the envelope way further than the executive branch has before, in my view.” (Anderson, 30:09)
4. Executive vs. Legislative Power: Gaps and Remedies
- Ann Wayne Scott (30:59): Does the “legislature fails, executive overreaches” dynamic described in Law and the Long War still hold?
- Benjamin Wittes (31:40):
- “The more detailed the policy issue gets...the more likely I am to think of what I wrote at that time as wrong...Except that dynamic, I do think the book is still spot on about.”
- Congress is again “sitting out major policy questions,” leaving executive action and courts as primary checks.
- Acceleration of this pattern, with Congress failing to step in even ex post as in War on Terror era.
5. Jurisdiction-Stripping: Can Congress Limit Supreme Court Authority?
- Connor (35:59): Could Congress strip ONLY the Supreme Court of jurisdiction over certain cases?
- Eric Columbus (36:34):
- “Nobody knows.” The constitutional “exceptions clause” allows Congress to make exceptions, but there are unresolved tensions.
- “Is the Supreme Court really going to let Congress interfere in this way and take cases away from it?” (Columbus, 39:30)
- References Klein (1872) as the closest precedent, with uncertain implications for future efforts.
6. Delegations of Power: Executive to Congress and Vice Versa
- John from Battle Creek (40:07): If Congress can delegate powers to the executive, can the President delegate back?
- Benjamin Wittes (40:46):
- “It’s a little bit of a one way ratchet.”
- No reciprocal authority for the executive to “give” Congress executive power via consent or statute.
- “Lack of parallelism between the branches matters.”
7. Seating Members of Congress—House Clerk/Contested Credentials
- Edward Dunlay (44:15): Could a Speaker refuse to seat elected members?
- Eric Columbus (44:36):
- At the start of a new Congress, there is no Speaker until members elect one.
- The House clerk initially controls the list of Representatives-elect, but “shenanigans” are unlikely, albeit possible; historical parallels referenced (1839, 1863).
- Recommends Edward Foley’s Ballot for historical perspective.
8. National Guard Deployment: State versus Federal Authority
- Hillary Ullman (50:56): What if Governors proactively deploy National Guard to protect voting?
- Lauren Voss & Eric Columbus (51:21):
- Governors can deploy Guards under state law, but the President can federalize them (Title 10), taking control even against a governor’s wishes.
- “We explicitly saw this with some invocations of the Insurrection Act in the civil rights era.”
9. Resilience of the Legal Profession as Institutional Bulwark
- Tiffany Sato (53:35): Is the legal institution holding up under pressure? What are its strengths/weaknesses?
- Natalie Orpet (53:57):
- “I’ve been really ashamed of a lot of lawyers...Some DOJ lawyers have avoided questions or made misrepresentations...lawyers are creating legal theories that rationalize facially absurd things...”
- Weakness: Lawyers’ intellectual training to make “any argument,” but not always upholding ethics.
- Strength: Many lower court and state judges, as well as many lawyers, are acting with integrity even under threat.
- “Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.” – Louis Henkin quoted (58:31)
- Expresses hope, tempered by realism about the strain on institutions.
10. Pardons & Presidential Power: The January 6 Case and Pipe Bomb Defendant
- Joe Silverswide (59:16): Is the pipe bomb defendant pardoned by Trump’s broad January 6 pardons? Can presidents clarify or narrow pardons?
- Roger Parloff (61:27):
- Two broad Trump pardons create legal ambiguity. Likely, government will argue pardons apply only to convictions or charges pending as of issuance.
- There are precedents where separate offenses found during arrests were covered by pardon; others were not.
- Presidents can expand via new pardons, but not really “clarify” retroactively in the narrow sense.
- “I don’t think there’s a lot of law on this because it’s such an unusual situation...Thank you for the question. Very good question, and I hope that was helpful.”
11. Post-Presidency “Clawback” of Emoluments
- Reed, Jacksonville (67:32): Is there any realistic path for clawback of ill-gotten gains after Trump re: emoluments clause?
- Lauren Voss (67:52):
- Impeachment is only direct constitutional remedy; lawsuits were all mooted when Trump left office.
- Congress could create penalties via statute, but hasn’t. Bribery and gratuity laws remain, but are difficult to apply.
12. Presidential Immunity and Its Extent
- Joost (70:40): Why is immunity limited to the president and not subordinates?
- Anna Bauer (71:10):
- The rationale is to allow decisive presidential action, but not subordinate immunity—otherwise, “no accountability check.”
- “If the president orders a subordinate to carry out an unlawful act, the president may be immune, but...that creates a really crucial accountability check.”
13. Bar Discipline for Lawyers Aiding Unconstitutional Acts
- Addison Morrow, Arizona (74:28): How can lawyers who enable unlawful actions under the current administration keep their licenses?
- Lauren Voss (75:28):
- DOJ’s Office of Professional Responsibility is the internal check, but currently gutted of leadership.
- “External” checks: Courts (can sanction, dismiss charges, or overturn convictions) and state bar associations (can investigate and disbar).
- “State bar associations do have a role to play...But, well, we already talked about that.”
14. International Support for Rule of Law in the U.S.
- David (78:11): What can other nations do to reinforce U.S. rule of law?
- Michael Feinberg, Scott R. Anderson, Eric Columbus (78:27):
- There’s little foreign governments can do—current U.S. administration disregards traditional allies.
- The Justice Department lacks independence, and foreign interference could have negative side effects.
- “Best bet for other nations...is simply to provide emotional support...and to fervently hope that...we ourselves...are able to clean up our own political messes.” (Feinberg/Wittes, 80:30)
15. AI Regulation: U.S., UN, State Laws
-
Sam Delonzo (81:32): U.S. retreat on AI safety, impact of UN cuts, and SDGs?
- Jacob Kraus (81:50): Liberal democracies, including the U.S., have deprioritized AI safety in favor of opportunities and adoption.
- UN still poised to support “global dialogue,” not central to safety.
- “The focus on health and well-being can certainly include AI causing harm in medical advice...”
- UN’s main role will be consensus-building, not enforcement.
-
Heather Alexander (86:24): States like CA and NY passing AI laws: what’s their national impact?
- Eric Columbus (87:14):
- Federal preemption efforts unsuccessful so far; both federal and state governments are active in AI regulation.
- Recent major state laws on transparency are shaping national debates and mimicked in other states.
- “States are moving ahead and continuing to regulate both AI development and AI deployment.”
- Federal efforts marked by gridlock; Trump administration focusing on national framework and litigation.
- Eric Columbus (87:14):
16. Studio Question—The Painting Behind Roger
- Jay (91:46): Who painted “Midnight in Vermont”?
- Roger Parloff (91:55): Will retrieve artist’s name later; purchased by his parents in the 1960s, possibly linked to a MoMA-exhibited artist.
Notable Quotes and Memorable Moments
-
On U.S. blockading China:
“There would be a lawful way for the United States to do that, if it came down to it practically, [but it] might be very difficult given the sheer avenues China has of accessing this.” (Scott R. Anderson, 09:55) -
On legal reasoning of boat strikes:
“Just calling someone a terrorist...doesn’t make it okay to use military force against them.” (Natalie Orpet, 13:40) -
On resilience of legal professions:
“Lawyers are vehicles for justice, ideally, but also they’re just vehicles for truth telling and transparency.” (Natalie Orpet, 56:59) -
On war powers struggle:
“The maritime strike campaign pushes the envelope way further than the executive branch has before, in my view. And that’s something that may come back and bite the Trump administration...” (Scott R. Anderson, 30:09)
Timestamps for Key Segments
- [06:34] Scott R. Anderson on Taiwan blockade and U.S. energy strategy
- [11:22] Natalie Orpet on legal rationale for boat strikes and Venezuela
- [16:36] Natalie Orpet follow-up on boat strike survivors
- [23:01] Scott R. Anderson on congressional checks for unauthorized force
- [31:40] Benjamin Wittes on Congress, executive power, and oversight
- [36:34] Eric Columbus on Congress stripping Supreme Court jurisdiction
- [51:21] Lauren Voss on National Guard deployment and federal authority
- [53:57] Natalie Orpet’s candid assessment of legal profession resilience
- [61:27] Roger Parloff’s analysis of Trump’s broad January 6 pardons
- [67:52] Lauren Voss on post-Trump emoluments clause and clawback
- [75:28] Lauren Voss on bar discipline and DOJ accountability
- [81:50] Jacob Kraus on international AI safety
- [87:14] Eric Columbus on state-level AI regulation
Conclusion
This “Ask Us Anything” episode is a whirlwind tour of the fraught legal landscape of 2025, characterized by institutional strain, executive boldness, and skirmishes over accountability. Lawfare’s team draws on history, doctrine, and recent precedent to provide lucid analysis and honest warnings, while preserving hope that committed stewards can keep core institutions afloat—or at least, buy time for the public to right the ship.
For more, visit lawfareblog.com.
