Archive for October, 2022

The Week That Was – Lawfare

Quinta Jurecic discussed former President Trumps consistent pattern of attempting to stymie the Mueller investigation, the work of the House select committee to investigate Jan. 6 and the Justice Departments Mar-a-Lago investigation, and the legal implications for the ongoing investigations now that Trump is no longer president.

Hyemin Han shared the Justice Department's opening brief in the Eleventh Circuit for an appeal of U.S. District Court Judge Aileen Cannon's Sept. 5 order appointing a special master to oversee privilege claims of documents seized during the Aug. 8 search of former President Donald Trumps Mar-a-Lago residence. It asked the Eleventh Circuit to vacate Cannons order in its entirety with instructions to dismiss the case.

Han also shared the Justice Departments Oct. 11 response in opposition to former President Trumps Oct. 4 application to the Supreme Court for a partial vacatur of the U.S. Court of Appeals for the Eleventh Circuits Sept. 21 order allowing the Justice Department to resume use of materials it has been previously enjoined from using in a Sept. 5 order by U.S. District Judge Aileen Cannon.

William Appleton shared a livestream of the Jan. 6 Select Committees Oct. 13 hearing, announced as the final one. The Lawfare team also hosted a Twitter Spaces on the hearing at 5 p.m. ET.

Hadley Baker shared an episode of Lawfare No Bull which featured audio from the Jan. 6 committees ninth public hearing:

Benjamin Wittes sat down for a conversation with Jurecic, Alan Rozenshtein, and Molly Reynolds on Twitter Spaces to discuss the ninth Jan. 6 select committee hearing, the subpoena of Donald Trump, how this all could impact the upcoming midterm elections, and the performance of the committee given the constraints it faced:

Katherine Pompilio shared former President Donald Trumps letter in response to the House select committees decision to issue him a subpoena seeking information about his involvement in the Jan. 6 attack on the U.S. Capitol.

Han also shared the Biden-Harris administrations first National Security Strategy which details the administrations enduring vision for the U.S. in the coming decade, its views on investment priorities, the administrations global priorities, and a breakdown of the administration's national security strategy by region.

Stewart Baker, Nick Weaver, Matthew Heiman, and Brian Fleming sat down to discuss the White House Blueprint for an AI Bill of Rights, the criminal conviction of Ubers CSO Joe Sullivan, new export restrictions on U.S. technology and its implications for U.S.-China trade relations, a Russian hack and leak operation, and more:

Henry Farrell and Bruce Schneier discussed the U.S. Treasurys Office of Foreign Assets Controls sanctions of Tornado Cash, a cryptocurrency and money-laundering platform, and the implications for cryptocurrency regulation if decentralized autonomous organizations like Tornado Cash are afforded First Amendment protections.Jordan Schneider sat down for a conversation with Kevin Wolf, partner at Akin Gump, to discuss the U.S. Commerce Department's new export control regulations, what the regulations mean for the global semiconductor industry, and if the regulations are even enforceable:

Chenny Zhang discussed the possibility of the American drug industry experiencing a similar manufacturing crisis as the semiconductor industry due to the increasing likelihood of industry consolidation, the difficulties of the regulatory approval process and its impacts on innovation, and the importance of the U.S. bioeconomy for national security.

Russell Buchan and Joe Devanny responded to a recent Lawfare article on the U.K.s cyber strategy and emphasized the need for a nuanced and incremental development of that strategy to achieve the responsible and democratic use of cyber power.

Han sat down for a conversation with Alexander Downes, professor of political science and international affairs at The George Washington University, to discuss the history of foreign-imposed regime change, what lessons can be learned from past foreign-imposed regime changes, and why, when it actually works, its success doesnt last very long:

Tyler McBrien sat down with Beln Carrasco Rodrguez and Tom Southern of the Center for Information Resilience to discuss their research into how Russia establishes and strengthens occupational rule, the Russian playbook for control, and the ways that forced assimilation may or may not be working:

Benjamin Wittes sat down for a conversation with Svitlana Khytrenko, a Ukrainian student who escaped Kyiv in March, to talk about her experiences as a refugee, her life in Poland, and her feelings about the Russian invasion:

Jordan Schneider sat down for a conversation with Kamil Galeev to discuss the prospects of nuclear war, the stability of the Russian state, Moscows grip on annexed regions, Putins future viability, and more:

Katherine Yon Ebright discussed an obscure counterterrorism authority used to create and control proxy forces across Africa and Asia, its intersection with the 2001 Authorization for Use of Military Force (AUMF), and argued that the executive branchs current interpretation may have gone beyond its previous representations to Congress and the public.

Caleb Johnson and Yang Liu provided a summary of President Joe Bidens Oct. 7 executive order which laid out a framework in which the government can conduct signals intelligence activities; establishes a three-layer redress mechanism to address potential violations of privacy, civil liberties, or law; and also fulfills prior commitments to provide higher privacy protections and a more durable basis for future trans-Atlantic data flows.

Renee DiResta and John Perrino discussed the new history of U.S. military information campaigns, how it illustrates the challenges of reaching and influencing online audiences, and argued for a U.S. policy of radical transparency in the information ecosystem in contrast to the opaque policies and disinformation campaigns of authoritarian adversaries such as Russia.

David Priess sat down for a chat with Jordan Taylor, historian and author of Misinformation Nation: Foreign News and the Politics of Truth in Revolutionary America. They discussed the persistence of misinformation, the origins and limits of newspapers in colonial America, the Illuminati scare of 1798-99, and more:

McBrien also reviewed Sierra Pettengills documentary Riotsville, U.S.A. (2022) which illustrates the history of police militarization in the United States, the legacies of the Kerner Commission, and the importance of investigating the origins of repressive social forces.

Wittes also sat down with Jurecic, Rozenshtein, and Scott R. Anderson to discuss the current state of Section 230 of the Communications Decency Act, the two cases recently taken up by the Supreme Court relating to Section 230, and what the correct interpretation of 230if there is onemight look like:

Rozenshtein, Jurecic, and Anderson also sat down with Ashley Deeks, professor of law at the University of Virginia Law School, to discuss some of the weeks big national security news including: developments in the Russia-Ukraine conflict, Saudi Arabias decision to cut oil production, and the Supreme Court's decision to take up two cases related to Section 230 of the Communications Decency Act:

And that was the week that was.

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The Week That Was - Lawfare

West Virginia 2022 elections voter guide: What you need to know – Mountain State Spotlight

The deadline to register to vote is Oct. 18. Early voting runs from Oct. 26 to Nov. 5. Heres what you need to know.

West Virginians will go to the polls to elect two members of the U.S. House of Representatives, state delegates, state senators, and in many places, new county and city officials. Plus, there are four proposed changes to the West Virginia Constitution. If voters approve them, the amendments will let churches incorporate and give more power to the state Legislature to modify property taxes, set education policy, and conduct impeachment trials without state court interference.

To register to vote in West Virginia, you must:

You can search for your voter registration information on the Secretary of States website by entering your name and date of birth.

The deadline to register to vote is Oct. 18, 2022. You can register online, by mail or in person. You will need a valid ID in order to vote; heres a list of acceptable IDs. Note that first-time voters may be asked to provide additional identification with their current name and address.

You can search for your polling place on the Secretary of States website by entering your name and date of birth.

Deadline to register: Oct. 18, 2022

Early voting starts Oct. 26 and goes through Nov. 5. Heres a list of early voting locations and times.

Election Day: Tuesday, November 8, 2022

Yes, but unlike in recent elections, you have to meet certain requirements before youre allowed to vote absentee in West Virginia. Eligibility requires two basic criteria: (1) confinement or not being present in the county during in-person voting, and (2) a permitted reason/excuse.

Read more on the Secretary of States website.

If approved by voters, this amendment would bar all state courts from interfering with impeachment trials conducted by the West Virginia Legislature.

Background: In 2018, a panel of five circuit judges ruled in a case that halted impeachment proceedings in the West Virginia Legislature against several state Supreme Court justices. Lawmakers who support the amendment have said it is necessary and the legislative branch needs this check on the power of the judicial branch. Opponents argue it would remove some of the existing checks and balances built into the system.

If approved by voters, this amendment would allow the state Legislature to adjust property taxes paid on business inventory; business machinery and equipment; and personal vehicles.

Background: Republicans in the Legislature have wanted for years to eliminate these taxes, which provide hundreds of millions of dollars each year for local services like schools, libraries and emergency services. Theres still no plan to replace the money that local governments get from this tax, although state senators passed a non-binding resolution saying they were committed to [replace] revenue in perpetuity that is above and beyond the personal property taxes to be eliminated.

Almost all local governments have urged people to reject this amendment, which would replace a consistent source of annual funding with one that would be controlled by the state Legislature every year. Gov. Jim Justice has also campaigned against the amendment; he wants to reduce personal income taxes rather than property taxes.

If approved by voters, churches would be allowed to incorporate in West Virginia, which is the only state in the nation that does not allow the practice in its constitution.

Background: This proposed amendment comes after a federal judges ruling in neighboring Virginia that prohibiting a church from incorporating violated its First Amendment rights. The language in the West Virginia Constitution comes from the Virginia Constitution.

If approved by voters, state lawmakers would have the final say over policies and rules created by the West Virginia Board of Education.

Background: The state Board of Education operates independently from the Legislature, with the boards nine voting members appointed by the governor and confirmed by the state Senate. The board sets policies about what students are taught in K-12 schools, teacher requirements, discipline policy and many other areas of school administration. Currently the board does not have to submit school policies and rules to lawmakers for approval. In 2017, the West Virginia Supreme Court ruled that legislative action that impedes school board policy would be unconstitutional. But this constitutional amendment would usurp that ruling.

You can read the full text of all four amendments here.

Read more frequently asked questions here.

Other West Virginia elected offices including governor, attorney general, secretary of state wont beup for election until 2024. The U.S. Senate seat held by Joe Manchin will also be up in 2024; the states other U.S. Senate seat, held by Shelley Moore Capito, wont be up until 2026.

Also note that West Virginia lawmakers completely re-drew the states legislative maps in 2021. Because of that, your U.S. congressional district, state delegate district and state senate district may have changed.

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West Virginia 2022 elections voter guide: What you need to know - Mountain State Spotlight

York County agrees to improve public access to criminal court records in response to suit by Spotlight PA, others Spotlight PA – Spotlight PA

Spotlight PA is an independent, nonpartisan newsroom powered by The Philadelphia Inquirer in partnership with PennLive/The Patriot-News, TribLIVE/Pittsburgh Tribune-Review, and WITF Public Media. Sign up for our free newsletters.

YORK Information on criminal cases will be available faster and with fewer redactions under a settlement agreement between the York County Clerk of Courts and five newsrooms including Spotlight PA that had sued alleging First Amendment violations.

The settlement will bring York County in line with First Amendment and Pennsylvania Constitution requirements when granting access to criminal court records, said Sasha Dudding, a legal fellow for the Reporters Committee for Freedom of the Press.

Thats important for both members of the media who are reporting on criminal cases in York County and also members of the public who are entitled to know whats happening in their community, said Dudding, whose organization provides free legal resources to journalists.

Earlier this year, Spotlight PA joined four other state newsrooms to sue York County Clerk of Courts Daniel J. Byrnes after he shut down free, easy access to criminal court records and instituted practices and policies that slowed the release of documents, according to the federal lawsuit filed in March.

Byrnes office also improperly withheld documents and redacted nonconfidential information, obscuring public access that is critical to reporting on the details of a case, the lawsuit alleged.

Dudding and attorney Paula Knudsen Burke both represented Spotlight PA, the York Daily Record, The York Dispatch, LNP Media Group, and public media organization WITF in the lawsuit. Byrnes, an elected Republican who took office in 2020, was the sole defendant.

Byrnes initially called the lawsuit frivolous and said his office has actually expanded free public access to the public, especially to those facing a financial barrier to information.

The Plaintiffs are essentially disgruntled by not having unfettered and immediate access to all records within the Clerk of Courts Office, an attorney for Byrnes wrote in a March 2022 court filing.

In an email Tuesday, Byrnes said his office will continue to reflect our adherence to professional practices that serve the media and general public as accorded by law.

Attorneys for the news organizations pointed to numerous instances where they say the office delayed access to, improperly restricted, and overcharged for judicial records.

During a three-week period in September 2021, journalists from the five news organizations requested access to 42 judicial records. The office provided six the same day, denied access to another six, and redacted information in 32, according to the lawsuit. The lawsuit said the office improperly redacted details in several cases, including the name of an adult victim of an alleged property crime and the address of a shooting.

In court filings, attorneys for Byrnes wrote that the office complied with the requirements of the statewide court system and Pennsylvania law, but acknowledged a few isolated errors.

As part of the settlement, Byrnes agreed to provide the news organizations with a copy of a policy notifying the public how to access judicial records, and a fee schedule that aligns with statewide court policies.

The agreement also addresses the timeline for obtaining records. Byrnes office will make all reasonable attempts to respond to requests on the same business day on which the request is made, and when not practicable, on the next business day, excepting inconsequential deviations and extraordinary circumstances which may delay access.

The office must also adopt a written policy outlining how it will respond to requests for judicial records made in person and by email.

Byrnes also agreed to pay $6,796.52 for costs and expenses incurred by the Reporters Committee for Freedom of the Press.

Both sides agreed that the clerks office will provide redacted versions of documents in order to protect the identities of victims of human trafficking and minor victims of physical or sexual abuse. But the office agreed to not withhold those documents entirely.

Byrnes on Tuesday said his office is pleased that the lawsuit has been resolved with all parties supporting and acknowledging that the Clerk of Courts has a legal and ethical duty to protect the identity of crime victims, particularly minors as specified in the laws of the Commonwealth of PA.

Byrnes office and the newsrooms agreed to have employees who make or fulfill requests for court records participate in training within 30 days.

Hopefully that will sort of bring everybody to the same understanding, Dudding said.

WHILE YOURE HERE… If you learned something from this story, pay it forward and become a member of Spotlight PA so someone else can in the future at spotlightpa.org/donate. Spotlight PA is funded by foundations and readers like you who are committed to accountability journalism that gets results.

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York County agrees to improve public access to criminal court records in response to suit by Spotlight PA, others Spotlight PA - Spotlight PA

Iowa residents to vote on adding gun rights amendment to state constitution – Axios

Iowa would have some of the most extensive gun rights guarantees in the nation under a constitutional amendment for voters to decide on Nov. 8.

Why it matters: A "yes" vote would mean all gun restrictions under the Iowa amendment would be subject to "strict scrutiny," the highest legal hurdle for legislation to clear if challenged in court.

Catch up fast: Iowa is one of six states that doesn't recognize Second Amendment rights in its state constitution.

What they're saying: The proposal goes much further than the Second Amendment, placing gun access ahead of safety and potentially blocking policies that limit them in places like school settings, Connie Ryan, executive director of Interfaith Alliance of Iowa, tells Axios.

Of note: Amendments like the one proposed in Iowa have only been adopted by three states Alabama, Louisiana, and Missouri and each was approved between eight and 10 years ago according to research published by the Iowa Law Review.

Yes, but: Gun rights advocates have already succeeded via a U.S. Supreme Court decision in June that struck down New York's concealed carry law, Richard Rogers, a board member of the Iowa Firearms Coalition, told Axios.

The intrigue: Both sides tell Axios they believe public opinion is generally on their side.

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Iowa residents to vote on adding gun rights amendment to state constitution - Axios

Growing the 2A Community: The Second Amendment Is for Everyone – Guns.com

In 2015, as Tony was testifying about an upcoming bill, he realized he was the only black pro-Second Amendment representative out of over 100 people. He wanted to see more representation from his community. How could he encourage minorities to not only exercise their Second Amendment rights but to get involved in advocating for them?

Tony felt a deep need to destroy negative media-driven stereotypes, but how? When he spoke with a friend about this, his friend gave him the answer he needed but didnt want at the time. He told Tony it was on him to start the movement. He needed to be about it, not talk about it.

And so began the 2A4E Diversity Shoot. According to Tony, Our mission is to introduce all people, regardless of race, religion, gender, sexual orientation, or background to learn about their Second Amendment rights.

The event started small in 2015 with only four people attending. Tony partnered with local gun ranges and kept showing up. Between 2015-2019 the event grew so large he had to start using tickets to avoid capacity issues. Eventually, he spread out to other ranges and added more dates. Even throughout the pandemic, Tony found ranges that continued to host. These days, Tony continues to be about it and hosts events twice a month at four ranges and in two states.

As Tony and I chatted about the issues surrounding the gun community, the common theme that came up was divisiveness. Whether it be political rhetoric, false media narratives, or in-fighting, everything seems to be aimed at separating gun owners into different groups. Of course, we all fall into certain categories and come from different backgrounds, but what does that matter if we all agree on the right to bear arms?

We agreed that the hardcore anti-gun crowd is exceptionally united. Theyre on a mission to eradicate guns, and theyll stick together no matter what. They dont want anyone to have guns regardless of gender, race, political affiliation, or other qualifications.

Its not likely well change the minds in that group, but what if we could get to those people in the middle? The ones who are uneducated about firearms and havent chosen a side yet. Certainly, some people have no gun experience, but theyre curious and just waiting for the right conversation.

As Tony and I discussed solutions, it became clear we need two things: unity and more people on our side. We need to have conversations that arent pushy or judgmental, and we must welcome everyone into the 2A community, regardless of how we feel about them.

Thats precisely what Tony Simon is doing. Hes created a safe space designed to be welcoming to everyone, including minorities and underrepresented groups who may often feel comfortable in a firearms class. Tony doesnt care if youre black, white, Asian, gay, straight, or anything else. Youre welcome at the 2A4E Diversity Shoot. As a woman who initially felt intimidated to go to the range, I can say, after talking to Tony, I would have loved to attend his class.

Tony Simons mission is to help people learn about and exercise their Second Amendment rights. Its a human right, after all, he says. His work focuses on showing people that gun laws dont make us any safer and gun owners arent crazy for wanting to protect themselves.

2A4E isnt just a brand or catchy phrase. Its a lifestyle we all, as gun owners, should be living without question. To preserve and restore our rights, we need to unite and invite more people to our side. The best way to do that is to embrace everyone, show them what the Second Amendment truly stands for, and welcome them into our community.

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Growing the 2A Community: The Second Amendment Is for Everyone - Guns.com