Today on Lawfare: Feb. 12, 2025
From The Lawfare Editorial Team
Compiled by Caroline Cornett
Articles
President Trump’s Campaign of ‘Structural Deregulation’
Jody Freeman and Sharon Jacobs evaluated the Trump administration’s unprecedented push to weaken the federal government—including dismantling agencies, and asserting control over the civil service—through the lens of structural deregulation. Freeman and Jacobs noted that even if Congress and the courts successfully intervene, the damage that has already been done will have long lasting consequences.
A point of definition: Structural deregulation is distinct from standard, “run-of-the-mill” deregulation that aims to weaken or rescind certain agency rules or policies but falls short of a wholesale attack on agency capacity. Standard deregulation might include regulatory rollbacks that weaken health, safety, financial, or labor standards. Such rollbacks take time, require public input, are subject to judicial review, and can more easily be undone by later administrations. By contrast, structural deregulation is more radical—it cuts at the core of agency expertise and competence and harms agencies in systemic ways that are hard to challenge and difficult to reverse, by tearing at institutional memory and corroding agency culture. It can happen relatively quickly and indiscriminately. Structural deregulation erodes an agency’s leadership, staffing, resource base, expertise, and reputation—which agencies require to accomplish their statutory tasks. Even when rules and laws are designed to prevent it, by the time the legal system catches up with structural deregulation, the damage may already be done.
Anthony Rutkowski discussed how the Federal Communications Commission’s (FCC) recent attempt to declare cybersecurity authority highlights the need for effective public network infrastructure cybersecurity in the United States.
The implementation of comprehensive U.S. public network infrastructure cybersecurity has been lacking for decades for lack of Congress sorting out the issues of competence and regulatory jurisdiction following major service provisioning technological change. The U.S. is perhaps the only country that has failed to resolve this essential cybersecurity requirement conundrum and instantiate a solution in organic law. Providers need to not only demonstrate an effective risk management framework but also implement network resilience by design and continuing critical security controls. It seems late to be making those changes now, and the FCC’s unilateral pursuit of authority here through a summary declaration of authority is a reminder of the continuing need.
The Situation: The FBI Director Can’t Be A Liar
Benjamin Wittes discussed Sen. Dick Durbin’s (D-Ill.) letter alleging that Kash Patel directed the firings of Federal Bureau of Investigation (FBI) personnel and the accompanying revelation that he may have perjured himself when testifying before the Senate Judiciary Committee.
To be clear, I do not know whether Durbin’s information is true or not. In my view, as I argued before these allegations arose, Patel showed a lack of candor that should preclude his confirmation even if Durbin has this specific matter all wrong. That said, voting to confirm the man when the committee’s ranking member has made a specific allegation of misconduct against him, and an allegation as well that he lied before the committee about that misconduct, should be unthinkable.
Podcasts
Lawfare Daily: Jack Goldsmith on Trump v. United States and Executive Power: Alan Rozenshtein sat down with Jack Goldsmith to discuss his recent Lawfare article about the Supreme Court’s decision in Trump v. United States and its implications for executive power. They talked about how the ruling extends beyond presidential immunity, the broader shift toward a maximalist theory of executive authority, what this means for the future of American democracy, and more.
Rational Security: “The General Mattis of the NFL” Edition: Scott R. Anderson, Anna Bower, Tyler McBrien, Nastya Lapatina, and Joel Braunold discussed the major national security news of the past week, including President Donald Trump assertion that the U.S. will “own” Gaza, Trump’s plan to end the conflict in Ukraine, the Justice Department’s dismissal of corruption charges against New York City Mayor Eric Adams, and more.
Videos & Webinars
On Feb. 14 at 4 p.m. ET, Wittes will sit down with Anderson, Bower, and Roger Parloff to discuss the status of the civil litigation against President Trump’s executive actions, including the attempts to dismantle U.S. Agency for International Development and the Consumer Financial Protection Bureau, his firing of inspector generals, and the attempt to fire FBI agents and employees. If you would like to be able to submit questions to the panelists and watch the livestream without ads, become a material supporter of Lawfare on Substack or Patreon. It will be livestreamed on YouTube for all other viewers. Find the livestream here. If you can’t attend the live event, the recording will be available immediately afterward on Lawfare’s YouTube channel or later on the Lawfare Podcast feed.
On Feb. 24, at 10 a.m. ET, the Brookings Center on the United States and Europe and Lawfare will hold a discussion on the war in Ukraine, looking at the path of U.S. and European relations with Ukraine before and during the conflict as well as what lies ahead in 2025 and beyond. The discussion will feature Brookings experts as well as the co-hosts of Lawfare and Goat Rodeo’s new limited series narrative podcast Escalation which chronicles the surreal twists and turns between the United States and Ukraine through the lens of the journalists, diplomats, spies, and ambassadors who crafted the relationship between the two countries. This event will be open to attend in person or watch online. Register for the livestream here.
Documents
Caroline Cornett shared an executive order purporting to implement the Department of Government Efficiency (DOGE) agenda by limiting agencies to hiring one worker for every four that depart, integrating DOGE Team Leads into agencies, and more.
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