Today on Lawfare: Sept. 30, 2024

From The Lawfare Editorial Team

Compiled by Ben Green

Articles

The Justice Department’s New Approach to “Despite-Fischer” Cases

Roger Parloff examined the Department of Justice’s approach to prosecuting Jan. 6 rioters in the wake of Fischer v. United States, terming them “despite-Fischer cases.” Parloff explores how federal prosecutors are finding creative ways around the ruling to pursue cases of obstruction of an official proceeding.

Since Fischer, the Justice Department has said it is reviewing on a case-by-case basis the 259 Jan. 6 prosecutions in which an 18 U.S.C. § 1512(c)(2) charge was still pending at the time Fischer was decided. As of September 5, it said that it had elected to abandon at least 100 such charges, but was pressing forward in at least 13 cases under the narrowed definition.

Zelensky’s American Saga: Victory Plan and Angry Republicans

Anastasiia Lapatina discussed Ukrainian President Volodymyr Zelensky’s trip to the United States and his efforts to secure immediate and future support for Ukraine, including visits to the White House, the United Nations, Trump Tower, and more.

As his U.S. trip wrapped up, Zelensky said in a statement that the plan concerned Ukraine’s long-range capabilities, military aid, sanctions against Russia, and “steps on Russian assets,” the last of which refers to the $300 billion frozen Russia assets Ukraine wants to use for reconstruction and other purposes. “Everything is being considered,” Zelensky said. 

The Law of Presidential Retribution

Bob Bauer explored how, under a potential second Trump presidency, the White House Counsel might find legal grounds to advise the president to bypass an unwilling attorney general in order to implement a retributive agenda.

The counsel clearing this path for the initiation of a criminal inquiry can dismiss the relevance of the president’s motive. The Court in Trump v. United States was clear on this point: “[A]llegations that … requested investigations [are] ‘sham[s]’ or proposed for an improper purpose do not divest the president of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.” White House lawyers might now advise that, under the current state of the law, the president’s reasons for going around the attorney general just don’t matter.

Documents

Matt Gluck shared Gavin Newsom’s veto message after the California governor rejected the state legislature’s controversial artificial intelligence bill, Senate Bill 1047.

Lawfare Daily: Mayor Adams, the Feds, and a Whole Lot of Foreign Money: Benjamin Wittes sat down with Tyler McBrien, Quinta Jurecic, and Brandon Van Grack to discuss the charges against New York Mayor Eric Adams, who is facing indictment in connection with a foreign influence scheme involving Turkey.

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