Lawfare

> [Author’s note: An earlier version of this article was submitted to the U.S. Army War College’s War Room blog back in the fall of 2024, was put into their excellent editorial process, and benefitted greatly from their editor’s feedback. The piece was accepted and scheduled for publication in February. I found out on February 25, 2025 that USAWC had changed their mind and decided not to publish the piece, after having to pull another previously-published piece “due to sensitivities” of “unnamed critics that wield the power.” I’m grateful you can see it here, but I am sad that our Army’s institutions appear to have retreated so quickly from our shared values.- GBH]

I don't know whether "having to pull another previously-published piece" means that the USAWC received a coercive memo from the federal government, but after un-publishing the first piece the USAWC chilled its own press functions in declining to publish the contents of TFA and implicitly is doubting its own freedom of press.

An adjacent article with a legal focus, "A Politically Neutral Military Is Not Always Obedient", likely did not involve a First Amendment violation but did undergo a similar `almost published, then published elsewhere` process [1]:

> After a series of edits, the article was almost ready for publication, but the author reached out to withdraw the submission, citing intense pressure from his institution, the United States Military Academy West Point, to do so. This occurred on Jan. 23, three…

They absolutely did deny mass collection (among other things).

The most charitable interpretation of the claims would be that what NSA calls "collection", every other English-speaking human would call "analysis" (or -maybe- "post-collection preprocessing"). This horseshit was reported in many places at the time, but here's the first vaguely-reputable place I could find talking about this sort of thing today [0]:

> Take, for example, the definition of the term “collection.” What qualifies as intelligence collection is critical to the scope of intelligence activity because it determines when intelligence gathering begins. Although it never provides its own definition, EO 12333 repeatedly refers to collection as the beginning of the intelligence gathering cycle. The agencies themselves elaborate on EO 12333’s general guidance by defining collection in their internal procedures. As we chart in greater detail in our article, the Defense Department’s and the NSA’s definitions of collection vary significantly, even though the NSA is a subordinate agency of the Pentagon.

> The Defense Department defines collection as intelligence gathering at a much earlier point than the NSA’s. Under DoD 5240.01, the department’s current manual, “information is collected when it is received by a Defense Intelligence Component,” regardless of how that information is “obtained or acquired.” By contrast, the NSA’s current version of USSID 18 states that collection “means [the] intentional tasking…

> And yet you dodge #1. How artful. Now I know that you've not been engaging in good faith, either intentionally or just how Fed Soc taught you.

I didn't "dodge" it. I explained it was irrelevant. The conduct for which Trump was convicted was having a payment to Stormy Daniels recorded in the books of his family owned company as "legal expenses" instead of "hush money." To turn that into a felony, prosecutors invoked several other uncharged crimes--which means they didn't have to prove them--in a triple-bank-shot legal theory so convoluted it's best explained with charts: https://www.lawfaremedia.org/article/charting-the-legal-theory-behind-people-v.-trump. The prosecution never clearly articulated the exact legal theory, but what comes closest to their trial presentation is something like:

1) Violation of New York records law (175.05). But this is a misdemeanor. To step it up to a felony, you need to prove that the records were misrecorded to cover up a second crime.

2) Stepping (1) up to a felony based on New York Election Law 17-152, which makes it illegal to influence an election by "unlawful means," which requires a third crime. According to the press: "Attorneys specializing in state election law believe the statute has never been prosecuted." https://www.businessinsider.com/trump-hush-money-case-relies-never-used-election-conspiracy-law-2024-4. Moreover, the prosecutors never actually charged this crime, meaning they didn't need to prove all the elements.

3)…

Hmm... this is far outside my domain but apparently there has been no litigation deciding on this yet[].

While no court has conclusively decided this issue, precedent and the structure of the Constitution dictate that answer is “no.” The availability of an immunity defense arising under federal law does not change which sovereign is prosecuting the offense. The president may not pardon such offenses even when they have been removed to federal court. This stands in sharp contrast to convictions under the Assimilative Crimes Act, 18 U.S.C. § 13, which allows federal courts to incorporate state criminal law to cover acts committed on federal land not otherwise covered by federal law (for example, a domestic assault that takes place on a military base), and which may be pardoned by the president. Those are federal offenses—“against the United States”—because the federal statute borrows the law of the state surrounding the federal enclave, and they are prosecuted by the Justice Department. The charging documents themselves arise under federal law for purposes of Article III.

Your and their argument is compelling, but so is the counter argument IMO. Seems like something that might be tested at some point. If you have any further citations where a court has decided on this would love to look over it.

[] https://www.lawfaremedia.org/article/state-prosecutions-of-federal-agents-and-the-presidential-pardon-power

>The term is older than Trump. Suing everyone who criticizes you is a classic example of lawfare. The goal is not justice but the chilling effect created by your legal actions.

According to[0] the (aptly named) Lawfare Institute:

Since the term “lawfare” is controversial in some circles, and subject to a
variety of interpretations and uses, a bit more explanation about our
understanding of the concept is in order. Going back to the 1950s, the term
has frequently been used in contexts wholly unrelated to national security,
ranging from divorce law to courtroom advocacy to colonialism to airfare for
lawyers.

While the term is often used to do as you assert, it can also have a different remit. cf. some of the topics addressed[1] by the aforementioned Lawfare Institute.

[0] https://www.lawfaremedia.org/about/our-story

[1] https://www.lawfaremedia.org/

If they decide to settle, even if for a much smaller amount, its a big L for the UC system and the nation. The past Universities were much smaller, but the UC system is a beast. They must fight this or we are really going down the road of a politicized and neutered academia (like in Russia). This along with the recent Executive Order claiming to be able to require a political appointee to approve every research grant, we are going down the wrong road.

I am constantly thinking about this modern misunderstanding of what the framers of the Constitution meant by "Executive Power" is simple "to execute the law".

"Article II Vests Executive Power, Not the Royal Prerogative" [1][2] is critical and needs to be set front stage.

[1] https://repository.law.umich.edu/articles/2062/ [2]https://www.lawfaremedia.org/article/the-meaning-of-article-ii-and-%27executive-power%27-to-trump