Inaugurating the LENS Essay Series: “The Crisis of Cryptocurrency: Executive Branch Authority to Address the World’s Most Potent Financial Threat”
In this post, we inaugurate our online “Essays on Law, Ethics and National Security – A LENS Center Series.” This initiative is aimed at filling the scholarship gap that so often arises between timely (but frequently cursory) blogposts, and the weighty (but oft-delayed) articles found in traditional academic publications. The Series is designed to leverage the speed of online availability in order to get you fresh and sophisticated thinking on topics of current interest. It’s also meant to introduce and highlight whenever possible the work of a wide range of interesting voices, including those of emerging scholars.
Robert J. DeNault’s brilliant paper, “The Crisis of Cryptocurrency: Executive Branch Authority to Address the World’s Most Potent Financial Threat“, is the perfect essay to start this series. Well-researched and clearly written, his work delivers a perspective both innovative and thought-provoking. The full essay is found here, but DeNault also provides us with an abstract of his discussion:
Since 9/11, the U.S. government has devoted significant law enforcement resources to halting money laundering and terrorism financing activity around the world. Investigations and prosecutions of global banks, illicit financial networks and money laundering havens have been designed to address a shadow economy which fosters an increasingly interconnected underworld of criminal activity.
The Department of Justice, Securities Exchange Commission, and Department of Treasury all work in concert to address these grave financial threats in part by incentivizing financial institutions to monitor transactions and adhere to strict regulations.
But the advent of cryptocurrency threatens any progress law enforcement has made with respect to illicit financial activity. Cryptocurrency, a cyber system of peer-to-peer financial transactions that don’t move through banks, poses an existential threat to law enforcement ability to “follow the money.”
Anonymous users identified only by a series of digits send cash to one another in the form of Bitcoin. Credit card processors or legitimate banks then allow users to cash out their Bitcoin and turn it into real, spendable currency with no explanation of where—or whom—it came from.
This paper proposes that the Executive Branch of the federal government is uniquely empowered to address the threat that cryptocurrency poses. By undertaking a series of Executive Orders authorizing cyberattacks on cryptocurrency operators and banning access to cryptocurrency in American markets, the President could act swiftly and aggressively to end what has essentially become a stock trade on illicit activity.
This paper will analyze potential sources of Constitutional and statutory authority for the President to undertake such dramatic action, as well as counterarguments rooted in Due Process and First Amendment rights available to cryptocurrency’s proponents.
Ultimately, this paper will conclude that the President has a wide array of statutory and Constitutional authority to address the unique problem of cryptocurrency and need only develop the requisite gumption to eliminate its salience as a national security threat.
Again, I urge you to read the full essay found here. Also, take a few moments to learn a bit about Mr. DeNault:
Robert J. DeNault (J.D. 2021) is a second-year law student and the Class of 1986 scholar at Duke University School of Law. He was born and raised in Narberth, Pennsylvania and received a B.A. in Political Science from Fordham University cum laude before starting at Duke Law. At Duke, he has focused on national security issues like cryptocurrency, money laundering, cyber intrusions and ransomware attacks. He also writes for Duke’s Journal of Constitutional Law and Public Policy and will be spending his 2L summer as a summer associate at Gibson Dunn & Crutcher in New York City.
The views expressed in the Essays on Law, Ethics and National Security Series do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!