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Main Justice
A Matter of Pretext
00:52:02
A federal judge nixes subpoenas against the Fed Chair Jerome Powell. Plus: what Anthropic did not want the government to do with its AI model “Claude.”
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E
Hello, and welcome to Main Justice. I know exactly what day it is because I'm looking at someone who. Who's all outfitted in green, whose eyes appear green. I always thought your eyes were blue.
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F
They are. Anyway, they do look green. I agree.
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E
Because it's St. Patrick's Day.
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F
In case listeners are wondering. No, I am wearing green in honor of Andrew Weissman's birthday. Because isn't that what one does on Andrew Weisman's birthday?
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E
Exactly.
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F
Yes, because it's St. Patrick's Day too,
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E
and I can't think of a better way than to celebrate with you and all of our listeners.
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F
Yes, well, anyway, it is a few other ways, but I'm glad to be here with you.
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E
Yeah, well, that's what I'm gonna say. Anyway, it is St. Patrick's Day. Welcome, everyone. That, of course, is Mary McCord. I'm Andrew Weissman, and yes, it is my birthday and also St. Patrick's Day. In that order. Exactly.
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F
And I will later in the day be, you know, toasting a Guinness in honor of my podcast co host, Ann St. Patrick.
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E
I love it. And I will be toasting just because I will also be drinking. But that doesn't differentiate this day from any other day. What is it? Why is this night like any other night? It's like. It's not.
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F
It's not. Nope.
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E
I hear you. But as we always have, there's a lot of things to talk about, and they're really interesting today in a lot of different ways. What is on our dance card, Mary?
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F
Well, you know, there really is something of a theme, I think here, which is retribution, which I realize is A theme that has been ongoing since approximately January 20th of 2025. But I realize that it really does unite all of our topics. So we will start with Judge Boasberg here in the district Court here in the District of Columbia, quashing the subpoena to the Federal Reserve and Federal Reserve Board chair charter. Not that it matters, but really on the grounds, and we'll talk about it, that they were issued for an improper purpose, which was a retribution and retaliation purpose, to try to put pressure on Jerome Powell and the Federal Reserve Board to lower interest rates.
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E
Mary, where did he find any evidence of that? I mean, that must have been. He probably had to look really hard to figure out where. Could you come up with evidence that the president or anyone else was acting in any sort of retributive way? I mean, that must have been tough.
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F
I believe Judge Boberg called it a mountain of evidence, but we'll get into that. Yes. A mountain.
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E
Yes.
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F
Then we will dig into the disciplinary proceedings that have been instituted against Ed Martin, who was the interim U.S. attorney in D.C. for a period of time. Then he went on to be the head of the weaponization Committee at the Department of Justice and the pardon attorney. He's no longer the head of the weaponization group, but he is still the pardon attorney. And this is a disciplinary proceeding that really dates back to something that is actually quite close to me, which was some early on in his tenure as the interim U.S. attorney, he sent a number of sort of threatening and retaliatory letters to the Dean of Georgetown Law, saying, if you're teaching DEI at the law school, then we will never hire as an intern a fellow or an Assistant U.S. attorney, any person from Georgetown Law. And last up in more retribution and retaliation, we will talk about the anthropic matter. This is something we have not yet discussed on this podcast. It's something I've been following closely. I did just sign on to an amicus brief, actually, that is on behalf of a number of former national security officials. And this is fascinating because of the dramatic, dramatic moves that the Secretary of Defense, Pete Hegseth, took and the President with regard to. Essentially, it's like the law firm blacklisting, really. Blacklisting. And absolutely from doing any business with the federal government, not just the Department of Defense, and with any other contractors or businesses that do business with the federal government. And this is more First Amendment retaliation, more violation of due process. So there is really a theme here.
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E
Yeah, can I just give a shout out to that one? Which is like the people should really stay tuned for that discussion because when you hear about why anthropic resisted what the government wanted, it really has to do with things you're going to care about. So does it is really shocking and I'm glad we're going to be able to talk about it. I also wanted to remind people of something that Mary, you and I talked about. But it relates in many ways to the second segment about Ed Martin. And it is a bar disciplinary complaint. And we spent some time last week talking about DOJ have proposed rule, emphasis on proposed rule, to essentially give the Department of Justice a kill switch to turn off those pending investigations by saying they can't go forward until DOJ acts first. The reason I'm just doing this shout out is you have until April 6th. April 6th. If you think that this rule is one that you disagree with, the public is entitled to weigh in on that. And so we're going to put again in our show notes the Federal Register posting where you can read what the proposed rule is and where you can also file online, you can file your position on it. And so just wanted to flag that again because there's a short time span in which you have to voice your views.
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F
And we'll come back and talk a little bit more about that, I think when we do talk about the Ed Martin proceeding because I'll be interested to see whether the attorney general tries to kill this. But shall we jump in?
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E
Yeah. So, Mary, let's talk about once again Judge Boasberg. And just to quickly tee it up, Judge Boasberg had before him a motion by the Federal Reserve, Federal Reserve Board.
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F
That's right.
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E
Not to be confused with the Federal Register that we just talked about. The Federal Reserve had received two grand jury subpoenas issued by the D.C. u.S. Attorney's office for data, and they made a motion to quash those subpoenas.
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F
And can we just remind people what they wanted? They supposedly sought information about the renovations being done to the Federal Reserve building, which have been ongoing for years now. You know, there were plans for them and then the costs continued to escalate as costs do. As somebody who did very modest work on my own house a few years ago, it's like while you're in the middle of the project, everything skyrockets on you.
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E
Mary, I was going to raise that with you because I was thinking that suggested to me that you were committing a crime.
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F
Right.
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E
I thought that there was real reason renovations to look into that.
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F
Yeah.
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E
So anyway, yeah. They were basically saying because there were cost overruns that gives them somehow reason to think that there was some crime on the part of the Federal Reserve. And we'll get into, like, the standard for issuing a grand jury subpoena and what the judge ruled here. But that's what D.C. wanted. The federal Reserve moves to quash, saying that this is all, wait for it, pretextual, to use a word that the Chief justice used in the tariff decision, and that this is just all a facade of retribution because you want to have Mr. Powell step down, which, you know, the President has been saying for years. And so that sort of teed up this issue of what are the facts and what is the law that governs whether this is a proper grand jury subpoena. And so how did Judge Boseberg deal with this?
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F
Yeah, well, I think his first paragraph is pretty clear in what he thinks about this. But just so people know, you do not have to have probable cause of a crime to issue a subpoena. A grand jury to issue a subpoena. You do have to open a grand jury investigation. So when I was a prosecutor, when you were a prosecutor, we couldn't just sit there at our desk and say, gosh, I think maybe Jerome Powell committed a crime. I'm going to dash off some subpoenas that request information, and if he doesn't comply, he could be in contempt. No, you have to open an investigation in front of the grand jury, and then you issue the subpoenas under the auspices of that grand jury investigation. Investigation. There doesn't have to be probable cause. There has to be at least some reason to believe there might be a crime being committed. And what Judge Fosberg finds here, just to put the bottom line up front, is that these were issued for an improper purpose with no evidence whatsoever supporting that any crimes have been committed. Not fraud in these renovations and not any misstatement or false statement, I should say, made by Mr. Powell when he testified about these renovations. Really was testifying about a lot of other things. But this is how Judge Boberg starts the opinion in the first paragraph. And these are quotes, quote, jerome, too late. Powell has done it again. Exclamation point, exclamation point, exclamation point. Know who these are? Quotes from? None other than our President. He is too late and actually too angry, too stupid and too political to have the job of Fed Chair. He is costing our country trillions of dollars. Put another way, too late is a total loser, and our country is paying the price. That was a Truth social post from July 31st last year. And here's what Judge Boseberg says after writing that. That is one of at least 100 statements that the President or his deputies have made attacking the chair of the Federal Reserve and pressuring him to lower interest rates. And he adds some more. So is this too late? Jerome Powell is costing our country hundreds of billions of dollars. He is truly one of the dumbest billion and most destructive people in government. Too late. Send American disgrace. That is from June 19, 2025. And what Judge Boasberg then says is perhaps giving all of this. It comes as no surprise that the D.C. u.S. Attorney's office recently opened a criminal investigation into Powell and served two subpoenas on the Federal Reserve Board seeking records that we just discussed. Andrew. And here's the questions that Judge Boasberg said he needs to answer. Did prosecutors issue those subpoenas for a proper purpose? The Court finds that they did not. There is abundant evidence that the subpoena's dominant, if not sole, purpose is to harass and pressure Powell either to yield to the President or to resign and make way for a Fed chair who will. On the other side of the scale, the government has offered no evidence whatsoever that Powell committed any crime other than displeasing the President. The Court must thus conclude that the asserted justifications for these subpoenas are mere pretext, as you said, pretext.
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E
So, two quick points. One, the leading Supreme Court case on this, which of course Judge Boasberg cites as he would, is a case decided decades and decades ago called R. Enterprises, where the Court said, as you noted, Mary, that the standard for issuing a proper grand jury subpoena is quite low. You don't need probable cause. The whole point is that you're entitled to investigate, to develop probable cause. So you really need good faith and some factual basis to suggest why this is a proper inquiry. It can include looking to see whether something wrong happened, or even to show that nothing happened. In other words, that there's innocence, it's something that has some suspicion. You're trying to dispel it.
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F
But.
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E
And here is where there's really clear law to support what Judge Boasberg did here, which is that our Enterprises case says that you cannot be using a grand jury subpoena either as a fishing expedition or to harass somebody. And if this isn't harassment, in other words, if that statement means anything in the Supreme Court, that you cannot issue a grand jury subpoena to harass, then this is like the Platonic ideal of that. And to me, that is really the gist of it, which is that that's exactly what the court finds, using Donald Trump's own words against him. And to your point, Mary, the way he cites what Donald Trump said over and over again, he says on page 19, and I'm going to quote in sum, the president spent years essentially asking if no one will rid him of his troublesome Fed chair. That is, of course, a paraphrase of the famous quote attributed to King Henry II with respect to Archbishop Thomas Becket. It is so apt because you can take from that sort of the equating of Donald Trump to thinking that he can act like a king and including Thomas Becket, which is that the archbishop was independent of the king. People remember from their English history that at that time the church was independent in England and the archbishop reported to the Pope. And so this idea that you have this tension between a king and an independent body and you have the king saying basically over and over again, this is what he wants, and orchestrating it by saying, well, no one rid me of this troublesome priest. It seemed like such an apt way of describing what we're going through and particularly poignant that it relates to this idea that, that and people have talked about and we've had no kings demonstration throughout. So I just found this such an interesting opinion. One final point is I was listening to Jeanine Pirro, the U.S. attorney in D.C. i was listening to her press conference right afterwards. She has made a motion to reconsider. We'll see what happens with that. But during her press conference, she said, and I just want to make sure, I'm sure she just misspoke. I really am not saying she did this intentionally. I don't know. But she said that the district judge, Judge Boasberg, said that the government needed probable cause. And she said that's wrong. We don't need probable cause. And I went back and reread the decision this morning. And he says the opposite.
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F
That's right.
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E
He says. He cites our enterprises and says you do not need probable cause.
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F
That's right.
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E
And so I just want to make sure people understand that she got that wrong. He does cite the law correctly in terms of the Supreme Court case. Are there lots of lower court cases about whether the improper purpose has to be the sole purpose or whether it should just be sort of the but for purpose or primary purpose? And he goes through all of that. This is a case we can continue watching. I have to say I'm skeptical that this is a worthy appeal, not a bad faith appeal. But I just think the facts here are so terrible for the government where the President has laid out the purpose over and over again, according to the district court. And as I said, unless the Supreme Court's going to retract what they said in our enterprises, I don't see how this case isn't the poster child for harassment.
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F
Yeah, and, you know, we'll see. Right now, you said the U.S. attorney's office has moved to reconsider. They're saying that Judge Boasberg used the wrong legal standard and he got some facts wrong. And then if he denies that, then we'll see if they note an appeal. They have not done that yet. Last two points on this. One of the things that Judge Boasberg also points out is that the President doesn't even have any authority to set interest rates or to tell the board what to do. And so to use this lever of a criminal investigation to try to pressure the Federal Reserve Board and its chair to do something that the President can't do directly, like, you can't do that either. Right. You can't use your leverage to pressure. And on the point about no evidence whatsoever, I really thought this line was a good one worth repeating. And this is by a judge who, by the way, he and I were prosecutors in the same office for many years. He knows what's required for a subpoena because he opened grand jury investigations just like I did for a long time. And remember, there were two alleged bases. One is to investigate fraud. One is to investigate whether Jerome Powell lied to Congress. And here's what Judge Boseberg says about the latter. Searching for any reason to suspect that Powell might have lied to Congress. The only one the court can describe is that he testified at a hearing. The government might as well investigate him for mail fraud because someone once saw him send a letter. That's good. That's a good line.
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E
Yeah, that is a good line. You know, one of the things that's sort of an interesting intersection of politics with law is, you know, the federal chair is. Is very popular, and his independence is very popular. And at some point, the federal chair, his term ends and it's relatively soon, and they're going to want to have their nominee go through. And you're already hearing people, Republicans, saying that if this is going to be lingering, they're not going to go forward. In other words, it's one of the few times you see Congress saying, you know, we have a role here and we have leverage.
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F
That's right.
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E
And so if you're doing this to pressure him, we can pressure back that's right. So that's where there's an interesting connection between the three branches of government. All at work here. So stay tuned.
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F
Okay? Much more to come on that. Shall we take a break and come back and talk about Ed Martin?
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E
If we must.
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E
Mary I was reading the disciplinary complaint filed against Ed Martin. Just to be clear, it's just a complaint. I mean, it's just allegations.
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F
Ed Martin has specification of charges, it's
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E
called, right, and so Ed Martin gets due process. It may be that they're found, it may be they're not found. And then even if they're found, there are all sorts of things that can be done in terms of he doesn't mean he's disbarred. There are a whole range of things that they could do. So I just want to make sure we're discussing now just something that the disciplinary committee has said are specifications that he has to answer. But I was reading it And I was thinking, huh, Mary's going to know all about this, because as you said, it seems to relate to one of your many day jobs.
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F
Yes.
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E
So what's at issue here? What are the specifications? It seems to be two things that they're concerned about.
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F
So there are two charges in this, and the first one I find really, really interesting because normally when the disciplinary counsel, and that is the person kind of like the prosecutor of disciplinary proceedings, and his name here is Hamilton P. Fox. He goes by Phil Fox. He's been disciplinary counsel in D. C for some time now. And usually it is more common that you will see a specification of charges that are alleging violations of particular rules of professional responsibility. So every lawyer has to, if they want to practice law, they have to pass a bar exam and become a member of the bar in the state where they practice, and then they have to follow the rules of professional responsibility, or they could be disciplined. That could be a variety of sanctions, all the way up to losing their bar license. And of course, we also have. Apropos of the point you were making about the new opposed rule from the Department of Justice, There is also a congressionally passed statute that says department of justice lawyers, even though you might practice law in multiple different states, you have to comply with the professional responsibility rules of each state that you practice in, not just like the DC Rules, even when you're practicing in California or Utah or what have you. So what's different about the first charge here is it's not actually alleging a violation of a specific rule of professional responsibility. It's alleging that Mr. Martin's conduct in sending letters to the dean of the law school, making threats to not hire anyone who went to Georgetown Law on the basis of what is being taught at the law school. He alleged the law school of teaching dei. I can tell you there's not a course called dei dei. So I really don't know what he's talking about. But that, you know, that is something that the law school and any private school has a First Amendment right to teach what they're teaching. So this first count is saying essentially that was so unconstitutional that this is a violation of Mr. Martin's oath to support the Constitution of the United States of America and therefore is grounds for discipline pursuant to the rules that allow for discipline. So it's interesting because it's not saying you violated rule 3.5 B. Right. It's saying you did something unconstitutional.
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E
Right.
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F
It does make good sense.
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E
Yeah, totally. I mean, because essentially, it's like going for the big picture, and it's not like, oh, you co mingled client funds with personal funds. That's one of the big no nos. But here, just to give you a sample of what Mary's talking about, here's a quote. Acting in his official capacity and speaking on behalf of the government, he used coercion to punish or suppress a disfavored viewpoint, the teaching and promotion of dei. He demanded that Georgetown Law relinquish its free speech and religious rights in order to continue to obtain a benefit employment opportunities for its students. Because one of the things that he said was if you don't change this sort of very unspecified thing which is somehow promoting DEI or teaching dei, we're not going to hire any student, as if the student would just be the recipient of it. So, I mean, talk about attacking somebody who, under his view, the students are the victim of this and yet he's going to use them as pawns, punish them. Right. So anyway, so that sort of specification one, or as Mary, you like to say, that's thing one.
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F
Yes, thing one.
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E
I love that. I'm going to try and. Okay, so what's thing two?
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F
So thing two is a much more traditional charge of violating specific professional responsibility rules. And this has to do with the fact that once the disciplinary council opened a complaint, opened an investigation, it sent a letter to Mr. Martin advising him of this and asking him to respond to the investigation. And rather than respond, you know what Mr. Martin did?
- [25:06]
E
I can take a guess, an ex
- [25:08]
F
parte letter that means he did not copy bar Disciplinary Council, he just sent a letter directly to the chief judge and the senior judges of the District of Columbia Court of Appeals. And you might be saying, what do they have to do with it? Well, ultimately, if disciplinary council brings charges and proves those charges before the Board of Professional Responsibility for District of Columbia, those can be appealed. If there's a binding of a violation and of disciplinary rules, those can be appealed to the D.C. court of Appeals. So essentially what Mr. Martin did is he's like, I'm just going to bypass this whole process of disciplinary proceedings. I'm going to go straight to the chief judge of the D.C. court of Appeals.
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E
But wait, he's going to do that, but he's not telling the other side bar counsel. Right. So I mean, it's one thing to do it, which is already you're not supposed to do it, but it's like another to do it but not tell your adversary. I mean, that's like a huge no, no to do it that way.
- [26:03]
F
And also just listen to what he says in that letter, according to these allegations, I don't have the letter itself. In that letter, Mr. Martin stated that he would not be responding to disciplinary Council's inquiry. He complained about disciplinary Council's uneven behavior. That's a quote. And he requested, quote, a face to face meeting with all of you, meaning the judges, to discuss this matter and find a way forward. He copied White House counsel for informational purposes because of the importance of getting this issue addressed. And that's a quote. So he's like, let me bypass this. Let me go straight to the Chief Judge and the senior judges of the District of Columbia Court of Appeals, ask them to find a way forward and copy White House Counsel, who has utterly nothing to do with anything that has to do with disciplinary proceedings against a member of the Bar.
- [26:53]
E
And by the way, it gets worse. And I know you're going there, but if you think that's bad enough, what happens next, according to the specification?
- [27:01]
F
Well, the Chief Judge immediately responds like, we will not be meeting you ex parte. Any concerns you have should be raised through the regular procedures that are established by the court to govern the disciplinary process. He ignored that, too. And this time the Chief Judge, though, did copy disciplinary counsel Hamilton Fox. So he at least was able to
- [27:22]
E
know that the Chief Judge did.
- [27:24]
F
Yes, the Chief Judge.
- [27:25]
E
Right, the court did.
- [27:26]
F
And then he tries again. This time he sends another letter to the Chief Judge. This time he does copy disciplinary counsel complaining about the way a follow up inquiry had come to him because Hamilton Fox hadn't known that he had appealed to the Chief Judge. So Hamilton Fox had sent a follow up inquiry. And this time he asks the Chief Judge, quote, that you not only suspend Mr. Fox immediately to investigate his conduct, but also to dismiss the case against me because of his prejudicial conduct. Chief Judge again responds the next day, reiterating what she said previously, that he needs to raise any concerns by following the Court's procedures. So here we have the allegations being direct violations of DC bar disciplinary rules, which is Rule 3.5b, communicating ex parte with a judge during a proceeding, unless authorized to do so by law or court order, and Rule 8.4D, Engaging in Conduct that seriously interferes with the administration of justice.
- [28:26]
E
So what will happen now is presumably it's going to take the normal course, which is that Mr. Martin will put in his side of the story and Mr. Fox will go forward and substantiate or not what he says happened, and then it will be adjudicated. And then there, as you noted, there is an appeal process. This is why, going back to the point about the Federal Register and the proposed rule is that if Pam Bondi's rule goes into effect, she would be able to say, wait a second, full stop, we're going to investigate this first and we'll get back to you when we are done. That may be when hell freezes over, but you are precluded from going forward until we finish our investigation, with no promise whatsoever as to when that could be. So here is a good example of what could be killed. Now, again, by the way, the Department of Justice could act quickly. I mean, that's one option. But the issue is, under the proposed rule, they're not required to. And there's no set time period. It's not like it says, the Department of Justice has 60 days, and if they haven't issued a decision within 60 days, the state can go forward. That would have been one option. But this is basically an on off switch that's being proposed.
- [29:52]
F
Well, sort of. Right. That's what I think they want people to think. But technically, the rule just says the Attorney General can act, request that the state bar pause its investigation while DOJ investigates. But to your point, there's a little stick in there, too. It says, should the relevant bar disciplinary authorities refuse the Attorney General's request, the department shall take appropriate action to enforce this regulation or to prevent the bar disciplinary authorities from interfering with the Attorney General's review of the allegations. So that's where on off would come. Yes, but the question is, what will that be? And obviously this rule has not yet gone into effect with respect to the proceedings in D.C. so my question and what I am waiting to see is will the Attorney General take whatever she thinks is appropriate action to try to prevent the D.C. bar Disciplinary Council from going forward with these proceedings? And what will that look like? Will she go into court and try to get some sort of injunction? Or what will happen here? And maybe. Maybe nothing.
- [30:56]
E
Yeah, it may be nothing, but I view it very much like going forward with the law firm executive orders after that flip flop, which is this is just not a good look. The judges are all aware of this process. They're all aware of what the law firm executive orders did and meant. These are for people who are in the field, in the business. They particularly understand the dynamics here and what is going on. So this is one it'll be interesting to see whether they do have a sort of we take no quarter, to use a recent phrase by Secretary of Defense Hegseth, AKA Secretary of War and this is one where it'll be interesting to see whether they shape a modicum of restraint, because this is one where you can imagine if they don't. What's that expression, which is pigs get fed, fat hogs get slaughtered.
- [31:53]
F
So before we move on to our last segment on Anthropic, I do want to, while we are talking about attorneys at the Department of Justice, mention the desperation of the Department of Justice to hire prosecutors into the U.S. attorney's offices. It has just, we've just seen that the department has gotten rid of its waived, I should say, its policy of requiring newly hired federal prosecutors to have at least one year of experience practicing law before they become, what, a prosecutor? A federal prosecutor.
- [32:27]
E
Other than the honors Program. I mean, there's a special system, although
- [32:31]
F
honestly, the honors program, we certainly didn't have it in my U.S. attorney's office. I don't think if the Main justice, that was something and you could have people straight out of law school, but for assistant U.S. attorneys.
- [32:43]
E
But it was a tiny group.
- [32:44]
F
Yeah, I don't think we had them, but maybe you all did. But those are usually people who are oftentimes people who have already interned in the office and things like that. At least that was the case at Main Justice. And, you know, people may have different views about whether you should have more than one year or not. I mean, I certainly think before you wield a power, as significant as it is to be a federal prosecutor, again, you don't wield it by yourself. You have supervisors, et cetera, and you have to have grand jury indict cases and things like that. But still, it's a pretty incredible power. And I think that most people would think it'd be something that lawyers with a little bit more experience should be
- [33:18]
E
the ones and just one single year. But also, what does it say about the department, where usually there's a wait list to get in, and it's very hard to get these jobs that you have to lower the standard to not even having a single year. I'm reminded, having worked at the FBI, that there was a premium on having people with substantial work experience before they became a federal agent precisely because the amount of authority that you have and you want that seasoned adult judgment. And then there also was a long period of training that went in, and we're hearing that that across the board is getting cut by the Trump administration. So this idea that we're just going to snatch people off the street, I'm using hyperbole, but this idea that you're not finding people who have that level of maturity and experience and life experience, and then subjecting them to rigorous training, because you know what, these people, whether it's FBI agents, whether it's prosecutors, have substantial ability to both promote people's rights, but also to infringe on people's rights.
- [34:33]
F
That's right.
- [34:34]
E
And so I used to always say the hard part of the job was not developing proof that you could use to propose an indictment to a grand jury. It was deciding whether it was something that is the proper course. After you've developed that, it was like, there are always two parts to that. It's not just, do you have the evidence? It's now that you have the evidence, what is the right thing to do? What is the right way to treat this person?
- [34:59]
F
The exercise of judgment.
- [35:01]
E
And there's just a host of factors. And this is like one advantage of aging is that you can even look back at. I can look back at my younger self and say, you know what? I know a lot more now, and I have a lot more experience to understand those factors. And that's what you want in the department and at all levels. There's so many things about this that is so bad. And the key here also to people not forget is what does it say about the department that you have to do this? And it's like the Minnesota U.S. attorney's office is a good example where they people were just voting with their feet. And it's been decimated. But it's true at Main justice and in lots of other US Attorneys offices because of the actions of this administration in a way that you do not see in any other administration. And it is not a policy issue. This has nothing to do with the policies of particular president. You are seeing people vote with their feet because of the lawlessness that they're experiencing.
- [36:06]
F
Yeah. And the suspension of this requirement makes it clear. And this is a quote. It was implemented due to an exigent hiring need for attorneys across the department. When I was in the U.S. attorney's office, we had people who had been partners in law firms who were trying to become AUSAs. And the other thing that a DOJ spokesperson said in a statement about this is that the Attorney General and Deputy Attorney General are proud to empower young and passionate prosecutors and offer attorneys at every level the opportunity to invest their talents into keeping their communities safe, including from the predators the previous administration welcomed with open arms. Right. The first part of that sentence. Okay, fine. And then you got to just add that little dig there. Well, guess what? Plenty of people were willing to be prosecutors under previous administrations, not just the Biden one, but Trump won Obama, George W. Bush, and back and back and back. So it's very sad to see, but I'm almost past my morning for the Department of Justice and into like, can we get to a point where it can get built back again? But it's going to take a little bit of while.
- [37:12]
E
So let's take a break and come back and talk about the administration's actions with respect to an AI company that's most well known for developing what's called Claude, which is very, very well used and popular. It's like ChatGPT and that was created by Anthropic. And Anthropic has now brought two different types of lawsuits based on what the administration has done. Let's take a break and come back and talk about the allegations by Anthropic against the administration.
- [37:47]
F
Let's do.
- [37:56]
G
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- [39:13]
F
Welcome back. Well, as Andrew indicated before the break, Anthropic is an AI company, in fact what it describes itself as in its complaint, it's lawsuit that it recently filed. One of the two lawsuits is Anthropic is a leading frontier in artificial intelligence developer whose flagship family of AI models is known as Claude. Anthropic was founded based on the belief that AI technologies should be developed and used in a way that maximizes positive outcomes for humanity.
- [39:43]
A
And.
- [39:44]
F
And its primary animating principle is that the most capable artificial intelligence systems should also be the safest and most responsible. Anthropic brings this suit because the federal government has retaliated against it for expressing that principle. Now, I've been listening to a lot about Anthropic to learn more and more and more about it. I'm going to take that as a sincere description. Other people may have different views, but. But that is the viewpoint that they are expressing. What happened, Andrew? That they got retaliated against. They have been doing business with the Department of Defense, and Department of Defense has been using their CLAUDE in many of its different programs for some time now and has praised how excellent their product is.
- [40:29]
E
Yes. So Anthropic has substantial contracts with the government. It, in fact, also is one of the companies, and it represents that it is the only company that is doing work on a national security level with top secret clearance. And the issue here is that Anthropic refused in two respects. It refused to allow the United States government to use it for two things. And this is what I think is key. And I'm just going to read a little bit of how it's described because I want people to think about why would the government, Government want to use it for these purposes. That's why I think everyone should care not just for the legal issue, but what it says about what the government wants to do with this clawed suite of tools that Anthropic has created. So Anthropic has these contracts and said you can use them for many, many purposes, but not two. And here's the first one. First, Anthropic did not develop CLAUDE to deploy lethal autonomous warfare without human oversight. Let me just repeat that. Lethal autonomous warfare without human oversight. This is what it says about claude's abilities. And who should know better than Anthropic? CLAUDE has not been trained or tested for that use, at least at present. CLAUDE is simply not capable of performing such tasks responsibly without human oversight. And so they were unwilling to say, you can use it for that, but that's what the government wants to do. That's thing one, as Mary would say.
- [42:16]
F
And to just boil it down, they say this is a company saying this about its own flagship AI product. Anthropic currently does not have confidence, for example, that CLAUDE would function reliably or safely if used to support lethal autonomous Warfare talks about CLAUDE can make mistakes, right? And we're talking about lethal warfare.
- [42:38]
E
So think one, just think to yourself, wouldn't the government be the first to say, well, we don't want to use it for that? It's one thing to say, we want to use it. If it can work that way, that would already be controversial. But this is the company saying it hasn't been tested and it's not reliable. Okay, it gets worse.
- [42:55]
F
Yes.
- [42:55]
E
Thing two. Second, Anthropic is unwilling to agree to claude's use for mass surveillance of Americans. Surveillance conducted using AI artificial intelligence poses significantly greater potential to make mistakes and to amplify the effects of any mistakes than traditional techniques. Allowing CLAUDE to be used to enable the department to surveil US Persons at scale and to field weapon systems that may kill without human oversight would therefore be inconsistent with Anthropic's founding purpose and public commitments. These important restrictions simply reflect what Anthropic knows to be true about claude's limitations. So the second thing is they don't want this to be a vehicle for mass surveillance of Americans. And some of you may be thinking about images that you've seen of ICE agents when they are going up to people holding their phones and instruments up to people's faces and gathering data about those people and facial images to create this sort of mass surveillance and this complaint. And we'll put a link to this complaint that's been filed in California. In the show notes, you can read more about claude's allegations about its own assessment about what CLAUDE can do and more importantly, what it cannot do. And so that's the gist of this, is that when the company said, we're not doing this, what happened? The President and the Secretary of Defense just basically said, we're going to blacklist you, and spoke out of both sides of their mouth. At one point they're saying, well, you're so valuable, we really need you. And the other, they said, no, no, no, your total security risk totally made up. It's very similar to the Boasberg decision because it's like, it's totally protextual that we're saying, oh, we're going to say that you actually are a supply chain risk and there's a national security interest here in nobody, nobody doing business with you. And so you need to be shunned and stoned to continue my sort of Henry II yes thing. And so basically taking all of this retaliatory action and saying that the United States government is going to use any and all tools Very similar to what they did with law firms. And we see with respect to the media, I mean, in all sorts of ways, it's this bludgeoning people and anthropic is fighting back. And the one thing, Mary, I'm really interested to hear your views on, because I saw in the docket sheet there are a lot of amicus now. There's friends of the court who are filing or saying they're going to file. If you could also talk a little bit about that, because I was really interested in that because with the law firms, one of the things that people noticed is that they weren't all sticking together. They didn't form a sort of NATO of law firms or a NATO of universities. When one gets attacked, they need to understand, like there but for the grace of God go I. And what's happening with Anthropic in terms of the kind of support they're getting in their field?
- [46:19]
F
Well, you've probably looked at the list more recently than I have to see of all the amicus, but I know there have been a number filed, like I said, I signed on to one on behalf of the former national security officials. And it is this outrage over a number of things. So. And also deeply felt that national security is important. But I want to be clear that people understand the reason for this retaliation is because Anthropic would not bend to the will of the President and the Department of Defense. And it's made clear in the things that the President said. So, for example, when they hit this loggerheads, here's what President Trump did. Posting again on social media. He directed every federal agency in the United States government to immediately cease all use of anthropic technology. He derided Anthropic as an out of control and quote, radical left woke company of, quote, left wing nutjobs. Right. What does this sound like? What does this sound like?
- [47:14]
E
Out of control is. It's like everything's projection, which is, I mean, out of control is a perfect, perfect description of the administration.
- [47:25]
F
That's so right. He accused Anthropic of selfishness and of making a disastrous mistake. Anthropic better get their act together. The President threatened, or he would use the full power of the presidency to make them comply. Okay, this is just out in the open, Right? So back to our theme. And I think maybe this should be the title of today's episode, Pretext. Right? Like the notion that that anthropic is actually what's called a supply chain risk. That because they are, which is normally that designation in fact, according to Anthropic has never been given to a US Based company. Supply chain risk means a foreign adversary. It's either a foreign company or there's a foreign adversary that controls that company and therefore having that company have access to the crown jewels, right? Top secret national defense information that has to do with our war fighting capability and has to do with our intelligence collection capabilities, that having some foreign adversary in the supply chain for that is obviously a risk. Having Anthropic, who you've already been working with for years and to your point that when the government was debating with Anthropic about these usage limits that Anthropic wanted, they said, well, we might just take the whole thing under the Defense Production act and force you to provide these services or we might call you a supply chain risk. Again, you cannot have both of those at the same time.
- [48:49]
E
You're such a risk that we want to use you more.
- [48:51]
F
Exactly, right? I mean, it's just, it's SO2 protection, right? And so those who are coming out in support of Anthropic are noting not only the First Amendment retaliation for this viewpoint expressed by the company, right, that our products should not be used for these two purposes. And we've said, and Anthropic says, we've said over and over again, we will work with you on lots of other things. Everything else, just these two things we will not. So First Amendment retaliation, due process violations, because they are being deprived then not just of the ability to contract with the United States for this one contract, but the blacklisting means when they were designated a supply chain risk. The secretary of defense also put out an order that said no company that wants to do business with the federal government can do any business with Anthropic. So that is the shunning and the stoning, right? That is the death knell for a company. You're saying when a lot of your business, not everything but, is doing government contracts, right? And you now not only can't do those government contracts, but you can't even do business with anybody else who does a government contract. That is really just an absolute death knell for a company. Now, I want to be very clear about something in these lawsuits and it's interesting, there are two because one, they're bringing challenging under the Constitution, under the Administrative Procedures act and other different statutory authorities that all of these orders, right, the supply chain designation, the orders that the federal government doesn't do business with them, et cetera, they're bringing a case in the district court in California making those challenges. And then separately, they have a petition for review made directly to the D.C. circuit, because by statute, the D.C. circuit has jurisdiction over the review of a decision to designate a supply chain risk under what's called the Federal Acquisition Supply Chain security Act of 2018. So it's interesting to me because the lawsuits both make the constitutional arguments. They're in two different places. I'm not super familiar with the way this area of laws works. And at some point you wonder, well, who is going to go first? Is D.C. circuit going to go first? Is the district court going to go first? But all of that is just me leading up to the point about what they're not asking for. They are not saying, department of Defense, you have to continue this contract with us. They say, look, in the normal rules of procurement, if there's a problem with the contract and we're not going to fulfill the terms you want, you can end this contract with us. They are not seeking that they have the contract. They're seeking that they not be barred from doing any other business with any other agency. They're seeking that they not be designated the supply chain risk. That, again, not only keeps them from doing business with anyone who does business with the government, but also is a horrible hit to their reputation right into financing their investors, et cetera.
- [51:50]
E
But that's one so much like the Boasberg decision, which is good luck to the government and like how they're going to prove that. In other words, I'm fascinated to see what they're going to say factually, because here, this is another one where it's just the president saying, well, no one rid me here of this troublesome AI company. This again, it's worth remembering what. There's both the bludgeoning part, but, like, for what? Yes, and that, to me, is why this just marries sort of like the things that we do, Mary, which is the legal pieces and talking about the sort of weaponization and how pretextual it is. But for what? And that's where this is so incredible and so important, because for people who are rightly are concerned about how AI is going to be used going forward and what it unleashes, and there's lots of good that it can unleash, for sure, but it's a little like genetic engineering. I mean, there's so much good that can happen, but there also are ways it can be misused. And here you have the company itself flagging that.
- [52:56]
F
And that's the thing that no matter what people, you don't have to like or dislike anthropic, to feel that we shouldn't have AI doing lethal autonomous warfare without human oversight, and we should not have AI doing mass surveillance of Americans without sort of any legal basis or restrictions, etc. You really don't have to have any feeling about the company to be concerned about that. And that's what I think you're saying and what I'm saying. That's one of the things that's so important. Important about this.
- [53:24]
E
Absolutely. And I could go on, because you and I were in the national security space and we both remember the Edward Snowden Leaks and the revelation that there was this program called 2:15 where hundreds and hundreds of millions of telephone records of the United States were being scooped up. And when the public learned of it, there was this huge backlash about the propriety of it. Even if you weren't questioning the legality of it, it was like, well wait, what were you doing this shares Someone's judgment was off and it ultimately was sunsetted. Let's just say that's maybe the polite term. And so here, that's what this is shining a light on. And that's what's so interesting about this lawsuit. So again, it's in our show notes we'll put the California case, which I think is just super readable and if they want read that. But we certainly are going to keep an eye on that for you and we'll continue following what happens both in D.C. and in California. Mary, I'm going to go because it's almost champagne time.
- [54:26]
F
Getting an early start.
- [54:28]
E
Never too early on your birthday.
- [54:30]
F
I agree.
- [54:31]
E
So thanks everyone for listening. And remember, you can subscribe to MSNow Premium on Apple Podcasts to get this show and other MSNow Originals ad free. And you'll also get subscriber only bonus content like our recent Premium episode on Voting Integrity heading into the midterms this fall.
- [54:52]
F
This podcast is produced by Vicki Borgolina and Donnie Holloway. Our Associate producer is Rana Shabazzi. Greg Devins II and Hazik bin Ahmad Fared are our audio engineers. Katie Lau is our senior manager of audio production and Aisha Turner is the executive producer for MSNow Audio.
- [55:10]
E
Search for Main Justice US wherever you get your podcasts and follow the series.
- [55:30]
B
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