Rational Security – The “I AM an Object Lesson” Edition

Podcast by The Lawfare Institute | Episode Date: September 25, 2025
Hosts: Scott R. Anderson (A), Kate Klonick (B), Eric Columbus (C)

Overview

In this episode, the panel—Scott R. Anderson, Kate Klonick, and Eric Columbus—delves into three headline-grabbing national security and legal stories:

1. Free Speech & Government Pressure: Fallout and First Amendment debates after the Charlie Kirk assassination, censorship, and high-level pushback against critical speech.
2. The “TikTok Deal”: Unpacking the opaque US-China TikTok divestment negotiations, questions over the algorithm, and Congressional leverage.
3. Corruption & Crypto in the Trump Administration: New revelations about pay-to-play schemes, the role of cryptocurrencies, and regulatory evasions.

Throughout, the discussion highlights legal nuances, partisan contradictions, recurring themes of procedural bypass, and the ongoing complexity of enforcing norms in national security and media.

Key Discussion Points & Insights

1. Free Speech, Jawboning, and the First Amendment After Charlie Kirk’s Assassination

(Starts ~06:00)

• Backdrop:

  • After Charlie Kirk’s assassination, public and government figures sought the firing or disciplining of critical or "insensitive" voices, including attempts to silence late-night host Jimmy Kimmel, whose show was briefly pulled by affiliates after FCC pressure.
  • This led to a wave of terminations and suspensions across the country, igniting debates over the balance between free speech and employer/official response.

• First Amendment Legalities:

  • Public officials, including the Vice President (J.D. Vance), encouraged public reporting of anti-Kirk sentiment and actual firing decisions—blurring lines between state action and private employer decisions.
  • Attorney General's misstatement (“hate speech is not protected speech”) was quickly walked back.
  • Eric Columbus stresses the legal complexity:

    "There's a balancing test that courts need to apply, weighing their interest in expressing themselves versus the employer's interest in providing public services efficiently...decided by courts on a case by case basis." (11:06)

• Government ‘Jawboning’ & Hypocrisy:

  • Kate Klonick contextualizes current events in the history of jawboning, referencing Bantam Books v. Sullivan, Murthy v. Missouri, and recent attempts to influence content moderation, noting the sharp partisan reversal:

    "This is a particularly sharp moment of hypocrisy... it is a completely manufactured performance." (21:47-22:58)

  • Notably, Republican figures (e.g., Ted Cruz, Rand Paul) publicly objected to FCC Chair Brendan Carr’s censorship stance, highlighting intra-party unease.

• Remedies, Limitations, and the Role of Courts:

  • Discussion of Supreme Court precedents (NRA v. Vullo) and lack of clear legal remedies or damages, especially at the federal level.
  • Symbolic value of an injunction, class actions, and the role of public opinion as a check on government overreach.
  • Scott R. Anderson suggests injunctive relief may be feasible or at least valuable:

    "...if the government has to stop saying this stuff or face the risk of potential court sanctions...I'm not sure that's meaningless..." (33:29)

Notable Quote

• Kate Klonick:

  "Let’s behead the jester that makes fun of the king. That seems like a totally reasonable thing to do in the United States of America." (21:47)

2. The TikTok Deal: National Security, Law, and Algorithmic Shell Games

(Starts ~41:09)

• Status & Opacity of the 'Deal':

  • The Trump administration is set to approve a “sale” of TikTok US to Oracle, Silver Lake, Andreessen Horowitz, with rumors of Murdoch and Michael Dell’s involvement.
  • Despite a statutory ban, enforcement has been rolled over repeatedly while negotiations commence.

• Legal and Procedural Irregularities:

  • The law says nothing about rolling extensions or who must approve; Trump acts unilaterally, without required Congressional action or transparency.
  • Media often report (erroneously) that Congress must approve the deal. In reality:

    "There’s no need for congressional approval whatsoever in this...the President just needs to say this is okay." (42:10-47:51)

• Algorithm ‘Control’ Farce:

  • Central question: Who controls TikTok’s algorithm post-sale? US buyers are reported to “license” the algorithm, but Chinese parent ByteDance (and thus, the CCP) maintains control.
  • Kate Klonick points out the technical impossibility of “algorithmic transparency” or simple sequestration:

    "...the details on this are just so sketchy...these are math equations that are not particularly explainable...this is a completely manufactured performance that is taking place." (48:38-52:40)

• Congressional Oversight—More Wishful Than Realistic:

  • Congress could, in theory, amend the law or use subpoena power if Democrats win a chamber, but there’s little precedent for successful resistance or transparency enforcement against Trump’s style of executive action.

Notable Quotes

• Kate Klonick:

  "If your impulse is 'this doesn’t make sense,' I don’t understand it — the answer is because it really doesn’t make sense." (51:00)

• Eric Columbus:

  "Is this Trump just shoveling money to his friends or is the expectation that they will be tweaking the algorithm to reward right wing views and punish left wing views?" (56:51)

3. Corruption, Crypto, and the Trump Administration’s “New Normal”

(Starts ~57:37)

• Recent Revelations:

  • Justice Department closed an investigation into Tom Homan (White House immigration czar) for allegedly accepting $50,000 from undercover FBI agents, in cash (in a bag from Kava), supposedly in exchange for steering contracts.
  • Simultaneously, the UAE chip deal lifted export bans, coinciding with large crypto deals enriching the Trump Organization and associates.
  • Previous incidents include White House events for buyers of $TRUMP meme coin—illustrating a blurring of public office and personal enrichment.

• Legal Hurdles and Enforcement Evasion:

  • The law around bribery is narrowly written—advisory White House roles may not qualify as “official acts.”
  • Cryptocurrency’s regulatory gaps, anonymity, and enforcement challenges make it a powerful vehicle for profit and corruption.
  • Kate Klonick:

    "It is now kind of a very well established wild west...the beauty and horror of cryptocurrency is its relative untraceability." (63:37)

• Crypto as Corruption’s Frontier:

  • Anderson compares this round’s favored instrument (crypto) to previous (Trump Hotel), noting how enforcement is even harder due to lack of “competitor” standing and a crypto industry aligned with Trump.
  • The media’s investigative reporting (esp. NYT’s Eric Lipton & David Yaffe Bellany) is highlighted as vital documentation, even if legal consequences are remote.

Notable Quotes

• Kate Klonick:

  "...the size, scale, and scope of the UAE thing has really kind of put a pin in that for me...never in the history of America have we trusted and just used markets and capital in this way before." (69:13)
  "...the cat is gone on vacation... there's no cat. So there's a lot of mice and everyone's eating cheese." (~71:00)

Highlighted Moments & Timestamps

| Timestamp | Segment / Quote | | --- | --- | | 11:06 | "There's a balancing test... these are decided by courts on case by case basis." – Eric | | 21:47 | "Let’s behead the jester..." – Kate (on FCC/Kimmel) | | 33:29 | "I'm not sure the injunctive relief is beyond the pale..." – Scott | | 42:10 | "What do we know about this deal and what we don’t?" – TikTok starts | | 48:38 | "I have no idea why this would take the control that the Chinese have away..." – Kate | | 51:00 | "If your impulse is 'this doesn’t make sense'... it really doesn’t make sense." – Kate | | 56:51 | "Is this Trump just shoveling money to his friends...?" – Eric | | 63:37 | "It is now kind of a very well established wild west..." – Kate on crypto | | 69:13 | "Never in the history of America have we trusted and just used markets and capital in this way before..." – Kate |

Notable Quotes (with Attribution)

• Eric Columbus:

  "Attorney General saying that hate speech is not protected speech, which is obviously nonsense..." (06:27)

• Kate Klonick:

  "If you followed this... it is a particularly sharp moment of hypocrisy and kind of double, double standards that are kind of unbelievable." (14:23)

• Scott R. Anderson:

  "Because we have the Murthy case, which again... there really was no reason to think that there was anything redressible by enjoining, because there was nothing to enjoin..." (25:04)

• Kate Klonick:

  "...completely manufactured performance that is taking place." (52:40, re TikTok deal)

Tone and Style

• Lively, direct, and at times exasperated (particularly from Kate Klonick), blending legal rigor and pop commentary.
• Substantial reliance on pop culture and internet law references, but always grounded in legal analysis.

Object Lessons (Recommendations)

(Starts ~71:37)

• Eric Columbus:

  • Recommends the novel To Rise Again at a Decent Hour by Joshua Ferris (about Judaism, baseball, and dentistry).

• Scott R. Anderson:

  • Highlights a local DC music event: Katy Prince Pruitt headline show at Union Stage, Oct. 14th.

• Kate Klonick:

  • Shares a personal story about her small blue Hippopotamus souvenir from the Louvre, connecting to experiences of searching for objects (both literal and figurative).

Summary Table of Major Topics

| Topic | Key Issues Discussed | Legal/Policy Insight | Notable Speaker Notes | |--------------|---------------------|------------------------|----------------------| | Free Speech/Jawboning | Gov’t censorship, FCC/Kimmel affair, public pressure | First Amendment, Bantam Books, Murthy v. Missouri, jawboning precedents | Kate’s strong critique of hypocrisy | | TikTok Deal | Ownership, algorithm control, Congressional powerlessness, opacity | Statutory ambiguity, procedural irregularities | Kate & Eric on how little makes sense & Trump’s friends as beneficiaries | | Corruption/Crypto | Pay-to-play, use of crypto, DOJ closures, comparisons to emoluments | Bribery statutes, regulatory evasion, enforcement gaps | Kate: "Wild west," Anderson: regulatory blind spots |

For Listeners Who Missed It

This week’s episode combines sharp legal analysis with pointed commentary on free speech hypocrisy, the opacity of executive deal-making with TikTok, and the new “market-philic” culture of corruption under crypto-enabled Trump governance. The hosts dissect legal doctrines and political trends, highlight failures of procedural safeguards, and repeatedly return to the theme of norms being bypassed or inverted.

As always, the conversational, unscripted style delivers both educational clarity and plenty of personality—even catharsis.

For In-Depth References:

• Bantam Books v. Sullivan
• Murthy v. Missouri
• NRA v. Vullo
• NYT reporting by Eric Lipton & David Yaffe Bellany on UAE/crypto
• To Rise Again at a Decent Hour (Joshua Ferris)

Recommendation:
For those who care about the First Amendment, tech and security policy, or just want a lively, incisive tour of the week’s legal battles—this is an episode not to be missed.