Rational Security: The "Law and Order: Executive Victims Unit" Edition

Podcast: Rational Security by Lawfare
Date: February 5, 2025
Hosts: Scott R. Anderson, Quinta Jurecic, Alan Rozenshtein
Panelists: Molly Reynolds, Benjamin Wittes, Anna Bauer

Episode Overview

This episode dives deeply into the escalating tensions between the Trump administration and Congress, exploring recent high-profile actions by the executive branch that test the boundaries of U.S. governance and the constitutional separation of powers. The hosts analyze the administration’s confrontational approach, particularly regarding funding freezes, personnel actions against civil service employees, attempts to restructure or dissolve federal agencies, the dramatic shift in birthright citizenship policy, and the Justice Department’s punitive measures targeting those involved in Trump-related investigations.

Key Discussion Points and Insights

1. Executive Branch Pushes Against Congressional Limits

[04:24–38:30]

• Summary of Actions

  • The Trump administration has unlawfully impounded funds, terminated federal employees in defiance of civil service protections, and attempted to dismantle the US Agency for International Development (USAID).
  • Congress, especially Republicans, is largely seen as complacent or supportive so far.
  • There are significant public administration risks as executive actions impact agency functionality and government continuity.

• Concerns about Congressional Response

  • Scott Anderson questions the tepid reaction from Congress, noting only muted Democratic pushback; "[The] reaction from Congress has been nonplus so far, really kind of from both sides." [08:45]
  • Molly Reynolds attributes Republican passivity to party loyalty and Democrats’ cautiousness in seeking possible Republican support. The funding timeline sets up an imminent crisis when the stopgap bill expires in mid-March.
  • Reynolds highlights structural risk:

    "The executive branch is really directly intruding in a really broad and concerning way on important congressional powers ... it makes it impossible for Congress to come to those agreements in the first place because they don't believe they're going to be honored." [13:38]

• Policy Rationales—Or Lack Thereof

  • Anna Bauer: "Is there an argument to be made otherwise that these pauses or freezes of funds has some real policy rationale behind it?" [16:21]
  • Panelists debate whether there is a coherent policy or simply retribution, chaos, and an instinctual power grab.
  • Benjamin Wittes:

    "With respect to Trump himself, the goals are ever changing...the big lesson that Trump took from the first term is that he didn’t have enough control..." [19:22]

  • Scott Anderson stresses the lack of clear strategy, "You see a lot of actors acting towards particular goals...it’s just not that coordinated." [26:32]

• Direct and Collateral Damage

  • Court injunctions have halted some actions, but real harm was already inflicted—funds paused, organizational damage, and lasting fears among those reliant on federal support.
  • Molly Reynolds:

    "Even when an agency does something that is subject to future legal challenge and the courts do step in ... people ... saw their access to federal funding get even if temporarily cut off, which—that has consequences." [27:33]

• Congressional Leverage and Prospects for Change

  • Panelists note that pushback is more likely when members of Congress and their constituencies start to "feel the pain" of executive overreach.
  • Specific pressure points raised:
    • Senate holds on nominees (e.g., in response to USAID matters).
    • Government funding/debt ceiling deadlines as moments of leverage.

• On Courts as a Break

  • Benjamin Wittes humorously notes judicial rebuke:

    "You have a much longer months long process of the court saying, I think it's a fancy Latin phrase and it basically means, 'are you fucking kidding me?'" [37:14]

2. Birthright Citizenship Executive Order: Legal and Political Turmoil

[41:42–61:12]

• Nature of the Executive Order

  • Trump's order limits U.S. citizenship to those born in the U.S. to citizen or lawful permanent resident parents—an abrupt change from “jus soli.”
  • Scott Anderson reads out the order’s language to underscore its radical redefinition. [42:54]

• Litigation and Legal Arguments

  • Anna Bauer tracks rapid court challenges across multiple states and critical judicial skepticism.
  • The foundational Supreme Court case (Wong Kim Ark, 1898) is being reinterpreted or ignored by proponents ("revisionist history" [46:45]).
  • Growing conservative willingness to question longstanding precedent, compared by Anna to rightward shifts on the Second Amendment.

• Originalism, Stare Decisis, and Statutory Interpretation

  • Scott Anderson warns:

    "If you don't care about settled law...you can see the pieces coming together about how you can reach an alternative interpretation." [51:02]

  • Supreme Court’s comfort with upending precedent is discussed with concern.
  • Statutory grounds for citizenship (Immigration and Nationality Act of 1952) may provide a safer legal fallback.

• Political Dynamics and the Future

  • Molly Reynolds predicts "thermostatic" shifts in public sentiment on immigration; major changes could provoke significant public reaction.
  • "[M]any Americans have not really internalized how big a deal this would be...," Reynolds notes, anticipating this will re-emerge as a major political issue. [59:17]

3. Justice Department, the FBI, and the Specter of Retribution

[61:12–71:36]

• Crackdown on Former Investigators

  • Mass termination of Trump administration investigators; collection of FBI agents’ names who worked January 6th cases, possibly for retribution.
  • Notably, the FBI’s culture is resisting within, while DOJ has been less forceful.

• Organizational Culture and Risk

  • Benjamin Wittes:

    "You have a very systematic effort at both the Justice Department and the FBI to punish [those]...In the case of the Justice Department, it is the FBI. This is the largest investigation in American history...thousands and thousands of agents and analysts." [62:25]

  • The FBI, with its post-Watergate rule-of-law ethos, is passively but resolutely resisting: "This is just agents refusing to fill out this questionnaire and management refusing to compel them to." [65:21]

• Kash Patel’s Nomination as FBI Director

  • Patel, up for FBI Director, previously stated no mass disciplinary actions would occur, despite facts to the contrary.
  • Wittes: "In a reasonable world, it would be the end of Patel's nomination ... but ... I don't see any sign that it has affected Patel's nomination yet. I will say it certainly should." [68:07]
  • Molly Reynolds: The nomination is the end result of a years-long project politicizing the FBI in right-wing circles.

Notable Quotes and Moments

• Benjamin Wittes (on Executive Power):

  "The big lesson, or a big lesson that Trump took from the first term is that he didn't have enough control and that he did not make the government bleed until it bent to his will." [19:22]

• Molly Reynolds (on Damage Beyond Litigation):

  "Just demonstrating that you can exercise federal power in this way ... it has consequences ... [including] a chilling effect on behavior of various kinds going forward." [27:33]

• Scott Anderson (on Congressional Leverage):

  "This is a moment where Trump is at his maximum powers because Congress isn’t even operational yet ... But that moment passes." [34:50]

• Benjamin Wittes (on Judicial Review):

  "You have a much longer months long process of the court saying, I think it's a fancy Latin phrase and it basically means, 'are you fucking kidding me?'" [37:14]

• Anna Bauer (on Precedent and Legal Revisionism):

  "I've been a little bit surprised that it seems to be that 100 years of precedent is all of a sudden being undermined and questioned when this executive order comes out..." [46:45]

• Scott Anderson (on Supreme Court's Stare Decisis Attitude):

  "If you don't care about settled law...you can see the pieces coming together about how you can reach an alternative interpretation." [51:02]

• Molly Reynolds (on Civil Service Reality):

  "Maybe you'll accidentally be running your agency. And when you do, you can do some good. Stick with it, people." [74:18]

Timestamps for Key Segments

• Opening Banter: [00:33–04:24]
• Topic 1: Executive Overreach and Congressional Reaction: [04:24–38:30]
• Topic 2: Birthright Citizenship Executive Order & Legal Fight: [41:42–61:12]
• Topic 3: DOJ/FBI Retaliation and the Civil Service: [61:12–71:36]
• Object Lessons and Closing Recs: [71:36–79:51]

Memorable Moments

• LOL Topic Headline:

  • Ben’s rare laugh-out-loud reaction to the episode’s headline, saying, "If I had had coffee, it would have come out through my nose." [05:14]

• What Would Drizz Do?:

  • Wittes shares a viral meme in FBI circles featuring Acting Director Driscoll (aka The Drizz): "wwdd, what would Drizz do?" [74:18]
  • Praises Driscoll’s honorable stewardship during agency crisis.

• Civil Servants Shouldn’t Quit:

  • Anderson highlights a Matt Yglesias article urging career officials to stay put and do their jobs ethically, echoing the panel’s faith in civil servants’ steadying influence.

• Object Lessons:

  • Molly Reynolds recommends the “Scratch and Win” podcast about the Massachusetts Lottery. [71:50–72:43]
  • Anna Bauer recommends the TV series “Severance.” [77:13–79:28]

Final Takeaways

• The Trump administration’s aggressive, sometimes chaotic, approach to executive power has severely tested constitutional norms and exposed weaknesses in the separation of powers.
• Congressional and judicial checks remain possible, but their effectiveness depends on political will, public pressure, and the resilience of institutions—and often on the determination of civil servants themselves.
• Key legal fights (like the birthright citizenship order) are just beginning, but have the potential to drive sweeping, destabilizing changes to fundamental aspects of American governance and identity.
• Listeners are left with a strong sense of the stakes for the next months—a period likely to bring more showdowns between the branches, new legal challenges, and crucial choices for the future of the civil service.

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