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- [00:00]
Boost Mobile Advertiser
If this back to school season talking to your teenager sounds like this.
- [00:06]
Molly Reynolds
With.
- [00:07]
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- [00:33]
Scott R. Anderson
So, Ben, the last time I saw you on video, I think you were on a bare floor in an empty house deep in the woods, having contracted Covid like you're in some sort of Russian prison camp. Which is a little premature because I think we've got a few more months before the prison camps start.
- [00:51]
Benjamin Wittes
Practice.
- [00:52]
Scott R. Anderson
You're a little more comfortable surroundings now. Hopefully you're doing a little better.
- [00:55]
Benjamin Wittes
Yeah, I am recovered from COVID and I am no longer in the cabin in the woods. But you will be pleased to know I have bought a large, large quantity of hardwood for floor for the cabin in the woods. And you'll never guess where I bought it.
- [01:15]
Scott R. Anderson
Where would that be from?
- [01:17]
Benjamin Wittes
A Quebecois wood dealer. Because I decided that I was going to buy Canadian and Mexican whenever possible. And you know, the Canadians have a lot of good hardwood. So I made a point of notwithstanding the tariffs, buying from Canada and then the tariffs didn't go into effect.
- [01:42]
Molly Reynolds
I was gonna say, were you disappointed when the tariffs were paused so that you could not make your, like, rhetorical point in purchasing Canadian?
- [01:52]
Benjamin Wittes
Well, I sort of feel like this way I got the virtue signaling and didn't have to pay 25% extra. So I sort of feel like it was win, win. And my Quebecois wood dealer, who very sorrowfully warned me that there might be a 25% tariff, I sent him the tariff. I texted him back that was like, you don't understand. I'm buying it to say F you to Trump. I'm specifically buying Canadian. And he responded with four crying with laughter emojis.
- [02:36]
Molly Reynolds
As I told Ben yesterday, this reminded me of a story that I have about when President Biden signed the inflation Reduction act and I had placed an order for an electric vehicle and my car dealer called me to say, I don't know if you're aware, but Congress recently passed a major piece of tax legislation before telling me that my tax credits were going to be different. And it was honestly, maybe the greatest phone call I've ever received.
- [03:11]
Scott R. Anderson
Hello everyone, and welcome back to Rational Security. I am your host, Scott R. Anderson. Thrilled to have you back on the podcast where you join members of the lawfare team as we try to make sense of the week's biggest national security news stories. And joining me this week to try and make sense of a week that has plenty of big headlines in the national security news space are my colleagues, Benjamin Wittes, co host emeritus of Rational Security and editor in chief of Lawfare. Ben, thank you as always for joining us back on the podcast.
- [03:39]
Benjamin Wittes
Hey, man, before I know it, it's going to be like, you know, a regular. I'll be a co host again.
- [03:45]
Scott R. Anderson
Well, we'll rope you back in and then I will slowly fade out of existence back to my normal Tuesdays. Until that day, I'm also thrilled to be joined by LawFair senior editor and Brookings senior fellow Molly Reynolds. Thank you for joining us again. Molly.
- [03:59]
Molly Reynolds
Hello. It's good to be back.
- [04:00]
Scott R. Anderson
I did not mention Congress in introducing you once, maybe for the first time.
- [04:05]
Molly Reynolds
You just had to take care of that.
- [04:06]
Scott R. Anderson
Like I said, take care of that. I got to circle back to it. Exactly, exactly. And of course, thrilled to be joined by another lawfare senior editor, our own lead legal correspondent, lowercase, because I only have tech. That's technically a title, but I think it's an accurate descriptor. Anna Bauer. Anna, thank you so much for coming back on the podcast as well.
- [04:23]
Anna Bauer
Happy to be here.
- [04:25]
Scott R. Anderson
Wonderful. We have a lot going on in the news, as anyone who watches the news is well aware. We've picked out three big stories that are worth talking about. Our first one for this week, checked out and off balance. Over its first two weeks in office, the Trump administration has pushed against the traditional limits of congressional authority by unlawfully impounding funds, terminating federal employees contrary to statute, and seeking to dismantle at least one federal agency also contrary to statute. Maybe a little complicated there, but the Republican controlled Congress has thus far remained almost entirely complacent, if not supportive of the President's actions. How far will the Trump administration be able to go and what will the long term consequences be for the separation of powers topic to you solely. You skidding. As one of the first acts after. Like that one. I'm glad you like that one. It was in the delivery.
- [05:14]
Benjamin Wittes
I really like that one. It is very rare that we have an actual LOL topic headline, but that one got me.
- [05:25]
Scott R. Anderson
There we go.
- [05:26]
Benjamin Wittes
If I had had coffee, it would have come out through my nose.
- [05:29]
Scott R. Anderson
The dream. Next time, next time, everybody has to take a big sip of milk before I read these. As one of his first acts after returning to the White House, President Trump issued an executive order refusing to recognize birthright citizenship in the United States for anyone whose parents are not citizens or lawful permanent residents. All told, it seems like a clear effort to trigger a review of the traditional understanding of the 14th Amendment as implementing use solely meaning citizenship based on place of birth. But how likely is this gambit to work? Faux Drizzkull the Trump administration's promised campaign of retribution has hit the Justice Department, where senior supervisors have been reassigned and prosecutors involved in the January 6th investigations have been terminated, perhaps most likely, some would argue, unlawfully. But now efforts to gather the names of FBI agents involved in those same investigations for presumed retribution are facing serious pushback, including from the bureau's acting director, Brian Driscoll, also known affectionately as the Drizz. We've all learned in recent how hard can the FBI and Justice Department push back, and where are the legal limits on what the Trump administration can do? So for our first topic, we want to zoom in on the question of Congress, because we have seen a lot of things happening on that tricky periphery that marks the separation of powers, the somewhat ambiguous and disputed periphery in many cases, between what is traditionally understood to be congressional authority and what is traditionally understood to be presidential authority. We know the Trump administration has been involved in impounding funds and stopping payments on the use of funds in ways that, if not currently at some point relatively soon and within the scope of the timeframe they've set out for those pauses, seems almost certain to run up against the spending commitments they've made through the apportionment process and in line with statutory appropriations and other authorization legislation set up by Congress. We knew, though, they fired a number of civil servants involved with the special counsel investigation into President Trump, most of whom would presumably benefit from civil service protections that are usually supposed to limit, if not outright prevent, permanent termination. Notably, most federal employees have been put on administrative leave, a different action. But these handful have actually been terminated. And we have also seen most recently an effort by the Trump administration, although it appears they may well have backed off just in the last 24 hours or so to tear apart the US Agency for International Development, abolish it, and turn it back into a function underneath the State Department. Although again, it looks like at this point that scope of ambitious plan is somewhat on pause, at least. Instead, Secretary of State Marco Rubio, after appointing himself the administrator for usaid, the acting administrator, I should say, has said we're doing a process to shift certain functions, reorganize certain parts of usaid, and maybe abolish parts of it in coordination with Congress. So a little bit of a step back there. We'll see how much that actually happens and how much maybe they push ahead with what seemed to be the initial plans to actually just abolish it altogether. Molly, I want to come to you first on this topic because I think these are three things that for people who study Congress, I suspect are like, pretty alarming. Maybe not the only three as well. I think there may be other things happening that maybe you have your eye on that didn't make my top three list.
- [08:35]
Molly Reynolds
What's happening at the Treasury Department?
- [08:37]
Scott R. Anderson
Yes, that as well. That as well. Is that a separation of powers thing? I don't know. I don't know the statutory regime around that, but it very well might be.
- [08:42]
Benjamin Wittes
That's really more routine breaking and entering thing.
- [08:46]
Scott R. Anderson
Yeah, exactly. It might violate local breaking and entering laws and criminal laws, but maybe not federal restrictions. The question I have for you, Molly, is the reaction from Congress has been nonplus so far, really kind of from both sides. We're beginning to see some Democratic pushback around the USAID shutdown. Actually, of all things, really seems to have been a little bit of a catalyst, at least in the last few days, but it's been kind of muted so far. Talk to us about where this current Congress is and what explains the reaction we're seeing and whether that's going to be a more permanent function or we're going to see maybe pushback beginning to ramp up as Congress, which is still in its first few weeks of operation, gets moving.
- [09:25]
Molly Reynolds
Yeah. So I think there's sort of two ways to think about Congress's role here. So some of these things that you've articulated most significantly, the probably the OMB funding freeze and then sort of relatedly a couple of the President's day one executive orders that also ask agencies to pause certain streams of federal funding. So sort of those actions. And then also what's been happening at usaid and according to press reports, what may be in store for other agencies that are also statutory authorized by Congress. Some of this is like direct infringement by the executive branch on core congressional powers. So if we think about sort of the number one thing for which Congress is responsible for in the Constitution, I don't know if it's the number one thing, but like a very important thing is the power of the purse and Congress being responsible for making decisions about the appropriation of federal dollars. And then it is the executive branch's job to effectuate those decisions. And important there are depending on sort of the statutory authority under which the executive branch is acting in different programs and different streams of funding. There is more or less inherent flexibility that an agency has to allocate money that Congress has appropriated. And there are some programs and streams of funding where the statute that gives the executive branch the authority to obligate federal resources gives them more flexibility to say, temporarily pause funds. But then there are also lots of places where they don't have that flexibility. And the underlying statute does not give them the ability to temporarily pause funds unless they go through a series of prescribed steps that Congress has also written into statute as part of the 1974 Congressional Budget Act. And so there's one set of things where the executive branch is really directly intruding in like a really broad and concerning way on important congressional powers. Then there's a second set of issues, or maybe a second way to think about some of these issues, which is to say that the executive branch is acting in sort of a very expansive and aggressive way, in a way that stands to have potentially really harmful consequences for the individual constituents that members of Congress represent. So I also don't know anything about the sort of underlying statutes that govern the activities of the Bureau of the Fiscal Service, which is responsible for like actually turning on and turning off the pipes, if you will, by which federal money goes out the door. And I don't know, I can't speak to what laws may or may not be being broken by the Elon Musk led effort to take control of the treasury payment systems. But if, and it really seems not so much if as as much as when something goes awry with those systems because of the access that people of questionable federal employment status have been given to those systems, something is going to go horribly wrong for actual Americans who are represented by members of Congress. And I don't know how much of it is that. This is like really weedsy and confusing even for people who think about sort of federal fiscal policy for a living, of which I would count myself as one, that's hard to explain exactly, like how high the stakes are here. Like what could happen if like someone writes new code in the Treasury's computer systems and then all of a sudden checks stop going. That's a really big deal. And so there's this second sort of, I don't know, public facing thing that we also just haven't seen Congress institutionally kind of get involved in yet. I think as to how do I explain that, I mean, I think on the Republican side of the aisle, so much of this really is just about they are in line behind President. You know, as we were preparing to record this this morning, there were a number of Republican senators, Bill Cassidy, Todd Young, who had been sort of holdouts against particular Cabinet nominees who said, no, actually I am going to support Trump's pick. So that we just haven't seen on the Republican side of the aisle a whole lot of willingness to stand up to Trump generally yet. And on the Democratic side of the aisle. You're right, Scott, that, you know, yesterday we're recording this on, this is Tuesday. Yesterday we did see a bunch of members of Congress sort of go usaid, hold a press conference, try to get inside to find out in the words of Congressman or now Senator Andy Kim, what in God's name is happening here. I believe that's a direct quote. And so we've seen a little bit of that start to happen. And I suspect that particularly as some of this goes on, we may well see more efforts by Democratic members to raise the temperature, raise the salience. I think in the Senate, I suspect that in many cases Democratic senators have been sort of trying to figure out is there a way to give Republicans, some of their Republican colleagues more space to perhaps oppose some Cabinet nominees. That seems to perhaps not be working. That doesn't mean that that wasn't worth trying. But I think one thing that I'm really keeping an eye on is the fact that the current funding bill funding federal discretionary programs only runs through the middle of March. We have, I guess, somewhere between five and six more weeks before we have a government funding crisis of the kind that we have had numerous times over the past decade. And that's going to be a huge flashpoint. I think at this point it's going to be very hard for Democrats to say, I think appropriately, I think they're going to say, look, we are not going to come to the table here. If this is what you are continuing to do, if you're continuing to let the Elon Musk led DOGE effort try to disrupt the very basic functionings of the federal government, particularly during a period when we are coming up against the binding constraint of the debt limit. This is all we can't negotiate in the shadow of this and we really can't negotiate in a world where we don't believe that whatever hard fought agreement we reach within the US Congress that the executive branch is going to stick to when it gets signed into law. And sort of the highest level, that's one of the most disruptive things that's happened over the past two weeks is this idea that maybe now we live in a world where the executive branch simply is not going to do what Congress has negotiated, which then 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.
- [16:21]
Anna Bauer
Molly to that end, I mean, you mentioned the high stakes of all of this and how disruptive it's been. And so maybe the panel can help me answer this question that I've been thinking about, which is from a governance perspective, what what are the policy goals being accomplished here? Because from the outside, the impression that it gives is that funding is being cut without much forethought or real policy rationale behind it, and it's led to total chaos within various agencies and departments. But is there an argument to be made otherwise that these pauses or freezes of funds has some real policy rationale behind it?
- [17:05]
Molly Reynolds
So I can offer sort of one set of thoughts on this, but curious to hear what others think. So I think one really important, at least for me, way to think about sort of the personnel around President Trump in this space is that there are some folks and I would put the individual who's been nominated but not yet confirmed to be the OMB director, Russ Vogt, sort of at the head of this category, people who are really like true believers in both the idea that the president should have the power under the Constitution to impound funds, that that's a power of the presidency, and that the federal government should be radically smaller and do radically fewer things than it currently does. And so you think that those people are really like ideological true believers and really do want kind of the president to be able to make these choices and the size of the government to shrink and more power just generally sort of in the hands of the White House and the Office of Management and Budget, as opposed to dispersed through the federal agencies. On the other side, you have sort of a group of folks, some of whom are folks who I think want to use the powers of the federal government to extract retribution against people they don't like or people who are there, they are angry at. And however you want to characterize, sort of Elon Musk some of that behavior, I think is probably seeking retribution. And some of it is just this belief that, you know, like the federal government is improperly paying people. And like I and only I can figure out and my sort of the people around me can figure out how to make that stop. But right now, we sort of have those two sets of people. They've hitched their wagons to each other And I think part of why we can't see a coherent set of policy goals is because not everyone involved in this effort is doing it for the same reasons or ultimately wants the same thing out of it. And I don't know how long this sort of hitching of wagons is sustainable. Maybe it's sustainable for the duration, I don't know. But I think I also have had this confusion, and that's kind of how I've reasoned through it. And what I've come to think is that there's a set of actors who are all participating in what we're seeing, but not all for the same reason. And that's part of why it's hard to suss out what the policy goals are.
- [19:23]
Benjamin Wittes
I also think that with respect to Trump himself, the goals are ever changing. So, you know, the USAID functioned during the first Trump administration, more or less fine. It, you know, it. It was not a particular. There were. There were stuff happened there, but it was not a particular subject of controversy. If you think about the first Trump administration and all the chaos that happened, the words USA and I and D don't come up in the. In your memory, and there's a reason for that. And now Trump gets in, and the first. One of the first things he does is declares war on the agency. It's not at all clear, you know, his own sense of these things. How USAID went from, you know, just another agency to the subject of just this intense is a creature of. Of also just Trump's own internal chaos, I think. And there's a bunch of examples like that, some of which we're gonna. We'll talk about later, I assume. But I. I do think that there is a coherence to it that I don't want to ascribe too much to. But, you know, 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. And so he comes in this time with a very strong desire to do that. And that means immediate personnel actions in some cases, including reaching down into the civil service. And it also means really redirecting the agencies themselves in other incidences. And so we're, you know, contemplating getting rid of the Department of Education. We're contemplating whatever with respect to usaid. And then there's this DOGE effort to really get high visibility into and control over every aspect of spending. And there are these freezes, both attempted and real, going on in. At both at OMB and, and, and in the foreign aid space. And I think these are all best understood. What they all have in common is that they are an effort to get control, like really direct, in a unitary executive sense, presidential control over all kinds of agency activity and down to the like firing all the Democrats on the Privacy and Civil Liberties Oversight Board. Right. And I think the key, the key concept is direct control.
- [22:32]
Scott R. Anderson
I don't disagree with that, but I think we need to pull in some of the chaos of the first half of your answer more to like actually explain what we see happening to get that. I think it's more of an instinctual drive for control than a strategic drive for control and one channeled where I think you see a lot of permission structures activating, where it's kind of conventional, conservative, fairly on the right, conservative views of things we can mess with or that are a problem. So when you hear people justifying usaid, you trigger these narratives about, oh, USAID is wasteful. It's a Marxist bastion within the federal government. All these things that people have been saying for a long time, but like Republicans have never really believed in them. People who are critical of USAID have never believed them to the full extent. They get to Congress, they still approve foreign assistance, they support it in many cases, they still authorize USAID to do it. But because you have these political narratives out there, it makes certain agencies more vulnerable to that sort of targeting. But the way you see this administration go about this does not make much sense from my perspective. Certain actions make more sense than the other. So like the day one actions, things like the freeze on funding both on foreign assistance and domestic assistance. Right. You can see how that makes some sense. I think it pushes against legal limits, but it's some that we know there are people in the administration want to push against, like the impoundments limit. And they also provided lots of off ramps and ambiguity about what exactly they're doing. The foreign assistance executive order actually was trying. I can't recall that they did this in the domestic spending executive order specifically said OMB is supposed to use its apportionment power to facilitate the ability to have this like temporary pause. And it's all a temporary pause. And it leaves an open door to exceptions and has a bunch of these measures that essentially create a lot of ambiguity about what's actually happening and create a lot of off ramps strategically. That makes a lot of sense when you know you're likely to get pushback from the courts and you want to be able to tailor and adapt your action to avoid and evade judicial review, judicial pushback, or give of gray areas where, for constitutional avoidance reasons, the court will be able to capitalize on them to not intervene. Then you have the Doge stuff, which is the exact opposite of that. Like, it is not ambiguous. It is unclear. It is moving rapidly, fast, and it really does not make a lot of sense for any strategic objective except really cost cutting and personnel cutting. That seems to be the same drive is the Twitterification of the federal agencies that happen to fall within Doge's purview or attention at a given moment. Like, I don't think Doge really cared about USAID a week and a half ago, but that's where they landed. They got pushback, which made it particularly an irritant to them, which led to dramatic personnel action, removing USAID personnel, and then I think put USAID kind of in the crosshairs for this sort of action. But strategically, like usaid, if you care about cost cutting, it's a very small source of US Expenses overall. These foreign assistance programs are things that have bipartisan support. Republicans in the Congress may not be speaking about it right now. At a certain point, many of these programs are going to become an issue. Many of them go to, like, Christian charity groups around the world that have strong rooted in faith communities that do a lot of good work around the world, but are like unabashedly Christian organizations. Like, there's going to be pushback and costs for doing some of this at a certain point. And we're already seeing that manifest because we're seeing this little battle now, at least how I read it, between the State Department and the Doge folks. Doge folks came in and said, we're feeding USAID at a wood chipper. It's not going to exist on Monday. Then Marco Rubio comes in and says, well, we're having a review process to see, to consider in coordination with Congress, in consultation with Congress, as required by statute. Parts we're going to take away, parts we're going to shift, and parts we're going to do this other thing that could still be really destructive to the usaid. It could do a lot of things that people don't like with it, but it's much more legally sound to work through that array of authorities and not pretend like you can just do this and Congress has to buy it, especially in an environment where you're going to get judicial pushback. All this, like these structural constitutional constraints are enforceable, and they're enforceable not just by Congress, but by anybody who's affected by those agencies downstream. In my mind, maybe that was one reason to target usaid, because it's not enforcement agencies, enforcement agencies because they take enforcement actions. As soon as you do something structurally questionable with them, you will immediately get a legal challenge that's going to go up to the Supreme Court because anybody who gets an enforcement action sees a way out from doing it. That's what happened with, say, LA Law and the CFPB a couple years ago. We see it over and over again with these regulatory agencies where they have a. A potential constitutional flaw, although many of them have not played out right. USAID doesn't have that relationship. When you start terminating employees or canceling contracts and taking funds away that are legally questionable, you create people with standing can pursue these cases. So I just don't think there's a lot of strategy hanging together here. I think you see a lot of actors acting towards particular goals. And it's happening under a president who doesn't have a strategic vision or an interest in really reining them in. That will change if political calculations change, and I think they probably will at some point. I think probably soon, maybe State is beginning to see that with the USAID bit. But I don't see a lot of really calculated strategy here that a lot of people are saying. I think there'd be much better ways to go about doing this than they are doing. And it's because it's just not that coordinated and effort that you're seeing these cross purposes.
- [27:33]
Molly Reynolds
Yeah. So I want to. I don't know if it's pushed back, but I want to make sure that we are clear that, that even when an agency does something that is subject to future legal challenge and the courts do step in and say, no, you can't be doing this thing. One that does not mean that in the meantime, people. And again, I'm thinking here in particular about the broad OMB funding freeze which now has been enjoined in two separate cases, one involving a set of kind of nonprofit plaintiffs and one involving a set of state plaintiffs in the interim. There were lots of organizations, state governments, local governments around the country who saw their access to federal funding get even if temporarily cut off, which that has consequences. And it has consequences because now that they've sort of demonstrated the capability to kind of turn the government off, there is this, I think, fear on the part of many constituencies that rely on federal funds that even when it gets turned back on, that the fact that they've demonstrated they can turn it off is going to have A chilling effect on behavior of various kinds going forward. The other thing I'll say is that it's not entirely clear that the sort of turning back on of government functions has gone entirely smoothly. So you have seen, for instance, a bunch of reporting and this actually is a thing that some members of Congress have gone public to be angry about involving pepfar, the program for AIDS relief that significantly aids folks on the African continent, that the PEPFAR beneficiaries have been told, like the State Department said, like you could turn this money back on. And it still seems like the money is not and resources aren't flowing in the way that they were before the money got turned off. And so just kind of. I take your point, Scott, that the courts are stepping in and we should continue to expect them to do so. But that doesn't mean that there isn't significant damage in the short, medium or long term from simply demonstrating that you can exercise federal power in this way.
- [29:43]
Scott R. Anderson
I totally agree with that and I don't disagree. I mean that actually I think is the biggest takeaway here. Like the biggest harm that's coming from a lot of this is potentially short term damage that we're seeing already again in the USAID case, right? Like they are, through this band, foundationally crippling the infrastructure through which assistance is delivered of all stripes, including lots of assistance that again, nobody objects to food assistance, emergency assistance, life saving stuff that's supposed to have gotten turned back on. But reports are that it's very spotty at best and they're not going to be able to do it as effectively once they decide they want to do it again. Is that a deliberate consequence of what they're doing? I think some people are insensitive to that outcome, like particularly the Doge folks who are driving this. Although also F and State Department deserve a fair amount of blame for implementing the ban. They have now installed more waivers and are issuing waivers, albeit not at a pace that many people think is necessary and appropriate. But I think that is more of an unintended consequence or will be viewed as an unintended consequence down the road, regardless of judicial action. Like lots of harm being done in the interim. But I don't think that harm is necessarily strategic. You have to embrace the whole Trump administration of having a very Pyrrhic victory, of essentially just trying to tear down every capacity of government. And in the end, I think the Trump administration is gonna have to govern eventually and they're gonna come to regret this. It's just for two weeks. In three weeks in. And the man himself is just not sensitive to those sorts of pressures at this point because there's no real public pushback, no real pushback in Congress. But once it starts coming, I think they'll look back on some of these choices with regret.
- [31:14]
Anna Bauer
Well, so how do you guys see this playing out either in the courts or with respect to members of Congress, kind of pushing back in a way that, at least right now, as we've mentioned, it seems like Republican members of Congress have not done so.
- [31:30]
Benjamin Wittes
I mean, look, ultimately there are two distinct issues here. One is the legality or illegality of the conduct, which is to say, as Scott points out, that can be litigated, that can be determined. And obviously it's a somewhat unfavorable environment to be suing the administration. But the courts are the courts. The administration is going to lose a lot of these cases in the long run and you know, then they'll win some. Right. So there's the stuff that you can resolve that way, but the larger policy issues you can't resolve that way. The larger policy issues depend for a successful resolution on Congress to care about its prerogatives. And if Congress doesn't care about its prerogatives, it doesn't really matter if USAID ceases to exist, which is what, or if it is simply denuded of all its capacity and is a shell of itself. And you know, the Ronald Reagan building is still standing and there's still a sign that says usaid, but there's no function functionality. Right. At the end of the day, if Congress wants there to be a foreign aid program, query whether it does, it has to actually fight for its, for that. And as Molly was saying, it has all the capacity in the world to do that, but it does have to want to. And so I do think, you know, the, some of this is resolvable in litigation, but some of it is fundamentally a set of political questions. And if nobody on the Republican side is prepared to fight for any of this stuff, then it will not happen, at least while there is Republican control over Congress.
- [33:31]
Molly Reynolds
Yeah, I mean, I guess two things that I would say. Generally, I think this will be resolved in some way when particularly Republican members of Congress start to feel the pain of what is happening. And maybe that's in six weeks when there's a showdown over whether to keep funding the government. Maybe it's when the sort of political controversy over this stuff starts to interfere with Republicans political capital for trying to pass a large tax cut bill, which is also not going great. But we've stopped talking about it because instead we're talking about all of this. And so I don't know when that point comes, and maybe it comes in sort of a tail risk catastrophe where something again goes horribly awry because they have let DOGE affiliated folks start to mess with Treasury's payment systems. And so I don't, I don't know when that happens. But I guess in some ways this is just restating what Ben's point in a different way is that some members of Congress, especially Republican ones, have to start to feel political pain. And I don't know that that has happened yet.
- [34:51]
Scott R. Anderson
I agree with all that, but I'll put forward just two near term, before midterm elections sort of pressure points where I think we might see a little bit of pushback. One is at least particularly around usaid, Internet foreign affairs stuff, the Senate Foreign Relations Committee, because it operates or is traditionally operated, maybe they'll ditch this, but there's no signs of it yet. On more of a consensus model than certain other committees of certain jurisdiction, there are ways that we can see even the minority try and do things there. So Brian Schatz has already said he's going to put a hold on nominees until this USAID situation is resolved. We don't know exactly how long that will hold, but we saw Republican senators implement holds for long, extended periods during the last Congress over a variety of issues. And we could see Democrats do a similar thing here. Who that puts pressure on, I don't know. It may hurt Marco Rubio, who may be allies, not quite right, but less on the problematic spectrum of this issue than others. So it's not clear 100%, but it is one point of leverage that the USAID case has. The other issues might not, because other committees, by my understanding, Molly, you know better than I do, don't, don't have minorities, don't have even that level of kind of leverage. The other point I'll say is particularly as we get close to the debt ceiling and as we have the Trump administration actually begin and the Republican Congress roll out a legislative agenda, their really narrow control is going to bite them. Like they are going to have to negotiate for things at some point if they want to get anything done in Congress, and particularly when you have a very calcitrant part of your own party that ultimately is not going to do things that as the governing party you probably are going to want to have to do, including raising the debt ceiling. And I have to think, as Molly mentioned at the top, that that pressure point is going to be a pressure point that's much more real moving forward in this Congress for the next two years. This is a moment where Trump is at his maximum powers because Congress isn't even operational yet. They're not even thinking about really meaningfully the Trump administration, I mean, their legislative agenda. This is still the early honeymoon period traditionally for new presidents, right early in the first hundred days. And it's fresh off an election where he seems to where people are framed as him of guiding a very popular mandate. And nobody's really criticizing that or questioning it critically. But that moment passes. And when the president starts to feel more pushed and realize that maybe he's at the height of his powers for the rest of his presidency, in fact, not for much longer, I do think he's going to feel more constrained in this domain. But maybe that's me being optimistic.
- [37:15]
Benjamin Wittes
I just want to say there's another thing that has to happen for him to slow down a little bit here, which is, as Joe Pesci says in My Cousin Vinnie, he needs a good ass kicking. And I think, you know, one piece of good news is that that seems to be happening in the courts. There's a temporary restraining order on one of the spending freezes. I can't imagine that the courts are going to look with favor on giving access to the Treasury Department systems to a bunch of 19 year old outsiders. And I think, you know, you have the shock and awe of the first few days of this first two weeks, but then 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? And you get a few of those. And that puts, I think is a big part of putting them in a more cooperative posture with respect to congressional discussions.
- [38:31]
Scott R. Anderson
Hey, folks, Scott R. Andersen here. Things are finally beginning to cool down here in Washington, D.C. there's a nip in the air. The days are getting shorter. Football is back on tv. All the signs are here. Autumn is coming. While the kids are sad to be back in school, it's a favorite season for those of us who are bearded, burly and sartorially inclined, as it's finally a chance to bring back the flannels, sweaters, denim and tweed we had to put away for the summer. But if you need a little help getting your closet ready for the season, don't sweat it. Quince has you covered. From new denim jeans to leather jackets to woolen sweaters, Quince has everything you need for cooler days ahead. And all of it is comfortable, classic and high quality. The types of items that will stay in rotation for years to come. The Mongolian cashmere sweaters, which go for an incredibly reasonable 60 bucks, are what got me into quints in the first place and a few are going to be back in my regular rotation this fall. I also picked up an Italian wool overshirt that's set to be my main light layer when things get nippy. An organic cotton long sleeve polo that's already begun to make its way back into my regular outfits. Plus, Quince is now offering more than just clothes. From houseware to luggage to rugs, Quince has tons of the everyday items you need. Personally, I'm thinking some flannel sheets may be just the thing to get before the temperatures really drop. And the best part is that by cutting out the middlemen, Quince offers all these high quality products at half of what they would cost you at other stores. Plus, Quince only works with factories that use safe, ethical and responsible manufacturing practices. So keep it classic and cool this fall with long lasting staples from quince go to quince.com security for free shipping on your order and 365 day returns. That's Q-U-I-N-C-E.com security to get free shipping and 365 day returns. Again, that's quint.com security. Now let's get back to the show.
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Molly Reynolds
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- [41:42]
Scott R. Anderson
Well, talking about some novel constitutional arguments being implicitly or expressly put forward by the Trump administration, we have another doozy that is in the works. Among President Trump's actions on day one of his new presidency was an executive order that really implements a dramatically new vision of what it means to be a citizen who can become a citizen of the United States in a way that really bucks what has been the long standing understanding of the Constitution and specifically the 14th amendment, and what it requires. The executive order in question. I'm going to read the formulation because I think it's wonky and weird enough, particularly in its different assignments of priorities to gender, that it warrants specifically looking at the actual language. Or folks haven't had the opportunity yet who essentially says it is the policy of the United States to neither issue documents recognizing citizenship or accept documents recognizing citizenship to people who either one, when that person's mother was unlawfully present in the United States and the person's father was not a United States citizen or lawful permanent resident at the time of said person's birth or two, when that person's mother's presence in the United States was lawful but temporary and the person's father was not a United States citizen or lawful permanent resident at the time of said person's birth.
- [42:55]
Molly Reynolds
Birth.
- [42:55]
Scott R. Anderson
This really basically limiting citizenship to people who are born in the United States and who are the children of lawful permanent residents and or American citizens born in the United States. Abandoning the idea of birthright citizenship as we know it. Or you, Soli. That has been a definitional aspect of American citizenship for a century. Anna, you've been following the story really closely. Talk to us a little bit about how we've seen this executive order play out so far in the courts. And it's worth noting it actually doesn't formally get implemented until 30 days after the issuance. So it'll be February 19th by the time it actually gets implemented. But we're actually already seeing some litigation over it, so talk to us about that.
- [43:35]
Anna Bauer
Yeah, so almost immediately we saw a variety of different organizations, including advocacy groups on behalf of immigrants rights, but also state attorney general's office that filed litigation over this. At this point, I believe I've lost track of exactly how many cases have been filed over it, but initially there were at least six suits that were filed in a variety of states. The first judge to hold a hearing on the matter was in Washington State. In that case, it was a number of attorneys general that brought a case challenging this executive order. They sought a temporary restraining order. And then of course, the Judge now will eventually hold a preliminary injunction hearing. But at that temporary restraining order hearing, the judge was very critical of the government attorneys who were arguing that, no, in fact, the 14th Amendment, despite decades of case law to the contrary, does not cover people who are not permanent lawful residents. And the judge at one point even said something to the effect of, of I find it hard to see how a member of the bar can, you know, honestly make that argument. And so the judge did put a 14 day temporary restraining order prohibiting the order from taking effect. Of course, it wasn't set to go into effect, as you mentioned, Scott, until 30 days after the order was issued anyway. But this now is kind of maintaining the status quo. The judge is set in Washington to have a hearing on the preliminary injunction phase on the 6th in Washington tomorrow though, there is another hearing in the Maryland case on a tro. There's a number of other hearings that are set at different levels of either injunction or TRO. I believe in New Hampshire it's on the 10th. So we have a lot of movement in these cases.
- [45:38]
Molly Reynolds
Cases.
- [45:38]
Anna Bauer
Things are developing very quickly. But as it stands, that Washington state temporary restraining order remains and the judge will hold a hearing on the next phase in two days time.
- [45:52]
Scott R. Anderson
So it's still early in this litigation, but we're beginning to see a lot of churn over this issue, frankly. We have kind of in the legal academy for the last few years, this has been a little bit, there's been an argument out there for 40 years now about the idea that the 14th Amendment's language, subject to the jurisdiction, jurisdiction thereof, the one carve out from anybody who's born in the United States citizen, has a broader meeting that can reach and should reach people who are not here lawfully or pursuant to you, consistent with US Laws. Although it's worth noting, the executive order actually goes even further than that, of course, because it only addresses LPRs. It doesn't address other people who might not be LPRs but are lawfully present in the United States, that even that narrow read of the 14th Amendment would seem to guarantee citizenship. So what are we seeing people make of this argument, Anna? I'd be kind of curious. And what do you make of it? Like, what do you see are the strengths and the weaknesses and how do you see it playing out in the courts?
- [46:45]
Anna Bauer
Yeah, so it's actually been somewhat surprising to see how quickly there seems to be a, I wouldn't say consensus, but there is a developing consensus amongst Republicans that, oh, this executive order has the law. Right. And this case law from 1898, in which the Supreme Court seemed to say, yes, anyone who is born on American soil, regardless of whether they are the son or daughter of American citizens, is an American citizen. And people seem to be now interpreting that case as though. Though it can be distinguished. The reason being both in the government's brief and the way that Republican congressmen and people who are supportive of this idea, the way that they have distinguished it is by saying that, oh, well, in Wong Kim Ark, the parents were lawful permanent residents. They were domiciled in California. And so that that doesn't cover a situation in which someone who is not a lawful permanent resident, maybe someone who is here, you know, on a student visa. One of the litigants in one of these cases that I was just discussing is someone who is here under temporary protected status. And so even though that person is here lawfully, they are not a citizen. They are not what is now referred to as a lawful permanent right. And so there's this idea that Wong Kim Ark, this very long standing Supreme Court precedent, can be distinguished in some way. You've also seen a number of originalist scholars who have come out and said, oh, well, there has been much debate over this issue for many, many years, and it's a genuinely contested question. In fact, as far as I can tell, there really has been one scholarly book on it in the 80s that was really advocating for this position that birthright citizenship is not protected by the 14th Amendment in the way that it's been interpreted. There are a few scholarly articles that have been published in recent years, some of them being from more partisan publications like the Heritage Foundation. So you do have some debate that has existed for a while, but it's certainly not this kind of long standing contested issue that some original scholars have now come out and said that it is. And so I find that very interesting that there's really this kind of been an overwhelming consensus amongst academics and amongst amongst courts for decades and decades since Wong Kim Arc. And then now there's kind of this revisionist history that's ongoing about exactly what the history and meaning of the 14th amendment is. I think that some people have compared it to the way that the debate changed around the interpretation of the Second Amendment. But the point is, I think that 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, because it seems to clearly be the case that that is not what the 14th Amendment means, and that is not how Courts are, have interpreted it. But Scott, maybe you can talk a little bit more about the history, because I think that a lot of this goes back to English common law and this concept of, of basically, you know, when someone is born on soil and they're of the soil of a sovereign and they're under the protection of the sovereign. I mean, what did that mean at common law? And then, you know, how was it interpreted when the 14th Amendment amendment was enacted?
- [51:03]
Scott R. Anderson
Yeah, it is a tricky question. I mean, the interpretation of subject to the jurisdiction thereof. And I should note our friend and occasional guest on national security, Michelle Parody, wrote a great piece for us on this almost 10 years ago in Lawfare, talking about the national security dimension of birthright citizenship. I think that's the title or something to that approximation. But he does a great job pulling this history together. But the way people have traditionally interpreted it, and that includes the Office of Legal Counsel and the Executive Branch, is that it really is importing concepts from the 19th century that are themselves common law concepts informed by English common law, by international law, by a lot of other practice. And that's how we've arrived at what Supreme Court and won Kim arc carved out as kind of three fairly narrow exceptions for diplomats and for occupying soldiers. And we saw that also expanded by Supreme Court later to include Native American communities that were seen as national, not subject to the jurisdiction of the United States and therefore excluded from this. That is the way it's been interpreted for a long time. I will say the thing that makes me nervous for this sort of issue from a constitutional perspective, although I think there are other outs, is that if you don't care about settled law, if you are willing to be disruptive and say, you know, stare decisis really doesn't matter, and there are people in this court willing to do that. And, and the court as a whole has drifted in a direction much more tolerant of that than it was five or 10 years ago, particularly 10 years ago. You can see the pieces coming together about how you can reach an alternative interpretation. Common law, international law are, and this is the criticism of them often from folks on the right, including Justice Scavagi, who is a judge on the D.C. circuit and kind of a famous series of opinions. They're flexible, a little bit open ended concepts. They're not hard statutory law. And so you can read into them in certain ways in historical practice. And all these precedents at the time were in an era before you really had the concept of regulation, of immigration. It just wasn't something that was done in the middle of the 19th century. And so how does that lay on top of this concept? I don't find those arguments particularly persuasive, but I also haven't done the deep dive in a 19th century legal understandings to have a first person confident 100% that I don't buy this. But this strikes me the exact reason why we have stare decisis so that when we get these fundamental issues resolved, we have stability in the law. And upsetting them should come at a very high cost. But I think when you get rid of that, you can see the threat that if somebody were really determined to, they could put together what some people will see as a credible alternative interpretation that reaches a different policy outcome. Ben Homaly, what are your thoughts on this? Am I being too fearful, too pessimistic about this, or is there something here?
- [53:42]
Benjamin Wittes
So I have shared your sense, as the entire academy has, you know, insisted that this is a 9, 0 Supreme Court decision, that it's not a 9, 0 Supreme Court decision. And there's two reasons for that beyond simple policy preferences on the part of the justices. One is that I do think there is some 19th century history that suggests that our common sense, modern meaning of the word jurisdiction may not have been quite what the drafters of the 14th Amendment were talking about. And the second is that the court has no interest in stare decisis when it's, you know, when there's original understanding that they believe goes in a different direction. And so I am a little bit nervous about it. That said, I would also say that unlike the second Amendment, where the plain text of the amendment seems to favor, you know, it seems to mean you're allowed to have a gun. Right? Just on, on its, on its face here, it seems to mean if you're born in the United States, you're to allowed citizen unless you're not subject to the jurisdiction of the United States, which clearly includes at the time a Native American. But it's not clear to me I had always understood subject to the jurisdiction thereof as sort of excluding ambassadors, kids or, you know, invading armies, you know, the mobs of Canadians who came over to burn down the White House if they had kids, those kids, you know, not. This was before the 14th amendment. Of course, to me, the question hinges almost entirely on does the word jurisdiction mean what it means in common sense dialogue, which is if you commit a crime, can you be arrested? If some. Can you be sued? Right. Can the government issue you a parking ticket? Right. These are, these are normally what we in a Modern sense would mean when we say subject to the jurisdiction thereof. And in that sense, obviously the children of undocumented migrants and for that matter, lawful permanent residents are subject to the jurisdiction of the United States. And so my question, and I'll throw it back at you, Scott, is is there any reason to think that the mid late 19th century usage of the term subject to the jurisdiction thereof would be any different from the modern usage?
- [56:40]
Scott R. Anderson
No. I mean, I think our modern usage is tagged to an understanding of that interpretation at the time. Like that's what Walter Dellinger certainly in his OLC opinion in 1995, sort of pegged it to. But, you know, could you, could you tie it alternative thread if you were determined to do so? That, I think, is the bigger concern. And are the pieces there you can do it. And the part that's particularly troubling is, in my mind is that so many of the precedents we have don't squarely fit this situation, that if you want to interpret around them, like Wong Kim Ark, the definitional case here is the case of the child of foreign nationals. But those foreign nationals were property owners, longtime residents of the United States. There were something closer to what you would consider an LPR today, at least based on my reading of the case. Maybe there's some more history there I'm not not familiar with. So you can see points that people could use to distinguish it. I don't buy those distinctions. I'm a stare decisis guy through and through, but it makes me nervous. They're out there. I will say the one thing that gives me a little bit of solace is that I don't think the Supreme Court wants to decide this, even if they could be forced to do it. I certainly don't think if maybe Chief Justice Roberts or Justice Kavanaugh might be willing to entertain a more radical reinterpretation of this. This I don't think they're eager to get there necessarily if they're not forced to do it. And there actually is an out here that's not easy for the administration to get around, which is that citizenship actually isn't provided directly by the 14th amendment. It's provided by statute, where the Immigration Nationality act directly imported the language of the 14th Amendment, but it did this so in 1952. So I think if you're going to interpret that statute, you got to interpret what the Congress meant by it in 1952, not what the 14th amendment said in the middle of the 19th century. And my suspicion is that in 1952 they thought one Kmart applied. Looking at the legislative history, there is something I actually am interested in doing and want to poke around and see if there's more about what Congress intended when they enacted the statutory bar. And that's a lot more comfortable solution I suspect this court to reach, which is that maybe there's an issue here, but you have to get Congress to change the rules. The president can't just issue an edict to do it. That's just an odd way to go about reconsidering a foundational constitutional precedent. Molly, this comes us to Congress, which is something we should pull in here for a little bit here. Congress has a role in this. Congress legislates citizenship rules. It can expand and build on the floor set by the 14th amendment. And does tons of Americans get their citizenship by virtue of statute, not by constitutional edict? Is there space or appetite for constitutional action here, or does it seem like a majority of Republicans in both chambers are on board enough with testing this kind of foundational concept?
- [59:18]
Molly Reynolds
Yeah, I'm generally dispositionally skeptical there's an appetite in Congress for acting on matters of constitutional amendment generally. But I think the thing that I think for me will be important to watch with this as a political issue is that in part because we are in this sort of initial two weeks kind of flood the zone moment of the administration, this got a lot of attention when it happened on day one or day two. And then it has been supplanted in sort of the national attention by any number of other things that have happened since then. But eventually like this will come back to be the big story. And I imagine that many Americans have not really internalized how big a deal this would be. And one thing that we saw in the first Trump administration and then in the Biden administration, I sort of expect we'll see in the second Trump administration is that public attitudes towards immigration and towards sort of harshness towards immigrants are very thermostatic. So in the first Trump term, we saw a sort of very like pro immigrant turn in public sentiment. In the Biden administration, we saw a very anti immigrant turn in public sentiment. And then it will be worth watching sort of whether that dynamic continues and the way to which this very aggressive proposed change, a foundational feature of our immigration system, which I would say birthright citizenship, is how that might accelerate or interact with, I think, what we should expect in broader public opinion trends. And so, yes, immigration messaging and anti immigrant messaging was a huge part of what we saw in the 2024 election. But I don't necessarily expect that sort of be durable. And so I think sort of paying attention to this going forward will be well.
- [61:12]
Scott R. Anderson
For our third topic, let us shift our focus from the 19th century back to the present day. We have seen a dramatic couple of weeks for the Justice Department. We have seen prosecutors who worked on the Special Counsel investigation terminated by the Justice Department, not just put on ministry leave, but terminated. We've seen senior leadership throughout the Justice Department reassigned to odd tasks, including sanctuary city task force forces that many believe are designed to encourage them to resign. And we have seen perhaps most notably, most recently, reports of efforts to collect the names of FBI agents also involved in January 6th cases, presumably for some sort of potential retribution. There's a pushback actively ongoing by FBI leadership, including Acting Director Diskell, that we mentioned in the introduction. Notably, it's worth noting, I think the reporting came out this morning. The FBI did ultimately conclude in consultation with their general counsel office, they did have to provide the names requested. So they have handed them over. But there's more developments happening even as we're recording. Ben, get us up to speed a little bit on what we know is happening so far, and let's talk about where we are. And what do you find concerning and surprising and not surprising about what's happened so far in the space?
- [62:26]
Benjamin Wittes
All right, so what is concerning is all of it. I mean, you have a very systematic effort at both the Justice Department and the FBI to punish the group of people which, in the case of the FBI, in the case of the Justice Department, it's a discrete number of lawyers who prosecuted these cases. In the cases, in the case of the Justice Department, it is the FBI. This is the largest investigation in American history. It accounts for some enormous percentage of all FBI agents. And so it really becomes, if you're serious about you're collecting data on the entire workforce, you're potentially punishing. You know, the estimates vary, but it's thousands and thousands of agents and analysts. And so, you know, what's disturbing about it is that you're not supposed to run a civil service according to who the president trusts, because in the last administration, they enforce the law. And so, you know, I, I think it's as it's a five alarm fire. And the good news is that the FBI is responding to it as a five alarm fire in a way, interestingly, that the Justice Justice Department is not. And I think that has a lot to do with the fact that there are many fewer political appointments at the justice, at the FBI than there are at the Justice Department, which is to say Right now there are none because the only one was Chris Wray and the President removed him. And so you have a agency that has a very, very strong organizational culture and a very strong sense of what it is and isn't allowed to do. And this is a culture that's really 50 years in the making. This is the post Watergate FBI that knows that the administration is collecting on its agents to discipline people for political loyalty reasons. And it instinctively, you know, connects that with its own rule of law culture vis a vis outsiders and what it is and is and isn't allowed to do. And so it responds, you know, with amazing passive aggression, which is to say you don't have, I believe you now have some agents who are filed a class action lawsuit. But until like literally 15 minutes ago, it was not a, it was not a public thing. This is just agents refusing to fill out this questionnaire and management refusing to compel them to. And this goes all the way from the street agents to the acting director who sent out an email which he must have known was going to get leaked unless he's very naive that said basically this accounts for thousands of agents. And by the way, I and the deputy director are both among them who have participated in this investigation. And so, yeah, NBC reported last night that somebody at the FBI did in fact turn this over, this material over. But it's really important to distinguish that they could have gotten this material themselves to begin with. Right? There's, they could go into the, it's called the, the system is called Sentinel. And you know, who did what in which case file. Right, you, you could figure this out. The relevant point here is not that the White House has the information or the Justice Department has the information. The relevant point is that the FBI rank and file appears to have refused to, to self report and report on each other. Somebody at the bureau did, seems to have collected the material. But I actually don't think that really changes the underlying dynamic, which is that the, the administration has, you know, is now faced with a choice. Do they discipline very large numbers of agents for refusing to give them this information or do they discipline the agents who participated in this investigation or do they back down? And then of course the secondary question is how does any of this affect, if at all, Kash Patel's nomination to run the agency. So it's a very fluid situation. It's a very dangerous situation. Unlike USAID and the Department of Education. These are the guys who carry guns and they have a rest power. And so, you know, there's a, this isn't simply whether we're funding overseas activity that we believe in and should be right. It's, it's a, it's about the interaction of U.S. citizens and their government. The good news is that if you had to imagine how a rule of law law enforcement agency would respond to such a thing, it would look very similar to the way the FBI has, has responded so far.
- [67:59]
Anna Bauer
Ben, I am curious how, how do you think that this could affect Patel's nomination? And, and Molly, if you have thoughts as well.
- [68:07]
Benjamin Wittes
Well, in a reasonable world, it would be the end of Patel's nomination. Patel was asked last week whether this sort of thing was going to happen. And he said absolutely not. And, you know, he said there would be no mass discipline under him and there would be every disciplinary action would happen with appropriate process. And whether he didn't know that this was already underway or whether he was lying, I'm really not sure. But in a, in no reasonable world would this not cause a senator to have second thoughts about putting a political apparatchik with a history of untruth, truthfulness in charge of this agency. That said, the signals today are very dismaying on this front. Republicans are, as Molly noted earlier, lining up for RFK Jr. And for Tulsi Gabbard. And I have not seen anybody say publicly, actually this, I was going to support Cash Patel, but that, you know, what we really need is a stable institutional figure to manage the bureau under these circumstances. And so I don't see any sign that it has affected Patel's nomination yet. I will say it certainly should.
- [69:38]
Molly Reynolds
Yeah, I would agree with all of that. And I think that when we think about the Patel nomination, first of all, I think it's worth noting at the outset that, like, the salience of the nomination to be the FBI director, like, that's quite notable. This is obviously like we have had when Trump fired Comey and all that kind of stuff. Like, this has been a, this has become a politically salient issue. But in sort of, to use Ben's term, a rational world, there would not necessarily be a big political fight about who the FBI director was going to be because the kind of person nominated to be the FBI director would not be the kind of person who attracted political attention. The other thing I'll say is that I think we should think about the Patel nomination as kind of the culmination of a long sort of politicization of the FBI by the right. So we've talked, I think, in different contexts before about the degree to which sort of the FBI has come to be portrayed as like the deep state by right wing Republicans. I know Ben and I have talked about this in the context of the reauthorization of 702 and the idea that these people are now seen by some on the right as the deep state, a thing to be disliked and rooted out. And that itself is again, a pretty remarkable political development if you think about the history of the FBI and federal law enforcement. And so I think when we think about Patel, and I agree that it doesn't, there doesn't seem to be the willingness by any Republican senators as of yet to come out against him. I think we should just think about it as like this is the culmination of a broader reorientation of our political attention in regards to the FBI director and kind of what that means about orientation towards federal law enforcement activities more generally.
- [71:36]
Scott R. Anderson
Well, folks, that brings us to the end of our time together today. But this would not be rational security if we did not leave you with some, some object lessons to ponder over in the week to come until we are back in your podcatchers. Molly, what do you have for us this week? I hope it's a local NPR affiliate.
- [71:50]
Molly Reynolds
It is a local NPR affiliate podcast. Guys, there's a lot going on. There's a lot changing in the world. But for medium to long term rat sec listeners who know my love of locally produced public radio podcasts, I am back with another recommendation. This is actually from the same team that produced one of my previous recommendations. It is a podcast called Scratch and Win, which is from the folks at WGBH radio in Boston is about the history of the Massachusetts Lottery which turns out in Massachusetts like huge outlier in terms of the frequency with which people buy scratch off tickets. All kinds of super interesting things including like the cultural, religious history of the commonwealth wealth of Massachusetts and its relationship to the lottery. I have listened to the first two episodes. It is great and I recommend it.
- [72:40]
Benjamin Wittes
Highly to the MIT kids who hacked it feature in it.
- [72:43]
Molly Reynolds
Yes to the to the like development of the actual technology of scratch off tickets. It's all, it's all there. It is a delight.
- [72:52]
Benjamin Wittes
I'm totally listening to that. That's that lottery hack is one of my favorite in modern hacking history.
- [73:01]
Scott R. Anderson
Amazing. Another wonderful recommendation in the local NPR affiliate industry who should be paying you, but I don't think they have the budget for promoting these podcasts. Ben, what do you bring to us for your object lesson this week?
- [73:14]
Benjamin Wittes
So I would like to just share one of the amazing memes that has been Going around about the acting FBI director. Brian Driscoll, as y' all may know, was named acting FBI director by accident. Chris Wray quit and the Trump transition just named him. And it appears to have been a clerical error. And so they named this guy who had been literally special Agent in charge in Newark for less than a week, and he becomes acting FBI director. And then they realize that they'd made a mistake. But it's embarrassing to name the wrong guy the head of the FBI. So they just didn't fix it. And so he shows up and he does not, let's just say, look the part. You know, most FBI agents got the crew cut and he looks like his.
- [74:16]
Scott R. Anderson
Name is Inigo Montoya and we should prepare to die.
- [74:18]
Benjamin Wittes
Exactly. He really does look like that. And let's also note that his nickname in the FBI is depending on who you talk to, either Drizz or the Driz. And so now there is an awesome meme going around bureau circles which just has him and it says, wwd, what would Drizz do? And that is my object lesson for you. And a shout out to Brian Driscoll, who is actually doing an honorable job in. In a really bad situation. And this is why it's important, guys, that career officials don't resign. Career officials, hang on. Do your jobs, do them well and maybe you'll accidentally be running your agency. And when you do, you can do some good. Stick with it, people.
- [75:24]
Scott R. Anderson
Well, Ben, that is a shockingly, shockingly prescient anticipation of my object lesson. Because my object lesson. I wanted to share a post that I read on a particular sub stack. This is Matthew Iglesia. I've never actually had to say his last name out loud. I think I'm saying it right. Matthew Iglesias. Substack Slow, boring. Which is always a good read. I feel like I agree with it half the time, maybe slightly more than half the time. Sometimes I really disagree with it. But I think Matt is somebody who serves out so many hot takes that some of them are inherently a little undercooked. And so it's just going to happen when you're serving them at that speed. But this is a great piece. This is a piece that I thought about writing and just haven't had time to and now he's beat me me to it and I don't think I could do a better job. It's entitled Civil Servants Shouldn't Quit Their Jobs and talks about how civil servants should be approaching and thinking about public service in the context of the current moment, where there's so much pressure on them. It's hard to talk about that when you're not a civil servant. I'm a former civil servant, but I've not been in the position that many of my former friends and colleagues are. It is admittedly personal decision that I don't think anybody should be judged for about how they approach difficult moments when you're under the sort of pressure and kind of onslaught of a slander that you're currently undergoing, particularly in certain agencies. But you do really important work and people should support you in continuing to do your really important work, even in the hardest of circumstances. And we need to celebrate the people who stick it out and do their job well. And that includes helping the Trump administration implement its policy agenda within the confines of the law, which is their prerogative. That confines of the law part, though, is important, and doing it well and effectively is important because good governance matters, even if you don't have good governors. So for that, I'm going to endorse Matt's piece. I think it's absolutely phenomenal. I strongly encourage folks to read it it and spread it around and follow his advice with that. Anna, let me turn to you to close us out. What do you bring to us this week?
- [77:13]
Anna Bauer
All right. I was stuck between two things, but I guess I'm going to go with, since we're talking about work, I'm going to go with this TV show that is about people at work called Severance, which is on Apple tv. Plus. It's a really good show. The first or the first season was great and then several years passed and they just came out or started coming out with episodes on the second season. It is about a group of people who work at this kind of mega corporation that seems to be based on Amazon or Apple. And they have their outside personalities that are, that they have kind of of when they're off work that's called their outie. And then whenever they go into work, they lose all memory of their, you know, life outside their personality, all of that. And they just are have their memories of being at work. And I think that the idea is that it makes them more productive because they're not bringing, you know, any of their, you know, personal stuff, stuff from the outside world into the.
- [78:26]
Benjamin Wittes
How do they know to go to work?
- [78:28]
Anna Bauer
Their Audi agreed to this process called Severance, which is where you have an innie.
- [78:35]
Benjamin Wittes
They're aware that. And. And none of this is a reference to belly buttons.
- [78:40]
Scott R. Anderson
No, it's a funnier. If you imagine that's the case.
- [78:44]
Benjamin Wittes
Yeah, because I, I just want to say this whole thing has a belly button vibe to me.
- [78:48]
Anna Bauer
No, it's they, they like explicitly agree their Audi agreed to do this severance process where they know that when they go into work they're not going to know anything about what they do at work. And, and you think that it has to do with productivity, but then you kind of slowly learn that there's a larger mystery around why it is that the corporation wants them to be not remember things about what's happening at work. And it's all very kind of, of dystopian and interesting and I still don't really know what exactly is going on, but it's a good show and I highly recommend it. So yeah, it has nothing to do with belly buttons.
- [79:29]
Scott R. Anderson
Doesn't it make you, can you imagine what this technology would operate like in the moment of like the Doge, where people are hauling sofas into OPM and camping out and celebrating that civil servants aren't there on weekends begins to oppose them.
- [79:41]
Benjamin Wittes
I just want to say, if the words in Ian Audi are spoken frequently, it inherently has to do with belly buttons, even if you claim it doesn't.
- [79:52]
Scott R. Anderson
Fair enough, fair enough. Well, folks, that brings us to the end of this week's episode. But Rational Security is of course a production of Lawfare, so be sure to Visit us@lawfaremedia.org for our show page with links to past episodes, for our written work and the written work of other Lawfare contributors, and for information on Lawful Fair's other phenomenal podcast series. While you're at it, be sure to follow Lawfair on social media wherever you may socialize your media. Be sure to leave a rating or review wherever you might be listening and sign up to become a material supporter of Lawfare on Patreon for an ad free version of this podcast and other special benefits. For more information, visit lawfaremedia.org support our audio engineer and producer this week was Noam Osband of Go Rodeo and her music, as always, was performed by Sophia Yan. We are once again edited by the wonderful, wonderful Jen Patcha. On behalf of my guests Ben, Molly and Anna, I am Scott R. Anderson. We will talk to you next week. Until then, goodbye.
- [80:48]
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Molly Reynolds
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