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- [00:00]
A
Only Boost Mobile.
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B
Boost Mobile will give you a free year of service.
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A
Free year when you buy a new 5G phone.
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C
New 5G phone?
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B
Enough.
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A
But I'm your hype man. When you purchase an eligible device, you get $25 off every month for 12 months with credits totaling one year of free service. Taxes extra for the device and service plan online only.
- [00:18]
C
You know, I have to say, for January 21, 2025, you both look moderately well rested. Like maybe we slept a little bit last night, which is not entirely what I was.
- [00:32]
D
You know, I am committed to doing it differently this time. I told everybody at 9 o' clock last night, stop working. Everything else can wait till tomorrow morning. Tonight I'm taking Catherine Pompilio, our esteemed associate editor, out for dinner. And then I'm gonna do some grocery shopping and drive to my cabin in the woods. I'm committed, Scott. I'm not going to let this fucking thing run my life this time.
- [01:02]
C
Where presumably you're going to lock yourself in that cabin and defend it to the death for the next several years. How several people welcome the Biden administration.
- [01:11]
D
Shotguns and long guns. I'm ready, Quinta.
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C
How did you choose to welcome our new overlords in the last day or so?
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B
I mean, I'm glad that I look well rested because I don't feel it. The last few days I've woken up and my jaw has been so tight that it's like painful. You know, like when your muscles are so tense that you actually can't get them to relax properly. That's where I'm at currently.
- [01:39]
C
Well, hopefully that doesn't last all four years, but we will see. But it's possible. It's possible.
- [01:45]
B
Let's see what my dentist thinks. The last time around, I think in like 2017, I went to the dentist and they looked at my teeth and they said, do you have a stressful job?
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C
I actually, I had a very bad. What's it called? Something tendonitis. A T, J, I think it is when I was in Iraq because we were living through some very intense security situations. And it had me very stressed out and not sleeping very well. And I went to the doctor and they said to try and get a mouth guard, which unfortunately I failed at. And then finally the nurse was like, hey, have you ever tried this meditation exercise? And I almost like yelled at her angrily, being like, no, I'm in too much pain. Meditation? That's nonsense. I don't need your hippie dippy crystal bullsh. And I have to say, I tried it that night and it was amazing. And it, like, within 24, 48 hours, kind of like relaxed and let it through. So maybe we'll make that my object lesson.
- [02:36]
D
We don't need hippy, dippy bullshit. We're in pain here.
- [02:40]
C
Look, crystals may be the only way we get through these things. Hello, everyone, and welcome back to Rational Security, the show where we invite you to join members of the Lawfare team as we try to make sense of the week's big, big national security news. And my goodness, what a week it has been. And it is only Tuesday. We, of course, are here on January 21, 2025, the day after the inauguration of Donald Trump as president for the second time. And it has been a raucous couple of days. We have executive orders, we have decisions regarding major social media platforms, we have pardons, and we have a ceasefire in the Middle East. Lots of things for us to talk about. I'm thrilled to have a set of experienced hands here to help me make sense of things happening in the news. Of course, we have the most experienced set of hands at all. Ed Lawfare, Lawfair founder and editor in chief, Benjamin Whittis. Yo. Show us your grizzled hands. Let's see how that. Let's see how they're doing. There you go. Exactly. Gnarled as ever. Thrilled to have them on board. And of course, my co host emeritus, Quinta Jurassic Quinta. Thank you for joining us.
- [03:50]
B
Happy to be here.
- [03:51]
C
Hands not as grizzled, but no less experienced. We're in spite of it.
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B
They're pretty fucking grizzled, man. I've been here since the beginning, since the beginning of the Trump era.
- [04:02]
C
Well, we may have yet a little more mileage to get out of those hands, so let's not jump the gun too much. And we'll be joined by another special guest for at least one of our segments a little further down the line as we dig through the week's big national security news stories, including our. Our first topic for today, executive disorder. America's once and future president Donald Trump hit the ground running yesterday, issuing dozens of executive actions on his first afternoon in office, from once again withdrawing from the Paris climate agreement to pardoning or commuting the sentences for almost everyone involved in the January 6th insurrection. But which actions are important and which are just for show? And what do they tell us about what to expect from a second Trump presidency? Topic two, swiping up on consistency. Supreme Court's decision to uphold the law banning TikTok triggered an unexpected crisis last week as TikTok users who suddenly realized the platform was in danger seemed to have mounted a pressure campaign against elected officials that led several, including President Biden, to waffle on the desirability of the ban in the first place. But incoming President Donald Trump, who once tried to ban TikTok himself, jumped in with an order temporarily delaying the ban, a move that TikTok thanked him for by name and in a notice on the platform after service was restored. What explains the sudden about face among supporters of the TikTok ban, and what will its ramifications be down the road? And finally, Topic 3 Cease and assist after more than a year of brutal hostilities, the parties have finally agreed to a ceasefire in the conflict over Gaza. But as Israeli hostages are gradually let free, humanitarian assistance resumes, and displaced Gazans return to their devastated neighborhoods, real questions remain, including is this just a pause or an end to the conflict? And what comes next in Gaza either. So to get into our first topic, we have had an incredibly busy 24 hours or so, really less than 24 hours, maybe more like 12 hours at this point, as yesterday, in the Evening hours around 8 or 9 o', clock, we began to finally see the text of all of these executive actions that were promised and have been promised for a week or more by the incoming Trump administration. Executive orders on foreign policy priorities, executive orders on tariffs, on immigration, lots and lots on immigration pardon actions, executive orders on all sorts of measures, some substantive, some less than substantive, a few of which were really only a few sentences long. But it's an absolute flurry of executive action on day one. Quinta, let me turn to you first to get kind of your broad view, because I suspect you've read most, if not all of these at this point, as I have, as many of us have, following the office slack, as we've been passing back and forth those that are particularly up the lawfare alley. Talk to us about what you're seeing so far, what really jumps out at you as the most notable things that are of concern and what aren't, and maybe what is the kind of macro strategy? What's driving this particular pattern of action from the Trump administration?
- [06:57]
B
I should start by saying I definitely have not read all of the EOs, and a lot of them are sort of a lot of rhetoric and not very much substance. The ones that I have read. It's sort of rhetoric, rhetoric, rhetoric, rhetoric, American greatness. Trump is the best and the secretary of whatever is directed to produce a report on the feasibility of something to be delivered to the President in 90 days period. So I think it's certainly a strategy that seems designed to look a lot more impressive than it is. I've definitely seen press coverage framing it as, you know, it's being decisive. It's shock and awe. Color me not particularly shocked or awed. There's certainly, there's a lot of really noxious stuff in here. I think the pardons are really exhibit A on that front. And certainly in the immigration space, there's a lot that is concerning. But overall, I would say I am not impressed by the quality of the work here. And what I mean by that is in the first Trump administration, there were a lot of executive orders that came out, particularly at the beginning of Trump's term, that were clearly not reviewed by that many lawyers, let's put it that way. The travel ban is a good example. It was legally, it was a complete disaster. There wasn't even a severability clause. And there has been a lot of conversation among people in D.C. among reporters, about how this time around, Trump and co would be more prepared that they had had four years to put things together, that they had all these executive orders drafted as part of Project 2025, and that we wouldn't have that same level of sort of chaos and incompetence this time around. And I was not totally sure what to make of that. I thought that there was probably a fair amount to it, but that it's also true that Trump as an individual is just sort of inherently erratic and chaotic in his style of governing, and that there was kind of an irreducible core of that. But this batch of executive orders are really, maybe they're not quite as bad as the first batch that we saw in January 2017, but you don't read them and think, wow, some really sharp legal minds took a crack at this one. And some of that is just the sort of sloppy rhetoric. The best example, probably, that I am familiar with is the Birthright Citizenship executive order, which is shoddy in about 15 different directions. And it was always going to be shoddy, but they could have limited that shoddiness, and they chose not to, and instead to do it in a way that sort of magnifies it. And so I come away from this really thinking that the idea of, like, leaner, meaner Trump 2.0 that knew how to dot the I's and cross the T's, doesn't appear to have materialized yet. That's not to say perhaps it will materialize at some point, but if this is what the Heritage foundation was cooking up for the last four years. Color me unimpressed.
- [10:13]
C
Ben, what's your take on this? I'd be kind of curious. I have up to this point, kind of co signed. I think Quinta's take on this about the likelihood of this Trump administration being a leaner and meaner machine than the last time, because so much of the things that occasionally became an obstacle to them pursuing their own agenda last time was about the man himself and the fact that he manages a very broad ideological and not always consistent ideological camp and is mercurial about resolving disputes between them. So I guess the question for you is, do you buy this view that this is maybe these executive orders reflect a little bit of that chaos, or is there something a little more calculated and effective going on here?
- [10:56]
D
So I would divide the executive orders into three categories.
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C
This is my favorite. Ben. Witticism, by the way, is the three categories. Nobody does three categories better than Ben. I miss it on the podcast.
- [11:08]
D
One is the category that is designed to actually do something. For example, the pardons genuinely do something. A whole lot of people are not in prison today or are not facing indictment today who were yesterday morning. And, you know, that's a real effect that really happened. There are some others that, you know, the immigration executive orders actually change policy on a bunch of things. Right. The second one is ones that are supposed to say something. They're not actually supposed to do anything. But as, as Quinta said, you know, national greatness, make America great again, blah, blah, blah, the Secretary of so and shall do such and such national greatness, blah, blah, blah. And that is the majority of them. And some of those veer into substance, for example, by saying that the secretary of so and so shall produce a report on X. Now, X can therefore be a highly substantive report, or it can be a three paragraph. The president is right. National greatness, blah, blah, blah. Signed secretary so and so. But that actually is an act of deference to the secretary in question. Right. It basically translates to, here's an order to tell me what to do about X. It sounds like it's coming from the White House. It's not actually coming from the White House. It's actually a delegation of authority. The third are the ones. And the best example of this that I've seen is the Birthright citizenship Order that does something huge, if real. There's this little problem in the case of the Birthright citizenship Order that the Constitution seems to require a different outcome by its plaintext. You can imagine this as a kind of moonshot that Five justices will read the Constitution in a completely atext textual fashion. And if they do, then it is a hugely consequential document. If they don't, then it's absolutely meaningless and trivial. And so I think almost all the documents fall pretty comfortably into one of those three categories. And I would say the right way to intellectually triage them is to focus on the ones that really do something. So I spent the day on the pardons, which one. Because a whole lot of people aren't in prison right now who in my judgment, really should be, and make your way down the chain of actual impact to the ones that are merely hortatory.
- [14:04]
C
So I agree with that. I think that's a really useful framework. But there's one part of these executive actions that I've thought about them that does jump out at me as a little different this time, although I'm not sure it's inconsistent with, with kind of like some of these priors, assumptions about how some of the decision making is done in the administration. And that's that there is foundationally, it strikes me as a little bit more of a maybe it's intellectual ambition to some extent in terms of like how to conceive of the role of the presidency. Because in a number of these executive orders, I'm seeing underlying a lot of them is a very express on its face, articulated usually in the preamble of the executive order, like new constitutional vision or advancing a new constitutional view. So the biggest one that really does it quite expressly is the executive order, the last one posted last night, I think, still currently the most recent one up there, which is defending the states from invasion, which basically tries to take the guarantee clause of the Constitution which says, oh, federal government has to guarantee states freedom, democracy and freedom of invasion and domestic unrest, and turn into a vehicle saying the President has a lot of inherent constitutional authority, maybe even exclusive constitutional authority to enforce immigration, for lack of a better way to put it, potentially using the military as well, something they hint at in another executive order that's talking about all these new ways to think about the President's use of the military, responsible use of the military, and what kind of a home defense is and defense from invasion in particular. And you see that ambition on statutes too. So like the Alien enemies Act, this 19th century, late 19th century statute which talks about deporting people in the context of an armed conflict or an invasion.
- [15:44]
D
Late 18th century statute, late 18th century.
- [15:46]
C
You'Re right, I'm sorry, late 18th century, I think 1798.
- [15:49]
D
Don't sell the Adams administration short here.
- [15:51]
C
Don't sell them short using that in this kind of novel way. The question for me is how many of these things are actually going to hit the rails? These theories only really become directly relevant when they get litigated. The Supreme Court takes them up and rules in their favor, or the administration has to at least rely directly on them. And in most cases, there's a lot of statutory arguments you would make before you get to these constitutional arguments. The one exception to that is birthright citizenship. Like that executive order more than any other, seems teed up to trigger a legal challenge to the administration action that's gonna have to get litigated, I think.
- [16:26]
B
Well, it's already being litigated. There are three laws.
- [16:28]
C
It's already being litigated, although I don't think that could actually. They may have a standing issue because the government action doesn't kick in for 30 days.
- [16:34]
B
But no, actually. So the solution, I haven't looked closely at the state. So there's one lawsuit that's filed by 18 states in the District of Columbia. There's two lawsuits that are filed by. One is the ACLU and New Hampshire. And then there's. I'm sorry, I don't have it in front of me right now, but a group in Massachusetts, I believe. And basically, the thing is, if you say this kicks in in 30 days, all you need to do is find someone who's going to give birth in more than 30 days. So there's a bunch of people who are listed in there who are undocumented or here on whatever status and would be covered by the order, or whose babies would newly be not covered under the order, I guess, who now have standing because they don't know what their baby's citizenship is going to be. And their baby might be stateless, which creates a number of problems that follow from that. So it's actually that, as with the travel ban, which immediately created a huge and very sympathetic group of plaintiffs with standing. I think the fact that the birthright order is written in the way that it's written does exactly the same thing. I don't know if that was intentional or if it's just because the people putting together the order are not good at their jobs or what. It's so bizarre that I genuinely wonder whether the whole point was to put it on the table so it could be enjoined and then they could say, well done with that one, and move on to other things.
- [18:05]
D
I actually don't expect that they think they will win on this, there's a.
- [18:11]
B
Way you could have written it if you wanted to win, and it's not written that way.
- [18:14]
D
But even if you write it in the most elegant fashion, you're still telling some pregnant person who was reasonably expecting that her child would be a US Citizen that he or she will not. There's no way to avoid the sympathetic plaintiff problem. And by the way, if you can't challenge it now for any reason, that kid when he's two can challenge it or when he's two days old. And so I just think anytime you're setting up baby plaintiff situations, you're doing it wrong.
- [18:53]
B
Well, also, I mean, so the thing is, so the way that they could have done it was there's this extreme and I think completely wrong headed argument on the right now adopted by everyone's favorite 5th Circuit judge, Jim Ho. After in, I think, two previous flower review articles, he had made exactly the opposite argument that arriving undocumented immigrants constitute an invasion, which means that their children would fall into a jurisdictional loophole in the 14th Amendment. To be clear, I think that argument is nuts. This order doesn't even allow the government to make that argument because it's expanded the children who no longer have birthright citizenship. Basically, if neither of your parents is either a legal permanent resident or a citizen, you don't have birthright citizenship. So it includes, for example, you know, one of the lawsuits has a woman who's here on, I forget the name of the specific visa, but one of the visas that you can receive if you're fleeing your country for reasons of great distress and are seeking asylum, a.
- [19:55]
D
Tourist is here perfectly. But it's not an lpr.
- [19:59]
B
But. So there's just an endless number of highly, highly sympathetic people here who fall outside the invasion argument, which was shoddy to begin with.
- [20:09]
C
So I don't fundamentally disagree with the idea that they may not come in expecting to win this. It's an uphill bottle. You're fighting against pretty strong judicial precedent and textual evidence and structural considerations and frankly, a long standing legal view that hasn't really been seriously challenged by even kind of the center. Right. It's pretty fringe, the idea that you would upset this. It's a possibility that this is a giveaway, a symbolic sort of giveaway. I do think they do clearly expect to litigate it. And I still do think actually there might still be a standing question if the courts don't want to reach the issue. But regardless, it's going to go away in a few months. You're going to have somebody who's going to challenge and is going to be one of these sympathetic defendants. And that is notable. The Trump administration did roll out a lot of broad constitutional and otherwise very ambitious legal arguments, but they usually never follow through on it. They never relied on it strictly in court. They always made narrow arguments. And they're not alone in that. That is like every executive branch in 20th century history makes really broad claims of executive power and then almost universally makes statutory arguments before they rely on constitutional arguments because it gives the courts that out of constitutional avoidance. So does the willingness to force the constitutional in question on this. Why is this the one that broke through? Is it just cause this is they needed to have a gimme to give to a political camp. I don't think it's because they're more likely to win on this than other things. Although I will say I think the guaranteed clause argument is genuinely nonsense.
- [21:34]
B
I think it's because they're racists who want to limit the amount of Americans who aren't within their category of what they understand an American to be like. I think it's as simple as that.
- [21:45]
D
I would offer a slightly softer explanation whose explanation may in fact in turn be the exact one that Quinta says, which is that the president talked about it a lot on the campaign trail and for whatever reason, and the reason may well be exactly what Quinta says, but he talked about this article over and over again. And to not do something, do something about birthright citizenship now or to appear to much like to not pardon a whole bunch of January Sixers would actually be a breach of faith with his voters. And I think this is one of those take him seriously and literally he's talked about it over and over and over again. He's told you what he's going to do and he actually does accept with respect to TikTok. But on these nativist things that he feels really strongly about, he's speaking at some level from the heart and I think you should take that pretty seriously. So whether it's because he's a racist or not, it's because he cares about this. That's why he's going to do tariffs too.
- [23:04]
C
Well, interestingly, the tariff question, we didn't see any actual action in that direction. If anything, it was one of the weakest executive orders, right?
- [23:12]
D
Well, it's his favorite word in the it's favorite word in the dictionary. He's going to take some time on it. He wants to get it right.
- [23:18]
B
So I think that a good way of thinking about the relation like whether the Trump administration will actually. Well, whether a Trump administration will be able to do something, I think is think about the sort of the vectors of what Trump wants and the vectors of what the institutional interests of the Republican Party want, and consider whether those cancel each other out or augment each other. And in this instance, the Republican Party has shifted in an increasingly nativist direction while weirdly increasing its vote share among black and Latino American men, at least, which is a different kettle of fish. But so I think there's a kind of. There's no real. There's no one within the party who is pushing back on the birthright citizenship issue. There's no real force. What people do feel strongly about is international trade. And so I think that it is not a coincidence that it is the immigration order that actually come out the strongest, actually doing things and turning off the CBP1 app, for example, and preventing asylum seekers from having appointments with cbp, whereas it's the tariffs, where Trump is actually really kind of pushing the boulder up the hill when it comes to his involvement with kind of institutional business interests that are much, much weaker, that he's going to have a much harder time actually convincing people to do that.
- [24:45]
C
I agree with that. But I guess my question then becomes, that leads me to a conclusion that, that maybe when we see these kind of fringe constitutional arguments that we are seeing littered throughout a few of these, the Guarantee Clause argument being the most prominent one, we need to take them a little more seriously this time, where they have that nexus. And the nativism sort of argument, the immigration argument, which is very there for the Guarantee clause, is there, just as it's there for birthright, it's there for the Guarantee Clause as well. And so it makes me wonder, maybe they're just willing to go to the bat more on this, that the political barriers that prevented that last time, internal, external, just aren't there. And that does strike me as a difference that might make this round of executive orders really different from what we did see the Trump administration do the first time around. Well, of course, as we were discussing day one actions, Vice President Trump won day one, maybe day zero, day negative one somewhere. And their action looms over the others, at least in the public landscape of people under the age of 24. And that is, of course, the executive order that appears to be keeping TikTok alive at least for another 75, maybe 74, 73 days now, depending on when you start counting. And we're thrilled to be joined by someone who has just slid into our DMs this, of course, fellow co host emeritus Alan Rosenstein, who has quickly established himself as the TikTok maven for all of us with dance videos galore as he walks us through the intricacies of this TikTok band saga for the last few months. Alan, thank you for coming back on the podcast to join us for this special segment.
- [26:17]
A
Thanks for having me. And I just want to say I feel like if. If anyone who knew me was like, I'm just so lame is what I mean. And the idea that I am the TikTok guy is extremely entertaining.
- [26:29]
C
But you're not the person on here who's been doing makeup tutorials.
- [26:32]
A
That's right.
- [26:33]
C
So, you know, yeah, like, I feel.
- [26:35]
A
Like I am, like, the least invested, in a sense, in TikTok, and yet that's all I think and talk about these days.
- [26:41]
D
I have never used TikTok. I am not on TikTok.
- [26:44]
C
It's how I learned how to Dougie. But regardless, the key point that we want to get here today is this ban order. So, Alan, let me try and walk through what I saw as the person who cares the least about this in America, but cannot tear their eyes away from the train wreck it has become, which is that we had a statutory ban enacted months ago on a bipartisan basis with substantial bipartisan support, if not always strong support, but not many people were willing to vote against it, at least in Congress of either party. You came through up to the near deadline with TikTok, challenging it all the way to Supreme Court. Supreme Court rules in a manner that I found utterly unsurprising. And I think most lawyers did 9, 0 on behalf of Congress, saying, yeah, Congress, you can do this. And at that moment, we begin to see every politician in America waffle, including Senate, I guess, Minority leader now, Schumer tweeting out, hey, we never wanted to ban TikTok in the first place. We need more time to get to solution on this. I'm gonna work for that. President Biden essentially saying, I'm not thrilled about the ban either, and then eventually saying, I'm not gonna enforce it, but refusing to go further than that, as kind of a nod to the incoming Trump administration's indication that it wanted more time to do something. And now we have this order from President Trump. So I guess the first order is talk to us about what this order is, what's keeping TikTok alive at the moment, and how effective is that likely to be in the near term moving forward.
- [28:13]
A
So the thing to remember about the law and this is a clever way in which it was written is that although it targets TikTok, it's enforced against the app stores. So Apple and Google, which host the TikTok app, and then against the cloud providers like Oracle, and then there's this other company called I never know how to pronounce Akamai, which is a content delivery network. They're basically, they own computers all around the country that they rent out to people like TikTok and Netflix and others that have kind of a lot of high bandwidth traffic. So that you can get your TikTok. Not only can you get your TikTok fakes, but you can get it in under 75 milliseconds because that is the attention span of the ute, as far as I can tell. So they're the companies that get punished up to $5,000 per user. And TikTok has 107 million users. And so that's almost $1 trillion at the top end. And especially if you're like Oracle, you can start accruing that liability almost instantaneously because, you know, if you're Apple and Google, you have to wait for people to download the app. And most people already have the app. So actually you're not going to get too much liability too quickly. But if you're Oracle, you can get hundreds of billions of dollars of liability in 48 hours.
- [29:24]
C
Right.
- [29:25]
A
If it's like a particularly high traffic TikTok day. So what the executive order purports to do is it purports to not enforce the law for 75 days. So basically it directs the Attorney General to not enforce the law for 75 days, including not to enforce the conduct that took place on the 19th and the first half of the 20th. So between when the law went into effect and when Trump took office, initially, the executive order, and that's actually really important because just to my previous point, it's in those 36 hours that Oracle and Akamai actually probably got a huge amount of their, of their legal exposure when in the middle of the 19th, they decided after shutting down TikTok services to actually reinstate TikTok because based on press reporting, someone from the Trump administration told them that it would be cool and be all fine. So the executive order does this 75 days of non enforcement. And then the other thing it does, which is really interesting, it directs the Attorney General to tell the companies that nothing that they're doing is violating the law and that they're not getting liability exposure, which is like, particularly interesting because of course it is in the President's power not to enforce the law. Like there's like a take care clause problem, but everyone sort of understands that the President can do that. But the President does not have the power to just start saying things that are not true about the law because the law is actually very clear. And so I have sort of theories of why that's in the executive order, but it's just a non enforcement provision. And this is important because the other thing the President could have done which would have been better for the kind of worse for the rule of law, but better for the companies, is he could have triggered the law's explicit 90 day extension. So the law gives the President the power to extend the deadline by 90 days if the President certifies to Congress that there's a kind of legally signed divestiture agreement that is in progress. Now, presumably the reason Trump did not exercise this options because it would have required him to lie to Congress on literally the first day of his presidency. I'm kind of honestly like, given the YOLO nature of this, what's going on.
- [31:26]
B
That did not stop him before.
- [31:28]
A
Exactly. Like given that he's saying stuff like birthright citizenship is inconvenient and so I don't want to do it. I'm a little surprised he didn't just commit to the bit, but for whatever reason he did not do so. But the problem for the companies is that a certification, even if it were fraudulent, is still a certification under the law. So it probably would have given them actual immunity, whereas I don't know what a 75 day non, which by the 75 days it's like it's just a made up number. Like I don't know who's writing these executive orders, but let's say it's not olc, I'm confident to say. And so it's just a non enforcement provision. And so if your Oracle who has just, I mean really they just took on $100 billion of liability for no reason as far as I can tell. I think you're, I think you're feeling like an asshole today, frankly.
- [32:14]
C
Well, it's worth thinking about. There might be other calculations going on like yes, yes. ByteDance and Benifying Oracle and Akamai for potential liability for some particular window. If.
- [32:25]
A
Oh wow, that's interesting. That did not occur to me.
- [32:28]
C
If I were Oracle Akamai, that's what I would want.
- [32:30]
A
That's interesting. Yeah, that never occurred to me. That might be what's going on. That's a really good point.
- [32:35]
C
There's something around that effect. And you see this sort of thing comes into play in a couple of other legal contexts, this weird reliance upon it, some sort of commitment. But you rarely get a commitment this expressed from the executive branch, which is let alone this codified at the highest level. But worth noting, as you, I think, note in your piece, these violations presumably have the same five year statute of limitations, so they can't commit themselves to the next presidency, no matter who's definitely not going to be Donald Trump unless they amend the Constitution. So in theory, they can't get entirely out of the risk of all of this.
- [33:06]
B
One thing that has been bugging me about the fact that Oracle and Akamai apparently decided to go ahead here is that if Trump were a totally normal president and you had an executive order that was like this, and you said, okay, we've gotten all the assurances that we would want from the executive branch that they're not going to enforce this law on us and fine us, however, whatever the exorbitant sum of money is for this period during which the law is nominally active, but we're still allowing TikTok to use our servers. You might feel pretty good about that promise because, of course, the executive branch would never do a U turn. But I have to say I have been flummoxed by the willingness of Oracle, Akamai, and frankly, Elon Musk as well in terms of his relationship with Trump, the willingness of these big companies to climb on board with Trump and accept his promises for things, because we know that he can turn on a dime against you if you don't do something that he wants you to do. Sometimes the thing he wants you to do is impossible or illegal and you don't do it. And then he will turn against you and he will do everything in his power to rain fire down on your head with the full might of the U.S. government. And so if I were Oracle, I would be somewhat concerned that the Justice Department might do a U turn if, you know, Trump decides he's mad at Larry Ellison for whatever reason and say, oh, remember that thing where we told you we weren't going to ask for the spine? Oh, we are like, am I missing something here?
- [34:49]
A
No, you're not. And I think this raises a bigger question that I know, Quinta, you've thought a lot about, which is why Silicon Valley is tripping over itself to do as much as possible for Trump. Like, like, look, people are allowed to have the substantive political opinions that they want to have. Fine. And so, like, maybe Some of this is because they actually agree with like the Trump agenda on something or another thing. But a lot of it is just obviously trying to curry favor for political reasons, which again is fine. Like, I'm not here, I'm not trying to make a moral case here. Like, this is one of those it's worse than a crime, it's a mistake kind of situations, because right now Trump is the most popular he'll ever be, right? He can only get less popular. He will obviously get less popular. He will then lose horribly in the midterms, obviously, right? And then he's going to start casting around looking for people to blame. And I don't understand just from like a strategic perspective why everyone is trying to bear hug this man like he is a sinking ship and he will pull you down with him. What am I missing? Quinceta turns.
- [35:52]
B
I think there are two things. One is that people are stupid.
- [35:58]
A
I mean, what is that never. What does that famous quote like, never, never attribute to malice? What can equally be explained by incompetence? Like, there's gotta be some of that.
- [36:06]
B
Going on in this case. I think it's both, frankly. People are stupid. I mean, you see that. And there was a great example of this, of a headline in like CNBC or something about, you know, markets up after Trump inauguration, but actually the little ticker showed that the markets had plunged because Trump had just said something about tariffs. So people are stupid. And I include people who are in charge of billion dollar companies. And second, Trump is very good at projecting an aura of the kind of like Hegelian man on the horse, embodiment of history, voice of the Volk, you might say.
- [36:48]
A
Napoleon riding through Jena.
- [36:50]
B
The spirit of the people, in a way that I think is very appealing to some people, men perhaps, maybe like people like Zuckerberg, who have gotten really into partial arts.
- [37:03]
A
Not all men. Let's not hashtag not all men.
- [37:05]
C
People with masculine energy.
- [37:08]
B
Look at the people in Silicon Valley who sided with him and tell, tell me what you see. And I think that Trump is very good at putting that on the table. And there's a certain group of people who are very willing to pick it up and who fall for that con. And the people who fall for that con happen to be the stupid people who are in charge of all of these big companies. And that's what's going on here. No one is driving the bus.
- [37:33]
D
I want to ask a different question, though, because the big companies are behaving differently from one another. Apple and Google have both not made A lot of noise about this, but you cannot get TikTok on either of their app stores which is a. I guess if, if Akamai and Oracle are a sort of death sentence for, you know, taking cyanide for. Or maybe we should use a Russian metaphor, novichok for TikTok. You know, not being on the app store is like cancer, stage four cancer. It'll lead to death relatively quickly, just not immediately and you can have some normal seeming days. So my question is why are. Since this, the enforcement mechanism for this statute is mainly the will of generals, councils of major companies, why is Apple and Google being so much more conservative than Akamai and Oracle?
- [38:41]
A
Yeah, I mean maybe they have different and better lawyers though once your market cap goes above 100 billion, I assume you can get the best lawyers. One possibility might be that TikTok put a lot more pressure on Oracle and Akamai for exactly the reason you mentioned. TikTok can survive without the app stores for actually quite some time. It can't survive 10 minutes without Oracle and Akamai. And so they really needed them. But yeah, I mean it's, it's not, it's not obvious like, I mean I've been, I've been talking, I've been talking to like a lot of journalists and kind of question that I keep getting is like you seem very confident your legal analysis but all these high priced lawyers must disagree with you like what's going on? And my answer is like I honestly, to use quintess wonderful term, flummoxed. Right? Because this does not seem that. None of that like from a legal perspective, none of this is that complicated actually. Like it's actually pretty straightforward.
- [39:36]
D
But all these high priced lawyers don't disagree with you. Half of these high priced lawyers disagree with you. Half of them are like sending your, their internal legal memos are lawfare articles with, by you with a note attorney.
- [39:53]
A
Client privilege stamped on it. Look, it's, look, also we don't know, right? I mean it's possible that the Oracle general counsel is losing. I don't know if it's, you know, losing their goddamn minds right now, but they're just being overruled by leadership because Larry Ellison is on the Trump train. I don't, I don't know the answer to this but I will say, you know the, the, the anticipatory compliance that we are seeing from Silicon Valley on this is not great. One historical parallel here that I've been thinking about recently and I think actually Ben, you probably know a ton about this is after 9, 11, if I recall. There were some controversial surveillance programs I.
- [40:29]
D
Know a ton about.
- [40:30]
A
Yeah, I'm going back to, like, remember, like, when this was the good stuff that Lawford got to write before it.
- [40:35]
C
Was like the golden age, before it.
- [40:36]
A
Was dumb stuff like, is birthright citizenship part of the Constitution? Right. There were these warrantless surveillance programs, and the government got big telcos like AT&T and Verizon to voluntarily comply, and that was a big problem. And then Congress actually immunized them, I think. Right. It wasn't like a. Congress passed a law immunizing them. I mean, I wonder if Oracle and Akamai are just hoping that this same playbook applies.
- [41:04]
D
Okay, so first. First of all, there are some big differences. Number one, the statute was not nearly as clear. This is a statute that is written specifically for this situation.
- [41:19]
A
And Tom Cotton is currently tweeting in public loud and clear. I gotta say, I never thought I'd be retweeting Tom Cotton as the vanguard of the rule of law, but here we are, right?
- [41:30]
D
So this is a situation in which the exact situation under under scrutiny is the situation for which the law was written. It's not the arcane application of a law written 25 or 30 years ago to a modern new circumstance that we don't. Nobody quite knows how. Secondly, the Attorney General certified to these companies that he had determined that their compliance was legal.
- [41:57]
A
Well, the attorney. The President has just told the attorney has just certified to the Attorney General that the Attorney General has determined that this is all.
- [42:04]
D
He's determined that it won't be enforced.
- [42:07]
C
No, no, no.
- [42:08]
A
The executive order says the Attorney General shall certify to the companies. It's so weird. And the President, of course, is, as we have often talked about in more theoretical discussions, the law interpreter in chief for the executive branch. The President has authoritatively interpreted that this law, that none of this is illegal. I mean, in a very Schmidian kind of way.
- [42:27]
D
So number three, and this is the critical point, it didn't work. And that is why Congress had to come in and immunize them later, because when it got out that they'd done it. And by the way, the argument for the telcos behaving lawfully in that context is much better than the argument for it's not good, and it was in a national emergency situation and blah, blah, blah, blah, blah. Right. It didn't work. That's why Congress had to come in later and immunize the telcos and why the telcos, in fact, insisted on that. As a condition of continuing to comply. And so I don't think that's a good example for Oracle at all. That's saying you think you're throwing yourself on the mercy of the Trump administration okay for an hour and a half, but at the end of the day, you're throwing yourself on the mercy of Congress.
- [43:28]
C
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A
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B
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A
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C
Hey folks, it's Marc Maron from wtf. Today I want to talk to you about Boost Mobile offering reliable nationwide coverage backed by a 30 day money back guaranteed. Love your service or get your money back, no questions asked. Boost Mobile offers the coverage, network speed and service you're used to, but at more affordable prices. Why pay more if you don't have to? You can get an unlimited plan for $25 a month that will never increase in price, ever. No price hikes, no multiline requirements, no stress. Visit your nearest Boost Mobile store or find them online@boost mobile.com After 30 gigabytes, customers may experience slower speeds. Customers will $25 per month as long as they remain active on the Boost Unlimited plan. But I do wonder whether there's some rough parallel in terms of the political dynamics that go into this. Right, because Oracle and Akamai, what they're doing, they're running a cost benefit analysis and they're saying what's the risk of us losing in court if we actually have to litigate this? Which is very high in my mind, at least I think you're right about that. Alan B. The odds of us going to court in the first place, whoever is actually going to try and enforce these things against us there, you have to weigh in. Okay, Trump's mercurial that enters in, but it's not 100% clear he's going to flip on this. And we know he's driven by politics. And you have to take into account, okay, maybe somebody else is in the White House down the road and they're going to feel differently about this in the near term for the next 75 days. I'm not terribly surprised. Oracle and Akamai feel okay about this because they have the maximum legal arguments right now available to them and that you have this certification from the attorney general or whoever else that you can lean on to say reliance, interest, due process concerns, all the arguments you would make if you were to say this is actually enforceable and the political dynamics are super high in your favor because we just saw every major political figure completely flip on this and no one is saying they actually want to see this thing enforced. That changes down the road then becomes a much more risky calculus. And yeah, this legal Exposure is still there. But the idea that the Trump administration, months down the road, years down the road, or another administration years and years down the road, is going to want to or be able to effectively enforce this against a court when they have at least a document that makes it high risk for the government to go in and maybe even get some pretty damaging precedent to them about their ability, about constraints on the President's prosecutorial discretion. Like, I think the calculus is there. The real secret, though is it's genuinely short term. Like, they can't go on that long. And I do worry in allowing Trump to, instead of relying on the 90 day certification provision, which has a statutory cap, you know, why does he turn to this Instead? Because the 75 days is made up and President can go back for another 75 days and another 75 days and another 75 days. And I worry Trump's solution is gonna be let's just keep doing what we're doing. And that's not gonna keep scratching this itch. Like, I think you're eventually gonna get to a point where the risk will really begins to outweigh that. But the question is, what's the tolerance then? And how long are they going to stay in alignment on this being a sustainable status quo?
- [48:41]
A
You are a braver man than I am, Scott, is all I will say from a lawyer giving clients advice. My Jewish neuroticism is just way too strong. But there's a law, and the law says the thing and you're violating the law.
- [48:56]
D
I got to go with Alan on this one. Look, if, if we have to. A tale of four general counsels, right? And if you say, and I agree with Alan, that maybe it's not that Akamai and Oracle having competent general counsels, maybe it's that they have headstrong chairman. But it seems to me that the fundamental issue here is you have a really clear statute. And it was actually one that was crafted in order to take discretion away, to make a certain set of things automatic. And if you're the general counsel of these companies, you should be saying, don't risk it. If Trump wants to change this, make him go to Congress. But don't take this on yourself. And I just think when the statute is clear, I mean, look, we don't live in a Chevron world anymore, so maybe if the statute's clear, to hell with it. But that was a joke. But I don't understand how you in good conscience can not you, Scott, but how one in good conscience as a lawyer for these companies say, yeah, Roll the dice.
- [50:16]
C
Well, they don't get to say roll the dice, CEO does, but they apprise them of the risks. Let me this brings, I think, this question of if this is a political dynamics driven thing, which I think is weighing heavily at this moment to a degree that shocked me and completely surprised me. I still do not understand that would drive Chuck Schumer and these other people to so flip so visibly on this.
- [50:34]
A
But the influencers, Scott.
- [50:35]
C
The influencer. The influencer, exactly. I mean, that's just what it is.
- [50:38]
A
Who will think of the influencer?
- [50:41]
C
The thing that gets me on this is, you know, what lesson is there here about reform, regulation, engaging on these sorts of dynamics. This is a big learning moment for all these political actors. And Quinta, I'd be curious, but I thought you shared some interesting parallels on this. I can't remember internally on Slack or on Bluesky or something about FOSTA and comparisons and contrast on this. And I'm curious what lessons you're taking away from this about. As somebody who thinks about technology reform in other but kind of related contexts, what lessons can we pull from this? And given that we're entering an era where technology reform and all of that, reforming and regulating technology we all interact with like AIs that we all now have on our phones, I wonder how important those lessons are to learn.
- [51:25]
B
The argument that I would make about FOSTA is that so this is the law that put into place a carve out to Section 230's liability protections for platforms related to certain very poorly defined material around sex trafficking. And what we saw there is that because the carve out was so poorly defined and the liability was so vast, both criminal and civil, that companies just dropped stuff like a hot potato even when it was not remotely related to sex trafficking. In terms of comparing this to fosta, I think that it's a relevant comparison because you can understand why companies like Apple and Google don't want to touch this because there's a natural instinct to be really, really hesitant and err on the side of caution when you could potentially be hit with, in this case, in Massafine, in the case of Fastia, a wave of litigation and that they would want a real assurance that they could not be touched before they would take action. Now, the Oracle and Akamai, I think I made that argument on bluesky before it turned out that Oracle was still allowing TikTok use its services. I think that that may be where the comparison to FOSTA kind of falls down. Because fosta, part of the problem was that the community that was targeted was sex workers who don't have a big constituency in Washington. Whereas in this case you have the President elect saying save TikTok and presumably people calling their senators and complaining and that kind of thing, all the teens. And so perhaps that is enough to kind of strong arm these companies. I will say though, the thing that that comparison draws out for me is that Congress has no idea how to write tech policy. Fosta was a complete disaster. It did the opposite of what it was supposed to do and they still haven't fixed it and I don't think they ever will in this case. I mean, Alan, this is my question to you. What did people think was going to happen? Did they think that the courts were going to block it? Did they not want to actually ban it? I could understand Trump doing a U turn, whatever he does 5U turns a day, right? Okay, fine. What I don't understand is Chuck Schumer and Biden apparently, according to some reporting, saying like, oh my God, this gun that I just pulled the trigger on was loaded. I genuinely do not understand what their reasoning was. One suggestion that I saw is that they just really overestimated the sort of appetite for a new cold war with China among the American population. I wonder if that's part of it. Did they not think that, like, did they not realize what they were doing? Just what is going on?
- [54:07]
A
Yeah, I mean, so it's interesting because, you know, I think it's true Congress doesn't do a good job writing tech policy or tech legislation, but I think that this is a great piece of legislation. Like, I think, you know, if you think that TikTok is a national security threat because of his Chinese ownership, which I happen to do, this is actually a pretty good way of dealing with the problem. It's just, I just think it was, it was. It is hard for Congress to legislate in the shadow of a President who does not respect the take care clause. At that point, it was very hard to get anything done. As to what explains this last minute shift from Schumer and Biden, I'm really not sure because I still think they are misreading the politics of this. Obviously it will be the case that in the immediate short term people will be angry, but I actually don't think that the vast majority of people will actually care. At the end of the day, I think they will just go to Instagram reels and YouTube shorts and like, I mean, maybe asking politicians to have a spine is like silly because of selection effects, but if they were just to like, be marginally brave for, I don't know, a week, this would all go away. Now the other thing that maybe they didn't consider was that maybe they didn't consider that Trump, who literally tried to ban TikTok in his first term, would flip flop. And then once Trump flip flops, that's a problem because now there's someone taking the opposite side of this and the politics are worse. Now, I still don't think at the end of the day, like, I still can't in any way defend Chuck Schumer or Joe Biden on this point, especially Biden who like literally is the president who signed this. But yeah, I mean, it does not bode well. It also just doesn't bode well for Congress's ability to make credible national security determinations to the Supreme Court. I mean, why would the court ever listen to these jokers ever again? If, if, you know, they, they, they, they say the important they, they talk about the grave threat of TikTok and then they just say, actually, but the influencers.
- [56:01]
D
One national politician comes out smelling like roses and it is Tom Cotton. Let's, let's, let's acknowledge a man who has acted with principle on this matter and then not betrayed that principle and even stood up to a president of his own party on that. I think that makes him more or less singular.
- [56:30]
C
Well, from some heated negotiations here in Washington D.C. let us turn our eyes abroad where we have seen a breakthrough agreement that people have been waiting for for more than a year, almost two years really at this point, that is finally a ceasefire in the conflict in Gaza that at least for the moment, a few days in, at this point appears to be holding. The terms of the cease fire are incredibly detailed and have been out there for a while. This is basically the agreement that the Biden administration rolled out with some initial Israeli buy in that then waffled a little bit back in May of last year. It's got kind of a three tier plan each of 42 days, so six weeks. The first one saying we're going to exchange hostages, primarily women, children, older people, people who are not in any sort of combatant, potential zone trade hostages back to the Israelis gradually in exchange for Israeli withdrawal from population centers in Gaza, increased humanitarian assistance and the release of Palestinian prisoners. While phase one is being implemented. That's where we're living right now. On day four, I think of phase one implementation. At this point, they're going to start negotiating towards phase two. That's when you'll see the final exchange of all remaining hostages. It's about a little less than 30. I think once you get through the phase one hostages who are believed to be alive, that will be given back to the Israelis in exchange for a fuller Israeli withdrawal from Gaza. They're going to retain at least a security perimeter kind of on the northern border. There's a little bit of gray area about a couple of other areas that Israel may or may not hold on to. It's a little unclear from the agreement, as I've seen it in translation, which may not be entirely complete. And then that's supposed to lead to phase three, where you will finally see a return of remains of deceased hostages to Israel, a complete Israeli withdrawal, although I think they still talk about retaining certain security coordinators, and then a move towards reconstruction of Gaza, a more complete end, and then presumably discussions about whatever the day after plan is, which has always been the question hanging over this conflict. Ben, let me turn to you as somebody who's been watching this conflict for a long time and has come in here to talk about it with me and with others many, many times, how monumental an accomplishment is this, who deserves credit to some extent and really how big a sign of progress towards some more sustainable, humane outcome? Is it? Or is it something that's hard to see how this actually leads to an end as opposed to a pause in the horrible conflict we've been watching unfold there in Gaza?
- [59:05]
D
So I would say it's a substantial accomplishment, and I think the accomplishment should legitimately be shared between the Biden administration, which organized it and which effectively negotiated the terms and pushed for it, and frankly, the Trump administration, which was undoubtedly the catalyst that pushed for it and caused it to happen in the time frame that it happened to come together. And so I think it's actually honestly a good example of, and probably the only good example of this transition functioning the way you would hope a transition would function, which is to say that the incoming administration and the outgoing administration work hand in glove to effectuate policy that is good for the United States and in this case, good for Israel and good for the Palestinians. Now, how much does it presage a lasting, different arrangement? I suspect probably very little. The only foreseeable lasting future arrangement that is less ugly than the one we have seen for the last few years, culminating in this one, in this last year, which was particularly awful, involves some radical change in Palestinian governance and some radical change in Israeli willingness to allow Palestinian statehood and to make some substantial efforts to accommodate that. Neither of those is easy to imagine and Absent that, you will either have some kind of reversion to Hamas rule or rule by some other ugly faction that draws legitimacy from making war against Israel, or you will have some de facto Israeli direct rule of portions of or all of the territory, territory of Gaza, which will, I think inevitably lead to some kind of settlement movement, if not quickly, then over time. So I'm optimistic about the short term. I think the Israelis have a real interest in getting their people back. The Palestinians have a real interest in allowing, facilitating some rebuilding and, and obviously the civilian populations of both communities have real interests in there not being an active war. And so I think everybody has short term interests in the status quo having changed from a shooting war to not a shooting war. But I don't think, unlike the northern front, where the Israelis fundamentally, fundamentally changed the dynamics and they accomplished something dramatic strategically across a number of different areas, which we've talked about before here, I don't think it is obvious that they've accomplished their major objectives except in some sense removing Hamas temporarily at least as a governing power. Whether they can translate that into a longer term win in that regard is very much open question in my mind. And so I think there's a good reason to be optimistic in the short term and pessimistic in the long term. How much of that do you disagree with?
- [62:53]
C
I agree with that actually, pretty much whole hog. It's a really difficult path here. And this very ambitious 42 day cycle, three phase cycle where we're going to have this all done in, you know, a third of a year, you know, by springtime, I think is obviously unrealistic. You know, phase one, maybe even phase two, you could see it. I mean, maybe Israelis are at least in the short term going to be willing to withdraw to more limited security postures. Certainly it's easier for them operationally. They don't need the troop numbers, which has become an increasing point of friction for them internally. They can secure their people much easier and have, you know, essentially just a couple of territories are maintaining a security barriers as kind of operational footholds where they do need to operate against Hamas or other targets. And now the scene is much more chaotic with lots more kind of independent actors in Gaza. It's not all just Hamas at this point. It never really was, but even more so now. And there will be cases where Israel is going to feel the need to do things like that. It gets a lot harder to see when you get towards step three, because you need these Palestinians to have some sort of process by which they can get some sort of government that can credibly commit things for them. And not only that, Gazans actually, that's incredibly hard to envision what that is. Who has the credibility to do that? PA doesn't. PA barely has any credibility in the west bank, let alone in Gaza. How are you going to hold elections? Who's going to win those elections? It's hard to see what that is. Maybe you can get local groups, maybe you can get Hamas political wing to step in and appoint in some sort of quasi independent governing party. Those are all possibilities. It's harder to sustain those. And then once you don't have that in the medium term, then the security situation has lots of vulnerabilities and then the Israelis are going to feel the need to push back on those terms. What you really need is a credible actor that can come in and balance the equation by pushing both sides towards staying on the track of the path, even if it goes well beyond the next 84 days, which it almost certainly will. And that would be fine if it did. If you're still making some progress and maybe the Trump administration can play that well. I will say I think Steve Witkoff deserves a lot of credit for this deal and has been very impressive so far. More so than I was extremely skeptical about his appointment. Kind of do remain that way in certain regards, but very effective if nothing else, was willing to come in and put leverage behind it. And it looks like he had to sign off from Trump to play hardball with the Israelis. And they have the credibility because of their relationship, the stuff they've done with Israel in the past and their relationship with the Israeli right to really do that in a way that Netanyahu has to respond to. If Netanyahu could stick it to Biden and his political supporters on the right would support him in doing that. But he can't feel like he does that to Trump because Trump is going to actually there's a risk at least that Trump mercurial Trump is going to impose some sorts of consequences on him.
- [65:38]
D
Also because Trump is deeply, deeply popular in Israel. Exactly in a fashion that is hard for American left of center people to understand. But Trump is this is one of the few foreign countries where there is unironic enthusiasm for Donald Trump.
- [66:00]
C
Exactly. And it is what the Biden administration was trying to accomplish through the bear hug strategy for the first year after October 7th, where they thought if republically supportive enough of Israel, then privately we can push them to do things we want. But the truth is the Biden folks never really had that durable public legitimacy. Trump really does, him personally really does. And that matters a lot. And it means that Netanyahu can make concessions to him without people to his right defecting as broadly now, he might still face political consequences.
- [66:33]
D
Be careful with that, because it is not clear that the far right will stay with Netanyahu for implementation of this deal.
- [66:44]
C
Totally.
- [66:45]
D
And you know, Netanyahu, you know, cats bid up each other for to have as many lives as Netanyahu has. But that said, you know, he is wedged right now in a domestic sense between a number of different rocks and a number of different hard places. And it's not, not clear whether he will be able to continue to hold his coalition together. That said, look, right now there is food getting into Gaza in very large amounts. It is being able to reach places it was not able to reach a few weeks ago because there isn't an active shooting war. Israeli hostages are being released and Palestinian civilians are not being killed with missiles and air raids. And so all of that is an unqualified good for however long it lasts.
- [67:49]
B
So I confess it's still unclear to me why this happened now. And if it is like Ronald Reagan and the Iranian hostages situation or a Richard Nixon spoiling the South Vietnam peace talks situation, or if it's something else entirely, or the inauguration actually had nothing to do with it whatsoever.
- [68:16]
D
No, the inauguration had a lot to do with it, but not in a bad way. So the reason is, as Scott pointed out earlier, this is a deal that Biden basically put on the table six months ago. And the, and Netanyahu couldn't sign it for a number of reasons, one of which was that he didn't want to, you know, he wanted actually to destroy Hamas. And there is a great whatever the collateral consequences of it, which have been enormous, there has been a lot of extra Hamas destruction that has gone on in those six months. And so that was a strategic objective of his. And the second reason was that his government would fall apart if he accepted the deal, or at least he thought it would now because of the pent incoming Trump administration, because they were clearly behind the deal. It is suddenly clear you're not going to get a better deal when Trump comes in. The deal is the same deal. And Trump is actively saying there's going to be hell. I told Netanyahu there's going to be hell to pay if there's no deal.
- [69:27]
C
Right.
- [69:27]
D
He said that publicly. And so you end up in a situation where in this short term situation there is no daylight between the Obama administration and the Trump administration. So the result is that Netanyahu can actually look at his far right flank, having gotten this extra six months to do a bit more Hamas destruction and by the way, also got the Lebanon stuff done in that time. So it's been a, from Netanyahu's point of view, it's been a really productive delay. But now he's out of time. Right, because he's just going to pick a fight with the new administration. If he stays on. There's not that much left to do from a military point of view. So that's why now.
- [70:16]
C
Well, and I will say, I think the Lebanon operation kicks in on the other side as well in terms of Palestinian resistance and reluctance to engage. I should not say Palestinian. I say Hamas resistance and reluctance to engage in this deal. Back in May, when this deal was first tabled, these Israelis who kind of initially bought in under pressure for the Biden administration, at least conceptually, but Hamas who waffled. And part of that was because of the ongoing tension, the ongoing operations. But at the time they still had Hezbollah as a threat in the north. And this idea that Iran might come in and back up their regional actors in a way that made ongoing, at least I think in the minds of a lot of people, the threat of ongoing conflict a risk, a threat to the Israelis, a point of leverage that disappeared in the last six months in a pretty stupendous, astounding way that I didn't predict. And I. And nobody did. Nobody did. I was very skeptical of the Lebanon operation, and I still am skeptical of parts of the story around it. But I have to say it dramatically increased Israelis security position by orders of magnitude because you no longer have Hezbollah in the north remotely credible. Absolutely decimated in an astoundingly effective way. And then it triggers the collapse of Syria through really very little action, maybe no action, arguably counterproductive action in terms of their insistence on occupying a small slice of Syria on the way out on the part of the Israelis. So it's just amazing. And I think at this point, the Hamas negotiators, who by the way, are like not influential people, even in Hamas, remember their leadership has also been decimated and targeted with assassination in Iran. And Yahya Sinwar got killed by just a patrol in the Gaza Strip a few months ago. They have a committee where you have an acting head and this kind of administrative committee of people who probably don't feel super empowered. They're isolated.
- [72:04]
D
It's kind of like the acting leadership of the FBI.
- [72:07]
C
Yeah, perhaps. I don't know if they're looking to Iran for backup.
- [72:11]
D
But yes, the head of the field office in Newark is running Hamas now.
- [72:15]
C
Hey, that's next week's topic. We'll get to that. But regardless, it really dramatically changed the timing on things. But it is the inauguration, I think meant reason was this week and not last week week, because it's when Trump weighed in and asked for it is when Netanyahu both felt like he could say yes because Trump asking for it changed the calculus in his own political coalition. And then it kind of felt like he had to say yes because he's worried that Trump will do something to punish him if he does know in a way that the Biden administration never really credibly threatened. I think the Biden administration kind of lost its credibility that it was ever really going to hit the Israelis really hard in a way that Netanyahu, who cared about they did things around the margin, they did significant things. But that was always something that was hanging over this. We're going to cut off arms, we're going to do something. And the Biden administration never got close. And because of that, they just didn't have any leverage. That kind of raises another question for me. I'd be curious about your thoughts about it. And Quinta, I may actually come to you first on this is what does this tell us about Trump as Trump's madman theory? Right. I hate the madman theory. I hit it with a deep passion and I got onto that last week on the podcast. This idea that Trump is mercurial and that gives him leverage because nobody knows what he's going to do. He's crazy. It is literally an argument Nixon used to make about his own foreign policy and approach to things where he said, hey, where Trump says, I don't take any options off the table. I make different references. It opens the Overton window. It makes lots of things possible. But in the end, because I retain so much flexibility about my actual position makes me a more effective no negotiator. This is like the people kind of putting words in his mouth. That's kind of the logic of the argument. Tons of people have been jumping out of the woodworks in recent weeks saying everything from Greenland to Panama to this are signs of how effective a strategy this is. I still am dubious of that, but this is one case where I really think there actually may be something to be said for it here, because I don't think the Israelis ever really worried Biden was going to do something that would seriously undermine. But I think they may be worried Trump would if he was directly rebuked. Am I off on that, Quint? I'd be your thoughts about kind of the broad thoughts. And you too, Ben. I've been wrestling with this all week in texts with my Middle east watcher friends back and forth and I don't know, this is where I've kind of come out on it, but I don't know if I'm strongly committed or not.
- [74:31]
B
So I went to the Wikipedia page for Mad Men theory while you were talking and under history. The first line is in 1517, Niccolo Machiavelli argued that it is sometimes a very wide thing to simulate madness from discourses on Livy. The problem is that Trump is not simulating madness, he's just insane. Or rather his sanity is not a sanity that I can recognize as a fellow mind. I think the problem with that is that sure, people might be cautious around you because they don't know what you're going to do. But as I had understood the madman theory, the whole point was that it was a theory and that there was an actual strategy that was like guiding you in some way, whereas Trump is just a crazy person who will do whatever. So that may have some kind of short term advantage in terms of particular dealings with particular countries, but it doesn't strike me as like a super great strategy for the United States States in the medium or long term simply because there's not actually any strategic thinking that is going on here. I mean, you could say the same thing about Putin and the invasion of Ukraine. How's that working out for him?
- [75:46]
D
I want to argue less theoretically about the madman theory and more that the madman theory is not what got Netanyahu to the table here. What got Netanyahu to the table is that Trump is to the right of Biden and has been extremely friendly to Israel. Let's remember this is a guy who recognized the annexation of the Golan and recognized Jerusalem as the capital of Israel, who said he was down for one state or two states or however many states, whatever the parties could agree to. He basically walked back US Support for the two state solution. This is a guy who's extremely friendly to Israel and he said he wants this deal done. That means Netanyahu was out of running room to keep going, that he couldn't count on U.S. support. And it has nothing to do, I think, with whether he thinks Trump is crazy. It has to do with the fact that he thinks Trump is not going to support him here. And that's the operative factor in my judgment. So I would say, if we acquire Greenland, that'll be a much better example of the success of the theory. If Panama is like, you're right, better take the canal. We don't want to mess with this guy. Okay, then I'm down with there's something to the madman theory. But you got to, like, you got to do, you got to offer something better than, you know, deal that is good for Israel, that two thirds of the Israeli political system supports that the defense minister, like, gets removed because he is insisting on taking something and that Netanyahu's only not taking because he wants to get a little bit more done and his far right flank won't, you know, then gets that stuff done, gets the right flank under control, and takes the deal. That's not madman theory.
- [77:50]
C
Yeah, fair enough. Maybe it's better thought of as kind of like an amorality theory, like the willingness that you're going to buck your kind of priors at a certain point or willing to, to get certain objectives done. Although I will say, like here, I think you raised a valid point. The one thing that a lot of people picked up, particularly in the kind of Israeli or Israeli watching media, was the idea that Tucker Carlson didn't stand when he mentioned the hostages in inauguration speech as a sign of kind of dissent in his own caucus about pushing the Israelis on this. And that's going to become more real for him. And when he's trying to haggle over individual House members to get to a majority on tax cuts, I wonder whether he's going to have as much leverage as he does now internally to take those sorts of positions. That's kind of something we'll have to.
- [78:30]
D
Wait and see, especially if he keeps offending House members like Mike Turner, whom he yanked as chairman of the Intelligence Committee.
- [78:38]
C
Yeah, fair enough. Well, folks, that brings us to the end of our time together this week. But this would not be rational security if we did not leave you with some object lessons to ponder over in, in the week to come. Ben, what did you bring for us this week?
- [78:52]
D
So usually I do something light with an object lesson, but I want to do something heavy this week. I want everybody to listen to the goodbye speech of Merrick Garland to the Justice Department staff, which took place on Thursday last week. So I know that Merrick Garland is not the most popular man in Washington right now. In fact, he may be the least popular man, somebody who has offended virtually the entire political spectrum through one aspect or another of his handling of the Justice Department and specifically the January 6th prosecutions over the last year, four years. But I want people, it seems to me he has a really interesting and thought provoking response to his critics on the right and his critics on the left, and one that was received with not one but two standing ovations by the Justice Department staff, one when he came in and one when he left. And I think the disparity between the way the man is understood inside the building and the way he is understood, understood on left and right alike outside the building is really worth reflecting on, as are his warnings about the future and his defense of the Justice Department and his own comportment over the last four years. So I'm not saying you will agree with him. I'm not saying you will not find it frustrating. I am saying you will not. But it will not lack for intellectual content to challenge you, whatever position you come into it with.
- [80:43]
C
Yeah, I will say I had the great pleasure of clerking on the D.C. circuit when he was chief judge there and had virtue of having lunch with him a handful of times. And I have to say there's nobody who endures more loyalty by being warm, thoughtful, considerate and amazing colleague than Merrick Garland. It was exceptional to the entire court, which is not the experience of most law clerks with their chief judges of the court in most courts in the country. He's really an exceptional guy and so it's a shame to see people have such hard feelings about him. But I think his legacy will maybe shine a little brighter than it is at the current moment.
- [81:15]
B
Well, I wrote a guest essay in the New York Times criticizing his choices.
- [81:19]
C
Well, you can criticize choices, but that's not a fucked up personal character. It's all right.
- [81:22]
D
Funniest moment. If you watch the event, check out Solicitor General Elizabeth Prelogar's speech. She clerked for him and then was his Solicitor General or Solicitor General under him. She is, among other things, a fabulous speaker, as one would be, and tells very funny stories about him that are quite gentle and loving but are also, you know, make him sound terrifying.
- [81:55]
C
Quinta, what do you have for us this week?
- [81:57]
B
I would like to recommend the Wallace and Gromit movies which are yes, classics. They're claymation about an absent minded inventor in northern England and his long suffering dog. I loved them as a child and I found out a few days ago that there is a new one. It is a sequel to the Wrong Trousers which was possibly one of my favorite movies as a child and features the evil penguin criminal mastermind coming back to wreak havoc. So I watched it on Inauguration Day to lift my spirits a little bit, and I highly, highly recommend it. Even if you are not yourself a child and do not have children.
- [82:41]
C
But if you do, all the better.
- [82:43]
B
I'm sure they would enjoy it too. Although I will say I found the Penguin very frightening as a child.
- [82:48]
D
I think we should make a Lawfare claymation movie.
- [82:53]
B
It would take decades, hundreds of years as far as I can understand.
- [82:57]
C
Yeah, well, for my object lesson this week, I will keep things relatively light. I don't watch SNL these days, not least because I have young children and can rarely stay up that late, sadly to watch it. But I often catch a lot of the clips afterwards. I thought they had my favorite, absolute favorite clip, which is a Weekend Update segment by Michael Longfellow on the TikTok ban and people arguing against it. I won't even try and do it justice. It's absolutely phenomenal, hilarious deadpan delivery that perfectly captures the view of most millennials now have of people advocating mostly of the Gen Z contingent advocating for TikTok. I don't know what it means that SNL, when SNL becomes the voice of the disgruntled middle aged millennials, but that's the world we're living in at this point. It's turning 50. So are we. It's fine, it all makes sense. But regardless, I thought it was a great take on the whole ludicrous debate and strongly encourage folks to check it out. With that, that brings us to the end of Rational Security for this week. But remember, Rational Security is of course a production of Lawfare, so be sure to visit lawfairmedia.org for our show page, for links to past episodes, for our written work and the written work of other Lawfare contributors, and for information on Lawfare's other phenomenal podcast series. Also, be sure to follow Lawfare on social media wherever you might socialize your media, and be sure to leave a rating or review wherever you might be listening. In addition, 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 producer this week was me and our music, as always, was performed by Sophia Yan and we were once again edited by the wonderful Jen Patcha. On behalf of my guests Alan, Quinn Quinta and Ben, I am Scott R. Andersen and we will talk to you next week. Until then, goodbye.
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B
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