Scott R. Anderson (2:28)

Boys showed up with a bunch of toboggans and everybody's like, I don't think so, guys.

Molly Reynolds (2:31)

There are many fences that, you know, prevent you from, at least between now and January 21, from accessing where kids might go sledding. So turns out sledding in D.C. itself, a lawfare issue.

Scott R. Anderson (2:49)

What isn't these days? What isn't?

Kevin Fraser (2:51)

No taxation without sliding rights. I mean, where's that license plate?

Scott R. Anderson (3:01)

Hello everyone and welcome back to Rational Security. Thrilled to have you here with us for the podcast where we invite you to join members of the Lawfare team as we try to make sense of the week's biggest national security news stories. With us this week, I'm thrilled to be joined by two of my Lawfare colleagues, our Tarbell Fellow, Kevin Fraser. Kevin, thank you for joining us here on the podcast.

Kevin Fraser (3:24)

Howdy. Couldn't imagine starting 2025 any differently, of course.

Scott R. Anderson (3:29)

And our senior editor, Molly Reynolds, and also my Brookings Institution colleague, Molly Reynolds. Molly, thank you for coming back on the podcast to kick off 2025.

Molly Reynolds (3:38)

It's good to be here.

Scott R. Anderson (3:39)

You both have beaten back the winter weather. You have beaten back technical errors that have kept some of our other colleagues from joining us today as originally planned. But I'm thrill you to talk over what has been a busy couple of weeks since we took a little pause from recording for the holidays. We have so far a new Congress, we have a new president in the wings waiting. We have new nominees and we have a lot of things happening on the international scene and we thought we'd break down a few of them with you this week for our first topic mic drop Almost While we are still two weeks away from having a new president, the 119th Congress is underway. There are signs of tension in the Republican majority controlling both chambers, with House Republicans under pressure from former President Trump and adviser Elon Musk having already killed a leadership negotiated compromise funding bill at the end of the last Congress and Speaker Mike Johnson just barely securing reelection by a single vote, if I recall correctly. After some last minute wrangling within the Republican caucus, what do these recent events tell us about what we should expect over the next two years in which this Congress is in place? Topic two will be mild. The January 6th that passed earlier this week went very differently than the one four years ago with Congress peacefully recognizing former President Trump's election back to the White House. How did the events of the January 6th insurrection of 2021 continue to influence the presidential selection and transition process as we saw it play out here in 2025? And topic three missed connections. Finland received a very unwelcome Christmas present this year after a major underseas telecommunications cable was damaged by the anchor of a suspected Russian shadow ship in an act some believe was deliberate, and Taiwan rang in the new year in similar fashion with a major undersea cable getting damaged by a China associated vessel. What is behind the set of possible attacks and what tools do the affected states have to defend themselves or do they need to be able to defend themselves better? For our first topic, Molly, let me turn to you. In our first instance as our resident Congress guru, we've talked a lot about 119th Congress already. We've known what was coming to some extent, at least in some formats for the last few months since the result of the elections. We knew we were going to have a Republican majority, but a very narrow one in both chambers. But nonetheless, the last few weeks I think have been a lot more eventful and to some extent chaotic than some might have expected for the return of unitary government government, which both chambers of Congress and the President are controlled by the same party. Talk to us a little bit about what we saw, how surprised you were by it, and what really we should be drawing about it, what lessons we should draw about what the 119th Congress is going to look like and how it's going to operate.

Molly Reynolds (6:19)

I guess I would say the sort of chaos actually began at the end of the 118th Congress. So just before Christmas when Congress had to resolve a short term funding bill situation. So Congress before, back in September before the election, had passed a measure keeping federal agencies, federal programs running through the end of December. It became pretty clear after the elections they weren't going to be in a position to finish the actual appropriations bills by that December 20th deadline. So they needed to tee up another short term spending bill. They settled on one that would run until March, as is quite common for Congress in the contemporary period. They took that spending bill and they attached some other things to it. And in this particular case, there were some things that Republicans or some Republicans really wanted to see as part of that package, particularly around some agriculture provisions and some disaster spending that Republicans from with constituents who were affected by some things in the agriculture space and then also by some natural disasters this fall, really wanted to see in the bill. And because there is this faction in the particularly the House Republican Conference, there's some folks like this in the Senate too. But the Senate dynamics are a little different since you got to get to 60 in the Senate anyway. But there's a group of House Republicans who really are unwilling to vote for basically any government spending bill that can conceivably clear a 60 vote threshold in the Senate. So once you start to lose a whole faction of the House Republican Conference, Republican leaders have no choice but to turn to Democrats and say, well, we're going to need Democratic votes to pass this, which has the effect of pulling the outcome closer to the center in this case because there were also some things that weren't just the short term spending bill that some Republicans really wanted. That also opened up the door for Democrats to say, okay, we're going to negotiate, but there are going to be some things that we ask for that are going to be in this as well. So they negotiated a package. It, I would say looks pretty typical to or pretty similar to other year end packages that the House and the Senate, particularly under divided party control, have negotiated in recent years. And then just before it was scheduled to come up for a vote, a combination of Elon Musk and President elect Donald Trump weigh in and say, no, like you can't pass this. Despite the fact that, number one, Donald Trump is not actually at the president again and Elon Musk is not at all an elected member of the US Government. They sort of weighed in and Musk had identified a number of things in the package that he thought were sort of wasteful. Trump came in with like a last second demand that the measure also addressed the debt limit, which is a thing that Republicans will have to deal with at some point in probably the first six months of 2025. And this is a place where, like Donald Trump's political instincts are actually not wildly off. Which is to say that, oh, it would be great if we could just do this now and then. It is not a problem for me and my narrow majority of my own party in the next six months. And there was like, I don't know, a 12 hour period where everyone who thinks the debt limit is bad, which is to say basically everyone who thinks at all seriously about the federal budget. No one at this point thinks we should still have the debt limit. I shouldn't say no one. Very few people at this point think we should still have a debt limit. It has basically just become a hostage that Republicans are periodically willing to take and use to jeopardize the full faith and credit of the federal government. And so there Was this, this 12 hour period was like, oh my goodness, maybe we're actually going to get rid of the debt limit. That did not happen. We managed to keep the government open. They had to radically pare down the package that was being considered. And so that sort of left us on the eve of an election for the new speaker at the beginning of January with just kind of a preview of a very, very fractious Republican conference. Then we get to January 3rd, the opening of the new Congress and Mike Johnson comes up for a vote on the floor to continue his term as Speaker. And the way this works is they call the roll. So it's an alphabetical order. And some members can in this case did choose to not vote on the first call of the roll. Sort of a group of members with substantial overlap to the group of members who were kind of rebels against Kevin McCarthy. I have to look sort of back at the ex, but folks in sort of the Freedom Caucus. Freedom Caucus adjacent wing of the conference. And so for a period of time, it looks like Johnson was actually not going to have the votes on the first ballot. But in a remarkable reminder of the fact that a vote is not over until it is closed, they did some sort of last second negotiating with some of the holdouts and got enough votes, enough folks to flip. There were sort of two last folks who ended up casting their votes for Johnson, which was enough to get him on the first ballot. It remains, if you, if you had put the over under at number of ballots at 1.5, it is unclear to me whether this would have satisfied the over or the under. But that is a, that's a question for another day Question for Vegas.

Kevin Fraser (12:20)

When are we going to get the online gambling app for Congress with prop.

Molly Reynolds (12:23)

Bets it's out there that would not. Anyway, so we're here at the start of the new Congress. It's interesting because this kind of group of, the kind of group of holdouts against Johnson who I think we would say sort of led by Chip Roy of Texas, released a statement right after the vote saying basically with a list of things that they said the speaker should have done in exchange for the votes. He did not actually have to do any of these things. They ultimately flipped. They ultimately voted for him. I think that's probably has something to do with pressure from Trump. That's probably not the whole story. The experience just before Christmas where the House did in fact did not do what Trump was asking, particularly in terms of raising the debt limit, I do think says something to us about potential limits of Trump's influence in the new Congress. And then we can talk more about sort of emerging initial major legislative priorities. But there are big disagreements, particularly between House Republicans and Senate Republicans about how to proceed with the Republicans top set of legislative priorities, what order to sequence them in. Trump came out over the weekend saying he wants, quote, one big beautiful bill. And we will, we'll see if that is ultimately the. That is what some House Republicans have asked for. Senate Republicans have said that they think a different strategy where they do kind of two bills both through the a certain process that means they can't be filibustered is a better way to do it. But we are sort of rapidly approaching the point when Trump is actually president again, when Republicans control the House, the Senate and the White House. And it's not actually clear that they are as close to an early week strategy as they were in 2017, when I think people were generally more surprised that Trump had won. This is all to say that there are divisions within the conference. They will be, for lack of a better way to put this shooting with live bullets in a way that they haven't been up till now. And that can be clarifying, like actually having the opportunity to do things if you can resolve your internal disagreements can help drive different elements of the conference to a deal. But I think this is all a reminder that like unified government, particularly with narrow majorities, is not a walk in the park. And having President Elect Trump, who does not always stake out a position and maintain it, is not always willing to use whatever political capital he has to actually try and drive to agreement. It's not clear that that's going to help them resolve some of these disagreements.

Scott R. Anderson (15:12)

So I want to come back to the Republican caucus, but I thought part of the debt limit fight or the inclusion of the debt limit fight and kind of the year end funding bill actually really interesting in terms of what it tells us about, particularly how Democrats are approaching this, because raising the debt ceiling has been a little bit of a bet noir for a lot of Democrats more than anyone else, because a, it's usually a segment of the Republican caucus that uses the debt ceiling to kind of hold government hostage or threaten shutdowns. And from a general strategy matter, it poses a bigger problem for the bigger spending party. Now, which one that is is actually a big question these days, but the one that does it a little more openly, at least to the Democratic Party in terms of supporting various types of government spending on a variety of programs. So it was interesting to me to see Minority Leader Jefferies come out and say, hey, we're not going to support debt limit expansion, including the bill, pretty early on. Now, part of that was framed as, and not unreasonably as we're not going to go revisit this deal that we already made. This just wasn't in the deal. We're not going to redo it. But at the same time, he seemed very open to negotiations afterwards. He had this phrase about grit and grace is what we need and that we should always be open to negotiations. They did ultimately renegotiate the bill pared down by both sides. I think both parties got frankly less than they wanted out of the final package because of this intervention by Musk and Trump. But the question I had is what does this tell us about why Democrats might be worried about lifting the debt ceiling at this particular moment? Was it just about the deal or is it a sign about how much rope they think the Republican caucus needs to hang itself?

Molly Reynolds (16:42)

Yeah, so it's a good question, Scott. And you're right that particularly if we look back at say, the 2020 fight over the debt limit, the one that actually got us reasonably close to default in, in May of 2023, that Democrats were sort of like very firm in their position, like, this is not something that we negotiate over. This is not a hostage that can be taken. I mean, I think part of what part of their reluctance, in addition to your point, Scott, about sort of going back on a deal that they had already reached with Republicans, I think part of their rationale here is looking ahead to next or I guess it's this year at this point, looking ahead to 2025. On one hand, they want Republicans to have to sort of bear the political pain of increasing the debt limit, which is something that it's not uncommon to see the minority party do when there's unified party control. And two, I think politically a lot of what Republicans would like to do in the opening months of the 119th Congress are things that Democrats really very strongly oppose, including cutting taxes for rich people and possibly making cuts to entitlement programs like Medicaid and SNAP that benefit low income Americans. And so I think the idea that they, I think politically the rationale was like we don't want to be voting for an income increased the debt limit only to have Republicans turn around and do things that are really unpopular with our constituents. I am sort of contractually obligated to say right now that the debt limit is actually about paying bills that the country has already incurred. It is not about future spending and revenue choices. But politically, you can see why it might have been a sort of political sticky wicket for Democrats, even Democrats who think that taking the debt limit hostage is a bad idea for them to come out and say, okay, we're going to vote for this, and then have Republicans turn around and do make a series of policy choices that would run up the debt that are really unpopular and go against what Democrats stand for.

Kevin Fraser (18:55)

Well, Molly, you pointed out the role of Trump already obviously is going to have an impact on the Hill throughout his administration. But seeing Elon's influence already start to manifest on the Hill, I wonder how much influence he's going to continue to be able to exert on the Hill. I've read some disagreements starting to form with respect to, for example, H1B visas, Elon and Big Tech. Obviously very pro bringing in talented workers from around the world to help with AI quantum, etc. Are we going to see more friction where maybe there's a pushback by the Republican caucus against this shadow president or whatever we want to call Musk, this long term tenet of Mar A Lago, whatever moniker we want to go with?

Molly Reynolds (19:45)

Yeah, I mean, I think this I'm sort of operating under the assumption that at some point there will be a Trump Musk breakup because there are very few people who sort of get close to Trump in a very public way and are themselves very public. And then there isn't a breakup with Trump. As someone says, Trump is a person who like, does not like to be upstaged. I'm sort of assuming that at some point Elon Musk will do something that Trump decides is upstaging him and then Musk will be on the outs when exactly that happens. I don't know. I think your point about they're actually to the extent that Musk has concrete policy preferences that they are sometimes in the case of say H1B visas, at odds with others in the Republican Party, I think is a. Is an important dimension of this. Another observation I will make about Musk, which is actually properly credited to Quinta, who is not on with us today, but I'm channeling her when I say this, which is that one of the super interesting things about Musk and Trump's influence in the collapse of the government spending deal just before Christmas is that with Trump, a lot of times sort of the things that make it in front of Trump and that he gets worked up about are things that come like via Fox News. So it has to go from sort of the Internet onto the television and then that's how Trump learns about them. Musk is, you know, is the Internet. So like he. And so there was some amount of that whole thing that happened before Christmas happened very fast, in fact, maybe even a little bit faster than we were used to in the previous Trump administration. And so it's really interesting to think about the way that kind of information flows are going to play a role here and the degree to which like Musk being sort of constantly online capital O in a way that Trump Is not creates the possibility that things are going to move quickly or more quickly because you sort of take out a particular set of middlemen that we know Trump really relies on for an information flow.

Scott R. Anderson (21:58)

I mean, do we have a sense of there being much of a learning process from this late interruption on any fronts for actors? I mean, it's hard to know right now, right. But, like, this was a pretty big screw up. I think, like, basically wasted a bunch of time. A bunch of political goodwill across the Republican caucus made Johnson look weaker, which Trump seemed to kind of walk back a little bit by endorsing him a few days later before the Speaker's race, but clearly weakened his hand, put him through the wringer on a lot of work, and he ended up with a package where lots of stuff got left out. The Republicans wanted. Some Republicans wanted in the House at least as well as Democrats, and they didn't make any progress on the debt limit. And Trump looks weak. He does. He made an outright demand saying, you can't pass this without X. And then he didn't get X and they passed it anyway. And he signed it, or he didn't sign it, but he wasn't able to stop them from passing it. Is there a learning curve here? Is there a sign that maybe they said, whoa, maybe Johnson gets a little more influence because he actually has the read of the caucus. Right. Or other folks, or is it just too early to tell?

Molly Reynolds (23:02)

Yeah, I think it's hard to say. I mean, I think one thing that's important to remember here is that the Congressional Republicans, even in their dysfunction, have policy things that they want to get done that outweigh the degree to which Trump has policy things that he wants to get done. And so the sort of, the incentive structure here is that Congressional Republicans may need to kind of contort themselves into a position that, like, makes Trump happy because they know that. That they may well need him to help resolve disputes within the conference to drive towards those policy outcomes they want. I'm thinking here particularly around taxes and possibly on other things like immigration spending as well. But we also know that that is not Trump's strong suit, like Trump is not. However you feel about the role that President Biden did or did not play in congressional negotiations during his term, he is a creature of the US Congress in a way that Donald Trump is just not. And so sort of staking out a position, knowing consistently kind of where there can be flexibility, what are must haves, where are you going to use your political capital to help resolve discriminants none of that is really what's in Trump's wheelhouse. And so and then, then you sort of add on the fact that that for some number of Republicans, a lot of what they want out of being in Congress is sort of performative victories as opposed to actual policy wins. And you just get into this place where it can be difficult to imagine exactly how we get from A to Z on any of the things they say they want to do.

Scott R. Anderson (24:58)

Well, let us go from how Congress is situating itself to how Congress is beginning to situate the executive branch and finalize the elections, because, of course, we saw a monumental date pass earlier this week that is January 6th, not the January 6th. We're all talking about the January 6th four years later, the one after the major insurrection that happened, of course, four years ago. And it's been a focus of ours and a focus of a lot of national attention over the last four years. And we saw a very different scene. We saw a fairly peaceful procedure that followed really the expected route, even as slightly amended by Congress in the ensuing years or intervening years, which clearly had President Biden and Vice President Harris essentially certify the election results for President Trump and Vice President J.D. vance, or President elect and Vice President Elect, I should say. Molly, talk to us a little about this procedure first. You know, what did we actually see coming out of this procedure? Was there anything remarkable or exceptional about it? And then I kind of want to talk about some of the things that we didn't see and ways we may or may not reflect things we've learned kind of from last time. But first, tell us about what we actually saw.

Molly Reynolds (26:07)

So what we saw on the 6th was what we've seen in most years in US history, when the House and the Senate have convened for a joint session to count the Electoral college votes, which was just a very straightforward kind of streamlined, ceremonial, no drama process. Even putting aside for a second the events of January 6, 2021, we have in other recent years seen objections come from the floor to particular state slates of electors. We didn't see that this year. One of the things that the Electoral Count Reform act, which was passed in response to what happened on January 6, 2021, and which Scott has at least once describ fighting the last war. One of the things that it did was raise the thresholds for what constitutes a valid objection. It both said that it sort of specified the criteria more narrowly around the grounds on which someone could object to counting a state's electoral college votes and then also required more was previously One House member, one senator. Now you need more than that to have an objection raised from the floor. And so we didn't see that. I think it took something like 36 minutes from sort of Alabama to Wyoming to, you know, open and have one of the Tellerists from the House, their Senate read the language about the votes having been submitted. And so it was very, again, sort of very low key, you know, ceremonial in the way that things are in the US Congress, but not even, again, putting aside for a second the violence of four years ago, just not even the level of kind of drama that we have seen in some other recent years.

Kevin Fraser (27:58)

Yeah.

Scott R. Anderson (27:59)

My impression of it, I'd be curious if you agree, is that it was something that everybody wanted to get over with kind of as quickly as possible, including Democrats to some extent, both because it kind of drew attention to the electoral shortcomings and there was no good postured take on all this stuff, even if you did want to raise concerns. A because procedurally it's much more difficult and you don't want to undermine these procedures, particularly if you're a Democrat and you back them, although plenty of Republicans back the ECRA too. But they presumably don't want to raise objections to the election results as easily this year. And because it's always these kind of hard narratives to carve out and distinguish yourselves, it muddies the water over what people tried to do four years ago, which I think can be distinguished. But in the public media, I think there's a sense that there's been a. The public relations fight has kind of been lost for people raising that as a much more serious sort of transaction than the more symbolic and ultimately meaningless objections people routinely raised. Prior to that, there was one objection we didn't see, though, which I thought was the one thing that might come in because it is the thing that actually is legally significant and was kind of clearly laid out as something that could happen by the Supreme Court, at least as a possibility. That's Section 3 of the 14th Amendment. After the Supreme Court's decision in Anderson v. Trump earlier, well, last year. Now I suppose the one avenue you could read the opinion, I'm not sure it did this clearly. It didn't do this clearly, but I think the best way to read the opinion suggests that it did not reach the question as to whether Congress could choose to implement Section 3 of the 14th Amendment in how it chose to count electoral votes by treating certain people as ineligible for the presidency. And that is actually a step that is still allowed for under the ecra. That's one of the two grounds for objections is that this person is not constitutionally eligible to hold the presidency and therefore we can't count these electoral votes. You know, I wrote a long piece on Election Day about how all this would have played out if there were any controversy. It was the most quickly OBE piece I've ever written, despite being quite lengthy and quite in depth. But I thought this is one thing we might still see at least some discussion about. We've seen a lot of people still making the very credible argument that there's a legit legal argument that former President Trump is ineligible to hold the presidency, including from very prominent conservative legal voices like Michael Paul Sim and William Bode, who of course wrote a very influential law review article justifying Section 3 of the 14th Amendment, saying this should disqualify former President Trump from the White House and then have a new forthcoming article laying out why they think the Supreme Court handled Anderson quite badly and didn't actually resolve it properly. Now, obviously Supreme Court has resolved it the way they're going to resolve it, but it did leave this door open to say if you really think Section 3 of the 14th Amendment should disqualify President Trump, Congress can still implement that. And yet the votes weren't there to actually implement that, because you can be pretty sure a simple majority in both chambers was going to reject it because of Republican control in both. But the votes were there to actually put the issue forward. So I'd be curious about your thoughts, Molly and Kevin. Honestly, what are the politics behind this? Why wouldn't Democrats want to put a marker down on this? Is this just a sign that politically they want to move on from the conversation? Is it a sign that they just don't agree that either the Supreme Court let this open or that this is the legal conclusion? What might have entered into this whole equation for Democrats to not even raises as an issue. As far as I know, not a single one did. I didn't even hear any rumors about anyone trying to rally votes to get to the 20% threshold that would be needed to actually put on the floor.

Molly Reynolds (31:28)

Yeah, I mean, I guess I think it's, I mean, I do think it's like a political question. I think there are a couple things going on. So one is that as a matter of trying to explain what you would be doing. It's hard, like, you know, saying, oh, the Supreme Court said this, but left open may be kind of the opportunity for Congress to come in and say something else. That's a hard case to make to the public, particularly if what you are trying to do is make like a genuine argument. I mean, so if we think about like the grounds on which we saw Objections raised in 2021 as part of, of the overall effort to halt the counting and underpants gnome your way to a different outcome, those were arguments about sort of widespread fraud that had been disproven, but people were willing to make them anyway. And so one, it's just harder to explain what's going on here. And two, I do think that knowing that they were unlikely to be successful in raising a 14th Amendment claim, Democrats probably made the determination that, you know, if we try to do this anyway, it's going to open us up to criticism from Republicans that are saying like, well, you just spent the Republicans would say like you just spent four years claiming that doing anything to disrupt the counting of the electoral votes on January 6 is the greatest possible threat to our democracy and that you pass this law to say that we shouldn't, it's a lot harder to raise claims or raise objections from the floor. And so I think probably a combination of those two things is what led them to just say, you know, we're not going to even though the ECRA does preserve the ability to raise these kinds of objections and even though the Supreme Court arguably left open this possibility that given that it just wasn't going to be successful, that there wasn't, it wasn't worth doing. And we can argue about from sort of a principled stand if that was the right call. But I think I understand the politics of why that's where they landed.

Kevin Fraser (33:48)

Yeah, I think I would largely agree there, where this isn't the sort of thing that would go viral on TikTok if you tried to explain your rationale for why you were intervening here. I don't think you're going to see that trend. And so there's the explainability component, there's the sore loser component. And then I do think to Molly's point, there's just the potential for cries of hypocrisy of hey, you said you were going to respect the vote in this way four years ago. Are you going to follow through when you're given the opportunity to do so, especially given the acrimony and political headwinds we saw after the Biden pardon, for example, to then flip flop on this issue as a Democratic Party? I think they would have just opened the door to even more assaults of not being as principled as they claim to be. I also wonder if it's a sort of indicator about what resistance in air quotes looks like under Trump 2.0 versus Trump 1.0. I think resistance capital R under 1.0 was make full use of every procedural challenge you can to contest Trump. And maybe this is a sign that 2.0 is really hey, we have to win on the substance this time around. And if we can't win on the substance, then that's our fault, for lack of a better phrase. So I don't know if this is an early sign of that transition, but it seems like it may be hey.

Scott R. Anderson (35:18)

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Kevin Fraser (37:20)

Tax free.

Scott R. Anderson (37:21)

Taxes extra for the device and service plan online only. 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 guarantee. 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 multi line 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 pay $25 per month as long as they remain active on the Boost Unlimited plan. Another possible justification that occurred to me but I'd be curious about your thoughts about this is like the weird precedential aspect of it, which is in a parliamentary body you've got a precedent like what the Chamber has done before can create weird rules to guide what the Chamber does in the future, right? So a conceivable outcome if you brought it up for a vote, could have been, hey, actually we as Congress are going to vote and say no, this sort of thing isn't disqualifying, or this sort of motion is inappropriate, or section 3 itself does not apply in this sort of context. It could have been interpreted by future Congresses as a loss here on the merits. Like you break the 20% threshold to force the issue to the chamber, then what happens? The House and Senate have to separate debate it to be needs each vote on it separately and we presumably lose in both chambers because they're both Republican controlled. And it didn't seem like any Republicans were going to flip on this particular issue and probably some Democrats might not go along with it. But if you saw a rejection on that, particularly one on a healthy margin, if Democrats didn't go along with it, then that could be foreclosing section 3 altogether and kind of ending it short of statutory implementation, which is something that the Supreme Court said is the other way Congress could do this, it could still pass a statute implementing Section three just hasn't yet. So in some ways, if you're worried about this being a recurring thing, if you're worried about another January 6, 2021 again in the future, you might not want to force a vote you're going to lose because that forecloses. The avail potentially could undermine the availability of that as a tool moving forward. Am I off my rocker on that, or does that sound like it may make sense to you all? Molly, and particularly because I know you grasp parliament procedure, that strikes me as a weird, it's a weird game when you have a body establishing its own precedents, even on narrow majorities that still are treated as precedential. But that's the world Congress lives in. And I feel like I see this sort of strategic logic recurring here and there when you see these close votes.

Molly Reynolds (40:08)

Yeah, I mean, I think, I think the way that I would think about it is to say that the possibility of establishing a precedent that can come back to bite you in the ass in the future is one consideration that gets weighed. Sometimes it outweighs immediate short term political considerations. But in this case, if we think that all these things are pointing in the same direction, I do think that's probably part of the story of what happened. And I will say again that some of this is just Congress not being willing, after decades of institutional erosion, to try to stand up for itself. Even if, again, we can tell a narrow institutional story, like you just did, Scott, about why it could potentially be harmful in the future. Future, we can tell a political story. Again, I think we can and probably should argue that sometimes bigger questions of institutional power should outweigh the kind of narrower questions about precedent and about short term or even long term politics. But that's where we are.

Kevin Fraser (41:13)

Well, and especially true, as you already pointed out, seeing a president elect already swaying Congress before they take office, what does that say about the state of the institution to me, doesn't spell well for constitutional fortitude.

Molly Reynolds (41:29)

Yeah. I mean, in that sense, President Trump has been an outlier in so many ways. But the degree to which he didn't, and this is fundamentally the problem that we're talking about here, is that he did not disappear from the political scene after losing a presidential election, which is really atypical for a contemporary US President. And so the fact that he sort of kept himself sufficiently engaged in congressional politics, American politics, to get renominated and then ultimately win reelection is unusual. And so, again, it's one of the long list of ways in which he's an outlier.

Scott R. Anderson (42:10)

Are you saying Grover Cleveland is not a contemporary president?

Molly Reynolds (42:13)

I am. I am saying.

Scott R. Anderson (42:15)

Or shame.

Molly Reynolds (42:16)

I am comfortable asserting confidently that we should not characterize Grover Cleveland as a contemporary American president. I did during the speakership vote when I noted on social media that it was perhaps the most consequential example in recent history of a vote not being over until close. I got a number of people on multiple platforms arguing with me about my definition of recent. So, yes, but I am confident in my assertion that Grover Cleveland is not a contemporary American president.

Scott R. Anderson (42:49)

Look, the Grover hive is coming for your mentions. That's all I'm going to say. So be wary, Be wary with all the slander of our greatest 22nd, 24th. Is that right? Yeah, it is. Oh, I nailed it. All right, 22nd, 24th president. All right. Well, from cutting ties to some past presidential and congressional practice to cutting a different sort of tie, let us move to the international arena, where we've seen a couple of interesting developments and an issue that we've talked about here on the podcast with you before, Kevin, but all of a sudden has become very real in a way that I think people hadn't really thought about or recognized just in the last few weeks from the academic conversation, much more to the arena of major power politics, and that is this question of undersea cables. The country of Finland had a very unwelcome Christmas present. We saw a major, actually, it looked like a couple telecommunications, electricity, other infrastructure cables damaged or severed, believed to be by the anchor of a vessel that is identified as part of the shadow fleet that Russia has been using to break sanctions and smuggle oil that's currently impounded by the Finns, very interestingly, and the subject of a legal fight there, which is something I want to talk a little bit more about. And then also we saw more recently in the new year, another case of a major telecommunications cable, I believe it is coming into Northern Taiwan, gets severed by another vessel believed to be Chinese. That one escaped to international waters, I think, last time I checked was en route to Busan. This happened like 48 hours ago, I think so. Probably is not even there yet, but Taiwanese are working to try and coordinate with Korean authorities about recovering that. Kevin, let me turn to you first on this. How unusual are these two actions, both of which were unique in that they broke onto, if not front page, like page one or section one news, something that prior cable incidents, of which there are a few every year, really has not happened. Do you think it's Warranted. Is it just a matter of say something about our political times that it's just getting more attention, or are these attacks something new? If they are attacks something new and a sign of things to come.

Molly Reynolds (44:46)

Yeah.

Kevin Fraser (44:47)

So I think what's really important to point out first is that there are about 100 to 150 cable breaks per year on average. These cables are about the size of a garden hose. So it doesn't take much to break in undersea cable table. Most of those breaks are either from natural events. You can think about an earthquake or in the case of Tonga, you can think about a volcanic eruption undersea or by an accidental drop of an anchor or an accidental drop of certain fishing equipment. So 100 to 150 breaks per year, that's about one every three days. So to have all of these incidents of alleged sabotage back to back to back where not to add to the ticker, but In November, the 17th and the 18th, we saw two different cables be potentially broken as a result of alleged sabotage in the Baltic Sea. And so we're seeing this record really start to grow of air quotes accidents occurring in very strategic locations where both Russia and China have a lot of geopolitical interests now and of course, going forward. So I would say this is atypical. And what's even more atypical, as you pointed out, Scott, is that people are finally paying attention. I am a proud undersea cable nerd. Not many people identify as such and many more people need to. And so it's really heartening, or I don't know if it's heartening, but just positive that people are finally paying attention to this issue because when we see these cables break, they can have massive economic and geopolitical and communications effects. We were lucky that with a lot of these current incidents, they were done in areas that have a fair amount of redundancy, where there are other cables, for example, where the Internet traffic can quickly be diverted to. But in some cases, looking forward, that may not be the same. The same case. And so it's really important to shout about these accidents so that we can learn from them and get a better insight into what China and Russia are doing and trying to learn from these alleged incidents, if not sabotage.

Scott R. Anderson (47:00)

So, Kevin, let's talk about the Finnish response, which I think was actually pretty exceptional, right? Like, this is kind of a unique case because Finland was able to catch this ship basically before it exited its territorial waters. So it was able to exercise a degree of, of control over it or level a degree of threats that forced it to comply that if the ship were in international waters, would have posed a much bigger international legal question and practice question. But they got it early. Something that Taiwan was not successful to do with its vessel. And its incident basically captured it, brought it back to its shore. It's now in its domestic courts where people are challenging the jurisdiction of the courts and other actions. But a big part of the legal debate there is that that the ship itself, actually, I can't tell from the reporting that whether it is actually being held solely on these alternative grounds that it is a sanction busting ship, not directly for the damage to the telecommunications cable or whether they are joint grounds, but most of the legal disputes so far, at least the legal claims being leveled against the vessel and its cargo, which is a bunch of petroleum, I believe, is that it's sanctions busting. So it's not actually directly related to the destruction of these cables. But maybe I'm wrong about that. Tell us a little about what Finland is doing and what's interesting about what it tells us about, like the universal remedies available to states affected by this.

Kevin Fraser (48:19)

Yeah, so this is where we can really get into the weeds. Or maybe I should say kelp in the undersea context, the kelp of the law of the sea. So for folks who didn't take law of the sea in law school or aren't oceanography nerds, there are kind of different territories that you can map out from the coastline of any country. Country within 12 miles from the coast, that's the territorial sea you push out to 200 miles. That's the exclusive economic zone. Anything beyond the national jurisdiction is generally regarded as high seas. And the further you are removed from a nation's coastline, the less power that nation has over any ship sailing in those seas. So it really matters where this sort of interdiction happens. Is it in the high seas? As the owners of Eagle S, the ship that's currently detained in Finland, the UAE company that owns that ship is saying, hey, kudos, Finland, you landed a helicopter on our boat. Too bad, so sad. It was in international waters. Finland saying, no, we caught you sufficiently close to shore that we can bring you in and we can bring you in. And Scott, here's the point with respect to the charges that have been alleged. We can bring you in under criminal charges for aggravated interference of communications. So that's the charge that the Finns are alleging and bringing against this ship. The lawyer representing that UAE company is contesting that. I think it's also too important to point out that this is a ship registered in the Cook Islands that's being manned by Georgian and Indian citizens. Citizens. And this is the sort of new normal where we're seeing ships that are flagged in Cameroon, in the Cook Islands, in you name, any other country manned by citizens of different countries, sailing for all intents and purposes for Russia or for China, but for commercial purposes. And so all of these factors complicate when and if a country is able to perform any sort of investigation. And what's really pivotal about Finland's response here and about the response of the Finns and the Lithuanians in other contexts is that we're starting to see nations be more aggressive in their interpretation of the international laws that govern when these sorts of interdictions can occur. So, again, apologies, given that we were talking about Grover Cleveland and the 1880s and 90s. I feel like I can bring up the 1884 convention on undersea cables.

Scott R. Anderson (51:03)

I would be furious if you didn't.

Kevin Fraser (51:04)

Yeah, you know, everyone knows it. It's your next Jeopardy. Question. This convention that we're still leaning on today, which is just mind blowing, this 1884 convention, under Article 10, it's fairly ambiguous as to when and if a country is able to board a ship that has been alleged for breaking a cable and perform some basic investigatory functions like review the captain's log, talk with crew members, verify its registration, and things like that. We've seen previously that Baltic states have disagreed over their interpretations of Article 10 and when they may be able to take these aggressive actions to board a ship and to get that sort of understanding. And I think these recent events are showing that countries are no longer going to take this kind of backseat to saying, you know what, the 1884 convention that had no idea we were going to rely on these cables for 99% of our Internet traffic. We have to be able to rely on international law and really this emphasis on necessity and the custom of necessity to be able to take actions when critical infrastructure is being interfered with.

Molly Reynolds (52:17)

So, Kevin, most of what you've talked about so far involves this case in Finland, but you mentioned that there's also a recent example of cutting of an undersea cable near Taiwan suspected at the hands of the Chinese. We know that the Taiwan Strait is likely to be coming to the extent that. I mean, it already is. But to remain a flashpoint in sort of U.S. foreign policy with the transition to the Trump administration, that that what to do about Taiwan and what the appropriate American position is towards Taiwan is something about which there is disagreement among the highest echelons of Trump's circle. So can you just talk a little bit more about that? Whether we also think that we're going to see more of this kind of incursion in that part of the world, that sort of thing?

Kevin Fraser (53:12)

Yeah. So I think we're going to see a lot more of this behavior from Russia and China where effectively what a lot of analysts suspect they're doing is just information gathering. Right. They're seeing what's the response of these littoral states, are they able to coordinate with one another, how quickly are they able to repair these cables, and what's the sort of impact on the actual economy or the Internet or their energy grid, for example? So right now I think we're in a sort of testing phase. The scariest scenario, and this is highly speculative, but, but it's an interesting theory, is that this is really Russia and China preparing to dominate the undersea domain. So if you have dominance in this space, if you know the topography of the sea, if you know which cables are most easily broken, if you know how you can basically put a stranglehold on a country like Taiwan, on a nation like Taiwan, then you're able to really exploit this new domain and perhaps wreak havoc in the skies. So, so the combination of dominating the sea and then destroying whatever redundancy may be available via low earth orbiting satellites creates this really scary picture of all of a sudden you can imagine Taiwan not having access via its undersea cables and having the next best option, which is going through space, also denied. And that sort of communication lockout is, is very scary. For reasons I think will be apparent to everyone with respect to the Trump administration. What China's doing right now relying on these gray area approaches is deeply concerning because this reliance on commercial ships to inflict potential pain and wreak havoc on Taiwan really presses on the U.S. foreign policy apparatus to say, what is our position with respect to these attacks? And I don't think anyone wants to put their thumb firmly on, oh, we regard this as an actual attack, or we regard this as an act of war or anything like that. And yet we're seeing that these are really low cost ways to cause a lot of international chaos and geopolitical instability. All it takes is getting a 70,000 pound crude oil tanker from Russia, having it drag its anchor for about 60 miles and then boom, you've wiped out a couple cables. And for folks who don't study telegeography's ocean maps, Taiwan only has a couple dozen cables locking out Taiwan from the Internet. Via undersea cables isn't beyond the pale of consideration.

Scott R. Anderson (56:00)

Kevin, let me ask you about what Finland's doing and how it fits into this kind of self help paradigm that I think we see states beginning gravitate towards, because it strikes me as like a lot of the discussion around this issue for the last couple years has centered on the very kind of ossified international legal regime. It dates back to 1884 in substantial part. Law of the Sea Convention pulls in parts of it that are in the United States, not a party to. It treats a lot of that as customary international law, but it doesn't provide a lot of the international legal rights you might want to see in this modern environment, because it's just a level of reliance on these things and density of use and proliferation, different types of actors that wasn't anticipated 100 years ago. And the regime doesn't seem to address it. But at the same time, I'm not sure in terms of, well, I buy that from an international treaty law perspective, I'm less convinced that international law is a big, big barrier to self help actions where states are in a position to do that and maybe even collective self help actions to some extent. Although there's always this international legal question about collective remedies. But for the simple reason that, look, this is clearly when you're damaging an entity, you're damaging private property when you do this. So at the minimum, there's civil claims here. Most of these entities doing this are commercial vessels, if they're even government owned at all. They're commercial vessels which are engaged in activities that most countries treat as subject to the commercial activities exception to foreign sovereign immunity. Right. So there's at least a potential to get a civil claim against them. Unless they're like government ships. And then the real question becomes like, well, how do you adjudicate these? Or how do you actually like exercise control over them? And that to me becomes the question of a, like, can a court in an injured party start asserting jurisdiction to try these vessels in their own courts? And there are examples of that, right? Like the United States does this all the time with terrorism. It prosecutes terrorist groups that are operating overseas and injure Americans. The passive personality and nationality principles kind of say, okay, if something's really harming your nationals, you can legislate against it and regulate against it. And you can't always actually get your hands on those people. So you get the speaking indictments. But in theory it makes it a lot harder for those people to go overseas and do a lot of stuff because all of a sudden you've got a judgment against against them or maybe even a criminal action. And you can start pushing for extradition if it's criminal or if it's civil, you start trying to attach their properties. And because a lot of times you're talking about commercial actors here, that actually strikes you as a much bigger hammer than if you were talking about just China and Russia doing this directly. And then on top of that you have the flag, nationalities, vessels coming in. These are like Cook Islands and Cameroon, I think is the Taiwanese or the vessel involved in the Taiwan incident. These are countries that are subject to pressure. I think if the United States and a lot of other major economies started really making this priority, slapping sanctions and other things, if you didn't cooperate with these sorts of investigative actions and other actions and authorizing them, that would actually have a big impact on these countries. Now Russia and China could then shift away to them, shift to client states that maybe aren't as subject to that influence. But at least in the short to medium term, that strikes me as a real solution. Are there parts of a self help regime here that we're just beginning to see states begin to knit together or am I missing something that there's like a big gap here that needs to be filled before states can start doing more of this?

Kevin Fraser (59:15)

Yeah. So I think the biggest gap is that states would still like the assurance provided by unclose or the 1884 convention that they do have legal authority for the high seas. Even if you attack property in the high seas, we have the right to interdict that ship and start an investigation. I think they would like the assurances provided there, but with the idea of self help in mind. Finland is a really great example in this case because the detection of the break was from a routine monitoring. Right. So number one, we see investment in enforcement resources, which isn't always the case. Right. We see coast guards may be distracted from other issues, but if you prioritize defending these undersea cables, you may be able to spot a break right when it happens and be much more likely to be able to intercept that boat before it just sails away, as you mentioned, has occurred in previous incidents. And with that self help in mind as well, we're seeing that these criminal charges, for example, are under specific domestic law. Right now, if you looked under the US's own penalties for breaking a cable, I'm fairly certain the fine right now is $5,000. So that's not exactly something you're scared about. I think updating these domestic laws to be really punitive, whether it's civil or criminal, to begin to act as a deterrent is an important thing to do here and Finland, willingly enforcing and trying to make sure that they have jurisdiction over these ships is a good signal that they're engaging in that sort of self help. When we think about collective self help, this again is a great example because we're seeing the Baltic states really try to help one another out. So typically there hasn't been a willingness among a lot of countries to share some of the pivotal information they have about undersea cables, about their tracking of vessels, about their satellite imaging, for example. We need to be sharing that information. If there's better information sharing, as we all know from a cyber context, attribution becomes much more likely. And so I think the next step that NATO is trying to facilitate, that the ITU is trying to facilitate, is information sharing among these different countries so that attribution can be far easier.

Scott R. Anderson (61:42)

Well, folks, we are about at time for our discussion today, but this would not be rational security if we did not leave you with some object lessons to ponder over in the week to come. Molly, what do you have for us this week?

Molly Reynolds (61:54)

So this is a little bit mistimed. So any listeners who think this is a good idea should like write it down somewhere and hold it for next December. But in my family, since I was in elementary school, we have compiled at year's end every year a family time capsule where every member of the family writes down their favorite thing of the year in five categories. Ours, because this began when I was a small child and there were other small children living in my house. Ours include favorite food, favorite song, favorite movie, favorite book, and favorite TV show. But you can do whatever you like. And then everyone in the family writes them down and they go in a box. And then it provides a really remarkable record of what people have been interested in. Lots of gentle or not so gentle ribbing of members of the family when you revisit it the following year. I have as an adult, I have added to my time capsule celebration. Some friends and I, when we gather for New Year's Eve, will listen to everyone's favorite song of the year as part of our New Year's Eve celebration. This idea came from a parenting magazine that my mother received in the 90s. I can't tell you what it was or I would give that magazine proper credit, but it is a, it is a very, very fun and low effort tradition that we have been doing in my family for a long time.

Scott R. Anderson (63:21)

I love that tradition. That's really charming. That is something I may implement. We have not yet gotten our act together to actually send out a holiday card every year, which is something we always plan to do and never pull the trigger on. But if we do get our act together, maybe this will be on the list for our own family traditions.

Kevin Fraser (63:36)

This is magical. And the possibility for inside jokes to proliferate over the years, I love that too. Yeah, I think I'm stealing this as well. So even though it's just me and my wife, maybe I'll get my dog in on it.

Scott R. Anderson (63:50)

I will say my in laws got like the most charming Christmas present from longtime friends of theirs I've ever seen, which is their friends, one of whom is like a professional archivist, so is of the sort to like do this sort of thing. Kept every Christmas card they've received from them since they became friends in like the early 1970s. And so has 50 Years of Christmas cards that they then put together into a published book as a like, kind of like a reflecting on 40 or 50 years of friendship. It is exceptional and amazing.

Molly Reynolds (64:16)

That is amazing and involves way more effort than I have the capacity to put into really anything in my life, which is part of what I love about the time capsule. And ours is like very analog because it's been going since I was a small child. I'm sure you could do, if you were starting anew, do it digitally. But ours is a box now. It really just involves index cards that people put in the box. But it is a delightful year end.

Scott R. Anderson (64:45)

I love it. I love it. Well, for my year in tradition, I am coming back with round three of a special project I've been working on over the course of Rational Security. And that is a cocktail recipe that I've been manifesting different iterations of and think I finally mastered for you all. Yes, this is my Averna and coffee and brandy cocktail and cold brew cocktail. A coffee cocktail. An alternative to an espresso martini. If you don't like espresso martinis like I do. But I do like espresso and other things and I really think I nailed it. I'll put the recipe somewhere online and some social media. I need to find some better place to start putting these things other than that Twitter X thing that I don't really spend time on anymore or somewhere else, but somewhere I'll put online, but I'll say right now Etsy. Maybe that's it. I want to put somewhere I can get proper attribution in case this becomes big because it's really good, I'm telling you. But here's the recipe. I'm just going to say it out loud for folks listening. One ounce of good brandy, one ounce of cold brew concentrate, three quarters ounce of Verna, three quarters ounce of Mr. Black or a different coffee liqueur. I think Mr. Black's a very good one. A quarter ounce of rich Demerara syrup. Shake it, put a lemon peel over it, double strain it into a glass. It gets a nice foam for the Demerara syrup. It is phenomenal. And then something I've been adding into the shaker last minute, if you want to give a little extra New Orleans vibe, is two dashes of chicory bitters that I found online that are really quite excellent that really bring it out a little bit. And I gave it a name in honor of its both Sicilian and kind of New Orleans classic cocktail vibe. And that's the Little Palermo, which used to be the Sicilian neighborhood in New Orleans that I don't think is there anymore because I think it is now Bourbon Street. But in honor of that, the Little Palermo. Try one at home. It's really good. Coming soon to you, tm. Tm tm. If this becomes big, don't blow up my spot, but try it at home. I'd be curious. Any feedback you might have, let me know. Kevin, what do you have for us this week?

Kevin Fraser (66:31)

I'm too distracted by the Little Palermo and it's 3:30 so I don't think I can make one at once. Too much caffeine and maybe too much alcohol. I don't know. I need to do a lot of things.

Scott R. Anderson (66:42)

You haven't been sledding with 4 year olds all day? Because I had one about 5pm yesterday and I got to say I slept like a baby. There we go.

Kevin Fraser (66:48)

I believe it. Yours two were so perfect. I am instead going to be a little sad or dour, but I picked End Times by Peter Turchin. I've been trying to get more into listening to audiobooks and Peter's book was the first one that popped up this year. End Times is all about a theory of everything that focuses on the disruptive effects of what he refers to as elite overproduction. And what's fascinating about this book is that Turchin goes through just centuries of history to show how when you have this disproportionate number of elites who don't have avenues to kind of make the most of either their education, their wealth or what have you, what they end up doing is just screwing up the political system and wreaking havoc on it and that then leads to violence, which then leads to more political chaos and that creates some cycle. All until you remedy the overproduction of elites. He actually thinks it partially explains how Lincoln got elected. He ties it to China, England, somehow Game of Thrones gets wound in there. So give it a read or don't, but let me know what you think if you happen to listen to it or read it. I found it fascinating, although I am still a little skeptical of grand theories of everything. And for those who have read or watched Foundations, this is, I think he calls it Cleo Dynamics and so you get those vibes which, which I'm not sure you can forecast history, but it was a good read.

Scott R. Anderson (68:33)

Interesting. I wonder where podcasting fits in on the overproduction of elites aspect. I worry towards the end stages, but we'll see.

Kevin Fraser (68:41)

We'll see those who can't do podcast.

Scott R. Anderson (68:44)

There you go. Exactly. Well with that. That brings us to the end of this week's episode. Rational Security is of course a production of Lawfare, so be sure to Visit us@lawfirmmedia.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 Lawfare's other phenomenal podcast series. In addition, be sure to follow Lawfair on social media wherever you may socialize your media, and also be sure to leave us 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 lawfairmedia.org support our audio engineer and producer this week was Noam Osmand of Goat Rodeo, and our music, as always, was performed by Sophia Yan. And we are once again edited by the wonderful Jen Patcha. On behalf of my special guests, Molly Reynolds and Kevin Frazier, I am Scott R. Andersen and we will talk to you next week. Until then, goodbye.

Molly Reynolds (69:42)

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Scott R. Anderson (69:47)

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Molly Reynolds (69:48)

Enough.

Scott R. Anderson (69:49)

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