The Lawfare Podcast: "Lawfare Daily: WITAOD?" – Detailed Summary

Release Date: June 6, 2025
Host: Benjamin Wittes
Guest: Anna Bauer, Senior Editor at Lawfare

Introduction

In the episode titled "Lawfare Daily: WITAOD?", Benjamin Wittes engages in a deep dive with Senior Editor Anna Bauer to unravel the enigmatic acronym "WITAOD," which stands for "Who is the administrator of Doge?" This discussion explores the complexities surrounding the Department of Government Efficiency (DOGE), its rebranding from the United States Digital Service, and the ensuing legal and constitutional questions.

Background: The Emergence of DOGE

The conversation begins with Anna Bauer introducing her extensive article, "The Wittowed Chronicles," which humorously yet seriously examines the obscurity surrounding DOGE's leadership and organizational structure.

Benjamin Wittes (02:34): "Who is the administrator of Doge?"

Anna Bauer (03:05): "I wrote I want to say it's 11,000 or 12,000 word piece. Yes, unfortunately. Hopefully it is more fun to read than it was to write."

Anna Bauer's "Wittowed Chronicles"

Anna Bauer discusses the dual nature of her piece, which combines comedic elements with substantive legal analysis. She emphasizes that beneath the humor lies a critical examination of DOGE's role and the legal challenges it presents.

Anna Bauer (03:52): "At its core, a piece that is substantive. It is about the Appointments Clause, and it's about other litigation as well that is going on surrounding the dismantling of the federal government by Doge."

Legal Implications: The Appointments Clause and FOIA Litigation

A significant portion of the discussion focuses on how DOGE's structure potentially violates the Appointments Clause of the U.S. Constitution. Anna Bauer explains that DOGE appears to wield substantial executive power without proper presidential appointment and Senate confirmation, raising questions about its legitimacy.

Anna Bauer (11:18): "These actions are ultra vires and should be void."

Benjamin Wittes probes into why DOGE's structure and leadership matter, especially if the administration claims DOGE is merely advisory.

Benjamin Wittes (10:38): "Why does it matter how Doge is structured?"

Anna Bauer elaborates on the discrepancies between DOGE's purported advisory role and its actual actions, such as ordering mass firings and dismantling agencies, which go beyond mere advice.

Anna Bauer (05:52): "It has this supervisory role, yet it's engaging in activities that are not typically within an advisory body's purview."

Public vs. Legal Narratives

The episode highlights the conflict between public statements and legal positions regarding DOGE's administration. While President Trump and Elon Musk publicly assert leadership over DOGE, official statements in court deny Musk's formal role.

Anna Bauer (33:11): "There's a gap between the public line and then the official line in court."

This inconsistency raises ethical concerns about the duty of candor that lawyers owe to the court.

Anna Bauer (20:00): "This brings up questions about the ethical duty that lawyers have to not mislead the court."

Anna Bauer's Reporting Approach

Anna shares her unique approach to reporting on this complex issue by adopting a comedic persona obsessed with uncovering DOGE's administrator. This method not only made the dense legal topics more engaging but also resonated with a broader audience.

Anna Bauer (46:48): "I said at one point, first I was performatively going insane, now I'm actually going insane."

Her creative strategy led to the formation of a community dubbed "watoadlings," who actively engaged in the discourse surrounding DOGE.

Reactions and The WATOAD Movement

The podcast delves into the unexpected cultural phenomenon that emerged from Anna's reporting. The "watoadlings" became a grassroots movement, incorporating humor and activism to spotlight the serious legal questions at hand.

Anna Bauer (50:04): "There's now a group of people who will call themselves the watoadlings. There's even one guy who put watoad on a protest sign."

Anna discusses how this movement influenced public and legal perceptions of DOGE, leading to increased scrutiny from the judiciary.

The Future of DOGE and Ongoing Litigation

As Elon Musk publicly distanced himself from DOGE, the legal battles intensified. Anna explains that even with Musk's departure, the question of DOGE's true leadership remains pivotal in ongoing Appointments Clause litigation and FOIA cases.

Anna Bauer (40:07): "This question isn't going anywhere. Just because Elon Musk is leaving government."

She underscores the retrospective and prospective implications of identifying DOGe's administrator, emphasizing the enduring relevance of "WITAOD."

Conclusion

The episode concludes with Anna Bauer's continued efforts to seek clarity on DOGE's administration, including attempts to engage Elon Musk directly. The enduring mystery of DOGE's leadership serves as a focal point for broader discussions on governmental accountability, constitutional compliance, and the role of media in uncovering institutional ambiguities.

Anna Bauer (57:19): "I did ask him [Elon Musk]. He did tweet something yesterday... my reply to him was, 'Who is in charge at the United States Doge service?'"

Notable Quotes

• Benjamin Wittes (10:38): "Why does it matter how Doge is structured?"
• Anna Bauer (05:52): "It has this supervisory role, yet it's engaging in activities that are not typically within an advisory body's purview."
• Anna Bauer (20:00): "This brings up questions about the ethical duty that lawyers have to not mislead the court."
• Anna Bauer (46:48): "I said at one point, first I was performatively going insane, now I'm actually going insane."
• Anna Bauer (50:04): "There's now a group of people who will call themselves the watoadlings."

Final Thoughts

"Lawfare Daily: WITAOD?" offers listeners an intricate look into the murky waters of governmental restructuring and legal accountability. Through Anna Bauer's investigative reporting and candid discussion with Benjamin Wittes, the podcast sheds light on the critical importance of transparency and constitutional adherence within federal institutions.

For more insightful discussions on national security, law, and policy, visit www.lawfareblog.com.