B (5:07)

Yeah. As Michael Mongan, who was the lead counsel for Anthropic, said at one point, where to begin. So we knew going into the hearing that much of the focus was going to be on the statutory questions, although Anthropic had also made First Amendment retaliation claims and due process claims because Judge Lynn had provided this list of questions to go through. And we did hear the parties each address those questions. But it turned out there was substantial focus on the other issues, too, not necessarily in terms of how much time was devoted to them in the argument, but Judge Lynn led with saying, here are my tentative thoughts and essentially making it clear that that she was interested in disturbed by the First Amendment retaliation claims. She said it's a fascinating public policy debate whether the Department of Defense, she said Department of War, but I will say Department of Defense wants to do business with Anthropic. That's not for me to decide. That's for Pete Hegseth to decide. But essentially it was for her to decide whether the government went farther than that determination, went too far in designating Anthropic a supply chain risk. And also in and a lot of the focus of the argument was on this in Pete Hegseth tweeting that not only could no contract could could the government not have contracts with Anthropic, but basically imposing a secondary boycott. So that's essentially what we went through in the hearing. We started with the question of the secondary boycott, which was a big one. She was asking is the government saying that what Pete Hegseth tweeted was just not true? Was it a false statement? Does it have any legal Effect. And the lawyer for the Department of Justice basically said, yeah, the secondary boycott card, it doesn't have any legal effect. What had legal effect is a letter that came later that didn't go so far that just did this supply chain risk determination. And so then much of the rest of the hearing had to do with the question of whether that determination was justified. This, this statute requires that the Department of Defense of the government go to congressional committees and discuss with them any less intrusive measures that have been taken. Again, the government conceded it had not done that in this case. It said it didn't matter for the purposes of a prelim injunction that conceded it hadn't done that. And so that was one of the big points that they went through. And just going into the question of whether it was reasonable for the government to determine that Anthropic was going to engage in sabotage or subversion as an adversary, which is the language in the statute might do, and whether its refusal to accept the all lawful use contracting terms made it untrustworthy and whether the statute let the government make that determination based on its refusal that it was untrustworthy. So that's basically what they went through. And then at the end kind of circled back to those First Amendment claims and those due process claims. And the hearing ended with Judge Lynn saying that she will make an order, likely make a ruling in the next few days.

A (8:47)

Right. And she gave the government till tomorrow at 6 o' clock Pacific time to file a document. So we know she will not rule before then. But I, I do expect, based on the preliminary thoughts, which sounded like almost a draft opinion that a clerk had written that she had scanned before or maybe even had in front of her. She will rule quickly. Okay, so I want to take your three useful baskets here. One of the, the secondary boycott basket,

C (9:33)

the

A (9:35)

supply chain risk basket, and the we don't want to do business with anthropic basket. And Kate, it seems to me that we are going to have a, it seems almost very clear to me what she is going to do with the, the basket involving the secondary boy boycott, which the government didn't even really resist that much. They say this has no legal effect. She says, do you mind if I issue an order saying this has no legal effect? He kind of weakly says, yes, I mind. But he's really saying, please God, just enter an order saying just lop off that and let the rest of it go into effect. Do you agree with me that the, to the, that that there is going to be a preliminary injunction at a Minimum, that says you can't, you can't interpret this as a secondary boycott of companies that are doing business with anthropic, notwithstanding the way the Pete Hegseth tweet reads.

C (10:57)

Yeah, I think that that's certainly going to be the case. And I also think, and you know, Roger and I were just discussing at the head of the show before, like, we kind of, we went live that I think that like I, I was a little surprised. We were discussing before this all started and Alan Rosenstein and I were kind of chatting in our, in our slack about the fact that the list of issues and the questions that the judge focused on made it seem like she had actually.

A (11:25)

Did you just mention Alan Rosenstein?

C (11:28)

Oh, yes, and I am not the only one to mention.

A (11:30)

Yeah, because fear this leader. I heard that Judge Lynn specifically called out professional.

C (11:40)

It was actually a topic council. It was anthropic council.

A (11:43)

Oh, yes. Said it was useful on this point.

C (11:46)

Yes, very useful on this point. Professor Rosenstein has a brief that is very useful on this point.

A (11:53)

Yes, there we go.

C (11:54)

I woke Alan up in Sweden probably by texting him so many times as soon as that happened. But anyways, I was going to say that like, you know, Alan has said for a while that he doesn't think that this is a typical clonic Rosen disagreement. He thinks it's not going to be on the First Amendment issues. They're not going to reach them. And I think thought that those were compelling and interesting, but conceded that probably after seeing the questions that the, that the judge released today prior to the hearing that she wanted to hear from counsel on that that wasn't going to happen. And then as Molly kind of summarized, she opened with basically like, oh, I'm asking all of this in service of this question, which is that I'm very concerned about the retaliatory nature and the due process questions. And I mean, I kind of like raised my eyebrows to hear that. I wasn't expecting that maybe it would even be talked about extensively. And so then I think that, you know, the, it was just a very, to my ear, it was just a very, a little bit tedious hearing in that it just kind of went through what should be kind of just not really huge issues at statute interpretation given the factual record. And just, you know, the judge proceeded incredibly cautiously on this and just really like kind of worked to establish the record and lay out everything about everything that the, that the government was conceding and everything that they were arguing and what they were not arguing, as you said. And I think at the end of the day that she did that on all of the kind of the statutory claims, and they're just, there isn't a ton there. I really did like the moment that the, the government kind of was like out the harm that had been done by, by Hegseth to the company with his tweets and things like that and said, you know, 13 million people saw this on Twitter. There aren't 13 million people who are going to be subscribing to PACER and able to see that, like now, now that the government's lawyer has conceded that this was just bluster and that this wasn't an actual real threat. And I mean, to his point, 13 million people don't need to see it. Even the lawyers for the companies that feel like they were threatened by Hegseth's, by Hegseth's words, those are, I mean, they do have access to pacer, but they still might not be kind of checking. And this isn't necessarily enough of an assurance without a preliminary injunction behind it. So my guess, just to put it kind of on the table, is that this is a PI and it is on First Amendment grounds, which is surprising. And we can talk more about that in a second. All right.

A (14:40)

So, Roger, the, you know, she sort of lops off the, this preliminary, you know, this, the stuff that's about the secondary boycott. And then Anthropic, of course, concedes that the government's free to cut them off and not do business with them. So it seems to me where the action is in this case is going to be on this question of the supply chain risk designation. Right, which is the one area where one side or the other didn't really concede anything, either concede that the, the headset action has no legal force or concede that he's within his right to do it. Did you get a sense of where you think she is on the integrity of that designation?

D (15:35)

Well, my impression, and you know, Kate mentioned these questions she put out last night, and they did all, they almost all focused on the statute, which is like, does this even apply here? And, and part of it was, did you comply with it? As Kate mentioned, they, they didn't. And, and the government conceded they didn't. They just said that Anthropic doesn't have standing to challenge that part. But, so she's, but it turned out that she didn't ask questions about the First Amendment because she was already confident that about the First Amendment part of her opinion, I think. And she thought, yeah, you Know the. So I thought it sounded like she's tending to rule on First Amendment grounds, Fifth Amendment grounds, probably arbitrary and capricious grounds. And also ultravirus. Ultravirus. Because this statute doesn't permit the government to do what it tried to do here. And that's what most of the questions yesterday were about. I mean, last night, or depending on what time zone you're in, maybe it was yesterday afternoon. But that this is a statute that for the most part contemplates. Well, it talks about an adversary, and obviously the Congress was contemplating foreign states, foreign actors, foreign terrorists. It talks about sabotage. It talks about maliciously introducing unwanted functions into software. So it's underhanded stuff. And the crux of this thing is about. Openly contractual provisions that everyone knew about before the dispute arose. They said, I'm not going to. We can't use this. It's not safe for autonomous lethal weapons and mass surveillance of Americans. Everyone knew that. And the government wanted to remove that term of service. And so there's nothing surreptitious about it. It doesn't fit remotely. And to get around that, the theory. And she was very good on this, I thought, in her questions, she said, to get around that, what the government is resorting to is to saying, well, we asked you to do this and you said no, and that means we don't trust you anymore. And that means down the road, you might try to introduce, you know, you might try to sabotage our war fighters and kill them. And that's sort of a big leap. And so unless the deference is enormous and the deference is high in a national security context, I think she's going to rule for anthropic on all of those grounds.

A (18:50)

Kate, what did you make of the we have a contract dispute, therefore they're going to sabotage our war fighters argument? Delete Me makes it easy, quick, and safe to remove your personal data online at a time when surveillance and data breaches are common enough to make everyone vulnerable. Delete Me sends you regular personalized reports showing what information they found about you, where they found it, and what they removed. The New York Times wirecutter has named Delete Me their top pick for data removal services. And, you know, if you're somebody with an active online presence, you probably know that if you're going to protect your privacy, nobody's going to do it for you. You've got to do it yourself. This is a step that you can take. But if you're not somebody with an active online presence, they're still getting data about you, they're still using it to facilitate phishing attacks on you, to facilitate identity theft. And if you've never been the victim of one of these things, you probably know somebody who have, and it's probably only a matter of time before it happens to you. Delete Me can help. So take control of your data and keep your private life private by signing up for Delete Me now at a special discount for our listeners. Get 20% off your DeleteMe plan when you go to JoinDeleteMe.com lawfare20 and use the promo code lawfare20 at checkout. The only way to to get 20% off is to go to JoinDeleteMe.com Lawfare20 and enter code lawfare20 at checkout. That's JoinDeleteMe.com Lawfare 20 code lawfare20. Want to turn your timeline into a fast lane digital Twin it to outpace the field with fast and confident decisions. Transform the everyday with Siemens Unlock the savings at Boost Mobile and save up to $600 a year I've been scouting these big carriers for a minute now and I've seen them pull the same play a thousand times. They promise you the world, then hit you with a price hike right when the game gets tight. But boost mobile, their $25 a month unlimited wireless plan is the most consistent player on the floor.

B (21:23)

Floor.

A (21:23)

No contracts, no price hikes. Unlock the Savings today@boostmobile.com Unlock based on average annual single line payment of AT&T Verizon and T Mobile customers compared to 12 months on the Boost Mobile unlimited wireless plan as of January 2026. For full offer details visit boostmobile.com there's one place for the newest drops in wellness and performance and the biggest sale of the year. It's the drop by GNC curating the best of what's new, handpicked by the pros who know what works. And right now, get it all. Buy one, get one 50% off during the semi annual LiveWell sale from crushing workouts, leveling up your nutrition and everything in between. Get the best deals on the latest innovations. All the newness is all on sale right now during the LiveWell sale on the drop by GNC.

C (22:08)

I really like the fact that the counterfactual came out right which is that like if they were actually going to sabotage, why would they state up front that you're disagreeing with with with the government? Like they wouldn't do that? Like if you were going to sabotage them, you'd hang on to the contract for dear life and Then like, slip in your sabotage somewhere around the way. That's how sabotage works. And so, like, it was like there was. They were just like, I don't know, the general kind of vibe of this, of this entire hearing to my. Again, to like, I don't spend a ton of time in defense contract kind of arguments or I don't think any of us do, or supply chain kind of designation arguments, but, like, it was just kind of like these. This just doesn't like, this is square peg, round hole. And you can't do this. You can't kind of just kind of rewrite what words mean. And I know that there's been a lot of that in this administration, but this seemed kind of beyond the pale. All right.

B (23:11)

She

A (23:14)

had a pretty organized list of questions, Molly, that. And she last night sent around her list of questions and today walked in with, as I said before, a bit of a. Okay, here's my preliminary thinking, which I would have been. Would have warmed my heart if I were a Wilmer Hale attorney. What did you make of the. Of what can we make of her thinking based on what she said in either that list of questions or the preliminary discussion or both?

B (23:57)

Yeah, I mean, I think, as Roger and Kate have said, one thing we can make of her thinking is that she's taking this First Amendment claim in particular really seriously, which I think was surprising to some people who'd been watching it ahead of time, because I think a lot of people believe, well, really all you need to do is look at the statutory questions and say, this is a ridiculous interpretation of the statute, so why address issues that should be, and I think are harder? Although it seems that she doesn't consider them quite as hard, particularly the First Amendment, one, I think could be considered difficult. So I think that that's one and I guess two. I think that the fact that the government backed off the secondary boycott probably assuaged some of her concerns, and she certainly wouldn't have gone for the secondary boycott. And now she's had stipulations in her court where she can say, well, you said here in court that you don't want to do that anyway, so you can't do that. So I think that that's one thing, too. I think she was also very clearly, again, as Roger and Kate said, skeptical of the supply chain risk determination for the reasons discussed. She. We were just, you know, going through basically this, but she said, wait, so if someone asks annoying questions, then they're not trustworthy. So clearly she didn't think that that was an acceptable standard to use there. And she, I mean, she's in the

A (25:31)

Northern district of California. She's got like the, the highest rate of tech lawyer people who would ask annoying questions and tech bro in the world. It would be like her whole world would become worthy if that were the standard.

B (25:47)

Yes, no, no, no. High tolerance for annoying questions. But I, so I think, I think that she was skeptical of that. The. She also clearly believed that as Anthropic conceded that the government has the right not to work with Anthropic if it doesn't want to work with Anthropic. So I think that the question going forward is. And I also believe that there will be a preliminary injunction. The question is exactly what does it look like and does it effectively tell the government you have to keep working with Anthropic, or does she kind of find a way to massage it so that it says this supply chain risk determination designation is invalid. And everything you said that you wanted to do in court you're held to, but you can use the appropriate procedures to decide not to work with Anthropic. So that's, that's kind of what I would imagine it looking like.

A (26:50)

Kate, what does, what turns on the supply chain risk designation other than if you lop off the secondary boycott and you say, okay, Mr. Secretary, you can designate a company a supply chain risk, but that does not imply that a secondary boycott of contractors takes place. What's the difference between that and just saying what Anthropic concedes they can say, which is we don't want to do business with. With Anthropic anymore.

C (27:29)

Yeah, I mean, the, it's the knock on effects essentially of basically saying that there's going to. That there that you can ruin. Or I think that they put it, I think Anthropic put it in their brief as like murder. Like murder a company essentially by demanding so broadly that no one can do business with them and no one can contract with the government at all if they do any type of business with Anthropic. It's just like an insanely broad read. And so this is, I mean, this is. And we're also, I mean, this is just kind of getting into areas in which no one has ever interpreted this statute before. And it is certainly just not for a domestic company. And so that just implies so many other things. And again, that implies, and the judge seems to very strongly like believe this, that there is a retaliatory component to this. And that is like, kind of like that is the smoking gun in this kind of, in her thinking, as it seemed, was the fact that they like that they tried to kill this entire company. And so even if they concede that like the ban doesn't have secondary ban doesn't have a fact, they tried to do it. And so, and it. And it had maybe lasting harm. And so that is that itself is retaliatory. Now the question, and this is I think why this is the First Amendment issue is actually difficult is now is the retaliation based on speech or is it based on conduct? Is it based on anthropic saying no we're not going to code that or is it based on the speech of them saying no we're not going to code that? Is it based on. They're actually not refusing to code that like the lack of code that they provided. So like these kind of get to be like the issues. Is it them breaking their contract terms? So like if it's the breaking of the contract terms, then that's not speech. Is basically essentially the DOJ's argument. And so if it's breaking of the contract terms, that's not speech. But the judge here did not seem to think that that was what at all. Like that is what the retaliation was for. The judge was very clear. And as the DOJ was kind of ending, ending their arguments, she actually interrupted them at like one point and said kind of very credulously like are are you saying that anthropic going to the press to bring attention to the DoD conduct about their failure to like basically just like air like telling people that this was going on and that they were breaking, that they were asking them to do this isn't speech. And that was essentially kind of her question back to the government. And I mean I think if you're going to, if you're going to take that statement specific moment and, and kind of focus on it, then I think you have a very kind of, you have a pretty decently strong retaliation claim. It's much easier than a lot of actually what Anthropic argues in its brief, which is essentially like a code is speech type of argument, which is a lot way more difficult in my opinion to, for her to issue a preliminary to reach on preliminary injunction.

A (30:38)

Want to turn your timeline into a fast lane digital twinit to outpace the field with fast and confident decisions. Transform the everyday with Siemens. Hey, this is Adam Grant, host of ted's podcast Rethinking with Adam Grant. Have you heard of Bill? It's the intelligent finance platform that uses AI to help you avoid costly errors and optimize cash flow. In fact, Bill reports that over 90 of the top 100 US accounting firms trust them to manage, move and maximize money. Proven by over a trillion dollars in secure transactions. Eliminate the friction and start scaling with the proven choice. Visit bill.com proven to talk with an expert about automating your business finances and get a $250 gift card as a thank you. That's bill.com proven terms and conditions apply. See Offer page for details. Elevated cooking starts with elevated ingredients, especially when it comes to seafood. Wild Alaskan company delivers perfectly portioned wild caught fish straight to your door. It's frozen fresh off the waters of Alaska, capturing pure flavor, texture and key nutrients. Never farmed. No antibiotics, GMOs or additives. Just impeccably portioned fish that cooks beautifully and tastes exceptional backed by a 100% money back guarantee. Go to wildalaskan.com elevate for $35 off your first box of premium wild caught seafood. Roger, do you have thoughts on this?

D (32:18)

Yeah, I think I agree with Kate. It's very obvious there's retaliation because there's this overblown response. There's a lot of ways to terminate a contract without using these statutes, these rarely used statutes. So it's retaliation. But what is the retaliation for and. What helps make the Anthropics case is of course Trump's and Hagseth's social media posts that blame it on public statements that Anthropic has made about the lack of safety and sort of an implied moral problem. But they focus on lack of safety, about having autonomous lethal weapons and so on mass surveillance of Americans. So and so I think it becomes stronger. With all of that it's expressed from the truth Social in talking about Wokeism. And you know, there was a weird filing this morning by the CTO and Under Secretary of War. That's what they're calling him, Emil Michael and there's something creepy about how any disagreement, any public disagreement is taken as unacceptable. And he writes Anthropic has attempted to characterize itself as a trusted partner to Dow Department of War. However, Anthropic's continued attempts, including now under oath, to dictate to Dow what the nature of the department's relationship with Anthropic is and has been demonstrates Anthropic's desire to insert itself into Dow decision making.

A (34:38)

I really, I really, that part really struck me as well. You know, it's Anthropic, you know, and one can criticize them for their red lines. And I have actually questioned whether these are the red lines that make sense for them. But, you know, they've been consistent about these. The government signed this contract. It wasn't a particular point of controversy. Then they came and kind of all of a sudden went nuts about this. And look, am I perfectly willing to believe that Dario Amadei was, you know, arrogant, behaved arrogantly in, in meetings with. That that would be unthinkable. He would never do that. Right. That, you know, a Silicon Valley tech guy would never do that. Okay. But the idea that, like, they are insisting on rewriting the relationship, this was the relationship. Right. And it was the relationship that the, that the Defense Department didn't have a problem with. And so I, I, I think it's really, it's a really striking thing that the Justice Department in court sort of waxes indignant that the government that, that, you know, an opposing contractor party would have views about its terms of service. All tech companies have views about their terms of service.

C (36:46)

Yeah. I'll go one farther, further, like, in saying, like, one of what's. I think that not only there will there be a PI in this, I think that there will event if it continues and the charges aren't like and like Anthropic continues, there will be a decision Tropic's favor. And I think this will easily, and I wonder if Roger Molly, agree with me easily go the way that the District court decisions are starting to go with the Trump administration. I don't think they will appeal this. I don't think that if they lose in the District Court that this is something that they will fight on.

A (37:15)

Well, yeah, I don't know.

B (37:16)

I wouldn't bet they might fight on it. I don't know. I mean, it's like a point of pride thing. And also, you know, this is national security. And just as they're saying that what they're so upset about with Anthropic is that Anthropic would dare to tell, tell Pete Hegseth what to do with his war fighters. I think there will be a little bit of a sense of how dare the court tell us what to do with our war fighters and let's, you know, appeal it up and, and have the court say, no, actually, this is where you get the most deference of all. And I don't know that they'd prevail, but I wouldn't be shocked if they kept trying.

A (37:47)

Yeah. So let's, before we, before we wrap, there is another case which is, of course, in the D.C. circuit and is coming to A head rather quickly as well. So, Roger, what's the difference between these two cases? And I mean, and could we expect a situation in which the D.C. circuit goes one way and a district court in the Northern District of California goes a different way?

D (38:20)

I think we could, in part. There's the panel of the D.C. circuit. I forget, I forget who. But there's two Trump appointees on it. Do you remember, Kate, who the. Who the panel is? Or Molly, it's Wilkins

A (38:39)

and Naomi Rao, I believe.

C (38:41)

Oh, Rao. Yeah.

D (38:42)

Yeah. So I do think it's possible there might be a difference in outcome. The other one involves a different statute. It's another, it's called 41 USC correct me. 4713, I think. And it was enacted eight years later. It's broader. This one, 3252, is about the Defense Department. And then eight years later, after some more experiences, I think the dispute with the Russian lab, Kaspersky that Homeland Security had, it wasn't military. They expanded it to reach other federal agencies. That's the main difference. It also does use the word person instead of adversary. So it's a little broader, you know, on its face that way. That might be something they can make some hay with. But, you know, ordinarily, though, it's the same issues. I think also, Ben, you raised an important issue, which is what are the distinctions between what you can get through normal procurement statutes and what you can get through this one. And it's not crystal clear. I think it would take a lot longer to go through the normal procurement statutes. That's the impression I get. And, and that's the main. This is sort of a Gordian knot approach. And. Yeah.

A (40:18)

All right, we are going to leave it there, folks. Judge Lynn will be ruling in the next few days and the government's brief is due tomorrow. It's basically just over 24 hours from now, 27 hours from now. And we will keep you posted. I suspect we're going to get a ruling before Friday's lawfare Live. Just a guess. Probably during it, knowing our luck. But we will be back with all the action as soon as it happens. Thanks for joining us. The youth mental health crisis is growing and social media is a major driver. Kids are spending up to nine hours a day on screens, often unsupervised. And studies show a direct link to anxiety, depression and even suicidal thoughts. That's where GAB comes in. GAB offers safer phones and watches for kids with no social media, tailored to every age, offering the right tech at

B (41:30)

the right time or Tech in steps

A (41:33)

From GPS tracking enabled watches for younger kids to phones with parent enabled apps for teens, each device allows kids to more safely grow their independence. Visit gab.com getgab and use code getgab for an exclusive offer. That's G A B B.com getgab Gab Tech in Steps Independence for them Peace of mind for parents.