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- [00:01]
Scott R. Anderson
The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of lawfare@patreon.com lawfare that's patreon.com lawfair also check out Lawfare's other podcast offerings. Rational Security, Chatter, Lawfare, no Bull, and the Aftermath.
- [00:32]
Benjamin Wittes
The new Boost to Mobile network is offering unlimited talk, text and data for just $25 a month for life.
- [00:38]
Scott R. Anderson
That sounds like a threat.
- [00:39]
Benjamin Wittes
Then how do you think we should say it? Unlimited talk, text and data for just.
- [00:42]
Scott R. Anderson
$25 a month for the rest of your life?
- [00:45]
Benjamin Wittes
I don't know. Until your ultimate demise. What if we just say forever? Okay, $25 a month. Forever. Get unlimited talk, text and Data for.
- [00:53]
Scott R. Anderson
Just $25 a month with Boost Mobile.
- [00:55]
Benjamin Wittes
Forever? Forever. After 30 gigabytes, customers may experience slower speeds.
- [00:59]
Ryan Reynolds
Customers will pay $25 a month as.
- [01:00]
Benjamin Wittes
Long as they remain active on the Boost Unlimited plan.
- [01:03]
Ryan Reynolds
Ryan Reynolds here from Mint Mobile with a message for everyone paying Big wireless way too much. Please, for the love of everything good in this world, stop with Mint. You can get premium wireless for just $15 a month. Of course, if you enjoy overpaying. No judgments. But that's weird. Okay, one judgment. Anyway, give it a try@mintmobile.com Switch upfront.
- [01:25]
Benjamin Wittes
Payment of $45 for 3 month plan equivalent to $15 per month required intro rate first 3 months only, then full price plan options available, taxes and fees extra. See full terms@mintmobile.com so Molly, I don't know. You're. You're a fellow parent of young children, current young children, and I'm wondering if you've encountered this phenomenon that I has like creeped its way into my refrigerator in the last year. And I am just so increasingly struck by it every time I open up my produce bin, which is that like all of a sudden Washington, D.C. is completely besotten with the most gigantic blueberries you've ever seen in your entire life. Do you know what I'm talking about? It's like a Wegmans thing. I think Wegmans opened in town. All of a sudden, giant blueberries are everywhere and I can't figure it out.
- [02:06]
Molly Reynolds
My own child has moved out of peak berry phase.
- [02:11]
Benjamin Wittes
Oh, that makes me so sad. Actually, he's just a little older than mine. The. My son. I love peak berry phase. I've never had so many antioxidants and vitamin C in my system.
- [02:20]
Scott R. Anderson
Wait, what is a giant blue? How giant is a giant blueberry?
- [02:26]
Molly Reynolds
Like grape size bigger?
- [02:29]
Benjamin Wittes
I get some that are like There's a few I could do multiple in multiple bites. Like, these are giant, giant blueberries and it's insane to me. I don't understand where they're coming from or how they're happening.
- [02:38]
Pam Bondi
Are you sure they're not plums?
- [02:40]
Benjamin Wittes
They're not quite that big. Although we're trending in that direction. I do think they're slowly getting bigger. I, like, haven't taken out a ruler yet, but I may start because it is just like every time I get another grocery order, they're just a little bit bigger. Is it. Does the berry stage go away? Ben, are you still, like, eating berries from when your kids were young kids?
- [02:59]
Molly Reynolds
Or appropriately, are you still spending a non trivial amount of your paycheck on berries for your child?
- [03:05]
Scott R. Anderson
Well, my children don't live at home. I don't really have to keep them in berries. I mean, I still eat berries, but I don't feel like the need to supply other people with berries is a big part of my presentation existence.
- [03:21]
Benjamin Wittes
That makes me sad. I love my newberry fixation. Like, I, multiple times a week just eat a whole handful of berries and I feel. I feel like Bacchus. It's really. It's really something. They're delicious. I'm not gonna lie. I'm a big. I'm a berry boy. Hello, everyone, and welcome back to Rational Security, the podcast where we invite you to join members of the lawfare team as we try to make sense of the week's big national security news stories. I'm thrilled to be joined with two of our stars this week, Co host emeritus and editor in chief of lawfare, Benjamin Whittis.
- [03:57]
Scott R. Anderson
Yo.
- [03:58]
Benjamin Wittes
Always here. Always here with the casual. Yo. Hello. The most chill hype man lawfare could possibly ask for. He is wearing a giant clock around his neck. So we got that part right. But the hype, the hyping is very concise. That's okay.
- [04:11]
Scott R. Anderson
I mean, I could go on and say, oh, it is a pleasure to join you, Scott and Molly. May your days be as glorious as the blue sky or something, but that.
- [04:25]
Benjamin Wittes
Is how you close every staff meeting, so it's not that weird.
- [04:30]
Molly Reynolds
We just removed a wall clock that's no longer working from one of the conference rooms, and now I know what we should do with it.
- [04:38]
Benjamin Wittes
Absolutely. That's the hype clock. That's the dream. This is like an elder millennial reference that only certain people will get. But I do think they're listeners of this podcast.
- [04:46]
Scott R. Anderson
Yeah, I have no idea what you're talking about.
- [04:49]
Benjamin Wittes
Don't worry about it. Don't worry about it. It's a very early aughts TV thing. And of course we are joined. You just heard her, of course, Brookings Senior fellow, Law Fair Senior editor, our Congress maven, Molly Reynolds. Molly, thank you for coming back on the podcast.
- [05:03]
Molly Reynolds
Thanks for having me, Scott, backing me.
- [05:05]
Benjamin Wittes
Up with my elder millennial references. Always greatly appreciated.
- [05:09]
Molly Reynolds
You asked me to come on to do two things, talk about Congress and back you up on your elder millennial references.
- [05:15]
Benjamin Wittes
That is exactly right. I have two jobs and it's why we bring you on and we really appreciate it and we're thrilled to have you on. We have at least one story that is the biggest thing that's probably been eating up your life for the last week or two. This is the big deal in Congress, probably maybe the biggest deal in Congress we're going to see this year among top three. No, maybe not. No, before, before the end of the year stuff. Before the end of the year stuff. I mean, like this fiscal year. No, we'll talk about, we'll talk about topic one. We'll circle back to it because I'm curious. That was what I was kind of thinking. And we also have some things blowing up in the Middle east, as is too often the case. We have some things blowing up in the Justice Department, as is also too often the case these days. We are lucky to have both of you and Benjamin Wittes, of course, whose expertise span those two divides, to talk about that. So for our first topic week, House Odds speaker of the House Mike Johnson scored an unlikely but big win last week when he kept the narrow and notoriously fractious Republican House majority united enough to pass its own continuing resolution to keep the government open and then successfully got enough Democrats to acquiesce to debate on it for it to pass through the Senate without amendment. What does this tell us about the current dynamics in Congress and what the Democratic minority in either chamber might realistically hope to achieve moving forward? Topic 2 this pressure goes to 11 the Trump administration amped up military operations in the Middle east this week, taking out a senior ISIS leader in Iraq, pursuing an aggressive set of airstrikes against the Houthis in Yemen and green lighting a renewal of Israeli hostilities in Gaza, seemingly ending the weeks long ceasefire that has prevailed there. A common threat across all three sets of action seems to be Iran, a regime that the Trump administration has both socked with the return of maximum pressure sanctions and sought to engage on possible negotiations over its nuclear program. Is this new maximum maximum pressure campaign likely to work? What risks and benefits does it present? Saying the quiet part incredibly loud and at length, President Trump gave an unprecedented speech at the Justice Department last week, where he spent over an hour misrepresenting the criminal cases that had been made against him prior to his rising to the presidency and naming specific individuals as enemies. Hui suggested at various points should be arrested or had committed crimes or otherwise should face consequences. What motivated this very peculiar public address? And what will it mean for the campaign of vengeance he appears to be slowly rolling out against his perceived political enemies. For our first topic, Molly, of course I'm going to turn it over to you. I know you have been following this topic because I've been seeing you and your name lots of places as I've been trying to catch up and follow it myself. It has been an eventful week or two in Congress. A notable one's perhaps not the most eventful that we will see for the rest of the fiscal year, as I, as I might have proposed during the introduction, but a high on the list. At least I think we can agree. Talk to us a little about what happened and what the actual sequence of events was that broke down this past week. Because I think, as is so often the case with Congress, the media coverage kind of takes a top line point that doesn't capture a lot all the moving parts that can be important to understand actually what dynamics it's telling us about in Congress. So give us a little more granular detail than we're getting from the headlines.
- [08:16]
Molly Reynolds
Sure. So I'll walk folks through kind of what happened, and then I will offer some thoughts on how we should think about it. So to sort of rewind back to last fall, the federal government operates on a fiscal year that begins October 1st. At the end of September last year, Congress had not completed action on its annual appropriations process. So it passed an initial continuing resolution that took it through into December, kind of kept federal programs running for that amount of time. And then just before Christmas, they passed a second continuing resolution that brought things into March, had a March 14 deadline. Folks may remember that December continuing resolution had a moment where it looked like the whole thing was going to fall apart because Donald Trump and Elon Musk were whipping votes against it and wanted it also to eliminate the debt limit. So if this sounds at all familiar, that was the last round of continuing resolution drama. And so then we get into 2025, Republican Con is sworn in, President Trump is inaugurated. We begin to have a whole host of actions taken by the Trump administration that folks have talked about at length on national security already this year that are interfering with the lawful flow of federal funds. So now the Office of Management and Budget has this memo where it kind of turns off a lot of federal funding. There's what's happening at usaid. There's what's happening with a series of other federal agencies. So all of these interferences on the part of the executive branch with the legislative branches spending power, because Congress needs to act to keep the government open past March 14, there's a lot of pressure on Democrats to use this moment as a moment to push back against what the Trump administration is doing in terms of again intruding on Congress's appropriations power. A challenge that immediately becomes clear is that if you have an executive branch that is willing to violate existing spending law, how do you write something into another spending law that prohibits the executive branch from doing what it's already demonstrated the willingness to do? That's the baseline. As we approach the deadline of March 14, Democrats start to feel increasing pressure from folks outside the chamber and then in some cases within the chamber to really take a hard stand on this continuing resolution and say, we will not vote for this. It did need some Democratic votes to move through the Senate in a timely fashion because of the ability to filibuster spending bills in the Senate. So the idea we don't supply any Democratic votes for any part of this unless we get a commitment from the executive branch that Elon Musk will stop doing Elon Musk things. To sort of shorthand it at the beginning of last week, Republicans manage, with their very narrow majority and a fair amount of persistent division within the Republican conference, do you manage to clear this thing through the House? There's one Republican who votes against it, there's one Democrat who votes for it. It gets to the House, and then it sort of lands in the laps of the Senate. And at this point, initially, Senate Minority Leader Chuck Schumer comes out and says that there are not the votes among Senate Democrats for advancing this legislation. And so then for about 24 hours, folks think, maybe they're going to do it. Maybe they're going to shut down the government. And then about 24 hours later, Schumer comes out and says, no, I myself will be voting for cloture. I will be voting to cut off the possibility of a filibuster. And that was widely and correctly seen as a signal that there were enough other Democrats who were also willing to do so. So that happened. That that vote happened on Friday, followed, I should say, the vote on on the measure itself happened on Friday and we averted a government shutdown. So I think when we think about this, there are kind of two dimensions to think about. There's a substantive dimension. There' question of kind of on the merits, what are the reasons for Democrats either having agreed to keep the government open or Democrats maybe should have done something differently and shut down the government? There's a second set of questions that I'll also get to about sort of the strategic and political handling of this by Democrats, but starting with kind of the substantive pieces, the reasons not to have voted for the CR kind of the reasons why Democrats that I think have some merit for why Democrats shouldn't have supplied the votes to keep the government open. Number one is just the magnitude of what the executive branch is doing, sort of the magnitude of the incursion into congressional power that, you know, these are not normal times. These are not times to be kind of making ordinary congressional deals, particularly deals that you have no belief that the executive branch might stick to. So, you know, if not now, when that's kind of, I think the, the argument for why perhaps they should have shut down the government. I think the reasons why they might have done what they did. I think there are three here that are moderately persuasive. One, we know that when there is a government shutdown, the executive branch in the form of the Office of Management and Budget has a lot of flexibility that it can use to decide what stays open and what shuts down. There's a series of Office of Legal Counsel memos from the 1980s. I think there are two of them. There are interpretations of the Anti Deficiency act that are supposed to really cabin what happens during a shutdown, really limit what kinds of operations that are funded by annual appropriations continue. But we know from the first Trump administration that President Trump has been willing to play a little bit fast and loose with these rules. So in the first Trump administration, there was a 35 day shutdown. The Trump administration did things like keep national parks open. It allowed the IRS to continue processing people's tax refunds. It allowed the Office of Management and Budget itself to continue reviewing federal regulations, a whole list of things that probably don't meet the test of what should be able to continue during a shutdown. And so there was a real possibility that if, if the government had shut down, if there had been a shutdown, we would have seen the Trump administration sort of behave that way and then some in terms of kind of what it let keep going versus what it forced to stop. There's also a real possibility that if there had been a government shutdown because of the way that kind of the reversion point shifts in that situation, that it would have been extremely difficult to reopen the government subsequently, that we may well have been in for a very long shutdown simply because once the government is off, to sort of put it colloquially, the idea of finding Republican votes to affirmatively turn it back on is, I think, a lot harder than finding votes for it to sort of stay open. And then the third thing that I'll say, and this gets a little bit into kind of legal argument territory that's less my wheelhouse than others, is that I do think there's an argument that now that Congress has passed a continuing resolution, that it can continue to argue that what the executive branch is currently doing in terms of federal spending is in violation of previous congressional decisions. It sort of carried forward last year's spending levels in a broad sense. There are exceptions to that. They are important. But in a broad sense, Congress has said we have reapproved what we approved last year. And so when the Trump administration refuses to spend money at usaid, when it refuses to spend money at the Department of Education, in violation of a set of choices that we made once and now have made again. So that's kind of the substantive thing. Let me give a little bit on the politics, and then I'll stop talking. So I think anyone who watched this unfold is probably asking questions about, like, why were Democrats so adrift in figuring out how to manage this situation politically? So, again, I think on the substance, there are, you can make a solid argument either way on what was the right substantive thing to do on the politics. I would say a couple things. One, Democrats are in some new political territory in a couple of ways. Number one, for a long time, we have thought of congressional Republicans as having a strong constituency for, like, fighting for the sake of having a fight, that, like, the fight is the end in and of itself. It's what their voters want to see them doing. I think we're starting to see that to some degree for Democrats, and it's new territory for them. This is not a feature of the structure of the Congressional Democratic Caucus that they have a lot of experience with. Relatedly, I think this is also a case where Democrats, for the first time in a long time, were dealing with the existence in the Senate of what I'd call a vote no hope, yes group. So I suspect that some number of the Senate Democrats who voted against ending debate on the continuing resolution actually did want to avoid a shutdown. They don't think having a shutdown was a good idea. But we're feeling this pressure to say no, we can't abide what the Trump administration is doing. We have to fight. But secretly, they were in agreement with the idea that the government should stay open. And again, this is a very familiar dynamic for Republicans, and we've seen it on lots and lots of issues of fiscal policy over the past 10 to 15 years. It's new for Democrats. And the last thing I'll say, and here I'm borrowing an idea from a political scientist named Julia Azari, who has made a really perceptive point that Democrats also really haven't adapted to our nationalized political environment because of their coalitional dynamics. And so when we think about, for example, this question of, like, well, what Nancy what would Nancy Pelosi have done? Would Nancy Pelosi have behaved like this, behaved in the way that Chuck Schumer had? I think that that elides the fact that the nature of managing the Democratic caucus is just a fundamentally different task than managing the Republican conference. And because the Democratic caucus has sort of blocks that make up the coalition in a sort of different way than Republicans do, and that Democrats just aren't used to sort of fighting out these coalitional fights in a nationalized political environment. And then the last thing I'll say is just that we have seen a lot of House Democrats, including House Democratic leader Hakeem Jeffries, though he walked this back a little bit this morning, sort of come out and say that they didn't agree with what Schumer was doing. I will note that that may well be true. And as I said at the top, I think there are reasons to think that this could have been the wrong call. But I'll also note that if you are Hakeem Jeffries, it is very good for you politically to have everyone mad at someone who's not you and to have everyone mad at Chuck Schumer instead.
- [20:04]
Benjamin Wittes
So that's incredibly useful. Molly. I do think it's worth bringing one other thread into this, but I want to Curious if my sense of this is correct. There was one deal that emerged that I understood to be part of the eventual passage of the continuing resolution in the Senate, which is that the Senate then immediately moved to vote on a separate piece of legislation proposed sponsored by Senator Collins, who's the Republican chair of the Appropriations Committee. Importantly, that got basically unanimous passages passed on a voice vote where there was nobody, nobody was heard to say nay. So we think it was Unanimous. You don't really. With the voice vote that fixed a very big DC budget problem that was inadvertently imposed by the cr. We don't have to go into depth on that because it's not really a lawfare issue. But just know it's something that Molly and I have been very stressed about. I'm sure Ben as well, because it really impacts people with school age children.
- [20:51]
Molly Reynolds
And really anyone who spends any time in the District of Columbia, like, do you want DC's trash picked up? You care about finding that, finding a way to fix this particular issue.
- [21:01]
Benjamin Wittes
It was going to be astoundingly bad. It could still be astoundingly bad because this deal did seem to. The timing strongly seemed to suggest it was tied in with the CR is my understanding. But it was passed separately, meaning it has to go back to the House, which the House left pretty much as soon as it passed the cr. Right. I think in part as like a little bit of a tactic to say.
- [21:20]
Molly Reynolds
Yeah, to try to try to jam the Senate basically. And I don't know that that's the. I don't think that's the most important explanation for what we eventually saw happen. But it's certainly part of the overall story that basically they voted on. I think it was Monday, it might have been Tuesday, and then left town to make it much harder for the Senate to take what the House had done, amend it in some way and send it back to the House before the Friday night deadline.
- [21:44]
Benjamin Wittes
Yeah. And so we'll find out on, I think Tuesday or so the 24th, I guess that's Monday. Whether or not this succeeds. I think that's the day that Republicans in the House are supposed to be back, that they may take this up and then they may not take it up first thing, they may take it up down the road at some point. That kind of leads to my question, am I like beef with this? Because I am usually an institutionalist. I do not like shutting down the government. I think it's bad. I fully buy reasons why it might be particularly, particularly bad this time. But what I don't get is the lack of an effort by Democrats to achieve at least some sort of concession out of getting ultimately letting this go forward in the Senate, even as small as this House deal. Like obviously there was, pardon me, as this DC budget deal. If you had incorporated this into CR as a fix, yes, it would have had to go back to the House, but then you would be confident it would pass because at least. Or be more likely of passing than this point because The House Republicans would have to vote for it to get their CR through, whereas now we're just relying upon Mike Johnson's goodwill and the fact that Democrats will swoop in and fill any votes that Republicans can't get for it in the House. So I guess my concern is. And, Ben, I want to bring in your thoughts on this, actually, before I turn back to Molly, if that's right, just to bring you the conversation a little bit. Am I being too picky about this? My general vibe is you shouldn't let Republicans jam the Senate. If you're the Senate, if that's the one spot you have any leverage as Senate Democrats, even in a close minority, but you still have some leverage because of the filibuster, because of cloture. And I just don't like the fact that they didn't even try and get those concessions rolled into this package, earned away with credibility. Instead, they basically let the House majority get its way. And I'm really worried about the message that sends back to that majority and to the House leadership about how they're going to approach debt ceiling fights later this year. I think over the summer, sometime, the next time we go through this at the end of the year, all sorts of other. The other big legislative fights that we're gonna see. Am I off on that, Ben? I'd be curious about your reaction. Then I want to turn back to Molly so she can correct us on why we should calm down about our rage or not. Did you have the same sort of frustration that I did out of this eventual outcome?
- [23:55]
Scott R. Anderson
I find the whole thing bewildering, actually. And to me, a lot depends on whether Schumer was leading his caucus or following it. Right. And I don't purport to understand the answer to that question, but it seems to me one possibility is that Schumer makes his speech saying, we're not going to give you the votes for this, and then discovers that actually he doesn't have the votes to deliver on that, and that there are a whole bunch of people in his caucus who are going to vote with the other side, or at least on the. On the question of whether to hear it. And so, so he then, having discovered whether where his caucus is, leads them there. That was not the vibe of what last week felt like to me, which was more that he decided, you know, he lost confidence in his position, reverse course and brought some people with them. And as Molly described, there were even more who kind of secretly wished, although they voted the other way, if that's what happened. I really don't understand it for exactly the reason that Scott just said, because I don't understand why you give up unilaterally rather than get something or demand something, at least in exchange for it. I also don't understand, to go back to Molly's earlier point, why it is valuable to lock in spending levels at the mostly to lock in spending levels at the last administrative, you know, the last budgets levels, when you can't even force the administration to actually spend at those levels levels. And I worry that rather than doing what Molly describes, which is, you know, Congress saying, no, we, we spent this amount of money on usaid, we really mean it, we're re off, we're doing that, it actually has the opposite effect, which is that the administration will argue, as you know, authorization appropriations bills are weak legal argument except for the fact of spending, but that the administration will now argue to court, hey, Congress, fully cognizant of our position that we don't have to spend any of this money reauthor, you know, refunded at current levels, which at some level validates our position that we have discretion as to the expenditure here. They could have, you know, forced us to, but they chose not to. And I do expect that argument, weak as it will be to make its way into some of these impoundment litigations. And so I just found the, the whole thing completely mystifying. And I honestly, a lot of it depends to me on whether Schumer actually had the votes to stop this thing and chose not to use it or whether Schumer himself was just kind of along for the ride.
- [27:18]
Molly Reynolds
So I think a lot of sort of what you've both just said comes back to the fundamental, the sort of place where I started, which I think substantively this was a hard call. Like there are arguments for going both ways. I think, Scott, on your point about sort of the D.C. budget fix, if you will, here, I do think it's quite consequential that the House jammed the Senate. And I think probably rightly, Schumer felt like if he held out for that one thing, and maybe there were the, as we know from the fact that they voice voted a bill that would fix it as a standalone measure right after they voted on the cr, there probably were the votes in the Senate for a version of the CR that had the language that has been in CRS for two decades that was left out of this CR which creates the problem. The Senate would have voted for that. But if the Senate had voted for that and sent it back to The House on Friday afternoon. The House is not here. Mike Johnson is not bringing the House back to solve this problem. And Mike Johnson would probably have a whole bunch of very angry members of his party if he tried to sort of move it in the House during a pro forma session or something like that. And so then we're looking at, well, the government shut down and it's not reopening again until at least whenever you can convince the House to come back. And who knows when that is. So that's sort of how I, how I think about that particular issue. The whole thing that when we talk about things that are mystifying, how that problem arose in the first place is maybe one of the most mystifying things to me, in part because no Republican in the House was really willing to take credit for that happening on its merits. And like, this is the House Republican Conference, where you can often get someone to go on television and take credit for anything on its merits for some of them, like, that's what they like to do. But no one was willing to come out and say, oh, like, we did this for X, Y and z reasons. There is, to be clear, a faction within the Congressional Republican Conference who is coming for D.C. home rule, who sort of has a principled belief that the District should not control its own affairs. But even those folks were supportive of this idea. But no one came out and said, oh, this was my idea. This is why this was in the bill. I do suspect that once, whatever the circumstances were, that led to a version of the CR that didn't contain this language, once it was noticed that that wasn't there. More broadly, Mike Johnson was faced with a choice of trying to fix the problem in the House before it went over to the Senate, and was afraid that if he tried to fix this problem at that point he would start losing more Republicans and he wasn't going to get Democrats on board simply by having fixed this small DC problem. So that's kind of my guess as to how we got where we are. We will see what happens. Reporting says that the White House is in favor of fixing this. The House Republican appropriators are in favor of fixing this. I suspect that if Johnson brought it to the floor, when the House comes back under what we call suspension of the rules, such that it doesn't have to go through the Rules Committee, he would get the necessary 2/3 votes. Maybe I'll eat my words in two weeks, I don't know. But I will absolutely own that that particular piece of this and how we Got to having this problem is a mystery to me.
- [30:55]
Benjamin Wittes
But I think it goes back to the dynamics around this whole debate and we're short on time. But I want to hit on one last part of this about the assumption here, implicitly, it seems to me, is that a shutdown is going to be particularly bad and painful for Democrats and less painful for Republicans. That's why we worry that Republicans will be more willing to sit it out. They want to see the government grind down. And the only reason I have trouble buying that because I can see a lot of the priors why that's the case. Republicans are more willing to do this in other circumstances. Elon Musk is doing a lot of things that look a lot like a government shutdown. And according to some, he wants to bring the government to permanently look like what it looks like a lot during a shutdown. That is all real. But we just saw the Republicans expend a huge amount of political capital to get their narrow caucus to pass a CR to keep government from closing. JD Vance just 72 hours earlier was reported telling House members, you can't shut down the government. Republicans are going to take the blame for this.
- [31:57]
Molly Reynolds
Yeah, but he also in that same statement said if you pass the CR, we're just going to keep impounding money anyway. He sort of gave away the game on their underlying point.
- [32:11]
Benjamin Wittes
But the point is the administration wanted the government to stay open. They were worried about what was going to happen if the government was going to close. And there just seems to be this non appreciation that that is a point of leverage that Democrats had that that seems like it would warrant some sort of usage. Now there's this question of like, okay, if you tip over to shutdown because you couldn't get done fast enough because the House all left town and they're not able to come back and get the votes together, maybe that's bad, maybe that spins into a permanent shutdown or extended shutdown. But if it was something that was so tolerable or something that Republicans would lean into or willing to, why was it so important to them to avoid the shutdown the first place? And legally, like, I don't, I don't know if I really buy arguments that a shutdown increases their ability to go about doing doge type things. If anything, I would think it might present a political risk to it because it's going to confront Americans very immediately with a whole range of the consequences that are just trickling out from the doge type actions which are, despite moving very quickly, are much slower compared to a shutdown and that you might get a, a political backlash to the idea of like, this is what a slimmed down government actually feels like. Do you really want this, Americans? And so I don't know. I just don't totally see the calculus on the Democrats part to say like, this is not something, this is something that we just could not live with. Not all the Democrats, of course, but just that critical mass.
- [33:37]
Molly Reynolds
I guess I'll say two things quickly before we move on. Number one is that some of this comes back to something I was saying earlier about the fundamental sort of difference between the, the Democrats and the Republicans and how their parties are organized and the degree to which sort of Democrats want government to work and Republicans don't, or it's sort of not as broadly important to them in the same way. And so I think some of this comes down to just like Democrats aren't interested in having a government shutdown in the same way that Republicans are. The second thing is that this question of creating political pain, I think it's important to remember that the people who are going to feel that pain first are vulnerable Americans who are not, for a whole host of reasons in a position to themselves, mount a strong political response against what the government is doing. So it's kids who don't get meals, that sort of thing.
- [34:34]
Benjamin Wittes
Well, let us go from one long, slow, drawn out, arguably generational fight to another in a very different corner of the world, and that is the Middle East. It has been, after a somewhat quiet few months in the Middle East. That's overstating it, but by the Middle east standards, I think relatively quiet, at least in terms of American headlines and American involvement there. We are seeing a real spurt of activity. In the past week. We saw really not just the past week, really just the past 72 hours or so, 96 hours. We saw a fairly high profile military action in Iraq that took out the purported number two of ISIS in Iraq. It's a joint military operation between Iraqis and Americans. Notably this is after Americans had officially withdrawn and were no longer fulfilling combat roles in the country as of the end of last year. But obviously they're doing something because there were both special operators on the ground and American drones or fighter pilots. I can't remember whether it was a drone strike or an airstrike that did the business, but that was involved in these operations, at least according to centcom. Then we also had, separate from that, in Yemen we saw 48 hours ago or so a really concentrated, aggressive range of strikes against The Houthis in Yemen. That is on a scale that we only saw the Biden administration pursue once or twice, and I think probably of an order of magnitude, a little bit bigger than that. Maybe not order of magnitude, but a bit bigger in scale than what the Biden administration pursued. And being very, very clearly couched as both retributive and intentionally escalatory by the Trump administration. They're essentially saying, look, these attacks that have been ongoing intermittently against American ships and U.S. navy ships present in the Persian Gulf need to stop Houthis or we are going to keep escalating, hitting you harder and harder and harder. It's also tied to the redesignation of Ansar Allah, which is the alternative name of the Houthis, more proper name, as a foreign terrorist organization. Although notably, despite what people persist in staying FTO designation has absolutely nothing to do with the use of military force. So not actually implicated here, but notable that happened as well in the last few days. And then we've seen just in the last 12 hours, 24 hours at the time we're recording this, which is around midday on Tuesday, March 18th on the east coast, we saw what appears to be a collapse of the ceasefire in Gaza. The ceasefire has already been on kind of its last legs. Phase one ended at the beginning of March of the ceasefire. Even before the end of cease one Phase one, we saw a little bit of shifting in circumstances of the parties. Hamas slowing its role on the release of hostages, most notably releasing hostages in pretty publicly humiliating ways that were meant to play up Hamas domination in ways that I think the Israeli street found very, not unreasonably, in my view, pretty offensive and terrible. And that this, combined with the wind up of phase one led to a situation where phase two, which is supposed to be a more substantial transfer and withdrawal by the Israelis and transfer of authority back to somebody in Gaza, basically has gotten to a halt negotiation never got off the ground. There was talk among the Israelis of a Witkoff plan, Witkoff being Steve Witkoff, Trump's envoy that's been leading the negotiations around this, where essentially he said, Hamas, you, you should give half of your remaining hostages and remains back to the Israelis. We'll get six more weeks of ceasefire, then you'll give the other half and by then we should be in negotiations. A re imagining of phase two, to say the least, from the original Biden contrived cease fire plan that didn't get any bite on the Gaza side. And so now we are seeing essentially a renewal of pretty substantial airstrikes there are reports at least from Gazan officials of 400 killed, 500 injured from this latest round. And it doesn't appear like this is going to be the end of it. Israelis appear intent on renewing some sort of hostilities at least in the short term to kind of change facts on the ground. Ben, you are, as always a close watcher of various corners of the Middle east, particularly Israel and the Palestinian territories and areas around. But the Houthis have been on your radar, Iraq has been on your radar. Talk to us a little bit about what you make of these developments. All kind of popping up in this last 72 or 96 hours or so and what the unifying theme is. Oh, and actually I should mention the one unifying theme we hear in press statements from Americans on all this is Iran, particularly in the Houthi strike, also in the Gaza strike, basically blaming Hamas. And then some statements, Hamas and his kind of backers in Iran, in the Iraq context, targeting isis. ISIS is not backed by Iran, but continued U. S. Iraqi military cooperation is another thing that has historically gotten under Iran's, you know, irritated them a little bit. So there is this kind of threat. And Iran is a country that the Trump administration has both renewed maximum pressure sanctions on in the last two months since coming back in office, but has also reached out to and tried to start some sort of diplomatic dialogue with over its nuclear program. But with the backdrop being if we don't get negotiations on this, we're going to have to turn to the use of military force. That's kind of what this looks like, or at least a preview of what that might look like. Ben, talk to us about this. What do you make of this? How are these all tied together to the extent they are?
- [39:36]
Scott R. Anderson
Yeah. So like everything in the Middle east, everything is both connected and unconnected at the same time. Right. You have three discrete conflicts that are, you know, that interact with one another but mostly are unconnected. Ish. So the rise and fall and re. Rise and refall of ice is something that the United States has a long standing and cross Presidential interest in the Trump administration may sound a little different from the Biden administration in this regard and, you know, likes to thump its chest, whereas the Biden administration like to be quiet about things like this. But by and large, both administrations are going to behave similarly with respect to maximizing cooperation with the Iraqi government to confront ISIS and keep it, you know, keep ISIS small. Right. And so this is a fairly spectacular raid, but it's. I don't think it's particularly surprising or out of character with what the administration has been doing across the Biden administration, Trump administration, and even late Obama administration in this regard. The Houthis are a little bit different because they actually got involved in this more out of, you know, they were always harassing shipping, but they really went to town on it. After October 7th, they kind of entered, entered the fight, forced the Israelis to do some very long distance air raids responses. They were firing missiles into Israel on a fairly regular basis. You know, they, they really upped their harassing shipping game in connection with the post October 7th environment. And look, I mean, the Israelis have, they've been a headache for the Israelis and they have been a bit of a surprise player in the whole thing. It's not unlike Hezbollah, it's not an area where the Israelis have especially good intelligence. Yemen is a, at least was a little bit off their radar screen most of the time. But it's an area that the U.S. navy has been thinking about for a long time because of, I mean, before there were the Houthis, right? There were Somali pirates right there. This region is one in which the US Has a long standing commitment to safe and free navigation of international shipping. And so if over time you go after shipping and they've actually targeted a lot of Navy vessels over the years, recent years, and so if you do that over enough time, eventually the United States is going to pound you and that's what happened here. And you know, again, the Trump administration likes to describe itself in chest thumping terms and talks about how much bigger this operation is than anything the Biden administration did. But I take that more to be a our missiles are bigger than your missiles kind of thing, rather than a reflection of some deep change in policy. I think our policy is freedom of navigation in the relevant, you know, the Red Sea and other Suez Canali kind of areas. And over time, if you mess with that in a serious way, the Navy is going to have a problem with you and you're going to have a problem with the Navy. Now, I do think the collapse of the Gaza ceasefire, which may be atmospherically related to all this, in the sense that, that a bunch of stuff is going boom in the Middle east, that's a great time to end a ceasefire, if you happen to want an end to end a ceasefire. I do think that one has a wholly different cause, which is that Bibi Netanyahu has never wanted this ceasefire. And for all the Bibi Netanyahu haters out there, of whom I am one, there are some good reasons for that that, you know, there are some bad reasons too. But you know, one of the problems is that the terms of the ceasefire do not require that Hamas demilitarize in any meaningful sense. And so if you go into this phase two negotiation, you're kind of agreeing at some level that you're given up on one of your chief war aims too, which is to eliminate Hamas as a military and governing leadership cadre in Gaza. And I don't think Bibi is ready to do that. And in the name of the few remaining hostages, many of whom are dead, by the way. The other side of the equation, which is the non decent reason, or is that he has coalition partners, one of whom just reentered the government as a result of this step that basically said we'll bring down the government if you go into phase two negotiations. And so Bibi, you know, he is caught between a rock and a hard place. And but before you feel sorry for him, he wedged himself between that rock and that hard place and he likes it there very much. And so, you know, things were going boom and you could just kind of end this conversation if you, if you made a few more things go boom. And that's what he did. I think that's the best short explanation I can give.
- [45:49]
Noam Osbaldiston
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- [51:08]
Benjamin Wittes
I think that makes sense to me. But the one thing I'll maybe push back on, or maybe just bring in another thread of is I do think there's a little bit more of a connection here with Gaza and the broader Iran efforts that's worth touching on in Iraq a little bit, which is that Gaza part of the reason Netanyahu bought into the ceasefire in the first place, which Steve Witkoff, in coordination with Brett McGurk and the Biden administration's team kind of during the transition just before Trump's inauguration came in, was because of concerted effort by Witkoff and by the Trump administration. And part of the reason they've been able to drive the success of phase one, the continued exchange, and iron out a couple wrinkles, is because of a concentrated effort on their part, which has sway with those kind of right wing elements in the Israeli political elites, including Netanyahu's coalition, because Trump is seen as such an ally, including by people on the right. I'm channeling Joel Brunel and a lot of his conversations I've had with him on the Lawfare podcast about this the last few months. But very few people know this better than him and I take his word for it. And these are the dynamics as he kind of describes them. So my suspicion now Joel hasn't testified to this, although now I'm tempted to ask him, is that the sign that the Israelis are willing to do this is an alleviation of pressure? I think its desire to do it is driven by Israeli dynamics and and has been kind of ever present. Netanyahu is not excited about it, frankly. There's not a big public demand for the ceasefire, if anything I think it's pretty unpopular in Israel in a lot of dimensions, but it is nonetheless something they feel compelled to go along with because of the pressure from the Trump administration. But that appears to be alleviating, or at least on pause. Maybe that's deliberate choice because they think it's okay to have a little more pressure on Hamas and Iran right now, change the facts on the ground, beat Hamas back into submission. That tends to be a big part of the strategic picture for this administration in a lot of different zones is the overwhelming use of force. It could also just be a matter of attention span. I mean, Steve Wyckoff is now also leading negotiations with Vladimir Putin over Ukraine, more or less replacing Keith Kellogg, although Kellogg is still in place. So it might just be that he doesn't have as much time to manage the politics in the Israeli picture and around the ceasefire. And the Israelis are taking this as a opportunity to say, well, we're going to try and change things on the ground in our advantage. I don't really know which it is, but I wouldn't rule out the possibility that it's at least a combination of those two factors, if not the former. And that does kind of tie it into the strategic picture. It also means that while they may be willing to do this to alleviate a little bit of pressure on, ramp up pressure a little bit on the Iranians, you go too far. It complicates things because you have the Arab states on your side in terms of confronting Iran and trying to cabin Iran in various regards, including potential through negotiations, although they'd have to go beyond the nuclear profile, most likely. But you push too far in Gaza, then all of a sudden the Arab states can't cooperate with you on other fronts as easily as they might like. So it's this kind of delicate balancing act that, if they want to walk this tightrope, will be challenging for them. Molly, let me turn to you on this. I want to ask you a domestic politics angle on all of this, which is to what extent do we see anyone in Congress even remotely engaging this? Currently, bearing in mind, it's been a difficult few weeks, but I'm brought back to the memories of the debates around military action in Yemen and in relation to Iran during the first Trump administration, where we did ultimately see actually bipartisan opposition from Congress, resolutions supported by both chambers, including while the Senate was under Republican control, meaning a number of senators crossed the line and joined Democrats in backing these resolutions on the War Power resolution, all of which were vetoed by President Trump, and then ultimately never entered into force, but nonetheless were a clear sign that there was engagement and resistance to the idea of Trump first backing the controversial Saudi military action against Yemen. But that was often framed as kind of generally involving the United States in an intense conflict in Yemen and then escalating specifically against Iran after the Soleimani killing. So do we see any signs of this sort of discontent? Some of the people who sided with Democrats in opposing Trump then are still in the Congress. Many of them aren't particularly on the House side, but some of them are. But I haven't heard anyone engage in this, and that includes Democrats, too. I haven't really seen that many Democrats be that vocal about any of these things in the recent past few days or few weeks. What are the dynamics around these foreign policy questions in this new Congress, to the extent where we even know yet, because it's still very early in this Congress kind of constituting itself?
- [55:41]
Molly Reynolds
Yeah, I mean, I think the point that you made about the degree to which the Republicans who were interested in pushing back against Trump's exercise of certain foreign policy authorities in the first Trump administration, many of them are no longer in Congress. And so to the extent that we would expect a similar block to emerge on these issues, that cuts against the idea that we're going to see sort of that kind of pressure. Also. Just note that this is a little bit unrelated, but I think while we're talking about tools available to members of Congress to push back against the executive branch, the House last week as part of the special rule for debate on the continuing resolution. So the measure that the House passed first to set up the terms for debate on the Seattle included a provision that basically turned off the availability of certain expedited procedures in the national emergencies context for the duration of the year. This is, I think, basically an attempt to prevent anyone in the House from forcing a vote to end the national emergency that's going to underlie the exercise of tariff authority. I'm saying this not because this is directly about Yemen or the Middle east, but just as a reminder that there's reason to think that even if we do see some Republicans who are interested in using procedural tools available to them to push back against the Trump administration, that we may well see, especially in the House, efforts to sort of prevent them from doing so, which is the thing the House can do if a majority of the House wants to, that's kind of the rule for understanding the House of Representatives generally. But this all sort of adds up to, I think that, you know, we may well see some members make statements and that kind and want to be engaged with the administration on these issues. But that this is one place where I am not sure that we're going to see kind of organized Republican opposition in the way that we did in some situations during the first Trump administration.
- [57:47]
Benjamin Wittes
One dynamic that I think is lost a little bit in the coverage about this, particularly in the Iran context, is the extent to which Iran is really kind of on its back legs at this point, which is pretty extraordinary. It's a pretty extraordinary regional development. I mean, Iran has been the unifying threat in the Middle east really, I think for the last 20 years, maybe a little less than that, 15 years once you get past the Islamic State being another one for a good chunk of the Middle East. But concerns over particularly nuclearizing Iran have dominated regional politics, particularly with the U.S. perspective, particularly with the U.S. israeli relationship for a long time. And I really think, I think a lot of this is a sign that while Iran has a lot of political salience, certainly and is of strategic concern, really, people don't think it's the threat it once was and is much more susceptible to this sort of military pressuring. Certainly in the Iraq context, I'll note there was supposed to be a US Withdrawal by the end of last year originally. Then it got shifted to kind of a phased withdrawal that extends till I think September of this year under the current plan. But we've already seen a lot of change of postures among folks in Iraq where there are the dominant political party, a lot of politicians that are closely allied with Iran and Iranian factions. But there's a super strong nationalist strain that kind of runs throughout all Iraqi politics where even groups allied with Iran sometimes aren't thrilled about the degree to which they are co opted or dominated by Iran. And there may be a resurgence of those sentiments as using the United States States military presence is a bit of a counterweight. And so I say all this to say, and Ben, I'm curious about your thoughts about this. I kind of get the impression that this may work better this time than it has in the past. And I actually do think there is a moment for really achieving this. This is all a product, frankly of the Israeli military operation in Lebanon and then the completely surprising windfall success of rebel groups in Syria capitalizing upon the Israeli military operation in Lebanon, something that I was highly skeptical of going in, just to be honest about my priors, but undeniably has changed the complete dynamics of the region in regards to Iran. But I don't know which way that breaks either it breaks one. Iran just feels like it's weaker across the board. It doesn't have any proxies. It doesn't have any push points back. And so ultimately has to capitulate. So it says, okay, let's just engage with negotiations. We can trade away our nuclear file and maybe some regional. Regional machinations, that we really can't do that effectively anymore to get some concessions and therefore improve our regional position. Or do we just say, actually, a nuclear weapon is the only thing that's going to keep us safe because we just don't have that many resources left to us. We don't have that many other cards yet to play. The nuclear card is one of them. We actually need it to play. We can't just trade it away. Do you have a sense about which way that breaks, Ben, or is that what we're all waiting to see, I think in the weeks and the months ahead?
- [60:42]
Scott R. Anderson
Well, so I think, you know, call that the North. North Korea option for Iran. And, you know, I'm biased by the fact that I watched North Korea go through that, you know, 20 years ago. And it strikes me as when you have a highly militaristic society that forms it, a big part of its identity in terms of its military opposition to the west and to the United States in particular, you have to worry that if you, if it's backed into a corner, that that will be its response. Now, that is not, to me, an argument against backing it into a corner. It is an argument for doing so very carefully. And the irony is that what happened here, as you described, Scott, is that they went from a perception of being in a very strong position, which is that they had proxies in Yemen who were primarily about, you know, harassing the Saudis and the uae. But they had, they had proxies in the Syrian government. They had proxies sort of in Hamas and Islamic Jihad, and they had a big old proxy in north, in southern Lebanon, which was Hezbollah. And, you know, Hamas is not in a position to be anybody's proxy right now. They're scratching along, surviving, but not doing a lot more than that. Hezbollah has been revealed as a, I mean, substantially strategically defeated. The Syrian government is gone, and the United States is dealing with Houthis now.
- [62:37]
Benjamin Wittes
Right.
- [62:37]
Scott R. Anderson
And so, you know, this is a, the, this is a forefront defeat for Iran, which is already an economic mess, and the Iraqi government as, and you know this area much better than I do, is, you know, showing a lot more independence and capability than it was only a few years ago. And so I I do think there is a real question about Iran's position is, is not just worse, it's dramatically worse than it was a couple years ago. And it has been not just is it become materially worse, it has been revealed to be worse. Oh, and the other thing which people aren't talking about, and I forgot until now, is that the Israelis took out a huge amount of their air defense system systems, the actual Iranian proper air defense systems, in response to those missile attacks on Israel. So there's this common understanding now, which may be overstated, but I wouldn't assume that, that the Israelis can do massive strikes on Iran kind of at will right now with respect to the nuclear program. So whereas they looked super strong only quite recently, they now look super voluntary, vulnerable. And I guess the question is, do they respond to that by coming to the table, which is a, you know, honestly, that's a very hard thing for them that they are, you know, a truly ideological beast the, the Islamic Republic, and they're not, they take their ideology very seriously. And I think we should respect that, actually, as a, not as a moral matter necessarily, but when you're thinking about an adversary, you know, how committed they are to what they purport to believe in matters. And I, I do think they are pretty committed to it. And so my assumption is they will back themselves further into the cave and do reckless things in order to preserve what remains of their position. And I think that's a dangerous feature of an attractive situation. And it would be nice to have an administration that understood the regime well and dealt with it carefully and smartly, you know, for obvious reasons that none of those are the, this administration's thing.
- [65:20]
Benjamin Wittes
Well, speaking of institutions that are in a much worse state than they were a couple of years ago, let us turn to the Department of Justice, where we saw a pretty eventful remarks take place at the end of last week on an apparent whim to some extent, he said it was by invitation, presumably by Attorney General Pam Bondi. President Trump showed up at the Justice Department, I don't think, with much prior fanfare. I think it was announced kind of earlier in the day that it was happening. I don't believe it was long scheduled, correct me if I'm wrong on that, and gave a clearly improvised, essentially campaign speech. It sounded a lot like one of his campaign speeches at the Justice Department. Lasted well over an hour in, I think, pretty shocking move, both in terms of the kind of visual presentation of it, this being a place that obviously Donald Trump has had a lot of run ins with in the last four years and prior, but also because of the content where Donald Trump very clearly took on the charges against him, said they were lies, misrepresented the facts of many of them, a lot of the proceedings, and then proceeded to praise people who backed him, including folks in the Justice Department now, many of whom were his former personal counsel on those matters, including Judge Aileen Cannon, who of course dismissed criminal case against him in a matter that was subject to appeal and is now more or less mooted to alle on fairly questionable legal basis, it's worth noting, and then named a number of enemies, lots of lawyers, many of whom are involved in litigation against actions his administration is pursuing now. Others former New York prosecutors or federal prosecutors, including special counsel Jack Smith, who he says have done things criminal or otherwise wrong against him and should be treated as such. It was a really remarkable, exceptional speech. I did not watch the whole thing. I watched an extended period of it and then ultimately decided, decided I owed myself better than to force myself to finish it, but went back and read a number of accounts. But Ben, nobody knows the Justice Department better than you do and followed nobody has followed its actions and activities as closely as you have or frankly knows people there as well as you do. I don't think talk to us about what this speech meant to you, what it was meant to accomplish and how just dramatic a development this is. It doesn't sound dramatic for people who don't follow what's happening. I think in this area it sounds like the president giving a speech at a federal agency whoop de do. That happens all the time. But I think Justice Department watchers were really pretty struck by it. And I'd be curious about your reaction.
- [67:44]
Scott R. Anderson
Yeah, it doesn't happen all the time. The president does not generally go to the Justice Department to give speeches. When they do, it's usually about very particular things. For example, I believe that when, when the building was named for Robert Kennedy, the president may have gone and named and done that. Naming, by and large, presidents keep a certain amount of distance from the Justice Department. And that is a good thing. And it is a thing that is no longer true. And the idea that the president would go to the Justice Department and give a overtly political speech is only a little bit more shocking than he would do so in front of the CIA wall, which he did in the beginning of his first term. But it is modestly more shocking than that, you know, but it is frankly less shocking than having an FBI director who wants a direct line phone call link to the White House. Right. This administration has taken a view of the proper relationship between the Justice Department and its components and the White House that is just radically different from anything. It's not even post Watergate, it's post war. And that view is that the Justice Department is a plaything of the president and should do what he wants and should go easy on his political friends like Eric Adams and go hard against political enemies. And he's very upfront about that. And this has caused, in different iterations of this concern, a lot of resignations from the Justice Department, including over the Eric Adams matter and its fallout. It has caused a lot of firings at the Justice Department, and of course, it's caused a lot of turmoil at the bureau. And so, you know, in some ways, Trump's appearance there, touting this stuff is less dramatic than is just a natural culmination of everything that he said, which is that he kind of treats this like any other federal agency and directly reportable to the president in exactly the same way, which, of course, is constitutionally true and normatively abhorrent. And in some ways, the more important thing than Trump being Trump was Pam Bondi's statement that we all are proud to work at the direction of President Trump. That kind of. Of sense of them all. And I don't have the exact words she used in front of me, but that description as a we are all just arms of the man, not of the executive branch, right. Is a. That is, for an Attorney General of the United States to describe the Justice Department that way, that strikes me as more upsetting even than the president seeking to treat the Justice Department that way. Because presidents, you know, presidents will try things, and it's the Attorney General's job to say, no, no, no, you can't do that. No, I will throw myself in front of that train, as even Bill Barr did, you know, after the 2020 election. But for the Attorney General to be talking that way herself is really abhorrent to the values that the Justice Department is supposed to be about.
- [71:47]
Benjamin Wittes
So these sorts of big performative actions that Trump is addicted to always hit me in two directions. On the one part, they are clearly a rallying cry, a kind of celebration, a rubbing in the noses of his enemies in a way that a substantial chunk of his supporters love, and I think that he personally loves. Right. It's this triumphalist celebration and public, public performance of that. But I always, in my back of my mind, and maybe this is my wishful thinking and my institutionalist inclinations, I always think, but damn if this isn't just stupid for him to actually do if his actual goal is to accomplish what he's doing on the back end. Because when I look at these sorts of actions, what I think is that it becomes insofar as you are trying to use the Justice Department or government to punish people, when you make statements like this, it makes it much harder to look like those sorts of actions are incidental to any sort of relationship, relationship to the president. Because you've got a clear statement of animus of mens rea on the part of the president and an assertion that everybody is acting at his direction, in fact, whether constitutionally appropriate or no. And that doesn't play well with two important audiences in this case, I don't think. One I think is the courts, because that is the thing that the courts are inclined to look for. And while there are plenty of Republicans in the courts and the Supreme Court has majority of Republicans and one third of which is appointed by Donald Trump, I don't think they're fundamentally lawless people on the Supreme Court or elsewhere. And I also think frankly there are a lot more institutionalists of inclination. Ironically, many of his appointees actually are kind of more of the swing justices now, Amy Coney Barrett in particular and Chief Justice Roberts Kavanaugh sometimes kind of than on the court. And this is the sort of thing that I think makes it harder for them to swing in the conservative direction, direction that benefits Trump. And the other half is the domestic politics sort of perception. I do think this, while there is a component within the party that likes this and is going to see it as a big booster, I have to think this causes friction with people who are in competitive states that you have to win still, if you want to control the House and maintain control of the Senate and win re election as president or win another Republican win election as president down the road. So, Molly, let me start with you on that latter point, and I want to come back to Ben on the kind of judicial point. Am I way too optimistic about this? Is this the sort of thing that we can likely see working its way into campaign speeches or campaign ads down the road that people will run against Trump and his backers, or is this the sort of thing that people aren't sensitive to it? That's not a talking point that people buy into this sort of corruption, manipulation of state apparatus sort of narrative.
- [74:39]
Molly Reynolds
So I think the idea that Donald Trump is corrupt and Donald Trump is out for himself and Donald Trump is letting Elon Musk, who is corrupt and out for himself destroy basic components of the American federal government. I totally expect us to see all of those things be part of Democrats messaging going forward. I don't know that they're the parts that are going to matter the most. I mean, one thing I come back to a lot is the idea that in the first Trump administration, the times that Donald Trump was most unpopular were often times not when he was doing something outrageous and in violation of the rule of law, but times when congressional Republicans, Republicans were trying and in some cases succeeding at doing things that are politically unpopular. So when they tried and failed to repeal Obamacare in the summer of 2017, when they passed large tax cuts for the wealthy later in 2017, I do think that Donald Trump fatigue among people who don't really pay attention to politics is real. But I also don't know that, that what's going to matter the most for political pushback against Trump from a popular level is the idea that he is doing things like upending the norm of the department, of the norms of the Department of Justice. That's not to say we shouldn't be talking about them. That's not to say that's not a problem. That's not to say it's not bad. I just don't know that it's something that's going to resonate in electoral campaigns a year.
- [76:19]
Benjamin Wittes
And what about the judicial side? Like, am I right that this makes his ability, this actually weakens his ability to do these things, legally or otherwise.
- [76:30]
Scott R. Anderson
There is no doubt that this is an area that the malevolence really is tempered by the incompetence. If you wanted to do this in the most effective way, you would be very quiet about it and you would have a certain understanding with the attorney general. Maybe it would be entirely unspoken and you would just know and you wouldn't have, you wouldn't talk about it, because every time you talk about it, you're writing the other side's briefs, and you're writing the other side's briefs in ways that really do go to prosecutors sense of their own functions. They do not think of themselves as political hatchet men working on behalf of the people in power. They think of themselves as independent executors of justice. And you're also going to, you're also speaking very directly to the court's receptivity to your latter arguments that, no, no, no, no, no. This prosecution of Molly Reynolds is totally on the merits. It's just based on the horrible things she did. It's not based at all on the fact that the President made a speech two weeks ago that we're going after Molly Reynolds. And, you know, federal judges are. Some of them are ideological. They're not idiots as a, as a class. And, you know, you do ask them to behave like idiots at some peril. That said, doing it this loudly has certain benefits, too, that are mostly in the political space. You know, if you thump your chest very loudly and tell about how you're going to go after your political enemies, and then you, you know, go after a couple law firms, turns out all the other law firms then are much more reluctant to hire people that you've fired. Turns out all those other law firms are a little more careful about how they take clients. Right. Play that out over a hundred different areas. And so I don't. I think you're absolutely right, Scott, that when these things go to litigation, he's set up a bad record for himself. But I think he's also reduced the number of people who are going to want to litigate it. And so that's the, the push pull of the thing. Look, I want to say something that should be obvious from everything we're saying, but is worth saying explicitly. This stuff is really bad. The Justice Department, as a dispassionate arbiter and executor of what should be prosecuted. That idea, I concede off the back. It is. Is extra. Constitutional. There is no. Nothing in the Constitution that says the President can't direct the Attorney general, or even that the Attorney General needs to exist as to whom to prosecute. But once you accept that, you accept that there is no way ethically to be a federal prosecutor. Because, you know, if you said to a lawyer who, I have a. Who says, I have a righteous case, let's call her Danielle Sassoon. And you say to Danielle Sassoon, the president calls her up and says, your righteous case. Who believes she has a righteous case against the, against Eric Adams, I want you to drop it for political reasons. She has to resign. You cannot be. That is an unethical order to carry out. And so once you accept that, there is no barrier that insulates her from that conversation. The, the natural consequence of that is she can't continue to serve, and neither can the people under her. And that's why they all resigned. And part of that, it's all normative. None of it's law. None of it's. But if you strip it away, you simply can't have ethical federal prosecutors anymore. And we are already seeing that happen at a bunch of different levels that people are just saying I can't do this. And that's the consequence. And the symbol of it is the President showing up and giving a political speech at the Justice Department. But frankly, I'm glad he's doing the symbolism because he's doing the substance too. And so I actually think it's not unhealthy for people to see how toxic sick this is substantively. And you know what would be awful is if he were whispering this stuff in Pam Bondi's ear and behaving normally in public so, you know, one hand clapping for it. I'm sort of joking.
- [81:36]
Benjamin Wittes
Well, on that note, we are unfortunately out of time for discussions, but this is a topic for better, for worse. I suspect for worse we will have have plenty of opportunity to revisit in the years to come. But until then, this would not be rational security if we did not leave you with some object lessons to ponder over in the week to come until we are back in your podcatcher. Motley Reynolds, what do you have for us this week?
- [81:57]
Molly Reynolds
So in my lengthy comments on the shutdown earlier, I mentioned some observations that I was cribbing from political scientist Julia Azari. Julia has, along with two other folks, Jonathan and David Bernstein, a really excellent substack called Good Politics, Bad Politics. I would commend in particular Julia's piece from last week about the shutdown. I'd also commend a piece from earlier this week by Jonathan about the sort of concept of a constitutional crisis and sort of what the conceptual limits of talking about it in those terms are. But just in general, I recommend the newsletter to you and I will say I am not a person who reads a lot of political newsletters because all of the rest of my day is consumed with taking in political information. Mostly I read cooking substacks, but this.
- [82:50]
Scott R. Anderson
One and listen to NPR local narrative. That's true. I do listen to lots of narratives.
- [82:55]
Molly Reynolds
Regionally produced NPR podcasts. I think two times ago I successfully filled my niche and recommended one. But today I am going the substack group.
- [83:06]
Benjamin Wittes
That's okay, we all have to break out of our lane occasionally. But I will not for this, this episode or my object lesson here because I am, as many know who listen to the podcast, want to enjoy a science fiction or fantasy novel as my escapism. The problem with these novels is that they are usually not usually, but often quite poorly written and unenjoyable. And at this point I feel like I am too old and do not have enough spare time to fight my way through a novel that Even if I find elements of it interesting, is not well written, which is why I was thrilled to discover it actually phenomenally written and intriguing and really interesting fantasy novel written by adults for adults recently, which is great. This is the novel the Bright Sword by Lev Grossman, which came out just last year. Grossman wrote the Magicians trilogy, which I know a lot of people really like. I have not read because I am not a Harry Potter kid. I was like just a slip smidge too old and have an aversion to all things Harry Potter because so many people around me were so obsessed with it while I was growing up. And so the Magicians was just a little too close to me. But I pick up this book which is essentially about what happens the day after King Arthur dies in Camelot. Based through the arrival of this one kind of country bumpkin squire who comes in and becomes a knight and is traveling around with the knights at the round table. It's phenomenally interesting because it blends very weird elements of Arthurian legend with the very weird politics in society and culture at the time that he really tries to represent faithfully in substantial parts. Even as he weaves in these truly insane sounding Arthurian legends that the way he portrays them are so foundationally creepy. It really evokes the primordial spirits and sense of dread of nature that you feel motivated them initially. It's really, really well done, fantastically written, really interesting. I'm halfway through it. I actually picked it up. I started reading it one night at like 11:30 and read till 2:30 or 3 in the morning on a working night. Not a good idea. But that's how entranced I was with it. So highly, highly recommend it for anybody looking for something to pick up. That's Lev Grossman's the Bright Sword. Ben, take us home. What do you have for us this week?
- [85:07]
Scott R. Anderson
I want to tell you a story about two Ukrainian women.
- [85:11]
Benjamin Wittes
The first I've heard this joke and it's offensive. Ben.
- [85:14]
Scott R. Anderson
It's not offensive and it's not a joke. The first is named Miroslava Gongadza and you may have if you listen to Escalation, our podcast on the history of U.S. ukrainians Ukrainian relations. You will have heard her story in episode 3. She is a Ukrainian journalist in the 90s was married to a man named Grigory Gongadza who was a crusading anti corruption journalist. And the Ukrainian he was kidnapped and beheaded presumably at the behest of the President of Ukraine. And Miroslava fled to the United States with her Two infant daughters or three year old daughters, one of whom I met the other day and is a lovely young woman now. And she became a journalist here in the United States and she ended up running a prominent newsroom devoted to Eastern Europe and Eastern European politics, wherein she employed my second subject, a woman named Katerina Lisanova, who was a good friend. And Katerina was covering the hill for Miroslava's organization. She developed this really interesting relationship with House Speaker Johnson, who during the budget, the Ukraine supplemental last year, where the scrum of reporters would all yell at him, questions about the supplemental, and he would ignore them. But when she would ask a question about the supplemental, he would address her. And so she has all these amazing videos. And it was his way of talking directly to Ukrainians was to talk to, to Katarina. And I actually think it was super classy of him to do it that way. He would send these signals, hey, we're going to get this done at a time when everybody thought he wasn't going to get it done. And he would send that message to Ukraine by talking to this young woman reporter who would get in his face. So why do I tell these stories about these two women? Because both of them were fired the other day as part of the destruction by executive order of the Voice of America. Miroslava ran the Eastern Europe Europe newsroom for Voice of America. And Katarina is an example of the kind of journalist that they employed, which is to say, somebody who can, you know, get in the face of the speaker of the House and get him talking about the supplemental in ways that actually American reporters couldn't do or he wouldn't do with American reporters. And so I just want to say these are two of about 50 examples I could talk about, all of whom have lost their jobs. There's 1300 people that they've laid off, including the head of VOA, who was my old Washington Post colleague Micah Bramowitz, who's a wonderful, wonderful journalist as well. And so one of them, one of the VOA reporters, posted on Facebook that if you are hiring, if you're looking for communications people, reporters there are a whole lot of multilingual, you know, you want people who do work in Cambodian, Vietnamese, I mean, it's 50 different languages they work in. And it's an astonishing group of people who. I cannot think of a time when with a single stroke of a pen, a president of the United States has done more damage to journalism. But my. Because it's object lessons and it's supposed to be something happening and cheerful I want to say there's a lot of good journalists out on the market now, and whatever country you are interested in, go hire a VOA person because they're awesome.
- [89:33]
Benjamin Wittes
Well, on that note, that brings us to the end of this week's episode. But Rational Security is of course a production of Lawfare, so be sure to Visit us@lawfaremedia.org for our show page with links to past episodes, far written work and the written work of other Lawfare contributors, and for information on Lawfare's other phenomenal podcast series, including Escalation, now available in a pod catcher near you. In addition, be sure to follow Lawfare on social media wherever you may socialize your media. Be sure to leave a rating or review wherever you might be listening, and sign up to become a material supporter of Lawfare on Patreon for an ad free version of this podcast and other special benefits. For more information, visit lawfairmedia.org support our audio engineer and producer this week was Noam Osbian of Goat Rodeo and her music, as always, was performed by Sophia Yan and we are once again edited by the wonderful Jen Pacha. On behalf of my guests Ben and Molly, I am Scott R. Anderson and we will talk to you next week. Until then, goodbye.
- [90:32]
Molly Reynolds
G'day America. It's Tony and Ryan from the Tony and Ryan Podcast from Down Under.
- [90:37]
Benjamin Wittes
This episode is sponsored by Boost Mobile, the newest 5G network in the country. Country. These guys are no longer the prepaid.
- [90:43]
Molly Reynolds
Wireless company you might remember.
- [90:45]
Benjamin Wittes
They've invested billions into building their own.
- [90:48]
Molly Reynolds
5G towers across America, transforming the carrier into America's fourth major network alongside the other big dogs.
- [90:56]
Benjamin Wittes
Yep, they're challenging the competitors by working harder and smarter, like this amazing new network they've literally built. They have a blazing fast 5 gene and plans for all all the latest devices. Visit your nearest Boost Mobile store or find them online@boostmobile.com.