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- [00:01]
Scott R. Andersen
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.
- [00:33]
Alan Rosenstein
It's a cold day here in Alaska, but there's one animal seemingly unaffected, bright eyed and determined enters the husky. Observe as they go up the mountain, guided by pure instinct. They are truly amazing masters of this wilderness. But even these amazing pets can't sign up for Lemonade Pet Insurance. You can sign up now@lemonade.com Amazing.
- [01:02]
Natalie Orpet
They say opposites attract. That's why the Sleep Number Smart bed is the best bed for couples. You can each choose what's right for you whenever you like. You like a bed that feels firm, but they want soft. Sleep Number does that. You want to sleep cooler while they like to feel warm. Sleep Number does that too. Why choose a Sleep Number Smart bed so you can choose your ideal comfort on either side. And now save 40% on the new Sleep Number Special edition smartbed limited time exclusively at a Sleep Number store near you see store or sleepnumber.com for details.
- [01:37]
Unnamed Speaker
Okay, guys, I have a challenge for you. Can we make this B roll about things other than the weather and our children?
- [01:46]
No, no, not a chance.
- [01:48]
Alan Rosenstein
Can it be. Can it be about. Can it be about other places weather? Because I was in Tucson last week and I gotta say, Tucson is radio.
- [01:55]
Unnamed Speaker
No.
- [01:55]
Alan Rosenstein
Especially when you're flying out of Minnesota. Fine. You're all lame. They have 40 foot cactuses in Tucson.
- [02:02]
Unnamed Speaker
No. So, yes, that seems impossible.
- [02:04]
Alan Rosenstein
No, I know. It's. They're called saguaras and they're these like, like, they kind of look like, like, like stick figure cactuses with these kind of arms and stuff.
- [02:12]
Unnamed Speaker
Are they like the redwoods? Do we have to carve highways through them?
- [02:15]
Alan Rosenstein
They're not quite that big, but they are so large and like, it's like a Dr. Seuss fever dream. It's amazing. It's. It's wonderful. Go to the Tucson Botanical Garden if you're ever in Tucson. It is fabulous.
- [02:27]
Unnamed Speaker
You were speaking the right audience. Because I am. To a rate that is a little embarrassing for somebody who used to be a young man. Because I've been doing this for 20 years. I go to botanical gardens every damn chance I get.
- [02:36]
Alan Rosenstein
Me too.
- [02:37]
Unnamed Speaker
Oh, they're amazing. They're like the best thing to visit in any given town.
- [02:40]
Alan Rosenstein
Scott. I feel like I've known you for many years. And I have never, like, we have never bonded over our, like, I am constantly like, I, I am like botanical garden garden.
- [02:50]
Unnamed Speaker
I'm a member of like five different botanical gardens. Me too.
- [02:52]
Alan Rosenstein
Conservatories. I mean, the whole arboretums. Scott, I do feel like our friendship has been meaningfully enriched by this discovery that we are both botanical guards, botanical gardens, botanical bros. That is obviously the title of this.
- [03:15]
Unnamed Speaker
Hello, everyone, and welcome back to Rational Security. I am your host, Scott R. Andersen. Thrilled to have you join us for the podcast where we sit down with members of the lawfare team as we try to make sense of the week's biggest national security news headlines. And joining me this week is none other than co host emeritus. After a bit of an extended absence, we're thrilled to have him back on the podcast. Professor Alan Rosenstein, thank you for hopping back on again.
- [03:39]
Alan Rosenstein
Thanks so much for having me.
- [03:40]
Unnamed Speaker
I gave you the professor honorific even though you're dressed like a pool boy, which is good.
- [03:45]
Alan Rosenstein
Shorts, hat, Professor, Pool boy.
- [03:47]
Unnamed Speaker
Professor, pool boy. Exactly. It's weird. You should put down that net. That's weird. That's not very professional. But it's fine. And also joining us back in the virtual studio, thrilled to have lawfare's executive editor, Natalie Orpet back on the line. Natalie, thank you for joining us.
- [04:00]
Thank you. Could you not come up with some sort of honorific for me?
- [04:03]
I said back on the line. I think that's pretty good.
- [04:05]
Alan Rosenstein
I want like a Natalie Norpet Orpet.
- [04:07]
Unnamed Speaker
I want a title. Can I be Her Excellency Natalie Norpet?
- [04:10]
Her Excellency Natalie Ortit High Norpetness. Natalie Orpet, Esquire. How about that?
- [04:14]
I'll take it.
- [04:16]
We'll take it. Natalie Orpet, Esquire, back on the line here.
- [04:19]
Alan Rosenstein
I have never met a lawyer who calls the themselves Esquire. That was not. Also the worst.
- [04:24]
Unnamed Speaker
I do feel like Bill and Ted's excellent adventure ruined that for all of us. Right. I feel like we had the moment as soon as Bill S. Preston, or whatever his name is, took it. We lost it. We lost it. Well, I am thrilled to have you guys back on the line as we work through a couple big national security news stories this week, including a number of measures that are about a little bit novel policies, kind of in the revenge category in a number of cases that we are seeing rolled out by this administration that we've been tracking for this past week. Topic one, lowering the bar. Last week, the Trump administration took aim at two leading law firms, Covington and Burling and Perkins Coie by repealing lawyer security clearances and setting limits on the extent to which government actors can contract with them or those associated with them on the apparent grounds that they worked for Trump's perceived enemies. Special Counsel Jack Smith, incoming in Burling's case and the Democratic Party slash those who may or may not have been involved in the Steele dossier. Perkins Coey's case. Is this legal Question number one, Topic two, will it be challenged? And question three, what will be the effect on the legal industry? And topic two, big math on campus. The Trump administration recently announced its intent to withhold $400 million in government grants from Columbia University on the ground that the university had not done enough to combat anti Semitism on campus. A measure appeared with an indication that would repeal student visas from those who had expressed pro Hamas views, quote, unquote. Is this tack a proper or legally sustainable one? And what impact will it have on academic communities in the United States writ large? And topic three, nothing is certain but death and te. Well, at least death. After temporarily delaying tariffs on Canada and Mexico after 48 hours last month, President Trump assured everyone that they were definitely getting installed this month. But once again, after a few days, he rescinded many of them. Nonetheless, the uncertainty surrounding this administration's policies has markets spooked, triggering fears of recession, something President Trump recently indicated people may just have to live with. What are the real costs and benefits of Trump's oscillating trade policies? So for our first topic, Natalie, I want to turn to you on this. I think you are the, maybe the only one of us who has spent substantial time in private practice. I spent one summer at a law firm, Alan, I don't think. I think you at most spent one summer at a law firm. Am I correct on that?
- [06:34]
Alan Rosenstein
I spent a glorious month of eating fancy lunches.
- [06:38]
Unnamed Speaker
There you go. There you go. So, Natalie, you spent a good chunk of your legal career before joining us at lawfare at a law firm? I think so. You probably have the best sense of the legal industry. These are two pretty exceptional actions we have seen the Trump administration take over the last few days. First, we saw the measure regarding Covington and Burling, which, if I have it correct, was limited to the repeal of security clearances for a number of lawyers there, specifically a number that had worked in a sort of support role for special counsel Jack Smith when he was engaged in the investigations into former President Trump and certain associates, both in relation to January 6th and of course, the Mar a Lago prong, that kind of Two pronged investigation. Anyone who's been listening to lawfare over the last few months is familiar with. And then a few days later, we had this other order regarding Perkins Coie again, of which certain members were somewhat involved in the Steele dossier gathering back in the day. Although it's worth noting, I believe those people are no longer associated with the firm at the moment, at least that the people primarily involved, but have historically represented the Democratic Party and Joe Biden and other folks in a number of capacities. And there we saw an executive order that went far beyond just canceling security clearances. It also essentially imposed something like secondary sanctions or a secondary boycott on Perkins Coie, essentially saying the government can't contract with Perkins and can't contract with anyone who has interaction with Perkins. Something that if taken literally and applied seriously, would be a big detractor, I think, for most major law firms, because that can be a lot of people who interact with the government and Perkins Cooey or somewhere in between. So talk to us a little bit about how you think you're seeing your former legal colleagues, other folks in the legal industry responding to these developments. How shocking they are, how big a departure are they from the norm and where they fit into the firm's business structure.
- [08:27]
So, yeah, Scott, as you say, these are really quite dramatic orders in a number of senses. Number one is just the direct targeting of specific law firms by one is a presidential memorandum, technically, I believe. The other is an executive order. So the second one, which is related to Perkins Coie, in addition to being directly targeted at them and being a little bit oddly defined in the sense that it cites the Steele dossier, which, as you say, the people who were most associated with that representation are not at the firm anymore. But also referenced George Soros and has a quote in there. Keep in mind this is an official presidential document and this is the part of an executive order that sort of explains the policy of the United States and the rationale for issuing this executive order. The quote is that Perkins worked to, quote, judicially overturn popular, necessary and democratically enacted election laws. So it's, I mean, the rhetoric is really worth reading in the order itself because it is quite dramatic. The actions are even more dramatic. You listed many of them. I think the ones that really stood out to me that's gotten a little bit less attention is that it directs the EEOC to review representative, large, influential or industry leading law firms. So to the extent anyone was hoping or thinking that this was going to be limited to Perkins Coie because of its unique place in Trump's particular personal background and areas of interest. There is every indication that they have no intention of stopping there. In terms of the industry's response, Scott, one can continue to look in vain for strong statements of support for Perkins Coie or strong statements of condemnation of the fact of targeting law firms like this, and you will not find them from individual law firms. I did see there's an article in the American Lawyer, which is a legal publication, where there were four different law firm leaders who spoke only on condition of anonymity, but said things like this was dystopian, this is what an authoritarian regime looks like but wouldn't speak on the record. And we're not seeing these types of statements that, for example, we saw in the early 2000s when there was pressure from Bush administration officials on law firms for taking up representation of Guantanamo detainees, which was at the time incredibly unpopular as well. And in that instance, the individual who had made the most prominent comments about how firms should be boycotted by clients and otherwise punished for representing Guantanamo detainees, that official later had to resign. This did not come out in executive order like this. I really can't overstate the drama of it. Alan, I want to let you talk about the EO in particular, but I do want to come back to the other ways in which the administration is targeting the legal industry and the legal system generally, because there's been a lot of targeting in a lot of different areas that I think are worth understanding in combination.
- [11:40]
And Alan, let me actually put a little spin on this for you, because you, I know, among other things, teach First Amendment law to law students at the University of Minnesota. And this strikes me that this sort of action might have some First Amendment implications to some extent. I'd be curious about how the government doing this, the president doing this so publicly intersects with things, well, at a minimum, like the right of association, things like that, that have some degree of constitutional protection as well as, I suppose, due process and other things. Given that this clearly has an intended effect of having deprivation, certainly on Cooey, potentially on Covington and Burling as well. Talk to us a little about the constitutional and legal ramifications of doing something like this and where we may or may not see remedies available for those affected.
- [12:26]
Alan Rosenstein
Yeah, I mean, there's a whole is an embarrassment of riches of potential constitutional violations. Again, I don't think that's the point of any of this. I mean, I think the point is some combination of just pure revenge. And Donald Trump is unfortunately a sadist. I think in the clinical sense of the term. And so he just enjoys bullying people. And so whether any of this is illegal, I think is actually in some ways beyond the point. He has enemies and he wants to be nasty to them. And, you know, what's the point of being the president if you can't be nasty to your enemies? You know, in addition, just as they say, the process is the punishment. So even if ultimately Perkins Coie is vindicated, and Natalie is right, that the response from the D.C. bar or from the legal community and the big law community has not been great. And we should talk about the prisoner's dilemma game that these firms are all facing, because coordination is really difficult in a situation like this. And we see this here. We can see this with universities. This is a much broader conversation that we'll be talking about for the next couple of years. But Williams and Connolly is Perkins Coie's lawyer. It's always interesting when a law firm has to hire another law firm. I've never fully understood that. I'm sure there's a good reason for this.
- [13:35]
Unnamed Speaker
It happens a lot.
- [13:36]
They're going to wear the ampersand stamp off of the printer at the courthouse.
- [13:39]
Alan Rosenstein
Excellent.
- [13:40]
Unnamed Speaker
To keep along these routes.
- [13:41]
Alan Rosenstein
Excellent. Yes. So Williams and Connolly is going to be defending Perkins Coey here, and they're pretty serious litigators. So what are the potential violations here? I mean, yes, there's a giant First Amendment potential violation here. I mean, if you. Look, I'm sort of. I have the Perkins Coie executive order here. Perkins, this is from. From Section one. Perkins Coie has worked with activist donors, including George Soros, to judicially overturn popular, necessary, and democratically enacted election laws. I mean, I don't even. Like. Where do you even like. Yes, Perkins Coie has challenged laws. How dare they? I mean, this is a First Amendment violation. It's a Fifth Amendment violation of Perkins Cooey's due process rights. It's frankly quite possible. We haven't talked about the secondary boycott part of this, which is, I think, the really scary thing here, which is punishing companies that do business with Perkins Coie. They, of course, have their own right of association and also due process rights. I mean, there isn't really like a Sixth Amendment right of counsel, because that's about sort of criminal law. But there are penumbras and emanations and all that sort of stuff around the Sixth Amendment. And part of due process, and this is true in agency adjudications, is you get to have a lawyer if you want one. And part of that is getting to choose which lawyer you want. Now, obviously the government can say the lawyer has to be licensed, the lawyer can't be in jail. I mean, presumably there are some basic things the government can do when you want to choose a lawyer, but it can't. I don't think, though, again, I think this is so unprecedented that I really don't, I don't have like any obvious case law at my fingertips because this is just so, so bananas for the government to do this is a violation of lots of people's first and Fifth amendment rights. Not just Perkins Coie, but also those who want to do business with, with Perkins Coey. But again, I'm just not sure that the, I'm not sure this is meant to hold up. Right. I think this is meant to show that the government is going to make your life miserable if you cross them. And that on the margin is very, very powerful. Right. That doesn't mean that, that doesn't mean that you'll never find lawyers who are willing to challenge the government. You know, again, that, that's, that's not, this is not an all or nothing thing, but this is at the margin thing. And think at the margin. It's, it's, it's pretty horrifying.
- [15:48]
Unnamed Speaker
Well, and I think what we've seen already indicates that it works, right? Because yes, Williams and Connolly ultimately agreed to represent Perkins Coie, but there were reportedly several other law firms that declined to do so. And we are not only seeing no statements, strong statements coming out of law firms, big law firms. There have been, I should say some firms or individuals, leadership of firms that have come out with some statements at least. But the reality is that lawyers and firms are going to have to think differently about choosing their representation. And it has much bigger effects than a potential client comes in the door and asks to get representation and the firm has to decide whether to take it. It's also that they have to start thinking about other clients and whether clients are going to potentially rethink their business and what they're going to direct toward them. And so it ultimately becomes a real question of the bottom line. And big law in particular is, I think, increasingly profit oriented. And I'm unfortunately pretty pessimistic that firms, at least in the big law side of the sector are going to take a really strong stance. And there's some argument that, that I've seen in some of the discussion amongst again, the anonymous people who are actually talking that maybe they'll be more successful.
- [17:13]
Alan Rosenstein
Profiles encourage for all of us.
- [17:14]
Unnamed Speaker
Exactly. That maybe we can be more effective if we're working behind the scenes. It's not actually useful to be sort of publicly adversarial against the administration. And I suppose you can make that argument and the proof will be in the pudding in terms of whether they actually do take meaningful action as opposed to being publicly making statements of support or whatever.
- [17:41]
Alan Rosenstein
It's hard to file a lawsuit, though, unless you're willing to do it publicly. Like at some point you do have to, like, you do have to sign the complaint. So there's only so much that behind the scenes work can do.
- [17:50]
Unnamed Speaker
Although worth noting, actually, this came up in the foreign assistance and domestic spending cases where they had a lot of professional associations bring the lawsuit without disclosing the identities of the members who were affected for exactly this reason. But I think it underscores the kind of chilling effect about that.
- [18:05]
Alan Rosenstein
But the lawyer, like there has to be a lawyer representative. That's what I mean.
- [18:11]
Unnamed Speaker
Well, and like, I do want to put this in a little bit of context. Like, I'm. I'm probably the last person to give a lot of credit to Big Law, having thus far mostly avoided them in my career, for better or for worse. But we saw a kind of gradual pendulum effect in representing the variety of other litigation against the Trump administration where really for the first two or three weeks where we saw this huge wave of complaints, there was almost no Big Law involvement whatsoever. I know from folks who work on this that this was not just a coincidence. The people filing these lawsuits, which mostly work at nonprofits that are not staffed super aggressively to file dozens of complaints simultaneously, really, really wanted and needed the help and weren't able to get it because law firms were hesitant to do it. You have to get projects like that approved by pro bono committees. But within a couple weeks they actually have come around. We do see a couple of a number of the major law firms that traditionally have done this sort of work in the past now representing people in a range of this litigation. And I think you will see additional evolution in that direction if for no other reason. That the reputational costs I think, could be pretty substantial on the other side as well. And there was a concern about firms actually getting called out for avoiding this sort of stuff too obliquely or too evidently. I think the real concern though is like, what happens around the margins of that. Right. Like maybe law firms will take a couple of matters, but they're not willing to take as many fulsome matters as they might otherwise, or commit as many hours to it, or are as gung ho about pursuing appeal or continuing to pursue collateral or follow on matters. That is really, really disconcerting. I mean, the pro bono work these firms do is genuinely, really important and like a big part of our legal culture and highly litig society. If everyone had to pay big firm dollars for big firm representation, it would be not a very effective or equitable legal and political system because most people can't afford that. Right. You rely on this pro bono service and that really falls by the wayside a bit in some of these cases. I do think that's a concern now. Be kind of curious what you guys think of the actual like remedies here available. Like the security clearance thing for Covington. I'm not sure there is a remedy. Like it's one of these situations where like it's both. Clearly there's a First Amendment issue here, maybe a little less Covington site than Perkins case. But like, clearly there's all sorts of issues with what's happening, due process, other issues, just an arbitrary, targeted, hostile deprivation by the government. Exactly what the government's not supposed to do. But security clearances are traditionally one of these things where the courts give the executive branch and the president such extreme deference. Except for those little slices governed by statute, like certain nuclear clearances and things like that that I really have trouble imagining a court actually reversing it. Maybe they force a lot of uncomfortable discovery. Maybe they actually like really drag it out and weigh the matter. But in the. It seems unlikely, I think Covington's going to be able to reverse that. But all this other stuff, all this contracting stuff clearly seems like it's going to fail at a legal matter in terms of government actually being able to do this as a policy. But the question then becomes like, well, but when the government is making its discretionary contracting decisions down the line at a smaller scale, no longer pursuant to a policy that has been ruled out or suspended or forced repealed by the courts, which is going to happen to this policy if and when it is challenged, I'm quite confident. Are those contractors still going to avoid and start implementing some of this stuff? In this sense, in some ways, the most important part of the executive order is the part compelling government contractors to disclose interactions with Perkins, because that's the mechanism that allows for the kind of soft, quieter government discretionary spending bias against Perkins to be implemented. But that's also the part that actually raises somewhat the smallest amount of constitutional questions if you're willing as a court to segregate that out from the rest. Am I wrong on that or does that strike you about right about where the kind of legal analysis falls on this stuff?
- [22:00]
Alan Rosenstein
Well, I'm not sure where the government has a right to force private entities to disclose what lawyers they're working with where such disclosure isn't already required, for example, in litigation. But again, I think on the margin, even if all of this fails, there's still going to be a chilling effect because the problem with the Trump administration is that it's utterly staffed by, yes, men and women, much more so obviously, than in the first Trump administration. And so they care just about making their bosses and their bosses and all the way up to the big guy happy. And so if they find out that you've been working with Perkins Coie or whoever else is on the Don's enemies list, then, yeah, they're going to use their contracting discretion to punish you. And that's just going to get around. And so it is unfortunate, but like Perkins Cooey doesn't, no matter what, you know, how the litigation turns out is now a much less profitable law firm. You know, again, like, whether you feel bad for the partners is like a different story. But when you think about what that does to firm behavior and other firms, the damage has 100% been done. Because again, here, as, as with so many other things, it is as much a matter of norms as it is a matter of law. Right. The, the, the main reason law firms have been willing through American history to represent unpopular causes and causes of risk to the. I think primarily because of legal protections with respect to that, though, of course there are. It's because there's just a norm that the government does not punish civil society for behaving the way civil society is supposed to behave. Which is why, again, I think it's important to situate this in the broader authoritarian attack on civil society that the Trump administration is waging.
- [23:45]
Unnamed Speaker
Yeah. Really quickly on, I think, a couple of other issues in the EO that are likely to be challenged. There is a limitation on Perkins Coie employee access to federal buildings. There is also some very strange term about limiting government employees from engaging with Perkins Coie employees. I don't even know what that means, but clearly will be challenged. And there's also a provision that the government can't hire employees of Perkins Coie without a waiver from the agency head. This is rich with provisions that will be challenged legally. But I fully agree with Alan. I think the damage has been done. The purpose is not to prevail on the merits in a court. The purpose is to fundamentally change the way that firms and individual lawyers think about representation, think about business, think about what they are willing to do. And law firms, especially big law, are pretty risk averse when it comes to things that might really impact their bottom line. So I'm quite disturbed by it.
- [24:50]
I will say I don't disagree with any of that. The one thing though, I will. Well, I think we have that there's always this inclination to ascribe to certainly the White House, certainly whoever is the president, and certainly even to this administration, this idea of them being highly strategic actors and there's a reason they're doing this. And I think there is more raw animus than reasoning behind these sorts of things in a way that is self defeating to an extent. And I do think the legal pushback on that is part of that. Right? When the President comes out and says, I'm gonna threaten all these things, yada, yada, yada, yada, and a district court judge a month later says, no, you're not. Hold on. T R O T R O T R O P I P I P I Administrative state before that. As we're learning all, as we go through this process and all this litigation that we're seeing play out over and over again, it visually looks bad. And that's been a real problem for this Trump administration so far. They have done so much so fast and it's all been stopped by the courts in ways that are really detrimental if it actually wants to accomplish that, any of this. And I'm not sure the rhetorical point or the kind of chilling like intimidation effect would be diminished as opposed to be amplified if there were just like a more effectively done document. Right? Like this order clearly is never passed by the Office of Legal Counsel like executive orders traditionally are. Like, they have started just ignoring all.
- [26:14]
Alan Rosenstein
Can you imagine the OLC heads exploding if they had to?
- [26:17]
Unnamed Speaker
Exploding. But they clearly just copy this last section, this general vision section that appears at most of the executive orders. They just started copying and pasting, tasting that. I'm assuming that's all the Office of Legal Counsel does. Because like, just seeing that, just mentioning George Soros makes this thing so much more challengable in court because you are so clearly tying it to political views and First Amendment views and just lots.
- [26:40]
Alan Rosenstein
Of things just say Jewish globalists already, like, can we just, just, just, just, just do it. Just do it. Come on.
- [26:46]
Unnamed Speaker
But it, but it is, it just makes it so much weaker. If you just like a little line editing, you could have done a lot. Not all of this, because some of the stuff's just too illegal on its face. But a lot of the stuff you could still have done, or at least have a stronger case that you can do it, but they're weaker than that because they don't really lawyer them that hard, because they treat lawyers like obstacles, not people helping them to accomplish what they want to do, if maybe in a more constrained way, constrained by the law. That is a strategy that just backfires on policymakers again and again in this administration. It is really backfiring on them, and I just don't know if they're ever really going to turn it around or not.
- [27:17]
Alan Rosenstein
I don't think they will. And I think the problem is that, that, and this again, is another example of a sort of salient difference between Trump 1 and Trump 2, which is that in Trump 1, you know, at least at the, at least at the beginning, there were a lot of people around Trump who are reasonably competent. They were not Trump MAGA loyalists, and they did sort of insulate the country from Trump and Trump from his worst instincts. And that's just utterly and totally gone, right? The Trump administration is entirely lackeys and bootlickers. And what that means, and this is how I suspect the Trump policy process operates, is that Trump just says stuff, right? And so he just says something, something, Perkins Cooey, something, something, Steele dossier, something, something, let's screw him, right? And then someone scurries off and does it, because that's the way to win favor at court and because there are no adults or anyone with a spine, right, in those rooms, like, you know, big balls has, right? Access to the executive order website and like, shit like this comes out.
- [28:16]
Unnamed Speaker
Yeah, I think, I mean, Scott, I really, I can't overemphasize how much I think this has nothing to do with wanting to prevail in court on the legal merits and how much it has to do with wanting to chill. And it's impossible to prove a negative, right? We're not going to be able to say all of the long list of cases that haven't been brought or the long list of profiles in courage that lawyers or law firms could have taken but for this order and others like it. But to me, there's no question it's changing things. It has changed things. Even if you're only looking at the amount of time between the issuance of this order and when anything happens in court to even decide where things are going to go on the merits, decisions are being made in the meantime, and the calculus has to be affected by this. And there's a whole principle in the scholarship about slides toward autocracy that talk about anticipatory obedience. And I think that's what this is. The other thing that I think fits really nicely into this category, unfortunately, is it was a presidential memorandum that has largely escaped notice. And that's probably partially because it doesn't have a whole lot of teeth directly, but I think has exactly the same effect to a lesser extent. Admittedly, there's a presidential memorandum that came out, I think, last week that directs the Justice Department and executive departments and agencies in lawsuits where the plaintiff is seeking a preliminary injunction or a temporary restraining order to file a motion under Rule 65 of the Federal Rules of Civil Procedure, which sounds very uninteresting, but the point is that what this would do if these motions were granted by a court is it would require the plaintiffs to basically put up money in the amount that the government would be entitled to if the preliminary injunction or the temporary restraining order was granted improperly. So, again, I mean, it's not clear that this has any teeth. Put aside the fact that it is the executive directly ordering government lawyers, especially the Justice Department, that is supposed to be independent under our previous norms, to take certain actions. And literally, this memorandum has a list of three things that should be included in the motion. It's really quite amazing when you look at it. But, yeah, so this, you know, a court would have to approve it. There would be a whole lot of decision making around what amount of money would have to be put aside, if any, blah, blah, blah. I don't see this being very likely to happen. And I don't even know how much government lawyers will really put energy into filing these sorts of motions. But the fact of the matter is that there are undoubtedly potential prospective plaintiffs out there that are thinking to themselves, okay, I don't know what the likelihood is of the government filing and getting this sort of motion granted, but do I have the wherewithal to put aside a whole bunch of money in the event that this comes out the wrong way? And many of them will say no? And that's the point. That's the chilling effect.
- [31:43]
Fair point on that. I'll note. This is actually something the Trump administration's been doing routinely already, so it doesn't change the calculus. Not that much, but I think it's a fair point. The optics of this is different when it's elevated to a White House order, which is a very strange thing to be issuing regarding trial strategy, to say the very least.
- [32:01]
Alan Rosenstein
Press releases on fancy stationery.
- [32:03]
Unnamed Speaker
There you go. Well, let us go from there to our next topic, which I will say is not entirely unrelated by any stretch of the imagination. As I mentioned at the top, we had a pretty dramatic revelation in the past week where the Trump administration announced that it was intending to withhold about $400 million in grants to Columbia University and potentially more. I think the implication, at least one statement I saw this was kind of the initial tranche, although there's also indications that they were still figuring out how much could be cut off, how soon. So it's not clear exactly what or how this number will be implemented. Regardless, that's on the grounds that Columbia had not done enough to combat antisemitism on campus, a topic that we know has been a major flashpoint at Columbia in particular, but really at universities around the country since the initiation of the Gaza offensive and the October 7 attacks two years ago. So this has been a heated topic for a long time. Big policy divides. It's become a very politically and partisan charge topic. It's worth noting we've seen, this isn't the only thing we've seen the administration do. They've also indicated they're going to start revoking student visas for anyone who's engaged in what it describes as pro Hamas views. Wait to see exactly what that entails, what the definition of that is. And I think it's worth noting I should disclose up front that I used to teach at Columbia periodically and still have an association with a non resident sort of association with the research center there. But I'm obviously not speaking by any stretch of the imagination for the university in any conceivable way in discussing this topic? Alan, let me turn to you on this. As a law professor, somebody who works in an academic environment, how big a threat is this to academic institutions, which obviously you're in the law school, which functions a little differently than a lot of big research centers that are the ones that primarily receive government grants, but they affect the whole university's bottom line in a lot of ways. How does this intersect with, I mean, how is this sort of thing being received within academic circles that are contingent upon the overall health of academic institutions, which includes big grant amounts like this coming from government.
- [34:09]
Alan Rosenstein
So we have time for my 90 minute anguished, anguished working through my feelings about this. Yeah, I mean, look, it's a big potential disaster. I mean, the, the, the business model of American universities, especially big R1 research universities. And I should also disclose, right. I'm at the University of Minnesota and we are One of the 60 universities that were named in that letter that is being investigated for problems with anti Semitism. And again, the looming threat here is that what, what is, what is being done to Columbia will be done to, to all of us. Again, I'm obviously not speaking for the University of Min, but, but my, my equities are, are implicated here. The business models of these big R1 universities is a massive amount of federal research dollars. Right. And you know, some of that is really good because those federal research dollars go to researching, you know, treatments for cancer and doing basic science and all the stuff that makes America the preeminent scientific and intellectual powerhouse of the world. Maybe some of that is probably wasted. I mean, as with all things right, there is a core of interesting policy discussions to have about what exactly should the NIH indirect percentage be, blah, blah, blah. But of course, the way that the Trump administration is doing this has nothing to do with any of that. And it's sort of pretty clear that Trump at the very least wants to destroy a few universities in order to send a message to others. I think that, you know, there was a really interesting New York Times podcast with Ross Dowdet. He was interviewing the sort of kind of right wing education activist Chris Ruffo. It was a very interesting conversation. I really, highly, highly recommend it. What everyone's politics are and it's sort of pretty clear, I think what at least the sort of Chris Ruffo playbook here is. And I think he is sort of intellectual leader of this kind of right wing movement. I don't think it's trying to destroy American academic institutions generally. I think people realize that that's actually not in the interests of America or the right wing. And if you look at for example, what's happened in Florida, which kind of is I think a good testing ground for the sort of Rufa White approach here. It is less about destroying institutions and more about forcing them to remodel and reconstruct along. And again, you can characterize it differently, more centrist lines, more even handed lines, more conservative lines. Obviously people will view it differently. I think when you, when you look at how to do that on an, on a national scale, it's pretty obvious that I think you do is you destroy a few name brand universities. And of course Columbia is not going to be quote unquote destroyed. I mean they have a big endowment, they will continue to operate. They have a lot of, they have a lot of real estate in Morningside Heights in New York City. Like in some sense they will continue. But you could really destroy it as one of the preeminent global universities and then send a message now. I mean, hanging over this is, is this whole question of anti Semitism and what's happening there. And we can, we can talk about it. But I will say that, and again, I mean, my last name is Rosenstein and I speak three times as quickly as I should. So it probably doesn't surprise too many rat sec listeners that I am of the tribe. I have very complicated thoughts about this, right? I mean, I will say I am one of the, I think many Jews and also non Jews, but certainly one of sort of many in the Jewish community who are quite radicalized by the response to October 7th on many universities where after spending a decade, you know, hearing about DEI and microaggressions and et cetera, et cetera, suddenly discover that it was actually totally fine and the entire bureaucracy of inclusion sat on its hands while people said truly revolting things about not just Israel, but about quote, unquote, Zionists, which, you know, if you actually ask Jews, you know, whether they are quote, Zionists in the sense of thinking that a Jewish state is a legitimate thing, it's like upwards of 85 or 90%, right? And you had not just horrible statements, but things at UCLA about, you know, people being asked about whether they were, quote, Zionist in order to be allowed onto certain parts of the campus.
- [38:03]
Unnamed Speaker
Right.
- [38:03]
Alan Rosenstein
Which I think is, I'm just going to call that anti Semitic. Right. And yet the response to that is not or should not be this like fun house, right wing version of the worst excesses of dei. Right? Like again, I'm not going to speak for anyone else, but I just want to be treated like a normal human being, right. I don't want to be treated worse, but I don't want to be treated better. Right. I don't want this to be done in my name. And you know, and, and I think that's sort of, that's an ethical principle of mine. I think that you being used as a pawn like this, being turned into this victim that is then used to harass and oppress others is just a horrible moral injury to the Jews themselves. But putting all of that aside, even, even if, you know, as like the kind of old Yiddish joke goes, is this good for the Jews? No, none of this is good for the Jews, right? None of this ends well, right? To be used as a pawn by right wing administration that has like actual white supremacist Nazi adjacent types in, you know, like working in the executive branch and just to kind of call back to our first segment, calls out George Soros as the boogeyman for everything. So again, I am happy to have a conversation, right, about anti Semitism and anti Zionism and how to balance the legitimate interests of students, whether they're Jewish or Muslim or Palestinian or whatever, to be treated fairly and equally and even handedly like we can. I'd love to have that conversation but, but this is not that conversation, right? And I think this will just end just terribly and, and I just, I find this whole thing grotesque on, on so many levels.
- [39:43]
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- [41:51]
Alan Rosenstein
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- [43:42]
Unnamed Speaker
Yeah, I agree with all of that and I think, you know, there is an important and interesting conversation to be had about the role of the universities in the types of protests that were going on and to what extent they did represent anti Semitic actions or to what extent what percentage of the protests manifested that way, et cetera, et cetera. But I think the salient issue here is there is some legal basis for withholding federal funding from universities if there is a finding that they are in violation of Title vi, which protects against discrimination on the basis of ancestry. But like the other things we've been talking about, if that were a real concern and if that were the main reason for which this initiative is being taken, then they would say that and there would be some sort of process for adjudicating the question of whether Colombia itself is actually in Violation of Title VI vs There were some very loud protests and there were a lot of things happening that a lot of people found objectionable in a lot of ways. But that doesn't say anything about what Colombia as an institution was doing vis a vis its legal obligations. And there's sure, a lot of discussion of that, but there's been no real process to actually investigate or adjudicate in any sense. So this is just one of those areas where again, the administration could have taken a very strong stance, could have used the bully pulpit, etc. But instead chose to, without any sort of process and without any real opening for discussion, just eliminated $400 million in federal contracts and grants. And it's another example of doing such with a patchet instead of a scalpel, I think, which is not surprising given the speed at which this happened. But in some of the news coverage of this, there was an example of someone at the Teachers College getting multiple grants canceled, even though Teachers College is affiliated with Columbia but not actually part of Columbia. And that's one tiny example. But it's another instance of what we've been talking about already and we're seeing in so many other actions that this administration is taking of using very concrete tools that create real concrete harm when there could have been an opportunity to just use the bully pulpit. If you wanted to make a point, and that's clearly not the aim, or.
- [46:31]
More specifically, if this was your concern, you would go use the toolkit for voicing Title 6 that the government has available to it that would withstand legal scrutiny and had the added benefit of providing guidance to other universities about what the standard is. So you would actually have a fact finding inquiry. You would go through a process and you would say, hey, these are the steps that we find are deficient, these are the steps that aren't. We need to find ways to correct these or else this funding is going to be endangered. Title six isn't new, which does appear to be the main authority they're hinting all this on, but presumably not the only one, because it's a pretty like diverse basket of grants, contracts, other things that are implicated. But right now, all you get out of this, if you actually care about improving anti Semitic conditions at these universities, you know, trying to stifle that effect, is you have this very arbitrary, you know, swipe at a major university that had a couple of high profile incidents. But it's much, much harder to turn this into anything actionable by other universities or any sort of standard that other universities can apply, and it looks extremely arbitrary. And then a lot of this stuff, again, is going to face lots of court problems. I don't need deliberate, because frankly, the same set of court problems we saw with the Perkins Scooey case in that it's just not specific, it ties onto a lot of other Problematic conduct. It's still going to have a chilling effect, I have no doubt. But the specific people here are going to have to challenge this. The part that I'm really concerned about, in addition to what you said, because I think there's both at the same time. While we need to ensure we manage and don't allow for conditions that are hostile to any student's population in a higher education or anywhere else, including Jewish students, there's also the free speech counterpoint of that. You also need to allow space for legitimate speech. And that is a real question here. And that's going to be in the position of putting the universities on the same side of student protesters that they've been having very tense relationship with, potentially in pushing back against this legal action because the federal government cannot try and use this grant money in ways that infringes the free speech rights of their students, of these university students and require the universities to act as their agents. That is like pretty well establish something that they can't do. And so now the university is going to be the position of either having to channel those first speech rights and articulate what they are, which I hope they do, because I think student speech rights are really important, even though they do need to stay within the bounds of not creating a hostile environment for other students. But they're important to be protected. They're going to have to channel this back. I'm a little worried the universities are going to have a much stronger inclination to kind of roll over on those because I don't think this administration is likely to see the scope of appropriate free speech rights as being as broad as well. Frankly, I think most judges would under the First Amendment, certainly as most students would like it to be, and as many universities would, even those that have reservations about some of the way directly these protests have taken. It's going to be a really messy fight. And I don't see how this actually resolves anything for the better for anyone across the board. But again, maybe that's not the point. Maybe part of the point is flexing a muscle as Alan kind of teed up, and pushing universities and higher education in a different direction. That has a lot less to do with these specific topics and more about anticipating the desires of this administration.
- [49:52]
Yeah, and I think the question is just going to be which is an administration at a university more afraid of the challenge to not respecting students First Amendment rights or the possibility that in doing so or in failing to do so, or in supporting the wrong First Amendment rights, the administration is going to Retaliate in the form of financial penalties.
- [50:15]
Alan Rosenstein
Oh, I don't think it's a question at all. Right. I can tell you with 100% certainty that the universities will sacrifice their students, First Amendment rights every time. Right. Because the university, because universities can exist without student First Amendment rights. They cannot exist as big R1, high research, high productivity, high staff, universities without, without federal funds. Right. And look, and here.
- [50:42]
Unnamed Speaker
Right.
- [50:43]
Alan Rosenstein
And I, I will play into my stereotype as pathologically both sides. I think that universities, and frankly, the, the many of the, the progressives that have dominated their faculty and staff over the last decades are massively to blame about this because they have themselves undermined any real commitment to First Amendment rights. Right. With, with, with, you know, decades of speech codes and arguing that the First Amendment and free speech is, is just a, is just a smokescreen for the powerful and all of that. I bet they are reconsidering the wisdom of that a few months into the Trump administration. But such as it is, right? I mean, the universities would have been in a much, much, much stronger moral standing, right. Had they spent the last 10 years actually defending the First Amendment rights of their professors and staff and students and actually spending their time trying to figure out consistent applications of their policies and actually treating people in an even handed way and demarcating much more explicitly what is allowed and what is not allowed. And for what is allowed, you just allow it and you don't allow it, you don't investigate it, even if it upsets people. And for what's not allowed, you expel people. Right. And if they had spent the last decade, right. Building out that system so that they could plausibly say that they had been acting in good faith. Right. I'm not sure that would have stopped what Trump is doing right now. Right. Maybe it would have helped forestall the sort of epic collapse in support that universities have on the American right. I don't know the answer to that question. Right. That's a hard counterfactual. But I just want to point out the universities are not blameless here. Now, again, none of that is to excuse what the Trump administration is doing, which in this case, as in so many others, is cloaking itself in, you know, the rhetoric of free speech, when in fact it is possibly the most speech violating administration we've had since, I don't know, Woodrow Wilson or something like it's sort of hard to come up with a good, you know, since like the sort of World War I era red scare. But, you know, that is what it is. And we, of course, haven't even talked about the ongoing Mahmoud Khalil case where the administration has basically abducted a lawful permanent resident for, you know, as far as I can tell, quote, unquote, pro Hamas speech, which I think is him basically just saying nasty things about Israel, which are, you know, we were pretty unpleasant things, but, you know, he is. Come on, guys, what kind of country are we? What are we doing here?
- [53:15]
Unnamed Speaker
Yeah, I mean, I do. We're running short on time this second, but I do want to flag that. I mean, I think this blends into that same concern about. About what is the definition of acceptable speech, because we have this idea of language that lends itself to, you know, somehow, like, supporting different causes. Sometimes it gets put in a different.
- [53:35]
Alan Rosenstein
Category, quote, unquote, aligned. Aligned with. That's my favorite euphemism here. Aligned with.
- [53:41]
Unnamed Speaker
And I don't know what this means. And people in the United States, even if they're not US Citizens, like, usually enjoy pretty robust First Amendment rights, pretty much the same as citizens, as I recall, you're not allowed to. You do have a fair amount of discretion over giving visas and things like that. And the government can install certain limits, but I don't think that usually those are things that impinge on First Amendment rights. Bearing in mind that these aren't just the First Amendment rights of these students, they're the First Amendment rights of all the American nationals they engage with when they study here. The courts have found that when you invite a foreign speaker into the United States, the first of the party, the audience that's supposed to hear them, has some First Amendment interest and rights in hearing from that person, certainly the true of students who are resident here. So it strikes me as hugely legally problematic and going to be the source of a ton of litigation in the immigration context. That can often be wickedly lopsided territory to fight these things out on, which is particularly concerning. And the fact you already see Mr. Khalil being transported to three different jurisdictions, apparently in an effort at forum shopping from the Second Circuit to the Third Circuit and now to the Fifth Circuit, is just an example of how fraught legal trained this is. And the level of legal hardball the administration seems to be pursuing over this.
- [54:56]
Alan Rosenstein
Time, we are getting some real Guantanamo, Schmittian black hole vibes here from. From this, which I thought was in the past, but I wonder if that was just a preview of what's about to come.
- [55:06]
Unnamed Speaker
I mean, it's ending in the 5th Circuit. Not going to quite yet, but yes, it is not Quite a black hole. Close enough, but a different shade.
- [55:14]
Alan Rosenstein
Hol, have you been to the fifth circuit lately?
- [55:16]
Unnamed Speaker
Man, it's a lovely, it's a lovely country down there.
- [55:18]
Alan Rosenstein
It is.
- [55:19]
Unnamed Speaker
It's good barbecue, yes, if nothing else. Well, let us go from there to our third topic of a little different vein, but also relating to this question about certain things the administration is doing that are surprising in both directions of this case and a little legally questionable, and that is the question of tariffs. We have seen the Trump administration imposed tariffs, or at least almost imposed tariffs, or briefly imposed tariffs twice down on our two closest trading partners, Mexico and Canada. A month ago, around March 1st, they announced they're going to impose sweeping tariffs on both. Those were quickly postponed after about 48 hours due to some concessions around border control and fentanyl and particularly in relation to both countries, although frankly extremely minor concessions, I think most would agree in most cases. It's been reported that the, these are actually already measures that were already underway. And now we saw again March 1 being described as the date that these other measures were going to be imposed and that we're going to see a return of these sanctions after the initial one month kind of holding pattern, despite no real clear signs of additional progress on either border. In fact, stronger language, particularly from Canada, about engaging in reciprocal tariffs, which they've now done. And after 48 or 72 hours or so, we saw a lot of these tariffs roll back, not across the board, but it's worth noting there's been some reporting that's been a little ambiguous about that. About, I think half the goods that were subject to tariffs are no longer subject to tariffs. It's a category of items where the tariffs are being limited to items not otherwise covered by the USMCA terms. And there are also some exceptions for the auto industry and other items that were seen to be particularly have a negative, particularly negative impact on the automobile industry in the United States. And now just in the last 24 hours, we have seen President Trump announced via Truth Social that in fact they were going to double aluminum and steel tariffs that were set to go into play, I think any day now on these aluminum and steel industry that he was in fact going to double them specifically on Canada because of, I believe it was specifically Ontario's energy reciprocal tariffs and certain agricultural measures the country had imposed.
- [57:22]
Alan Rosenstein
This is electricity that goes to Minnesota, my friends. This is personal for me.
- [57:26]
Unnamed Speaker
That's why we're having you on this week and not this week, Alan, because we were worried next week have any electricity going forward Exactly. Thank God it's warm there now this time of year. But what I was going. But a key consideration, this, that I haven't quite figured out exactly how he's imposing to do this because again, this was announced on Truth Social a couple hours ago. Now, you had a policy. The aluminum and steel tariffs I believe are. I think I might have my three numbers wrong. I think they're 232 tariffs or 301 tariffs. They're tariffs pursuant to one of the statutory authorities about the national security industry. They're not these highly discretionary bodies. Usually you have to have a big investigatory multi agency process that's been underway to implement them. That's what's expected to come to conclusion. So I'm actually very unclear whether this is a doubling of the existing tariffs or a suggestion. The president's going to use ihipa, which he's used to impose the other Canada, Mexico terrorists, quite controversially, to slap on an additional doubling of the 232 or 301. I wish I could remember which authority it was. Tariff. I will look that up as we're chatting. But long story short, the big takeaway from all this is that we seem to be slipping into a recession. Certainly the stock markets are not excited about all this. Pretty wicked. We're now at stock market levels well below where they were before election day, which itself had been a pretty substantial slide as people got anxious about the election results. And instead of saying, don't worry about it, this is just a temporary blip. President Trump, unlike some of his advisors, but President Trump at least said, yeah, this is just something Americans may have to deal with for the short term future, but we'll come out of it better on the other side. Alan, let me start with you. How do you feel about that? Where do you think this plays in? Like, I'm just curious, how do you make sense of what the Trump administration is doing? I want to come to Natalie on that as well because I am struggling a little bit with this. I have ideas, but I'm struggling. I'd be curious about your thoughts.
- [59:07]
Alan Rosenstein
So my favorite was, I don't know where this was. I apologize. It was very funny and I wish I could credit the person, but it was like a picture of Donald Trump and it was, was Trump says that a recession is an unfortunate but inevitable stop, but an unfortunate but necessary stop on the way to a depression, which is like maybe my favorite articulation of all of this. I mean, look, I think, look, this is not an, this is not an Interesting economic question, right? In the sense that, like basic econ 101, Ricardian gains from trade comparative. Like this is not. You cannot find a reputable economy economist, right, left, right or center, who thinks that this will end in anything other than tears. Now, maybe some of the Chinese tariffs, like we can have an interesting discussion about that. You know, certainly the Biden administration kept some of those. Okay, fine, whatever. But there's just no argument for any of the Mexico, Canada stuff. Okay, so what is happening here? I mean, I think it's a combination of two things. One, I think it's a combination of. And unfortunately, these are more psychological explanations, but this is a world which we live, right. In which the president has a lot of discretionary authority. And the psychological makeup of the president just matters a lot, at least in the economic, in the legal regime of immense presidential discretion that we've created. You know, I don't know if we'll have time to talk about it, but we should. You know, this is an interesting question about, like, when the Democrats get in office, will they use this, their power to actually cut down their own power to avoid this happening again, or will they decide, well, we're in office. So it's actually good to keep the discretionary power around as tends. Tends to happen when they get in office. But be that as it may, I think this is a combination of two things. One is that Trump is a sadistic, right. He's a sadist and he's a bully. Right. And he interestingly, and I think this was a nice kind of point. I think this was from, I think I'm stealing this from Ezra Klein. He's much more of a sadist and a bully than he is a racist, which is to say he may be a racist, he probably is, but like, the problem he has with Canada is not that they're not white enough. Right. When you look at how much nicer he's actually being to Mexico, he's been to Canada. The problem is that the Canadians won't bend the knee to him. Him. Right. In the way that the Mexico that like Mexico is at least, you know, saying occasionally nice things about him. Right. And, and so he's just offended by the existence of, of Canada. Right. He keeps talking about it becoming a state. And like, I don't think he's joking. So I think that part of it is just a sort of sadistic bullying behavior on his part. And the other thing is Trump, I think, only believes one thing in sense of a policy position. And I think that thing is tariffs. He has believed that his entire life. Life, Right. He, he was on the tariff train back in the 1980s when he sort of first came into prominence in New York City. At the time, the big boogeyman was Japan. They were the ones eating our lunch. And he was all about tariffs and, and I think tariffs more than anything else. Right. Even more than his immigration stuff has been his. What, what are the French. How did the French say it? Natalie? Ide. Fix. I, I can't pronounce it right, but this like, obsessive single idea. And again, there's a psychological explanation which is that he cannot psychologically accept the possibility of win. Wins. Right. Of cooperation. Right. It's all about who's screwing whom. Right. What is the Lenin quote? Who, Whom. Right. Who. Who does what to whom. And so he just believes in tariffs. And, you know, he's getting older, he's getting even more cognitively rigid. Right. He's surrounded by yes. People. He's won two elections. So he has implemented, he, I think literally to the extent that he has any spiritual impulses, believes, especially having survived an assassination attempt and then an almost assassination attempt, that he has been sent by God or whatever he thinks of as God to save the nation. And his cleansing sword will be that of tariffs. And you know, it's a bummer for our 401ks, but he can't have his tariffs. But I really, I think, I really want to emphasize, I think, and like, this is not just because I wrote a 100 page law review article about the importance of executive virtue and, and I wrote it in 2023 and I thought maybe we'd be done with that because Trump would fade into obscurity and sadly he has not. But I really do think that the psychological explanations are fundamental here. Right? Not to mention, and then I'll stop talking, that the other benefit of tariffs for him, I mean, I think in the end will be disaster for him and his project because at the end of the day, Americans voted for lower egg prices, not depression. Is that tariffs from a political economy perspective are great for the person in charge because it creates an incredible opportunity for corruption. Because now every company, every interest group comes to you hand in hand saying, oh, oh, but we're very important, please give us tariff relief. We've seen this already with the main automakers, the Detroit three going to Trump and actually getting some relief on these tariffs. God knows what they promised him. Right? And you know, maybe we saw, maybe this is the reason, for example, that Apple put TikTok back on the App Store, because maybe this is Tim Cook's play of getting tariff relief for iPhones made in China. But that's the other benefit of tariffs for an authoritarian. It gives it a massive leverage over civil society. But at the end of the day, I still think it's mostly sadism and just economic illiteracy that he has turned into his own dogmatic religion.
- [64:03]
Unnamed Speaker
Yeah, I mean, I think one way to think about it is whether we should consider the tariff strategy and economic policy or a trade policy at all, or whether it's really just. Just a rhetorical tack to accomplish other goals. Do we think of this as an instrument that he is using of foreign policy, or an instrument of trying to gain fealty and loyalty of different industries and companies in particular, and trying to get other countries to bend to his policy whims? There was the example that you mentioned, I think, Scott, of trying to get Mexico to crack down more strongly on fentanyl. And there was actually, I thought, an interesting episode of the Daily earlier this week where the reporter said the reporting is indicating that there's been much more of a crackdown on fentanyl production in at least one of the states in Mexico, but unclear whether that's because of Trump and the tariffs, or whether it's because there's still a pretty new Mexican president in place who had run her campaign, including on cracking down on law enforcement issues, including production of fentanyl. But should we even think about these tariffs as a coherent strategy for trade or the economy at all? Or is it really just for an entirely different purpose? And then the question is in his statement that maybe the American people are just going to have to deal with whatever his phrasing was of this sort of theoretical, temporary blip that seems in no way like it's going to be either meaningfully temporary or just a blip that. That is something that people will tolerate. And whether that's in his mind or his strategy making just part of the cost of doing business in pursuit of these other goals that actually have nothing to do with the economy?
- [66:01]
Alan Rosenstein
I think they're 100% actually a trade and economic policy. I mean, I think they're also the other things that you were saying, Natalie. But I think, and this is the scary thing about it, I think he believes his own bullshit. Like, I think he is extremely high in his own supply. He is not a very rational or particularly intelligent person in this kind of analytical thinking. And look like, you know, it's. It's hardly like economic illiteracy is. Is only Confined to the right. I mean, the left has its own versions of sort of economically illiterate nonsense. It's just that for whatever reason, you know, they. They have never controlled that, like, that has never controlled the White House in a thorough way, as we have here. But I think 100% that Trump is quite authentic in believing that he can tariff his way into an American manufacturing boom. Again, like, just in the same way that, like, people, a lot of, you know, people on the left think that if they just, you know, put enough rent control, they'll solve the housing shortage problem. All of this is economically illiterate. The difference is, right, that one of them is some kind of random, economically littered housing person somewhere in some city, and the other is the President of the United States.
- [67:13]
Unnamed Speaker
So before we go too far down the economic illiteracy chain, I think it's worth acknowledging there is a bipartisan shifting of consensus towards, away from the conventional neoliberal sort of framework that, that I think all three of us probably grew up on in undergrad and to whatever.
- [67:31]
Alan Rosenstein
Extent, graduate school, proud neoliberal shill. I need. I have that T shirt in my closet.
- [67:36]
Unnamed Speaker
There is a lot, obviously, I think there is a fair logic behind a lot of the neoliberal agenda, which is that we're talking about, you know, distributive efficiency, allocative efficiency, excuse me, I believe, and like, basically taking advantage of comparative advantage.
- [67:52]
Alan Rosenstein
Something, something Pareto optimality. It's been many years, right?
- [67:55]
Unnamed Speaker
While it's been a while. There's certainly a logic there, I think works in a lot of contexts. But now we're seeing this backspin, this pendulum swing backwards about saying, well, yes, but it's very hard to get to the kind of optimal idea of truly open markets. And you lose regulatory capacity around things that countries have to care about. Because in the end, countries are not just economic actors, they are political and strategic actors as well. And of course, this is all a substantial part of the United States, at least, driven in substantial part by concerns over China, China's manipulation and opportunistic use of free trade frameworks and then undermining of them in other contexts, not to mention things like IP theft and stuff like that, that it kind of undermines the rule of law framework that is seen as kind of necessary to an effective free market sort of system. And we saw the Biden administration walk back from free trade. The Biden administration were not free traders. There's a lot more continuity between Trump 1 and the Biden administration than most people acknowledge. Their policies were Similar in this regard, frankly. A lot of the tariffs the first Trump administration imposed, the Biden administration kept around, including the 232 steel and aluminum tariffs I mentioned earlier, which are section 232, I did check. So there is this logic behind it. Trump is a man kind of made for this moment. The question there is though, what is the ultimate goal here? Is the goal to manage supply, change, hedge risk, accept some trade off and some slightly in higher prices, to have more security, more stability, both from a geopolitical standpoint and in terms of a supply chain standpoint. If so, then what the Biden administration advocated for, which I think a lot of people in this space advocate for, is the kind of small yard, high fences idea. The idea that you are going to have a community of people you work with and you trade with and you have the advantages of a freer trade system, but you're going to set barriers around them to keep other folks out around strategic issues that are particularly concerning to you. To have a smaller community of states, or maybe no other states working on those, and that you'll have a much more variegated global economy, but still has substantial elements of free trade because nobody's denying the advantages there. And yet Trump is doing this exactly against the states that you want in that clubhouse. That's the biggest departure to me. And it is just, just weirdly driven by hostility towards training partners. The idea of a big trade deficit is not a reflection of deficit spending upon the United States and the fact that we export more services than trade goods. Instead, it is just a sign of us being taken advantage of and that that antagonism gets turned into a really self destructive strategy. From the perspective of the first Trump administration, the Biden administration, and most other folks who might otherwise be amenable to tariffs as an appropriate toolkit if used in the right way. That's part, and maybe it does boil down to illiteracy to some point, but I think it is partially that and partially a much more ideologically driven vision of an outcome which is of an autarkic United States, not an United States interdependent, strategically interdependent United States. That vision of autarky is just not something that states have really. It's a very old school view that is still not in style for I think, fairly good reasons.
- [71:08]
Yeah, I mean, I think it's a good point that the economic consensus has changed and we're still not sure what the new consensus is going to be. And there is to some extent a new normal that's emerging of tariffs, as you said, biden continued, sort of quietly, some of the Trump first administration tariffs. But to take a step back, the fact of the matter is that even if you do have a very clear strategy, you know exactly what you're trying to do. You're trying to do the experimenting with whatever the new sort of economic consensus building is going to be. This is not how you do it. The degree of uncertainty and the chaos that's injected into the system is maddening to keep up with from a news perspective. It's also what's causing all of the weakness right now. Right. This is not a playground. This is going to have and is already having really significant concrete impacts on actual people. And all of the data is there to indicate that we are in extreme risk of having a recession or even a depression. And there's a good article by John Cassidy for people who are interested from yesterday in the New Yorker about some study that connects economic uncertainty with economic weakness in performance. So just the mere fact of the uncertainty is really troubling. And this is just not how you would do it. It's the same phenomenon that we've talked about in the two other segments where even if it's the case that some of these policies have sort of a coherence to them, this is not the way that one would pursue them. And the way that they are being pursued is directly contrary to actually being able to accomplish any goals that one might have.
- [72:57]
Well, well, we are out of time today, but this would not be rational security if we did not leave you with some object lessons to ponder over in the week to come. Alan, what do you have for us?
- [73:07]
Alan Rosenstein
Okay, this may be the nerdiest object lesson I've ever offered. And like that's. Yeah, yeah. Scott just gave me a look because that's a high bar. So I am in the middle of reading a book called Gardens of the Moon. It's written by Steven Erickson. It is the first in a 10 volume epic Malazan book of the Fallen series. And I am so into it. It is the sort of book that is so dense with lore that you literally. I literally have to read it with the like, with the fan Wikipedia page. Like there's a whole like Malazan wiki that they've built so I can cross reference it, which I get. Like, sounds like a bad thing. But it works so well in part because the book is really beautifully written. Actually, that's often a problem with genre fiction for me at least, is that if like the writing like the world building is Often much better than the writing quality. And like that just. That doesn't work for me because like I care too much for the writing quality. This is one of these rare books where it's like an insane level of world building. I think this actually, I think I read that this actually started as they were building. They were making a new tabletop role playing universe and then they decided to make a book series out of which.
- [74:12]
Unnamed Speaker
Kind of explains so many good books start that way.
- [74:14]
Alan Rosenstein
I know, I know. But the writing is really great too, so. So I cannot express how excited I am that I am halfway through the first book of a 10 book. I know what I'm doing for the next two years and I could not be more delighted. Have you read all 10 of them?
- [74:29]
Unnamed Speaker
No, I read the first one. I never picked up the second one, which I don't remember being as entranced with it. But I've heard really good things. I read it when I was in Iraq and I got a lot of stuff going on, so maybe it was not the time to engage. Unless it's world building. Nation building wasn't going well. World building seemed one step too far at that point. But it may be worth turning back to a certain point. I've heard really good things. For my object lesson this week, I want to share an update from the Movie File because I had a very good movie watching experience. I did finally watch Before Midnight, the third movie in the trilogy that starts with Before Sunrise. I really liked it. It is a bit of a downer, particularly because I watched on my 41st birthday and the main character keeps saying over and over again, God, I can't. I can't believe I'm 41. And it's a little bit of a downer, but it is really interesting. I actually think it's a very good movie. But that's not. My object lesson is not Before Midnight, although I do recommend people watch it. Just brace yourself for some relationship awkwardness instead. It's another movie that I watched, one of my favorite movies I've watched this year. It's really quite phenomenal. It's called My Old Ass, which I think a lot of people probably skipped because of the title. I think it's actually an Amazon movie with Audrey Plaza and it sounds like kind of a raunchy comedy which, you know, has its place, but not something I usually turn to these days. But it's actually not. It is a really clever, funny premise about a young woman who goes, takes shrooms and then encounters her 39 year old self and has starts up this relationship with her 39 years old self, talking about what she's going through in her last few weeks before she leaves her hometown and goes to college. But it is both very funny in kind of like a subtle, clever way. Really well acted. I think the Aubrey Plaza is good, but she's actually barely in it. The main lead actor, whose name escapes me at the moment, is really charming, really phenomenal. Everyone's really good in it. It's beautiful. It's set on a cranberry bog in like rural Ontario. So it's like the beautiful, beautiful landscape you could possibly ask for. And it's incredibly sweet sentimental reflection about kind of aging and going through life and going through phases and parenting and relationships and just squeezes a ton out of like I think an hour and 20 minute runtime. Highly recommend it. Really phenomenal movie. Not at all what I thought it was going into it and I'm so glad I watched it. So highly recommend that for anyone out there who needs a little bit of a sappy, sweet, funny pick me up. Natalie, what do you have for us this week? Bring us home.
- [76:44]
Okay, well, I think in the spirit of following you, Scott, I will have a secret not object lesson to start and then my real object lesson to follow. So my secret non object lesson is that the thing that I've been doing to sort of get away from the deep despair spirals that can sometimes come with working at Lawfare and following everything that's going on in the world is I have been watching some of the Great British Baking show, which is just a very delightful way to spend some time because the most drama you're gonna see is like someone's cake didn't get cooked all the way through. God forbid something falls on the floor. That's the most that's going to happen and the rest of the time everyone's going to be really eager. If someone is falling behind, everyone else is going to help them finish before the time runs out. And it's just lovely and it inspires you to bake if that is your want. My actual object lesson is a bit of log rolling for Lawfare and specifically for one of our colleagues and former co host of Rational Security 2.0 Cointre Durasa, who was on the Ezra Klein Show a couple weeks ago. I think it was February 11th was the date of the episode and the title of the episode is what if Trump Just Ignores the Courts. But the conversation is much more wide ranging and they talk about unitary executive and they talk about assertions of executive power and federal civil service and all sorts of things. But it includes one of my favorite quinton that I just wanted to share with all of you, which is that walking out the front door and jumping out of a fourth floor window are both ways to leave a building. So go check it out, see in what context she delivers that excellent line and let us know what you think.
- [78:38]
And that brings us to the end of this week's episode. Rational Security is of course a production of Lawfare, so be sure to Visit us@lawfairmedia.org for our show page with links to best episodes for our written work and the written work of other Lawfare contributors, and for information on Lawfare's other phenomenal podcast series, including our new series Escalation on the War in Ukraine, available in a podcatcher near you today. In addition, be sure to follow Lawfare on social media wherever you socialize your media. Be sure to leave a rating 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 lawfordmedia.org support our audio engineer and producer this week was Noam Osband of Go Rodeo and our music as always, was performed by Sophia Yan. We are once again edited by the wonderful Jen Patcha. On behalf of my guests Alan and Natalie, I am Scott R. Anders and we will talk to you next week. Until then, goodbye.
- [79:37]
Natalie Orpet
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