The Lawfare Podcast: Rational Security – The “Botanical Bros” Edition
Release Date: March 12, 2025

Introduction and Reconnection
Timestamp: 03:15 - 03:59

In this episode of Rational Security, host Scott R. Andersen welcomes back co-host emeritus Professor Alan Rosenstein and Lawfare's Executive Editor Natalie Orpet after Alan's extended hiatus. The hosts engage in light-hearted banter about their mutual love for botanical gardens, setting the stage for a serious discussion on pressing national security issues.

Topic 1: Trump Administration’s Targeting of Law Firms
Timestamp: 03:59 - 18:05

Summary:
Scott Andersen introduces the first major topic: the Trump administration's recent actions against two prominent law firms, Covington & Burling and Perkins Coie. The administration has repealed security clearances for lawyers associated with Special Counsel Jack Smith’s investigations into former President Trump and alleged ties to the Steele dossier. Additionally, an executive order imposes secondary sanctions on Perkins Coie, effectively restricting government contracts not only with the firm but also with any entities associated with it.

Key Points:

1. Legal Implications:

   • First Amendment Concerns: The actions raise significant First Amendment issues, particularly regarding the right of association.
   • Due Process Violations: The abrupt revocation of security clearances without proper adjudication processes may violate the Fifth Amendment's due process clause.
   • Executive Overreach: The executive order's broad restrictions lack clear legal grounding, making them highly susceptible to legal challenges.

2. Impact on the Legal Industry:

   • Chilling Effect: Law firms may become hesitant to represent certain clients, fearing retaliation from the government.
   • Lack of Support: Unlike past administrations, there is little public support or condemnation from within the legal community regarding these punitive measures.
   • Operational Challenges: Firms like Perkins Coie face operational disruptions, including the need to hire other law firms (e.g., Williams & Connolly) to defend against these executive actions.

3. Constitutional Ramifications:

   • Right to Choose Counsel: The secondary sanctions may infringe upon the lawyers' and clients' rights to choose their legal representation freely.
   • Discrimination Against Legal Practices: Targeting firms based on their political affiliations or past representations undermines the integrity of the legal profession.

Notable Quotes:

• Scott Andersen: "These are really quite dramatic orders in a number of senses... there is every indication that they have no intention of stopping there."
  [08:27]

• Alan Rosenstein: "I really can't overstate the drama of it... it's almost like an authoritarian regime."
  [11:40]

• Alan Rosenstein: "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 Perkins Coie."
  [12:25]

Topic 2: Withholding Federal Grants from Columbia University Over Anti-Semitism Allegations
Timestamp: 18:05 - 49:52

Summary:
The discussion shifts to the Trump administration's decision to withhold $400 million in federal grants from Columbia University, citing inadequate measures against anti-Semitism on campus. Furthermore, the administration has indicated plans to revoke student visas for individuals expressing pro-Hamas views.

Key Points:

1. Legal Sustainability:

   • Lack of Due Process: The administration has not initiated a formal investigation or adjudication process to substantiate the claims against Columbia.
   • Title VI Violations: The action may violate Title VI of the Civil Rights Act, which prohibits discrimination based on ancestry, yet the administration bypassed standard procedures.

2. Impact on Academic Freedom and Operations:

   • Chilling Effect on Speech: Universities may be forced to suppress legitimate speech to avoid federal penalties, infringing upon First Amendment rights.
   • Financial Strain: The withdrawal of grants undermines the financial stability of academic institutions, potentially affecting research and educational programs.
   • Reputation and Autonomy: Columbia’s reputation and operational autonomy are at risk, setting a precedent that may affect other universities.

3. Broader Implications for Higher Education:

   • Strategic Retaliation: The administration's actions appear aimed at pressuring universities to conform to specific political and social standards.
   • Potential for Increased Litigation: Affected institutions and individuals are likely to challenge these measures in court, leading to protracted legal battles.

Notable Quotes:

• Alan Rosenstein: "This is extremely problematic from a legal standpoint... it’s going to have a really harsh impact on how universities operate."
  [34:09]

• Scott Andersen: "This is just one of those areas where again, the administration could have taken a very strong stance, but instead chose to just eliminate $400 million in federal contracts and grants."
  [46:31]

• Alan Rosenstein: "I can tell you with 100% certainty that the universities will sacrifice their students' First Amendment rights every time... universities can exist without student First Amendment rights."
  [50:15]

Topic 3: Trump Administration’s Oscillating Trade Policies and Tariffs
Timestamp: 49:52 - 78:37

Summary:
The final major topic addresses the Trump administration's inconsistent approach to trade policies, specifically the imposition and subsequent rescinding of tariffs on Canada and Mexico. These actions have created economic uncertainty, contributing to fears of a recession.

Key Points:

1. Economic Impact:

   • Market Instability: The erratic implementation of tariffs has led to decreased investor confidence and market volatility.
   • Risk of Recession: Persistent uncertainty hampers business planning and investment, accelerating economic slowdown.

2. Policy Coherence and Strategic Goals:

   • Lack of Clear Strategy: The administration's actions appear driven more by personal vendettas and psychological motivations rather than a coherent economic strategy.
   • Autarkic Tendencies: Trump's tariff policies suggest a move towards economic self-sufficiency ("autarky"), which undermines global trade interdependence.

3. Political and Psychological Drivers:

   • Sadistic Bullying Behavior: Alan Rosenstein characterizes Trump’s actions as stemming from a sadistic desire to bully perceived adversaries.
   • Economic Illiteracy: The administration’s approach is criticized for lacking economic rationale and disregarding fundamental trade principles like comparative advantage.

4. Bipartisan Shifts and Future Implications:

   • Enduring Tariffs: Some tariffs initiated during the Trump administration have been retained by the Biden administration, indicating a shift in the broader economic consensus.
   • Leverage Over Civil Society: Tariffs serve as a tool for the administration to exert control over industries and civil society, posing long-term threats to economic stability and international relations.

Notable Quotes:

• Alan Rosenstein: "Trump is quite authentic in believing that he can tariff his way into an American manufacturing boom... this is economically illiterate."
  [66:01]

• Scott Andersen: "The mere fact of the uncertainty is really troubling. This is not how you would do it."
  [71:08]

• Alan Rosenstein: "Tariffs give the administration massive leverage over civil society... it's economically illiterate."
  [64:03]

Object Lessons and Closing Remarks
Timestamp: 78:37 - End

As the episode wraps up, the hosts share personal object lessons to provide a lighter end to the intense discussions:

• Alan Rosenstein's Object Lesson:
  Alan shares his enthusiasm for "Gardens of the Moon," the first book in Steven Erickson’s Malazan Book of the Fallen series, highlighting its intricate world-building and narrative depth.

• Scott Andersen's Object Lesson:
  Scott discusses his recent movie viewing experience, recommending My Old Ass for its clever and heartfelt storytelling, contrasting it with the more somber tones of Before Midnight.

• Natalie Orpet's Object Lesson:
  Natalie mentions an insightful appearance by colleague Cointre Durasa on the Ezra Klein Show, emphasizing the importance of nuanced discussions on executive power and legal strategies.

Closing Notes:
The hosts encourage listeners to visit the Lawfare website for more content, follow on social media, and support the podcast through Patreon for an ad-free experience. They acknowledge their production team and sign off with plans to continue the conversation in future episodes.

Conclusion

This episode of Rational Security delves deep into the Trump administration's aggressive and legally questionable tactics against law firms and academic institutions, highlighting the broader implications for civil liberties, legal practice, and economic stability. Through informed analysis and expert insights, Scott Andersen, Alan Rosenstein, and Natalie Orpet provide a comprehensive examination of how these actions not only challenge established legal norms but also pose significant threats to the integrity of American institutions and the economy.