Rational Security: The “Bridle and Groomed” Edition

Summary

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Summary of “Rational Security: The ‘Bridle and Groomed’ Edition” by The Lawfare Institute (Released May 22, 2025)

In this episode of The Lawfare Podcast, hosted by Scott R. Andersen, the discussion navigates through pivotal national security issues affecting U.S. policy and international relations. Joined by experts Benjamin Wittes, Dana Stuster, and Roger Parloff, the conversation delves into President Trump's significant trip to the Persian Gulf, a landmark Supreme Court ruling on the Alien Enemies Act, and the controversy surrounding former FBI Director James Comey.

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1. President Trump's Historic Trip to the Persian Gulf

Overview: President Trump's recent trip to the Persian Gulf marked a noteworthy pivot in U.S. foreign policy, marked by both traditional diplomatic engagements and unexpected policy shifts that have stirred reactions among allies and advisors alike.

Key Points:

• Fanfare and Diplomacy: The trip began with the characteristic fanfare associated with Saudi Arabia, highlighting longstanding U.S.-Saudi relations.
• Controversial Gift: Concluded with the unexpected presentation of a new Air Force One from Qatar, reportedly at Trump's behest, signaling deepened ties with Qatar.
• Policy Shifts: Trump called for an end to the Gaza conflict, participated in negotiations to secure the release of the last American-Israeli hostage held by Hamas, and announced a significant reassessment of U.S. sanctions on Syria.
• Impact on U.S.-Israel Relations: These moves have created friction with Israeli Prime Minister Benjamin Netanyahu, challenging the traditional U.S.-Israel alliance dynamics.

Notable Quotes:

• Scott R. Andersen [04:39]: “Trump's trip was more substantive than expected, delivering policy changes that caught many by surprise.”
• Dana Stuster [08:13]: “The decision to lift sanctions on Syria was significant and bypassed the usual review process.”

Discussion Highlights:

• Dana Stuster: Emphasized the gravity of lifting Syrian sanctions without the standard procedural reviews, indicating a bold administrative move.
• Benjamin Wittes: Highlighted the strain placed on the U.S.-Israel relationship, noting Netanyahu's precarious position given Trump's divergent policies.
• Scott Andersen: Critiqued the administration’s approach to regional alliances, particularly the unexpected concessions to Qatar, and pondered the long-term sustainability of such policy shifts.

Implications: The episode underscores the complexity of Trump's foreign policy maneuvers, balancing traditional alliances with new strategic partnerships, and the potential long-term ramifications for regional stability and U.S. diplomatic relations.

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2. Supreme Court Ruling on the Alien Enemies Act

Overview: A landmark decision by the Supreme Court has addressed the administration's use of the Alien Enemies Act (AEA) to remove Venezuelan nationals, marking a significant judicial check on executive immigration actions.

Key Points:

• Court’s Ruling: In a 7-2 decision, the Supreme Court deemed the summary notice provided before removal under the AEA as inadequate, necessitating a more robust notification and opportunity to contest removal.
• Procedural Concerns: The ruling challenges the administration’s expedited removal processes, emphasizing due process rights even in national security contexts.
• Future Implications: This decision sets a precedent that may influence broader immigration policies, including potential impacts on Temporary Protected Status (TPS) and other executive actions regarding immigrant removals.

Notable Quotes:

• Roger Parloff [30:34]: “The Supreme Court's decision essentially says the notice provided is insufficient, potentially extending the removal process.”
• Scott R. Andersen [37:20]: “It’s extraordinary for the Supreme Court to send back such procedural matters, marking a significant stance on executive branch actions.”

Discussion Highlights:

• Roger Parloff: Detailed the procedural shortcomings identified by the Court, stressing the need for meaningful notice and the opportunity to challenge removal.
• Benjamin Wittes: Analyzed Justice Kavanaugh's concurrence, exploring its implications for future immigration litigation and the potential for a judicial shift towards more stringent oversight of executive actions.
• Dana Stuster: Discussed the broader impact on U.S. immigration policy, particularly how this ruling could constrain the administration’s ability to implement expedited removals and affect programs like TPS.

Implications: The Supreme Court’s decision reinforces the importance of due process in immigration removals, potentially limiting executive overreach and providing a judicial framework that safeguards individual rights even under the banner of national security.

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3. James Comey's Controversial Photo and Subsequent Investigation

Overview: A recent incident involving former FBI Director James Comey has ignited a media frenzy and raised questions about government overreach in interpreting political speech as threats.

Key Points:

• The Incident: Comey shared a photo on social media depicting shells arranged to spell out the numbers 8647, which some interpreted as an assassination threat against President Trump.
• Government Response: This interpretation led to a Secret Service interview and public condemnation from President Trump, despite alternative explanations suggesting the numbers reference Joe Biden, the 46th President.
• Legal Analysis: Experts argue that the imagery does not meet the legal threshold for a true threat under the Brandenburg v. Ohio standard, which protects most forms of speech unless they are intended and likely to incite imminent lawless action.

Notable Quotes:

• Benjamin Wittes [60:34]: “Legally, this does not constitute a true threat under Brandenburg v. Ohio and is protected speech.”
• Scott R. Andersen [61:09]: “If Comey meant it as a general instruction to assassinate, that would still be protected under the First Amendment.”

Discussion Highlights:

• Scott Andersen: Clarified the legal boundaries of protected speech versus actionable threats, emphasizing that the Court has consistently safeguarded political speech unless it directly incites imminent lawless action.
• Roger Parloff: Critiqued the administration’s approach as an attempt to discredit Comey, highlighting the misuse of government resources in pursuing investigations with flimsy legal grounds.
• Benjamin Wittes: Explored the broader implications for free speech and governmental power, cautioning against setting precedents where benign postings can lead to unwarranted legal actions.

Implications: The episode highlights the tension between national security concerns and First Amendment protections, cautioning against the potential for governmental overreach in policing political discourse and setting dangerous precedents for free expression.

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Additional Discussions and Insights

Beyond the main topics, the hosts briefly engage in lighter banter about personal interests, such as facial hair trends, and share book recommendations, enriching the episode with personal elements that humanize the discussion.

Notable Interactions:

• Roger Parloff [70:13]: Recommends “The Sistine Secrets” by Benjamin Bleck and Roy Deliner, delving into controversial interpretations of Michelangelo’s Sistine Chapel.
• Scott R. Andersen [75:01]: Shares a humorous take on the Vatican’s conclave process and his personal disappointment in the recent papal selection.

Conclusions and Takeaways:

• Policy Shifts: President Trump's recent diplomatic actions indicate a potential realignment of U.S. foreign policy priorities, balancing traditional alliances with new strategic partnerships.
• Judicial Oversight: The Supreme Court’s intervention in the AEA case underscores the critical role of the judiciary in maintaining checks and balances over executive actions, particularly in immigration policies.
• Free Speech vs. Security: The James Comey incident serves as a cautionary tale about the delicate balance between safeguarding national security and upholding constitutional protections for free speech.

Final Remarks: The episode concludes with the hosts encouraging listeners to engage with Lawfare’s broader content offerings and support their initiatives, reiterating the importance of informed discourse in navigating complex national security landscapes.

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Key Takeaways:

• Diplomatic Maneuvers: Understanding the intricacies of President Trump's Persian Gulf trip is essential for anticipating future U.S. foreign policy directions.
• Judicial Impact: Supreme Court decisions play a pivotal role in shaping the boundaries of executive power, especially concerning immigration.
• Free Expression: Safeguarding free speech remains crucial, even in politically charged environments, to prevent governmental overreach and preserve democratic principles.

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For more insights and detailed analyses, visit www.lawfareblog.com.

Transcript

[Scott R. Andersen]

The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of [e-mail] lawfare that's patreon.com Lawfair also check out Lawfare's other podcast offerings, Rational Security, Chatter, Lawfare, no Bull and the Aftermath Picture this. You're halfway through a DIY car fix tools scattered everywhere, and boom.

[Roger Parloff]

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[Benjamin Wittes]

It's okay because, you know, whatever it.

[Scott R. Andersen]

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[Dana Stuster]

They've got everything.

[Benjamin Wittes]

Brakes, headlights, cold air intakes.

[Scott R. Andersen]

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[Benjamin Wittes]

Which means no more crossing your fingers.

[Dana Stuster]

And hoping you've ordered the right thing thing.

[Scott R. Andersen]

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[Benjamin Wittes]

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[Scott R. Andersen]

So guys, Preakness or Stash.

[Benjamin Wittes]

Ben getting into the Meta for a B roll conversation from the jump.

[Scott R. Andersen]

I mean, we've got. Scott says he watched the Preakness. Dana is sporting the most 70s mustache I've seen in a long time. Which are we talking about?

[Benjamin Wittes]

We do have a bit of a facial hair trend going. Why don't we start with the stache? As we critiqued Ben's facial hair the last time he was on the podcast, I think it's only fair. Dana, what has inspired this very Tom Selleck vibe? You're rocking the John Bolton vibe. You're not wearing a Hawaiian shirt, which I do think is the move that you're missing. And perhaps flying on a helicopter with a. I think it was a Yankees hat was the Magnum PI vibe.

[Dana Stuster]

But I can keep going bigger. The the I had a. I had a beard all through the winter and needed a break from that because it got springy and I just was ready for a change of pace. And I had done like two weeks of a mustache and during the pandemic and my wife was like, you should bring that back. That was fun. Yeah, but if I bring out the Hawaiian shirt too, that that might go too far.

[Scott R. Andersen]

All right. Preakness.

[Dana Stuster]

Yeah. How was the race?

[Benjamin Wittes]

Have you guys ever watched the Preakness or horse like A major horse race or the coverage for it on tv? I should say specifically no.

[Scott R. Andersen]

And I've never understood why people get dressed up for them either.

[Benjamin Wittes]

It's like three hours of solid coverage for what is a like two minute long sporting event at most. And they fill it with the most amazing set of interviews and performances where they essentially are trolling all the incredibly drunk preppy people that have assembled for this horse race, as far as I can tell, inner spliced with live coverage. They had an extended interview with a gentleman who was dressed like a centaur, shirtless from the waist down and dragging an extra set of horse legs behind him.

[Scott R. Andersen]

How was his mustache?

[Benjamin Wittes]

He was mustache less. He did have various ancient Roman or ancient Greek I guess in his hair, long flowing locks. But he was not super great at forming sentences because I think he was too intoxicated. And I was like, I can't believe ESPN2 or whatever network this was was giving an hour of coverage to this sort of cultural event. It's very strange.

[Scott R. Andersen]

Who won? Was it sovereignty? Who beat journalism in the.

[Benjamin Wittes]

No, no, it was journalism. Journalism won this time, which was like a big comeback. I think we all needed journalism to win on this one. I think that makes us all feel a little bit better, at least in this particular podcast room. Hello everyone and welcome back to Rational Security. I am your host, Scott R. Andersen. Thrilled to have you joining us for the podcast where we invite you to join members of the Lawfare team as we try to sense of the week's biggest national security news stories. Joining me this week once again is Rational Security co host emeritus and Lawfare Editor in Chief Benjamin Wittis. Ben, thanks for coming back on yo. Our long standing foreign policy Deputy Editor General man of the world, Dana Stuster. Dana, thank you for joining us.

[Dana Stuster]

Happy to be here.

[Benjamin Wittes]

And of course our legal correspondent. I don't think it's a real title, but I think it's an app descriptor. Roger Parloff. Roger, thank you for joining us back on the podcast.

[Roger Parloff]

Thanks for having me, Scott.

[Benjamin Wittes]

I think we all have colds because everybody is about one octave lower than we usually are. I don't know what's happening in the city this summer. It's really bizarre. But get ready for a very sultry all male episode of Rational Security with a lot of low notes. I hope you all are into ASMR because we're about to get some weird tones. So apologies for that for folks who are maybe sensitive, that sort of thing, but please hang out because we have a lot to talk about it's been a big week in national security news. Every week is a big week in national security news these days. We've got a couple stories we want to talk over with you, including the following topic 1 let's shake on it President Trump completed a surprisingly historic trip to the Persian Gulf last week, which began with a type of fanfare that Trump loves and only Saudi Arabia can provide, and ended with the controversial gift of a new Air Force One from Qatar at the president's reported request. But in between, Trump reiterated his calls for an end to the Gaza conflict, became directly involved in negotiations to release the last living American Israeli hostage from Hamas, and announced dramatic about face US Sanctions policy towards the new regime in Syria that caught even his closest advisors by surprise. And these are all measures that are unlikely to be greeted warmly by the man who has traditionally been Trump's closest regional ally, Israeli Prime Minister Benjamin Netanyahu. How big a Pivot point was Trump's trip and what could its implications be for US policy towards the region moving forward? Topic 2 Not retiring from a fight the Supreme Court issued an unprecedented third opinion off its emergency docket this past week in the inaptly named AARPV Trump as part of the ongoing litigation over the Trump administration's controversial efforts to remove Venezuelan nationals under the Alien enemies Act. In a 7:2 ruling, the court held that the summary notice, an opportunity to challenge that US Officials have provided to some individuals prior to the removal, was inadequate or attempted removal, I should say was inadequate. But as litigation through the lower courts continues, what impact is this holding likely to have on the administration's broader immigration policies? And Topic three Shell shocked Former FBI Director James Comey found himself at the center of an unlikely controversy this week when his decision to relay a photo of shells arranged to SPEL numbers 8,000, 647 that he reportedly found on the beach was interpreted as a death threat against President Trump, triggering a Secret Service interview and potentially more legal consequences to come. How seriously should this incident be taken and what does it tell us about the Trump administration's use of prosecutorial investigatory discretion? For our first topic, Dana, I wanted to come over to you first because you are more so as much, if not probably more so than Ben or I Are a lot of folks in the law of our team, a Middle east watcher and somebody who follows policy in the region closely. This struck me at least as a pretty notable trip, a lot more substantive trip than I was really expecting. We know Trump made the Gulf states his first foreign visit during his first administration. They were intended to be his first foreign visit. This administration that was interrupted by the death of the Pope, which led, I believe, Rome to be his first technical visit. But this was his first kind of planned diplomatic trip, divisioning a bunch of the Gulf states in the Middle East. I think I was expecting a lot of the fanfare, a lot of the nods towards business arrangements and other items that we've already seen the Gulf states bring to the table. But here we actually got a lot of that, plus a lot of asks by the Gulf states. And it seemed to me like Trump kind of delivered on those in some ways that caught a lot of people by surprise. Tell me a little bit about what you've been tracking that came out of this trip. What surprised you, what didn't, and particularly what's most notable in your eyes.

[Dana Stuster]

Yeah, no, I think it was surprising. The decision to lift sanctions on Syria was significant and one that had been. Certainly there's been a lot of discussion about it before this and what that might look like. But to bypass the review process and immediately start issuing waivers, I think was a significant policy change. The new plane from Qatar is also something that has come up in the past week or so, and I think that has also been a. I think it was a bit of a surprise how that started to shape up. And now that it's come out that the Trump administration actually floated this idea to Qatar that this might be a nice, generous gift that they could provide, I think now the discussion is going to turn to what Qatar might be getting in exchange for that. Is there a quid pro quo happening beyond just the general reassurance that is entailed? The other big thing that happened is that Trump was outspoken about the situation in Gaza and commented on the lack of access to food and the need for humanitarian aid to enter Gaza, which, in addition to Trump's comments, J.D. vance even decided to not travel to Israel on the tail end of the trip because he didn't want to seem to be providing support or that he was condoning the. The expanded operations there. And so I think these were all sort of significant policy things that were not necessarily anticipated going in.

[Benjamin Wittes]

Yeah, I mean, the thing that really jumps out to me at all of this is the amount of daylight this seems to invite between the United States and the Israeli government at like, a really, really sensitive moment for the Israeli government. This is really government, the Netanyahu led Israeli government, I should say. You know, folks not who only watch the region, you know, casually will be well aware that the administration has been pursuing an aggressive military campaign in Gaza. This administration has been generally up to a couple of weeks ago, kind of accepting of the fact that Israel could kind of do what it wants to put pressure on Hamas. But the tone of that has really seemed to change. And their direct involvement in, first the negotiation of, you know, the release of the last living Israeli American hostage last week, I think technically right before the Middle east trip started, or kind of as it was taking off. But then the indication that Witkoff, Trump's kind of main emissary for most things, it seems like these days, certainly to the region, is maybe playing a leading role in other hostage negotiations, is pretty remarkable. I mean, that's like a direct bypass around an issue that's really become a third rail in Israeli domestic politics, and one that puts Trump on the opposite side of the position that many of Netanyahu's supporters have taken, which is that we got to pursue the military campaign and we can't let the hostages be used as leverage against us. Ben, I know you keep a close eye on Israeli kind of domestic politics. Have a good sense of that. Am I off on this? Does this not put Netanyahu in a really, really difficult position at kind of a challenging moment, or might there be more here that explains why Trump is willing to go so far out on a limb?

[Scott R. Andersen]

No, you're not overstating it. You might be understating it because you're leaving out a key event in the succession of Trump. I don't know whether to call them stabs in the back of Netanyahu or kick in the groin, which is the separate deal that the United States made with the Houthis. I can't remember if it's the first or the second of these where it comes in next to the negotiation of a American only hostage release. But, you know, from an Israeli perspective, or maybe I should say from a Netanyahu perspective, since the Israeli center and left is probably closer to Trump here than to Netanyahu, which gives you an idea of how weird the thing gets. But from a, from Netanyahu's point of view, the Americans here, by which we mean Trump, have cut a separate deal with the Houthis that have really left the Israelis kind of in the lurch. You know, we made a big deal of attacking the Houthis, and it wasn't going to be, you know, just pounding sand like the Biden administration. It was going to be a sustained commitment to wiping them out for, you know, a week and a half or whatever it was. And then we decided, okay, well, if they don't attack US Ships anymore, we won't go after them. And the problem with that, from an Israeli point of view, is that they're lobbing these pretty big missiles into Israel that are actually, you know, being a real problem, that Israel can kind of do a lot of damage to Hamas. But it, you know, the Houthis are very far away, and the ballistic missiles that they're sending over, not that much that the Israelis can do about them. And now the Israelis are kind of on their own on that score. Then again, the sequence here, I'm not sure what order it took place. And then there's a, you know, Witkoff goes and negotiates directly with Hamas the release of the American remaining hostage, but none of the others. And then Trump goes and lifts sanctions on Syria despite real Israeli anxieties about whether who this new Syrian leader is. Now, I happen to agree with Trump on this latter point. I think there's a lot to be said for lifting sanctions on Syria. And by the way, I think in Trump's defense, there is actually a lot to be said for the US Taking care of its own citizens. And if we can get US Citizens out, I'm not sure that's, you know, I don't think that's the worst thing in the world. I do think the administration's posture toward the Houthis is very hard to defend and does really leave Israel in the lurch. So, you know, there's a lot of reason for Netanyahu to be anxious here. And this is all layered on top of the fact that, remember that Israel is one of the few countries in the world where Donald Trump is genuinely popular. There's a, you know, a settlement named after him in the Golan Heights. There's, you know, he's the guy who moved the embassy to Jerusalem, you know, and so the Israelis have had, you know, they've kind of put Trump up on a pedestal. And, you know, notwithstanding some pretty strong things that Biden did in defense of Israel at various times over the last post, October 7th period, only now to have Trump, you know, really show that he cares more about the Gulfie relationships than he does about the relationship with Netanyahu. Now, why that is is a complicated question that gets into Trump's psychology. And who knows what the real answer to it is. It may be the fact that the Gulf is have just a boatload of money. It may be that he's mad at Netanyahu about having congratulated Biden on his victory. It may be that he just doesn't like the optics of a lot of Palestinians getting killed and you know, who does. But he's definitely opened up a fissure with Netanyahu, who I will and I'll end on this point is wedged between a rock and a hard place here because Trump clearly wants him to wrap up the war in Gaza, which lots of other Israel friendly countries do as well. See the Canadians, British and was it the Germans who made a statement today? But you know, he is dependent for the survival of his government on far right people who, who really don't want this to end and want as much of Gaza to be destroyed as possible. And so, you know, Netanyahu here is, I would say, I would say it in sympathy, except that it is entirely of his own creation. He's in a delicate position that he built for himself in, in order to make his life to constrain his own action in this direction as much as possible.

[Benjamin Wittes]

Yeah, I think that's right. And another thing that really jumped out at me, mostly because of its contrast with the Biden administration, is Trump's only discussion of the Abraham Accords and normalization, which was a brief aside in his public address, if I recall correctly, where he said essentially we hope you, Saudi Arabia, I believe was the specific person he was addressing to will move towards normalization with the Israelis, but we understand it will be at your own pace. And that was it. We have to remember the Abraham Accords was a major, major initiative of the Biden administration for most of its time in office up until October 7th and to some extent even after October 7th, I mean, there was still a hope that lingered that there might be able to salvage those talks and get them back on track. The vision at the time was that this was a huge, huge deliverable Israelis would really care about. American would like that it was a meaningful foreign policy legacy the Trump administration had accomplished. And that I guess the idea was Biden had to match it or beat it or continue trajectory to try and make it on its own, that it was a US Interest worth pursuing. And Trump really seems to just kind of drop the hat on that. I mean, he hasn't abandoned change the policy technically, but in terms of the hierarchy of preferences, the amount of US.

[Scott R. Andersen]

Oomph behind it, the Abraham Accords doesn't give him planes.

[Benjamin Wittes]

Yeah, exactly. And it doesn't. It just looks like something that he's not willing to make a priority. And it really hits me of if the Biden administration had done one of these things, any one of these things to half the degree that Trump did. I think you would have seen a good part of the Israeli street go completely nuclear. And this was maybe even. I think that would have been true even when Biden was fairly popular in Israel after the October 7 attacks in those first few months. It's certainly true towards the end, when he was popular, had dropped substantially. But Trump's not beholden in that same way. I'm kind of curious what that is. Dana, do you have thoughts about that?

[Dana Stuster]

Yeah, Well, I think one of the indicators is the thing that, Ben, you left out, which is that Trump is also negotiating with Iran again and trying to find a new nuclear deal, which, if it comes together, which right now it looks a little rocky.

[Scott R. Andersen]

Yeah, I forgot that one.

[Dana Stuster]

Yeah. It will look a lot like JCPOA all over again. And the same issues are at stake. Right now. There's discussions. Witkoff said something to the effect of we'll let Iran do some enrichment, and then walked that back and said, we can't have even 1% enrichment. And now the Ayatollah Khamenei is saying that, well, you shouldn't say crazy things like that. And so maybe there won't be a deal after all. But it feels like we're at a stage in negotiations where they're talking about levels of enrichment and what is acceptable, which this was critical in the jcpoa. And if any enrichment is allowed, which is a red line for the Iranians, it will wind up looking like the jcpoa, and we'll have the same concerns about breakout capacity that we had before. And this is another one of those things that Trump called it the worst deal in the world. Right. Worst thing that could have ever been negotiated. And now he's going to get behind negotiating an agreement that looks a lot like that. And it was problematic to the Israelis when the Obama administration negotiated it, and it'll be problematic to them.

[Benjamin Wittes]

Again, this just makes me wonder, two different factors here, right? One is what is driving this reconsideration of views by Trump? Because you can imagine a world where I think the assumption, a baseline assumption, is he's a guy who's mostly driven by domestic politics. His interest in foreign policy is there in spots. He has a lot of certain strong priors, but he's very malleable. No one would call him a deep student of anything, although I think he probably actually has a little awareness of developments in the Middle east in relation to Israel more than other areas. Because he has just been more actively involved there. Doesn't mean he's right about it. But he's got a sense of things and views. Right, but this is a big pivot. These are all big pivots from his administration. And I'm really curious what's driving it. I mean, you could describe it as if you are somebody who likes some of these policies and I probably would put myself in that camp. You could describe it as a pragmatist turn or a turn towards the center right, because you are gravitating towards a set of policies that look a lot like what Democrats did in the number of views or support, like serious sanctions relief, like strongest congressional support from that is from Democrats. But is that what's actually in play here? Ben, you violently shook your head no. So I want to, I'm curious as to hear what it is that you think is driving this, if not some sort of shift to pragmatism being driven by something, I don't really know what it is.

[Scott R. Andersen]

Definitely not a shift to pragmatism. And any relationship that it may have to any well thought through policy is purely a matter of coincidence. What's driving it is the exact same thing that's driving the delusional sense that you can end the Ukraine war by, you know, sending Steve Witkoff to demand that everybody stop fighting and reach a deal in 24 hours. And oh, by the way, the same thing that means you can, you know, says you can announce, you know, tariff rates at A, at 145% and then everyone will come to the table. It's this pathological belief that you can wave your hand and the world will, you know, approach what you would want it to be and by the way, make you a lot of money in the process. And the difference between this situation and all those other situations is that you are dealing with three and actually probably more than three entities that actually do have bottomless pits of money. And so, you know, you can run the policy on fumes for a while because like actually the Qataris can give you a luxury plane and solve your air force problem and the Saudis can say we're going to invest, you know, three quarters of a trillion dollars in America. And it may be true or it may be false, but it's not incredible, right? And the Emiratis can kind of do whatever they want. And so, you know, they can spend a boatload of money too. And so you can go there and you can say, I'm going to wave my hand and all this investment in America is going to happen. And in the short term it's actually you can make it true and you can say, and I'm going to relieve, you know, do sanctions relief on Syria. And there's this, you know, very nice, very presentable former Al Qaeda guy who's running Syria who will say things like, and we want to join the Abraham Accords. And so, you know, you can, you can make all kinds of, of things seem to happen if you're not terribly fussed about long term follow up and kind of what things look like three or four years from now. But there's no underlying policy here except that, you know, we'll say some things that'll make these incredibly rich people happy and they'll throw money at things that we want and throw parades. For me, I wouldn't give it a whole lot more credit than that, except that it does incidentally, by the way, some of the things they're asking for, like sanctions relief for Syria are reasonable and should happen. And so insofar as it incidentally interacts with good policy, you get some not so bad results along the way.

[Benjamin Wittes]

I think I generally agree with that. But I do think there is a element of this that is a realignment in terms of what the ask is and also the perception of the goals because we got to remember like 2017, 2018, during the first term, you had the Gulf states frothing at the mouth trying to escalate hostilities against Iran, really, really actively trying to undermine the JCPOA MBS consolidating power in Saudi Arabia and within the Gulf states, isolating Qatar. Remember, we had that weird boycott and blockade for like a year, a little over a year, I think, among the other Gulf states and Qatar over in part a lot of their regional policy. And those tensions are still there. But the Gulf states themselves seem to have taken a bit of a, whether you call it a pragmatic turn or what, a de escalatory kind of stance, certainly in regards to Iran. And you've seen this sort of rise in Palestinian concerns, which was an almost inevitable kind of outcome of October 7th attacks, I think, and the inevitable Israeli military response. We talked about that when they happened like this was going to be. And that was to some extent, it seems like the intent of some of the people planning those horrible massacres was to try and deep six the Saudi Israeli deal. And that had it, but with huge, we call that 86ing now, yes, 86ing the Saudi deal. You've got this kind of regional shift in priorities. And the one thing I'll say is that I give full credit to Joel Braunold who I had a great conversation with on Friday on the podcast and predicted this early on, he said, basically, coming in, the Trump administration on Middle east policy is a high ceiling and low floor and highly variable, because the one thing he is not, is beholden to a lot of the domestic political and regional political priors that a lot of other administrations are, because he can outflank the Israeli right and has so much support that he can do things in a way that people on the Israeli right aren't as willing to buck the administration over as they would be for a Biden administration. And he can undermine his own party domestically because he's got complete control of the Republican Party almost. That may be change in time, but right now, House opposition to Syrian sanctions, a lot of other stuff is there, but it's pretty muted, it's pretty limited, pretty conditional, and it doesn't seem like it's gonna be a major obstacle as of yet. So it is interesting. I think it's wild, but I really do think you could have this big shift in policy in a way that other administrations, including administrations who actually believe in these policies more and are willing to put more political skin in the game over them, couldn't really do. But the trick of that is then you got to keep them interested and committed to that policy. That's the part that concerns me, because if you're going to have a sustained change and pivot, and the Middle east does require some sustained US Engagement, I think that is an experience of the last several years. Maybe it doesn't need to be the top foreign policy priority, but it needs to be managed. That's the real concern, is that you've got a lot of these sellout policies and big shifts, but how sustainable are they in the medium term, depending on pushback pressures and the fact that Trump himself does seem that invested in them some you can kind of flip a switch, like maybe serious sanctions, and you can do a lot in the relative short term on that. But other things like Gaza conflict, there's no easy way out. And you really need a more sustained sort of pressure on that is my sense.

[Dana Stuster]

Yeah, I think that's what the Saudis and the Qataris see as the value of giving a plane and promoting a lot of investment in the United States. It's to keep the United States engaged, keep them present in the Gulf and have that attention over the long term. Because, yeah, Trump has shown that there's a short attention span. The Houthi campaign was supposed to be eight months to a year, according to what the military leadership had laid out and he was tired after a month. And that's how we wind up with this deal.

[Benjamin Wittes]

Well, from some major developments in the Middle east, let us go to some major developments back here in Washington, D.C. late Friday, we had what has become a late Friday tradition, another decision off the emergency docket from the U.S. supreme Court. This time it is a third decision off the emergency docket relating to the president's efforts to remove Venezuelan nationals from the country under the Alien Enemies Act, a kind of the second decision in the AARP v. Trump matter relating to a number of individuals who are set to be removed to Venezuela after some limited notice and opportunity to contest from Texas. The Supreme Court previously issued a ruling telling the administration, no, you can't go ahead and remove them after district court and lower court judges refused to intervene. And now two or three weeks later, we have a final decision in that case, essentially saying whatever procedure or whatever notice you may have given is not adequate under this particular case. We're not going to say what the standard is. We're going to give it back to the 5th Circuit to talk about that and figure that out. But what you did here, which I don't think amounted to much more than a kind of piece of paper with some information about being removed and maybe in 24 hours to contact a lawyer, if that much is going to suffice. Roger, do I have that about right? And what jumped out at you about this most recent decision by the Supreme Court in this ongoing legal contest?

[Roger Parloff]

I think certainly the key thing is that I think there's several things, though, that it does. I think it's really important, at least with respect to the Alien Enemies Act. It says that this notice, and maybe I should explain what the notice is. And you know, originally we know now it was a secret memo that when they started the Alien Enemies act proclamation was unveiled on the 15th, the plan was to give 00 process. We have that secret memo from March 14th, and Pam Bondi says they get no hearing, they get no appeal, they get no nothing. They get diddly squat. I think that was Pam Bondi's phrase, diddly squat. And then JGG is decided, I think April 7th, and all nine justices say no, they need to get meaningful notice and an opportunity to challenge. Then they institute the current policy which just got struck down. And that was they have 12 hours. They get this piece of paper, it's in English, somebody's supposed to read it to them in their language, and it says you're being removed under the Alien Enemies act, it says you have a phone call. It doesn't tell them they have a right to appeal, to challenge. And if they do nonetheless somehow communicate that they want to challenge it, then they get 24 hours. And I don't understand if it's 24 hours, 24 hours from that moment or 24 hours from when they got the paper. I don't think anyone understands. But anyway, the Supreme Court said, no, that's not sufficient. And it will be very hard to fix that because the most likely solution will be something like 14 days, possibly 21 days, which will change everything. That will give everyone an opportunity to at least put the government to its proof as to whether I am trend Aragua or not. That's what it at the very least. And once you do that, half the purpose of using the AEA is out the window. The main goal of it was to not have hearings and just zoom. And so that's important. There is another half of the AEA that remains important, which is they will say that once we designate you aea, you don't have an opportunity, you don't have a the right to raise a persecution claim or a torture claim. So it should streamline things still. So that will have to be litigated whether that's true. In addition, we'll be litigating whether the AEA was properly invoked at all. So that's a big issue left to be litigated. The other couple things that happened in this ruling that I think are important is it really streamlines procedures. It really gets pretty angry at the lower court and the fifth Circuit and Justice Alito. It's surprising to see a per curiam ruling that is so sharp towards the dissent. And a lot of this revolves around the fact, obviously, that the stakes are so high because of what happened with Abrego Garcia. And I think what we're seeing is, you know, some of us asked, well, how do you, you know, if the executive doesn't obey the Supreme Court, what can it do? And this is what it can do. It can screw you the next time around and say, look, you look, if you're not going to bring back somebody when you've made a mistake, we need to be very, very sure that there are no more mistakes. And so we're going to allow unusual things. And what they are allowing here, for instance, I'll read some of the language. It says here they're giving an injunctive relief. They're giving class injunctive relief even though no class has yet been certified. In fact, the lower Court refused to certify a class. So they say this court may properly issue temporary injunctive relief to the putative class in order to preserve our jurisdiction pending appeal. We need not decide whether a class could be certified as to the detainees due process claims in order to temporarily enjoin the government from removing putative class members while the question of what notice due is adjudicated. They also eliminate some other sort of catch 22s that have made this litigation difficult. You need to prove standing, which means how do you know you're going to be removed under this Alien Enemies act if they haven't given you the piece of paper yet? You don't really know for sure. Even if they've told you in other contexts, we think you're trend is that sufficient? And the same is true of the class. Anyway. There's a lot of procedural things that it cuts through and so in those respects it's very, very important and encouraging.

[Benjamin Wittes]

Yeah, it's a really interesting ruling. I mean Ben, I'd be curious your thoughts about this as well. The tone is interesting. It's still respectful on its face, I think. I think it would be hard pressed to say that this is like crossing the line that a line that Justice Alito crosses regularly in some of his descents of being a little too snippy by half in a way that kind of comes off as frankly a little unprofessional or unfair in some regards. But it's pretty pointed in a lot of its critiques across the board. And as you said, Roger, I think put it very well. It really cut to the quick on exactly what this issue is. It had outs. The court had outs. At a minimum, they had the out that the district court, the fifth Circuit and Justice Alito and Justice Thomas would have taken, which is that essentially this sort of relief was premature and not warranted as of yet, which would have given much more opportunity for the administration to create a de facto state of affairs before any sort of legal challenge could be brought that would have advanced its policy goals. But the administration is really not having this. So. Yeah. Ben, I'm curious about your thoughts. I mean, you've watched the courts as closely as you and Roger, I think are both far to my senior in terms of watching the courts. But I'd be curious your thoughts about this. I mean, do you have a sense that this is like a little bit of an exceptional opinion? I can't think of really a clear parallel, frankly, even from this recent emergency DACA cases we've seen over the last few years.

[Scott R. Andersen]

Well, it has to be seen in conjunction with its predecessor decision which came in the middle of the night a couple weeks ago and from which Alito and Thomas also dissented. And again, in both cases, the tone, as you say, is very matter of fact. It's not it doesn't have any of the sort of anxious rhetoric of J. Harvey Wilkinson at the 4th Circuit or some of the justices, for example, Sonia Sotomayor writing for herself. Right. But the mere fact that it's happening, that seven justices are willing to, you know, at one in the morning say don't remove anybody on this legal theory until we say it's okay. And then having had a couple weeks to sleep on it, say no, we mean that. And by the way, the fifth Circuit should figure out what the law is on this. But you guys sit in the corner and don't do anything until we give you permission. That's an extraordinary thing for the Supreme Court to do. And it's an extraordinary thing for all three justices that are appointed by Donald Trump to do. This is not just, you know, one of Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett. It's all three of them. You know, I think it is an extraordinary no confidence vote in the law abidingness of the executive branch on the part of the Supreme Court, which is, by the way, utterly unsurprising given the, the administration's behavior toward members of the judiciary of, you know, from left to right in cases, not this case in particular, but in cases that are closely proximate to it, including this case. And so I, I guess I think there's it would be surprising if it weren't happening. And the only reason it is surprising that it is happening is that we've gotten used to this court accommodating the president, whether the presidency or Donald Trump. I'll leave to a different conversation in some of its most extraordinary claims. And so we're all kind of used to, for, to saying, well, the court couldn't do that. The court couldn't do that. Oh my God, they found that there's, you know, immunity or that the 14th Amendment doesn't mean what it says or that, you know, you know, go on and on and on. And then I think in this case they're behaving more or less like the supreme you would expect the Supreme Court to behave, which is with a dignified economy of rhetoric and a very sharp insistence that the law be followed and by the way, a careful lack of haste to get to the question of what the law is. Let that percolate. But don't let it percolate at the expense of any additional Venezuelans who you might feel like sending to a gulag in El Salvador. And so I, I guess I, I think it's not surprising. What is surprising is that we've all grown so accustomed to being surprised that we're surprised by it. Hey, do you insure your car? Your home? Do you have a personal liability policy in case someone sues you? Unless you're Elon Musk, it's a good idea because if something bad happens, you want to be protected. But what about you? 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[Dana Stuster]

I'm curious how narrow this is to the AEA and whether this will have implications for the administration's other efforts to remove people from the country, especially now that they're talking about revoking temporary protected status for refugees in the country. Will this affect their ability to remove people as that status is revoked?

[Roger Parloff]

Yeah, I'm actually pessimistic about that. I'm sure it applies where the there's a fear that if somebody could be going to Sakat or El Salvador and we'll never get them back. Whether it applies further than that, I don't know. And yesterday the Supreme Court gave a very like a two paragraph ruling in the national TPS alliance case that was very disillusioning. That case involves at least 350,000, but really about 600,000 people. And these were programs. There are sort of two tranches. But this is a program that has existed since 1990, but Biden invoked it when there was a crisis in Venezuela and it's a Humanitarian program. And you can let people stay here who wouldn't normally be permitted to. But there's an individualized process. You ensure that they are not. They don't have a felony conviction, and then they get TPS status, and then they can work here and they can put down routes. But it is limited. And the first thing Kristi Noem did when she got here was she tried to terminate, in one case, a whole tranche and tried to terminate an extension of a different tranche. So. So the upshot is some people right now, or as of April, become removable. Another tranche will become removable in September. And the judge prevented this. And the Ninth Circuit refused the government to stay, I think unanimously. So the issue was here, will the Supreme Court grant a stay? And, you know, the standard is that it's supposed to be the government that shows irreparable harm to it in order to get a stay. And you're talking about, you know, cutting loose 350,000 people that have been relying on this and that have put down routes and are employed versus, you know, waiting until the Ninth Circuit hears the full appeal and they find that the irreparable harm is to the government. And there's virtually no explanation. There is a second paragraph, which nobody can make out, including the plaintiff's lawyers. It says, well, you know, you can still challenge. If you have a work permit, you can still challenge your right, the right to take it away or something. No one knows what that means, but anyway, it's not a very good barometer. And then there's another case that's rather like this, which you probably know about. Parole involves another tranche of 500,000 people. And it's an analogous situation. The Supreme Court hasn't ruled yet, but it makes you very uncomfortable. So I just don't know how broad this is. Cutting the other way, there is one piece of. There is one sentence in the ruling that sounds like it's broader. It says, we have long held that, quote, no person shall be removed from the United States, quote, without opportunity at some time to be heard, unquote, quoting a 1903 case, which I haven't heard them quote before. So maybe having the Supreme Court say that again today, I'm talking about the AARP ruling. Maybe that will be helpful outside this narrow context, but the indications are not good.

[Benjamin Wittes]

Yeah, I agree with that. For tps, the one thing I would note, I mean, I do think this throws cold water on any of the other legal theories the administration might have that would allow for summary removal. We Know, this isn't the only one, right. This is actually in some ways some of the less outlandish ones, although it's quite outlandish. You know, January 20th, President Trump issued a number of executive orders that really pretty clearly articulate a claim of presidential authority, maybe exclusive presidential authority to, you know, come to the defense of a nation from invasions. And it treats unlawful immigration as an invasion. And maybe that, you know, translates into some constitutional authority to remove people. You know, I think this puts a big, you know, caveat, a big question mark on that. I don't know if it necessarily like forecloses those entirely because really what you're getting at here is that it's when people have a category based distinction in the application of a policy, they need a due process, requires they have an opportunity to contest it. Maybe those other removals wouldn't be status based, they would just be executive discretionary. But I think it throws a lot of cold water and particularly that language, Roger quotes on a lot of those other outlandish theories the administration could still be holding in reserve to unleash if and when its AEA theory really falls flat. There's one other part of this I want to get your guys views on before we move on, which I thought was really interesting, which is Justice Kavanaugh very brief concurrence because he says something there that is indicative of obviously a disagreement in the court and among the seven justices in the majority, presumably, which is that he says, I would have gone ahead and resolved the merits of this. This court doesn't do this. This court says you needed to due process requires you gave more opportunity to contest than this. We're not going to reach the actual statutory Alien Enemies act argument in this argument. But Kavanaugh says I would have gone ahead and resolved that because everybody's better off if we just resolve this issue now. We don't have to go through all this litigation. On the one hand, that's absolutely right. Right. Is that be nice to have a clear answer of this. And I do think this issue is briefed enough that I'm not sure the marginal advantage of, you know, the slow creep of these cases up the lower courts adds a lot at this point. But in the general course, his opinion, his willingness to take on those things, you could read into the use of the emergency docket more broadly, the idea that maybe the Supreme Court should just be resolving things on the merits a lot faster and a lot more frequently. If you read it into that context, then it's maybe a much more problematic assertion because you're saying, well, when is it you should resolve things? And there are lots of very complicated cases where you really do want to have a whole hearing out among the lower courts of legal issues and development issues and arguments and things like that. And here in particular, it's kind of notable because the inevitable outcome of this, it seems to me, is that they sent this back to the fifth Circuit, a jurisdiction we know is not going to be friendly to the plaintiffs generally. So it seems likely that we are going to get a fairly government friendly standard for what due process requires from the fifth Circuit. And then we have habeas cases being pursued in other jurisdictions as well on other issues that aren't going to be as easily transferred to the fifth Circuit. They're caught in time, or at least in the future we will have other habeas cases. And so you'll end up with a split and it's going to have to come to the court anyway for resolution. That's the normal ordinary course. But at the same time, it's somewhat unsatisfactory here because the court is just teeing itself up to have to face these exact same questions again in what, two months, four months, six months, a year? And it's not clear how much more information they're going to have at that point. Do you guys have a gut reaction that I find myself actually quite split as to the extent which I agree with Kavanaugh, not necessarily because of this case, but because of the broader implications of a very merits resolution oriented court?

[Roger Parloff]

Yeah, I sort of agreed with Kavanaugh and I was surprised to see him saying it and not others. And so I wonder a lot about what the split was there and if there was some horse trading. And there's been, you know, we have decisions in the Southern District of Texas, District of Colorado, New York, Southern District, Western District of Texas. We have a decision in Western District of Pennsylvania on various aspects of this, and I don't see what the point. And also sending it to the 5th Circuit to make the rulings that they wanted to make about irreparable harm and so on when they had vacated the district judge ruling below. So the fifth Circuit doesn't even have a factual record to work with seemed very strange to me. I don't know what sort of compromise that was. I don't know what purpose it serves.

[Scott R. Andersen]

So I share Rogers sympathy for Kavanaugh's position here for the following reason, which is that there are a bunch of people who were sitting in immigration detention without having individual cases heard. Some of whom probably don't belong there and some of whom should be deported expeditiously following their individual cases. Everybody's in this extended limbo while we have this fight about what the, you know, what the Alien Enemies act does and doesn't permit on a summary basis, a matter about which not a single justice has an open mind. I don't know what nine justices think, but none of them haven't read this executive order and said either that's ridiculous or I think we should defer to the president on this. Zero justices don't know what they think about this matter. And so there is this kind of kabuki quality to it, going through all of this, you know, oh, well, the district court has to make a record and then the 5th Circuit has to assess that record and then some other circuit has to do the same thing and they're going to disagree and then there'll be a conflict in the circuits and it'll go up to the Supreme Court. Come on, we know nine justices know what they think about this matter. And I think, think what Kavanaugh is saying here and I think is like, hey, the government doesn't benefit from the uncertainty here. We've got several hundred people who were deferring their individual adjudications of their cases on some other grounds and they're sitting in detention actually, while we think about this and the ones who are going to be deported should be able to be deported and go on with their lives. These are aren't criminal cases. So let's just get on with it. We all know what we think. And he can't say that because, you know, you're not allowed to say as a justice that you don't have an open mind. And the subtext of it is, by the way, that Kavanaugh is saying, we all know this is illegal. Can't we just say it? And I think there's some value to calling on that, frankly.

[Benjamin Wittes]

We'll see. Well, I've ceased pretending like I'm absolutely confident about how I think justice will come down on these statutory issues in the national security context. I'm not as sure he's on that side on the statutory issue, although I think he certainly, obviously, as judging by this ruling, thinks the administration was not applying and interpreting the statute in the right way, even if it might be able to use it to do something in regard to removing these people. We will have to wait and see for this case to come bubbling up from the lower courts again. But of course, we do have another decision on nationwide injunct that bears on this exact issues. Because of course, if you don't have nationwide injunctions, you either have to have broader class certification or a court much more willing to take up and decide issues faster or else you're going to have just a lot more chaotic, inconsistent rulings across the country. But maybe that's the future we're looking at. Speaking of chaos and inconsistency, let us go to the Department of Justice, which has had a busy week responding to one of the absolute weirdest stories I think I've heard and encountered in the past several years. I've been following these stories and I've been doing this podcast. Former FBI Director James Comey, somebody who we should note, I think many of us have met and had pleasant casual interactions with. Ben, I think you all are quite friendly and has, I believe, written for Lawfare at least once, I think a couple of times. Got himself in a good deal of hot water this past week when he retweeted or re social media. I can't remember what platform it was on. A picture of a set of shells on a beach that spelled out the numbers and 8647 indicating that he approved of whatever the message was or the shells that he found on the beach spelling out these numbers. This was immediately taken as an indication to assassinate President Trump by people on the Internet and apparently in the Department of Justice, triggering a Secret Service interview, a direct kind of hostile, heated rebuke from President Trump and heated comments from a lot of people. This is in spite of the fact that 8646 that'd be a reference reference to President the 46th President, President Joe Biden, was something that appeared on a lot of T shirts on conservative sites, including sites related to President Trump's campaign and other Conservative candidates. And that 86, at least as far as I can tell, does not exclusively mean assassinating people at all. In fact, when I looked it up, the only place I found that assassination definition was somewhere that's basically the equivalent of Urban Dictionary. But nonetheless, people seem convinced that is clearly what he meant.

[Scott R. Andersen]

Not it really means throw people out of a bar or a diner is what.

[Benjamin Wittes]

Yeah, that's how I always thought. Or just throw them out, you know, to 86 something. It's very old timey, like gangster talk. I have no idea where it comes from. I've never before thought that has anything to do with killing anyone.

[Scott R. Andersen]

So I looked it up and I do know where it comes from.

[Benjamin Wittes]

Oh good.

[Scott R. Andersen]

It comes from diner codes. You know, 86. If you write on the board 86 cucumbers, it means we're out of cucumbers. Cucumbers. And there were a list of these diner codes. 89 meant there's a pretty woman. And so you could say there like 89 in box 10, you know, 86 ketchup. And then it came to mean, you know, 86 that person to be a transitive verb meaning throw that person out. But it's the sort of reference to it being rub that person out is quite recent and is, you know, I think more of a, of a modern slang thing.

[Benjamin Wittes]

Well, so I think that all leads us to the question of what the hell the Justice Department is doing. And an array of figures surrounding the President are doing, many of whom have reached a high degree of outrage. Former members of Congress, some members of Congress, although I will say not even most Republican members of Congress have really gotten that involved in this. Ben, you wrote a piece on this this week that delves into this a little bit and some of the law behind it. Talk to us a little about what we're hearing from the administration and others and how much it makes sense in regards to the law, let alone the actual content of this message.

[Scott R. Andersen]

Well, it doesn't make sense at all. The law is really simple. Even if he did mean it as a general instruction to people to please assassinate this inconvenient president, for me, that would be wholly First Amendment protected under Brandenburg v. Ohio, which is the 1969 case that established the principle that it is not incitement unless it is calculated to and has a tendency to produce imminent lawless action. So if I were to say, hey, Scott, I'm going to give you this gun and you 86 that Dana Stuster character, that would be an incitement. That would be prosecutable. Right.

[Benjamin Wittes]

Or if I were to say conspiracy, Nadia. And abetting.

[Scott R. Andersen]

Yeah, if I were to say, Dana Stuster, I'm going to come over to your house and 86 you. That would be a true threat. If I were brandishing a gun and there were indicia of a real threat. But the Supreme Court has been real clear up to and including, by the way, striking down a Virginia cross burning statute that, you know, cross burning with intent to intimidate isn't by alone without more a true threat because the statute infers the fact of a burning of the cross as itself evidence of threat to intent to intimidate. And so the, the law here is super, super protective of speech, which by the way, is one of the reasons why Donald Trump was not indicted for the speech he gave on January 6. And there is simply no way that Jim Comey's photograph of apparently somebody else's design of a seashell on the beach shared on Instagram comes remotely close to the line. It's not a close legal question. And everybody who's been on television talking about it, from Tulsi Gabbard who said that Comey should be in jail, to Christine Noem who loosed the Secret Service to investigate the matter, everybody knows that. So what are they doing? They are trying to embarrass and discredit Jim Comey. And it is, I don't think, any more complicated, serious or interesting than that. And should Jim have known better than to use a slang phrase that has violent connotations in a small percentage of usages? Maybe, but that's, there's no more to it than that.

[Roger Parloff]

I would, I would just add that Alan Rosenstein was a co author of the, of the article and, and wrote.

[Scott R. Andersen]

The best line in the article, which was, what are they going to charge him with? Threat to assassinate with sharpened mollusks.

[Benjamin Wittes]

It's been done. They were weapons for generations, Ben, before we invented bronze. Let's not lose this. They can get quite sharp. I think that's absolutely right. And in some ways this is like such an absurd story. And it doesn't, you know, if it weren't going to go anywhere, I would say this is a story mostly about the abuse somewhat of government resources and the abuse of, you know, the government bully pulpit. Right. Like you got to embarrass Jim Comey because you have all these social media accounts of these officials and you wasted some government resources because you sent a couple Secret Service agents to the talk to him, as has been reported.

[Scott R. Andersen]

And critically, you intimidate others who might be inclined to speak up, who maybe don't have a crack legal team at their disposal the way Jim does. Maybe aren't that sophisticated about the law. Jim was, among other things, the deputy Attorney general. You know, he's been a Fortune 500 general counsel. He's a very sophisticated guy. He knows what he is and isn't allowed to do. And, you know, you find yourself having a law enforcement interview for allegedly threatening the President with assassination. That does send a message to other people. And I think that's a big part of what this is about.

[Roger Parloff]

I guess I would just say that if he knew of the violent interpretation that was possible here, it was not a good idea. Even if it's protected under Brandenburg. There have been a lot of Threats, serious threats against, you know, against Judge Chutkan, against Judge Cannon, against Alvin Bragg. And there have been indirect threats. There have been this provocative language that does lead whack jobs to commit violence. You know, there was the guy that attacked the FBI headquarters after Trump spoke about the Mar A Lago search being like a Gestapo raid. Things that are protected speech do cause very dangerous attacks down the line, and we should all be careful.

[Scott R. Andersen]

Yeah, absolutely. Look, Jim has said publicly that he was unaware of the violence inducing or implication usages of 86, and that when he was made aware of it, he removed the post. And I take him at his word about that. But look, I don't use violent rhetoric. I don't believe in using violent rhetoric, and I don't believe in doing anything that could be confused as an exhortation to political violence. And yet I myself once quite innocently used an emoji on my then Twitter feed and found myself with a visit from this from four armored Secret Service vehicles wanting to interview me about whether I had threatened to firebomb the Russian Embassy because I had used the fire emoji to say it's going to be lit, which is a common youth expression to mean very exciting and does not generate, generally imply that you're planning to firebomb something.

[Roger Parloff]

And so, like, language is gonna be wild.

[Scott R. Andersen]

It's gonna be wild, right? By the way, the Secret Service agents were a little embarrassed to be there, as I expect they were with Jim the other day. Look, I mean, language is complicated, and written language, you know, you can say things in one way and never dream that anybody would take them in a different way. And certainly when I typed the word lit and it suggested the fire emoji, and I was like, oh, that seems like a good idea. I was not thinking, my God, that'll show those Russians, you know, and so I'm not, look, I'm not in any way condoning threats of political violence or suggestions, subliminal suggestions of them that, you know, you have plausible deniability for. I honestly don't see any reason to believe that that's what happened here. And obviously, if that is what happened here, then shame on Jim Comey.

[Roger Parloff]

This sort of reminds me of an old Woody Allen stand up skit. If I'm allowed to quote him, despite everything, this is how you get the.

[Benjamin Wittes]

FBI at your door. Roger, Careful. Tread light, tread lightly.

[Roger Parloff]

He was telling. He was saying this was long. This was a stand up routine, saying, I got into trouble last week. I was applying for a civil service job and I got to that line that says, do you favor the overthrow of the government by force or violence? So I chose force.

[Benjamin Wittes]

Well, folks, that is all the time we have together 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 until we are back in your podcast. Roger, what do you have for us this week?

[Roger Parloff]

Well, you know, because of the Conclave, the Sistine Chapel has been in the news. I read a book about it. There are some interesting things. You know, there's 300 on the ceiling, the Michelangelo ceiling, there's 300 figures, more than 300. And do you know how many are Christians? Have you ever thought about that? Zero. There are zero Christians on that ceiling and they're 95% Old Testament figures. There's some pagans, there's Sybils and there are, to be clear, there are ancestors. There are white plaques that have the names of the ancestors of Jesus, but there are no images. And there's a book that sort of interprets what's going on here. I can't really vouch for whether it's true or not. It's fascinating. But it's by a rabbi named Benjamin Bleck and another guy named Roy Doleiner who are very learned in Talmud and Midrash and Kabbalah. And they have quite a novel interpretation. And what makes it plausible is that it's not a recent book. It's like 2008. But Michelangelo was recognized at 14 as a genius and brought into Lorenzo the Magnificent court. And his court had very free thinking universalist thinkers who were considered blasphemous by the Vatican. And the relations between Florence and the Vatican were bad. And in fact a different pope, Sixtus IV had tried to murder Lorenzo and had successfully murdered his. So the premise is that there are all these hidden messages that are critical of the popes and actually rude gestures even that are being directed at the papal throne and so on. It's quite interesting. It's called the Sistine Secrets by Benjamin Bleck and Roy Deliner.

[Benjamin Wittes]

Oh, wonderful. I'll check that out. Well, I'm going to hop in here because I also have a Sistine Chapel Vatican related object lesson that is I finally sat down because the pope died and now we have a new Pope and watch Conclave, a movie that has gotten a lot of written up. I had avoided it because there is a very outlandish sounding plot twist that happens that I got wind of in reading a review and was like, that seems so bizarre. I'M not going to even bother with this movie. It seems crazy, but I finally sat down and watched it at my wife's urging. I'd say it is a really beautiful, well paced, well done film. I was super impressed by it. I actually genuinely do not like most movies. I think they're, like, way too rushed and I find them to be kind of annoyingly paced. I think this really nailed it. Good character development, really, really interesting little politics. Great acting and handled the twist, which, once you see it, you'll know exactly what I'm talking about. With actually so much like subtlety and humanism. I was actually really struck by it and was like, oh, oh. This actually works really well and is really interesting and brings a whole different color to this whole thing we've been watching. Really, really phenomenal film. Definitely worth checking out. So I will, I will leave that as my separate endorsement for the Vatican. And that is movie conclave. So check that out. Live vicariously your papal dreams of selecting your own pope. And the one thing I got out of the Sistine Chapel related, very interesting, is one, they install a chimney. There's no chimney already there, evidently to let the smoke out. And at least according to this movie, when they released the smoke, and I do believe they researched this, they don't actually burn anything. They have a big canister that says white smoke and a big canister that says black smoke. And they put it in and they just pull a ripcord, let it go. So no errors on this front. It is a no margin for error sort of operation here at the Vatican. Ben, what do you have for us this week? Something Papist, I'm sure.

[Scott R. Andersen]

I just want to say I was very disappointed in the Conclave. You know, this is the fourth or so in my lifetime. All of them have in common that they have passed me over. The first Jewish legal editor Pope is an idea whose time has come. And I just don't know why the. The cardinals didn't see that.

[Benjamin Wittes]

They haven't even responded to your letters. It's amazing.

[Scott R. Andersen]

You know, look, I'm not going to say I'm bitter, but.

[Roger Parloff]

So St. Peter might have been a legal Jewish legal editor.

[Benjamin Wittes]

Roger. Roger would pick that out. That's a fair point. That's a fair point.

[Scott R. Andersen]

So I was going to do my object lesson about my visit from the Secret Service to complement the third segment today, but then it got integrated into the third segment. So I just want to draw everybody's attention to the fact that the fourth annual sunflower planting outside the Russian Embassy happened last weekend. No fire bombings took place. There was no interference with sewage lines, which was a matter that the Russians had called into the D.C. police last year and caused a little delay. There were no, there was no disruptions. We planted a lot of sunflowers and they this year we had the cooperation of the developer who has bought a large field across from the Russian embassy and gave us permission to plant on as much of the field as we want. And so we are over the course of the summer creating a huge field of sunflowers. They are just starting to poke their heads up now. They drive the Russian embassy staff crazy in the way that only peaceful symbols of Ukrainian nationalism can quite manage to do. And so, you know, don't mess with the sunflowers. We have them under 24 hour cameras. But you know, stop by the corner of Edmonds and Wisconsin Avenue Northwest, check out the sunflowers. Be sure to take pictures of them them and tweet them. And you know, on whatever social media site you use, be sure to tag the Russian Foreign Ministry when you do all these little trolling things. Help. They're not going to bring peace to Ukraine. They're not going to stop the killing, but they really piss off the Russian Foreign Ministry and that is good enough.

[Benjamin Wittes]

All right, Dana, bring us home. What do you have for us this week?

[Dana Stuster]

I actually have another book recommendation and this is a book recommendation I'm actually borrowing from Ben because Ben, in your January, January 6th anniversary column you mentioned the Setting sun by Osamu Dazai. And I thought, wow, this sounds like a great book. I'm gonna go out and read it and I loved it.

[Scott R. Andersen]

I don't, isn't it a great book?

[Dana Stuster]

Listeners can't see how dog eared this book is, but it's extremely dog eared.

[Scott R. Andersen]

It's a wonderful novel.

[Dana Stuster]

It's a fantastic mid century existentialist novel that's I think even better than the Stranger in a completely fascinating different setting. And I am preparing to start teaching in the fall as an assistant professor. And so I have to prepare a syllabus for a on. It's going to be a freshman seminar on international relations through literature. And I'm so excited because I'm going to sign this next to an article from International Security by Una Jo about historical memory and the legacy that that has had in Japanese and Korean post war relations. And it's going to be fantastic. I'm so excited to have a discussion that ties this to Japanese historical memory and its legacies because it's such a fascinating book.

[Benjamin Wittes]

I want to see the syllabus for this class.

[Scott R. Andersen]

That book has my favorite haiku of all time.

[Benjamin Wittes]

I expect you to recite it, Ben.

[Scott R. Andersen]

It goes well. The essential fact about this haiku is that it was published in I forget whether in 1946 or 1947. And the haiku is this year nothing happened. Last year nothing happened. And the year before that nothing happened.

[Benjamin Wittes]

Well, on that note, that brings us to the end of this week's episode of Rational Security. Remember, Rational Security is of course a production of Lawfare, so be sure to Visit [e-mail] for links to past 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 podcasters near you. While you're at it, be sure to follow Lawfare on social media. Wherever you socialize your media, be sure to leave a rating or review wherever you might be listening. Be sure to sign up to become a material supporter of Lawfare on Patreon for an ad for your version of this podcast and other special benefits. For more information, visit law firmedia.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 and we are once again edited by the wonderful Jen Pacha. On behalf of my guests Ben, Roger and Dana, I am Scott R. Anderson and we will talk to you next week. Until then, goodbye. If you work as a manufacturing facilities.

[Scott R. Andersen]

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[Benjamin Wittes]

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[Scott R. Andersen]

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[Benjamin Wittes]

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[Scott R. Andersen]

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[Benjamin Wittes]

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[Scott R. Andersen]

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[Benjamin Wittes]

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