← The Lawfare Podcast
The Lawfare Podcast
Rational Security: The “(Deep State) Friends We Make Along the Way” Edition
01:16:31
Loading summary
Transcript98 lines
- [00:01]
A
Your line just went down. The scramble starts. Clipboards, binders, phone calls. Every minute down costs money, and most unplanned breakdowns are preventable. Maintain X helps you catch the failure before it happens with easy to manage preventative maintenance and work orders that can be created and assigned in seconds. No binders, no Excel, no scramble. Companies on Maintain X have cut unplanned downtime by over 30%. Try it free@maintainx.com hello, I'm Monica Reinagle,
- [00:32]
B
host of the Nutrition Diva podcast. Summer is here and with it the hot and sticky weather. A morning working in the garden or maybe on the golf course can leave you more depleted than you realize. And plain water isn't always the most efficient way to restore the balance. That's where Liquid IV comes in. Its science backed formula is clinically proven to hydrate faster than water alone. Whether you're exercising, playing outside, or simply surviving a summer heat wave, it's an easy way to stay hydrated. Shop now@liquidiv.com Liquid IV hydration that goes wherever life takes you.
- [01:09]
C
You know what I love about summer? It's how easy everything feels. The days, they're a little bit more relaxed. They start a little later, they end a little later. And I find myself reaching for the same comfortable go anywhere clothes again and again. For me, of course, that means dog shirts, but apart from the dog shirts. That's why I keep coming back to Quince. Quince focuses on well made essentials that naturally become the everyday staples you actually live in all season long. Quince's 100% European linen pants and shirts are breathable, they're easy to throw on and the summer upgrade your rotation needs. They are starting at just $34. The T shirts, which don't have dogs on them but are otherwise spectacular. They're soft enough to live in all day and the lightweight cotton sweaters are exactly what you want when the summer nights cool down. Everything at Quint's is priced 50 to 80% less than similar brands. They work directly with ethical factories and they cut out the middlemen. So you're paying for exceptional quality, not brand markup. I gotta say, for me it's all about the linen shorts. These European linen shorts, they're spectacular. They're made from quality, sustainable sourced linen. They keep me cool. They're perfect for, you know, the casual days and laid back occasions. They go well with my dog shirts. What is is not to like? It's not just the clothing. Quint has become a trusted favorite for everything from home to travel, to Everyday essentials to make your summer wardrobe easier. Go to quint.comlawfair for free shipping on your order. And 365 day returns now available in Canada too, for all our Canadian listeners. That's q-u I n c e.com/lawfare for free shipping and 365 day returns. Quints.com lawfair
- [03:35]
A
so, Julia, it seems like we have like a newfound unexpected voice of sanity in the kind of mega ecosystem. What's going on here exactly?
- [03:45]
D
Yeah, so there's this commentator, I don't know if you've heard of her, named Laura Loomer. And so she has taken a visit to Kyiv to go check in on the state of the war. And she's really saying some interesting, incisive things. And I really think that, you know, we, we all should be tuning in to our lady in Kyiv at this moment.
- [04:05]
A
You know, I, I have to say, like, obviously I have some profound disagreements with Ms. Loomer, but you got somebody who's willing to eat crow. That's part of the business and you got, it's a lot of people aren't willing to acknowledge that I was wrong and really wrong. And she came right out and said it the other day. It's a refreshing little bit of willingness to reconsider one's views that could find broader application, perhaps both with Ms. Loomer and for people more broadly.
- [04:29]
E
First Marjorie Taylor Greene, now Laura Loomer. I really don't know what to do with myself.
- [04:34]
D
Well, you know, maybe it's just, you know, the real treasure is the deep state friends we make along the way.
- [04:45]
A
Hello everyone and welcome back to Rational Security, the podcast where we invite you to join members of the Lawfare team as we try to make sense of the the week's big national security news stories, whether they are in our lanes or not. I am your host, Scott R. Andersen, back for another week with a talented panel of my colleagues to try and make sense of some of these big announcements and big speeches we have been getting over this past week. Joining me this week is multiple attendee. She is probably who I've done. I've only done this to two people other than Benjamin Wittis to force them to be in back to back episodes. And I have now done it to our latest public service fellow, Julia Curley, who is back with us again on National Security. Julia, thank you for joining us in back to back episodes. Greatly appreciate it. I know it is a burden, but we're thrilled to have you back on and given your unique insight into at least one of our stories that we're talking about this week. It would have been malpractice not to have you back. So we really appreciate you making the time.
- [05:40]
D
Thanks, Scott. God, it's been a crazy week. Like Lawfare has basically gone 24.7ops following the President's speech on last Thursday.
- [05:49]
A
It really used to be like this kind of all the time. It was very stressful at the time. But thankfully we've kind of sanitized things a little bit and made a little more manageable. But, you know, occasionally we have to dip back into our old ways. And joining us as well is the other person to whom I have done this double back to back in recent memory, but not this time because she was not on last week. Is Lawfare senior editor Molly Roberts also back on the podcast joining us once again. Molly, thank you for coming on.
- [06:12]
E
Yeah, happy to be here. I think I got at least a one week break this.
- [06:16]
A
There you go. Exactly. Exactly. I try and give everyone a little bit of a breather, except for Ben, to whom I owe nothing. So that's great. But happy to have you back on the podcast. Join us and joining us again is recurring guest, another Law Fair senior editor, Eric Columbus. Eric, thank you for joining back on the podcast.
- [06:32]
F
Thanks for having me, Scott.
- [06:33]
A
Well, let us get into our three topics. We have a lot to talk about and they're pretty juicy topics for this week. Topic one, the Manchurian Candidates. In a primetime address to the nation last Thursday, President Trump declassified a trove of intelligence documents that he claimed prove America's elections are dangerously vulnerable to foreign interference, specifically in this case by China and to some extent by Venezuela. And he also revived his long standing evidence free assertions that the 2020 election was rigged against him. He ordered the Justice Department to prosecute those he claimed were involved. But intelligence officials past and present, as well as documents themselves draw a sharp line between foreign influence and actual interference with the vote. And none of it clearly materially supports the sorts of claims that any votes were changed or the outcomes of any elections were affected that President Trump seems to be leaning on? What is actually in the documents that President Trump has declassified? What does his speech tell us about his intents for the midterm elections and the 2028 elections? Beyond topic to leak and ye shall find. The Trump administration has dramatically escalated campaign against leakers, culminating grand jury subpoenas served, including by federal agents at their homes, to several prominent New York Times journalists over their reporting on security concerns relating to the new Qatari gifted Air Force One. That has been a signature item, I think it's fair to say, of second Trump administration. The Pentagon and Justice Departments have stood up a joint task force to identify and prosecute leakers, and the New York Times is fighting the subpoenas in court, calling them an attempt to intimidate the press and that treads on First Amendment rights. But the administration insists reporters aren't the targets, only the people who actually leaked and said the reporters are simply witnesses. How much legal jeopardy do the reporters actually face and the media more broadly? And is this a genuine national security effort or an assault on press freedom? Topic 3 advise and dissent Two of the administration's most consequential nominees, Jay Clayton, who has been nominated as director of National Intelligence, and Todd Blanche, who has been nominated as attorney general, sat for their Senate confirmation hearings last week. Clayton, who is currently the U.S. attorney for the Southern District of New York, repeatedly declined to say that Joe Biden won the 2020 election, while Blanche was grilled over the now dead anti weaponization fund, the Epstein files and the New York Times subpoenas I mentioned just a minute ago, both face fairly narrow paths to confirmation, complicated further by the sudden death of Senator Lindsey Graham. What did we learn from the hearings and what are the prospects for each nominee's confirmation? So for our first topic, Julia, I want to turn to you because you have a very unique perspective as a true veteran of the intelligence community. We all in the broader public got a weird window maybe into some of the intelligence community's work, but as always, I think a lens, which I say in the context of sometimes you have lenses shape how we perceive and change how we perceive things. That's what President Trump seemed to be doing. This past Thursday. We saw this prominent primetime speech that was clearly teed up to be a major event and draw public attention with, I think it's fair to say, mixed success. Notably, a number of major networks opted not to cover the remarks, something that also happened to President Biden when he made a not entirely unrelated speech at some point in the first half of his administration. You saw him bring forward a number of these will look like in many cases do appear to be intelligence community products of different stripes asserting different sorts of conclusions about foreign involvement, foreign interference or influence and its impact on our elections. But all, not all of them are quite the same. It's a weird hodgepodge, a little bit of a patchwork quilt of different products, different conclusions that President Trump then provided his own gloss on, tying it all back to his long standing claim false 1 by all the evidence we have available to us that he did not in fact lose the 2020 election. So talk to us a little bit about what came out on Thursday from the ic. What is it that we see that we have reason to believe? What are the products that may not be what they seem to be? Walk us through that a little bit because you and our other colleagues, including the folks on the podcast, wrote a phenomenally useful piece for lawfare fighting all of this. And I think it's a great place to start talking about what the actual evidence is underlying the speech.
- [10:37]
D
Yeah, thanks, Scott. So I think there's two big things that I want to focus on that the President did in his speech. First was the conflation of influence ops versus direct interference in the election. And he definitely said the latter occurred. But strangely, 99% of the documents that were released actually say the former, undercutting the President's case. So to be clear about it, the 2020 election assessment said that China did not deploy interference efforts and considered but did not deploy influen efforts intended to change the outcome of the election. And even the dissent which was published alongside the mainline assessment said that there's no information suggesting that China attempted to interfere with the election processes and nothing that was released on Thursday actually contradicts that. With one exception, which we can get to in a second, this deliberate mischaracterization of what is in a declassified set of documents is following on the heels of several other administration efforts to use the same playbook. So we saw this at the beginning of the administration with DCIA Ratcliffe over the 2016 assessment, rescinding it, giving some sort of a statement that the President was right all along. But then when you read the reissued report, it still stands by its main conclusions. And then we saw DNI Gabbard do this repeatedly with the so called Fauci files with Havana syndrome and Biolabs. She'll put out reports when if you just took the time to read the documents, you would find that they don't say what she said they said. And the President did exactly the same thing this last week.
- [12:15]
A
So you mentioned an exception. Let's talk about that exception a bit and dig a little deeper into that because there's one document I think that stood out as in some ways seeming to lean more forward in backing up what the President said and then also looks different from the others, looks different frankly than a lot of other sort of IC products that other people who have worked in government may have encountered who Deal with declassified documents. Talk to us a little bit about that and your sense of that document.
- [12:41]
D
Yeah, that's right. And prepare yourselves to nerd out on Directorate of Analysis minutia here. But I think it's important. So what you're talking about is the tale of two documents that were purpose built for this announcement, whereas all the rest of the reporting were individual files or emails declassified. There's two big reports. One that was produced on Venezuela, that was produced by the Directorate of Analysis with all the bells and whistles, with a text box, with confidence estimate of language. It goes through what is there and what's not there. And at the bottom of it is the office that produced it, the Directorate of Analysis, and the date in which it was produced. The contrast between that and the PRC assessment is the whole story. So you look at the PRC equivalent of that document, and it is only information that justified the President's allegations of Chinese interference in US elections. It talks about this plan beginning in mid-2018 to ensure that the President was not reelected. There's strangely no redacted language in any of it. It was seemingly just retyped by whoever was tasked to produce it. And it doesn't contain any of the normal features that one would see in CIA analysis. And the most strange of all to me is the redaction of the office that produced it and the date in which it was produced. Now, a redaction is a choice, and it sends a message that this information is somehow too sensitive to share with the public. But the rest of the raw reporting was not. And so I looked at that as a deliberate effort to obscure the background of who and how and when this piece of information was created. And it wouldn't be nefarious except for the fact that it was being used to directly support the President's attack on the integrity of US elections. I will say that in 20 years of being a CIA analyst, I have never seen anything of its kind. Certainly the intelligence community, CIA, should not be in the business of furnishing the White House with evidence that it can use in public to message the American people. Delegitimizing US elections. It's hard for me to find a more egregious abuse of the intelligence community than that. And this is certainly a warning sign, if this is done again, of what could happen this November.
- [15:17]
A
So I want to pick that broader arc and turn to you on that, Molly, because you have spent a lot of time tying together different threads of the grand conspiracy which intersects with 2020 allegations and all the different moving pieces of which this is clearly a part of a broader whole that is in part intended to maybe this being too not generous, but assuage the ego of the President by providing some sort of official gloss and some sort of apparent institutional support for his long standing assertion that he did not lose the 2020 election. And then also to tee up potentially other actions, whether it's the Save America act, this legislation or something that looks like it, that he's been pushing hard through Congress does not appear to have any legs, at least in the fullest form. The President wants to see it, but that they've been trying to push through, which would install a variety of measures that would be intended to restrict things like alleged non citizen voting, things like that, but also have the impact of potentially making it just harder for lots of people to vote. And potentially everyone's worried about this being a narrative to justify broader actions, whether it is one of these emergency declarations that we've seen drafts of circulated by people proximate to the President or proximate to the President's movement, although we haven't seen any clearly manifest as of yet. So where do you think this fits into this? What is the idea behind this speech and how successful was it at it? I mean, I think people maybe this is a case of not living up to the hype, but I think on Tuesday last week, I was expecting something of a particular scale, scope and significance. And what actually happened Thursday was a lot more muted, still highly, deeply problematic. I don't want to undersell that, but it wasn't quite like the huge declaration, either true or untrue, that the President seemed to be teeing up and that frankly a lot of the rumors about what he was talking about is going to tee up. Is that a sign that this failed? Is that a sign that this is just a first kind of drop in the bucket? Where does this fit in this broader arc?
- [17:16]
E
Yeah, you were disappointed. The right wing media was disappointed. Steve Bannon was very upset about the degree to which this wasn't kind of enough. And the last.
- [17:26]
A
I'm sick of Bill Pulte restraining our president and keeping him within his legal checks as Director of National Intelligence is what I'm trying to say. We need to get some one of the President's guys in there.
- [17:36]
E
Well, we'll talk about the confirmations later. Right. And this is part of the reason Steve Bannon is so upset, because he was hoping, oh, at least we don't have Jay Clayton in yet. We have our guy, Bill Pulte and he's going to get this done. And it doesn't really look like he got all that much done. So I guess a few things. One is what are they doing already with this now? And if you listen to the president's speech, at one point he says, oh, we're going to work with the states. But at another point he says we are going to flag to the states who have these ineligible voters on their voter rolls, non citizens on their voter rolls. We're going to flag that they have them. And I'm directing the Department of Homeland Security to direct them to take them off the voter rolls. I'm pretty sure he legally cannot direct DHS to do that and DHS cannot direct the states, but he says he's
- [18:26]
F
going to do that.
- [18:26]
E
And of course, the next day Mark Wayne Mullen gave a press conference where he said that too, that he was going to direct the states to do that. And he said that officials who don't act on it can face fines, penalties and even prison time. And it seemed like he might have gotten out a little bit over his skis on that, given that he can't put them in prison. But on the other hand, letters have already been sent by Hermeet Dhillon, the Department of Justice Civil Rights Division, two states saying the same thing, that they are in legal jeopardy. Again, it's really not clear what that legal jeopardy would look like. They're not able to cite what statute the states would be violating. They warn of aiding and abetting non citizen voting, but they don't identify the underlying crime. Then they also talk about conspiracy against rights, which is funny because you mentioned the grand conspiracy and that that's what they're looking to do there too. So there are concrete threats here. It's not just I'm mad about foreign interference and here's all these non examples of foreign interference. So it's a little more insidious than just rhetoric, I would say. And then just saying I want the SAVE act passed. So there's that. But then I think that really the more important thing is that this is laying groundwork for whatever action they may or may not choose to take in the wake of the midterms. And that really is going to depend in part on how the midterms go. And it also might just depend on the appetite that they have at the time. They really might not know yet what they're going to do or not do. But I think focusing on foreign interference is alarming because it is kind of the most aggressive justification you can make for the most aggressive actions, whether those are seizing machines or ballots or whether they're having some sort of federal military presence on the streets around election Day. And I'm not saying any of that's going to happen. But if you cede this now, I think it makes it easier. You've primed the public for deploying it later.
- [20:41]
A
Yeah. Although I'm not sure how many of these allegations here, a military on the street would actually help with exactly seizing voting machines, one thing. But it is kind of like it is one of these things where it is this complete pastiche that never fully links together, and that includes the whole realm of policy remedies that we hear circulating around the story, which to me a lot of is because you have this vibrant echo chamber media that feeds into this, that has direct lines in the administration, sometimes manifests in policy coming forward with these ideas that a lot of them are pipe dreams, because there's a variety of practical reasons, legal reasons, and frankly, big political reasons why it would not be a wise thing the president to do. And this president doesn't listen to everyone, but even people around the president who he does listen to, I think have some sensitivity to some of that. There are things that probably the president is fully willing to do. Where the line is. That's like the big question at this point and how far this goes on, that we did get a sign of what the president may not be willing to do. And Eric, I want to come to you on this, the big perpetrator and all this. That's still out there. And what the president claims to have revealed on Thursday is, is China. But we saw remarks, I think yesterday, the day before yesterday, when asked by the media about whether President Trump intended to take, you know, retributive action or punishment against China for its actions, he equivocated, saying essentially it's not the same China as It was in 2020, by the way. Yes, it is. That is, it really has not changed that much. You can say that about maybe Venezuela, the Maduro regime, although frankly, even that's not entirely that different. It's just a different person at the top of it. But, you know, it's to actually make that case about China. But we know this administration has, on its variety of fronts for the last six months to a year, really played friendly with China, mostly, frankly, because it seems they understand now that China has real leverage over the AI supply chain and a couple other real pressure points, and that even though they've pressured them on tariffs and a few other fronts, they've worked to strike a conciliatory tone, find common ground and kind of deescalate on a variety of fronts. So I guess what does that tell us about the limits, about where the president can go with this, whether foreignly in terms of foreign policy, whether in terms of domestic policy, and how committed the president is maybe to doing and pursuing this kind of line of thought, these inconsistencies. When the president says, if the president were to say we have to mount people to the streets to take care of this problem, but the foreign actors, really, we can't take action against them, that strikes me as dissonant in a way that has political consequences. The president may not care. The people he does ultimately have to persuade about this do care about this. Is this less of a problem than I'm making it out to be? Or is this inconsistency does kind of undermine the president's case for doing what it seems like he might want to do at least some days?
- [23:28]
F
Yeah, I noticed that, too. And I would say that it's kind of par for the course in this administration, that they are kind of consistent in their lack of consistency. And as you noted Yesterday, Trump said 2020 was a long time ago. I think China's different now. He also said, look, we do things to them, too. So he was kind of going out of his way to, not to.
- [23:54]
A
All those Chinese elections were all those
- [23:57]
F
Chinese elections that we've interfered in, which was somewhat reminiscent of the way which when I think during the 2016 campaign and maybe also his early years as president, he would go out of his. When people brought up Putin killing journalists and stuff like that, he would say, oh, you think our country is so innocent? Which is perhaps even more bizarre in this context, when he is being asked these questions only because he, the White House had just accused China of doing bad things. And he's kind of giving a rebuttal in some sense to his own speech. And then just today, I think Rubio was doing the same thing. He was asked, was there an agreement on election interference when you were talking with the Chinese foreign minister. And Rubio said, oh, we didn't discuss that topic. So it suggests that a lot of this is to. And I think, Scott, you said some words about, I don't recall your exact phrase, something about massaging the ego of the president. The prime goal of anyone who works for Donald Trump is to support his lies about the 2020 election. And if you're. You're doing that and propping up the delusion that he won in 2020 then you're doing your job. And I think he cares a lot more about winning in 2020 than he does about winning in 2026. It's not at all clear to me that his heart is in disrupting the elections. And a benefit, one, you know, side benefit of all this stuff is that he provides him a ready made excuse if the party loses in 2026. I mean, he has in some cases said, oh, you know, incumbents usually lose midterms, blah blah, blah. So he's kind of pre spinning it, but icing on the cake if he can say that it's also because of those damn Chinese people interfering.
- [25:49]
A
Yeah, it's really kind of remarkable. And I think that's a two bladed possible justification or motivation Here is the president has always kind of laid the foundation for these alternative explanations, going back frankly to 2016 campaign about why, oh, it may not come through and I'm actually going to win, but it may not actually come out to that sort of outcome that in election, which we have good reason to believe. If you're reading Regime Change or any of the other books on this right now, the president genuinely thought he was going to lose, but still had spun the narrative about why he was really actually going to come out on top of it, even if the actual results didn't spin that way. And this definitely fits into that as well. So Julie, let me come back to you on another aspect of this. So we've talked about, including you and me last week on this podcast, about the dangers of Bill Pulte at odni. This is obviously a damaging and problematic set of disclosures, particularly in terms of the public perception and frankly, I think confidence in the United States government, particularly among people who view these things sort of critically, like how much seriously can we take anything that comes out of this administration now if there is this intent to use legitimate and illegitimate intelligence products or things adjacent to them for these sorts of narratives. But fundamentally, it's also not what we thought Bill Pulte was going to pull to the fore. We hear of media reports that at some point there was an intent to name certain people that were allegedly involved in withholding information from the Trump administration or from other relevant parties that didn't appear to have happened. There are media reports that Bill Pulte was unwilling to do so and was worried about potential consequences from a variety of fronts for doing so. It's not clear whether that's legal or reputational or where exactly that comes from. But worried about something too scared to do it. There May have been some common human decency mixed in there at some point. Who knows? One likes to hope there is also, you know, the question of we were really worried about him coming forward in disclosing and declassifying a bunch of really damaging information about individuals. The idea that, you know, perhaps the emails that XYZ, potential Democratic candidate in 2028 was scooped up in some sort of intelligence coverage could be disclosed selectively in a way that shapes perceptions, not unlike the Hillary Clinton emails may have done in 2016, albeit with no clear sign of foreign sort of intervention. Is this it? Like, is this do we expect this to be the end of the road for the Pulte kind of moment at odni? Particularly because it does, as we'll talked about in our third topic, Jay Clayton has had his hearing. We're expecting a committee vote on his nomination next week. We don't know how it's going to come out, but I think there's reasonably good odds, not least because it appears to be tied to section 702, which people want to move forward. So, you know, you're not going to Bill Pulte in there. Jay Clayton is still a loyalist, still somebody works for the President, but also somebody who has at least some more conventional qualifications and things like that. So is this a sign that maybe the worst possibilities of what having a true loyalist at ODNI could result? There's still enough constraints and limitations to keep those in check. Or is this just a sign that we haven't gotten there yet, there's still more to come down the road, either on this or in other files.
- [29:07]
D
Well, Scott, I'm very concerned. Even if we don't have Bill Pulte to kick around very much anymore, soon we still have the Pulte method or the Gabbard method, which is to selectively declassify information that fits what the president wants to hear. And just taking a second on this point about what happened. So raw reporting in the intelligence business, the United States collects an incredible amount of information from around the world, which I'm not obviously going to get into here. But there's a joke around the intelligence community that you can effectively justify anything if you want, because there's going to be a report that says that. But we have created an entire discipline, a profession, which I did for 20 years, that's called analysis, that is supposed to take that raw reporting, put it in context, examine the sourcing, see what is credible, what has happened before, and provide the best advice or the best context for senior policymakers and what we saw in this case was the elevation of fringe reporting that is contradicted by the mainline assessment and the firing of the very individuals and institutions that would have provided that credible check on the raw reporting. So we had the purge of the senior officers looking at Russia and China at the NIC just a couple of a few weeks ago. And that's building on top of the dismantling of the Foreign Malign Influence center at the ODNI and the FBI's Foreign Influence Task Force. So I guess you don't need professionals when you hand investigations over to your political cronies and expect them to deliver what you want to hear. The problem with all of this is beyond just that. And we've talked about there's been real institutional damage dealt to the CIA and other institutions by this episode. If I were an analyst still there, if I had had any involvement in the election influence assessments in 2020, I've now been put on notice that my career and livelihood could be ended by this investigation that supposedly has been launched if I had concurred with the majority position that the IC took six years ago in an assessment that will have an effect on the willingness of officers to continue serving or provide their best analysis to the President. So you're going to see the cost paid for this episode for probably years in warnings never delivered, options never presented, and then ultimately decisions made in the dark by uninformed policymakers.
- [31:41]
A
Well, I think that is a good point to wrap up this conversation on for now. But your mention of sourcing brings us to another topic, our second topic, and that is some interesting efforts to uncover the sourcing of a number of prominent New York Times journalists. New York Times has had a series of pieces about the Qatari gifted Air Force One that President Trump has very proudly received that is purported to be kind of the new high end presidential plane. As of I think last week, subsequent to these spinas we're about to discuss being issued. If I recall correctly, they published a story indicating that in fact the Air Force One is going to be put on the shelf and put forward for some different modifications and security procedures. So it wouldn't actually be in service for the next foreseeable future, but presumably will be at some point. And this sourcing, the story appears to have triggered a real point of concern in the executive branch because we soon got reports that a number of subpoenas were served on a number of New York Times journalists. In one case, federal agents not only served them on their, on them at their homes, in one case may have approached one of their mothers, I think, was one of the stories I read about this. I can't recall that it was for a subpoena to her or a subpoena to the journalist. But regardless, they degree of kind of direct, clear and transparent and palpable investigatory activity aimed at these journalists that raise a lot of questions because it's the sort of thing that raises alarm bells for many journalists who work in the national security space who do receive different types of leaks and sensitive information and where there's a kind of dense network of norms that usually governs how that's handled responsibly and some constraints from the Constitution combining with some degree of self restraint from the executive branch about how they approach it, particularly from a criminal matter. And that appears to have fallen apart a little bit here. Molly, I want to come to you on the story. I guess talk to us first about what we know about these subpoenas, who's gotten them, what they're aiming after, what the motivation is and how it's been justified by the administration. Now, after a few days, particularly as we've gotten through both the Clayton and the Blanche testimony as part of their confirmation hearings, some justification for what the administration is trying to do. Talk to us about that and why that's raising some alarm bells among the media.
- [33:53]
E
Yeah. So these subpoenas were hand delivered to three New York Times reporters at their homes on July 10, I believe. And this was after they reported on, as you mentioned, the Qatari donated Air Force One and the sort of kerfuffle involving its weaker security. And the president had flown over there on it and then hadn't flown, I guess, to Britain on it in the meantime. Anyway, everybody was wondering why. They figured out why it was because it had weaker security. It was embarrassing for the administration because they'd gotten this $400 million bribe plane and it didn't even it didn't do what they needed it to do. It wasn't.
- [34:37]
A
It was a gift.
- [34:38]
E
Sorry. Gift plan. Gift plan. I'm sorry. I'm sorry.
- [34:41]
A
They used gift authorities to receive it. I am almost positive. So technically, it's all right.
- [34:45]
E
It's not a bribe plane, a gift plane, but a gift plane that many felt was improper to accept. Bad optics, okay? Optics get even worse when it doesn't have the proper security measures needed to be missile resistant. And of course, now it's going to cost a huge amount more money to update it to that standard. And then we had to fly on the old unsatisfactory Air Force One back. So it was very embarrassing when the New York Times reported on all of this and why that had happened. And then these subpoenas show up at their homes. And then there's a second wave of subpoenas that comes after that. And those are two carriers to phone carriers for the reporters and their relatives. So two spouses, one mother, I think. So that's where the family members come in. So what were the subpoenas looking for? Well, the initial round said its testimony it's related to the reporting on the Qatari donated Air Force One. The phone record subpoenas, though, reached back to the beginning of the year to January 1st, and that raised alarm bells among the reporters and press advocates because the thinking there was, well, they're not just looking for information about this particular leak leak, they're looking for information generally about leaking. And so that's kind of what brought us to the court where the Times moved in the Southern District of New York, which is where the subpoenas came from, which is Jay Clayton's district, to quash them. And the judge there, Judge Aaron Subramanian, he froze the enforcement of the subpoenas until a hearing. I think the hearing is still scheduled till tomorrow, but for tomorrow. But I'm not sure whether it's going to happen because of what I'll tell you next, which is that after some back and forth, the Department of Justice wrote a letter to the court saying that actually it is going to hold the subpoenas in abeyance while it takes additional investigative steps that may bear on the court's decision of whether to quash the subpoenas. And all it's going to do is ask for records preservation in the meantime. And that looked a little sketchy, too, because basically what the Department of Justice was saying and what came through in these hearings, too, was we did what our internal guidance requires that we do, which is we exhausted other options, and we only did this when it was essential. What they're saying in this letter seems to be, actually we're going to take additional investigative steps. Perhaps we didn't exhaust all options. And that was, you know, the New York Times argument was they violated their internal guidance. And just generally this is in bad faith because the protections for journalists are pretty minimal here. For the most part, they have to turn this over. And if they don't, which often they haven't, they could be held in contempt, they could be jailed, which has happened in the past. But if the subpoenas are proven to be in bad faith, then they have a lot more to stand on Legally
- [37:53]
C
Ground News, in addition to being the sponsor of this episode of the Lawfare Podcast, is an app that lets you jump out of your media bubbles and see the blind spots that exist in whatever media ecosystem you operate. Ground News doesn't just show you what the news is, it shows you who's reporting the news, how many news sources are covering it, and how coverage is distributed across the political spectrum. For example, Ground News shows that there are 50 different sources reporting that Oman warned allies that ships going through the Straits of Hormuz might have to pay a fee. And the headlines are quite different depending on where you look. From right leaning news sources you get headlines like Ships face voluntary charges under plan for post war Hormuz. From more left leaning outlets you get headlines like Oman tells allies ships going through Hormuz may have to pay. And further, Ground News shows that only 19% of the news organizations covering the story are left leaning. 69% of the news sources covering it are conservative. You're much less likely to have encountered that story if you primarily read left leaning outlets. Ground News helps you jump out of your media bubbles and get closer to the ground truth.
- [39:18]
E
Truth.
- [39:18]
C
It's not a publisher and it's much more than an aggregator. It's a combination of a rating system and a focused look at who is reporting what. Like Lawfare, Ground News is about bringing you high quality information that you can figure out what to do with. For me, the most valuable feature is simply discovering the stories I probably would have missed because of my own media habits. So check out Ground News and subscribe to the vantage plan for 40% off, which gives you unlimited access. To a better way to read the news, visit groundnews.comlaw that's groundnews.com law one last time. It's really worth checking out groundnews.com law
- [40:11]
D
that refresh you've been putting off until the right deal came along. It's here. Wayfair's Black Friday in July sale is happening now so you can finally get the style you've been waiting for for less. Get up to 80% off area rugs and up to 60% off outdoor and bedroom furniture. Shop Wayfair's huge selection of styles and
- [40:29]
A
find the piece to fit your style,
- [40:31]
D
budget and space plus free shipping. Black Friday in July and July 27. Shop today at Wayfair.com Wayfair Every style,
- [40:40]
E
every Home A Better Help Ad after my session and talking to my therapist and really feeling seen and heard for the first time, I just felt like a weight just was lifted off of my shoulders and I felt like it was a good match. From the first time we talked, I could tell people from lived experience that they should try therapy. I could really be myself again. And I have this continued support with BetterHelp. Wherever you are. That's where BetterHelp begins. Visit betterhelp.comrandompodcast to get started.
- [41:10]
D
Pay testimonials.
- [41:12]
A
Results may vary.
- [41:12]
B
Hello, I'm Monica Reinagel, host of the Nutrition Diva podcast. Summer is here and with it the hot and sticky weather. A morning working in the garden or maybe on the golf course can leave you more depleted than you realize. And plain water isn't always the most efficient way to restore the balance. That's where Liquid IV comes in. Its science backed formula is clinically proven to hydrate faster than water alone. Whether you're exercising, playing outside, or simply surviving a summer heat wave, it's an easy way to stay hydrated. Shop now@liquidiv.com Liquid IV hydration that goes wherever life takes you.
- [41:50]
A
Yeah, I want to come to you, Julia, for a little bit of the national security apparatus perspective on this and this kind of network of authorities. I think we have at Lawfare kind of different communities that sometimes arrive at a little bit of loggerheads in this. A lot of journalists who do national security reporting really think it's essential for the public to have a responsible understanding of our national policy and our security policy as a country. There needs to be the ability to publish sensitive and sometimes classified information. Otherwise it would be too hard if you had too firm a line, if you interpreted the First Amendment too narrowly to completely exclude that, then too many journalists would just not be able to talk about what is some of our most important national security policies. On the flip side of that, I think many people in the national security community and in government would say, well, hold on here because there's a lot of genuinely sensitive information that we talk about regularly that if it gets outside, really is going to cause a lot of legitimate problems. And yes, maybe it's newsworthy, but the, the relative public interest in the newsworthiness doesn't necessarily outweigh the public interest in the better US Policy. It allows us to advance. I think the biggest kind of flashpoint of this in my mind remains WikiLeaks, where we saw this huge drop of often just secret level, not even the highest, most classified level intelligence information, but broad, broad swaths of intelligence information dropped without any sort of effort to withhold names, vet it. But check with the government about the responsibility and the potential consequences of disclosing it steps that many mainstream media organizations do pursue and dropped it. I was in government at the time. I vaulted this a little bit. And I will say without getting any more details, I think there were genuine national security policy costs from that that were substantial and genuine human costs that came from that that were substantial. The cost and benefits. It's a bigger scale that more of a conversation I can get into. But I do think there's real security concerns on the side of that. So what is your perspective and what is the kind of intelligence professional's perspective about the people who live in the SCIFs? How do they think about the role of national security journalists and how do you navigate this relationship? Is there a bright line rule or does it really rely upon to some extent, some good faith among the two different sides?
- [44:10]
D
Nice softball question, Scott.
- [44:11]
E
There you go.
- [44:12]
A
Solve it for us, Julia, if you don't mind.
- [44:14]
D
Yeah, well, you put, you put me on the spot. The other day someone referred to me as a journalist, which nearly gave me a heart attack.
- [44:22]
A
It's weird. I agree. What happened to me too.
- [44:24]
C
It's weird.
- [44:25]
D
Having spent 20 years thinking of journalists as spies or worse than spies. At least spies work for a foreign government. I'm having to grapple with some of my own words on the subject here. I think that there's room for discretion here in prosecutions, I think, and it's clear that the way this was conducted is, is a lot of the part of the story where it's trying to send a very chilling message to people who are leaking information, especially information that is of a particular kind of denigration of the administration. I think that's pretty obvious what the intention is from an intelligence officer's perspective. Yes, obviously leaking classified information is a terrible setback for national security. The inability of the United States to keep this information secret makes it much less likely that individuals will share this information with us, that foreign governments will cooperate with us. And in the case you you mentioned with WikiLeaks, that was one of the most damaging mass releases of classified information in my lifetime. And so I would have a very high bar for foreseeing any of that as being acceptable for the officials involved. I will say though that the, the journalists are not bound by the same non disclosure agreements that I have signed. And putting the screws to them, coercing them to reveal information, seems like a pretty clear cut violation of the first amendment. And I defer to the lawyers in our midst on that. And it sends a pretty Chilling message to everyone involved about the lengths to which the administration will go to hunt down those that are leaking negative information about them.
- [46:09]
A
And what do you make of the nature of this reaction? I mean, look, one of the parts of this case that is weird, although it's so consistent with how this administration really approaches these things, is that this is the story they decide to go nuclear over. Right. It's about the President's plan. On the one hand, look, presidential security is a high national security priority. I think that's certainly true. If this were disclosing genuine security concerns in a way that make the President vulnerable to attack, I think that would be a completely legitimate reason to say, hey, this is reckless and we need to find who's leaking this. This is very dangerous. That doesn't appear to be, at least from what we've seen that's come out in the reporting, maybe New York Times withholding something. That's not what's actually being revealed here. Instead, it's much more about details about the handling and use of this plane at a very broad level. Nothing that would be clearly, to me, compromising. In other words, it's information that seems primarily politically damaging and embarrassing. How much of it would even be classified? I'm not 100% sure. Probably some of it is because it is about presidential security and offices that do that work, is my suspicion. But would it be the sort of thing you would assume would be classified otherwise? I'm not sure enough. A lot of cases it would be. That's my gut instinct. Does that strike you as right, Julia? I mean, how. How sensitive does the information that's out seem to be? And if it really is, this is the bulk of what these journalists are getting. Is this a good test case for pushing the envelope in this sort of way?
- [47:34]
D
Yeah, I mean, it was very clear from the circumstances what happened here. It was because it had hit too close to home, to the President's travel and perhaps in addition to the mad scramble of the courtiers trying to do something to make the boss stop raging at the storm over this episode. They may have overreacted. They did overreact, and now they're needing to cover themselves with the paperwork. I think that there is always going to be a legitimate case to help otherwise obviously politicized actions by the administration. It is a problem that the President is surrounded by individuals who are talking to the press about his travel arrangements that should not be occurring. It's just been part of the broader situation with this administration that individuals are feeling like they have to in order to get the word out about really abnormal behavior by the Commander in chief. And I just. I wish that was not the case, because I think there are real security concerns, not in what was shared in this case, but just sort of the fact of the President's decisions regarding the planes and movements were being disclosed.
- [48:49]
C
Yeah.
- [48:50]
E
I mean, my understanding is Kash Patel was at the White House all day the day the subpoenas were issued, and that Trump had asked him to look into this. I mean, that's just so irregular and so different from how a media leak investigation would go. Even if you as an administration have decided to be more aggressive about media leaks, there would be a proper way to do it and an improper one. And this seems pretty clearly improper. The other sort of buzzy news item on medialeaks recently was when there was a search warrant executed at the home of the Washington Post reporter Hannah Natenson. And a search warrant that is a more aggressive step than the subpoenas in this case. And a lot of what people said at the time was, well, it should have been a subpoena. And that's totally true. On the other hand, what that was related to had to do, my understanding is with. With Venezuela. And also it had to do with they had identified someone who had leaked, and then it seemed pretty clear that it was part of that investigation. They already had brought him to court, that they were going to go and they were going to try to get information from Hannah Natenson that would bolster their case against the leaker. And this just doesn't feel like that. This just feels like we went straight to the journalist immediately because we're mad that they embarrassed us.
- [50:07]
A
And the nature of serving the subpoena really does kind of enter in here. Like, when you have investigators approaching journalists at their homes, you don't have to do that to serve subpoenas. And I don't know what the normal practices of the FBI. Actually, that's something we should ask our colleague Mike Feinberg. I'd be a little surprised if that's in the ordinary case, because it is so transparently intimidating. Right. And there are lots of other contexts where you get these subpoenas and they're communicated through a variety of methods. You don't necessarily have agents showing up at family homes or with other family members. At a minimum, they can go to the office, not in a way that exposes people's children, spouses, and other people to these sorts of forces of armed individuals at their house. Even though most FBI agents, as we know, are cuddly and friendly as Mike is. So it's an interesting element here. So, and all this enters into the legal calculus. That's where I want to come to you, Eric. As for your sins, the other lawyer on the chat right now, how do you think this plays out in the courts? This administration has a habit of leveraging legal tools aggressively at the front end in ways that hinder their long term sustainability. So, you know, the Letitia James prosecution, the James Comey prosecutions, like these are all examples of cases where things the administration leaned forward on very early, early rhetorically, communications from the present, all these other things really undermine the case or at least could have undermined the case. I think there are other complications that kind of got in the way if it had proceeded as it would have proceeded, or at least there seems like a real risk there. Is that the case here as well? I mean, does the fact that they choose to do this over a story about the president that's politically damaging, something that with a limited national security nexus, in a way that the president appears to have been directly involved in, at least there's reporting suggesting enough, does that actually weaken the ability to follow through on the implicit threats of the subpoena, which is that if you don't tell us, we're going to hold you in contempt, or is it not clear that that's actually going to enter in too much in the equation? What's your sense on this?
- [52:11]
F
I'd say it's hard to know. I mean, I think if you're a judge, there's always in the back of your mind, whether you know it's there or not, a question of how righteous the government's action is, even as when you're applying legal precedent that doesn't necessarily take those things into account. And in this case, it seems to me, if I have the timeline correct, that the Times reporting was not really that earth shattering. Because what we already knew, I believe, before the Times had published its report, was that Trump had swapped planes before he traveled from, I think, Turkey to Great Britain. And he put forth this completely implausible explanation for why he had done so. He said that he swapped planes because he wanted to fly to England, because the soldiers at the base there wanted to see the new Air Force One from Qatar, that they had asked to see it, which is just patently absurd. And so I think by that point, people had a kind of a fair sense of what was going on and why you would not want to be flying on a certain plane, possibly within range of Iraqi missiles and when the Times then a day or two later, I think it was the time was published the story, it was basically confirming what people already knew. So the national security argument, even though it seems fairly likely that classified information was disclosed at the Times, the national security argument is kind of hard, hard to credit as being a serious issue there. And that's something that courts very well may take into account, either expressly or perhaps in the back of their minds as they decide how to proceed here.
- [54:08]
A
Yeah, I mean, I'm not an expert in this area of law at all. I've encountered on occasion a variety of contexts. And my recollection from my law clerk days relating to D.C. circuit law, I'm pretty sure the Second Circuit has a similar set of case law, is that there's something like a qualified privilege that journalists can benefit from. And so you end up with these multivariate tests that say, okay, well, what is the relative interest in protecting the source versus disclosing the source and how does it come in? And that's part of the reason why the government has been picky about which cases it pursues and leverages these things on. Most of the cases have really dealt with more clear NASCAR damaging classified information because that's where you have the clearest case of government equities and the clearest allegations of criminal conduct on the part of the leaker. That's a harder case to make here. So I have to think, if I were Cash Patel's lawyer or the Justice Department's lawyer or Jay Clayton's lawyer, who I think authorized these subpoenas, I'd have to say, yeah, I mean, we can issue these things, but are we actually going to be able to make good on the threat to fight them back? And frankly, if you were going during a variety of journalists, maybe that would be less of an issue. New York Times is the one journalism operation that's not going to sit down on this. I mean, they keep a very, very well staffed, well experienced set of attorneys there who are more than willing to fight this out. I mean, they know who's on the other side of the V from Sullivan and a variety of other cases in the States. And they see it, they understand the precedent. I think, I suspect, view it as part of kind of their institutional legacy and responsibility to vindicate these sorts of things. So you're not going to get away with them without a fight. So I do wonder. This strikes me again as one of these things that strategically doesn't really make sense from the White House. If you think they're acting in a strategic manner. But maybe if you are trying to satiate the demands of a person who simply wants to see action and views things through a more short term lens, that's the only way it can really make sense of this. Otherwise, it's hard to really square with how even you would want to go about this from the government's perspective. But I could be wrong. Maybe they'll have more luck in court than we will arrive at.
- [56:15]
D
Yeah, so there's a little bit of the pot calling the kettle black on all of this. When the President is in the press darkly commenting on things we might be doing to China in public. You know, he once shared classified information in the Oval with Sergey Lavrov. They're inviting Benjamin Netanyahu into the Sit Room. And they have frequently described covert activities in public in order to make them look good or burnish. The administration sense that it's, you know, high tea and going after the enemies with all the, all the power of the United States. So, like, when they're talking about these things, it's going to set a climate where people might be looser in what they're willing to share if they're watching the boss do it on tv.
- [56:57]
A
Yeah, it's a good point here. And if nothing else, if you're the Justice Department, this is a case where you are really going to miss that presumption of regularity that they used to get in the courts but don't regularly anymore if you start litigating this. Because without that presumption in your favor, I feel like your case gets a lot harder to make.
- [57:13]
E
I think you're right. And I think it also further erodes the presumption of regularity if it ends up that the judge determines that these subpoenas were issued in bad faith.
- [57:22]
A
Oh, 100%. 100%. So let us now turn to our third topic, which implicates some of the people involved in this exact decision. That is, of course, Jake Clayton, currently the Acting U.S. attorney for the Southern District of New York, I believe, and Todd Blanche, the current Deputy Attorney General nominated to be the Attorney General. I guess he's acting Attorney General now. Eric, I want to come to you on this. We had two pretty interesting hearings in regards to these confirmations last week, frankly, six months, a year ago, I think we would have expected these confirmations to sail through. But it is a sign of to some extent the declining capital this administration has, even with Republicans in Congress around certain issues, to the extent to which it's burned through, it also a sign of the political moment, the fact that in part because of the President's choice of candidates in Republican primaries around the country, you have a number of lame duck Republican senators that are able to be a little more yellow at this late date than they might have been willing to be if they were still viable candidates and stand up on particular issues that they feel strongly about that are contrary to the administration. And then on top of that, a circumstance that was not foreseeable for the administration. You have the death of Lindsey Graham, which I mentioned on last week's episode. An important senator on a variety of issues, but not least because of his very influential role in the Judiciary Committee, his persuasiveness, his ability to shepherd candidates through something that people fully expected him to do for the administration. He played that role with a number of important nominees before the Judiciary Committee in recent years from this administration, among other contacts. I don't know if he's on the Intelligence Committee. I don't think he was, but I could be wrong about that. I should actually look that up. So, Eric, talk to us about what we learned from these hearings, what's interesting about them, and what the road ahead for these two candidates looks like.
- [59:05]
F
Sure, Scott. I just want to first kind of tee these up by talking about the somewhat different legal circumstances that they're in, Blanche and Clayton, and how Blanche is actually very unusually situated. As we've discussed, there is currently an acting Director of National Intelligence, Bill Pulte. What Trump is basically saying to the Senate is, look, you confirmed Jay Clayton or you're stuck with my henchman Pulte, who will do all sorts of bad things. And this is exactly the situation that we were in in 20. I don't remember precisely, but I think it was 2018, when, in the first term, at any rate, when Trump named Richard Grinnell, Rick Grinnell, to be the acting DNI after he fired the original dni, and then who was the former senator from Indiana, Dan Coats, and then nominated Texas Congressman John Radcliffe to be dni. And basically it was the same deal. Like, look, you either confirm Radcliffe, who does not have a tremendous amount of. Amount of experience, or you're stuck with Rick Grenell, who is a little bit of a hothead and does whatever I want him to. And the timing of one thing about the Clayton hearing is that it was originally scheduled to be a week or two earlier. And then Trump was like, no, no, no, this is too soon. And he didn't say in precisely those words, but it was pretty clear that he, he basically wanted the hearing to be taken down. And Senator Cotton, who was the chair, was like, we're proceeding with the hearing unless you formally instruct him not to appear. I think Clayton had said, I'm not appearing at one point. And then Trump did that. And the theory was that Trump wanted Bill Pulte to cook a little bit more and do whatever nefarious things he was going to do. Now, this is all very strange because what does it mean that like that Jay Clayton is kind of too pure to do these things? Maybe, who knows? But anyway, no way he'll run a railroad. Todd Blanche, on the other hand, already has the job. He already is the acting Attorney General. So what does it mean for him to be confirmed? And it may not mean a whole lot. He can, based on basically under the law, remain if his nomination stalls for some reason, he can probably remain under the law, acting Attorney General as long as Trump wants him there. And we actually have a precedent for that under Joe Biden. When the labor secretary resigned in March 2023, the deputy became the acting Labor Secretary and was also nominated to fill the vacancy in a non acting capacity. But the Republicans were against her, as were Joe Manchin and Kyrsten Sinema. So instead of nominating someone else, the White House just kept her there and she was Biden's forever nominee, in the words of Axios. And she remained until Biden's last day for almost two years. And Todd Blanche can probably do the same thing. Which raises the question of why are we here? Why you are, why are we going through this whole exercise? And it's not entirely clear. It might be a few things kind of come to mind. One is that the administration may believe, rightly or wrongly, that Blanche has more power within DOJ and across the executive branch if he has the President's full blessing and the Senate's imprimatur. And they may believe that he is in fact likely to be confirmed. It could be that Blanche himself wants the glory of being a bonafide non acting ag. You get your portrait outside the office of the Attorney General, which doesn't happen for actings. There's also a possibility that there could be an Appointments Clause challenge to a lengthy Blanche appointment. I wrote a piece on all these issues and I go through the Appointments Clause analysis there, but these probably would prevail on it, but one can never be sure with these things. Turning now to the hearing itself, absolutely none of this was discussed in the hearing, in the Blanche hearing, which focused a lot on basically hot button issues that have been in the Press such as Epstein, such as the $1.776 billion weaponization fund that Blanche insists is not going forward. And Blanche is a savvier guy, I would say, than Pam Bondi. And he comes across as more reasonable and is, I think, therefore more effective with Congress in that way. He didn't have a burn book next to him to resort to. It did not launch into any personal attacks on any senators. He even avoided mentioning that the Dow was at 50,000, but he didn't really give a whole lot. And he kept. In response to questions about the weaponization fund, he kept saying, look, it's dead, and we've put it. They say, well, why didn't you put it in writing? And he says, well, we've put it in writing in court filings. The next question is, well, why didn't you submit a declaration in those filings like Judge Brinkma in the Eastern District of Virginia asked you to do? And he said, well, there's long standing precedent that judges can't ask Cabinet secretaries to do declarations. And then he's asked, well, why don't you rescind the order that you issued that established the fund? And he says, well, I don't have to. There's no need to do that because the fund is dead. So he's giving answers to questions, but not really giving Congress kind of what they want. He did say at one point that he was willing to work with Congress to enact legislation to clarify that the weaponization fund would not go forward. That's kind of an easy thing to say when you're sitting in the hot seat that, like, yes, I'll work with you on this issue, Senator, when you can obviously drag it out and not give the senators what they eventually want, basically more over time when the cameras are off. And it was a little bit frustrating that the senators didn't ask him the question that. I mean, he can give legalistic answers, but he could be asked like, well, what made you think it was a good idea to do this in the first place? And why, if it's not going forward, why is it not going forward? What made you change your mind? And there aren't really great answers to those questions from Blanche's perspective. I mean, this does not strike me as the type of action that Todd Blanche, if he could pick his president or pick his president's preferences, would be on his own accord going with. And that's. That's doubly true with the aspect of the deal that provided immunity for any tax audit of any past tax returns of Trump or of the Trump Organization or of his sons. And no one said, no one asked him, like, well, Mr. Blanche, what made you think that it made sense to settle a lawsuit over accusations that Trump's taxes were leaked? Why would you settle that by giving him immunity from tax liability retrospectively? And it would have been a very difficult question for him to answer. And he was not asked it.
- [67:08]
A
Yeah, I mean, it was a fascinating set of hearings. So there's one big differentiating factor between Clayton and I mean, there's lots of differentiating factors for the one that really seems to weigh heavily in Clayton's case, and that is section 702. These, of course, surveillance authorities that expired just as Tulsi Gabbard was resigning and Pulte was stepping into the acting role at odni. And precisely because of Pulte's ascension to that role, Democrats in Congress essentially declined to support the continuation of those authorities until you had a more permanent nominee. I don't know if we've seen clear statements on this from Democrats, but I think the widespread suspicion is that Jay Clayton is considered credible enough to allow the reauthorization of section 702, at least by enough Democrats in Congress to make that move forward. Julia, I want to turn to you on this as somebody who knows 702 better than any of us, I suspect, or at least the significance of 702 better. How much solace does that give you? How much solace do you think it should give to members of Congress making this difficult decision? And what are the real tradeoffs? We've heard Ben Wittes, who's long been an advocate for 702 renewal on a much more permanent basis, say it absolutely saves Americans lives and Americans will die if we don't have it. And yet he still expressed reservations about reauthorizing it, certainly under Pulte. And I haven't asked him about Jay Clean yet, but maybe we'll have to have him back on to, to ask where do you fall on this as somebody who's really seen both sides of the coin of this issue?
- [68:43]
D
Yeah. So I tend to come down where Ben does, which is that this is a crucial national security tool. It is a bedrock of a lot of the most important collection that informs our policymakers. And its lapsing is a terrible blow to national security. But it was justified not giving this tool to an individual who's looking, who's shown his willingness to use all the available tools of his office against the president's political enemies. And so this is a Self inflicted wound on the United States. But compared with the alternative of handing him this weapon, I agreed it couldn't be done. Especially with the public elevation of domestic groups as being a priority for this administration to target. This seemed like a justified decision. It's just this hostage situation with 702 and with bull Pulte still in the job that the Democrats are being presented with, it's like either hand over this weapon to the guy who's currently pointing a gun at the hostage. It's a really bad situation. I think perhaps a trust but verify approach would be necessary if they do vote to give 702 back. But I would keep a laser focus on the use of these tools in the coming months, especially running up the election and the rest of the President's term.
- [70:14]
A
So Molly, let me turn to you for another aspect of this. And that is kind of a little bit the political calculus for the administration at this point and how this fits into some of its other sorts of calculations. I think Eric has spelled out the very different stakes that we have here with Jay Clayton. You've got frankly people in the Senate probably more interested in getting him confirmed than the White House at this point at least. Tom Cotton certainly seems to be leaning the way he's been the one really driving and scheduling these sorts of actions in a relatively prompt fashion. In large part, I suspect motivated by Section 702, maybe to some extent concerned about what exactly pulte the oled ODNI will yield. I suspect less for the people targeted and perhaps more for the political consequences of some of those uses for the President, for the Republican Party. But both kind of, you know, I think fair concerns on Senator Cotton's part. Where do what extent should we expect this administration to make capitulations to get Blanche through? We know this is a sticking point. We have two senators basically saying, hey look, we need you to meet with Epstein victims to kill in a more official fashion, the weaponization fund. Take a number of other concessions that looks like this vote is going to swing on. And that is a set of demands that those senators, both of whom are out of a job at the end of this Congress do not have any real reason to capitulate on other than feeling like they've gotten enough of a win out of the administration to kind of play ball and be a team worker with the administration. Does the administration have the incentive to actually play ball with them? Set aside what Blanche may want, the legal consequences, which I think are as Eric described properly, there's a risk there, but it's not clear that 100% you won't be able to still do most of what you need to do. What are the optics of that, having that sort of internal fight and which way does it break for the administration to say to these established Republican senators, no, we're not going to give up your two demands to you on such high profile items as the weaponization fund and the Epstein victims, Or is this a case where they are going to have to roll and that's going to be enough to get Blanche through?
- [72:23]
E
I think on Epstein, they've pretty much given Tillis what he asked for and he's satisfied and he got his cover and it was not costly for the administration to give that to him. So I think that was a pretty easy calculation on both their parts. And I would expect Tillis at this point to vote yes, even though he said he cares about the weaponization group too. It seems that Cornyn is the harder sell on that. So on the weaponization thing, what should the White House's calculus be or what will it be? I mean, I think that it is very easy for the administration to say and to tell Todd Blanche that he can say, we will work with you on legislative text, like we mentioned. And my guess is that that is just, just how this ends. That that will be enough for Cornyn to say, okay, I gotta win here. And for the administration to have given up something but not to have changed this underlying settlement that would make the contract not enforceable in court. And I think that that's probably what Trump doesn't want them to do, is that. I also think it's easier for Todd Blanche to say, no, I didn't go and redraft this thing. The Congress wrote text. And if they actually do manage to do that, which we'll see, then, you know, it's a lot easier essentially for the White House, Blanche, anyone, to not act as if they really gave anything up. It was Congress that wrote this, so that's kind of how I see it playing out. I mean, I see him getting confirmed. I don't know. I feel like they never vote no. And it's odd because they really don't have anything to lose. But I would be shocked if Todd Blanche didn't get confirmed.
- [74:10]
A
There we go. Eric, do you have, as a closing remark, care to put a wager at all on the odds of our two candidates here, two contestants, or are you going to let the fates decide?
- [74:21]
F
I say that for Kalshee. No, I'm kidding. I think it's likely that they will both be confirmed. I'm not going to bet the farm on it. I would add also one more point on the weaponization fund is that as Anna Bauer and I wrote in a piece a month or so ago, even if the weaponization fund disappears completely, the administration can still funnel money to its cronies via the Federal Tort Claims act, which allows them to use their own judgment in settling tort claims filed against the government, no matter how frivolous, out of what's basically a bottomless appropriation known as the judgment fund. And some senators picked up on this, and I can't say they picked up in our piece necessarily, but they raised. I think Senator Padilla raised it in the hearing, and several senators raised it in questions. For the record. Record that was submitted to Blanche after the hearing. And he was very. Blanche was very steadfast in refusing to give an inch on restricting the types of folks who would be eligible for payouts under the Federal Tort Claims Act.
- [75:36]
A
Well, there you go. We will all have to keep an eye on the future career prospects of Mr. Clayton and Mr. Blanche, but for now, we are out of time. 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. Julia, what do you have for us this week?
- [75:52]
D
So, with the breakdown of the ceasefire in the Gulf, the renewal of the conflict with Iran, and me reaching my mid-40s, I can't help but notice that we're still fighting the same goddamn wars we were fighting when I was in my early 20s. So I find solace, however, in the trying to make sense of what is happening and understanding why America can't get out of the Middle east despite all these years. And I turn to the noted scholars of international relations and modern warfare, Don Henley and Glenn Fry of the Eagles, in reference to the Middle east, it seems that we can check out anytime we like, but we will never be able to leave. And so for my object lesson today, I brought my guitar, which I would be happy to play a riff from the Eagles for you from Hotel California.
- [77:11]
A
Hey, I'm quite impressed. I was once spent an overnight train in Thailand next to a dining car where they had hotel California playing 247 on constant loop, strictly instrumental. So you're bringing back post traumatic memories for me. But a lovely rendition if nothing else. We appreciate that. Eric, what did you bring for us this week?
- [77:30]
F
Well, I can't top that. In previous times I've brought in an actual object. This one is not one. And I suppose I could bring the actual objects, but you'll understand why I don't. And I'm just going to endorse the composting in general.
- [77:51]
A
I'm with you on this one.
- [77:51]
F
I like this one, particularly the D.C. where I say strictly speaking, the composting is not done by most residents, but by D.C. itself. You that you can separate out your, your food waste and in a little bin and as we do and with the compostable bags and then there's a collection of maybe like 50 or so drop off locations around the city. And when your little bag is full, you can take it there and just drop it in and feel virtuous. And I assume it has some, some benefit in terms of reducing landfill and saving money. So I think it's a good thing and it's fun. And actually it's kind of remarkable when you do this. You realize how much food waste you create. And we take out the garbage a lot less frequently now, the garbage garbage, because there no longer is food waste in it. So that's my recommendation. If you live in D.C. you can find it on the Internet. And if you live somewhere else, it's quite possible that there's. There's a program somewhere near you.
- [78:55]
A
I've got news for you, Eric, actually, you don't even have to take it to the bins. DC has a food waste collection program where they'll collect it from your trash can location and give you a special bin to like protect it from the rats in. You may have to be part of a pilot program, but I joined the pilot program a couple years ago and have been doing that regularly since my whole household is vegetarians. We end up with a lot of like food scraps. You could have a lot of peels and cores and things like that. So yeah, highly recommend. A great recommendation folk to there. And if you do the pro, at least the, the collection program, you get a little bag of compost at the end of it every year which you can dump in your garden, which is nice. It's not a lot, but it's £2 or something like that. So we'll take it. Well, for my object lesson this week, I am returning to a beat that I have neglected for far too long. And that is the Muppet beat. It used to be a prominent feature, I feel like on national security when I first took over for a couple years. And then there just isn't that much Muppet news, which is a real bummer. I wish there was more, but there is some Muppet news. I missed a Few months ago, I finally got the opportunity to partake, in, which I do highly recommend. So far, though, I've only gotten to watch, like, less than a full episode, but I quite enjoyed it, and that is that. The Muppet show returned this year on Disney in a new rendition coordinated by Seth Rogen, Maya Rudolph and Sabrina Carpenter, which may seem like an unlikely trio. But Sabrina Carpenter, not really that familiar with her music, if I'm being completely honest. But I really enjoyed her completely absurd and bizarre holiday special she released two years ago, which is, again, I think it was called an absurd or a nonsense Christmas, something like that special. It was quite good and really, really strange and absurdist in its humor. She seems to be bringing that to the Muppet show, which is a good place for it to land, with a little sharpening and honing, I think, by Maya Rudolph and Seth Rogen. It's really enjoyable. I'm really enjoying it. I'm looking forward to catching the rest of it. So I hope folks check it out and tune in up on Disney now, and hopefully, maybe this will just be the beginning of some additional Muppet show content coming the forward. So we'll see.
- [80:44]
F
I'm sorry, Scott. There was other Muppet news in the past week.
- [80:47]
A
I don't know if you know what's up.
- [80:49]
F
There was the World cup halftime show,
- [80:54]
A
at which I missed this somehow. I know Shakira was doing it, right?
- [80:58]
F
Shakira is doing it, but they got a bigger star than Shakira to play. Electric Mayhem Band.
- [81:08]
A
Really? No way. Oh, how did I miss this? I'm devastated. I was on a plane during the final, so I actually missed the whole thing, unfortunately. Oh, I have to go back and check this.
- [81:16]
F
I've actually not. I've yet to watch it. Maybe once we're done. I think I should go watch it. But Animal on drums and Janice was there, too. Dr. Teeth was not, apparently. And they played, I believe, Seven Nation Army.
- [81:29]
A
Oh, that's amazing. That's amazing. That's great.
- [81:32]
E
I thought the guitar might be coming back out.
- [81:35]
A
There we go. Well, with that, Eric, you may officially be nominated as our Deputy Muppet Correspondent with this little bit of news that you've scooped me on, which I'm excited to have the help and excited to check this out. So a double Muppet recommendation for everyone listening. But for now, let's turn us to you, Molly, to bring us home. What did you bring for your object lesson?
- [81:55]
E
I definitely have a Muppet one for down the line, so this is good to know that it's Popular here.
- [82:00]
A
All right. There you go.
- [82:01]
E
But this is extremely not Muppet. It related will bring us full circle to Laura Loomer in Kiev. So I'm a big fan of, I guess, federal agency and military morale patches. And like, I have a. I have a cool mdma, like DEA Task force one, because Molly, I used to wear that on my jacket. But anyway, I didn't bring that. This one, I think. I think there's a really easily purchasable version of this online. And basically it is a patch that. That has an image of sort of a skeletal Mother Mary, and it says, give us this day most deadly aim instead of our daily bread. But that's really easy to get. This one you can't get commercially. I'm pretty sure you can only get it somewhere in the government. And it's the same patch, but she has a jdam and I believe you get it from the Ukraine units. So anyway, I thought it was a cool and topical new pickup.
- [82:59]
A
I love it. Challenge coins are so yesteryear. I'm glad we're. I'm glad we're shifting over to the morale.
- [83:03]
D
You can't wear them.
- [83:04]
A
I know. Exactly. It's not worth. You just have my little thing on your desk. It kind of takes up space. Yeah, you got dusted. Gets all dirty. Well, a great set of object lessons. But 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@lawfaremedia.org for our show page, for our 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. 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. And sign up to become a material supporter of Lawfare on Patreon for an ad free version of this podcast, among other special benefits. For more information, visit lawfaremedia.org Support our audio engineering producer this week was me of me. And our music, as always, was performed by Sophia Yan. And we are once again edited by the wonderful Jen Patcha. On behalf of my guests, Julia, Eric and Molly, I am Scott R. Andersen, and we will talk to you next week. Till then, goodbye.
- [84:07]
D
Want to speed up innovation at scale?
- [84:10]
F
AI it to leap from data into
- [84:13]
D
action and help teams design and produce faster and smarter. Transform the everyday with Siemens.