Rational Security: The “How Many Constitutional Crises Can We Fit Into One Episode?” Edition

Summary

The Lawfare Podcast: Rational Security Edition Episode Title: Rational Security: The “How Many Constitutional Crises Can We Fit Into One Episode?” Edition
Release Date: June 11, 2025
Hosted by: The Lawfare Institute

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Introduction

In this episode of "Rational Security," hosted by The Lawfare Institute, experts and policymakers delve into a series of pressing national security and constitutional issues, particularly focusing on recent actions by the Trump administration. The discussion navigates through the deployment of military forces within the United States, proposed federal rescissions, and high-profile immigration cases, all framed within the context of constitutional law and policy implications.

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1. Deployment of National Guard and Marines in Los Angeles

Overview:
The episode begins with a deep dive into the Trump administration’s decision to deploy the California National Guard and active-duty Marines to Los Angeles. This move aims to secure federal personnel and facilities amid protests against the administration's stringent immigration policies.

Key Points:

• Scope and Scale: Initially, 2,000 National Guard soldiers were mobilized, a number that reportedly surged to 4,000 troops. Active-duty Marines were also dispatched, highlighting the administration's heightened response to civil unrest.

• Legal Framework: The deployment was authorized under the "protective power," a presidential authority interpreted as allowing the use of military forces to protect federal buildings and personnel. This is contrasted with the more expansive Insurrection Act, which grants broader powers to use the military in domestic disturbances (Ben Wittes, [11:20]).

• Insurrection Act Consideration: President Trump hinted at potentially invoking the Insurrection Act, which requires a proclamation to disperse before activation. However, the administration has thus far refrained from this step, possibly due to the irreversible nature of invoking such authority (Molly Reynolds, [12:04]).

• Constitutional Concerns: The use of the military domestically raises significant constitutional questions. The Posse Comitatus Act traditionally restricts military involvement in civilian law enforcement, and deviations from this norm spark debates about the erosion of civil-military boundaries (Ben Wittes, [15:05]).

Notable Quotes:

• Ben Wittes ([11:20]): "The protective power is a theory of presidential power solely related to the protection of federal buildings, persons, and functions. And so it's necessarily defensive as opposed to like a general authorization to conduct law enforcement activities with the military."

• Molly Reynolds ([12:04]): "There's a procedural step with the Insurrection Act—the proclamation to disperse—that doesn't exist in the protective power context. It'll be interesting to see if they take that step."

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2. Rescissions Proposal by the Trump Administration

Overview:
The conversation shifts to the administration's proposal to rescind a portion of federal spending, particularly affecting foreign assistance programs and the Corporation for Public Broadcasting (CPB).

Key Points:

• Process of Rescissions: Under the Congressional Budget Act of 1974, the President can propose rescissions for unspent funds post-appropriation. Congress then has 45 days to approve or reject these cuts with a simple majority, bypassing the Senate filibuster.

• Current Proposal: The administration's special message includes 22 proposed rescissions, with notable amounts allocated to PEPFAR ($9 million), other foreign assistance programs ($7.4 billion), and CPB ($1.1 billion).

• Political Dynamics: The proposal faces bipartisan challenges, especially concerning PEPFAR, which enjoys broad support despite some Republican dissent over specific expenditures. The CPB cuts are also contentious, potentially alienating supporters of public broadcasting.

• Legal Implications: The administration’s aggressive approach to rescissions raises concerns about constitutionality and adherence to budgetary protocols. Critics argue that bypassing negotiated appropriations undermines Congressional authority (Molly Reynolds, [36:17]).

Notable Quotes:

• Quinta Jurassic ([36:21]): "The idea is that if Congress doesn't act on the rescission proposal within 45 days, the executive branch is obligated to spend the money it sought to cancel."

• Chris Mirasola ([48:07]): "I doubt Republicans find this a good political move because whatever they do, somebody will be mad."

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3. Repatriation and Indictment of Kilimar Abrego Garcia

Overview:
The episode examines the case of Kilimar Abrego Garcia, an individual mistakenly deported to El Salvador who was later repatriated to the United States to face federal charges related to human trafficking.

Key Points:

• Background: Garcia was initially deported to El Salvador but was returned to the U.S. following legal interventions, only to be charged with human trafficking and other federal crimes in Tennessee.

• Legal Proceedings: The charges against Garcia largely stem from allegations connected to transporting undocumented migrants. However, the indictment heavily relies on testimony from a jailhouse informant, raising concerns about the reliability and prosecutorial approach.

• Policy Implications: This case highlights the administration's broader immigration policies and the application of the Alien Enemies Act. It also raises questions about due process and the treatment of individuals within the federal justice system (Chris Mirasola, [64:08]).

• Political Reactions: Senator Chris Van Hollen's involvement in the case, including a high-profile visit to El Salvador to advocate for Garcia, underscores the political and human rights dimensions of the issue (Quinta Jurassic, [72:29]).

Notable Quotes:

• Chris Mirasola ([64:08]): "Abrego Garcia's case will be hashed out in the United States in a public courtroom with a measure of due process much stronger than he would have received otherwise."

• Molly Reynolds ([70:35]): "It's a wild ride to say the least."

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4. Object Lessons and Light-Hearted Discussions

Overview:
To balance the heavy discussions, the hosts share personal anecdotes and recommendations, offering listeners a glimpse into their lives and interests.

Key Points:

• NYC Mayoral Primary: The team humorously critiques the New York Times' unconventional approach to interviewing mayoral candidates, such as asking about their favorite bagels, highlighting the sometimes trivial aspects of political campaigns (Quinta Jurassic, [75:29]).

• Parenting and Reading Recommendations: Discussions include recommendations for age-appropriate books for young children, such as the "Magic Treehouse" series, and personal experiences navigating children’s exposure to complex themes like colonialism and violence in literature (Molly Reynolds, [76:46]).

• Pop Culture Picks: The hosts recommend light-hearted media, including a New Yorker profile of Curtis Yarvin and the Netflix series "The Residence," sharing their personal tastes and sparking relatable conversations about media consumption (Chris Mirasola, [77:08]; Ben Wittes, [81:13]).

Notable Quotes:

• Quinta Jurassic ([75:29]): "It was great," referring to Senator Chris Van Hollen's advocacy, underscoring the genuine effort in constituent service.

• Molly Reynolds ([76:46]): "There are a lot of guns. That's the one downside I always forget."

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Conclusion

This episode of "Rational Security" offers a comprehensive exploration of the Trump administration's domestic policies, particularly the militarization of civil spaces and the contentious budget rescissions. Through informed discussions and expert analysis, the hosts illuminate the intricate balance between executive actions and constitutional safeguards. Additionally, the inclusion of personal anecdotes and lighter topics provides a well-rounded listening experience, making complex issues accessible to a broader audience.

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

Transcript

[Scott R. Anderson]

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[Molly Reynolds]

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[Paige]

This is Paige, the co host of Giggly Squad. I use Uber Eats for everything and I feel like people forget that you can truly order anything, especially living in New York City. It's why I love it. You can get Chinese food at any time of night, but it's not just for food. I order from CVS all the time. I'm always ordering from the grocery store and a friend stops over. I have to order champagne. I also have this thing that whenever I travel, if I'm ever in a hotel room, I never feel like I'm missing something because I'll just Uber Eats it. The amount of times I've had to Uber eats hair items like hairspray, deodorant, you name it, I've ordered it. On Uber Eats. You can get grocery alcohol everyday essentials in addition to restaurants and food you love. So in other words, get almost every anything with Uber Eats. Order now for alcohol, you must be legal drinking age. Please enjoy responsibly. Product availability varies by region. See app for details.

[Quinta Jurassic]

So Quinta, in selecting my object lesson for today, I have stayed away from anything related to New Jersey's gubernatorial or otherwise primaries, leaving that lane fully open to you should you want to talk about it. Yes.

[Chris Mirasola]

So we are recording on June 10, which is the day that I think you all have been waiting for the New Jersey gubernatorial primary. We matter.

[Molly Reynolds]

It's so sad to see that on the license plates. It's such a weird state motto. We matter. But we'll take it. Why not?

[Chris Mirasola]

Well, so I will say I think the New Jersey governor's race will be interesting because New Jersey usually flips back and forth between Democratic and Republican governors. Even though we usually have a We're pretty blue state. We usually have a. I say we. I haven't lived there in like 15 years, but in my bones, exactly.

[Quinta Jurassic]

The girl leaves New Jersey, but New Jersey never leaves the girl, so usually.

[Chris Mirasola]

Flips back and forth. And it will be very interesting to see whether or not it goes to a Republican this time around, given that we currently have a Democratic governor. I will say that I bet someone $20 that the Democrat, whoever it is, will win because of thermostatic public opinion. So if I am wrong, everybody can laugh at me and I will be out $20. But I think the Democratic primary is particularly interesting because we're going to kind of get a sense of where the Democratic electorate is at. You know, are we feeling centrism? Are we feeling aggressive anti Trump energy such as Newark Mayor Ross Baraka recently charged uncharged, and now suing Alina Haba over it? Who knows? I will say so one of the candidates is, I think, maybe Molly, and my least favorite congressman.

[Quinta Jurassic]

I mean, so we gotta be clear here.

[Molly Reynolds]

No professional opinions on Congressman.

[Quinta Jurassic]

No professional opinions.

[Chris Mirasola]

This is Vibes.

[Quinta Jurassic]

Yeah, absolutely. Do you need some problem solved? You should not go find the Problem Solvers Caucus. They have solved zero problems in their history and created many, indeed in their what was going to, what could have been their greatest opportunity to solve a problem. Turns out Kevin McCarthy had made even them so mad that they were unwilling to prop up his speakership.

[Chris Mirasola]

Yes. So everyone's fan favorite problem solver, Josh Gottheimer, is running. And I did see a bunch of road signs that someone had stuck on a highway median just one after the other. So it just said, Josh, Josh, Josh, Josh, Josh, Josh. Which really captured something about the energy right now.

[Molly Reynolds]

I think it depends on how fast you're driving. That's. That's the real question you want to do. It's New Jersey.

[Chris Mirasola]

We're driving fast.

[Ben Wittes]

This was the issue. Like, Josh.

[Molly Reynolds]

Hello, everyone, and welcome back to Rational Security, the host, where we invite you to join members of the Lawfare team as we try to make sense of the week's biggest national security news stories. And I'm thrilled to be joined by several of my colleagues as we make sense of another big week in national security news, as they all are these days, of course. We are first joined by our own Congressional maven, Lawfare Senior Editor, Brookings Senior Fellow Molly Reynolds, back to talk about Capitol Hill with us once again. Molly, thank you for coming on the podcast.

[Quinta Jurassic]

It's always good to be here.

[Molly Reynolds]

I always, I'm always good that I get to use the phrase maven, which is one of my favorite words that I feel like has fallen out of common usage. But I feel like is very aptly applied.

[Quinta Jurassic]

I prefer it to guru, which is Ben Wittes preferred description of my role vis a vis Lawfare. But I think I like Maven better.

[Molly Reynolds]

Yeah, I think that's the right call. I think that's the right call. And of course, we are also joined by another Lawfare senior editor and Brookings Institution fellow, Quinta Jurassic Quinta. Thank you for coming back on the podcast. And of course, how could I forget co host emeritus, who is a co host back before I learned how to say emeritus. So now I get to break it out a lot more often, fortunately.

[Chris Mirasola]

Happy to be here.

[Molly Reynolds]

Wonderful. And joining us for the second time, I believe on Rational Security is Lawfare contributor, editor and man of the moment. We will say Chris Mirasola, a gentleman who, among other things, has been a Defense Department lawyer working on domestic deployments. One of the topics we will definitely be talking about this week, as is everyone else in the country, as far as I can tell. But it has been a big week. So let us get to our stories. First up for this week, drama majors meet major drama. I saluted there when I said major drama, in case you're wondering. There you go. That got Molly at least. If nothing else, it's an old new girl joke. Don't worry about it. In the glittering city of Los Angeles, the Trump administration has taken the dramatic step of calling up the California National Guard and deploying them alongside active duty Marines to secure federal personnel and facilities, specifically against protesters demonstrating against the Trump administration's draconian immigration policies. Is this the beginning of a broader threat to the constitutional order, as some of Trump's critics have posited? And what should we make of President Trump's suggestion that he may yet invoke the controversial Insurrection Act? Topic 2 Precision Recision what's your mission? The Trump administrator I'm not going to sing that, unfortunately. I thought about it. I couldn't get past the first verse, so the singing seemed not quite worth it. The Trump administration has asked Congress to formally rescind a slice of the federal spending it has been withholding since entering office, specifically relating to foreign assistance and the Corporation for Public Broadcasting, a request the House seems poised to move on as soon as this week. How likely is it that Congress will agree to the cut in funds? And what will the implications be, both for relevant legal challenges and Trump's broader agenda? Topic 3 There and back again after an unexpected journey and epic delays on the part of the government, the Trump administration has finally repatriated Kilmar Abrego Garcia, the man who was mistakenly deported to El Salvador, only to charge him with human trafficking and other federal crimes in the state of Tennessee. How serious are the charges against him? And is this likely to prove to be a win or a loss for the administration's broader immigration agenda? For our first topic, Chris, I want to turn to you as our proclaimed man of the moment because I know you have been very busy these last few days. Folks have not looked at lawfare. We have not one, but two posts up from Chris. Now a very useful article digging into some legal technicalities about what is happening in the state of California. Just to review the basic facts. I think I have them, but correct me if I'm wrong, we are now, I think three days into, give or take, a military deployment to directed by President Trump in the city of Los Angeles, although I think it's just a small portion of the overall troops are there currently. Initially it was a call up of 2000 National Guard soldiers from the California National Guards. He's mobilized using one statutory legal authority to that we've subsequently seen added somewhere between 500 and 700. I've seen conflicting reports active duty Marines that Secretary of Defense has deployed to LA or said he's going to deploy to LA. And I've seen reports in the last 24 hours that the original number of National Guard troops has now potentially doubled to as many is 4,000 National Guard troops from California, I believe, although notably the President's memorandum isn't California specific where he laid out this policy. It could apply to other cities and potentially, I guess, other National Guards as well. So, Chris, talk to us about how big a deal this really is and what is it these troops are doing, because I think a lot of people are viewing this as a major crossing of the Rubicon by the Trump administration. And I think it, it is from a certain perspective, but in a way it's almost like dipping a toe in the Rubicon to some extent, as opposed to leaping across, at least in my mind. And I'm curious if you agree. So talk to us about what stands out to you about this situation.

[Ben Wittes]

Yeah, it's hard to figure out relatively where our freakout meter should be because the tale of escalation proceeds so considerably from where we already are. So maybe it's a tributary of the Groupicon where we're at at the moment. What's happened so far, right, as you were saying, is that the president has directed the Defense Department to use National Guard and as necessary active duty troops to protect federal functions, persons and property. And as you say, this memo is unrestricted in terms of geographic scope and time, which is itself like noteworthy past uses of what's called the protective power. It's a theory of inherent constitutional authority, have been really specific to, like a particular protest in a particular city at a particular moment in time. And so this is pretty different from those historical uses of the authority. The authorization is more limited than what we would see in if there were to be an invocation of, for example, the Insurrection act, which I'm sure we'll get to. The protective power is a theory of presidential power solely related to the protection of federal buildings, persons and functions. And so it's necessarily defensive as opposed to like a general authorization to conduct law enforcement activities with the military.

[Molly Reynolds]

You mentioned the Insurrection act, which is the other big data point that everyone's talking about. Initially there was a question, particularly before the actual memorandum was released, where people were like, wait a second, did the President just invoke the Insurrection act, or at least try and invoke it, but failed to issue this proclamation? That's kind of step one, invoking the Insurrection Act. And then a lot of people are assuming he's doing something similar or has found some back end to do the same sort of thing, but instead, as you said, it's this much more narrower mission, at least on paper. We'll see if that ends up being what they do on the ground. So talk to us about what the Insurrection act would mean as an additional step, something Trump has said he's still considering maybe it will be necessary and why they haven't taken that step yet. What's the barriers to doing that, legal, political or otherwise?

[Ben Wittes]

Yeah. So the Insurrection act refers to a couple of different statutes that were enacted over the 17 and 1800s and authorize using the military, usually in response to a request for assistance from a state or territory, but in one instance, under one state statute, on the President's own volition, without a request for assistance in the face of some kind of relatively ill defined, to be honest, civil disturbance that's happening in the state or territory. And their authorization is for the President to use the military to counteract, to subdue that civil disturbance which is happening in the state or territory. It is in this way like an exception to our baseline criminal prohibition on using the military for domestic law enforcement purposes. Right. Which is a criminal prohibition created by the Posse Comitatus act, again, another 19th century statute. We're living in the 19th century for most of these things. And so the main difference that we have between what was, what's. And again, as you Said, this is on paper. We'll see. There's gonna be a lot of political pressure to come up against the limits of the protective power, for example. Right. The real difference is the extent of the law enforcement activities that the military is authorized to undertake. Right. Under these two different kind of legal constructs. The Insurrection act, as you mentioned, has at least one meaningful, like, procedural prerequisite, which is that there must be a proclamation to disperse which is first issued by the President before the substantive authority of the act can be invoked. Right. And this is why there was so much confusion over the weekend, because we didn't have that proclamation to disperse. Don't, like, overstate the practical significance of that proclamation to disperse. In, like, the civil rights era, those proclamations were routinely issued like, a minute before the executive order actually invoking the act was. Was issued. But there is a procedural step. Right. Which does not exist in the protective power context because there's no statutory hook. It's just a interpretation of Article 2 of some questionable provenance. There's traditionally been, like, a lot of political reluctance to invoking the Insurrection act partially, historically, because of some, like, normative concerns about using the military in the United States. I'm not convinced, as you said, that the President shares those normative concerns, but also because, and this might be most meaningful, once you invoke the Insurrection act, you're pretty much at the end of the legal road in terms of the President's bandwidth or legal authority to use the military to counteract some kind of civil disturbance. There's nothing plausibly left after that. And so rushing straight into it kind of leaves you with nothing afterwards, which I imagine might be more significant to this President than the first concern.

[Chris Mirasola]

So, Chris, one question that I have had is trying to think through how concerned we should be about this, because on the one hand, I think it's important to emphasize currently the authorization is. Is to, as you say, use this, play this kind of protective function. I was joking to someone that it was essentially meant that the National Guard was there to hand ice water bottles, and then the Marines are there to hand water bottles to the National Guard so they can hand the water bottles to ice. It seems like there's a little bit more of guarding of courthouses and so on, but that's what's happening. And also the other issue is just the scale. I looked it up. I believe the deployment of the D.C. national Guard during the 2020 George Bus Floyd protests in D.C. was about 1700 people. D.C. is a city of about half a million. So now There are about 4,000 National Guard troops in Los Angeles. Los Angeles county has 18.6 million people. You know, if the idea is we are afraid of tyranny, because having these people on the street could potentially create a circumstance for a sort of military crackdown, it is not super obvious to me how the numbers work on that. In addition, because LAPD and the LA Sheriff's Department, neither of which are sort of paragons of community policing, have in multiple cases essentially said, we're out. You guys are on your own. We're not dealing with this. And in part, it seems, because Secretary Hegseth has been extremely uninterested in actually coordinating with LAPD on these issues. All of that makes me say, well, it's not good, but it doesn't seem catastrophic. On the other hand, you could certainly say it's laying the groundwork for more exaggerated deployment. And then I think there's the other risk, which is, even if we're not worried about really breaching civil military norms or something like that, that there's just a risk of having people who are not trained in crowd control standing around holding guns in front of a bunch of people who are not organized, many of whom are peaceful, but some of whom might be inclined to make a provocation or not. And that, as we all know from Kent State, that is a way that people can end up dead. And so even if there's not a sort of consolidation of authoritarian control in any sense, that it can still be very dangerous and very bad. I have no idea where I land on that spectrum, but I am curious for what your thoughts are.

[Ben Wittes]

Yeah. So I think I largely agree with most of what you were just saying. And I think my level of concern is moderate and rising. So my concerns, I think, fall in three buckets. So one is where you ended, right? The interaction between the military member and civilians over the weekend. It appeared that a lot of this mission was cobbled together relatively on the fly. I read some reporting that the members of the National Guard who were put onto orders were just those who happened to be on their weekend duty. Right. Because they were nearby. That doesn't give me a lot of confidence about the amount of training that they had for a civil disturbance mission before being given the mission. That doesn't seem to be the case for the members of the Marines who have recently been deployed to la who NORTHCOM has represented, have gotten training on the rules for the use of force, for example, which is the rules that pertain to the military's engagement in the United States with civilians. But in all of these circumstances, particularly when we're dealing with a legal authority as fuzzy as a protective power. Right. Where, you know, where do you draw the line between what is defensive and what is proactive law enforcement? Right. Inherently fuzzy, it requires a training in de escalation and dealing with civilians, which is just inherently really difficult. So I have concern there. Second concern that I have is what you were mentioning also, right. To what extent does the presence of military members contribute to further escalation? Not only in la, but across the country, we're seeing an increasing number of protests, at least in part because of the executive branch's response to. Right. What's happening in LA occurring throughout the country. There's been a lot of speculation about whether there is some kind of grand plan by the administration or whether this is kind of just like happening again kind of just by happenstance. I tend to think the latter, but it's hard to know. The more of these we have, the more opportunities there are for the administration to deploy the military and potentially eventually invoke the Insurrection Act. And then I think my, like, my, like my last bucket of concern is more kind of long term and normative. The frequency with which we're having domestic military deployments has just like skyrocketed. Right. In the past decade, particularly for these like, law enforcement adjacent kind of stuff. And I think it's done meaningful damage to a broad based consensus about a limited use of the military in the United States. And so the fact that this is open ended, the fact that there's really aggressive uses of the military, it's contributing to, I think, this sense that not that this is normal, but that we're getting used to it, which over the long term I think gives me the most significant concern.

[Molly Reynolds]

So the way I think about it, there's kind of three sets of broad constraints on what the Trump administration kind of do. One is operational, which I think you've already gotten at. Right. Like this just may not be effective. It may prove ethical. In fact, as Governor Newsom has argued already is proving, and I think there's at least a colorable case to be made there that is counterproductive. Another element is the legal element, which I want to get to and circle back to in a second, we do now have a lawsuit from the State of California. But the third one, in a lot of ways the one that seems to be pushing most firmly back on Insurrection act invocation instead of what we're seeing them doing in this case, that has traditionally been the biggest contributor to the constraint that presidents have used and you employing the Insurrection act or taking similar actions. The reason we haven't really seen it since the 90s during the LA riots. The last time we really saw something this comparable, except maybe D.C. during the Floyd protests, is political. And it's a political pressure that has traditionally been at least something that's not clearly partisan. It's kind of baked into some idea of the public values that a lot of Americans assume or share. I think a lot of Americans are very surprised to hear that there isn't a constitutional barrier to the President deploying the military. It's actually something that is anticipated in the Constitution, albeit with certain checks and rules. But that the Posse Comitatus act is just a statute and not even that. It's a statute that is kind of poorly designed for its purpose, I think it's probably fair to say from 150 years ago. So Molly, you are our closest politics watcher here, I know, particularly on the Hill, but in other domains as well. Talk to us about how you think this is playing on the Hill with Republicans, with Democrats. I mean we could see pressure coming from a couple different places. We're a little far out from election, but I mean House members are already thinking about House elections coming up. To the extent we're going to feel political pressure, is it percolating up against the administration or are we really not seeing that yet? Do Republicans still seem to be in the President's corner so far?

[Quinta Jurassic]

Great questions, I guess most directly on the question of how are Republican members of Congress reacting to this? Most of them who are willing to speak publicly have said that they are broadly supportive of the idea of the President using whatever tools to maintain order in Los Angeles. If you ask them specifically about things like should Gavin Newsom be arrested, then you get them saying the very classic Trump line of oh, I haven't seen anything about that. I was just in a meeting. Any number of ways to avoid so.

[Molly Reynolds]

Many meetings when President Trump says things that people want to ask questions about, it's insane how busy people get.

[Quinta Jurassic]

So you sort of take from that what you will. I think thinking about sort of the politics more broadly, we do have what I think is pretty good evidence from the study of American politics that you know in the contemporary era that even things that we might call riots but like large scale public protests against things like what Trump is doing on net tend to generate more support for the protesters position and not backlash. Like we can argue with the specifics of what might be happening. There's a lot. I think in this particular case, there's a lot about, frankly, just like the nature of Los Angeles, California, that mean that the public is just, like, wildly misperceiving what is happening largely. And Quinta quoted the population of Los Angeles county earlier. But I have seen any number of maps of Los Angeles over the last several days that put, like, other American cities footprints on top of LA county, and you get to, like, 6 of what I would think are pretty big cities. And then there's like a tiny little circle, and this is where the actual unrest is happening. So I do think there are a couple things about this particular event that are, at least in the immediate term, affecting the politics. But then the last thing I'll say that, like, we can argue about issue polling generally, but, like, what Trump is doing here is unpopular with the American public. The American, American public does not, number one, does not like the idea of using the military domestically against other Americans. And also, particularly when you get to any level of specificity about the underlying immigration policy itself. So, like, you could ask people, do you support the idea that the Trump administration is deporting undocumented immigrants? Like, you get support for that. You get large amounts of support for that among Republicans. But then when you start to sort of narrow down the question and ask about, like, do you support deporting people who aren't criminals? Like, you start to lose support in the, in the public opinion poll. So I don't know how any of this will all shake out. Like, I actually don't think it's particularly either. I don't think it's particularly responsible, frankly, as a piece of political forecasting or even just like, given the magnitude of what we're talking about and everything Chris has just said, to think about, what are the consequences of this for an election that's not going to happen for more than a year? And I don't think it's going to affect what happens in New Jersey today. But that's sort of like my general response on how to think about the politics here.

[Molly Reynolds]

So there is one other, before we turn to the legal side, one other slice of the politics here that's proven really important in the past, including the 2020 deployment in D.C. which is military perspectives perspective of military officers, and particularly career military. We know that was a big source of pushback among other parts of bureaucracy. It's worth noting within the first Trump administration discussions about invoking the Insurrection act regarding the Floyd protests, and we know it's been a lingering point of discontent among a lot of the Military leaders involved in that who are still seen as host style by former President Trump. But it's something, if you talk to queer military people out there are very skeptical about this for often very operational practical reasons. Like this is just not what people are trained to do. But Chris, you've kept an eye on the folks we know who are working on this issue set in DoD and elsewhere, many who you worked with during your own time in the department. Talk to us a little about what sort of reaction we may be seeing in the voices we may be hearing within the bureaucracy on this. I'm sure there will still be that groundswell. But are the people that we see arrayed around this issue set likely to provide the same sort of pushback that we did see in 2020?

[Ben Wittes]

Yeah, I think the key question is whether the senior most immediate advisors to the President. Right. Share the same concerns that you were just describing folks certainly had in the first administration. Right. So everyone from Mark Milley all the way down. Right. To the folks that I was dealing with as an attorney had a similar view, as you were just saying. Right. About the military's. The fact the military just like is not well postured for these kinds of domestic missions and all of the reputational other harms that can spring from them. It was obviously like very core to their military identity across political lines. Right. I have decent confidence that that continues to exist at levels like below the Secretary and the chairman. Right. What I don't know is whether those two individuals share that same kind of perception. The fact that we have this invocation of the protective power first suggests to me that perhaps there is at least some degree of commonality there because it's not like the White House has been shy about using some pretty crazy legal theory like the Alien Enemy act cases are in many ways bananas.

[Molly Reynolds]

You just summarized like five whole episodes of Rational Security with that sentence. Thank you. Thank you for that public service, Chris.

[Quinta Jurassic]

Not to mention like many weeks of the Friday LA fare lives.

[Molly Reynolds]

Yes, exactly.

[Quinta Jurassic]

It just.

[Molly Reynolds]

You all can just skip that now. Please download anyway. We appreciate the ad clicks, but otherwise.

[Ben Wittes]

Don'T worry about listening to property class. We get to the estate system like bananas and we're done with three weeks of material.

[Quinta Jurassic]

We.

[Ben Wittes]

Right. But like, you know, an administration that is comfortable with many of the stuff that we're about to talk about. Right. You would think wouldn't feel too much compunction about just like hitting the go button on the Insurrection Act. But that hasn't happened and I'm not certain about why. But this is one plausible reason and it's perhaps the most hopeful plausible reason, though I try not to indulge too much in that.

[Molly Reynolds]

So let's turn to this legal question now before we move to another topic. I do think we have to get to it. We have a lawsuit now from the state of California. I read the complaint last night and they basically make two sort of arguments, statutory, constitutional, maybe three arguments. Maybe you want to split it up on the statutory side. There's a statute 10 USC 12,406. I think I have a number right that is used to call up the California National Guard and federalize them. Not necessary for the Marines who are active duty, but just to use the California National Guard. And they essentially are arguing, Look, Mr. President, you didn't check one box here where the statute says orders are supposed to go through the governor. They're a little dodgy on what exactly that means, but they claim you didn't check the box, you haven't complied with the law. And then elsewhere they do make the point. And by the way, you're only supposed to do this in cases of invasion, rebellion or where you can't enforce the federal law with the resources available to you. And you haven't met these conditions. Pretty sparsely argued, but there like the complaint's there.

[Chris Mirasola]

Right.

[Molly Reynolds]

And presumably we're going to get additional briefing and fact finding and stuff like that around this sort of stuff. There is a constitutional element to this as well, which they're going to need if they're going to attack the deployment of Marines. Right. Which Governor Newsom said today is part of what we're challenging here. And they basically go to kind of a reserved federalism argument, basically say, hey look, Article 1 only gives Congress the authority to authorize the use of military and the militias for certain purposes. And the 10th Amendment in the Bill of Rights preserves all the other duties to the states that aren't provided for in the Constitution. Therefore, this is in the preserved kind of responsibilities of the state, not the sort of thing that the federal government supposed to be sticking its nose in. Did not make a guarantees clause argument, which I really thought was coming. Bill Banks and some other folks who've written this would have been very happy to see vindicated his long standing theory about this stuff. But it wasn't in this particular brief. How colorable do you find these arguments, how plausible do you find them and what role do they play? Because they could be playing a little bit more of a prophylactic role as opposed to a role intending to succeed in this first instance, whatever the rhetoric from the state of California. So I'm kind of curious about your read of this litigation.

[Ben Wittes]

I'll be honest. I was a little bit surprised that the kind of public discourse at first kind of moved to and has seemed relatively fixed on so far, the mobilization authority. 12406 Listen, I agree at a high level that, like, there must be some role for the state in issuing these orders because the statute provides that orders under section 12406 must be issued through the governor. The question then becomes like, what does it mean for these orders to be issued through the governor? One could imagine a very wide range of activities, right. That are all that all could colorably be issuing an order through the governor because in the normal course, orders are not signed out by the governor or any senior military official, like, almost ever. Right. There are delegations at the Defense Department and at least in statute and I am sure in regulation in the California military department as well. I'm not that optimistic that the procedural argument about how the Defense Department interacted with the state of California and the governor individually is going to have much practical effect for us. I again also agree that what we had on Saturday and what we continue to have is not plausibly a rebellion. Right. Within any, like, you know, plain reading of what a rebellion constitutes. Right. We can go back to our map of LA and how small this is and, and the relatively small number of folks who are involved and all of those kinds of things. Right. That leads to, like, whether the courts are going to have any appetite to get involved in adjudicating what rebellion means in this really ambiguous, ambiguous context. Do they want to sign themselves up in the long term for adjudicating these factual cases. Right. Traditionally, the answer has been no. Is that going to continue to be the case here? I'm not so sure because we're seeing a bit more appetite for getting involved in some of that factual kind of detail in the Alien Enemy act cases. Right. When we're having a president who just kind of, you know, asserts a reality that doesn't exist. So, like, you know, there's a possibility there, but historically, a lot of reticence. Right. Then we have the 10th amendment kind of argument that you were mentioning, which was, I mean, not like a throwaway part of the memo to my briefing, to my reading, but very little on substantively what difference they thought this made in construing this particular statute. I think it'll probably have more of a role when they have to talk about, as you say, right. The Marine deployment, because there isn't the statutory issue to deal with. It's all going to be about whether the president has this. This inherent authority to use the military. Right. And so I think we'll have to see more there. But, like, again, there's been a lot of deference that the courts have given to the Congress's and President's ability to use the militias for federal purposes. The militia clauses of the Constitution are pretty broad in terms of delegating power to Congress. Right. To organize the militia and to bring it into federal service to do federal things. So all that is a very long way of saying that I'm. I agree that a lot of. I wonder if a lot of this was. Was motivated more in a kind of like a public audience kind of perspective. Right. Rather than a confidence that there's going to be some significant victory on the merits. Even though I think that there are. Like, I agree with many of the arguments that they're making substantively.

[Molly Reynolds]

I will say in their defense, because I was not super impressed by this brief, if I'm being honest. It was written very quickly. Oh, it's like 24 hours.

[Ben Wittes]

I would.

[Molly Reynolds]

Perhaps we will see an amended complaint in the days to come, particularly as the situation develops.

[Chris Mirasola]

They just filed for a temporary restraining order.

[Molly Reynolds]

Oh, really?

[Chris Mirasola]

Literally just now as we were talking. Yeah. I will say the fact that the case title is Newsom v. Trump makes me think that someone is aware of the political optics here, I think.

[Molly Reynolds]

So between Baraka and Newsom, Trump is gonna get the whole 2026 and 2028 slate. A big boost. So we'll see where it goes. Well, we are going to have opportunity to revisit this topic, I am sure, in the week or two to come. Maybe longer, maybe as long as 60 days, maybe beyond, depending on how long the situation lasts. But while we're talking about some pretty interesting litigation filings and weird developments involving the administration, let us turn to our next topic, and that is the issue of rescissions. A topic that I think it's fair to say Molly and I have been nerding out on aggressively on our in offer slack for the last 72 or 96 hours or so. And Molly may be a longer than that. I think I've just gotten on the bandwagon recently.

[Quinta Jurassic]

I've been noting out about rescissions since at least 2018. So welcome to the party.

[Molly Reynolds]

There we go. There you go. But it's a fascinating, fascinating development. We now have a rescissions proposal from the administration, although not for all the money it's refusing to spend just for a slice, but a significant slice, particularly on the foreign assistance side and for the corporation of public broadcasting involved here. Talk to us about first, just to bring people up to speed, what, what the heck is this rescissions package? It looks weird when you look at it because it's not a bill in and of itself. It's a letter from the administration to Congress. But it now becomes the basis for legislation. Very special, slippery, fast legislation.

[Quinta Jurassic]

It's even better than being a letter. It is, and this is the statutory language, a special message.

[Molly Reynolds]

Oh, there you go. I do love that.

[Quinta Jurassic]

So to sort of rewind, I'll talk a little bit about sort of what a rescissions bill is and then we can talk a little bit about what's in this one, or I should say what's in the special message that the President has transmitted and that the House at least intends to take up this week in the form as transmitted by the President. So when Congress passed the Congressional Budget act in 1974, it was trying to do a number of things. One of them, and this is sort of, this feels, I don't know, quaint to talk about now, one of them was trying to wrest back from the executive branch some control over the budget process. So Richard Nixon had exercised really broad executive powers, was impounding funds for all kinds of things that Nixon didn't want to spend money on even though Congress had appropriated it. And so in designing the Congressional Budget act, one of the things that motivated Congress was the desire to, to get some of this power back for itself. One of the things that it did as part of this act was set up this process known as rescissions, where if Congress passes an appropriations bill and the President signs that bill and then subsequently the President wants to cancel some of the funding. In the Appropriations act that Congress has already passed, there is a prescribed special procedure for doing so. The President drafts again, the statute refers to it, it's a special message, sends that to Capitol Hill, and then there's a 45 day period in which Congress can act to affirm those proposed cuts. If Congress acts on a rescissions bill initiated in this way, it's protected from a filibuster in the Senate, so it can't be filibustered. Needs only a simple majority to pass. But if Congress doesn't act on the proposal within that 45 days, then the executive branch is obligated to spend the money that it was seeking to cancel. We can talk more about sort of the procedural ins and outs if people want. But that's the sort of basic idea of the approach to passing rescissions bills. In this bill, our Schutz Sorry, I should say in this special message from the President, there are 22 proposed rescissions. About 9 million of those proposed rescissions are for PEPFAR, the President's Emergency Plan for AIDS relief. Don't quote me on that second p. I think it's plan program, not sure. But that's probably the highest profile piece in the foreign assistance context. Pepfar, widely heralded as a huge accomplishment of the George W. Bush administration. Wide bipartisan support. Historically, in recent years, there's been some some dissent among the Republican ranks around belief that some of the funds are spent to provide abortions overseas. But again, broadly popular and a place where a number of Republicans potentially might have challenges in voting for this. There's another $7.4 billion in proposed rescissions of other foreign assistance programs and then the $1.1 billion rescissions for support for public broadcasting, both in the form of basically PBS and National Public Radio. A couple things that are kind of notable to say here. One is that this is in the grand scheme of the federal funding that the executive branch has tried to stop. This is an extremely small amount of it. The idea that like this is the amount that it thinks it could plausibly take to Congress and get congressional Republicans in both chambers to vote to ratify, I think is notable. Also, it's not clear that they have the votes to codify this amount of spending. It is telling that it took this long for this to actually come to the Hill. There have been reports that a package like this was coming for many weeks, to the point where just before it was released, I asked someone basically, hey, whatever happened to the plan to send a special message initiating some rescissions? And that person said to me, good question, Molly. I don't know what happened to it. And then turns out like two days later is when they ultimately pulled the trigger. I think in part because some on the right were starting to get antsy about the idea that Congress this is pre Trump Elon feud, but we're getting antsy about the idea that Congress was not doing enough to sort of codify what Doge had been up to to. But that's so today is Tuesday. The current plan is for the House to vote on this on Thursday. We will see whether that actually happens. We'll see whether they have the votes for the whole thing, whether they feel like they need to actually Take parts of it out. And then there's a separate question of if House passes it, where does the whip count stand when it goes over to the Senate?

[Molly Reynolds]

And the Senate is just a simple majority on this through the expedite procedures, right?

[Quinta Jurassic]

It is. Although I will say these procedures actually have not been used that often, in part because like when Congress passes an appropriations bill, generally we think that's a sign that Congress actually wants to spend that money. And so it is relatively unusual for the executive branch to come back and successfully get Congress to agree to undo a decision it made relatively recently. So we don't have a ton of historical precedent for some of the potentially important procedural questions here, particularly around sort of, if the Senate wants to amend what the House has done, what are its abilities to do? So there's some open questions about that, but yeah, it's not subject to a filibuster in the Senate.

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[Molly Reynolds]

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[Chris Mirasola]

Molly I have to say if I if I were a Republican in Congress, I would not be happy about having to vote on this. It kind of seems like a no win situation for them because. Because whatever you do, somebody will be mad. A lot of the people who will be mad are your constituents and. Or Trump. Like, is there, is there any reason why this is a good political move for the Republicans here? Because if I were them, I would just want to leave it to the executive and say, like, we had nothing to do with that. Is there a desire on Trump's part to kind of have this ratified by Congress?

[Molly Reynolds]

And it's just a layer. One question on top. Is the Musk Trump feud impacting this at all? Because I am kind of curious because particularly the foreign assistance cuts are such a Musk linked thing, even though we know other figures in the administration like Russ Vought are supportive of it, but it was so publicly his. I wonder if that's giving any daylight to House Republicans who may have some reservations about it. That may be true of cbpp. I'm not sure, but I know foreign assistance. Certainly the optics were so musky. It'd be something that seems like a little easier for you to distance yourself from.

[Quinta Jurassic]

Yeah, all good questions. I mean, I think there's some degree quinta to your question of like, that's just what it means to be a House Republican right now is that you find yourself in a series of situations where some number, like a lot of the political forces from Trump and otherwise are pushing you in one direction. But then where your constituents are on a question like should we give federal support to pbs is pushing you in a different direction. I think, Scott, your question about sort of the Elon Musk. Excuse me, the Musk Trump feud is an interesting one. I mean, like, if this really were just a kind of Musk effort, then why would Republicans still be taking it up in Congress even now? That, and I think, frankly, many reporters have asked Republican members whether they side with Trump or whether they side with Musk. And as far as I can tell, every single one of them has sided with Trump. And so I don't know that that, I mean, some of that gets back to like, while these cuts, particularly the foreign assistance cuts, were most visibly associated with Musk, like, lots of Republicans, including the ones who will gladly vote for this thing, were supportive of the underlying policy goal. Like they were. They liked that, you know, Musk spent the first weekend after Trump was inaugurated taking a quote, unquote hatchet to usaid. Like that was. There was a positive development to some of them. And so. But I do think that there are some who are who don't really want to vote for this. I think that's why it took this long to come to the floor. And I think it's still to me an open question exactly how it'll play out now that it is teed up for a vote.

[Molly Reynolds]

Chris, if I remember correctly, I believe that you worked on appropriations and funding laws a bit in your time at the Defense Department. I know you've written about it for us in the context of domestic deployments specifically as a kind of point of leverage for Congress. I'd be really curious about your perspective on this. Somebody who's looked at this from the perspective of the executive branch and from outside the administration is very much engaged in a degree of brinksmanship around on this kind of fiscal financial policy side. They are clearly inching towards something that a lot of courts, a lot of people, maybe not Supreme Court, maybe not everybody, but some people will view as an impoundments violation or crisis. Even if they're not there yet. I think some would say they're already there. But certainly when you get to the point where these funds start expiring or going outside the window in which they're supposed to be spent, setting aside the apportionment windows and other commitments that may have been made along the way, you're at the point where you really are in kind of constitutional territory that a lot of people thought was pretty verboten coming into this administration. How does that line up with how either a folks in the government have traditionally viewed about this and some of the way this administration the first time around approached some of these issues around the wall and other issues that the Defense Department was involved in that may have crossed your desk. I'm not sure or not while you were there. I'm just kind of curious about your reaction about how far outside the comfort zone for your average executive branch lawyer what's happening actually is.

[Ben Wittes]

Yeah. So the I will say even in the first administration, not a ton of support for less money at the Defense Department. Defense Department generally very much into more.

[Molly Reynolds]

Money and very good at getting it too. Unlike most.

[Ben Wittes]

I have, I have far less experience than Molly does in thinking about how to get rid of money that Congress gave me. Always trying to find ways to get more so. So there's a little bit of like through the looking glass kind of thing. Maybe the one thing that I can like add to the conversation is the anti deficiency act like often comes to mind when I'm thinking when these kind of conversations come up. And like I am no, like, expert, like true expert on fiscal law. I had to do. I was like a junior fiscal law attorney because, like, in the end, a lot of what really motivated people and what got the bureaucracy going was fiscal law. Like, it, we, at the end of the day, it's like, you know, people cared about the lawyers. Like, I, I didn't go into a room and people thought, I don't care about him, but they really cared about me when I brought my colleagues from the fiscal law office, right? Or when, like, I had to channel them, right? Then, like the terror, you know, set into the room.

[Molly Reynolds]

It's like a big secret in government lawyers. It's like how the tax law partners, a law firm are always the ones who are cool and in bail. It's the same deal with the fiscal law attorneys and the government. It's the real power.

[Ben Wittes]

It's like a handful of people who knew this arcane area of law and had like a level of influence that's just unimaginable. Part of it is because the Anti Deficiency act provides a certain degree of like, individual culpability, right. For violating provision like appropriations law that just simply does not exist in like, nearly any other part of administrative law, at least in the national security context.

[Quinta Jurassic]

Right?

[Ben Wittes]

And so, like, people have like, individual skin in the game, right? Like the Deputy Comptroller has literal skin in the game, right. For these decisions. So, like, open questions about whether, like, the President or the White House cares about those people's skin in the game. Right? I mean, like, I think we have lots of evidence that there probably isn't much regard for the skin that they have in the game, but I imagine that there was like a lot of institutional support from career folks to get this over to the Hill because it would actually give some kind of, like, real legal foundation to the various machinations that Doge has been doing up until now.

[Quinta Jurassic]

Yeah, Chris, this is a great, this is a great point. And the thing that I've been sort of having to explain to lots of people when they ask me, like, why is it so hard to understand what's going on here? And I say because so much of this has never happened before, in part because the Anti Deficiency act has instilled the fear of God in everyone who works at the federal government in some ways, for our current moment under being able to predict what's going to happen. It has worked too well. Everyone has been so afraid of violating the Anti Insufficiency Act. Great. I like rules. But because of that point that you made about personal culpability it really enforces a set or has enforced a set of behaviors. And now we're in a world where because the people at the top are willing to do something entirely differently, we just have this ability. We don't have an ability to predict what's likely to happen because we've never been there before.

[Molly Reynolds]

So there's one other variable in play here that I want to touch on briefly, and that is fairly technical, but something that I stumbled across and Molly and I were looking at in the past week that I think enters into it, which is that there have been these outstanding legal challenges as well to these withholding of funds, what are alleged to be impoundment violations or something that will eventually become an impoundment violation, depending on if you let the funds lapse. We've seen this litigation a couple of different fronts, but one of the leading cases is this AIDS Vaccine Advocacy Coalition v. Department of State case that we talked about on this podcast on Lawfare podcast on our Trump trial Friday livestreams a number of times was the very first case to go in Trump 2.0 to the Supreme Court on the emergency docket and then come back down on this particular question. And here we saw a government filing in the past week that really for the first time laid out, I think, in a pretty robust way, the legal arguments that they are intending to make to kind of push back on it. And notably the rescissions actually play a role because they essentially say and note that most of these rescissions are for foreign assistance funding. And actually ever since, like, like over 50% of the most conventional foreign assistance budgets, the economic support funds and development assistance programs would rescind more than half of them combined, or around half, I think, slightly more. That presumably covers a lot of what the individual grants and contracts are at issue in that litigation where the judge has said very clearly you need a plan for spending this money by the fall or else we have to address whether there's an Impoundment act violation. So what's your plan? And they haven't really put one forward. And so they've hinged a little bit on this idea that they've put forward this rescissions package and that that kicks off an exclusive process that private plaintiffs can't interfere in that Congress intended to strictly be inner branch between the political branches debate. And in fact, they basically extend that argument to say, yeah, I mean it's especially true when we actually have a rescissions package in that's being debated during the 45 days while Congress has to decide what to do. But it actually is true generally that the whole point of the Impoundment Control act was to cut off private claims, or at least not to facilitate them and to set up a, what they call a reticulated process. I think a very savage abuse of that term because I don't think it means what I think they think it means, a reticulated process for inter branch collaboration. The hurly burly, they say, paraphrasing some testimony from then, not quite, but soon. Justice Scalia from a few years ago, what do you make of this brief? How does it comport with your understanding of the Empowerment Control act and how people thought it was going to operate? Because it strikes me as an aggressive argument, an aggressive assertion of exclusivity on the part of Congress's intent in regards to this act. But I'm wondering if you were struck by the same fact and if so, what jumps out at you particularly in contention with how we usually understand the Impoundment Control Act?

[Quinta Jurassic]

Yeah, so like my reading of that section was basically them saying, so there's sort of two pieces here. There's both the rescissions process, as I described it earlier, and then there's also this idea that the Government Accountability Office is authorized by the Congressional Budget act to determine whether something, whether an action by the executive branch constitutes an illegal impoundment. And then the Comptroller General, in his capacity is the head of gao, is empowered to sue if GAO has found that there's an illegal impoundment. And like I read this section as arguing that because those two mechanisms exist, those avenues have to be exhausted before any other remedy is even possibly available. Which, like, I just, I can't imagine that that was what Congress intended when it drafted these two tools for dictating this kind of interbranch relations. And I will note that when Congress was debating the Congressional Budget Act, I'm going to read from some of the Senate debate on the conference report. And this is Sam Ervin, who was the sponsor and manager of the bill in the Senate, who said in reference to the piece about the Comptroller General, the Comptroller general will be granted authority to sue in the federal district court for the District of Columbia to enforce the provisions of the title using attorneys of his own choosing, 25 days after he gives notice to Congress. This authority is not intended to infringe upon the right of any other party to initiate legislation. Like, obviously courts have a relationship with legislative history that is sometimes, to my mind, not respectful of the United States Congress. But like, that's pretty clear in terms of what Congress intended here. I don't think they intended to foreclose other opportunities to try and force the executive branch to comply with what Congress has already said is supposed to happen.

[Molly Reynolds]

Yeah, that's a really interesting slice of legislative history and a good find. They do a similar move with part of the Impoundment Control act itself, where it says in one of its earlier provisions, this act is not intended to have any bearing whatsoever on any available legal options that other parties may be pursuing. And then they somehow quote that to say, obviously that meant they didn't mean to facilitate any litigation. Like, no litigation was supposed to be facilitated by this. And so you can't rely on it or involve or otherwise, you know, take an Impoundment Control act violation as being something you can sue over under the apa, which is very strange to me because APA existed before the Impoundment Control act, meaning you could have a prior existing actions.

[Quinta Jurassic]

And I would just say, like we have, and we have other examples where Congress also tried to, like, anticipate nonsense that the executive branch might try to pull here. So in 1987, when Congress made some revisions to this part of the budget, the Congressional Budget act, to deal with Scott, and I shouldn't speak for Scott, an object of much of my own scorn, the Supreme Court decision in insv. Chada. I'm not a fan of overturning the legislative veto, but when they went back to make some changes to the Congressional Budget act, they amended a different section of the act to basically prevent the President from just resubmitting failed rescission requests in order to run out the clock. They understood that the executive branch might try and do bananas things here, and they explicitly tried to stop them from doing so.

[Molly Reynolds]

It is a wild ride to say the least.

[Chris Mirasola]

I cannot remember who made this post on Bluesky, so if it was you, thank you. But a lawyer on Blue sky had made a joke about a month or so ago about how every time Trump does something new, they think there's no way that the President has the authority to do that, only to look it up and find that Congress had delegated it to the executive in 1908 in the what's the worst that could happen Act. And this is actually a case where it's the opposite of that and the administration is still moving forward.

[Quinta Jurassic]

Forward.

[Molly Reynolds]

It is wild. I think we will have more opportunities to come back and visit this, including after the House acts potentially on this rescission package this week to see what exactly it looks like. Let us turn now to the case of Mr. Kilimar Abrego Garcia, a gentleman who has been held initially at csat, the kind of notorious now detention facility in El Salvador at the bequest of the Trump administration, removed from there at some point in the last few weeks or months, had a sit down with Senator Chris Van Hollen when he visited to check on his status as a senator, as Mr. Rigo Garcia was from Maryland and had been residing in Maryland before being detained and removed. Now, finally, after months of litigation, weeks of litigation, after a strong suggestion by the Supreme Court and other courts that he people in a similar situation should be moved back to the United States, it's finally happened. Despite initial statements by the Trump administration that it could not happen, it would not happen. In part because of cooperation by Bukele and the government of El Salvador, it has happened. He is now back in the United States, but he's back in the United States to face criminal charges in federal court in Tennessee alleging that he was involved in a scheme to transport undocumented migrants across the country for various purposes, among other violations of federal crimes. Quinta, you've been watching this case for a long time. Talk to us about how big a development this is, how notable this is, how the administration is framing it. In particular, how much of a walk back this is versus some other pivot policy pivot they may be pursuing. I'm curious about your assessment of this. I mean, is this out of the frying pan into the fryer for Mr. Abrego Garcia, or is this actually the sort of remedy that the court was pushing for in these sorts of cases?

[Chris Mirasola]

Well, I will say I find it hard to imagine that Judge Xinis imagined that facilitate Abrego Garcia's return meant charge him and then present El Salvador with a request for extradition. But, you know, who knows? This whole situation is bizarre. I think it's worth noting that assistant U.S. attorney in the relevant district in Tennessee resigned reportedly rather than pursue this indictment, which I think suggests something about perhaps the. The quality of the legal work here. It's also noteworthy that the charges appear to rely pretty heavily on the testimony of a jailhouse informant. Now, we don't know that person may be reliable, but I do think it's worth noting in that there's a lot of material in here and in the Justice Department's motions for pretrial detention that sounds very inflammatory about, you know, abrego Garcia's alleged MS.13 membership and other, you know, activities that they're alleging that are not actually the activity indicted here, which one way you could read that is that the Justice Department wanted an opportunity to throw a lot of stuff at the wall to make Abrego Garcia look bad without actually having to prove any of it beyond a reasonable doubt, given the specific charges that they have selected here. I do think it is a good question mark thing insofar as this means that Abrigo Garcia's case will be hashed out in the United States in a public courtroom in a situation where the rule of law is at least more secure than it is in El Salvador, with a measure of due process much stronger than he would have received otherwise. And so that is, you know, it is better for him to be here than there. Certainly the circumstances are very questionable. I also am very curious how this is going to play out in the other cases involving the Alien Enemies act, particularly jgg, the original Alien Enemies act case, in front of Judge Boasberg, where just before I believe this indictment came down, Boasberg issued a ruling certifying a class of the individuals currently detained in Secot, but finding that the US did not have constructive custody of them for habeas purposes. Now he sort of fashions a different avenue to give them a potential for relief. That's a much more complicated discussion that we can have another time. But I do wonder if the fact that the United States was able to get Abrego Garcia back actually changes the shape of things on constructive custody. Because if I'm remembering correctly, Boasberg said that he thought it was kind of a close question and one where his ruling depended on the honesty of statements made to him by government officials with a sort of note that he had reason to doubt that honesty and was going to really hold their feet to the fire on it going forward. So if I were Boasberg, certainly if I were the ACLU litigating that case, I mean, I would not be surprised if we see a filing in the future that points to this as evidence that the US has some level of control. Now, I suppose the US could argue, oh, well, this is different because it was a criminal charge. But still, I don't know. There's one other point I want to make, and I know I've been talking for a while, there is good reason to believe, and this is from reporting from both the New York Times and El Faro, which is a Salvadoran media organization which is now based in Costa Rica because of political repression, that part of the reason that Nayibukele agreed to take detainees from the United States in The first place was that the US agreed to send back to El Salvador people who were actually Ms. 13 leaders, at least one of whom was scheduled to go on trial. And the reason that Bukele wanted that is that that person, when he was going to go on trial, probably would have given testimony in court about a bargain that Bukele's government made with the gangs in El Salvador, which would have been very bad politically for Bukele. There's a number of Ms. 13 leaders who were transferred back to El Salvador and now are not going to testify. El Faro indicates that this is very, very real and something that this really may have been driving Bukele's behavior here. If that is the case. It is notable that instead of this being an MS.13 member who was incarcerated in the US about to face trial and sent to El Salvador where they couldn't test, we are now taking Abrego Garcia from El Salvador where he couldn't talk to anybody, including for a long time his own senator, back to the United States. Two face criminal trial, which is a little bit against the direction of traffic, as Ben Wittes put it to me. And I think may suggest that Abrego Garcia is maybe not well positioned to speak about high level conversations within MS.13 and the way that the Justice Department has kind of suggested. So that is speculation, but I put it on the table for you.

[Quinta Jurassic]

Yeah.

[Molly Reynolds]

And it's worth digging into a little bit. Like what the actual factual allegations against him are. Right. It seems to be mostly tied to this incident and then related incidents where he was pulled over with a number of people in his car, interviewed by police a number of years ago at this point and released with a warning about I think an expired driver's license being the main issue, but that the police report included suspicion on the part of the officers that he was moving people. And I think he actually openly said these people we'd all been working in another state and were driving back to Maryland or vice versa. I can't remember the direction of transit. And this has been expanded to an indictment that includes a much broader trafficking system, broader conspiracy to bring people around. I can't remember if there's ties to MS.13 raised specifically in the indictment or not in relation to those events. It's really been part of the rhetoric. Is that including the indictment as well?

[Chris Mirasola]

Well, do you recall it is alleged? Yeah. It's not specifically charged, but it's part of the story that the indictment is telling.

[Molly Reynolds]

The broader sort of like narrative and maybe the universe of unindicted co conspirators they may try and rely on. It's a big story they're drawing out there, but it's one that they're setting up a lot of stakes where they're now going to have to prove before a criminal trial. I mean, and that is actually a challenge. I mean, I worked for federal prosecutors earlier stage of my career before I went to law school. And something one of them said is that you don't want to over promise too much in your opening or your indictment because all these elements of the story to keep credibility with the jury and with the court, you got to prove them and bring evidence forward to support them. And that seems like a tall order here. It's very odd to see such a bold and grand indictment when we haven't seen much of the evidence behind it, although we'll have to wait and see. Maybe there's more that they're going to be able to put bring forward once it actually does go to trial. So, Molly, we've already mentioned Senator Chris Van Hollen. He took that very high profile trip to El Salvador. He's been very engaged on this. A number of members of Congress, particularly Democrats, have been particularly engaged on this on behalf of constituents or behalf of family members who have family members who are affected by these policies, the Alien Enemies act application, as well as other aspects of the broader immigration regime. How do you think this move is going to play with those audiences? I mean, again, there is this temptation to say this is a sham trial and there's certainly reasons to raise big questions about the indictment that's being raised. But he has returned home and he does have the conventional protections that he would have in a criminal justice system. And in that sense it is a win. This could have happened to a lot of people if they want to bring these charges who are already in the United States. He's not at least any more disadvantaged advantage than he would have been if he were still here. So how is this going to be seen by those audiences and how does it play into the broader perceptions of the administration's immigration policies generally?

[Quinta Jurassic]

Yeah, I mean, some of what I'm going to say here is sort of a repeat of what I said in response to the question earlier about the use of the National Guard of Marines in Los Angeles, which is that to the extent that we have polling on this question, the idea that that Mr. Abrego Garcia was not supposed to be deported and then was deported anyway and then when a federal judge said you had to bring him to facilitate his return and the executive branch didn't do that. Like, that's all unpopular with voters. And I think that there's been a lot of hand wringing in left of center spaces about what Democrats, what the appropriate response of Democrats to the president's draconian immigration policy is. And I think I would say two things. One is that again, at least in the specifics of this case, there's a lot going on here that the public does not like. And two, and we talked about Chris Van Hollen. I think part of why that whole thing was ultimately, I would argue, successful, like Chris Van Halen got to see Abrego Garcia in a very weird constructed environment while he was there is that it was authentic. So, like, the man lives in Maryland. Chris Van Hollen represents the state of Maryland in the US Senate. As Chris Van Hollen himself said at every opportunity, Maryland has a very rich Salvadorian population. And he genuinely saw this. And Quint and I have been joking about this, but there's a truth there that he genuinely saw this as an act of constituent service service and that it's why we talked a lot about that and didn't really talk about other congressional Democrats who also either tried to make a trip to El Salvador or tried and failed. Those were fleeting news stories in a way that the thing that Chris Van Hollen did, because it seemed genuine, it seemed like a thing that you actually want your U.S. senator to do if something like this happened to a member of your family. It seemed much more like a genuine act of the job than it did as an act of political posturing.

[Chris Mirasola]

Yeah, it was when he was making all these speeches about Abrego Garcia, including while he was in El Salvador, live streaming from an empty ballroom because Bukele wouldn't let him into sicat. He would have this passionate speech about the importance of the due process, and then he would pause and say, and Maryland has a rich El Salvador, a vibrant El Salvadorian population, and we value their contributions like yada yada. And then right back to talking about Abreco Garcia. It was great.

[Molly Reynolds]

There you go. The man knows what he's up to. If nothing else, say that about Senator Chris Van Hollen. Well, folks, I think that brings us to the end of our time together for this week. But this, of course, would not be rational security if we did not leave you with some object lessons to ponder over in the week to come. Molly, what do you have for us this week?

[Quinta Jurassic]

So I started by talking about New Jersey's primary. My object lesson actually has to do with The New York City mayoral primary, which is scheduled for two weeks from today. And the New York Times, as part of its coverage of the primary, has been going around interviewing all of the candidates in the Democratic primary. And it's been asking them a series of questions, including a question about what each candidate's favorite bagel or other breakfast sandwich order is. And I really commend the list of these to you, particularly Andrew Cuomo, who talks like someone who's not actually from New York City when he lists the ingredients in his preferred breakfast sandwich. And just really, it's really a delight to see where people rank on highly controversial questions like toasted or not in reference to their bagel.

[Ben Wittes]

Was Andrew Cuomo a toasted bagel?

[Quinta Jurassic]

I'm so sorry, no. Andrew Cuomo gave an answer to this question that didn't even involve a B.

[Chris Mirasola]

He sounded like an alien. It was bizarre.

[Quinta Jurassic]

I believe the order that he listed the ingredients to his sandwich in as bacon, cheese, and egg, which is a thing that no human ever.

[Chris Mirasola]

Exactly.

[Quinta Jurassic]

That no human ever says.

[Molly Reynolds]

Perfect alphabetical order. Some people appreciate it. I'm so sorry.

[Ben Wittes]

The New Yorker in me is just like, who is this man?

[Chris Mirasola]

This was either right before or right after his motorcade ran a red light in Manhattan to take a left. So he's really.

[Ben Wittes]

I'm sorry. I know that this is not a Christmas face of horror, but the jaw dropping didn't quite make the sound I wanted to. So insane.

[Molly Reynolds]

Quinta, what do you have for us this week?

[Chris Mirasola]

I would like to recommend a New Yorker article. And like all New Yorker, great New Yorker profiles, it begins with a vague sense of distaste that you can feel on behalf of the writer toward their subject, and just builds and builds toward an incredibly nasty and catty and richly deserved conclusion. So I am referring to Eva Kaufmann's profile of Curtis Yarvin, AKA Mentius Moldbug, who you may have learned about recently. I'm very sorry. He is a sort of online Y court quote, unquote philosopher of the far right. And the profile is just a masterful, masterfully done depiction of him, and then slow dismantling of all of his kind of pretense of intelligence. And the writer somehow managed to talk to his friends in high school, his first girlfriend, people who were in his college classes who apparently called him Helmethead because he would wear his bike helmet in class. And it just builds and builds and builds to this truly, truly devastating conclusion. So I recommend it. It less because of its subject, who is honestly not that interesting, and more just As a real marvel of profile.

[Molly Reynolds]

Writing I will say I read. I don't think I actually finished it. I think I about 2/3 of the way through before I had to run. But it is pretty savage and very interesting and makes you really cast the whole our new elites of Silicon Valley who are beholden with this person in a little bit of a more questioning light to say the very least. Least but definitely worth checking out. For my object lesson this week I will dip into something a little less weighty. I have been wrestling to find a new books or series of books to read with my 4 year old who is delightfully interested in all things adventure. But it's hard to like stay away from things that are too violent or aggressive for a four year old or too stimulating to like the weird parts of your brain that you don't want him to like start thinking about punching things as being a good idea at this particular age. Age. So I settled on may not be the perfect solution but I find it quite charming. My old Tintin books by Herge that hopefully a lot of folks had which are phenomenal comic books from I don't know when exactly he wrote them. I think the 60s and 70s mostly maybe into the 80s. I could not find my old ones for the life of me at my parents house. I think they probably threw them away and have never admitted to me what happened to them or gave them away. So I finally broke down and ordered a very nice box set that is available now and they're absolutely delightful. The early ones I will say don't necessarily hold up. That's where we started and we may.

[Quinta Jurassic]

Skip ahead a few. There's some colonialism that you.

[Molly Reynolds]

Oh, there's a lot of colonialism you gotta edit out.

[Chris Mirasola]

There's one that's not even in print anymore. Right.

[Quinta Jurassic]

Because of that not shock. I feel like Scott, you and Chris and I were on together last time Chris was on and we also descended into lessons from millennial parenting.

[Ben Wittes]

I have another idea. If you need another Recommendation for a 4 year old who needs an adventure.

[Molly Reynolds]

Story, well, I'll take it. I love the Tinted books ever again. They do require a little strategic editing. Here's what I'm going to say. Erjer had a moral arc though and by the time you get to the later books he's actually almost expressly anti colonialist or at least very skeptical of the colonial experiment. And a lot of other kind of interesting political things begin to come out. Now is my 4 year old gonna get that? Probably not. But it does make me Feel better reading it and I feel like pruning it helps a little bit along the way. There are a lot of guns. That's the one downside I always forget. It's like, man, he doesn't use a gun. There are always guns in these things though, so I've got to work my way around that. A lot of smoking, but once you get past that, it's pretty manageable. But yeah, very open to suggestions, Chris, if you have anything else.

[Ben Wittes]

So I grew up reading the Magic Treehouse.

[Molly Reynolds]

Oh, of course.

[Ben Wittes]

Right. So if you haven't done the Magic Treehouse yet, not only are they like fantastic in the written form, but there is also to go back to our conversation last time we were all together. YODO has a series of cards for the Magic Treehouse if you want to get out of the business of reading books.

[Molly Reynolds]

I have acquired a YODO since our last conversation. I forgot that was the conversation we had. I've acquired one and I gotta say, big endorsement on that one. The YODO is a big win. Definitely beats out the other audio device that I was using mistakenly for several months.

[Quinta Jurassic]

I actually happened last time. Our fine audio engineer, Noam, also millennial parent of it's child, diving into to echo that his child too loves Titanic. And yes, no, the same thing happened to me. My child also exposed to the Titanic earlier than I would have otherwise wanted as a result of the Magic Treehouse.

[Molly Reynolds]

My son also took a book off of his mother's bookshelf at her parents house and it was an incredibly in depth and very sad story about the Titanic and all the people who died there. And we read the first third of it and I was like, I gotta find a way to get off a different book. Because he was so insistent. I was like this doesn't end well for any of these people. But how do I explain that? So eventually we just distracted it with something else. Anyway, for our last object lesson, Chris, bring us home. What do you have for us this week?

[Ben Wittes]

Also something light and I think also very out of date. But I'm very bad at keeping up on pop culture things. My wife and I recently watched the Residence on Netflix, which is like a murder mystery that takes place in the White House residence. It is thoroughly.

[Molly Reynolds]

This sounds like an Alan recommendation that I'm gonna roll my eyes over. Oh no. Classic Alan Rec.

[Ben Wittes]

It is so fantastic. It is quirky, it is fun, it is tongue in cheek. We stayed up the entire night watching it on like a Tuesday. It was insane. I've never been more tired in my life, but it was totally fantastic.

[Molly Reynolds]

All right, all right, I'll check it out. I'll give it. I'll give it the benefit of a doubt. Well folks, that brings us to the end of this week's episode. But Rational Security is of course a production of Lawfare. So be sure to Visit [e-mail] for our show page with 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. In addition, 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 be sure to sign up to become a material supporter of Lawfare on Patreon for an ad free version of this podcast and other special benefits. For more information, visit lawformmedia.org support our audio engineer and producer this week was Noam Osband of Goat Rodeo and her music, as always, was performed by Sophia Yan and we were once again edited by the wonderful Jen Patcho. On behalf of my guests Chris Quinta and Molly, I am Scott R. Andersen. We will talk to you next week. Till then, goodbye. When your workforce, tech stack and business needs are evolving all at once, you need HCM software that moves just as fast. That's why Paylocity builds what's next? Providing innovative and simplified solutions for clients to tackle the real challenges they face every day. From AI driven insights to automated workflows across hr, finance and it, Paylocity's platform doesn't just keep up it looks leads. It's time to simplify complexity, drive results and move forward together. Start [e-mail] simplified.