The Lawfare Podcast: Rational Security — The "I AM an Object Lesson" Edition

Date: September 25, 2025
Host: Scott R. Anderson
Guests: Kate Clonick, Eric Columbus
Podcast Theme: Rational Security – dissecting the week’s most pressing issues at the intersection of national security, law, and policy.

Episode Overview

This edition of Rational Security explores three high-profile, controversial stories dominating the national security and legal landscape this week:

1. Free Speech Fights After the Assassination of Charlie Kirk
   What do the government-driven campaigns to punish critical speech about Kirk mean for the First Amendment?

2. The Murky TikTok “Deal”
   After months of legislative limbo, the Trump administration claims a breakthrough with China regarding TikTok’s U.S. operations. But has anything vital really changed?

3. Corruption and Cryptocurrency in the Trump Administration
   A close look at fresh reports of White House corruption—bribery allegations, the UAE chip-crypto deal, and the shifting landscape of regulatory evasion.

1. Free Speech and Government "Jawboning" After Charlie Kirk (04:00–38:46)

Key Discussion Points

• Immediate Context:
  The assassination of conservative activist Charlie Kirk sparks a campaign, backed by influential members of the Trump administration, pushing for the firing and public shaming of those voicing criticism or “insensitive” commentary regarding Kirk’s death.
• State Pressure & The First Amendment:
  FCC Chairman Brendan Carr’s public threats toward TV networks air Jimmy Kimmel Live (which was briefly pulled from the air), and the broader efforts by Vice President Vance and President Trump to pressure employers to punish certain kinds of speech.
• Legal Analysis:
  • The complexity of evaluating public employee speech rights (balance between employee free speech and employer’s need for efficiency).
  • Supreme Court precedents—such as Masterpiece Cakeshop—help frame the limits but provide no simple answers.
  • The “Heckler’s Veto”: Government-induced outrage to manufacture disruption, then using that as a reason to suppress speech, is generally frowned upon by courts.
• From Private to Public Pressure:
  Previous “pressure campaigns” (e.g., during Black Lives Matter, #MeToo) were often grassroots; the current phenomenon is different because it’s instigated by public officials.

Jawboning, Hypocrisy, and Legal Precedent (15:04–23:39)

• Jawboning Defined:
  Attempts by government officials to coerce or “encourage” companies to moderate or remove content, without direct legal compulsion.
  Historic case: Bantam Books v. Sullivan — government hinting at law enforcement consequences to suppress bookstore content.

• Recent Echoes:
  Jawboning’s relevance in Murthy v. Missouri (2022–24)—White House emails to social media platforms about COVID-19 misinformation led to alarmist claims but little in the way of concrete legal violation.

• Current Reversal:
  Conservative leaders who previously railed against alleged Biden-era “censorship” are now themselves using government platforms to pressure media and employers.

  “If you followed this, it’s just—it is a particularly sharp moment of hypocrisy and kind of double standards that are kind of unbelievable.”
  — Kate Clonick [15:24]

• Real-World Impact:
  Pulling Jimmy Kimmel Live after FCC pressure is a “jawboning” scenario, possibly exceeding what was actually done in prior (Biden-era) cases.

• Pushback From Within the GOP:
  Not all Republicans have backed this move; notable figures (including Ted Cruz) warn about the dangerous precedent for speech.

Remedies and Enforcement (25:45–38:46)

• Legal Remedies for Victims of “Jawboning”:
  • Money damages from the federal government are tough to secure.
  • Injunctive relief (court orders to stop officials from making threats) possible, but such suits would be long, expensive, and provide little precedent for future similar cases.
  • Supreme Court’s NRA v. Vullo—recognized indirect (jawbone) censorship as unconstitutional but mainly applies at the state/local level.
• Political and Cultural Enforcement:
  The First Amendment is also “enforced” in the court of public opinion; high-profile Republicans calling out their own party’s abuses may have staved off even worse outcomes.

Memorable Quotes

“This is a particularly sharp moment of hypocrisy and kind of double standards that are kind of unbelievable.”
— Kate Clonick [15:24]

“Government cannot do indirectly what it can’t do directly.”
— Eric Columbus, describing the Bantam Books precedent [27:33]

“If your impulse is ‘this doesn’t make sense, I don’t understand it,’ the answer is because it really doesn’t make sense.”
— Kate Clonick, on the current TikTok licensing proposal [52:09]

2. The TikTok "Deal": Substance or Smoke? (41:33–58:33)

Key Discussion Points

• The “Deal” Status:
  After statutory deadlines were extended repeatedly by the administration, Treasury Secretary Besant and President Trump announce a TikTok–U.S. breakthrough. Buyers include Oracle (Larry Ellison), Silver Lake, and Andreessen Horowitz—raising questions about partisanship and influence.

• Core Concerns:

  • Original law was based on national security risks: the Chinese government’s access to U.S. user data and influence over content via TikTok’s algorithm.
  • The announced arrangement would see “US control” of TikTok and a supposed surrender of algorithmic control by ByteDance (TikTok’s Chinese parent).

• Deal Details (or Lack Thereof):

  • The “licensing” deal may simply allow U.S. companies to use a Chinese-designed, updated algorithm—a far cry from true independence.
  • There is no requirement for Congressional oversight or approval. The deal’s transparency is minimal to non-existent.

  “None of that that I just described to you makes it seem as if the thing that was the animating principle behind this law, which was that ByteDance’s algorithm was vulnerable to manipulation by the CCP, none of this is fixed in this.”
  — Kate Clonick [49:35]

• Algorithmic Accountability:

  • “Controlling” or “auditing” an algorithm isn’t technically feasible in the way policymakers imagine; continual updates from ByteDance make true oversight illusory.

• Political and Technical Skepticism:

  • The fixation on resumes, ownership structures, and “transparency” looks more like performance than substance.

Congressional and Political Oversight (54:55–58:33)

• Congressional Leverage:
  • In theory, Congress could pass a new law requiring approval and transparency—but there’s no political appetite for such a move.
  • Subpoena power (especially if Democrats control at least one chamber next session) could eventually bring more facts to light, but enforcement will be a challenge.
• Political Entrenchment:
  • Buyers’ strong links to the right spawn suspicions either of profit for allies or the possibility of future algorithmic bias for political gain.

“If the entire point of this is that you’re taking, wresting control away from the CCP...it should change the experience. But...this isn’t like what I learned—there was no part of Schoolhouse Rock when like the bill becomes a law that was like, ‘and then the president sticks it in a drawer and decides that he’s not going to order enforcement on it unilaterally...’”
— Kate Clonick [56:14]

3. Corruption, Crypto, and the Second Trump Administration (58:33–72:34)

Key Discussion Points

• Allegations and Investigations:
  • DOJ reportedly closed an investigation into Tom Homan (White House “border czar”) after he accepted $50,000 from undercover FBI agents while expecting a Trump administration job (“bag from Kava” anecdote).
  • The legal standard for bribery (official act for money) may not be met, given Homan’s advisory (not contract-steering) role—even if the optics are egregious.
• The UAE Chip/Crypto Deal:
  • Suspicious timing between the administration’s reversal of chip export bans to UAE and major crypto deals benefiting the Trump Organization/associates.
  • Cryptocurrency’s “Wild West” atmosphere and lack of disclosure make tracing or prosecuting abuse extremely difficult.
• Regulatory Evasion:
  • The move from hotel emoluments to crypto creates standing problems for potential plaintiffs and pushes the corruption further out of reach of conventional legal challenges.
• National Security Implications:
  • The confluence of administration favoritism, unregulated markets, and the bypassing of oversight creates deep risk for both transparency and democratic accountability.

“It is now kind of a very well established wild west of opportunity and financial incentives to basically create either an ease of creating your own crypto, an ease of hyping it...it is just an immense mechanism for corruption.”
— Kate Clonick [64:34]

Philosophical Reflections

• Market-Philic Governance:
  The administration’s weaponization of capitalism reaches unprecedented levels—using markets, capital, and new financial technologies as tools of power and influence.
• Absence of Oversight:
  Regulatory “cats” have left the scene, and the mice are “all eating cheese.”

Notable Quotes & Memorable Moments

• “[Jawboning] is...the idea of basically trying to use economics or the threat of enforcement or bullying basically, by a government official...to not directly censor, but to jawbone social media companies into censoring.”
  — Kate Clonick [15:08]

• “The First Amendment is enforced not only by the courts, but in the court of public opinion...Ted Cruz played quite possibly a significant role...in pushing back against the government.”
  — Eric Columbus [37:38]

• “If your impulse is, ‘this doesn’t make sense, I don’t understand it,’ the answer is because it really doesn’t make sense.”
  — Kate Clonick [52:09]

• “We’ve just never, ever seen before...the size and scale and scope of the UAE thing has really kind of put a pin in that for me.”
  — Kate Clonick [70:10]

Timestamps for Key Segments

• [04:00] — Main theme intro, story lineup
• [07:08] — Free speech after Charlie Kirk assassination (Eric)
• [12:01] — Public versus private pressure campaigns
• [15:04] — Deep-dive: Jawboning and First Amendment doctrine (Kate)
• [25:45] — Legal remedies: What can be done?
• [41:33] — TikTok “deal”: Details and skepticism (Kate)
• [49:35] — Data, algorithms, and the smoke of “transparency”
• [54:55] — Congress’s role and oversight limitations (Eric)
• [58:33] — White House corruption, the role of cryptocurrency (Eric & Kate)
• [70:10] — Philosophical take: Markets, power, absence of oversight
• [72:46] — Object Lessons (each host shares a personal recommendation)
• [76:38] — Closing remarks

Object Lessons (72:46–76:38)

• Eric: Recommends “To Rise Again at a Decent Hour” by Joshua Ferris, a literary exploration of Judaism, baseball, and dentistry, in honor of Rosh Hashanah.
• Scott: Promotes an upcoming concert by Katie Pruitt in Washington, D.C.—described as “epic rock with Americana and country flavor.”
• Kate: Shares a story about a treasured blue hippo figurine from her first Paris trip—a reminder of art, memories, and the hunt for meaning.

Tone and Dynamics

• Thoughtful, occasionally passionate debate (especially from Kate, e.g., on the jawboning issue)
• Wry, sometimes self-deprecating humor (object lessons, anecdotes about home decor and blue hippos)
• Deep skepticism about the motives and actions of current U.S. leadership, particularly regarding transparency, corruption, and freedom of expression.

Final Thoughts

This episode welds together the urgent concerns of constitutional freedoms, the hazards of unchecked executive power, the farce of regulatory capture, and how new technologies both empower and imperil democratic accountability. Listeners are left with the challenge of seeing through the performance and demanding more substance, process, and principled governance.